Title: Removal Power of the President, [16 June] 1789
From: Madison, James
To:

[16 June 1789]

   The Committee of the Whole took up the bill establishing a department of foreign affairs. Smith (South Carolina) and others wished to strike out the clause declaring the secretary “to be removeable from office by the President of the United States.”

Mr. Madison. If the construction of the constitution is to be left to its natural course with respect to the executive powers of this government, I own that the insertion of this sentiment in law may not be of material importance, though if it is nothing more than a mere declaration of a clear grant made by the constitution, it can do no harm; but if it relates to a doubtful part of the constitution, I suppose an exposition of the constitution may come with as much propriety from the legislature as any other department of government. If the power naturally belongs to the government, and the constitution is undecided as to the body which is to exercise it, it is likely that it is submitted to the discretion of the legislature, and the question will depend upon its own merits.
I am clearly of opinion with the gentleman from South-Carolina (Mr. Smith,) that we ought in this and every other case to adhere to the constitution, so far as it will serve as a guide to us, and that we ought not to be swayed in our decisions by the splendor of the character of the present chief magistrate, but to consider it with respect to the merit of men who, in the ordinary course of things, may be supposed to fill the chair. I believe the power here declared is a high one, and in some respects a dangerous one; but in order to come to a right decision on this point, we must consider both sides of the question. The possible abuses which may spring from the single will of the first magistrate, and the abuse which may spring from the combined will of the executive and the senatorial qualification.
When we consider that the first magistrate is to be appointed at present by the suffrages of three millions of people, and in all human probability in a few years time by double that number, it is not to be presumed that a vicious or bad character will be selected. If the government of any country on the face of the earth was ever effectually guarded against the election of ambitious or designing characters to the first office of the state, I think it may with truth be said to be the case under the constitution of the United States. With all the infirmities incident to a popular election, corrected by the particular mode of conducting it, as directed under the present system, I think we may fairly calculate, that the instances will be very rare in which an unworthy man will receive that mark of the public confidence which is required to designate the president of the United States. Where the people are disposed to give so great an elevation to one of their fellow citizens, I own that I am not afraid to place my confidence in him; especially when I know he is impeachable for any crime or misdemeanor, before the senate, at all times; and that at all events he is impeachable before the community at large every four years, and liable to be displaced if his conduct shall have given umbrage during the time he has been in office. Under these circumstances, although the trust is a high one, and in some degree perhaps a dangerous one, I am not sure but it will be safer here than placed where some gentlemen suppose it ought to be.
It is evidently the intention of the constitution that the first magistrate should be responsible for the executive department; so far therefore as we do not make the officers who are to aid him in the duties of that department responsible to him, he is not responsible to his country. Again, is there no danger that an officer when he is appointed by the concurrence of the senate, and has friends in that body, may chuse rather to risk his establishment on the favor of that branch, than rest it upon the discharge of his duties to the satisfaction to the executive branch, which is constitutionally authorised to inspect and controul his conduct? And if it should happen that the officers connect themselves with the senate, they may mutually support each other, and for want of efficacy reduce the power of the president to a mere vapor, in which case his responsibility would be annihilated, and the expectation of it unjust. The high executive officers, joined in cabal with the senate, would lay the foundation of discord, and end in an assumption of the executive power, only to be removed by a revolution in the government. I believe no principle is more clearly laid down in the constitution than that of responsibility. After premising this, I will proceed to an investigation of the merits of the question upon constitutional ground.
I have since the subject was last before the house, examined the constitution with attention, and I acknowledge that it does not perfectly correspond with the ideas I entertained of it from the first glance. I am inclined to think that a free and systematic interpretation of the plan of government, will leave us less at liberty to abate the responsibility than gentlemen imagine. I have already acknowledged, that the powers of the government must remain as apportioned by the constitution. But it may be contended, that where the constitution is silent it becomes a subject of legislative discretion; perhaps, in the opinion of some, an argument in favor of the clause may be successfully brought forward on this ground: I however leave it for the present untouched.
By a strict examination of the constitution on what appears to be its true principles, and considering the great departments of the government in the relation they have to each other, I have my doubts whether we are not absolutely tied down to the construction declared in the bill. In the first section of the 1st article, it is said, that all legislative powers herein granted shall be vested in a congress of the United States. In the second article it is affirmed, that the executive power shall be vested in a president of the United States of America. In the third article it is declared, that the judicial power of the United States shall be vested in one supreme court, and in such inferior courts as congress may from time to time ordain and establish. I suppose it will be readily admitted, that so far as the constitution has separated the powers of these great departments, it would be improper to combine them together, and so far as it has left any particular department in the entire possession of the powers incident to that department, I conceive we ought not to qualify them farther than they are qualified by the constitution. The legislative powers are vested in congress, and are to be exercised by them uncontrolled by any other department, except the constitution has qualified it otherwise. The constitution has qualified the legislative power by authorising the president to object to any act it may pass, requiring, in this case two-thirds of both houses to concur in making a law; but still the absolute legislative power is vested in the congress with this qualification alone.
The constitution affirms, that the executive power shall be vested in the president: Are there exceptions to this proposition? Yes there are. The constitution says that, in appointing to office, the senate shall be associated with the president, unless in the case of inferior officers, when the law shall otherwise direct. Have we a right to extend this exception? I believe not. If the constitution has invested all executive power in the president, I venture to assert, that the legislature has no right to diminish or modify his executive authority.
The question now resolves itself into this, Is the power of displacing an executive power? I conceive that if any power whatsoever is in its nature executive it is the power of appointing, overseeing, and controlling those who execute the laws. If the constitution had not qualified the power of the president in appointing to office, by associating the senate with him in that business, would it not be clear that he would have the right by virtue of his executive power to make such appointment? Should we be authorised, in defiance of that clause in the constitution—“The executive power shall be vested in a president,” to unite the senate with the president in the appointment to office? I conceive not. If it is admitted we should not be authorised to do this, I think it may be disputed whether we have a right to associate them in removing persons from office, the one power being as much of an executive nature as the other, and the first only is authorised by being excepted out of the general rule established by the constitution, in these words, “the executive power shall be vested in the president.”
The judicial power is vested in a supreme court, but will gentlemen say the judicial power can be placed elsewhere, unless the constitution has made an exception? The constitution justifies the senate in exercising a judiciary power in determining on impeachments: But can the judicial power be farther blended with the powers of that body? They cannot. I therefore say it is incontrovertible, if neither the legislative nor judicial powers are subjected to qualifications, other than those demanded in the constitution, that the executive powers are equally unabateable as either of the other; and inasmuch as the power of removal is of an executive nature, and not affected by any constitutional exception, it is beyond the reach of the legislative body.

If this is the true construction of this instrument, the clause in the bill is nothing more than explanatory of the meaning of the constitution, and therefore not liable to any particular objection on that account. If the constitution is silent, and it is a power the legislature have a right to confer, it will appear to the world, if we strike out the clause, as if we doubted the propriety of vesting it in the president of the United States. I therefore think it best to retain it in the bill.


Title: From James Madison to Edmund Randolph, 17 June 1789
From: Madison, James
To: Randolph, Edmund

My dear friendN. Y. June 17. 89
The inclosed bill relating to the Judiciary has been just introduced into the Senate. Having not yet looked it over I can say nothing of its merits. You will be a better judge, and such remarks as your leisure will permit, will be acceptable & useful.
A very interesting Question is started—By whom officers appointed during pleasure by the Presidt. & Senate are to be displaced?—whether the power results to the authority appointing—or to the Presidt as an Executive function, to the Presidt. who is vested with the Executive power, except so far as it is expressly qualified. My present opinion is that the Senate is associated with the Presidt. by way of exception, and can not therefore claim beyond the exception. This Construction has its inconveniences particularly in referring too much to a single discretion, but it is checked by the elective character of the Executive, his being impeachable at all times—and the subordinate officers being also impeachable. His power under this Construction will lie merely in a capacity to remove worthy officers: but experience shews that this is not the prevailing evil, the continuance of the unworthy being the most so. Add to this, that his caprice would be restrained, by the necessity of the Senate’s concurrence in supplying the vacancy; and that injured merit would be supported by the public opinion, would attack with probability of success the re-election of the Presidt. and would at least be able to make a party agst. him in the Legislature and to go into one or other of its branches, to plague his administration. High as the existing Presidt. stands, I question whether it would be very safe for him even not to reinstate J——y—or K——x &c. On the contrary construction, the Senate must sit constantly—officers would make parties there to support them vs the Presdt. and by degrees the Ex. power would slide into one branch of the Legislature. On the most favorable supposition it would be a two headed Monster.
Excuse the scrawl which a moment only has permitted, the hour of the mail being come. Yr[s.] most aff[ectly.]
Js. M. Jr


Title: To James Madison from William Bingham, 17 June 1789
From: Bingham, William
To: Madison, James

Dear sir,Philada June 17th 1789
I observe by the public Prints, that the Bill for the Establishment of the Impost has returned from the Senate, with considerable Reduction of the Duties on Several Specified Articles.
I will not undertake to Scrutinize the Reasons that have urged the Amendments.
But, as the Bill is now before the House of Representatives, I will take the Liberty of commenting on that part of it, which limits its Operation to Seven Years.
My principal Objection arises from the injurious Tendency it will have on public Credit, whose support Should claim So devotid an Attachment, on the part of the United States.
For, whilst other Nations are in the practice of mortgaging their Revenues to the public Creditors, by Specific Appropriations, to pay the Interest, we must follow their footsteps, or by offering a less Substantial Security, Submit to the Consequences of having our public funds depreciated. This will tend in a great measure to raise the market Rate of Interest, of which the public funds are generally the Index—whereas it appears to me very expedient to endeavor, from the Operations of Government, to lower the Interest, which would furnish Opportunities of borrowing Money on Such Terms, as would enable the Public to extinguish Part of the Capital of the Debt, if the Creditors would not agree to a Reduction of their Interest. This financial Manœuvre has been practiced in England various Times, with success, & Interest brought down from 6 to 3 ⅌ %.
If this Reasoning is just, it becomes an Object of the most important Consequence, for every Government to engage the Confidence of the public Creditors by pledging every security that it has the power of offering. G Britain, in the famous Act of 1787 which consolidated the Duties of Customs & Excise, Set apart a Sufficient Portion of their Produce to pay the Interest of the public Debt, before any Money could be issued for any other Purposes whatsoever.
The Difference betwixt the value of the unfunded Debt of G Britain, which is floating in the Market, & has no Specific Appropriations for its Support, & that which is funded on productive Revenues, is always very considerable.
It appears therefore to me, that the Funds should be at least coextensive with the Engagements they are meant to relieve.
The Jealousy of the House of Representatives on the subject of a perpetual Revenue Law is very natural, from the Character of that Body as constituting the democratic Branch, & possessing exclusively the Power of originating Money Bills. But, it is not found that in England, Laws for the Creation of Revenue, commensurate in their Duration with the Necessity that gave Birth to them, have ever been attended with injurious Consequences.
On the Contrary, they have had a Tendency to establish public Credit on a permanent Footing, which, in its Consequences has So increased the Capital Stock of the Country, as to furnish Sufficient funds for the most extensive Operations of Industry, & Views of national Aggrandizement.
You will pardon the Trouble I occasion by the Perusal of these few Reflections;


Title: Removal Power of the President, [17 June] 1789
From: Madison, James
To:

[17 June 1789]

   Debate continued on the clause in the bill establishing a foreign affairs department that declared the secretary could be removed from office by the president.

Mr. Madison. However various the opinions which exist upon the point now before us, it seems agreed on all sides, that it demands a careful investigation and full discussion. I feel the importance of the question, and know that our decision will involve the decision of all similar cases. The decision that is at this time made will become the permanent exposition of the constitution; and on a permanent exposition of the constitution will depend the genius and character of the whole government. It will depend, perhaps, on this decision, whether the government shall retain that equilibrium which the constitution intended, or take a direction toward aristocracy, or anarchy among the members of the government. Hence how careful ought we to be to give a true direction to a power so critically circumstanced. It is incumbent on us to weigh with particular attention the arguments which have been advanced in support of the various opinions with cautious deliberation. I own to you, Mr. Chairman, that I feel great anxiety upon this question; I feel an anxiety, because I am called upon to give a decision in a case that may affect the fundamental principles of the government under which we act, and liberty itself. But all that I can do on such an occasion is to weigh well every thing advanced on both sides, with the purest desire to find out the true meaning of the constitution, and to be guided by that, and an attachment to the true spirit of liberty, whose influence I believe strongly predominates here.
Several constructions have been put upon the constitution relative to the point in question. The gentleman from Connecticut (Mr. Sherman) has advanced a doctrine which was not touched upon before. He seems to think (if I understood him right), that the power of displacing from office is subject to legislative discretion; because it having a right to create, it may limit or modify as is thought proper. I shall not say but at first view this doctrine may seem to have some plausibility: But when I consider, that the constitution clearly intended to maintain a marked distinction between the legislative, executive, and judicial powers of government; and when I consider, that if the legislature has a power, such as contended for, they may subject, and transfer at discretion, powers from one department of government to another; they may, on that principle, exclude the president altogether from exercising any authority in the removal of officers; they may give it to the senate alone, or the president and senate combined; they may vest it in the whole congress, or they may reserve it to be exercised by this house. When I consider the consequences of this doctrine, and compare them with the true principles of the constitution, I own that I cannot subscribe to it.
Another doctrine which has found very respectable friends, has been particularly advocated by the gentleman from South-Carolina (Mr. Smith). It is this; when an officer is appointed by the president and senate, he can only be displaced from malfeasance in his office by impeachment: I think this would give a stability to the executive department so far as it may be described by the heads of departments, which is more incompatible with the genius of republican government in general, and this constitution in particular, than any doctrine which has yet been proposed. The danger to liberty, the danger of mal-administration has not yet been found to lay so much in the facility of introducing improper persons into office, as in the difficulty of displacing those who are unworthy of the public trust. If it is said that an officer once appointed shall not be displaced without the formality required by impeachment, I shall be glad to know what security we have for the faithful administration of the government. Every individual in the long chain which extends from the highest to the lowest link of the executive magistracy, would find a security in his situation which would relax his fidelity and promptitude in the discharge of his duty.
The doctrine, however, which seems to stand most in opposition to the principles I contend for, is that the power to annul an appointment is in the nature of things incidental to the power which makes the appointment. I agree that if nothing more was said in the constitution than that the president, by and with the advice and consent of the senate, should appoint to office, there would be great force in saying that the power of removal resulted by a natural implication from the power of appointing. But there is another part of the constitution no less explicit than the one on which the gentleman’s doctrine is founded, it is that part which declares, that the executive power shall be vested in a president of the United States. The association of the senate with the president in exercising that particular function, is an exception to this general rule; and exceptions to general rules, I conceive, are ever to be taken strictly. But there is another part of the constitution which inclines in my judgment, to favor the construction I put upon it; the president is required to take care that the laws be faithfully executed. If the duty to see the laws faithfully executed be required at the hands of the executive magistrate, it would seem that it was generally intended he should have that species of power which is necessary to accomplish that end. Now if the officer when once appointed, is not to depend upon the president for his official existence, but upon a distinct body (for where there are two negatives required either can prevent the removal), I confess I do not see how the president can take care that the laws be faithfully executed. It is true by a circuitous operation, he may obtain an impeachment, and even without this it is possible he may obtain the concurrence of the senate for the purpose of displacing an officer; but would this give that species of control to the executive magistrate which seems to be required by the constitution? I own if my opinion was not contrary to that entertained by what I suppose to be the minority on this question, I should be doubtful of being mistaken, when I discovered how inconsistent that construction would make the constitution with itself. I can hardly bring myself to imagine the wisdom of the convention who framed the constitution, contemplated such incongruity.
There is another maxim which ought to direct us in expounding the constitution, and is of great importance. It is laid down in most of the constitutions or bills of rights in the republics of America, it is to be found in the political writings of the most celebrated civilians, and is every where held as essential to the preservation of liberty, That the three great departments of government be kept separate and distinct; and if in any case they are blended, it is in order to admit a partial qualification in order more effectually to guard against an entire consolidation. I think, therefore, when we review the several parts of this constitution, when it says that the legislative powers shall be vested in a Congress of the United States under certain exceptions, and the executive power vested in the president with certain exceptions, we must suppose they were intended to be kept separate in all cases in which they are not blended, and ought consequently to expound the constitution so as to blend them as little as possible.
Every thing relative to the merits of the question as distinguished from a constitutional question, seems to turn on the danger of such a power vested in the president alone. But when I consider the checks under which he lies in the exercise of this power, I own to you I feel no apprehensions but what arise from the dangers incidental to the power itself; for dangers will be incidental to it, vest it where you please. I will not reiterate what was said before with respect to the mode of election, and the extreme improbability that any citizen will be selected from the mass of citizens who is not highly distinguished by his abilities and worth; in this alone we have no small security for the faithful exercise of this power. But, throwing that out of the question, let us consider the restraints he will feel after he is placed in that elevated station. It is to be remarked that the power in this case will not consist so much in continuing a bad man in office, as in the danger of displacing a good one. Perhaps the great danger, as has been observed, of abuse in the executive power, lies in the improper continuance of bad men in office. But the power we contend for will not enable him to do this; for if an unworthy man be continued in office by an unworthy president, the house of representatives can at any time impeach him, and the senate can remove him, whether the president chuses or not. The danger then consists merely in this: the president can displace from office a man whose merits require that he should be continued in it. What will be the motives which the president can feel for such abuse of his power, and the restraints that operate to prevent it? In the first place, he will be impeachable by this house, before the senate, for such an act of maladministration; for I contend that the wanton removal of meritorious officers would subject him to impeachment and removal from his own high trust. But what can be his motives for displacing a worthy man? It must be that he may fill the place with an unworthy creature of his own. Can he accomplish this end? No; he can place no man in the vacancy whom the senate shall not approve; and if he could fill the vacancy with the man he might chuse, I am sure he would have little inducement to make an improper removal. Let us consider the consequences. The injured man will be supported by the popular opinion; the community will take side with him against the president; it will facilitate those combinations, and give success to those exertions which will be pursued to prevent his re-election. To displace a man of high merit, and who from his station may be supposed a man of extensive influence, are considerations which will excite serious reflections beforehand in the mind of any man who may fill the presidential chair; the friends of those individuals, and the public sympathy will be against him. If this should not produce his impeachment before the senate, it will amount to an impeachment before the community, who will have the power of punishment by refusing to re-elect him. But suppose this persecuted individual, cannot obtain revenge in this mode; there are other modes in which he could make the situation of the president very inconvenient, if you suppose him resolutely bent on executing the dictates of resentment. If he had not influence enough to direct the vengeance of the whole community, he may probably be able to obtain an appointment in one or other branch of the legislature; and being a man of weight, talents and influence in either case, he may prove to the president troublesome indeed. We have seen examples in the history of other nations, which justifies the remark I now have made. Though the prerogatives of the British king are great as his rank, and it is unquestionably known that he has a positive influence over both branches of the legislative body, yet there have been examples in which the appointment and removal of ministers has been found to be dictated by one or other of those branches. Now if this is the case with an hereditary monarch, possessed of those high prerogatives and furnished with so many means of influence; can we suppose a president elected for four years only dependent upon the popular voice impeachable by the legislature? Little if at all distinguished for wealth, personal talents, or influence from the head of the department himself; I say, will he bid defiance to all these considerations, and wantonly dismiss a meritorious and virtuous officer? Such abuse of power exceeds my conception: If any thing takes place in the ordinary course of business of this kind, my imagination cannot extend to it on any rational principle. But let us not consider the question on one side only; there are dangers to be contemplated on the other. Vest this power in the senate jointly with the president, and you abolish at once that great principle of unity and responsibility in the executive department, which was intended for the security of liberty and the public good. If the president should possess alone the power of removal from office, those who are employed in the execution of the law will be in their proper situation, and the chain of dependence be preserved; the lowest officers, the middle grade, and the highest, will depend, as they ought, on the president, and the president on the community. The chain of dependence therefore terminates in the supreme body, namely, in the people; who will possess besides, in aid of their original power, the decisive engine of impeachment. Take the other supposition, that the power should be vested in the senate, on the principle that the power to displace is necessarily connected with the power to appoint. It is declared by the constitution, that we may by law vest the appointment of inferior officers, in the heads of departments, the power of removal being incidental, as stated by some gentlemen. Where does this terminate? If you begin with the subordinate officers, they are dependent on their superior, he on the next superior, and he on whom?—on the senate, a permanent body; a body, by its particular mode of election, in reality existing for ever; a body possessing that proportion of aristocratic power which the constitution no doubt thought wise to be established in the system, but which some have strongly excepted against: And let me ask gentlemen, is there equal security in this case as in the other? Shall we trust the senate, responsible to individual legislatures, rather than the person who is responsible to the whole community? It is true the senate do not hold their offices for life, like aristocracies recorded in the historic page; yet the fact is they will not possess that responsibility for the exercise of executive powers which would render it safe for us to vest such powers in them. But what an aspect will this give to the executive? Instead of keeping the departments of government distinct, you make an executive out of one branch of the legislature; you make the executive a two-headed monster, to use the expression of the gentleman from New-Hampshire (Mr. Livermore); you destroy the great principle of responsibility, and perhaps have the creature divided in its will, defeating the very purposes for which an unity in the executive was instituted. These objections do not lie against such an arrangement as the bill establishes. I conceive that the president is sufficiently accountable to the community; and if this power is vested in him, it will be vested where its nature requires it should be vested; if any thing in its nature is executive it must be that power which is employed in superintending and seeing that the laws are faithfully executed; the laws cannot be executed but by officers appointed for that purpose; therefore those who are over such officers naturally possess the executive power. If any other doctrine be admitted, what is the consequence? You may set the senate at the head of the executive department, or you may require that the officers hold their places during the pleasure of this branch of the legislature, if you cannot go so far as to say we shall appoint them; and by this means you link together two branches of the government which the preservation of liberty requires to be constantly separated.
Another species of argument has been urged against this clause. It is said, that it is improper, or at least unnecessary to come to any decision on this subject. It has been said by one gentleman, that it would be officious in this branch of the legislature to expound the constitution, so far as it relates to the division of power between the president and senate; it is incontrovertably of as much importance to this branch of the government as to any other, that the constitution should be preserved entire. It is our duty, so far as it depends upon us, to take care that the powers of the constitution be preserved entire to every department of government; the breach of the constitution in one point, will facilitate the breach in another; a breach in this point may destroy that equilibrium by which the house retains its consequence and share of power; therefore we are not chargeable with an officious interference; besides, the bill, before it can have effect, must be submitted to both those branches who are particularly interested in it; the senate may negative, or the president may object if he thinks it unconstitutional.
But the great objection drawn from the source to which the last arguments would lead us is, that the legislature itself has no right to expound the constitution; that wherever its meaning is doubtful, you must leave it to take its course, until the judiciary is called upon to declare its meaning. I acknowledge, in the ordinary course of government, that the exposition of the laws and constitution devolves upon the judicial. But, I beg to know, upon what principle it can be contended, that any one department draws from the constitution greater powers than another, in marking out the limits of the powers of the several departments. The constitution is the charter of the people to the government; it specifies certain great powers as absolutely granted, and marks out the departments to exercise them. If the constitutional boundary of either be brought into question, I do not see that any one of these independent departments has more right than another to declare their sentiments on that point.
Perhaps this is an omitted case. There is not one government on the face of the earth, so far as I recollect, there is not one in the United States, in which provision is made for a particular authority to determine the limits of the constitutional division of power between the branches of the government. In all systems there are points which must be adjusted by the departments themselves, to which no one of them is competent. If it cannot be determined in this way, there is no resource left but the will of the community, to be collected in some mode to be provided by the constitution, or one dictated by the necessity of the case. It is therefore a fair question, whether this great point may not as well be decided, at least by the whole legislature, as by a part, by us as well as by the executive or judicial? As I think it will be equally constitutional, I cannot imagine it will be less safe, that the exposition should issue from the legislative authority than any other; and the more so, because it involves in the decision the opinions of both those departments whose powers are supposed to be affected by it. Beside, I do not see in what way this question could come before the judges, to obtain a fair and solemn decision; but even if it were the case that it could, I should suppose, at least while the government is not led by passion, disturbed by faction, or deceived by any discoloured medium of light; but while there is a desire in all to see, and be guided by the benignant ray of truth, that the decision may be made with the most advantage by the legislature itself.
My conclusion from these reflections is, that it will be constitutional to retain the clause; that it expresses the meaning of the constitution as must be established by fair construction, and a construction which, upon the whole, not only consists with liberty, but is more favorable to it than any one of the interpretations that have been proposed.


Title: To James Madison from Tench Coxe, 18 June 1789
From: Coxe, Tench
To: Madison, James

Dear SirPhilada. June 18th. 1789
I observe you have brought forward the amendments you proposed to the federal Constitution. I have given them a very careful perusal, and have attended particularly to their reception by the public. The most decided friends of the constitution admit (generally) that they will meliorate the government by removing some points of litigation and jealousy, and by heightening and strengthening the barriers between necessary power and indispensible liberty. In short the most ardent & irritable among our friends are well pleased with them. On the part of the opposition I do not observe any unfavorable animadversion. Those who are honest are well pleased at the footing on which the press, liberty of conscience, original right & power, trial by jury &ca. are rested. Those who are not honest have hitherto been silent, for in truth they are stript of every rational, and most of the popular arguments they have heretofore used. I will not detain you with further remarks, but feel very great satisfaction in being able to assure you generally, that the proposed amendments will greatly tend to promote harmony among the late contending parties and a general confidence in the patriotism of Congress. It has appeared to me that a few well tempered observations on these propositions might have a good effect. I have therefore taken an hour from my present Engagements, which on account of my absence are greater than usual, and have thrown together a few remarks upon the first part of the Resolutions. I shall endeavour to pursue them in one or two more short papers. It may perhaps be of use in the present turn of the public opinions in New York state that they should be republished there. It is in fed. Gazette of 18th. instant.
At some future day I should wish the powers of the general government extended to the declaring in what places canals may be cut, without giving them the power of providing for the expence, but at present this would be a dangerous Idea. I much doubt whether the federalists of N. Cara. would consent to adopt the constitution, if it contained such a power. You will see however infinite advantages, both pecuniary & political in a canal at the dismal Swamp in Virginia, and another at the head of the Delaware peninsula.
The article in our late papers relating to the trade of aux Cayes & two other ports in Hispaniola is very important. I understand from the french Consul that his brother & the Govr. general having on late visit to the South part of the island, found that it was of great natural value, and but indifferently improved by reason of the inattention of the french Merchants to a poor new settlement, they determined on this Measure for the advancement of it. Tis a politic Measure & as they will take our flour, pork &c and give us sugars & coffee it must prove very beneficial to Us.
I cannot comprehend the late alteration in regard to cotton. The papers say it is to be introduced among the free Articles with a duty of 3 Cents ⅌ lb. This is a contradiction. I have urged strongly to several Members of the two houses who have written you on the impost the necessity of making it free. Tis the only article to which labor saving Machines can be applied—and it may be encreased by the planters & importers to any quantity, while wool is limited and flax is unfit for winter uses.
Gold & silver leaf are dutied ⅌ Cent, I suppose upon sumptuary principles, but the makers of frames, girandoles &ca. in Europe will send us their wares free of that duty, while our workmen in that line will be injured by paying it. The duty on plate, plated ware and lace appears to be very proper, but I confess I do not approve the addition of Leaf. It appears more important as operating against the proper principles of the law than in Value.
I observe in the debates it has been urged that the rates of impost have been complained of as too high—and this by the Merchants. You may be assured, Sir, that is not the case here. My attention has been particularly called to this point from my profession, & from the letters I have recd. from our Members, and I do assure you that little either of clamor or argument has appeared against the duties proposed in your house. I am with very great Esteem dr. Sir yr. aff. & ob. Servant
Tench Coxe


Title: To James Madison from Thomas Jefferson, 18 June 1789
From: Jefferson, Thomas
To: Madison, James

Dear Sir
Paris June 18. 1789.
My last to you was of May 11. Yours of Mar. 29. came to hand ten days ago: and about two days ago I received a cover of your hand writing, under which was a N. York paper of May 4. & a letter from mr. Page to Mazzei. There being no letter from you makes me hope there is one on the way which will inform me of my Congé. I have never received mr. Jay’s answer to my public letter of Nov. 19. which you mention him to have written, and which I fear has been intercepted. I know only from you that my letter got safe to hand. My baggage has been made up more than a month, so that I shall leave Paris almost in the instant of receiving the permission.
The campaign begins under unfavorable auspices for Russia. The death of the grand Seignior, who was personally disposed for peace, has brought a young & ardent successor to the throne, determined to push the war to extremity. Her only ally, the emperor, is in articulo mortis, and the grand Duke of Tuscany, should he succeed, loves peace & money. Denmark is forbidden by England & Prussia to furnish even it’s stipulated maritime aid. There is no appearance of any other power’s engaging in the war. As far as I can discover, the king of England is somewhat better in his head, but under such a complete depression of spirits, that he does not care how the world goes, and leaves his ministers to do as they please. It is impossible for you to conceive how difficult it is to know the truth relative to him, he is environed in such an atmosphere of lies. Men who would not speak a falsehood on any other subject, lie on this from a principle of duty: so that even eye witnesses cannot be believed without scanning their principles & connections; & few will stand this of the very few permitted to see him.
Committees of conciliation having failed in their endeavors to bring together the three chambers of the States general, the king proposed a specific mode of verifying their powers; for that having been the first question which presented itself to them, was the one on which the question of voting by persons or orders was first brought on. The Clergy accepted unconditionally. The Noblesse accepted on conditions which reduced the acceptance to nothing at all. The Commons considered this as a refusal on the part of the nobles, & thereupon took their definitive resolution, to invite the other two orders to come & verify their powers in common, & to notify them they should proceed with or without them to verify, and to do the business of the nation. This was on the 10th. On the 15th. they moved to declare themselves the national assembly. The debates on this were finished yesterday when the proposition was agreed to by 400 and odd against 80 odd. The minority agreed in substance but wished some particular amendment. They then immediately made the proposition relative to taxes which I inclose you, as this moment stated to me by memory by a member who left the assembly a little before the question, because there was no opposition to the matter but only to the form. He assures me, on the information of another member who was present, that Target’s motion passed. We shall know I think within a day or two whether the government will risk a bankruptcy & civil war rather than see all distinction of orders done away, which is what the commons will push for. If the fear of the former alternative prevails, they will spin the matter into negociation. The Commons have in their chamber almost all the talents of the nation, they are firm & bold, yet moderate. There is indeed among them a number of very hot headed members; but those of most influence are cool, temperate, & sagacious. Every step of this house has been marked with caution & wisdom. The Noblesse on the contrary are absolutely out of their senses. They are so furious they can seldom debate at all. They have few men of moderate talents, & not one of great in the majority. Their proceedings have been very injudicious. The clergy are waiting to profit of every incident to secure themselves & have no other object in view. Among the commons there is an entire unanimity on the great question of voting by persons. Among the noblesse there are about 60. for the commons and about three times that number against them. Among the clergy about 20 have already come over & joined the commons, and in the course of a few days they will be joined by many more, not indeed making the majority of that house, but very near it. The bishops & archbishops have been very succesful by bribes & intrigues in detaching the Curés from the Commons to whom they were at first attached to a man. The Commons are about 554. in number, of whom 344 are of the law. These do not possess an influence founded in property: but in their habits of business & acquaintance with the people, and in their means of exciting them as they please. The Curés thro’ the kingdom form the mass of the clergy, they are the only part favorably known to the people, because solely charged with the duties of baptism, burial confession visitation of the sick, instruction of the children & aiding the poor. They are themselves of the people & united with them. The carriages & equipage only of the higher clergy, not their persons, are known to the people & are in detestation with them. The souldiers will follow their officers, that is to say their captains, lieutenants & ensigns. These are of the lower nobility, & therefore much divided. The Colonels & higher officers are of the higher nobility are seldom with the souldiers, little known to them, not possessing their attachment. These circumstances give them little weight in the partition of the army. I give you these miscellaneous observations that knowing somewhat the dispositions of the parties you may be able to judge of the future for yourself, as I shall not be here to continue it’s communication to you. In hopes to see you soon I conclude with assurances of the perfect esteem & respect with which I am Dear Sir your friend & servant
Th: Jefferson


Title: Removal Power of the President, [18 June] 1789
From: Madison, James
To:

[18 June 1789]

   The removal clause in the bill establishing a foreign affairs department was still under consideration.

Mr. Madison. The question now seems to be brought to this, whether it is proper or improper to retain these words in the clause, provided they are explanatory of the constitution. I think this branch of the legislature is as much interested in the establishment of the true meaning of the constitution, as either the president or senate; and when the constitution submits it to us to establish offices by law, we ought to know by what tenure the office should be held; and whether it should depend upon the concurrence of the senate with the president, or upon the will of the president alone; because gentlemen may hesitate in either case, whether they will make it for an indefinite or precise time; if the officer can be removed at discretion by the president, there may be safety in letting it be for an indefinite period. If he cannot exert his prerogative, there is no security even by the mode of impeachment; because the officer may intrench himself behind the authority of the senate, and bid defiance to every other department of government. In this case the question of duration would take a different turn. Hence it is highly proper that we and our constituents should know the tenure of the office. And have we not as good a right as any branch of the government to declare our sense of the meaning of the constitution?
Nothing has yet been offered to invalidate the doctrine, that the meaning of the constitution may as well be ascertained by the legislative as by the judicial authority. When a question emerges as it does in this bill, and much seems to depend upon it, I should conceive it highly proper to make a legislative construction. In another point of view it is proper that this interpretation should now take place, rather than at a time when the exigency of the case may require the exercise of the power of removal. At present the disposition of every gentleman is to seek the truth, and abide by its guidance when it is discovered. I have reason to believe the same disposition prevails in the senate. But will this be the case when some individual officer of high rank draws into question the capacity of the president, with the senate, to effect his removal? If we leave the constitution to take this course, it can never be expounded until the president shall think it expedient to exercise the right of removal, if he supposes he has it; then the senate may be induced to set up their pretensions: And will they decide so calmly as at this time, when no important officer in any of the great departments is appointed to influence their judgments? The imagination of no member here, or of the senate, or of the president himself, is heated or disturbed by faction: If ever a proper moment for decision should offer, it must be one like the present.
I do not conceive that this question has been truly stated by some gentlemen. In my opinion it is not, whether we shall take the power from one branch of the government and give it to another—but the question is, to which branch has the constitution given it. Some gentlemen have said that it resides in the people at large; and that if it is necessary to the government, we must apply to the people for it, and obtain it by way of amendment to the constitution. Some gentlemen contend, that although it is given in the constitution as a necessary power to carry into execution the other powers vested by the constitution, yet it is vested in the legislature. I cannot admit this doctrine either; because it is setting the legislature at the head of the executive branch of the government. If we take the other construction, of the gentleman from South-Carolina, that all officers hold their places by the firm tenure of good behavior, we shall find it still more improper. I think gentlemen will see, upon reflection, that this doctrine is incompatible with the principles of free government. If there is no removability but by way of impeachment, then all the executive officers of government hold their offices by the firm tenure of good behavior, from the chief justice down to the tide-waiter.


Title: To James Madison from John Walker, 18 June 1789
From: Walker, John
To: Madison, James

Letter not found. 18 June 1789. Calendared in the lists probably kept by Peter Force (DLC: Madison Miscellany). The two-page letter was offered for sale in the Stan. V. Henkels Catalogue No. 694 (1892), which listed items from the McGuire collection of JM’s papers.


Title: To James Madison from John Strode, 20 June 1789
From: Strode, John
To: Madison, James

Culpeper 20th. June 1789
Desperate must be His circumstances—and Credulous the Man, who forsakes His Country & friends, to follow an Adventurer So Wild as Morgan, who does not even pretend to originate His scheme in Any Manner of Security, or from power or Authority, whatever. His proposals can have no influence on me. Am Nevertheless most humbly thankfull my Good Sir for Your kind Condescention and trouble in the Matter—more, infinitely, than I could with Reason expect—to draw Your Attention from public Matters of highest importance—whose Magnitude in point of Comparison, wd. Reduce, not only me, but Colo. Morgan Himself, with all His Sufficiencey, to an Atom, too Small for Occular discovery. His scheme, or any thing He can do, will not in the least effect the Public. If those Lands are Rich healthy and well Scituated for Trade &c, They will be Peopled Cultivated and improved. To what State or Nation they are here after to belong, Local circumstances unavoidably decide. I believe that the boundary Line between Spain and the United States of America, cannot long Remain where it is, and that the first Settlers on those Lands, will be confirmd in their possessions, by the Governmt. that may next take place over them, which will Grant them also, all the priveledges and immunitys in Common with their other Citizens. But why they are to pay this projector ⅛ of a Dollar ⅌ Acre, or how He is to protect them or make good His Other engagements, does not Appear. I Shall not add to the Number of His Vassals. Yet Sir have some times Seriously Contemplated, an Advantage wh. I might in A New Country derive to my self & Children from the experience and Mechanical knowledge I possess—particularly in all the different branches of Manufa[c]toring Iron, from the taking it out of the earth, through each State and process untill Converted into every devise, in which Potmetal, Bar Iron & Steel can be made usefull; from the largest to the Minutest Article, and the Construction of every Water works and Machinery Necessary thereto. The uncultivated Country to the Westward, present a Large field (as Yet unexplored, or at least not properly Scrutinized) for the founding, in some part or other thereof, a General Iron Manufactory, to public utillity, but more especially to the private emollument of the Owner, or Owners. And altho’ I never intend to be concernd in the Conduction or prosecution of Such a works, but under the Auspices of Government, Yet have no Manner of pecuniary Assistance or exclusive priveledge to Ask, for indeed I think all Such Grants are founded in unequallity and Injustice, and tend to destroy or Subvert the Very purposes they were Designd to Aid and promote. Some Cases might be instanced, of the forward & presuming, who have but very Superficial and confused Ideas of Mechanism, pushing importunately on Legislative Bodys, who in Order to encourage usefull Arts & Sciences, in the plenitude of their Zeal for public good, Grant them exclusive Rights & priviledges to some particular Branch’s of business, and that to the Determent of Others who are thereby prevented or deprived of the exercise of their Abilitys. That it is Right to Reward Genius (to Such as will Receive it) I will not dispute. He that invents any usefull Machinery, or improves on the invention of another, will Recieve the Gratuity of the Public, without envy from me; but it ought to be in Some gift, or Reward, which cannot press unequally on any other Individual, nor deprive Him of the effects of His Own ingenuity, nor tend to Cramp the Genl. enterprising Spirit of Contrivance, where ease and Advantage may be Derived. As to my Self Such an extensive Manufactory as I have in View, it would be absolutely Necessary that those therein Concernd, possess the power of Regulating Subsidiary or bye Laws, within the pale of their Own Comunity, So far as Respe[c]t One Another for the peace, good order and benefit of the whole, with Out internal police they never could be kept together, to the prosecution of the Work, to public Utillity, or to advantage or benefit of themselves &c. With this Small priviledge (which could effect no man but those which Voluntarily and Spontaneously of themselves made and enterd into the Compact) I will Venture to Say, That All Manner of Hardwares can be furnishd, any Quantity, to as high Perfection, and full as Cheap as they can be imported, for Ready Cash, from any part of Europe. However absolutly Necessary Such a priviledge may be for Carrying on Such works, I know not where to apply for it, untill Some of the New States be more Regularly form’d & Organized.
Such a tedious incoherent Scrawll, I am well aware Ought to have been introduced by a formal apologie, with the Art of which, I am unacquainted, and therefore Chuse my Worthy Sir to Relye on Your goodness, only, for pardon.
I am glad that Such harmony and Liberallity prevails in Congress, all Ranks and Orders of people in these parts are pleasd with the New governmt., even those that were Once opposed to it Seem Now to presage Very happy consequences therefrom.
May God of His infinite merceys inspire Your Councils to the Completion of the best & most Salutary System of Politicks of Laws & Government, is the fervent prayer of Sir Your most Obedient and most Obliged Hble Sert.
John Strode
If indeed my Good Sir You are pleased to honor me with any further Correspondance, or Commands whatever, please do not order the Letter to Care of any one—by that means I was deprived of the felicity of Receiving Your last till A few days past. Whereas my Clerks, or the Clerks or Assistants, of My frd Vernon call weekly at the post office in Fredericksbg for my Letters &c.


Title: To James Madison from Thomas Underwood, 20 June 1789
From: Underwood, Thomas
To: Madison, James

Dear Sir
Goochland 20th. June 1789
Yours I recd. for which I thank you and am happy to hear that the Members of your honorable body agree so well in Political matters. I wish very much to know your oppinion of the public debt, that bears so hard on us whether it can be discharged in any short time without having recourse to direct taxes—and how the general oppinion runs respecting the Certificates due to the officers and Soldiers of the Contenental Army a few of which I have got and keep them with a view of paying a British Debt I owe which was due pryor to the War, as it now is and always has been my oppinion that all Just debts should be paid and fair Contracts comply’d with so I expect Congress will take great care to support Public credit & keep up our National honor.
The Spring has been exceeding Cool, the Crop is very backward, the wheat indifferent, the grass hopper has injured the Tobo. very much so that I fear we shall have a very short Crop this Season which is greatly to be lamented seeing that most of our people have of late become both frugal and industrious and appear very anxious to get clear of Debt and in order the more certainly to effect this many of my acquaintances are begining to manefacture most of the cloathing necessary for there Slaves. I am able to inform you with great truth that the people of your district who live near me are abundantly pleased with your conduct in Congress and many of those who voted against you say they are now sorry for it, I hope to hear from you every oppertunity and believe me to be with the utmost regard Dear sir Your mo. obt. Servt.
Thos. Underwood


Title: From James Madison to Samuel Johnston, 21 June 1789
From: Madison, James
To: Johnston, Samuel

Dear Sir
New York June 21 1789
I lost no time in handing to the President the address inclosed in your favor of the 22 of May, and have postponed an acknowledgment of the latter in expectation of being able at the same time to cover the President’s answer. This has been and continues to be delayed by a very serious indisposition. We hope that he is not in much danger, but are by no means without our fears also. His disorder commenced in a fever which has greatly reduced him, and is terminating in a very large tumor which, unless it degenerate itself into a dangerous malady, will probably be remedial.

In the inclosed paper is a copy of a late proposition in Congress on the subject of amending the Constitution. It aims at the twofold object of removing the fears of the discontented and of avoiding all such alterations as would either displease the adverse side, or endanger the success of the measure. I need not remark to you the hazard of attempting any thing of a controvertible nature which is to depend on the concurrence of ⅔ of both Houses here, and the ratification of ¾ of the State Legislatures. It will be some time before the proposed amendments will become a subject of discussion in Congress; The bills relating to revenue, and the organization of the Judiciary and Executive Departments, being likely to remain for some time on hand. This delay proceeds partly from the intricacy and partly from the novelty of the business. At every step difficulties from one or other of these sources arrest our progress. After the first essays the work will become every day more easy.
Among other difficulties, the exposition of the Constitution is frequently a copious source, and must continue so until its meaning on all great points shall have been settled by precedents. The greatest part of the week past has been consumed in deciding a question as to the power of removal from offices held during pleasure. Four constructive doctrines have been maintained. 1. that the power is subject to the disposal of the Legislature—2. that no removal can take place otherwise than by impeachment—3 that the power is incident to that of appointment, and therefore belongs to the President & Senate—4. that the Executive power being generally vested in the President every power of an Executive nature, not expressly excepted is to be referred thither, and consequently the power of removal, the power of appointment only being taken away.
In support of each of these constructions the argumenta ab inconvenientibus have been elaborately dealt out against the others. The decision in a Committee of the whole on the office of Foreign affairs has adopted the 4th. opinion, as most consonant to the frame of the Constitution, to the policy of mixing the Legislative & Executive powers as little as possible, and to the responsibility necessary in the head of the Executive Department. With very great esteem and Affection I am Dear Sir Your Obedt. & mo. hble sert.
Js. Madison Jr


Title: From James Madison to Edmund Pendleton, 21 June 1789
From: Madison, James
To: Pendleton, Edmund

Dear Sir
N. York June 21. 1789.
The last favor for which I am to thank you is of June 9th. For some time past I have been obliged to content myself with inclosing you the Newspapers. In general they give, tho’ frequently erroneous and sometimes perverted, yet on the whole, fuller accounts of what is going forward than could be put into a letter. The papers now covered contain a sketch of a very interesting discussion which consumed great part of the past week. The Constitution has omitted to declare expressly by what authority removals from office are to be made. Out of this silence four constructive doctrines have arisen 1. that the power of removal may be disposed of by the Legislative discretion. To this it is objected that the Legislature might then confer it on themselves, or even on the House of Reps. which could not possibly have been intended by the Constitution. 2. that the power of removal can only be exercised in the mode of impeachment. To this the objection is that it would make officers of every description hold their places during good behavior, which could have still less been intended. 3. that the power of removal is incident to the power of appointment. To this the objections are that it would require the constant Session of the Senate, that it extends the mixture of Legislative & Executive power, that it destroys the responsibility of the President, by enabling a subordinate Executive officer to intrench himself behind a party in the Senate, and destroys the utility of the Senate in their legislative and Judicial characters, by involving them too much in the heats and cabals inseparable from questions of a personal nature; in fine that it transfers the trust in fact from the President who being at all times impeachable as well as every 4th. year eligible by the people at large, may be deemed the most responsible member of the Goverment, to the Senate who from the nature of that institution, is and was meant after the Judiciary & in some respects witht. that exception to be the most unresponsible branch of the Government. 4 that the Executive power being in general terms vested in the President, all power of an Executive nature, not particularly taken away must belong to that department, that the power of appointment only being expressly taken away, the power of Removal, so far as it is of an Executive nature must be reserved. In support of this construction it is urged that exceptions to general positions are to be taken strictly, and that the axiom relating to the separation of the Legislative & Executive functions ought to be favored. To this are objected the principle on which the 3d. construction is founded, & the danger of creating too much influence in the Executive Magistrate.
The last opinion has prevailed, but is subject to various modifications, by the power of the Legislature to limit the duration of laws creating offices, or the duration of the appointments for filling them, and by the power over the salaries and appropriations. In truth the Legislative power is of such a nature that it scarcely can be restrained either by the Constitution or by itself. And if the federal Government should lose its proper equilibrium within itself, I am persuaded that the effect will proceed from the Encroachments of the Legislative department. If the possibility of encroachments on the part of the Ex. or the Senate were to be compared, I should pronounce the danger to lie rather in the latter than the former. The mixture of Legislative Executive & Judiciary authorities lodged in that body, justifies such an inference; At the same [time] I am fully in the opinion, that the numerous and immediate representatives of the people, composing the other House, will decidedly predominate in the Government.
Mr. Page tells me he has forwarded to you a copy of the amendments lately submitted to the H. of Reps. They are restrained to points on which least difficulty was apprehended. Nothing of a controvertible nature ought to be hazarded by those who are sincere in wishing for the approbation of ⅔ of each House, and ¾ of the State Legislatures. I am Dr. Sir mo: affetly Yrs.
Js. Madison Jr.
The President has been ill—but is now in a good way.


Title: From James Madison to William Short, 21 June 1789
From: Madison, James
To: Short, William

Sir
New York June 21. 1789.
Mr. George James of Virginia is recommended to me by a friend as of integrity and worth, and on that ground I take the liberty of introducing him to you. He is not sure that his objects in visiting Europe will carry him to Paris, but the possibility of such an event interests him in the means of becoming known to you, and I lend my aid for the purpose the more readily, as it affords an opportunity of assuring you of the great esteem & regard with which I am Dr. Sir Yr: mo:
Js. Madison Jr


Title: To James Madison from James McHenry, 21 June 1789
From: McHenry, James
To: Madison, James

Dear Sir.
Baltimore 21 June 1789
I was very happy to learn that you had dismissed the first reported bill for the collection of the revenue. In this State and perhaps in some of the others, the Laws were too much in favor of the officers at the expence of the revenue. Here, where the imports are so very considerable, instead of a naval officer and collector constituted to be checks upon each other, the whole power was lodged in a single person. I hope this evil will be avoided in your new bill. I am persuaded, generally speaking, and without intending any reflexion, that the public will save more by allowing eight hundred pounds to two men than five hundred to one.
I am much obliged to you for your letter of the 5. I cannot help, when I read the debates, wishing you better informed and abler associates. Your task is arduous, but I flatter myself you will get happily through it. Being about to set out for the Sweet Springs with my brother where he proposes remaining the season I shall hear little of your proceedings. I leave you however my best wishes and am Dr. Sir very sincerely your ob. st.
James McHenry


Title: Removal Power of the President, [22 June] 1789
From: Madison, James
To:

[22 June 1789]

   The bill establishing a department of foreign affairs was still being debated in the Committee of the Whole. On 19 June the motion to strike out the clause, “to be removable from office by the President,” was defeated. The objection arose, however, that this clause had the appearance of being a grant of power by the legislature. To avoid this difficulty, Benson moved that whenever the secretary “shall be removed by the President,” the chief clerk should have custody of the department records. After this motion (implying the president’s removal power) carried, the original clause became unnecessary. Benson then moved to strike this clause.

Mr. Madison. I am in favour of the motion for striking out; but not upon the principles of my worthy colleague. I will briefly state my reasons for voting in the manner I intend. First, altering the mode of expression tends to give satisfaction to those gentlemen who think it not an object of legislative discretion: and second, because the amendment already agreed to, fully contains the sense of this house upon the doctrine of the constitution—and therefore the words are unnecessary as they stand here. I will not trouble the house with repeating the reasons why the change of expression is best, as they are well understood. But gentlemen cannot fairly urge against us a change of ground, because the point we contended for is fully obtained by the amendment. It was said truly by the gentleman from New-York (Mr. Benson), that these words carry with them an implication that the legislature has the power of granting the power of removal.
It is needless to assign my reasons why I think the legislature not in possession of this power; they were fully explained before. I therefore shall only say, if there is a principle in our constitution, indeed in any free constitution, more sacred than another, it is that which separates the legislative, executive and judicial powers; if there is any point in which the separation of the legislative and executive powers ought to be maintained with greater caution, it is that which relates to officers and offices. The powers relative to offices, are partly legislative and partly executive. The legislature creates the office, defines the powers, limits its duration, and annexes a compensation. This done, the legislative power ceases. They ought to have nothing to do with designating the man to fill the office. That I conceive to be of an executive nature. Although it be qualified in the constitution, I would not extend or strain that qualification beyond the limits precisely fixed for it. We ought always to consider the constitution with an eye to the principles upon which it was founded. In this point of view, we shall readily conclude that if the legislature determines the powers, the honors and emoluments of an office, we should be insecure if they were to designate the officer also. The nature of things restrains and confines the legislative and executive authorities in this respect; and hence it is that the constitution stipulates for the independence of each branch of the government.
Let it be understood that the Legislature is to have some influence both in appointing and removing officers; and I venture to say the people of America will justly fear a system of sinecures. What security have they but offices will be created to accommodate favorites or pensioners subservient to their designs? I never did conceive that so far as the constitution gave one branch of the legislature an agency in this business, that by any means it was one of its most meritorious parts; but so far as it has gone, I confess I would be as unwilling to abridge the power of that body, as to enlarge it. But considering, as I do, that the constitution fairly vests the president with the power, and that the amendment declares this to be the sense of the house, I shall concur with the gentleman in opposition so far as to strike out these words, which I now look upon to be useless.
I have a great respect for the abilities and judgment of my worthy colleague, Mr. Page, and am convinced he is inspired by the purest motives in his opposition to what he conceives to be an improper measure; but I hope he will not think so strange of our difference, if he considers the small proportion of the house which concurs with him with respect to impeachment being the only way of removing officers. I believe the opinion is held but by one gentleman beside himself. If this sentiment was to obtain, it would give rise to more objections to the constitution than gentlemen are aware of; more than any other construction whatsoever: Yet while he professes to be greatly alarmed on one account, he possesses a stoic apathy with respect to the other.


Title: From James Madison to Samuel Johnston, 22 June 1789
From: Madison, James
To: Johnston, Samuel

Letter not found. 22 June 1789. Acknowledged in Johnston to JM, 8 July 1789. Encloses President Washington’s reply to the address from North Carolina. Recommends the publication of both the address and the reply.


Title: From James Madison to Edmund Randolph, 24 June 1789
From: Madison, James
To: Randolph, Edmund

My dear friend
N. York June 24. 89
My last stated a question relating to the power of removal from offices then on the anvil of the H. of Rs. I now inclose the discussions as conveyed to the public thro’ the Newspapers. It is not necessary to apprize you that the reasonings on both sides are mutilated, often misapprehended, and not unfrequently reversed. You will perceive yourself that much of the reasoning is also founded on a misconception of the ideas of the adverse side.
Mr. Jefferson has at length obtained formal leave to visit his own Country. Mr. Short is to be charged with the affairs of the U. S. in his absence.
The President has been ill, but is now in a safe way. His fever terminated in an abscess which was itself alarming, but has been opened with success, and the alarm is now over. His death at the present moment would have brought on another crisis in our affairs. Yrs. Most: truly
Js. Madison Jr


Title: To James Madison from Joseph Jones, 24 June 1789
From: Jones, Joseph
To: Madison, James

Dr Sr
Richmond 24th. June 1789.
I thank you for the copy of the amendments proposed to the constitution which you lately inclosed to me—they are calculated to secure the personal rights of the people so far as declarations on paper can effect the purpose, leaving unimpaired the great Powers of the government—they are of such a nature as to be generally acceptable and of course more likely to obtain the assent of Congress than wod. any proposition tending to separate the powers or lessen them in either branch. The Part that speaks of facts triable by Jury not otherwise reexaminable than may consist with the principles of the common law, means I suppose that the Court of appls. shall not re:examine the facts but by a Jury, or what is the true meaning?
I have occasionally mentioned to you the names of persons at their particular instance who are candidates for office—in doing this I had no wish to interest you in their behalf further than suited your convenience and particular views and on my part to comply with a promise made that I wod. mention their names to you. I took occasion also to throw out a hint pointing to a particular person which was rather unfavourable—the person alluded to was I believe qualified to execute the office he filled but so far as my observation went was disposed to make the most of the opportunities afforded him—this has been I think pretty generally the disposition of public officers and is therefore not more reprehensible in him than in others but is perhaps more improper in the man through whose hands much public money may pass. Alexandria and George Town are very inconvenient ports of Entry and if established as such will I fear open the door to great abuses. In what forwardness is the bill for the judiciary department. I have heard the Senate had undertaken the business and some sketches of the plan, but little has been said on the subject lately, at your leisure I shall thank you for the outline of the plan. Virga. ought to have one of her Citizens in the Superior Court but we have very few fit for it—of our Judges—Pendleton, Wythe, Blair, would either of them answer well—the first will I fear be unable to execute his present office long the others are qualified and able if they would act. Among the Lawyers I know of none but Randolph—it is of the first consequence to have your Supreme court of able Lawyers & respectable characters. We have another case before the general Court wherein the Judges are disposed to pronounce the law a nulity as unconstitutional. It has been brot. on in the case of the Clerks on the Soliciters motions agt. them for the ⅓d their fees demanded by the law of 86 imposing new Taxes—they made up a purse of 100 gs. for the Bar and were supported by the whole agt. Innes for the Commonwealth—last monday the decision was to have been pronounced but was then postponed for further argument the next term which happens during the sitting of the assembly. I see it is directed for the present that two copys of the acts as they pass Congress shall be sent by the president to the respective Executives, and one prescribing the oath has been received and no request or mode proposed to carry it into effect—we had some little difficulty how to conduct the business but ultimately directed it to be printed in the Gazette and to have a sufficient number of copies struck to furnish each of the Superior Courts and the Co: Courts with one or two that they may swear or not as they choose. Yr. friend & Servt
Jos: Jones


Title: From James Madison to [Nicholas Lewis?], 25 June 1789
From: Madison, James
To: Lewis, Nicholas

Sir
New York June 25. 1789.
In a letter of March 15. from Mr. Jefferson I am requested to communicate to you the result of his application for leave to make a visit to America. The application was made long ago, but never decided on under the old Congress, nor taken up under the present Government till a few days ago. His wish is now complied with and notice that he has leave of absence will be forwith transmitted through several channels in order to ensure and hasten his receipt of it. I am Sir with great respect & esteem Your mo: obedt. servt.
Js. Madison Jr


Title: To James Madison from Edward Stevens, 25 June 1789
From: Stevens, Edward
To: Madison, James

Dear Sir
Fredericksburg June 25th: 1789
Your very obliging Letter of the 11th May has been received some time past, and I thank you for the information it gave. We in this Quarter are anxciously looking forward for the events of the Deliberations of Congress. Numbers of us have been astonished at their leting slip through their hands all the Duties on the Spring importations and think it will be lamented, that your first plan on that business had not been acceeded to. It affords me no small pleasure to inform you, that your proposition of amendments to the Constitution, among all my acquaintance that I have had communication with, gives general Satisfaction, and I trust if adopted will shut the mouths of many. The Procedure of the Senate on the Subject of a new Title to the President, has alarmed their best friends. I confess my feelings were much wounded. It gave a great opening to the enemies of the Constitution to insult its friends. Pardon me Sir for intruding on so much of your time, and beleive me to be with sentiments of the highest respect and esteem Dear Sir Your very Obedt. hum. Servt
Edward Stevens


Title: Treasury Department, [25 June] 1789
From: Madison, James
To:

[25 June 1789]

   Objections arose against the clause in the treasury department bill enjoining the secretary “to digest and report plans for the improvement and management of the revenue, and the support of the public credit.”

Mr. Madison observed that by looking into the Journals of the late Congress, it would be found that, when the department of finance was established, the same words or very similar words were used to vest the same power in that officer. His duty was expressed to be, to digest and report plans for the improvement of the finances. In a subsequent ordinance to establish the board of treasury; the same powers were annexed to that board as belonging to the office of finance; so that this power existed at this moment, as far as the treasury board had an existence. Perhaps if the board had exercised this power, they might have been of service to the public. It was true, he said, that the Secretary might have some influence in the house; but a comparison should be made between the inconveniencies and dangers on one side and on the other. In his opinion there was more to be apprehended from the ill effects of impolitic and indigested systems, and from ignorance, and a fluctuation of measures, than from all the influence which the Secretary could create.
The gentleman (Mr. Gerry) had asked what was meant by responsibility; and what responsibility there could be for an error in judgment? There might be, at least, he answered, a responsibility in point of reputation, a responsibility to the public opinion. It was well known that men of talents and distinction had a great regard for public opinion, and that when they were to perform any duties for the discharge of which their reputation was pledged, they would take care to perform them well.
He said, if the person who should recommend measures and propose plans was considered as originating money bills, the President might be said to possess the power; for the constitution had made it one of his duties to recommend such measures to the legislature as he should judge expedient. If the principle of the gentleman were admitted, the house would be abridged of the right, and the President would have the power of originating revenue laws.


Title: To James Madison from John Dawson, 28 June 1789
From: Dawson, John
To: Madison, James

dear Sir.
Frdksburg June 28. 1789
You will be pleas’d to accept my thanks for the Journals receivd a few days since by mr. Hopkins, from whom I learnt the different subjects which engage the attention of Congress and the variety of opinions on some of them.
You have it in contemplation, I hear, to adjourn in August. Surely you will not do this without recommending those alterations which have been so ardently desird by many of the states, most of which will not materially effect the system, but will render it more secure, and more agreable in the eyes of those who were oppos’d to its establishment. I rejoice to find that you come forward at an early day with a proposition for amendments, altho I coud have wish’d they had been more extensive. Experience, as well as sound policy point out, in my humble opinion, the propriety of the amendment propos’d by this state for rendering more secure our Western territory, & for guarding against the danger of the surrender of the Mississippi—that in the commercial regulations there will be efforts in the one part of the Continent to throw the weight of the duties on the other, is apprehended by many and therefore the amendment propos’d to this part of the system is thought to be of importance.
Those who are unacquainted with the difficulties and delays which ever attend the transactions of Congress, begin to complain, that too much time is taken up with rum, sugar, Molasses &c.
The Court of Appeals, on the motion of the Solicitor, have determind that the law on Clks &c was contrary to the Constitution, and therefore they woud not grant Judgt. A doubt having arisen under the district Law, whether Attornies on qualifying in the circuit Courts shoud pay 20/. or £15—they have determind that they shoud pay nothing—these questions with some other motions of the Solicitor took up most of the time of the courts, wherefore very little was done with the docket.
I had it in view to have paid N. Y. a visit about this time but having enterd as an Attorney at the bar, have been obliged to pospone my plan, altho I have not altogether relinqui[s]hd it, but hope to execute it some time this summer.
Will you be pleasd to present my best wishes to Mrss. Elsworth & Harman. With much esteem & respect, I am Yr. Friend & hm Sert
J Dawson


Title: To James Madison from George Nicholas, 29 June 1789
From: Nicholas, George
To: Madison, James

Letter and enclosure not found. 29 June 1789. Calendared in the lists probably kept by Peter Force (DLC: Madison Miscellany). The two documents were offered for sale in the Stan. V. Henkels Catalogue No. 694 (1892), which listed items from the McGuire collection of JM’s papers.


Title: From James Madison to Thomas Jefferson, 30 June 1789
From: Madison, James
To: Jefferson, Thomas

Dear Sir
New York June 30. 1789.
By this conveyance you will receive permission through Mr. Jay to make your proposed visit to America. I fear it will not reach you in time for your arrival here before the commencement of the windy season; yet I hope the delay will not oblige you to postpone your voyage till the Spring.
The federal business has proceeded with a mortifying tardiness; chargeable in part on the incorrect draughts of Committees, and the prolixity of discussion incident to a public body, every member of which almost takes a positive agency, but principally resulting from the novelty and complexity of the subjects of Legislation. We are in a wilderness without a single footstep to guide us. Our successors will have an easier task. And by degrees the way will become smooth short and certain.
My last informed you of some of the difficulties attending a regulation of the duties. The bill on that subject has at length recd. the fiat of both Houses and will be forthwith made a law by the concurrence of the President. The rates are not precisely on the scale first settled by the House of Reps. The most material change is in the articles of rum and molasses. The necessity of preserving a certain ratio between them is obvious. The ratio sent to the Senate was that of 12 Cents on the former and 5 do. on the latter. The Senate returned them in the ratio of 8 and 2½. which has, after a conference, prevailed.
The Senate has prevailed on another point in the bill which had undergone more discussion and produced more difficulty. It had been proposed by the H. of Reps. that, besides a discrimination in the tonnage, a small reduction should be made in the duty on distilled spirits imported from Countries in treaty with the U. States. The Senate were opposed to any discrimination whatsoever, contending that even G. Britain shd. stand on the same footing with the most favored nations. The arguments on that side of the question were that the U. S. were not bound by treaty to give any commercial preferences to particular nations—that they were not bound by gratitude, since our allies had been actuated by their own interest and had obtained their compensation in the dismemberment of a rival empire—that in national & particularly in commercial measures, gratitude was moreover, no proper motive, interest alone being the Statesman’s guide—that G. B. made no discrimination agst. the U. S. compared with other nations; but on the contrary distinguished them by a number of advantages—that if G. B. possessed almost the whole of our trade, it proceeded from causes which proved that she could carry it on for us on better terms than the other Nations of Europe—that we were too dependent on her trade to risk her displeasure by irritating measures which might induce her to put us on a worse footing than at present— that a small discrimination could only irritate without operating on her interests or fears—that if any thing were done it would be best to make a bolder stroke at once, and that in fact the Senate had appointed a Come. to consider the subject in that point of view. On the other side it was contended that it would be absurd to give away every thing that could purchase, the stipulations wanted by us, that the motives in which the new Govt. originated, the known sentiments of the people at large, and the laws of most of the States subsequent to the peace shewed clearly that a distinction between Nations in Treaty and Nations not in Treaty would coincide with the public opinion, and that it would be offensive to a great number of Citizens to see G. B. in particular put on the footing of the most favd. nations, by the first act of a Govt. instituted for the purpose of uniting the States in the vindication of their commercial interests agst. her monopolizing regulations—that this respect to the sentiments of the people was the more necessary in the present critical state of the Government—that our trade at present entirely contradicted the advantages expected from the Revolution, no new channels being opened with other European nations, and the British channels being narrowed by a refusal of the most natural and valuable one to the U. S.—that this evil proceeded from the deep hold the British monopoly had taken of our Country, and the difficulty, experienced by France Holland &c in entering into competition with her—that in order to break this monopoly, those nations ought to be aided till they could contend on equal terms—that the market of France was particularly desireable to us—that her disposition to open it would depend on the disposition manifested on our part &c &c—that our trade would not be in its proper channels untill it should flow directly to the countries making the exchange, in which case too american Vessels would have a due share in the transportation, whereas at present the whole carriage of our bulky produce is confined to British Bottoms—that with respect to G. B. we had good reason to suppose that her conduct would be regulated by the apparent temper of the New Government—that a passiveness under her restrictions would confirm her in them, whilst an evidence of intention as well as ability to face them would ensure a reconsideration of her policy—that it would be sufficient to begin with a moderate discrimination, exhibiting a readiness to invigorate our measures as circumstances might require—that we had no reason to apprehend a disposition in G. B. to resort to a commercial contest, or the consequences of such an experiment, her dependence on us being greater than ours on her. The supplies of the United States are necessary to the existence, and their market to the value, of her islands. The returns are either superfluities or poisons. In time of famine, the cry of which is heard every three or four years, the bread of the United States is essential. In time of war, which is generally decided in the West Indies, friendly offices, not violating the duties of neutrality, might effectually turn the scale in favor of an adversary. In the direct trade with Great Britain, the consequences ought to be equally dreaded by her. The raw and bulky exports of the United States employ her shipping, contribute to her revenue, enter into her manufactures, and enrich her merchants, who stand between the United States and the consuming nations of Europe. A suspension of the intercourse would suspend all these advantages, force the trade into rival channels from which it might not return, and besides a temporary loss of a market for ¼ of her exports, hasten the establishment of manufactures here, which would so far cut off the market forever. On the other side, the United States would suffer but little. The manufactures of Great Britain, as far as desirable, would find their way through other channels, and if the price were a little augmented it would only diminish an excessive consumption. They could do almost wholly without such supplies, and better without than with many of them. In one important view the contest would be particularly in their favor. The articles of luxury, a privation of which would be salutary to them, being the work of the indigent, may be regarded as necessaries to the manufacturing party: that it was probable nothing would be done at this session, if at all, in the way projected in the Senate; and in case a discord of opinion as to the mode, the degree, and the time of our regulations should become apparent, an argument would be drawn from it in favor of the very policy hitherto pursued by Great Britain. The event of the tonnage bill, in which the discrimination was meant to be most insisted on by the House of Representatives, is not yet finally decided. But here, also, the Senate will prevail. It was determined yesterday in that House to adhere to their amendment for striking out the clause, and there is no reason to suppose that the other House will let the Bill be lost. I mentioned in my last that both the Senators of Virginia were for admitting Britain to an equality with the most favored nation. This was a mistake as to Grayson.
The other bills depending relate to the collection of the Impost, and the establishment of a war, foreign, and Treasury Department. The bills on the two first of these departments have passed the House of Representatives, and are before the Senate. They gave birth to a very interesting constitutional question—by what authority removals from office were to be made. The Constitution being silent on the point, it was left to construction. Four opinions were advanced: 1. That no removal could be made but by way of impeachment. To this it was objected that it gave to every officer, down to tide waiters and tax gatherers, the tenure of good behaviour. 2. That it devolved on the Legislature, to be disposed of as might be proper. To this it was objected that the Legislature might then dispose of it to be exercised by themselves, or even by the House of Representatives. 3. That it was incident to the power of appointment, and therefore belonged to the President and Senate. To this it was said that the Senate, being a Legislative body, could not be considered in an Executive light farther than was expressly declared; that such a construction would transfer the trust of seeing the laws duly executed from the President, the most responsible, to the Senate, the least responsible branch of the Government; that officers would intrench themselves behind a party in the Senate, bid defiance to the President, and introduce anarchy and discord into the Executive Department; that the Senate were to be Judges in case of impeachment, and ought not, therefore, to be previously called on for a summary opinion on questions of removal; that in their Legislative character they ought to be kept as cool and unbiased as possible, as the constitutional check on the passions and parties of the other House, and should, for that reason also, be as little concerned as possible in those personal matters, which are the great source of factious animosities. 4. That the Executive power being generally vested in the President, and the Executive function of removal not expressly taken away, it remained with the President. To this was objected the rule of construction on which the third opinion rested, and the danger of creating too much weight in the Executive scale. After very long debates, the 4th opinion prevailed, as most consonant to the text of the Constitution, to the policy of mixing the Legislative and Executive Departments as little as possible, and to the requisite responsibility and harmony in the Executive Department. What the decision of the Senate will be cannot yet be even conjectured. As soon as the bills are passed, Mr. Jay and General Knox will of course have their commissions renewed.
The bill relating to the Treasury Department is still before the House of Representatives. The Board will be discontinued, but the business will be so arranged as to make the comptroller and other officers checks on the Head of the Department. It is not clear who this will be. The members of Congress are disqualified. Hamilton is most talked of.
The Senate have in hand a bill for the Judiciary Department. It is found a pretty arduous task, and will probably be long on its way through the two Houses.
Inclosed is a copy of sundry amendments to the Constitution lately proposed in the House of Representatives. Every thing of a controvertible nature that might endanger the concurrence of two-thirds of each House and three-fourths of the States was studiously avoided. This will account for the omission of several amendments which occur as proper. The subject will not be taken up till the revenue and Department bills are passed.
The President has been ill. His fever terminated in a large anthrax on the upper end of his thigh, which is likely to confine him for some time. Wishing you an expeditious and safe passage across the Atlantic, I am, my dear Sir, yours, &c.