New York, August 9, 1789
My Dear Sir.
I feel myself much indebted to you for your observations on the Judicial Bill which have arrived in good time for me to avail myself of themthey in general coincide with my sentiments & I shall use my endeavours to promote the alterations you have suggested.
My time is so much employed & I have so many letters to answer that I am deprived of the pleasure of answering your's fully & must defer it to another opportunity.
Some of your objections have been in some measure obviated by the Senate who have made considerable alterations in the Bill as you must have observed by the Bill I sent you some weeks ago, as it passed the Senate. It has been the order of the day a fortnight past with us, but as we have had various other business we were desirous of terminating before we entered on this, we have postponed it from day to day & probably shall not go upon it for another week.
The Committee on Amendments have reported some, which are thought inoffensive to the federalists & may do some good on the other side; N. Carolina only wants some pretext to come into the Union, & we may afford that pretext by recommending a few amendments.62
There appears to be a disposition in our house to agree to some, which will more effectually secure private rights, without affecting the structure of the GovernmentI am sorry our opinions differ so widely on the question of removability; had I not formed mine on very mature reflection, 1 should have had much reason to waver after reading your observations; your experience in politics & the unbiassed state of your Judgment, not warped by the warmth of debate as we were, enable you to form a proper opinion upon the subject; I am pleased however to find that your arguments go altogether upon expediency & not upon the constitutional right; my desire to guard the Constitution from the dangers of legislative constructions, (which may hereafter be productive of considerable injury to our State, whose representation in point of numbers is weak & unequal to that of any other part of the Union) animated me with a peculiar warmth of opposition. There are men of ingenuity in our house, whose tendency to establish a monarchical government & whose abilities to promote it would go great lengths in altering the constitution essentially were they allowed to give constructive powers to the Executive branch of the government. They acknowledge that the power in question is not explicitly given to the President but they contend that, as it is an Executive power, he must have it of course. It is not difficult to foresee to what this implication may hereafter tend, as there are several powers of an Executive nature not mentioned in the Constitution & not given to any branch, which every one will admit the President ought not to possess.63
Mr. Madison is a great friend to a strong governmenthis great abilities will always give him much weight with the administrationI believe he now is much in the confidence of the President & he will hereafter stand a chance of being President himself; in the mean time he will be a leading man in the Cabinet Council. His mildness of character & a certain timidity which accompanies his political conduct render him unfriendly to a republican government.
The Massachusetts members were dividedbut Ames64 & Sedgwick65 who expect soon to see Adams President & believe they will then be prime ministers exerted themselves to early the question: by their influence, Mr. Dalton,66 in the Senate, was brought over & made the numbers equal, & the Vice President gave the casting vote67 The influence the great body of the people in Massachusetts have in their state government & the insurrection of Shays co-operate68 to make those gentlemen great favorers of monarchy: such being the state of things, it is a question of considerable importance whether the grant of such power wi1l promote the prosperity of our State: I am inclined to think not.
Should Adams obtain the Presidency (& I dare say he will in a few years,) such is the infatuation of the New England States in his favor, that I suspect he will have it for life: His ambition is considerable & his partiality to those States no less so. What chance then will a Southern man have of being appointed to an office? He will nominate his own friends & should the Senate reject them, & compel, him to nominate a person disagreeable to himself, he will dismiss the offices so appointed so the first recess of the Senate & supply the Vacancy himself; besides the Senate will be very seldom disposed to reject any nomination made by the President, who having thus the sole power, as it were of appointment to all Offices & the sole power of dismission, will be enabled to establish such a system of influence that his responsibility will be a mere shadow. All the great Officers of government will be his dependents, open-mouthed on all occasions against the Senate, should they ever pretend to differ with the President on any constitutional point, clamorous against any member of the other house, who shall presume to thwart him in any design. These Officers & their friends from one end of the Continent to the other will form a Phalanx, dangerous to any Competitor who may have the folly to be a Candidate for the Presidency; As they would very probably be all dismissed from office to make way for it favorites & creatures of the Successor, their interest would prompt them to use every stratagem to procure the re-election of their Patron & Creator. Every engine would be set to workabuse of the Competitorpanegyrick of the Gentleman in office, bribery, menaces & cabals would all be employed & would undoubtedly succeed. Every Collector, Naval Officer, & Surveyor from New H. to Georgia, with all their relations & friends will be interested in his re-election.
Contemplate the Subject in another point of view: It is generally thought that another President will never be elected by Electors, because it is supposed that no man in America (except our President) will unite the suffrages of a majority of the Electors: in that case the H. of Representatives are to make the Choice. The New England States united will always carry their pointthe Southern States will stand no chance: The Cabal in the H. of Representatives will be interested in supporting the President of their appointmentthis is naturalwe are ashamed to acknowledge the injudiciousness of our choice & therefore, right or wrong, the Party who have brought about the Election will on all occasions form a strong phalanx in the H. of R. in support of the Presidenttheir friends will in return receive all the best offices under the governmentit will be always an easy thing to remove the present Incumbentscalumnydetractionwhisperings will be successfulthe President will dismiss, & the people will take it for granted, all is rightbut admitting that they are dissatisfiedwhat can be doneimpeach the President? for what? for exercising a constitutional prerogativethat would be idle indeed.
This combination being established between this Monarch & his Treasury bench, the next thing would be to cry down the Senate alarm the People about Aristocracy, quote the Examples of Denmark & Sweden69 If the Senate dont crouch to the Presidentall his officers will set themselves to work to undermine its authority & render it despicableif it is opposed to the H. of Representatives the Treasury Bench will reprobate it for thwarting that house which is the immediate representative of the Peopleit will be repeated (for it has already been said in Congress) that the H. of Rep. & the President are more nearly related to the People than the Senatethat the Senate are an Aristocratic body, their doors shut, voting for officers in the dark mode of ballot70that there is no responsibility among themthat they dont represent the People but the States-that the great danger is to be apprehended from that quarter & not from the President, who is the Man of the People (shall we say so of Adams?) that they will generally be the opulent men of each State & are therefore to be dreaded. Thus will that useful body be abhorred by the People & lose all its weight in the Government; thus will the Constitutional barrier against the tyrannical incroachments of the Chief Magistrate on the one hand & the intemperate proceedings of the popular branch on the other be pulled down & annihilated, & thus, finally will the whole powers of government be absorbed by the President & his pretorian Cohort in the H. of Representatives-You will say all this is supposition-true-let us agree then that in respect to expediency, much may be said en both sides-& proceed to examine the subject on its constitutional ground.
It is very evident that the federal constitution is a compilation, of thc State Constitutions: there are few clauses in it, particularly those which relate to the Structure of the several branches of the Government which are not copied nearly verbatim from the State Constitutions. The mode of appointment to offices by the President with the advice of the Senate is copied from a great number of the Constitutions where the Government & Privy Council or Council of appointments have this power. The Impeachment by the H. of Representatives & the trial of Impeachments by the Senate arc also imitated from the Governments of almost all the States-you will admit then that the rule of construction from analogy will here strongly apply-the federal Constitution being silent as to removability (unless by Impeachment) the question occurs how are officers to be removed? You say, by the PresidentI then ask, can the Governor of any one State in the Union remove an officer at pleasure? He certainly cannot. In one or two states, the Governor & Council appoint another officer, which operates as a supersedure (if I may so call it) of the person in office, but the Governor alone, tho he can in some instances suspend, can in no one instance remove. In some of the States, an officer can be displaced only by impeachment, in others by address of the Legislature, & again in others by the Governor & executive Council.
Examine the new Constitution of Georgia, every clause of which relating to this question, is copied from the federal Constitution & tell me whether you think the Governor of Georgia has this immense Power; I puzzled Mr. Baldwin not a little by asking him this question, immediately after he had made a long oration to prove the constitutionality of this power in the President.71 Can there be two modes of construction, one for the Constitution of a State & the other for the Constitution of the U. S. when the same words & sentences are employed? I think not: Mr. Baldwin was clearly of opinion that the Governor of Georgia has not this power.
But you will ask whether the Constitution has vested this power in the Senate joined with the President-the Implication is certainly stronger in favor of the Senate, because they appoint, & it seems reasonable that they should remove, for the same judgment is requisite to determine whether one man should be removd from an office as to determine whether another is fit to be appointed to it. Besides, the Senate, consisting of members from every State, may be deemed more interested in the continuing in office a proper man, than the President; & as the officer can be a countryman but of two of the Senators there is less reason to apprehend an improper spirit of favoritism & partiality in the Senate than in the President. The Senate may also be supposed to contain more general knowledge of characters than the President-they come from all parts of the Union, mix in Society & know the public sentiments, whereas the President lives recluse & converses only with a few favorites, from whom he will generally derive all his information of characters. Again, as the President & Senate jointly appoint, it appears that if there be any other mode of removal than by impeachment, the proper mode should be to remove the officer by the appointment of another, which must be by the concurrence of the Senate.
Here I will admit that some inconveniencies might result from this doctrine, & therefore I gave in the house a very different interpretation to the Constitution from those who contended on the one hand that the power of amotion belonged to the President alone & those who insisted that it was in the President & Senate jointly: and altho my exposition was only supported by myself & Mr. Page,72 yet the friends to the former opinion confessed that mine was more consistent & more constitutional than the latter. Without adverting to expediency, but confining myself strictly to the Constitution, I contended that Officers could only be removed by Impeachment" I supported my opinion on these grounds: 1st the Constit. says, "all officers shall be removed by impeachment" & in no part of the Constitution does it say that they shall be removed in any other mode expressed unius est exclusio alterius. 2dly this is conformable to the State Constitutions for no officer can be displaced in any of the States, unless by Impeachment or by virtue of a power expressly given to the Executive Council or the Legislature, as in Pennsylvania & Maryland; in the latter the Treasurers hold their places during the pleasure of the Assembly. 3dly the mode of removal must be uniform; if it be given to the President in one case it must be given in every other, & the Convention could never have had in contemplation that the Treasury should be so much under the immediate influence of the President as it would be if the officers of that Department held their places during his pleasure.73 4ly the Enumeration of the Powers of the President in the Constitution is a direct & strong implication that he should have no other powers than those enumerated, because, if vesting him with the Executive power was of itself sufficient to convey all executive powers, the enumeration would be absurd. The same observation applys to the Senate. I-lad this power been in contemplat how easy would it have been to have added, after declaring that the President should nominate & by & with the advice & consent of the Senate appoint, these words, "& remove, when necessary," all officers &ca. or after saying that the President should "commission all officers" add, "during his pleasure": from the comparison with the State Constitutions & the omission of any such power, I am perfectly convinced either that there were in the Convention men who wished this power should be vested in the President, but were afraid to give it explicitly, least the people should reject the Constitution & therefore left it to be exercised by implication, or that it was never in the contemplation of the Convention: I have indeed heard it said that it was then understood that the President & Senate would appoint a new officer & thus supersede the old one.
Aug. 10th. It is very certain that had the power been agitated in Convention & there understood to be in the President alone, we should have been told it in the debate. For these & other reasons which I have not leisure to detail I am of opinion that constitutionally an officer can only be removed by Impeachment-to this, it was answered that the most alarming inconveniencies would result from such a doctrine, because even a tide-waiter would be removed only by Impeachment which would be absurd, & that it would be dangerous to liberty to give to the officers of government so durable a tenure as that of good behaviour & that moreover it was against the Constitution which only contemplated such a tenure as applicable to the Judges.
I rescued my principle from these defects by stating: 1st that my doctrine would not extend to a tide-waiter, because Congress would by Law vest the appointment & consequently the removal of all in ferior officers in the President alone. 2. that it was easy to limit the duration of the great officers by making their appointments biennial or for a longer period as is done in all the States which the Congress might do, when they established the offices. 3. that the Constitution by declaring that the Judges should hold their places during good behaviour intended to prohibit Congress when it instituted the Judicial Department from making their appointments limited, as they are in several of the States, to a term of years & manifestly shewed that the Executive officers might be limited: my conclusion therefore was that with respect to all inferior officers a Law should pass vesting the appointment & removal solely in the President & that the great & principal Officers of government should be appointed for a limited time, during which they should only be removed by impeachment. If you read the constitution with attention & compare it with that of the States, you will be of opinion with me that however expediency may dictate another principle, this is the constitutional line of proceeding.74
I observed some time ago that our State should be extremely cautious how any innovation is made in the Constitution75-at present we know what government we live under & the Extent of the Sacrifice made-our State Convention perused the federal constitution & concurred in it, as it stood. While it remains unaltered, we may have no reason to apprehend any incroachments on our State-rights-but if on the other hand, it is in the power of a few ingenious men & able orators to new-model the powers of the government by construction & implication & give it a different shape from the one it had when we adopted it, theres no saying to what lengths these alterations may be gradually carried in time.
I observed that our State is weak in the Union-it certainly is-we have no state to support our peculiar rights, particularly that of holding Slavery, but Georgia:76 She will be generally represented by men of moderate abilities-indeed I fear the smallness of the pay will not entice our best men to make the necessary sacrifices & come to Congress: No. Carolina voted with the other states against us in Convention: Virginia is our greatest enemy, the other States are all against us; but while the Constitution remains unaltered, they cant touch our negroes for 20 years & perhaps not constitutionally after that time; I shall support the Amendments proposed to the Constitution that any exception to the powers of Congress shall not be so construed as to give it any powers not expressly given, & the enumeration of certain rights shall not be so construed as to deny others retained by the people-& the powers not delegated by this Constitution nor prohibited by it to the States, are reserved to the States respectively; if these amendments are adopted, they will go a great way in preventing Congress from interfering with our negroes after 20 years or prohibiting the importation of them. Otherwise, they may even within the 20 years by a strained construction of some power embarass us very much. I had this in contemplation not a little, in my opposition to the Legislatures giving judicial constructions on the Constitution.77
I have read your observations on the Judicial with attention & having somewhat more time than I thought I should have had at the outset of this Letter will briefly acquaint you what impression they have made on my mind.
1st. Objection to the District Judge holding special Courts.
Answer. Occasions may occur when they may be very necessary-the Seizure of goods-a Ship-which it may be proper & expedient to condemn forthwith-a crime committed on the High Seas-& the witnesses, who are Sailors, about to depart-you recollect that the District Court is a Court of Admiralty-The Judge will not hold them unnecessarily on account of the additional trouble-Great inconveniencies might ensue, if he had not that power-if it is found oppressive, the Legislature can remedy it. The District Court has no material Jurisdiction beyond maritime causes & causes of Seizure; therefore the dangers cannot result which you apprehend. Nor can there be apprehensions from the Judges power to hold the Court where he thinks proper for the above reasons-On the mode of adjourning the court when the District Judge does not attend, I entirely agree with you & hud made a note similar to yours before I saw your observation.
The Senate have altered the Clause respecting Quakers, [presumably] to your Sentiments.
The Trial of fact shall be by Jury.
As the Bill has been alterd by the Senate, it stands now "the trial of Issues in fact" shall be &ca. In general the Law as well as the fact should be left to the Jury-but when we consider that the causes triable in these Courts will generally turn on the Laws of nations, the construction of Treaties, on the clashing rights of different states, on the interests of foreigners, against whom that order of people of whom our Juries are formed is generaly prejudiced, on the interest of citizens of another state than that in which the cause is tried, in which case the Jury will be partial to their own immediate fellow-citizens & perhaps acquaintances, a question may arise (& I confess my opinion is not settled) how far the Senate have not been judicious in leaving the Fact alone to the Jury, more especially, as there is no appeal of fact to the Supreme Court but only of Law.
Restrospect as to Contracts: I have sometime since sounded the members on this point but they generally disapprove of the restriction: less danger will result from a general operation of the Law than might have been apprehended; the establishment of Circuit Courts will facilitate the trial of causes in the States where the debts may be clue-by Juries of those states; & there is no appeal of fact-the Sum for which Writs of Error will lie to [torn] Court may be a large one.
If the Defendant claims under a Grant of another State:
Your objection is that the Plaintiff should have the same right: The alteration has been made in the Senate, conforming to your opinion.
Suits against Ambassadors-the United States not to pay costs.
I agree with you in your observations on these two points.
Where is drawn in question the Validity of a Treaty &ca. you think the appeal should be reciprocal-I have seen some observations from Mr. Pendleton76 of Virginia on the Jud. Bill & he makes precisely the same objection. The reason on which the Clause is grounded is that a citizen cant complain if his own State Court decides against him; that this Bill does not put him in that respect in a worse plight, than he was before: on the other hand the Clause is absolutely necessary for the preservation of the federal government-there is much weight in your observation & I am not clear but you are right: my opinion is not fixed.
Mr. Elsworth who was principally concerned in drawing the Bill is a Judge of the State of Connecticut of much reputation for legal knowledge: he is a man of remarkable clearness of reasoning & generally esteemed a person of abilities. I met him last night & took notice of some of your objections which he endeavoured to refute. He observed that the convention had in view the condition of foreigners when they framed the Judicial of the U. States. The Citizens were already protected by [torn] Judges & Courts, but foreigners were not. The Laws of nations & Treaties were too much disregarded in the several States-Juries were too apt to be biased against them, in favor of their own citizens & acquaintances: it was therefore necessary to have general Courts for causes in which foreigners were parties or citizens of different Stales; hence arises this partiality which offends you: perhaps it may bc carried too far.
Thc mode of drawing jurors should be according to the customs & Laws of the several States: Mr. Elsworth seemed to have no objection to that, but remarked that a very ignorant jury might be drawn by Ballot.
Special jury in appeals to the Supreme Court:
There is no appeal of fact to the Sup: Court.
The Return Days ought to be fixed in the Act:
I will mention this-I have not much considered this point.
I shall do every thing to serve Capt. Hall79 when an opportunity offers. At present there is nothing that will suit him.
I sent you the judicial Bill as it passed the Senate-if you have leisure, send me your opinion of it, which may arrive before we pass it.
I dined in company with Henry yesterday-he looks [well &] likes his Situation much.
[This will be] delivered you by Mr. John Marsden Pintard, who has a Law Suit in Charleston. Mr. Boudinot, his uncle has requested me to recommend him to a Lawyer of Eminence; I therefore take this mode of introducing him to you: he is a gentleman of good connexions in this City.
I have much more to say, but no more time-Mrs. Smith joins me in best regards to your good Lady & yourself & I am particularly, My dear Sir, Yours with sincerity.
[P. S.] Mr. Pintard has altered his intention & does not go to Charleston.
August 15th. Ramsay is arrived here-When I went to Congress this morning, I saw him going from the door: I havent yet heard whether this is solely a visit of Curiosity-I imagined he went to Philadelphia to print his book.80
We have been these three days on Amendmentsa motion of Tuckers81 this morning respecting the right of the people to instruct their representatives occasioned some warmth [torn] rudeness of Mr. Gerry,82 & some reflexions of Burke's83 [on the] Committee who brought in the Amendments & particularly on Madison: he said these Amendments were a mere tub to the whale & similar observations which were taken up warmly by Madison & others: Tuckers motion was voted for by 8 or 9 antifederalsIt is worthy of observation that the antifederals in our House have thrown difficulties in the way of these Amendments merely because they can't carry alterations which would overturn the Governmentthere has been more ill-humour & rudeness displayed today than has existed since the meeting of Congressallowing to Gerry & one or two more& to make it worse, the weather is intensely hot.
Henry dined with me today & is just gonehe grows a fine youthgenteel in his manners & well-bred.