ALS, James Madison Papers, Library of Congress.
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.
Documentary History of the First Federal Congress of
the United States of America,
ed. Charlene Bickford, et al. (Columbia, S.C.: Model Editions Partnership,
2002). XML version based on unpublished letters.
http://adh.sc.edu [Accessed (supply date here)]
Copyright 1999. Documentary History of the First Federal Congress Project. All rights reserved.