James Madison Papers
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Treasury Department, [29 June] 1789

Treasury Department

[29 June 1789]

Mr. Madison Observed, that the committee had gone through the bill without making any provision respecting the tenure by which the comptroller is to hold his office. He thought it was a point worthy of consideration, and would therefore submit a few observations upon it.

It will be necessary, said he, to consider the nature of this office, to enable us to come to a right decision on the subject; in analysing its properties, we shall easily discover that they are not purely of an executive nature. It seems to me that they partake of a judiciary quality as well as executive, perhaps the latter obtains in the greatest degree. The principal duty seems to be deciding upon the lawfulness and justice of the claims and accounts subsisting between the United States and the particular citizens; this partakes strongly of the judicial character, and there may be strong reasons why an officer of this kind should not hold his office at the pleasure of the executive branch of the government. I am inclined to think, that we ought to consider him something in the light of an arbitrator between the public and individuals, and that he ought to hold his office by such a tenure, as will make him responsible to the public generally; then again it may be thought, on the other side, that some persons ought to be authorised on behalf of the individual, with the usual liberty of referring to a third person, in case of disagreement, which may throw some embarrassment in the way of the first idea.

Whatever, Mr. Chairman, may be my opinion with respect to the tenure by which an executive officer may hold his office according to the meaning of the constitution, I am very well satisfied, that a modification by the legislature may take place in such as partake of the judicial qualities, and that the legislative power is sufficient to establish this office on such a footing, as to answer the purposes for which it is prescribed.

With this view he would move a proposition, to be inserted in the bill; it was, that the comptroller should hold his office during   years, unless sooner removed by the president: he will always be dependant upon the legislature, by reason of the power of impeachment—but he might be made still more so, when the house took up the salary bill; he would have the person re-appointable at the expiration of the term, unless he was disqualified by a conviction on an impeachment before the senate; by this means the comptroller will be dependant upon the president, because he can be removed by him; he will be dependant upon the senate, because they must consent to his election for every term of years, and he will be dependant upon this house, through the means of impeachment, and the power we shall reserve over his salary, by which means we shall effectually secure the dependance of this officer upon the government; but making him thus thoroughly dependant, would make it necessary to secure his impartiality, with respect to the individual; this might be effected by giving any person who conceived himself aggrieved, a right to petition the supreme court for redress, and they should be empowered to do right therein; this will enable the individual to carry his claim before an independent tribunal.

A provision of this kind exists in two of the United States at this time, and is found to answer a very good purpose. He mentioned this, that gentlemen might not think it altogether novel. The committee, he hoped, would take a little time to examine the idea.

Cong. Register description begins Thomas Lloyd, comp., The Congressional Register; or, History of the Proceedings and Debates of the First House of Representatives … (2 vols.; New York, 1789; Evans 22203–4). description ends , II, 45–46.

[29 June 1789]

Several members objected to JM’s proposal concerning the comptroller’s tenure.

Mr. Madison Did not wish a decision on the subject, farther than gentlemen were prepared.

When I was up before, said he, I endeavoured to shew that the nature of this office differed from the others which the house had decided, and consequently that a modification might take place, without interfering with the former distinction, so that it cannot be said we depart from the spirit of the constitution.

Several arguments were adduced to shew the executive magistrate had constitutionally a right to remove subordinate officers at pleasure; among others it was urged, with some force, that these officers were merely to assist him in the performance of duties, which from the nature of man he could not execute without them—altho’ he had an unquestionable right to do them if he was able; but I question very much whether he can or ought to have any interference in the settling and adjusting the legal claims of individuals against the United States; the necessary examination and decision in those cases, partake too much of the judicial capacity to be blended with the executive. I do not say the office is either executive or judicial; I think it rather distinct from both, tho’ it partakes of each, and therefore some modification accommodated to those circumstances ought to take place; I would therefore make the officer responsible to every part of government.

Surely the legislature, have the right to limit the salary of any officer; if they have this, and the power of establishing officers at discretion, it can never be said, that by limiting the tenure of an office, we devise schemes for the overthrow of the executive department.

If gentlemen will consult the true spirit, and scope of the constitution, they will perhaps find my propositions not so obnoxious as some seem to think. I did not bring it forward for immediate decision, I am very willing to let it lie over for farther consideration.

Cong. Register description begins Thomas Lloyd, comp., The Congressional Register; or, History of the Proceedings and Debates of the First House of Representatives … (2 vols.; New York, 1789; Evans 22203–4). description ends , II, 48–49. JM withdrew his proposition the next day.

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