To Edmund Randolph
N. Y. June 17. 89
My dear friend
The inclosed bill relating to the Judiciary has been just introduced into the Senate.1 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.2 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
RC (DLC). Addressed by JM and franked. Docketed by Randolph. Enclosure not found (see n. 1). Brackets enclose letters obliterated when the seal was removed.
1. The Senate on 12 June ordered 250 copies of A Bill to Establish the Judicial Courts of the United States ([New York, 1789]; Evans supp. description begins Charles Evans, ed., American Bibliography … 1639 … 1820 (12 vols.; Chicago, 1903–34). Roger P. Bristol, Supplement to Charles Evans’ American Bibliography (Charlottesville, Va., 1970). description ends B7153) to be printed by Thomas Greenleaf. These were ready for distribution on 16 June (James B. Childs, “The Story of the United States Senate Documents, 1st Congress, 1st Session, New York, 1789,” Papers of the Bibliographical Society of America, LVI , 181, 183–84).
2. Late in life, JM inserted the letters necessary to complete the names of Jay and Knox.