To Tench Coxe
Montpellier Jany. 17. 1821
I have looked over the paper of Phocion. It indicates intelligence and acuteness in the writer, and no inconsiderable fairness, in facing, at every point, the subject he discusses. In his charges against me of inconsistency, he errs in identifying me with Mr. Hamilton in the opinion given in the 77th. No. of the Federalist, “that a removal from office required the concurrence of the Senate.”3 It was never understood that the parties to that work were answerable, each, for all the sentiments expressed in papers written by the others. To those acquainted with the circumstances under which the work was carried on for the press, it was manifest that a mutual privity even, was not always possible. The latter part of the work on the Executive and Judiciary Departments, including No. 77. were written after I left N. York for Virginia.
In the view P. gives of my opposition at first, and my assent afterwards to the Bank, he has not adverted to the grounds of the assent, as explained at the time. It implied no change of opinion as to the original construction of the text of the Constitution. It implied the contrary; the assent being founded on the principle that a certain character & course of precedents had the effect of fixing the meaning of Constitutions as well as of laws. Altho’ this is denied by some, it was not contested in the case of the Carriage tax;4 those who regarded it as equally with the Bank a breach of the Constitution, having acquiesced in the decision on that point, tho’ not so extensively sanctioned as the decision in the case of the Bank. Phocion may have been misled perhaps by the view given of this change by the Supreme Court, in their late judgment on a case involving the constitutionality of the Bank.5
It is remarkable that the power of removal from office, though of such material agency, excited so little attention, whilst the Constitution was under discussion. It seems to have presented its important aspects, for the first time, at the first session of Congress, when the establishment of the Executive Offices was on hand. The debates on that occasion will shew,6 to a certain extent at least, the different reasonings in support of the different opinions on the subject. In the final decision, experience seems to have produced a universal concurrence. What indeed would become of the efficiency or even practicability of the Executive trust, if every officer from the most confidential downward, who might be favored by a single vote more than ⅓ of the Senate, could, in defiance of the President and a single vote less than ⅔, hold his place till the delays of an impeachment could reach him. If ever there was a case where the argumentum ab inconvenienti,7 ought to turn the scale, this was surely one.
If I understand, from a perusal not very critical, the doctrine and arguments of this writer, he supposes that “Executive Power,” as distinct from Legislative & Judiciary power, depends wholly on constitutional modifications. That it is subject to Constitutional distributions is certain. But that it is a substantive power distinct in its nature from others, can not be denied, whatever difficulty there may sometimes be, in marking the dividing line between them. The language of the State Constitutions and Declarations of Rights, recognizes this substantive character of the Executive, as well as of the Legislative & Judiciary powers.
If, as seems to be contended, no power not expressed, belongs to the Executive, because expressed powers only are delegated to the federal Government, to whom does the removing power belong? Not to either of the other Departments, for it is not expressed among their powers. It must consequently, as not belonging to any, result to the States or to the people. To say that it results to the President & two thirds of the Senate, is not only to take off the wheels of the Govt: but to adopt a constructive power represented as inadmissible.
The difficulty is certainly not lessened by the distinction taken between high crimes & misdemeanors, and minor offences. The distinction take[s] away the impeaching remedy even, for the latter, without leaving the remedial power of removal. Such consequences from the doctrines of P. make me almost suspect that I have not rightly caught his meaning.
The remarks into which I have run, are as you will see not in a form for the press. I have no doubt that the flaws in the paper will be much better exposed by others, if the task be called for in relation to the Constitution of Pennsylvania. As the paper affects myself merely, I am content to leave its criticisms to themselves, without imposing the trouble you so kindly offer, of pointing out their fallacies. I am neither so blind nor so vain as to claim an entire exemption from the changes of opinion, or from the argumentative inaccuracies & inconsistences, incident to a very long course of political life; & to a participation in a great variety of political discussions, under many vicisitudes and varying aspects of the subjects of them. A comparative exemption, is as much as I dare aspire to; and this I ought to presume will not be refused, if I should be found to have a title to it.
I am glad to learn that the temper of all parties is assuming so much calmness on the subject of Missouri. The views of it, latterly presented to the public, according to the specimens you have sent me could scarc[e]ly fail to have such an effect. If all the States are not in Glass houses, none of them, it appears, are within Stone Walls.
The attention you keep up to my request as to the debates of Congress for a certain period obliges me very much. As you say nothing of Noah Websters “Sketches” or Peletiah Websters “Dissertation” I conclude they are not to be procured. Health and every other blessing
For the Democratic Press. Remarks on the Constitution of Pennsylvania, More particularly on the Power of Appointment and Removal. Addressed to the Legislature of the State. No. III.
Having briefly shown the extent of the Governor’s influence over the officers of his appointment, and hinted at a principle by which his power might be plausibly claimed, we shall proceed to examine whether this power of removal may not be constitutionably denied to the executive and subjected to the discretion of the legislature.
The constitution of the State is not silent on this important subject. It has provided in the most explicit terms for the removal from office of all incumbents who shall misbehave themselves. By article 4th section 4. “The Governor and all other civil officers under the commonwealth shall be liable to impeachment for any misdemeanor in office. But judgment in such cases shall not extend further than removal from office and disqualification to hold any office of honor, trust, or profit under this commonwealth.”
There is a marked difference between the constitutions of the United States and of Pennsylvania, on this point. When it is considered the latter was modelled on the former, and is mutatis mutandis written in the same terms, this difference cannot be supposed accidental and without consequence. By the constitution of the United States art. II. sect. 4th. It is provided that “The President, Vice President, and all civil officers, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanours.” This clause in the ordinary import of language, and the common rules of legal construction, does not embrace all misdemeanours. The words “high crimes and misdemeanours” are used in contradistinction and in opposition to, crimes and misdemeanors, of ordinary character, unaggravated in their nature. And the word “other” would be believe be [sic] construed by every judicial bench in the country to mean offences, of the same grade and character as those specifically named. Taken in this sense the Pennsylvania convention of 1790, did not consider the clause sufficiently comprehensive to embrace all causes for which removal from office should take place, abandoning therefore the discriminating words used in the constitution of the United States it has adopted phraseology which includes every degree of malversation; subjecting the officer to “impeachment for any misdemeanor in office,” under the constitution of the United States, the power of removal, might have been assumed by the executive, as implied in the power of appointment, with greater color of reason, than, it could be assumed by the Governor under the constitution of Pennsylvania. The power to remove by impeachment might be considered with propriety as not reaching, many offences, the commission of which render the removal of the officer desirable. As that constitution, then had not provided for the removal of officers thus offending the general responsibility of the executive for the faithful administration of the laws, might appear to carry with it the right to remove, unfaithful officers.
But the power of removal is exercised by the president, in its full extent, embracing all officers appointed by him, by and with the advice of the senate. Whence does he obtain this power? Is it assumed, as incidental to the power of appointment? But, the president removing at his pleasure, does not appoint at his pleasure. He does not possess the totality of the power of appointment. The senate participates in its exercise: the President and Senate form the appointing power. Here then is a new case, not depending on the principle generally assumed, that the power of appointment to, includes the power of removal from, office. Though this principle should be taken as incontrovertable, it will not solve the case before us, and we must resort to other principles.
This important question has undergone a thorough discussion, and has been viewed in all possible aspects by the House of Representatives of the U. S. and in that august body, produced a most extraordinary diversity of opinion. It came before them at the first session, after the adoption of the federal constitution, on a resolution offered by Mr. Madison in the committee of the whole, “that it is the opinion of this committee that there shall be established, an executive department to be denominated the department of foreign affairs; at the head of which there shall be an officer to be called the secretary to the department of foreign affairs, who shall be appointed by the president, by and with the advice and consent of the senate; and to be removeable by the president.” Immediately on the presentation of this resolution, the words “who shall be appointed by the president by and with the advice and consent of the senate,” were stricken out on the ground, that “the constitution had expressly given the power of appointment in the words there used.” The resolution as amended after much debate was carried, with an understanding that an opportunity would be offered for an ample discussion of the power of removal, which was denied to the president, by several members on many grounds. On the 15th of June, 1789, the question came again before the House, on the bill for establishing an executive department, to be denominated the department of foreign affairs. A more interesting animated, and argumentative debate, is not to be found in our congressional annals, than, that which arose on this occasion. The first clause of the bill after recapitulating the title of the officer and his duties had these words, “To be removeable from office by the president of the United States.”
The power to remove from office was generally admitted to be lodged, in the gen. gov. but to what br[a]nch it was constitutionally given, was a point, producing great collision of opinion. There were however some gentlemen, who denied, that the power of removal from office, for mere misdemeanour was at all given by the Constitution, and who opposed every attempt of Congress to intermeddle with it, until further power had been given by the people, by an amendment to the Constitution; this class was not numerous, and it was soon overpowered by the number of its opponents, if not by the force of their arguments. Those, who believed, that the power was given by the Constitution, assigned very different reasons for their faith. By one section it was said that, the power of removal in all cases, belonged to the Senate, by virtue of the clause relative to impeachments, and that, the Constitution having pointed out that mode of dismissal from office, none other was admissible. By a second it was contended, that the power to remove was co-incident with and dependent upon the power to appoint: and that, the power of appointment being vested in the President and Senate therefore, the power of removal could be exercised only by them conjointly. A third section argued, that, as the power of removal was not expressly given by the Constitution, to the President or the Senate nor to the President and Senate; but that as the necessity of the power was apparent and the Legislature, having the right “to make all laws necessary and proper for carrying into execution the foregoing powers and all other powers vested by the Constitution” the power of removal belonged to the Legislature, embracing, the President, Senate, and House of Representatives, who might dispose of it as they should deem most advantageous to the people. This opinion was sustained, by many able speakers, and swayed the House in their decision of the question. For most of those, of the last section, we have to enumerate, who contended for the power of removal in the President alone, supported their position by this argument, that although it should not be conceded that the Constitution gave the power to the President, yet it must be admitted that the Legislature possessed it, and might bestow it on the President. It is true however, that some contended boldly, for the right of the President, under the Constitution, independently of the Legislative power: But not one of those were over willing to pass the bill, without the clause granting the power of removal of the Officer to the President. Mr. Madison who led the way on the President’s Constitutional power, to appoint, at first availed himself of the foregoing argument, th[o]ugh he afterwards disclaims reliance upon it, because the Legislature might choose to vest the power elsewhere than in the President. As the opinion of this Gentleman and his associates in the argument, most materially interferes with our views on this subject, we are constrained to review the reasons on which it is founded. That we approach this task with diffidence and awe will not be doubted. The opinions of the man, who contributed so greatly to the formation of the Constitution, and to the organization of the government under it, and who justly obtained, the confidence of the Country, must always be assailed with great disadvantage. Our own convictions almost yield to the force of his name; and we fear that the voice of reason’s self, would be doubted when opposed to his. Will it be permitted us before we advance to this unequal warfare to attempt to clear the way by remarking that this great man’s opinions even on constitutional points, are not infallible, and that however maturely formed, they do not always resist the magic influence of expediency.
If the power claimed for the President, by Mr. Madison, be a constructive one, and we think it can bear no other name, the inference must not be drawn that Mr. M. is at all times friendly to constructive powers. In the XIIth No. of the Federalist, he combats this doctrine manfully, and on the principles which be there laid down, he in the year 1791 resisted the incorporation of the United States Bank. In addition to the reasons he drew from the specific enumeration of powers in the constitution, he gives one that we would think was conclusive and insurmountable in his own mind at least. On the floor of Congress, Mr. [M.] declared, “That the power to grant charters of incorporation was in the original plan reported by the committee to the convention among the enumerated powers granted by the 8th section of the first article of the constitution; but that after three days consideration and ardent debate in that body, it was stricken out, as a power improper to be vested in the general government.” In the face of this declaration and of this fact, Mr M. as President of the United States sanctioned an act incorporating the Bank of the United States. Again, the Federalist is deemed a text book on the constitution, in the composition of which Mr. M took a considerable part, and is generally supposed to have seen and approved, all communicated to the public under the signature of Publius. The 77th number of that work, treating of the President’s power to appoint, commences thus, “It has been mentioned as one of the advantages to be expected from the co-operation of the senate in the business of appointments that it would contribute to the stability of the administration. The consent of that body would be necessary to displace as well as to appoint.” The Federalist we all know, was written to enforce the acceptance of the Federal constitution by the several states. It was written principally by Messrs. Madison and Hamilton, who were members of the convention which framed that constitution, and therefore the presumption that their exposition of that instrument, was in the sense in which it was conceived, is founded in strict justice to them. Yet immediately after the adoption of the constitution, a construction is given to it by Mr. M. contrary to the one published to induce its adoption. We do not mean to be understood, that Mr. M. stated at any time what was not his real opinion. But we would be understood to mean that, Mr. M in the change of his opinion in the two cases we have cited, convicted himself of error, and we urge that conviction against the Prestige of his name and character. With this preparation we proceed to offer impartially, the foundation of Mr. M’s. argument in favor of the constitutional power of the President to remove from office.
On the introduction of his resolution, Mr. Madison, defended it, on the ground of the responsibility of the executive, arising from the nature of his office; and urges strongly the expediency of imposing on the President, the responsibility for the conduct of all officers in the department. He does not attempt to prove the constitutionality of the power he contends for, until the propriety and practicability of this responsibility is shaken by the arguments of his opponents, in the debate on the passage of the bill for establishing a department for foreign affairs. It is opinion that the Constitution gives this power to the President, he avows is the result of an intermediate examination, and that “it does not perfectly correspond with the ideas which he entertained of it from the first glance.” The passages of the constitution on which he relies, are the first sentence of Art. II. sec. 1. “The executive power shall be vested in a President of the United States of America,” and the concluding sentence of section III. of the same article, “He (the President) shall take care that the laws be faithfully executed, and shall commission all the officers of the United States.” He then contends, that removal from office is an executive power, and therefore belongs to the President; and that it being the duty of the President to take care that the laws be faithfully executed, he must necessarily have the power to remove those who execute them unfaithfully.
The construction given to these passages of the Constitution, we think we shall shew clearly is not warranted by them. That they are given in terms so general, as to admit of great latitude of construction, if they stood unconnected with other parts of the constitution, we admit, but that they would justify precisely the meaning here given to them, is not so obvious. If the words “the executive power shall be vested in a President of the United States of America,” stood alone, in order to assign to them any meaning, it would be necessary to define the “executive power.” In a certain sense, these words are understood by all. They mean a power to execute the laws. But the degree of power depends on the form of government and the extent of the grant. It varies from the whole power of the state, to the most incons[i]derable part. In governments approximating to despotism, the executive power is paramount to every other; in those approaching to democracy, it is feeble, and of little consideration. There is every degree of this power between the maximum and minimum of the scale. Even in the United States, where the general basis of the state governments is the same, there are various degrees of this power. Now, what is the grant conveyed by the words “executive power,” as used in the Constitution of the United States. ’Tis not a despotic power; for that would render useless all other parts of the Constitution. It cannot be the executive power exercised by the King of Great Britain, for we have abjured the government of Great Britain and created one for ourselves. It cannot be that given to either of the several states; for there are no means by which we can ascertain from [which] it was borrowed. Then if it be neither of these, it must be that executive power given by the constitution of the United States, and the passage we have quoted should read, “The executive powers given by this constitution shall be vested in a president,[”] &c. If then this be the true reading, we have not advanced a step by the use of this passage, in dete[r] mining the power of the President to remove from office. For though we should admit the power of removal to be an executive power, it does not appertain to the president unless given to him by the constitution. If this opinion need additional support, it will be found in the consideration. That the general government is altogether a factitious one, that it owes its existence to the concessions of the several state sovereignties and that it has no other power save that delegated to it—On the subject of constructive powers we would appeal from Mr. Madison construing the constitution, to Mr Madison defending it. The fear that powers not expressly given by the constitution, might be obtained by implication, formed one of the many objections to its adoption, by the several states. This objection was particularly urged against the clause, authorizing Congress “to provide for the common defence and general welfare of the United States.” To remove this dread Mr. Madison in the same number of the federalist from which we have already made an extract, expresses himself thus: “It has been urged and echoed, that this power amounts to an unlimited commission to exercise every power which may be alledged to be necessary for the common defence and general welfare. No stronger proof could be given of the distress under which these writers labor for objection than their stooping to such a misconstruction. (Has experience shewn this to be a misconstruction?) What color can the objection have, when a specification of the objects alluded to, by these general terms immediately follows; and is not even separated by a longer pause than a semicolon? If the different parts of the same system ought to be expounded, so as to give meaning to every part which will bear it, shall one part of the same sentence be excluded altogether from a share in the meaning; and shall the more doubtful and indefinite terms be retained in their full extent, and the clear, precise expressions be denied any signification whatever? For what purpose could the enumeration of particular powers be inserted, if these and all others were meant to be included in the preceding general power? Nothing is more natural or common, than first to use a general phrase, and then to explain and qualify it by a recital of the particulars. But the idea of an enumeration of particulars which neither explain nor qualify the general meaning, and can have no other effect than to confound and mislead, is an absurdity which as we are reduced to the dilemma of charging either on the authors of the objection, or on the authors of the constitution, we must take the liberty of supposing, it had not its origin with the latter.”
Now may we not ask, is there an argument here used against constructive powers in congress, that does not apply with equal force to such power in the President. Is not the passage relied on by Mr. Madison a “general phrase?” Is it not followed by a “recital of particulars” by an enumeration of powers in the very article of which it forms the commencement? Does not the sentence which Mr. Madison pronounces on the “author of the objection” recoil upon himself?
RC (DLC). RC docketed by Coxe, with his note: “about Fedt.” For enclosure, see n. 1.
1. The enclosure was printed in the Philadelphia Democratic Press, 9 Jan. 1821.
3. For Federalist No. 77, see Cooke, The Federalist, 515–21. In the words of Alexander Hamilton, “it has been mentioned as one of the advantages to be expected from the cooperation of the senate, in the business of appointments, that it would contribute to the stability of the administration. The consent of that body would be necessary to displace as well as to appoint” (ibid., 515).
4. For the tax on carriages, which JM opposed as unconstitutional, see JM to Thomas Jefferson, 1 June 1794, PJM description begins William T. Hutchinson et al., eds., The Papers of James Madison (1st ser., vols. 1–10, Chicago, 1962–77, vols. 11–17, Charlottesville, Va., 1977–91). description ends 15:340–41 and n. 2. For a previous use of the analogy of the carriage tax with the Bank of the United States, see JM to James Monroe, 27 Dec. 1817, PJM-RS description begins David B. Mattern et al., eds., The Papers of James Madison: Retirement Series (2 vols. to date; Charlottesville, Va., 2009–). description ends 1:190–91.
5. For the opinion of John Marshall in the case of McCullough v. Maryland before the U.S. Supreme Court, see JM to Spencer Roane, 2 Sept. 1819, PJM-RS description begins David B. Mattern et al., eds., The Papers of James Madison: Retirement Series (2 vols. to date; Charlottesville, Va., 2009–). description ends 1:500–503, 504 nn. 1–2.
6. For a summary of the debate and JM’s speeches in support of the removal power of the president, see PJM description begins William T. Hutchinson et al., eds., The Papers of James Madison (1st ser., vols. 1–10, Chicago, 1962–77, vols. 11–17, Charlottesville, Va., 1977–91). description ends 12:55–57, 170–74, 190, 225–29, 229–30, 244–45, 254–56, 290, 291.
7. Argumentum ab inconvenienti: “an argument from inconvenience; an argument that emphasizes the harmful consequences of failing to follow the position advocated” (Black’s Law Dictionary, 9th ed., 122).