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Article 2, Section 2, Clauses 2 and 3



Document 42

House of Representatives, Treasury Department

29 June 1789Annals 1:611--14

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 analyzing its properties, we shall easily discover 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 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 authorized 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 dependent 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 would be dependent upon the President, because he can be removed by him; he will be dependent upon the Senate, because they must consent to his election for every term of years; and he will be dependent 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 dependence of this officer upon the Government. But making him thus thoroughly dependent, 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.

Mr. Stone thought it necessary to have time allowed the committee for considering the proposition; it was perfectly novel to him, and he dared to say the same of many other members; but, at the first view, he thought he saw several objections to it. As the Comptroller was an inferior officer, his appointment might be vested in the President by the Legislature; but, according to the determination which had already taken place, it did not necessarily follow that he should have the power of dismissal; and before it was given, its propriety ought to be apparent. He did not know whether the office should be held during good behavior, as the gentleman proposed; for if it was intended to be held during a term of years, and then the officer to be reappointed, if he had not been convicted on impeachment, it would be tantamount to holding it during all the time he behaved well. But he thought all officers, except the judges, should hold their offices during pleasure. He also thought it unnecessary to consider the Comptroller as a judge, and give, by an express clause in the bill, a right to the complainant to appeal from his decision. He considered this as the right of every man, upon the principles of common law, therefore securing it by the statute would be a work of supererogation.

Mr. Smith, of South Carolina, approved the idea of having the Comptroller appointed for a limited time, but thought during that time he ought to be independent of the Executive, in order that he might not be influenced by that branch of the Government in his decisions.

Mr. Sedgwick did not rise to oppose the measure, but to suggest some doubts of its effects. The first was, as mentioned by the gentleman from Maryland, (Mr. Stone,) that the officer would hold his office by the firm tenure of good behavior, inasmuch as he was to be reappointed at the expiration of the first term, and so on.

Mr. Madison begged the gentlemen would excuse him for this interruption, but he suspected he was misapprehended; he said the officer should be re-appointable at the expiration of the term--not re-appointed.

Mr. Sedgwick acknowledged he had misunderstood the gentleman; but, as he had now explained himself, he did not see that the proposition came up to the intention he had expressed: so far from making him independent, as a judge ought to be, it subjected him to more subordination than any other officer.

He also conceived that a majority of the House had decided that all officers concerned in executive business should depend upon the will of the President for their continuance in office; and with good reason, for they were the eyes and arms of the principal Magistrate, the instruments of execution. Now the office of Comptroller seemed to bear a strong affinity to this branch of the Government. He is to provide for the regular and punctual payment of all moneys which may be collected, and to direct prosecutions for delinquencies; he is to preserve the public accounts, to countersign warrants, and to report to the Secretary. These are important executive duties, and the man who has to perform them ought, he thought, to be dependent upon the President.

He did not mean, by what he said, to give a decided opinion, but merely to suggest for consideration some doubts which had arisen in his mind since the subject was introduced.

Mr. Benson did not like the object of the motion, because it was, in some measure, setting afloat the question which had already been carried.

He wished there might be some certainty in knowing what was the tenure of offices; he thought they were well fixed now, if nothing more was done with the question. The judges hold theirs during good behavior, as established by the constitution; all others, during pleasure. He was afraid that the present motion would lead to a different construction from the one lately adopted; by devices of this kind, he apprehended the Legislature might overthrow the executive power; he would therefore vote against it, if it were not withdrawn.

Mr. Madison did not wish a decision on the subject, further than gentlemen were prepared.

When I was up before, said he, I endeavored to show that the nature of this office differed from the others upon 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 show 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, although he had an unquestionable right to do them if he were 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 such 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, though 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 the Government.

Surely the Legislature have the right to limit the salary of any officer; if they have this, and the power of establishing offices 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.


The Founders' Constitution
Volume 4, Article 2, Section 2, Clauses 2 and 3, Document 42
http://press-pubs.uchicago.edu/founders/documents/a2_2_2-3s42.html
The University of Chicago Press

Annals of Congress. The Debates and Proceedings in the Congress of the United States. "History of Congress." 42 vols. Washington, D.C.: Gales & Seaton, 1834--56.

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