Article 2, Section 2, Clauses 2 and 3

Document 43

James Madison to Thomas Jefferson

The other bills depending relate to the collection of the Impost, and the establishment of a war, foreign, and Treasury Department. The bills on the two first of these departments have passed the House of Representatives, and are before the Senate. They gave birth to a very interesting constitutional question--by what authority removals from office were to be made. The Constitution being silent on the point, it was left to construction. Four opinions were advanced: 1. That no removal could be made but by way of impeachment. To this it was objected that it gave to every officer, down to tide waiters and tax gatherers, the tenure of good behavior. 2. That it devolved on the Legislature, to be disposed of as might be proper. To this it was objected that the legislature might then dispose of it to be exercised by themselves, or even by the House of Representatives. 3. That it was incident to the power of appointment, and therefore belonged to the President and Senate. To this it was said that the Senate, being a Legislative body, could not be considered in an Executive light farther than was expressly declared; that such a construction would transfer the trust of seeing the laws duly executed from the President, the most responsible, to the Senate, the least responsible branch of the Government; that officers would intrench themselves behind a party in the Senate, bid defiance to the President, and introduce anarchy and discord into the Executive Department; that the Senate were to be Judges in case of impeachment, and ought not, therefore, to be previously called on for a summary opinion on questions of removal; that in their Legislative character they ought to be kept as cool and unbiased as possible, as the constitutional check on the passions and parties of the other House, and should, for that reason also, be as little concerned as possible in those personal matters, which are the great source of factious animosities. 4. That the Executive power being generally vested in the President, and the Executive function of removal not expressly taken away, it remained with the President. To this was objected the rule of construction on which the third opinion rested, and the danger of creating too much weight in the Executive scale. After very long debates the 4th opinion prevailed, as most consonant to the text of the Constitution, to the policy of mixing the Legislative and Executive Departments as little as possible, and to the requisite responsibility and harmony in the Executive Department. What the decision of the Senate will be cannot yet be even conjectured. As soon as the bills are passed, Mr. Jay and General Knox will of course have their commissions renewed.

The bill relating to the Treasury Department is still before the House of Representatives. The Board will be discontinued, but the business will be so arranged as to make the comptroller and other officers checks on the Head of the Department. It is not clear who this will be. The members of Congress are disqualified. Hamilton is most talked of.

The Senate have in hand a bill for the Judiciary Department. It is found a pretty arduous task, and will probably be long on its way through the two Houses.

The Founders' Constitution
Volume 4, Article 2, Section 2, Clauses 2 and 3, Document 43
http://press-pubs.uchicago.edu/founders/documents/a2_2_2-3s43.html
The University of Chicago Press

The Papers of James Madison. Edited by William T. Hutchinson et al. Chicago and London: University of Chicago Press, 1962--77 (vols. 1--10); Charlottesville: University Press of Virginia, 1977--(vols. 11--).

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