Article 1, Section 6, Clause 2

Document 6

House of Representatives, Plurality of Offices

[28 Mar.]

The House resolved itself into a Committee of the Whole on the following resolutions submitted some time since by Mr. J. Randolph:

Resolved, That a contractor under the Government of the United States is an officer within the purview and meaning of the Constitution, and, as such, is incapable of holding a seat in this House.

Resolved, That the union of a plurality of offices in the person of a single individual, but more especially of the military with the civil authority, is repugnant to the spirit of the Constitution of the United States, and tends to the introducing of an arbitrary government.

Resolved, That provision ought to be made, by law, to render any officer, in the Army or Navy of the United States, incapable of holding any civil office under the United States.

The question was taken on these resolutions without debate.

The first was agreed to--ayes 54, noes 37.

The second was agreed to--ayes 75; and

The third was agreed to without a division.

When the Committee rose and reported their agreement to the resolutions.

The House immediately considered the report.

On concurring with the Committee of the Whole in their agreement to the first resolution,

Mr. Fisk said he sincerely regretted it was not in his power to vote for this resolution. He regretted there was no such principle in the Constitution as is prescribed. Such a principle not being in the Constitution, he did not conceive it in the power of the House to make the provision. It was not, in his opinion, in their power to say a man should not hold a seat in that House who was not prohibited by the Constitution. It was on this ground only he was against the resolution under consideration.

Mr. J. Randolph.--I think the gentleman from Vermont may in perfect consistence with the principle he has laid down, which I do not mean at present to contest, give [Volume 2, Page 358] his vote in favor of this resolution. He says that this House has not a right to make a disqualification which the Constitution itself does not attach to the tenure of a seat on this floor; that the Constitution draws a line between the qualification and disqualification of a member, and that this House has no right to alter them. What do we propose to do? To add a new disqualification? No; to do that which the Constitution put in our hands, which it not only authorizes but enjoins upon us. The Constitution declares that each House shall be the judge of the qualification of its members. It is clearly, then, the duty of the House to expound what is or is not a disqualification; and we are now only about to declare what is such a disqualification--merely to expound the Constitution on this head. I know some gentlemen are startled at the idea of expounding the Constitution. But do we not do this every day? Is not the passage of every act a declaration on the part of this House that a decision upon it is among their Constitutional powers? Or, in other words, is it not an exposition of the Constitution? So, in this instance, I will suppose a man returned to serve as a member of this House, and that he is declared, for some reason, to be disqualified from holding a seat. This, according to the gentleman, would be expounding the Constitution. We propose doing no more than saying, if the Secretary of State, or Chief Justice, should come here, they cannot hold a seat. We say that an abuse exists under the Constitution, and offer a remedy.

I have heard some quibbling about the meaning of the word "officer." What is the meaning of office? Agency; it is the office of a man's cook to dress his dinner, of a tailor to supply him with clothes; and it is the office of a contractor to fatten on the land--to acquire lordships, demesnes, baronies--extensive territory--by the advantage he derives from holding the public money, in virtue of his contract. But it is asked, if a contractor is an officer? and whether he can be impeached? because, under the Constitution, all civil officers are liable to impeachment. Would you impeach the Marshal of the District of Columbia? It may be answered that you may impeach him, but that you would not probably do so, because that would be breaking a butterfly on the wheel. Would you impeach a deputy postmaster? And yet when the postmaster at New York accepted his appointment, did he not vacate his seat in the Senate? There is no doubt a contractor is an officer pro tempore--it is not an office in perpetuity, but created for a time, and for a particular purpose. And I will ask, if it is not more dangerous to the independence of the two Houses to admit commissioners and contractors within their walls than officers with legal salaries and appointments? If we are to admit either, I say, give me the legal officer, with a determinate salary and definite powers, rather than the contractor who may gain thousands and tens of thousands of dollars by a single job. But, if the gentleman from Vermont is of opinion that a contractor is not an officer, under the Constitution, I hope he will join me in another vote, on an amendment which I shall beg leave to offer--this goes only to purge these walls, not those of the other House. I mean an amendment declaring void all contracts made with members of either House, and on this principle: Between the sessions of the Legislature it is possible for a member to receive a lucrative job, by which he may put thousands in his pocket, and, which being completed in the recess, and there being nobody to take cognizance of it, it will be impossible to apply a remedy. But, I hope this construction, which, so far as relates to our own House, we have an undoubted right to make, will obtain as the true construction of the Constitution.

But it is said that this House, and Houses which may hereafter meet, may give the Constitution a different construction. No doubt of it; and this may operate to the end of time. A former House passed a Sedition law; a subsequent House deemed the law unconstitutional. It is true they did not declare it so, and I am sorry for it; but there is no doubt of the fact. Now, we may pass a Sedition law again to-morrow, and the people rise up against it, and send different members to represent them. The people may again slumber; as long as you keep your hands from their pockets, they will keep their eyes from yours; and, in the same way, this law may be repealed. I can, therefore, see no force in this objection. The courts of justice undertake to expound the Constitution, and shall not the House of Representatives be as competent to do this as any court of justice? I will suppose a case, that of a man condemned under the Sedition law by a tribunal of justice. Suppose men of different principles come on the bench, would they hesitate to reverse the preceding decision of the court? Indisputably not. Here, too, then, we would behold varying and repugnant decisions.

Mr. Eppes.--I have no doubt that every objection which can be made to a member of this House holding a civil office during his continuance as a Representative applies with equal force to his holding a lucrative contract. The framers of the Constitution in excluding civil officers from the floor of this House, most certainly intended to prevent any species of dependence which might influence the conduct of the Representative--to prevent his looking up for preferment to the Executive, or being biassed in his vote by Executive favor. A lucrative contract creates the same species of dependence, and every objection which could be urged against an officer, applies with equal force against contractors, who are dependent on the Executive will, and particularly carriers of the mail. While, however, I make this admission, I do not believe we have power to pass this resolution. The words of the Constitution are: "No person holding an office under the United States shall be a member of either House during his continuance in office." These words are plain and clear. Their obvious intention was to have excluded officers and officers only. It would certainly have been equally wise to have excluded contractors, because the reason for excluding officers applies to them with equal force. We are not, however, to inquire what the Constitution ought to have been, but what it is. We cannot legislate on its spirit against the strict letter of the instrument. Our inquiry must be, is he an officer? If an officer, under the words of the Constitution, he is excluded; if not an officer, we cannot exclude him by law. It is true, as has been stated, that, by the Constitution, we are [Volume 2, Page 359] made the judges of the qualifications of our own members. This judgment, however, is confined within very narrow limits. The Constitution prescribes the qualifications of a member. We can neither narrow nor enlarge them by law. Our inquiry can go no further than this: has the Representative the qualifications prescribed by the Constitution? An extensive meaning has been given to the word "office." How far such a construction of the meaning of this word is warranted, I leave for others to decide. That all contractors are not officers, I am certain. A man, for instance, makes a contract with the Government to furnish supplies. He is certainly not an officer, according to the common and known acceptation of that word. He is, however, a contractor, and, under this resolution, excluded from a seat here. A carrier of the mail approaches very near an officer. The person takes an oath, is subject to penalties, the remission of which depend on the Executive. His duties are fixed and prescribed by law. Near, however, as this species of contract approaches to an office, I do not consider that the word "office" in the Constitution can include even this species of contract. I consider the word "office" in the Constitution ought to be construed according to the usual import and meaning of that term; and as I do conscientiously believe that the word "office" and the word "contract" cannot be tortured to mean the same thing, I shall vote against the resolution.

Mr. Alston.--While I am as much opposed as any man to see any holder of public money within these walls, I cannot justify myself in declaring what is or what is not the Constitution. If in any case this ought to be done, this surely should be the last. What is its effect? To deprive a member of his seat on the vote of a bare majority, when the Constitution has declared that "no seat shall be vacated but on the vote of two-thirds of the members." Let this House say so, and what becomes of a contractor, if any such there be within these walls? The decision of the House will be in violation of the Constitution. No man who knows me will imagine that I have any partiality for contractors holding seats within these walls. I have never held a contract, or received a cent of the public money but for my wages as a member of this House. I am, therefore, as disinterested as man can be on this point. If there is a contractor within the meaning of the Constitution, let him be pointed out. I am not certain how I shall vote upon such a proposition. But I will not declare beforehand a particular construction of the Constitution. If I believe the case comes within the Constitution, of which I am not certain, I will vote for clearing the House of such a member. But I will not consent to a majority declaring in this way what they cannot carry into effect. How can this be done? If you cannot get two-thirds of the members of this House to vacate the seat, I ask what becomes of the resolution declaratory of the meaning of the Constitution? But it is idle to pass a declaratory resolution unless it can be carried into effect. One thing I will say, if the mover will modify his resolution so as to impose a penalty on any officer who shall make a contract with a member of Congress, I will give it my consent. For I wish to see no man in these walls dependent on the Government. I still adhere to the principle which I set out with, when I entered into public life, for I became a member of the Legislature of the State which I have the honor to represent at the age of twenty-one; but there was no office in the gift of any Government which I would possess. This is a principle to which I strictly adhere, and I do not believe I have any relation on earth who holds an office, numerous as my relatives are.

Mr. J. Clay.--The gentleman says he is willing to vote for the expulsion of any member on this floor who holds public money.

Mr. Alston explained by observing that he had not absolutely said so.

Mr. J. Clay.--If this cannot be done under the Constitution, with what consistency can the gentleman vote for the measure he proposes, as, under the provision of the Constitution alluded to, we have no right to expel a member but for some offence committed by him? The judges of your courts as well as the State courts have assumed the right of expounding the Constitution, inasmuch as they are bound on oath to support it. Are we not bound by the same oath to support it? And have we not, by parity of reasoning, the same right to construe it? Are not gentlemen indeed, by their negative vote, giving the Constitution their own exposition? I have no doubt of our right to expound the Constitution. Let us take things as they are. What is an officer? A man holding a public charge or agency. What is an office? A public charge or agency. Is not a contract an agency? A man contracts to carry letters in the mail. Is not that an agency? So a man contracts as an agent of the Postmaster General to carry letters from Washington to Baltimore; is he not as much an officer as if he resided at Washington or Baltimore? The only difference is, that one is moving and the other stationary. Every officer under the Government is a contractor, inasmuch as he contracts to do certain things for a certain sum of money. I believe, likewise, the converse of the proposition is true, and that contractors are likewise officers.

Mr. Findley said, were this proposition proposed as an amendment to the Constitution, he should vote for it; but for reasons very different from those which had been assigned. He did not believe that every contractor was an officer under the Constitution, for if this was the case, every man who furnished the public with the least article of supply would be an officer--the miller who sold flour for the use of the army, as well as the stationer who supplied the House with paper and quills. Every man who sold anything to the Government must, in this light, be considered as an officer. Would gentleman be disposed to exclude all persons of this description from a seat in this House? Great weight had been attached to that clause in the Constitution which made the two Houses judges of the qualifications of their members; but it was a sufficient answer to this argument to observe, that though the Constitution gives the two Houses the power of judging of the qualifications of their members, it does not give them the power to make those qualifications. He agreed that it was discretionary with each House to expel a member, but then the act could only be effected by a vote of two-thirds of the members. He had always understood, and believed [Volume 2, Page 360] it to be correct, that it was an essential attribute of office for a man to possess some power, to be exercised on behalf of the Government. Now a mere contractor receives no such power; he only enters into an engagement to perform certain specified duties.

Mr. J. Randolph desired that part of the Constitution to be read, which authorizes the expulsion of a member, by which, he said, it would appear that such expulsion could only be made for disorderly behaviour.

The Clerk read the article as follows:

"Each House may determine the rules of its proceedings; punish its members for disorderly behaviour, and, with the concurrence of two-thirds, expel a member."

Mr. G. W. Campbell said he would assign the reasons, on account of which he could not give his vote in favor of the resolution under consideration. It proposed to decide what shall, and what shall not be the true construction of the Constitution as to the term office. He was of opinion that it was not competent for that House to put a construction upon the Constitution, except in a particular case under their consideration; and that they could then and then only act upon it. If there were any gentlemen upon the floor of the House who were contractors, and a motion should be made to expel them, he would then be ready to give his vote upon such a motion; but he was not prepared to give a general construction to the Constitution as to the existence of any such case. With regard to the case under consideration, he was not prepared to say whether a contractor was an officer within the meaning of the Constitution. The Constitution declared that no Senator or Representative should be appointed to an office: when, therefore, they were inquiring what constituted an office under the Constitution, it was necessary that they should refer to the Constitution itself, to determine the meaning of the word office. It declares, in the third section of the second article, that the President shall commission all the officers of the United States. I am not prepared, said Mr. C., to say that a man is an officer who is not so commissioned under the Constitution. It appears to me that a person must have a commission before he can be considered an officer under the Constitution. Mr. C. said he was clearly of opinion that it would be advisable to make a provision to remedy the evil, and he would cheerfully agree to any measure which would have this effect, as he did consider it extremely indecorous for any man holding a contract and the money of the public to participate in the making of laws for its application.

Mr. R. Nelson said he was sorry that he could not on this occasion, consistent with the oath he had taken to support the Constitution, advocate the resolution under consideration. He agreed that it was highly improper for contractors to hold seats in that House, as there were many cases in which they could not give a free and impartial vote; but in his opinion there was no power to exclude members from a seat, unless that power was contained in the Constitution. He said he would give his idea of the spirit and meaning of the Constitution on this point. They were bound by its letter--where the letter and the words of it were plain, they were bound strictly to adhere to them; where, from the wording, the meaning was doubtful, or difficult, every member was bound to put that construction which his judgment dictated. But where there was no difficulty, where the words were plain and obvious, he would ever raise his hands against what was called the spirit of the Constitution, or, in other words, giving it a meaning which the words would not bear. If this power existed in the Constitution, it must be found under that section, which declares, that "No Senator or Representative shall, during the time for which he was elected, be appointed to any civil office under the authority of the United States, which shall have been created, or the emoluments of which shall have been increased, during such time; and no person holding any office under the United States shall be a member of either House, during his continuance in office." The question then comes to the single point: Is a contractor an officer under the Constitution? If he is, there is no doubt he may be excluded from a seat in this House; but if he is not, he cannot be excluded. What then is the idea of an officer under the Constitution? It either must be recognised by the Constitution, or some law passed in conformity to it, for no man under the Government has a right without law to create as many offices as he pleases. The Postmaster General has a right to contract for carrying the mail; he may employ for this purpose fifty, five hundred, or five thousand men. Will anybody thence contend that the Postmaster General has the right of creating five thousand offices? Our Constitution has been justly extolled as the freest in the world, and as the best calculated to promote the happiness and security of the people. It has been called free in contradistinction to those despotic governments, where all the offices are held up to sale. Is not this the case with contracts? Are they not uniformly given to the lowest bidder? What government of principle then is this, which proposes to put a construction upon the Constitution, by which offices under the Government shall be thus exposed to sale? But are they in truth officers of the United States, recognised either by the Constitution or laws? No, they are not officers of the United States, they are mere hirelings of the Postmaster General; he has not the power of setting up the Constitution to the highest bidder. If so, it is no longer a free Constitution; it does not deserve the eulogiums which have been so justly passed upon it.

Mr. Early.--I would not rise to trouble you were not the yeas and nays to be recorded on this question. I am as fully sensible as the honorable mover of the resolution, or any other gentleman on this floor, of the extreme impropriety, to say the least of it, of persons remaining members of this House who hold a contract under the Government to which any emolument is attached. With him and them I believe, that of all descriptions of appointment, this is the most improper to be blended, where the emoluments are not fixed by law, but rise or fall with circumstances. I am therefore as willing as any person can be to adopt any measure to effect a remedy of this evil, which we possess the Constitutional right of doing. My difficulty on this subject is not the same with that presented to the minds of [Volume 2, Page 361] some gentlemen, that we are not authorized to pass a resolution putting a construction upon the Constitution. On this subject, by the Constitution we are made judges of the qualifications of the members of this House. If so, we are necessarily judges of their disqualification also. One power implies the other. I therefore have no difficulty on this score. The simple question is, in my mind, whether a contractor is an officer under the Constitution? My own opinion is decidedly in the negative--an opinion formed after the most mature reflection. I can appeal to you, sir, that I have sought after truth on this subject with industry; and I can appeal to other members to attest my having contemplated early in the session the offering a resolution as the foundation of a law, to give effect to the object of the gentleman from Virginia to declare void any contract made by any officer under this Government with any member of either House. So far I am prepared to go, if any member shall introduce such a proposition. The passage of such a law will remove the inconvenience which might arise from interfering decisions made in this House at different times, and will prevent the existence of a different rule in the two branches of the Legislature.

Mr. Smilie said he heartily concurred in opinion with those gentlemen who considered an union of a contract with a seat on this floor as highly improper. But that was not the question under consideration. It was simply, how far they were authorized by the Constitution to take the course now recommended. Every man attending to that Constitution, would see that it had two great objects in view. One was to promote the interests of the community: the other to protect the rights of individuals. But these duties were equally sacred. Was it then proper, in maintaining the one, to sacrifice the other? To avoid Scylla but strike on Charybdis? He wished to God the Constitution had excluded contractors; but as it had given them a right in common with the citizens of the United States to a seat on that floor in case they were elected, he could not in conscience do anything which would take away those rights. It did not belong to that House, previous to the existence of a particular case, to make a general declaration. When a particular case was brought forward it would be time enough to take the subject under consideration.

Mr. Bidwell said, before he gave his vote, he would concisely state the reasons which would influence him in giving it. This was not a mere question of policy, but a question that implicated the Constitution. It was their duty to decide, not what the Constitution ought to be, but what it was. However it might or might not conform to their abstract idea, they were nevertheless bound by it. The resolution says a contractor is an officer within the meaning of the Constitution. In elucidating this point, the Constitution must be our guide. The clause of the Constitution relied upon is, that "no person holding any office under the United States, shall be a member of either House during his continuance in office." To say that a contractor is an officer is giving a new signification to the words contractor or officer. He considered both words to be as well understood, and to have as definite meanings as any other words in the English language. There is a Constitutional definition of the word officer in the third section of the second article of the Constitution, which provides that the President "shall commission all the officers of the United States." Here then is a Constitutional definition of what is meant by a person holding an office, viz: a person commissioned by the President. A contractor does not necessarily or even generally hold such a commission. By deciding that a contractor is an officer, it will be decided that no contractor could be appointed without being commissioned by the President. This would be extending the doctrine a length to which it had never been carried. Further, it is provided, that the President, Vice President, and other officers of the Government, shall take an oath to support the Constitution of the United States. Is there any such requisition, or has it been usual to require such an oath from contractors? Under this view of the subject, and conceiving himself bound by the oath which he had taken to support the Constitution, he could not in conscience agree to the resolution, whatever evils it might have for its object to cure.

Mr. Rhea (of Tennessee) said this was an abstract question, in the affirmative of which he was not prepared to vote. There were abstract reasons which induced him to vote against the resolution. He said he was averse to assume from the Constitution of the United States, what was not expressly declared therein.

He was not willing to go on, by a principle of construction, until the Constitution of the United States was made anything or nothing. There was a day when the principle of construction was reprobated, and now, having a seat in this honorable House, he was not willing to revive that principle. He said he was determined to vote against the resolution.

Mr. J. Randolph admitted that this might be, as he was convinced it was with many gentlemen, and hoped it was with all, a question admitting of a fair difference of opinion. It was a question that respected the construction of the Constitution of the United States. The point in issue, whether a contractor is or is not an officer of the United States, had been set aside by being begged. Gentlemen argue as if it was proposed to add a new qualification to holding a seat on this floor, when in truth, no such question existed; the only question was, whether there was an existing disqualification. While I am up, said Mr. R., permit me to say the gentleman from Maryland has, with a peculiar infelicity, abandoned the ground which he had first taken. He says that a contract cannot be an office, because the former are put up to sale; and because no man, under the Constitution, can possess the power of creating an indefinite number of offices. And yet, how are those men who carry the mail or discharge the duties of postmasters appointed, but on the mere dictum of the Postmaster General? And how are foreign Ministers appointed? They are not appointed by law. The President nominates as many as he pleases, and is only limited by the money at his disposal. As to the offices under the Postmaster General, as has been alleged, being let to the lowest bidder, I believe it would be difficult to establish the allegation. I understand that that is not the principle on which they have been let out. We are told that a contract is nothing but a bargain. It certainly is a bargain. But suppose [Volume 2, Page 362] the office of Postmaster General, as that seems in this debate to have engaged so much of the attention of gentlemen, should be let to the lowest bidder; would the person that discharged those duties be less an officer of the United States? There is one office which I believe is always let to the lowest bidder--a common executioner. Who is he? The deputy of the sheriff: and quo ad hoc, he is as much an officer as the superior who employs him.

What do we propose to do? To give a construction to the Constitution which is to operate on our House only, and which is not to govern the other House. They are as much the judges of the qualifications of their own members, as we are of the qualifications of ours. And although the gentleman from Georgia is unwilling a different principle should obtain in the two Houses; and although I should be glad that a proper principle should be applied to both, and should, therefore, be willing that such a principle should be fixed by law; I am not, therefore, for abandoning that, which we have an indisputable right to do, a right to judge of the qualifications of our own members, in hope of obtaining that which we may never accomplish. But let me ask those gentlemen who profess themselves willing to aid us in framing a law upon this subject, how, on their own principle, a law can be framed to do that by law which cannot, as they say, be done under the Constitution? If the Constitution does not authorize such a step, much less will it be authorized by our laws.

Mr. Elmer said it was perfectly clear to him, that the members of that House were not at liberty to vote for the resolution under consideration. Both common sense and the Constitution forbade considering a contract in the light of an office, and he had never before heard it contended that they were equivalent terms. He would cordially give his vote for any law which could be constitutionally passed, to get rid of speculation and corruption of any sort, but the oath which he had taken to support the Constitution limited his power, which he could not transcend.

Mr. Kelly said he would concisely assign the reasons which would induce him to vote against the resolution. He did not believe an officer and a contractor meant the same things. With regard to the contractors holding a seat on that floor, it might happen that a man might be a contractor without being in the least disqualified from impartially discharging all the duties of a member, as the contract which he formed might be more for the good of others than his own benefit. He, however, allowed that where a person held a seat, and made use of the power it gave him to make a contract, he was highly censurable. Still he was of opinion that it was not in the power of the House to declare the two appointments incompatible, unless the Constitution expressly authorized them. In examining the Constitution he found no such provision. Though it had been attempted to be shown that a contractor and an officer were one and the same, he believed they were very distinct things. A contractor receives no authority from Government; his contract was derived from an officer, and all the power he possessed was derived from him, who was only amenable for the performance of the duty to the person who appointed him. A contractor could not, therefore, be considered as an officer under the Constitution, amenable to the United States.

Several allusions, said Mr. K., have been made to cases which have occurred under the Postmaster General, but until these shall be particularly pointed out, it will be impossible for us to decide how we are to act. I believe that it does not become this House to pass declaratory acts relative to the Constitution. It ought, in my opinion to stand on its own footing; and every case that is presented ought to be decided, not by a declaratory act, but by the Constitution itself. My colleague says that the judges of the federal as well as State courts take an oath as well as we do, to support the Constitution; and that, notwithstanding they are in the daily habit of construing the Constitution. But there is a wide difference between their deciding particular cases which properly come before them, and this House going into a general declaration without any such particular case. Would the judges undertake to declare the meaning of the Constitution without the existence of a particular case calling for their decision? So that the very thing which the House is about doing, has been invariably avoided by the judges.

Mr. Dawson observed that when the resolution was offered, he had voted for it, because he approved the principle on which it was founded. He should now be obliged to vote against it, because it tended to curtail the privileges of the House. If a contractor had constitutionally no right to a seat in the House, the proper way was to take up the case and act directly upon it. He believed that such a case did exist, and he was ready to say if there were any members who received money from the public, they ought not to hold a seat on that floor.

The question was then taken by yeas and nays on agreeing to the resolution--yeas 25, nays 86.

[1 Apr.]

On motion of Mr. John Randolph, the House took up the report of the Committee of the Whole on sundry resolutions agreed to by them on the 28th ultimo. When the question was put on concurring in the report of the Committee of the Whole in their agreement to the second resolution, as follows:

2d. Resolved--That the union of a plurality of offices in the person of a single individual, but more especially of the military with the civil authority, is repugnant to the spirit of the Constitution of the United States, and tends to the introducing of an arbitrary Government.

Mr. Bidwell said, he would very concisely assign his reasons for voting against this resolution. It declares that "the union of a plurality of offices in the person of a single individual, but more especially of the military with the civil authority, is repugnant to the spirit of the Constitution of the United States, and tends to the introducing of an arbitrary Government." It appeared to him that this was not a correct declaration. If the Constitution itself be referred to, it will appear that it recognises an union of civil and [Volume 2, Page 363] military officers in the same person. Such an union is to be found in the First Magistrate of the United States, who exercises the highest Executive civil functions, and is at the same time Commander-in-Chief of the Army and Navy, and of the militia while in actual service. The same principle pervaded the Constitution, he believed, of every State. There was also an union of civil and military authority in several offices, by acts of Congress. This was the case with the marshals in certain cases, and officers who are charged with the superintendence of Territorial affairs. If it were proper, said Mr. B., as I do not think it is, by a vote of this House, to undertake to define the Constitution, it still appears to me that we cannot consistently say that the union of a plurality of offices in the person of a single individual, but more especially of the military with the civil authority, is repugnant to the spirit of the Constitution of the United States. A declaration of that kind would be a vote of censure on the people of the whole United States, for having adopted the Federal Constitution, on the people of the several States, for having adopted their constitutions, and on the Legislatures under both Governments, for having passed laws which authorized such an union.

Mr. J. Clay said, the objections of the gentleman arose from not having properly considered the nature of the union of civil and military office in the First Magistrate. By the Constitution, the military was placed in strict subordination to the civil power. For this reason the President of the United States had placed under his control all the officers of the Army and Navy. The union contemplated in the resolution before you, said Mr. C., is that which gives the actual discharge of civil powers to an officer who has actual command of your army. I ask if it was ever in the contemplation of the Constitution, that the President should in person head your armies and command your fleets? I believe not. There exists in one of the Territories such an union as is contemplated in the resolution. In Louisiana a person holding the office of Governor, is at the same time Commander-in-Chief of the Army of the United States, in virtue of his appointment of Brigadier General. Will any man pretend to say that an union of offices, such as these, the discharge of whose duties is incompatible, is such an union as is contemplated in the Constitution? No; the union in the Constitution was only intended to give the President a control over the Army and Navy; while this resolution contemplates the positive and actual union of powers in the same person, powers, which at the same time he may be called upon to exercise at different and distant places. To separate these powers is the object of the resolution. I hope the resolution will be agreed to, and the separation take place.

Mr. Smilie said he did not know that he should have any objection to the third resolution, although he had not made up his mind upon it. But with regard to the resolution under consideration, he could not agree to it. He did not know that there was a right in that House to declare what the Constitution was. The Constitution must speak for itself, and they had no right to supply any deficiency in it. When a particular case occurred they might construe it, but he never heard of an instance where a Legislative body put a construction upon it without the existence of a particular case; nor did he believe they possessed such a power. The resolution declared an union of a plurality of offices in the same person repugnant to the spirit of the Constitution. He did not know where to find that spirit but in the letter of the Constitution. He had looked it carefully over, and had not been able to find a single expression that warranted such an inference. He called on gentlemen to point their finger to a single section of it that justified the inference. If at this rate they continued to supply its defects, he did not know where the thing would end. He himself thought the instrument very defective, yet he never thought himself at liberty to remedy the defects but in the way pointed out in the Constitution. If examined it would be found, as it originally stood, to be extremely defective. In providing for the powers of the Government it had almost entirely overlooked the rights of individuals. These defects excited great objection to the instrument. They were, however, supplied by the first Congress, and gentlemen would find that almost all the amendments which have been incorporated into it, go to secure the rights of individuals. Though these amendments constitute what might be called the marrow of the Constitution, Mr. S. said, he should not have considered himself authorized, if they had not taken place, to remedy the evil in any other than a Constitutional way. But he did not deny that it was a defect in the Constitution, that the military and civil authorities were not kept separate. But the simple question was, had they a right under the Constitution to separate them? He thought not. In every point of view, he said, in which he contemplated the resolution, he thought it one of the most dangerous attacks on the Constitution he had ever heard of.

Mr. J. Randolph.--My friend from Pennsylvania has left me little to say on the question, and indeed I have heard nothing in the shape of argument, or assertion, but what I was prepared to hear, and of which I apprized the House some time ago. It has come out at last from the lips of a man who has prided himself upon being the champion of the Constitution of the United States to-day, although but a few days ago he threatened us with a dissolution of the Union, that the Constitution has no spirit in it. He calls on any man to lay his finger on that spirit. What does the Constitution of the United States say? Does it not guarantee to each State a Republican form of Government? Is there no spirit in this? Is not the Constitution then devised under the influence of a Republican spirit, for the benefit of the people who are governed by it, and not for the exclusive benefit of those who administer it? Will any man pretend to say that a Republic is anything or nothing? And that it is congenial to such a Government that the civil and military authority should be vested in the same hands? Is it not of the very essence of such a Government that the military should be kept in strict subordination to the civil power? And have not your laws, which give to marshals in certain cases a power over the military, been passed to keep the military under such subjection? How is the military to be kept in such subjection, when, [Volume 2, Page 364] according to the usage of the Romans, the leader of an army is the Governor of a province? If the Constitution has no spirit in it, it is a dead, lifeless thing, not worth the protection of any man of sense. But I am happy that it has a spirit, which I trust will save this nation, even if its letter shall be killed.

But we are told that this is a declaratory resolution. Gentlemen may call it a declaratory resolution, or a preamble to the third resolution, whichever they may see fit, but it is the reasoning on which the third resolution is founded. What is it but a declaration on the part of this House, which they have a right to make, that a certain principle is salutary, because it is consonant with the spirit of the Constitution? Is it not agreeable to the spirit of the Constitution that the three great Departments of the Government, Executive, Legislative, and Judicial, should be kept separate and distinct? Is there a man fool-hardy enough to deny the proposition? I believe not. Now, suppose we were about to devise a form of Government for New Orleans and Louisiana, and a member should propose to concentre all the powers of the Government in one and the same body, and a resolution should be laid on the table declaring that whereas an union of Executive, Legislative, and Judicial powers in the same body is repugnant to the spirit of the Constitution, and should go on in the shape of a resolution to apply the remedy--and some man should make the wonderful discovery that the Senate of the United States are constitutionally participators of the Executive power of the Government, and that in case of impeachment they have also Judicial powers, and infer from this that such an union was consonant with the spirit of the Constitution--would not this be a satire on the Constitution as well as those who adopt it?

Suppose all offices in the gift of the Executive Government were united in one man. I do not see, if this is consonant to the spirit of the Constitution, and a man is properly qualified, why he may not unite in himself the powers of all the Departments. The Secretary of War may, on the same principle, be Commander-in-Chief of the Army. No,--it is not because this resolution is a satire upon the people who framed or adopted the Constitution, but because it is a satire, a reproof of which the times call for, that gentlemen are so extremely tender relative to it; and the question now is, whether the House ought, in tenderness to any man, to flinch from the exercise of their Constitutional powers. What would I have said seven years ago to any man who should have told me that the gentleman from Pennsylvania would have been found in opposition to this measure--who should have predicted that the rugged patriot of those days should be softened by Court favor into so accomplished a courtier? It shows that what cannot be done by force or violence, may be by influence. This question may be put into a short compass. It is, whether the Constitution of the United States is a republican Constitution, devised and adopted for the benefit of the people it governs, or a piece of mechanism, to be tortured and twisted in the hands in which chance may throw it, for the benefit of a temporary incumbent. If the case has come to this, that the Chief Justice may be made Commander-in-Chief of the Armies, without the Constitution being violated, it is time the nation should know their situation.

Mr. Sloan said he had examined the resolution, and would cordially give his assent to the principle contained in it, provided it were brought forward in the form of an amendment to the Constitution. He thought, with his friend from Pennsylvania, that, as it stood, it was a dangerous attack upon the Constitution. He therefore trusted it would be rejected, and that every similar attempt would be treated in the same manner.

Mr. Quincy said he would merely observe, that, though it were true that an union of civil and military offices in the same person was repugnant to the spirit of the Constitution, it was not true that an union of different offices in the same person was repugnant to it. They had to-day united two offices in the same person, in the bill relative to the Territory of Michigan. They had heretofore constituted several of the officers of the Government Commissioners of the Sinking Fund. He could see nothing in the Constitution which interfered with a plurality of offices, which in many instances was attended with great practical benefit. As there was therefore in the Constitution nothing explicit against this union, he could not vote for the resolution.

Mr. Gregg said, he believed it was contrary to the spirit of the Constitution, that civil and military offices should be united in the same person; but, he would ask what benefit would result from such a declaration? The power of appointing to office was vested in the President and Senate, who were sworn to support the Constitution. They were, therefore, the judges of the powers with which they were invested. In the exercise of this power, they have actually declared that they do possess it. What does this resolution amount to? If they undertook to declare the President guilty of such a flagrant act as involved a violation of the Constitution, it was their business to impeach him. Mr. G. said, as he could see no good likely to arise from this resolution, he should not vote for it. The practice it referred to was not new, though he had always thought it wrong. He recollected, that, some years since, the Governor of the Northwestern Territory was likewise Superintendent of Indian Affairs and Commander-in-Chief of the Army, for all which appointments he drew pay, though no notice had been taken of it. Other instances of the same kind might be pointed out. He did believe this union was contrary to the spirit of the Constitution--to the true spirit of a republican Government--and if the gentleman from Virginia would bring forward an amendment to the Constitution to prohibit such an union, he would vote for it.

Mr. Findley said he did not understand the language of the spirit of the Constitution. Spirit was altogether an immaterial thing--it was only when connected with the body that they could see it--and with regard to the Constitution, it could only be seen through its letter. How long is it, said Mr. F., since the gentleman from Virginia and myself agreed to unite in the same body both civil, military, and judicial powers? We did so, in forming the first government for the Territory of Orleans. Mr. F. said he was against all such declaratory resolutions. They did not bind Congress, the President, or even the next House of [Volume 2, Page 365] Representatives. They only contained an expression of opinions where there was no authority. They were sent here to pass laws, and not to make declarations relative to the Constitution.

Mr. Rhea, of Tennessee, said he considered the Constitution as a sacred deposit placed in their hands, and not capable of alteration, except in the way fixed by itself. Every resolution similar to that under consideration operated as an amendment to it, which went to torture and twist it out of its proper shape. He should, therefore, not only vote against this resolution, but against every resolution which appeared to him to have a similar effect.

Mr. J. Randolph.--Six years ago, there could not have been a doubt of the right of this House to pass this resolution--now, the right is disputed. Have we not a right to pass a resolution referring to the Constitution, in order to bring in a law grounded on it? Do we not do this every day? One word as to the appointment of General Wilkinson. Gentlemen are fond of sheltering themselves behind great names. I have no hesitation in saying I think the Executive was wrong in making that appointment. I have no hesitation in saying so here, though gentlemen who join me out of doors are reluctant to make the same declaration on this floor. I do not think, however, the persons who made the appointment as reprehensible as the persons at whose importunate solicitation it was made. I believe that a man of good sense, and of upright intentions, may be induced to do that which his own judgment will afterwards condemn. It is well known, that the antechambers of our great men were crowded with applicants for offices in Louisiana. I have understood that for every office there were at least one hundred and fifty applications. Thus much for the idea which has been thrown out of the existence of a scarcity of characters to supply these offices.

But we are told that we ourselves have done as bad as this, in establishing the temporary government of Louisiana. If gentlemen bring me many more precedents on this subject, I shall be compelled to say that purchase was the greatest curse that ever befell us. What! Shall a temporary system, formed on an emergency, when it was necessary to do something to take the country into our hands, be compared to a deliberate and systematic procedure?

But there is another reason alleged for uniting a plurality of offices in one person, and that is the lowness of salaries. I do not know any spectacle more disgusting to a man of unsophisticated feelings, than that of men hunting, with all the avidity of terriers, after appointments, and the next moment complaining that the salaries attached to their places are too low. Before they get the office they have no objection to the salary, but the moment they are on the saddle, they discover that they have sacrificed their talents to the public good. This is the cant of the whole tribe--the slang of those men whose last object is to live on their own honest exertions, and who are therefore for making a job of Government.

One observation has been made, which shows that the meaning of this resolution has not been properly understood, which relates to the Commissioners of the Sinking Fund. But the Commissioners of the Sinking Fund are not, strictly speaking, officers. The duties they discharge are ex officio, in virtue of their holding other high offices, and, as Commissioners, they receive no salary. I will go further, and state that this resolution does not contain any veto on the union of small offices, such as those in the custom-houses, where the compensation attached to each appointment is too small to support the officer, and the duties too inconsiderable to occupy his time; in consequence of which, several small appointments are united in one man, on the true principles of economy. No; this resolution is intended for great cases, such as that which has been alluded to. I believe that the person who made that appointment is himself conscious that it was wrong, and that, so far from entertaining the feelings which gentlemen have imagined, he will feel a sentiment of respect for this House, should they pass it.

Mr. Varnum considered the resolution as going too far, and said it was a very common thing for two offices to be united in one man. It had been usual to unite the diplomatic character with the military command in our intercourse with the Indians, and a diplomatic character had likewise been given to our naval commander in the Mediterranean. Instances of a plurality of offices in one person were very numerous. If there existed, at present, any case, in which such an union was incompatible with the discharge of official duties, he hoped it would be pointed out; whether there was or was not, he could not say. But where did the responsibility for such appointments lie? Not that House, but the other branch of the Legislature was responsible; for the correct discharge of whose duties they were accountable to the people. Where, then, was the propriety of an interference by the House? If the President made an appointment against the spirit of the Constitution, the people would know it. Was it presumable that if a law was to pass this House, predicated on the resolution under consideration, the other branch of the Legislature would agree to it, after having sanctioned the appointments at which it is levelled? Was this House to sit as a court of censure? The Constitution did not delegate such a power. Our very laws, in various cases, direct the union of office prescribed by the resolution. Ought we not, then, in the first place, to repeal those laws before we pass a resolution in direct hostility to them?

Mr. V. said, he had no hesitation to observe, that the military and civil office should, in general, be kept distinct; but he believed there were cases where it was necessary. He was perfectly willing to leave the responsibility where the Constitution had placed it--in the hands of the President and Senate. With regard to the union of the military office in the cases alluded to, he would not undertake to say whether it was proper or not. He could readily, however, conceive, that the union arose from the most correct motive, as the country was a frontier, which might be menaced with danger, and which might require the united exercise of the military and civil authority to repel it.

Mr. J. Clay said, he would ask whether the ordinary union of military and civil powers in the Governors of the Territories was such as that contemplated in the resolution? The case of the Governor of Louisiana had been alluded to, where the same person, he believed, received the pay of Governor and Brigadier. Is that the case with the [Volume 2, Page 366] other Governors? He believed gentlemen would not say that it was necessary that the Governor of New Orleans should be a brigadier general in the army; and yet they allowed that to be the most vulnerable point on the frontier. If, then, they say that the union is necessary in one case, they will admit that it ought to be in the other. When the marshal executes the petty military authority with which he is invested, does he receive additional pay? Does the Governor of a State, being commander of the militia, bear any relation to the Governor of Louisiana, holding a high rank in the standing army? Suppose the southern frontier should be invaded, and it should be necessary to call out the army to defend it, where would be the compatibility of these two appointments? The same individual might be called at one and the same time to St. Louis and St. Mary's. He would ask whether it was compatible with the spirit of the Constitution for a man to enjoy a sinecure? and whether one of these offices was not a sinecure, when the discharge of its duties was inconsistent with that of the other?

Mr. Leib said that, viewing the resolution as an abstract proposition, he had no objection to giving it his support; but if was intended as a side attack upon the Administration, he was not prepared to vote for it. Before he was prepared to act on it under this view, he wished for facts which were not before the House. He, therefore, moved a postponement of the resolution till Monday.

The motion to postpone was lost.

The question was then taken on agreeing to the resolution, and decided in the negative--yeas 31, nays 81.

The Founders' Constitution
Volume 2, Article 1, Section 6, Clause 2, Document 6
http://press-pubs.uchicago.edu/founders/documents/a1_6_2s6.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.