The Documentary History of the First Federal Congress of the United States of America, 1789-1791

The Congressional Register

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Moved to take up the report of the committee appointed to consider and report the state of the unappropriated lands in the western territory, observing to the house that the treasury bill embraced the subject, and he wanted them to have the whole subject fairly before them, so as to connect them in a satisfactory manner.
Mr. BENSON wished the business of the western territory to lay over till the treasury bill was gone through.
Mr. SEDGWICK reminded gentlemen, that their attention had been called to the treasury business last, and it would be best to finish it before they went upon fresh matter.
Mr. SCOTT's motion being negatived, the house went into a committee of the whole on the treasury bill.
On motion of Mr. Vining, the following words were struck out, being part of the powers assigned to the secretary of the treasury, "to conduct the sale of the lands belonging to the United States, in such a manner as he shall be by law directed," and afterward these were inserted, "to execute such services respecting the sale of the lands of the United States, as may by law be required of him."
Gave notice that he meant to bring in a clause to be added to the bill to prevent any of the persons appointed to execute the offices created by this bill, from being directly or indirectly concerned in commerce, or in speculating in the public funds under a high penalty, and being deemed guilty of a high crime or misdemeanor.
Observed, that the committee had gone through the bill without making any provision repecting 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 analysing its properties, we shall easily discover that 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 the 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; and again it may be thought, on the other side, that some persons ought to be authorised 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 dependant 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 will be dependant upon the president, because he can be removed by him; he will be dependant upon the senate, because they must consent to his election for every term of years, and he will be dependant 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 dependance of this officer upon the government; but making him thus thoroughly dependant, 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 independant 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.
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 behaviour, as the gentleman proposed, for if it was intended to be held during a term of years, and then the officer to be re-appointed, 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.
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.
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 behaviour in as much as he was to be re-appointed at the expiration of the first term, and so on.
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.
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 independant, 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 monies 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 dependant 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.
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 officers, he thought they were well fixed now, if nothing more was done with the question. The judges hold theirs during good behaviour, 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 was not withdrawn.
Did not wish a decision on the subject, farther than gentlemen were prepared.
When I was up before, said he, I endeavoured to shew that the nature of this office differed from the others 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 shew 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— altho' he had an unquestionable right to do them if he was 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 those 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, tho' 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 government.
Surely the legislature, have the right to limit the salary of any officer; if they have this, and the power of establishing officers 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 as some seem to think. I did not bring it forward for immediate decision, I am very willing to let it lie over for farther consideration.