Thirty Years' View (Vol. I of 2). Benton Thomas Hart

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СКАЧАТЬ the members of the Senate and House of Representatives shall be ineligible to, and incapable of holding, any civil office under the authority of the United States, during the term for which they shall respectively be elected.'

      "By the North Carolina convention, the same amendment was recommended, in the same words.

      "In the first session of the first Congress, which was held under the constitution, a member of the House of Representatives submitted a similar proposition of amendment; and, in the third session of the eleventh Congress, James Madison being President, a like proposition was again submitted, and being referred to a committee of the House, was reported by them in the following words:

      "'No senator or representative shall be appointed to any civil office, place, or emolument, under the authority of the United States, untill the expiration of the presidential term in which such person shall have served as a senator or representative.'

      "Upon the question to adopt this resolution, the vote stood 71 yeas, 40 nays. – wanting but three votes of the constitutional number for referring it to the decision of the States.

      "Having thus shown, by a reference to the venerable evidence of our early history, that the principle of the amendment now under consideration, has had the support and approbation of the first friends of the constitution, the committee will now declare their own opinion in favor of its correctness, and expresses its belief that the ruling principle in the organization of the federal government demands its adoption."

      It is thus seen that in the formation of the constitution, and in the early ages of our government, there was great jealousy on this head – great fear of tampering between the President and the members – and great efforts made to keep each independent of the other. For the safety of the President, and that Congress should not have him in their power, he was made independent of them in point of salary. By a constitutional provision his compensation was neither to be diminished nor increased during the term for which he was elected; – not diminished, lest Congress should starve him into acquiescence in their views; – not increased, lest Congress should seduce him by tempting his cupidity with an augmented compensation. That provision secured the independence of the President; but the independence of the two Houses was still to be provided for; and that was imperfectly effected by two provisions – the first, prohibiting office holders under the federal government from taking a seat in either House; the second, by prohibiting their appointment to any civil office that might have been created, or its emoluments increased, during the term for which he should have been elected. These provisions were deemed by the authors of the federalist (No. 55) sufficient to protect the independence of Congress, and would have been, if still observed in their spirit, as well as in their letter, as was done by the earlier Presidents. A very strong instance of this observance was the case of Mr. Alexander Smythe, of Virginia, during the administration of President Monroe. Mr. Smythe had been a member of the House of Representatives, and in that capacity had voted for the establishment of a judicial district in Western Virginia, and by which the office of judge was created. His term of service had expired: he was proposed for the judgeship: the letter of the constitution permitted the appointment: but its spirit did not. Mr. Smythe was entirely fit for the place, and Mr. Monroe entirely willing to bestow it upon him. But he looked to the spirit of the act, and the mischief it was intended to prevent, as well as to its letter; and could see no difference between bestowing the appointment the day after, or the day before, the expiration of Mr. Smythe's term of service: and he refused to make the appointment. This was protecting the purity of legislation according to the intent of the constitution; but it has not always been so. A glaring case to the contrary occurred in the person of Mr. Thomas Butler King, under the presidency of Mr. Fillmore. Mr. King was elected a member of Congress for the term at which the office of collector of the customs at San Francisco had been created, and had resigned his place: but the resignation could not work an evasion of the constitution, nor affect the principle of its provision. He had been appointed in the recess of Congress, and sent to take the place before his two years had expired – and did take it; and that was against the words of the constitution. His nomination was not sent in until his term expired – the day after it expired – having been held back during the regular session; and was confirmed by the Senate. I had then ceased to be a member of the Senate, and know not whether any question was raised on the nomination; but if I had been, there should have been a question.

      But the constitutional limitation upon the appointment of members of Congress, even when executed beyond its letter and according to its spirit, as done by Mr. Monroe, is but a very small restraint upon their appointment, only applying to the few cases of new offices created, or of compensation increased, during the period of their membership. The whole class of regular vacancies remain open! All the vacancies which the President pleases to create, by an exercise of the removing power, are opened! and between these two sources of supply, the fund is ample for as large a commerce between members and the President – between subservient votes on one side, and executive appointments on the other – as any President, or any set of members, might choose to carry on. And here is to be noted a wide departure from the theory of the government on this point, and how differently it has worked from what its early friends and advocates expected. I limit myself now to Hamilton, Madison and Jay; and it is no narrow limit which includes three such men. Their names would have lived for ever in American history, among those of the wise and able founders of our government, without the crowning work of the "Essays" in behalf of the constitution which have been embodied under the name of "Federalist" – and which made that name so respectable before party assumed it. The defects of the constitution were not hidden from them in the depths of the admiration which they felt for its perfections; and these defects were noted, and as far as possible excused, in a work devoted to its just advocation. This point (of dangerous commerce between the executive and the legislative body) was obliged to be noticed – forced upon their notice by the jealous attacks of the "Anti-Federalists" – as the opponents of the constitution were called: and in the number 55 of their work, they excused, and diminished, this defect in these terms:

      "Sometimes we are told, that this fund of corruption (Executive appointments) is to be exhausted by the President in subduing the virtue of the Senate. Now, the fidelity of the other House is to be the victim. The improbability of such a mercenary and perfidious combination of the several members of the government, standing on as different foundations as republican principles will well admit, and at the same time accountable to the society over which they are placed, ought alone to quiet this apprehension. But, fortunately, the constitution has provided a still further safeguard. The members of the Congress are rendered ineligible to any civil offices that may be created, or of which the emoluments may be increased, during the term of their election. No offices, therefore, can be dealt out to the existing members, but such as may become vacant by ordinary casualties; and to suppose that these would be sufficient to purchase the guardians of the people, selected by the people themselves, is to renounce every rule by which events ought to be calculated, and to substitute an indiscriminate and unbounded jealousy, with which all reasoning must be vain."

      Such was their defence – the best which their great abilities, and ardent zeal, and patriotic devotion, could furnish. They could not deny the danger. To diminish its quantum, and to cover with a brilliant declamation the little that remained, was their resource. And, certainly if the working of the government had been according to their supposition, their defence would have been good, I have taken the liberty to mark in italics the ruling words contained in the quotation which I have made from their works – "ordinary casualties." And what were they? deaths, resignations, removals upon impeachment, and dismissions by the President and Senate. This, in fact, would constitute a very small amount of vacancies during the presidential term; and as new offices, and those of increased compensation, were excluded, the answer was undoubtedly good, and even justified the visible contempt with which the objection was repulsed. But what has been the fact? what has been the working of the government at this point? and how stands this narrow limitation of vacancies to "ordinary casualties?" In the first place, the main stay of the argument in the Federalist was knocked from under it at the outset of the government; and so knocked by a side-blow from construction. СКАЧАТЬ