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

An inquiry into the expediency of amending the constitution so as to prevent the appointment of any member of Congress to any federal office of trust or profit, during the period for which he was elected, was moved at the session 1825-26, by Mr. Senator Thomas W. Cobb, of Georgia; and his motion was committed to the consideration of the same select committee to which had been referred the inquiries into the expediency of reducing executive patronage, and amending the constitution in relation to the election of President and Vice-President. The motion as submitted only applied to the term for which the senator or representative was elected – only carried the exclusion to the end of his constitutional term; but the committee were of opinion that such appointments were injurious to the independence of Congress and to the purity of legislation; and believed that the limitation on the eligibility of members should be more comprehensive than the one proposed, and should extend to the President's term under whom the member served as well as to his own – so as to cut off the possibility for a member to receive an appointment from the President to whom he might have lent a subservient vote: and the committee directed their chairman (Mr. Benton) to report accordingly. This was done; and a report was made, chiefly founded upon the proceedings of the federal convention which framed the constitution, and the proceedings of the conventions of the States which adopted it – showing that the total exclusion of members of Congress from all federal appointments was actually adopted in the convention on a full vote, and struck out in the absence of some members; and afterwards modified so as to leave an inadequate, and easily evaded clause in the constitution in place of the full remedy which had been at first provided. It also showed that conventions of several of the States, and some of the earlier Congresses, endeavored to obtain amendments to the constitution to cut off members of Congress entirely from executive patronage. Some extracts from that report are here given to show the sense of the early friends of the constitution on this important point. Thus:

"That, having had recourse to the history of the times in which the constitution was formed, the committee find that the proposition now referred to them, had engaged the deliberations of the federal convention which framed the constitution, and of several of the State conventions which ratified it.

"In an early stage of the session of the federal convention, it was resolved, as follows:

"'Article 6, section 9. The members of each House (of Congress) shall be ineligible to, and incapable of holding, any office under the authority of the United States, during the time for which they shall respectively be elected; and the members of the Senate shall be ineligible to, and incapable of holding any such office for one year afterwards.'

"It further appears from the journal, that this clause, in the first draft of the constitution, was adopted with great unanimity; and that afterwards, in the concluding days of the session, it was altered, and its intention defeated, by a majority of a single vote, in the absence of one of the States by which it had been supported.

"Following the constitution into the State conventions which ratified it, and the committee find, that, in the New-York convention, it was recommended, as follows:

"'That no senator or representative shall, during the time for which he was elected, be appointed to any office under the authority of the United States.

"By the Virginia convention, as follows:

"'That 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.