The Cantankerous Mr. Maclay

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In a debate lasting intermittently over several months on the executive powers of the Presidency, Maclay developed the thesis at length that the Senate had the power to check and regulate the proceedings of the President. “The approbation of the Senate,” he said, “was certainly meant to guard against the mistakes of the President in his appointments to office.” It shared the right with the President to remove principal officers of the government. The depriving power should be the same as the appointing power. But was this a point left at large by the Constitution? Certainly otherwise. Five or six times in our short Constitution is the trial by impeachment mentioned. … No part of the Constitution is so fully guarded as or more clearly expressed than this part of it. And most justly, too, for every good Government guards the reputation of her citizens as well as their life and property. Every turning out of office is attended with reproach, and the person so turned out is stigmatized with infamy. By means of impeachment a fair hearing and trial are secured to the party.

Oliver Ellsworth rose to declare that removal of principal officers lay entirely with the President. He carefully avoided the subject of impeachment. He absolutely used the following expressions with regard to the President: “ It is a sacrilege to touch a hair of his head, and we may as well lay the President’s head on the block and strike it off with one blow. ” … Mr. Lee rose. He spoke long and pointedly against the clause. He repeated many of my arguments, but always was polite enough to acknowledge the mention I had made of them.

In an informal discussion held before a later session took up, Adams and Ellsworth argued that “the President, personally, was not subject to any process whatever; could have no action whatever brought against him; was above the power of all judges, justices, etc. For what, said they, would you put it in the power of a common justice to exercise any authority over him and stop the whole machine of Government? I said that, although President, he is not above the laws. Both of them declared you could only impeach him, and no other process whatever lay against him.” I put the case: “Suppose the President committed murder in the street. Impeach him? But you can only remove him from office on impeachment. Why, when he is no longer President you can indict him. But in the meantime he runs away. But I will put up another case. Suppose he continues his murders daily, and neither House is sitting to impeach him. Oh, the people would rise and restrain him. Very well, you will allow the mob to do what legal justice must abstain from.” Mr. Adams said I was arguing from cases nearly impossible.

Maclay lamented that by opposing “glaring folly and the basest selfishness in almost every public transaction” he was sacrificing his “every chance of being popular and every grain of [his] influence in the Senate.” He felt that he had raised a host of enemies about him, “with calumny and detraction in every corner.” He had been of little service and had “sacrificed both health and domestic happiness at the shrine of [his] country.” He concluded therefore that it would be as “absurd for me to wish a continuance in Congress as to desire to walk among briers and thorns rather than on the beaten road. … I will go to meet nature, love, affection, and sincerity in the embrace of my wife and dear children.”

The First Congress left New York in July, 1790, and on December i began its third and final session in Philadelphia, from which the Continental Congress seven years earlier had been driven by a mob of mutinous soldiers. It now seemed certain that Maclay would be passed over and would leave office on March 4. He is filled with “shame and contrition” when he reviews his journal and finds the subject of his re-election has engaged so much of his thought. The human heart really is a strange machine. I certainly have severely felt the inconvenience of being from home these two years past, and my judgment plainly tells me that I am wrong in having submitted to it. Further, I can not help knowing that my re-election, with no friends and many enemies, is impossible; and yet, under all these circumstances, the man who expresses favorable wishes is by far the most acceptable to me.

He calls to take tea with Thomas Fitzsimmons and his family; Fitzsimmons pointedly avoids the subject of his re-election and does not go to the door with him when he leaves, “as much as to say, I want no private communication.” The next day he stops at Boyd’s Tavern, “the place where all the plots are laid against me,” and there comes upon three state political leaders. Two of them are not friendly. He feels he is “as among a den of thieves. I need never cross this threshold again. Advances to them are idle.” He goes to the State House to meet with a Senate committee, “but they let me sit an hour without attending me.” John Dickinson comes in and takes him to one side. “‘You have,’ said he, ‘enemies in this place. I dined yesterday with the Governor. He is your enemy. He said you will be hard run and mentioned [John] Smilie as being your competitor.’ I thanked him for the communication.” From Virginia’s Alexander White I had much information of the malignant whispers, innuendoes, and malevolent remarks made respecting me. It was painful, and I could not refrain demanding of him what or whether any charge was made against me. No, no; nothing in particular, but everybody says: “The people don’t like you; the people won’t hear of your reelection.” Who are they that say so? “The leading members of the Assembly, officers of the Land-Office, citizens of Philadelphia, and others.”