{350}
Removal by the President. -- On the Bill for establishing an executive Department, to be denominated the Department of Foreign Affairs.
House of Representatives, June 16, 1789.
The first clause, after recapitulating the title of the officer and his duties, had these words: "to be removable from office by the President of the United States."
Mr. WHITE. The Constitution gives the President the power of nominating, and by and with the advice and consent of the Senate, appointing to office. As I conceive the power of appointing and dismissing to be united in their natures, and a principle that never was called in question in any government, I am adverse to that part of the clause which subjects the secretary of foreign affairs to be removed at the will of the President. In the Constitution, special provision is made for the removal of the judges: that I acknowledge to be a deviation from my principle; but as it is a constitutional provision, it is to be admitted. In all cases not otherwise provided for in this Constitution, I take it that the principle I have laid down is the governing one. Now, the Constitution has associated the Senate with the President in appointing the heads of department; for the words of the law declare that there shall be a department established, at the head of which shall be an officer to be so denominated. If, then, the Senate is associated with the President in the appointment, they ought also to be associated in the dismission from office. Upon the justness of this construction, I take the liberty of reviving the motion made in the committee of the whole for striking out these words, "to be removable from office by the President of the United States."
Mr. SMITH, (of South Carolina.) The gentleman has anticipated me in his motion. I am clearly in sentiment with him that the words ought to go out. It is in the recollection of the committee, that, when the subject was last before us, this power was excepted to; and although the words were then allowed to stand, it was generally understood that it should be further debated. I then was opposed to giving this power to the President, and am still of opinion that we ought not to make this declaration, even if he has the power by the Constitution.
I would premise, that one of these two ideas is just -- either that the Constitution has given the President the power of removal, and therefore it is nugatory to make the declaration here, or it has trot given the power to him, and therefore it is improper to make an attempt to confer it upon him. If it be not given to him by the Constitution, but belongs conjointly to the President and Senate, we have no right to deprive the Senate of their constitutional prerogative; and it has been the opinion of sensible men that the power was lodged in this manner. A publication of no inconsiderable eminence, in the class of political writings on the Constitution, has advanced this sentiment. The author, or authors, (for I have understood it to be the production of two gentlemen of great information,) of the work published under the signature of Publius, has these words: --
"It has been mentioned as one of the advantages to be expected from the coöperation of the Senate in the business of appointments, that it would contribute to the stability of the administration. The consent of that body would be necessary to displace as well as appoint. A change of the chief magistrate, therefore, would not occasion so violent or so general a revolution in the offices of the government as might {351} be expected if he were the sole disposer of offices. Where a man, in any station, has given satisfactory evidence of his fitness for it, a new President would be restrained from attempting a change, in favor of a person more agreeable to him, by the apprehension that the discountenance of the Senate might frustrate the attempt, and bring some degree of discredit upon himself. Those who can best estimate the value of a steady administration will be most disposed to prize a provision which connects the official existence of public men with the approbation or disapprobation of that body which, from the greater permanency of its own composition, will, in all probability, be less subject to inconstancy than any other member of the government."
Here this author lays it down, that there can be no doubt of the power of the Senate in the business of removal, Let this be as it may, I am clear that the President alone has not the power. Examine the Constitution; the powers of the several branches of government are there defined; the President has particular powers assigned him; the judicial have, in like manner, powers assigned them; but you will find no such power as removing from office given to the President. I call upon gentlemen to show me where it is said that the President shall remove from office. I know they cannot do it. Now I infer from this, as the Constitution has not given the President the power of removability, it meant that he should not have that power, and this inference is supported by that clause in the Constitution, which provides that all civil officers of the United States shall be removed from office ou impeachment for and conviction of treason, bribery, or other high crimes and misdemeanors. Here is a particular mode prescribed for removing, and if there is no other mode directed, I contend that the Constitution contemplated only this mode. But let me ask gentlemen if any other mode is necessary. For what other cause should a man be removed from office? Do gentlemen contend that sickness or ignorance would be a sufficient cause? I believe, if they will reflect, they cannot instance any person who was removed from ignorance. I venture to say, there never was an instance of this nature in the United States, There have been instances where a person has been removed for offences: the same may again occur, and are therefore judiciously provided for in the Constitution. But in this case, is he removed from his ignorance, or his error. which is the consequence of his ignorance? I suppose it is for his error, because the public are injured by it, and not for incapacity. The President is to nominate the officer, and the Senate to approve: here is provision made against the appointment of ignorant officers. They cannot be removed for causes which subsisted before their coming into office. Their ignorance therefore must arise after they are appointed; but this is an unlikely case, and one that cannot be contemplated as probable.
I imagine, sir, we are declaring a power in the President which may hereafter be greatly abused, for we are not always to expect a chief magistrate in whom such entire confidence can be placed as in the present. Perhaps gentlemen are so much dazzled with the splendor of the virtues of the present President, as not to be able to see into futurity. The framers of the Constitution did not confine their views to the first person who was looked up to, to fill the presidential chair. If they had, they might have omitted those checks and guards with which the powers of the executive are surrounded. They knew, from the course of human events, that they could not expect to be so highly favored of Heaven, as to have the blessing of his administration more than seven or fourteen years; after which, they supposed a man might get into power, who, it was possible, might misbehave. We ought to follow their example, and contemplate this power in the hands of an ambitious man, who might apply it to dangerous {352} purposes. If we give this power to the President, he may, from caprice, remove the most worthy men from office: his will and pleasure will be the slight tenure by which an office is to be held; and of consequence, you render the officer the mere state dependant, the abject slave, of a person who may be disposed to abuse the confidence his fellow-citizens have placed in him.
Another danger may result. If you desire an officer to be a man of capacity and integrity, you may be disappointed. A gentleman possessed of these qualities, knowing he may be removed at the pleasure of the President, will be loath to risk his reputation on such insecure ground. As the matter stands in the Constitution, he knows, if he is suspected of doing any thing wrong, he shall have a fair trial, and the whole of his transactions developed by an impartial tribunal: he will have confidence in himself when he knows he can only be removed for improper behavior. But if he is subjected to the whim of any man, it may deter him from entering into the service of his country; because, if be is not subservient to that person's pleasure, he may be turned out, and the public may be led to suppose for improper behavior. This impression cannot be removed, as a public inquiry cannot be obtained. Beside this, it ought to be considered, that the person who is appointed will probably quit some other office or business in which he is occupied. Ought he, after making this sacrifice in order to serve the public, to be turned out of place without even a reason being assigned for such behavior? Perhaps the President does not do this with an ill intention: he may have been misinformed, for it is presumable that a President may have round him men envious of the honors or emoluments of persons in office, who will insinuate suspicions into his honest breast, that may produce a removal; be this as it may, the event is still the same to the removed officer. The public suppose him guilty of malpractices -- hence his reputation is blasted, his property sacrificed. I say his property is sacrificed, because I consider his office as his property: he is stripped of this, and left exposed to the malevolence of the world, contrary to the principles of the Constitution, and contrary to the principles of all free governments, which are, that no man shall be despoiled of his property but by a fair and impartial trial.
I have stated that, if the power is given by the Constitution, the declaration in the law is nugatory; and I will add, if it is not given, it will be nugatory also to attempt to vest the power. If the Senate participate, on any principle whatever, in the removal, they will never consent to transfer their power to another branch of the government; therefore they will not pass a law with such a declaration in it.
Upon this consideration alone, if there was no other, the words should be struck out, and the question of right, if it is one, left to the decision of the judiciary. It will be time enough to determine the question when the President shall remove an officer in this way. I conceive it can properly be brought before that tribunal; the officer will have a right to a mandamus to be restored to his office; and the judges would determine whether the President exercised a constitutional authority or not.
Some gentlemen think the Constitution takes no notice of this officer, as the head of a department. They suppose him an inferior officer in aid of the executive. This, I think. is going too far; because the Constitution, in the words authorizing the President to call on the heads of departments for their opinions in writing, contemplates several departments. It says, "the principal officer in each of the executive departments."
{353} I have seriously reflected on this subject, and am convinced that the President has not this power by the Constitution, and that, if we had the right to invest him with it, it would be dangerous to do so.
Mr. HUNTINGDON. I think the clause ought not to stand. It was well observed, that the Constitution was silent respecting the removal, otherwise than by impeachment. I would likewise add, that it mentions no other cause of removal than treason, bribery, or other high crimes and misdemeanors. it does not, I apprehend, extend to cases of infirmity or incapacity. Indeed, it appears hard to me that, after an officer has become old in an honorable service, he should be impeached for this infirmity. The Constitution, I think, must be the only rule to guide us on this occasion. As it is silent with respect to the removal, Congress ought to say nothing about it, because it implies that we have a right to bestow it, and I believe this power is not to be found among the enumerated powers delegated by the Constitution to Congress.
It was said, if the President had this authority, it would make him more responsible for the conduct of the officer. But if we have a vicious President, who inclines to abuse this power, which God forbid! his responsibility will stand us in little stead: therefore that idea does not satisfy me that it is proper the President should have this power.
Mr. SEDGWICK. I wish the words to be struck out, because I conceive them to be unnecessary in this place. I do conceive, Mr. Speaker, that this officer will be the mere creature of the law, and that very little need be said to prove to you that of necessity this ought to be the case. I apprehend, likewise, that it requires but a small share of abilities to point out certain causes for which a person ought to be removed from office, without being guilty of treason, bribery, or malfeasance; and the nature of things demands that it should be so. Suppose, sir, a man becomes insane by the visitation of God, and is likely to ruin our affairs; are the hands of government to be confined from warding off the evil? Suppose a person in office not possessing the talents he was judged to have at the time of the appointment; is the error not to be corrected? Suppose he acquires vicious habits, an incurable indolence, or total neglect of the duties of his office, which forebode mischief to the public welfare; is there no way to arrest the threatened danger? Suppose he becomes odious and unpopular by reason of the measures which he pursues, -- and this he may do without committing any positive offence against the law, must he preserve his office in despite of the public will? Suppose him grasping at his own aggrandizement, and the elevation of his connections, by every means short of the treason defined by the Constitution, -- hurrying your affairs to the precipice of destruction, endangering your domestic tranquility, plundering you of the means of defence, by alienating the affections of your allies, and promoting the spirit of discord, -- is there no way suddenly to seize the worthless wretch, and hurl him from the pinnacle of power? Must the tardy, tedious, desultory road; by way of impeachment, be travelled to overtake the man who, barely confining himself within the letter of the law, is employed in drawing off the vital principle of the government? Sir, the nature of things, the great objects of society, the express objects of this Constitution, require that this thing should be otherwise. Well, sir, this is admitted by gentlemen; but they say the Senate is to be united with the President in the exercise of this power. I hope, sir, this is not the case, because it would involve us in the most serious difficulty. Suppose a discovery of any of those events which I have just enumerated were to {354} take place when the Senate is not in session; how is the remedy to be applied? This is a serious consideration, and the evil could be avoided no other way than by the Senate's sitting always. Surely no gentleman of this house contemplates the necessity of incurring such au expense. I am sure it will be very objectionable to our constituents; and yet this must be done, or the public interest he endangered by keeping an unworthy officer in place until that body shall be assembled from the extremes of the Union.
It has been said that there is danger of this power being abused if exercised by one man Certainly, the danger is as great with respect to the Senate, who are assembled from various parts of the continent, with different impressions and opinions. It appears to me that such a body is more likely to misuse this power than the mall whom the united voice of America calls to the presidential chair. As the nature of the government requires the power of removal, I think it is to be exercised in this way by a hand capable of exerting itself with effect; and the power must be conferred on the President by the Constitution, as the executive officer of the government.
I believe some difficulty will result from determining this question by a mandamus. A mandamus is issued to replace au officer who has been removed contrary to law. Now, this officer being the creature of the law, we may declare that he shall be removed for incapacity; and if so declared, the removal will be according to law.
Mr. MADISON. If the construction of the Constitution is to be left to its natural course, with respect to the executive powers of this government, I own that the insertion of this sentiment in law may not be of material importance, though, if it is nothing more than a mere declaration of a clear grant made by the Constitution, it can do no harm; but if it relates to a doubtful part of the Constitution, I suppose an exposition of the Constitution may come with as much propriety from the legislature as any other department of government. If the power naturally belongs to the government, and the Constitution is undecided as to the body which is to exercise it, it is likely that it is submitted to the discretion of the legislatures, and the question will depend upon its own merits.
I am clearly of opinion with the gentleman from South Carolina, (Mr. Smith,) that we ought, in this and every other case, to adhere to the Constitution, so far as it will serve as a guide to us; and that we ought not to be swayed in our decisions by the splendor of the character of our present chief magistrate, but consider it with respect to the merit of men who, in the ordinary course of things, may be supposed to fill the chair. I believe the power here declared is a high one, and in some respects a dangerous one; but, in order to come to a right decision on this point, we must consider both sides of the question -- the possible abuses which may spring from the single will of the first magistrate, and the abuse which may spring from the combined will of the executive and the senatorial qualification.
When we consider that the first magistrate is to be appointed at present by the suffrages of three millions of people, and, in all human probability,ina few years' time, by double that number, it is not to be presumed that a vicious or bad character will be selected. If the government of any country on the face of the earth was ever effectually guarded against the election of ambitious or designing characters to the first office of the state, I think it may with truth be said to be the case under the Constitution of the United States. With all the infirmities incident to a popular election, {355} corrected by the particular mode of conducting it, as directed under the present system, I think we may fairly calculate that the instances will be very rare in which an unworthy man will receive that mark of public confidence which is required to designate the President of the United States; Where the people are disposed to give so great an elevation to one of their fellow-citizens, I own that I am not afraid to place my confidence in him; especially when I know he is impeachable, for any crime or misdemeanor, before the Senate at all times; and that, at all events, he is impeachable before the community at large every four years, and liable to be displaced if Iris conduct shall have given umbrage during the time he has been in office. Under these circumstances, although the trust is a high one, and in some degree, perhaps, a dangerous one, I am not sure but it will be safer here than placed where some gentlemen suppose it ought to be.
It is evidently the intention of the Constitution that the first magistrate should be responsible for the executive department; so far, therefore, as we do not make the officers who are to aid him in the duties of that department responsible to him, he is not responsible to his country. Again: is there no danger that an officer, when he is appointed by the concurrence of the Senate, and has friends in that body, may choose rather to risk his establishment on the favor of that branch, than rest it upon the discharge of his duties to the satisfaction of the executive branch, which is constitutionally authorized to inspect and control his conduct? and if it should happen that the officers connect themselves with the Senate, they may mutually support each other, and, for want of efficacy, reduce the power of the President to a mere vapor, in which case his responsibility would be annihilated, and the expectation of it unjust. The high executive officers, joined in cabal with the Senate, would lay the foundation of discord, and end in an assumption of the executive power, only to be removed by a revolution in the government. I believe no principle is more clearly laid down in the Constitution than that of responsibility. After promising this, I will proceed to an investigation of the merits of the question upon constitutional ground.
I have, since the subject was last before the house, examined the Constitution with attention; and I acknowledge that it does not perfectly correspond with the ideas I entertained of it from the first glance. I am inclined to think that a free and systematic interpretation of the plan of government will leave us less at liberty to abate the responsibility than gentlemen imagine. I have already acknowledged that the powers of the government must remain as apportioned by the Constitution. But it may be contended that, where the Constitution is silent, it becomes a subject of legislative discretion. Perhaps, in the opinion of some, an argument in favor of the clause may be successfully brought forward on this ground. I, however, leave it for the present untouched.
By a strict examination of the Constitution on what appear to be its true principles, and considering the great departments of the government in the relation they have to each other, I have my doubts whether we are not absolutely tied down to the construction declared in the bill.
In the 1st section of the 1st article, it is said that all legislative powers herein granted shall be vested in a Congress of the United States. In the 2d article, it is affirmed that the executive power shall he vested in a President of the United States of America. In the 3d article, it is declared that the judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as Congress may from time to time ordain {356} and establish. I suppose it would be readily admitted that, so far as the Constitution has separated the powers of these great departments, it would be improper to combine them together; and so far as it has left any particular department in the entire possession of the powers incident to that department, I conceive we ought not to qualify them further than they are qualified by the Constitution. The legislative powers are vested in Congress, and are to be exercised by them uncontrolled by any other department, except the Constitution has qualified it otherwise. The Constitution has qualified the legislative power by authorizing the President to object to any act it may pass -- requiring, in this case, two thirds of both houses to concur in making a law; but still the absolute legislative power is vested in the Congress, with this qualification alone.
The Constitution affirms that the executive power shall be vested in the President. Are there exceptions to this proposition? Yes, there are. The Constitution says that, in appointing to office, the Senate shall be associated with the President, unless in the case of inferior officers, when the law shall otherwise direct, Have we a right to extend this exception? I believe not. If the Constitution has invested all executive power in the President, I venture to assert that the legislature has no right to diminish or modify his executive authority.
The question now resolves itself into this: Is the power of displacing an executive power? I conceive that, if any power whatsoever is in its nature executive, it is the power of appointing, overseeing, and controlling those who execute the laws. If the Constitution had not qualified the power of the President in appointing to office, by associating the Senate with him in that business, would it not be clear that he would have the right, by virtue of his executive power, to make such appointment? Should we be authorized, in defiance of that clause in the Constitution, -- "The executive power shall be vested in a President," -- to unite the Senate with the President in the appointment to office? I conceive not. If it is admitted we should not be authorized to do this, I think it may be disputed whether we have a right to associate them in removing persons from office, the one power being as much of an executive nature as the other; and the first only is authorized by being excepted out of the general rule established by the Constitution, in these words, "The executive power shall be vested in the President."
The judicial power is vested in a Supreme Court; but will gentlemen say the judicial power can be placed elsewhere, unless the Constitution has made an exception? The Constitution justifies the Senate in exercising a judiciary power in determining on impeachments. But can the judicial powers be further blended with the powers of that body? They cannot. I therefore say it is incontrovertible, if neither the legislative nor judicial powers are subjected to qualifications other than those demanded in the Constitution, that the executive powers are equally unabatable as either of the other; and inasmuch as the power of removal is of an executive nature, and not affected by any constitutional exception, it is beyond the reach of the legislative body.
If this is the true construction of this instrument, the clause in the bill is nothing more than explanatory of the meaning of the Constitution, and therefore not liable to any particular objection on that account. If the Constitution is silent, and it is a power the legislature have a right to confer, it will appear to the world, if we strike out the clause, as if we doubted the propriety of vesting it in the President of the United States. I therefore think it best to retain it in the bill.
{357} Mr. WHITE. I have no doubt in my mind but an officer can be removed without a public trial. I think there are cases in which it would he improper that his misdemeanors should be publicly known, the tranquillity and harmony of the Union might be endangered if his guilt was not secreted from the world. I have therefore no hesitation in declaring, as my sentiment. that the President and Senate may dismiss him.
The Constitution contemplates a removal in some other way besides that by impeachment, or why is it declared, in favor of the judges only, that they shall hold their offices during good behavior? Does not this strongly imply that, without such an exception, there would have been a discretionary power in some branch of the government to dismiss even them?
Several objections have arisen from the inconvenience with which the power must be exercised, if the Senate is blended with the executive; and therefore it is inferred that the President ought exclusively to have this power. If we were framing a constitution, these arguments would have their proper weight, and I might approve such an arrangement. But at present, I do not consider we are at liberty to deliberate on that subject; the Constitution is already formed, and we can go no farther in distributing the powers than the Constitution warrants.
It was objected that the President could not remove an officer unless the Senate was in session; but yet the emergency of the case might demand an instant dismission. I should imagine that no inconvenience would result ou this account; because, on my principle, the same power which can make a temporary appointment, can make an equal suspension: the powers are opposite to each other.
The gentleman says we ought not to blend the executive and legislative powers further than they are blended in the Constitution. I contend we do not. There is no expression in the Constitution which says that the President shall have the power of removal from office: but the contrary is strongly implied; for it is said that Congress may establish officers by law, and vest the appointment, and consequently the removal, in the President alone, in the courts of law, or heads of departments. Now, this shows that Congress are not at liberty to make any alteration by law in the mode of appointing superior officers, and consequently that they are not at liberty to alter the manner of removal.
Mr. BOUDINOT. This is a question, Mr. Speaker, that requires full consideration, and ought only to be settled on the most candid discussion. It certainly involves the right of the Senate to a very important power. At present, I am so impressed with the importance of the subject, that I dare not absolutely decide on any principle, although I am firmly persuaded we ought to retain the clause in the bill; and, so far as it has been examined, I agree that it is a legislative construction of the Constitution necessary to be settled for the direction of your officers. But if it is a deviation from the Constitution, or in the least degree an infringement upon the authority of the other branch of the legislature, I shall most decidedly be against it. But I think it will appear, on a full consideration of this business, that we can do no otherwise than agree to this construction, in order to preserve to each department the full exercise of its powers, and to give this house security for the proper conduct of the Officers who are to execute the laws.
The arguments adduced are to show that the power of removal lies either in the President and the Senate, or the President alone, except in cases of removal by impeachment. There is nothing, I take it, in the Constitution, {358} or the reason of the thing, that officers should be only removable by impeachment. Such a provision would be derogatory to the powers of government, and subversive of the rights of the people. What says the Constitution on this point? I fear, sir, it has not been rightly comprehended. That the House of Representatives shall have the sole power of impeachment; that the Senate shall have the sole power to try all impeachments; and judgment shall not extend further than to removal from office, and disqualification to hold it in future: then comes the clause declaring, absolutely, that he shall be removed from office on impeachment for and conviction of treason, bribery, or other high crimes or misdemeanors.
It is this clause which guards the right of the house, and enables them to pull down an improper officer, although he should be supported by all the power of the executive. This, then, is a necessary security to the people, and one that is wisely provided in the Constitution. But I believe it is nowhere said that officers shall never be removed but by impeachment; but it says they shall be removed on impeachment. Suppose the secretary of foreign affairs shall misbehave, and we impeach him; notwithstanding the clearest proof of guilt, the Senate might only impose some trifling punishment, and retain him in office, if it was not for this declaration in the Constitution.
Neither this clause nor any other goes so far as to say it shall be the only mode of removal; therefore we may proceed to inquire what the other is. Let us examine whether it belongs to the Senate and President. Certainly, sir, there is nothing that gives the Senate this right in express terms; but they are authorized in express words to be concerned in the appointment. And does this necessarily include the power of removal? If the President complains to the Senate of the misconduct of an officer, and desires their advice and consent to the removal, what are the Senate to do? Most certainly, they will inquire if the complaint is well founded. To do this, they must call the officer before them to answer. Who, then, are the parties? The supreme executive officer against his assistant; and then the Senate are to set judges to determine whether sufficient cause of retrieval exists. Does not this set the Senate over the head of the President? But suppose they shall decide in favor of the officer; what a situation is the President then in, surrounded by officers with whom, by his situation, he is compelled to act, but in whom he can have no confidence, reversing the privilege, given him by the Constitution, to prevent his having officers imposed upon him who do not meet his approbation!
But I have another more solid objection, which places the question in a more important point of view. The Constitution has placed the Senate as the only security and barrier between the House of Representatives and the President. Suppose the President has desired the Senate to concur in removing an officer, and they have declined or suppose the House have applied to the President and Senate to remove an officer obnoxious to them, and they determine against the measure; the house can have recourse to nothing but an impeachment, if they suppose the criminality of the officer will warrant such procedure. Will the Senate, then, be that upright court which they ought, to appeal to on this occasion, when they have prejudged your cause? I conceive the Senate will be too much under the control of their former decision, to be a proper body for this house to apply to for impartial justice.
As the Senate are the dernier ressort, and the only court of judicature which can determine on cases of impeachment, I am for preserving them {359} free and independent, both on account of the officer and this house. I therefore conceive that it was never the intention of the Constitution to vest the power of removal in the President and Senate; but as it must exist somewhere, it rests on the President alone. I conceive this point was made fully to appear by the honorable member from Virginia, (Mr. Madison;) inasmuch as the President is the supreme executive officer of the United States.
It was asked if ever we knew a person removed from office by reason of sickness or ignorance. If there never was such a case, it is perhaps nevertheless proper that they should be removed for those reasons, and we shall do well to establish the principle.
Suppose your secretary of foreign affairs rendered incapable of thought or action by a paralytic stroke. I ask whether there would be any propriety in keeping such a person in office; and whether the salus populi -- the first object of republican government -- does not absolutely demand his dismission. Can it be expected that the President is responsible for an officer under these circumstances, although, when he went into office, he might have been a wise and virtuous man, and the President well inclined to risk his own reputation upon the integrity and abilities of the person?
I conceive it will be improper to leave the determination of this question to the judges. There will be some indelicacy in subjecting the executive action in this particular to a suit at law; and there may be much inconvenience if the President does not exercise this prerogative until it is decided by the courts of justice.
From these considerations, the safety of the people, the security of this house, and adherence to the spirit of the Constitution, I am disposed to think the clause proper; and as some doubts respecting the construction of the Constitution have arisen, I think it also necessary; therefore I hope it will remain
Mr. SMITH, (of South Carolina.) The gentleman from Virginia has said that the power of removal is executive in its nature. I do not believe this to be the case. I have turned over the constitutions of most of the states, and I do not find that any of them have granted this power to the governor. -- In some instances I find the executive magistrate suspends, but none of them have the right to remove, officers; and I take it that the Constitution of the United States has distributed the powers of government on the same principles which most of the state constitutions have adopted; for it will not be contended but the state governments furnished the members of the late Convention with the skeleton of this Constitution.
The gentlemen have observed that it would be dangerous if the President had not this power. But is there not danger in making your secretary of foreign affairs dependent upon the will and pleasure of the President? Can gentlemen see the danger on one side only? Suppose the President averse to a just and honorable war which Congress have embarked in; can he not countenance the secretary at war (for it is in contemplation to establish such an officer) in the waste of public stores, and misapplication of the supplies? Nay, cannot he dragoon your officer into a compliance with his designs by threatening him with a removal by which his reputation and property would be destroyed? If the officer was established on a better tenure, he would dare to be honest; he would know himself invulnerable in his integrity, and defy the shafts of {360} malevolence, though aimed with Machiavellian policy. He would be a barrier to your executive officer, and save the state from ruin.
But, Mr. Chairman, the argument does not turn upon the expediency of the measure, The great question is with respect to its constitutionality; and as yet I have heard no argument advanced sufficiently cogent to prove to my mind that the Constitution warrants such a disposition of the power of removal; and until I am convinced that it is both expedient and constitutional, I cannot agree to it.
Mr. GERRY. Some gentlemen consider this as a question of policy; but to me it appears a question of constitutionality, and I presume it will be determined on that point alone. The best arguments I have heard urged on this occasion came from the honorable gentleman from Virginia, (Mr. Madison.) He says, the Constitution has vested the executive power in the President; and that he has a right to exercise it under the qualifications therein made. He lays it down as a maxim, that the Constitution, vesting in the President the executive power, naturally vests him with the power of appointment and removal. Now, I would be glad to know from that gentleman, by what means we are to decide this question. Is his maxim supported by precedent drawn from the practice of the individual states? The direct contrary is established. In many cases, the executives are not, in particular, vested with the power of appointment; nor do they exercise that power by virtue of their office. It will be found that other branches of the government make appointments. How, then, can gentlemen assert that the powers of appointment and removal are incident to the executive department of the government? To me it appears at best but problematical. Neither is it clear to me that the power that appoints naturally possesses the power of removal. As we have no certainty on either of these points, I think we must consider it, as established by the Constitution.
It has been argued that, if the power of removal vests in the President alone, it annuls or renders nugatory the clause in the Constitution which directs the concurrence of the Senate in the case of appointment: it behoves us not to adopt principles subversive of those established by the Constitution. It has been frequently asserted, on former occasions, that the Senate is a permanent body, and was so constructed in order to give durability to public measures. If they are not absolutely permanent, they are formed on a renovating principle which gives them a salutary stability. This is not the case either with the President or House of Representatives; nor is the judiciary equally lasting, because the officers are subject to natural dissolution. It appears to me that a permanency was expected in the magistracy; and therefore the Senate were combined in the appointment to office. But if the President alone has the power of removal, it is in his power at any time to destroy all that has been done. It appears to me that such a principle would be destructive of the intention of the Constitution expressed by giving the power of appointment to the Senate. It also subverts the clause which gives the Senate the sole power of trying impeachments; because the President may remove the officer, in order to screen him from the effects of their judgment on an impeachment. Why should we construe any part of the Constitution in such a manner as to destroy its essential principles, when a more consonant construction can be obtained?
It appears very clear to me that, however this power may be distributed by the Constitution, the House of Representatives have nothing to do with {361} it. Why, then, should we interfere in the business? Are we afraid the President and Senate are not sufficiently informed to know their respective duties?. Our interposition argues that they want judgment, and are not able to adjust their powers without the wisdom of this house to assist them. To say the least on this point, it must be deemed indelicate for us to intermeddle with them. If the fact is, as we seem to suspect, that they do not understand the Constitution, let it go before the proper tribunal; the judges are the constitutional umpires on such questions. Why, let me ask, gentlemen, shall we commit an infraction of the Constitution, for fear the Senate or President should not comply with its directions?
It has been said, by my colleague, that these officers are the creatures of the law; but it seems as if we were not content with that, -- we are making them the mere creatures of the President. They dare not exercise the privilege of their creation, if the President shall order them to forbear. Because he holds their thread of life, his power will be sovereign over them, and will soon swallow up the small security we have in the Senate's concurrence to the appointment, and we shall shortly need no other than the authority of the supreme executive officer to nominate, appoint, continue, or remove.
Mr. AMES. When this question was agitated at a former period, I took no part in the debate. I believe it was then proposed without any idea or intention of drawing on a lengthy discussion, and to me it appeared to be well understood and settled by the house; but since it has been reiterated and contested again, I feel it my bounden duty to deliver the reasons for voting in the manner I then did and shall do now. Mr. Chairman, I took upon every question which touches the Constitution as serious and important, and therefore worthy of the fullest discussion and the most solemn decision. I believe, on the present occasion, we may come to something near certainty, by attending to the leading principles of the Constitution. In order that the good purposes of a federal government should be answered, it was necessary to delegate considerable powers; and the principle upon which the grant was made intended to give sufficient power to do all possible good, but to restrain the rulers from doing mischief.
The Constitution places all executive power in the hands of the President; and could he personally execute all the laws, there would be no occasion for establishing auxiliaries; but the circumscribed powers of human nature in one man demand the aid of others. When the objects are widely stretched out, or greatly diversified, meandering through such an extent of territory as what the United States possess, a minister cannot see with his own eyes every transaction, or feel with his hands the minutioe that pass through his department: he must therefore have assistants. But in order that he may be responsible to his country, he must have a choice in selecting his assistants, a control over them, with power to remove them when he finds the qualifications which induced their appointment cease to exist. There are officers under the Constitution who hold their office by a different tenure: your judges are appointed during good behavior; and from the delicacy and peculiar nature of their trust, it is right it should be so, in order that they may be independent and impartial n administering justice between the government and its citizens, But the removability of the one class, or immovability of the other, is founded,in the same principle -- the security of the people against the abuse of power. Does any gentleman imagine that an officer is entitled to his {362} office as to an estate? Or does the legislature establish them for the convenience of an individual? For my part, I conceive it intended to carry into effect the purposes for which the Constitution was intended.
The executive powers are delegated to the President, with a view to have a responsible officer to superintend, control, inspect, and check, the officers necessarily employed in administering the laws. The only. bond between him and those he employs is the confidence he has in their integrity and talents. When that confidence ceases, the principal ought to have the power to remove those whom he can no longer trust with safety. If an officer shall be guilty of neglect or infidelity, there can be no doubt but he ought to be removed; yet there may be numerous causes for removal which do not amount to a crime. He may propose to do a mischief, but I believe the mere intention would not be cause of impeachment: he may lose the confidence of the people upon suspicion, in which case it would be improper to retain him in service; he ought to be removed at any time, when, instead of doing the greatest possible good, he is likely to do an injury, to the public interest, by being combined in the administration.
I presume gentlemen will generally admit that officers ought to be removed when they become obnoxious; but the question is, How shall this power be exercised? It will not. I apprehend, be contended that all officers hold their offices during good behavior. If this is the case, it is a most singular government. I believe there is not another in the universe that bears the least semblance to it in this particular: such a principle, I take it, is contrary to the nature of things.
But the manner how to remove is the question. If the officer misbehaves, he can be removed by impeachment. But, in this case, is impeachment the only mode of removal? It would be found very inconvenient to have a man continued in office after being impeached, and when all confidence in him was suspended or lost. Would not the end of impeachment be defeated by this means? If Mr. Hastings, who was mentioned by the gentleman from Virginia, (Mr. Vining,) preserved his command in India, could he not defeat the impeachment now pending in Great Britain? If that doctrine obtains in America, we shall find impeachments come too late; while we are preparing the process, the mischief will he perpetrated, and the offender escape. I apprehend it will be as frequently necessary to prevent crimes as to punish them; and it may often happen that the only prevention is by removal The superintending power possessed by the President will perhaps enable him to discover a base intention before it is ripe for execution. It may happen that the treasurer may be disposed to betray the public chest to the enemy, and so injure the government beyond the possibility of reparation. Should the President be restrained from removing so dangerous an officer until the stow formality of an impeachment was complied with, when the nature of the case rendered the application of a sudden and decisive remedy indispensable?
But it will, I say, be admitted that an officer may be removed: the question then is, by whom? Some gentlemen say, by the President alone: and others, by the President, by and with the advice of the Senate. By the advocates of the latter mode it is alleged that the Constitution is in the way of the power of removal being by the President alone. If this is absolutely the case, there is an end to all further inquiry. But before we suffer this to be considered an insuperable impediment, we ought to be clear that the Constitution prohibits him the exercise of what, on a first view, appears to be a power incident to the executive branch of the government.
{363} The gentleman from Virginia (Mr. Madison) has made so many observations to evince the constitutionality of the clause, that it is unnecessary to go over the ground again, t shall therefore confine myself to answer only some remarks made by the gentleman from South Carolina, (Mr. Smith.) The powers of the President are defined in the Constitution; but it is said that he is not expressly authorized to remove from office. If the Constitution is silent also with respect to the Senate, the argument may be retorted. If this silence proves that the power cannot be exercised by the President, it certainly proves that it cannot be exercised by the President, by and with the advice and consent of the Senate. The power of removal is incident to government; but, not being distributed by the Constitution, it will come before the legislature, and, like every other omitted case, must be supplied by law.
Gentlemen have said, when the question was formerly before us, that all powers not intended to be given up to the general government were retained. I beg gentlemen, when they undertake to argue from implication, to be consistent, and admit the force of other arguments drawn from the same source. It is a leading principle in every free government -- it is a prominent feature in this -- that the legislative and executive powers should be kept distinct; yet the attempt to blend the executive and legislative departments, in exercising the power of removal, is such a maxim as ought not to be carried into practice on arguments grounded on implication. And the gentleman from Virginia's (Mr. White's) reasoning is wholly drawn from implication. He supposes, as the Constitution qualifies the President's power of appointing to office, by subjecting his nomination to the concurrence of the Senate, that the qualification follows of course in the removal.
If this is to be considered as a question undecided by the Constitution, and submitted on the footing of expediency, it will be well to consider where the power can be most usefully deposited, for the security and benefit of the people. It has been said by the gentleman on the other side of the house, (Mr. Smith,) that there is an impropriety in allowing the exercise of this power; that it is a dangerous authority, and much evil may result to the liberty and property of the officer who may be turned out of business without a moment's warning. I take it, the question is not whether such power shall be given or retained; because it is admitted, on all hands, that the officer may be removed; so that it is no grant of power it raises no new danger. If we strike out the clause, we do not keep the power, nor prevent the exercise of it; so the gentleman will derive none of the security he contemplates by agreeing to the motion for striking out. It will be found that the nature of the business requires it to be conducted by the head of the executive; and I believe it will be found, even there. that more injury will arise from not removing improper officers, than from displacing good ones. I believe experience has convinced us that it is an irksome business; and officers are more frequently continued in one place after they become unfit to perform the duties, than turned out while their talents and integrity are useful. But advantages may result from keeping the power of removal, in terrorem, over the heads of the officers: they will be stimulated to do their duty to the satisfaction of the principal, who is to be responsible for the whole executive department.
The gentleman has supposed there will be great difficulty in getting officers of abilities to engage in the service of their country upon such {364} terms. There has never yet been any scarcity of proper officers in any department of the government of the United States; even during the war, when men risked their lives and property by engaging in such service, there were candidates enough.
But why should we connect the Senate in the removal? Their attention is taken up with other important business, and they have no constitutional authority to watch the conduct of the executive officers, and therefore cannot use such authority with advantage. If the President is inclined to shelter himself behind the Senate, with respect to having continued an improper person in office, we lose the responsibility which is our greatest security: the blame, amongst so many, will be lost. Another reason occurs to me against blending these powers. An officer who superintends the public revenue will naturally acquire a great influence. If he obtains support in the Senate, upon an attempt of the President to remove him, it will be out of the power of the house, when applied to by the first magistrate, to impeach him with success; for the very means of proving charges of malconduct against him will be under the power of the officer: all the papers necessary to convict him may be withheld while the person continues in his office. Protection may be rendered for protection; and, as this officer has such extensive influence, it may be exerted to procure the reëlection of his friends. These circumstances, in addition to those stated by the gentleman from New Jersey, (Mr. Boudinot,) must clearly evince to every gentleman the impropriety of connecting the Senate with the President, in removing from office.
I do not say these things will take effect now; and if the question only related to what might take place in a few years, I should not be uneasy on this point, because I am sensible the gentlemen who form the present Senate are above corruption; but in future ages, (and I hope this government may be perpetuated to the end of time,) such things may take place, and it is our duty to provide against evils which may be foreseen, but if now neglected, will be irremediable.
I beg to observe, further, that there are three opinions entertained by gentlemen on this subject. One is, that the power of removal is prohibited by the Constitution; the next is, that it requires it by the President; and the other is, that the Constitution is totally silent. It therefore appears to me proper for the house to declare what is their sense of the Constitution. If we declare justly on this point, it will serve for a rule of conduct to the executive magistrate: if we declare improperly, the judiciary will revise our decision; so that, at all events, I think we ought to make the declaration.
Mr. LIVERMORE. I am for striking out this clause, Mr. Chairman, upon the principles of the Constitution, from which we are not at liberty to deviate. The honorable gentleman from Massachusetts (Mr. Sedgwick) calls the minister of foreign affairs the creature of the law, and that very properly; because the law establishes the office, and has the power of creating him in what shape the legislature pleases. This being the case, we have a right to create the office under such limitations and restrictions as we think proper, provided we can obtain the consent of the Senate; but it is very improper to draw, as a conclusion from having the power of giving birth to a creature, that we should therefore bring forth a monster, merely to show we had such power. I call that creature a monster that has not the proper limbs and features of its species. I think the creature we are forming is unnatural in its proportions. It has been often {365} said that the Constitution declares the President, by and with the advice and consent of the Senate, shall appoint this officer. This, to be sure, is very true, and so is the conclusion which an honorable gentleman from Virginia (Mr. White) drew from it -- that an officer must be discharged in the way he was appointed.
I believe, Mr. Chairman, this question depends upon a just construction of a short clause in the Constitution -- "the President shall have power, by and with the advice and consent of the Senate, to appoint ambassadors; other public ministers, and consuls; judges of the Supreme Court, and all other officers of the United States." Here is no difference with respect to the power of the President to make treaties and appoint officers, only it requires in the one case a larger majority to concur than in the other. I will not, by any means, suppose that gentlemen mean, when they argue in favor of removal by the President alone, to contemplate the extension of the power to the repeal of treaties; because, if they do, there will be little occasion for us to sit here. But, let me ask these gentlemen -- as there is no real or imaginary distinction between the appointment of ambassadors and ministers, or secretaries of foreign affairs -- whether they mean that the President should have the power of recalling or discarding ambassadors and military officers, -- for the words in the Constitution are, "all other officers," -- as well as he can remove your secretary of foreign affairs. To be sure, they cannot extend it to the judges, because they are secured under a subsequent article, which declares they shall hold their offices during good behavior; they have an inheritance which they cannot be divested of but on conviction of some crime. But I presume gentlemen mean to apply it to all those who have not an inheritance in their offices. In this case, it takes the whole power of the President and Senate to create an officer; but half the power can uncreate him. Surely, a law passed by the whole legislature cannot be repealed by one branch of it; so, I conceive, in the case of appointments, it requires the same force to supersede an officer as to put him in office.
I acknowledge that the clause relative to impeachment is for the benefit of the people. It is intended to enable their representatives to bring a bad officer to justice, who is screened by the President. But I do not conceive, with the honorable gentleman from South Carolina, (Mr. Smith,) that it, by any means, excludes the usual ways of superseding officers. It is said, in the Constitution, that the house shall have the power of choosing their own officers. We have chosen a clerk, and, I am satisfied, a very capable one; but will any gentleman contend that we may not discharge him, and choose another, and another, as often as we see cause? And so it is in every other instance -- where they have power to make, they have likewise the power to unmake. It will be said, by gentlemen, that the power to make does not imply the power of unmaking; but I believe they will find very few exceptions in the United States.
Were I to speak of the expediency, every one of my observations would be against it. When an important and confidential trust is placed inn man, it is worse than death to him to be displaced without cause; his reputation depends upon the single will of the President, who may ruin him on bare suspicion. Nay, a new President may turn him out on mere caprice, or in order to make room for a favorite. This contradicts all my notions of propriety; every thing of this sort should he done with due deliberation; every person ought to have a hearing before they are punished. It is on these considerations that I wish the general principle laid down by the gentleman from Virginia (Mr. White) may be adhered to.
{366} I will add one word more, and I have done. This seems, Mr. Chairman, altogether to be aimed at the Senate. What have they done to chagrin us? or why should we attempt to abridge their powers, because we can reach them by our regulations in the shape of a bill? I think we had better let it alone. If the Constitution has given them this power, they will reject this part of the bill, and they will exercise that one privilege judiciously, however they may the power of removal. If the Constitution has not given it to them, it has not vested it any where else; consequently, this house would have no right to confer it.
Mr. HARTLEY, I apprehend, Mr. Chairman, that this officer cannot be considered as appointed during good behavior, even in point of policy; but with respect to the constitutionality, I am pretty confident he cannot be viewed in that light. The Constitution declares the tenure of the officers it recognizes, and says one class of them shall hold their offices during good behavior; they are the judges of your Supreme and other courts; but as to any other officer being established on this firm tenure, the Constitution is silent. It, then, necessarily follows that we must consider every other according to its nature, and regulate it in a corresponding manner. The business of the secretary of foreign affairs is of an executive nature, and must consequently be attached to the executive department.
I think the gentleman from South Carolina goes too far, in saying that the clause respecting impeachments implies that there is no other mode of removing an officer. I think it does not follow that, because one mode is pointed out by the Constitution, there is no other, especially if that provision is intended for nothing more than a punishment for a crime. The 4th section of the 2d article says that all civil officers shall be removed on conviction of certain crimes. But it cannot be the intention of the Constitution to prevent, by this, a removal in any other way. Such a principle, if once admitted, would be attended with very inconvenient and mischievous consequences.
The gentleman further contends that every man has a property in his office, and ought not to be removed but for criminal conduct; he ought not to be removed for inability. I hope this doctrine will never be admitted in this country. A man, when in office, ought to have abilities to discharge the duties of it. If he is discovered to be unfit, he ought to be immediately removed; but not on principles like what that gentleman contends for. If he has an estate in his office, his right must be purchased, and a practice like what obtains in England will be adopted here. We shall be unable to dismiss an officer, without allowing him a pension for the interest he is deprived of. Such doctrine may suit a nation which is strong in proportion to the number of dependants upon the crown, but will be very pernicious in a republic like ours. When we have established an office, let the provision for the support of the officer be equal to compensate his services; but never let it be said that he has an estate in his office when he is found unfit to perform his duties. If offices are to be held during good behavior, it is easy to foresee that we shall have as many factions as heads of departments. The consequence would be, corruption in one of the great departments of government; and if the balance is once destroyed, the Constitution must fall amidst the ruins. From this view of the subject, I have no difficulty to declare that the secretary of foreign affairs is an officer during pleasure, and not during good behavior, as contended for.
{367} One gentleman (Mr. White) holds the same principles, but differs with respect to the power which ought to exercise the privilege of removal. On this point we are reduced to a matter of construction; but it is of high importance to the United States that a construction should be rightly made. But gentlemen say it is inconsistent with the Constitution to make this declaration; that, as the Constitution is silent, we ought not to be too explicit. The Constitution has expressly pointed out several matters which we can do, and some which we cannot; but in other matters it is silent, and leaves them to the discretion of the legislature. If this is not the case, why was the last clause of the 8th section of the 1st article inserted? It gives power to Congress to make all laws necessary and proper to carry the government into effect.
I look upon it that the legislature have, therefore, a right to exercise their discretion on such questions; and, however attentively gentlemen may have examined the Constitution on this point, I trust they have discovered no clause which forbids this house interfering in business necessary and proper to carry the government into effect.
The Constitution grants expressly to the President the power of filling all vacancies during the recess of the Senate. This is a temporary power, like that of removal, and liable to very few of the objections which have been made. When the President has removed an officer, another must be appointed; but this cannot be done without the advice and consent of the Senate. Where, then, is the danger of the system of favoritism? The President. notwithstanding the supposed depravity of mankind, will hardly remove a worthy officer to make way for a person whom the Senate max reject. Another reason why the power of removal should be lodged with the President, rather than with the Senate, arises from their connection with the people. The President is the representative of the people; in a near and equal manner, he is the guardian of his country. The Senate are the representatives of the State legislatures; but they are very unequal in that representation; each state sends two members to that house, although their proportions are as ten to one. Hence arises a degree of insecurity to an impartial administration; but if they possessed every advantage of equality, they cannot he the proper body to inspect into the behavior of officers, because they have no constitutional powers for this purpose. It does not always imply criminality to be removed from office, because it may be proper to remove for other causes; neither do I see any danger which can result from the exercise of this power by the President, because the Senate is to be consulted in the appointment which is afterwards to take place. Under these circumstances, I repeat it, that I have no doubt, in my own mind, that this office is during pleasure; and that the power of removal, which is a mere temporary one, ought to be in the President, whose powers, taken together, are not very numerous, and the success of this government depends upon their being unimpaired.
Mr. LAWRENCE. It has been objected against this clause, that the granting of this power is unconstitutional. It was also objected, if it is not unconstitutional, it is unnecessary; that the Constitution must contain, in itself, the power of removal, and have given it to some body, or person, of the government, to be exercised; that, therefore, the law could make no disposition of it, and the attempt to grant it was unconstitutional; or the law is unnecessary; -- for, if the power is granted in the way the clause supposes, the legislature can neither add to nor diminish the power by making the declaration.
{368} With respect to the unconstitutionality of the measure, I observe, that, if it is so, the Constitution must have given the power expressly to some person or body other than the President; otherwise, it cannot be said with certainty that it is unconstitutional in us to declare that he shall have the power of removal. I believe it is not contended that the Constitution expressly gives this power to any other person; but it is contended that the objection is collected from the nature of the body which has the appointment, and the particular clause in the Constitution which declares, that all officers shall be removed on conviction. It will be necessary to examine the expressions of that clause; but I believe it will be found not to comprehend the case we have under consideration. I suppose the Constitution contemplates somewhere the power of removal for other causes besides those expressed as causes of impeachment. I take it that the clause in the Constitution respecting impeachments is making a provision for removal against the will of the President; because the house can carry the offender before a tribunal which shall remove him, notwithstanding the desire of the chief magistrate to keep him in office. If this is not to be the construction, then a particular clause in the Constitution will be nugatory. The ConStitution declares that the judges shall hold their offices during good behavior. This implies that other officers shall hold their offices during a limited time, or according to the will of some persons; because, if all persons are to hold their offices during good behavior, and to be removed only by impeachment, then this particular declaration in favor of the judges will be useless. We are told that an officer must misbehave before he can be removed. This is true with respect to those officers who hold their commissions during good behavior; but it cannot be true of those who are appointed during pleasure: they may be removed for incapacity, or if their want of integrity is suspected; but the question is to find where this power of removal resides.
It has been argued that we are to find this in the construction arising from the nature of the authority which appoints. Here I would meet the gentleman, if it was necessary to rest it entirely on that ground. Let me ask the gentleman, who appoints? The Constitution gives an advisory power to the Senate; but it is considered that the President makes the appointment. The appointment and responsibility are actually his; for it is expressly declared that he shall nominate and appoint, though their advice is required to be taken. If, from the nature of the appointment, we are to collect the authority of removal, then I say the latter power is lodged in the President; because, by the Constitution, he has the power of appointment: instantly as the Senate have advised the appointment, the act is required to be executed by the President. The language is explicit: "He shall nominate, and, by and with the advice and consent of the Senate, appoint;" so that, if the gentleman's general principle, that the power appointing shall remove also, is true, it follows that the removal shall be by the President.
It has been stated, as an objection, that we should extend the powers of the President, if we give him the power of removal; and we are not to construe the Constitution in such way as to enlarge the executive power to the injury of any other; that, as he is limited in the power of appointment by the control of the Senate, he ought to be equally limited in the removal.
If there is any weight in this argument, it implies as forcibly against vesting the power conjointly in the President and Senate; because, if we are not to extend the powers of the executive beyond the express detail of {369} duties found in the Constitution, neither are we at liberty to extend the duties of the Senate beyond those precise points fixed in the same instrument: of course, if we cannot say the President alone shall remove, we cannot say the President and Senate may exercise such power.
It is admitted that the Constitution is silent on this subject; but it is also silent with respect to the appointments it has vested in the legislature. The Constitution declares that Congress may by law vest the appointment of such inferior officers as they think proper in the President alone, in the courts of law, or heads of departments; yet says nothing with respect to the removal. Now, let us suppose the legislature to have vested the power of appointment in the President in cases of inferior offices; can the intention of the Constitution in this, (contemplating this mode of appointment for the sake of convenience,) be ever carried into effect if we say nothing respecting the removal? What would be the consequence if the legislature should not make the declaration? Could it be supposed that he would not have the authority to dismiss the officer he has so appointed? To be sure he could. Then, of course, in those cases in which the Constitution has given the appointment to the President, he must have the power of removal, for the sake of consistency; for no person will say that, if the President should appoint an inferior officer, he should not have the power to remove him when he thought proper, if no particular limitation was determined by the law. Thus stands the matter with respect to the Constitution. There is no express prohibition of the power, nor positive grant. If, then, we collect the power by inference from the Constitution, we shall find it pointed strongly in favor of the President, much more so than in favor of the Senate combined with him.
This is a case omitted, or it is not; if it is omitted, and the power is necessary and essential to the government, and to the great interests of the United States, who are to make the provision and supply the defect? Certainly the legislature is the proper body. It is declared they shall establish offices by law. The establishment of an office implies every thing relative to its formation, constitution. and termination; consequently, the Congress are authorized to declare their judgment on each of these points. But if the arguments of the gentleman from South Carolina (Mr. Smith) prevail, that, as the Constitution has not meditated the removal of an officer in any other way than by impeachment, it would be an assumption in Congress to vest the President, courts of law, or heads of departments, with power to dismiss their officers in any other manner: -- would a regulation of this kind be effectual to carry lute effect the great objects of the Constitution? I contend it would not. Therefore, the principle which opposes the carrying of the Constitution into effect, must be rejected as dangerous and incompatible with the general welfare. Hence all those suppositions, that, because the Constitution is silent, the legislature must not supply the defect, are to be treated as chimeras and illusory inferences.
I believe it is possible that the Constitution may be misconstrued by the legislature; but will any gentleman contend that it is more probable that the Senate, one branch only of the legislature, should make a more upright decision on any point than the whole legislature, -- especially on a point in which they are supposed by some gentlemen to be so immediately interested, even admitting that honorable body to have more wisdom and more integrity than this house? Such an inference can hardly be admitted. But I believe it seldom or never was so contended, that there was more wisdom or security in a part than in the whole.
{370} But supposing the power to vest in the Senate, is it more safe in their hands than where we contend it should be? Would it be more satisfactory to our constituents for us to make such a declaration in their favor? I believe not.
With respect to this and every case omitted, but which can be collected from the other provisions made in the Constitution, the people look up to the legislature, the concurrent opinion of the two branches, for their construction; they conceive those cases proper subjects for legislative wisdom; they naturally suppose, where provisions are to be made, they ought to spring from this source, and this source alone.
From a view of these circumstances, we may be induced to meet the question in force. Shall we now venture to supply the defect? For my part, I have no hesitation. We should supply the defect; we should place the power of removal in the great executive officer of the government.
In the Constitution, the heads of departments are considered as the mere assistants of the President in the performance of his executive duties. He has the superintendence, the control, and the inspection, of their conduct; he has an intimate connection with them; they must receive from him his orders and directions; they must answer his inquiries in writing, when he requires it. Shall the person having these superior powers to govern -- with such advantages of discovering and defeating the base intentions of his officers, their delinquencies, their defective abilities, or their negligence -- be restrained from applying these advantages to the most useful, nay, in some cases, the only useful purpose which can be answered by them?
It appears to me that the power can be safely lodged here. But it has been said by some gentlemen, that if it is lodged here it will be subject to abuse; that there may be a change of officers, and a complete revolution throughout the whole executive department, upon the election of every new President. I admit that this may be the case, and contend that it should be the case if the President thinks it necessary. I contend that every President should have those men about him in whom he can place the most confidence, provided the Senate approve his choice. But we are not from hence to infer that changes will be made in a wanton manner, and from capricious motives; because the Presidents are checked and guarded in a very safe manner with respect to the appointment of their successors; from all which it may be fairly presumed that changes will be made on principles of policy and propriety only.
Will the man chosen by three millions of his fellow-citizens, be such a wretch as to abuse them in a wanton manner? For my part I should think, with the gentleman from Virginia, (Mr. Madison,) that a President, thus selected and honored by his country, is entitled to my confidence; and I see no reason why we should suppose he is more inclined to do harm than good. Elected as he is, I trust we are secure. I do not draw these observations from the safety I conceive under the present administration, or because our chief magistrate is possessed of irradiated virtues, whose lustre brightens this western hemisphere, and incites the admiration of the world! But I calculate upon what our mode of election is likely to bring forward, and the security which the Constitution affords. If the President abuses his trust, will he escape the popular censure when the period which terminates his elevation arrives? And would he not be liable to impeachment for displacing a worthy and able man who enjoyed the confidence of the people?
{371} We ought not to consider one side alone; we should consider the benefit of such an arrangement, as well as the difficulties. We should also consider the difficulties arising from the exercise of the power of removing by the Senate. It was well observed by an honorable gentleman (Mr. Sedgwick) on this point, that the Senate must continue in session the whole year, or be hastily assembled from the extremes and all parts of the continent, whenever the President thinks a removal necessary. Suppose an ambassador, or minister plenipotentiary, negotiating or intriguing contrary to his instructions, and to the injury of the United States; before the Senate can he assembled to accede to his recall, the interest of his country may be betrayed, and the evil irrevocably perpetrated. A great number of such instances could be enumerated; but I will not take up the time of the committee; gentlemen may suggest them to their own minds; and I imagine they will be sufficient to convince them that, with respect to the expediency, the power of removal ought not to be in the Senate.
I take it, Mr. Chairman, that it is proper for the legislature to speak their sense upon those points on which the Constitution is silent. I believe the judges will never decide that we are guilty of a breach of the Constitution, by declaring a legislative opinion in cases where the Constitution is silent. If the laws shall be in violation of any part of the Constitution, the judges will not hesitate to decide against them. Where the power is incident to the government, and the Constitution is silent, it can be no impediment to a legislative grant. I hold it necessary, in such cases, to make provision. In the case of removal, the Constitution is silent. The wisdom of the legislature should therefore declare in what place the power resides.
Mr. JACKSON. As a constitutional question, it is of great moment, and worthy of full discussion. I am, sir, a friend to the full exercise of all the powers of government, and deeply impressed with the necessity there exists of having an energetic executive. But, friend as I am to the efficient government, I value the liberties of my fellow-citizens beyond every other consideration; and where I find them endangered, I am willing to forego every other blessing to secure them. I hold it as good a maxim as it is an old one -- of two evils to choose the least.
It has been mentioned, that in all governments the executive magistrate had the power of dismissing officers under him. This may hold good in Europe, where monarchs claim their powers jure divino; but it never can be admitted in America, under a Constitution delegating enumerated powers. It requires more than a mere ipse dixit to demonstrate that any power is in its nature executive, and consequently given to the President of the United States by the present Constitution. But if this power is incident to the executive branch of government, it does not follow that it vests in the President alone; because he alone does not possess all executive powers. The Constitution has lodged the power of forming treaties, and all executive business, I presume, connected therewith, in the President: but it is qualified by and with the advice and consent of the Senate -- provided two thirds of the Senate agree therein. The same has taken place with respect to appointing officers. From this I infer that those arguments are done away which the gentleman from Virginia (Mr. Madison) used, to prove that it was contrary to the print pies of the Constitution that we should blend the executive and legislative powers in the same body. It may be wrong that the great powers of government should be blendedinthis manner, but we cannot separate them: the error is adopted in the {372} Constitution, and can only be eradicated by weeding it out of that instrument. It may therefore be a proper subject for amendment, when we come to consider that business again.
It has been observed, that the President ought to have this power to remove a man when he becomes obnoxious to the people, or disagreeable to himself. Are we, then, to have all the officers the mere creatures of the President? This thirst of power will introduce a treasury bench into the house, and we shall have ministers obtrude upon us to govern and direct the measures of the legislature, and to support the influence of their master; and shall we establish a different influence between the people and the President? I suppose these circumstances must take place, because they have taken place in other countries. The executive power falls to the ground in England, if it cannot be supported by the Parliament; therefore a high game of corruption is played, and a majority secured to the ministry by the introduction of placemen and pensioners.
The gentlemen have brought forward arguments drawn from possibility. It is said that our secretary of foreign affairs may become unfit for his office by a fit of lunacy, and therefore a silent remedy should be applied. It is true such a case may happen; but it may also happen in cases where there is no power of removing. Suppose the President should be taken with a fit of lunacy; would it be possible by such arguments to remove him? I apprehend he must remain in office during his four years. Suppose the Senate should be seized with a fit of lunacy, and it was to extend to the House of Representatives; what could the people do but endure this mad Congress till the term of their election expired? We have seen a king of England in an absolute fit of lunacy, which produced an interregnum in the government. The same may happen here with respect to our President; and although it is improbable that the majority of both houses of Congress may be in that situation, yet it is by no means impossible. But gentlemen have brought forward another argument, with respect to the judges. It is said they are to hold their offices during good behavior. I agree that ought to be the case. But is not a judge liable to the act of God, as well as any other officer of government? However great his legal knowledge, his judgment and integrity, it may be taken from him at a stroke, and he rendered the most unfit of all men to fill such an important office. But can you remove him? Not for this cause: it is impossible; because madness is no treason, crime, or misdemeanor. If he does not choose to resign, like Lord Mansfield he may continue in office for ninety or one hundred years; for so long have some men retained their faculties.
But let me ask gentlemen if it is possible to place their officers in such a situation -- to deprive them of their independency and firmness; for I apprehend it is not intended to stop with the secretary of foreign affairs. Let it be remembered that the Constitution gives the President the command of the military. If you give him complete power over the man with the strong box, he will have the liberty of America under his thumb. It is easy to see the evil which may result. If he wants to establish an arbitrary authority, and finds the secretary of finance not inclined to second his endeavors, he has nothing more to do than to remove him, and get one appointed of principles more congenial with his own. Then says he, "I have got the army; let me have but the money, and I will establish my throne upon the ruins of your visionary republic]" Let no gentleman say I am contemplating imaginary dangers -- the mere chimeras of a heated {373} brain. Behold the baneful influence of the royal prerogative. All officers till lately held their commissions during the pleasure of the crown.
At this moment, see the king of Sweden aiming at arbitrary power, shutting the doors of his senate, and compelling, by the force of arms, his shuddering councillors to acquiesce in his despotic mandates. I agree that this is the hour in which we ought to establish-our government; but it is an hour in which we should be wary and cautious, especially in what respects the executive magistrate. With him every power may be safely lodged. Black, indeed, is the heart of that man who even suspects him to be capable of abusing them. But alas! he cannot be with us forever; he is liable to the vicissitudes of life; he is but mortal; and though I contemplate it with great regret, yet I know the period must come which will separate him from his country; and can we know the virtues or vices of his successor in a very few years? May not a man with a Pandora's box in his breast come into power, and give us sensible cause to lament our present confidence and want of foresight?
A gentleman has declared that, as the Constitution has given the power of appointment, it has consequently given the power of removal. I agree with him in all that the Constitution expressly grants, but I must differ in the constructive reasoning. It was said by the advocates of this Constitution, that the powers not given up in that instrument were reserved to the people. Under this impression, it has been proposed, as a favorite amendment to the Constitution. that it should be declared that all powers not expressly given should be retained. As to what gentlemen have said of its giving satisfaction to the people, I deny it. They never can be pleased that we should give new and extraordinary powers to the executive. We must confine ourselves to the powers described in the Constitution; and the moment we pass it, we take an arbitrary stride toward a despotic government.
The gentleman from New York (Mr. Lawrence) contends that the President appoints, and therefore he ought to remove. I shall agree to give him the same power, in cases of removal, as he has in appointing; but nothing more. Upon this principle. I would agree to give him the power of suspension during the recess of the Senate. This, in my opinion, would effectually provide against those inconveniences which have been apprehended, and not expose the government to the abuses we have to dread from the wanton and uncontrolled authority of removing officers at pleasure. I am the friend of an energetic government; but while we are giving vigor to the executive arm, we ought to be careful not to lay the foundation of future tyranny.
For my part, I must declare that I think this power too great to be safely trusted in the hands of a single man; especially in the hands of a man who has so much constitutional power. I believe, if those powers had been more contracted, the system of government would have been more generally agreeable to our constituents; that is, at present it would conform more to the popular opinion, at least. For my part, though I came from a state where the energy of government can be useful, and where it is at this moment wanting, I cannot agree to extend this power; because I conceive it may, at some future period, be exercised in such a way as to subvert the liberties of my country; and no consideration shall ever induce me to put them in jeopardy. It is under this impression that I shall vote decidedly against the clause.
Mr. CLYMER. If I was to give my vote merely on constitutional {374} ground, I should be totally indifferent whether the words were struck out or not; because I am clear that the executive has the power of removal, as incident to his department; and if the Constitution had been silent with respect to the appointment, he would have had that power also. The reason, perhaps, why it was mentioned in the Constitution, was to give some further security against the improper introduction of improper men into office. But in cases of removal there is not such necessity for this check. What great danger would arise from the removal of a worthy man, when the Senate must be consulted in the appointment of his successor? Is it likely that they will consent to advance an improper character? The presumption therefore is, that he would not abuse this power; or, if he did, only one good man would be changed for another.
If the President is divested of this power, his responsibility is destroyed; you prevent his efficiency, and disable him from affording that security to the people which the Constitution contemplates. What use will it be of, to call the citizens of the Union together every four years to obtain a purified choice of a representative, if he is to be a mere cipher in the government? The executive must act by others; but you reduce him to a mere shadow, when you control both the power of appointment and removal. If you take away the latter power, he ought to resign the power of superintending and directing the executive parts of government into the hands of the Senate at once; and then we become a dangerous aristocracy, or shall be more destitute of energy than any government on earth. These being my sentiments, I wish the clause to stand as a legislative declaration that the power of removal is constitutionally vested in the President.
Mr. PAGE. I venture to assert that this clause of the bill contains in it the seeds of royal prerogative. If gentlemen lay such stress on the energy of the government, I beg them to consider how far this doctrine may go. Every thing which has been said in favor of energy in the executive may go to the destruction of freedom, and establish despotism. This very energy, so much talked of, has led many patriots to the Bastile, to the block, and to the halter. If the chief magistrate can take a man away from the head of a department without assigning any reason, he may as well be invested with power, on certain occasions, to take away his existence. But will you contend that this idea is consonant with the principles of a free government, where no man ought to be condemned unheard; nor till after a solemn conviction of guilt on a fair and impartial trial? It would, in my opinion, be better to suffer, for a time, the mischief arising from the conduct of a bad officer, than admit principles which would lead to the establishment of despotic prerogatives.
There can be little occasion for the President to exercise this power, unless you suppose that the appointments will be made in a careless manner, which by no means is likely to be the case. If, then, you have a good officer, why should he be made dependent upon the will of a single man? Suppose a colonel in your army should disobey his orders, or cowardly flee before the enemy; what would the general do? Would he be at liberty to dismiss the officer? No; he would suspend him, until a court-martial was held to decide the degree of guilt. If gentlemen had been content to say that the President might suspend, I should second their motion, and afterward the officer might be removed by and with the advice and consent of the Senate; but to make every officer of the government dependent on the will and pleasure of one man, will be vesting {375} such arbitrary power in him as to occasion every friend to liberty to tremble for his country. I confess it seems to me a matter of infinite concern, and I should feel very unhappy if I supposed the clause would remain in the bill.
Mr. SHERMAN. I consider this as a very important subject in every point of view, and therefore worthy of full discussion. In my mind, it involves three questions: First, whether the President has, by the Constitution, the right to remove an officer appointed by and with the advice and consent of the Senate. No gentleman contends but the advice and consent of the Senate are necessary to make the appointment in all cases, unless in inferior offices, where the contrary is established by law; but then they allege that, although the consent of the Senate is necessary to the appointment, the President alone, by the nature of his office, has the power of removal. Now, it appears to me that this opinion is ill founded, because this provision was intended for some useful purpose, and by that construction would answer none at all. I think the concurrence of the Senate as necessary to appoint an officer as the nomination of the President; they are constituted as the mutual checks, each having a negative upon the other.
I consider it as an established principle, that the power which appoints can also remove, unless there are express exceptions made. Now, the power which appoints the judges cannot displace them, because there is a constitutional restriction in their favor; otherwise, the President, by and with the advice and consent of the Senate, being the power which appointed them. would be sufficient to remove them. This is the construction in England, where the king had the power of appointing judges; it was declared to be during pleasure, and they might be removed when the monarch thought proper. It is a general principle in law, as well as reason, that there should be the same authority to remove as to establish. It is so in legislation, where the several branches whose concurrence was necessary to pass a law, must concur in repealing it. Just so I take it to be in cases of appointment; and the President alone may remove when he alone appoints, as in the case of inferior offices to be established by law.
Here another question arises -- whether this officer comes within the description of inferior officers. Some gentlemen think not, because he is the head of the department for foreign affairs. Others may perhaps think that, as he is employed in the executive department in aid of the President, he is not such an officer as is understood by the term heads of departments; because the President is the head of the executive de pertinent, in which the secretary of foreign affairs serves. If this is the construction which gentlemen put upon the business, they may vest the appointment in the President alone, and the removal will be in him of consequence. But if this reasoning is not admitted, we can by no means vest the appointment or removal in the chief magistrate alone. As the officer is the mere creature of the legislature, we may form it under such regulations as we please, with such powers and duration as we think good policy requires. We may say he shall hold his office during good behavior, or that he shall be annually elected; we may say he shall be displaced for neglect of duty, and point out how he should be convicted of it, without calling upon the President or Senate.
The third question is, if the legislature has the power to authorize the President alone to remove this officer, whether it is expedient to vest him {376} with it. I do not believe it is absolutely necessary that he should have such power, because the power of suspending would answer all the purposes which gentlemen have in view by giving the power of removal. I do not think that the officer is only to be removed by impeachment, as is argued by the gentleman from South Carolina, (Mr. Smith;) because he is the mere creature of the law, and we can direct him to be removed on conviction of mismanagement or inability, without calling upon the Senate for their concurrence. But I believe, if we make no such provision; he may constitutionally be removed by the President, by and with the advice and consent of the Senate; and I believe it would be most expedient for us to say nothing in the clause on the subject.
Mr. STONE. I think it necessary, Mr. Chairman, to determine the question before us. I do not think it would do to leave it to the determination of courts of law hereafter. It should be our duty, in cases like the present, to give our opinion on the construction of the Constitution.
When the question was brought forward, I felt unhappy, because my mind was in doubt; but since then, I have deliberately reflected upon it, and have made up an opinion perfectly satisfactory to myself. I consider that, in general, every officer who is appointed should be removed by the power that appoints him. It is so in the nature of things. The power of appointing an officer arises from the power over the subject on which the officer is to act. It arises from the principal, who appoints, having an interest in, and a right to conduct, the business which he does by means of an agent; therefore this officer appears to be nothing more than an agent appointed for the convenient despatch of business. This is my opinion on this subject, and the principle will operate from a minister of state down to a tide-waiter. The Constitution, it is admitted by every gentleman, recognizes the principle; because it has not been denied, whenever general appointments are made under the Constitution, that they are to be at will and pleasure; that where an appointment is made during good behavior. it is an exception to the general rule; there you limit the exercise of the power which appoints: it is thus in the case of the judges.
Let us examine, then, whence originates the power of Congress with respect to the officer under consideration. I presume it is expressly contained in the Constitution, or clearly deducible from that instrument, that we have a right to erect the department of foreign affairs. No gentleman will consent to a reduction or relinquishment of that power. The Constitution has given us the power of laying and collecting taxes, duties, imposts, and excises; this includes the power of organizing a revenue board. It gives us power to regulate commerce; this includes the power of establishing a board of trade: to make war, and organize the militia; this enables us to establish a minister at war: and generally to make all laws necessary to carry these powers into effect. Now, it appears to me, that the erection of this department is expressly within the Constitution. Therefore it seems to me, as Congress, in their legislative capacity, have an interest in, and power over, this whole transaction, that they consequently appoint and displace their officers. But there is a provision in the Constitution which takes away from us the power of appointing officers of a certain description: they are to be appointed by the President, by and with the advice and consent of the Senate; then the Constitution limits the legislature in appointing certain officers, which would otherwise be within their power.
{377} It will, then, become a considerable question, as it has been in my mind, that as, in the nature of things, the power which appoints removes also, and as the power of appointment, by the Constitution, is placed in the President and Senate, whether the removal does not follow as incidental to that power. But I am averse to that construction, as the terms of the Constitution are sufficient to invest the legislature with complete power for performing its duties; and since it has given the power of making treaties, and judging of them, to the Senate and President, I should be inclined to believe that, as they have an immediate concern in, and control over this business, therefore they ought to have the power of removal. It may be said, with respect to some other officers, that, agreeably to this principle, the President alone ought to have the sole power of removal, because he is interested in it, and has the control over the business they manage; for example, the minister at war. The President is the commander-in-chief of the army and militia of the United States; but the ground is narrowed by the Senate being combined with him in making treaties; though even here the ground is reduced, because of the power combined in the whole legislature to declare war and grant supplies. If it is considered that Congress have a right to appoint these officers, or dictate the mode by which they shall be appointed, -- and I calculate in my own opinion the manner of dismission from the mode of appointment, -- I should have no doubt but we might make such regulations as we may judge proper. If the Constitution had given no rule by which officers were to be appointed, I should search for one in my own mind. But as the Constitution has laid down the rule, I consider the mode of removal as clearly defined as by implication it can be: it ought to be the same with that of the appointment. What quality of the human mind is necessary for the one that is not necessary for the other? Information, impartiality, and judgment in the business to be conducted, are necessary to make a good appointment. Are not the same properties requisite for a dismission? It appears so to me.
I cannot subscribe to the opinion, delivered by some gentlemen, that the executive in its nature implies the power to appoint the officers of government. Why does it imply it? The appointment of officers depends upon the qualities that are necessary for forming a judgment on the merits of men; and the displacing of them, instead of including the idea of what is necessary for an executive officer, includes the idea necessary for a judicial one; therefore it cannot exist, in the nature of things, that an executive power is either to appoint or displace the officers of government. Is it a political dogma? Is it founded in experience? If it is, I confess it has been very long wrapped up in mysterious darkness. As a political rule, it is not common in the world, excepting monarchies, where this principle is established, that the interest of the state is included in the interest of the prince; that whatever injures the state is an injury to the sovereign; because he has a property in the state and the government, and is to take care that nothing of that kind is to be injured or destroyed, he being so intimately connected with the welt-being of the nation, it appears a point of justice only to suffer him to manage his own concerns. Our principles of government are different; and the President, instead of being master of the people of America, is only their great servant. But, if it arises from a political dogma, it must be subject to exceptions, which hold good as they are applied to governments which give greater or lesser proportions of power to their executive. I shall only remark that the Constitution, {378} in no one part of it, so far as I can see, supposes that the President is the sole judge of the merits of an appointment; it is very forcible to my mind, that the Constitution has confined his sole appointment to the case of inferior officers. It also strikes me, from the clause that gives the President the power to grant reprieves and pardons for offences against the United States, except in cases of impeachment, that the Constitution reposes a confidence in the Senate which it has not done in this officer; and therefore, there is no good reason for destroying that participation of power which the system of government has given to them.
Whether it would be expedient to give the power of removal to the President alone, depends on this consideration: -- they are both bodies chosen with equal care and propriety; the people show as much confidence in the one as in the other; the best President and the best Senate, it is to be presumed, will always be chosen that they can get. All the difficulties and embarrassments that have been mentioned can be removed by giving to the President the power of suspension during the recess of the Senate; and I think that an attention to the Constitution will lead us to decide that this is the only proper power to be vested in the President of the United States.
Mr. MADISON. I feel the importance of the question, and know that our decision will involve the decision of all similar cases. The decision that is at this time made will become the permanent exposition of the Constitution; and on a permanent exposition of the Constitution will depend the genius and character of the whole government. It will depend, perhaps, on this decision, whether the government shall retain that equilibrium which the Constitution intended, or take a direction towards aristocracy, or anarchy, among the members of the government. Hence, how careful ought we to be to give a true direction to a power so critically circumstanced! It is incumbent on us to weigh, with particular attention, the arguments which have been advanced in support of the various opinions with cautious deliberation. I own to you, Mr. Chairman, that I feel great anxiety upon this question. I feel an anxiety, because I am called upon to give a decision in a case that may affect the fundamental principles of the government under which we act, and liberty itself. But all that I can do, on such an occasion, is to weigh well every thing advanced on both sides, with the purest desire to find out the true meaning of the Constitution, and to be guided by that, and an attachment to the true spirit of liberty, whose influence I believe strongly predominates here.
Several constructions have been put upon the Constitution relative to the point in question. The gentleman from Connecticut (Mr. Sherman) has advanced a doctrine which was not touched upon before. He seems to think (if I understood him right)that the power of displacing from office is subject to legislative discretion, because, it having a right to create, it may limit or modify, as is thought proper. I shall not say but at first view this doctrine may seem to have some plausibility. But when I consider that the Constitution clearly intended to maintain a marked distinction between the legislative, executive, and judicial powers of government; and when I consider that, if the legislature has a power such as contended for, they may subject, and transfer, at discretion, powers from one department of government to another; they may, on that principle, exclude the President altogether from exercising any authority in the removal of officers; they may give it to the Senate alone, or the President and Senate combined; they may vest it in the whole Congress, or they may {379} reserve it to be exercised by this house. When I consider the consequences of this doctrine, and compare them with the true principles of the Constitution, I own that I cannot subscribe to it.
Another doctrine, which has found very respectable friends, has been particularly advocated by the gentleman from South Carolina, (Mr. Smith.) It is this: When an officer is appointed by the President and Senate, he can only be displaced, from malfeasance in his office, by impeachment. I think this would give a stability to the executive department, so far as it may be described by the beads of departments, which is more incompatible with the genius of republican governments in general, and this Constitution in particular, than any doctrine which has yet been proposed. The danger to liberty -- the danger of maladministration -- has not yet been found to lie so much in the facility of introducing improper persons into office, as in the difficulty of displacing those who are unworthy of the public trust. If it is said that an officer once appointed shall not be displaced without the formality required by impeachment, I shall be glad to know what security we have for the faithful administration of the government. Every individual in the long chain, which extends from the highest to the lowest link of the executive magistracy, would find a security in his situation which would relax his fidelity and promptitude in the discharge of his duty.
The doctrine, however, which seems to stand most in opposition to the principles I contend for is, that the power to annul an appointment is, in the nature of things, incidental to the power which makes the appointment. I agree that, if nothing more was said in the Constitution than that the President, by and with the advice and consent of the Senate, should appoint to office, there would be great force in saying that the power of removal resulted, by a natural implication, from the power of appointing. But there is another part of the Constitution no less explicit than the one on which the gentleman's doctrine is founded; it is that part which declares that the executive power shall be vested in a President of the United States. The association of the Senate with the President, in exercising that particular function, is an exception to this general rule; and exceptions to general rules, I conceive, are ever to be taken strictly. But there is another part of the Constitution which inclines, in my judgment, to favor the construction I put upon it: the President is required to take care that the laws be faithfully executed. If the duty to seethe laws faithfully executed be required at the hands of the executive magistrate, it would seem that it was generally intended he should have that species of power which is necessary to accomplish that end.
Now, if the officer, when once appointed, is not to depend upon the President for his official existence, but upon a distinct body, (for where there are two negatives required, either can prevent the removal,) I confess I do not see how the President can take care that the laws be faithfully executed. It is true, by a circuitous operation, he may obtain an impeachment, and even without this it is not impossible he may obtain the concurrence of the Senate, for the purpose of displacing an officer; but would this give that species of control to the executive magistrate which seems to be required by the Constitution? I own, if my opinion was not contrary to that entertained by what I suppose to be the minority on this question, I should be doubtful of being mistaken, when I discovered how inconsistent that construction would make the Constitution with itself. I can hardly bring myself to imagine, the wisdom of the Convention who framed the Constitution contemplated such incongruity.
{380} There is another maxim which ought to direct us in expounding the Constitution, and is of great importance. It is laid down in most of the constitutions, or bills of rights, in the republics of America, -- it is to be found in the political writings of the most celebrated civilians, and is every where held as essential to the preservation of liberty, -- that the three great departments of government be kept separate and distinct; and if in any case they are blended, it is in order to admit a partial qualification, in order more effectually to guard against an entire consolidation. I think, therefore, when we review the several parts of this Constitution, -- when it says that the legislative powers shall be vested in a Congress of the United States, under certain exceptions, and the executive power vested in the President, with certain exceptions, -- we must suppose they were intended to be kept separate in all cases in which they are not blended, and ought, consequently, to expound the Constitution so as to blend them as little as possible.
Every thing relative to the merits of the question, as distinguished from a constitutional question, seems to turn on the danger of such a power vested in the President alone. But when I consider the checks under which he lies in the exercise of this power, I own to you I feel no apprehensions but what arise from the dangers incidental to the power itself; for dangers will be incidental to it, vest it where you please. I will not reiterate what was said before, with respect to the mode of election, and the extreme improbability that any citizen will be selected from the mass of citizens who is not highly distinguished by his abilities and worth: in this alone we have no small security for the faithful exercise of this power. But, throwing that out of the question, let us consider the restraints he will feel after he is placed in that elevated station. It is to be remarked that the power, in this case, will not consist so much in continuing a bad man in office as in the danger of displacing a good one. Perhaps the great danger, as has been observed, of abuse in the executive power, lies in the improper continuance of bad men in office. But the power we contend for will not enable him to do this; for if an unworthy man be continued in office by an unworthy President, the House of Representatives can at any time impeach him, and the Senate can remove him, whether the President chooses or not. The danger, then, consists merely in this -- the President can displace from office a man whose merits require that he should be continued in it. What will be the motives which the President can feel for such abuse of his power, and the restraints that operate to prevent it? In the first place, he will be impeachable by this house, before the Senate, for such an act of maladministration; for I contend that the wanton removal of meritorious officers would subject him to impeachment and removal from his own high trust. But what can be his motives for displacing a worthy man? It must be, that he may fill the place with an unworthy creature of his own. Can he accomplish this end? No: he can place no man in the vacancy whom the Senate shall not approve; and if he could fill the vacancy with the man he might choose, I am sure he would have little inducement to make an improper removal.
Let us consider the consequences. The injured man will be supported by the popular opinion; the community will take sides with him against the President; it will facilitate those combinations, and give success to those exertions which will be pursued to prevent his reëlection. To displace a man of high merit, and who, from his station, may be supposed a man of extensive influence, are considerations which will excite serious {381} reflections beforehand in the mind of any man who may fill the presidential chair: the friends of those individuals, and the public sympathy, will be against him. If this should not produce his impeachment before the Senate, it will amount to an impeachment before the community, who will have the power of punishment by refusing to reëlect him. But suppose this persecuted individual cannot obtain revenge in this mode: there are other modes in which be could make the situation of the President very inconvenient, if you suppose him resolutely bent on executing the dictates of resentment. If he had not influence enough to direct the vengeance of the whole community, he may probably be able to obtain an appointment in one or other branch of the legislature; and, being a man of weight, talents, and influence, in either case he may prove to the President troublesome indeed. We have seen examples, in the history of other nations, which justify the remark I now have made: though the prerogatives of the British king are as great as his rank, and it is unquestionably known that be has a positive influence over both branches of the legislative body, yet there have been examples in which the appointment and removal of ministers has been found to be dictated by one or other of those branches. Now, if this is the case with an hereditary monarch, possessed of those high prerogatives, and furnished with so many means of influence, can we suppose a President, elected for four years only, dependent upon the popular voice, impeachable by the legislature, little if at all distinguished, for wealth, personal talents, or influence, from the head of the department himself; -- I say, will he bid defiance to all these considerations, and wantonly dismiss a meritorious and virtuous officer? Such abuse of power exceeds my conception. If any thing takes place in the ordinary course of business of this kind, my imagination cannot extend to it on any rational principle.
But let us not consider the question on one side only: there are dangers to be contemplated on the other. Vest the power in the Senate jointly with the President, and you abolish at once the great principle of unity and responsibility in the executive department, which was intended for the securely of liberty and the public good. If the President should possess alone the power of removal from office, those who are employed in the execution of the law will be in their proper situation, and the chain of dependence be preserved; the lowest officer, the middle grade, and the highest, will depend, as they ought, on the President, and the President on the community. The chain of dependence, therefore, terminates in the supreme body, namely, in the people; who will possess besides, in aid of their original power, the decisive engine of impeachment. Take the other supposition -- that the power should be vested in the Senate, on the principle that the power to displace is necessarily connected with the power to appoint. It is declared by the Constitution, that we may by law vest the appointment of inferior officers in the heads of departments, the power of removal being incidental, as stated by some gentlemen. Where does this terminate? If you begin with the subordinate officers, they are dependent on their superior, he on the next superior, and he, on whom? -- on the Senate, a permanent body, by its peculiar mode of election, in reality existing forever a body possessing that proportion of aristocratic power which the Constitution no doubt thought wise to be established in the system, but which some have strongly excepted against. And, let me ask, gentlemen, is there equal security in this case as in the other? Shall we trust the Senate, responsible to individual legislatures, rather than the {382} person who is responsible to the whole community? It is true, the Senate o not hold their offices for life, like aristocracies recorded in the historic page; yet the fact is, they will not possess that responsibility for the exercise of executive powers which would render it safe for us to vest such powers in them. What an aspect will this give to the executive! Instead of keeping the departments of government distinct, you make an executive out of one branch of the legislature; you make the executive a two-headed monster, to use the expression of the gentleman from New Hampshire, (Mr. Livermore;) you destroy the great principle of responsibility, and perhaps have the creature divided in its will, defeating the very purposes for which a unity in the executive was instituted.
These objections du nut lie against such an arrangement as the bill establishes. I conceive that the President is sufficiently accountable to the community; and if this power is vested in him, it will be vested where its nature requires it should be vested: if any thing in its nature is executive, it must be that power which is employed in superintending, and seeing that the laws are faithfully executed; the laws cannot be executed but by officers appointed for that purpose; therefore, those who are over such officers naturally possess the executive power. If any other doctrine be admitted, what is the consequence? You may set the Senate at the head of the executive department, or you may require that the officers hold their places during the pleasure of this branch of the legislature, if you cannot go so far as to say we shall appoint them; and by this means you link together two branches of the government which the preservation of liberty requires to be constantly separated.
Another species of argument has been urged against this clause. It is said that it is improper, or at least unnecessary, to come to any decision on this subject. It has been said by one gentleman that it would be officious in this branch of the legislature to expound the Constitution, so far as it relates to the division of power between the President and the Senate. It is incontrovertibly of as much importance to this branch of the government as to any other, that the Constitution be preserved entire. It is our duty, so far as it depends upon us, to take care that the powers of the Constitution be preserved entire to every department of government. The breach of the Constitution in one point will facilitate the breach in another: a breach in this point may destroy the equilibrium by which the house retains its consequence and share of power; therefore we are not chargeable with an officious interference. Besides, the bill, before it can have effect, must be submitted to both those branches who are particularly interested in it; the Senate may negative, or the President may object, if he thinks it unconstitutional.
But the great objection, drawn from the source to which the last arguments would lead us, is, that the legislature itself has no right to expound the Constitution; that wherever its meaning is doubtful, you must leave it to take its course, until the judiciary is called upon to declare its meaning. I acknowledge, in the ordinary course of government, that the exposition of the laws and Constitution devolves upon the judicial; but I beg to know upon what principle it can he contended that any one department draws from the Constitution greater powers than another, in marking ont the limits of the powers of the several departments. The Constitution is the charter of the people in the government; it specifies certain great powers as absolutely granted, and marks out the departments to exercise them. If the constitutional boundary of either be brought into question, I do not {383} see that any one of these independent departments has more right than another to declare their sentiments on that point.
Perhaps this is an admitted case. There is not one government on the face of the earth, so far as I recollect -- there is not one in the United States -- in which provision is made for a particular authority to determine the limits of the constitutional division of power between the branches of the government. In all systems, there are points which must be adjusted by the departments themselves, to which no one of them is competent. If it cannot be determined in this way, there is no resource left but the will of the community, to be collected in some mode to be provided by the Constitution, or one dictated by the necessity of the case. It is, therefore, a fair question, whether this great point may not as well be decided, at least by the whole legislature, as by part -- by us, as well as by the executive or the judicial. As I think it will be equally constitutional, I cannot imagine it will he less safe, that the exposition should issue from the legislative authority, than any other; and the more so, because it involves in the decision the opinions of both those departments whose powers are supposed to be affected by it. Besides, I do not see in what way this question could come before the judges to obtain a fair and solemn decision; but even if it were the case that it could, I should suppose, at least while the government is not led by passion, disturbed by faction, or deceived by any discolored medium of sight, but while there is a desire in all to see and be guided by the benignant ray of truth, that the decision may be made with the most advantage by the legislature itself.
My conclusion from these reflections is, that it will be constitutional to retain the clause; that it expresses the meaning of the Constitution as it must be established by fair construction -- and a construction which, upon the whole, not only consists with liberty, but is more favorable to it than any one of the interpretations that have been proposed.
Mr. GERRY. I am clearly of opinion, with the gentleman last up, that it is of importance to decide this question on its true principles; and am free to declare that I shall be as ready to oppose every innovation or encroachment upon the rights of the executive, as upon those of the legislative. q I conceive myself bound to do this, not only by oath, but by an obligation equally strong -- I mean the obligation of honor.
I wish, sir, to consider this question so far as to ascertain whether it is or is not unconstitutional. I have listened with attention to the arguments which have been urged on both sides; and it does appear to me that the clause is as inconsistent with the Constitution as any set of words which could possibly be inserted in the bill.
There are two questions relative to this clause -- the first, whether the sovereignty of the Union has delegated to the government the power of removal; and the second, to whom? That they have delegated such power has been clearly proved by the gentlemen who advocate the clauses -- who justly say, if the power is not delegated, the clause in the Constitution, declaring the appointment of judges to be during good behavior, would be nugatory, unless some branch of government could otherwise have removed them from office. As to the second question, it depends upon the first: if the power is delegated, it must vest in some part of the government. The gentlemen will agree that this house has not the power of removal; they will also agree that it does not vest in the judicial; then it must vest in the President, or the President by and with the advice and consent of the Senate. In either of these cases, the clause is altogether useless and {384} nugatory. It is useless if the power vests in the President; because, when the question comes before him, he will decide upon the provision made in the Constitution, and not on what is contained in this clause. If the power vests in the President and Senate, the Senate will not consent to pass the bill with this clause in it; therefore the attempt is nugatory: but if the Senate will assent to the exercise of the power of removal by the President alone, whenever he thinks proper to use it so, then, in that case, the clause is, as I said before, both useless and nugatory.
The second question which I proposed to examine is, to whom the power of removal is committed. The gentlemen in favor of this clause have not shown that, if the construction that the power vests in the President and Senate is admitted, it will be an improper construction. I call on gentlemen to point out the impropriety, if they discover any. To me it appears to preserve the unity of the several clauses of the Constitution; while their construction produces a clashing of powers, and renders of none effect some powers the Senate by express grants possess. What becomes of their power of appointing, when the President can remove at discretion? Their power of judging is rendered vain by the President's dismission; for the power of judging implies the power of dismissing, which will be totally insignificant in its operation, if the President can immediately dismiss an officer whom they have judged and declared innocent.
It is said that the President will be subject to an impeachment for dismissing a good man. This, in my mind, involves an absurdity. How can the house impeach the President for doing an act which the legislature has submitted to his discretion?
But what consequence may result from giving the President the absolute Control over all officers? Among the rest, I presume he is to have an unlimited control over the officers of the treasury. I think, if this is the case, you may as well give him at once the appropriation of the revenue; for of what use is it to make laws on this head, when the President, by looking at the officer, can make it his interest to break them? We may expect to see institutions arising under the control of the revenue, and not of the law.
Little, then, will it answer to say that we can impeach the President, when he can cover all his crimes by an application of the revenue to those who are to try him. This application would certainly be made in case of a corrupt President. And it is against corruption in him that we must endeavor to guard. Not that we fear any thing from the virtuous character who now fills the executive chair; he is perhaps to be safer trusted with such a power than any man on earth; but it is to secure us against those who may hereafter obtrude themselves into power.
But if we give the President, the power to remove, (though I contend, if the Constitution has not given it him, there is no power on earth that can, -- except the people, by an alteration of the Constitution, -- though I will suppose it for argument's sake,) you virtually give him a considerable power over the appointment, independent of the Senate; for if the Senate should reject his first nomination, which will probably be his favorite, he must continue to nominate till the Senate concur: then, immediately after the recess of the Senate, he may remove the officer, and introduce his own creature, as he has this power expressly by the Constitution. The influence created by this circumstance would Prevent his removal from an office which he held by a temporary appointment from his patron.
This has been supposed by some gentleman to be an omitted case, and {385} that Congress have the power of supplying the defect. Let gentlemen consider the ground on which they tread. If it is an omitted case, an attempt in the legislature to supply the defect will be, in fact, an attempt to amend the Constitution. But this can only be done in the way pointed out by the fifth article of that instrument; and an attempt to amend it in any other way may be a high crime or misdemeanor, or perhaps something worse. From this view of our situation, gentlemen may perhaps be led to consent to strike out the clause.
In Great Britain there are three estates -- King, Lords, and Commons. Neither of these can be represented by the other; but they conjointly can form constructions upon the rights of the people, which have been obtained, sword in hand, from the crown. These, with the legislative acts, form the British constitution; and if there is an omitted case, Parliament has a right to make provision for it. But this is not the case in America, consisting of a single estate. The people have expressly granted certain powers to Congress, and they alone had the right to form the Constitution. In doing so, they directed a particular mode of making amendments, which we are not at liberty to depart from.
The system, it cannot be denied, is in many parts obscure. If Congress are to explain and declare what it shall be, they certainly will have it in their power to make it what they please. It has been a strong objection to the Constitution, that it was remarkably obscure; nay, some have gone so far as to assert that it was studiously obscure -- that it might be applied to every purpose by Congress. By this very act, the house are assuming a power to alter the Constitution. The people of America can never be safe, if Congress have a right to exercise the power of giving constructions to the Constitution different from the original instrument. Such a power would render the most important clause in the Constitution nugatory; and one without which, I will be bold to say, this system of government never would have been ratified. If the people were to find that Congress meant to alter it in this way, they would revolt at the idea: it would be repugnant to the principles of the revolution, and to the feelings of every freeman in the United States.
It is said that the power to advise the President in appointing officers is an exception to a general rule. To what general rule? That the President, being an executive officer, has the right of appointing. From whence is this general rule drawn? Not from the Constitution, nor from custom, because the state governments are generally against it. Before the gentleman had reasoned from this general rule, he ought to have demonstrated that it was one. He ought to have shown that the President, ex officio, had the power to appoint and remove from office; that it was necessarily vested in the executive branch of the government.
It is said to be the duty of the President to see the laws faithfully executed, and he could not discharge this trust without the power of removal. I ask the gentleman if the power of suspension, which we are willing to give, is not sufficient for that purpose? In case the Senate should not be sitting, the officer could be suspended; and at their next session the causes which require his removal might be inquired into.
It is said to be incumbent on us to keep the departments distinct. I agree to this; but, then, I ask, what department is the Senate of, when it exercises its power of appointment or removal? If legislative, it shows that the power of appointment is not an executive power; but if it exercises the power as an executive branch of government, there is no mixing of {386} the departments; and therefore the gentleman's objections fall to the ground.
The dangers which lie against investing this power jointly in the Senate and President, have been pointed out; but I think them more than counterbalanced by the dangers arising from investing it in the President alone. It was said that the community would take part with the injured officer against the President, and prevent his reëlection. I admit that the injured officer may be a man of influence and talents; yet it is fifty to one against him, when he is opposed by such a powerful antagonist. It is said that, if the Senate should have this power, the government would contain a two-headed monster; but it appears to me, that if it consists in blending the power of making treaties and appointing officers, -- as executive officers, with their legislative powers, the Senate is already a two-headed monster. If it is a two-headed monster, let us preserve it a consistent one; for surely it will be a very inconsistent monster, while it has the power of appointing, if you deprive it of the power of removing. It was said that the judges could not have the power of deciding on this subject, because the Constitution was silent; but I may ask if the judges are, ex officio, judges of the law; and whether they would not be bound to declare the law a nullity, if this clause is continued in it, and is inconsistent with the Constitution. There is a clause in this system of government that makes it their duty: I allude to that which authorizes the President to obtain the opinions of the heads of departments in writing; so the President and Senate may require the opinion of the judges respecting this power, if they have any doubts concerning it.
View the matter in any point of light, and it is utterly impossible to admit this clause. It is both useless and unnecessary; it is inconsistent with the Constitution, and is an officious interference of the house in a business which does not properly come before them. We expose ourselves to most dangerous innovations by future legislatures, which may finally overturn the Constitution itself.
Mr. BENSON. I will not repeat what has been said to prove that the true construction is, that the President alone has the power of removal, but will state a case to show the embarrassment which must arise by a combination of the senatorial and legislative authority in this particular. I will instance the officer to which the bill relates. To him will necessarily be committed negotiations with the ministers of foreign courts. This is a very delicate trust. The supreme executive officer, in superintending this department, may he entangled with suspicions of a very delicate nature, relative to the transactions of the officer, and such as, from circumstances, would be injurious to name: indeed, he may be so situated, that he will not, cannot, give the evidence of his suspicion. Now, thus circumstanced, suppose tie should propose to the Senate to remove the secretary of foreign affairs: are we to expect the Senate will, without any reason being assigned, implicitly submit to his proposition? They will not.
Suppose he should say he suspected the man's fidelity: they would say, "We must proceed farther, and know the reasons for this suspicion;" they would insist on a full communication. Is it to be supposed that this man will not have a single friend in the Senate who will contend for a fair trial and full hearing? The President, then, becomes the plaintiff, and the secretary the defendant. The Senate are sitting in judgment between the chief magistrate of the United States and a subordinate officer. Now, I submit to the candor of the gentlemen, whether this looks like good government. {387} Yet, in every instance when the President thinks proper to have an officer removed, this absurd scene must be displayed. How much better, even on principles of expediency, will it be that the President alone have the power of removal!
But suppose the Senate to be joined with the President in the exercise of the power of removal; what mode will they proceed in? Shall the President always propose the removal, or shall the Senate undertake this part of the business? If so, how are they to act? There is no part of the Constitution which obliges the President to meet them, to state his reasons for any measure he may recommend. Are they to wait upon the President? In short, it appears to me that introducing this clashing of the powers, which the Constitution has given to the executive, will be destructive of the great end of the government. So far will restraining the powers of that department be from producing security to the liberties of the people, that they would inevitably be swallowed up by an aristocratic body.
Mr. SEDGWICK. It will be agreed, on all hands, that this officer, without observing on the subject at large, is merely to supply a natural incompetency in man: in other words, if we could find a President capable of executing this and all other business assigned him, it would be unnecessary to introduce any other officer to aid him. It is then merely from necessity that we institute such an office; because all the duties detailed in the bill are, by the Constitution, pertaining to the department of the executive magistrate. If the question respected the expediency, I should be content to advocate it on that ground, if expediency is at all to be considered. Gentlemen will perceive that this man is as much an instrument, in the hands of the President, as the pen is the instrument of the secretary in corresponding with foreign courts. If, then, the secretary of foreign affairs is the mere instrument of the President, one would suppose, on the principle of expediency, this officer should be dependent upon him. It would seem incongruous and absurd, that an officer who, in the reason and nature of things, was dependent on his principal, and appointed merely to execute such business as was committed to the charge of his superior, (for this business, I contend, is committed solely to his charge,) -- I say it would be absurd, in the highest degree, to continue such a person in office contrary to the will of the President, who is responsible that the business be conducted with propriety, and for the general interest of the nation. The President is made responsible, and shall he not judge of the talents, abilities, and integrity of his instruments?
Will you depend on a man who has imposed upon the President, and continue him in office when he is evidently disqualified, unless he can be removed by impeachment? If this idea should prevail, -- which God for bid! -- what would be the result? Suppose even that he should be removable by and with the advice and consent of the Senate; what a wretched situation might not our public councils be involved in! Suppose the President has a secretary in whom he discovers a great degree of ignorance, or a total incapacity to conduct the business he has assigned him; suppose him inimical to the President; or suppose any of the great variety of cases which would be good cause for removal and impress the propriety of such a measure strongly on the mind of the President, without any other evidence than what exists in his own ideas from a contemplation of the man's conduct and character day by day; what, let me ask, is to be the consequence if the Senate are tube applied to? If they are to do any thing an {388} this business, I presume they are to deliberate, because they are to advise and consent; if they are to deliberate, you put them between the officer and the President; they are then to inquire into the causes of removal; the President must produce his testimony. How is the question to be investigated? -- because, I presume, there must be some rational rule for conducting this business.
Is the President to be sworn to declare the whole truth, and to bring forward facts? or are they to admit suspicion as testimony? or is the word of the President to he taken at all events? If so, this check is not of the least efficacy in nature. But if proof is necessary, what is then the consequence? Why, in nine cases ont of ten, where the case is very clear to the mind of the President that the man ought to be removed, the effect cannot be produced; because it is absolutely impossible to produce the necessary evidence. Are the Senate to proceed without evidence? Some gentlemen contend not; then the object will be lost. Shall a man, under these circumstances, be saddled upon the President, who has been appointed for no other purpose, in the creation, but to aid the President in performing certain duties? Shall he be continued, I ask again, against the will of the President? If he is, where is the responsibility? Are you to look for it in the President, who has no control over the officer, no power to remove him if he acts unfeelingly or unfaithfully? Without you make him responsible, you weaken and destroy the strength and beauty of your system. What is to be done in cases which can only be known from a long acquaintance with the conduct of an officer? But so much has been said on this subject, that I will add no further observations upon it.
Let me ask, what will be the consequence of striking out these words? Is the officer tube continued during an indefinite time? for it has been contended that he cannot be removed but by impeachment. Others have contended that he is always in the power of them who appoint him. But who will undertake to remove him? Will the President undertake to exercise an authority which has been so much doubted here, and which will appear to be determined against him if we consent to strike out the words? Will the Senate undertake to exercise this power? I apprehend they will not. But if they should, would they not also be brought before the judges, to show by what authority they did it? because it is supposed by one gentleman, that the case might go before that tribunal. if the President alone removed the officer. But how is this to be done? Gentlemen tell you, the man who is displaced must apply for a mandamus to admit him to his office. I doubt much if this would be adequate to the purpose. It would be difficult to say whether the mandamus should be directed to the President, to the President and Senate, to the legislature, or to the people. Could the President be compelled to answer to a civil suit, for exercising the power vested in him by law and by the Constitution? The question upon either of those points would be involved in doubts and difficulties.
If these observations Strike the committee in the same point of light, and with the same force, as they have struck my mind, they will proceed to determine the present question; and I have no doubt but they will determine right.
Mr. LEE. I contend we have the power to modify the establishment of offices. So ought we, Mr. Chairman, to modify them in such a way as to promote the general welfare, which can only be done by keeping the three branches distinct; by informing the people where to look, in order to guard against improper executive acts. It is our duty, therefore, to vest {389} all executive power, belonging to the government, where the Convention intended it should be placed. It adds to the responsibility of the most responsible branch of the government; and without responsibility, we should have little security against the depredations and gigantic strides of arbitrary power. I say it is necessary, sir, to hold up a single and specific object to the public jealousy to watch; therefore it is necessary to connect the power of removal with the President. The executive is the source of all appointments: is his responsibility complete unless he has the power of removal? If he has this power, it will be his fault if any wicked or mischievous act is committed; and he will hardly expose himself to the resentment of three millions of people, of whom he holds his power, and to whom he is accountable every four years.
If the power of removal is vested in the Senate, it is evident, at a single view, that the responsibility is dissipated, because the fault cannot be fixed on any individual; besides, the members of the Senate are not x accountable to the people; they are the representatives of the state legislatures; but even if they were, they have no powers to enable them to decide with propriety in the case of removals, and therefore are improper persons to exercise such authority.
Mr. BOUDINOT. Sir, the efficacy of your government may depend upon the determination of this house respecting the present question. For my part, I shall certainly attend to the terms of the Constitution in making a decision; indeed, I never wish to see them departed from or construed, if the government can possibly be carried into effect in any other manner. But I do not agree with the gentleman, that Congress have no right to modify principles established by the Constitution; for, if this doctrine be true, we have no business here. Can the Constitution be executed, if its principles are not modified by the legislature? A Supreme Court is established by the Constitution; but do gentlemen contend that we cannot modify that court, direct the manner in which its functions shall be performed, and assign and limit its jurisdiction? I conceive, notwithstanding the ingenious arguments of the gentleman from Virginia, (Mr. White,) and the ingenious arguments of the gentleman from South Carolina, (Mr. Smith,) that there has not been, nor can be, any solid reason adduced to prove that this house has not power to modify the principles of the Constitution. But is the principle now in dispute to be found in the Constitution? If it is to be found there, it will serve as a line to direct the modification by Congress. But we are told that the members of this house appear to be afraid to carry the principles of the Constitution into effect. I believe, sir, we were not sent here to carry into effect every principle of the Constitution; but I hope, whenever we are convinced it is for the benefit of the United States to carry any of them into effect, We shall not hesitate.
The principle of the Constitution is, generally, to vest the government in three branches. I conceive this to be completely done, if we allow for one or two instances, where the executive and legislative powers are intermixed, and the case of impeachment. These cases I take to be exceptions to a principle which is highly esteemed in America. Let gentlemen attend to what was said by some of the conventions when they ratified the Constitution. One great objection was, that the powers were not totally separated. The same objection is, I believe, to be found among the amendments proposed by the state of North Carolina. Now, I conceive, if we do any thing to conciliate the minds of people to the Constitution, {390} we ought not to modify the principle of the government so as to increase the evil complained of, by a further blending of the executive and legislative powers, and that too upon construction, when gentlemen deny that we ought to use construction in any case.
Now, let us take up the Constitution, and consider, from the terms and principles of it, in whom this power is vested. It is said by some gentlemen to be an omitted case. I shall take up the other principle, which is easier to be maintained, -- that it is not an omitted case, -- and say the power of removal is vested in the President. I shall also take up the principle laid down by the gentleman from Virginia, (Mr. White,) at the beginning of this argument, that, agreeably to the nature of all executive powers, it is right and proper that the person who appoints should remove. This leads me to consider in whom the appointment is vested by the Constitution. The President nominates and appoints: he is further expressly authorized to commission all officers. Now, does it appear, from this distribution of power, that the Senate appoints? Does an officer exercise powers by authority of the Senate? No. I believe the President is the person from whom he derives his authority. He appoints, but under a check. It is necessary to obtain the consent of the Senate; but after that is obtained, I ask, who appoints? who vests the officer with authority? who commissions him? The President does these acts by his sole power; but they are exercised in consequence of the advice of another branch of government. If, therefore, the officer receives his authority and commission from the President, surely the removal follows as coincident.
Now, let us examine whether this construction consists with the true interest of the United States and the general principles of the Constitution. It consists with the general principles of the Constitution, because the executive power is given to the President, and it is by reason of his incapacity that we are called upon to appoint assistants Mention, to be sure, is made of principal officers in departments; out it is from construction only that we derive our power to constitute this particular office. If we were not at liberty to modify the principles of the Constitution, I do not see how we could erect an office of foreign affairs. If we establish an office avowedly to aid the President, we leave the conduct of it to his discretion. Hence the whole executive is to be left with him, agreeably to this maxim -- All executive power shall be vested in a President. But how does this comport with the true interest of the United States? Let me ask gentlemen where they suspect danger. Is it not made expressly the duty of the secretary of foreign affairs to obey such orders as shall be given to him by the President? And would you keep in office a man who should refuse or neglect to do the duties assigned him? Is not the President responsible for the administration? He certainly is. How, then, can the public interest suffer?
Then, if we find it to be naturally inferred, from the principles of the Constitution, coincident with the nature of his duty, that this officer should be dependent upon him, and to the benefit of the United States, for what purpose shall Congress refuse a legislative declaration of the Constitution, and leave it to remain a doubtful point? Because, if Congress refuses to determine, we cannot conceive that others will be more entitled to decide upon it than we are. This will appear to give ground for what the gentlemen have asserted -- that we are afraid to carry the Constitution into effect. This, I apprehend, would not be doing our duty.
{391} Gentlemen say they have a sufficient remedy for every evil likely to result from connecting the Senate with the President. This they propose to do by allowing the power of suspension. This, in the first place, does not answer the end; because there is a possibility that the officer may not be displaced after a hearing before the Senate; and in the second place, it is entirely inconsistent with the whole course of reasoning pursued by the gentlemen in opposition I would ask them, if the Constitution does not give to the President the power of removal, what part is it that gives the power of suspension? If you will in one case construe the Constitution, you may do it in another; for I look upon it as dangerous to give the power of suspension, by implication, as to give the full power of removal. Gentlemen, observe that I take it for granted that the President has no express right to the power of suspension; and that, if he is to exercise it, it must be drawn, by constructive reasoning alone, from the Constitution. If we are to exercise our authority, we had better at once give a power that would answer two valuable purposes, than one altogether nugatory. In the first place, it would entirely separate the legislative and executive departments, conformably to the great principles of the Constitution; and, in the second place, it would answer the end of government better, and secure real benefits to the Union.
The great evil, as was stated by the gentleman from Virginia, (Mr. Madison,) yesterday, is, that bad officers shall continue in office, and not that good ones be removed; yet this last is all that is in the power of the President. If he removes a good officer, he cannot appoint his successor without the consent of the Senate; and it is fairly to be presumed, that, if at any time he should be guilty of such an oversight as to remove a useful and valuable officer, the evil will be small, because another as valuable will be placed in his stead. If it is said that this is an injury to the individual, I confess that it is possible that it may be so. But ought we not, in the first place, to consult the public good? But, on mature consideration, I do not apprehend any very great injury will result to the individual from this practice; because, when he accepts of the office, he knows the tenure by which he is to hold it, and ought to be prepared against every contingency.
These being the principles on which I have formed my opinion, in addition to what was stated, I do conceive that I am perfectly justified to my constituents, and to my oath, to support this construction. And when I give my vote that the President ought to have the power of removal from office, I do it on principle; and gentlemen in the opposition will leave us to the operation of our judgments on this as well as every other question that comes before us. For my part, I conceive it is impossible to carry into execution the powers of the President, in a salutary manner, unless he has the power of removal vested in him. I do not mean that, if it was not vested in him by the Constitution, it would be proper for Congress to confer it, though I do believe the government would otherwise be very defective; yet we would have to bear this inconvenience until it was rectified by an amendment of the Constitution.
Mr. GERRY. The Parliament of England is one of the most important bodies on earth; but they can do nothing without the concurrence of the executive magistrate. The Congress of the United States are likely to become a more important body; the executive magistrate has but a qualified negative over them. The Parliament of England, with the consent of the king, can expound their constitution; in fact, they are the {392} constitution itself. But Congress may, if once the doctrine of construction is established, make the Constitution what they please, and the President can have no control over them.
It has been said by my colleague, (Mr. Sedgwick,) that the President not only nominates, but appoints, the officers; and he infers from hence, that, as the power of removal is incidental to the power of appointing, the President has the power of removal also. But I should be glad to know how it can with justice be said that the President appoints. The Constitution requires the consent of the Senate; therefore they are two distinct bodies, and intended to check each other. If my colleague's is a true construction, it may be extended farther, and said, that, in the act of nominating, the assent of the Senate is virtually given, and therefore he has a right to make the whole appointment himself, without any interference on the part of the Senate. I contend, sir, that there is just as much propriety in the one construction as in the other. If we observe the enacting style of the statutes of Great Britain, we shall find pretty near the same words as what are used in the Constitution with respect to appointments: -- "Be it enacted by the king's most excellent majesty, by and with the advice and consent of Parliament." Here it might be said the king enacts all laws; but I believe the truth of this fact will be disputed in that country. I believe no one will pretend to say that the king is the three branches of Parliament; and unless my colleague will do all this, I never can admit that the President, in himself, has the power of appointment.
My colleague has gone farther, to show the dependence of this officer on the President. He says the necessity of appointing a secretary of foreign affairs arises from a natural defect in man; that if the President was able to administer all these departments, there would be no occasion of making provision by law. If the President had power superior to the limits of humanity, he might render his country great services; but we are not likely to have any such Presidents; the Constitution itself contemplates none; it makes provision for the infirmities of human nature; it authorizes us to establish offices by law; and this is the ground upon which we stand; indeed, this is the ground that was assumed yesterday by my colleague, when he said that this officer was the creature of the law. If he is the creature of the law, let him conduct according to law; and let it not be contended that he is the creature of the President, because he is no further the creature of the President than that he is obliged to give his opinion in writing when required. But it is said the President is responsible for the conduct of this officer. I wish to know what this responsibility is. Does it mean, if a subordinate executive officer commits treason, that the President is to suffer for it? This is a strange kind of responsibility. Suppose, in the case of the secretary of the treasury; there Should be a defalcation of the public revenue; is he to make good the loss? Or, if the head of the army should betray his trust, and sacrifice the liberties of his country, is the President's head to be the devoted sacrifice? The Constitution shows the contrary, by the provision made for impeachment; and this I take to be one of the strongest arguments against the President's having the power of removing one of the principal officers of government -- that he is to bear his own responsibility.
The question before the committee must be decided on one of these two grounds. Either they must suppose this power is delegated particularly to the President by the Constitution, or it is not. Let us examine these two cases. If gentleman say that it is delegated by the Constitution, {393} then there is no use for the clause: but if it is not particularly delegated to the President by the Constitution, and we are inclined to authorize him to exercise this power, I would ask gentlemen whether this is the proper way to do it; whether a little clause hid in the body of a bill can be called a declaratory act. I think it cannot. It looks as if we were afraid of avowing our intentions. If we are determined upon making a declaratory act, let us do it in such a manner as to indicate our intention. But perhaps gentlemen may think we have no authority to make declaratory acts. They may be right in this opinion; for though I have examined the Constitution with attention, I have not been able to discover any clause which vests Congress with that power. But if the power of making declaratory acts really vests in Congress, and the judges are bound by our decisions, we may alter that part of the Constitution which is secured from being amended by the 5th article; we may say, that the 9th section of the Constitution, respecting the migration or importation of persons, does not extend to negroes; that the word persons means only white men and women. We then proceed to lay a duty of twenty or thirty dollars per head on the importation of negroes. The merchant does not construe the Constitution in the manner that we have done. He therefore institutes a suit, and brings it before the supreme judicature of the United States for trial. The judges, who are bound by oath to support the Constitution, declare against this law; they would therefore give judgment in favor of the merchant.
But, say Congress, we are the constitutional expounders of this clause, and your decision in this case has been improper. Shall the judges, because Congress have usurped power, and made a law founded in construction, be impeached by one branch, and convicted by the other, for doing a meritorious act, and standing in opposition to their usurpation of power? If this is the meaning of the Constitution, it was hardly worth while to have had so much bustle and uneasiness about it. I would ask gentlemen, if the Constitution has given us power to make declaratory acts, where is the necessity of inserting the 5th article for the purpose of obtaining amendments? The word amendment implies a defect; a declaratory act conceives one. Where, then, is the difference between an amendment and a declaratory act? I call upon the gentleman to point out what part of the Constitution says we shall correct that instrument by a declaratory act. If gentlemen once break through the constitutional limits of their authority, they will find it very difficult to draw a boundary which will secure to themselves and their posterity that liberty which they have so well contended for.
Mr. SHERMAN. The Convention, who formed this Constitution, thought it would tend to secure the liberties of the people, if they prohibited the President from the sole appointment of all officers. They knew that the crown of Great Britain, by having that prerogative, has been enabled to swallow up the whole administration; the influence of the crown upon the legislature subjects both houses to its will and pleasure. Perhaps it may be thought, by the people of that kingdom, that it is best for the executive magistrate to have such kind of influence; if so, it is very well, and we have no right to complain that it is injurious to them, while they themselves consider it beneficial. But this government is different, and intended by the people to be different I have not heard any gentleman produce an authority from law or history which proves, where two branches are interested in the appointment, that one of them has the power of removal. {394} I remember that the gentleman from Massachusetts (Mr. Sedgwick) told us that the two houses, notwithstanding the partial negative of the President, possessed the whole legislative power; but will the gentleman infer from that, because the concurrence of both branches is necessary to pass a law, that a less authority can repeal it? This is all we contend for.
Some gentlemen suppose, if the President has not the power by the Constitution, we ought to vest it in him by law. For my part, I very much doubt if we have the power to do this. I take it we would be placing the heads of departments in a situation inferior to what the Constitution contemplates; but if we have the power, it will be better to exercise it than attempt to construe the Constitution. But it appears to me, that the best way will be to leave the Constitution to speak for itself whenever occasion demands.
It has been said, that the Senate are merely an advisory body. I am not of this opinion, because their consent is expressly required; if this is not obtained, an appointment cannot be made. Upon the whole, I look upon it as necessary, in order to preserve that security which the Constitution affords to the liberty of the people, that we avoid making this declaration, especially in favor of the President; as I do not believe the Constitution vests the authority in him alone.
Mr. AMES. I believe there are very few gentlemen on this floor who have not made up their opinions; therefore it is particularly disagreeable to solicit their attention, especially when their patience is already exhausted, and their curiosity sated; but still I hope to be of some use in collecting the various arguments, and bringing them to a point. I shall rather confine myself to this task, than attempt to offer any thing that is new. I shall just observe, that the arguments of the gentleman from Pennsylvania, (Mr. Scott,) which are complained of as being ridiculous, were arguments addressed to the understandings of the committee; my own understanding was enlightened by them, although they wore the garb of pleasantry. But to proceed to my main object.
The question, so far as it relates to the Constitution, is this -- whether it has vested the sole power of removing in the President alone, or whether it is to take place by and with the advice and consent of the Senate. If the question of constitutionality was once despatched, we should be left to consider of the expediency of the measure. I take it to be admitted on all hands, though it was at first objected to by a worthy gentleman from South Carolina, that the power of removal from office, at pleasure, resides somewhere in the government. If it does not reside in the President, or the President and Senate, or if the Constitution has not vested it in any particular body, it must be in the legislature; for it is absurd to suppose that officers once appointed cannot be removed. The argument tending to prove that the power is in the President alone, by an express declaration, may not be satisfactory to the minds of those gentlemen who deem the Constitution to be silent on that head. But let those gentlemen revert to the principles, spirit, and tendency, of the Constitution, and they will be compelled to acknowledge that there is the highest degree of probability that the power does vest in the President of the United States. I shall not undertake to say that the arguments are conclusive on this point. I do not suppose it is necessary that they should be so; for I believe nearly as good conclusions may be drawn from the refutations of an argument as from any other proof; for it is well said, that destructio unius est generatio alterius.
{395} It has been said, and addressed with solemnity to our consciences, that we ought not to destroy the Constitution, to change, or modify it; nay, it has been inferred that it is unnecessary and dangerous for us to proceed in this inquiry. It is true, we may decide wrong, and therefore there may be danger; but it is not unnecessary: we have entered too far into the discussion to retreat with honor to ourselves or security to our country; we are sworn as much to exercise constitutional authority, for the general good, as to refrain from assuming powers that are not given to us: we are as responsible for forbearing to act, as we are for acting. Are we to leave this question undetermined, to be contended between the President and Senate? Are we to say that the question to us is indissoluble, and therefore throw it upon the shoulders of the President to determine? If it is complex and difficult, it is certainly disingenuous in us to throw off the decision: besides, after so long a debate has been had, a decision must be made; for it never would do to strike out the words, as that would be deciding, and deciding against the power of the President.
It must be admitted that the Constitution is not explicit on the point in contest; yet the Constitution strongly infers that the power is in the President alone. It is declared that the executive power shall be vested in the President. Under these terms, all the powers properly belonging to the executive department of the government are given, and such only taken away as are expressly excepted. If the Constitution had stopped here, and the duties had not been defined, either the President had had no powers at all, or he would acquire from that general expression all the powers properly belonging to the executive department. In the Constitution, the President is required to see the laws faithfully executed. He cannot do this without he has a control over officers appointed to aid him in the performance of his duty. Take this power out of his hands, and you virtually strip him of his authority; you virtually destroy his responsibility, the great security which this Constitution holds ont to the people of America.
Gentlemen will say that, as the Constitution is not explicit, it must be matter of doubt where the power vests. If gentlemen's consciences will not let them agree with us, they ought to permit us to exercise the like liberty on our part. But they tell us we must meet them on the ground of accommodation, and give up a declaration that the power of removal is in the President, and they will acquiesce in declaring him to have the power of suspension; but they should recollect that, in so doing, we sacrifice the principles of the Constitution.
It has been frequently said, that the power of removing is incidental to the power of appointing: as the Constitution implies that all officers, except the judges, are appointed during pleasure, so the power of removal may, in all cases, be exercised. But suppose this general principle true; yet it is an arbitrary principle, I take it, and one that cannot be proved: if it was denied, it could not be established; and if it was established, it is still doubtful whether it would make for the adverse side of this question or not, because it is dubious whether the Senate do actually appoint or not. It is admitted that they may check and regulate the appointment by the President; but they can do nothing more; they are merely an advisory body, and do not secure any degree of responsibility, which is one great object of the present Constitution: they are not answerable for their secret advice; but if they were, the blame, divided among so many, would fall upon none.
{396} Certainly this assumed principle is very often untrue; but if it is true, it is not favorable to the gentlemen's doctrine. The President, I contend, has expressly the power of nominating and appointing, though he must obtain the consent of the Senate. He is the agent: the Senate may prevent his acting, but cannot act themselves. It may be difficult to illustrate this point by examples which will exactly correspond: but suppose the case of an executor, to whom is devised lands, to be sold with the advice of a certain person, on certain conditions; the executor sells with the consent, and upon the conditions, required in the will; the conditions are broken; may the executor reënter for the breach of them? or has the person whom tie was obliged to consult with in the sale any power to restrain him? The executor may remove the wrongful possessor from the land, though, perhaps, by the will, he may hold it in trust for another person's benefit. In this manner, the President may remove from office, though, when vacant, he cannot fill it without the advice of the Senate. We are told it is dangerous to adopt constructions; and that what is not expressly given is retained. Surely it is as improper in this way to confer power upon the Senate as upon the President; for if the power is not in the President solely by the Constitution, it never can be in the President and Senate by any grant of that instrument: any arguments, therefore, that tend to make the first doubtful, operate against the other, and make it absurd. If gentlemen, therefore, doubt with respect to the first point, they will certainly hesitate with respect to the other. If the Senate have not the power, -- and it is proved that they have it not, by the arguments on both sides, -- the power either vests with the President or the legislature. If it is in the disposal of the latter, and merely a matter of choice with us, clearly we ought not to bestow it on the Senate; for the doubt, whether the President is not already entitled to it, is an argument against placing it in other hands: besides, the exercise of it by the Senate would be inconvenient; they are not always sitting: it would be insecure, because they are not responsible: it would be subversive of the great principles of the Constitution, and destructive to liberty, because it tends to intermingle executive and legislative powers in one body of men, and this blending of powers ever forms a tyranny. The Senate are not to accuse offenders; they are to try them: they are not to give orders; but, on complaint, to judge of the breach of them. We are warned against betraying the liberties of our country: we are told that all powers tend to abuse: it is our duty, therefore, to keep them single and distinct. Where the executive swallows up the legislature, it becomes a despotism; where the legislature trenches upon the executive, it approaches towards despotism; and where they have less than is necessary, it approximates towards anarchy.
We should be careful, therefore, to preserve the limits of each authority, in the present question. As it respects the power of the people, it is but of little importance; it is not pretended that the people have reserved the power of removing bad officers. It is admitted, on all hands, that the government is possessed of such power; consequently, the people can neither lose nor gain power by it. We are the servants of the people; we are the watchmen; and we should be unfaithful, in both characters, if we should so administer the government as to destroy its great principles and most essential advantages. The question now among us is, which of these servants shall exercise a power already granted. Wise and virtuous as the Senate may be, such a power lodged in their hands will not only tend {397} to abuse, but cannot tend to any thing else. Need I repeat the inconveniences which will result from vesting it in the Senate? No. I appeal to that maxim which has the sanction of experience, and is authorized by the decision of the wisest men: to prevent an abuse of power, it must be distributed into three branches, who must be made independent, to watch and check each other: the people are to watch them all. While these maxims are pursued, our liberties will be preserved. It was from neglecting or despising these maxims, the ancient commonwealths were destroyed. A voice issues from the tomb which covers their ruins, and proclaims to mankind the sacredness of the truths that are at this moment in controversy.
It is said that the Constitution has blended these powers which we advise to keep separate, and, therefore, we ought to follow in completing similar regulations; but gentlemen ought to recollect, that has been an objection against the Constitution; and if it is a well-founded one, we ought to endeavor, all that is in our power, to restrain the evil, rather than to increase it. But, perhaps, with the sole power of removal in the President, the check of the Senate in appointments may have a salutary tendency: in removing from office, their advice and consent are liable to all the objections that have been stated. It is very proper to guard the introduction of a man into office by every check that can properly be applied; but after he is appointed, there can be no use in exercising a judgment upon events which have heretofore taken place. If the Senate are to possess the power of removal, they will be enabled to hold the person in office, let the circumstances be what they may, that point out the necessity or propriety of his removal: it creates a permanent connection; it will nurse faction; it will promote intrigue to obtain protectors, and to shelter tools. Sir, it is infusing poison into the Constitution; it is an impure and unchaste connection: there is ruin in it: it is tempting the Senate with forbidden fruit: it ought not to be possible for a branch of the legislature even to hope for a share of the executive power; for they may be tempted to increase it. by a hope to share the exercise of it. People are seldom jealous of their own power; and if the Senate become part of the executive, they will be very improper persons to watch that department: so far from being champions for liberty, they will become conspirators against it.
The executive department should ever be independent, and sufficiently energetic to defeat the attempts of either branch of the legislature to usurp its prerogative. But the proposed control of the Senate is setting that body above the President: it tends to establish an aristocracy. And at the moment we are endangering the principles of our free and excellent Constitution, gentlemen are undertaking to amuse the people with the sound of liberty. If their ideas should succeed, a principle of mortality will be infused into a government which the lovers of mankind have wished might last to the end of the world. With a mixture of the executive and legislative powers in one body, no government can long remain uncorrupt. With a corrupt executive, liberty may long retain a trembling existence. With a corrupt legislature, it is impossible: the vitals of the Constitution would be mortified, and death must follow in every step. A government thus formed would be the most formidable curse that could befall this country. Perhaps an enlightened people might timely foresee and correct the error; but if a season was allowed for such a compound to grow and produce its natural fruit, it would either banish liberty, or the people would he driven to exercise their unalienable right, the right of uncivilized nature, and {398} destroy a monster whose voracious and capacious jaws could crush and swallow up themselves and their posterity.
The principles of this Constitution, while they are adhered to, will perpetuate that liberty which it is the honor of Americans to have well contended for. The clause in the bill is calculated to support those principles; and for this, if there was no other reason, I should be inclined to give it my support.
Mr. LIVERMORE. The decision of this question depends upon the construction of a short clause in the Constitution, in which is designated the power of the President. It is said he shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the senators present concur. He shall nominate, and, by and with the advice and consent of the Senate, appoint ambassadors, other public ministers, and consuls, justices of the Supreme Court, and all other officers of the United States. Such strange constructions have been given to this advice and consent of the Senate, which, if agreed to, will make the whole Constitution nothing, or any thing, just as we please. If we can deprive the Senate of their powers in making treaties, and say, with truth, that they have no authority m the business, the legislature will become a dangerous branch of the government. So, in the case of appointing officers, if it can be truly said that these heads of departments are the servants of the President alone, we shall make the executive department a dangerous one.
I do not admit that any man has an estate in his office. I conceive all officers to be appointed during pleasure, except where the Constitution stipulates for a different tenure -- unless, indeed, the law should create the office, or officer, for a term of years. After observing this, I must contend that the power of removal is incidental to the power of appointment. If it was the President alone that appointed, he alone could displace. If the President and Senate, by a joint agreement, appoint an officer, they alone have the power to supersede him; and however any gentleman may say he doubts, or does not understand, the force of this principle, yet to me it appears as clear and demonstrable as any principle of law or justice that I am acquainted with. There is another method to displace officers expressly pointed out by the Constitution; and this implies, in the clearest manner, that in all other cases officers may be removed at pleasure; and if removed at pleasure, it must be at the pleasure of the parties who appointed them.
Congress are enabled, by the Constitution, to establish offices by law. In many cases they will, no doubt. vest the power of appointing inferior officers in the President alone. They have no express right, by the Constitution, to vest in him the power of removing these at pleasure; yet no gentleman will contend but inferior officers ought to be removable at pleasure. How, then, can the President acquire this authority, unless it be on the principle that the power of removal is incidental, and the x natural consequence of the power of appointing. If gentlemen will maintain consistency, they will be compelled to acknowledge the force of this principle; and if they acknowledge the principle, they must agree to strike out the words.
Mr. MADISON. The question now seems to be brought to this -- whether it is proper or improper to retain these words in the clause, provided they are explanatory of the Constitution. I think this branch of the legislature is as much interested in the establishment of the true meaning {399} of the Constitution, as either the President or Senate; and when the Constitution submits it to us to establish offices by law, we ought to know by what tenure the office should be held, and whether it should depend upon the concurrence of the Senate with the President, or upon the will of the President alone, because gentlemen may hesitate, in either case, whether they will make it for an indefinite or precise time. If the officer can be removed at discretion by the President, there may be safety in letting it be for an indefinite period. If he cannot exert his prerogative, there is no security, even by the mode of impeachment; because the officer may intrench himself behind the authority of the Senate, and bid defiance to every other department of government. In this case, the question of duration would take a different turn. Hence it is highly proper that we and our constituents should know the tenure of the office. And have we not as good a right as any branch of the government to declare our sense of the meaning of the Constitution?
Nothing has yet been offered to invalidate the doctrine, that the meaning of the Constitution may as well be ascertained by the legislative as by the judicial authority. When a question emerges, as it does in this bill, -- and much seems to depend upon it, -- I should conceive it highly proper to make a legislative construction. In another point of view, it is proper that this interpretation should now take place, rather than at a time when the exigency of the case may require the exercise of the power of removal. At present, the disposition of every gentleman is to seek the truth, and abide by its guidance when it is discovered. I have reason to believe the same disposition prevails in the Senate. But will this be the case when some individual officer of high rank draws into question the capacity of the President, with the Senate, to effect his removal? If we leave the Constitution to take this course, it can never be expounded until the President shall think it expedient to exercise the right of removal, if he supposes he has it. Then the Senate may be induced to set up their pretensions; and will they decide so calmly as at this time, when no important officer in any of the great departments is appointed to influence their judgments? The imagination of no member here, or of the Senate, or of the President himself, is heated or disturbed by faction. If ever a proper moment for decision should offer, it must be one like the present.
I do not conceive that this question has been truly stated by some gentlemen. In my opinion, it is not whether we shall take the power from one branch of the government, and give it to another; but the question is, to which branch has the Constitution given it? Some gentlemen have said that it resides in the people at large, and that, if it is necessary to the government, we must apply to the people for it, and obtain it by way of amendment to the Constitution. Some gentlemen contend, that although it is given in the Constitution as a necessary power to carry into execution the other powers vested by the Constitution, yet it is vested in the legislature. I cannot admit this doctrine either, because, it is setting the legislature at the head of the executive branch of the government. If we take the other construction, of the gentleman from South Carolina, that all officers hold their places by the firm tenure of good behavior, we shall find it still more improper. I think gentlemen will see, upon reflection, that this doctrine is incompatible with the principles of free government. If there is no removability but by way of impeachment, then all the executive officers of government hold their offices by the firm tenure of good behavior, from the chief justice down to the tide-waiter.
[Mr. SMITH interrupted Mr. Madison, and said, that he had admitted {400} that inferior officers might be removed, because the Constitution had left it in the power of the legislature to establish them on what terms they pleased; consequently, to direct their appointment and removal.]
Mr. MADISON had understood the gentleman as he now explained himself, But still he contended that the consequences he had drawn would necessarily follow; because there was no express authority given to the legislature, in the Constitution, to enable the President, the courts of law, or heads of departments, to remove au inferior officer. All that was said on that head was confined solely to the power of appointing them. If the gentleman admits, says he, that the legislature may vest the power of removal, with respect to inferior officers, he must also admit that the Constitution vests the President with the power of removal in the case of superior officers, because both powers are implied in the same words; the President may appoint the one class, and the legislature may authorize the courts of law or heads of departments to appoint in the other case. If, then, it is admitted that the power of removal vests in the President, or President and Senate, the arguments which I urged yesterday, and those which have been urged by honorable gentlemen on this side of the question for these three days past, will fully evince the truth of the construction which we give, -- that the power is in the President alone. I will not repeat them, because they must have full possession of every gentleman's mind. I am willing, therefore, to rest the decision here, and hope that it will be made in such a manner as to perpetuate the blessings which this Constitution was intended to embrace.
Mr. BALDWIN. I have felt an unusual anxiety during the debate upon this question. I have attentively listened to the arguments which have been brought forward, and have weighed them in my mind with great deliberation; and as I consider a proper decision upon it of almost infinite importance to the government, I must beg the indulgence of the house while I submit a few observations.
The main ground on which the question is made to rest is, that if we adopt this clause, we violate the Constitution. Many of the gentlemen who advocate the present motion for striking out, would, if they could do it with consistency to the Constitution, be in favor of the clause. We have been reminded of our oaths, and warned not to violate the solemn obligation. This injunction has come from so many parts of the house, that it arrested my whole attention for a few minutes; and then they produced us the clause in the Constitution which directed that officers should be appointed by and with the advice and consent of the Senate. They then tell us that he should be removable in the same manner. We see the clause by which it is directed that they should be appointed in that manner, but we do not see the clause respecting their removal in the same way. Gentlemen have only drawn it as an inference from the former: they construe that to be the meaning of the Constitution, as we construe the reverse. I hope, therefore, gentlemen will change their expression, and say, we shall violate their construction of the Constitution, and not the Constitution itself. This will be a very different charge! unless the gentlemen pretend to support the doctrine of infallibility, as it respects their decisions; and that would perhaps be more than the house are willing to admit, and more than the people in this country are accustomed to believe.
I have said the gentlemen rest their principal opposition on this point -- that the Constitution plainly means that the officers must be removed in the way they are appointed. Now, when gentlemen tell me that I was {401} going to construe the Constitution, and many interpret it in a manner which was never intended, I am very cautious how I proceed. I do not like to construe over much. It is a very delicate and critical branch of our duty; and there is not, perhaps, any part of the Constitution on which we should be more cautious and circumspect than on the present.
I am well authorized to say, that the mingling the powers of the President and Senate was strongly opposed in the Convention which had the honor to submit to the consideration of the United States, and the different states, the present system for the government of the Union. Some gentlemen opposed it to the last; and finally it was the principal ground on which they refused to give it their signature and assent. One gentleman called it a monstrous and unnatural connection, and did not hesitate to affirm it would bring on convulsions in the government. This objection was not confined to the walls of the Convention; it has been the subject of newspaper declamation, and perhaps justly so. Ought not we, therefore, to be careful not to extend this unchaste connection any farther?
Gentlemen who undertake to construe, say that they see clearly that the power which appoints must also remove. Now, I have reviewed this subject with all the application and discernment my mind is capable of, and have not been able to see any such thing. There is an agency given to the President, in making appointments, to which the Senate are connected. But how it follows that the connection extends to the removal, positively I cannot see. They say that it follows as a natural, inseparable consequence. This sounds like logic. But if we consult the premises, perhaps the conclusion may not follow. The Constitution opposes this maxim more than it supports it. the President is appointed by electors chosen by the people themselves, or by the state legislatures. Can the state legislatures, either combined or separate, effect his removal? No. But the Senate may, on impeachment by this house. The judges are appointed by the President, by and with the advice and consent of the Senate; but they. are only removable by impeachment; the President has no agency in the removal. Hence, I say, it is not a natural consequence that the power which appoints should have the power of removal also.
We may find it necessary that subordinate officers should be appointed, in the first instance, by the President and Senate. I hope it will not be contended that the President and Senate shall be applied to in all cases when their removal may be necessary. This principle, sir, is not pursued by the Senate themselves, in the very bill that is now before this house, sent down by the Senate, to establish the judicial courts of the United States. It is directed that a marshal shall be appointed for each district, who shall have power to appoint one or more deputies; and these deputies are to be removable from office by the judge of the District Court, or the Circuit Court sitting within the district, at the pleasure of either. It is not said they shall be appointed by the marshal, who may remove them at pleasure; which ought to be the case, if the maxim is true, that the power which appoints necessarily has the power of removal. But I dispute the maxim altogether; for though it is sometimes true, it is often fallacious; but by no means is it that kind of conclusive argument which they contend for.
Gentlemen proceed in their constructions, and they ask, "Why did not the Convention insert a clause in the Constitution, declaring the removal to be in a manner different from the appointment?" They tell us that it must naturally have occurred to them, and that here and there was the {402} proper place to insert such a clause. Now, let me ask them, also, if theirs is the natural construction, why the Convention, after declaring that officers should be appointed by and with the advice and consent of the Senate, did not add, to be removed in like manner. It must have as naturally occurred to insert the one as the other. It is very possible that such a clause might have been moved and contended for; but it is hardly probable it would meet with success from these who opposed giving the Senate any check or control whatsoever over the powers of the President; much less was it probable that those gentlemen wire opposed it there should wish to enlarge it by construction: for my part, I hope never to see it increased in this way. What of this nature is brought in by the letter of the Constitution, let it be there; but let us never increase evils of which we have some right to complain. A gentleman asks, "Where is the danger of mixing these powers, if the Constitution has already done it?" That gentleman knows that it has always been viewed as an evil, and an association of the legislative and executive powers in one body has been found to produce tyranny. It is a maxim among the wisest legislators not to blend the branches of government further than is necessary to carry their separate powers into more complete operation. It was found necessary to blend the powers to a certain degree; so far we must acquiesce. The Senate must concur with the President in making appointments; but with respect to the removal, they are not associated; no such clause is in the Constitution; and, therefore, I should conclude that the Convention did not choose they should have the power. But what need was there that such a clause should be there? What is the evil it was intended to guard against? Why, we are afraid the President will unnecessarily remove a worthy man from office; and we say it is a pity the poor man should be turned out of service without a hearing; it is injurious to his reputation; it is his life, says the gentleman from New Hampshire, (Mr. Livermore;) it is cruelty in the extreme. But why are we to suppose this? I do not see any well-grounded apprehension for such an abuse of power. Let us attend to the operation of this business. The Constitution provides for what? That no bad man should come into office: this is the first evil. Hence we have nothing to dread from a system of favoritism; the public are well secured against that great evil; therefore the President cannot be influenced by a desire to get his own creatures into office; for it is fairly presumable that they will be rejected by the Senate. But suppose that one such could be got in; he can be got out again, in spite of the President: we can impeach him, and drag him from his place; and then there will be some other person appointed.
Some gentlemen seem to think there should be another clause in the Constitution, providing that the President should not turn out a good officer, and then they would not apprehend so much danger from that quarter. There are other evils which might have been provided against, and other things which might have been regulated; but if the Convention had undertaken to have done them, the Constitution, instead of being contained in a sheet of paper, would have swelled to the size of a folio volume. But what is the evil of the President's being at liberty to exercise this power of removal? Why, we fear that he will displace, not one good officer only, but, in a fit of passion, all the good officers of the government, by which, to be sure, the public would suffer; but I venture to say he would suffer himself more than any other man. But I trust there is no dearth of good men. I believe he could not turn out so many, but that the {403} Senate would still have some choice, out of which to supply a good one But, even if he was to do this, what would be the consequence? He would be obliged to do the duties himself; or, if he did not, we would impeach him, and turn him out of office, as he had done others. I must, admit, though, that there is a possibility of such an evil, but it is a remote possibility indeed.
I think gentlemen must concede that, if there should be such a passion, -- such resentment as I have supposed between the President and the heads of departments, -- the one or the other ought to be removed; they must not go on pulling different ways, for the public will receive most manifest injury: therefore it mitigates the appearance of the evil by suffering the public business to go on, which, from their irreconcilable difference, would otherwise be at a stand.
Mr. GERRY. The judges are the expositors of the Constitution and the acts of Congress. Our exposition, therefore, would be subject to their revisal. In this way the constitutional balance would be destroyed. The legislature, with the judicial, might remove the head of the executive branch. But a further reason why we are not the expositors, is, that the judiciary may disagree with us, and undo what all our efforts have labored to accomplish. A law is a nullity, unless it can be carried into execution: in this case, our law will be suspended. Hence all construction of the meaning of the Constitution is dangerous, or unnatural, and therefore ought to be avoided.
This is our doctrine, that no power of this kind ought to be exercised by the legislature. But, we say, if we must give a construction to the Constitution, it is more natural to give the construction in favor of the power of removal vesting in the President, by and with the advice and consent of the Senate, because it is in the nature of things that the power which appoints removes also. If there are deviations from this general rule, the instances are few, and not sufficient to warrant our departure on this occasion. We say our construction is superior also, because it does not militate against any clause of the Constitution; whilst their construction militates against several, and, in some respects, renders them mere nullities.
There is a consistency, under a monarchy, of the king's exercising the power of appointment and removal at pleasure. In Great Britain this is the prerogative of the throne; where it is likewise held a maxim, that the king can do no wrong. The chief magistrate under this Constitution is a different character. There is a constitutional tribunal, where he may be arraigned, condemned and punished, if he does wrong. The reason of this distinction I take to be this: the majesty of the people receives an injury when the President commits an improper act, for which they are to receive satisfaction. Kings have a property in government; and when a monarch acts unwisely he injures his own interest, but is accountable to none, because satisfaction is due to himself alone. He is established in his office for life; it is an estate to him which he is interested to transmit to his posterity unimpaired; the good of the people, upon principles of interest; will be his peculiar study; he ought, therefore, to have power to act in such a manner as is most likely to secure to him this object; then, necessarily, he must have the right of choosing or displacing his agents. There can be no difficulty on this point. But in a confederated republic the chief magistrate has no such trust; he is elected but for four years, after which the government goes into other hands; he is not stimulated to {404} improve a patrimony, and therefore has no occasion for complete power over the officers of the government. If he has such power, it can only be made useful to him by being the means of procuring him a reëlection, but can never be useful to the people by inducing him to appoint good officers or remove bad ones. It appears to me that such unbounded power vitiates the principles of the Constitution; and the officers, instead of being the machinery of the government, moving in regular order prescribed by the legislature, will be the mere puppets of the President, to be employed or thrown aside as useless lumber, according to his prevailing fancy.
If gentlemen will take this step, they must take another, and secure the public good by making it the interest of the President to consult it; they must elect him for life, or, what will be more consistent still, they must make his office hereditary. Then gentlemen may say, with some degree of truth, that he ought to have the power of removal, to secure in his hands a balance in the government. But if gentlemen are willing to remain where they are, and abide by the Constitution, regarding its true principles, they will not contend that there is a necessity, or even a propriety, in vesting this power in the President alone.
Gentlemen tell us they are willing to consider this as a constitutional question; and yet the bill shows that they consider the Constitution silent, for the clause grants the power in express terms: this also implies that the legislature have a right to interfere with the executive power contrary to their avowed principles. If the legislature has not the power of removal, they cannot confer it upon others; if they have it, it is a legislative power, and they have no right to transfer the exercise of it to any other body; so, view this question in whatever point of light you please, it is clear the words ought to be struck out.
The call for the question being now very general, it was put -- Shall the words "to be removable by the President" be struck out?
It was determined in the negative; being yeas 20, nays 34.