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[Text omitted. -Ed.]*
The house on motion of Mr. Boudinot, resolved themselves into a committee of the whole on the state of the union.
I rise, Mr. Chairman, with diffidence to introduce a subject to the consideration of the committee, which I had hopes would have been brought forward by an abler hand; the pressing necessity of it must alone be my excuse. The great executive departments which were in existence under the late confederation, are now at an end, at least so far, as not to be able to conduct the business of the United States. If we take up the present constitution, we shall find it contemplates departments of an executive nature in aid of the President: it then remains for us to carry this intention into effect, which I take it will be best done by settling principles for organizing them in this place, and afterward appoint a select committee to bring in a bill for the same.
I need say little to convince gentlemen of the necessity which presses us into a pursuit of this measure. They know that our national debt is considerable, the interest on our foreign loans, and the instalments due, amount to 2,000,000 dollars. This arrearage together with the domestic debt is of great magnitude, and it will be attended with the most dreadful consequences, to let these affairs run into confusion and ruin, for want of proper regulations to keep them in order.
I shall move the committee therefore to come to some such resolution as this: That an office be established for the management of the finances of the United States, at the head of which shall be an officer to be denominated the secretary of finance. I am not tenacious of the style, perhaps some other may be proper, but the object I have in view, is to establish the department; after which we may go on to narrate the duties of the officer, and accommodate the name to the acts he is to perform. The departments under the late constitution are not to be models for us to form ours upon by reason of the essential change which has taken place in the government, and the new distribution of legislative, executive and judicial powers.
If gentlemen then agree with me so far, I shall proceed to restrain the secretary of finance, and all persons under him, from being concerned in trade or commerce, and make it his duty to superintend the treasury and the finances of the United States, examine the public debts and engagements, inspect the collection and expenditure of the revenue, and to form and digest plans for its improvement: There may be other duties which gentlemen may add, as I do not pretend to have perfectly enumerated them all. After this point is settled, we may then go to the consideration of the war department, and the department of foreign affairs; but, for the present, I would wish we were to confine ourselves to the department of finance.
Wished the committee to consider what he judged to be a previous question, namely, how many departments there should be established? He approved of the division mentioned by the gentleman, but would with his leave move that there be established in aid of the chief magistrate three executive departments, to be severally denominated, the department of foreign affairs, treasury, and war. After determining this question, if it was a proper division, the committee might proceed to enumerate the duties which should be attached to each.
Was not tenacious of the form he had thrown his motion into, it was the substance he contended for, he had therefore no objection to the gentleman's motion. While he was up, he would correct a mistake into which he had fallen; it respected the arrearage of the interest and instalments of the foreign debt; he had learned from good authority since he sat down, that there was nothing due on this account, but that it was completely paid up to the present year; but this did not do away the necessity of the present motion.
Objected to the last motion as too indefinite, and feared the committee would precipitate the business, if they did not order the motions to lay on the table until tomorrow, or rather rise and refer it to be digested by a select committee.
Wished gentlemen had been more particular in bringing this question forward, and had pointed out the nature and extent of the powers proposed to be given, that so his mind might be able to embrace the whole subject.
Said he could apologize for not bringing the business on in another way. It seemed to be a settled point in the house that a committee of the whole was the proper place for determining principles before they were sent elsewhere; he had therefore adopted that mode on the present occasion, tho' his own judgment would incline him to pursue that last mentioned by the gentleman from Virginia (Mr. Bland). He conceived the necessity of having such an office was indisputable, the government could not be carried on without it; but there may be a question with respect to the mode in which the business of the office shall be conducted; there may also be a question respecting the constitution of it; but none with respect to the establishment of either of the three departments he had mentioned.
Wished the committee to attend to one object at a time. If they had determined upon the propriety of the department of finance, they could go on to the next, and so on until they had decided upon all they conceived necessary; for his part he could not see any reason for determining there should be three or five great departments, or what was the object of such a question, unless it was to decide the whole business at once.
Said, his motion was founded upon the constitutional division of these powers; the constitution contemplated them, because it gave the president the right of requiring the opinion of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices. If gentlemen were inclined to wave the determination for the present, he had no objection; it was certainly a subject of great importance, and required time for consideration.
Thought the gentleman should have added another department, viz. the home department. The territorial possessions of the United States, and the domestic affairs, would be objects of the greatest magnitude, and he suspected would render it essentially requisite to establish such an one.
Mr. BOUDINOT wished to confine the question to the department of finance.
A motion was made by Mr. BLAND for the committee's rising.
Hoped they would not rise until the principles were settled. He thought it much better to determine the outlines of all business in a committee of the whole; he was satisfied it would be found, on experience, to shorten their deliberations. If the gentlemen who had offered motions to the committee would withdraw them, he would offer one, which he judged likely to embrace the intentions of the gentlemen.
withdrew his motion, and Mr. MADISON
moved, that it is the opinion of this committee, that there shall be established an executive department, to be denominated the department of foreign affairs; at the head of which there shall be an officer, to be called, the secretary to the department of foreign affairs, who shall be appointed by the president, by and with the advice and consent of the senate; and to be removeable by the president.
That there shall be a treasury department, & c.
And there shall be a war department, & c.
Seconded the motion, and offered to amend it, by adding the domestic department, mutatis mutandis. He said this department, in his opinion, was of absolute necessity, more requisite than either of the other three, except the department of finance; the present and encreasing duties of such a department will oblige them to make the establishment.
Was not prepared to decide on the question even as now brought forward, nor did he see a reason why the department of foreign affairs was placed at the head of the list. He thought the treasury department of more importance, and consequently deserved the precedence.
As to the domestic department just mentioned by the gentleman from Delaware, he thought its duties might be blended with the others, and thereby save the United States the expence of one grand department. If the gentleman therefore would wait to see what were the duties assigned to them severally, he would be able to judge respecting his motion with greater propriety.
And the committee agreed to the establishment of the department of foreign affairs, and placing at the head thereof an officer to be called the secretary of foreign affairs, but when they came to the mode of appointing the officer,
Moved to strike out the words "who shall be appointed by the president, by and with the advice and consent of the senate." He conceived the words to be unnecessary, besides it looked as if they were conferring power which was not the case, for the constitution had expressly given the power of appointment in the words there used. He also objected to the subsequent part of this paragraph, because it declared the president alone to have the power of removal.
Saw no impropriety in passing an act to carry into execution the views of the constitution, and therefore had no objection to repeating those words in the resolution. He thought if the committee stopped there they would be under no difficulty respecting the propriety of their measure, but if they went further they might meet with considerable embarrassment.
Remarked that as there was a discretionary power in the legislature to give the privilege to the president alone of appointing inferior officers, there could be no injury in declaring in the resolution the constitutional mode of appointing the heads of departments, however if gentlemen were uneasy he would not object to striking it out.
Thought this officer was an inferior officer; the president was the great and responsible officer of the government, this was only to aid him in performing his executive duties; hence he conceived the power of appointing to be in the gift of the legislature, and therefore the words were proper.
This officer is at the head of a department, and one of those who are to advise the president; the inferior officers mentioned in the constitution, are clerks and other subordinate persons. The words are only a repetition of the words in the constitution, and are consequently superfluous.
The question was taken on striking out those words and carried in the affirmative.
The committee proceeded to the discussion of the power of the president to remove this officer.
Said he had doubts whether the officer could be removed by the president; he apprehended he could only be removed by an impeachment before the senate, and that being once in office, he must remain there until convicted upon impeachment; he wished gentlemen would consider this point well before they decided it.
Did not concur with the gentleman in his interpretation of the constitution, what said he would be the consequence of such construction? it would in effect establish every officer of the government on the firm tenure of good behaviour, not the heads of departments only, but all the inferior officers of those departments would hold their offices during good behaviour, and that to be judged of by one branch of the legislature only on the impeachment of the other. If the constitution means this by its declarations to be the case we must submit, but I should lament it as a fatal error interwove in the system and one that would ultimately prove its destruction. I think the inference would not arise from a fair construction of the words of that instrument.
It is very possible that an officer who may not incur the displeasure of the president, may be guilty of actions that ought to forfeit his place; the power of this house may reach him by the means of an impeachment, and he may be removed even against the will of the president; so that the declaration in the constitution, was intended as a supplemental security for the good behaviour of the public officers. It is possible the case I have stated may happen, indeed it may perhaps on some occasion be found necessary to impeach the president himself; surely therefore it may happen to a subordinate officer, whose bad actions may be connived at or overlooked by the president; hence the people have an additional security in this constitutional provision.
I think it absolutely necessary that the president should have the power of removing from office; it will make him, in a peculiar manner, responsible for their conduct, and subject him to impeachment himself, if he suffers them to perpetrate with impunity high crimes or misdemeanours against the United States, or neglects to superintend their conduct, so as to check their excesses. On the constitutionality of the declaration I have no manner of doubt.
If we refer to the constitution for light on this subject, it will appear evident that the objection is not well founded.
The objection is this, that an officer ought not to be removed but by impeachment; then every officer is appointed during good behaviour. Now, the constitution expressly declares, that the judges, both of the supreme and inferior courts, shall hold their offices during good behaviour. If it is declared, that they are to hold their offices by this particular tenure, it follows, that the other officers of the government should hold them only at pleasure. He thought this an important question, and one in which they were obliged to take the constitution by construction. For although it detailed the mode of appointing to office, it was not explicit as to the supercedure: this clause, therefore, would be a mere declaration of the legislative construction on this point. He thought the importance and necessity of making the declaration, that the chief magistrate might supercede any civil officer was evident, and he should therefore vote in favor of the clause as it stood.
Said, there were no negative words in the constitution to preclude the president from the exercise of this power, but there was a strong presumption that he was invested with it; because, it was declared, that all executive power should be vested in him, except in cases where it is otherwise qualified; as, for example, he could not fully exercise his executive power in making treaties, unless with the advice and consent of the senate— the same in appointing to office.
He viewed the power of removal, by impeachment, as a supplementary security to the people against the continuance of improper persons in office; but it did not consist with the nature of things, that this should be the only mode of removal; it was attended with circumstances that would render it insufficient to secure the public safety, which was a primary object in every government; witness a trans-Atlantic instance of its incompetency, he meant the famous case of Mr. Hastings:[1
]with what difficulty is that prosecution carried on? what a length of time it will take to determine? what is to be done while the impeachment is depending? for, according to the ideas of the gentleman from South-Carolina (Mr. Smith
), he cannot be removed but on conviction; if he cannot be removed, I should suppose he cannot be suspended, and what security have the people against the machinations of a bad man in office? He had no doubt but the constitution gave this power to the president; but if doubts were entertained, he thought it prudent to make a legislative declaration of the sentiments of congress on this point. He was therefore in favor of the clause.
Thought the power given by the constitution to the senate, respecting the appointment to office, would be rendered almost nugatory if the president had the power of removal. If the first nomination of the president should be disapproved by the senate, and the second agreed to, he had nothing to do but wait the adjournment of congress, and then fill the vacancy with his favorite, who, by thus getting into the possession of the office, would have a considerable chance of permanency in it. He thought it consistent with the nature of things, that the power which appointed should remove; and would not object to a declaration in the resolution, if the words were added, that the president shall remove from office, by and with the advice and consent of the senate. He agreed that the removal by impeachment was a supplementary aid favorable to the people; but he was clearly of opinion, that the same power that appointed had, or ought to have, the power of removal.
Wished the motion had been referred to a sub-committee to digest: it seemed to him they were building the house before the plan was drawn. He wished to see the system reduced to writing, that he might leisurely judge of the necessity and propriety of each office and its particular duties.
With respect to the question before the house, he was of opinion, that if the house had the power of removal by the constitution, they could not give it out of their hands; because every power recognized by the constitution must remain where it was placed by that instrument. But the words in the constitution declare, in positive terms, that all civil officers shall be removed from office on impeachment for, and conviction of, high crimes and misdemeanors, and however long it may take to decide in this way it must be done. He did not think the case of Mr. Hastings ought to be brought forward as a precedent for conducting such business in the United States. He believed whenever an impeachment was brought before the senate, they would proceed with all imaginable speed to its termination. He should, in case of impeachment, be willing to go so far as to give the power of suspension to the president, and he thought this all the security which the public safety required, it would prevent the party from doing farther mischief. He agreed with the gentleman in the general principle, that the body who appointed ought to have the power of removal, as the body which enacts laws can repeal them; but if the power was deposited in any particular department by the constitution, it was out of the power of the house to alter it.
Did not conceive it was a proper construction of the constitution to say, that there was no other mode of removing from office than that by impeachment; he believed this, as applied to the judges, might be the case, but he could never imagine it extended in the manner which gentlemen contended for. He believed they would not assert, that any part of the constitution declared, that the only way to remove should be by impeachment, the contrary might be inferred, because congress may establish offices by law; therefore, most certainly, it is in the discretion of the legislature to say upon what terms the office shall be held, either during good behaviour, or during pleasure. Under this construction the principles of the constitution would be reconcileable in every part; but under that of the gentleman from South-Carolina, it would be incongruous and faulty. He wondered how the gentleman from Georgia (Mr. Jackson
) would reconcile his principles so far as to permit the president to suspend the officer. He begged his colleague (Mr. Bland) to consider the inconvenience his doctrine would occasion, by keeping the senate constantly sitting, in order to give their assent to the removal of an officer; they might see there would be constant probability of the senate being called upon to exercise this power, consequently they could not be a moment absent: now, he did not believe, the constitution imposed any such duty upon them; why then, said he, shall we enjoin it, especially at such an expence of the public treasure.
Would by no means infringe the constitution by any act of his, or if he thought this motion would lead the committee beyond the powers assigned to the legislature, he would give it a decided negative; but, on an impartial examination of that instrument, he could not see the least foundation for such an objection; however he was glad the question had come forward, because he wished to give a legislative construction of this part of the constitution.
The gentlemen who denied the power of the president to remove from office, founded their opinion upon the fourth section of the second article of the constitution, where it is declared, that all officers shall be removed from office on impeachment for, and conviction of, treason or bribery. If their construction is admissable, and no officer whatever is to be removed in any other way than by impeachment, we shall be in a deplorable situation indeed: Consider the extent of the United States, and the difficulty of conducting a prosecution against an officer, who, with the witnesses, resides a thousand miles from the seat of government. But suppose the officer should be by sickness, or some other accident, rendered incapable of performing the functions of the office, must he be continued? and yet it is to be apprehended, that such a disability would not furnish any good ground for impeachment; it could not be laid as treason or bribery, nor perhaps as a high crime or misdemeanor. Would gentlemen narrow the operation of the constitution in this manner, and render it impossible to be executed?
When the committee come to consider the clause respecting the removal by impeachment, they will find it is intended as a punishment for a crime, and not intended as the ordinary means of re-arranging the departments. We find in the clause in the constitution, subsequent to the one just mentioned, that the judges are declared to hold their offices during good behaviour; but if this is the tenure by which all offices are to be held, where is the necessity of this explicit declaration in favor of the judges? Now, if any thing is to be drawn by construction from this part of the constitution it is, that the judges alone are to hold their offices during good behaviour, but all other officers during pleasure, unless otherwise provided in the constitution. He was certain, from the nature of things, that it was not the intention of the constitution to prevent the president from removing an officer, who was found to be wholly unfit or incapable of doing his duty.
Thought no office under the government was to be held during pleasure, except those which are to be constituted by law; but all the heads of departments are to be appointed by the president, by and with the advice and consent of the senate. He conceived, that in all cases the party who appointed ought to judge of the removal, except in those cases which by the constitution are excepted, and in those cases impeachment and conviction were the only mode by which they can be removed. Although this committee may consider of the expediency of the present measure, yet the senate would check, or correct, an improper decision; and he would ask the supporters of this part of the resolution, whether they expected the senate would part with a power which they might think the constitution vested in them? He had doubts respecting the authority of the house to decide this question, and was very tenacious of doing any thing that would look like an encroachment on the privileges of the other branch of the legislature.
Asked, why the judges were particularly mentioned in the constitution as holding their offices during good behaviour, if it was not supposed that, without this express declaration in their favor, they, in common with all other officers, not immediately chosen by the state legislatures and the people, would hold them during pleasure? The clause respecting impeachments was particularly calculated for removing unworthy officers of the other description. Holding this construction of the constitution to be right, he was in favor of the clause as it stood.
Acknowledged the judges held their offices during good behaviour, and he believed the legislature had the power of determining the time an office should continue, but did not think they could give to the president alone the power of removing those who were appointed with the concurrence of the senate.
Admitted that congress had a right to say that an office should be held a limited time, or for one year; but if no precise period was fixed, he conceived the officer's appointment to be during good behaviour, and that the person could not be removed by the president. The constitution expresses the precise time for which the president of the United States shall be chosen; if no precise time had been fixed, he should conceive the tenure to be during good behaviour; now, on the same principle, he apprehended, if the legislature did not fix a precise time for the secretary of foreign affairs, to hold his office, he would keep it during good behaviour; all that could be done in case of misbehaviour, would be to suspend the officer until after trial and conviction, when he would be removed: a gentleman has asked what must be done if an incumbent is found unfit for his office? he would answer, the person must remain there? what must be done if a member of this house is found unfit to perform the business of his constituents? certainly he must and will continue on this floor: you cannot remove him unless guilty of some crime. He did not hold the opinion mentioned by some gentlemen, that the power who appoints can remove, because, there were several cases where those who appoint have not the power of removal; in some of the state governments, the chief executive magistrate appoints to office but cannot remove, so under this constitution, the people nor the legislatures cannot remove the members of the senate or house of representatives nor the electors cannot remove the president or vice-president, both of whom they appoint to those offices. He apprehended the power which the constitution gave to congress of establishing certain offices by law, would enable them to limit the tenure of the office, but if congress declined the exercise of this power, the officers appointed would continue in their station during good behaviour.
Apprehended the words of the resolution limited the tenure of the office in the manner which the honorable gentleman last up seemed to admit to be proper, to be sure it did not denominate the period by years or days; but it nevertheless fixed a precise period for its existence, viz. during the pleasure of the president, the constitution had certainly intended thatcongress should define the tenure of office, or it would never have declared the judges should continue during good behaviour; this constitutional provision in their favor, was to render them independent of the legislature, which was not supposed would be the case if nothing on this head had been declared. It is the only thing which prevents us from making them dependant upon the will of the president for their continuance in office, or, from ordaining that their commission shall expire at the end of a certain term of years.
He conceived as the constitution was silent with respect to the time the secretary of foreign affairs should remain in office, that it therefore depended upon the will of the legislature, to say how the department should be constituted and established by law, the conditions upon which he shall enjoy the office; we can say he shall hold it for three years from his appointment or during good behaviour, and we may declare unfitness and incapacity, causes of removal and make the president alone judge of this case; we may authorise the president to remove him for any cause he thinks proper; it is in our power to make such declaration, but at the same time the constitution provides, that the president shall not have it in his power to hold a person in office who has been guilty of crimes or misdemeanors against the government; the power of removal in such cases is in the legislature by impeachment. The only question which remained, he considered to be, could the legislature safely trust the president with this power? the question of right he conceived to be indisputable, it was merely a question of expediency. Gentlemen admit, that we have a right to limit the duration of the office; what is authorising the removal by the president but limiting it, and if we conceive this the best method of limiting it, why shall it be objected as unconstitutional: if it encreases the responsibility of the president, and certainly it does this, why should the legislature hesitate in obtaining the highest security for the public interest and safety.
Thought the constitution ought to have a liberal construction, and therefore was of opinion that the clause relative to the removal by impeachment, was intended as a check upon the president, as already mentioned by some gentlemen, and to secure to the people, by means of their representatives, a constitutional mode of obtaining justice against peculators and defaulters in office, who might be protected by the persons appointing them. He apprehended the doctrine held out by the gentlemen from South-Carolina, would involve the government in great difficulties, if not in ruin, and he did not see it was a necessary construction of the constitution; why then should the house search for a meaning, to make the constitution inconsistent with itself, when a more rational one was at hand; he however inclined at present, to the sentiment of the gentleman from Virginia, (Mr. Bland) who thought the senate ought to be joined with the president in the removal, as they were joined by the constitution in the appointment to office.
Was decidedly against combining the senate in this business, he wished to make the president as responsible as possible, for the conduct of the officers who were to execute the duties of his own branch of the government. If the removal and appointment were placed in the hands of a numerous body, the responsiblity would be lessened. He admitted, there was a propriety in allowing the senate to advise the president on the choice of officers; this, the constitution had ordained for wise purposes; but there could be no real advantage arising from the concurrence of the senate to the removal, but great disadvantages; it might beget faction and party, which would prevent the senate from paying proper attention to the public business; upon the whole, he concluded the community would be served by the best men, when the senate concurred with the president in the appointment; but if any oversight was committed, it could best be corrected by the superintending agent. It was the peculiar duty of the president, to watch over the executive officers, but of what avail, would be his inspection, unless he had a power to correct the abuses he might discover.
I look upon every constitutional question, whatever its nature may be, of great importance; I look upon the present to be doubly so, because its nature is of the highest moment to the well being of the government. I have listened with attention to the objections which have been stated, and to the replies that have been made; and I think the investigation of the meaning of the constitution, has supported the doctrine I brought forward. If you consult the expediency, it will be greatly against the doctrine advanced by gentlemen on the other side of the question. See to what inconsistency gentlemen drive themselves, by their construction of the constitution. The gentleman from South-Carolina, (Mr. Smith
) in order to bring to conviction and punishment an offender in any of the principal offices, must have recourse to a breach of the common law, and yet he may there be found guilty, and maintain his office, because he is fixed by the constitution. It has been said, we may guard against the inconveniency of that construction, by limiting the duration of the office, to a term of years, but during that term, there is no way of getting rid of a bad officer, but by impeachment, during the time this is depending, the person may continue to commit those crimes for which he is impeached, because if this construction of the constitution is right, the president can have no more power to suspend than he has to remove.
What fell from one of my colleagues (Mr. Bland) appears to have more weight, than any thing hitherto suggested. The constitution at the first view, may seem to favor his opinion; but that must be the case only at the first view, for if we examine it, we shall find his construction incompatible with the spirit and principles, contained in that instrument.
It is said, that it comports with the nature of things, that those who appoint, should have the power of removal, but I cannot conceive that this sentiment is warranted by the constitution; I believe it would be found very inconvenient in practice. It is one of the most prominent features of the constitution, a principle that pervades the whole system, that there should be the highest possible degree of responsibility in all the executive officers thereof, any thing therefore which tends to lessen this reponsibility is contrary to its spirit and intention, and unless it is saddled upon us expressly by the letter of that work, I shall oppose the admission of it into any act of the legislature. Now, if the heads of the executive departments are subjected to removal by the president alone, we have in him security for the good behaviour of the officer: If he does not conform to the judgment of the president, in doing the executive duties of his office, he can be displaced; this makes him responsible to the great executive power, and makes the president responsible to the public for the conduct of the person he has nominated and appointed to aid him in the administration of his department; but if the president shall join in a collusion with his officer, and continue a bad man in office, the case of impeachment will reach the culprit, and drag him forth to punishment. But if you take the other construction, and say, he shall not be displaced, but by and with the advice and consent of the senate, the president is no longer answerable for the conduct of the officer, all will depend upon the senate. You here destroy a real responsibility without obtaining even the shadow; for no gentleman will pretend to say, the responsibility of the senate can be of such a nature as to afford substantial security. But why, it may be asked, was the senate joined with the president in appointing to office, if they have no responsibility? I answer, merely for the sake of advising, being supposed, from their nature, better acquainted with the characters of the candidates than an individual; yet even here the president is held to the responsibility he nominates, and with their consent appoints; no person can be forced upon him as an assistant by any other branch of the government.
There is another objection to this construction, which I consider of some weight, and shall therefore mention to the committee. Perhaps there was no argument urged with more success, or more plausibly grounded, against the constitution, under which we are now deliberating, than that founded on the mingling of the executive and legislative branches of the government in one body. It has been objected, that the senate have too much of the executive power even, by having a controul over the president in the appointment to office. Now, shall we extend this connection between the legislative and executive departments, which will strengthen the objection, and diminish the responsibility we have in the head of the executive? I cannot but believe, if gentlemen weigh well these considerations, they will think it safe and expedient to adopt the clause.
The constitution provides for the appointment of the public officers in this manner: The president shall nominate, and by and with the advice and consent of the senate, shall appoint ambassadors and other public ministers and consuls, judges of the supreme court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law. Now, if there be no other clause respecting the appointment, I shall be glad to see how the heads of departments are to be removed by the president alone, what clause is it that gives this power in express terms? I believe there is none such. If there is a power of removal, beside that by impeachment, it must vest somewhere; it must vest in the president, or in the president and senate, or in the president, senate, and house of representatives. Now, there is no clause which expressly vests it in the president; I believe no gentleman contends it is in this house, because that would be that mingling of the executive and legislative powers gentlemen deprecate. I presume, then, gentlemen will grant, that if there is such power, it vests with the president, by and with the advice and consent of the senate, who are the body that appoints. I think we ought to be cautious how we step in between the president and the senate, to abridge the power of the one, or encrease the other: If the power of removal vests where I suppose, we, by this declaration, undertake to transfer it to the president alone.
It has been mentioned, that it is proper to give this power to the president, in order to make him more fully responsible for this officer. I am for supporting the president to the utmost of my power, and making him as responsible as possible: I would therefore vest every gift of office, in the power of the legislature, in the president alone; but I cannot think we ought to attempt to give him authority to remove from office, in cases where the constitution has placed it in other hands.
Considered this as a constitutional question, and was of opinion, that the same power which appointed an officer, had the right of removal also, unless it was restrained by an express declaration to the contrary. As the president, by and with the advice and consent of the senate, is empowered to appoint ambassadors, certainly they have a right to remove them and appoint others? In the case of the judges, they must be appointed for life, or during good behaviour. He had no idea, that it could ever enter into the heart of any man living, that all officers appointed under the constitution were to have a perpetuity in office: The judges themselves would not have had this right, if it had not been expressly given by the constitution, but would be removeable in like manner with ambassadors, other public ministers, and consuls. He took it, therefore, in the present case, that the president and the senate would have the power of removing the secretary of foreign affairs. The only question therefore which appears to be before the committee is, whether we shall give this power to the president alone? and with that he thought they had nothing to do. He supposed, if the clause was left out, the president and the senate would proceed, as directed by the constitution, to appoint the officer; and hereafter, if they judged it necessary, would remove him; but if they neglected to do so when it was necessary by reason of his misdemeanours, this house would impeach him, and so get rid of him on conviction.
It seems to be agreed on all hands, that there does exist a power of removal; the contrary doctrine would be a solecism in government. If an officer embezzles the public money, or neglects or refuses to do the duties of his appointment, can it be supposed there is no way of getting rid of such a person? he was certain it was essentially necessary such a power should be lodged somewhere, or it would be impossible to carry the government into execution. Their enquiries were therefore reduced to this point, does it reside, agreeable to the constitution, in the president, or in the president and the senate? The constitution declares, that the president and the senate shall appoint, and it naturally follows, that the power which appoints shall remove also. What would be the consequence of the removal by the president alone, he had already mentioned, and need not again repeat: A new president might, by turning out the great officers, bring about a change of the ministry, and throw the affairs of the union into disorder: Would not this, in fact, make the president a monarch, and give him absolute power over all the great departments of government? It signifies nothing that the senate have a check over the appointment, because he can remove, and tire out the good disposition of the senate.
His colleague had objected to the removal in this way, because the senate would be kept constantly sitting. He did not think this objection of any weight, because the constitution made some other things their duty, which would require them to be pretty constantly sitting, he alluded to the part they were called upon to perform in making treaties; this therefore would be a trifling objection.
Thought it was not absolutely necessary to make any provision on this head, because the power was given to the president by the constitution, but as the argument had been pretty well gone into, he would add no more at present, than just to remark an error the gentleman last up had fallen into; he had supposed the president to have the powers of a monarch, that he could introduce and keep a favorite in office in despite of every other branch of the government: the senate was an effectual check to a system of favoritism, and it lay in the power of the house to correct any abuse arising from such a system if it unhappily was fallen into.
Insisted that the check of the senate was not sufficient, if the power of removal was taken from them, indeed, he was satisfied from the privilege the president had of nominating and filling up vacancies pro tempore; he would become absolute if he alone had the power of removal; he was therefore against this part of the motion, both on principle, and policy; he therefore moved to add to the words of the motion, "by and with the advice and consent of the senate," so that the power of removal might be declared to be in the same body as the constitution placed the appointment.
Said, the power of removal was an executive power, and as such belonged to the president alone, by the express words of the constitution, "the executive power shall be vested in a president of the United States of America." The senate were not an executive body, they were a legislative one; It was true, in some instances, they held a qualified check over the executive power, but that was in consequence of an express declaration in the constitution, without such declaration, they would not have been called upon for advice and consent in the case of appointment; why then shall we extend their power to controul the removal which is naturally in the executive, unless it is likewise expressly declared in the constitution.
The question on adding the words "by and with the advice and consent of the senate" as moved by Mr. Bland, was put and lost.
It has been said, that the senate are not an executive body. I grant that they are not an executive body when they are sitting for legislative purposes; but they are an executive body when performing their executive functions as required in the constitution.
Every question respecting treaties or public officers, must go through their hands: why shall we make the president responsible for what goes through other hands? he is not solely responsible agreeably to the constitution, for the conduct of the officers he nominates, and the senate appoints, why then talk of obtaining a greater degree of responsibility than is known to the constitution.
We are told, that we ought to keep the legislative and executive departments distinct; if we were forming a constitution, the observation would be worthy of due consideration, and he would agree to the principles, but the constitution is formed, and the powers blended; the wished for separation, was therefore impracticable.
Remarked, that the argument of the gentleman from Pennsylvania, (Mr. Clymer) was too well founded to be overturned by the critical distinction made by the gentleman last up, and was sufficient to convince gentlemen if they would consider it well, that the constitution vested the power of removal in the president alone: he begged the committee to consider the monstrous effect it would produce if the legislature went on to mingle the legislative and executive powers: he would place it in one other point of view, and then have done with the subject. It is well known, that the senate are to decide upon an impeachment made by this house. Now, can they be impartial judges when they have already given judgment in the case? Suppose, the president communicates his suspicions to the senate respecting the malfeasance of a public officer, and they from faction or party views, or, indeed, for want of full information, refuse their consent to the removal, can they be the equal and unbiassed judicature which the constitution contemplates them to be; he thought they could not.
Requested the committee to delay the decision of this question, because he did not wish gentlemen to commit themselves, without having fully reflected upon the subject. It had presented itself to his mind, as one of the most momentous questions that could arise, in which the rights of the people, the energy of government, and the liberty of posterity were staked. He begged them not to cast the die, on which the fate of millions was hazarded, until they had maturely considered the subject. He felt a degree of security in the check, the senate had over the president, in appointing to office, but he should not think himself safe, if the power of removal, was in the president alone.
The question was now taken, and carried by a considerable majority, in favor of declaring the power of removal, to be in the president.
The committee then proceeded to the consideration of the treasury department.
Knew nothing of the system, which gentlemen propose to adopt in arranging the treasury department; he thought they were hurrying on business too rapidly. Gentlemen had already committed themselves on one very important point; he hoped the honorable mover of this proposition, would explain his intentions, before the committee decided the question, he could not see where it might lead.
The late congress, had, on long experience, thought proper to organize the treasury department, in a mode different from that proposed by the resolution, he would be glad to know what the reasons were that should induce the committee to adopt a different system, from that which had been found most beneficial to the United States. He hoped gentlemen would give time for considering the subject maturely; wherefore, he would move to postpone it, for the present, and proceed to the war department.
Rose, to express his surprize, that gentlemen should say they were not prepared, when the subject had been often mentioned to the house, and its necessity was self evident; he had a week ago, proposed to refer it to a select committee, but had been over-ruled; he was told then, that the proper mode of doing the business was, to go into a committee of the whole, he had taken that mode, in consequence, and hoped the business would not be necessarily delayed.
Admitted the necessity of having a treasury department, as said by the gentleman last up, was self evident, but it was not obvious whether the department should be placed under one man, or a board of commissioners. In order to have time for considering the question, he would second the motion for postponing.
Said, the motion of postponement, was contrary to the rules of the house; the gentleman might move the committee to rise, and the effect would be the same. While he was up, he would declare his sentiment to be in favor of a single head to this department, rather than three; but he would have the principal officer, well checked in the execution of his trust.
The motion being changed for the rising of the committee, it was agreed to.
Documentary History of the First Federal Congress of the United States of America,
ed. Charlene Bickford, et al.
(Columbia, S.C.: Model Editions Partnership, 1999).
Electronic version based on the
Documentary History of the First Federal Congress of the United States of America
(Baltimore, Md.: The Johns Hopkins Press, 1992) Vol. 10, pp. 718-759. On the Web at http://mep.blackmesatech.com/mep/ [Accessed 20 October 2017]