The Documentary History of the First Federal Congress of the United States of America, 1789-1791

The Congressional Register

The bill for establishing the department of foreign affairs, as reported by the committee of the whole, was taken into consideration.
[Text omitted. -Ed.]***
The question which had been so many days agitated in the committee of the whole, was now renewed by mr. Gerry; when
Mr. BENSON moved to amend the bill, by altering the second clause, so as to imply the power of removal to be in the president. The clause enacted, that there should be a chief clerk, to be appointed by the secretary of foreign affairs, and employed as he thought proper, and who, in case of vacancy, shall have the charge and custody of all records, books and papers appertaining to the department and the amendment proposed that the chief clerk, "when ever the said principal officer shall be removed from office by the president of the United States, or in any other case of vacancy," shall during such vacancy have the charge and custody of all records, books and papers appertaining to the department.
Mr. Benson declared, if he succeeded in this amendment he would move to strike out the words in the first clause "to be removable by the president"— which appeared somewhat like a grant. Now, the mode he took would evade that point, and establish a legislative construction of the constitution. He also hoped his amendment would succeed in reconciling both sides of the house in the decision, and quieting the minds of gentlemen.
Mr. PAGE expressed a desire of calling the yeas and noes on the question which had so long agitated them. He was apprehensive that by shifting the ground in the manner now proposed, the journal would not declare truly the question which had so long been contested.
Mr. LAURANCE viewed the clause as a legislative declaration; for which reason he should be well satisfied with it as it stood. He should be glad to meet gentlemen on ground of accommodation; but he did not think it likely to be effected by the proposed alteration.
Mr. MADISON admitted the objection made by the gentleman near him (mr. Benson) to the words in the bill; they certainly may be construed to imply a legislative grant of the power. He wished every thing like ambiguity expunged, and the sense of the house explicitly declared; and therefore seconded the motion. Gentlemen have all along proceeded on the idea that the constitution vests the power in the president; and what arguments were brought forward respecting the convenience or inconvenience of such a disposition of the power, were intended only to throw light upon what was meant by the compilers of the constitution. Now, as the words proposed by the gentleman from New-York, expressed to his mind the meaning of the constitution, he should be in favor of them, and would agree to strike out those agreed to in committee.
Mr. SMITH (of South-Carolina). Gentlemen, I believe, are convinced of the impropriety of the clause carried in the committee; and though they are not willing to relinquish openly their principles, yet they will do it by agreeing to the amendment. Will they pretend to carry their point by a side blow, when they are defeated by fair argument on due reflection? For my part, mr. speaker, I hold any declaration whatsoever, an infringement on the constitution; but at the same time, if it be done, I hold it more candid and manly to do it in direct terms than by an implication like the one proposed.
Mr. SEDGWICK. I wish the honorable mover of the amendment had been content with the decision of yesterday; because I apprehend the discussion of the question which he has agitated, will take up some time, without any possible advantage. For my part, I do not see the difficulty which seems to strike his mind. If I understand the subject rightly, there seems to be two opinions dividing the majority of this house. Some of these gentlemen seem to suppose that, by the constitution, and by implication and certain deduction from the principles of the constitution, the power vests in the president. Others think it is a matter of legislative determination; and that they must give it to the president on the principles of the constitution. Now suppose either of these sentiments to be just, there is no impropriety in the others' assenting to the mode of expression already adopted: yet, if the latter opinion which I stated, is the true one, there is an evident impropriety in agreeing to the amendment, and it may tend more to divide than unite the house. I hope the gentleman will therefore withdraw his motion, at least until the old question on striking out be decided.
Mr. BENSON had no objection to letting his motion lie on the table. But his objection to the clause arose from an idea that the power of removal by the president hereafter might appear to be exercised by virtue of a legislative grant only, and consequently be subjected to legislative instability, when he was well satisfied in his own mind, that it was fixed by a fair legislative construction of the constitution.
Mr. MADISON withdrew his second to the gentleman's motion, for the present; and proposed to the gentlemen who thought the constitution vested the power in the president and senate, to try their opinion, by moving to add after the words "to be removable by the president," "by and with the advice and consent of the senate." This motion he thought would give gentlemen a fair opportunity of trying the question, and recording their opinions. He begged gentlemen in opposition would not consider the motion of the gentleman from New-York ( mr.Benson) as a dereliction of the principle hitherto contended for because it had no other effect than varying the declaration which the majority were inclined to make; consequently there was no room for exultation on the part of the minority.
Here followed a desultory conversation respecting the manner in which the question should be put: during which mr. Sedgwick said he would admit mr. Benson's amendment, because it could do no harm, being only a repetition of the words in the first clause; but he would vote against striking out in the first clause, when that question came before the house.
The question on the amendment proposed by mr. Benson was taken by the yeas and nays— which are as follow.
[Text omitted. -Ed.]***
So the amendment was carried in the affirmative.
Mr. Benson now moved to strike out of the first clause the words "to be removable by the president."
Insisted that gentlemen had changed their ground by the amendment which had just taken place: it was now left to be inferred from the constitution, that the president had the power of removal, without even a legislative declaration on that point, which they had heretofore so strongly insisted upon. He would submit to the majority, how far this comported with their arguments; and leave them to say, if they had not evacuated untenable ground.
He did not wish to say much more on the subject, after it had been so well discussed; but could not help observing that, to a man of common sense, nothing appeared in the constitution from which it might be inferred that the power of removal vested in the president. All that was expressed in the instrument itself, related to removing by impeachment. How far they were tied down by the letter of the constitution, he would not positively say; but if any thing was to be drawn even from analogy, it was in favor of the president by and with the advice and consent of the senate. Beside, the exercise of such a prerogative by a chief magistrate, is incompatible with the principles of a free government. The gentlemen tell us that these are the principles of the constitution. I know not (said he) what were the intentions of its framers; but I see and judge of the work by my faculty of understanding— and nothing appears to convince me that the constitution distributes the power in the manner gentlemen have said. If we were framing a constitution, it might be proper to discuss the propriety of vesting the power of removal in the president; but as we are acting under one which we are sworn to support, I presume we are not at liberty to vary it by implication. I observed on a former occasion, that in doing this we do what is not only unnecessary, but dangerous: it will excite the jealousy of the people— raise fresh alarms, and create new rumors; we shall lose the confidence of our constituents, without which no government can be well administered. I said before that gentlemen did not consider the extent of their doctrine, when they contended so strongly for energy in government. Energy in government may become a despotism. The people of America, I will be bold to say, do not wish a government energetic to this degree. They wish the government to be as the constitution has fixed it, and its powers to be exercised in the manner it has pointed out; and not be accumulated upon the chief magistrate, in order to make him like a sovereign whose yoke they disdained to bear.
Let me remind gentlemen once more of the situation of this country. There are thousands of our fellow citizens dissatisfied with this feature of the constitution: there are two whole states which have not adopted our constitution. Can now be the time to make your government more odious— to shew a disposition towards monarchy? It cannot be. The patriots of America will never do aught to drive their country into that anarchy from which it is but just arising; they will not force the people to be loudly clamorous for amendments: yet such is the evident tendency of the present policy.
I earnestly hope the words which we have all along contended against, may be struck out: for, desirable as this bill is, I would rather lose it altogether than pass it in its present form
I am in favour of the motion for striking out; but not upon the principles of my worthy colleague. I will briefly state my reasons for voting in the manner I intend. First, altering the mode of expression tends to give satisfaction to those gentlemen who think it not an object of legislative discretion: and second, because the amendment already agreed to, fully contains the sense of this house upon the doctrine of the constitution— and therefore the words are unnecessary as they stand here. I will not trouble the house with repeating the reasons why the change of expression is best, as they are well understood. But gentlemen cannot fairly urge against us a change of ground, because the point we contended for is fully obtained by the amendment. It was said truly by the gentleman from New-York (mr. Benson), that these words carry with them an implication that the legislature has the power of granting the power of removal.
It is needless to assign my reasons why I think the legislature not in possession of this power; they were fully explained before. I therefore shall only say, if there is a principle in our constitution, indeed in any free constitution, more sacred than another, it is that which separates the legislative, executive and judicial powers; if there is any point in which the separation of the legislative and executive powers ought to be maintained with greater caution, it is that which relates to officers and offices. The powers relative to offices, are partly legislative and partly executive. The legislature creates the office, defines the powers, limits its duration, and annexes a compensation. This done, the legislative power ceases. They ought to have nothing to do with designating the man to fill the office. That I conceive to be of an executive nature. Although it be qualified in the constitution, I would not extend or strain that qualification beyond the limits precisely fixed for it. We ought always to consider the constitution with an eye to the principles upon which it was founded. In this point of view, we shall readily conclude that if the legislature determines the powers, the honors and emoluments of an office, we should be insecure if they were to designate the officer also. The nature of things restrains and confines the legislative and executive authorities in this respect; and hence it is that the constitution stipulates for the independence of each branch of the government.
Let it be understood that the Legislature is to have some influence both in appointing and removing officers; and I venture to say the people of America will justly fear a system of sinecures. What security have they but offices will be created to accommodate favorites or pensioners subservient to their designs? I never did conceive that so far as the constitution gave one branch of the legislature an agency in this business, that by any means it was one of its most meritorious parts; but so far as it has gone, I confess I would be as unwilling to abridge the power of that body, as to enlarge it. But considering, as I do, that the constitution fairly vests the president with the power, and that the amendment declares this to be the sense of the house, I shall concur with the gentleman in opposition so far as to strike out these words, which I now look upon to be useless.
I have a great respect for the abilities and judgment of my worthy colleague, mr. Page, and am convinced he is inspired by the purest motives in his opposition to what he conceives to be an improper measure; but I hope he will not think so strange of our difference, if he considers the small proportion of the house which concurs with him with respect to impeachment being the only way of removing officers. I believe the opinion is held but by one gentleman beside himself. If this sentiment was to obtain, it would give rise to more objections to the constitution than gentlemen are aware of; more than any other construction whatsoever: Yet while he professes to be greatly alarmed on one account, he possesses a stoic apathy with respect to the other.
Did not mean to trouble the house with the reasons upon which his opinion was founded. He supposed every gentleman had made up his on full deliberation. He made up an opinion for himself, and intended to be guided by this opinion in giving his vote.
He believed there were a thousand circumstances which would demand a removal from office, of which the president alone could be the proper judge; therefore the president alone ought to possess the power. He excluded the cases of impeachment; but he thought it was the discretion of the legislature to authorise the exercise of it, because they had complete power over the duration of the offices they created. Hence he deemed it necessary to make an express grant of the power of removal: but strike out these words, and there is no express grant in the bill. Now if he was right in his construction, it became necessary to retain the words; they could do no harm for reasons before-mentioned, and they stand very well with the amendment already agreed to. If he erred in judgment, no injury could arise from the error. But if other gentlemen err in their construction, we have a weak, decrepit explanation, which the president may not easily understand: For if he supposes the constitution totally silent, he can hardly draw authority from your law; and he will be reduced to the dilemma of acting in the manner related of the late governor of Virginia, by an honorable gentleman from that state (mr. White) which is by no means to be wished.
Was glad to find the majority had relinquished the right of the legislature to grant this power. If they would go farther, and leave the operation of the constitution uninfluenced, they would do right; but certainly it is improper for the house to throw its weight into the scale with the president, to counteract what gentlemen think a constitutional imbecility.
Expressed his approbation of the motion, after what had been carried; because he would not have it thought that the legislature possess a right to confer powers not vested in them by the constitution.
Was against striking out the words; because he thought the legislature had power to establish offices on what terms they pleased. The constitution secured the independency of the judges, by making their appointment during good behavior: but would any gentleman contend that congress could not make this the tenure of other offices, if they thought such tenure likely to be most productive of public good. If this was admitted, the legislature might abridge the constitutional power of the president respecting the removal of such officers. To avoid this clashing of opinions, he wished the words to remain in the bill.
Was against the motion, because the constitution vested all executive power in the president. The power of designating and appointing officers to execute the laws, was in its nature executive. Consequently the president would appoint, ex officio, if he had not been limited by the express words of the constitution. Hence he inferred, ex officio, he would remove, without limitation; but as debates had arose, and the question being seriously agitated, he was clear for making a legislative declaration, in order to prevent future inconvenience.
He had another reason. The arguments on a similar motion had taken up four days; they were such as convinced a large majority of the house that the words ought to remain in the bill. Now, to strike out after such mature deliberation, argued a fickleness which he hoped never to see affect this honorable body. No new arguments have now been urged. The former ones were conclusive, or they were not conclusive: if they were conclusive, we did right in keeping in the words; if they were not conclusive, we ought to have given them up on Saturday. They appeared then to be conclusive, and appear still to be so: therefore he would vote against the motion.
I am embarrassed on this question, as the yeas and nays are called; because the vote is taken in such a manner as not to express the principles upon which I vote.
In the committee of the whole, I voted for striking out the words that are now proposed to be struck out; and my reason was, I was doubtful whether it was proper to vest on this occasion the power in the president alone. It appears to me that the power is not necessarily vested in the president by the constitution; neither in the president and senate. I find no words that fix this power precisely in any branch of the government. It must however by implication be in the legislature— or is no where, until the constitution is amended. I presume the implication is at least equally favorable to the legislature as any other branch, if it necessarily belongs to the government. I apprehend a law is necessary in every instance to determine the exercise of the power. In some cases it may be proper that the president alone should have it. I am not clear in my own mind what general rule, if any, can be established on this subject. Perhaps in other cases it may be lodged with the president and senate; or it may be given to the heads of departments. But whomsoever is invested with it, it must be in consequence of a law; and the legislature have a right to vest it where they please. For my part, I am not under those serious apprehensions which gentlemen have expressed. I do not apprehend that vesting it in the president, or president and senate, will effect a change of government; but at the same time I am anxious to preserve a consistency, and that the business should be settled upon proper ground.
I said I was against the words in the committee, because I doubted if the president was the proper person to exercise this authority. The amendment adopted this morning I likewise voted against, because I do not wish that the law should imply that the power of removing officers at pleasure, is a constitutional right vested in him. Now, I would rather a law should pass vesting the power in improper hands, than the constitution should be wrong construed. If we say the president may remove from office, it is a grant of power— and we can repeal the law, and prevent the abuse of it: but if we by law imply that it is a constitutional right vested in the president, there will be a privilege gained, which the legislature cannot affect— at least the reversion of such a solemn opinion will occasion much inconvenience, not to say confusion.
For these reasons, I shall now be against striking out the words; though I wish to have some modification of them; but the last question being carried, has left me in doubt what to propose, to be consistent with my opinions. I am precluded from adding, by and with the advice and consent of the senate; and perhaps it would be out of order to change the word remove into suspend.
Was against striking out, and so would every gentleman be, he trusted, who was not fully convinced that the power of removal vested by the constitution in the president. He owned he had some doubts on that head himself; perhaps some others might be in the same predicament: but he had none with respect to the propriety of the president's exercising that prerogative, and therefore should readily consent to granting it; this might be done by retaining the words, and without going beyond the avowed limits of the legislative authority.
Acquiesced in striking out; because he was satisfied that the constitution vested the power in the president; and he thought it more likely to obtain the acquiescence of the senate on a point of legislative construction on the constitution, than to a positive relinquishment of a power which they might otherwise think themselves in some degree intitled to.
A desultory conversation followed; and the question was put and decided by the yeas and nays, as follows.
[Text omitted. -Ed.]***
The words being struck out, the bill was ordered to be engrossed, and read a third time to-morrow.