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

The Daily Advertiser

Mr. MADISON was against the motion for striking out the words conferring this power. He observed that there was no impropriety in the legislature settling this question. It could affect none of the principles of the constitution. If the clause was nothing more than a declaration of the constitution, it could do no harm; if it related to a doubtful part, an explanation would come more properly from the whole legislature, than any branch; and if the constitution was totally silent, Congress might use its discretion. He was clear that the committee ought to adhere rigidly to the constitution, and ought to consider the subject without any regard to the particular merit and personal character of any citizen; but to that degree of probable merit which in the ordinary course of things might be expected to reside in the presidential chair. It was true, he said, that the power was a high and important one; but in order to come to a just decision, it was necessary to view the subject on both sides. In the first place, when one reflected that the chief magistrate was to be selected from the mass of the people, by the suffrages of several millions, it is not to be presumed that a vicious character would be raised to that station. If there was any country on earth, in which an effectual security was provided against the elevation of an unworthy man to the first seat of government, it was the United States. He thought it might be fairly concluded, that the instances of such an elevation must be very rare. Where the people were disposed to give to a fellow citizen so high a token of their attachment, he was not afraid, he said, to allow such a man his full confidence; especially when he reflected on the guards which were opposed to any possible abuses, and when this officer was impeachable for misconduct. Under these circumstances, though the trust was great, and perhaps in some degree dangerous, yet he thought it more safely deposited in such hands, than where the gentlemen wished to place it.
It was clearly the policy of the constitution, that the first magistrate should be responsible for the executive department; but as far as those who executed the duties of this department were not made answerable to him, so far he himself could not be responsible for the executive administration. If the Senate was associated with the President in the power of removal, the officers would probably chuse rather to rest the holding of their places upon the favor of that body than of the President; they would therefore consider themselves as amenable principally to the Senate, and the executive responsibility would become impracticable or unjust.
He said he had considered the constitution, and he would acknowledge that the light, in which it now appeared to him, did not correspond precisely with the idea which its original impression presented to him. At first glance he had imagined that the same power which appointed officers should have the right of displacing them. This was a plausible idea. But on examining the constitution by its true principles, and on considering and comparing the departments of government together, he had his doubts whether the committee was not tied down to that construction on which the clause in dispute was founded.
The constitution had divided the government into three departments, and distributed the powers distinctly among them. The legislative power was vested in a Congress consisting of the Senate and House of Representatives, and the executive in a President. He supposed that as far as the constitution had separated these powers, it would be improper to blend them. As far as any department was in possession of the powers incident to its nature, it would be wrong to qualify them any farther than the constitution had done, and where the constitution was silent as to any particular power, it would be improper to vest that power, if it were in its nature executive, in a body which was in its own nature legislative. Would any gentleman say, that the judicial power should be vested in any body, other than that in which the constitution had vested it? The executive power was in the hands of a President; were there any particular exceptions to this general principle? Yes. The constitution had declared that in the appointment of officers, the President should have the concurrence of the Senate, unless in case of inferior officers the law should otherwise direct. Had Congress, said he, a right to extend this exception? No. If the constitution had in general vested all executive powers in one branch, he affirmed that the legislature had no right to diminish these powers, or modify them any farther than the constitution had expressly done it.
The question then was reduced to this: Was the power of displacing officers an executive or legislative power? He conceived that no power could be more compleatly executive than that of appointing, inspecting and controuling those who had the immediate administration of the laws. If the constitution had not provided that in the appointment of officers, the President should have the advice and consent of the senate, would it not be clear that he as possessed of the executive powers would have a right to appoint them? Could Congress have a right in this case to associate the senate with the president in the appointment of officers? Certainly not. But if not, how could it be said that Congress had a right to associate these branches together in order to dismiss them.
Mr. Madison extended his argument somewhat further, in the same stile of reasoning, and to enforce the same principle, and concluded with this remark, that if the clause under discussion was agreeable to the constitution, and comported with it, it could do no harm; but if it was a doubtful point, it was properly the duty of the legislature to examine and decide upon it.
Mr. VINING observed that the committee, who brought in the bill, were obliged to insert this clause, as the house had previously determined that the power of controuling officers should be lodged where the responsibility resided. He proceeded to reprobate the remedy by impeachment, as applied in the general and extensive manner, in which gentlemen had contended for it. The gentleman from Massachusetts had well enumerated the difficulties and inconveniencies which attended this dilatory and circuitous remedy. If an example to the disgrace of impeachments was required, let gentlemen, said he, look at the trial of Warren Hastings. Suppose a secretary of foreign affairs was in his situation; he must go through all the forms of a full trial, evidences must be adduced, the charges, and the arguments of the parties heard, and a deliberate decision given. The process might be perpetuated with the lapse of years, and the public suffer from the vacancy of office, or the uncertainty and unsettled state of the administration.
It had been insisted that the power of removal ought to exist in the same branch in which the power of appointment was vested. This principle was not just, for it might be extended to the President himself. He was appointed in one way, and by one species of electors, and might be removed in another, and by another body— He was elected by the people or their immediate agents and removed by the senate by way of impeachment.
Mr. Vining continued his reasoning in favor of the clause; but the rapidity of his enunciation prevented our accurately copying the subsequent part of his speech.
Mr. WHITE said he would take up the subject where the gentleman last up had dismissed it. He would begin with impeachments. He considered impeachments unnecessary and improper to be applied on all occasions. They were only proper respecting those officers who were to hold their places during good behaviour. These were the President, Vice President, and Judges alone. It was true the principle that the power of removal ought to exist with the power of appointment, did not apply with respect to the two former, because the electors, who chose them, could not be assembled to exercise that power. For them therefore, there was no mode of removal except by impeachment before the Senate.
He said he had no idea that such an officer as the minister of foreign affairs should not be removed in any other way than by impeachment. It might be improper to have his misdemeanors publicly known; and he had no doubt but that the President and Senate should have the power to dismiss him, without assigning any reason. The constitution must have intended this or why did it particularly provide that the Judges should hold their offices during good behaviour?
He confessed that he was obliged to differ from his colleague in the principle which he had laid down, viz. that the whole executive power was given exclusively to the President, in cases where the constitution had not made a specific exception. The constitution had given the power of appointment to the senate, and most certainly it gave them the power to dismiss. Those who had the right of establishing under certain restrictions, should have the right of removing under the same qualifications.
It had been urged that the power would be safer in the President's hands than in those of the senate. He thought it unnecessary to give an opinion on that point— He was bound to adhere to the constitution— That prescribed certain limits beyond which the legislature could not go.
In answer to the difficulties which, it had been mentioned, would occur in practice, he suggested the propriety of giving the President a power of suspension in case of the recess of the senate.
Mr. BOUDINOT was for retaining the clause, as it was a legislative construction of the constitution, which he conceived necessary to be settled at this time.
He thought the clause was neither inconsistent with the principles of the constitution, nor infringed on the rights of the senate or any other branch of government. There was nothing in the constitution which implied that officers could be removed by impeachment only. The reasoning of those who were in favour of the power's being vested in the President, concluded nothing, he said, against the remedy by impeachment in case of actual offences, it only went to prove that there was another mode of punishing provided for in the constitution. It was proper and necessary that the power of removal should be somewhere, but a man might be impeached wherever this power might reside, and however protected he might be by the favour of him in whom that power was vested— What he contended for was, that this remedy was entirely insufficient and inadequate.
Mr. BOUDINOT made some other observations in answer to those who contended for impeachments, as the only remedy.
He then proceeded to consider the arguments in support of vesting the power of removal in the President and Senate united. The constitution, he said, had given the Senate a voice in appointing; but this by no means implied a right of removing. Suppose the President to complain to the Senate of the misconduct of an officer, what was to be the consequence if the Senate considered themselves as the judges? Would they not call on the officer, to know the reasons of his conduct? Now, he asked whether an investigation of this kind would not set the Senate over the head of the President? and should the Senate determine in favor of the officer, what situation would the President be in?
But he had another more solid objection. He considered the senate as the only security and barrier between the house of representatives and the president. This security ought to be always in a situation to be appealed to, and to guard against his misconduct. If the president was unduly attached to an officer, who was obnoxious to the representatives, and was determined to support him, and if the public clamour should compel him to bring the matter before the senate, and they should decline removing, and the house of representatives should proceed to impeach the officer; the senate would be in a biassed situation, and improper judges of the merits of the impeachment, for they would have prejudged, and pledged themselves to acquit the offender. The same difficulty would occur in case of an attempt of the representatives to bring the President himself to justice by impeachment, for refusing to dismiss a wicked and odious officer. The great security to liberty, which the constitution had in view, in giving the senate the trial of impeachments, would be rendered nugatory.
Mr. SMITH (S.C.) rose to reply. He apprehended that gentlemen on the opposite side, were inconsistent with themselves. Some argued that the constitution had given the power of removal, others, that this house OUGHT to give it. He must return, he said, to the true question, that the constitution had given the power to the President, when it was unnecessary to give it, or that it had not given it, in which case it was improper for the house to vest it. Gentlemen had said, that it was the duty of the legislature to give their construction on this point. This he thought would be an infringement on the rights of the judiciary. It was their right to expound the constitution. If one house had the power of construing, the other had the same; and he believed, that on a question in which they were themselves concerned, they would see with different eyes, and disagree in their expositions. He apprehended that much mischief had arisen in the several states from legislative constructions of the constitutions.
Mr. Smith took notice of the argument which had been urged, that there were various causes of removal which would not be grounds of impeachment; and said it extended with equal force to the President, Vice President, Senators, & c. and therefore was ill-founded. He went through a train of reasoning in support of impeachments as a sufficient remedy, and to prove that the constitution had left no discretion in the Legislature to expound it, or to vest any new powers. He drew an argument against conferring this power on the President, from the examples of the several States, whose governments had furnished the skeleton of this constitution, and on whose general principles it had been formed. He concluded by placing in a clear point of view the probability of a too implicit and servile submission to the will of the President; and recurred to a number of historical facts to demonstrate the danger of abuses which would flow from this source.
Mr. GERRY, feared that the House were about making a breach in the constitution, by treating the subject as a meer question of expediency. If it was a question of constitutionality, every idea of the expediency must he said be abandoned.
He was for adhering strictly to the Constitution, and adduced a number of arguments to prove that it gave no power to the Legislature to vest such an authority in the President; and if that was a doubtful point, it allowed no liberty of discretion or construction.
Mr. AMES after premising some observations to point out and enforce the grand, general principle on which the constitution was formed, and the objects to be answered, proceeded to observe, that as the President could not himself personally execute the laws in all their extent, there was a necessity for the establishment of auxiliaries, who should be dependent on him, and under his controul; that a distinction, however, took place between these auxiliaries as to the mode of their responsibility. The officers of the judiciary from the nature and peculiar delicacy of their trust, were to have a greater degree of independence. They were therefore formed into a distinct branch, and held their offices during good behaviour. But in respect to other officers acting in aid of the President, and established on different principles, and for different purposes, it was necessary that they should hold their places by a different tenure, viz. during pleasure; and that they ought to be removed, when the reasons which induced their appointment should cease. The confidence which the government had in the talents and virtues of an officer, was the only ground of his appointment, and the only bond of connection between him and his principal; when that confidence ceased, the power with whom he was associated, and under whose direction he acted, should be authorised to displace him. There might be numerous and various causes of removal which did not amount to a crime. If it was admitted that officers ought to be dismissed when their continuance operated to the injury of the administration, whether they were innocent or not of any crime, then the only question was, how and by whom they should be displaced. It could not with any semblance of reason be contended, he said, that all officers should hold their places during good behaviour: a government on such a principle was not to be found in the universe.
Mr. Ames then went on to point out the inconveniencies of impeachment, and to answer Mr. Smith on that score. He suggested that there would be as frequent a necessity to prevent, as to punish crimes. The situation and advantages of the President would enable him to detect a villainous intention before it was ripe for execution. He might for example, discover in the officers of the treasury a project of embezzling the public money, some decisive and sudden remedy would in such a case be indispensable.
But it seemed to be generally agreed, that removal was a proper remedy. The main question was, by whom? It was said that the constitution was against the power in the President, if that were the case, he acknowledged that all enquiry was at an end. But the committee ought to be clear that the constitution was opposed. The gentleman from Virginia had made so many just remarks to prove the constitutionality of this power, that it was unnecessary for him to go over the ground.
Mr. Ames went further into the argument in reply. He took notice of the idea which had been stated of the difficulty of procuring proper characters to fill offices, and the dangerous influence which it had been supposed he would have over their minds. As to the former, the ambition of human nature furnished no ground for the supposition; and influence and controul of the President over his assistants, were necessary to the essence of good government.
He then proceeded to shew the dangers which would result from lodging the power of removal in the senate. There could not be in them that entire responsibility; it would be divided and lost among a number— The senate being constituted for other purposes, and having no necessary constitutional knowledge of the executive detail, could not be proper judges of the expediency of changes in the administration.
Mr. LIVERMORE argued in favor of the motion for striking out the clause.
The committee rose without a decision, and the House adjourned.