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

The Daily Advertiser

The question whether offices should be held during the pleasure of the President, still under consideration.
Mr. HARTLEY advocated the principle. He made some introductory observations on the necessity and importance of the office under consideration, and its intimate connection with the executive department; & maintained that in whatever hands this department was placed, the office ought to be immediately dependent on, and controulable by it. This was the policy of the constitution, and was the practice, he believed, of all nations with whom he was acquainted. It could not be considered an office held during good behaviour. The constitution had particularly pointed out those who held their places by this tenure; they were the judges alone. He conceived that the gentleman from South Carolina deviated widely from just construction, in supposing that the clause respecting impeachments extended to every office in the government. This principle would be inconvenient, mischievous and destructive to all decision in the administration. The same gentleman had, he said contended that every man had a property in his office. This idea he hoped would never find advocates in this house.
In Great-Britain it had prevailed to a pernicious degree. It was the practice there to give a man a pension who was removed from office, in consideration of the interest which he was deprived of. He hoped we should never admit this corrupt and ruinous practice among us.
The gentleman, he observed, had questioned the right of the legislature to make a construction on the constitution, or in case it was silent, to supply the defect. He could not agree to this. The instrument had expressly given it the power to make all laws necessary to carry the constitution into effect. If it was silent therefore, in any point necessary to be settled, in order to put it in operation, the inference was clear, that Congress had a right to supply the defect.
He concluded with some observations to prove that the power would be more safely lodged with the president than the senate, and that the conferring the power of removal to the senate would deprive the president of some of the most important executive functions, which few as they were, ought not to suffer the least diminution.
Mr. LAURANCE observed, that it had been objected against the clause, that the powers which it vested were unconstitutional, and not only so but unnecessary, as the constitution must contain in itself somewhere the power under consideration which it had given to some man or body of men. And therefore that it was unnecessary for a law to interfere, which could neither enlarge, diminish or modify this power. If it was unconstitutional to give it to the President, it would only be because it had been vested in some other body; it had not been contended that the constitution had expressly vested it in the senate; and otherwise it could not be said with certainty that it would be unconstitutional for the legislature to declare that the President should have it; but the objection had been collected from the nature of that body who had a voice in appointments, and from the clause in the constitution respecting impeachments. The constitution he observed, declared that the judges should hold their offices during good behaviour: if this clause was to have any effect, it certainly must imply that there were other officers who held their places during pleasure, or for a limited time; for if all officers held their places during good behaviour, and were removable only by impeachment, then the clause was useless. The person must have misbehaved before he could be impeached. But if he were infirm or incapable he could not be impeached, but must on this principle be perpetuated in office.
But it had been urged that we were to seek for the power of removal in the nature of the authority which appointed. Here he would be willing to meet the gentleman, if it were necessary to rest the cause on this point alone. He would ask who, by the constitution, had the power of appointing. It was true, it had given the Senate an advisory power, but it had considered the appointment to be by the President. It had expressly declared, that HE should nominate and appoint, though THEIR advice was rendered necessary. This was given in the strongest language. The appointment was in the President, and in him should be also the removal. But it had been objected that it would be an extension of the executive power. This was not true; or if there was any weight in the argument, it would apply against the reasoning of gentlemen in favor of vesting the power with the President and Senate conjointly. If it could be said, that the President's functions and powers ought not to be extended, it could also be said that those of the Senate could not.
The constitution he said was silent on this subject; it was also silent respecting the removal of those whose appointment it had enabled the legislature to vest in the President, in the heads of departments or in the courts of law—but nothing about their removal. Now the legislature, having in pursuance of this authority, vested the power of appointing in the President, could the constitution be carried into effect if the legislature had no right to determine in whom the power of dismissing should reside? What was the consequence? Why, in those cases, the power of removal must be in the President, and the Congress must, from the necessity of the thing have the right to determine this. Of course, in cases where the constitution had originally given the power of appointment to the President, he must for the sake of consistency have the power of removal. Certainly no person would pretend that if the legislature should give the President the sole powers to appoint in certain cases, and there was no special limitation of the office, that he should not in those cases have the sole power to remove. Thus then, he said stood the business. There was no express words prohibiting the power; and all the ideas collected from inference pointed out the legality and propriety of investing the President with the power; at least they proved that he had every constitutional right to it which the Senate together with the President could claim.
This had, he said, been called a case omitted: But in omitted cases in which a certain provision was absolutely essential to the administration, who was to make this provision and supply the defect? Undoubtedly the Legislature. It was the only authority in any measure competent to it.
Mr. Laurance asked if any gentleman supposed that the power of expounding the constitution and of providing for the removal from office could be more securely trusted to the wisdom and integrity of one branch of the Legislature than the whole; or if it would be more satisfactory to the people to have the power of displacing officers in the Senate than in the President? He said the people looked up to the Legislature as their great security and the center of political wisdom. They naturally supposed that where any provisions were necessary to be made constructive and declarative of the constitution that from this source and this alone they ought to spring. From all these circumstances, he concluded that the Congress had the right and that it was their duty to supply the deficiency in the constitution. The same constitution, which had given them the power of establishing offices, had given them a right of making all the particular provisions, whenever the constitution was silent, which were necessary to carry that general power into effect.
In the contemplation of the constitution, he observed that heads of the executive departments were mere servants and aids of the President. He had the superintendence, the controul, and the inspection into their conduct. They were not only to perform the regular duties of their function, but, to assist the President with their occasional counsel, and to answer all questions which he should put to them respecting the execution of their offices. These circumstances would give him such advantages of discovering the secret delinquencies, the faults, the deficiency of abilities or knowlege of those whom he employed, that he alone could be competent to an able exercise of this authority. Under such circumstances, would gentlemen deprive him of the power of pursuing the interests of the United States?
But it had been urged, said Mr. Laurance, that the trust was subject to abuses; that there might be wanton changes of officers, and revolutions in all the departments, on the accession of every new President. He contended that changes were proper, when he who was the only judge of their necessity thought them expedient. A new President ought to have the power on his accession, to bring forward those men, in whom he was sure he could place the highest confidence. Under the guards and checks under which the Chief Magistrate acted, it was to be presumed that changes would not take place from capricious motives, but from principles of policy and propriety.
He said he did not make his calculations of the safety of the administration upon the merit of the present Chief Magistrate, whose talents and virtues were the admiration of the world, but he had the best grounds to presume, that no man would ever be elected to that exalted office, who had not given abundant proofs of his abilities, integrity and other great qualities requisite for such a station.
He begged gentlemen to consider that the President was liable to impeachment, for having displaced a good man who enjoyed the confidence of the people.
But it was not proper he said to view the subject on one side alone—the difficulties on one side as well those on another, ought to be contemplated. He here mentioned the necessity, on the gentleman's plan, of the Senate being perpetually assembled, or of the President's convening them for the purpose of a removal, from the extremes of the continent. He instanced the case of a foreign minister negociating and intriguing to the injury of his country, who before a sentence of recall could be procured from the Senate, might have completed his machinations, and involved the republic in ruin.