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conceived this to be altogether a constitutional question. He was convinced of the necessity of energy in the executive, but he was sure the liberties of the people deserved equal attention and care. Of two evils it was proper to chuse the last. It had been mentioned, that in all governments the executive necessarily had the power of dismissing officers under him. That might hold good in Europe, but it did not apply to our constitution, by which the President had not the executive powers exclusively. The Senate was associated with him, and investing them with any particular authority could not impair the energy of the executive. If this arrangement was wrong, the fault was only in the constitution, and it could be remedied only by amendment. He dreaded the dangers to which this power would expose us. It would establish a total system of influence in the government. We would have a treasury bench, and a croud of the President's creatures in the house. His ministers could intrude here, and lead and govern the measures of legislation.
The gentlemen, he said, had contended that there might be cases where the officer was unfit for his station, by reason of infirmity, incapacity, and other qualities not punishable— He might sink into dotage, or be seized with a fit of lunacy. It was proper, therefore, that some silent remedy should be supplied. It was true this might happen, and so it might happen to others, whom there was no mode of removing. Suppose the President should be taken with a fit of lunacy, would he not continue in office during his four years? Suppose the Senate should be seized, or the representatives themselves become lunatics, would not the people be obliged to submit to this mad Congress? We had already, he said, seen a King of Great Britain a lunatic,[1
] and the same might be the case with our President; and though it was improbable that a majority of this house should be lunatics, it was by no means impossible. It was also urged, that the judges alone were to hold their offices during good behaviour. It was admitted that they ought to. But was not a judge, as well as other executive officers, liable to the act of God, which might deprive him of his faculties and his legal knowledge? Yet he must continue in office till impeached and convicted of some crime.
Was it politic, he asked, to place the officers in such a situation as to deprive them of all their independency and firmness? Had not the President the command of the army, and would he not have the treasury under his thumb? The secretary of the finances would never dare oppose him, and would leave him unchecked to exercise his powers. Then, he said, we might bid adieu to liberty, and all the blessings of genuine republicanism. He begged gentlemen to consider the deadly influence of the crown in England, where offices were held during the pleasure of the king. Let gentlemen turn their eyes to Sweden; and behold the monarch shutting the doors upon his senate, and compelling them to submit to his despotic ordinances.[2
] He affirmed that the error of gentlemen lay in calculating upon the merit of the present chief magistrate, as if he was to continue for ever. With him he was confident every power might be lodged. But he was not immortal; the period must come when he should be taken from us. Could we be sure who would succeed him? Might not a man come into the office who carried a Pandora's box in his breast.
The business of construction, he observed, was a dangerous business. One of the favorite amendments proposed to the constitution was, a provision that all power which was not expressly given to the Congress, was retained. Under this idea, the constitution was adopted; and was it proper now to construe the constitution so, as to give extraordinary powers not before vested? The legislature had nothing but the letter of that compact to go by, and the moment a deviation was made from this, the house was making an arbitrary stride towards an arbitrary government.
was willing to consent that in case of a recess of the senate, the President might have power to make a temporary suspension. If an officer was guilty of any misdemeanor, he trusted that there would be always virtue enough in the house of representatives to impeach him.
Mr. CLYMER remarked that were he to give his vote merely as it respected the constitution, he should be indifferent whether the words were struck out or not; for he was clear that the executive had the power of removal as incident to his department— With respect to appointments, the senate was only a check on the President, to prevent his filling offices with unworthy men. In the case of removal there is not such a necessity for this check; for suppose a worthy man should be dismissed, what great danger or inconvenience would follow from it? Must he not consult the senate in filling the vacancy? and would he have a better chance of procuring their consent to admit an improper character, than in the first appointment? The presumption therefore, only was that one good man would be changed for another. If the power was not given to the executive, he would want the best power of doing good. He would be an inefficient officer; would only act by the agency of others, and would be destitute of responsibility.
It would be entirely frivolous, he said, to call the people together every four years to choose a President, if when chosen, he should be a mere cypher in the government, to nominate for the senate to appoint, and to propose in order for the senate to remove. It would be as proper to give the whole executive authority to the senate at once. If this power was denied the President, he declared that the government would be as destitute of energy as any in the universe.
was in favor of the motion. He contended that the clause would establish a dangerous power in the hands of the President, and was in direct opposition to that clause in the constitution which provides for the impeachment of officers. He asserted, that the clause contained in it the seeds of royal prerogative. It appeared to him that every thing which had been said in the house respecting energy in the executive, might be carried to the destruction of a free government. This very energy so much talked of, had led many patriots to the Bastille,[3
] to the block, and to the halter. If the President might take a man from the head of a department without assigning a reason, he might as well be vested with a power, on certain occasions, of taking away his existence. The idea was not consonant to the principles of a free government, where no man ought to be condemned unheard, nor till after a fair and solemn trial. He would rather suffer for a time the mischiefs arising from the administration of a bad officer, than to see a dangerous prerogative vested in the chief magistrate, which might lead to despotism. He knew that gentlemen supported the principle from honest motives: he knew they were friends to the government, but he thought they were in an unhappy error.
Mr. SHERMAN was opposed to the clause. He conceived that the paragraph in the constitution respecting appointments, was provided for some useful purpose; but it appeared to him that on the construction of the gentlemen, it would be defeated. He thought that the concurrence of the Senate was as necessary to the very nature of an appointment, as the nomination of the President. They were mutual checks and had each a negative. He considered it as an established principle, that the appointing power should have the right to remove, except where there was an express restriction, as in the case of the judges, who held their places during good behaviour. Were it not for that restriction, the President and Senate might displace them. It was, he said, a general principle in law as well as reason, that the same authority was necessary to repeal as to establish. It was so in legislation. The several branches whose concurrence was requisite to pass an act, must also concur to repeal it. He supposed that if a law was passed, giving the President the exclusive appointment of certain inferior officers, he would also have the power of removing them. But this was not an inferior officer. He was the head of a great department, and his appointment was constitutionally vested in the President and Senate. If gentlemen would suppose that this was a subordinate officer who was to be in aid of the President, there a question might arise, whether his appointment could not, by law, be vested in the executive; for being an executive officer, and the President being the great executive, the President might be supposed to be properly the head of that department. This reasoning however was not to be admitted— He was an officer within the meaning of the constitution, who might have authority given him to make subordinate appointments, and therefore it was necessary that the Senate should have a voice in his appointment. As the office was a mere creature of the legislature, it might be limited in its power and duration, the officer might be annually elected, and displaced for certain crimes, as neglect of duty, & c.
Mr. STONE, (Maryland) considered it the duty of the house to determine on the question. He was opposed to the leaving it for the decision of a court of law or any other power than the legislature.
When the question was brought forward, his mind, he said, was in doubt. He had reflected upon it, and had formed an opinion which was entirely satisfactory to himself. He thought that every officer should be removable by the power that appointed him. It was in the very nature of things. The power of appointment arose from a power over the subject on which the officer was to act; it was founded on an interest which the principal possessed in the transactions of his agent. Therefore in general, appointing officers appeared to be nothing more than authorising agents for the dispatch of business. This was in his opinion an established principle, and it would operate from a minister of state down to a tide-waiter. The constitution, it had been admitted, recognized this principle, and it could not be denied but that when general appointments were made, they were during will and pleasure; that where appointments were made during good behaviour, they were exceptions from the general rule, in which the exercise of the creating power was limited.
He would examine whence originated the power of Congress respecting these offices. He presumed that if it was vested in Congress, by clear deduction from that instrument, to erect departments that no gentleman would consent to diminish it, or restrict them in the exercise of it. The Congress had power to levy and collect taxes. This would include to establish an office of the treasury— to regulate commerce with foreign nations, and with Indian tribes. This comprehended a power of erecting a board of trade, & c. and in order to carry these powers into execution, they were to make all laws necessary to carry the constitution into effect. Now it appeared to him that the establishment of this department was clearly within the constitution, and that as Congress, in their legislative capacity, had an interest in, and power over the whole affairs of the department, they might appoint and displace its officers. But again, the constitution had limited the legislature with respect to appointments, and given them to the President and Senate. The question then was, whether the Senate, having a share in appointing, did not possess the power of removal as incidental to it.
Mr. Stone asked, what qualities were necessary for an appointment that were not requisite for dismissing? Information, impartiality and judgment in the business to be conducted. Were not the same qualities necessary in order to dismiss? He was not able to subscribe to the principle, that the executive in its nature comprehended a necessary power of appointing or removing officers— Why did it imply it? The appointment of officers requiring qualities which are necessary to judge of the merits of men; so the dismissing them— to know what was necessary for an executive officer; what for a judge, & c.
This knowledge was acquired by experience, and might belong to one body of men as well as another. In the nature of things, therefore, there was no necessary connection between the executive functions and the power of removal. That body which could best judge of the qualities necessary to transact business, were the most proper disposers of offices, and if it was contended that the executive magistrate was in the best situation, and under the best advantages to judge of these qualities, still this was a meer matter of fact, which might depend on circumstances, and the nature of the office did not necessarily involve the capacity of judging, or imply the power of exercising that judgment.
Mr. Stone then took notice of the principles which had been contended for, in another view, as it applied to the situation of other nations where a hereditary monarch was established, who had a personal property in the government and administration, and who was considered as the natural fountain of honor and office. It was supposed that he had necessarily the power of choosing and controuling those who were to manage his property. But this had no application to our country, where the chief magistrate had no species of property in the government, and was not the master, but the great servant of the people.
These circumstances concurred to prove that the President of the United States had no natural right to be the sole judge of the merits of officers; and as far as he could conclude from examining the constitution, it never intended to bestow it upon him.
It therefore struck his mind that all controul of officers independent of the agency of the Senate, was confined to the case of such inferior officers, the appointment of which the constitution had enabled the legislature to vest solely in him. It struck him also that as to the power of pardoning, the President should be precluded from the exercise of this power, in case where the Senate had convicted an offender. So that it appeared to him, that the Senate were a body to whom the constitution had given great weight in the executive scale, and in the administration of government.
In determining whether it was proper on the score of expediency to give the power to the President, or to him with the senate— the degree of confidence which was to be placed in those bodies were to be considered— Was it more probable, he asked, that one man should do wrong, or that a number of men, chosen with equal care, and acting under the same obligations, should do wrong? Where were the greatest temptations! Where were the greatest obstacles? Who would have the greatest objects to attain?
He concluded with proposing that the President should have the power of suspension, in order to remedy a difficulty which had been suggested in case of a recess of the senate when it became necessary to punish an officer by removal.
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. 11, pp. 842-887; 889-973; 993-1076; 1079-1083; 1164-1171; 1174-1175; 1319-1334. On the Web at http://mep.blackmesatech.com/mep/ [Accessed 4 January 2018]