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The house went into a committee of the whole on the bill for establishing the department of foreign affairs, and resumed the consideration of the clause "to be removable by the president."
I was not present when this question was first brought before the house; but I heard the arguments which were yesterday urged against the president's exercising the power of removal; and am by no means satisfied that they are well founded; if no better are brought forward, I shall be against striking out. It was contended by one gentleman, that the appointment to this office was to be during good behaviour; and asserted by others, that the president had not the power of removal without the advice and consent of the senate. I mean to offer a few remarks on these positions. But first, I would observe, that this is an office of considerable importance, if we are to judge by the duties assigned in the body of the bill. In all commercial countries it will require men of high talents to fill such an office, and great responsibility. It is necessary to connect the business in such manner as to give the president of the United States a complete command over it; so in whatever hands it is placed, or however modulated, it must be subjected to his inspection and control. This certainly is the fair construction of the constitution, and a practical recognition of the principles upon which republican governments are founded in general, and this in particular.
I apprehend, Mr. chairman, that this officer cannot be considered as appointed during good behaviour even in point of policy; but with respect to the constitutionality, I am pretty confident he cannot be viewed in that light. The constitution declares the tenure of the officers it recognizes, and says one class of them shall hold their offices during good behaviour, they are the judges of your supreme and other courts; but as to any other officer being established on this firm tenure the constitution is silent. It then necessarily follows, that we must consider every other according to its nature, and regulate it in a corresponding manner. The business of the secretary of foreign affairs is of an executive nature, and must consequently be attached to the executive department.
I think the gentleman from South Carolina goes too far in saying, that the clause respecting impeachments implies, that there is no other mode of removing an officer. I think it does not follow, that because one mode is pointed out by the constitution there is no other, especially if that provision is intended for nothing more than a punishment for a crime. The 4th section of the 2d article, says, that all civil officers shall be removed on conviction of certain crimes. But it cannot be the intention of the constitution to prevent by this a removal in every other way: Such a principle if once admitted, would be attended with very inconvenient and mischievous consequences.
The gentleman farther contends, that every man has a property in his office, and ought not to be removed but for criminal conduct; he ought not to be removed for inability. I hope this doctrine will never be admitted in this country. A man when in office ought to have abilities to discharge the duties of it; if he is discovered to be unfit, he ought to be immediately removed, but not on principles like what that gentleman contends for. If he has an estate in his office his right must be purchased, and a practice like what obtains in England will be adopted here; we shall be unable to dismiss an officer without allowing him a pension for the interest he is deprived of. Such doctrine may suit a nation which is strong in proportion to the number of dependents upon the crown, but will be very pernicious in a republic like ours. When we have established an office, let the provision for the support of the officer be equal to compensate his services; but never let it be said, that he has an estate in his office when he is found unfit to perform his duties. If offices are to be held during good behaviour, it is easy to foresee that we shall have as many factions as heads of departments; the consequence would be corruption in one of the great departments of government; and if the balance is once destroyed the constitution must fall amidst the ruins. From this view of the subject, I have no difficulty to declare, that the secretary of foreign affairs is an officer during pleasure, and not during good behaviour as contended for.
One gentleman (Mr. White) holds the same principles, but differs with respect to the power which ought to exercise the privilege of removal. On this point we are reduced to a matter of construction; but it is of high importance to the United States that a construction should be rightly made. But gentlemen say it is inconsistent with the constitution to make this declaration; that as the constitution is silent we ought not to be explicit. The constitution has expressly pointed out several matters which we can do, and some which we cannot; but in other matters it is silent, and leaves them to the discretion of the legislature. If this is not the case, why was the last clause of the 8th section of the 1st article inserted? It gives power to congress to make all laws necessary and proper to carry the government into effect.
I look upon it that the legislature have therefore a right to exercise their discretion on such questions; and however attentively gentlemen may have examined the constitution on this point, I trust they have discovered no clause which forbids this house interfering in business necessary and proper to carry the government into effect.
The constitution grants expressly to the president the power of filling all vacancies during the recess of the senate. This is a temporary power like that of removal, and liable to very few of the objections which have been made. When the president has removed an officer, another must be appointed; but this cannot be done without the advice and consent of the senate: Where then is the danger of a system of favoritism? The president, notwithstanding the supposed depravity of mankind, will hardly remove a worthy officer, to make way for a person whom the senate may reject. Another reason why the power of removal should be lodged with the president rather than the senate, arises from their connection with the people. The president is the representative of the people in a near and equal manner, he is the guardian of his country. The senate are the representatives of the state legislatures; but they are very unequal in that representation; each state sends two members to that house, although their proportions are as ten to one. Hence arises a degree of insecurity to an impartial administration; but if they possessed every advantage of equality, they cannot be the proper body to inspect into the behaviour of officers, because they have no constitutional powers for this purpose. It does not always imply criminality to be removed from office, because it may be proper to remove for other causes; neither do I see any danger which can result from the exercise of this power by the president, because the senate is to be consulted in the appointment which is afterwards to take place. Under these circumstances, I repeat it, that I have no doubt in my own mind that this office is during pleasure, and that the power of removal which is a mere temporary one, ought to be in the president, whose powers, taken together, are not very numerous, and the success of this government depends upon their being unimpaired.
I was in hopes, as this question was pretty fully discussed before, the house would not have been troubled again with it. But as much has again been said in opposition, I should not feel a conscious discharge of my duty, unless I offered those sentiments which have forcibly impressed my mind with their weight, and induced me to vote in favour of the clause.
It has been objected against this clause, that the granting of this power is unconstitutional; it was also objected, if it is not unconstitutional it is unnecessary; that the constitution must contain in itself the power of removal, and have given it to some body or person of the government to be exercised; that therefore the law could make no disposition of it, and the attempt to grant it was unconstitutional; or the law is unnecessary— for if the power is granted in the way the clause supposes, the legislature can neither add to nor diminish the power by making the declaration.
With respect to the unconstitutionality of the measure, I observe, that if it is so the constitution must have given the power expressly to some person or body other than the president; otherwise it cannot be said with certainty that it is unconstitutional in us to declare that he shall have the power of removal. I believe it is not contended that the constitution expressly gives this power to any other person; but it is contended that the objection is collected from the nature of the body which has the appointment, and the particular clause in the constitution which declares that all officers shall be removed on conviction. It will be necessary to examine the expressions of that clause; but I believe it will be found not to comprehend the case we have under consideration. I suppose the constitution contemplates somewhere the power of removal for other causes beside those expressed as causes of impeachment. I take it that the clause in the constitution respecting impeachments, is making a provision for removal against the will of the president; because the house can carry the offender before a tribunal which shall remove him notwithstanding the desire of the chief magistrate to keep him in office. If this is not to be the construction, then a particular clause in the constitution will be nugatory. The constitution declares that the judges shall hold their offices during good behaviour. This implies that other officers shall hold their offices during a limited time, or according to the will of some person; because if all persons are to hold their offices during good behaviour, and to be removed only by impeachment, then this particular declaration in favor of the judges will be useless. We are told that an officer must misbehave before he can be removed. This is true with respect to those officers who hold their commissions during good behaviour; but it cannot be true of those who are appointed during pleasure, they may be removed for incapacity, or, if their want of integrity is suspected; but the question is to find where this power of removal resides.
It has been argued, that we are to find this in the construction arising from the nature of the authority which appoints. Here I would meet the gentlemen if it was necessary to rest it entirely on that ground. Let me ask the gentlemen, who appoints? The constitution gives an advisory power to the senate, but it is considered that the president makes the appointment. The appointment and responsibility are actually his; for it is expressly declared, that he shall nominate and appoint, though their advice is required to be taken. If from the nature of the appointment we are to collect the authority of removal, then I say the latter power is lodged in the president; because by the constitution he has the power of appointment; instantly as the senate have advised the appointment, the act is required to be executed by the president. The language is explicit: "He shall nominate, and by and with the advice and consent of the senate, appoint;" so that if the gentlemen's general principle, that the power appointing shall remove also— is true, it follows that the removal is to be by the president.
It has been stated as an objection, that we should extend the powers of the president if we give him the power of removal; and we are not to construe the constitution in such way as to enlarge the executive power to the injury of any other; that as he is limited in the power of appointment by the control of the senate, he ought to be equally limited in the removal.
If there is any weight in this argument it applies as forcibly against vesting the power conjointly in the president and senate; because if we are not to extend the powers of the executive beyond the express detail of duties found in the constitution, neither are we at liberty to extend the duties of the senate beyond those precise points fixed in the same instrument; of course if we cannot say the president alone shall remove, we cannot say the president and senate may exercise such power.
It is admitted that the constitution is silent on this subject; but it is also silent with respect to the appointments it has vested in the legislature. The constitution declares, that congress may by law vest the appointment of such inferior officers as they think proper in the president alone, in the courts of law, or heads of departments, yet says nothing with respect to the removal. Now, let us suppose the legislature to have vested the power of appointment in the president in cases of inferior officers, can the intention of the constitution in this, contemplating this mode of appointment for the sake of convenience, be ever carried into effect? If we say nothing respecting the removal, what would be the consequence if the legislature should not make the declaration? could it be supposed that he would not have the authority to dismiss the officer he had so appointed? To be sure he could; then of course, in those cases in which the constitution has given the appointment to the president, he must have the power of removal for the sake of consistency. For no person will say that if the president should appoint an inferior officer he should not have the power to remove him when he thought proper, if no particular limitation was determined by the law. Thus stands the matter with respect to the constitution. There is no express prohibition of the power nor positive grant. If then we collect the power by inference from the constitution, we shall find it pointed strongly in favor of the president, much more so than in favor of the senate combined with him.
This is a case omitted, or it is not; if it is omitted, and the power is necessary and essential to the government, and to the great interests of the United States, who are to make the provision and supply the defect? Certainly the legislature is the proper body. It is declared they shall establish officers by law. The establishment of an officer implies every thing relative to its formation, constitution, and termination; consequently the congress are authorised to declare their judgment on each of these points. But if the arguments of the gentleman from South-Carolina (Mr. Smith
) prevail, that as the constitution has not mediated the removal of an officer in any other way than by impeachment, it would be an assumption in congress to vest the president, courts of law, or heads of departments with power to dismiss their officers in any other manner. Would a regulation of this kind be effectual to carry into effect the great objects of the constitution? I contend it would not: Therefore the principle which opposes the carrying of the constitution into effect, must be rejected as dangerous and incompatible with the general welfare. Hence all those suppositions, that because the constitution is silent the legislature must not supply the defect, are to be treated as chimeras and illusory inferences.
I believe it is possible that the constitution may be misconstrued by the legislature; but will any gentleman contend, that it is more probable that the senate, one branch only of the legislature, should make a more upright decision on any point than the whole legislature, especially on a point in which they are supposed by some gentlemen to be so immediately interested, even admitting that honorable body to have more wisdom and more integrity than this house— Such an inference can hardly be admitted: But I believe it seldom or ever was contended that there was more wisdom or security in a part than in the whole.
But supposing the power to vest in the senate, is it more safe in their hands than where we contended it should be? Would it be more satisfactory to our constituents for us to make such a declaration in their favor? I believe not.
With respect to this and every case omitted, but which can be collected from the other provisions made in the constitution, the people look up to the legislature, the concurrent opinion of the two branches, for their construction; they conceive those cases proper subjects for legislative wisdom; they naturally suppose where provisions are to be made, they ought to spring from this source, and this source alone.
From a view of these circumstances, we may be induced to meet the question in force. Shall we now venture to supply the defect? For my part I have no hesitation. We should supply the defect; we should place the power of removal in the great executive officer of the government.
In the constitution the heads of departments are considered as the mere assistants of the president, in the performance of his executive duties. He has the superintendance, the control and the inspection of their conduct; he has an intimate connection with them; they must receive from him his orders and directions; they must answer his enquiries in writing, when he requires it. Shall the person having these superior powers to govern, with such advantages of discovering and defeating the base intentions of his officers, their delinquencies, their defective abilities, or their negligence, be restrained from applying these advantages to the most useful, nay in some cases the only useful purpose which can be answered by them?
It appears to me that the power can be safely lodged here. But it has been said by some gentlemen, that if it is lodged here it will be subject to abuse; that there may be a change of officers, and a complete revolution throughout the whole executive department, upon the election of every new president. I admit this may be the case, and contend that it should be the case if the president thinks it necessary. I contend that every president ought to have those men about him in whom he can place the most confidence, provided the senate approve his choice. But we are not from hence to infer that changes will be made in a wanton manner, and from capricious motives; because the presidents are checked and guarded in a very safe manner with respect to the appointment of their successors; from all which it may be fairly presumed that changes will be made on principles of policy and propriety only.
Will the man chosen by three millions of his fellow citizens be such a wretch as to abuse them in a wanton manner? For my part I should think with the gentleman from Virginia (Mr. Madison) that a character thus selected and honored by his country, is entitled to my confidence; and I see no reason why we should suppose he is more inclined to do harm than good. Elected as he is, I trust we are secure. I do not draw these observationsfrom the safety I conceive under the present administration, or because our chief magistrate is possessed of irradiated virtues, whose lustre brightens this western hemisphere, and incites the admiration of the world! but I calculate upon what our mode of election is likely to bring forward, and the security which the constitution affords. If the president abuses his trust, will he escape the popular censure when the period which terminates his elevation arrives? and would he not be liable to impeachment for displacing a worthy and able man, who enjoyed the confidence of the people?
We ought not to consider one side alone, we should consider the benefit of such an arrangement as well as the difficulties. We ought also to consider the difficulties arising from the exercise of the power of removing by the senate. It was well observed by an honorable gentleman (Mr. Sedgwick) on this point, that the senate must continue in session the whole year, or be hastily assembled from the extremes and all parts of the continent whenever the president thinks a removal necessary. Suppose an ambassador or minister plenipotentiary negotiating or intriguing contrary to his instructions, and to the injury of the United States. Before the senate can be assembled to accede to his recall, the interest of his country may be betrayed, and the evil irrevocably perpetrated. A great number of such instances could be enumerated, but I will not take up the time of the committee, gentlemen may suggest them to their own minds; and I imagine they will be sufficient to convince them that, with respect to the expediency, the power of removal ought not to be in the senate.
I take it, Mr. chairman, that it is proper for the legislature to speak their sense upon those points on which the constitution is silent. I believe the judges will never decide that we are guilty of a breach of the constitution, by declaring a legislative opinion in cases where the constitution is silent. If the laws shall be in violation of any part of the constitution, the judges will not hesitate to decide against them; where the power is incident to the government, and the constitution is silent, it can be no impediment to a legislative grant; I hold it necessary in such cases to make provision. In the case of removal the constitution is silent; the wisdom of the legislature should therefore declare in what place the power resides.
Much time, Mr. chairman, has been taken up in discussing this question; but considering its importance, I trust no complaint will be made on this account. Although I am at all times unwilling to trespass on the committee, I cannot sit still and pass this subject with a silent vote. As a constitutional question, it is of great moment, and worthy of full discussion. I am, sir, a friend to the full exercise of all the powers of government, and deeply impressed with the necessity there exists of having an energetic executive. But, friend as I am to an efficient government, I value the liberties of my fellow citizens beyond every other consideration; and where I find them endangered, I am willing to forego every other blessing to secure them. If I hold it as good a maxim as it is an old one, of two evils to chuse the least.
It has been mentioned, that in all governments the executive magistrate had the power of dismissing officers under him. This may hold good in Europe where monarchs claim their powers jure divino,[1
] but it never can be admitted in America under a constitution delegating only enumerated powers. It requires more than a mere ipsi dixit[2
] to demonstrate that any power is in its nature executive, and consequently given to the president of the United States by the present constitution; but if this power is incident to the executive branch of government, it does not follow that it vests in the president alone, because he alone does not possess all executive powers. The constitution has lodged the power of forming treaties, and all executive business, I presume, connected therewith in the president, but it is qualified by and with the advice and consent of the senate, provided two-thirds of the senate agree therein; the same has taken place with respect to appointing officers. From this I infer, that those arguments are done away which the gentleman from Virginia (Mr. Madison) used to prove, that it was contrary to the principles of the constitution that we should blend the executive and legislative powers in the same body. It may be wrong that the great powers of government should be blended in this manner, but we cannot separate them, the error is adopted in the constitution, and can only be eradicated by weeding it out of that instrument; it may therefore be a proper subject for amendment when we come to consider that business again.
It has been observed, that the president ought to have this power to remove a man when he becomes obnoxious to the people or disagreeable to himself; are we then to have all the officers the mere creatures of the president? This thirst of power will introduce a treasury bench into the house, and we shall have ministers obtrude upon us to govern and direct the measures of the legislature, and to support the influence of their master: And shall we establish a different influence between the people and the president? I suppose these circumstances must take place, because they have taken place in other countries. The executive power falls to the ground in England if it cannot be supported by the parliament; therefore a high game of corruption is played, and a majority secured to the ministry by the introduction of placemen and pensioners.
The gentlemen have brought forward arguments drawn from possibility. It is said, that our secretary of foreign affairs may become unfit for his office by a fit of lunacy, and therefore a silent remedy should be applied. It is true such a case may happen, but it may also happen in cases where there is no power of removing. Suppose the president should be taken with a fit of lunacy, would it be possible by such arguments to remove him? I apprehend he must remain in office during his four years. Suppose the senate should be seized with a fit of lunacy, and it was to extend to the house of representatives, what could the people do but endure this mad congress till the term of their election expired? We have seen a king of Great Britain in an absolute fit of lunacy, which produced an interregnum in the government: The same may happen here with respect to our president; and although it is improbable that the majority of both houses of congress may be in that situation, yet it is by no means impossible. But gentlemen have brought forward another argument with respect to the judges; it is said they are to hold their offices during good behaviour: I agree that ought to be the case. But is not a judge liable to the act of God as well as any other officer of government? However great his legal knowledge, his judgment and integrity, it may be taken from him at a stroke, and he rendered the most unfit of all men to fill such an important office. But can you remove him? Not for this cause, it is impossible; because madness is no treason, crime, or misdemeanor. If he does not chuse to resign, like lord Mansfield[3
] he may continue in office for 90 or 100 years, for so long have some men retained their faculties.
But let me ask gentlemen if it is possible to place their officers in such a situation as to deprive them of their independency and firmness; for I apprehend it is not intended to stop with the secretary of foreign affairs. Let it be remembered that the constitution gives the president the command of the military. If you give him complete power over the man with the strong box, he will have the liberties of America under his thumb. It is easy to see the evil which may result. If he wants to establish an arbitrary authority, and finds the secretary of finance not inclined to second his endeavors, he has nothing more to do than to remove him, and get one appointed of principles more congenial with his own. Then, says he, I have got the army, let me have but the money, and I will establish my throne upon the ruins of your visionary republic. Let no gentleman say I am contemplating imaginary dangers, the mere chimeras of a heated brain. Behold the baleful influence of the royal prerogative! all officers till lately held their commissions during the pleasure of the crown.
At this moment see the king of Sweden, aiming at arbitrary power, shutting up the doors of his senate, and compelling by the force of arms his shuddering councillors to acquiesce in his despotic mandates. I agree that this is the hour in which we ought to establish our government; but it is an hour in which we should be wary and cautious, especially in what respects the executive magistrate; with him every power may be safely lodged. Black indeed is the heart of that man who even suspects him to be capable of abusing them. But alas! he cannot be with us forever; he is liable to the viscissitudes of life; he is but mortal, and though I contemplate it with great regret, yet I know the period must come which will separate him from his country; and can we know the virtues or vices of his successor in a very few years? may not a man with a Pandora's box in his breast come into power, and give us sensible cause to lament our present confidence and want of foresight?
A gentleman has declared, that as the constitution has given the power of appointment, it has consequently given the power of removal. I agree with him in all that the constitution expressly grants, but I must differ in the constructive reasoning. It was said by the advocates of this constitution, that the powers not given up in that instrument, were reserved to the people: Under this impression it has been proposed as a favorite amendment to the constitution, that it should be declared that all powers not expressly given should be retained. As to what gentlemen have said of its giving satisfaction to the people, I deny it; they never can be pleased that we should give new and extraordinary powers to the executive; we must confine ourselves to the powers described in the constitution, and the moment we pass it we take an arbitrary stride toward a despotic government.
The gentleman from New-York (Mr. Laurance
) contends that the president appoints, and therefore he ought to remove. I shall agree to give him the same power in cases of removal, as he has in appointing; but nothing more. Upon this principle, I would agree to give him the power of suspension during the recess of the senate. This in my opinion would effectually provide against those inconveniencies which have been apprehended; and not expose the government to the abuses we have to dread from the wanton and uncontrolled authority of removing officers at pleasure. I am the friend of an energetic government; but while we are giving vigour to the executive arm, we ought to be careful not to lay the foundation of future tyranny. For my part I must declare, that I think this power too great to be safely trusted in the hands of a single man; especially in the hands of a man who has so much constitutional power. I believe if those powers had been more contracted, the system of government would have been more generally agreeable to our constituents; that is, at present it would conform more to the popular opinion at least. Formy part, though I came from a state where the energy of government can be useful, and where it is at this moment wanting, I cannot agree to extend this power; because I conceive it may at some future period be exercised in such a way as to subvert the liberties of my country, and no consideration shall ever induce me to put them in jeopardy. It is under this impression that I shall vote decidedly against the clause.
If I was to give my vote merely on constitutional ground, I should be totally indifferent whether the words were struck out or not; because I am clear that the executive has the power of removal as incident to his department, and if the constitution had been silent with respect to the appointment he would have had that power also: The reason, perhaps, why it was mentioned in the constitution, was to give some further security against the introduction of improper men into office. But in cases of removal there is not such necessity for this check. What great danger would arise from the removal of a worthy man, when the senate must be consulted in the appointment of his successor? Is it likely that they will consent to advance an improper character? The presumption therefore is, that he would not abuse this power; or if he did, only one good man would be changed for another.
If the president is divested of this power, his responsibility is destroyed; you prevent his efficiency, and disable him from affording that security to the people which the constitution contemplates. What use will it be of, to call the citizens of the union together every four years to obtain a purified choice of a representative, if he is to be a mere cypher in the government? The executive must act by others; but you reduce him to a mere shadow, when you controul both the power of appointment and removal; if you take away the latter power, he ought to resign the power of superintending and directing the executive parts of government into the hands of the senate at once, and then we become a dangerous aristocracy, or shall be more destitute of energy than any government on earth. These being my sentiments I wish the clause to stand as a legislative declaration, that the power of removal is constitutionally vested in the president.
After so much has been said, I should not presume to trouble the house with my sentiments, but that I seconded the motion. I do contend it must appear to every person who reads the constitution, without hearing the ingenious explanations that have been made, that the clause in the bill is unconstitutional. How is it to be reconciled to the clause which relates to impeachments, or the clause vesting the appointment in the president, by and with the advice and consent of the senate? But independent of these considerations it must appear improper. I venture to assert, that this clause of the bill contains in it the seeds of royal prerogative. If gentlemen lay such stress on the energy of the government, I beg them to consider how far this doctrine may go. Every thing which has been said in favor of energy in the executive may go to the destruction of freedom, and establish despotism. This very energy so much talked of, has led many patriots to the Bastille, to the block, and to the halter. If the chief magistrate can take a man away from the head of a department without assigning any reason, he may as well be invested with power, on certain occasions, to take away his existence. But will you contend, that this idea is consonant with the principles of a free government, where no man ought to be condemned unheard, nor till after a solemn conviction of guilt on a fair and impartial trial. It would, in my opinion, be better to suffer for a time the mischief arising from the conduct of a bad officer, than admit principles which would lead to the establishment of despotic prerogatives. Gentlemen may be, and no doubt are, actuated by honest motives in supporting this clause; but I lament them as laboring under a fatal error which may ruin their country.
There can be little occasion for the president to exercise this power unless you suppose that the appointments will be made in a careless manner, which by no means is likely to be the case; if then you have a good officer why should he be made dependent upon the will of a single man? Suppose a colonel in your army should disobey his orders, or cowardly flee before the enemy, what would the general do? would he be at liberty to dismiss the officer? no, he would suspend him until a court martial was held to decide the degree of guilt. If gentlemen had been content to say that the president might suspend, I should second their motion, and afterward the officer might be removed by and with the advice and consent of the senate; but to make every officer of the government dependent on the will and pleasure of one man, will be vesting such arbitrary power in him as to occasion every friend to liberty to tremble for his country. I confess it seems to me a matter of infinite concern, and I should feel very unhappy if I supposed the clause would remain in the bill.
I consider this as a very important subject in every point of view, and therefore worthy of full discussion. In my mind it involves three questions. First, whether the president has by the constitution the right to remove an officer appointed by and with the advice and consent of the senate? No gentleman contends but the advice and consent of the senate is necessary to make the appointment in all cases, unless in inferior offices where the contrary is established by law, but then they alledge that although the consent of the senate is necessary to the appointment, the president alone by the nature of his office has the power of removal. Now it appears to me, that this opinion is ill founded, because this provision was intended for some useful purpose, and by that construction would answer none at all. I think the concurrence of the senate as necessary to appoint an officer as the nomination of the president; they are constituted as mutual checks, each having a negative upon the other.
I consider it as an established principle, that the power which appoints can also remove, unless there are express exceptions made. Now the power which appoints the judges cannot displace them, because there is a constitutional restriction in their favor; otherwise the president, by and with the advice and consent of the senate, being the power which appointed them, would be sufficient to remove them. This is the construction in England, where the king had the power of appointing judges; it was declared to be during pleasure, and they might be removed when the monarch thought proper. It is a general principle in law as well as reason, that there should be the same authority to remove as to establish. It is so in legislation; where the several branches whose concurrence was necessary to pass a law, must concur in repealing it. Just so I take it to be in cases of appointment; and the president alone may remove when he alone appoints, as in the case of inferior offices to be established by law.
Here another question arises, whether this officer comes within the description of inferior officers? Some gentlemen think not; because he is the head of the department of foreign affairs. Others may perhaps think that as he is employed in the executive department in aid of the president, he is not such an officer as is understood by the term heads of departments; because the president is the head of the executive department, in which the secretary of foreign affairs serves. If this is the construction which gentlemen put upon the business, they may vest the appointment in the president alone, and the removal will be in him of consequence. But if this reasoning is not admitted, we can by no means vest the appointment or removal either in the chief magistrate alone. As the officer is the mere creature of the legislature, we may form it under such regulations as we please, with such powers and duration as we think good policy require; we may say he shall hold his office during good behaviour, or that he shall be annually elected; we may say he shall be displaced for neglect of duty, and point out how he should be convicted of it— without calling upon the president or senate.
The third question is, if the legislature has the power to authorise the president alone to remove this officer, whether it is expedient to invest him with it? I do not believe it is absolutely necessary that he should have such power; because the power of suspending would answer all the purposes which gentlemen have in view by giving the power of removal. I do not think that the officer is only to be removed by impeachment, as is argued by the gentleman from South-Carolina (Mr. Smith
); because he is the mere creature of the law, and we can direct him to be removed on conviction of mismanagement or inability, without calling upon the senate for their concurrence: But I believe if we make no such provision, he may constitutionally be removed by the president, by and with the advice and consent of the senate, and I believe it would be most expedient for us to say nothing in the clause on this subject.
I think it necessary, Mr. chairman, to determine the question before us: I do not think it would do to leave it the determination of courts of law hereafter. It should be our duty in cases like the present to give our opinion on the construction of the constitution.
When the question was brought forward I felt unhappy, because my mind was in doubt; but since then I have deliberately reflected upon it, and have made up an opinion perfectly satisfactory to myself. I consider that in general every officer who is appointed should be removed by the power that appoints him: It is so in the nature of things. The power of appointing an officer arises from the power over the subject on which the officer is to act: It arises from the principal who appoints having an interest in and a right to conduct the business, which he does by means of an agent; therefore this officer appears to be nothing more than an agent appointed for the convenient dispatch of business. This is my opinion on this subject, and the principle will operate from a minister of state down to a tide waiter. The constitution, it is admitted by every gentleman, recognizes the principle: Because it has not been denied, whenever general appointments are made under the constitution, that they are to be at will and pleasure; that where an appointment is made during good behaviour, it is an exception to the general rule, there you limit the exercise of the power which appoints; it is thus in the case of the judges.
Let us examine then, whence originates the power of congress with respect to the officer under consideration. I presume it is expressly contained in the constitution, or clearly deducible from that instrument, that we have a right to erect the department of foreign affairs. No gentleman will consent to a reduction or relinquishment of that power. The constitution has given us the power of laying and collecting taxes, duties, imposts and excises; this includes the power of organizing a revenue board. It gives us power to regulate commerce; this includes the power of establishing a board of trade. To make war, and organize the militia; this enables us to establish a minister at war: And generally to make all laws necessary to carry these powers into effect. Now, it appears to me, that the erection of this department is expressly within the constitution: Therefore, it seems to me, as congress, in their legislative capacity, have an interest in and power over this whole transaction, that they consequently appoint and displace their officers. But there is a provision in the constitution which takes away from us the power of appointing officers of a certain description; they are to be appointed by the president, by and with the advice and consent of the senate; then the constitution limits the legislature in appointing certain officers, which would otherwise be within their power.
It will then become a considerable question, as it has been in my mind, that as, in the nature of things, the power which appoints removes also, and as the power of appointment by the constitution is placed in the president and senate, whether the removal does not follow as incidental to that power? But I am averse to that construction, as the terms of the constitution are sufficient to invest the legislature with complete power for performing its duties; and as it has given the power of making treaties, and judging of them, to the senate and president, I should be inclined to believe, that as they have an immediate concern in, and control over this business, that therefore they ought to have the power of removal. It may be said, with respect to some other officers, that, agreeable to this principle, the president alone ought to have the sole power of removal; because he is interested in it, and has the control over the business they manage: For example, the minister at war. The president is the commander in chief of the army and militia of the United States; but the ground is narrowed by the senate being combined with him in making treaties; though even here again the ground is reduced, because of the power combined in the whole legislature to declare war and grant supplies. If it is considered, that congress have a right to appoint these officers, or dictate the mode by which they shall be appointed, and I calculate in my own opinion the manner of dismission from the mode of appointment, I should have no doubt but we might make such regulations as we may judge proper. If the constitution had given no rule by which officers were to be appointed, I should search for one in my own mind; but as the constitution has laid down the rule, I consider the mode of removal as clearly defined as by implication it can be; it ought to be the same with that of the appointment: What quality of the human mind is necessary for the one that is not necessary for the other? Information, impartiality, and judgment in the business to be conducted, are necessary to make a good appointment: Are not the same properties requisite for a dismission? it appears so to me.
I cannot subscribe to the opinion delivered by some gentlemen, that the executive in its nature implies the power to appoint the officers of government. Why does it imply it? The appointment of officers depend upon the qualities that are necessary for forming a judgment on the merits of men; and the displacing of them, instead of including the idea of what is necessary for an executive officer, includes the idea necessary for a judicial one; therefore it cannot exist in the nature of things, that an executive power is either to appoint or displace the officers of government. Is it a political dogma? Is it founded in experience? If it is, I confess it has been very long wrapped up in misterious darkness. As a political rule, it is not common in the world, excepting monarchies, where this principle is established, that the interest of the state is included in the interest of the prince; that whatever injures the state is an injury to the sovereign; because he has a property in the state and the government, and is to take care that nothing of that kind is to be injured or destroyed, he being so intimately connected with the well-being of the nation, it appears a point of justice only to suffer him to manage his own concerns. Our principles of government are different, and the president, instead of being master of the people of America, is only their great servant. But, if it arises from a political dogma, it must be subject to exceptions, which hold good as they are applied to governments which give greater or lesser proportions of power to their executive. I shall only remark that the constitution in one part of it, so far as I can see, supposes that the president is the sole judge of the merits of an appointment; it is very forcible to my mind, that the constitution has confined his sole appointment to the case of the inferior officers. It also strikes me, from the clause that gives the president the power to grant reprieves and pardons for offences against the United States, except in cases of impeachment, that the constitution reposes a confidence in the senate which it has not done in this officer; and therefore there is no good reason for destroying that participation of power which the system of government has given to them.
Whether it would be expedient to give the power of removal to the president alone depends on this consideration; they are both bodies chosen with equal care and propriety; the people show as much confidence in the one as in the other; the best president and the best senate, it is to be presumed, will always be chosen that they can get. Now, I would ask, in all cases where the integrity and confidence is the same, whether it is more likely that one man should do right, and exercise his power with propriety, than a number of men with the aid of each others' deliberations? Is it more likely that a number of men should do wrong than one man? Let us examine, shortly, the temptations of one and the other. It would be more difficult for a majority to be obtained in a body composed of members of thirteen independent states, in favor of despotic measures, than might justly be expected from the caprice or want of judgment in a single individual. Is it likely the danger would be so great? I apprehend it is not. All the difficulties and embarrassments that have been mentioned can be removed by giving to the president the power of suspension during the recess of the senate; and I think, that an attention to the constitution will lead us to decide, that this is the only proper power to be vested in the president of the United States.
However various the opinions which exist upon the point now before us, it seems agreed on all sides, that it demands a careful investigation and full discussion. I feel the importance of the question, and know that our decision will involve the decision of all similar cases. The decision that is at this time made will become the permanent exposition of the constitution; and on a permanent exposition of the constitution will depend the genius and character of the whole government. It will depend, perhaps, on this decision, whether the government shall retain that equilibrium which the constitution intended, or take a direction toward aristocracy, or anarchy among the members of the government. Hence how careful ought we to be to give a true direction to a power so critically circumstanced. It is incumbent on us to weigh with particular attention the arguments which have been advanced in support of the various opinions with cautious deliberation. I own to you, Mr. chairman, that I feel great anxiety upon this question; I feel an anxiety, because I am called upon to give a decision in a case that may affect the fundamental principles of the government under which we act, and liberty itself. But all that I can do on such an occasion is to weigh well every thing advanced on both sides, with the purest desire to find out the true meaning of the constitution, and to be guided by that, and an attachment to the true spirit of liberty, whose influence I believe strongly predominates here.
Several constructions have been put upon the constitution relative to the point in question. The gentleman from Connecticut (Mr. Sherman) has advanced a doctrine which was not touched upon before. He seems to think (if I understood him right), that the power of displacing from office is subject to legislative discretion; because it having a right to create, it may limit or modify as is thought proper. I shall not say but at first view this doctrine may seem to have some plausibility: But when I consider, that the constitution clearly intended to maintain a marked distinction between the legislative, executive, and judicial powers of government; and when I consider, that if the legislature has a power, such as contended for, they may subject, and transfer at discretion, powers from one department of government to another; they may, on that principle, exclude the president altogether from exercising any authority in the removal of officers; they may give it to the senate alone, or the president and senate combined; they may vest it in the whole congress, or they may reserve it to be exercised by this house. When I consider the consequences of this doctrine, and compare them with the true principles of the constitution, I own that I cannot subscribe to it.
Another doctrine which has found very respectable friends, has been particularly advocated by the gentleman from South-Carolina (Mr. Smith
). It is this; when an officer is appointed by the president and senate, he can only be displaced from malfeasance in his office by impeachment: I think this would give a stability to the executive department so far as it may be described by the heads of departments, which is more incompatible with the genius of republican governments in general, and this constitution in particular, than any doctrine which has yet been proposed. The danger to liberty, the danger of mal-administration has not yet been found to lay so much in the facility of introducing improper persons into office, as in the difficulty of displacing those who are unworthy of the public trust. If it is said that an officer once appointed shall not be displaced without the formality required by impeachment, I shall be glad to know what security we have for the faithful administration of the government. Every individual in the long chain which extends from the highest to the lowest link of the executive magistracy, would find a security in his situation which would relax his fidelity and promptitude in the discharge of his duty.
The doctrine, however, which seems to stand most in opposition to the principles I contend for, is that the power to annul an appointment is in the nature of things incidental to the power which makes the appointment. I agree that if nothing more was said in the constitution than that the president, by and with the advice and consent of the senate, should appoint to office, there would be great force in saying that the power of removal resulted by a natural implication from the power of appointing. But there is another part of the constitution no less explicit than the one on which the gentleman's doctrine is founded, it is that part which declares, that the executive power shall be vested in a president of the United States. The association of the senate with the president in exercising that particular function, is an exception to this general rule; and exceptions to general rules, I conceive, are ever to be taken strictly. But there is another part of the constitution which inclines in my judgment, to favor the construction I put upon it; the president is required to take care that the laws be faithfully executed. If the duty to see the laws faithfully executed be required at the hands of the executive magistrate, it would seem that it was generally intended he should have that species of power which is necessary to accomplish that end. Now if the officer when once appointed, is not to depend upon the president for his official existence, but upon a distinct body (for where there are two negatives required either can prevent the removal), I confess I do not see how the president can take care that the laws be faithfully executed. It is true by a circuitous operation, he may obtain an impeachment, and even without this it is possible he may obtain the concurrence of the senate for the purpose of displacing an officer; but would this give that species of control to the executive magistrate which seems to be required by the constitution? I own if my opinion was not contrary to that entertained by what I suppose to be the minority on this question, I should be doubtful of being mistaken, when I discovered how inconsistent that construction would make the constitution with itself. I can hardly bring myself to imagine the wisdom of the convention who framed the constitution, contemplated such incongruity.
There is another maxim which ought to direct us in expounding the constitution, and is of great importance. It is laid down in most of the constitutions or bills of rights in the republics of America, it is to be found in the political writings of the most celebrated civilians, and is every where held as essential to the preservation of liberty, That the three great departments of government be kept separate and distinct; and if in any case they are blended, it is in order to admit a partial qualification in order more effectually to guard against an entire consolidation. I think, therefore, when we review the several parts of this constitution, when it says that the legislative powers shall be vested in a Congress of the United States under certain exceptions, and the executive power vested in the president with certain exceptions, we must suppose they were intended to be kept separate in all cases in which they are not blended, and ought consequently to expound the constitution so as to blend them as little as possible.
Every thing relative to the merits of the question as distinguished from a constitutional question, seems to turn on the danger of such a power vested in the president alone. But when I consider the checks under which he lies in the exercise of this power, I own to you I feel no apprehensions but what arise from the dangers incidental to the power itself; for dangers will be incidental to it, vest it where you please. I will not reiterate what was said before with respect to the mode of election, and the extreme improbability that any citizen will be selected from the mass of citizens who is not highly distinguished by his abilities and worth; in this alone we have no small security for the faithful exercise of this power. But, throwing that out of the question, let us consider the restraints he will feel after he is placed in that elevated station. It is to be remarked that the power in this case will not consist so much in continuing a bad man in office, as in the danger of displacing a good one. Perhaps the great danger, as has been observed, of abuse in the executive power, lies in the improper continuance of bad men in office. But the power we contend for will not enable him to do this; for if an unworthy man be continued in office by an unworthy president, the house of representatives can at any time impeach him, and the senate can remove him, whether the president chuses or not. The danger then consists merely in this, the president can displace from office a man whose merits require that he should be continued in it. What will be the motives which the president can feel for such abuse of his power, and the restraints that operate to prevent it? In the first place, he will be impeachable by this house, before the senate, for such an act of mal-administration; for I contend that the wanton removal of meritorious officers would subject him to impeachment and removal from his own high trust. But what can be his motives for displacing a worthy man? It must be that he may fill the place with an unworthy creature of his own. Can he accomplish this end? No; he can place no man in the vacancy whom the senate shall not approve; and if he could fill the vacancy with the man he might chuse, I am sure he would have little inducement to make an improper removal. Let us consider the consequences. The injured man will be supported by the popular opinion; the community will take side with him against the president; it will facilitate those combinations, and give success to those exertions which will be pursued to prevent his re-election. To displace a man of high merit, and who from his station may be supposed a man of extensive influence, are considerations which will excite serious reflections before hand in the mind of any man who may fill the presidential chair, the friends of those individuals, and the public sympathy will be against him. If this should not produce his impeachment before the senate, it will amount to an impeachment before the community, who will have the power of punishment by refusing to re-elect him. But suppose this persecuted individual, cannot obtain revenge in this mode, there are other modes in which he could make the situation of the president very inconvenient, if you suppose him resolutely bent on executing the dictates of resentment. If he had not influence enough to direct the vengeance of the whole community, he may probably be able to obtain an appointment in one or other branch of the legislature; and being a man of weight, talents and influence in either case, he may prove to the president troublesome indeed. We have seen examples in the history of other nations, which justifies the remark I now have made, though the prerogatives of the British king are great as his rank, and it is unquestionably known that he has a positive influence over both branches of the legislative body, yet there have been examples in which the appointment and removal of ministers has been found to be dictated by one or other of those branches. Now if this is the case with an hereditary monarch, possessed of those high prerogatives and furnished with so many means of influence; can we suppose a president elected for four years only dependent upon the popular voice impeachable by the legislature? little if at all distinguished for wealth, personal talents, or influence from the head of the department himself; I say, will he bid defiance to all these considerations, and wantonly dismiss a meritorious and virtuous officer? Such abuse of power exceeds my conception: If any thing takes place in the ordinary course of business of this kind, my imagination cannot extend to it on any rational principle. But let us not consider the question on one side only, there are dangers to be contemplated on the other. Vest this power in the senate jointly with the president, and you abolish at once that great principle of unity and responsibility in the executive department, which was intended for the security of liberty and the public good. If the president should possess alone the power of removal from office, those who are employed in the execution of the law will be in their proper situation, and the chain of dependence be preserved; the lowest officers, the middle grade, and the highest, will depend, as they ought, on the president, and the president on the community. The chain of dependence therefore terminates in the supreme body, namely, in the people; who will possess besides, in aid of their original power, the decisive engine of impeachment. Take the other supposition, that the power should be vested in the senate, on the principle that the power to displace is necessarily connected with the power to appoint. It is declared by the constitution, that we may by law vest the appointment of inferior officers, in the heads of departments, the power of removal being incidental, as stated by some gentlemen. Where does this terminate? If you begin with the subordinate officers, they are dependent on their superior, he on the next superior, and he on whom? on the senate, a permanent body; a body, by its particular mode of election, in reality existing for ever; a body possessing that proportion of aristocratic power which the constitution no doubt thought wise to be established in the system, but which some have strongly excepted against: And let me ask gentlemen, is there equal security in this case as in the other? Shall we trust the senate, responsible to individual legislatures, rather than the person who is responsible to the whole community? It is true the senate do not hold their offices for life, like aristocracies recorded in the historic page; yet the fact is they will not possess that responsibility for the exercise of executive powers which would render it safe for us to vest such powers in them. But what an aspect will this give to the executive? Instead of keeping the departments of government distinct, you make an executive out of one branch of the legislature; you make the executive a two-headed monster, to use the expression of the gentleman from New-Hampshire (Mr. Livermore); you destroy the great principle of responsibility, and perhaps have the creature divided in its will, defeating the very purposes for which an unity in the executive was instituted. These objections do not lie against such an arrangement as the bill establishes. I conceive that the president is sufficiently accountable to the community; and if this power is vested in him, it will be vested where its nature requires it should be vested; if any thing in its nature is executive it must be that power which is employed in superintending and seeing that the laws are faithfully executed; the laws cannot be executed but by officers appointed for that purpose; therefore those who are over such officers naturally possess the executive power. If any other doctrine be admitted, what is the consequence? You may set the senate at the head of the executive department, or you may require that the officers hold their places during the pleasure of this branch of the legislature, if you cannot go so far as to say we shall appoint them; and by this means you link together two branches of the government which the preservation of liberty requires to be constantly separated.
Another species of argument has been urged against this clause. It is said, that it is improper, or at least unnecessary to come to any decision on this subject. It has been said by one gentleman, that it would be officious in this branch of the legislature to expound the constitution, so far as it relates to the division of power between the president and senate; it is incontrovertably of as much importance to this branch of the government as to any other, that the constitution should be preserved entire. It is our duty, so far as it depends upon us, to take care that the powers of the constitution be preserved entire to every department of government; the breach of the constitution in one point, will facilitate the breach in another; a breach in this point may destroy that equilibrium by which the house retains its consequence and share of power; therefore we are not chargeable with an officious interference; besides, the bill, before it can have effect, must be submitted to both those branches who are particularly interested in it; the senate may negative, or the president may object if he thinks it unconstitutional.
But the great objection drawn from the source to which the last arguments would lead us is, that the legislature itself has no right to expound the constitution; that whereever its meaning is doubtful, you must leave it to take its course, until the judiciary is called upon to declare its meaning. I acknowledge, in the ordinary course of government, that the exposition of the laws and constitution devolves upon the judicial. But, I beg to know, upon what principle it can be contended, that any one department draws from the constitution greater powers than another, in marking out the limits of the powers of the several departments. The constitution is the charter of the people to the government; it specifies certain great powers as absolutely granted, and marks out the departments to exercise them. If the constitutional boundary of either be brought into question, I do not see that any one of these independent departments has more right than another to declare their sentiments on that point.
Perhaps this is an omitted case. There is not one government on the face of the earth, so far as I recollect, there is not one in the United States, in which provision is made for a particular authority to determine the limits of the constitutional division of power between the branches of the government. In all systems there are points which must be adjusted by the departments themselves, to which no one of them is competent. If it cannot be determined in this way, there is no resource left but the will of the community, to be collected in some mode to be provided by the constitution, or one dictated by the necessity of the case. It is therefore a fair question, whether this great point may not as well be decided, at least by the whole legislature, as by a part, by us as well as by the executive or judicial? As I think it will be equally constitutional, I cannot imagine it will be less safe, that the exposition should issue from the legislative authority than any other; and the more so, because it involves in the decision the opinions of both those departments whose powers are supposed to be affected by it. Beside, I do not see in what way this question could come before the judges, to obtain a fair and solemn decision; but even if it were the case that it could, I should suppose, at least while the government is not led by passion, disturbed by faction, or deceived by any discoloured medium of light but while there is a desire in all to see, and be guided by the benignant ray of truth, that the decision may be made with the most advantage by the legislature itself.
My conclusion from these reflections is, that it will be constitutional to retain the clause; that it expresses the meaning of the constitution as must be established by fair construction, and a construction which, upon the whole, not only consists with liberty, but is more favorable to it than any one of the interpretations that have been proposed.
I am clearly of opinion with the gentleman last up, that it is of importance to decide this question on its true principles; and am free to declare, that I shall be as ready to oppose every innovation or encroachment upon the rights of the executive as upon those of the legislative. I conceive myself bound to do this, not only by oath, but by an obligation equally strong, I mean the obligation of honor.
I wish, sir, to consider this question so far as to ascertain, whether it is or is not unconstitutional. I have listened with attention to the arguments which have been urged on both sides; and it does appear to me that the clause is as inconsistent with the constitution as any set of words which could possibly be inserted in the bill.
There are two questions relative to this clause: The first, whether the sovereignty of the union has delegated to the government the power of removal? And the second, to whom? That they have delegated such power has been clearly proved by the gentlemen who advocate the clause; who justly say, if the power is not delegated, the clause in the constitution, declaring the appointment of judges to be during good behaviour would be nugatory, unless some branch of government could otherwise have removed them from office. As to the second question it depends upon the first; if the power is delegated it must vest in some part of the government. The gentlemen will agree, that this house has not the power of removal; they will also agree, that it does not vest in the judicial; then it must vest in the president, or the president, by and with the advice and consent of the senate; in either of these cases the clause is altogether useless and nugatory. It is useless if the power vests in the president; because, when the question comes before him, he will decide upon the provision made in the constitution, and not on what is contained in this clause: If the power vests in the president and senate, the senate will not consent to pass the bill with this clause in it; therefore the attempt is nugatory; but if the senate will assent to the exercise of the power of removal by the president alone, whenever he think proper to use it so, then in that case the clause is, as I said before, both useless and nugatory.
The second question which I proposed to examine, is to whom the power of removal is committed. The gentlemen in favor of this clause, have not shewn that, if the construction that the power vests in the president and senate is admitted, it will be an improper construction. I call on gentlemen to point out the impropriety, if they discover any. To me it appears to preserve the unity of the several clauses of the constitution; while their construction produces a clashing of powers, and renders of none effect some powers the senate by express grants possess. What becomes of their power of appointing, when the president can remove at discretion? Their power of judging is rendered vain by the president's dismission; for the power of judging implies the power of dismissing, which will be totally insignificant in its operation if the president can immediately dismiss an officer whom they have judged and declared innocent.
It is said that the president will be subject to an impeachment for dismissing a good man. This in my mind involves an absurdity. How can the house impeach the president for doing an act which the legislature has submitted to his discretion?
But what consequence may result from giving the president the absolute control over all officers? Among the rest, I presume he is to have an unlimited control over the officers of the treasury. I think if this is the case, you may as well give him at once the appropriation of the revenue; for of what use is it to make laws on this head, when the president by looking at the officer can make it his interest to break them? We may expect to see institutions arising under the control of the revenue, and not of the law.
Little then will it answer to say we can impeach the president, when he can easily cover all his crimes by an application of the revenue to those who are to try him. This application would certainly be made in case of a corrupt president. And it is against corruption in him that we must endeavour to guard; not that we fear any thing from the virtuous character who now fills the executive chair; he is perhaps to be safer trusted with such a power than any man on earth; but it is to secure us against those who may hereafter obtrude themselves into power.
But if we give the president the power to remove (though I contend if the constitution has not given it him there is no power on earth that can except the people by an alteration of the constitution, though I will suppose it for argument sake); you virtually give him a considerable power over the appointment, independent of the senate; for if the senate should reject his first nomination, which will probably be his favorite, he must continue to nominate until the senate concur; then immediately after the recess of the senate, he may remove the officer, and introduce his own creature, as he has this power expressly by the constitution. The influence created by this circumstance, would prevent his removal from an office which he held by a temporary appointment from his patron.
This has been supposed by some gentlemen to be an omitted case, and that congress have the power of supplying the defect. Let gentlemen consider the ground on which they tread. If it is an omitted case, an attempt in the legislature to supply the defect will be in fact an attempt to amend the constitution: But this can only be done in the way pointed out by the fifth article of that instrument, and an attempt to amend it in any other way may be a high crime or misdemeanor, or perhaps something worse. From this view of our situation, gentlemen may perhaps be lead to consent to strike out the clause.
In Great-Britain, there are three estates, kings, lords and commons; neither of these can be represented by the other; but they conjointly can form constructions upon the rights of the people which have been obtained sword in hand from the crown. These, with the legislative acts, form the British constitution; and if there is an omitted case, parliament has a right to make provision for it. But this is not the case in America, consisting of a single estate: The people have expressly granted certain powers to congress, and they alone had the right to form the constitution; in doing so they directed a particular mode of making amendments which we are not at liberty to depart from.
The system, it cannot be denied, is in many parts obscure; if congress are to explain and declare what it shall be, they certainly will have it in their power to make it what they please. It has been a strong objection to the constitution, that it was remarkably obscure; nay, some have gone so far as to assert, that it was studiously obscure, that it might be applied to every purpose by congress. By this very act the house are assuming a power to alter the constitution. The people of America can never be safe, if congress have a right to exercise the power of giving constructions to the constitution different from the original instrument: Such a power would render the most important clause in the constitution nugatory, and one without which, I will be bold to say, this system of government would never have been ratified. If the people were to find, that congress meant to alter it in this way, they would revolt at the idea; it would be repugnant to the principles of the revolution, and to the feelings of every freeman in the United States.
It is said, that the power to advise the president in appointing officers is an exception to a general rule; to what general rule? That the president, being an executive officer, has the right of appointing. From whence is this general rule drawn? Not from the constitution nor from custom, because the state governments are generally against it. Before the gentleman had reasoned from this general rule, he ought to have demonstrated that it was one; he ought to have shewn that the president, ex officio, had the power to appoint and remove from office; that it was necessarily vested in the executive branch of the government.
It is said to be the duty of the president to see the laws faithfully executed, and he could not discharge this trust without the power of removal. I ask the gentleman, if the power of suspension, which we are willing to give, is not sufficient for that purpose? In case the senate should not be sitting, the officer could be suspended, and at their next session the causes which require his removal might be enquired into.
It is said to be incumbent on us to keep the departments distinct. I agree to this; but then, I ask, what department is the senate of, when it exercises its power of appointment or removal? If legislative, it shows that the power of appointment is not an executive power; but if it exercises the power as an executive branch of government, there is no mixing of the departments; and therefore the gentleman's objections fall to the ground.
The dangers which lie against investing this power jointly in the senate and president have been pointed out; but I think them more than counter-balanced by the dangers arising from investing it in the president alone. It was said, that the community would take part with the injured officer against the president, and prevent his re-election. I admit that the injured officer may be a man of influence and talents, yet it is fifty to one against him, when he is opposed by such a powerful antagonist. It is said, that if the senate should have this power, the government would contain a two headed monster; but it appears to me, that if it consists in blending the power of making treaties and appointing officers, as executive powers, with their legislative powers, the senate is already a two-headed monster. If it is a two-headed monster, let us preserve it a consistent one; for surely it will be a very inconsistent monster, while it has the power of appointing, if you deprive it of the power of removing. It was said, that the judges could not have the power of deciding on this subject because the constitution was silent; but I ask, if the judges are ex officio, judges of the law? and whether they would not be bound to declare the law a nullity, if this clause is continued in it, and is inconsistent with the constitution? There is a clause in this system of government that makes it their duty, I allude to that which authorises the president to obtain the opinions of the heads of departments in writing; so the president and senate may require the opinion of the judges respecting this power if they have any doubts concerning it.
View the matter in any point of light, and it is utterly impossible to admit this clause, it is both useless and unnecessary, it is inconsistent with the constitution, and is an officious interference of the house in a business which does not properly come before them. We expose ourselves to most dangerous innovations by future legislatures, which may finally overturn the constitution itself.
The question has been stated as respecting a construction of the constitution; and it has been asked, how this meaning is to be determined? I suppose a legislative construction is to be admitted, as I conceive there must be given, generally, to the government the power of removal at pleasure; because it cannot be rationally intended that all offices should be held during good behaviour, because the constitution has declared one office to be held by this tenure. If then the constitution intends that all other offices shall be held during will and pleasure, the question will be, during whose? If we declare in the bill that the offices shall be removable by the president, it has the appearance of conferring the power upon him. Now, I think this improper; because it would be admitting the house to be possessed of an authority which would destroy those checks and balances which are cautiously introduced into the constitution, to prevent an amalgamation of the legislative and executive powers. For this reason I shall take the liberty of submitting an alteration, or change in the manner of expression, that so the law may be nothing more than a declaration of our sentiments upon the meaning of a constitutional grant of power to the president. Can the gentleman be serious who tells us, that this is a case to be proposed as an amendment to the constitution? does he suppose whenever a doubt arises in this house (and it will be a doubt if an individual doubts) with respect to the meaning of any part of the constitution, we must take that mode? or does he really suppose that we are never to take any part of the constitution by construction? This I conceive to be altogether inadmissable; for it is not in the compass of human wisdom to frame a system of government so minutely but that a construction will in some case be necessary. This is such a case; and we ought most assuredly to declare our sentiments on the occasion.
I will not repeat what has been said to prove that the true construction is, that the president alone has the power of removal; but will state a case to shew the embarrassment which must arise by a combination of the senatorial and legislative authority in this particular. I will instance the officer to which the bill relates. To him will necessarily be committed negociations with the ministers of foreign courts. This is a very delicate trust. The supreme executive officer, in superintending this department, may be entangled with suspicions of a very delicate nature, relative to the transactions of the officer; and such as from circumstances would be injurious to name; indeed he may be so situated that he will not, cannot give the evidence of his suspicion. Now, thus circumstanced, suppose he should propose to the senate to remove the secretary of foreign affairs, are we to expect the senate will, without any reason being assigned, implicitly submit to his proposition? They will not. Suppose he should say he suspected the man's fidelity, they would say we must proceed farther, and know the reasons for this suspicion; they would insist on a full communication. Is it to be supposed that this man will not have a single friend in the senate who will contend for a fair trial and full hearing? The president then becomes the plaintiff, and the secretary the defendant. The senate are sitting in judgment between the chief magistrate of the United States, and a subordinate officer. Now, I submit to the candor of the gentlemen, whether this looks like good government? yet in every instance when the president thinks proper to have an officer removed, this absurd scene must be displayed. How much better, even on principles of expediency, will it be that the president alone have the power of removal.
It has been warmly contended, that the power of removal is incidental to the power of appointment. It may be true in general; but, upon examination, we shall find there is a distinction in this case from what the general principle supposes. If the president and senate are to be considered as one body, deliberating together on the business of appointments, every individual of which participates equal powers, the reasoning that has been urged will hold good. But I take it for granted, that they are two distinct bodies, and can only give a simple affirmative or negative: No member of the senate has power to offer an original proposition. In short, the moment we depart from this simple idea, that the provision in the constitution is intended for any other purpose, but to prevent the president from introducing improper persons into office, we shall find it difficult to form any certain principle upon which they ought to act; and our opinions and deliberations will be discordant and distracted.
Gentlemen ask, will not the power of suspending an officer be sufficient to prevent mal-conduct? Here is some inconsistency in their arguments. They declare, that congress have no right to construe the constitution in favor of the president, with respect to removal; yet they propose to give a construction in favor of the power of suspension being exercised by him. Surely gentlemen do not pretend, that the president has the power of suspension granted expressly by the constitution; if they do, they have been more successful in their researches into that instrument than I have been. If they are willing to allow a power of suspending, it must be because they construe some part of the constitution in favor of such a grant: The construction in this case must be equally unwarrantable. But admitting it proper to grant this power, what then? When an officer is suspended, does the place become vacant? may the president proceed to fill it up? or must the public business be likewise suspended? When we say an officer is suspended, it implies that the place is not vacant; but the parties may be heard, and after the officer is freed from the objections that have been taken to his conduct, he may proceed to execute the duties attached to him. What would be the consequence of this? If the senate, upon its meeting, was to acquit the officer, and replace him in his station, the president would then have a man forced on him whom he considered as unfaithful; and could not, consistent with his duty, and a proper regard to the general welfare, go so far as to entrust him with full communications, relative to the business of his department. Without a confidence in the executive department, its operations would be subject to perpetual discord, and the administration of the government become impracticable.
But, suppose the senate to be joined with the president in the exercise of the power of removal, what mode will they proceed in? Shall the president always propose the removal, or shall the senate undertake this part of the business? If so, how are they to act? There is no part of the constitution which obliges the president to meet them, to state his reasons for any measure he may recommend: Are they to wait upon the president? In short, it appears to me, that introducing this clashing of the powers, which the constitution has given to the executive, will be destructive of the great end of government. So far will restraining the powers of that department be from producing security to the liberties of the people, that they would inevitably be swallowed up by an aristocratic body.
The amendment which I propose will be to this effect; (it will have to come in some other part of the bill) that, "whenever the said officer shall be removed by the president," and strike out the words "to be removable by the president."
The gentlemen by their arguments in favor of the clause in the bill, shew us what ought to be, rather than what is, in the constitution; but I do not think this the ground on which this question should be contended. I think, if the power is not found in the constitution, we ought not to grant it.
I am sorry to take up the time of the committee at this late hour of the day; but I cannot deny myself the privilege of replying to some of the arguments which have been urged in opposition to those I have advanced. I mean to do this in as summary a manner as I possibly can. It has been inferred from the clause in the constitution, declaring the judges to hold their offices during good behaviour, that there are no other officers who hold their offices by this tenure. Now, I apprehend, that this clause was inserted to distinguish them from other officers who hold their offices during a limited period: For example, the house of representatives for two years, the senate for six, the president and vice-president for four; and, in order to prevent the legislature from declaring that they should be elected during a limited period. It was seen to be proper to have them independent; and that could only be secured by such a declaration in the constitution; it would be improper that they should depend on this house for the degree of permanency which is essential to secure the integrity of judges. With respect to the other offices to be established by law, there is nothing to prevent us from limiting their appointment to two or three years. Let us then limit the duration of the secretary of foreign affairs, for as short a period as is thought to be salutary. Here we are not restricted. But I conceive as the constitution now stands, they cannot be removed in any other way but by impeachment.
Another gentleman in his arguments has declared as his opinion, that in fact the president has the power of appointment; and infers from that, upon the general principle that those who appoint may remove, that the president has the power of removal also. But it appears extraordinary, that the gentlemen who have urged the great security arising from an appointment from the president and senate, should now contend that the president alone has that power; if this is true, where is that boasted security?
It has been said also, that the same reason which applies against giving this power to the president, applies against vesting it in the senate; but I do not think they apply with equal force. On this point I need only refer gentlemen to the authority I quoted before. Publius shews clearly the superior advantage of having the president and senate combined in the exercise of this power.
It is contended that the legislature have the power of supplying the defect, if this is an omitted case. I cannot be of that opinion. But it is necessary to extend this argument, after what has been urged by the gentleman from Massachusetts (Mr. Gerry). If the legislature can supply defects, they may virtually repeal the constitution.
Gentlemen say we ought not to suppose such an abuse of power in the president. But the constitution wisely guards against his caprice in the appointment; and why should we abate the security in cases of removal? The constitution contemplates infirmity in the chief magistrate; makes him removable by impeachment; and provides the vice-president to exercise the office, upon such a contingency taking place. But it is supposed that the president may be impeached for an abuse of this power. How can that event take place? He will tell you he thought it incumbent on him to displace the officer, because he apprehended the publick tranquility was in danger; and if he erred, it was the error of the head, not of the heart. And will any house of representatives ever be found to impeach the chief magistrate of the United States for an error in opinion?
It was observed that it would be inconvenient, as the senate were not always in session. The same objection lies against associating the senate with the president in making treaties. If this is an inconvenience, it is imposed upon us by the constitution, and must be submitted to. If he finds the advice of the senate necessary in either case, he must convene them to obtain their assistance; they are neither of them likely to happen frequently; the inferior officers may be regulated by law, leaving the heads of departments only subject to the operation of this power.
The gentleman from Connecticut (Mr. Sherman) seemed to think this officer might be considered as an inferior officer, and therefore subject to legislative directions respecting his appointment and removal; because the president is the executive head of the department, and this officer is only to aid the president. Some gentlemen have spoken of a two-headed monster in the government; but I think in this view we shall find the executive a three-headed monster, a real cerberus. The resolution upon which this bill is founded comprised three heads of departments; if these are appendages to the executive, what kind of a monster do you form? and yet your constitution admits these officers to be heads of departments.
It has been said, that the legislature may give their opinion on the constitution. I agree with gentlemen if they mean that as an individual, we may give our single opinion; but I never can admit it to be right in our legislative capacity to influence the judges, and throw our weight in either scale to warp their decision. I think it highly criminal to attempt to bias their judgment in any way.
It was said, that there was more danger in continuing a bad man in office than in displacing a good one; and that the constitution seemed to suppose this, by giving the house of representatives the power of removal. I grant there is more danger in one case than in the other; but I am afraid the president will have it in his power to continue a bad man in office; and this part of the argument I believe has not yet been touched upon; I shall however be concise in my observations. It is declared in the constitution, that judgments, in cases of impeachment, may extend to removal from office, and disqualification to hold and enjoy any office of honor, trust, or profit under the United States. Suppose it in contemplation to remove some creature of the president's by means of impeachment, in order to dismiss him from all his employments, and to prevent his ever thereafter disseminating poison through the councils of his country; if the impeachment is permitted to succeed, the poison is removed, and the nation rid of him. But suppose the president snatches him from his fate, by interposing his authority, saying, you complain of the man, I will save you the trouble of proceeding by that circuitous route of impeachment, I will remove without such delay. By this collusion the wretch's fame is in some measure preserved; and when the president has waited till the storm of obloquy has ceased to blow, and the public mind has returned to a tranquil state, he obtrudes the man again into office, when, in fact, he ought ever to be disqualified from participating in any thing honorable or profitable which the government has to bestow. Thus then may be accomplished the evil which is most to be dreaded, and which the honorable gentleman from Virginia (Mr. Madison) says the constitution meant to guard against, by giving the house of representatives the power of trying impeachments.
An honorable gentleman has said, he did not see how this case could be brought before a court of justice in order to obtain their decision. That gentleman is no stranger to a just and venerable law maxim, Wherever a man has a right he has a remedy; if he suffers a wrong he can have a redress; he would be entitled to damages for being deprived of his property in his office.
One of the greatest arguments brought forward on this occasion is, that this authority is implied in the grant of executive authority which is made in the constitution---the executive power shall be vested in the president. This I apprehend proves too much, and therefore proves nothing; because it implies that powers which are expressly given by the constitution, would have been in the president without the express grant. I ask the gentleman, if the constitution had been silent with respect to his exercising the power of granting reprieves and pardons, whether the president would have that authority? I apprehend it is in some degree an executive power. It is exercised by some of the executives even in the United States; but there have been great doubts about the exercise of it in others. It has been said in some of them, that as this constitution did not give it, the governor has no right to it; and this they prove by the constitutions of other states, in which an express grant is made. For instance, the constitution of Massachusetts declares that the Governor shall have the power to grant reprieves, & c. but if it had not been given him, he would not have had it. If the convention who framed the constitution meant that he should have the power of removal, the propriety of inserting it must have occurred to them, where it is said he should have power to see the laws faithfully executed, and he should commission all officers; there are other places in which it would well come in. As it must have occurred to them, and they have omitted it, I take it for granted they never intended to give it to him.
I apprehend, if he saw an officer misbehaving he would transmit the necessary information to us, and leave us to determine, whether the person should be impeached or not; and the business could in my judgment be satisfactorily accomplished in this way. From all these reasons, there will be no doubt but the constitution does not give the power; that the legislature ought not to supply its defects; and that even if it were a matter of doubt, we ought by no means to interfere in adjusting or determining it. Therefore, in whatever point of view you consider it, the clause ought not to stand as part of the bill.
I am extremely solicitous, Mr. chairman, that this clause should stand as part of the bill; and therefore must beg to add a few words more in its support. I take this power to be necessary, sir, to the execution of your government. In vain do we contemplate the wisdom of a legislative branch, in vain do we expect the energy of the executive arm, and in vain will be the integrity and independence of the judiciary, if one department after another is to be stripped of its budding powers. The branches will not expand their umbrageous and salutary verdure to shelter our sons from the tempest of calamity, nor delight them with the fair fruits of good government, for which they are in anxious expectation. I have listened, sir, with some degree of avidity to the arguments offered on this subject. I find the point of expediency and responsibility is acceded to, and the question now turns upon the constitutionality of the measure. Here, sir, I agree with gentlemen, it does turn on the construction of the constitution; and to my mind the construction which we give is irresistibly true. Does the constitution say such a construction shall be given? I ask gentlemen, does the constitution, does reason, does experience, does any one principle upon which good government depends, deny our construction? I believe not one of them.
What kind of a monster this will be I do not pretend to say; whether it will have two heads, three heads, or four heads as gentlemen contended; but I will be bold to say it is a monster of a peculiar enormity; for gentlemen are putting the heads where the tails should be, or rather making it without any head at all. If we do not permit the president to exercise this power, surely this will be the most unreasonable thing in nature.
The argument of convenience is strong in favor of the president; for this man is an arm or an eye to him, he sees and writes his secret dispatches; he is an instrument over which the president ought to have a complete command. I hope gentlemen, who request us not to be dazzled with the splendor of the president, will not themselves be misled by the brightness of senatorial dignity, and suffer officers to skulk out of the president's enfeebled reach within the effulgence of their lustre, which is most likely to lay the foundation of universal empire over the liberties of the people. If the president removes a valuable officer, which seems to be the great danger the gentleman from South-Carolina (Mr. Smith
) apprehends, it would be an act of tyranny which the good sense of the nation would never forget; but if the senate turns out a good man, they might be re-elected by the state legislatures. But the senate may remove a good officer without feeling any injury; they are not feelingly sensible of the advantages arising from his labours, because they do not act in concert with him, while the president, by such a removal, deprives himself of a valuable and necessary aid. When a good officer is obtained, the president has every motive of justice, self-interest, and public good to retain him in his situation. None of these motives operate, or but faintly operate, upon the senate.
Does the constitution any where say the president shall not have the power? It does not. But the principles of the constitution declare, that the legislative and executive departments shall be kept distinct. An express declaration of this kind is sought for as an amendment to the constitution; and would gentlemen be so weak as to confound them in the first operation of government?
It has been asked, if the same properties are not requisite in removing a man from office as to appoint him? I apprehend a difference in the degree of information necessary. A man's ability may be known to many persons, they may entertain even a good opinion of his integrity; but no man, without a superintending power, can bring this fidelity to the test. The president will have every opportunity to discover the real talents and honesty of the officer, the senate will have none but from common fame: How then are their properties equal.
The departments of foreign affairs and war are peculiarly within the powers of the president, and he must be responsible for them; but take away his comptrolling power, and upon what principle do you require his responsibility.
The gentlemen say the president may suspend. They were asked if the constitution gave him this power any more than it gave him the power of removing. Do they contend the one to be a more inherent power than the other? If they do not, why shall it be objected to us that we are making a legislative construction of the constitution, when they are contending for the same thing?
I look upon it as begging the question, to say the power that appoints, must likewise remove. The position ought to be proved. For my part I think where the responsibility is, and where the power of overseeing and comptrolling resides, that there also must be the power of removal.
If the constitution does not prohibit the exercise of this power, I conceive it to be granted either as incidental to the executive department, or under that clause which gives to congress all powers necessary and proper to carry the constitution into effect. This being the case we are at liberty to construe, from the principles and expressions of the constitution, where this power resides. This, I trust, is what we are about to do; and after the full discussion which the subject has had, I flatter myself we shall do it with a degree of unanimity, which I most ardently wish.
On motion, the committee now rose, and the speaker resumed the chair.
[Text omitted. -Ed.]*
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 16 January 2018]