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

The Daily Advertiser

Mr. PAGE followed Mr. White with a short speech, the principal object of which was to prove that giving additional powers to the President would not confirm, but diminish his responsibility. Increasing the dependence of all the great officers, he said, would secure him against impeachments, and as it would take away the check which the establishment of these departments was intended, and defeat the advantages which they alone would be under to furnish the ground and evidences for impeachment.
Mr. SEDGWICK hoped that the extreme importance of this subject would entitle him to further indulgence. It was not however, he said, his intention to travel over the vast field, which had been opened to him. He would confine himself to a few points. It has been contended that this was a question of constitutional determination; and that the legislature had no right to interpose. It had been urged on one side that the power of removal was incident to the power, and necessarily consequential upon it. He apprehended that this rule was by no means well founded, and that if it had been thought proper, the constitution might have provided that one power should appoint, and another remove. It had been well laid down by a gentleman from Virginia, that whenever a general authority was delegated to a branch of the government, every subordinate power was comprehended. The constitution had given the legislature a power to establish offices, and it appeared to him, had thereby given them a power to determine the whole organization of those offices, on what tenure they should be held, and under whose controul they should be. It had not been conceded on one side, though affirmed on the other, that there was any clause in the constitution which vested the power in the senate. The words in the constitution were, that the President should NOMINATE and APPOINT. These words were clear. The power of making treaties, with the advice of the senate, was given to the President. It could not from this be inferred that the senate had any power to MAKE the treaty. The President had also a certain qualified influence in the passing of laws, but could it be pretended that he was a part of the legislature, or that he in fact made the law? If there was any conclusion to be drawn from the gentleman's argument, it was in favor of the clause; for strictly, he had the power to nominate and appoint; the senate were only his council— he should therefore have the power to remove.
Mr. Sedgwick reasoned from the nature of the business committed to the several departments, and from the peculiar connection and privity between them and the President, that they must be his meer instruments, his agents and substitutes. If the business of the executive could be personally performed by him, there would be no need of such establishments. It was only for his convenience, and to supply a defect in the nature of human capacity, that they were appointed. It appeared to him incongruous and absurd that an officer chosen simply to execute the will of the President, and to conform implicitly to his directions, should not be removeable by him, when he became incapable either by infirmity or crimes to execute it; when the President was the only competent judge of this execution, and alone responsible for it.
He continued a series of observations, designed principally to enforce the reasoning of Mr. Benson and others, respecting the inconveniency and indelicacy of adducing evidence, and explaining reasons to the senate, which in the President's own mind would be proper occasions for removal; such as ignorance, incapacity, touted enmity to the President himself, a disposition to oppose him, and embarrass his measures.
He dwelt upon the idea of the total want of responsibility in the Senate, arising from their being no constitutional remedy against them, and from the impossibility of fixing the public censure, among the members of an aggregate body.
Some gentlemen, he said, had contended that the judiciary were the proper persons to decide this question. If an officer was to complain of improper removal, what mode could they adopt. Would they issue a mandamus? To whom should it be directed? To the President, to the President and Senate, the legislature, or the people? Could the President be compelled to answer as President, in a civil suit? This point was indeed involved in doubt and difficulty. An appeal to the judiciary, seemed to be too foreign and strange a remedy to excite the serious attention of the committee.
Mr. LEE in reply to Mr. White, animadverted upon his remark, that the government would be a despotism, if it possessed all legislative and executive powers incident to legislation and administration, except those particularly withheld in the constitution. The gentleman, he said, had advised the committee to take care and not injure the constitution. He hoped indeed that both the letter and spirit of it would be adhered to. His remarks, he said, were addressed to the passions of the committee. North-Carolina would not join the union, and the revolt of Kentucke was predicted. Such menaces were improper. He was confident the committee would not be actuated by passion or fear.
Mr. Lee argued from the clause in the constitution, which gives a power to Congress to pass all laws necessary to carry the constitution into effect. It was impossible the constitution could be executed without these establishments, it was a question, therefore, which came necessarily and constitutionally before the legislature, and they had a right to make every arrangement proper to facilitate the business of every department.
He then dilated upon the argument of Mr. Madison, respecting the grand principle of the division of power in the government; and enforced them by the examples of the several states, and the general sense of the people.
Mr. BOUDINOT opposed the principle that the legislature had no right to modify the powers given by the constitution. He said he would ever act as cautiously as any man, respecting constructions upon the principles of the system, and would never resort to them, while the government could possibly be carried on by the strict letter. He hoped that the members of this house would never be afraid to carry the constitution into full effect, and to execute the powers delegated to them. It was their duty to consult the best good of their constituents, and not to be influenced by the measures of North Carolina or Kentuckey, who were not represented.
He contended, that in the legislature, and in them alone was vested the right of modifying and explaining the powers of the constitution, when there were any doubts respecting the organization of the government. That this would be no encroachment on the executive.
He did not consider it as an omitted case as some gentlemen had. The constitution had fully provided for it in that clause which gave the President the power of appointment. He admitted the principle, that the person who appoints shall remove. This was the President. The senate, to be sure, had an advisory and concurring power; but after their consent was obtained, whose was the appointment? Certainly the President's. This was the natural construction of the constitution.
Mr. Boudinot then proceeded to the enquiry whether this construction was consistent with the duty of the officer created in the proposed bill, whether it was agreeable to the general authority vested in the President, and for the benefit of the citizens of the United States. In this enquiry, he repeated and enforced the ideas which had been thrown out on these several topics in favor of the clause.
He took notice of the arguments which had been used, that there was a remedy for the inconveniencies attending the vesting the power in the Senate, by allowing the President to suspend. This, he said, was entirely inconsistent with the whole course of their reasoning. If the constitution had not given him the power of removal, who, he asked, had given him the power of suspension? Did it not equally militate against the constitution? Every constitutional objection, he said, which had been advanced against the former might be extended to the latter.
Mr. JACKSON said the subject was worn threadbare. The bill, to be sure, he said, had been ingeniously handled; it had also ingeniously been brought forward; for the committee had taken care to bring in the present bill previous to the bill for organizing the treasury, that the principle might be established, before the more delicate business came under their view.
It had been contended, he said, that the President was himself the head of all the executive departments; but the constitution did not view it in this light. The constitution had authorised the President to receive advice, and require the opinion in writing of the heads of departments. How then could they be meerly his instruments to conform implicitly to his will? for thus the provision would be useless and nugatory. They were therefore in every sense, the heads of their own departments.
With respect to constructions, he differed much from the gentlemen. He saw a very great difference between organizing and modifying a department; and modifying the principles of the constitution. It might by this means be construed away to nothing, or extended to every thing. He also differed from gentlemen in another principle. He considered the senate as a part of the executive, and the President a part of the legislative. He appealed to the work called the FEDERALIST, as a confirmation of this.
Gentlemen had come forward, and said, that a power of this kind would prevent a misapplication of the public money; and that to make the officer completely controulable by the President would be the best security for his fidelity. But the vigilance of the house of representatives, and the power of impeachment and punishment, he said, would be a much better security. Whereas if the President had the power, he would have the liberties of his fellow citizens in his hands, and if the officers were virtuous, and opposed his bad measures, he might away with them and what then would become of the treasury. He would have no body in that department who would dare to oppose him. Then, having the treasury and army at his command, we might bid farewell to liberty forever. He repeated, if the entire controul over the department should be given to the President, and he should get the strong box in his hand, where was the liberty of this country? There were but two things necessary, he said, to make a man despotic; the purse and the sword. Give him these, and liberty was at an end.
Gentlemen had contended that the power in the hands of the senate would be equally dangerous, but he asked where was the most danger from power, in the hands of one or many? The senate were a body continually changing, returning to the mass of the people— Would not the state legislatures be a continual check to them? If the President should get the purse, with the power over the army and navy, what would he not be able to do? The tide of liberty would set downward, its friends would not be able to stem the torrent, with the command of the public chest, he would always be able to secure his election perpetual, and make what strides he pleased. Let us, said he, at this very moment look round, and see what progress we are making toward corruption— We already hear the sounding superlatives of his highness, most honorable & c. which ten years since would have strung a man as high as Haman's gallows,[1] these titles have been blazoned in the newspapers of Boston, that town, in which fifteen years ago, they knew no lord but the Lord of Hosts.
Sir, before I call again for the question, (although I confess I have been long since ready for it) I beg leave to say a few words. I shall not be tedious.
I have listened to the arguments in support of this motion these three days, with great attention, and think when taken together they amount just to the raising of a number of frightful pictures, which at first sight appears very terrific indeed, but when closely examined prove to be the harmless progeny of frighted fancy. Let us now examine one or two of these pictures as a sample of the whole groupe, that we may judge whether there is such danger in adopting the measures proposed in the bill, and such safety in the opposite course as is pretended.
Sir, one of those pictures represents to us, our President grasping the money-chest, after having arbitrarily removed from office that officer whose duty it is to guard the treasury, and effectually to prevent its violation; then Sir, in the back ground, we see the President, the army, the navy and the money chest, engaging against the liberties of America, and reducing us all to abject slavery; so sudden is the alarm, so violent the clash of arms, so terrible the onset, that we are hardly allowed time to say, Farewell Liberty, and all this in consequence of the power of removing the officer of the treasury.
Sir, I confess if we can place this officer at the head of the treasury, in an independent situation, and he be a very vigilant and faithful officer, he may prevent the President's stealing our money, or if he does steal it, he will charge him with it, and then you know, Sir, we can impeach him, and punish him and all this, Sir, by the assistance of the independence of this officer.
But, Sir, the fact is, that our money may be in the treasury by millions, and without special appropriations by the legislature, the President and this officer, both together cannot touch a farthing of it, unless they steal it. This being the case, Sir, I see as little safety to the treasury, arising from the independence of this officer, as danger to it from his dependence.
But the President may come with his army at his back, and lay hold of the money-chest. In this case I see but little good to be expected from the officer's independence, if he stands in the President's way, I think he will be very apt to take him and the money too.
From this view of the matter, it appears that gentlemen have been arguing from premises that do not exist, in order that we may draw strong conclusions from them. They have been drawing pictures on a hard wall, to batter them down with their knuckles.
Another of those frightful pictures is raised out of a comparison of the relationship between the President and the people, with that between the Senate and the people, and here we have ran deep into the science of calculating kindred, and it seems to be concluded by the supporters of this motion, that the senate is much nearer a kin to the people than the President— therefore this stranger, the President, must not be entrusted with the removal of officers; but our near kinsmen the senate.
For the fact is, that the President, above all the officers of government, both from the manner of his appointment, and the duties of his office, may justly and truly be denominated THE MAN OF THE PEOPLE, whereas the senate are the mere representatives of the sovereignties of the several states composing the Union, which sovereignties are the only effectual bar that can ever be raised against the just execution of the federal government, and perhaps a very efficient check to keep the federal government within proper constitutional bounds, and which representatives have (officially) little or nothing to do with the people or their interests.
Hence it appears that altho' this picture is not quite so ludicrous as the other, it is equally an airy phantom, and so of the rest. Sir I have really felt amazed how these kind of arguments ever found their way into the minds of wise and enlightened men.[2]
The Printer's attendance at the House of Representatives obliges him at this place to relinquish the publication of the Debates on this interesting subject.
If any thing can add to his regret in not fully gratifying the public, it is the sacrifice he makes of his own feelings in omitting many able speeches, particularly the masterly ones of Mr. Ames, Mr. Vining, and Mr. Baldwin.
    [1.] Haman, prime minister of the Persian ruler, King Ahasuerus, built a gallows fifty cubits high on which to hang his enemy, the Jew Mordecai. (A cubit was about the length of a man's forearm.) Through the intercession of Mordecai's cousin Esther, who had become Ahasuerus's queen, Haman was hanged on the gallows instead.
    [2.] The New York Daily Gazette, 19 June, reported that the House debated the issue of removal from office the whole day, adjourning at about four in the afternoon.