Copyright 1988-1994. The Johns Hopkins University Press. All rights reserved.
[Text omitted. -Ed.]***
The house then went into a committee of the whole, on the bill for establishing the department of foreign affairs.
The question on striking out the words, "to be removed by the president," still under consideration.
This question, complicated in its nature, and interesting in its consequences, has occasioned a serious and solemn debate; although some gentlemen have thought it so clear in its nature, and trivial in its consequences, as to excite in them surprise at its being brought a second time under the consideration of the house. For my own part I consider it as the most important question that has yet come before the legislature of the union; I am sure it is the most important question I ever had a voice in discussing, or a vote in determining, except that of adopting the constitution itself in the convention of Virginia. I consider the day, on which the sense of the house is to be taken on this subject, as a memorable day in the annals of America. I do not consider the question is simply, whether the power of removing the great officers of the government shall be vested in the president, or the president and senate? The constitution has determined that point. I do not consider it a question before us to determine, whether offices are to be held during good behaviour, or during the pleasure of those who appoint them? I suppose, on a fair and necessary construction of the constitution, that matter is also settled. All these arguments, therefore, tending to shew, that the one or other mode of appointment or removal is proper or improper, or that they ought to be dispatched by impeachment, are inapplicable to the present case; but the respectability of the characters who support these arguments entitle them to some respect: But I shall pass over them, and proceed to enquire, whether we may grant to others, or assume to ourselves, powers which the constitution has not given, either in express terms, or by necessary implication. This I conceive to be the true question; and it is a question of the importance which has been stated.
It is not contended, that the power which this bill proposes to vest, is given to the president in express terms by the constitution; or that it can be inferred from any particular clause in that instrument; it is sought for from another source, the general nature of executive power. It is on this principle the clause is advocated, or I mistake the arguments urged by my colleague (Mr. Madison). It was said by that gentleman, that the constitution having invested the president with a general executive power, thereby all those powers were vested which were not expressly excepted; and therefore he possessed the power of removal. This is a doctrine not to be learned in American governments; it is no part of the constitution of the union. Each state has an executive magistrate; but look at his powers, and I believe it will not be found that he has in any one, of necessity, the right of appointing or removing officers. In Virginia, I know, all the great officers are appointed by the general assembly. Few if any of a subordinate nature are appointed by the governor without some modification. The case is generally the same in the other states. If the doctrine of the gentlemen is to be supported by examples, it must be by those brought from beyond the Atlantic; we must also look there for rules to circumscribe the latitude of this principle, if indeed it can be limited. Upon the principle by which the executive powers are expounded, must the legislative be determined. Hence we are to infer, that congress have all legislative powers, not expressly excepted in the constitution. If this is the case, and the president is invested with all executive powers not excepted, I do not know that there can be a more arbitrary government. The president will have the powers of the most absolute monarch, and the legislature all the powers of the most sovereign legislation, except in those particular instances in which the constitution has defined their limits. This I take to be a clear and necessary deduction from the principle on which the clause in the bill is founded. I will mention the exceptions, and then let gentlemen form their opinion of the government, if it is thus constituted. The president is limited in the appointment of ambassadors, consuls, judges, and all other officers, and in making treaties, but no further: Take from him these, and give him all other powers exercised by monarchs, and see what they will be. There are also exceptions to the legislative power; such as, they shall not for a certain period prohibit the importation of slaves; that direct taxes shall be apportioned in a particular manner; that duties, imposts and excises shall be uniform; that they shall grant no titles of nobility, no bill of attainder; no ex post facto law shall be passed; no preference in commerce to be given; no money to be drawn but by law. These are the exceptions to the legislative powers. Now give them all the powers which the parliament of Great-Britain have, and what kind of a government is yours? I cannot describe it. It appears to me as absolute and extensive as any despotism. Then we must adhere to the limits described in the constitution. If we advance one step beyond its boundaries, where are we to draw the line to circumscribe our powers, or secure the liberties of our fellow citizens?
I understand our system as differing in form and spirit from all other governments in the world. It is in part national, and in part federal; and though it is more extensive in its powers than most other governments, yet the congress is not to be compared to national legislatures; to these general powers are granted, with or without particular reservations in favor of the rights of the people; to these the gentlemen's arguments will apply, but to no other. Here is no analogy. This is a government constituted for particular purposes only; and the powers granted to carry it into effect, are specifically enumerated, and disposed among the various branches. If these powers are insufficient, or if they are improperly distributed, it is not our fault, nor within our power to remedy. The people who bestowed them must grant further powers, organize those already granted in a more perfect manner, or suffer from the defect. We can neither enlarge nor modify them.
This was the ground on which the friends of government supported the constitution. It was a safe ground; and I venture to say it could not have been supported on any other. If this principle had not been successfully maintained by its advocates in the convention of the state from which I came, the constitution would never have been ratified. I do not mean to retail the solemn debates which took place upon this point, or the popular harangues intended to defeat its adoption. I will only quote the ratification by the state of Virginia; in which you will discover in strong terms, the sense of the federal party on this subject; I say the federal party, because they drew it up without the interference of any other, though it was a clause agreeable to both sides of the house. The part of the ratification alluded to, was a clause proposed as an amendment to the constitution, to reserve to the states individually the powers not delegated by the constitution, nor prohibited by it to the states.
How far the establishment of the principle which I oppose may tend to the completion of the union, I will not undertake to say. I will only remark, that the state of North Carolina has expressed nearly the same sense as Virginia, with this difference only, that she would not adopt the constitution until she was satisfied of the establishment of this great principle, That we should not by constructive acts enlarge our powers, in order at a future day to swallow up the state governments, and with them the liberties of the people. And Virginia took in my opinion the more prudent course; she adopted the constitution under a firm belief that this security would be obtained.
I would suggest to gentlemen the local situation of that state. It is contiguous to Kentuckey; and, united with it, forms a territory of amazing extent, from the Atlantic shores to the banks of the Ohio. The people of this tract are in such a situation that a single spark from this house would kindle a flame which it would be difficult if not impossible to extinguish, and excite such a dread as would render them utterly irreconcileable to our government.
This is not a vain fear or apprehension. The opposers of the constitution formed their arguments upon it. They contended that the constitution was defective, that you would go beyond it and make constructions in your favor, and assume powers which the people never intended to grant. My apprehensions therefore are not mere chimeras of my own invention; I hope they are ill-founded, and may be contradicted by the event.
The measure proposed, I acknowledge, is advocated by respectable and known friends to the union within these doors, and by many without. But I believe much of this arises from the clause in question, conferring the power on a man whom all the world admires, and whom they know will never abuse it. But on this occasion, I would forget who is president; yet I would not forget that the worst of precedents are often established in the best of times. We may give a power to a particular man in office, because he will not abuse it: but we cannot take it away from his successor, who may be disposed to make an ill use of it. I do not mean to infer from this, that if the constitution had invested the power in the president, it would be dangerous or improper that he should have it. I do not determine this question or give an opinion upon it; because it is unnecessary to decide it, the true question before us being simply a constitutional one.
Without entering into the evils which may arise, as gentlemen on both sides of the house have done, let us consider whether greater evils will not arise from our explaining the constitution at this time; if such events as I have apprehended should arise from our attempt to exercise an unconstitutional authority, it would more than counterbalance any possible good that can result from our decision within a moderate period of time. But is there any necessity for the measure? If the constitution has given this power to the president which some gentlemen suppose, cannot he exercise it without our passing an act on the subject? If the constitution has not given it him, shall we go beyond the limits that are set us in order to extend it to him? I hope not. But it seems a difficult point to determine whether he has or has not this power by the constitution; because some gentlemen contend he has, others that he has not. Why need we be concerned to determine this point? It will be better to leave the construction to himself, if it should become necessary to exercise this authority, let him consider his powers. I will venture to say the occasion for the exercise of it, will be a better comment on the constitution than any we can give; it will better explain it to the people, and more perfectly reconcile it to them than any law from the legislature.
It would be better for the president to extend his powers on some extraordinary occasions, even where he is not strictly justified by the constitution, than the legislature should grant an improper power to be exercised at all times. I believe there is not an executive power but which goes at some times beyond the strict letter of the law. But a partial evil is easier sustained than a general one. I will relate an example. In Virginia, when the operations of the war required exertions of the chief magistrate beyond the authority of the law, our late governor Nelson, whose name must be dear to every friend to liberty, was obliged to issue his warrants and impress supplies for the army; though it was well known he exceeded his authority, his warrants were executed, his country was benefitted by this resolute measure, and he himself afterwards indemnified by the legislature. This corresponds with the practice under every limited government. And although I do not wish to encourage acts of this kind, I say it would be better for the executive to assume the exercise of such a power on extraordinary occasions, than for us to delegate to him authority to exercise an extraordinary power on all occasions.
Some gentlemen have supposed that the constitution has made no provision for the removal of officers; and they have called it an omitted case, or defect. They ask, if we may not supply that defect? I say in general we may not; for if we can assume the right of supplying defects and making alterations, we may go on and make the constitution just what we please. But as a further answer, I say, it is not an omitted case; for the constitution having directed by whom officers shall be appointed, it does direct also by whom they shall be removed. But that doctrine was so well supported yesterday by the gentleman from Maryland (Mr. Stone), that I need not add any thing on that head, and I will not trouble the committee with repetitions. This must have been in the contemplation of the gentlemen who formed the constitution. Is it probable they never thought about the manner in which an officer should be displaced when they provided so many regulations relative to it. When they directed that the judges should hold their offices during good behaviour, did they not intend all others should be held during pleasure? So far then from being an omitted case, I contend it is fully provided for by fair construction of the constitution. I mean before I sit down to say something on construction in general, which will throw light on this sentiment.
Gentlemen have supposed that the president may suspend; and that as he has a right to make a temporary appointment, he has also a right to make a temporary removal: I think he has, so far as it corresponds with his power of appointment.
It has been said, if the concurrence of the senate is necessary, they may refuse to concur when a removal is proper. If we are to suppose, that the government cannot be executed in its present form, there is no remedy for such a misfortune: But we are not to suppose it; we are to presume the senate will do their duty. You may go on without end in supposing. You may suppose the president may not do what is right; you may even suppose this house may not do what is right; what is the consequence? why our constituents must bear with us till they have an opportunity of applying a remedy. But shall we, because the senate may do wrong, give the president the power to act without them? Is it contended that the president has any superior agency in this business because he nominates? We may as well contend, on the same principle, that because this house has the exclusive power of originating money bills, we may repeal a law of that nature without the consent of the senate. It has been asked, whether a person in the elevated station of the president would abuse his trust? I do not presume he will, but I presume he may; to prevent such evils the constitution has wisely guarded the exercise of every power. But I would ask, is there more danger of the senate's abusing their trust than the president's his?
A gentleman (Mr. Sherman) has recurred to that part of the constitution which says, 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 in the heads of departments; and infers from hence, that the president is to consider himself as the head of all these departments. These arguments come from a gentleman whom I always hear with pleasure, on account of his sound reasoning and perspicuity of expression; but, in this case, I differ from him widely. Who are the heads of departments? We are to have a secretary for foreign affairs, another for war, and another for the treasury; now, are not these the principal officers in those departments? They are denominated such in the bills, and in the former resolution of the house; if they are, they are the heads of those departments. But who are the inferior officers? The chief clerk, and all others who may depend upon them. These then are the inferior officers, whose appointment may be vested in the respective heads of departments. I would beg just to observe here, that the gentlemen who formed the constitution seem not inclined, at all events, to give to the president the power of appointing even these inferior officers, to which is attached the power of removal.
When I set out with saying the constitution is the precise limits to the deliberations of congress, and as I said something with respect to construction, it may, at first view, appear somewhat inconsistent. I promised to explain on this head. I say, sir, that whatever is granted in general terms, that which is in its own nature attached to it, and necessary to render that grant of effect, must also go with it, without particular explanation. Without this principle, congress could not execute the system of government. To elucidate this point, you will observe, that the constitution vests in the government the power of appointing supreme and inferior judges. By natural and necessary construction, therefore, the legislature may say how many judges there shall be, how often and where they may hold their terms, and what their salaries shall be. These are natural and safe constructions; but constructions of every other kind are beyond the limits of the constitution.
I should not have troubled the committee so long; but on a matter of so much importance, one that lies so heavily on my mind, and for which I am so anxiously concerned, I could not avoid expressing my sentiments fully. I am strongly impressed with the idea that giving powers which are not within the letter of the constitution, will be to the people a circumstance of alarm and terror. I would wish to avoid exciting apprehensions; and therefore leave the power to the discretion of the chief magistrate; let him exercise it, if he judges it necessary on any occasion; and that circumstance may reconcile the people to it. This brings to my mind an observation made on legislative construction. I imagine the legislature may construe the constitution with respect to the powers annexed to their department, but subject to the decision of the judges. The same with regard to the executive; the president and senate may construe the power in question; and as they determine respecting the mode of removal, so they may act— but liable also to the decision of the judiciary.
I cannot acquit myself of the duty I own to my constituents, and my own feelings, to pass this subject with a silent vote. I recollect when this argument was first brought forward, that great stress was laid upon increasing the president's responsibility. I think it had more weight with some gentlemen than it deserved; for instead of increasing his responsibility, I think it diminishes it: Because I hold it an incontrovertible maxim, that the more power you give him, the more his responsibility is lessened. By making the heads of all the departments dependent upon the president, you enable him to swallow up all the powers of government; you encrease his influence, and every one will be studious to please him alone. This was never the intention of the constitution, or he would have the sole power of appointing. The framers of the government had confidence in the senate, or they would not have combined them with the executive in the performance of his duties. The constitution also has confidence in the heads of departments; the president is directed to have their advice relative to the particular duties of their stations. Now, what necessity, let me ask gentlemen, was there for a constitutional provision to enable the president to obtain their advice, if it was understood that all such officers were to be the mere creatures of the president, dependant upon his will alone? Would not such a situation compel them to do every thing he directed?
The clause in the constitution which provides, that all civil officers of the United States shall be removed from office on impeachment for, and conviction of, high crimes and misdemeanors, plainly includes all officers and offences which it is in contemplation to make the president sole judge of. I ask gentlemen then, if the clause in the bill is not subversive of the right which the senate holds under this clause of the constitution?
I would caution those gentlemen, who are so fond of energy in their government, that they do not go too far, and lay the foundation of a future despotism. By this grant of power you secure the president against impeachment; you fence him round with a set of dependant officers, through whom alone it is probable you could come at the evidence of the president's guilt, in order to obtain his conviction on impeachment.
It has been said, if we strike out the words in the bill, we shall leave this power to the senate. I contend, mr. chairman, that it is safer to leave it to the president and senate than to the president alone; but I do not conceive that we decide the question by any means; when we strike out the clause we leave it only where we found it.
Some gentlemen contend, that the senate are a dangerous and aristocratic body; but I contend, that they are a safe and salutary branch of the government, representing the republican legislatures of the individual states, and intended to preserve the sovereignty and independence of the state governments, which they are more likely to do than the president, who is elected by the people at large. A popular president, influenced by the sentiments of his electors, may be induced to believe that it would be best for the general interest that those governments were destroyed; but as long as we have that body independent of him, and secured in their authority, we may defy such impotent attempts; they will watch his conduct, and prevent the exercise of despotic power; but if they are weakened, and stripped of their essential authority, they will become weak barriers against the strides of an uncontrolled power. If you take from them their right to check the president in the removal of officers, they cannot prevent the dismission of a faithful servant, who has opposed the arbitrary mandates of an ambitious president. The principles laid down in the constitution clearly evince, that the senate ought not only to have a voice in the framing of laws, but ought also to see to their execution.
If this clause is inserted in the bill, it will excite the jealousy of the people; and I venture to predict there will be a ten-fold clamor for amendments to the constitution. I myself shall never be satisfied unless I see four fold checks upon the president: It will inevitably lead to the establishment of those odious prerogatives which we, by an arduous conflict, have been endeavouring to get rid of. I will not take up more of your time, mr. chairman; but I call on the gentlemen to reflect; they must see plainly, that conferring this power, so far from making the president more responsible, diminishes his responsibility, and inclines to establish him an independent monarch.
Notwithstanding the length of the debate, and the fatigue gentlemen have undergone, I still flatter myself that the importance of the subject will entitle me to a farther indulgence. It is not, however, my intention to traverse the vast field which lies before me, nor attempt a general discussion, after what has taken place. My intention at present is to remark upon two or three cases that have particularly struck my mind: First, it is contended, on each side of the question, that it is already a matter of constitutional determination; and if so, gentlemen on one side say, there is no necessity for the interpretation of the legislature upon it. Again, it is contended, that the power of removing is incidental to the power of appointing, and necessarily consequential upon it. In forming the union, did it necessarily follow that the convention should give the one as incidental to the other? I believe gentlemen will hardly extend their arguments so far. Then the rule is by no means well founded; and the constitution might have given the power of appointment to one branch of the government, and the removal to another.
The gentleman from Virginia (Mr. White) has laid down a leading principle in the government, that where a general authority is granted to one branch, every thing subordinate and necessary to effect the object follows of course. The power of creating offices is given to the legislature: Under this general grant, the legislature have it under their supreme decision to determine the whole organization, to affix the tenure, and declare the control. This right of determining arises not from express words, but by natural construction: So the legislature may determine that an office may be held three, five, or seven years; to be removable by the president, the president and senate, or the legislature, or any other person whom they might introduce into office, merely for that particular purpose. This appears to me to be the true construction; and unless something as decisive is shewn from the constitution, I shall favor this opinion.
I am obliged to contradict, and would therefore ask pardon for the observation: It is not conceded on one side, though affirmed on the other, that the power of appointing vests in any sense in the senate. The words in the constitution (and the arguments have been drawn only from their construction) lead to a different object: It is therein said that the president shall nominate and appoint— the words are clear. Now, if we take another power, which is made analogous in the same clause, the power of making treaties, will any one contend that treaties are made by the senate? The words, in this instance, are: "he shall have power, by and with the advice and consent of the senate, to make treaties." So the legislative power is lodged in the senate and house of representatives; yet this legislative power is exercised to a certain degree under the influence of the executive magistrate: But has it ever been considered, that the president constitutes part of the legislature? Why, therefore, will gentlemen contend, that the influence which one branch of the legislature has over the executive, vests that branch with executive powers? The doctrine of the constitution is the reverse of this. I shall not undertake to say, that it is with more plausibility contended, that the power of removal is constitutionally in the president; because the powers of government being distributed among distinct bodies, and all executive authority being vested in him, he therefore has it of course: But I think the fact may be as fairly inferred upon the principle of the gentleman from Virginia (Mr. White) in favor of the president, who expressly nominates and appoints, as in favor of the president and senate. But these arguments have been held up in so many points of view, that it will be a mispence of time farther to dwell upon them— it was with another view which I arose.
It will be agreed on all hands, that this officer, without observing on the subject at large, is merely to supply a natural incompetency in man; in other words, if we could find a president, capable of executing this and all other business assigned him, it would be unnecessary to introduce any other officer to aid him. It is then merely from necessity that we institute such an office; because all the duties detailed in the bill are, by the constitution, pertaining to the department of the executive magistrate. If the question respected the expediency, I should be content to advocate it on that ground; if expediency is at all to be considered, gentlemen will perceive that this man is as much an instrument in the hands of the president, as the pen is the instrument of the secretary in corresponding with foreign courts. If then the secretary of foreign affairs is the mere instrument of the president, one would suppose, on the principle of expediency, this officer should be dependant upon him. It would seem incongruous and absurd, that an officer who, in the reason and nature of things, was dependant on his principal, and appointed merely to execute such business as was committed to the charge of his superior (for this business, I contend, is committed solely to his charge); I say it would be absurd in the highest degree to continue such a person in office contrary to the will of the president, who is responsible that the business be conducted with propriety, and for the general interest of the nation. The president is made responsible; and shall he not judge of the talents, abilities and integrity of his instruments? Will you depend on a man who has imposed upon the president, and continue him in office when he is evidently disqualified, unless he can be removed by impeachment? If this idea should prevail,which God forbid, what would be the result? Suppose even that he should be removable, by and with the advice and consent of the senate, what a wretched situation might not our public councils be involved in? Suppose the president has a secretary, in whom he discovers a great degree of ignorance, or a total incapacity to conduct the business he has assigned him; suppose him inimical to the president, or suppose any of the great variety of cases which would be good cause for removal, and impress the propriety of such a measure strongly on the mind of the president, without any other evidence than what exists in his own ideas from a contemplation of the man's conduct and character day by day: What, let me ask, is to be the consequence if the senate are to be applied to? If they are to do any thing in this business, I presume they are to deliberate, because they are to advise and consent; if they are to deliberate, you put them between the officer and the president; they are then to enquire into the causes of removal; the president must produce his testimony: How is the question to be investigated? because, I presume, there must be some rational rule for conducting this business. Is the president to be sworn to declare the whole truth, and to bring forward facts? or are they to admit suspicion as testimony? or is the word of the president to be taken at all events? If so, this check is not of the least efficacy in nature. But if proof is necessary, what is then the consequence? why, in nine cases out of ten, where the case is very clear to the mind of the president that the man ought to be removed, the effect cannot be produced; because it is absolutely impossible to produce the necessary evidence. Are the senate to proceed without evidence? Some gentlemen contend not; then the object will be lost. Shall a man under these circumstances be saddled upon the president, who has been appointed for no other purpose in the creation, but to aid the president in performing certain duties? Shall he be continued, I ask again, against the will of the president? If he is, where is the responsibility? Are you to look for it in the president, who has no control over the officer, no power to remove him if he acts unfeelingly or unfaithfully? Without you make him responsible, you weaken and destroy the strength and beauty of your system. What is to be done in cases which can only be known from a long acquaintance with the conduct of an officer? But so much has been said on this subject, that I will add no farther observations upon it.
Let me ask, what will be the consequence of striking out these words? Is the officer to be continued during an indefinite time? For it has been contended that he cannot be removed but by impeachment; others have contended that he is always in the power of those who appoint him. But who will undertake to remove him? Will the president undertake to exercise an authority which has been so much doubted here, and which will appear to be determined against him if we consent to strike out the words? Will the senate undertake to exercise this power? I apprehend they will not. But if they should, would they not also be brought before the judges, to shew by what authority they did it? because it is supposed by one gentleman, that the case might go before that tribunal, if the president alone removed the officer. But how is this to be done? Gentlemen tell you, the man who is displaced must apply for a mandamus to admit him to his office. I doubt much if this would be adequate to the purpose. It would be difficult to say whether the mandamus should be directed to the president, to the president and senate, to the legislature, or to the people. Could the president be compelled to answer in a civil suit, for exercising the powers vested in him by law, and by the constitution? the question upon either of those points would be involved in doubts and difficulty.
If these observations strike the committee in the same point of light, and with the same force as they have struck my mind, they will proceed to determine the present question, and I have no doubt but they will determine right.
I agree with my worthy colleague (Mr. White), that the day on which this question shall be decided, will be a memorable day, not only in the history of our own times, but in the history of mankind; that on a proper or improper decision will be involved the future misery or happiness of the people of America. Viewing the subject in this light, I am influenced by its importance, and weigh with scrupulous attention the arguments which induce a preponderation in either scale. Hitherto they appear favorable to that decision which accords with my sentiments of expediency and constitutionality. I hope that a great majority of this house coalesce in these sentiments; for I trust, upon mature reflection and full discussion, the reasoning of the gentlemen in opposition will be found to be more specious than solid.
My colleague has said, that if the principle that all powers of an executive nature except such as are qualified in the constitution belong by implication to the president, and the same principle is applied to the legislature; this government would be the most tyrannical on earth.
Mr. White interrupted Mr. Lee, and declared he never made use of such an expression; he said it would possess the powers of the most absolute government.
The gentleman should remember that this government is not vested with those ample powers which he contemplated when he made this observation. This government is invested with powers for enumerated purposes only, and cannot exercise any others whatsoever.
He advises us to adhere strictly to the constitution. I hope we shall. But I would not act under the influence of arguments addressed to the passions of the committee. This, sir, is a subject to be decided on cool and dispassionate reasoning, and not in the heat of fervid declamation, or under the fears and apprehensions arising from the situation of North-Carolina or Kentuckey; such references, therefore, appear to me unfit to be made on the present occasion. I hope no gentleman will conceive that this is a power that can in any way endanger the general welfare— I believe it can do no such thing.
It has been said by my colleague (Mr. White), that the constitution does not vest the power of making this declaration by law. Here, sir, I disagree with him; because the constitution vests in congress power to make all laws necessary and proper to carry into execution the powers vested by the constitution in the government of the United States, or in any department or officer thereof. Now, he admits that the constitution vests the power of removal, by necessary implication, in the government of the United States. Have not congress, therefore, the power of making what laws they think proper to carry into execution the powers vested by the constitution in the government of the United States.
It is laid down as a maxim in government by all judicious writers, that the legislative, executive, and judicial powers should be kept separate and distinct as possible, in order to secure the liberties of the people. And this maxim is founded on the experience of ages: For we find that however governments have been established, however modified in their names or forms, if these powers are blended, or exercised by one body, the effects are ever the same— the public liberty is destroyed.
The several states, in forming their constitutions, have attended particularly to this sacred maxim: We find they sedulously separated these powers of government; and many of their declarations of rights were intended to perpetuate the inviolable truth. The framers of the constitution of the United States came from among the people, who venerated this general principle; they were the select and honored sons of those people, who like them were impressed with sovereign respect for a truth which supported the great object— a good and free government. Characters like these, with such impressions, were not likely to forego principles in which they were nurtured. Did they forego them? Examine the result of their deliberations, and see how carefully they are preserved: They have divided our government into three principal branches, with express declarations, that all legislative power shall vest in one, all executive in another, and thewhole judicial in a third. It is our bounden duty to imitate their great example, and to support the separation which they have formed. The legislature has the power to create and establish offices; but it is their duty so to modify them as to make them conform to the general spirit of the constitution. The people ought to know what belongs to each department; what belongs to the executive magistrate, and what is expected from him. Upon what can their sense be exercised, unless they know the particular powers invested in every branch? If a mischievous legislative act is passed, they look to the legislature, they remonstrate with you, and ask, why was this done? If a wicked executive act is perpetrated, they look to the executive magistrate, and ask, why did you do this, or suffer it to be done? If an improper decision takes place in a court of law, they ask of the judicial to correct the error. It is by separating, and keeping distinct these powers, that the public jealousy can be directed to those objects which are most necessary to be watched; they can discover the error and know who to blame; but if the powers are blended, their attention is divided, and the responsibility, if not annihilated, is greatly diminished. On the public jealousy, therefore, the freedom of the government exists; for if the government is not watched, it either becomes negligent or tyrannical; and to induce the people to keep an observing eye over the actions of men in power, they must have their object specific and single.
Now, as I contend we have the power to modify the establishment of offices; so ought we, mr. chairman, to modify them in such a way as to promote the general welfare; which can only be done by keeping the three branches distinct; by informing the people where to look, in order to guard against improper executive acts. It is our duty, therefore, to vest all executive power, belonging to the government, where the convention intended it should be placed. It adds to the responsibility of the most responsible branch of the government; and without responsibility, we should have little security against the depredations and gigantic strides of arbitrary power. I say it is necessary, sir, to hold up a single and specific object to the public jealousy to watch; therefore it is necessary to connect the power of removal with the president. The executive is the source of all appointments; is his responsibility complete unless he has the power of removal? If he has this power, it will be his fault if any wicked or mischievous action is committed; and he will hardly expose himself to the resentment of three millions of people, of whom he holds his power, and to whom he is accountable every four years.
If the power of removal is vested in the senate, it is evident at a single view, that the responsibility is dissipated, because the fault cannot be fixed on any individual; beside the members of the senate are not accountable to the people, they are the representatives of the state legislatures; but even if they were, they have no powers to enable them to decide with propriety in the case of removals, and therefore are improper persons to exercise such authority.
Notwithstanding the long investigation which this question has undergone, I must beg the attention of the committee to a few sentiments farther. I have attended with the greatest care to the arguments which have been brought forward on both sides. I respect the characters of the gentlemen who advocate the amendment; their arguments have struck me with considerable force, and induced me to tread with caution. Sir, the efficacy of your government may depend upon the determination of this house respecting the present question. For my part I shall certainly attend to the terms of the constitution in making a decision; indeed I never wish to see them departed from or construed, if the government can possibly be carried into effect in any other manner. But I do not agree with the gentlemen, that congress have no right to modify principles established by the constitution; for, if this doctrine be true, we have no business here. Can the constitution be executed if its principles are not modified by the legislature. A supreme court is established by the constitution; but do gentlemen contend, that we cannot modify that court, direct the manner in which its functions shall be performed, and assign and limit its jurisdiction. I conceive, notwithstanding the ingenious arguments of the gentleman from Virginia (Mr. White), and the gentleman from South-Carolina (Mr. Smith
), that there has not been, nor can be, any solid reason adduced to prove, that this house has not power to modify the principles of the constitution. But is the principle now in dispute to be found in the constitution? If it is to be found there, it will serve as a line to direct the modification by congress. But we are told, that the members of this house appear to be afraid to carry the principles of the constitution into effect. I believe, sir, we were not sent here to carry into effect every principle of the constitution; but I hope, whenever we are convinced it is for the benefit of the United States to carry any of them into effect, we shall not hesitate. Under these impressions the committee will conceive with me, that every thing relative to the situation of North-Carolina and Kentuckey, ought to be thrown out of the question. What influence ought North-Carolina to have over this body? They are not represented; we are to consider the question on its own merits, and if we find it calculated to encrease the public security, we need not hesitate from an apprehension so uncertain, so visionary, as the one that has been laid before us.
Having premised thus far, I shall offer a few remarks upon what has been advanced by the gentlemen who support the motion for striking out the clause; and I shall endeavor to shew, even on their own principles, that this power is vested in the president of the United States, and ought to be so decided by congress.
The principle of the constitution is generally to vest the government in three branches. I conceive this to be completely done, if we allow for one or two instances, where the executive and legislative powers are intermixed, and the case of impeachment. These cases I take to be exceptions to a principle which is highly esteemed in America. Let gentlemen attend to what was said by some of the conventions when they ratified the constitution. One great objection was, that the powers were not totally separated. The same objection is, I believe, to be found among the amendments proposed by the state of North-Carolina. Now I conceive, if we do any thing to conciliate the minds of people to the constitution, we ought not to modify the principle of the government, so as to encrease the evil complained of, by a further blending of the executive and legislative powers, and that too upon construction, when gentlemen deny that we ought to use construction in any case.
Now let us take up the constitution, and consider from the terms and principles of it, in whom this power is vested. It is said by some gentlemen to be an omitted case; I shall take up the other principle, which is easier to be maintained, that it is not an omitted case, and say the power of removal is vested in the president. I shall also take up the principle laid down by the gentleman from Virginia (Mr. White), at the beginning of this argument, that, agreeably to the nature of all executive powers, it is right and proper that the person who appoints should remove. This leads me to consider in whom the appointment is vested by the constitution. The president nominates and appoints; he is farther expressly authorised to commission all officers. Now, does it appear from this distribution of power that the senate appoints? Does an officer exercise powers by authority of the senate? No; I believe the president is the person from whom he derives his authority. He appoints— but under a check; it is necessary to obtain the consent of the senate; but after that is obtained, I ask who appoints? who vests the officer with authority? who commissions him? The president does these acts by his sole power, but they are exercised in consequence of the advice of another branch of government. If, therefore, the officer receives his authority and commission from the president, surely the removal follows as coincident.
Now, let us examine whether this construction consists with the true interest of the United States, and the general principles of the constitution. It consists with the general principles of the constitution; because the executive power is given to the president, and it is by reason of his incapacity that we are called upon to appoint assistants. Mention, to be sure, is made of principal officers in departments; but it is from construction only that we derive our power to constitute this particular office. If we were not at liberty to modify the principles of the constitution, I do not see how we could erect an office of foreign affairs. If we establish an office avowedly to aid the president, we leave the conduct of it to his discretion. Hence the whole executive is to be left with him, agreeably to this maxim, all executive power shall be vested in a president. But how does this comport with the true interest of the United States? Let me ask gentlemen where they suspect danger? Is it not made expressly the duty of the secretary of foreign affairs, to obey such orders as shall be given to him by the president? And would you keep in office a man who should refuse or neglect to do the duties assigned him? Is not the president responsible for the administration? He certainly is. How then can the public interest suffer?
Then, if we find it to be naturally inferred from the principles of the constitution, coincident with the nature of his duty, that this officer should be dependant upon him, and to the benefit of the United States, for what purpose shall congress refuse a legislative declaration of the constitution, and leave it to remain a doubtful point? Because, if congress refuses to determine, we cannot conceive that others will be more entitled to decide upon it than we are. This will appear to give ground for what the gentlemen have asserted, that we are afraid to carry the constitution into effect: This I apprehend would not be doing our duty.
Gentlemen say they have a sufficient remedy for every evil likely to result from connecting the senate with the president: This they propose to do by allowing the power of suspension. This, in the first place, does not answer the end; because there is a possibility that the officer may not be displaced after a hearing before the senate: And, in the second place, it is entirely inconsistent with the whole course of reasoning pursued by the gentlemen in opposition. I would ask them, if the constitution does not give to the president the power of removal, what part is it that gives the power of suspension? If you will in one case construe the constitution, you may do it in another; for I look upon it as dangerous to give the power of suspension by implication, as to give the full power of removal. Gentlemen observe, that I take it for granted that the president has no express right to the power of suspension, and that, if he is to exercise it, it must be drawn by constructive reasoning alone from the constitution. If we are to exercise our authority, we had better at once give a power that would answer two valuable purposes than one altogether nugatory. In the first place, it would entirely separate the legislative and executive departments, conformably to the great principles of the constitution; and, in the second place, it would answer the end of government better, and secure real benefits to the union.
The fears of the gentleman from Virginia (Mr. White), appeared to me unfounded. Why does he suppose the inhabitants of North Carolina will take umbrage at our decision? It cannot be because we are averse to uniting the executive and legislative departments, because they are avowed opponents to that doctrine: They cannot be afraid of the president, by reason of his having the power to exercise such authority, for the danger does not lay on that side: The great evil, as was stated by the gentleman from Virginia (Mr. Madison) yesterday is, that bad officers shall continue in office, and not that good ones may be removed; yet this last is all that is in the power of the president. If he removes a good officer, he can not appoint his successor without the consent of the senate; and it is fairly to be presumed, that if at any time he should be guilty of such an oversight, as to remove a useful and valuable officer, the evil will be small, because another as valuable will be placed in his stead. If it is said, that this is an injury to the individual; I confess that it is possible that it may be so: But ought we not in the first place to consult the public good? But on mature consideration I do not apprehend any very great injury will result to the individual from this practice; because, when he accepts of the office, he knows the tenure by which he is to hold it, and ought to be prepared against every contingency.
These being the principles on which I have formed my opinion, in addition to what was stated, I do conceive that I am perfectly justified to my constituents and to my oath to support this construction. And when I give my vote that the president ought to have the power of removal from office, I do it on principle; and gentlemen in the opposition will leave us to the operation of our judgments on this as well as every other question that comes before us. For my part, I conceive it is impossible to carry into execution the powers of the president in a salutary manner, unless he has the power of removal vested in him. I do not mean, that if it was not vested in him by the constitution, it would be proper for congress to confer it; though I do believe the government would otherwise be very defective, yet we would have to bear this inconvenience until it was rectified by an amendment of the constitution. For my part, I would adhere to every principle contained in it, however defective, and not infringe it for any purpose whatever. In so doing we shall be justified by our constituents, and have nothing to dread from those apprehensions which have been held out; because I trust in the good sense of our fellow citizens, that while we do our duty they will not be backward on their part to conform to theirs.
I think it necessary to answer a few of the arguments that have been brought forward on the other side of the house, although I am well satisfied the subject has been worn threadbare. With respect to what has been said about the business being ingeniously handled, I agree with the gentleman that the discussion of the bill has been ingenious; and it has been ingeniously brought forward; for the committee have taken care to bring in the present bill previous to the bill for organizing the treasury, that the principle might be established before that more delicate business came in their view.
A gentleman from Maryland (Mr. Stone) has brought forward some arguments which are of great weight. But whilst I acknowledge their weight generally, I must beg leave to differ with him in one particular. He conceives the president, or president and senate, to be the head of all the executive departments of government. Now I cannot see it in this point of light. I would ask, where is the necessity, if this doctrine was true, of grafting into the constitution a power to authorise the president to receive the advice of the senate, and require the opinion in writing of the heads of departments? I appeal to the good sense of the committee to determine, whether these offices are not established by the constitution as heads of departments. How then can they be merely instruments of the president, to conform implicitly to his will? For I deny the principle that they are mere creatures of the law. They have constitutional rights which they may exercise. If the president alone is the head of the whole executive department, and these the mere creatures of the law, where is the necessity of calling them heads of departments in the constitution? Surely the convention did not use a redundancy of words, and insert a clause without meaning. They either must have done this, or contemplated your secretary of foreign affairs as head of an executive department. Where else shall we search for a meaning? Shall we look into the bill now before the house? That bill stares gentlemen in the face; it acknowledges the secretary of foreign affairs to be the head of a department. Shall the constitution be taken up and construed? If it is, it should not be construed in the manner which the gentlemen have done.
I agree with the honorable member last up, that we have a right to modify the judiciary system, and in doing this, that construction is necessary. But it is a construction of a different kind from what is now contended for; we have a right to extend the powers of that department by construction. There is a great difference between organizing and modifying a department and modifying the principles of the constitution; there would be great danger in this. If we begin once to construe and define the principles of the constitution, there is no end to our power; we may begin with the alpha and go to the omega, changing, reversing and subverting every principle contained in it. This never can be the meaning of the constitution; this never was the intention of our constituents; they never sent us here for the purpose of altering the system of government; they reserved that power to themselves.
I differ with gentlemen who say that the senate have no part of the executive power, or that the president has no part of the legislative authority. I consider them as checks upon each other, to prevent the abuse of either; and it is this way in which the liberties of the people are secured. I appeal for the truth of this sentiment to the writings of Publius; he has proved that the senate are a check upon the executive, for the express purpose of securing the freedom of the people.
Gentlemen have come forward and told us that a power of this kind is necessary to prevent a misapplication of the public money; and to make the officer completely controlable 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, would be a better security; for if the president has the power of removing all officers who may be virtuous enough to oppose his base measures, what would become of the liberties of our fellow-citizens? Your treasury would fall into his hands; for nobody in that department would dare to oppose him. Having then the army and the treasury at his command, we might bid a farewell to the liberties of America forever. The balance would be on his side, and if we were to lose the benefit of the constitution for a day, a month, or a year, it could never be regained, but by an arduous and dreadful conflict. I repeat it again, there are but two things necessary to make a man a despot, the purse and the sword. The constitution gives to the president the power of the latter, and the legislature is about to give the power of the former into his hands; when this is done the liberties of the people are surrendered to his discretion.
Gentlemen have said, that the power in the hands of the senate would be equally dangerous; but let me ask them whether most danger is to be apprehended from a power vested in the hands of one or many? Besides the senate are a body perpetually changing, returning to, and renovating from the mass of the people; they will also be continually watched over by the state legislatures. It will be readily admitted that the state governments are good centinels and proper checks over the conduct of their representatives. I look upon the senate as a more harmless body than what gentlemen seem inclined to suppose them. But it is not so with the president; he is constitutionally armed with high and dangerous powers, which if left unchecked and unrestrained, might be productive of dangerous consequences. But to extend those powers would increase the danger to an alarming degree; if you grant him the power of removing whom he pleases from office, you will give him a complete control over the whole treasury department. Having got the sword, give him the purse, with the army and navy, and what is there left for him to require with the command of the strong box? he would be able to raise up a legion of officers, who would support his measures, secure his election, and thus perpetuate his political existence. Gentlemen will not contend that there is no fear of corruption when the president has the power of bribing by a disposal of the public treasure among his partizans. Let us look round at this moment and see the progress we are making towards venality and corruption. We already hear the sounding title of highness and most honorable trumpeted in our ears, which ten years since would have exalted a man to a station as high as Haman's gibbet; these titles have been echoed even in the Boston papers, a town, which fifteen years ago, would acknowledge no lord but the Lord God of Hosts.
I call upon gentlemen to shew me why the heads of departments are necessarily dependant upon the president, when the constitution specifically points them out. I cannot for my part admit, that any part of the constitution authorises the president to exercise an uncontrolled power over them; because I perceive, as a fundamental principle in the constitution, that the exercise of all power should be properly checked and guarded; the senate is the proper check on the president, and the president on the senate and this house. These being my sentiments, and conceiving it the only way to secure the rights of the people, I shall be against the clause, and hope it may be rejected.
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, and I assure the committee I do not mean to 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 consist in this, the raising of a great number of frightful pictures, which, at first sight, appear very terrible, but when they are attentively contemplated, they appear to be the vagaries of a disordered imagination. Let us examine one or two of these frightful pictures, merely as a sample of the whole set, and see what they amount to. The most frightful of all that have been brought into view is, that the treasurer must be the mere creature of the president, and conform to all his directions, or he arbitrarily removes him from office, and lays his hands violently upon the money-chest; then having the sword and the purse, you see the president boldly advancing, supported by the army and navy, and the money chest in the back ground, engaging the liberties of the people; armed with all this omnipotence of power, the protector rushes onward with irresistible impetuosity; so sudden and fatal is the stroke, that the expiring genius of America has hardly time faintly to say, farewell Liberty. Thus despotism rides triumphant, and freedom and happiness are trampled in the dust. Strange, that all this should arise from the executive magistrate's having the power of removal. But gentlemen tell us, that if we keep the treasurer out of the power of the president, he cannot injure us; that being thus independent, your strong box will be well guarded, and the president cannot get your money, unless he steals it; and if he steals it, and the treasurer sees him, he will tell; this will lead to an impeachment, and we shall get rid of the cause of our apprehensions. But the constitution says, that no money shall be taken out of treasury but by appropriations: this alone I think a sufficient answer to all that has been said, and will serve to soften down the harsh features which the terrible picture I have just now mentioned displayed. I say, sir, our money may be in the treasury by millions, and without special appropriation by the legislature, the president and treasurer either or both together cannot touch a farthing of it, unless they steal it. This being the case, I see as little security to the treasury in the independence of this officer, as danger arising from his dependance, without a single exception; for if the president, with a strong army at his back, comes violently to lay hold of the money-chest, this officer stands but a very poor security against such a power. I think the president, supported with the army and navy, making a descent upon your treasury, would be very apt to carry away the money and the treasurer too if he stood in his way. Arguments like these may tend to amuse, but they can make no serious impression; it is only drawing pictures on a hard wall, in order to batter them down with our own knuckles.
Another picture is drawn, by way of comparison, between the senate and the president; and we have gone into arguments to prove who are nearest akin to the people. Here we have run 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 related to them than the president; therefore the latter, as a stranger, must not be intrusted with the removal of officers, but our kinsmen the senate may. But is this a fair construction of the relationship? Is any thing more plain than that the president, above all the officers of government, both from the manner of his appointment, and the nature of his duties, is truly and justly denominated the man of the people? Is there any other person who represents so many of them as the president? He is elected by the voice of the people of the whole union; the senate are the representatives of the state sovereignties; the representatives of that very species of beings, which if any thing stands in the way of the just execution of the federal government, they are the creatures: The separate sovereignties of the several states are the most effectual bar to prevent the operations of the present system; yet this body is held up as more nearly related to the people than the president himself, when no man in the United States has their concurrent voice but him. Hence it appears, that although this picture is not quite so ludicrous as the first, it is equally a caricature, 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.
It has long been an opinion entertained of the people of America, that they would not trust the government with the power of doing good, lest it should be abused; but contrary to the expectation of its enemies, a constitution is formed providing those powers which we suffered so much for want of under the old confederation. The question on the present occasion seems to stand on nearly the same ground, whether we shall trust the power of doing good to the executive magistrate, or deprive him of it for fear he may abuse it. The constitution has recognized three great branches of the government, and distributed among them all the powers which are granted. I conceive, therefore, in no case whatever any kind of construction can be put to lessen the powers of either of those branches. The only security which the constitution means to give us, is to call the officers of government to account if they abuse their powers; and not to cramp their exercise so as to make them inefficient.
It is contended by some gentlemen, that the constitution has by implication vested the power of removal in the president and senate; but are we to decide a question by implication in favour of the senate, and not to construe any part of the constitution in favour of the president? It has also been said that the power would be more safe in the hands of the senate than in that of the president; but I do not view it in that light. It has however been justly shewn, that it would be a very inconvenient and useless power for them to be possessed of it. It is nothing similar to the power they have in appointments. There they are really useful by their advice; because it is more probable that the senate may be well acquainted with the characters of the officers that are nominated than the president himself. But after their appointments such knowledge is little required. The officer is placed under the controul of the president; and it is only through him that the improper conduct of a person in a subordinate situation can be known. He therefore is the only person who can properly apply the remedy; unless, indeed, the officer's malpractices are so conspicuous as to furnish ground for impeachment; and this power vested by the constitution in the house of representatives and senate, will apply the remedy in such case, if the president should neglect, or if the officer should be a favorite of his. It moreover appears very clear to me, that the senate, who are a judicial body, ought not to meddle with the business of removal; because they will have prejudged the case, if an impeachment should be thereafter made.
I admit, sir, the justness of an old observation, that ridicule is the test of truth. I would rather that my arguments were caricatured against a wall to be battered down by my own knuckles, than join a system forging chains for my country. It will be matter of small consolation to the gentleman from Pennsylvania, when the hour of repentance arrives, that he has been facetious at the expence of his fellow citizen's security.
So far, mr. chairman, am I from feeling hurt by the ludicrous situation in which our arguments are placed by the gentleman from Pennsylvania, that I am obliged to him for the relaxation it has afforded; these sportive fancies unbend the mind, and make us in better humor with each other. But no gentleman expects that we shall be laughed out of our reason, or our liberty.
The parliament of England is one of the most important bodies on earth; but they can do nothing without the concurrence of the executive magistrate. The congress of the United States are likely to become a more important body; the executive magistrate has but a qualified negative over them. The parliament of England, with the consent of the king, can expound their constitution; in fact, they are the constitution itself. But congress may, if once the doctrine of construction is established, make the constitution what they please, and the president can have no control over them.
It has been said by my colleague (Mr. Sedgwick), that the president not only nominates but appoints the officers; and infers from hence, that as the power of removal is incidental to the power of appointing, the president has the power of removal also. But I should be glad to know how it can with justice be said that the president appoints. The constitution requires the consent of the senate; therefore they are two distinct bodies, and intended to check each other. If my colleague's is a true construction, it may be extended further, and said, that in the act of nominating, the assent of the senate is virtually given, and therefore he has a right to make the whole appointment himself without any interference on the part of the senate. I contend, sir, that there is just as much propriety in the one construction as in the other. If we observe the enacting stile of the statutes of Britain, we shall find pretty near the same words as what are used in the constitution, with respect to appointments. Be it enacted by the king's most excellent majesty, by and with the advice and consent of parliament; here it might be said that the king enacts all laws; but I believe the truth of this fact will be disputed in that country. I believe no one will pretend to say that the king is the three branches of parliament; and unless my colleague will do all this, I never can admit that the president in himself has the power of appointment.
My colleague has gone further, to shew the dependance of this officer on the president. He says the necessity of appointing a secretary of foreign affairs arises from a natural defect in man; that if the president was able to administer all these departments, there would be no occasion of making provision by law. If the president had power superior to the limits of humanity, he might render his country great services; but we are not likely to have any such presidents; the constitution itself contemplates none; it makes provision for the infirmities of human nature; it authorises us to establish offices by law; and this is the ground upon which we stand; indeed this is the ground that was assumed yesterday by my colleague, when he said, that this officer was the creature of the law: If he is the creature of the law, let him conduct according to law, and let it not be contended that he is the creature of the president; because he is no further the creature of the president, than that he is obliged to give his opinion in writing when required. But it is said the president is responsible for the conduct of this officer: I wish to know what this responsibility is? Does it mean if a subordinate executive officer commits treason, that the president is to suffer for it? This is a strange kind of responsibility. Suppose in the case of the secretary of the treasury there should be a defalcation of the public revenue, is he to make good the loss? or if the head of the army should betray his trust, and sacrifice the liberties of his country, is the president's head to be the devoted sacrifice? The constitution shows the contrary by the provision made for impeachment; and this I take to be one of the strongest arguments against the president, having the power of removing one of the principal officers of government, that he is to bear his own responsibility.
It has been urged by the gentleman over the way (Mr. Scott), that the president is the man of the people, and their particular representative. Now how this can warrant those strong terms in which it has been asserted, I leave the committee to determine, when he can be elected by electors appointed by the state legislatures. Is the creature of the deputy of a deputy nearer to the people than the creature of their deputy? Would that gentleman consider the issue of his wife's maid nearer a kin to him than the issue of his wife.
The question before the committee must be decided on one of these two grounds. Either they must suppose this power is delegated particularly to the president by the constitution, or it is not. Let us examine these two cases. If gentlemen say that it is delegated by the constitution, then there is no use for the clause; but if it is not particularly delegated to the president by the constitution and we are inclined to authorise him to exercise this power, I would ask gentlemen, whether this is the proper way to do it? whether a little clause hid in the body of a bill can be called a declaratory act? I think it cannot. It looks as if we were afraid of avowing our intentions: If we are determined upon making a declaratory act, let us do it in such a manner as to indicate our intention. But perhaps gentlemen may think we have no authority to make declaratory acts. They may be right in this opinion; for though I have examined the constitution with attention, I have not been able to discover any clause which vests congress with that power. But if the power of making declaratory acts really vests in congress, and the judges are bound by our decisions, we may alter that part of the constitution which is secured from being amended by the fifth article; we may say, that the ninth section of the constitution, respecting the migration or importation of persons, does not extend to negroes; that the word persons means only white men and women. We then proceed to lay a duty of twenty or thirty dollars per head on the importation of negroes. The merchant does not construe the constitution in the manner that we have done. He therefore institutes a suit and brings it before the supreme judicature of the United States for trial. The judges, who are bound by oath to support the constitution, declare against this law; they would therefore give judgment in favor of the merchant. But, say congress, we are the constitutional expounders of this clause, and your decision in this case has been improper. Shall the judges, because congress have usurped power, and made a law founded in construction, be impeached by one branch, and convicted by the other, for doing a meritorious act, and standing in opposition to their usurpation of power? If this is the meaning of the constitution, it was hardly worth while to have had so much bustle and uneasiness about it. I would ask gentlemen, if the constitution has given us power to make declaratory acts, where is the necessity of inserting the fifth article for the purpose of obtaining amendments? The word amendment implies a defect; a declaratory act conceives one. Where then is the difference between an amendment and a declaratory act? I call upon the gentleman to point out what part of the constitution says we shall correct that instrument by a declaratory act. If gentlemen once break through the constitutional limits of their authority, they will find it very difficult to draw a boundary, which will secure to themselves and their posterity that liberty which they have so well contended for.
Several gentlemen rose to speak, but sat down again upon a call for the question, which seemed to be pretty general through the house; when Mr. Sumter arose, and begged gentlemen not to be so precipitate: If they considered the importance of the question, and the consequences of the decision, they would reflect more deliberately before they gave their votes. For his part he had sat patiently, and attended seriously to the arguments offered on both sides: He had received considerable information from the discussion which had already taken place, and he hoped that more light would still be thrown upon it, if gentlemen were not precluded from pursuing the subject by a precipitate call for the question. He hoped gentlemen would give further time, and let other members speak, who were desirous of delivering their sentiments.
The importance of this question requires mature deliberation; the more I have heard it discussed, the more convinced I am that the clause ought to be struck out. If we suppose (and gentlemen do suppose on this side of the question), that the power is vested in the president by the constitution, why should we intermeddle in the matter? Why are we officiously to intrude our opinions upon the president? Are we to suppose he is unacquainted with his duty, and is to be taught it by our superior wisdom? I apprehend that the electors who chose the president, thought him competent to understand his duty; what then can induce us to give our advice unasked? If he was in doubt, and was to apply to us for such a purpose, there might be some propriety in it. The convention, who formed this constitution, thought it would tend to secure the liberties of the people, if they prohibited the president from the sole appointment of all officers. They knew that the crown of Great Britain, by having that prerogative, has been enabled to swallow up the whole administration; the influence of the crown upon the legislature subjects both houses to its will and pleasure; perhaps it may be thought by the people of that kingdom, that it is best for the executive magistrate to have such kind of influence; if so, it is very well, and we have no right to complain that it is injurious to them, while they themselves consider it beneficial. But this government is different, and intended by the people to be different. I have not heard any gentleman produce an authority from law or history which proves, that where two branches are interested in the appointment, that one of them has the power of removal. I remember that the gentleman from Massachusetts (Mr. Sedgwick) told us, that the two houses, notwithstanding the partial negative of the president, possessed the whole legislative power; but will the gentleman infer from that, that because the concurrence of both branches is necessary to pass a law, that a less authority can repeal it? This is all we contend for.
Some gentlemen suppose, if the president has not the power by the constitution, we ought to vest it in him by law. For my part I very much doubt if we have the power to do this. I take it we would be placing the heads of departments in a situation inferior to what the constitution contemplates; but if we have the power, it will be better to exercise it than attempt to construe the constitution: But it appears to me, that the best way will be to leave the constitution to speak for itself whenever occasion demands.
It has been said, that the senate are merely an advisory body. I am not of this opinion, because their consent is expressly required; if this is not obtained an appointment cannot be made. Upon the whole, I look upon it necessary, in order to preserve that security which the constitution affords to the liberty of the people, that we avoid making this declaration, especially in favor of the president, as I do not believe the constitution vests the authority in him alone.
I believe there are very few gentlemen on this floor who have not made up their opinions; therefore it is particularly disagreeable to solicit their attention, especially when their patience is already exhausted, and their curiosity sated; but still I hope to be of some use in collecting the various arguments and bringing them to a point. I shall rather confine myself to this task, than attempt to offer any thing that is new. I shall just observe, that the arguments of the gentleman from Pennsylvania (Mr. Scott), which are complained of as being ridiculous, were arguments addressed to the understandings of the committee; my own understanding was enlightened by them, although they wore the garb of pleasantry. But to proceed to my main object.
The question, so far as it relates to the constitution, is this, whether it has vested the sole power of removing in the president alone, or whether it is to take place by and with the advice and consent of the senate? If the question of constitutionality was once dispatched, we should be left to consider of the expediency of the measure. I take it to be admitted on all hands, though it was at first objected to by a worthy gentleman from South-Carolina, that the power of removal from office, at pleasure, resides somewhere in the government. If it does not reside in the president, or the president and senate, or if the constitution has not vested it in any particular body, it must be in the legislature; for it is absurd to suppose that officers once appointed cannot be removed. The argument tending to prove, that the power is in the president alone by an express declaration, may not be satisfactory to the minds of those gentlemen who deem the constitution to be silent on that head. But let those gentlemen revert to the principles, spirit, and tendency of the constitution, and they will be compelled to acknowledge, that there is the highest degree of probability that the power does vest in the president of the United States. I shall not undertake to say, that the arguments are conclusive on this point: I do not suppose it is necessary that they should be so; for I believe nearly as good conclusions may be drawn from the refutations of an argument as from any other proof. For it is well said, that destructio unius est generatio alterius.[1
It has been said, and addressed with solemnity to our consciences, that we ought not to destroy the constitution, to change or modify it; nay, it has been inferred, that it is unnecessary and dangerous for us to proceed in this enquiry. It is true, we may decide wrong, and therefore there may be danger; but it is not unnecessary: we have entered too far in the discussion to retreat with honor to ourselves, or security to our country; we are sworn as much to exercise constitutional authority, for the general good, as to refrain from assuming powers that are not given to us; we are as responsible for forebearing to act, as we are for acting. Are we to leave this question undetermined, to be contended between the president and the senate? Are we to say, that the question to us is indissoluble, and therefore throw it upon the shoulders of the president to determine? If it is complex and difficult, it is certainly disingenuous in us to throw off the decision; besides, after so long a debate has been had, a decision must be made, for it never would do to strike out the words; as that would be deciding, and deciding against the power of the president.
It must be admitted, that the constitution is not explicit on the point in contest; yet the constitution strongly infers, that the power is in the president alone. It is declared, that the executive power shall be vested in the president. Under these terms all the powers properly belonging to the executive department of the government are given, and such only taken away as are expressly excepted. If the constitution had stopt here, and the duties had not been defined, either the president had had no powers at all, or he would acquire from that general expression all the powers properly belonging to the executive department. In the constitution the president is required to see the laws faithfully executed. He cannot do this without he has a controul over officers appointed to aid him in the performance of his duty. Take this power out of his hands, and you virtually strip him of his authority; you virtually destroy his responsibility, the great security which this constitution holds out to the people of America.
Gentlemen will say, that, as the constitution is not explicit, it must be matter of doubt where the power vests. If gentlemen's consciences will not let them agree with us, they ought to permit us to exercise the like liberty on our part. But they tell us we must meet them on the ground of accommodation, and give up a declaration, that the power of removal is in the president, and they will acquiesce in declaring him to have the power of suspension; but they should recollect, that in so doing we sacrifice the principles of the constitution.
It has been frequently said, that the power of removing is incidental to the power of appointing; as the constitution implies, that all officers, except the judges, are appointed during pleasure; so the power of removal may, in all cases, be exercised. But suppose this general principle true, yet it is an arbitrary principle, I take it, and one that cannot be proved; if it was denied, it could not be established; and if it was established, it is still doubtful whether it would make for the adverse side of this question or not; because it is dubious whether the senate do actually appoint or not. It is admitted, that they may check and regulate the appointment by the president, but they can do nothing more; they are merely an advisory body, and do not secure any degree of responsibility, which is one great object of the present constitution; they are not answerable for their secret advice; but if they were, the blame divided among so many would fall upon none.
Certainly this assumed principle is very often untrue; but if it is true, it is not favorable to the gentlemen's doctrine. The president, I contend, has expressly the power of nominating and appointing, though he must obtain the consent of the senate: He is the agent; the senate may prevent his acting, but cannot act themselves. It may be difficult to illustrate this point by examples which will exactly correspond; but suppose the case of an executor, to whom is devised lands, to be sold with the advice of a certain person, on certain conditions; the executor sells with the consent, and upon the conditions required in the will; the conditions are broken; may the executor reenter for the breach of them? or has the person, whom he was obliged to consult with in the sale, any power to restrain him? The executor may remove the wrongful possessor from the land, though, perhaps, by the will, he may hold it in trust for another person's benefit. In this manner the president may remove from office, though, when vacant, he cannot fill it without the advice of the senate. We are told it is dangerous to adopt constructions; and that what is not expressly given is retained. Surely it is as improper in this way to confer power upon the senate as upon the president; for if the power is not in the president solely by the constitution, it never can be in the president and senate by any grant of that instrument; any arguments, therefore, that tend to make the first doubtful, operate against the other, and make it absurd: If gentlemen, therefore, doubt with respect to the first point, they will certainly hesitate with respect to the other. If the senate have not the power, and it is proved that they have it not, by the arguments on both sides, the power either vests with the president or the legislature; if it is in the disposal of the latter, and merely a matter of choice with us, clearly we ought not to bestow it on the senate; for the doubt, whether the president is not already entitled to it, is an argument against placing it in other hands; besides the exercise of it by the senate would be inconvenient; they are not always sitting; it would be insecure, because they are not responsible; it would be subversive of the great principles of the constitution, and destructive to liberty; because it tends to intermingle executive and legislative powers in one body of men, and this blending of powers ever forms a tyranny. The senate are not to accuse offenders, they are to try them; they are not to give orders, but on complaint to judge of the breach of them. We are warned against betraying the liberties of our country; we are told that all power tends to abuse; it is our duty, therefore, to keep them single and distinct. Where the executive swallows up the legislature, it becomes a despotism; where the legislature trenches upon the executive, it approaches towards despotism; and where they have less power than is necessary, it approximates toward anarchy. We should be careful, therefore, to preserve the limits of each authority in the present question: as it respects the power of the people, it is but of little importance; it is not pretended that the people have reserved the power of removing bad officers. It is admitted on all hands, that the government is possessed of such power; consequently the people can neither lose nor gain power by it. We are the servants of the people, we are the watchmen, and we should be unfaithful in both characters, if we should so administer the government as to destroy its great principles, and most essential advantages. The question now among us is, which of these servants shall exercise a power already granted? Wise and virtuous as the senate may be, such a power lodged in their hands will not only tend to abuse, but cannot tend to any thing else. Need I repeat the inconveniencies which will result from vesting it in the senate? No. I appeal to that maxim, which has the sanction of experience, and is authorised by the decision of the wisest men; to prevent an abuse of power, it must be distributed into three branches, who must be made independent, to watch and check each other; the people are to watch them all. While these maxims are pursued, our liberties will be preserved. It was from neglecting or despising these maxims, the ancient commonwealths were destroyed: A voice issues from the earth which covers their ruins, and proclaims to mankind the sacredness of the truths that are at this moment in controversy. It is said, that the constitution has blended these powers which we advise to keep separate, and therefore we ought to follow in completing similar regulations; but gentlemen ought to recollect, that has been an objection against the constitution; and if it is a well founded one, we ought to endeavor all that is in our power to restrain the evil rather than to encrease it. But, perhaps, with the sole power of removal in the president, the check of the senate in appointments, may have a salutary tendency; in removing from office, their advice and consent is liable to all the objections that have been stated. It is very proper to guard the introduction of a man into office by every check that can properly be applied; but after he is appointed there can be no use in exercising a judgment upon events which have heretofore taken place. If the senate are to possess the power of removal, they will be enabled to hold the person in office, let the circumstances be what they may that point out the necessity or propriety of his removal; it creates a permanent connection; it will nurse faction; it will promote intrigue to obtain protectors, and to shelter tools. Sir, it is infusing poison into the constitution; it is an impure and unchaste connection; there is ruin in it; it is tempting the senate with forbidden fruit; it ought not to be possible for a branch of the legislature even to hope for a share of the executive power; for they may be tempted to encrease it, by a hope to share the exercise of it. People are seldom jealous of their own power; and if the senate become part of the executive, they will be very improper persons to watch that department; so far from being champions for liberty, they will become conspirators against it.
The executive department should ever be independent, and sufficiently energetic to defeat the attempts of either branch of the legislature to usurp its prerogative. But the proposed controul of the senate, is setting that body above the president; it tends to establish an aristocracy. And at the moment we are endangering the principles of our free and excellent constitution, gentlemen are undertaking to amuse the people with the sound of liberty. If their ideas should succeed, a principle of mortality will be infused into a government which the lovers of mankind have wished might last to the end of the world. With a mixture of the executive and legislative powers in one body, no government can long remain uncorrupt. With a corrupt executive, liberty may long retain a trembling existence. With a corrupt legislature, it is impossible; the vitals of the constitution would be mortified, and death must follow on every step. A government thus formed would be the most formidable curse that could befall this country. Perhaps an enlightened people might timely foresee and correct the error: but if a season was allowed for such a compound to grow and produce its natural fruit, it would either banish liberty, or the people would be driven to exercise their unalienable right, the right of uncivilized nature, and destroy a monster whose voracious and capacious jaws would crush and swallow up themselves and their posterity.
The principles of this constitution, while they are adhered to, will perpetuate that liberty which it is the honor of Americans to have well contended for. The clause in the bill is calculated to support those principles; and for this, if there was no other reason, I should be inclined to give it my support.
I think gentlemen ought to consent to strike out the words, even upon their own principles: for we ought not to blend the legislative with the executive powers; and surely a declaration like that contained in the bill, is an interference on our part with the executive department. Leave them to do their duty, and let us do ours.
The decision of this question depends upon the construction of a short clause in the constitution, in which is designated the power of the president. It is said he shall have power, by and with the advice and consent of the senate, to make treaties, provided two thirds of the senators present concur; he shall nominate, and by and with the advice and consent of the senate appoint ambassadors, other public ministers, and consuls, justices of the supreme court, and all other officers of the United States. Such strange constructions have been given to this advice and consent of the senate, which if agreed to will make the whole constitution nothing, or any thing, just as we please. If we can deprive the senate of their power in making treaties, and say with truth that they have no authority in the business, the legislature will become a dangerous branch of the government. So in the case of appointing officers, if it can be truly said that these heads of departments are the servants of the president alone, we shall make the executive department a dangerous one. I should not dwell so strongly on these two points, had not a gentleman from Massachusetts (Mr. Sedgwick) asserted that the power of appointing did not vest in any sense in the senate, nor that they were instrumental in making treaties; that all officers were the servants of the president, and he alone responsible.
Imagined the gentleman had misunderstood him, because he said when he was last up, that it was not conceded on this side that the power of appointing vested in the senate, nor in the case that appeared analogous, namely that of making treaties; but he did not deny that the concurrence of the senate was necessary to the completion of the act. He had undertaken to say that the legislature were at liberty to determine that an officer should be removable by the president, or whom they pleased; that he was absolutely the creature of the law, and subject to legislative discretion. He also said it was more plausibly contended that the power of removal was more constitutionally in the president, than in the president and senate; but he did not say that the arguments on either side were conclusive.
Did not desire to lay any stress upon arguments which he had misunderstood. He would therefore pass over what he had intended to say on that head; and he would endeavour to give such a construction to the clause he had read as would justify the house in striking out the words from the bill.
If the consent of the senate is absolutely requisite with respect to appointments, it is one thing; but if the president has no more to do than to ask their opinion, or to receive their advice, it is another thing. The latter appeared to him to be the sentiment of another gentleman from Massachusetts (Mr. Ames
<Mr. Ames rose and denied such an opinion. His idea was that the president was the agent, and the senate a check to regulate his agency.>
I shall take it then, with the consent of gentlemen, that the senate has an absolute controul over the president in cases of appointment: now, being thus appointed, how are officers to be displaced? On this point I undertake to give my opinion; though, in the first place, I must differ with one of the gentlemen on this side of the question (Mr. Smith of South-Carolina
). I do not admit that any man has an estate in his office. I conceive all officers to be appointed during pleasure, except where the constitution stipulates for a different tenure, unless indeed the law should create the office, or officer, for a term of years. After observing this, I must contend, with the honorable gentleman from Virginia (Mr. White), that the power of removal is incidental to the power of appointment. If it was the president alone that appointed, he alone could displace. If the president and senate, by a joint agreement, appoint an officer, they alone have the power to supercede him; and however any gentleman may say he doubts, or does not understand the force of this principle, yet to me it appears as clear and as demonstrable as any principle of law or justice that I am acquainted with. There is another method to displace officers expressly pointed out by the constitution; and this implies, in the clearest manner, that in all other cases officers may be removed at pleasure; and if removed at pleasure, it must be at the pleasure of the parties who appointed them.
Congress are enabled, by the constitution, to establish offices by law; in many cases they will, no doubt, vest the power of appointing inferior officers in the president alone; they have no express right, by the constitution, to vest in him the power of removing these officers at pleasure; yet no gentleman will contend, but inferior officers ought to be removable at pleasure. How then can the president acquire this authority, unless it be on the principle, that the power of removal is incidental, and the natural consequence of the power of appointing. If gentlemen will maintain consistency, they will be compelled to acknowledge the force of this principle; and if they acknowledge the principle, they must agree to strike out the words.
As my silence may be construed into a dereliction of my former sentiments, I beg permission of the committee to assure them, my opinion, on the question of constitutionality, has undergone no change whatever. Indeed the arguments of gentlemen in favor of the clause, have gone mostly on the point of expediency; and have tended rather to shew us what the constitution ought to be, than what it is.
An honourable gentleman (Mr. Madison) of great abilities, and who was a member of the convention that formed the constitution, has given us an interpretation of the first words in the second article, which requires some examination before it is admitted. He says that all powers incidental to the executive department, are vested in the president of the United States. What powers are executive, or incidental to the executive department, will depend upon the nature of the government; because some powers are vested in the executive of a monarchy that are not in an aristocracy, and in the executive of an aristocracy that are unknown in a democracy. The legislatures of republics appoint to office; this power is exercised by the executives of monarchies. In England the king appoints all officers; and do gentlemen contend, that executive powers vest in the president? The king confers titles of nobility, but the constitution prohibits the United States from granting any. Does it restrain the president, or congress, from the exercise of this executive power? I believe they restrain congress; if so, the constitution did not contemplate that the president should exercise all executive power, or the constitution did not understand the power of conferring titles as an executive power. Hence what I contend for is evinced, that executive powers must take their complexion from the nature of the government. Can the president establish corporations? Can he prevent citizens from going out of the country? He cannot. Yet these powers are exercised, as executive powers, by the king of Great Britain. There are a variety of other powers exercised, as executive powers, to which the president is not entitled. From this I am led to believe that the gentleman may be wrong, when he considers the power of removal as an executive power, and incidental to the prerogative of the president. For my part I conceive the president is to exercise all executive powers granted in the constitution, as the legislature is to exercise all legislative authority, according to these words in the first article: "All legislative powers herein granted, shall be vested in a congress of the United States."
However solemnly the contrary doctrine may be insisted upon, however ridiculously our arguments may be treated, I hope we shall preserve a due attention to the reason and nature of things, and to the constitution; and not suffer ourselves to be forced or laughed out of our principles. Ridicule is said to be the test of truth; and, to be sure, that touch-stone has been applied, with what success I leave gentlemen to determine. For my part, though I admit the gentleman's talent at caricatura, yet I should never think of employing him at portrait work.
The extreme desire which gentlemen have manifested to retain this clause, makes me suspicious that they do not themselves think there is good reason to believe the president would think of exercising the authority which they are so desirous of giving him to understand that he ought; to my mind it is a strong proof that gentlemen do not think the power is vested in him by the constitution. If gentlemen were satisfied, that the constitution gave this power to the president, they would not hesitate, at the request of so numerous and respectable a part of the house, to strike out the words; I say they would not hesitate to do this, because they did not hesitate to strike out similar words. When the business was first brought before the committee of the whole, gentlemen will recollect, that the motion for establishing the departments of finance, war, and foreign affairs was first introduced, it contained a clause declaring, that the officers should be respectively appointed by the president, by and with the advice and consent of the senate. Gentlemen, who are now in the minority, declared such a clause to be unnecessary; because the constitution had already given the power. The solidity of this reasoning was admitted by a majority of the house at that time; even the honorable gentleman from Virginia (Mr. Madison) acquiesced in striking out the words. If gentlemen wish to be considered consistent, they will consent to strike out the words, "to be removable by the president;" provided they are of opinion, that the constitution vests this authority in the president alone. If it is not vested by the constitution in the president alone, will gentlemen undertake to vest it in him by law, when it is so well contended that the constitution vests it in the president and senate?
The question now seems to be brought to this, whether it is proper or improper to retain these words in the clause, provided they are explanatory of the constitution. I think this branch of the legislature is as much interested in the establishment of the true meaning of the constitution, as either the president or senate; and when the constitution submits it to us to establish offices by law, we ought to know by what tenure the office should be held; and whether it should depend upon the concurrence of the senate with the president, or upon the will of the president alone; because gentlemen may hesitate in either case, whether they will make it for an indefinite or precise time; if the officer can be removed at discretion by the president, there may be safety in letting it be for an indefinite period. If he cannot exert his prerogative, there is no security even by the mode of impeachment; because the officer may intrench himself behind the authority of the senate, and bid defiance to every other department of government. In this case the question of duration would take a different turn. Hence it is highly proper that we and our constituents should know the tenure of the office. And have we not as good a right as any branch of the government to declare our sense of the meaning of the constitution?
Nothing has yet been offered to invalidate the doctrine, that the meaning of the constitution may as well be ascertained by the legislative as by the judicial authority. When a question emerges as it does in this bill, and much seems to depend upon it, I should conceive it highly proper to make a legislative construction. In another point of view it is proper that this interpretation should now take place, rather than at a time when the exigency of the case may require the exercise of the power of removal. At present the disposition of every gentleman is to seek the truth, and abide by its guidance when it is discovered. I have reason to believe the same disposition prevails in the senate. But will this be the case when some individual officer of high rank draws into question the capacity of the president, with the senate, to effect his removal? If we leave the constitution to take this course, it can never be expounded until the president shall think it expedient to exercise the right of removal, if he supposes he has it; then the senate may be induced to set up their pretensions: And will they decide so calmly as at this time, when no important officer in any of the great departments is appointed to influence their judgments? The imagination of no member here, or of the senate, or of the president himself, is heated or disturbed by faction: If ever a proper moment for decision should offer, it must be one like the present.
I do not conceive that this question has been truly stated by some gentlemen. In my opinion it is not, whether we shall take the power from one branch of the government and give it to another— but the question is, to which branch has the constitution given it. Some gentlemen have said that it resides in the people at large; and that if it is necessary to the government, we must apply to the people for it, and obtain it by way of amendment to the constitution. Some gentlemen contend, that although it is given in the constitution as a necessary power to carry into execution the other powers vested by the constitution, yet it is vested in the legislature. I cannot admit this doctrine either; because it is setting the legislature at the head of the executive branch of the government. If we take the other construction, of the gentleman from South-Carolina, that all officers hold their places by the firm tenure of good behavior, we shall find it still more improper. I think gentlemen will see, upon reflection, that this doctrine is incompatible with the principles of free government. If there is no removability but by way of impeachment, then all the executive officers of government hold their offices by the firm tenure of good behavior, from the chief justice down to the tide-waiter.
interrupted Mr. Madison; and said that he had admitted that inferior officers might be removed; because the constitution had left it in the power of the legislature to establish them on what terms they pleased— consequently, to direct their appointment and removal.
Had understood the gentleman as he now explained himself. But still he contended that the consequences he had drawn would necessarily follow; because there was no express authority given to the legislature in the constitution to enable the president, the courts of law, or heads of departments, to remove an inferior officer; all that was said on that head was confined solely to the power of appointing them. If the gentleman admits, says he, that the legislature may vest the power of removal, with respect to inferior officers, he must also admit that the constitution vests the president with the power of removal in the case of superior officers; because both powers are implied in the same words; the president may appoint the one class, and the legislature may authorise the courts of law or heads of departments to appoint in the other case. If then it is admitted that the power of removal vests in the president, or president and senate; the arguments which I urged yesterday, and those which have been urged by honourable gentlemen on this side of the question for these three days past, will fully evince the truth of the construction which we give, that the power is in the president alone. I will not repeat them, because they must have full possession of every gentleman's mind. I am willing, therefore, to rest the decision here; and hope that it will be made in such a manner as to perpetuate the blessings which this constitution was intended to embrace.
The more I hear on this all important question, the more I am alarmed. Gentlemen fear much from a blending of the legislative and executive authorities; and I do not blame their fears, for they are but too well grounded; but then they ought not to press for the interference of the legislature in a matter which they acknowledge wholly to be within the executive department. I think upon their own principles; they ought to join us in striking out the clause, and leave this question where it ought to be. There is no fear but a proper interpretation will be made, if the chief magistrate is a friend to his country. He will exercise his authority when it is required; and if he judges himself to be possessed of the power of removal, he will use it, and submit it to his country to judge whether he was vested with it or not.
But I am astonished at the arguments of gentlemen, who contend, that granting this authority to the president is the best security to public liberty. Has any state in the union, ever thought it necessary to put such a power into the hands of their chief magistrate, in order to secure the liberties of the citizen? If it is that great security which some gentlemen seem to think, it is strange that it should never as yet have been thought of under the state governments. If no state has yet given such a power, I think we are setting a bad example to begin it; if any have done it we do ill not to set them a better.
When I seconded my colleague's motion for striking out these objectionable words, I contented myself with saying nothing more than that I seconded his motion. This I did, sir, to save time and avoid a repetition of what I had said when the subject was before discussed. I lay it down as a rule, sir, not to say more words here than are absolutely necessary to explain the motives which induced me to vote in a certain manner; or which I humbly conceive may serve to elucidate the subject, and induce some members to vote with me. But, sir, on the present occasion as much has been said, and repeated against the motion which I seconded, and as it is a question of great importance, I must again break through the rule which I had imposed on myself, give a loose to my imagination as others have done; if my laconic method of arguing does not strike the house, the members who dislike long speeches must excuse me for being troublesome to them.
I cannot agree to let these words stand as part of the bill; because I think them incompatible with the spirit if not with the letter of the constitution; as better calculated to excite the jealousy of republics, than to secure the due administration of the affairs of our new republics; and as directly tending to confirm the suspicion of those who have asserted that the new government would run instantly headlong into a monarchy. Having this idea of the matter, and being persuaded at the same time, that the heaped-up powers on the chief magistrate especially as the bill proposes, does not render him more responsible; but on the contrary, by increasing his importance, and multiplying his dependants, directly tends to diminish his responsibility, and secure him if not against suspicion at least against charges of delinquency. To the argument which has been urged against the amendment, which is drawn from the necessity of having energy in government, dispatch, secrecy and decision; I think all these advantages may be had without putting the respectable heads of departments in a situation so humiliating, that I can scarcely suppose a man of true independent spirit, and fit to be in such an office, could submit to. This doctrine, if pushed as far as it will go, will lead to great lengths; to imprisonment, nay to execution. Why may it not be said that the president may remove a judge from his bench, or a colonel from his regiment? Does it not appear that much mischief may be done by a corrupt judge or by a treacherous or cowardly colonel; yet the former must be impeached, and the latter tried by a court martial? In the latter case indeed, as commander in chief, he may arrest, secure and decide. And here I confess I should see no impropriety in those who wish to guard against the evils they talk of, if they were to move to amend the clause by proposing that the president should have the power to arrest and imprison as well as remove; nor do I see any thing amiss in declaring in what manner an officer who is to be appointed under a law shall be removed. The law may with propriety say what shall be the qualification, and what the disqualification of the officer. But, sir, I wish in the first place to get rid of an expression which I think will furnish arms to our enemies, to attack our government with fresh vigour, and will discourage our friends; and which must serve to break down the spirit of our officers of state, and make them crouch before the president, as the heads of such departments at Constantinople now do before the grand seignor.[2
] I see here no prerogatives; strike out the clause sir, and you leave your officers responsible to the president; but not abject tools to him. You leave him responsible to congress, and to our fellow-citizens, his constituents. If he see cause it will be his duty to lodge information to ground an impeachment; and in the mean time he will take such measures as the public good may require. If treason be committed, a commitment on impeachment and trial may follow.
The mischief which is past, the president may retract. He may cause it to be punished by constitutional means; and by the controuling power given in the bill itself, in my opinion he may prevent a repetition of the mischiefs. Sir, it is to our infant republic— on which too the eyes of the whole world are fixed, on which the future prospect of the happiness of mankind depends— of great consequence to avoid every step which may even appear to be leading it into the fatal parts of tyrannical government. Every sentence of our laws, sir, should be carefully guarded against expressions which may tend to increase the insolent hopes of the enemies of our government, and the anxious fear of its friends; every word ought to be expunged from our laws which can have that tendency, if not absolutely and evidently necessary for the public good.
Sir, the arguments in favor of the clause which I wish to expunge, are such as have laid the foundation of tyranny in other countries. The doctrine of energy in government, as I said before, is the true doctrine of tyrants. I know, sir, nevertheless, that here it is the true doctrine of freemen, of patriots, of men who wish only to see it applied to support that government which they think is wisely calculated to preserve the liberties of their country. But, sir, I warn those patriots against the use of arguments which above all others may, to their grief and mortification, be cruelly turned against them. For my part, I shall ever prefer the security of my fellow citizens, whether in or out of office, to a rigid observance of the rules of office; and an independent spirit in our officers, to a prompt servility. Energy of government may be the destruction of liberty; it should not, therefore, be too much cherished in a free country. A spirit of independence should be cultivated— a sense of honor and virtue nourished with care; and though some irregularities might take place, they would be such as could not endanger public liberty.
I wish to strike out the clause too, sir; because we shall leave the constitution to the proper expositors of it, and because it ill becomes the representatives of a free people, in their first act, to shew an eagerness to extend the powers of the executives.
The friends of the clause support it, because it tends to make the president responsible, and prevents the senate from exercising a power not vested in them by the constitution, which they think has already invested them with too much power; they require singleness in the executive to extend the energy of government. Need I repeat, that this energy is oftener employed against the liberty of a people than in favor of it. The liberty and security of our fellow citizens is our great object, and not the prompt execution of the laws. Indecision, delay, blunders, nay villainous actions in the administration of government, are trifles compared to legalizing the full exertion of a tyrannical disposition. Good God! What! authorize in a free republic, by law too, by your first act, the exertion of a dangerous royal prerogative in your chief magistrate? What! where honor and virtue ought to be the support of your government, will you infuse and cherish meanness and servility in your citizens, and insolence and arbitrary power in your chief magistrate, when you know that thousands of virtuous citizens are dissatisfied with your government, because they think they see the seeds of monarchy in it; and two whole states have refused to unite with you, because they think your government dangerous to their liberties, will you openly before their faces, in a solemn act of congress, insert words which fully justify their opinions and fears?
Let me ask again, does increasing the power, and multiplying the dependants of the president, diminish his responsibility? But how is the president responsible for the conduct of officers which he appoints with the advice of the senate? Why not, if the constitution were silent, as some say, make the senate responsible for their advice in this case; and say, that the president, with their advice and consent, may suspend and deprive? Why should they, of whose persons gentlemen are so much afraid, be screened from censure, for the mal-practices of heads of departments, more than the president? If the clause remain in the bill, the case may stand thus: The senate may concur in appointing an able, faithful officer; the president may remove him, for not being subservient to his views: so that here is a good method to procure a good officer, and a summary process to get rid of him at the same time; the sure means of producing resentment and animosity between the president and senate, and taking away all responsibility from the latter, and diminishing that of the former. Thus then we see, the doctrine of responsibility fails to support the clause.
It was repeatedly said, strike out the clause, and you give the senate the power they ought not to have. How does this give a power? It may leave the constitution at large, and that may give the power; and, indeed, those gentlemen seem to be aware that it does, or they would not say, that the senate will have the power, if we do not take it away. The truth is, the constitution does give that power, and wisely gives it, to the senate, to secure the inhabitants of the respective states. It is for no purpose to say, that nations do not blend or separate the power, in the manner we have done by our constitution, and to draw inferences from them that it is improper; because England, and the other nations of Europe, are totally different in their constitution from confederated America.
It is said the officers ought to be commissioned durante bene placito et ne dure se bene gesserint;[3
] a monstrous doctrine. As to inferior officers, who we are told must also be impeached, congress have a constitutional right to empower the president to appoint, and I suppose to remove also, not that the power necessarily follows appointment.
The call for the question was pretty general through the house, and several gentlemen were up to speak; when Mr. Sumter rose, and begged the patience of the committee until to-morrow. He appealed to their candor on the occasion; and hoped other gentlemen, who were disposed to speak, would be indulged with the privilege: he therefore moved, that the committee should rise and report progress.
Mr. Lee hoped the committee would not rise, and that the subject would be decided. He did not think it possible it could receive any further elucidation. Gentlemen should remember it had been, on a former occasion, one whole day under consideration, and now again it had been three days; this was surely allowing time enough for discussion; besides, if it was not, gentlemen would have a further opportunity of delivering their sentiments; for the decision now will not be final.
Mr. Stone said he had some further observations to make on this subject, but he would not press the committee to hear him; if they were inclined to indulge him on this point to-morrow, he should be sensible of the favor.
Mr. Madison said, that he did not wish to prescribe the privileges of members to a hearing; if the gentleman was disposed to deliver any further sentiments to the committee, he should not insist upon a decision at this time.
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 8 January 2018]