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

Gazette of the United States

Continuation of the debate on the question, Whether the Secretary of the department of foreign affairs, shall be removable by the President.
Mr. JACKSON: I am well aware Sir, how irksome it must be to have another member rise upon this question; but when I consider that the liberties of this country may be suspended upon the decision, I feel it my duty to trespass once more on the patience of the committee: I shall make but a few remarks. Mr. Jackson then adverted to the arguments which had been so strenuously urged to prove the division, and distinction of the powers of the several branches, and added, I deny Sir, that there ever was a government in which the powers were not blended in a greater or less degree. Shall we find it in Rome, Carthage, or in any of the ancient governments? Let us turn our eyes to Britain, or the other powers of Europe— there we find that the will of the executive gives law to the legislature— Let us look into our constitution, there we see the executive has a qualified legislative power— his signature is required to complete the acts of government— he may adjourn the House from time to time— Will gentlemen still contend that the executive power is distinct? Will they explain away these truths? I call upon gentlemen to shew the necessity of delegating this power; it cannot be maintained upon any principle, but that of rendering the President completely independent of all controul by the legislature. Gentlemen have come forward with their spectres. The western territory was one, and molasses was another of those frightful images; but now there is nothing to alarm our apprehensions— all is perfectly safe— I wish that gentlemen were more consistent with themselves— Let us again revert to ancient history— Carthage lost her liberties by taking power from one branch to confer it upon another,[1] and the accumulation of power in one particular branch has swallowed up the liberties of most of the ancient republics. It has never yet been proved, that the power which appoints, is not the power to remove. I think the constitution has settled this question.
The President has already the sword; there will be a time when America will have an army— I do not confine my remarks to the present period— Let us look forward, when a different character from that which now presides, may be in the chair— The purse strings will be in his hands, and these with an army at his command, will enable him to lay prostrate the liberties of America— this is no spectre; experience of past ages confirms the observation, that a wise people, will never let their liberties lye at the meer will and pleasure of any man. Some gentlemen say there is no danger, as the President is chosen from the mass of the people— others deny this— how shall we reconcile these opposing opinions?
I call upon gentlemen to shew that there is no check upon the President provided in the constitution.
The celebrated Mr. Wilson,[2] is of opinion, that the Senate is designed as this check. This sentiment is confirmed by other writers of reputation: Sir, I shall add nothing farther, but my assent to the motion for striking out the clause.
Mr. BALDWIN: I have felt, Sir, an unusual anxiety during the debate upon this question, as I consider a proper decision upon it, of almost infinite consequence to the government.
The main objection to the clause is, that we shall violate the Constitution, by giving this power to the President— we have been reminded of our oaths, and with great solemnity warned against this violation; but in my opinion, gentlemen should alter their mode of expression, and say, that their constructions of the Constitution will be violated.
The principal ground of opposition to the Constitution, as I am authorised from the best information to say, was the association of the President with the Senate: Shall we not do away this objection, by drawing a line of separation as far as lies in our power?
It has repeatedly been said, that the power that appoints should be the only power to remove; but I deny the consequence; it does not follow; the judges only are to be removed by the Senate; the power of removal does not, and ought not to exist in the power that appoints.
This principle is not pursued by the Senate itself in the Judiciary Bill; there the power that appoints the inferior officers of the Federal Courts has not the power of displacing those officers.
If this had been the sense of the Convention who framed the Constitution, the clause, "to be removed in like manner," would have been added.
The maxim among the wisest legislators is, that the respective branches should not be blended any further, than is necessary to carry their separate powers into more complete operation.
If experience should point out the necessity of uniting these powers, it may be done; but what is the consequence apprehended from the exercise of this power? Why, gentlemen are afraid that the President may turn out a worthy man! It is his life, says the gentleman from New-Hampshire.
But the President cannot keep in an unworthy officer; he may be impeached by this House: This is an effectual check.
If the Constitution had provided for every contingency, instead of being contained in a sheet of paper, it would have swelled to a folio volume.
But the President may turn out so many, that the Senate will find it difficult to procure officers.
It should be remembered, that if a misunderstanding should arise between the President, and the head of a department, it is necessary that he should be removed; but every thing we hold dear is to be prostrated by the power of the President!
He is however to be elected every four years, and the jealousy of this people is ever alive to catch at every defect, and we always have the power of impeachment in our hands; but as it is a doubtful clause, as observed by the gentleman from Connecticut, we ought not to meddle with it: This is a bad sentiment in its operation: The great division of the Committee proves it is a doubtful question! We then are the disinterested branch: The President and Senate are the parties: It rests with us to decide: The Senate will receive with pleasure our decision on this question: We are fellow laborers: we are all trying to raise a noble structure upon the same foundation. I do not wish we should leave this question, I wish this Bill may go up with our full determination— the Senate will receive it with candour. The Judiciary is the constitutional judge of our laws, and they will decide upon this, and I think they will consider themselves obliged by our decision. It would be a criminal pusillanimity to retreat from this decision.
Mr. SILVESTER: In yesterday's debate, Sir, we had the sublime, the marvellous and the pathetic— monsters with heads, and monsters without heads. It has been said, that we have no right to give a construction of the constitution; if to decide this question is contrary to the constitution, and can be made to appear so, I shall be against it; but if it is doubtful, it is our duty to give an opinion: If there is nothing contrary to the constitution, the question is, how we shall decide?
By virtue of the constitution, the executive power is vested in the President— the constitution is explicit as to appointments, and by that the power of the President is eclipsed— We have a right to create such officers by the constitution— If we have this right, we certainly have a right to modify the laws for their removal; and have a right consequently to delegate that power; and where can it be deposited with greater security? But it is said that the Senate must concur in the removal— this is a matter of opinion as to the expediency of the power residing in the President; it is to be considered, that this is an high officer; it may be necessary for an immediate discharge, but in order to an impeachment, the vote of this House must be obtained; this would require time, and if officers are not to be removed but by impeachment, they have an inheritance in their office.
The present is the time for us to decide this important question; we are free and unbiassed; any errors may be rectified by the judges; that the President should have the power to appoint, and not to displace, would in my opinion, defeat his power to carry the constitution, so far as lays with him, into operation.
Mr. STONE: I consider, Sir, that the decision of this question will give a leading feature to the administration of the government.
The people, Sir, have adopted this constitution because they thought that it would more effectually secure their liberties— all the amendments which have been proposed, go to a more perfect establishment of their rights.
Our object should be to carry the constitution into execution upon its true principles, without considering whether there is too much power here, or too little there. It is not an indifferent thing (as has been asserted) that because there is a certain quantum of power to be exercised, how that power is appropriated. I cannot think that the associated powers of the President and the Senate, is so monstrous as some gentlemen have supposed; the association constantly takes place: In cases of treaty, this association is requisite— what injury is apprehended? If there is that danger predicted by gentlemen, we are in a hazardous situation?
The constitution has designated a balance, the President is to appoint; the Senate to approve; it remains to carry this balance throughout. This proposed delegation of power destroys the balance, for the President may defeat by removals these joint appointments.
As I respect the constitution, I would distribute the powers as nearly as possible as the constitution has done.
The separation of the powers maintained by some, is not a principle in the constitution— it is contended by writers on government, that the powers in general should be separated, and properly; but in the present case, there is an exception, and we ought to follow that exception, step by step.
Go through the constitution, and you do not find, that the President has a single power to appoint— The convention may have done wrong; but they did not think it safe to trust even the appointment of inferior officers but by law— It is said that the power of removal is in the President, and we cannot take it from him— this must be by implication; I never was fond of implications. Here Mr. Stone dilated upon the absurdity and danger of implications, and then proceeded: In all the departments, there are officers to be appointed, there is the army, the navy, the mint; who is to have the power of making all these appointments? It is said, that the President is the executive, and may discharge all these officers by himself, what follows? In absolute governments there is no doubt about implications; they always suppose that the monarch is unrestrained. The executive contended for must be defined, and then there will be no difficulty about implications. I think there are good reasons to be given why the Senate should have a voice in appointments and removals— in some views the Senate are more responsible than the President— the Senate are the watchful guardians of the constitution— the electors of the President cannot be this guard, they are scattered through the States.
How far above the level of the people do they exalt the President, who think it derogatory to his dignity, to institute an enquiry into the conduct of an officer below him. We seem to forget the confidence we ought to have in the constitution— Do you place more confidence in the President than in the heads of departments, and the Senate together?
We have expended our time, blood and treasure to very little purpose, if we do not think that liberty and safety constitute the real dignity of human nature. I think there is more real dignity of soul in a common peasant of America, than in a prime minister of Europe. Mr. Stone added several other observations, and concluded with approbating the motion for striking out the clause.
Mr. VINING: I join with every gentleman in the idea of the very great importance of this subject, as it respects the constitution and the future operations of the government.
It has been sufficiently demonstrated by gentlemen, that the executive and legislative powers should be separated: But it has been asked, where does the government exist, whose powers are not blended? To answer this question fully would lead us into too extensive a field— but granting that in most countries this division of power is but faintly defined, yet in Great-Britain, where the science has been carried to the greatest perfection, hitherto known, and where the idea of checks is a leading feature in the system, there the powers are no farther blended than is necessary.
I am pleased with the great concern which gentlemen discover for liberty— upon the same principle I contend for the necessity of the clause. What has been the consequence of encroachments upon the executive in other countries? Anarchy, confusion, and the loss of that liberty which is now said to be at stake. The shortness of the time for which the President is elected is a sufficient preventative from abuse of power; but will you in order to prevent him from doing harm, deprive him of the power to do good? No instances can be adduced from history to prove the infringements of the executive---but on the contrary the weakening of the executive by taking away such powers as are requisite, has constantly been followed by anarchy and despotism.
It has been said, that it is cruel, to take away an office without an impeachment, a trial, & c. but the delays of impeachments will render removals almost impracticable: Besides, let us reflect upon the train of disagreeable, and perhaps fatal consequences to the government, which may arise from an adherence to this mode. Suppose there should be parties in the Senate; and they will exist: How easy will it be to support an unworthy officer in his place, through the agency of such a party in the Senate; where decisions will be made by ballot, and where every man's vote will be a secret: What cabals and undue influence will be the consequence! In what a situation will this place our chief magistrate? Will this be agreeable to the spirit of the constitution? I think not. Let us remember that this government, like HERCULES, rose brawling[3] from the cradle— let us avail ourselves of the practice, the wisdom and experience of former ages, and of other countries, and bring it to maturity.
The Senators— the representatives of the sovereignties of the States, are not chosen by men specially appointed for that purpose; but the President is chosen by electors who are chosen immediately by the people for that express design— hence the Senate is an improper body to interfere with the executive.
The powers of the Legislature ought to be commensurate to the objects of legislation: It is conceded that this act is a proper legislative act; but except it can be carried into compleat operation upon the principles of the constitution, it is a nullity.
The Debate upon this subject was extended to a greater length than any which preceded it— some observations were added to those which we have given, by several other gentlemen, when the question was determined, . . . .
    [1.] In the eighteenth century, Carthage was seen as an outstanding example of a long-lasting, stable republic. Credit for this was given to its distribution of power among three groups that balanced and assisted one another: the two suffets or supreme magistrates, the senate, and the people. Polybius gives as one of the chief reasons for the ruin of Carthage the fact that the people upset this balance by demanding and taking over too much power from the other authorities.
    [2.] James Wilson (1742-98) of Philadelphia, a Federalist spokesman, had been instrumental in the creation of the presidency at the Federal Convention. See also The Diary of William Maclay and Other Notes on Senate Debates, p. 100.
    [3.] Gazette of the United States, 4 July, corrected this word to read "brawny."