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Documentary History of the First Federal Congress

The Daily Advertiser

 22 June 1789 
Mr. Madison . I feel the importance of the question before us, as our decision will be a permanent exposition of the constitution in this point, and as on this decision will depend, in a great degree, the genius and character of our government. On the determination which will now take place, will depend perhaps the preservation of the government on that equal balance which the constitution designed. It is therefore of the utmost importance that we weigh the subject with the most cautious deliberation. I own to you, I feel an anxiety on this subject. I feel anxious, because I am called on to give my voice on a question which may affect the fundamental principles of the government. But all that I can do on an occasion of this kind, is to weigh the arguments which have been advanced on both sides, with an honest desire to discover the truth, and to form my opinion under the influence of an attachment to that spirit of liberty, which this constitution is happily calculated to preserve.
Several constructions have been put on the constitution, relative to the point in question. It has been contended that the power of displacing from office is subject to a legislative discretion, which is to create and to modify. At first sight, sir, this doctrine appears considerably plausible. But when I consider that a prime object of the constitution was to maintain a marked distinction between the legislative, executive, and judicial departments, and when I consider that the legislature, on this principle of discretion, may transfer at their pleasure powers from one department to another— that they may narrow the executive, confer new powers on the Senate, and enlarge the general mass of their own authority; when I consider the consequences of this doctrine, and compare them with the true objects of the constitution, I own I cannot subscribe to it.
Another doctrine, which has a very respectable patronage, is that when an officer is appointed, he can be removed only by impeachment, for some misdemeanor in office. This would give a permanency to the executive system, which would be more incompatible with the genius of republicanism than any principle that could be advocated. The danger to liberty, the danger of despotism has never been found to spring so much from the difficulty of procuring virtuous men to fill the offices of government, as the difficulty of displacing those who have been found unworthy of trust. If it be said that an officer when once appointed, should not be removed without a crime and conviction, I would be glad to know what security there would be for a faithful administration of the government. Every individual between the highest and lowest link in the long chain of executive magistracy, would find a security, which will would greatly relax his fidelity in the discharge of his duty.
A doctrine which stands most in opposition with the principle we have contended for, is, that the power to make appointments implies in its own nature a power of removal as incidental to it. If nothing more was said in the constitution than that the President, with the Senate, should appoint officers, there would be force in the observation, that the power of dismissing results from the power of appointing. But, sir, there is another part of the constitution as explicit as that on which the gentlemen found their doctrine: It is that which declares that the executive power shall be vested in the President of the United States. The association of the Senate with the President in the exercise of one particular executive function, is an exception to this general principle; and exceptions to general rules are ever taken strictly. But there is still another part of the constitution, which in my judgment, clearly favors the construction I give. The President is required, sir, to take care that the laws be faithfully executed. If the faithful execution of the laws be required at the hands of the executive magistrate, it should seem that in general the constitution must have intended that he should have that species of power in all its extent, which is necessary to accomplish the purposes of the department, and to enable him to answer for their accomplishment. Now if the officer, when once appointed, is not to depend for his official existence upon the President, but upon a distinct body, (for where there is a mutual negative, either alone can secure this dependence) I do not see how the former can provide for the execution of the laws. It is true, that by a circuitous mode he may obtain an impeachment, and gain the concurrence of the Senate; but will not this deprive him of that controul which is essential to a responsibility for the administration?
There is another maxim which ought to direct us in expounding the constitution. It is the opinion of all great civilians and political writers, that the great departments of government ought to be preserved separate and distinct. That in any case where they are blended together, it ought to be under special restrictions and guards. This is laid down as essential to liberty. When therefore we review the several parts of the constitution, which provide that the legislative powers shall be vested in two houses, and the executive in a President, with certain exceptions, we must conclude that the intention of the constitution was, that these departments should be kept perfectly separate, where they were not expressly mixed, and that we ought to construe the instrument in such a manner as to confound them as little as possible.
Sir, every thing which relates to the merits of the question, as distinguished from a constitutional question, seems to turn on the danger of such a power vested in the President. But when I consider the checks which will attend the President in the exercise of it, I confess, I feel no apprehensions. If there are any dangers incident to that power, they must belong to it wherever it exists, whether you place it in one body or another. I will not repeat what has been said with respect to the mode of the President's election, and the extreme improbability that any citizen will be selected from the common mass, who is not distinguished by this virtue and worth. In this alone we have an unusual security for the faithful exercise of the power. But leaving that out of the question, let us consider the obligations and restraints he will feel when placed in that exalted responsible station. Perhaps, as has been observed, the great danger arises from the continuance of unworthy men in office; but so is the system contrived that tho' the President may be vested by law with a power of removal, he is restrained and prevented from continuing a corrupt officer. For if an unworthy man be not displaced by the supreme executive, the house of representatives may at any time impeach him, and he may be removed in spite of the President. But it is contended that the danger consists in this, that the President may remove from office a man whose merit requires that he should be continued in it. Let us consider what motives he can have for such an abuse of power, and what will be the checks on him. In the first place, he himself will be impeachable for the wanton removal of a meritorious officer, and will himself be removed from his high trust. Again, what can be his motive for displacing a worthy man? It must be with the expectation of filling the vacancy with some unworthy favorite. Can he accomplish this himself? Must he not consult the Senate? They may reject the person he nominates. Sir, he can have no security for success in his projects. The Senate will judge of them by the merits and character of the person removed; and having been guilty of one obnoxious measure, he will himself thereby furnish a check to his own design: But let us consider the consequence. The injured man will be supported by the public opinion. The community at large will take side against the President— and combinations will be produced which may effectually prevent his re-election. To displace a man of high merit, and one who from his station may be supposed a man of extensive influence, will excite jealousies, and create an interested opposition in the system, and in the people. He will have his friends, his dependents, and the public sympathy on his side, and if it should not give birth to an impeachment in the legislature, it would probably produce a fatal impeachment before the community at large. But suppose the persecuted individual should not be able to accomplish the object of his resentment in this way, there are other modes in which he can be very troublesome to the President. If he has not influence enough to direct the vengeance of the whole community, in all probability he will be able to obtain appointments in one or the other branch of the legislature, and possessing weight and talents, he will be able at least to give him considerable disturbance. We have seen in the history of other nations, examples that justify the remark I now make. Though the prerogative of the British King is great, and his resources of influence extensive and commanding, there have been examples of his ministers being opposed, and removed by the decision of one branch of the legislature. If this be the case with a hereditary monarch, possessed of such high prerogatives, and furnished with such means of influence, can we suppose that a President of the United States, elected for four years only, dependent on the popular voice, impeachable by the legislature, and not perhaps distinguished in point of wealth or personal talents from the head of the department himself, can we suppose, I say, that in defiance of all these considerations, he will presume wantonly to dismiss a meritorious and virtuous officer from his service? I own it is an abuse of power which exceeds my imagination, and of which I can form no rational conception. But let us not contemplate the dangers only on one side. Vest this power in the Senate, jointly with the President, and in my opinion you destroy that great principle of responsibility, which was intended for the security of liberty itself. Vest the power in the President, the chain of dependence is this— The officer of the lowest grade, the officer of the middle and higher grades, will be dependent on the President, and he again on the people— The chain of security therefore terminates in the general community, who will possess, in aid of their great original power, the decisive engine of impeachment. Take the other supposition, that the power should be vested in the Senate, upon the principle that the power to displace is necessarily connected with the power to appoint. Subordinate appointments may depend upon the heads of departments— and they must therefore remove. I see here a very different prospect present itself. Where shall we find the responsibility? Where does it terminate? If you begin with an inferior officer, he is dependent on his superior, and he again on his superior, and so on till you come to the Senate, a permanent body; a body, by the singular mode of their election, existing in reality forever; a body that possesses that portion of aristocratic power which the constitution has wisely established. Shall we trust the Senate rather than the whole community? For tho' the Senators will not hold their offices for life, yet the fact is, that they will not possess any responsibility whatever, which can make it safe to trust them with such a power.
But, sir, what an aspect will it give to the executive department? Instead of keeping it distinct from the legislative, you transfer its best powers to a body in which the constitution never vested it, you render the executive merely subservient to the other branch, you destroy its responsibility and defeat the purposes for which an executive was established. Sir, the laws cannot be executed but by officers chosen for the purpose; and the controul over the officer must be in the executive power. If any other doctrine be admitted, what is the consequence? certainly, sir, that you may go on with equal reason and set the Senate at the head of the executive department: You may declare that all officers shall hold their places during the pleasure of either branch of the legislature. And by this means you may link together branches which the preservation of liberty requires to be constantly separated.
But, Sir, another species of argument has been urged against the clause— It has been said that it is improper or at least unnecessary to come to any decision on the subject. It has been said that it will be officious in this branch of the legislature to expound the constitution, so far as relates to the division of power between the President and Senate. Sir, it is undoubtedly of as much importance to this branch as to any other, that the constitution should be preserved entire: it is our duty as well as interest to take care that its principles be adhered to. A breach of the constitution in one point may lead to a breach in another. A breach in this point may destroy that equilibrium in the government, by which this house maintains its share of authority. I do not think we can be charged with officious interference, as this bill before it can have effect, is to be submitted to both those branches who are particularly interested in it. The Senate may negative it— The President may object to it.
Sir, an objection strongly urged is, that the legislature itself has no right to expound the constitution; that whenever its meaning is doubtful, you must leave it undecided till the judiciary shall be called on to declare its meaning. I conceive, that in the ordinary course of things, the exposition of the constitution devolves on the judiciary. But I beg to know on what principle it can be contended that any one department derives from the constitution greater powers than another, in declaring what are the true limits of the constitution. We have a great charter which assigns certain great boundaries and fences to the several departments of government. If these constitutional boundaries be brought into question, I cannot conceive why any one of those independent branches has not a right to express its sentiments.
This is perhaps an omitted case; there is no one government that I know of, in which provision is made for a particular authority to determine the great constitutional limits, and the great division of power between the branches of government. In all systems there are points which must be settled by the branches themselves, and to which no other power is competent. If they cannot be, there is no resource left, but the will of the community to be collected, either by the mode which our constitution provides, or by a mode dictated by necessity. It is therefore a fair question before us, whether the great point may not as well be decided by the whole legislature as by a part— by us, as well as by the executive or the judiciary. As it will be equally constitutional, it cannot be less safe that the explanation should come from the legislature, particularly as it comprehends all those branches whose powers can be affected by it; besides, Sir, I do not see, how the question could be brought before the judges were the right of determining assigned to them. If there is any part of the government from which an opinion on this capital point can come with singular advantage, it is this house, who being not so immediately interested can form their opinion, and express their sense with less bias than any other. My conclusion from these reflections is, that the clause is perfectly constitutional; that it expresses the meaning of the constitution as a fair construction must explain it, and that it is not only consistent with liberty, but more favorable to it than any other possible interpretation.
Mr. Gerry was clearly of opinion with the gentleman last on the floor, that it was of importance to decide the question on its true principles. He declared he should be ready to oppose every encroachment of the legislative on the just rights of the executive. He considered himself bound not only by an oath, but by an obligation equally strong, that of honor. Gentlemen had laboured to prove the constitutionality of the clause. He said he had listened to their arguments, and was convinced that the clause was as inconsistent with the constitution as any set of words which could be inserted in the bill.
There appeared to be two questions. One, whether the people had delegated to the government at all the power of dismissing at pleasure. The other was, to whom it belonged. As to the first, he agreed that the power had been delegated. It seemed to be proved by the arguments of the gentlemen, that otherwise the clause in the constitution respecting the judges was nugatory. As to the second question, it was agreed that the power must rest in some department. He believed that gentlemen in support of the clause would agree that this house did not possess the power, any more than the judges. It lay therefore either with the President, or the President and Senate: And if so, it appeared to him, that the clause in either case was useless. For if the Senate would assent to theclause when sent up by the house, they would consent to the provision contained in it when the President should exercise it. If the Senate thought the power ought to be vested in the supreme executive, they would freely consent to his using it, if not they would reject this clause— In either case the clause was nugatory.
Mr. Gerry argued that by the operation of the clause there would be a clashing of powers, and some which the senate were allowed to possess would be rendered of no effect. Their power of appointment would be defeated in its object, by the power in the President to remove; and the power of judging on impeachments, would be rendered vain by the power of dismissing; for a power of judging implied a power of acquittal, which would, in its operation, be totally insignificant, if the President could immediately displace an officer whom they had judged and declared innocent.
He insisted that as to the danger of abuses, the remedy against them, which had been mentioned, that is, the power of impeaching the President if he dismissed a good man, involved an absurdity. How could the house impeach the President, when they had declared that he could lawfully do as he pleased? Would they impeach him for exercising a discretion which they had given him in the most unlimited manner?
If the legislature gave him an unlimited controul over all officers, he would have, he said, the absolute controul over the treasury. We might as well give him the appropriation of monies; for it would be of little consequence to make laws, when the President by looking at an officer, could make it his interest to break that law. It must be expected that from this general controul, there would rise up a government of revenue instead of a government of laws. It would be easy for the President to cover all his crimes by an application of the revenue to those who were his judges, and such an application would certainly be made, in case of a corrupt President; and corruption in him was what it was necessary to guard against.
Mr. Gerry further observed, that giving the President the power to remove, would virtually give him a considerable power of appointment, independent of the Senate; for if the senate should reject his favorite, and agree to his nomination of one less agreeable to him, he might immediately remove the latter on the recess of the senate, and introduce the favorite; for the constitution had vested him expressly with the power of appointing in the recess of the Senate.
It had been observed, he said, that this was a case omitted; and that Congress had a power of supplying the defect— But they ought to consider on what ground they stood. An attempt to supply such a case might appear an attempt at an amendment to the constitution. The system hadprovided a mode of making amendments— The legislature could pursue that alone. Any attempt to obtain amendments in another form, would be a high crime and misdemeanor; perhaps something worse. Gentlemen, he said, appeared to be leading them on to what might be deemed treason against the constitution. The system, it could not be denied, was in many parts obscure and unintelligible. If it was once determined that Congress might explain and declare what the constitution was, it could not be denied that they could change it at pleasure. This obscurity had been one of the great arguments against accepting it. It had been urged that it was remarkably obscure— It was indeed, he said, most studiedly obscure. By this very act, the house were, he asserted, assuming a power to form a constitution. If the people of the United States supposed that it is in the power of the legislature to give constructions to the constitution, they would revolt from it. The idea of the legislature having a right to make any alterations in the constitution was repugnant to the feelings of every freeman, and to the principles of the revolution.
He then took notice of the argument that the legislative and executive ought to be kept distinct; and asked what department the Senate was, when acting with the President? clearly an executive one. If so, the argument fell to the ground. If they acted as legislative, it would be absurd. They were a constitutional council to the President, and were completely executive.
If the power was vested in the Senate, it had been said the executive would be a two-headed monster; but it was already a two-headed monster, and if it was the desire of gentlemen to make it less monstrous, it ought to be made a consistant monster. He thought it would be monstrous indeed to give the Senate the power of appointing, and deprive them of that power of dismissing officers.
He concluded with asserting that the clause in debate was useless and unnecessary, and inconsistent with the constitution. It was an officious interposition of the house in a business which did not properly come before it.
Mr. Benson supposed there was a power in the legislature of supplying the omission in the constitution, and determining by what power officers should be removed. The constitution had given the power to the government generally to remove at pleasure: for it could not be rationally contended that all offices should be held during good behaviour.
Could the gentleman be serious, he asked, when he suggested that this was a case to be proposed to a convention of the people for an amendment to the constitution? Did the gentleman suppose that when ever a doubt arose respecting any part of the constitution, it should be referred to a convention, and that the different doubts of different individuals should all be settled in this way? Did he suppose that no part of the constitution was to be taken by construction? It was unquestionable, he said, that no constitution or law could possibly be formed which would not involve the necessity of construction.
Mr. Benson proceeded to prove the impropriety of vesting the power in the Senate, by shewing the difficulties and embarrassments which would result. He would put the case of the officer to which the bill related. To him were to be committed the negociations with foreign ministers; a very delicate trust. The supreme executive, in controuling this department, would frequently be obliged to act on suspicion, and that of the most delicate kind, and the circumstances on which it was founded, not proper to be explained. He would be in a situation which would render it improper to make use of the evidences of his suspicion— Was it to be supposed then that the Senate would implicitly submit to his will and his proposal. They would not; they would certainly require the reasons. Suppose he should tell them that he suspected the man's fidelity, they must then proceed farther and insist on a full communication. Was it not to be supposed that this officer would have at least one friend in the Senate, who would contend for a hearing, and a fair trial? The President was then to be the complainant, and a subordinate officer the defendant; and the Senate would sit in judgment between the Chief Magistrate of the United States, and one of his officers. He begged gentlemen to tell him if this absurd scene looked like good government. In every instance of a proposition for removal, on account of incapacity, or any other cause, an enquiry would take place, for a man would always have some friend to demand this in his favor. All these inconveniences would be done away by giving the President the power to remove the officer.
One argument, strongly urged, he said, was, that the same power which appoints, should have the right to remove. But a distinction properly took place here. If the President and Senate were to be considered as one body deliberating together in the business of appointments, and if the appointment itself was their joint act, and each individual had a right to make propositions, the reasoning might hold good. But on the contrary, they acted as distinct bodies; the senate had only a simple negative or affirmative, and no member had a power to offer an original proposition— The moment this simple principle was deviated from, the power in the senate which was only intended as a check, would become an original authority, and the executive department would be split, divided, and distracted.
But it had been proposed that the President should have the power of suspending. What would be the consequence of this? If the senate should on their convening restore the officer, the President would have a man forced on him whom he considered as unfaithful, and who was disagreeable to him, a man who was properly his meer instrument. How would business be conducted? What communications, what confidence could exist between the President, and the re-instated officer? The executive administration would become impracticable; it would be made up of discordant materials, and its operations would be subject to perpetual divisions and jarring— In short, it appeared to him indispensible to the exercise of the authority which the constitution had vested in the President that he should have the power of removal; and he was convinced that the liberties of the people would not derive a particle of additional security from restraining or withholding any part of this power.
Mr. Smith (S.C.) entered into a general reply to the arguments in favor of the clause, and was answered by Mr. Vining. This concluded the business of Wednesday.1
    1. The New York Daily Gazette, 18 June, reported that the debate of this day was conducted with "animation, for more than four hours."

Recommended citation: Documentary History of the First Federal Congress of the United States of America, ed. Charlene Bickford, et al. (Columbia, S.C.: Model Editions Partnership, 2002). XML version based on the Documentary History of the First Federal Congress of the United States of America, ed. Charlene Bickford, et al. (Baltimore, Md.: The Johns Hopkins Press, 1992) Vol. 11, pp. 842-887; 889-973; 993-1076; 1079-1083; 1164-1171; 1174-1175; 1319-1334. http://adh.sc.edu [Accessed (supply date here)]

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