The First Federal Congress Project
Documentary History of the First Federal Congress

The Congressional Register

 19 June 1789 
The house met and went into a committee of the whole on the bill for establishing the department of foreign affairs, and resumed the consideration of the motion for striking out the words, "to be removable by the president."
I am well aware, sir, how disagreeable and irksome it must be to have another member rise on this question; but when I consider that the liberties of my country may be suspended on the decision, I feel myself compelled to trespass once more on the patience of the committee. And I cannot but think the time well spent that has been employed in the consideration of this business; it is of great magnitude in every point of view— whether it be considered as a constitutional question, or a question of expediency. And gentlemen will excuse me if my language should not be adapted to that delicacy to which so respectable a body is entitled; I have accustomed myself to a blunt integrity of speech, which I hope the goodness of my intentions will excuse. For I do most verily believe that this power will become inimical to liberty, and blast all those delightful buds of happiness which the establishment of the new constitution flattered us would expand and ripen into fruition.
It has been strenuously contended, as necessary to the security of freedom, that the executive branch of the government should not be blended with the legislative, but ought to be divided, and kept separate and distinct. Now, that this doctrine exists in practice as well as theory, I beg to be convinced. I do not pretend that such an excellency in government is undesirable. I only wish permission to ask gentlemen (and will they candidly answer me?) to bring forward a single instance in any government, when and wheresoever, in which the executive and legislative authorities were not blended. Search the annals of history— for I disclaim Eutopian politics; search the archives of Rome, the records of Carthage; inspect the historic page of Grecian republics; examine the Jewish theocracy: and will gentlemen say they can bring evidence of the fact? No; the whole assemblage of ancient governments, so far as has come within the knowledge of the present age, bears ample testimony against them. Turn we then to the middle age; and not one solitary ray of this benign principle is to be discovered; in that period of Cimmerian darkness, the powers of government were blended in the most confused chaos. Let us turn our eyes then to the enlightened hemisphere that brightens on our Atlantic shores. The governments of Europe are in an improving state; but none, I apprehend, have yet arrived to that perfection which gentlemen have contemplated. That which we have been taught to consider most pure and favourable to liberty is the government of Great-Britain. There we shall find that the executive authority is connected with and forms a part of the legislative, and this upon constitutional ground; it expands itself further, and within its capacious grasp actually holds the legislative as well as executive powers; if we do not find it there, we will not look for it in the despotisms of the East. Come we then to this enlightened part, where the broad effulgence of the sun of liberty shoots down upon its votaries its most vivifying rays; where the head, nurtured by science, is capable to plan the most pure and unsullied system, for the regulation and government of free-born men, who so highly prize the inestimable palm they have so lately won; who would rather sink into annihilation, than sacrifice it at the altar of despotism or anarchy. Look into the production of her chosen sons; look at your own constitution. Do gentlemen find that it is modelled upon their principles? Are the legislative, executive, and judicial powers kept separate and distinct? No, Mr. chairman; they are blended; not, to be sure, in so high or dangerous a degree, but in all the possible forms they are capable of receiving; the executive has a qualified check upon the legislative; the legislative exercises the powers of the judicial and executive. Thus then, I take it, neither our government, nor that of any nation which now exists, or hath heretofore existed, was strictly founded upon the principles contended for. I call upon gentlemen, therefore, to show me, to convince me, for I am open to conviction, how it can be necessaryto vest in the president of the United States the power of removal, upon the principle of keeping the executive department single and distinct? Gentlemen will not, they cannot, dispute my facts. How then can they contend for inferences, contradicted by such demonstrable and clear hypothesis.
An honorable gentleman yesterday was pleased to treat my honest apprehensions as the mere chimeras of a frighted fancy; but let me assure him they are not the visionary conceits of an individual; I believe they will be found to be the sentiments of the major part of our constituents. We know well how much they dread from the accumulation of power in the hands of the president; not that they fear the exercise of it by a Washington, but the time may come when venality will subtilely insinuate and diffuse itself through the system, and corrupt the whole constitution; destroying its beauty, consuming its spirits, and subverting its frame: Then will be the time that the patriotic heart will sincerely lament the legislative effusions of an unguarded moment.
Why should gentlemen complain of my raising spectres, as they term them, when they have indulged themselves in them on less momentous occasions? Those very gentlemen, who are boldest now, were the most timid then. Witness the sad forebodings with which we were entertained when it was proposed to tax molasses: witness the prophetic alarms to rouse our apprehensions on the subject of amendments to the constitution. The gentleman from Pennsylvania engraved to himself a grim and terrific image, to which we were called upon to bow the knee, by making proper regulations respecting the western territory. I wish gentlemen to be more consistent, and not complain of practices in which themselves indulge. I have as much right to raise my spectre as another; but, on this occasion, it is not a mere shadow which I have brought forward, but a reality. For if you take away the powers from one branch of the government and give them to another, there is an end of liberty. Judge Blackstone1 says, that when the constitutional bulwarks are removed from one part of the government to another, the whole is subverted, and an end put to the constitution. How was it Carthage lost her liberty? How have all the ancient republics been swallowed up in the gulph of tyranny and despotism, but by an accumulation of power in one particular branch of their governments? How careful, then, ought we to be in the preservation of those limits which the constitution has prescribed. If then the constitution has vested the power of removal in the president and senate, we ought on no pretence whatever to change the body authorised to exercise it. The words of the constitution forcibly imply our construction; and it has never yet been proved, nay, it has hardly been controverted, that the power which appoints is not the power to remove.
It is admitted, that in cases of ambassadors and public ministers, it would be improper to recall them without the concurrence of the senate; because the senate are combined with the president, and strongly too in the objects of their negociations. How then can gentlemen discriminate? The constitution vests the power of appointing in the one case the same as in the other; and these officers are also public ministers; the constitution views them in that light; they are stiled the heads of departments, and are appointed to advise the president.
But setting aside the constitutionality of the question where it must be admitted we have the advantage, let us examine the question of expediency, and meet gentlemen on their own ground. In this circle we must expect to meet spectres indeed. Has not your president got the sword in his own hands? for I look forward to the time when America will have both an army and a navy; I do not confine myself to the present period; you may then have a president different from the present magistrate that fills the chair. If then he has the power of removing and controlling the treasury department, he has the purse-strings in his hand; and you only fill the strong box, and collect the money of the empire, for his use. The purse and the sword will enable him to lay prostrate the liberties of America. Is this a mere spectre? No. Experience confirms the observation, a wise people will never let their freedom lie at the will and pleasure of any man.
Another observation has been made to prove the expediency of the measure. It was said by the gentleman from Virginia, that the president was chosen by and from the mass of the people, and therefore might be safely trusted. But the president may be chosen by electors appointed by the State legislatures; and therefore he is an improper person to be entrusted with this authority. He is not accountable to the people; for they have no immediate hand in appointing or rejecting him. While some gentlemen assert and others deny the responsibility of the president, there is danger in deciding. These opposing opinions cannot be reconciled; and therefore will give no proper data to decide in favor of the president.
I call once more on gentlemen to answer me this question, and I shall rest satisfied in giving up my opinion; let them prove to me that it was not the intention of this constitution to blend the executive and legislative powers. If these are the principles of the constitution, why will gentlemen contend for the independency of each branch of the government? The celebrated Mr. Wilson agrees with me in this sentiment; for he declares that the senate was constituted a check upon the president. Let gentlemen turn over his speeches, delivered in the convention of Pennsylvania, and they will find he asserts it as an uncontrovertible fact. This sentiment is confirmed by other writers of reputation. It is our business to preserve the constitution inviolate; and if these are its principles, we are to see that they are not injured or deviated from.
Mr. Baldwin .
I have felt an unusual anxiety during the debate upon this question. I have attentively listened to the arguments which have been brought forward, and have weighed them in my mind with great deliberation; and as I consider a proper decision upon it of almost infinite importance to the government, I must beg the indulgence of the house while I submit a few observations.
The main ground on which the question is made to rest is, that, if we adopt this clause, we violate the constitution. Many of the gentlemen who advocate the present motion for striking out, would, if they could do it with consistence to the constitution, be in favor of the clause. We have been reminded of our oaths, and warned not to violate the solemn obligation. This injunction has come from so many parts of the house, that it arrested my whole attention for a few minutes; and then they produced us the clause in the constitution, which directed that officers should be appointed by and with the advice and consent of the senate. They then tell us, that he should be removable in the same manner. We see the clause by which it is directed that they should be appointed in that manner; but we do not see the clause respecting their removal in the same way. Gentlemen have only drawn it as an inference from the former; they construe that to be the meaning of the constitution, as we construe the reverse. I hope, therefore, gentlemen will change their expression, and say, we shall violate their construction of the constitution, and not the constitution itself. This will be a very different change; unless the gentlemen pretend to support the doctrine of infallibility, as it respects their decisions; and that would perhaps be more than the house are willing to admit, and more than the people in this country are accustomed to believe.
I have said the gentlemen rest their principal opposition on this point, that the constitution plainly means that the officers must be removed in the way they are appointed. Now, when gentlemen tell me that I am going to construe the constitution, and may interpret it in a manner which was never intended, I am very cautious how I proceed. I do not like to construe over much. It is a very delicate and critical branch of our duty; and there is not, perhaps, any part of the constitution on which we should be more cautious and circumspect than on the present.
I am well authorised to say, that the mingling the powers of the president and senate was strongly opposed in the convention which had the honor to submit to the consideration of the United States, and the different States, the present system for the government of the union. Some gentlemen opposed it to the last; and finally it was the principal ground on which they refused to give it their signature and assent. One gentleman called it a monstrous and unnatural connection; and did not hesitate to affirm, it would bring on convulsions in the government.2 This objection was not confined to the walls of the convention; it has been the subject of newspaper declamation, and perhaps justly so. Ought not we, therefore, to be careful not to extend this unchaste connection any farther?
Gentlemen who undertake to construe, say that they see clearly that the power which appoints must also remove. Now, I have reviewed this subject with all the application and discernment my mind is capable of, and have not been able to see any such thing. There is an agency given to the president in making appointments, to which the senate are connected. But how it follows that the connection extends to the removal, positively I cannot see. They say that it follows as a natural, inseparable consequence. This sounds like logic. But if we consult the premises, perhaps the conclusion may not follow. The constitution opposes this maxim more than it supports it. The president is appointed by electors chosen by the people themselves, or by the State legislatures. Can the state legislatures, either combined or separate, effect his removal? No. But the senate may, on impeachment by this house. The judges are appointed by the president, by and with the advice and consent of the senate; but they are only removable by impeachment; the president has no agency in the removal. Hence, I say, it is not a natural consequence, that the power which appoints should have the power of removal also. We may find it necessary that subordinate officers should be appointed in the first instance by the president and senate. I hope it will not be contended that the president and senate shall be applied to in all cases when their removal may be necessary. This principle, sir, is not pursued by the senate themselves, in the very bill that is now before this house, sent down by the senate, to establish the judicial courts of the United States. It is directed, that a marshal shall be appointed for each district, who shall have power to appoint one or more deputies; and these deputies are to be removable from office by the judge of the district court, or the circuit court sitting within the district, at the pleasure of either. It is not said they shall be appointed by the marshal, who may remove them at pleasure; which ought to be the case, if the maxim is true, that the power which appoints necessarily has the power of removal. But I dispute the maxim altogether; for though it is sometimes true, it is often fallacious; but by no means is it that kind of conclusive argument which they contend for.
Gentlemen proceed in their constructions, and they ask why did not the convention insert a clause in the constitution, declaring the removal to be in a manner different from the appointment? They tell us, that it must naturally have occurred to them, and that here and there was the proper place to insert such a clause. Now, let me ask them also, if their's is the natural construction? Why the convention, after declaring that officers should be appointed by and with the advice and consent of the senate, did not add, to be removed in like manner? It must have as naturally occurred to insert the one as the other: It is very possible that such a clause might have been moved and contended for; but it is hardly probable it would meet with success from those who opposed giving the senate any check or controul whatsoever over the powers of the president, much less was it probable that those gentlemen who opposed it there should wish to enlarge it by construction; for my part I hope never to see it increased in this way. What of this nature is brought in by the letter of the constitution, let it be there; but let us never increase evils of which we have some right to complain.
A gentleman asks, where is the danger of mixing these powers, if the constitution has already done it. That gentleman knows, that it has always been viewed as an evil, and an association of the legislative and executive powers in one body have been found to produce tyranny. It is a maxim among the wisest legislators not to blend the branches of government, further than is necessary to carry their separate powers into more complete operation. It was found necessary to blend the powers to a certain degree, so far we must acquiesce. The senate must concur with the president in making appointments, but with respect to the removal they are not associated; no such clause is in the constitution; and therefore I should conclude, that the convention did not chuse they should have the power. But what need was there that such a clause should be there? What is the evil it was intended to guard against? Why, we are afraid the president will unnecessarily remove a worthy man from office; and we say it is a pity the poor man should be turned out of service without a hearing; it is injurious to his reputation; it is his life, says the gentleman from New-Hampshire (Mr. Livermore); it is cruelty in the extreme. But why are we to suppose this? I do not see any well grounded apprehension for such an abuse of power. Let us attend to the operation of this business. The constitution provides for what? That no bad man should come into office: This is the first evil. Hence we have nothing to dread from a system of favoritism; the public are well secured against that great evil; therefore the president cannot be influenced by a desire to get his own creatures into office; for it is fairly presumable that they will be rejected by the senate. But suppose that one such could be got in, he can be got out again in despite of the president; we can impeach him, and drag him from his place, and then there will be some other person appointed.
Some gentlemen seem to think there should be another clause in the constitution, providing that the president should not turn out a good officer, and then they would not apprehend so much danger from that quarter. There are other evils which might have been provided against, and other things which might have been regulated; but if the convention had undertaken to have done them, the constitution, instead of being contained in a sheet of paper, would have swelled to the size of a folio volume. But what is the evil of the president's being at liberty to exercise this power of removal? Why we fear that he will displace not one good officer only, but, in a fit of passion, all the good officers of the government, by which, to be sure, the public would suffer: but I venture to say, he would suffer himself more than any other man. But I trust there is no dearth of good men. I believe he could not turn out so many, but that the senate would still have some choice, out of which to supply a good one. But, if even he was to do this, what would be the consequence? He would be obliged to do the duties himself; or, if he did not, we would impeach him, and turn him out of office, as he had done others. I must admit though, that there is a possibility of such an evil, but it is a remote possibility indeed.
I think gentlemen must concede, that, if there should be such a passion, such resentment as I have supposed between the president and the heads of departments, the one or the other ought to be removed; they must not go on pulling different ways, for the public will receive most manifest injury; therefore it mitigates the appearance of the evil by suffering the public business to go on, which, from their irreconcileable difference, would otherwise be at a stand.
But some gentlemen seem to think this is not the only evil that ought to be apprehended. They say it would increase the power of the president to a most alarming degree indeed: that the preservation of the liberties of our country would be rendered impracticable: that an accumulation of powers in the hands of the president would establish a tyranny: that America would no longer furnish that asylum to persecuted freedom which she was wont to do. But is all this strictly true? We have seen in our day the sword, and almost every power exist in the hands of one man without destroying the happiness of this country. He was the head of the church and state, the fountain of honor; could appoint and remove all the officers of his government: yet this man, with the aid of many millions of pounds sterling, with a numerous host of men, and perhaps the finest navy in the world, had it not in his power entirely to ruin this country. The difference between the two characters is great indeed---A man elected for but four years, and an hereditary monarch, subject to impeachment, and ever dependent upon the will of the people for his re election. Checked and surrounded as his powers are, I see little cause for apprehension. In the honest integrity of my heart, I confess I see nothing to alarm my fears on this subject.
There was a turn given to this clause which seemed to make it appear, that we ought to agree to strike it out. It is said, that the power is already given by the constitution, and therefore it is unnecessary to retain the clause in the bill. Others again contend, that we are giving the power by construction to the president, which we ought not to do. The gentleman from Connecticut (Mr. Sherman) tells us, we should leave it to the president to discover what is his duty on this subject. At first there appeared great plausibility in this observation, and I was inclined to favor that opinion; but, on further reflection, it appears to me as bad a sentiment as any that has been suggested. The great division of this committee proves that it is a question not so easily resolved as the others which have heretofore engaged our attention. Now, if we, who are a disinterested branch, find so much difficulty in determining the point, how much more will the president and senate, who are parties concerned, be perplexed in the decision? Gentlemen may say, that the senate would chuse to have it left to the parties themselves: Then why should we interfere? But I am persuaded, when the senate perceive we are disinterested parties, they will respect our decision. I feel a most profound respect for that honorable body, and I never wish to see them disturbed in the exercise of any part of their power; but I do conceive they will receive with pleasure our opinion on this question; and therefore I am inclined to give it. We are fellow-labourers together, endeavoring to raise on the same foundation a noble structure, which will shelter us from the chilling blasts of anarchy, and the all-subduing storms of despotism. Hence I flatter myself they will receive this assistance kindly at our hands; but if they are otherwise inclined, they have the power to counteract what we may do. But I would by no means retreat at this time from a decision: I would let the bill go forward with our full determination; the senate will receive it with candor. Gentlemen say it properly belongs to the judiciary to decide this question. Be it so: It is their province to decide upon our laws; and if they find this clause to be unconstitutional, they will not hesitate to declare it so; and it seems to be a very difficult point to bring before them in any other way. Let gentlemen consider themselves in the tribunal of justice, called upon to decide this question on a mandamus:3 What a situation! almost too great for human nature to bear; they would feel great relief in having had the question decided by the representatives of the people. Hence I conclude they also will receive our opinion kindly.
Mr. Silvester .
In the debate of yesterday, sir, we were entertained with the marvelous, the sublime, and the picturesque. We had monsters with heads and without heads; we had the powers of the government distorted into every shape. But this, sir, is not the proper treatment which the important question demands. We ought, sir, in my opinion to consider this subject seriously, as it relates to its constitutionality and expediency; and not to suffer our deliberations to be warped on either hand, by too great apprehensions or self-sufficiency.
It has been insisted upon by the gentlemen against the clause, that we should not go into a construction of the constitution, because we have no right to infer any thing from it in this way: yet all their arguments are founded upon construction and implication, and lead to the very object which they caution us to avoid. But I will agree with the gentlemen in the opposition, that if it can be demonstrated that our interpretation is contrary to the true meaning of the constitution, we ought not to proceed to the decision; but if it is a doubtful point (and it appears so by the controversy we have had, and by the contrariety of sentiments advanced), I hold it to be prudent and wise to come to a decision.
The question, to be sure, has had a thorough if not tedious investigation. But I do not repine, because I conceive the time has been well spent, as it now appears clearly that there is nothing in the clause contradictory to either the letter or spirit of the constitution. This being demonstrated to satisfaction, the only question which remains is, whether we shall give our opinion by declaration or implication. With respect to a declaration, I would observe, that if the power of removal is lodged in the president by the constitution, it is not useless for us to interfere; and if it is not lodged there by the constitution, can we give it? It does not appear to be expressly given by that instrument; but there is nothing in contradiction to it.
I lay it down then as a positive case, that the president is invested with all executive power necessary to carry the constitution, and the laws passed in pursuance thereof, into full effect; so far as these powers are unchecked and uncontrolled by express stipulations in the constitution. If the exceptions, with respect to appointments, had not been made, the president would have had that power, as well as the power of removal. In the first, his power is eclipsed by the interference of the senate; but, in the last, the manifestation is clear. Both these powers being inherent in the executive branch of the government, must remain there: yet the congress have the power to give them ground to act upon. The constitution declares, that congress shall have power to make all laws necessary and proper to carry into execution all the powers contained therein. Now, the first power of nomination and appointment could not be exercised, unless congress were to call officers into existence by law; for particular officers are not mentioned in the constitution; they are to be erected by law. If then we are authorised to create them, we are warranted to modify them in the same way, as has already been fully explained by gentlemen who have gone before me.
Gentlemen have urged, that those who have the power to appoint may remove. This doctrine may be extended further: those who have the power to create may also destroy. Now, I would infer from this, that the house having the power lodged with them of creating offices and passing all laws necessary to carry the constitution into effect, they have a right to declare the tenure by which the office shall be held. Having then the power to create offices, and discharge from office, they have a right to delegate the exercise of it to whom they please. And to whom can this be more properly intrusted, than the president of the United States?
Another clause in the constitution gives the congress power to vest by law the appointment of such inferior officers as they think proper in the president alone. If the officer to whom this bill relates is of such a nature, and this seems to some gentlemen a doubtful point, we have power to invest the president at least with the removal.
It is insisted upon, that there can be no appointment but by and with the advice and consent of the senate, nor discharge but in the same way. What does this lead to? The president is the whole executive branch of government; and yet you so fetter him, by attaching to him a legislative branch, that he has little or no agency in displacing a public officer who holds his commission of him alone. Another gentleman contended, that impeachment was the only way to remove an officer. Many gentlemen, who oppose this clause, oppose this principle; but they should remember, that the mode of connecting the senate to the president in discharging from office, is little or nothing different from an impeachment; and if this is the only way of removing officers, they have all of them an inheritance in office. For this reason both their doctrines prove too much, consequently they prove nothing.
Let us consider the expediency of establishing the doctrine, that officers have a tenure in office for life, or during good behaviour, which is said will be the case if no time is limited in the bill. All officers will have to be impeached; this will require a vote of this house, and a trial before the senate. If the necessity for dismission is pressing, clearly the mode by impeachment is not likely to answer the purpose. It can never be thought expedient to establish a doctrine so big with mischief, and likely to drive the whole government into confusion. It is not the doctrine of the constitution, and therefore ought not to be sanctioned: if it was to be found there, however inconvenient it might be, we should put up with it; because I do believe there is not a member in this house who is disposed to violate a constitution he has sworn to support. I trust, and am fully persuaded, we shall not do it by our decision. Surely it will not be any longer contended, that we have no right to give our sentiments? We certainly have that right; for without such a power we could pass no law whatever. It is certain that the judiciary will be better able to decide the question of constitutionality in this way than any other. If we are wrong, they can correct our error; if we are right, the question will be decided at a time when no ill can result from factious or contentious parties; all is now still, and a favorable disposition to listen to reason prevails.
Conceiving, therefore, that we do not infringe the constitution, and that the public good requires it, I am in favour of making the decision, and enabling the executive magistrate to exercise the duties vested in him, whenever he supposes the good of his country requires such an exertion: observing that if this power was anywise obnoxious to the constitution, I should be opposed to it.
Mr. Stone .
It is hardly to be expected, mr. chairman, that any thing new can be offered at this stage of the debate; the committee will therefore believe that the motives for delivering our opinions, do not arise so much from an expectation of being able to convince, as from a desire to assign the reasons upon which our vote is founded.
I consider this a very important question, the decision of which will form a leading feature in all our future conduct, and give the tone to the administration of the government. But if the evils we apprehend, should absolutely arise from our determination, I do not conceive with some other gentlemen, that we are inevitably ruined. I believe the people can apply a remedy; and I have no doubt but they have sense and resolution enough for that purpose.
The people of America, so far as they are included in a majority, and so far as they have expressed their sense of amendments, have adopted this constitution. It was not adopted because they considered it perfect, or because they supposed it would become so even if all their amendments took place; but because they supposed it would more effectually answer the purposes of union than another. All the objections that were made to the constitution, went to secure the liberties of the people. I believe, and so far as my information goes it is true, that there is no state but thinks the general government sufficiently efficient. We who are to administer the government, ought to carry it into execution agreeable to that principle. We must, independent of any consideration that the powers are too large here or too small there, judge impartially of all the component parts of the government; and however our affections may be drawn to the one part or to another, we must preserve the constitutional connection and balance. It is not according to my idea, that because the people have given a gross amount of power, they are indifferent as to the disposal of it; or that the legislature may distribute it as they please. What makes a free government? The equal power of the three branches of the legislature, or two legislative and one executive; these acting independent and controling each other in a precise, constitutional manner. If these powers are blended or assimilated in one body, it becomes a tyranny. Then you ought to keep the balance as the constitution directs, not as fancy dictates.
I should be extremely unhappy if I could believe that the association of the powers of the president and senate is so monstrous as some gentlemen conceive. If it is true that all governments are odious and dangerous which associate the legislative and executive powers in one body, I should be the last man to support this. Because in all the great business of the executive department, in every thing serious and affecting the government, there is not only a temporary association, but a continued one. The first and most interesting communication of these powers is of a continued duration. The appointing officers is but a temporary connection; but in making treaties, in which all our concerns are at stake, the connection is durable. Is not the same information necessary for two thirds of the senate, as for the president, as they are to advise him in the negociation, and concur with him in the ratification? And how can this necessary information be obtained, but by a connection with the executive magistrate? Hence, if the association of the executive and legislative powers in one body is odious and dangerous, we are in a dangerous and odious situation under this government.
What portion of power have congress? I suppose it is necessary to keep up the balance between the executive magistrate and the senate. What is this balance? It is laid down in the constitution that the president shall nominate, and the senate approve; we are bound, then, to carry this balance throughout all the subjects to which it relates. If the president has the sole power of removal, you destroy the power of the senate; and though you do not expressly put the power of appointment in the president alone, yet you put it there effectively, because he may defeat, by removal, the joint appointment. Will this be giving the proper balance which the constitution directs? No; it will be directly the reverse.
Suppose the constitution had been so far silent with respect to displacing officers, as to have left it within the power of the legislature to lay down a rule on that subject; how would you lay down that rule? in favor of the president; why? because the senate has too much power already, and you would give it to the president to equalize the power. This would not be right I conceive; because I believe we are bound to support the intention of the constitution as well as the letter. Suppose we have powers to distribute, what is it to guide us in the distribution? Our own caprice? No. Look into the constitution and see where like powers are distributed. If I found powers distributed, I would follow the example with a similar distribution, and not impose sentiments of my own for a guide, when I had more certain and proper ones to lead me.
A separation of the powers of government, between the legislative, executive, and judicial branches is considered as the proper ground for our opinion, and a principle which we must admit. Are we to get it brought in to the constitution? for I apprehend there is no such principle as a separation of those powers brought into the constitution at present, but to the degree which an examination will appear to exist. Is there any express declaration, that it is a principle of the constitution to keep the legislative and executive powers distinct? No. Has the constitution in practice kept them separate? No. Whence is this idea drawn from? That it is a principle in this constitution, that the powers of government should be kept separate? No sure ground is afforded for it in the constitution itself. It is found in the celebrated writers on government; and, in general, I conceive the principle to be a good one. But if no such principle is declared in the constitution, and that instrument has adopted exceptions, I think we ought to follow those exceptions, step by step, in every case to which they bear relation.
It has been granted by every gentleman, that a dismissal may take place without trial; some gentlemen have agreed that it ought to take place by those who appoint: Though this seems to be admitted as a pretty good general rule; yet no reason has been assigned for it. I believe that one may be adduced. Comparing small things with great, I believe a man in New-York would find the truth and reason of the thing, if the case was brought home to him. A man is employed as an agent to manage our concerns; and if no limitation is given to the agency, and we are displeased, we can dismiss the agent if we think proper. I believe an attorney is always removable at the will of his employer: Although there is not a statute that has laid down the rule in express terms; yet it is as much the law of the land as if it had been declared by an absolute statute. It follows then, upon the same principles, that the government has a right to remove their officers in every case, but where express limitations are made.
It has been said, that if we have the right to dismiss, the right vests in the president; because he nominates and appoints. It has also been said, that if the government has the power, it belongs to the president and senate. Which ever of these assertions is true, it is founded on implication. Now, the clearest implication, and the one most exactly conformable to the constitution, is to give it to the president and senate. Who, by the constitution, is to judge of the qualifications of the man, and his fitness for office? The senate. The president only nominates a person for their consideration; they judge upon the propriety of the nomination. Go through the constitution from the beginning to the end, and you will not find a single instance where the president has solely the power of appointing any man to an office under the United States. This regulation may have been wrong; the convention may have been misled on this point; but still it is the constitution. Perhaps the convention conceived, that establishing a power in the executive to chuse and controul the great officers of government, was a power too dangerous to be vested in a single person; therefore throughout the whole constitution they never once invested the president with this power. Such must have been their idea on the subject, or why did they direct the legislature to vest, as they should think proper, the appointment of inferior officers in the president alone, heads of departments, or courts of law? If it is proper to construe the constitution by implication, we should carry the implication throughout: And hence we shew the president is, in no instance, entrusted with the power of appointing to office.
But it is said, that the power of removal is naturally and necessarily vested in the president as executive magistrate, and cannot be taken from him. This is a very important question; but the affirmative is founded on implication. I never was fond of implication; it is but a doubtful way of determining the sense of any instrument. If the executive magistrate has the power of displacing officers, then the clause is wrong; for you grant a power which you have no right to grant: If the president has the power by the constitution, does not the house assume a power of granting what does not belong to them? Is this not declaring that it is a doubtful point, and therefore we will grant a power; we will place it in the hands of the executive, because we conceive it partakes of the nature of that department, not knowing whether the constitution ever vested us or him with such authority? It has been contended, on some former occasions, respecting a bill of rights, that if you did not designate all the rights of human nature, you gave up those which were omitted. If you undertake in this bill to grant a power, you imply that you have that power to grant, or with-hold, at discretion.
Now, if the position, that all executive power vests in the president, is true and solid, the extension of it can never run into absurdity. If gentlemen determine executive powers by implication, however dangerous the ground may be, we must go through; the congress must have all legislative power; all the departments of government must have the powers which implication construes to belong to them. Again, if the power of removal is not incidental to the power of choosing, we must go through. There are a variety of clerks, commissioners of commerce, of the mint, of the army and navy; who is to appoint these officers? The constitution tells you, in some cases the president and senate, the senate alone; this house appoints its own officers; but in every case the president has the power of removal; because the power is incidental to the executive. How are we to get rid of this absurdity? Beside, if all executive power is vested in the president, what right has this house to prescribe him rules, to interfere in forming executive officers? The executive can better form them for itself. If implication proves the president purely executive, it is inconsistent to modify. The gentleman from Virginia says, we may limit the duration of this officer. But why do this? The executive powers are continual. Why are we to suspend their operation? But what would signify this interference of the legislature, could it produce good? If the present office is wholly executive, the house has no right to meddle in the business.
I believe we shall be deprived of the safe mode of getting rid of this officer, and have one introduced that will be subversive of every authority which the constitution vests with respect to appointments in the senate and house of representatives.
If gentlemen will tell us, that powers, impliedly executive, belong to the president, they ought to go further with the idea, and give us a neat idea of executive power, as applicable to their rule. In an absolute monarchy there never has been any doubt with respect to implication; the monarch can do what he pleases. In a limited monarchy the prince has power incident to kingly prerogative. How far will a federal executive, limited by a constitution, extend on implications of this kind? Does it go so far as absolute monarchy? or is it confined to a restrained monarchy? If gentlemen will lay down their rule, it will serve us as a criterion to determine all questions respecting the executive authority of this government.
My conception may be dull; but telling me that this is an executive, raises no complete idea in my mind: If you tell me the nature of executive power, and how far the principle extends, I may be able to judge whether this has relation thereto, and how much is due to implication.
If I look to the constitution, or nature of things, I should be lead to conclude, that the body chusing agents has the power of dismissing them; because the power naturally lodges in those who have the interest and management of the concern. The executive business of this officer is under the superintendance and management of the senate, as well as the president: Treaties with foreign nations must be conducted by the advice of the senate, and concluded with their consent. Hence results a necessity in that body's having a concern in the choice and dismissal of the secretary of foreign affairs. I do not see any other sure or safe bottom on which the question can be determined.
I will just advert to a few arguments which go to prove, that officers once appointed, ought not to be removed in the manner contended for— without insisting upon them at this late period of debate.
In the nature of things, in all appointments, there is an implied contract: on the part of the officer, that he will perform the service; and on the part of those who appoint him, that he shall have an adequate reward. In the engagement of the officer, qualities commensurate with the duties are required; in the reward, the dignity of the station and the qualities of the officer ought to be estimated. And although in this engagement an officer may dispense with certain forms of trial, yet he can never surrender a natural right; he cannot engage to be punished without being guilty, or dismissed without being useless. It has been well observed, that the appointment ought to cease when the causes of it no longer exist; but it is equally clear that it ought to continue as long as the reasons remain. And although in public and private life it may be proper to discharge an agent without divulging the reason; yet clearly a good reason ought to precede the dismission, because otherwise you do an act of injustice by a breach of contract.
And if we have now the power to make the rule, we ought to make it conform to these principles. Let justice and reason operate as profitably, as secretly and as quickly as may be; but let not their agency be superceded by the passions we disapprove.
In the scale of responsibility this power has been weighed, and determined to be lodged with the president on that account. But wherefore? I consider the senate more responsible than the president. The senate must keep a journal of their proceedings; their acts are manifested to the power appointing them, who are always in existence. The electors of the president meet for a moment, to make their choice: But will the conduct of a president be investigated? will they have materials to form their judgment upon? or will their existence bear an extension sufficient for any other purpose than barely to meet in their respective states, and vote by ballot for two persons, and to make out a certificate of their proceedings? Is here the same degree of responsibility? When a senate is appointed, the legislatures of the respective states will keep a watchful eye over their conduct; and if they are displeased with a senator, they will not hesitate to turn him out; they can effect this on information and deliberation. The state legislatures are in the habit of discussing questions respecting the general good; they will discuss the propriety of the senate's conduct; while the electors of the president are too widely spread, and too short a time assembled, to effect a purpose of this nature.
It has been judged by some gentlemen a dreadful affair, that the president should become a party before the senate; it would degrade his dignity. It was said the judiciary would be pleased if this weighty question could be taken off their hands. To what a height do gentlemen exalt that character in their own minds? How far above the level of the people, when they consider it derogatory to his dignity to institute an examination into the conduct of an officer next to himself in rank! When they consider it almost above human nature to determine a question of right between the president and a great officer of the United States! If gentlemen have an idea that this character is to have such a degree of elevation above the community, it is time to begin to think of restraining his power. Upon what does power depend? Not upon the strength of arm, but opinion. If gentlemen will exalt a character above themselves, call him what you will, he will be possessed of monarchy. In this enthusiasm of confidence, we seem to forget the confidence we have in the president, senate, and great officers of government in appointments, as compared with the confidence in the president in removals. Why, if the powers of enquiry, judgment, impartiality and discernment, stipulated by the constitution, in the president and senate to select good men, and the first characters into office, will you place more confidence in the president alone, more than in the senate and heads of departments together? This is inconsistent with the confidence which the constitution reposes in the executive.
We have expended our treasure, our blood and our time to very little purpose, if we do not think that liberty and safety exalt the human species. From the meanest to the highest rank in life, the propriety of conduct arises from the security and independence of situation. I will not pursue the argument further, than to observe, that from these principles it is, that there is more liberty and nobleness of soul in a common man in America, than in a minister of state in Turkey; but if the principles for which the advocates of this clause contend is adopted, it will give this influence. If a man is a candidate for an office, held by the tenure of will and pleasure, he must examine his soul, and see if there are qualities in him to enable him to cringe, and submit to the arbitrary mandate of the president; if he finds these qualities in his disposition, he is suited for the business: But if the constitution is to be justly administered, and he finds himself disposed to sacrifice to the pleasure of the chief magistrate, although he possesses qualities which, I said before, suited him for his employment, yet he is unfit for the office.
I am impressed with the importance and magnitude of the present subject, equally with other gentlemen.
In the body politic, mr. chairman, the executive authority is a marked feature; and the question in my mind is, shall we deform it by displacing it— or give it that fixture which the constitution intended, and which a due regard to symmetry and proportion requires. It has been well demonstrated that the various powers of government ought to be exercised by distinct bodies, in order to provide a happy administration, and secure to the nation the blessings of freedom; or if they are any way blended, it ought not to exceed that degree necessary to execute good government.
But gentlemen tell us, that this is not the language of the constitution. My honorable friend from Georgia (Mr. Jackson) has gone so far as to ask us for an instance in any government, where this principle obtains. To investigate this question fully, would lead us into an extensive field of historical research. I will therefore, in order to save time, admit that in most countries this division of power is faintly defined. Yet, in Great-Britain, where this doctrine is strongly advocated, the lines of distinction are deeply marked; it is true the executive authority is blended with the legislative. But how far does this extend? No farther than to assure a salutary administration of that form of government. But, say gentlemen, the power which Great-Britain leaves in her executive magistrate, would in this country be an alarming subject. I am pleased with the great concern manifested by honorable gentlemen for the preservation of liberty; and admit with them, that it is involved in our decision. But suffer me to explain why I think so.
There have been few governments overthrown by the independence of the executive. What are the consequences of clipping its wings? Anarchy and confusion, and a struggle between the legislative and executive, in which the latter is generally sacrificed on the altar of despotism. Thus, I conceive, the liberty of the people to be involved in our decision. If by legislative encroachment we weaken the executive arm, we render it incapable of performing the functions assigned it by the constitution, and subject it to become an easy prey to the other branch of the government.
Gentlemen may tell us, that the executive, with the command of the military, may acquire uncontrolled power. Perhaps some experience may authorise the inference. But, let me ask, what has been the cause? I take it that adequate powers have been denied the executive, or taken from it. In either case, the executive must have exercised authority not legally vested, in order to continue the operations of government. And being once accustomed to assume power, the habit is easily confirmed; so that shortly the aggregate of power assembles on the ground where you refused a just participation. Now, if you allow a just distribution of the powers of government, you leave the executive no pretext to justify an unconstitutional seizure on its part. The king of Great-Britain has the command of the army and navy; but have those engines of despotism been called into action to wrest from the other branches of government, or from the people, powers not legally vested in the crown? The answer must be in the negative. And why has this not been done? Because the constitutional powers of the British monarch are sufficient to answer the purposes of the government.
Let us turn to Sweden and Poland for an illustration of this doctrine— for examples to convince us of the dangerous tendency of denying the executive a due proportion of power. In Sweden the limited power of the king was nearly annihilated by an aristocracy. And what has resulted from that circumstance? Why, at this moment, you find the monarch compelled, for the security of his nation, to assume all the powers of despotism; and you behold the nation submitting chearfully to the event, nay, joining the throne in establishing an arbitrary government; by which all their rights as men, and privileges as citizens are immolated at the shrine of prerogative.
The legislative authority in Poland belongs essentially to the diet; though the senate is the soul of this body, she retains royalty without fearing her kings. The object of the Poles has been to guard against what was called the encroachments of the throne. It is not (said they, but a century ago) a master that we want, it is only a chief; some went further, and asserted, that a free people wanted no chief at all.4
This republican language became the prevailing stile in all assemblies of state. And to what has it led? Placed under the absolute government of a single person, they continually complained of the weight of the yoke. Left to the enjoyment of liberty, they knew not how to use it for their own good; and by abridging the efficacy of the executive, they fell into intestine commotion, which delivered them up any easy prey to their ambitious neighbours. Are we to learn nothing from these dreadful examples? Will gentlemen persist in contracting the constitutional powers of the executive? Will they, against their own principles, acquiesce in blending executive and legislative powers? Far off may that period be, when the congress of the United States shall shorten the arm of her executive: Success in such a measure will fore-run the obsequies of freedom.
Mr. chairman, I am confounded with the diversity of arguments used on this occasion, I know not how to reply. Some gentlemen say it is wrong, it is cruel, to take away the wealth, the reputation, and this word is synonymous in the apprehension of others, with life, from your public officers without an impeachment; and yet, gentlemen, on the same side of the question, admit, that an officer may be properly removed by the president, by and with the advice and consent of the senate, or, in other words, without impeachment.
Will gentlemen view for a moment the effect of their arguments? Suppose the president desires to remove a bad officer, and the senate refuse, what is to become of your impeachment? I say, sir, that the house of representatives, combined with your executive, will be unable to procure the dismission of an officer who is hourly betraying his trust, and that in the most open and flagitious manner. If your proofs are clear as a mathematical demonstration, it is all in vain; your tribunal, which is to decide upon the impeachment, has prejudged the question. I will nevertheless, on account of the expected patriotism of that body, admit, that there is a possibility of obtaining justice: But are the interests, the rights, and happiness of this great community to depend upon a bare possibility alone, when our constitution has provided safety and stability to the public welfare? We say that the mode of removing bad or obnoxious officers by impeachment, is tedious and uncertain at best; but it is not to be relied on, if the senate are connected with the president in the general power of removing; for it would ever be in the power of a faction, or a party in the senate, so to clog the wheels of our political machine as to render its motions slow and unavailing: And this they could do under an impenetrable veil; they could do it without being in the least degree responsible. Let not gentlemen talk of their responsibility, and compare it with the president's. We do not predict shadowy and chimerical evils: What we feared has actually happened; the mischief of precedent is already established— the senate declare their concurrence in appointments, by ballot. In this secret mode, through cabals, through intrigue, they will be able to defeat every salutary agency of the executive, in seeing his instruments perform their duty.
[Mr. Stone . Do I understand the gentleman? Does he tell us that the senate decide by ballot? I should be glad to ascertain the fact.]
They did so yesterday.5 I presume I need not mention the consequences of such procedure. But where is the responsibility when a man can hide his vote? If they do an obnoxious thing, they will say, I did not vote so, and shift the blame from themselves. Where will you go to ascertain the fact? Into the dark recesses of a balloting-box, and there you will seek for tickets, whose handwriting is to serve as a clue to this business of mystery? But, behold! the tickets are torn, and scattered to the wind.
This government, mr. chairman, let us remember, rose like Hercules's brawney, from its cradle. Let us avail ourselves of the wisdom and experience of former ages. Let us aggregate the knowledge of every nation, to give its nerves their vigor, and each muscle its due strength; that, like that demi-god, it may strangle, even in its infancy, the malignant and venomous efforts of its subtle invaders.
Who, let me ask, is the chief magistrate under this government? The president. What are his duties? To see the laws faithfully executed; if he does not do this effectually he is responsible: To whom? To the people. Have they the means of calling him to account, and punishing him for neglect? They have secured it in the constitution, by impeachment, to be presented by their immediate representatives; if they fail here, they have another check when the time of election comes round. But what are the duties, and what is the responsibility of the senators? in their legislative capacity it is not intended that they shall assist the president; it is an additional executive authority. Is it compatible with the principles of the constitution, that the legislature should assume executive power, or is it done in order to make itself responsible? Surely not. But if it was admissable, what degree of responsibility is acquired through the senate? They are not the representatives of the people; they are the representatives of the state sovereignties, as was well observed by the honorable gentleman from Pennsylvania (Mr. Scott); who are nothing less than accountable to the people. They may have a policy to pursue not altogether consistent with the salus populi,6 and are only responsible to the state sovereignties.
The gentleman from Maryland (Mr. Stone) compares the point in question with that of an attorney; for my part, I do not conceive the application well made. The senate are combined with the president to aid him in the choice of his officers. The officers are not the agents of the senate; they do not act for the senate; they act for the executive magistrate. If you give the senate a power in the removal, you give them an agency in the executive business which the constitution never contemplated. If, therefore, the honorable gentleman's arguments mean any thing, they mean that the senate ought to have complete power over the attorney of the president.
Mr. Stone
Said, the gentleman did not seem to understand his general principle, that the power which appoints, is naturally vested with power over the agent. He by no means admitted that the business of the secretary of foreign affairs was to be done exclusively for the president; he conceived the senate was constitutionally vested with power over that department.
If I have misapprehended the gentleman's argument on this point, I will wave my reply, and proceed to what seems to assume a more serious appearance. It is contended, that if the constitution does not vest the power of removal in the president, we have no right to give it. The constitution authorises a complete government, and leaves it to the legislature to organise it by creating the necessary offices. The power of establishing offices, implies complete power over them; and gives to congress a right to form them on such principles as shall appear to be most conducive to the public good. To establish officers immovable, is not contemplated by the constitution but in the case of the judges. If they are removable, congress have authority to declare by whom, unless some express provision on this head was made in the constitution: No express provision being made, it remains for this house to declare their sentiments. I will not recapitulate the arguments which were well urged by the gentleman from Virginia (Mr. Madison) to shew, that if the constitution had made express provision, there can be no impropriety in declaring it by law.
Upon the whole, it appears to me, mr. chairman, that the object of every gentleman on this floor is the same, however various and diversified the roads we pursue to attain it; from which opinion, I am led to conclude, that however a misguided zeal may terrify us with alarms, we shall coolly and deliberately unite in carrying into complete operation the legislative and executive powers vested in this government, as the only means, under heaven, of securing to ourselves and posterity the blessings of freedom and tranquility.
Mr. Gerry .
If we take this step, mr. chairman, we shall have to take another, which may shake the government itself: How judicious this may be at this time, I leave the advocates of the clause in question to determine.
The gentleman opposite to me from Georgia (Mr. Baldwin) has asserted, that we mean to put a construction upon the constitution; and that the clause is only a violation of our construction, and not of the constitution itself. I think he is wholly mistaken with respect to the opponents of this clause. I can speak for myself: I am decidedly against putting any construction whatever on the constitution, for several reasons. Sir, we are not the expositors of the constitution; but if we were the expositors, we ought to give our exposition by a declaratory act, and not foist it in where no one would ever look for it. But if it were done by a declaratory act, I conceive it would be impossible to draw the line at which declaratory acts should stop. Hence we should alter the constitutional mode of amending the system of government.
Another difficulty would also arise— The judges are the expositors of the constitution, and the acts of congress. Our exposition, therefore, would be subject to their revisal. In this way the constitutional balance would be destroyed; the legislature, with the judicial, might remove the head of the executive branch. But a further reason, why we are not the expositors, is, that the judiciary may disagree with us, and undo what all our efforts have labored to accomplish. A law is a nullity, unless it can be carried into execution; in this case, our law will be suspended. Hence all construction of the meaning of the constitution is dangerous, or unnatural, and therefore ought to be avoided.
This is our doctrine, that no power of this kind ought to be exercised by the legislature. But we say, if we must give a construction to the constitution it is more natural to give the construction in favor of the power of removal vesting in the president, by and with the advice and consent of the senate; because it is in the nature of things, that the power which appoints removes also: If there are deviations from this general rule, the instances are few, and not sufficient to warrant our departure on this occasion. We say our construction is superior also, because it does not militate against any clause of the constitution; whilst their construction militates against several, and, in some respects, renders them mere nullities.
The gentleman from Virginia (Mr. Madison) dwells strongly on the necessity of keeping the departments of government separate and distinct. What does he mean? Does he infer, that there is not a natural affinity between the power of appointing and removing, and therefore they ought to be kept separate? I presume not. He will admit there is such an affinity. Then I would ask, in what character does the senate act in case of appointments? They act as an advisory and executive body: If they are executive in the act of appointing, there is no clashing of powers, consequently no blending in the case of removal. But if gentlemen say, that, in appointments, the executive and legislative powers are blended, their position is contrary to what they say is the true principles of the constitution.
We have the power to establish offices by law; we can declare the duties of the officer; these duties are what the legislature directs, and not what the president; the officer is bound by law to perform these duties. But this clause militates against the institution itself; for the president is to have the power of preventing the execution; the office, and its duties, are suspended on the pleasure of the president. Suppose an officer discharges his duty as the law directs, yet the president will remove him; he will be guided by some other criterion; perhaps the officer is not good-natured enough; perhaps he makes an ungraceful bow, or does it left-leg foremost: this is unbecoming in a great officer at the president's levee. Now, because he is so unfortunate as not to be so good a dancer, as he is a worthy officer, he must be removed. The senate, and this house, may think it necessary to enquire, why a good officer is dismissed? The president will say, it is my pleasure; I am authorised by law to exercise this prerogative; I have my reasons for it, but you have no right to require them of me. This language may be proper in a monarchy, but in a republic every action ought to be accounted for. How can you impeach the president, as was said by the honorable gentleman from Virginia (Mr. Madison), for exercising a power vested in him by law? Sir, it is an absurdity to talk of impeachments on such occasions, when the officer is shielded by the law.
There is a consistency under a monarchy of the king's exercising the power of appointment and removal at pleasure. In Great Britain this is the prerogative of the throne; where it is likewise held a maxim, that the king can do no wrong. The chief magistrate under this constitution is a different character: There is a constitutional tribunal, where he may be arraigned, condemned and punished, if he does wrong. The reason of this distinction I take to be this; the majesty of the people receives an injury when the president commits an improper act; for which they are to receive satisfaction. Kings have a property in government, and when a monarch acts unwisely he injures his own interest, but is accountable to none; because satisfaction is due to himself alone: He is established in his office for life; it is an estate to him which he is interested to transmit to his posterity unimpaired; the good of the people upon principles of interest will be his peculiar study; he ought therefore to have power to act in such a manner as is most likely to secure to him this object; then necessarily he must have the right of choosing or displacing his agents. There can be no difficulty on this point; but in a confederated republic the chief magistrate has no such trust, he is elected but for four years, after which the government goes into other hands, he is not stimulated to improve a patrimony, and therefore has no occasion for complete power over the officers of the government: If he has such power, it can only be made useful to himself by being the means of procuring him a re-election, but can never be useful to the people by inducing him to appoint good officers or remove bad ones. It appears to me, that such unbounded power, vitiates the principles of the constitution; and the officers instead of being the machinery of the government, moving in regular order prescribed by the legislature, will be the mere puppets of the president to be employed or thrown aside as useless lumber according to his prevailing fancy.
If gentlemen will take this step they must take another, and secure the public good by making it the interest of the president to consult it; they must elect him for life, or what will be more consistent still, they must make his office hereditary: then gentlemen may say with some degree of truth, that he ought to have the power of removal, to secure in his hands a balance in the government. But if gentlemen are willing to remain where they are, and abide by the constitution, regarding its true principles, they will not contend that there is a necessity, or even a propriety investing this power in the president alone.
Gentlemen tell us, they are willing to consider this as a constitutional question, and yet the bill shews that they consider the constitution silent; for the clause grants the power in express terms; this also implies that the legislature have a right to interfere with the executive power contrary to their avowed principles. If the legislature has not the power of removal, they cannot confer it upon others; if they have it, it is a legislative power, and they have no right to transfer the exercise of it to any other body; so view this question in whatever point of light you please, it is clear the words ought to be struck out.
Mr. Sherman .
I wish, mr. chairman, that the words may be left out of the bill, without giving up the question either way as to the propriety of the measure. Many of the honorable gentlemen who advocate this clause have labored to shew, that the president has, constitutionally, the power of removal; if it be a well-founded opinion, they ought not to let the words remain in the bill, because they are of such a nature as to imply that he had not the power before it was granted him by the law.
If gentlemen would consent to make a general law, declaring the proper mode of removal, I think we should acquire a greater degree of unanimity, which, on this occasion, must be better than carrying the question against a large minority.
The call for the question being now very general, it was put, shall the words "to be removable by the president," be struck out?
It was determined in the negative; being yeas 20— noes 34.
Mr. Carroll proposed a clause limiting the operation of the act, under a hope that a time would come when the United States would be disengaged from the necessity of supporting a secretary of foreign affairs. He thought the policy of limiting establishments, in their nature not always necessary, evident to every thinking mind; and he hoped congress would pursue the principle on this and every similar occasion. He viewed the natural situation of this country as some security against our being drawn into the vortex of European politics; but the present bill afforded a means of attraction which it was prudent to guard against.
Mr. Benson saw no necessity for the clause; for his mind did not contemplate a time when a secretary of foreign affairs would be an unnecessary or useless officer.
Mr. Madison thought limitations ought never to be made, unless for special reasons; because it would be destructive of the salutary permanency of the laws, which was an object of no inconsiderable magnitude.
Mr. Ames had no doubt of the good intention of the worthy and honorable mover; but he thought a limitation would be injurious. The United States is a member of the society composed of the assemblage of all the nations of the earth; and it is impossible, as a member of this great society, but what there ever will be a natural obligation to maintain an intercourse with them. If the gentleman discovered that he had mistaken his principle, he flattered himself the motion would be withdrawn.
Mr. Stone expressed himself in favor of the motion, in order that the house might preserve their due share of the government. If the officer became expensive, and was so much under the control of the president, he would never consent to the repeal of a law which thus extended his influence.
Mr. Livermore thought, with the honorable gentleman from Maryland (Mr. Carroll) that the United States might look forward to a time when the officer would be unnecessary; and therefore was in favor of the proposed limitation.
Mr. Gerry . I am in favour of something of this kind. But I do not see that it is absolutely necessary we should be obliged to remake our laws every three or four years. This would be giving ourselves much trouble, and causing great expence to our constituents. I do not know but we may manage better in another way. If a gentleman has a carriage and horses, he may sell the horses and keep the carriage; this will not occasion so much expence; he may buy horses again when he wants them. So I would let the bill remain, but limit the appointment of the officer to a term of years; if his continuance is found unnecessary, the law may remain, but his appointment be suspended.
Mr. Boudinot remarked that the house always had the officer in their power; because they could limit his salary, or determine it altogether, if they judged proper.
Mr. Carroll thought the object of his motion favoured by the public opinion. His own sentiments were clearly in favour of it. He did not presume to lead in this business; but should submit to the fate of his amendment.
Mr. Sedgwick was of opinion, that the commerce of America would flourish under the new government; and as that extended, he apprehended the necessity of maintaining this officer would encrease; he should therefore be against the motion.
Mr. Stone . If you make this law permanent, and give permanent salaries, which is very likely to be the case, the house will have no control over this department, unless two-thirds of both houses acquiesce in the repeal.
Mr. White would move to strike out the clause respecting the salary, and then the house might have the check mentioned by the gentleman from Jersey (Mr. Boudinot.)
Mr. Madison said limiting the bill would abridge a power which the committee had declared to belong to the president; but limiting the officer, as mentioned by the gentleman from Massachusetts, would do so in a still greater degree. He thought the power, with respect to granting salary, always secured to the house its due proportion of the powers of government.
[Text omitted. -Ed.]*
    1. William Blackstone, in Commentaries on the Laws of England, I, Ch. 2, Sec. 2, discussed the importance of a balance of power within a constitutional government.
    2. Baldwin, a member of the Federal Convention, surely alludes here to Gerry, his colleague there and in the House of Representatives. Gerry had expressed his concerns about mingling the executive and legislative powers at the Convention and in writings afterwards, most prominently in his October 1787 letter to the Massachusetts legislature (The Documentary History of the Ratification of the Constitution 13:548).
    3. A writ of mandamus commands that a specific action be taken.
    4. Vining is probably referring to the revolt in 1704 against the rule of Augustus II. Having passed an act renouncing their obedience to him, a provisional coalition of Polish nobles, joined by some clergy, elevated to the throne a fellow nobleman, Stanislaw Leszczynski (Cambridge History of Poland, W. F. Reddaway et al., eds. {Cambridge, 1941}, pp. 6-7).
    5. See Senate Executive Journal, p. 9, and The Diary of William Maclay and Other Notes on Senate Debates, pp. 79-82, 127, for an account of the Senate debate over its method of giving consent to nominations.
    6. The good of the people.

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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