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Department of Foreign Affairs.

[JUNE, 1789.

is not to depend upon the President for his official contend for will not enable him to do this; for if existence, but upon a distinct body, (for where an unworthy man be continued in office by an unthere are two negatives required, either can pre-worthy President, the House of Representatives vent the removal,) I confess I do not see how the President can take care that the laws be faithfully executed. It is true, by a circuitous operation he may obtain an impeachment, and even without this it is possible he may obtain the concurrence of the Senate, for the purpose of displacing an officer; but would this give that species of control to the Executive Magistrate which seems to be required by the Constitution? I own, if my opinion was not contrary to that entertained by what I suppose to be the minority on this question, I should be doubtful of being mistaken, when I discovered how inconsistent that construction would make the Constitution with itself. I can hardly bring myself to imagine the wisdom of the convention who framed the Constitution contemplated such incongruity.

can at any time impeach him, and the Senate can remove him, whether the President chooses or not. The danger then consists merely in this: the President can displace from office a man whose merits require that he should be continued in it. What will be the motives which the President can feel for such abuse of his power, and the restraints that operate to prevent it? In the first place, he will be impeachable by this House, before the Senate for such an act of mal-administration; for I contend that the wanton removal of meritorious officers would subject him to impeachment and removal from his own high trust. But what can be his motives for displacing a worthy man? It must be that he may fill the place with an unworthy creature of his own. Can he accomplish this end? No; he can place no man in There is another maxim which ought to direct the vacancy whom the Senate shall not approve; us in expounding the Constitution, and is of great and if he could fill the vacancy with the man he importance. It is laid down, in most of the might choose, I am sure he would have little inConstitutions or bills of rights in the republics of ducement to make an improper removal. Let us America; it is to be found in the political writings consider the consequences. The injured man will of the most celebrated civilians, and is every be supported by the popular opinion; the commuwhere held as essential to the preservation of nity will take side with him against the Presiliberty, that the three great departments of Gov-dent; it will facilitate those combinations, and ernment be kept separate and distinct; and if in any case they are blended, it is in order to admit a partial qualification, in order more effectually to guard against an entire consolidation. I think, therefore, when we review the several parts of this Constitution, when it says that the Legislative powers shall be vested in a Congress of the United States, under certain exceptions, and the Executive power vested in the President with certain exceptions, we must suppose they were intended to be kept separate in all cases in which they are not blended, and ought, consequently, to expound the Constitution so as to blend them as little as possible.

give success to those exertions which will be pursued to prevent his re-election. To displace a man of high merit, and who from his station may be supposed a man of extensive influence are considerations in the mind of any man who may fill the Presidential chair. The friends of those individuals and the public sympathy will be against him. If this should not produce his impeachment before the Senate, it will amount to an impeachment before the community, who will have the power of punishment, by refusing to re-elect him. But suppose this persecuted individual cannot obtain revenge in this mode; there are other modes in which he could make the situation of the PresiEvery thing relative to the merits of the ques-dent very inconvenient, if you suppose him resotion as distinguished from a Constitutional ques-lutely bent on executing the dictates of resenttion, seems to turn on the danger of such a power ment. If he had not influence enough to direct vested in the President alone. But when I con- the vengeance of the whole community, he may sider the checks under which he lies in the exer- probably be able to obtain an appointment in one cise of this power, I own to you I feel no appre- or the other branch of the Legislature; and being hensions but what arise from the dangers inciden- a man of weight, talents, and influence, in either tal to the power itself; for dangers will be inci- case he may prove to the President troublesome dental to it, vest it where you please. I will not indeed. We have seen examples in the history reiterate what was said before with respect to the of other nations, which justifies the remark I now mode of election, and the extreme improbability have made. Though the prerogatives of the Britthat any citizen will be selected from the mass of ish King are great as his rank, and it is unquescitizens who is not highly distinguished by his tionably known that he has a positive influence abilities and worth; in this alone we have no over both branches of the legislative body, yet small security for the faithful exercise of this there have been examples in which the appointpower. But, throwing that out of the question, ment and removal of ministers have been found let us consider the restraints he will feel after he to be dictated by one or other of those branches. is placed in that elevated station. It is to be re- Now if this be the case with an hereditary Monmarked, that the power in this case will not con- arch, possessed of those high prerogatives and sist so much in continuing a bad man in office, as furnished with so many means of influence; can in the danger of displacing a good one. Perhaps we suppose a President, elected for four years onthe great danger, as has been observed, of abuse ly, dependent upon the popular voice, impeachain the Executive power, lies in the improper con- ble by the Legislature, little, if at all, distinguishtinuance of bad men in office. But the power weed for wealth, personal talents, or influence from

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Department of Foreign Affairs.

[H.or R.

Another species of argument has been urged against this clause. It is said, that it is improper, or at least unnecessary, to come to any decision on this subject. It has been said by one gentleman, that it would be officious in this branch of the Legislature to expound the Constitution, so far as it relates to the division of power between the President and Senate; it is incontrovertibly of as much importance to this branch of the Government as to any other, that the Constitution should be preserved entire. It is our duty, so far as it depends upon us, to take care that the powers of the Constitution be preserved entire to every department of Government; the breach of the Constitution in one point, will facilitate the breach in another; a breach in this point may destroy that equilibrum by which the House retains its consequence and share of power; therefore we are not chargeable with an officious interference. Besides, the bill, before it can have effect, must be submitted to both those branches who are particularly interested in it; the Senate may negative, or the President may object, if he thinks it unconstitutional.

the head of the department himself; I say, will be vested; if any thing in its nature is executive, he bid defiance to all these considerations, and it must be that power which is employed in suwantonly dismiss a meritorious and virtuous offi-perintending and seeing that the laws are faithcer? Such abuse of power exceeds my concep- fully executed. The laws cannot be executed but tion. If any thing takes place in the ordinary by officers appointed for that purpose; therefore, course of business of this kind, my imagination those who are over such officers naturally possess cannot extend to it on any rational principle. But the Executive power. If any other doctrine be let us not consider the question on one side only; admitted, what is the consequence? You may there are dangers to be contemplated on the other. set the Senate at the head of the Executive deVest this power in the Senate jointly with the partment, or you may require that the officers President, and you abolish at once that great prin- hold their places during the pleasure of this branch ciple of unity and responsibility in the Executive of the Legislature, if you cannot go so far as to department, which was intended for the security say we shall appoint them ; and by this means, you of liberty and the public good. If the President link together two branches of the Government should possess alone the power of removal from which the preservation of liberty requires to be office, those who are employed in the execution of constantly separated. the law will be in their proper situation, and the chain of dependence be preserved; the lowest officers, the middle grade, and the highest, will depend, as they ought, on the President, and the President on the community. The chain of dependence therefore terminates in the supreme body, namely, in the people, who will possess, besides, in aid of their original power, the decisive engine of impeachment. Take the other supposition; that the power should be vested in the Senate, on the principle that the power to displace is necessarily connected with the power to appoint. It is declared by the Constitution, that we may by law vest the appointment of inferior officers in the heads of departments; the power of removal being incidental, as stated by some gentlemen. Where does this terminate? If you begin with the subordinate officers, they are dependent on their superior, he on the next superior, and he on-whom? On the Senate, a permanent body; a body, by its particular mode of election, in reality existing forever; a body possessing that proportion of aristocratic power which the Constitution no doubt thought wise to be established in the system, but which some have strongly excepted against. And let me ask gentlemen, is there equal security in this case as in the other? Shall we trust the Senate, responsible to individual Legislatures, rather than the person who is responsible to the whole community? It is true, the Senate do not hold their offices for life, like aristocracies recorded in the historic page; yet the fact is, they will not possess that responsibility for the exercise of Executive powers which would render it safe for us to vest such powers in them. But what an aspect will this give to the Executive? Instead of keeping the departments of Government distinct, you make an Executive out of one branch of the Legislature; you make the Executive a two-headed monster, to use the expression of the gentleman from New Hampshire, (Mr. LIVERMORE,) you destroy the great principle of responsibility, and perhaps have the creature divided in its will, defeating the very purposes for which a unity in the Executive was instituted. These objections do not lie against such an arrangement as the bill establishes. I conceive that the President is sufficiently accountable to the community; and if this power is vested in him, it will be vested where its nature requires it should 1st CoN.-17

But the great objection drawn from the source to which the last arguments would lead us is, that the Legislature itself has no right to expound the Constitution; that wherever its meaning is doubtful, you must leave it to take its course, until the Judiciary is called upon to declare its meaning. I acknowledge, in the ordinary course of Government, that the exposition of the laws and Constitution devolves upon the Judiciary. But I beg to know, upon what principle it can be contended, that any one department draws from the Constitution greater powers than another, in marking out the limits of the powers of the several departments? The Constitution is the charter of the people to the Government; it specifies certain great powers as absolutely granted, and marks out the departments to exercise them. If the Constitutional boundary of either be brought into question, I do not see that any one of these independent departments has more right than another to declare their sentiments on that point.

Perhaps this is an omitted case. There is not one Government on the face of the earth, so far as I recollect, there is not one in the United States, in which provision is made for a particular authority to determine the limits of the Constitu

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Department of Foreign Affairs.

[JUNE, 1789.

will agree, that this House has not the power of removal; they will also agree that it does not ves! in the Judiciary; then it must vest in the Presi dent, or the President by and with the advice and consent of the Senate; in either of these cases. the clause is altogether useless and nugatory. I is useless if the power vests in the President; because, when the question comes before him, he will decide upon the provision made in the Constitution, and not on what is contained in this clause. If the power vests in the President and Senate, the Senate will not consent to pass the bill with this clause in it; therefore the attempt is nugatory. But if the Senate will assent to the exercise of the power of removal by the President alone, whenever he thinks proper to use it so. then in that case the clause is, as I said before. both useless and nugatory.

tional division of power between the branches of the Government. In all systems there are points which must be adjusted by the departments themselves, to which no one of them is competent. If it cannot be determined in this way, there is no resource left but the will of the community, to be collected in some mode to be provided by the Constitution, or one dictated by the necessity of the case. It is therefore a fair question, whether this great point may not as well be decided, at least by the whole_Legislature as by a part, by us as well as by the Executive or Judiciary? As I think it will be equally Constitutional, I cannot imagine it will be less safe, that the exposition should issue from the Legislative authority than any other; and the more so, because it involves in the decision the opinions of both those departments, whose powers are supposed to be affected by it. Besides, I do not see in what way this The second question which I proposed to exquestion could come before the judges, to obtain amine is, to whom the power of removal is coma fair and solemn decision; but even if it were the mitted. The gentlemen in favor of this clause case that it could, I should suppose, at least while have not shown that, if the construction that the the Government is not led by passion, disturbed power vests in the President and Senate, is adby faction, or deceived by any discolored medium mitted, it will be an improper construction. I call of sight, but while there is a desire in all to see on gentlemen to point out the impropriety, if they and be guided by the benignant ray of truth, that discover any. To me, it appears to preserve the the decision may be made with the most advan-unity of the several clauses of the Constitution; tage by the Legislature itself.

My conclusion from these reflections is, that it will be Constitutional to retain the clause; that it expresses the meaning of the Constitution as must be established by fair construction, and a construction which, upon the whole, not only consists with liberty, but is more favorable to it than any one of the interpretations that have been proposed.

while their construction produces a clashing of powers, and renders of none effect some powers the Senate by express grants possess. What bePresident can remove at discretion? Their power comes of their power of appointing, when the of judging is rendered vain by the President's dismission; for the power of judging implies the power of dismissing, which will be totally insignificant in its operation, if the President can imMr. GERRY.-I am clearly of opinion with the mediately dismiss an officer whom they have gentleman last up, that it is of importance to de-judged and declared innocent. cide this question on its true principles; and am free to declare, that I shall be as ready to oppose every innovation or encroachment on the rights of the Executive as upon those of the Legislature. I conceive myself bound to do this, not only by oath, but by an obligation equally strong-I mean the obligation of honor.

I wish, sir, to consider this question so far, as to ascertain whether it is, or is not, unconstitutional. I have listened with attention to the arguments which have been urged on both sides; and it does appear to me, that the clause is as inconsistent with the Constitution as any set of words which could possibly be inserted in the bill.

an impeachment for dismissing a good man. This It is said, that the President will be subject to House impeach the President for doing an act in my mind involves an absurdity. How can the which the Legislature has submitted to his dis

cretion?

But what consequence may result from giving the President the absolute control over all officers? Among the rest, I presume he is to have an unlimited control over the officers of the Treasury. I think if this is the case, you may as well give him at once the appropriation of the revenue; for of what use is it to make laws on this head, when the President, by looking at the officer, can make it his interest to break him? We may expect to see institutions arising under the control of the revenue, and not of the law.

There are two questions relative to this clause: The first, whether the sovereignty of the Union has delegated to the Government the power of removal? And the second, to whom? That they have delegated such power has been clearly Little then will it answer to say we can improved by the gentlemen who advocate the cause; peach the President, when he can easily cover all who justly say, if the power is not delegated, the his crimes by an application of the revenue to clause in the Constitution declaring the appoint-those who are to try him. This application would ment of judges to be during good behaviour would be nugatory, unless some branch of Government could otherwise have removed them from office. As to the second question, it depends upon the first; if the power is delegated, it must vest in some part of the Government. The gentlemen

I

certainly be made in case of a corrupt President; and it is against corruption in him that we must endeavor to guard; not that we fear any thing from the virtuous character who now fills the Executive chair; he is perhaps to be safer trusted with such a power than any man on earth; but it

Department of Foreign Affairs.

But, if we give the President the power to remove, (though I contend if the Constitution has It is said, that the power to advise the Presinot given it him, there is no power on earth that dent in appointing officers, is an exception to a can except the people, by an alteration of the general rule. To what general rule? That the Constitution, though I will suppose it for argu- President, being an Executive officer, has the ment's sake,) you virtually give him a consider-right of appointing. From whence is this geneable power over the appointment, independent of ral rule drawn? Not from the Constitution, nor the Senate; for if the Senate should reject his from custom, because the State Governments are first nomination, which will probably be his favor- generally against it. Before the gentleman had ite, he must continue to nominate until the Senate reasoned from this general rule, he ought to have concur; then immediately after the recess of the demonstrated that it was one; he ought to have Senate he may remove the officer, and introduce shown that the President, ex officio, had the his own creature, as he has this power expressly power to appoint and remove from office; that it by the Constitution. The influence created by was necessarily vested in the Executive branch this circumstance, would prevent his removal of the Government. from an office which he held by a temporary appointment from his patron.

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Department of Foreign Affairs.

sident to obtain the opinions of the heads of departments in writing; so the President and Senate may require the opinion of judges respecting this power, if they have any doubts concerning it. View the matter in any point of light, and it is utterly impossible to admit this clause. It is both useless and unnecessary; it is inconsistent with the Constitution, and is an officious interference of the House in a business which does not properly come before them. We expose ourselves to most dangerous innovations by future Legislatures, which may finally overturn the Constitution itself.

[JUNE, 1789.

with suspicions of a very delicate nature, relative to the transactions of the officer, and such as from circumstances would be injurious to name; indeed, he may be so situated that he will not, cannot, give the evidence of his suspicion. Now, thus circumstanced, suppose he should propose to the Senate to remove the Secretary of Foreign Affairs; are we to expect the Senate will, without any reason being assigned, implicitly submit to his proposition? They will not. Suppose he should say, he suspected the man's fidelity; they would say we must proceed further, and know the reason for this suspicion; they would insist on a full communication. Is it to be supposed that this man will not have a single friend in the Senate who will contend for a fair trial and a full hearing? The President then becomes the plaintiff, and the Secretary the defendant. The Senate are sitting in judgment between the Chief Magistrate of the United States and a subordinate officer. Now, I submit to the candor of the gentlemen, whether this looks like good government? Yet in every instance when the President thinks proper to have an officer removed, this absurd scene must be displayed. How much better, even on principles of expediency, will it be, that the President alone have the power of removal.

Mr. BENSON. The question has been stated as respecting a construction of the Constitution; and it has been asked, how this meaning is to be determined? I suppose a legislative construction is to be admitted, as I conceive there must be given, generally, to the Government, the power of removal at pleasure; because it cannot be rationally intended that all offices should be held during good behaviour, because the Constitution has declared one office to be held by this tenure. If, then, the Constitution intends that all other offices shall be held during will and pleasure, the question will be, during whose will and pleasure? If we declare in the bill that the officer shall be removable by the President, it has the appearance of conferring the power upon him. Now, I think this improper; because it would be admitting the House to be possessed of an authority which would destroy those checks and balances which are cautiously introduced into the Constitution, to prevent an amalgamation of the legislative and executive powers. For this reason, I shall take the liberty of submitting an alteration, or change in the manner of expression, so that the law may be nothing more than a declaration of our sentíments upon the meaning of a Constitutional grant of power to the President. Can the gentleman be serious who tells us, that this is a case to be proposed as an amendment to the Constitution? Does he suppose, whenever a doubt arises in this House, (and it will be a doubt, if an individual doubts,) with respect to the meaning of any part of the Constitution, we must take that mode? Or does he really suppose that we are never to take any part of the Constitution by construction? This I conceive to be altogether inadmissible; for it is not in the compass of human wis-ing an officer be sufficient to prevent mal-conduct? dom to frame a system of Government so minutely, but that a construction will, in some cases, be necessary. This is such a case; and we ought most assuredly to declare our sentiments on the occasion.

I will not repeat what has been said, to prove that the true construction is, that the President alone has the power of removal; but will state a case to show the embarrassment which must arise by a combination of the Senatorial and Legislative authority in this particular. I will instance the officer to which the bill relates. To him will necessarily be committed negotiations with the Ministers of foreign Courts. This is a very delicate trust. The supreme Executive officer, in superintending this department, may be entangled

It has been warmly contended, that the power of removal is incidental to the power of appointment. It may be true in general, but upon examination, we shall find there is a distinction in this case from what the general principle supposes. If the President and Senate are to be considered as one body, deliberating together on the business of appointments, every individual of which participates equal powers, the reasoning that has been urged will hold good. But I take it for granted that they are two distinct bodies, and can only give a simple affirmative or negative. No member of the Senate has power to offer an original proposition. In short, the moment we depart from this simple idea, that the provision in the Constitution is intended for any other purpose but to prevent the President from introducing improper persons into office, we shall find it difficult to form any certain principle upon which they ought to act; and our opinions and deliberations will be discordant and distracted.

Gentlemen ask, will not the power of suspend

Here is some inconsistency in their arguments. They declare that Congress have no right to construe the Constitution in favor of the Presi dent, with respect to removal; yet they propose to give a construction in favor of the power of suspension being exercised by him. Surely gentlemen do not pretend that the President has the power of suspension granted expressly by the Constitution; if they do, they have been more successful in their researches into that instrument than I have been. If they are willing to allow a power of suspending, it must be because they construe some part of the Constitution in favor of such a grant. The construction in this case must be equally unwarrantable. But admitting it proper to grant this power, what then? When an officer