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Department of Foreign Affairs.

sition, will, in all probability, be less subject to inconstancy than any other member of the Gov

ernment."

[JUNE, 1789.

years; after which, they supposed a man migh get into power, who, it was possible, might mis behave. We ought to follow their example, an: contemplate this power in the hands of an amb tious man, who might apply it to dangerous purposes. If we give this power to the President, he may, from caprice, remove the most worthy mea from office. His will and pleasure will be the slight tenure by which an office is to be held, and of consequence you render the officer the mere State-dependent, the abject slave of a person whe may be disposed to abuse the confidence his fellow-citizens have placed in him.

Here this author lays it down, that there can be no doubt of the power of the Senate in the business of removal. Let this be as it may, I am_clear_that the President alone has not the power. Examine the Constitution; the powers of the several branches of Government are there defined; the President has particular, powers assigned him; the Judiciary have in like manner powers assigned them; but you will find no such power as removing from office given to the President. I call upon gentlemen to show me where it Another danger may result. If you desire an is said that the President shall remove from office. officer to be a man of capacity and integrity, you I know they cannot do it. Now, I infer from this, may be disappointed. A gentleman possessed of that, as the Constitution has not given the Presi- these qualities, knowing he may be removed at dent the power of removability, it meant that he the pleasure of the President, will be loth to risk should not have that power; and this inference is his reputation on such insecure ground. As the supported by that clause in the Constitution which matter stands in the Constitution, he knows, if he provides that all civil officers of the United States is suspected of doing any thing wrong, he shall shall be removed from office on impeachment for, have a fair trial, and the whole of his transactions and on conviction of treason, bribery, or other be developed by an impartial tribunal. He will high crimes and misdemeanors. Here is a parti- have confidence in himself when he knows he can cular mode prescribed for removing; and if there only be removed for improper behaviour. But if is no other mode directed, I contend that the Con- he is subjected to the whim of any man, it may stitution contemplated only this mode. But let deter him from entering into the service of his me ask gentlemen if any other mode is necessary. country; because, if he is not subservient to that For what cause should a man be removed from person's pleasure, he may be turned out, and the office? Do gentlemen contend that sickness or public may be led to suppose, for improper beignorance would be a sufficient cause? I believe, haviour. This impression cannot be removed, as a if they will reflect, they cannot instance any per- public inquiry cannot be obtained. Besides this, son who was removed for ignorance. I venture it ought to be considered, that the person who is to say there never was an instance of this nature appointed will probably quit some other office or in the United States. There have been instances business in which he is occupied. Ought he, after where a person has been removed for offences. making this sacrifice in order to serve the public, The same may again occur, and are therefore ju- to be turned out of place, without even a reason diciously provided for in the Constitution. But being assigned for such behaviour? Perhaps the in this case, is he removed for his ignorance, or President does not do this with an ill intention; his error, which is the consequence of his igno- he may have been misinformed. For it is prerance? I suppose it is for his error, because the sumable that a President may have around him public are injured by it, and not for incapacity. men envious of the honors and emoluments of The President is to nominate the officer, and the persons in office, who will insinuate suspicions Senate to approve. Here is provision made into his honest breast, that may produce a removal. against the appointment of ignorant officers. Be this as it may, the event is still the same to the They cannot be removed for causes which sub-removed officer. The public suppose him guilty sisted before their coming into office. Their ignorance, therefore, must arise after they are appointed. But this is an unlikely case, and one that cannot be contemplated as probable.

I imagine, sir, we are declaring a power in the President which may hereafter be greatly abused; for we are not always to expect a Chief Magistrate in whom such entire confidence can be placed as in the present. Perhaps gentlemen are so much dazzled with the splendor of the virtues of the present President, as not to be able to see into futurity. The framers of the Constitution did not confine their views to the first person who was looked up to to fill the Presidential chair. If they had, they might have omitted those checks and guards, with which the powers of the Executive are surrounded. They knew, from the course of human events, that they could not expect to be so highly favored of heaven as to have the blessing of his administration more than seven or fourteen

of malpractices. Hence his reputation is blasted, his property sacrificed. I say his property is sacrificed, because I consider his office as his property. He is stripped of this, and left exposed to the malevolence of the world, contrary to the principles of the Constitution, and contrary to the principles of all free Governments, which are, that no man shall be despoiled of his property, but by a fair and impartial trial.

These are serious considerations, and such, I trust, as will make impressions on the minds of gentlemen anxious to promote the public welfare, and secure distributive justice to themselves and their posterity.

When this subject was laid before the committee, it was said that it appeared absurd that an inferior officer should be removed only by impeachment. There is a clause in the Constitution empowering Congress to vest the appointment of inferior officers in the President alone, in courts

S/JUNE, 1789.]

Department of Foreign Affairs.

To return to my argument. I have stated that if the power is given by the Constitution, the declaration in the law is nugatory; and I will add, if it is not given, it will be nugatory also to attempt to vest the power. If the Senate participate, on any principle whatever, in the removal, they will never consent to transfer their power to another branch of the Government; therefore, they will not pass a law with such a declaration in it. Upon this consideration alone, if there was no other, the words should be struck out, and the question of right, if it is one, left to the decision of the Judiciary. It will be time enough to determine the question when the President shall remove an officer in this way. I conceive it can properly be brought before that tribunal; the officer will have a right to a mandamus to be restored to his office, and the judges would determine whether the President exercised a Constitutional authority or not.

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of law, or heads of departments. These offices Mr. SEDGWICK.-I wish the words to be struck may also be established on such terms as the Le-out, because I conceive them to be unnecessary gislature shall judge proper; but neither the ap- in this place. I do conceive, Mr. Speaker, that pointment or removal of heads of departments this officer will be the mere creature of the law; can be otherwise performed than is directed by and that very little need be said to prove to you the Constitution. that of necessity this ought to be the case. I apprehend, likewise, that it requires but a small share of abilities to point out certain causes for which a person ought to be removed from office, without being guilty of treason, bribery, or malfeasance; and the nature of things demands that it should be so. Suppose, sir, a man becomes insane by the visitation of God, and is likely to ruin our affairs, are the hands of Government to be confined from warding off the evil? Suppose a person in office, not possessing the talents he was judged to have at the time of the appointment, is the error not to be corrected? Suppose he acquires vicious habits, an incurable indolence, or total neglect of the duties of his office, which forebode mischief to the public welfare, is there no way to arrest the threatened danger? Suppose he becomes odious and unpopular by reason of the measures which he pursues, (and this he may do without committing any positive offence against the law,) must he preserve his office in despite of Some gentlemen think the Constitution takes the public will? Suppose him grasping at his no notice of this officer, as the head of a depart-own aggrandizement, and the elevation of his conment; they suppose him an inferior officer in aid nexions, by every means short of the treason deof the Executive. This, I think, is going too far; fined by the Constitution, hurrying your affairs because the Constitution, in the words authorizing to the precipice of destruction, endangering your the President to call on the heads of departments domestic tranquillity, plundering you of the means for their opinions in writing, contemplates several of defence, by alienating the affections of your aldepartments. It says, "the principal officer in lies, and promoting the spirit of discord; is there each of the Executive departments." no way suddenly to seize the worthless wretch, and hurl him from the pinnacle of power? Must the tardy, tedious, desultory road, by way of impeachment, be travelled to overtake the man who, barely confining himself within the letter of the law, is employed in drawing off the vital principle of the Government? Sir, the nature of things, the great objects of society, the express objects of this Constitution, require that this thing should be otherwise.

I have seriously reflected on this subject, and am convinced that the President has not this power by the Constitution, and that, if we had the right to invest him with it, it would be dangerous

to do so.

Mr. HUNTINGTON.-I think the clause ought not to stand. It was well observed that the Constitution was silent respecting the removal, otherwise than by impeachment. I would likewise add, that it mentions no other cause of removal, than treason, bribery, or other high crimes and misdemeanors. It does not, I apprehend, extend to cases of infirmity or incapacity. Indeed, it appears hard to me, that after an officer has become old in an honorable service, he should be impeached for this infirmity. The Constitution, I think must be the only rule to guide us on this occasion; as it is silent with respect to the removal, Congress ought to say nothing about it, because it implies that we have a right to bestow it, and I believe this power is not to be found among the enumerated powers delegated by the Constitution to Congress.

It was said, if the President had this authority, it would make him more responsible for the conduct of the officer. But if we have a vicious President, who inclines to abuse this power, which God forbid, his responsibility will stand us in little stead. Therefore, that idea does not satisfy me that it is proper the President should have this power.

Well, sir, this is admitted by gentlemen; but they say the Senate is to be united with the President in the exercise of this power. I hope, sir, this is not the case; because it would involve us in the most serious difficulty. Suppose a discovery of any of those events which I have just enumerated were to take place when the Senate is not in session, how is the remedy to be applied? This is a serious consideration, and the evil could be avoided no other way than by the Senate's sitting always. Surely no gentleman of this House contemplates the necessity of incurring such an expense. I am sure it will be very objectionable to our constituents; and yet this must be done, or the public interest be endangered by keeping an unworthy officer in place until that body shall be assembled from the extremes of the Union.

It has been said that there is danger of this power being abused, if exercised by one man. Certainly the danger is as great with respect to the Senate, who are assembled from various parts

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of the continent, with different impressions and will be very rare in which an unworthy man will opinions. It appears to me that such a body is receive that mark of the public confidence which more likely to misuse this power than the man is required to designate the President of the Uniwhom the united voice of America calls to the ted States. Where the people are disposed to Presidential chair. As the nature of the Govern-give so great an elevation to one of their fellowment requires the power of removal, I think it is to be exercised in this way by a hand capable of exerting itself with effect, and the power must be conferred upon the President by the Constitution, as the executive officer of the Government.

I believe some difficulty will result from determining this question by a mandamus. A mandamus is used to replace an officer who has been removed contrary to law; now, this officer being the creature of the law, we may declare that he shall be removed for incapacity, and, if so declared, the removal will be according to law.

Mr. MADISON.-If the construction of the Constitution is to be left to its natural course, with respect to the Executive powers of this Government, I own that the insertion of this sentiment in law may not be of material importance, though, if it is nothing more than a mere declaration of a clear grant made by the Constitution, it can do no harm; but if it relates to a doubtful part of the Constitution, I suppose an exposition of the Constitution may come with as much propriety from the Legislature, as any other department of the Government. If the power naturally belongs to the Government, and the Constitution is undecided as to the body which is to exercise it, it is likely that it is submitted to the discretion of the Legislature, and the question will depend upon its own merits.

I am clearly of opinion with the gentleman from South Carolina, (Mr. SMITH,) that we ought in this, and every other case, to adhere to the Constitution, so far as it will serve as a guide to us, and that we ought not to be swayed in our decisions by the splendor of the character of the present Chief Magistrate, but to consider it with respect to the merit of men who, in the ordinary course of things, may be supposed to fill the Chair. I believe the power here declared is a high one, and, in some respects, a dangerous one; but, in order to come to a right decision on this point, we must consider both sides of the question: the possible abuses which may spring from the single will of the First Magistrate, and the abuse which may spring from the combined will of the Executive and Senatorial disqualification.

citizens, I own that I am not afraid to place my confidence in him, especially when I know he is impeachable for any crime or misdemeanor before the Senate, at all times; and that, at all events, he is impeachable before the community at large every four years, and liable to be displaced if his conduct shall have given umbrage during the time he has been in office. Under these circumstances, although the trust is a high one, and in some degree, perhaps, a dangerous one, I am not sure but it will be safer here than placed where some gentlemen suppose it ought to be.

It is evidently the intention of the Constitution, that the first Magistrate should be responsible for the Executive department; so far therefore as we do not make the officers who are to aid him in the duties of that department responsible to him, he is not responsible to his country. Again, is there no danger that an officer, when he is appointed by the concurrence of the Senate, and has friends in that body, may choose rather to risk his estab lishment on the favor of that branch, than rest it upon the discharge of his duties to the satisfaction of the Executive branch, which is constitutionally authorized to inspect and control his conduct? And if it should happen that the officers connect themselves with the Senate, they may mutually support each other, and for want of efficacy reduce the power of the President to a mere vapor; in which case, his responsibility would be annihilated, and the expectation of it unjust. The high Executive officers, joined in cabal with the Senate, would lay the foundation of discord, and end in an assumption of the Executive power, only to be removed by a revolution in the Government. I believe no principle is more clearly laid down in the Constitution than that of responsibility. After premising this, I will proceed to an investigation of the merits of the question upon Constitutional ground.

I have, since the subject was last before the House, examined the Constitution with attention, and I acknowledge that it does not perfectly correspond with the ideas I entertained of it from the first glance. I am inclined to think, that a free and systematic interpretation of the plan of When we consider that the First Magistrate is Government will leave us less at liberty to abate to be appointed at present by the suffrages of three the responsibility than gentlemen imagine. I have millions of people, and, in all human probability, already acknowledged that the powers of the in a few years' time by double that number, it is Government must remain as apportioned by the not to be presumed that a vicious or bad charac- Constitution. But it may be contended, that ter will be selected. If the Government of any where the Constitution is silent, it becomes a subcountry on the face of the earth was ever effectu-ject of legislative discretion; perhaps, in the ally guarded against the election of ambitious or designining characters to the first office of the State, I think it may with truth be said to be the case under the Constitution of the United States. With all the infirmities incident to a popular election, corrected by the particular mode of conducting it, as directed under the present system, I think we may fairly calculate that the instances

opinion of some, an argument in favor of the clause may be successfully brought forward on this ground: I, however, leave it for the present untouched.

By a strict examination of the Constitution, on what appears to be its true principles, and considering the great departments of the Government in the relation they have to each other, I have my

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can be placed elsewhere, unless the Constitution has made an exception? The Constitution justifies the Senate in exercising a judiciary power in determining on impeachments; but can the judicial power be further blended with the powers of that body? They cannot. I therefore say it is incontrovertible, if neither the Legislative nor Judicial powers are subjected to qualifications, other than those demanded in the Constitution, that the Executive powers are equally unabateable as either of the others; and inasmuch as the power of removal is of an Executive nature, and not affected by any Constitutional exception, it is beyond the reach of the Legislative body.

doubts whether we are not absolutely tied down | Court; but will gentlemen say the judicial power to the construction declared in the bill. In the first section of the first article, it is said, that all Legislative powers herein granted shall be vested in a Congress of the United States. In the second article, it is affirmed that the Executive power shall be vested in a President of the United States of America. In the third article, it is declared that the Judicial power of the United States shall be vested in one Supreme Court, and in such Inferior Courts as Congress may, from time to time, ordain and establish. I suppose it will be readily admitted, that so far as the Constitution has separated the powers of these great departments, it would be improper to combine them together; 12 and so far as it has left any particular department If this is the true construction of this instruin the entire possession of the powers incident to ment, the clause in the bill is nothing more than that department, I conceive we ought not to qual-explanatory of the meaning of the Constitution, ify them further than they are qualified by the Constitution. The Legislative powers are vested in Congress, and are to be exercised by them uncontrolled by any other department, except the Constitution has qualified it otherwise. The Constitution has qualified the Legislative power, by authorizing the President to object to any act it may pass, requiring, in this case, two-thirds of both Houses to concur in making a law; but still the absolute Legislative power is vested in the Congress with this qualification alone.

The Constitution affirms, that the Executive power shall be vested in the President. Are there exceptions to this proposition? Yes, there are. The Constitution says, that in appointing to office, the Senate shall be associated with the President, unless in the case of inferior officers, when the law shall otherwise direct. Have we a right to extend this exception? I believe not. If the Constitution has invested all Executive power in the President, I venture to assert that the Legislature has no right to diminish or modify his Executive authority.

and therefore not liable to any particular objection on that account. If the Constitution is silent, and it is a power the Legislature have a right to confer, it will appear to the world, if we strike out the clause, as if we doubted the propriety of vesting it in the President of the United States. I therefore think it best to retain it in the bill.

Mr. VINING. I hoped, Mr. Chairman, after the discussion this subject had received on a former occasion, that it would have been unnecessary to re-examine it. The arguments against the clause are reiterated: but, I trust, without a chance of success. They were fully answered before; and I expect the impressions made at that time are not already effaced. The House, as well as the Committee of the Whole, have determined that those words shall be inserted in the bill; the special committee could therefore do no less than place them where they are; a deference is due to the decision of the House.

The House has determined to make a declaration of their construction on the Constitution. I am perfectly in sentiment with the majority on this occasion; and contend, that if this power is not in the President, it is not vested in any body whatever. It cannot be within the Legislative power of the Senate, because it is of an adverse nature; it cannot be within the Executive power of the Senate, because they possess none but what is expressly granted by the Constitution. If gentlemen will point out where the Constitution confers this power upon the Senate, I will read my recantation, and subscribe to the justness of their doctrine.

The question now resolves itself into this, Is the power of displacing, an Executive power? I conceive that if any power whatsoever is in its nature Executive, it is the power of appointing, overseeing, and controlling those who execute the laws. If the Constitution had not qualified the power of the President in appointing to office, by associating the Senate with him him in that business, would it not be clear that he would have the right, by virtue of his Executive power, to make such appointment? Should we be authorized, in defiance of that clause in the Constitution,-"The I am not satisfied that removability shall be acExecutive power shall be vested in a President," quired only by impeachment. Were the advoto unite the Senate with the President in the ap-cates of this doctrine aware of its consequences, pointment to office? I conceive not. If it is admitted that we should not be authorized to do this, I think it may be disputed whether we have a right to associate them in removing persons from office, the one power being as much of an Executive nature as the other; and the first only is authorized by being excepted out of the general rule established by the Constitution, in these words, "the Executive power shall be vested in the President."

The Judicial power is vested in a Supreme

when they advanced it? The Senate has the sole power of trying impeachments; the President is here out of the question. If no officer can be Constitutionally removed but by impeachment, it applies to subordinate officers as well as heads of departments. For the Constitution only gives power to Congress to establish officers by law, and vests the appointment in the President. If these officers are not removable but by impeachment, what is to become of our affairs, when any of the accidents occur which were enumerated by the

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[JUNE, 1789.

gentleman from Massachusetts (Mr. SEDGWICK?) by impeachment. The President and Vice PresiAre we to take the circuitous route of impeach-dent hold their offices for the terms mentioned in ment? The dilatory and inefficient process by the Constitution, not liable to be removed from that mode, will not apply the remedy to the evil office in any other way. These circumstances are till it is too late to be of advantage. Experience a deviation from my general principle; but have has fixed an eternal stigma upon the system of nevertheless a proper ground to be supported on. impeachment; witness the case I mentioned, the The electors who appoint the President, cannot other day, of Warren Hastings before the British assemble to exercise the authority which would Lords; what delays and uncertainty with the naturally be in them. With respect to the judges, forms of trial, details of evidence, arguments of it is found necessary for the proper and uncorcounsel, and deliberate decision! I ask gentlemen, rupt administration of justice, and the security of can there be a greater evil than this in any Gov-freedom, to have them independent in their staernment? Why, then, will gentlemen advocate tions, so that they be not removable at pleasure. a doctrine so obnoxious to the principles of the To them, therefore, the doctrine of impeachment Constitution, when a more favorable construction is peculiarly applicable. It may properly be exis at hand? tended further, in cases where the President is desirous of retaining an officer who ought not to be retained. This House has the power of controlling him, and may impeach the officer before the Senate. In either of these three cases impeachments are necessary.

As to the principle of the gentleman from Virginia, (Mr. WHITE,) that he who appoints must remove; it may be a good one, but it is not a general one. Under this Government, officers appointed by the people are removed by the representatives of the State Legislatures. I take it that the best principle is, that he who is responsible for the conduct of the officer, ought to have the power of removing him; by adhering to this principle, we shall be led to make a right decision on the point in debate. Perhaps it might be equally right that the responsible person should have the appointment of those who are to aid him. But this case is qualified by an express stipulation in the Constitution; and, therefore, must be submitted to. Yet, nevertheless, the responsibility is kept up: the President takes the lead in the business; he nominates, wherefore he becomes answerable for the officer. But whose officer is he? Not the Senate's ; for they have no Executive business to perform. The executive duties are all vested in the President. Then the President executes the duties of foreign affairs. He is answerable for his conduct-to whom? To be sure, to the Senate. But he does not appoint the officer; he first selects, without advice of the Senate; he cannot appoint. This is a check to an improper choice; but does not destroy the responsibility of the President, if he nominates a vicious or improper character.

I have no doubt in my mind, but an officer can be removed without a public trial. I think there are cases in which it would be improper that his misdemeanors should be publicly known. The tranquillity and harmony of the Union might be endangered, if his guilt was not secreted from the world. I have therefore no hesitation in declaring as my sentiment, that the President and Senate may dismiss him.

The Constitution contemplates a removal in some other way besides that by impeachment; or why is it declared in favor of the judges only, that they shall hold their offices during good behaviour? Does not this strongly imply, that, without such an exception, there would have been a discretionary power in some branch of the Government to dismiss even them?

My colleague (Mr. MADISON) has acknowl edged the clause to be unnecessary, if the Constitution is allowed its free operation. Now it is my wish that it should have such an operation, and not be wrested by a declaration in a law con trary to what I take to be the true construction. If we are silent on this point, it will probably be allowed a fair interpretation when the power is required to be exercised; but if it could not be adjusted easily in that place, I would rather the Judiciary should decide the point, because it is more properly within their department.

I differ also with my colleague in the principle that he has laid down, that this is in its nature an Executive power. The Constitution supposes

It may be contended, on the gentleman's principles, that the President shall have the power of removal; because it is he who appoints. The Constitution says, he shall nominate, and, under certain qualifications, appoint. The Senate do not appoint; their judgment only is required to acquiesce in the President's nomination. Where, then, is the natural responsibility placed? Be-power incident to Government, and arranges it cause, where that is, ought to be the power of re-into distinct branches, with or without checks; moval. The Constitution contemplates no other but it enumerates under each Department the principle. If we were to insert a contrary one, powers it may exercise. The Legislature may the Government must go to destruction. exert its authority in passing laws relating to any of its particular powers. The Executive power is vested in the President; but the Executive powers so vested, are those enumerated in the Constitution. He may nominate, and, by and with the advice and consent of the Senate, appoint all officers, because the Constitution gives this power, and not because the power is in its nature a power incident to his department. My ideas of

Mr. WHITE.-Mention has been made of impeachments, as the only mode of removing an officer. I will explain my ideas on this point, in order that the committee may be masters of my particular objections to the clause. I consider impeachments necessary to be employed in cases respecting an officer who is appointed during good behaviour. Thus the judges can only be removed

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