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JUNE, 1789.]

Department of Foreign Affairs.

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the Legislative and Executive powers are pre-construction of the Constitution necessary to be cisely the same. The Legislature may do certain settled for the direction of your officers. But if acts because the Constitution says they shall have it is a deviation from the Constitution, or in the power to do them, and the Executive Magistrate least degree an infringement upon the authority is authorized to exercise powers because they are of the other branch of the Legislature, I shall vested in him by the same instrument. It has most decidedly be against it. But I think it will given him the power of appointment under cer- appear, on a full consideration of this business, tain qualifications; the power of removal is in- that we can do no otherwise than agree to this cident to the power of appointment, and both construction, in order to preserve to each Departequally dependent upon the arrangement made in ment the full exercise of its powers, and to give the Constitution; consequently, a dismission from this House security for the proper conduct of the office must be brought about by the same modifi- officers who are to execute the laws. cation as the appointment.

Several objections have arisen from the inconvenience with which the power must be exercised, if the Senate is blended with the Executive; and therefore it is inferred that the President ought exclusively to have this power. If we were framing a Constitution, these arguments would have their proper weight, and I might approve such an arrangement. But at present, I do not consider we are at liberty to deliberate on that subject. The Constitution is already formed, and we can go no further in distributing the powers than the Constitution warrants.

It was objected that the President could not remove an officer unless the Senate was in session; but yet the emergency of the case might demand an instant dismission. I should imagine that no inconvenience would result on this account; because, on my principle, the same power which can make a temporary appointment, can make an equal suspension; the powers are apposite to each other.

The gentleman says, we ought not to blend the Executive and Legislative powers further than they are blended in the Constitution. I contend we do not. There is no expression in the Constitution which says that the President shall have the power of removal from office; but the contrary is strongly implied; for it is said, that Congress may establish offices by law, and vest the appointment, and consequently the removal, in the President alone, in the courts of law, or heads of Departments. Now, this shows that Congress are not at liberty to make any alteration by law in the mode of appointing superior officers; and, consequently, that they are not at liberty to alter the manner of removal.

Let us, then, leave the constitution to a free operation, and let the President, with or without the Senate, carry it into execution. Then, if any one supposes himself injured by their determination, let him have recourse to the law, and its decision will establish the true construction of the Constitution.

MR. BOUDINOT.-This is a question, Mr. Speaker, that requires full consideration, and ought only to be settled on the most candid discussion. It certainly involves the right of the Senate to a very important power. At present, I am so impressed with the importance of the subject, that I dare not absolutely decide on any principle, although I am firmly persuaded we ought to retain the clause in the bill; and, so far as it has been examined, I agree that it is a Legislative 1st CoN.-16

The arguments adduced, are to show that the power of removal lies either in the President and Senate, or the President alone, except in the cases of removal by impeachment. There is nothing, I take it, in the Constitution, or the reason of the thing, that officers should be only removable by impeachment. Such a provision would be derogatory to the powers of Government, and subversive of the rights of the people. What says the Constitution on the point? (I fear, sir, it has not been rightly comprehended.) That the House of Representatives shall have the sole power of impeachment; that the Senate shall have the sole power to try all impeachments; and judgment shall not extend further than to removal from office, and disqualification to hold it in future. Then comes the clause declaring absolutely that he shall be removed from office on impeachment for, and on conviction of treason, bribery, or other high crimes or misdemeanors. It is this clause which guards the rights of the House, and enables them to pull down an improper officer, although he should be supported by all the power of the Executive. This, then, is a necessary security to the people, and one that is wisely provided in the Constitution. But I believe it is nowhere said that officers shall never be removed but by impeachment; but it says they shall be removed on impeachment. Suppose the Secretary of Foreign Affairs shall misbehave, and we impeach him; notwithstanding the clearest proof of guilt, the Senate might only impose some trifling punishment, and retain him in office, if it were not for this declaration in the Constitution.

Neither this clause, nor any other, goes so far as to say it shall be the only mode of removal; therefore we may proceed to inquire what the other is. Let us examine whether it belongs to the Senate and President. Certainly, sir, there is nothing that gives the Senate this right in express terms: but they are authorized, in express words to be concerned in the appointment. And does this necessarily include the power of removal? If the President complains to the Senate of the misconduct of an officer, and desires their advice and consent to the removal, what are the Senate to do? Most certainly they will inquire if the complaint is well founded. To do this, they must call the officer before them to answer. Who, then, are the parties? The supreme Executive officer against his assistant; and the Senate are to sit as judges to determine whether sufficient cause of removal exists. Does not this set the Senate over the head of the President?

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Department of Foreign Affairs.

But suppose they shall decide in favor of the officer, what a situation is the President then in, surrounded by officers with whom, by his situation, he is compelled to act, but in whom he can have no confidence, reversing the privilege given him by the Constitution, to prevent his having officers imposed upon him who do not meet his approbation?

But I have another more solid objection, which places the question in a more important point of view. The Constitution has placed the Senate as the only security and barrier between the House of Representatives and the President. Suppose the President has desired the Senate to concur in removing an officer, and they have declined; or suppose the House has applied to the President and Senate to remove an officer obnoxious to them, and they determine against the measure, the House can have recourse to nothing but an impeachment, if they suppose the criminality of the officer will warrant such a procedure. Will the Senate then be that upright court which they ought to appeal to on this occasion, when they have prejudged your cause? I conceive the Senate will be too much under the control of their former decision, to be a proper body for this House to apply to for impartial justice.

As the Senate are the dernier resort, and the only court of judicature which can determine on cases of impeachment, I am for preserving them free and independent, both on account of the officer and this House. I therefore conceive that it was never the intention of the Constitution to vest the power of removal in the President and Senate; but, as it must exist somewhere, it rests on the President alone. I conceive this point was made fully to appear by the honorable gentleman from Virginia, (Mr. MADISON,) inasmuch as the President is the supreme Executive officer of the United States.

If the doctrine of the gentleman from South Carolina is true, then it follows, that every officer has perpetuity in office, at least during good behaviour. If this is to be the case, there was no necessity for declaring in the Constitution that the judges shall hold their offices during good behaviour. This would be destroying the responsibility of the President, and establishing such a principle in the Government as would be extremely dangerous.

It was asked, if ever we knew a person removed from office by reason of sickness or ignorance. If there never was such a case, it is, perhaps, nevertheless proper that they should be removed for those reasons; and we shall do well to establish the principle.

Suppose your Secretary of Foreign Affairs rendered incapable of thought or action by a paralytic stroke: I ask whether there would be any propriety in keeping such a person in office, and whether the salus populi, the first object of republican Governments, does not absolutely demand his dismission. Can it be expected that the President is responsible for an officer under these circumstances, although when he went into office he might have been a wise and virtuous man,

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and the President well inclined to risk his own reputation upon the integrity and abilities of the person?

I conceive it will be improper to leave the determination of this question to the judges. There will be some indelicacy in subjecting the Executive action in this particular to a suit at law; and there may be much inconvenience if the President does not exercise this prerogative until it is decided by the courts of justice.

From these considerations, the safety of the people, the security of this House, and the adherence to the spirit of the Constitution, I am disposed to think the clause proper; and as some doubts respecting the construction of the Constitution have arisen, I think it also necessary. Therefore, I hope it will remain.

Mr. SMITH, of South Carolina.-I have attended to the arguments of the gentlemen who oppose the motion for striking out, and I apprehend that their reasoning is not perfectly consistent. The construction of some gentlemen is, that the power of removal is given to the President by the Constitution. Others are of opinion that the Constitution is silent; and therefore the House ought to give it. To oppose these adverse arguments, I must return to my strong ground on which my opponents dare not venture. I state again, that if the Constitution has given the power, it is unnecessary to give it here; or if it has not given it, we have no right to confer it, because it is not within the enumerated powers delegated to Congress.

Gentlemen have said that it is proper to give a legislative construction of the Constitution. I differ with them on this point. I think it an infringement of the powers of the judiciary. It is said, we ought not to blend the legislative, executive, or judiciary powers, further than is done by the Constitution; and yet the advocates for preserving each department pure and untouched by the others, call upon this House to exercise the powers of the judges in expounding the Constitution. What authority has this House to explain the law? But if it has this privilege, the Senate is also invested with it as part of the Legislature; and, in exercising it on the present question, we shall be likely to differ. If the Constitution is silent, and gentlemen admit this, it is possible the Senate may view it with a favorable eye to their own right, and reject the bill on account of this clause. A great deal of mischief has arisen in the several States, by the Legislatures undertaking to decide Constitutional questions. Sir, it is the duty of the Legislature to make laws; your judges are to expound them.

It has been said, that cases of impeachment do not extend to officers who are indolent or delirious. I said before, that if a person become indolent, he will neglect his duty, and for that cause I presume he may be impeached. Gentlemen have found out that impeachment is a tedious process; I apprehend the person who is impeached will not think it a dilatory process, but such a one as is wisely inserted in the Constitution for the protection of his person and property. The delay of

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Department of Foreign Affairs.

which gentlemen complain is the greatest bulwark of liberty. Our ancestors, who were tenacious of their privileges, guarded them in the best manner they could devise to prevent the inroads of despotism. As well may gentlemen complain of the tedious process in other criminal cases, by indictment of a grand jury and trial by a petit jury. I hope it is not contemplated (if it is, I hope never to see adopted in this country a summary process) to hurry on judgment without reflection. Such doctrine may suit the meridian of Turkey, where a Cadi can give the order and the bowstring at the same moment.

If the Constitution does not extend to insanity, or disability by reason of sickness, then let the law declare him removed until his recovery. But gentlemen's arguments go to prove that the Constitution authorizes the removal for this reason. Why, the same argument would apply to the President and Vice President, if they were to become delirious; yet I think they could not Constitutionally be removed for such a cause.

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plies? Nay, cannot he dragoon your officer into a compliance with his designs, by threatening him with a removal by which his reputation and property would be destroyed? If the officer were established on a better tenure, he would dare to be honest; he would know himself invulnerable in his integrity, and defy the shafts of malevolence, though aimed with Machiavelian policy. He would be a barrier to your Executive officer, and save the State from ruin.

But, Mr. Chairman, the argument does not turn upon the expediency of the measure. The great question is with respect to its constitutionality. And as yet I have heard no argument advanced sufficiently cogent to prove to my mind that the Constitution warrants such a disposition of the power of removal; and until I am convinced that it is both expedient and constitutional, I cannot agree to it.

Mr. GERRY.-Some gentlemen consider this as a question of policy; but to me it appears a question of constitutionality, and I presume it will be determined on that point alone. The best arguments I have heard urged on this occasion came from the honorable gentleman from Virginia. (Mr. MADISON.) He says the Constitution has vested the Executive power in the President; and that he has a right to exercise it under the qualifications therein made. He lays it down as a maxim, that the Constitution vesting in the President the Executive power, naturally vests him with the power of appointment and removal. Now I would be glad to know from that gentleman by what means we are to decide this question. Is his maxim supported by precedent drawn from the practice of the individual States? The direct contrary is established. In many cases the Executives are not in particular vested with the power of

The Constitution declares that an officer shall be removed by impeachment for treason, bribery, or other high crimes or misdemeanors; yet the doctrine of gentlemen will enable the President, or the President with the advice of the Senate, to inflict the punishment without trial, when the Constitution requires it to be done on impeachment and conviction. This appears to me so inconsistent, that I can by no means be reconciled to it. If this be wrong in the Constitution, it may be proper to amend it in that particular; and when the subject of amendments is taken up, let Congress recommend it with the other improvements to that system. But we cannot now proceed on this idea. For my part, I think, under the Constitution as it now stands, we have no other way to remove an officer than by impeach-appointment; and do they exercise that power by

ment.

The gentleman from Virginia has said, that the power of removal is Executive in its nature. I do not believe this to be the case. I have turned over the Constitutions of most of the States, and I do not find that any of them have granted this power to the Governor. In some instances, I find the Executive Magistrate suspends, but none of them have the right to remove officers; and I take it that the Constitution of the United States has distributed the powers of Government on the same principles which most of the State Constitutions have adopted. For it will not be contended that the State Governments did not furnish the members of the late convention with the skeleton of this Constitution.

The gentlemen have observed, that it would be dangerous if the President had not this power. But is there not danger in making your Secretary of Foreign Affairs dependent upon the will and pleasure of the President? Can gentlemen see the danger on one side only? Suppose the President averse to a just and honorable war which Congress have embarked in, can he not countenance the Secretary of War (for it is in contemplation to establish such an officer) in the waste of public stores, and misapplication of the sup

virtue of their office? It will be found that other branches of the Government make appointments. How then can gentlemen assert that the powers of appointment and removal are incident to the Executive Department of Government? To me it appears at best but problematical. Neither is it clear to me that the power that appoints naturally possesses the power of removal. As we have no certainty on either of these points, I think we must consider it as established by the Constitution.

It has been argued, that if the power of removal vests in the President alone, it annuls or renders nugatory the clause in the Constitution which directs the concurrence of the Senate in the case of appointments; it behooves us not to adopt principles subversive of those established by the Constitution. It has been frequently asserted on former occasions, that the Senate is a permanent body, and was so constructed in order to give durability to public measures. If they are not absolutely permanent, they are formed on a renovating principle, which gives them a salutary stability. This is not the case either with the President or House of Representatives; nor is the Judiciary equally lasting, because the officers are subject to natural dissolution. It appears to

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me that a permanency was expected in the Ma- and the principle upon which the grant was gistracy; and therefore the Senate were com-made, intended to give sufficient power to do all bined in the appointment to office. But if the possible good, but to restrain the rulers from President alone has the power of removal, it is in doing mischief. his power at any time to destroy all that has been The Constitution places all Executive power done. It appears to me that such a principle in the hands of the President, and could he perwould be destructive of the intention of the Con-sonally execute all the laws, there would be no stitution expressed by giving the power of appoint- occasion for establishing auxiliaries; but the cirment to the Senate. It also subverts the clause cumscribed powers of human nature in one man, which gives the Senate the sole power of trying demand the aid of others. When the objects are impeachments, because the President may remove widely stretched out, or greatly diversified, meanthe officer in order to screen him from the effects dering through such an extent of territory as that of their judgment on an impeachment. Why the United States possess, a minister cannot see should we construe any part of the Constitution with his own eyes every transaction, or feel with in such a manner as to destroy its essential prin- his hands the minutia that pass through his deciples, when a more consonant construction can partment. He must therefore have assistants. be obtained? But in order that he may be responsible to his It appears very clear to me, that however this country, he must have a choice in selecting his power may be distributed by the Constitution, the assistants, a control over them, with power to House of Representatives have nothing to do remove them when he finds the qualifications with it. Why then should we interfere in the which induced their appointment cease to exist. business? Are we afraid that the President and There are officers under the Constitution who Senate are not sufficiently informed to know their hold their office by a different tenure; your judges respective duties? Our interposition argues that are appointed during good behaviour; and from they want judgment, and are not able to adjust the delicacy and peculiar nature of their trust, it their powers without the wisdom of this House to is right it should be so, in order that they may be assist them; to say the least on this point, it must independent and impartial in administering jusbe deemed indelicate for us to intermeddle with tice between the Government and its citizens. them. If the fact is, as we seem to suspect, that But the removability of the one class, or immovathey do not understand the Constitution, let it go bility of the other, is founded on the same princibefore the proper tribunal; the judges are the ple, the security of the people against the abuse Constitutional umpires on such questions. Why, of power. Does any gentleman imagine that an let me ask gentlemen, shall we commit an infrac- officer is entitled to his office as to an estate? Or tion of the Constitution for fear the Senate or does the Legislature establish them for the conPresident should not comply with its directions?venience of an individual? For my part, I conIt has been said by my colleague, that these officers are the creatures of the law; but it seems as if we were not content with that; we are making them the mere creatures of the President. They dare not exercise the privilege of their creation, if the President shall order them to forbear; because he holds their thread of life, his power will be sovereign over them, and will soon swallow up the small security we have in the Senate's concurrence to the appointment, and we shall shortly need no other than the authority of the Supreme Executive officer to nominate, appoint, continue, or remove.

ceive it intended to carry into effect the purposes for which the Constitution was intended.

The Executive powers are delegated to the President, with a view to have a responsible officer to superintend, control, inspect, and check the officers necessarily employed in administering the laws. The only bond between him and those he employs, is the confidence he has in their integrity and talents; when that confidence ceases, the principal ought to have power to remove those whom he can no longer trust with safety. If an officer shall be guilty of neglect or infidelity, there can be no doubt but he ought to be removed yet there may be numerous causes for removal which do not amount to a crime. He may propose to do a mischief; but I believe the mere intention would not be cause of impeachment. He may lose the confidence of the people upon suspicion, in which case it would be improper to retain him in service; he ought to be removed at any time, when, instead of doing the greatest possible good, he is likely to do an injury to the public interest by being continued in the admin

Mr. AMES.-When this question was agitated at a former period, I took no part in the debate. I believe it was then proposed, without any idea or intention of drawing on a lengthy discussion, and to me it appeared to be well understood and settled by the House; but since it has been reiterated and contested again, I feel it my bounden duty to deliver the reasons for voting in the manner I then did, and shall now do. Mr. Chairman, I look upon every question which touches the Constitution as serious and important, and there-istration. fore worthy of the fullest discussion, and the most solemn decision. I believe, on the present occasion, we may come to something near certainty, by attending to the leading principles of the Constitution. In order that the good purposes of a Federal Government should be answered, it was necessary to delegate considerable powers;

I presume gentlemen will generally admit that officers ought to be removed when they become obnoxious; but the question is, how shall this power be exercised? It will not, I apprehend, be contended, that all officers hold their offices during good behaviour. If this be the case, it is a most singular government. I believe there is not ano

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Gentlemen have said, when the question was formerly before us, that all powers not intended to be given up to the General Government were retained. I beg gentlemen, when they undertake to argue from implication, to be consistent, and admit the force of other arguments drawn from the same source. It is a leading principle in every free Government, it is a prominent feature in this, that the Legislative and Executive powers should be kept distinct; yet the attempt to blend the Executive and Legislative departments in exercising the power of removal, is such a mixing as ought not to be carried into practice on arguments grounded on implication. And the gentleman from Virginia, (Mr. WHITE's) reasoning is wholly drawn from implication. He supposes, as the Constitution qualifies the President's power of appointing to office, by subjecting his nomination to the concurrence of the Senate, that the qualification follows of course in the removal.

ther in the universe that bears the least semblance to it in this particular; such a principle, I take it, is contrary to the nature of things. But the manner how to remove is the question. If the officer misbehaves, he can be removed by impeachment; but in this case is impeachment the only mode of removal? It would be found very inconvenient to have a man continued in office after being impeached, and when all confidence in him was suspended or lost. Would not the end of impeachment be defeated by this means? If Mr. Hastings, who was mentioned by the gentleman from Delaware, (Mr. VINING,) preserved his command in India, could he not defeat the impeachment now pending in Great Britain? If that doctrine obtains in America, we shall find impeachments come too late; while we are preparing the process, the mischief will be perpetrated, and the offender will escape. I apprehend it will be as frequently necessary to prevent crimes as to punish them; and it may often happen that the only prevention is by removal. The superintend- If this is to be considered as a question undeing power possessed by the President will, per- cided by the Constitution, and submitted on the haps, enable him to discover a base intention footing of expediency, it will be well to consider before it is ripe for execution. It may happen where the power can be most usefully deposited that the Treasurer may be disposed to betray the for the security and benefit of the people. It has public chest to the enemy, and so injure the Gov-been said, by the gentleman on the other side of ernment beyond the possibility of reparation; should the President be restrained from removing so dangerous an officer, until the slow formality of an impeachment was complied with, when the nature of the case rendered the application of a sudden and decisive remedy indispensable?

the House, (Mr. SMITH,) that there is an impropriety in allowing the exercise of this power; that it is a dangerous authority, and much evil may result to the liberty and property of the officer, who may be turned out of business without a moment's warning. I take it, the question is But it will, I say, be admitted, that an officer not whether such power shall be given or retainmay be removed. The question then is, by whom? ed; because it is admitted on all hands, that the Some gentlemen say by the President alone; and officer may be removed; so that it is no grant of others, by the President, by and with the advice power; it raises no new danger. If we strike out of the Senate. By the advocates of the latter the clause, we do not keep the power, nor prevent mode, it is alleged, that the Constitution is in the the exercise of it; so that the gentleman will deway of the power of removal being by the Presi- rive none of the security he contemplates by dent alone. If this is absolutely the case, there is agreeing to the motion for striking out. It will an end to all further inquiry. But before we suf- be found that the nature of the business requires fer this to be considered as an insuperable impedi- it to be conducted by the head of the Executive; ment, we ought to be clear that the Constitution and I believe it will be found even there that prohibits him the exercise of what, on a first more injury will arise from not removing imview, appears to be a power incident to the Ex- proper officers than from displacing good ones. I ecutive branch of the Government. The gentle-believe experience has convinced us that it is an man from Virginia (Mr. MADISON) has made so many observations to evince the constitutionality of the clause, that it is unnecessary to go over the ground again. I shall therefore confine myself to answer only some remarks made by the gentleman from South Carolina, (Mr. SMITH.) The powers of the President are defined in the Constitution; but it is said that he is not expressly authorized to remove from office. If the Constitution is silent also with respect to the Senate, the argument may be retorted. If this silence proves that the power cannot be exercised by the President, it certainly proves that it cannot be exercised by the President, by and with the advice and consent of the Senate. The power of removal is incident to Government; but, not being distributed by the Constitution, it will come before the Legislature, and, like every other omitted case, must be supplied by law.

irksome business; and officers are more frequently continued in place after they become unfit to perform their duties, than turned out while their talents and integrity are useful. But advantages may result from keeping the power of removal in terrorem over the heads of the officers; they will be stimulated to do their duty to the satisfaction of the principal, who is to be responsible for the whole Executive department.

The gentleman has supposed there will be great difficulties in getting officers of abilities to engage in the service of their country upon such terms. There has never yet been any scarcity of proper officers in any department of the Government of the United States; even during the war, when men risked their lives and property by engaging in such service, there were candidates enough. But why should we connect the Senate in the removal? Their

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