H. or R.] Department of Foreign Affairs. [JUNE, 1789. monster, merely to show that we had such power. I call that creature a monster that has not the proper limbs and features of its species. I think the creature we are forming is unnatural in its proportions. It has been often said, that the Constitution declares the President, by and with the advice and consent of the Senate, shall appoint this officer. This, to be sure, is very true, and so is the conclusion which an honorable gentleman (Mr. WHITE) from Virginia drew from it, that an officer must be discharged in the way he was appointed. attention is taken up with other important busi-a creature, that we should therefore bring forth a ness, and they have no constitutional authority to watch the conduct of the Executive officers, and therefore cannot use such authority with advantage. If the President is inclined to shelter himself behind the Senate, with respect to having continued an improper person in office, we lose the responsibility, which is our greatest security; the blame among so many will be lost. Another reason occurs to me against blending these powers. An officer who superintends the public revenue will naturally acquire a great influence. If he obtains support in the Senate, upon an attempt of the President to remove him, it will be out of the power of the House, when applied to by the First Magistrate, to impeach him with success; for the very means of proving charges of mal-conduct against him will be under the power of the officer; all the papers necessary to convict him may be withheld while the person continues in his office. Protection may be rendered for protection, and as this officer has such extensive influence, it may be exerted to procure the reelection of his friends. These circumstances, in addition to those stated by the gentleman from New Jersey, (Mr. BOUDINOT,) must clearly evince to every gentleman the impropriety of connecting the Senate with the President in removing from believe, Mr. Chairman, this question depends upon a just construction of a short clause in the Constitution. "The President shall have power, by and with the advice and consent of the Senate, to appoint ambassadors, other public ministers and consuls, judges of Supreme Court, and all other officers of the United States." Here is no difference with respect to the power of the President to make treaties and appoint officers, only it requires in the one case a larger majority to concur than in the other. I will not by any means suppose that gentlemen mean, when they argue in favor of removal by the President alone, to contemplate the extension of the power to the repeal of treaties; because, if they do, there will be little occasion for us to sit here. But let me ask these I do not say these things will take effect now, gentlemen, as there is no real or imaginary disand if the question only related to what might tinction between the appointment of ambassadors take place in a few years, I should not be uneasy and ministers, or Secretaries of Foreign Affairs, on this point, because I am sensible the gentlemen whether they mean that the President should who form the present Senate are above corrup- have the power of recalling or discarding amtion; but in future ages, (and I hope this Govern-bassadors and military officers, for the words in ment may be perpetuated to the end of time,) such things may take place, and it is our duty to provide against evils which may be foreseen, but, if now neglected, will be irremediable. office. I beg leave to observe further, that there are three opinions entertained by gentlemen on this subject. One is, that the power of removal is prohibited by the Constitution; the next is, that it requires it by the President; and the other is, that the Constitution is totally silent. It therefore appears to me proper for the House to declare what is their sense of the Constitution. If we declare justly on this point, it will serve for a rule of conduct to the Executive Magistrate: if we declare improperly, the judiciary will revise our decision; so that at all events, I think we ought to make the declaration. Mr. LIVERMORE.-I am for striking out this clause, Mr. Chairman, upon the principles of the Constitution, from which we are not at liberty to deviate. The honorable gentleman from Massachusetts, (Mr. SEDGWICK,) calls the Minister of Foreign Affairs the creature of the law, and that very properly; because the law establishes the office, and has the power of creating him in what shape the Legislature pleases. This being the case, we have a right to create the office under such limitations and restrictions as we think proper, provided we can obtain the consent of the Senate; but it is very improper to draw as a conclusion, from having the power of giving birth to the Constitution are "all other officers," as well as he can remove your Secretary of Foreign Affairs. To be sure they cannot extend it to the judges, because they are secured under a subsequent article, which declares they shall hold their offices during good behaviour; they have an inheritance which they cannot be divested of, but on conviction of some crime. But I presume gentlemen mean to apply it to all those who have not an inheritance in their offices. In this case, it takes the whole power of the President and Senate to create an officer, but half the power can uncreate him. Surely a law passed by the whole Legislature cannot be repealed by one branch of it; so I conceive, in the case of appointments it requires the same force to supersede an officer as to put him in office. I acknowledge that the clause relative to impeachment is for the benefit of the people; it is intended to enable their representatives to bring a bad officer to justice who is screened by the President; but I do not conceive, with the honorable gentleman from South Carolina, (Mr. SMITH,) that it by any means excludes the usual ways of superseding officers. It is said in the Constitution that the House shall have the power of choosing their own officers. We have chosen a clerk, and, I am satisfied, a very capable one; but will any gentleman contend we may not discharge him and choose another, and another, as often as we see cause? And so it is in every JUNE, 1789.] Department of Foreign Affairs. other instance; where they have the power to make, they have likewise the power to unmake. It will be said by gentlemen that the power to make does not imply the power of unmaking; but I believe they will find very few exceptions in the United States. Were I to speak of the expediency, every one of my observations would be against it. When an important and confidential trust is placed in a man, it is worse than death to him to be displaced without cause; his reputation depends on the single will of the President, who may ruin him on bare suspicion. Nay, a new President may turn him out on mere caprice, or in order to make room for a favorite. This contradicts all my notions of propriety; every thing of this sort should be done with due deliberation; every person ought to have a hearing before he is punished. It is on these considerations that I wish the general principles laid down by the gentleman from Virginia (Mr. WHITE) may be adhered to. I will add one word more and have done. This seems, Mr. Chairman, altogether to be aimed at the Senate. What have they done to chagrin us ? Or why should we attempt to abridge their powers, because we can reach them by our regulations in the shape of a bill? I think we had better let it alone. If the Constitution has given them this power, they will reject this part of the bill, and they will exercise that one privilege judiciously, however they may the power of removal. If the Constitution has not given it to them, it has not vested it any where else; consequently, this House would have no right to confer it. On motion, the committee rose and reported progress. WEDNESDAY, June 17. [H. of R. connect the business in such a manner as to give the President of the United States a complete command over it; so, in whatever hands it is placed, or however modulated, it must be subjected to his inspection and control. This certainly is the fair construction of the Constitution, and a practical recognition of the principles upon which republican Governments are founded in general, and this in particular. I apprehend, Mr. Chairman, that this officer cannot be considered as appointed during good behaviour, even in point of policy; but with respect to the Constitutionality, I am pretty confident he cannot be viewed in that light. The Constitution declares the tenure of the officers it recognises, and says one class of them shall hold their offices during good behaviour-they are the judges of your Supreme and other Courts; but as to any other officer being established on this firm tenure, the Constitution is silent. It then necessarily follows, that we must consider every other according to its nature, and regulate it in a corresponding manner. The business of the Secretary of Foreign Affairs is of an executive nature, and must consequently be attached to the Executive Department. I think the gentleman from South Carolina goes too far in saying, that the clause respecting impeachments implies that there is no other mode of removing an officer. I think it does not follow, that because one mode is pointed out by the Constitution, there is no other, especially if that provision is intended for nothing more than a punishment for a crime. The fourth section of the second article says, that all civil officers shall be removed on conviction of certain crimes. But it cannot be the intention of the Constitution to prevent by this a removal in every other way: such GEORGE MATTHEWS, from Georgia, appeared a principle, if once admitted, would be attended and took his seat. DEPARTMENT OF FOREIGN AFFAIRS. The House resolved itself into a Committee of the Whole on the bill establishing an Executive department, to be denominated the Department of Foreign Affairs; Mr. TRUMBULL in the Chair. The clause, "to be removable by the President," being under consideration Mr. HARTLEY.—I was not present when this question was first brought before the House; but I heard the arguments which were yesterday urged against the President's exercising the power of removal, and am by no means satisfied that they are well founded. If no better are brought forward, I shall be against striking out. It was contended by one gentleman that the appointment to this office was to be during good behaviour; and asserted by others that the President had not the power of removal without the advice and consent of the Senate. I mean to offer a few remarks on these positions; but first I would observe that this is an office of considerable importance, if we are to judge by the duties assigned in the body of the bill. In all commercial countries it will require men of high talents to fill such an office, and great responsibility. It is necessary to with very inconvenient and mischievous consequences. The gentleman further contends, that every man has a property in his office, and ought not to be removed but for criminal conduct; he ought not to be removed for inability. I hope this doctrine will never be admitted in this country. A man when in office ought to have abilities to discharge the duties of it; if he is discovered to be unfit, he ought to be immediately removed, but not on the principles that gentleman contends for. If he has an estate in his office, his right must be purchased, and a practice like what obtains in England will be adopted here; we shall be unable to dismiss an officer without allowing him a pension for the interest he is deprived of. Such doctrine may suit a nation which is strong in proportion to the number of dependents upon the Crown, but will be very pernicious in a Republic like ours. When we have established an office, let the provision for the support of the officer be sufficient to compensate his services; but never let it be said that he has an estate in his office when he is found unfit to perform his duties. If offices are to be held during good behaviour, it is easy to foresee that we shall have as many factions as heads of departments. The consequence would H. OF R.] Department of Foreign Affairs. be corruption in one of the great departments of Government; and if the balance is once destroyed, the Constitution must fall amidst the ruins. From this view of the subject, I have no difficulty to declare, that the Secretary of Foreign Affairs is an officer during pleasure, and not during good behaviour, as contended for. [June, 1789. sulted in the appointment which is afterwards to take place. Under these circumstances, I repeat it, that I have no doubt in my own mind, that this office is during pleasure, and that the power of removal which is a mere temporary one, ought to be in the President, whose powers, taken together, are not very numerous, and the success of this Government depends upon their being unimpaired. Mr. LAWRENCE.-I was in hopes, as this question was pretty fully discussed before, the House would not have been troubled again with it. But as much has again been said in opposition, I should not feel a conscious discharge of my duty, unless I offered those sentiments which have forcibly impressed my mind with their weight, and induced me to vote in favor of the clause. One gentleman (Mr. WHITE) holds the same principles, but differs with respect to the power which ought to exercise the privilege of removal. On this point, we are reduced to a matter of construction; but it is of high importance to the United States that a construction should be rightly made. But gentlemen say it is inconsistent with the Constitution to make this declaration; that, as the Constitution is silent, we ought not to be explicit. The Constitution has expressly pointed out several matters which we can do, and some It has been objected against this clause, that which we cannot do; but in other matters it is the granting of this power is unconstitutional; it silent, and leaves them to the discretion of the was also objected, that if not unconstitutional, it Legislature. If this is not the case, why was the is unnecessary; that the Constitution must conlast clause of the eighth section of the first arti-tain in itself the power of removal, and have cle inserted? It gives power to Congress to make given it to some body or person of the Governall laws necessary and proper to carry the Gov- ment to be exercised; that therefore the law could ernment into effect. make no disposition of it, and the attempt to grant it was unconstitutional, or the law is unnecessary; for if the power is granted in the way the clause supposes, the Legislature can neither add to nor diminish the power by making the declaration. I look upon it that the Legislature have therefore a right to exercise their discretion on such questions; and however attentively gentlemen may have examined the Constitution on this point, I trust they have discovered no clause which forbids this House interfering in business necessary and proper to carry the Government into effect. The Constitution expressly grants to the President the power of filling all vacancies during the recess of the Senate. This is a temporary power like that of removal, and liable to very few of the objections which have been made. When the President has removed an officer, another must be appointed; but this cannot be done without the advice and consent of the Senate: where then is the danger of a system of favoritism? The President, notwithstanding the supposed depravity of mankind, will hardly remove a worthy officer, to make way for a person whom the Senate may reject. Another reason why the power of removal should be lodged with the President, rather than the Senate, arises from their connexion with the people. The President is the representative of the people in a near and equal manner; he is the guardian of his country. The Senate are the representatives of the State Legislatures; but they are very unequal in that representation. Each State sends two members to that House, although their proportions are as ten to one. Hence arises a degree of insecurity to an impartial administration; but if they possessed every advantage of equality, they cannot be the proper body to inspect into the proper behaviour of officers, because they have no Constitutional powers for this purpose. It does not always imply criminality to be removed from office, because it may be proper to remove for other causes; neither do I see any danger which may result from the exercise of this power by the President, because the Senate is to be con With respect to the unconstitutionality of the measure, I observe that if it is so, the Constitustitution must have given the power expressly to some person or body other than the President; otherwise it cannot be said with certainty that it is unconstitutional in us to declare that he shall have the power of removal. I believe it is not contended that the Constitution expressly gives this power to any other person; but it is contended that the objection is collected from the nature of the body which has the appointment, and the particular clause in the Constitution which declares that all officers shall be removed on conviction. It will be necessary to examine the expressions of that clause; I believe it will be found not to comprehend the case we have under consideration. I suppose the Constitution contemplates somewhere the power of removal for other causes besides those expressed as causes of impeachment. I take it, that the clause in the Constitution respecting impeachments, makes a provision for removal against the will of the President; because the House can carry the offender before a tribunal which shall remove him, notwithstanding the desire of the Chief Magistrate to keep him in office. If this is not to be the construction, then a particular clause in the Constitution will be nugatory. The Constitution declares that the judges shall hold their offices during good behaviour. This implies that other officers shall hold their offices during a limited time, or according to the will of some person; because if all persons are to hold their offices during good behaviour, and to be removed only by impeachment, then this particular declaration in favor of the judges will be useless. We are told that an officer must misbehave before he can be removed. This is true with respect to those officers who hold their commissions during good behaviour, but it cannot be true of those who are appointed during pleasure, they may be removed for incapacity, or if their want of integrity is suspected; but the question is, to find where this power of removal resides. It has been argued, that we are to find this in the construction arising from the nature of the authority which appoints. Here I would meet the gentlemen, if it was necessary to rest it entirely on that ground. Let me ask the gentlemen, who appoints? The Constitution gives an advisory power to the Senate; but it is considered that the President makes the appointment. The appointment and responsibility are actually his; for it is expressly declared, that he shall nominate and appoint, though their advice is required to be taken. If from the nature of the appointment we are to collect the authority of removal, then I say the latter power is lodged in the President; because by the Constitution he has the power of appointment; instantly as the Senate have advised the appointment, the act is required to be executed by the President. The language is explicit: "He shall nominate, and, by and with the advice and consent of the Senate, appoint;" so that if the gentlemen's general principle, that the power of appointing shall remove be true, it follows that the removal is to be President. [H. of R. Could it be supposed that he would not have the authority to dismiss the officer he had so appointed? To be sure he could; then, of course, in those cases in which the Constitution has given the appointment to the President, he must have the power of removal for the sake of consistency. For no person will say, that, if the President should appoint an inferior officer, he should not have the power to remove him when he thought proper, if no particular limitation was determined by the law. Thus stands the matter with respect to the Constitution. There is no express prohibition of the power nor positive grant. If then we collect the power by inference from the Constitution, we shall find it pointed strongly in favor of the President, much more so than in favor of the Senate combined with him. This is a case omitted, or is it not. If it is omitted, and the power is necessary and essential to the Government and to the great interests of the United States, who are to make the provision and supply the defect? Certainly the Legislature is the proper body. It is declared they shall establish offices by law. The establishment of an office implies every thing relative to its formation, constitution, and termination; consequently, the Congress are authorized to declare their judgment on each of these points But, if the arguments of the gentleman from South Carolina (Mr. SMITH) prevail, that as the Constitution has not meditated the removal of an officer in any It has been stated as an objection, that we other way than by impeachment, it would be an asshould extend the powers of the President, if we sumption in Congress to vest the President, courts give him the power of removal; and we are not of law, or heads of departments, with power to to construe the Constitution in such way as to en- dismiss their officers in any other manner. Would large the Executive power to the injury of any a regulation of this kind be effectual to carry into other; that, as he is limited in the power of ap-effect the great objects of the Constitution? I pointment by the control of the Senate, he ought to be equally limited in the removal. If there be any weight in this argument it applies as forcibly against vesting the power conjointly in the President and Senate; because if we are not to extend the powers of the Executive beyond the express detail of duties found in the Constitution, neither are we at liberty to extend the duties of the Senate beyond those precise points fixed in the same instrument; of course, if we cannot say the President alone shall remove, we cannot say the President and Senate may exercise such power. It is admitted, that the Constitution is silent on this subject, but it is also silent with respect to the appointments it has vested in the Legislature. The Constitution declares, that Congress may by law vest the appointment of such inferior officers as they think proper in the President alone, in the courts of law, or heads of departments; yet says nothing with respect to the removal. Now, let us suppose the Legislature to have vested the power of appointment in the President in cases of inferior officers; can the intention of the Constitution in this, contemplating this mode of appointment, for the sake of convenience, be ever carried into effect? If we say nothing respecting the removal, what would be the consequence if the Legislature should not make the declaration? contend it would not. Therefore, the principle which opposes the carrying of the Constitution into effect, must be rejected as dangerous, and incompatible with the general welfare. Hence, all those suppositions, that, because the Constitution is silent, the Legislature must not supply the defect, are to be treated as chimeras and illusory inferences. I believe it is possible that the Constitution may be misconstrued by the Legislature; but, will any gentleman contend, that it is more probable that the Senate, one branch only of the Legislature, should make a more upright decision on any point than the whole Legislature, especially on a point in which they are supposed by some gentlemen to be so immediately interested, even admitting that honorable body to have more wisdom and more integrity than this House? Such an inference can hardly be admitted; but I believe it seldom or never was contended, that there was more wisdom or security in a part than in the whole. But, supposing the power to vest in the Senate, is it more safe in their hands than where we contend it should be? Would it be more satisfactory to our constituents for us to make such a declaration in their favor? I believe not. With respect to this and every case omitted, but which can be collected from the other provisions made in the Constitution, the people look H. OF R.] Department of Foreign Affairs. up to the Legislature, the concurrent opinion of From a view of these circumstances, we may [JUNE, 1789. rives? And would he not be liable to impeachment for displacing a worthy and able man, who enjoyed the confidence of the people? We ought not to consider one side alone, we should consider the benefit of such an arrangement as well as the difficulties. We ought also to consider the difficulties arising from the exercise of the power of removing by the Senate. It was well observed by an honorable gentleman (Mr. SEDGWICK) on this point, that the Senate must continue in session the whole year, or be hastily assembled from the extremes and all parts In the Constitution, the heads of departments of the continent, whenever the President thinks a are considered as the mere assistants of the Pre- removal necessary. Suppose an ambassador or sident, in the performance of his Executive du- minister plenipotentiary negotiating or intriguing ties. He has the superintendence, the control, contrary to his instructions, to the injury of the and the inspection of their conduct; he has an United States, before the Senate can be assemintimate connexion with them; they must re-bled to accede to his recall; the interest of his ceive from him his orders and directions; they country may be betrayed, and the evil irrevocamust answer his inquiries in writing when he re- bly perpetrated. A great number of such inquires it. Shall the person having these superior stances might be enumerated, sufficient to conpowers to govern, with such advantages of dis- vince gentlemen that, with respect to the expedi covering and defeating the base intentions of his ency, the power of removal ought not to be in the officers, their delinquencies, their defective abili- Senate. ties, or their negligence, be restrained from applying these advantages to the most useful, nay, in some cases, the only useful purpose which can be answered by them? I take it, Mr. Chairman, that it is proper for the Legislature to speak their sense upon those points on which the Constitution is silent. I believe the judges will never decide that we are guilty of a It appears to me, that the power can be safely breach of the Constitution, by declaring a Legislodged here. But it has been said by some gen-lative opinion in cases where the Constitution is tlemen, that if it is lodged here, it will be subject silent. If the laws shall be in violation of any to abuse; that there may be a change of officers, part of the Constitution, the judges will not hesiand a complete revolution throughout the whole tate to decide against them; where the power is Executive department, upon the election of every incident to the Government, and the Constitunew President. I admit this may be the case, tion is silent, it can be no impediment to a Legisand contend that it should be the case, if the Pre-lative grant; I hold it necessary in such cases to sident thinks it necessary. I contend, that every President ought to have those men about him in whom he can place the most confidence, provided the Senate approve his choice. But we are not from hence to infer, that changes will be made in a wanton manner, and from capricious motives; because the Presidents are checked and guarded in a very safe manner with respect to the appointment of their successors; from all which it may be fairly presumed, that changes will be made on principles of policy and propriety only. make provision. In the case of removal, the Constitution is silent; the wisdom of the Legislature should therefore declare where the power resides. Mr. JACKSON.-Much time, Mr. Chairman, has been taken up in discussing this question; but, considering its importance, I trust no complaint will be made on this account. Although I am at all times unwilling to trespass on the committee, I cannot sit still and pass this subject with a silent vote. As a Constitutional question, it is of great Will the man chosen by three millions of his moment, and worthy of full discussion. I am, fellow-citizens be such a wretch as to abuse them sir, a friend to the full exercise of all the powers in a wanton manner! For my part, I should of Government, and deeply impressed with the think with the gentleman from Virginia (Mr. necessity there exists of having an energetic ExMADISON) that a character thus selected and hon-ecutive. But, friend as I am to an efficient Govored by his country is entitled to my confidence; and I see no reason why we should suppose he is more inclined to do harm than good. Elected as he is, I trust, we are secure. I do not draw these observations from the safety I conceive under the present Administration, or because our Chief Magistrate is possessed of irradiated virtues, whose lustre brightens this Western hemisphere, and incites the admiration of the world! But I calculate upon what our mode of election is likely to bring forward, and the security which the Constitution affords. If the President abuses his trust, will he escape the popular censure when the period which terminates his elevation ar ernment, I value the liberties of my fellow-citizens beyond every other consideration; and where I find them endangered, I am willing to forego every other blessing to secure them. I hold it as good a maxim as it is an old one, of two evils to choose the least. It has been mentioned, that in all Governments the Executive Magistrate has the power of dismissing officers under him. This may hold good in Europe, where monarchs claim their powers jure divino, but it never can be admitted in America, under a Constitution delegating only enumerated powers. It requires more than a mere ipse dixit to demonstrate that any power is in its na |