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Department of Foreign Affairs.

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is said they are to hold their offices during good behaviour: I agree that it ought to be the case. But is not a judge liable to the act of God as well as any other officer of Government? However great his legal knowledge, his judgment, and integrity, it may be taken from him at a stroke, and he rendered the most unfit of all men to fill such an important office. But can you remove him? Not for this cause, it is impossible; because madness is no treason, crime, or misdemeanor. If he does not choose to resign, like Lord Mansfield, he may continue in office for ninety or one hundred years, although seldom so long have any men retained their faculties.

ture Executive, and consequently given to the President of the United States by the present Constitution; but if this power is incident to the Executive branch of Government, it does not follow that it vests in the President alone, because he alone does not possess all Executive powers. The Constitution has lodged the power of forming treaties, and all Executive business, I presume, connected therewith, in the President, but it is qualified by and with the advice and consent of the Senate, provided two-thirds of the Senate agree therein; the same has taken place with respect to appointing officers. From this I infer, that those arguments are done away which the gentleman from Virginia (Mr. MADISON) used to But let me ask gentlemen, if it is possible to prove, that it was contrary to the principles of place their officers in such a situation as to dethe Constitution that we should blend the Execu-prive them of their independency and firmness; tive and Legislative powers in the same body. It for I apprehend it is not intended to stop with the may be wrong that the great powers of Govern- Secretary of Foreign Affairs. Let it be rememment should be blended in this manner; but we bered, that the Consitution gives the President the cannot separate them; the error is adopted in the command of the military. If you give him comConstitution, and can only be eradicated by weed-plete power over the man with the strong box, he ing it out of that instrument; it may therefore be a proper subject for amendment, when we come to consider that business again.

will have the liberties of America under his thumb. It is easy to see the evil which may result. If he wants to establish an arbitrary authority, and finds the Secretary of Finance not inclined to second his endeavors, he has nothing more to do than to remove him, and get one appointed of principles more congenial with his own. Then, says he, I have got the army; let me have but the money, and I will establish my throne upon the ruins of your visionary re

It has been observed, that the President ought to have this power to remove a man when he becomes obnoxious to the people or disagreeable to himself. Are we, then, to have all the officers the mere creatures of the President? This thirst of power will introduce a treasury bench into the House, and we shall have ministers obtrude upon us to govern and direct the measures of the Legis-public. Let no gentleman say I am contemplalature, and to support the influence of their masAnd shall we establish a different influence between the people and the President? I suppose these circumstances must take place, because they have taken place in other countries. The Executive power falls to the ground in England, if it cannot be supported by the Parliament; therefore a high game of corruption is played, and a majority secured to the ministry by the introduction of placemen and pensioners.

ter.

ting imaginary dangers, the mere chimeras of a heated brain. Behold the baleful influence of the royal prerogative when officers hold their commission during the pleasure of the Crown!

At this moment, see the King of Sweden, aiming at arbitrary power, shutting up the doors of his Senate, and compelling, by force of arms, his shuddering counsellors to acquiesce in his despotic mandates. I agree that this is the hour in which we ought to establish our Government; but it is an hour in which we should be wary and cautious, especially in what respects the Executive Magistrate; with the present, I grant, every power may be safely lodged. Black indeed is the heart of that man who even suspects him to be capable of abusing them. But alas! he cannot be with us forever: he is liable to the vicissitudes of life; he is but mortal, and though I contemplate it with great regret, yet I know the period must come which will separate him from his country; and can we know the virtues or vices of his successor in a very few years? May not a man, with a Pandora's box in his breast, come into power, and give us sensible cause to lament our present confidence and want of foresight?

The gentlemen have brought forward arguments drawn from possibility. It is said, that our Secretary of Foreign Affairs may become unfit for his office by a fit of lunacy, and therefore a silent remedy should be applied. It is true such a case may happen, but it may also happen in cases where there is no power of removing. Suppose the President should be taken with a fit of funacy, would it be possible by such arguments to remove him? I apprehend he must remain in office during his four years. Suppose the Senate should be seized with a fit of lunacy, and it was to extend to the House of Representatives; what could the people do but endure this mad Congress till the term of their election expired? We have seen a King of Great Britain in an absolute fit of A gentleman has declared, that as the Constilunacy, which produced an interregnum in the tution has given the power of appointment, it has Government. The same may happen here with consequently given the power of removal. I respect to our President; and although it is im- agree with him in all the Constitution expressly probable that the majority of both Houses of grants, but I must differ in the constructive reaCongress may be in that situation, yet it it is not im-soning. It was said by the advocates of this Conpossible. But gentlemen have brought forward stitution, that the powers not given up in that inanother argument with respect to the judges. It strument were reserved to the people. Under

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this impression, it has been proposed, as a favorite amendment to the Constitution, that it should be declared that all powers not expressly given should be retained. As to what gentlemen have said of its giving satisfaction to the people, I deny it; they never can be pleased that we should give new and extraordinary powers to the Executive; we must confine ourselves to the powers described in the Constitution, and the moment we pass it, we take an arbitrary stride towards a despotic Government.

[JUNE, 1789

rity to the people which the Constitution contemplates. What use will it be of to call the citizens of the Union together every four years to obtain a purified choice of a representative, if he is to be a mere cipher in the Government? The Executive must act by others; but you reduce him to a mere shadow, when you control both the power of appointment and removal; if you take away the latter power, he ought to resign the power of superintending and directing the Executive parts of Government into the hands of the Senate at once, and then we become a dangerous aristocracy, or shall be more destitute of energy than any Government on earth. These being my sentiments, I wish the clause to stand as a Legislative declaration, that the power of removal is constitutionally vested in the President.

The gentleman from New York (Mr. LawRENCE) contends that the President appoints, and, therefore, he ought to remove. I shall agree to give him the same power in cases of removal that he has in appointing; but nothing more. Upon this principle, I would agree to give him the power of suspension during the recess of the Sen- Mr. PAGE. After so much has been said, I ate. This, in my opinion, would effectually pro- should not presume to trouble the House with my vide against those inconveniences which have sentiments, but that I seconded the motion. I do been apprehended, and not to expose the Govern- contend it must appear to every person who reads ment to those abuses we have to dread from the the Constitution, without hearing the ingenious wanton and uncontrolled authority of removing explanations that have been made, that the clause officers at pleasure. I am the friend of an ener- in the bill is unconstitutional. How is it to be getic Government; but while we are giving vigor reconciled to the clause which relates to impeachto the Executive arm, we ought to be careful not ments, or the clause vesting the appointment in to lay the foundation of future tyranny. I think the President, by and with the advice and conthis power too great to be safely trusted in the sent of the Senate? But, independent of these hands of a single man, especially in the hands of considerations, it must appear improper. I vena man who has so much Constitutional power. I ture to assert, that this clause of the bill contains believe if those powers had been more contracted, in it the seeds of royal prerogative. If gentlethe system of Government would have been men lay such stress on the energy of the Governmore generally agreeable to our constituents; that ment, I beg them to consider how far this docis, at present it would conform more to the popu- trine may go. Every thing which has been said lar opinion at least. For my part, though I in favor of energy in the Executive, may go to came from a State where the energy of Govern- the destruction of freedom, and establish despotment can be useful, and where it is at this mo-ism. This very energy, so much talked of, has ment wanting, I cannot agree to extend this led many patriots to the Bastile, to the block, and power; because I conceive it may, at some future to the halter. If the Chief Magistrate can take period, be exercised in such a way as to subvert a man away from the head of a department, the liberties of my country; and no consideration without assigning any reason, he may as well be shall ever induce me to put them in jeopardy. It invested with power, on certain occasions, to take is under this impression that I shall vote decidedly away his existence. But will you contend, that against the clause. this idea is consonant with the principles of a free Mr. CLYMER.-If I were to give my vote mere- Government, where no man ought to be conly on Constitutional ground, I should be totally demned unheard, nor till after a solemn convicindifferent whether the words were struck out or tion of guilt on a fair and impartial trial? It not; because I am clear that the Executive has would, in my opinion, be better to suffer, for a the power of removal as incident to his depart-time, the mischief arising from the conduct of a ment; and, if the Constitution had been silent with respect to the appointment, he would have had that power also. The reason, perhaps, why it was mentioned in the Constitution, was to give some further security against the introduction of improper men into office. But in cases of removal there is not such necessity for this check. What great danger would arise from the removal of a worthy man, when the Senate must be consulted in the appointment of his successor? Is it likely they will consent to advance an improper character? The presumption therefore is, that he would not abuse this power; or, if he did, only one good man would be changed for another.

If the President is divested of his power, his responsibility is destroyed; you prevent his efficiency, and disable him from affording that secu

bad officer, than admit principles which would
lead to the establishment of despotic preroga-
tives. Gentlemen may be, and no doubt are, actu-
ated by honest motives in supporting this clause;
but I lament them as laboring under a fatal error,
which may ruin their country.

There can be little occasion for the President
to exercise this power, unless you suppose that
the appointments will be made in a careless man-
ner, which by no means is likely to be the case;
if, then, you have a good officer, why should he
be made dependent upon the will of a single man?
Suppose a colonel in your army should disobey
his orders, or cowardly flee before the enemy;
what would the general do? Would he be at
liberty to dismiss the officer? No; he would
suspend him until a court martial was held to de-

JUNE, 1789.]

Department of Foreign Affairs.

cide the degree of guilt. If gentlemen had been content to say that the President might suspend, I should second their motion, and afterwards the officer might be removed by and with the advice and consent of the Senate; but to make every officer of the Government dependent on the will and pleasure of one man, will be vesting such arbitrary power in him, as to occasion every friend to liberty to tremble for his country. I confess it seems to me a matter of infinite concern, and I should feel very unhappy if I supposed the clause would remain in the bill.

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men put upon the business, they may vest the appointment in the President alone, and the removal will be in him of consequence. But if this reasoning be not admitted, we can by no means vest the appointment, or removal either, in the Chief Magistrate alone. As the officer is the mere creature of the Legislature, we may form it under such regulations as we please, with such powers and duration as we think good policy requires. We may say he shall hold his office during good behaviour, or that he shall be annually elected. We may say he shall be displaced for neglect of duty, and point out how he shall be convicted of it; without calling upon the President or Senate.

Mr. SHERMAN. I consider this as a very important subject in every point of view, and therefore worthy of full discussion. In my mind it involves three questions: First, whether the Pre- The third question is, if the Legislature has the sident has, by the Constitution, the right to re- power to authorize the President alone to remove move an officer appointed by and with the advice this officer, whether it is expedient to invest him and consent of the Senate? No gentleman con- with it? I do not believe it is absolutely necestends but that the advice and consent of the Sen-sary that he should have such power, because the ate are necessary to make the appointment in all cases, unless in inferior offices where the contrary is established by law; but then they allege that, although the consent of the Senate be necessary to the appointment, the President alone, by the nature of his office, has the power of removal. Now, it appears to me, that this opinion is ill-founded, because this provision was intended for some useful purpose, and by that construction would answer none at all. I think the concurrence of the Senate as necessary to appoint an officer as the nomination of the President; they are constituted as mutual checks, each having a negative upon the other.

power of suspending would answer all the purposes which gentlemen have in view by giving the power of removal. I do not think that the officer is only to be removed by impeachment, as is argued by the gentleman from South Carolina, (Mr. SMITH,) because he is the mere creature of the law, and we can direct him to be removed on conviction of mismanagement or inability, without calling on the Senate for their concurrence. But I believe, if we make no such provision, he may constitutionally be removed by the President, by and with the advice and consent of the Senate; and I believe it would be most expedient for us to say nothing in the clause on this subject.

Mr. STONE. I think it necessary, Mr. Chairman, to determine the question before us. I do not think it would do to leave it to the determination of courts of law hereafter. It should be our duty, in cases like the present, to give our opinion on the construction of the Constitution.

I consider it as an established principle, that the power which appoints can also remove, unless there are express exceptions made. Now the power which appoints the judges cannot displace them, because there is a Constitutianal restriction in their favor; otherwise the President, by and with the advice and consent of the Senate, being When the question was brought forward I felt the power which appointed them, would be suf- unhappy, because my mind was in doubt; but since ficient to remove them. This is the construction then I have deliberately reflected upon it, and have in England, where the King has the power of ap-made up an opinion perfectly satisfactory to mypointing judges; it was declared to be during pleasure, and they might be removed when the monarch thought proper. It is a general principle in law, as well as reason, that there shall be the same authority to remove as to establish. It is so in legislation, where the several branches whose concurrence is necessary to pass a law, must concur in repealing it. Just so I take it to be in cases of appointment; and the President alone may remove when he alone appoints, as in the case of inferior offices to be established by law.

self. I consider, that in general, every officer who is appointed should be removed by the power that appoints him. It is so in the nature of things. The power of appointing an officer arises from the power over the subject on which the officer is to act. It arises from the principal who appoints having an interest in and a right to conduct the business, which he does by means of an agent. Therefore, this officer appears to be nothing more than an agent, appointed for the convenient despatch of business. This is my opinion on this Here another question arises, whether this offi- subject, and the principle will operate from a cer comes within the description of inferior offi- Minister of State down to a tide-waiter. The cers? Some gentlemen think not, because he is Constitution, it is admitted by every gentleman, the head of the Department of Foreign Affairs. recognises the principle. Because it has not been Others may perhaps think that, as he is employed denied, whenever general appointments are made in the Executive department, in aid of the Presi- under the Constitution, that they are to be at will dent, he is not such an officer as is understood by and pleasure; that where an appointment is made the term Heads of Departments; because the during good behaviour, it is an exception to the President is the head of the Executive depart-general rule. There you limit the exercise of the ment, in which the Secretary of Foreign Affairs power which appoints. It is thus in the case of serves. If this is the construction which gentle-the judges.

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[JUNE, 1789.

Let us examine, then, whence originates the mind is necessary for the one that is not necessary power of Congress with respect to the officer for the other? Information, impartiality, and under consideration. I presume it is expressly judgment in the business to be conducted, are contained in the Constitution, or clearly deducible necessary to make a good appointment. Are no from that instrument, that we have a right to the same properties requisite for a dismission? I erect the Department of Foreign Affairs. No appears so to me. gentlemen will consent to a reduction or relin- I cannot subscribe to the opinion delivered by quishment of that power. The Constitution has some gentlemen, that the Executive, in its nature, given us the power of laying and collecting taxes, implies the power to appoint the officers of Govduties, imposts, and excises; this includes the ernment. Why does it imply it? The appointpower of organizing a Revenue Board. It gives ment of officers depends upon the qualities that us power to regulate commerce; this includes the are necessary for forming a judgment on the power of establishing a Board of Trade. To merits of men; and the displacing of them, inmake war, and organize the militia; this enables stead of including the idea of what is necessary us to establish a Minister at War, and generally for an Executive officer, includes the idea necesto make all laws necessary to carry these powers sary for a Judicial one. Therefore it cannot into effect. Now it appears to me that the erec-exist, in the nature of things, that an Executive tion of this department is expressly within the power is either to appoint or displace the officers Constitution. But there is a provision in the of Government. Is it a political dogma? Is it Constitution which takes away from us the power founded in experience? If it is, I confess it has of appointing officers of a certain description. been very long wrapped up in mysterious darkThey are to be appointed by the President, by and ness. As a political rule, it is not common in the with the advice and consent of the Senate. Then world, except in monarchies where this principle the Constitution limits the Legislature in appoint- is established, that the interest of the State is ing certain officers, which would otherwise be included in the interest of the Prince: that whatwithin their power. ever injures the State is an injury to the Sovereign; because he has a property in the State and the Government, and he is to take care that nothing of that kind is to be injured or destroyed He being so intimately connected with the wellbeing of the nation, it appears a point of justice only to suffer him to manage his own concerns. Our principles of Government are different; and the President, instead of being master of the peo ple of America, is only their great servant. But if it arises from a political dogma, it must be subject to exceptions, which hold good as they are applied to Governments which give greater or less proportions of power to their Executive. I shall only remark, that the Constitution, in one part of it, so far as I can see, supposes that the President is the sole judge of the merits of an appointment. It is very forcible to my mind, that the Constitution has confined his sole appointment to the case of inferior officers. It also strikes me, from the clause that gives the Presi dent the power to grant reprieves and pardons for offences against the United States, except in cases of impeachment, that the Constitution re poses a confidence in the Senate which it has not done in this officer; and therefore there is ne good reason for destroying that participation of power which the system of Government has given to them.

It will then become a considerable question, as it has been in my mind, that as, in the nature of things, the power which appoints removes also, and as the power of appointment by the Constitution is placed in the President and Senate, whether the removal does not follow as incidental to that power? But I am averse to that construction, as the terms of the Constitution are sufficient to invest the Legislature with complete power for performing its duties. And as it has given the power of making treaties, and judging of them, to the Senate and President, I should be inclined to believe, that as they have an immediate concern in and control over this business, they therefore ought to have the power of removal. It may be said, with respect to some other officers, that, agreeably to this principle, the President alone ought to have the sole power of removal; because he is interested in it, and has the control over the business they manage. For example, take the Minister at War. The President is the commander-in-chief of the army and militia of the United States; but the ground is narrowed by the Senate being combined with him in making treaties; though even here again the ground is reduced, because of the power combined in the whole Legislature to declare war and grant supplies. If it is considered that Congress have a right to appoint these officers, or dictate the mode by which they shall be appointed, (and I calculate, in my own opinion, the manner of dişmission from the mode of appointment,) I should have no doubt but we might make such regulations as we may judge proper. If the Constitution had given no rule by which officers were to be appointed, I should search for one in my own mind; but as the Constitution has laid down the rule, I consider the mode of removal as clearly defined as by implication it can be. It ought to be the same as that of the appointment. What quality of the human

Whether it would be expedient to give the power of removal to the President alone, depends on this consideration: they are both bodies chosen with equal care and propriety; the people show as much confidence in the one as in the other. The best President and the best Senate will always be chosen, it is to be presumed, that they can get. Now I would ask, in all cases where the integrity and confidence is the same, whether it is more likely that one man should do right, and exercise his power with propriety, than a number of men with the aid of each other's deli

Department of Foreign Affairs.