JUNE, 1789.] Department of Foreign Affairs. [H. OF R. is suspended, does the place become vacant? period, it was seen to be proper to have them May the President proceed to fill it up? Or independent; and that could only be secured by must the public business be likewise suspended? such a declaration in the Constitution. It would . . When we say an officer is suspended, it implies be improper that they should depend on this that the place is not vacant; but the parties may House for the degree of permanency which is be heard, and, after the officer is freed from the essential to secure the integrity of judges. With objections that have been taken to his conduct, he respect to the other offices to be established by may proceed to execute the duties attached to law, there is nothing to prevent us from limiting him. What would be the consequence of this? their appointment to two or three years. Let us If the Senate, upon its meeting, were to acquit then limit the duration of Secretary of Foreign the officer, and replace him in his station, the Affairs for as short a period as is thought to be President would then have a man forced on him salutary. Here we are not restricted. But I whom he considered as unfaithful; and could not, conceive, as the Constitution now stands, they consistent with his duty, and a proper regard to cannot be removed in any other way but by the general welfare, go so far as to entrust him impeachment. with full communications relative to the business Another gentleman, in his arguments, has deof his department. Without a confidence in the │clared, as his opinion, that, in fact, the President Executive department, its operations would be has the power of appointment; and infers from subject to perpetual discord, and the administra- that, upon the general principle that those who tion of the Government become impracticable. appoint may remove, that the President has the But, suppose the Senate to be joined with the power of removal also. But it appears extraPresident in the exercise of the power of re-ordinary, that the gentlemen who have urged the moval, what mode will they proceed in? Shall the President always propose the removal, or shall the Senate undertake this part of the business? If so, how are they to act? There is no part of the Constitution which obliges the President to meet them, to state his reasons for any measure he may recommend. Are they to wait upon the President? In short, it appears to me, that introducing this clashing of the powers which the Constitution has given to the Executive, will be destructive of the great end of Government. So far will restraining the powers of that department be from producing security to the liberties of the people, that they would inevitably be swallowed up by an aristocratic body. The amendment which I propose will be to this effect: (it will have to come in some other part of the bill,) that "whenever the said officer shall be removed by the President," and strike out the words "to be removable by the President." Mr. SMITH, of South Carolina.-The gentlemen, by their arguments in favor of this clause, show us what ought to be, rather than what is, in the Constitution; but I do not think this the ground on which this question should be contested. I think, if the power be not found in the Constitution, we ought not to grant it. I am sorry to take up the time of this committee, at this late hour of the day, but I cannot deny myself the privilege of replying to some of the arguments which have been urged in opposition to those I have advanced. I mean to do this in as summary a manner as I possibly can. It has been inferred from the clause in the Constitution, declaring the judges to hold their offices during good behaviour, that there are no other officers who hold their offices by this tenure. Now, I apprehend, that this clause was inserted to distinguish them from other officers who hold their offices for a limited period: for example, the House of Representatives for two years, the Senate for six, the President and Vice President for four: and, in order to prevent the Legislature from declaring that they should be elected during a limited great security arising from an appointment from the President and Senate, should now contend that the President alone has that power; if this be true, where is that boasted security? It has been said also, that the same reason which applies against giving this power to the President, applies against vesting it in the Senate; but I do not think they apply with equal force. On this point, I need only refer gentlemen to the authority I quoted before. Publius shows clearly the superior advantage of having the President and Senate combined in the exercise of this power. It is contended that the Legislature have the power of supplying the defect, if this is an omitted case. I cannot be of that opinion. But it is unnecessary to extend this argument, after what has been urged by the gentleman from Massachusetts, (Mr. GERRY.) If the Legislature can supply defects, they may virtually repeal the Constitution. Gentlemen say we ought not to suppose such an abuse of power in the President. But the Constitution wisely guards against his caprice in the appointment; and why should we abate the security in cases of removal? The Constitution contemplates infirmity in the Chief Magistrate; makes him removable by impeachment, and provides the Vice President to exercise the office, upon such a contingency taking place. But it is supposed that the President may be impeached for an abuse of this power. How can that event take place? He will tell you he thought it incumbent on him to displace the officer, because he apprehended the public tranquillity was in danger; and if he erred, it was the error of the head, not of the heart. And will any House of Representatives ever be found to impeach the Chief Magistrate of the United States for an error in opinion? It was observed, that it would be inconvenient, as the Senate were not always in session. The same objection lies against associating the Senate with the President in making treaties. If this is an inconvenience, it is imposed upon us by the H. or R.J Department of Foreign Affairs. Constitution, and must be submitted to. If he finds the advice of the Senate necessary in either case, he must convene them to obtain their assistance; they are neither of them likely to happen frequently; the inferior officers may be regulated by law, leaving the heads of departments only subject to the operation of this power. The gentleman from Connecticut, (Mr. SHERMAN,) seemed to think this officer might be considered as an inferior officer, and therefore subject to Legislative directions respecting his appointment and removal; because the President is the Executive head of the department, and this officer is only to aid the President. Some gentlemen have spoken of a two-headed monster in the Government; but I think, in this view, we shall find the Executive a three-headed monster, a real Cerberus. The resolution upon which this bill is founded comprised three heads of departments; if these are appendages to the Executive, what kind of a monster do you form? And yet your Constitution admits these officers to be heads of departments. It has been said, that the Legislature may give their opinion on the Constitution. I agree with gentlemen if they mean that, as an individual, we may give our single opinion; but I never can admit it to be right in our Legislative capacity to influence the judges, and throw our weight into either scale to warp their decision. I think it highly criminal to attempt to bias their judgment in any way. [JUNE, 1789. Thus, then, may be accomplished the evil which is most to be dreaded, and which the honorable gentleman from Virginia (Mr. MADISON) says the Constitution meant to guard against, by giving the House of Representatives the power of trying impeachments. An honorable gentleman has said, he did not see how this case could be brought before a court of justice in order to obtain their decision. That gentleman is no stranger to a just and venerable law maxim. Wherever a man has a right, he has a remedy; if he suffers a wrong, he can have a redress; he would be entitled to damages for being deprived of his property in his office. One of the greatest arguments brought forward on this occasion is, that this authority is implied in the grant of Executive authority which is made in the Constitution; the Executive power shall be vested in the President. This I apprehend proves too much, and therefore proves nothing; because it implies that powers which are expressly given by the Constitution, would have been in the President without the express grant. I ask the gentleman, if the Constitution had been silent with respect to his exercising the power of granting reprieves and pardons, whether the President would have that authority? I apprehend it is in some degree an Executive power. It is exercised by some of the Executives even in the United States; but there have been great doubts about the exercise of it in others. It has been said, in some of them, that as this Constitution It was said, that there was more danger in con- did not give it, the Governor has no right to it; tinuing a bad man in office than in displacing a and this they prove by the Constitutions of other good one; and that the Constitution seemed to States, in which an express grant is made. For suppose this, by giving the House of Representa- instance, the Constitution of Massachusetts detives the power of removal. I grant there is more clares that the Governor shall have the power to danger in one case than in the other; but I am grant reprieves, &c.; but if it had not been given afraid the President will have it in his power to him, he would not have had it. If the convencontinue a bad man in office, and this part of the ar- tion who framed the Constitution meant that he gument I believe has not yet been touched upon; I should have the power of removal, the propriety shall, however, be concise in my observations. of inserting it must have occurred to them, where It is declared in the Constitution, that judgments, it is said he should have power to see the laws in cases of impeachment, may extend to removal faithfully executed, and he should commission all from office, and disqualification to hold and enjoy officers; there are other places in which it would any office of honor, trust, or profit, under the Uni-well come in. As it must have occurred to them, ted States. Suppose it in contemplation to remove some creature of the President's by means of impeachment, in order to dismiss him from all I apprehend, if he saw an officer misbehaving, his employments, and to prevent his ever thereaf- he would transmit the necessary information to ter disseminating poison through the councils of us, and leave us to determine whether the person his country. If the impeachment is permitted to should be impeached or not; and the business succeed, the poison is removed, and the nation is could, in my judgment, be satisfactorily accomrid of him. But suppose the President snatches plished in this way. From all these reasons, there him from his fate, by interposing his authority, will be no doubt but the Constitution does not saying, you complain of the man, I will save you give the power; that the Legislature ought not the trouble of proceeding by that circuitous route to supply its defects; and that even if it were a of impeachment; I will remove him without de-matter of doubt, we ought by no means to interlay. By this collusion, the wretch's fame is in some measure preserved; and when the President has waited until the storm of obloquy has ceased to blow, and the public mind has returned to a tranquil state, he obtrudes the man again into of fice, when, in fact, he ought ever to be disqualified from participating in any thing honorable or profitable which the Government has to bestow. and they have omitted it, I take it for granted they never intended to give it to him. fere in adjusting or determining it. Therefore, in whatever point of view you consider it, the clause ought not to stand as part of the bill. Mr. VINING. I am extremely solicitous, Mr. Chairman, that this clause should stand as part of the bill, and therefore must beg to add a few words more in its support. I take this power to be necessary, sir, to the execution of your Gov JUNE, 1789.1 Department of Foreign Affairs. [H. or R. ernment. In vain do we contemplate the wisdom be kept distinct. An express declaration of this of a Legislative branch; in vain do we expect the energy of the Executive arm, and in vain will be the integrity and independence of the Judiciary, if one department after another is to be stripped of its budding powers. The branches will not expand their umbrageous and salutary verdure to shelter our sons from the tempest of calamity, nor delight them with the fair fruits of good government, for which they are in anxious expectation. I have listened, sir, with some degree of avidity to the arguments offered on this subject. I find the point of expediency and responsibility is acceded to, and the question now turns upon the constitutionality of the measure. Here, sir, I agree with gentlemen, it does turn on the construction of the Constitution; and to my mind the construction which we give is irresistibly true. Does the Constitution say such a construction shall be given? I ask gentlemen, does the Constitution, does reason, does experience, does any one principle upon which good government depends, deny our construction? I believe not one of them. What kind of a monster this will be, I do not pretend to say; whether it will have two heads, three heads, or four heads, as gentlemen contend; but I will be bold to say, it is a monster of a peculiar enormity; for gentlemen are putting the heads where the tails should be, or rather making it without any head at all. If we do not permit the President to exercise this power, surely this will be the most unreasonable thing in nature. kind is sought for as an amendment to the Constitution; and would gentlemen be so weak as to confound them in the first operation of the Government? It has been asked, if the same properties are not requisite in removing a man from office as to appoint him? I apprehend a difference in the degree of information necessary. A man's ability may be known to many persons; they may entertain even a good opinion of his integrity; but no man, without a superintending power, can bring this fidelity to the test. The President will have every opportunity to discover the real talents and honesty of the officer; the Senate will have none but from common fame. How then are their properties equal? The Departments of Foreign Affairs and War are peculiarly within the powers of the President, and he must be responsible for them; but take away his controlling power, and upon what principle do you require his responsibility? The gentlemen say the President may suspend. They were asked if the Constitution gave him this power any more than it gave him the power of removing. Do they contend the one to be a more inherent power than the other? If they do not, why shall it be objected to us that we are making a Legislative construction of the Constitution, when they are contending for the same thing? either as incidental to the Executive Department, or under that clause which gives to Congress all powers necessary and proper to carry the Constitution into effect. This being the case, we are at liberty to construe, from the principles and expressions of the Constitution, where this power resides. This, I trust, is what we are about to do; and after the full discussion which the subject has had, I flatter myself we shall do it with a degree of unanimity which I most ardently wish. I look upon it as begging the question, to say the power that appoints must likewise remove. The argument of convenience is strong in favor The position ought to be proved. For my part, I of the President; for this man is an arm or an think where the responsibility is, and where the eye to him; he sees and writes his secret de- power of overseeing and controlling resides, that spatches, he is an instrument over which the Pre-there also must be the power of removal. sident ought to have a complete command. I If the Constitution does not prohibit the exerhope gentlemen, who request us not to be daz-cise of this power, I conceive it to be granted, zled with the splendor of the President, will not themselves be misled by the brightness of Senatorial dignity, and suffer officers to skulk out of the President's enfeebled reach within the effulgency of their lustre, which is most likely to lay the foundation of universal empire over the liberties of the people. If the President removes a valuable officer, which seems to be the great danger the gentleman from South Carolina (Mr. SMITH) apprehends, it would be an act of tyranny which the good sense of the nation would never forget; but if the Senate turns out a good man, they might be re-elected by the Legislatures. But the Senate may remove a good officer without feeling any injury; they are not feelingly sensible of the advantages arising from his labors, because they do not act in concert with him; while the President, by such a removal, deprives himself of a valuable and necessary aid. When a good officer is obtained, the President has every motive of justice, self-interest, and public good, to retain him in his situation. None of these motives operate, or but faintly operate, upon the Senate. Does the Constitution any where say the President shall not have the power? It does not. But the principles of the Constitution declare that the Legislative and Executive Departments shall On motion, the committee then rose, and the SPEAKER resumed the Chair. THURSDAY, June 18. in the Continental army, was presented, praying The petition of Robert Frazier, late a soldier that compensation may be made him for military services rendered during the late war. Ordered to lie on the table. A message from the Senate informed the House that they had passed the bill imposing duties on tonnage, with several amendments, to which they desired the concurrence of this House. DEPARTMENT OF FOREIGN AFFAIRS. H. OF R.] Department of Foreign Affairs. of the Whole on the bill for establishing the Department of Foreign Affairs, Mr. TRUMBULL in the Chair. The clause "to be removable by the President," being still under consideration. Mr. WHITE. This question, complicated in its nature, and interesting in its consequences, has occasioned a serious and solemn debate; although some gentlemen have thought it so clear in its nature, and trivial in its consequences, as to excite in them surprise at its being brought a second time under the consideration of the House. For my own part, I consider it as the most important question that has yet come before the Legislature of the Union; I am sure it is the most important question I ever had a voice in discussing, or a vote in determining, except that of adopting the Constitution itself in the Convention of Virginia. I consider the day on which the sense of the House is to be taken on this subject as a memorable day in the annals of America. I do not consider the question as, simply, whether the power of removing the great officers of the Government shall be vested in the President, or the President and Senate? The Constitution has determined that point. I do not consider it a question before us to determine, whether offices are to be held during good behaviour, or during the pleasure of those who appoint them? I suppose on a fair and necessary construction of the Constitution, that matter is also settled. All these arguments, therefore, tending to show that the one or the other mode of appointment or removal is proper or improper, or that they ought to be despatched by impeachment, are inapplicable to the present case; but the respectability of the characters who support these arguments entitle them to some respect. But I shall pass over them, and proceed to inquire, whether we may grant to others, or assume to ourselves, powers which the Constitution has not given, either in express terms or by necessary implication? This I conceive to be the true question; and it is a question of the importance which has been stated. It is not contended, that the power which this bill proposes to vest is given to the President in express terms by the Constitution; or that it can be inferred from any particular clause in that instrument. It is sought for from another source, the general nature of Executive power. It is on this principle the clause is advocated, or I mistake the arguments urged by my colleague, (Mr. MADISON.) It was said by that gentleman, that the Constitution having invested the President with a general Executive power, thereby all those powers were vested which were not expressly excepted; and therefore he possessed the power of removal. This is a doctrine not to be learned in American Governments; is no part of the Constitution of the Union. Each State has an Executive Magistrate; but look at his powers, and I believe it will not be found that he has in any one, of necessity, the right of appointing or removing officers. In Virginia, I know, all the great officers are appointed by the General Assembly. Few, if any, of a subordinate nature are appointed by the Governor, without some [JUNE, 1789. modification. The case is generally the same in the other States. If the doctrine of the gentleman is to be supported by examples, it must be by those brought from beyond the Atlantic; we must also look there for rules to circumscribe the latitude of this principle, if indeed it can be limited. Upon the principle by which the Executive powers are expounded, must the Legislative be determined. Hence we are to infer, that Congress have all Legislative powers not expressly excepted in the Constitution. If this is the case, and the President is invested with all Executive powers not excepted, I do not know that there can be a more arbitrary Government. The President will have the powers of the most absolute Monarch, and the Legislature all the powers of the most sovereign Legislature, except in those particular instances in which the Constitution has defined their limits. This I take to be a clear and necessary deduction from the principle on which the clause in the bill is founded. I will mention the exceptions, and then let gentlemen form their opinion of the Government, if it is thus constituted. The President is limited in the appointment of ambassadors, consuls, judges, and all other officers, and in making treaties, but no further. Take from him these, and give him all other powers exercised by Monarchs, and see what they will be. There are also exceptions to the Legislative power; such as, they shall not for a certain period prohibit the importation of slaves; that direct taxes shall be apportioned in a particular manner; that duties, imposts, and excises, shall be uniform; that they shall grant no titles of nobility, no bill of attainder; no ex post facto law shall be passed; no preference in commerce to be given; no money to be drawn but by law. These are the exceptions to the Legislative powers. Now give them all the powers which the Parliament of Great Britain have, and what kind of a Government is yours? I cannot describe it. It appears to me as absolute and extensive as any despotism. Then we must adhere to the limits described in the Constitution. If we advance one step beyond its boundaries, where are we to draw the line to circumscribe our powers, or secure the liberties of our fellow-citizens? I understand our system as differing in form and spirit from all other Governments in the world. It is in part national, and in part federal; and though it is more extensive in its powers than most other Governments, yet the Congress is not to be compared to National Legislatures; to these general powers are granted, with or without particular reservations in favor of the rights of the people: to these the gentlemen's arguments will apply, but to no other. Here is no analogy. This is a Government constituted for particular purposes only; and the powers granted to carry it into effect are specifically enumerated, and disposed among the various branches. If these powers are insufficient, or if they are improperly distributed, it is not our fault, nor within our power to remedy. The people who bestowed them must grant further powers, organize those already granted in a more perfect manner, or suffer from JUNE, 1789.] Department of Foreign Affairs. the defect. We can neither enlarge nor modify them. This was the ground on which the friends of Government supported the Constitution. It was a safe ground; and I venture to say it could not have been supported on any other. If this principle had not been successfully maintained by its advocates in the convention of the State from which I came, the Constitution would never have been ratified. I do not mean to retail the solemn debates which took place upon this point, or the popular harangues intended to defeat its adoption. I will only quote the ratification by the State of Virginia, in which you will discover, in strong terms, the sense of the federal party on this subject; I say the federal party, because they drew it up without the interference of any other, though it was a clause agreeable to both sides of the House. [The part of the ratification alluded to was a clause proposed as an amendment to the Constitution, to reserve to the States individually the powers not delegated by the Constitution, nor prohibited by it, to the States.] How far the establishment of the principle which I oppose may tend to the completion of the Union, I will not undertake to say. I will only remark, that the State of North Carolina has expressed nearly the same sense as Virginia, with this difference only, that she would not adopt the Constitution until she was satisfied of the establishment of this great principle, that we should not, by constructive acts, enlarge our powers, in order, at a future day, to swallow up the State Governments. and with them the liberties of the people. And Virginia took, in my opinion, the more prudent course; she adopted the Constitution under a firm belief that this security would be obtained. I would suggest to gentlemen the local situation of that State. It is contiguous to Kentucky, and, united with it, forms a territory of amazing extent, from the Atlantic shores to the banks of the Ohio. The people of this tract are in such a situation that a single spark from this House would kindle a flame which it would be difficult, if not impossible, to extinguish, and excite such a dread as would render them utterly irreconcilable to our Government. [H. of R. forget who is President; yet I would not forget that the worst of precedents are often established in the best of times. We may give a power to a particular man in office, because he will not abuse it; but we cannot take it away from his successor, who may be disposed to make an ill use of it. Í do not mean to infer from this, that if the Constitution had invested the power in the President, it would be dangerous or improper that he should have it. I do not determine this question, or give an opinion upon it; because it is unnecessary to decide it; the true question before us being simply a Constitutional one. Without entering into the evils which may arise, as gentlemen on both sides of the House have done, let us consider whether greater evils will not arise from our explaining the Constitution at this time; if such events as I have apprehended should arise from our attempt to exercise an unconstitutional authority, it would more than counterbalance any possible good that can result from our decision within a moderate period of time. But is there any necessity for the measure? If the Constitution has given this power to the President, which some gentlemen suppose, cannot he exercise it without our passing an act on the subject? If the Constitution has not given it to him, shall we go beyond the limits that are set us But it in order to extend it to him? I hope not. seems a difficult point to determine whether he has or has not this power by the Constitution, because some gentlemen contend he has, others that he has not. Why need we be concerned to determine this point? It will be better to leave the construction to himself; if it should become necessary to exercise this authority, let him consider its powers. I will venture to say, the occasion for the exercise of it will be a better comment better explain it to the people, and more perfectly on the Constitution than any we can give; it will reconcile it to them than any law from the Legislature. It would be better for the President to extend his powers on some extraordinary occasions, even where he is not strictly justified by the Constitution, than that the Legislature should grant an imProper power to be exercised at all times. I believe there is not an Executive power but which goes sometimes beyond the strict letter of the law. This is not a vain fear or apprehension. The But a partial evil is easier sustained than a genopposers of the Constitution formed their argu-eral one. I will relate an example. In Virginia, ments upon it. They contended that the Constitution was defective, that you would go beyond it and make constructions in your favor, and assume powers which the people never intended to grant. My apprehensions, therefore, are not mere chimeras of my own invention; I hope they are ill founded, and may be contradicted by the event. The measure proposed, I acknowledge, is advocated by respectable and known friends of the Union within these doors, and by many without. But I believe much of this arises from the clause in question conferring the power on a man whom all the world admires, and whom they know will never abuse it. But on this occasion I would when the operations of the war required the exertions of the Chief Magistrate beyond the authority of the law, our late Governor, Nelson, whose name must be dear to every friend to liberty, was obliged to issue his warrants, and impress supplies for the army, though it was well known he exceeded his authority. His warrants were executed, his country was benefited by this resolute measure, and he himself afterwards indemnified by the Legislature. This corresponds with the practice under every limited Government. And although I do not wish to encourage acts of this kind, I say it would be better for the Executive to assume the exercise of such a power on extraordinary occasions, than for us to delegate |