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gentlemen who support the motion for striking out the clause; and I shall endeavor to show, even on their own principles, that this power is vested in the President of the United States, and ought to be so decided by Congress.

[H. of R.

construction only that we derive our power to constitute this particular office. If we were not at liberty to modify the principles of the Constitution, I do not see how we could erect an Office of Foreign Affairs. If we establish an office avowedly to aid the President, we leave the conduct of it to his discretion. Hence the whole Executive is to be left with him. Agreeably to this maxim, all Executive power shall be vested in a President. But how does this comport with the true interest of the United States? Let me ask gentlemen where they suspect danger? Is it not made expressly the duty of the Secretary of Foreign Affairs to obey such orders as shall be given to him by the President? And would you keep in office a man who should refuse or neglect to do the duties assigned him? Is not the President responsible for the Administration? He certainly is. How then can the public interest suffer?

The principle of the Constitution is generally to vest the Government in three branches. I conceive this to be completely done, if we allow for one or two instances, where the Executive and Legislative powers are intermixed, and the case of impeachment. These cases I take to be exceptions to a principle which is highly esteemed in America. Let gentlemen attend to what was said by some of the conventions when they ratified the Constitution. One great objection was, that the powers were not totally separated. The same objection is, I believe, to be found among the amendments proposed by the State of North Carolina. Now, I conceive, if we do any thing to conciliate the minds of the people to the Constitution, we ought not to modify the principle of Then, if we find it to be naturally inferred from the Government, so as to increase the evil com- the principles of the Constitution, coincident with plained of, by a further blending of the Executive the nature of his duty, that this officer should be and Legislative powers, and that too upon con-dependent upon him, and to the benefit of the struction, when gentlemen deny that we ought to use construction in any case.

Now let us take the Constitution, and consider, from the terms and principles of it, in whom this power is vested. It is said by some gentlemen to be an omitted case; I shall take up the other principle, which is easier to be maintained, that it is not an omitted case, and say the power of removal is vested in the President. I shall also take up the principle laid down by the gentleman from Virginia (Mr. WHITE) at the beginning of his argument, that, agreeably to the nature of all Executive powers, it is right and proper that the person who appoints should remove. This leads me to consider in whom the appointment is vested by the Constitution. The President nominates and appoints; he is further expressly authorized to commission all officers. Now, does it appear from this distribution of power that the Senate appoints? Does an officer exercise powers by authority of the Senate? No; I believe the President is the person from whom he derives his authority. He appoints, but under a check; it is necessary to obtain the consent of the Senate; but after that is obtained, I ask who appoints? Who vests the officer with authority? Who commissions him? The President does these acts by his sole power, but they are exercised in consequence of the advice of another branch of the Government. If, therefore, the officer receives his authority and commission from the President, surely the removal follows as coincident.

Now, let us examine whether this construction consists with the true interests of the United States, and the general principles of the Constitution. It consists with the general principles of the Constitution; because the Executive power is given to the President, and it is by reason of his incapacity that we are called upon to appoint assistants. Mention, to be sure, is made of the principal officers in departments; but it is from

United States, for what purpose shall Congress refuse a legislative declaration of the Constitution, and leave it to remain a doubtful point? Because, if Congress refuses to determine, we cannot conceive that others will be more entitled to decide upon it than we are. This will appear to give ground for what gentlemen have asserted, that we are afraid to carry the Constitution into effect. This, I apprehend, will not be doing our duty.

Gentlemen say they have a sufficient remedy for every evil likely to result from connecting the Senate with the President. This they propose to do by allowing the power of suspension. This, in the first place, does not answer the end, because there is a possibility that the officer may not be displaced after a hearing before the Senate. And, in the second place, it is entirely inconsistent with the whole course of reasoning pursued by the gentlemen in opposition. I would ask them. if the Constitution does not give to the President the power of removal, what part is it that gives the power of suspension? If you will, in one case, construe the Constitution, you may do it in another; for I look upon it as dangerous to give the power of suspension by implication, as to give the full power of removal. Gentlemen observe, that I take it for granted that the President has no express right to the power of suspension, and that, if he is to exercise it, it must be drawn by constructive reasoning alone from the Constitution. If we are to exercise our authority, we had better at once give a power that would answer two valuable purposes, than one altogether nugatory. In the first place, it would entirely separate the Legislative and Executive departments, conformably to the great principles of the Constitution; and, in the second place, it would answer the end of Government better, and secure real benefits to the Union.

The fears of the gentleman from Virginia (Mr. WHITE) appear to me unfounded. Why does he

H. OF R.]

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suppose the inhabitants of North Carolina will take umbrage at our decision? It cannot be because we are averse to uniting the Executive and Legislative departments; because they are avowed opponents to that doctrine. They cannot be afraid of the President, by reason of his having the power to exercise such authority, for the danger does not lie on that side. The great evil, as was stated by the gentleman from Virginia (Mr. MADISON) yesterday is, that bad officers shall continue in office, and not that good ones may be removed; yet this last is all that is in the power of the President. If he removes a good officer, he cannot appoint his successor without the consent of the Senate; and it is fairly to be presumed, that if at any time he should be guilty of such an oversight, as to remove a useful and valuable officer, the evil will be small, because another as valuable will be placed in his stead. If it is said that this is an injury to the individual, I confess that it is possible that it may be so. But ought we not in the first place to consult the public good? But on mature consideration, I do not apprehend any very great injury will result to the individual from this practice; because, when he accepts of the office, he knows the tenure by which he is to hold it, and ought to be prepared against every contingency.

These being the principles on which I have formed my opinion, in addition to what was stated, I do conceive that I am perfectly justified to my constituents and to my oath, to support this construction. And when I give my vote that the President ought to have the power of removal from office, I do it on principle; and gentlemen in the opposition will leave us to the operation of our judgments on this, as well as every other question that comes before us. For my part, I conceive it is impossible to carry into execution the powers of the President in a salutary manner, unless he has the power of removal vested in him. I do not mean, that if it was not vested in him by the Constitution, it would be proper for Congress to confer it; though I do believe the Government would otherwise be very defective, yet we would have to bear this inconvenience until it was rectified by an amendment of the Constitution. For my part, I would adhere to every principle contained in it, however defective, and not infringe it for any purpose whatever. In so doing, we shall be justified by our constituents, and have nothing to dread from those apprehensions which have been held out; because I trust in the good sense of our fellow-citizens, that while we do our duty, they will not be backward, on their part, to conform to theirs.

[JUNE, 1789.

the bill for organizing the Treasury, that the principle might be established before that more delicate business came into view.

A gentleman from Massachusetts (Mr. SEDG WICK) has brought forward some arguments which are of great weight. But whilst I acknowledge their weight generally, I must beg leave to differ with him in one particular. He conceives the President, or President and Senate, to be the head of all the Executive departments of Government. Now I cannot see it in this point of light. I would ask where is the necessity, if this doctrine was true, of grafting into the Constitution a power to authorize the President to receive the advice of the Senate, and require the opinion in writing of the heads of departments? I appeal to the good sense of the committee to determine whether these offices are not established by the Constitution as heads of departments. How then can they be merely instruments of the President, to conform implicitly to his will? for I deny the principle that they are mere creatures of the law. They have Constitutional rights which they may exercise. If the President alone is the head of the whole Executive Department, and these the mere creatures of law, where is the necessity of calling them heads of departments in the Constitution? Surely the convention did not use a redundancy of words, and insert a clause without a meaning. They either must have done this, or contemplated your Secretary of Foreign Affairs as head of an Executive Department. Where else shall we search for a meaning? Shall we look into the bill now before the House? That bill stares gentlemen in the face; it acknowledges the Secretary of Foreign Affairs to be the head of a department. Shall the Constitution be taken up and construed? If it is, it should not be construed in the manner which the gentlemen have adopted.

I agree with the honorable member last up, that we have a right to modify the judiciary system, and, in doing this, that construction is necessary. But it is a construction of a different kind from what is now contended for; we have a right to extend the powers of that department by construction. There is a great difference between organizing and modifying a department, and modifying the principles of the Constitution; there would be great danger in this. If we begin once to construe and define the principles of the Constitution, there is no end to our power; we may begin with the alpha and go to the omega, changing, reversing, and subverting every principle contained in it. This never can be the meaning of the Constitution; this never was the intention of our constituents; they never sent us here for the purpose of altering the system of Government; they reserved that power to themselves.

Mr. JACKSON.-I think it necessary to answer a few of the arguments that have been brought forward on the other side of the House, although I am well satisfied the subject has been worn I differ with gentlemen who say that the Senthreadbare. With respect to what has been said ate have no part of the Executive power, or that about the business being ingeniously handled, I the President has no part of the Legislative auagree with the gentleman that the discussion of thority. I consider them as checks upon each the bill has been ingenious; and it has been inge-other, to prevent the abuse of either; and it is in niously brought forward; for the committee have this way the liberties of the people are secured. taken care to bring in the present bill, previous to I appeal for the truth of this sentiment to the

JUNE, 1789.]

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writings of PUBLIUS. He has proved that the Senate is a check upon the Executive, for the express purpose of securing the freedom of the people.

[H. of R.

years since, would have exalted a man to a station as high as Haman's gibbet. These titles have been echoed, even in the Boston papers, a town which, fifteen years ago, would acknowledge no lord but the Lord of Hosts.

principle in the Constitution, that the exercise of all power should be properly checked and guarded; the Senate is the proper check on the President, and the President on the Senate and this House. These being my sentiments, and conceiving it the only way to secure the rights of the people, I shall be against the clause, and hope it may be rejected.

Gentlemen have come forward and told us that a power of this kind is necessary to prevent a I call upon gentlemen to show me, why the misapplication of the public money; and to make heads of departments are necessarily dependent the officer completely controllable by the Presi- upon the President, when the Constitution specident, would be the best security for his fidelity. fically points them out. I cannot, for my part, adBut the vigilance of the House of Representa-mit that any part of the Constitution authorises tives, and the power of impeachment and punish- the President to exercise an uncontrolled power ment, would be a better security; for, if the Pre-over them, because I perceive, as a fundamental sident has the power of removing all officers who may be virtuous enough to oppose his base measures, what would become of the liberties of our fellow-citizens? Your treasury would fall into his hands; for nobody in that department would dare to oppose him. Having then the army and the treasury at his command, we might bid a farewell to the liberties of America forever. The balance would be on his side; and if we were to lose the benefit of the Constitution for a day, a month, or a year, it could never be regained, but by an arduous and dreadful conflict. I repeat it again, there are but two things necessary to make a man a despot, the purse and the sword. The Constitution gives to the President the power of the latter, and the Legislature is about to give the power of the former into his hands; when this is done the liberties of the people are surrendered to his discretion.

Mr. SCOTT. Before I call again for the question, although I confess I have been long since ready for it, I beg leave to say a few words, and I assure the committee I do not mean to be tedious. I have listened to the arguments in support of this motion these three days with great attention, and think, when taken together, they consist in this, the raising of a great number of frightful pictures, which, at first sight, appear very terrible; but when they are attentively contemplated, they appear to be the vagaries of a disordered Gentlemen have said that the power in the imagination. Let us examine one or two of hands of the Senate would be equally dangerous; these frightful pictures, merely as a sample of the but let me ask them whether most danger is to be whole set, and see what they amount to. The apprehended from a power vested in the hands of most frightful of all that has been brought into one or many? Besides, the Senate is a body view is, that the Treasurer must be the mere creaperpetually changing, returning to, and renova- ture of the President, and conform to all his diting from the mass of the people, which will also rections, or he arbitrarily removes him from ofbe continually watched over by the State Legis- fice, and lays his hands violently upon the money tures. It will be readily admitted, that the State chest; then, having the sword and the purse, you Governments are good sentinels and proper checks see the President boldly advancing, supported by over their conduct. In this view, I look upon the the army and navy, and the money chest in the Senate as a more harmless body than gentlemen back ground, engaging the liberties of the people; seem inclined to suppose it. But it is not so with armed with all this omnipotence of power, the the President-he is Constitutionally armed with protector rushes onward with irresistible impetuhigh and dangerous powers, which, if left un- osity:-so sudden and fatal is the stroke, that the checked and unrestrained, might be productive of expiring Genius of America has hardly time faintdangerous consequences. But to extend those ly to say, Farewell Liberty! Thus despotism rides powers would increase the danger to an alarming triumphant, and freedom and happiness are tramdegree; if you grant him the power of removing pled in the dust. Strange, that all this should whom he pleases from office, you will give him a arise from the Executive Magistrate having the complete control over the whole Treasury De-power of removal. But gentlemen tell us, that partment. Having got the sword, give him if we keep the Treasurer out of the power of the the purse, with the army and navy, and what is President, he cannot injure us; that, being thus there left for him to require? With the com-independent, your strong box will be well guardmand of the strong box, he would be able to raise ed, and the President cannot get your money unup a legion of officers to support his measures, se- less he steals it; and if he steals it, and the Treacure his election, and thus perpetuate his politi-surer sees him, he will tell. This will lead to an cal existence. Gentlemen will not contend that impeachment, and we shall get rid of the cause there is no fear of corruption, when the President has the power of bribing by a disposal of the public treasure among his partisans. Let us look round at this moment, and see the progress we are making towards venality and corruption. We already hear the sounding title of Highness and Most Honorable trumpeted in our ears, which, ten 1st CoN.-18

of our apprehensions. But the Constitution says, that no money shall be taken out of the Treasury but by appropriations: this alone, I think, a sufficient answer to all that has been said, and will serve to soften down the harsh features which the terrible picture I have just now mentioned displayed. I say, sir, our money may be in the Trea

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sury by millions, and, without special appropria- ment, and distributed among them all the power tion by the Legislature, neither the President, Treasurer, nor both together, can touch a farthing of it, unless they steal it. This being the case, I see as little security to the Treasury in the independence of this officer, as danger arising from his dependence, without a single exception; for if the President, with a strong army at his back, comes violently to lay hold of the money chest, this officer stands but a very poor security against such a power. I think the President, supported with the army and navy, making a descent upon your Treasury, would be very apt to carry away the money and the Treasurer too, if he stood in his way. Arguments like these may tend to amuse, but they can make no serious impression; it is only drawing pictures on a wall, in order to batter them down with our own knuckles.

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are likely to become a more important body; the to suffer for it?
Executive Magistrate has but a qualified negative
over them. The Parliament of England, with
the consent of the King, can expound their Con-
stitution; in fact, they are the Constitution itself.
And Congress may, if once the doctrine of con-
struction is established, make the Constitution
what they please; and the President can have no
control over them.

[H. or R.

This is a strange kind of responsibility. Suppose, in the case of the Secretary of the Treasury, there should be a defalcation of the public revenue; is he to make good the loss? Or if the head of the army should betray his trust, and sacrifice the liberties of his country, is the President's head to be the devoted sacrifice? The Constitution shows the contrary by the provision made for impeachment; and this I take to be one of the strongest arguments against the President having the power of removing one of the principal officers of Government-that he is to bear his own responsibility.

It has been said by my colleague, (Mr. SEDGWICK,) that the President not only nominates, but appoints the officers; and infers from hence, that as the power of removal is incidental to the power of appointing, the President has the power of re- It has been urged by the gentleman over the moval also. But I should be glad to know how it way, (Mr. ScOTT,) that the President is the man can, with justice, be said that the President ap- of the people, and their particular representapoints. The Constitution requires the consent of tive. Now how this can warrant those strong the Senate; therefore they are two distinct terms in which it has been asserted, I leave the bodies, and intended to check each other. If my committee to determine, when he can be elected colleague's is a true construction, it may be ex- by electors appointed by the State Legislatures. tended further, and it may be said, that in the act Is the creature of the deputy of a deputy nearof nominating, the assent of the Senate is virtual-er to the people than the creature of their deply given; and, therefore, he has a right to make uty? Would that gentleman consider the issue the whole appointment himself, without any in- of his wife's maid nearer akin to him than the terference on the part of the Senate. I contend, issue of his wife? sir, that there is just as much propriety in the one construction as in the other. If we observe the enacting style of the statutes of Great Britain, we shall find pretty nearly the same words as those used in the Constitution, with respect to appointments-"Be it enacted by the King's Most Excellent Majesty, by and with the advice and consent of Parliament." Here it might be said that the King enacts all laws; but I believe the truth of this fact will be disputed in that country. I believe no one will pretend to say that the King is the three branches of Parliament; and, unless my colleague will do all this, I never can admit that the President in himself has the power of appointment.

My colleague has gone further, to show the dependence of this officer on the President. He says, the necessity of appointing a Secretary of Foreign Affairs arises from a natural defect in man; that if the President were able to administer all these departments, there would be no occasion of making provision by law. If the President had power superior to the limits of humanity, he might render his country great services; but we are not likely to have any such President; the Constitution itself contemplates none; it makes provision for the infirmities of human nature; it authorizes us to establish offices by law; and this is the ground upon which we stand. Indeed, this is the ground that was assumed yesterday by my colleague, when he said that this officer was the creature of the law. If he is the creature of the law, let him conduct according to law, and let it not be contended that he is the creature of the President; because he is no further the creature of the President, than that he is obliged to give his opinion in writing when required. But it is said, the President is responsible for the conduct of this officer. I wish to know what this responsibility is. Does it mean, if a subordinate Executive officer commits treason, that the President is

The question before the committee must be decided on one of these two grounds: either they must suppose this power is delegated particularly to the President by the Constitution, or it is not. Let us examine these two cases. If gentlemen say that it is delegated by the Constitution, then there is no use for the clause; but if it is not particularly delegated to the President by the Constitution, and we are inclined to authorize him to exercise this power, I would ask gentlemen, whether this is the proper way to do it? Whether a little clause, hid in the body of a bill, can be called a declaratory act? I think it cannot. It looks as if we were afraid of avowing our intentions. If we are determined upon making a declaratory act, let us do it in such a manner as to indicate our intention. But perhaps gentlemen may think we have no authority to make declaratory acts. They may be right in this opinion; for, though I have examined the Constitution with attention, I have not been able to discover any clause which vests Congress with that power. But if the power of making declaratory acts really vests in Congress, and the judges are bound by our decisions, we may alter that part of the Constitution which is secured from being amended by the fifth article; we may say, that the ninth section of the Constitution, respecting the migration or importation of persons, does not extend to negroes; that the word persons means only white men and white women. We then proceed to lay a duty of twenty or thirty dollars per head on the importation of negroes. The merchant does not construe the Constitution in the manner that we have done. He therefore institutes a suit, and brings it before the Supreme Judicature of the United States for trial. The judges, who are bound by oath to support the Constitution, declare against this law; they would, therefore, give judgment in favor of the merchant. But, say Congress, we are the Constitutional expounders