H. OF R.] Department of Foreign Affairs. of this clause, and your decision in this case has been improper. Shall the judges, because Congress have usurped power, and made a law founded in construction, be impeached by one branch, and convicted by the other, for doing a meritorious act, and standing in opposition to their usurpation of power? If this is the meaning of the Constitution, it was hardly worth while to have had so much bustle and uneasiness about it. I would ask gentlemen, if the Constitution has given us power to make declaratory acts, where is the necessity of inserting the fifth article for the purpose of obtaining amendments? The word amendment implies a defect; a declaratory act conceives one. Where, then, is the difference between an amendment and a declaratory act? I call upon the gentleman to point out what part of the Constitution says we shall correct that instrument by a declaratory act. If gentlemen once break through the Constitutional limits of their authority, they will find it very difficult to draw a boundary, which will secure to themselves and their posterity that liberty which they have so well contended for. Several gentlemen rose to speak, but sat down again upon a call for the question, which seemed to be pretty general through the House; when Mr. SUMTER arose, and begged gentlemen not to be so precipitate. If they considered the importance of the question, and the consequences of the decision, they would reflect more deliberately before they gave their votes. For his part, he sat patiently, and attended seriously to the arguments offered on both sides. He had received considerable information from the discussion which had already taken place, and he hoped that more light would still be thrown upon it, if gentlemen were not precluded from pursuing the subject by a precipitate call for the question. He hoped gentlemen would give further time, and let other members speak, who were desirous of delivering their sentiments. [JUNE, 1789. Houses to its will and pleasure. Perhaps it may Some gentlemen suppose, if the President has not the power by the Constitution, we ought to vest it in him by law. For my part, I very much doubt if we have the power to do this. I take it we would be placing the heads of departments in a situation inferior to what the Constitution contemplates; but if we have the power, it will be better to exercise it than attempt to construe the Constitution. But it appears to me, that the best way will be to leave the Constitution to speak for itself whenever occasion demands. It has been said, that the Senate are merely an advisory body. I am not of this opinion, because their consent is expressly required; if this is not obtained, an appointment cannot be made. Upon the whole, I look upon it as necessary, in order to preserve that security which the Constitution affords to the liberty of the people, that we avoid making this declaration, especially in favor of the President, as I do not believe the Constitution vests the authority in him alone. Mr. AMES.-I believe there are very few gentlemen on this floor who have not made up their opinions; therefore it is particularly disagreeable to solicit their attention, especially when their patience is already exhausted, and their curiosity sated; but still I hope to be of some use in collecting the various arguments, and bringing them to a point. I shall rather confine myself to this task, than attempt to offer any thing that is new. I shall just observe, that the arguments of the gentleman from Pennsylvania, (Mr. SCOTT.) which are complained of as being ridiculous, were arguments addressed to the understandings of the committee; my own understanding was enlightened by them, although they wore the garb of pleasantry. But to proceed to my main object. Mr. SHERMAN. The importance of this question requires mature deliberation ; the more I have heard it discussed, the more convinced I am that the clause ought to be struck out. If we suppose (and gentlemen do suppose on this side of the question) that the power is vested in the President by the Constitution, why should we intermeddle in the matter? Why are we officiously to intrude our opinions upon the President? Are we to suppose he is unacquainted with his duty, and is to be taught it by our superior wisdom? I apprehend that the electors who chose the President, thought him competent to understand his duty; what then can induce us to give our advice unasked? If he was in doubt, and was to apply to us for such a purpose, there might be some propriety in it. The convention, who formed this The question, so far as it relates to the ConstiConstitution, thought it would tend to secure the tution, is this: Whether it has vested the sole liberties of the people, if they prohibited the Pres-power of removing in the President alone, or ident from the sole appointment of all officers. They knew that the Crown of Great Britain, by having that prerogative, has been enabled to swallow up the whole administration; the influence of the Crown upon the Legislature subjects both whether it is to take place by and with the advice and consent of the Senate? If the question of constitutionality was once despatched, we should be left to consider of the expediency of the measure. I take it to be admitted on all JUNE, 1789.] Department of Foreign Affairs. hands, though it was at first objected to by a worthy gentleman from South Carolina, that the power of removal from office, at pleasure, resides somewhere in the Government. If it does not reside in the President, or the President and Senate, or if the Constitution has not vested it in any particular body, it must be in the Legislature; for it is absurd to suppose that officers once appointed cannot be removed. The argument tending to prove that the power is in the President alone, by an express declaration, may not be satisfactory to the minds of those gentlemen who deem the Constitution to be silent on that head. But let those gentlemen revert to the principles, spirit, and tendency of the Constitution, and they will be compelled to acknowledge that there is the highest degree of probability that the power does vest in the President of the United States. I shall not undertake to say that the arguments are conclusive on this point. I do not suppose it is necessary that they should be so; for I believe nearly as good conclusions may be drawn from the refutations of an argument as from any other proof. For it is well said, that destructio unius est generatio alterius. It has been said, and addressed with solemnity to our consciences, that we ought not to destroy the Constitution, to change or modify it; nay, it has been inferred that it is unnecessary and dangerous for us to proceed in this inquiry. It is true we may decide wrong, and therefore there may be danger; but it is not unnecessary. We have entered too far in the discussion to retreat with honor to ourselves, or security to our country. We are sworn as much to exercise Constitutional authority, for the general good, as to refrain from assuming powers that are not given to us. We are as responsible for forbearing to act, as we are for acting. Are we to leave this question undetermined, to be contended for between the President and the Senate? Are we to say, that the question to us is indissoluble, and we therefore throw it upon the shoulders of the President to determine? If it is complex and difficult, it is certainly disingenuous in us to throw off the decision; besides, after so long a debate has been had, a decision must be made, for it never would do to strike out the words; as that would be deciding, and deciding against the power of the President. [H. OF R. trol over officers appointed to aid him in the performance of his duty. Take this power out of his hands, and you virtually strip him of his authority; you virtually destroy his responsibilitythe great security which this Constitution holds out to the people of America. Gentlemen will say that, as the Constitution is not explicit, it must be matter of doubt where the power vests. If gentlemen's consciences will not let them agree with us, they ought to permit us to exercise the like liberty on our part. But they tell us we must meet them on the ground of accommodation, and give up a declaration that the power of removal is in the President, and they will acquiesce in declaring him to have the power of suspension; but they should recollect, that in so doing we sacrifice the principles of the Constitution. It has been frequently said, that the power of removing is incidental to the power of appointing: as the Constitution implies that all officers, except the judges, are appointed during pleasure, so the power of removal may, in all cases, be exercised. But suppose this general principle true; yet it is an arbitrary principle, I take it, and one that cannot be proved. If it were denied, it could not be established; and if it were established, it is still doubtful whether it would make for the adverse side of this question or not; because it is doubted whether the Senate do actually appoint, or not. It is admitted that they may check and regulate the appointment by the President, but they can do nothing more; they are merely an advisory body, and do not secure any degree of responsibility, which is one great object of the present Constitution. They are not answerable for their secret advice; but if they were, the blame, divided among so many, would fall upon none. Certainly this assumed principle is very often untrue; but, if it is true, it is not favorable to the gentlemen's doctrine. The President, I contend, has expressly the power of nominating and appointing, though he must obtain the consent of the Senate. He is the agent; the Senate may prevent his acting, but cannot act themselves. It may be difficult to illustrate this point by examples which will exactly correspond. But suppose the case of an executor, to whom is devised land, to be sold with the advice of a certain person, on It must be admitted that the Constitution is not certain conditions; the executor sells, with the explicit on the point in contest; yet the Constitu- consent, and upon the conditions required in the tion strongly infers that the power is in the Pre- will; the conditions are broken;-may the execusident alone. It is declared that the Executive tor re-enter for the breach of them? Or has the power shall be vested in the President. Under person with whom he was obliged to consult in these terms all the powers properly belonging to the sale, any power to restrain him? The executhe Executive department of the Government tor may remove the wrongful possessor from the are given, and such only taken away as are ex-land, though perhaps by the will, he may hold it pressly excepted. If the Constitution had stop-in trust for another person's benefit. In this ped here, and the duties had not been defined, either the President had had no powers at all, or he would acquire from that general expression all the powers properly belonging to the Executive department. In the Constitution the President is required to see the laws faithfully executed. He cannot do this without he has a con manner the President may remove from office, though, when vacant, he cannot fill it without the advice of the Senate. We are told it is dangerous to adopt constructions, and that what is not expressly given, is retained. Surely it is as improper in this way to confer power upon the Senate as upon the President; for, if the power H. OF R.] Department of Foreign Affairs. [JUNE, 1789. is not in the President solely by the Constitution, the truths that are at this moment in controversy. it never can be in the President and Senate by any grant of that instrument. Any arguments, therefore, that tend to make the first doubtful, operate against the other, and make it absurd. If gentlemen, then, doubt with respect to the first point, they will certainly hesitate with respect to the other. If the Senate have not the power, and it is proved that they have it not, by the argnments on both sides, the power either vests with the President or the Legislature; if it is at the disposal of the latter, and merely a matter of choice with us, clearly we ought not to bestow it on the Senate; for the doubt, whether the President is not already entitled to it, is an argument against placing it in other hands. Besides, the exercise of it by the Senate would be inconvenient; they are not always sitting; it would be insecure, because they are not responsible; it would be subversive of the great principles of the Constitution, and destructive to liberty, because it tends to intermingle Executive and Legislative powers in one body of men; and this blending of powers ever forms a tyranny. The Senate are not to accuse offenders; they are to try them; they are not to give orders, but, on complaint, to judge of the breach of them. We are warned against betraying the liberties of our country; we are told that all power tends to abuse; it is our duty, therefore, to keep them single and distinct. Where the Executive swallows up the Legislature, it becomes a despotism; where the Legislature trenches upon the Executive, it approaches towards despotism; and where they have less power than is necessary, it approximates towards anarchy. We should be careful, therefore, to preserve the limits of each authority in the present question. As it respects the power of the people, it is but of little importance. It is not pretended that the people have reserved the power of removing bad officers. It is admitted on all hands, that the Government is possessed of such power; consequently, the people can neither lose nor gain power by it. We are the servants of the people; we are the watchmen, and we should be unfaithful in both characters, if we should so administer the Government as to destroy its great principles and most essential advantages. The question now among us is, which of these servants shall exercise a power already granted? Wise and virtuous as the Senate may be, such a power lodged in their hands will not only tend to abuse, but cannot tend to any thing else. Need I repeat the inconveniences which will result from vesting it in the Senate? No, I appeal to that maxim which has the sanction of experience, and is authorized by the decision of the wisest men; to prevent an abuse of power, it must be distributed into three branches, who must be made independent, to watch and check each other. The people are to watch them all. While these maxims are pursued, our liberties will be preserved. It was from neglecting or despising these maxims that the ancient commonwealths were destroyed. A voice issues from the earth which covers their ruins, and proclaims to mankind the sacredness of It is said that the Constitution has blended these powers which we advise to keep separate, and therefore we ought to follow in completing similar regulations. But gentlemen ought to recollect that that has been an objection against the Constitution; and if it is a well-founded one, we ought to endeavor, by all that is in our power, to restrain the evil rather than to increase it. But, perhaps, with the sole power of removal in the President, the check of the Senate in appointments may have a salutary tendency. In removing from office, their advice and consent is liable to all the objections which have been stated. It is very proper to guard the introduction of a man into office by every check that can properly be applied; but after he is appointed, there can be no use in exercising a judgment upon events which have heretofore taken place. If the Senate are to possess the power of removal, they will be enabled to hold the person in office, let the circumstances be what they may that point out the necessity or propriety of his removal. It creates a permanent connexion; it will nurse faction; it will promote intrigue to obtain protectors, and to shelter tools. Sir, it is infusing poison into the Constitution; it is an impure and unchaste connexion; there is ruin in it; it is tempting the Senate with forbidden fruit; it ought not to be possible for a branch of the Legislature even to hope for a share of the Executive power; for they may be tempted to increase it, by a hope to share the exercise of it. People are seldom jealous of their own power; and if the Senate become part of the Executive, they will be very improper persons to watch that department; so far from being champions for liberty, they will become conspirators against it. The Executive department should ever be independent, and sufficiently energetic to defeat the attempts of either branch of the Legislature to usurp its prerogative. But the proposed control of the Senate is setting that body above the President; it tends to establish an aristocracy. And at the moment we are endangering the principles of our free and excellent Constitution, gentlemen are undertaking to amuse the people with the sound of liberty. If their ideas should succeed, a principle of mortality will be infused into a Government, which the lovers of mankind have wished might last to the end of the world. With a mixture of the Executive and Legislative pow ers in one body, no Government can long remain uncorrupt. With a corrupt Executive, liberty may long retain a trembling existence. With a corrupt Legislature, it is impossible; the vitals of the Constitution would be mortified, and death must follow on every step. A Government thus formed would be the most formidable curse that could befall this country. Perhaps an enlightened people might timely foresee and correct the error; but if a season were allowed for such a compound to grow and produce its natural fruit, it would either banish liberty, or the people would be driven to exercise their unalienable right, the right of uncivilized nature, and destroy a monster whose voracious and capacious jaws would crush JUNE, 1789.] Department of Foreign Affairs. and swallow up themselves and their posterity. The principles of this Constitution, while they are adhered to, will perpetuate that liberty which it is the honor of Americans to have well contended for. The clause in the bill is calculated to support those principles; and for this, if there was no other reason, I should be inclined to give it my support. Mr. LIVERMORE.-I think gentlemen ought to consent to strike out the words, even upon their own principles; for we ought not to blend the Legislative with the Executive powers; and surely a declaration like that contained in the bill, is an interference on our part with the Executive Department. Leave them to do their duty, and let us do ours. [H. OF R. vor to give such a construction to the clause he had read, as would justify the House in striking out the words from the bill. If the consent of the Senate be absolutely requisite with respect to appointments, it is one thing; but if the President has no more to do than to ask their opinion, or to receive their advice, it is another thing. The latter appeared to him to be the sentiment of another gentleman from Massachusetts, (Mr. AMES.) [Mr. AMES rose and denied such an opinion. His idea was that the President was the agent, and the Senate a check to regulate his agency.] Mr. LIVERMORE.-I shall take it, then, with the consent of gentlemen, that the Senate has an absolute control over the President in cases of appointment. Now, being thus appointed, how are officers to be displaced? On this point, I undertake to give my opinion; though, in the first place, I must differ with one of the gentleman on this side of the question, (Mr. SMITH, of South Carolina.) I do not admit that any man has an estate in his office. I conceive all officers to be appointed during pleasure, except where the Constitution stipulates for a different tenure, unless indeed the law should create the office, or officer, for a term of years. After observing this, I must contend, with the honorable gentleman from Virginia, (Mr. WHITE,) that the power of removal is incidental to the power of appointment. If it were the President alone that appointed, he alone could displace. If the President and Senate, by a joint agreement, appoint an officer, they alone have the power to supersede him; and however any gentleman may say he doubts, or does not understand the force of this principle, yet to me it appears as clear and as demonstrable as any principle of law or justice that I am acquainted with. There is another method of displacing officers expressly pointed out by the Constitution; and this implies. in the clearest manner, that in all other cases, officers may be removed at pleasure; and, if removed at pleasure, it must be at the pleasure of the parties who appointed them. The decision of this question depends upon the construction of a short clause in the Constitution, in which is designated the power of the President. It is said he shall have power, by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the Senators present concur; he shall nominate, and, by and with the advice and consent of the Senate, appoint ambassadors, other public ministers and consuls, justices of the Supreme Court, and all other officers of the United States. Strange constructions have been given to this advice and consent of the Senate, which, if agreed to, will make the whole Constitution nothing, or any thing, just as we please. If we can deprive the Senate of their power in making treaties, and say with truth that they have no authority in the business, the Legislature will become a dangerous branch of the Government. So in the case of appointing officers; if it can be truly said that these heads of departments are the servants of the President alone, we shall make the Executive Department a dangerous one. I should not dwell so strongly on these two points, had not a gentleman from Massachusetts (Mr. SEDGWICK) asserted that the power of appointing did not vest, in any sense, in the Senate, nor that they were instrumental in making treaties; that all officers were the servants of the President, and he alone responsible. Mr. SEDGWICK imagined the gentleman had misunderstood him, because he said, when he was last up, that it was not conceded on this side that the power of appointing vested in the Senate, nor in the case that appeared analogous, namely, that of making treaties; but he did not deny that the concurrence of the Senate was necessary to the completion of the act. He had undertaken to say that the Legislature were at liberty to determine that an officer should be removable by the President, or by whom they pleased; that he was absolutely the creature of the law, and subject to Legislative discretion. He also said it was more plausibly contended that the power of removal was more constitutionally in the President than in the President and Senate; but he did not say that the arguments on either side were conclusive. Mr. SMITH, of South Carolina. As my silence Mr. LIVERMORE did not desire to lay any stress may be construed into a dereliction of my former upon arguments which he had misunderstood. sentiments, I beg permission of the committee to He would therefore pass over what he had in-assure them, that my opinion on the question of tended to say on that head; and he would endea- constitutionality has undergone no change what Congress are enabled, by the Constitution, to establish offices by law. In many cases, they will no doubt vest the power of appointing inferior officers in the President alone. They have no express right, by the Constitution, to vest in him the power of removing these officers at pleasure; yet no gentleman will contend that inferior officers ought not to be removable at pleasure. How, then, can the President acquire this authority, unless it be on the principle that the power of removal is incidental, and the natural consequence of the power of appointing. If gentlemen will maintain consistency, they will be compelled to acknowledge the force of this principle; and if they acknowledge the principle, they must agree to strike out the words. H. OF R.] Department of Foreign Affairs. ever. Indeed, the arguments of gentlemen in favor of the clause have gone mostly on the point of expediency, and have tended rather to show us what the Constitution ought to be than what it is. [JUNE, 1789. picious that they do not themselves think there is good reason to believe the President would think of exercising the authority which they are so desirous of giving him to understand that he ought. To my mind, it is a strong proof that An honorable gentleman, (Mr. MADISON,) of gentlemen do not think the power is vested in him great abilities, and who was a member of the by the Constitution. If gentlemen were satisfied convention that formed the Constitution, has that the Constitution gave this power to the given us an interpretation of the first words in President, they would not hesitate, at the request the second article, which requires some examina- of so numerous and respectable a part of the tion before it is admitted. He says that all pow- House, to strike out the words. I say they would ers incidental to the Executive Department, are not hesitate to do this, because they did not hesivested in the President of the United States. tate to strike out similar words. When the busiWhat powers are Executive, or incidental to the ness was first brought before the Committee of Executive Department, will depend upon the the Whole, gentlemen will recollect, that the nature of the Government; because some powers motion for establishing the Departments of are vested in the Executive of a monarchy that Finance, War, and Foreign Affairs, was first introare not in an aristocracy, and in the Executive of duced; it contained a clause declaring that the an aristocracy that are unknown in a democracy. officers should be respectively appointed by the The Legislatures of republics appoint to office; President, by and with the advice and consent of this power is exercised by the Executive of mo- the Senate. Gentlemen, who are now in the narchies. In England the King appoints all offi- minority, declared such a clause to be unnecescers; and do gentlemen contend that Executive sary, because the Constitution had already given powers vest in the President? The King con- the power. The solidity of this reasoning was fers titles of nobility, but the Constitution prohi-admitted by a majority of the House at that time; bits the United States from granting any. Does even the honorable gentleman from Virginia (Mr. it restrain the President, or Congress, from the MADISON) acquiesced in striking out the words. exercise of this Executive power? I believe it If gentlemen wished to be considered consistent, restrains Congress. If so, the Constitution did they will consent to strike out the words, "to be not contemplate that the President should exer- removable by the President;" provided they are cise all Executive power, or the Constitution did of opinion that the Constitution vests this aunot understand the power of conferring titles as thority in the President alone. If it is not vested an Executive power. Hence, what I contend for by the Constitution in the President alone, will is evinced, that Executive powers must take their gentlemen undertake to vest it in him by law, complexion from the nature of the Government. when it is so well contended that the Constitution Can the President establish corporations? Can vests it in the President and Senate? he prevent citizens from going out of the country? He cannot. Yet these powers are exercised, as Executive powers, by the King of Great Britain. There are a variety of other powers exercised, as Executive powers, to which the President is not entitled. From this I am led to believe that the gentleman may be wrong. when he considers the power of removal as an Executive power, and incidental to the prerogative of the President. For my part, I conceive the President is to exercise all Executive powers granted in the Constitution, as the Legislature is to exercise all Legislative authority, according to these words in the first article: "All Legislative powers herein granted shall be vested in a Congress of the United States." However solemnly the contrary doctrine may be insisted upon, however ridiculously our arguments may be treated, I hope we shall preserve a due attention to the reason and nature of things, and to the Constitution; and not suffer ourselves to be forced or laughed out of our principles. Ridicule is said to be the test of truth; and, to be sure, that touchstone has been applied, with what success I leave gentlemen to determine. For my part, though I admit the gentleman's talent at caricature, yet I should never think of employing him at portrait work. The extreme desire which gentlemen have manifested to retain this clause, makes me sus Mr. MADISON.-The question now seems to be brought to this, whether it is proper or improper to retain these words in the clause, provided they are explanatory of the Constitution. I think this branch of the Legislature is as much interested in the establishment of the true meaning of the Constitution, as either the President or Senate; and when the Constitution submits it to us to establish offices by law, we ought to know by what tenure the office should be held; and whether it should depend upon the concurrence of the Senate with the President, or upon the will of the President alone; because gentlemen may hesitate in either case, whether they will make it for an indefinite or precise time. If the officer can be removed at discretion by the President, there may be safety in letting it be for an indefinite period. If he cannot exert his prerogative, there is no security even by the mode of impeachment; because the officer may intrench himself behind the authority of the Senate, and bid defiance to every other department of Government. In this case, the question of duration would take a different turn. Hence it is highly proper that we and our constituents should know the tenure of the office. And have we not as good a right as any branch of the Government to declare our sense of the meaning of the Constitution? Nothing has yet been offered to invalidate the |