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JUNE, 1789.]

Department of Foreign Affairs.

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let not their agency be superseded by the passions we disapprove.

idea of Executive power, as applicable to their rule. In an absolute monarchy there never has been any doubt with respect to implication; the In the scale of responsibility this power has monarch can do what he pleases. In a limited been weighed, and determined to be lodged with monarchy, the prince has powers incident to the President on that account. But wherefore? kingly prerogative. How far will a Federal Ex-I consider the Senate more responsible than the ecutive, limited by a Constitution, extend in im- President. The Senate must keep a journal of plications of this kind? Does it go so far as ab- their proceedings; their acts are manifested to the solute monarchy? Or is it confined to a restrain- power appointing them, who are always in existed monarchy ? If gentlemen will lay down their ence. The electors of the President meet for a rule, it will serve us as a criterion to determine moment, to make their choice: but will the conall questions respecting the Executive authority duct of a President be investigated? Will they of this Government. have materials to form their judgment upon ? My conception may be dull; but telling me that Or will their existence bear an extension suffithis is an Executive power, raises no complete cient for any other purpose than barely to meet in idea in my mind. If you tell me the nature of their respective States, and vote by ballot for two Executive power, and how far the principle ex-persons, and to make out a certificate of their protends, I may be able to judge whether this has ceedings? Is there the same degree of responsirelation thereto, and how much is due to im- bility? When a Senate is appointed, the Legisplication. latures of the respective States will keep a watchful eye over their conduct; and if they are displeased with a Senator, they will not hesitate to turn him out; they can effect this on information and deliberation. The State Legislatures are in the habit of discussing questions respecting the general good; they will discuss the propriety of the Senate's conduct; while the electors of the President are too widely spread, and too short a time assembled, to effect a purpose of this nature.

If I look to the Constitution, or nature of things, I should be led to conclude that the body choosing agents has the power of dismissing them; because the power naturally lodges in those who have the interest and management of the concern. The Executive business of this officer is under the superintendence and management of the Senate, as well as the President. Treaties with foreign nations must be conducted by the advice of the Senate, and concluded with their It has been judged by some gentlemen a dreadconsent. Hence results a necessity in that body's ful affair that the President should become a party having a concern in the choice and dismissal of before the Senate; it would degrade his dignity. the Secretary of Foreign Affairs. I do not see It was said, the Judiciary would be pleased if this any other sure or safe bottom on which the ques-weighty question could be taken off their hands.

tion can be determined.

I will just advert to a few arguments which go to prove that officers, once appointed, ought not to be removed in the manner contended for, without insisting upon them at this late period of debate.

In the nature of things, in all appointments, there is an implied contract: on the part of the officer, that he will perform the service; and on the part of those who appoint him, that he shall have an adequate reward. In the engagement of the officer, qualities, commensurate with the duties, are required: in the reward, the dignity of the station and the qualities of the officer ought to be estimated. And although, in this engagement, an officer may dispense with certain forms of trial, yet he can never surrender a natural right; he cannot engage to be punished without being guilty, or dismissed without being useless. It has been well observed, that the appointment ought to cease when the causes of it no longer exist; but it is equally clear that it ought to continue as long as the reasons remain. And although, in public and private life, it may be proper to discharge an agent without divulging the reason; yet clearly a good reason ought to precede the dismission, because, otherwise, you do an act of injustice by a breach of contract.

And if we have now the power to make the rule, we ought to make it conform to these principles. Let justice and reason operate as profitably, as secretly, and as quickly as may be; but

To what a height do gentlemen exalt that character in their own minds! How far above the level of the people, when they consider it derogatory to his dignity to institute an examination into the conduct of an officer next to himself in rank! when they consider it almost above human nature to determine a question of right between the President and a great officer of the United States. If gentlemen have an idea that this character is to have such a degree of elevation above the community, it is time to think of restraining his power. Upon what does power depend? Not upon the strength of arm, but opinion. If gentlemen will exalt a character above themselves, call him what you will, he will be possessed of monarchy. In this enthusiasm of confidence, we seem to forget the confidence we have in the President, Senate, and great officers of Government in appointments, as compared with the confidence in the President in removals. Why, if the powers of inquiry, judgment, impartiality, and discernment, stipulated by the Constitution in the President and Senate to select good men and the first characters into office, will you place more confidence in the President alone than in the Senate and heads of departments together? This is inconsistent with the confidence which the Constitution reposes in the Executive.

We have expended our treasure, our blood, and our time, to very little purpose, if we do not think that liberty and safety exalt the human species. From the meanest to the highest rank in life, the

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Department of Foreign Affairs.

propriety of conduct arises from the security and independence of situation. I will not pursue the argument further, than to observe, that from these principles it is, that there is more liberty and nobleness of soul in a common man in America, than in a Minister of State in Turkey; but if the principles for which the advocates of this clause contend are adopted, it will give this influence. If a man is a candidate for an office, held by the tenure of will and pleasure, he must examine his soul, and see if there are qualities in him to enable him to cringe, and submit to the arbitrary mandate of the President; if he finds these qualities in his disposition, he is suited for the business; but if the Constitution is to be justly administered, and he finds himself disposed to sacrifice to the pleasure of the Chief Magistrate, although he possesses qualities which, as I said before, suited him for his employment, yet he is unfit for the

office.

Mr. VINING. I am impressed with the importance and magnitude of the present subject, equally with other gentlemen.

In the body politic, Mr Chairman, the Executive authority is a marked feature; and the question in my mind is, shall we deform it by displacing it, or give it that fixture which the Constitution intended, and which a due regard to symmetry and proportion requires. It has been well demonstrated that the various powers of Government ought to be exercised by distinct bodies, in order to provide a happy administration, and secure to the nation the blessings of freedom; or if they are any way blended, it ought not to exceed that degree necessary to execute good government. But gentlemen tell us that this is not the language of the Constitution. My honorable friend from Georgia (Mr. JACKSON) has gone so far as to ask us for an instance in any Government, where this principle obtains. To investigate this question fully, would lead us into an extensive field of historical research. I will, therefore, in order to save time, admit that, in most countries, this division of power is faintly defined. Yet, in Great Britain, where this doctrine is strongly advocated, the lines of distinction are deeply marked. It is true, the Executive authority is blended with the Legislative; but how far does this extend? No further than to assure a salutary administration of that form of Government. But, say gentlemen, the power which Great Britain leaves in her Executive Magistrate would, in this country, be an alarming subject. I am pleased with the great concern manifested by honorable gentlemen for the preservation of liberty; and admit with them, that it is involved in our decision. But suffer me to explain why I think so.

There have been few Governments overthrown by the independence of the Executive. What are the consequences of clipping its wings? Anarchy and confusion, and a struggle between the Legislative and Executive, in which the latter is generally sacrificed on the altar of despotism. Thus, I conceive, the liberty of the people to be involved in our decision. If by Legislative encroachment we weaken the Executive arm, we render it in

[JUNE, 1789.

capable of performing the functions assigned it by the Constitution, and subject it to become an easy prey to the other branches of the Government.

Gentlemen may tell us, that the Executive, with the command of the military, may acquire uncontrolled power. Perhaps some experience may authorize the inference. But, let me ask, what has been the cause? I take it that adequate powers have been denied the Executive, or taken from it. In either case, the Executive must have exercised authority not legally vested, in order to continue the operations of Government. And being once accustomed to assume power, the habit is easily confirmed; so that shortly the aggregate of power assembles on the ground where you refused a just participation. Now, if you allow a just distribution of the powers of the Government, you leave the Executive no pretext to justify an unconstitutional seizure on its part. The King of Great Britain has the command of the army and navy; but have those engines of despotism been called into action to wrest from the other branches of Government, or from the people, powers not legally vested in the Crown? The answer must be in the negative. And why has this not been done? Because the Constitutional powers of the British monarch are sufficient to answer the purposes of the Government.

Let us turn to Sweden and Poland for an illus. tration of this doctrine; for examples to convince us of the dangerous tendency of denying the Executive a due proportion of power. In Sweden, the limited power of the King was nearly annihilated by an aristocracy. And what has resulted from that circumstance? Why, at this moment, you find the monarch compelled, for the security of his nation, to assume all the powers of despotism; and you behold the nation submitting cheerfully to the event, nay, joining the throne in establishing an arbitrary Government; by which all their rights as men and privileges as citizens are immolated at the shrine of prerogative.

The legislative authority in Poland belongs essentially to the Diet; though the Senate is the soul of this body, she retains royalty without fearing her Kings. The object of the Poles has been to guard against what was called the encroachments of the throne. It is not (said they but a century ago) a master that we want, it is only a chief; some went further, and asserted, that a free people wanted no chief at all.

This republican language became the prevailing style in all assemblies of State. And to what has it led? Placed under the absolute Government of a single person, they continually complained of the weight of the yoke. Left to the enjoyment of liberty, they knew not how to use it for their own good; and by abridging the efficacy of the Executive, they fell into intestine commotion, which delivered them up an easy prey to their ambitious neighbors. Are we to learn nothing from these dreadful examples? Will gentlemen persist in contracting the Constitutional powers of the Executive? Will they, against their own principles, acquiesce in blend

JUNE, 1789.]

Department of Foreign Affairs.

ing Executive and Legislative powers? Far off may that period be, when the Congress of the United States shall shorten the arm of her Executive. Success in such a measure will forerun the obsequies of freedom.

Mr. Chairman, I am confounded with the diversity of arguments used on this occasion. I know not how to reply. Some gentlemen say it is wrong, it is cruel, to take away the wealth, the reputation, (and this word is synonymous, in the apprehension of others, with life,) from your public officers without an impeachment: and yet, gentlemen on the same side of the question admit, that an officer may be properly removed by the President, by and with the advice and consent of the Senate, or, in other words, without impeach

ment.

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a ballot-box, and there you will seek for tickets, whose hand-writing is to serve as a clue to this business of mystery. But, behold! the tickets are torn, and scattered to the wind.

This Government, Mr. Chairman, let us remember, rose like Hercules' brawny frame from its cradle. Let us avail ourselves of the wisdom and experience of former ages. Let us aggregate the knowledge of every nation, to give its nerves their vigor, and each muscle its due strength; that, like that demi-god, it may strangle, even in its infancy, the malignant and venomous efforts of its subtle invaders.

Who, let me ask, is the Chief Magistrate under this Government? The President. What are his duties? To see the laws faithfully executed; if he does not do this effectually, he is responsible. Will gentlemen view for a moment the effect To whom? To the people. Have they the means of their arguments? Suppose the President de- of calling him to account, and punishing him for sires to remove a bad officer, and the Senate re- neglect? They have secured it in the Constitufuse; what is to become of your impeachment? tion, by impeachment, to be presented by their I say, sir, that the House of Representatives, com- immediate representatives; if they fail here, they bined with your Executive, will be unable to pro- have another check when the time of election cure the dismission of an officer who is hourly be- comes round. But what are the duties, and what traying his trust, and that in the most open and is the responsibility of the Senators? In their flagitious manner. If your proofs are clear as a legislative capacity it is not intended that they mathematical demonstration, it is all in vain ; your shall assist the President; it is an additional Exetribunal, which is to decide upon the impeach-cutive authority. Is it compatible with the prinment, has prejudged the question. I will, never-ciples of the Constitution, that the Legislature theless, on account of the expected patriotism of should assume Executive power, or is it done in that body, admit, that there is a possibility of obtaining justice. But are the interests, the rights, and happiness of this great community, to depend upon a bare possibility alone, when our Constitution has provided safety and stability to the public welfare? We say that the mode of removing bad or obnoxious officers by impeachment is tedious and uncertain at best; but it is not to be relied on, if the Senate are connected with the President in the general power of removing; for it would ever be in the power of a faction, or a party in the Senate, so to clog the wheels of our political machine, as to render its motions slow and unavailing. And this they could do under an impenetrable veil; they could do it without being in the least degree responsible. Let not gentlemen talk of their responsibility, and compare it with the President's. We do not predict shadowy and chimerical evils. What we fear has actually happened; the mischief of precedent is already established; the Senate declare their concurrence in appointments, by ballot. In this secret mode, through cabals, through intrigue, they will be able to defeat every salutary agency of the Executive, in seeing his instruments perform their duty.

Mr. STONE.-Do I understand the gentleman? Does he tell us that the Senate decide by ballot? I should be glad to ascertain the fact.

order to make itself responsible? Surely not. But if it was admissible, what degree of responsibility is acquired through the Senate? They are not the representatives of the people; they are the representatives of the State sovereignties, as was well observed by the honorable gentleman from Pennsylvania, (Mr. SCOTT ;) who are nothing less than accountable to the people. They may have a policy to pursue not altogether consistent with the salus populi, and are only responsible to the State sovereignties.

The gentleman from Maryland (Mr. STONE) compares the point in question with that of an attorney; for my part, I do not conceive the application well made. The Senate are combined with the President to aid him in the choice of his officers. The officers are not the agents of the Senate; they do not act for the Senate; they act for the Executive Magistrate. If you give the Senate a power in the removal, you give them an agency in the Executive business which the Constitution never contemplated. If, therefore, the honorable gentleman's arguments mean any thing, they mean that the Senate ought to have complete power over the attorney of the President.

Mr. STONE said, that the gentleman did not seem to understand his general principle, that the power which appoints is naturally vested with Mr. VINING. They did so yesterday. I pre- power over the agent. He by no means admitsume I need not mention the consequences of such ted that the business of the Secretary of Foreign procedure. But where is the responsibility when Affairs was to be done exclusively for the Presia man can hide his vote? If they do an obnox-dent; he conceived the Senate was constitutionious thing, they will say, I did not vote so; and shift the blame from themselves. Where will you go to ascertain the fact? Into the dark recesses of

ally vested with power over that department.

Mr. VINING.-If I have misapprehended the gentleman's argument on this point, I will waive

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Department of Foreign Affairs.

[JUNE, 1789.

agree with us, and undo what all our efforts have labored to accomplish. A law is a nullity, unless it can be carried into execution; in this case, our law will be suspended. Hence all construction of the meaning of the Constitution, is dangerous or unnatural, and therefore ought to be avoided.

my reply, and proceed to what seems to assume
a more serious appearance. It is contended, that
if the Constitution does not vest the power of
removal in the President, we have no right to
give it. The Constitution authorizes a complete
Government, and leaves it to the Legislature to
organize it by creating the necessary offices. The
power of establishing offices implies complete
power over them, and gives to Congress a right
to form them on such principles as shall appear
to be most conducive to the public good. To
establish officers immovable, is not contemplated
by the Constitution but in the case of the judges.
If they are removable, Congress have authority
to declare by whom, unless some express provision
on this head was made in the Constitution. No
express provision being made, it remains for this
House to declare their sentiments. I will not
recapitulate the arguments which were well
urged by the gentleman from Virginia, (Mr.
MADISON,) to show that if the Constitution had
made express provision, there can be no impro-ders them mere nullities.
priety in declaring it by law.

Upon the whole, it appears to me, Mr. Chairman, that the object of every gentleman on this floor is the same, however various and diversified the roads we pursue to attain it; from which opinion, I am led to conclude, that however a misguided zeal may terrify us with alarms, we shall coolly and deliberately unite in carrying into complete operation the Legislative and Éxecutive powers vested in this Government, as the only means under heaven of securing to ourselves and posterity the blessings of freedom and tranquillity.

This is our doctrine, that no power of this kind ought to be exercised by the Legislature. But we say, if we must give a construction to the Constitution, it is more natural to give the construction in favor of the power of removal vesting in the President, by and with the advice and consent of the Senate; because it is in the nature of things, that the power which appoints, removes also. If there are deviations from this general rule, the instances are few, and not sufficient to warrant our departure on this occasion. We say our construction is superior also, because it does not militate against any clause of the Constitution; whilst a contrary construction militates against several, and, in some respects, ren

The gentleman from Virginia (Mr. MADISON) dwells strongly on the necessity of keeping the departments of Government separate and distinct. What does he mean? Does he infer that there is not a natural affinity between the power of appointing and removing, and therefore they ought to be kept separate? I presume not. He will admit there is such an affinity. Then I would ask, in what character does the Senate act in case of appointments? They act as an advisory and Executive body. If they are Executive in the act of appointing, there is no clashing of powers, consequently no blending in the case of Mr. GERRY. If we take this step, Mr. Chair-removal. But if gentlemen say, that, in appointman, we shall have to take another, which may ments, the Executive and Legislative powers are shake the Government itself. How judicious this blended, their position is contrary to what they may be at this time, I leave the advocates of the say are the true principles of the Constitution. clause in question to determine.

We have the power to establish offices by law; The gentleman opposite to me, from Georgia, we can declare the duties of the officer; these (Mr. BALDWIN) has asserted, that we mean to put duties are what the Legislature directs, and not a construction upon the Constitution, and that what the President; the officer is bound by law the clause is only a violation of our construction, to perform these duties. But this clause militates and not of the Constitution itself. I think he is against the institution itself; for the President is wholly mistaken with respect to the opponents to have the power of preventing the execution; of this clause. I can speak for myself. I am the office, and its duties, are suspended on the decidedly against putting any construction what-pleasure of the President. Suppose an officer disever on the Constitution, for several reasons. Sir, charges his duty as the law directs, yet the Presi we are not the expositors of the Constitution; dent will remove him; he will be guided by some but if we were the expositors, we ought to give other criterion; perhaps the officer is not goodour exposition by a declaratory act, and not foist natured enough; he makes an ungraceful bow, or it in where no one would ever look for it. But if does it left leg foremost; this is unbecoming in a it were done by a declaratory act, I conceive it great officer at the President's levee. Now, bewould be impossible to draw the line at which cause he is so unfortunate as not to be so good a declaratory acts should stop. Hence we should dancer as he is a worthy officer, he must be realter the Constitutional mode of amending the moved. The Senate, and this House, may think system of Government. Another difficulty would it necessary to inquire, why a good officer is disalso arise: the judges are the expositors of the missed. The President will say, it is my pleasure; Constitution and the acts of Congress. Our ex- I am authorized by law to exercise this prerogaposition, therefore, would be subject to their tive; I have my reasons for it, but you have no revisal. In this way the Constitutional balance right to require them of me. This language may would be destroyed; the Legislature, with the be proper in a monarchy; but in a republic every Judiciary, might remove the head of the Execu- action ought to be accounted for. How can you tive branch. But a further reason why we are impeach the President, as was said by the honor. not the expositors is, that the Judiciary may dis-able gentleman from Virginia, (Mr. MADISON,)

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Department of Foreign Affairs.

for exercising a power vested in him by law? Sir, it is an absurdity to talk of impeachments on such occasions, when the officer is shielded by the law.

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trary to their avowed principles. If the Legislature have not the power of removal, they cannot confer it upon others; if they have it, it is a legislative power, and they have no right to transfer the exercise of it to any other body. So, view this question in whatever point of light you please, it is clear the words ought to be struck out.

If gentlemen would consent to make a general law, declaring the proper mode of removal, I think we should acquire a greater degree of unanimity, which, on this occasion, must be better than carrying the question against a large minority.

The call for the question being now very general, it was put, shall the words to be removable by the President," be struck out?

There is a consistency under a monarchy of the King's exercising the power of appointment and removal at pleasure. In Great Britain, this is the prerogative of the throne; where it is like- Mr. SHERMAN.-I wish, Mr. Chairman, that wise held a maxim, that the King can do no the words may be left out of the bill, without wrong. The Chief Magistrate under this Con- giving up the question either way as to the prostitution is a different character: there is a Con-priety of the measure. Many of the honorable stitutional tribunal, where he may be arraigned, gentlemen who advocate this clause have labored condemned, and punished, if he does wrong. The to show that the President has, Constitutionally, reason of this distinction I take to be this: The the power of removal. If this be a well-founded majesty of the people receives an injury when the opinion, they ought not to let the words remain President commits an improper act, for which in the bill, because they are of such a nature as to they are to receive satisfaction. Kings have a imply that he had not the power before it was property in Government, and when a Monarch granted him by the law. acts unwisely he injures his own interest, but is accountable to none; because satisfaction is due to himself alone. He is established in his office for life; it is an estate to him, which he is interested to transmit to his posterity unimpaired. The good of the people, upon principles of interest, will be his peculiar study. He ought, therefore, to have power to act in such a manner as is most likely to secure to him this object; then, necessarily, he must have the right of choosing or displacing his agents. There can be no difficulty on this point; but in a confederated republic, the Chief Magistrate has no such trust; he is elected but for four years, after which the Government goes into other hands. He is not stimulated to improve a patrimony, and therefore has no occasion for complete power over the officers of the Government. If he has such power, it can only be made useful to himself by being the means of procuring him a re-election, but can never be useful to the people by inducing him to appoint good officers or remove bad ones. It appears to me that such unbounded power vitiates the principles of the Constitution; and the officers, instead of being the machinery of the Government, moving in the regular order prescribed by the Legislature, will be the mere puppets of the President, to be employed or thrown aside as useless lumber, according to his prevailing fancy.

If gentlemen will take this step, they must take another, and secure the public good by making it the interest of the President to consult it; they must elect him for life, or, what will be more consistent still, they must make his office hereditary. Then gentlemen may say, with some degree of truth, that he ought to have the power of removal, to secure in his hands a balance in the GovernBut if gentlemen are willing to remain where they are, and abide by the Constitution, regarding its true principles, they will not contend that there is a necessity, or even a propriety, in vesting this power in the President alone.

ment.

Gentlemen tell us they are willing to consider this as a Constitutional question, and yet the bill shows that they consider the Constitution silent; for the clause grants the power in express terms. This also implies that the Legislature have a right to interfere with the Executive power, con

It was determined in the negative; being yeas 20, nays 34.

Mr. CARROLL proposed a clause, limiting the operation of the act, under a hope that a time would come when the United States would be disengaged from the necessity of supporting a Secretary of Foreign Affairs. He thought the policy of limiting establishments, in their nature not always necessary, evident to every thinking mind; and he hoped Congress would pursue the principle on this and every similar occasion. He viewed the natural situation of this country as some security against our being drawn into the vortex of European politics; but the present bill afforded a means of attraction which it was prudent to guard against.

Mr. BENSON saw no necessity for the clause, for his mind did not contemplate a time when a Secretary of Foreign Affairs would be an unnecessary or useless officer.

Mr. MADISON thought limitations ought never to be made, unless for special reasons; because it would be destructive of the salutary permanency of the laws, which was an object of no inconsiderable magnitude.

Mr. AMES had no doubt of the good intention of the worthy and honorable mover; but he thought a limitation would be injurious. The United States is a member of the society composed of the assemblage of all the nations of the earth; and it is impossible, as a member of this great society, but that there ever will be a natural obligation to maintain an intercourse with them. If the gentleman discovered that he had mistaken his principle, he flattered himself the motion would be withdrawn.

Mr. STONE expressed himself in favor of the motion, in order that the House might preserve their due share of the Government. If the officer

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