Oath.—On a Bill prescribing the Oath to support the Constitution.

Mr. GERRY said, he did not discover what part of the Constitution gave to Congress the power of making this provision, (for regulating the time and manner of administering certain oaths,) except so much of it as respects the form of the oath; it is not expressly given by any clause of the Constitution, and, if it does not exist, must arise from the sweeping clause, as it is frequently termed, in the 8th section of the 1st article of the Constitution, which authorizes Congress "to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof." To this clause there seems to be no limitation, so far as it applies to the extension of the powers vested by the Constitution; but even this clause gives no legislative authority to Congress to carry into effect any power not expressly vested by the Constitution. In the Constitution, which is the supreme law of the land, provision is made that the members of the legislatures of the several states, and all executive and judicial officers thereof, shall be bound by oath to support the Constitution: But there is no provision for empowering the government of the United States, or any officer or department thereof, to pass a law obligatory on the members of the legislatures of the several states, and other officers thereof, to take this oath. This is made their duty already by the Constitution, and no such law of Congress can add force to the Obligation; but, on the other hand, if it is admitted that such a law is necessary, it tends to weaken the Constitution, which requires such aid: neither is any law, other than to prescribe the form of the oath, necessary or proper to carry this part of the Constitution into effect; for the oath required by the Constitution, being a necessary qualification for the state officers mentioned, cannot be dispensed with by any authority whatever, other than the people, and the judicial power of the United States, extending to all cases arising in law or equity under this Constitution. The judges of the United States, who are bound to support the Constitution, may, in all cases within their jurisdiction, annul the official acts of state officers, and even the acts of the members of the state legislatures, if such members and officers were disqualified to do or pass such acts, by neglecting or refusing to take this oath.

Mr. BLAND had no doubt respecting the powers of Congress on this subject. The evident meaning of the words of the Constitution implied that Congress should have the power to pass a law directing the time and manner of taking the oath prescribed for supporting the Constitution. There can be no hesitation respecting the power to direct their own officers, and the constituent parts of Congress: besides, if the state legislatures were to be left to direct and arrange this business, they would pass different laws, and the officers might be bound in different degrees to support the Constitution. He not only thought Congress had the power to do what was proposed by the Senate, but he judged it expedient also.

Mr. JACKSON. The states had better be left to regulate this matter among themselves; for an oath that is not voluntary is seldom held sacred. Compelling people to swear to support the Constitution will be like the attempts of Britain, during the late revolution, to secure the fidelity of those who fell within the influence of her arms; and like those attempts they will be frustrated. The moment the party could get from under her wings, the oath of allegiance was disregarded. If the state officers will not willingly pay this testimony of their attachment to the Constitution, what is extorted from them against their inclination is not much to be relied on.

Mr. LAWRENCE. Only a few words will be necessary to convince us that Congress have this power. It is declared by the Constitution, that its ordinances shall be the supreme law of the land. If the Constitution is the supreme law of the land, every part of it must partake of this supremacy; consequently, every general declaration it contains is the supreme law. But then these general declarations cannot be carried into effect without particular regulations adapted to the circumstances: these particular regulations are to be made by Congress, who, by the Constitution, have power to make all laws necessary or proper to carry the declarations of the Constitution into effect. The Constitution likewise declares that the members of the state legislatures, and all officers, executive and judicial, shall take an oath to support the Constitution. This declaration is general, and it lies with the supreme legislature to detail and regulate it.

Mr. SHERMAN. It appears necessary to point out the oath itself, as well as the time and manner of taking it. No other legislature is competent to all these purposes; but if they were, there is a propriety in the supreme legislature's doing it. At the same time, if the state legislatures take it up, it cannot operate disagreeably upon them, to find all their neighboring states obliged to join them in supporting a measure they approve: What a state legislature may do, will be good as far as it goes. On the same principle, the Constitution will apply to each individual of the state officers: they may go, without the direction of the state legislature, to a justice, and take the oath voluntarily.

This, I suppose, would be binding upon them; but this is not satisfactory; the government ought to know that the oath has been properly taken; and this can only be done by a general regulation. If it is in the discretion of the state legislatures to make laws to carry the declaration of the Constitution into execution, they have the power of refusing, and may avoid the positive injunctions of the Constitution. As the power of Congress, in this particular, extends over the whole Union, it is most proper for as to take the subject up, and make the proper provision for carrying it into execution, to the intention of the Constitution.

Mr. WHITE. The Constitution, having authorized the House of Representatives alone to originate money bills, places an important trust in our hands, which, as their protectors, we ought not to part with. I do not mean to imply that the Senate are less to be trusted than this house; but the Constitution, no doubt for wise purposes, has given the immediate representatives of the people a control over the whole government in this particular, which, for their interest, they ought not to let out of their hands.

Mr. MADISON The Constitution places the power in the House of originating money bills. The principal reason why the Constitution had made this distinction was, because they were chosen by the people, and supposed to be the best acquainted with their interest and ability. In order to make them more particularly acquainted with these objects, the democratic branch of the legislature consisted of a greater number, and were chosen for a shorter period; that so they might revert more frequently to the mass of the people.

Mr. MADISON "moved to lay an impost of eight cents on all beer imported. He did not think this would be a monopoly, but he hoped it would be such an encouragement as to induce the manufacture to take deep root in every state in the Union."—Lloyd's Debates of Congress, vol. i. p. 65.

The same. "The states that are most advanced in population, and ripe for manufactures, ought to have their particular interests attended to in some degree. While these states retained the power of making regulations of trade, they had the power to protect and cherish such institutions. By adopting the present Constitution, they have thrown the exercise of this power into other hands. They must have done this with an expectation that those interests would not be neglected here."—Idem, p. 24.

The same. "There may be some manufactures which, being once formed, can advance towards perfection without any adventitious aid; while others, for want of the fostering hand of government, will be unable to go on at all. Legislative attention will therefore be necessary to collect the proper objects for this purpose."—Idem, p. 26.

Mr. CLYMER "did not object to this mode of encouraging manufactures, and obtaining revenues, by combining the two objects in one bill. He was satisfied that a political necessity existed for both the one and the other."—Idem, p. 31.

Mr. CLYMER "hoped gentlemen would be disposed to extend a degree of patronage to a manufacture [steel] which a moment's reflection would convince them was highly deserving protection."—Idem, p. 69.

Mr. CARROLL "moved to insert window and other glass. A manufacture of this article was begun in Maryland, and attended with considerable success. If the legislature was to grant a small encouragement, it would be permanently established."—Idem, p. 94.

Mr. WADSWORTH. "By moderating the duties, we shall obtain revenue, and give that encouragement to manufactures which is intended."—Idem, p. 128.

Mr. AMES "thought this a useful and accommodating manufacture, [nails,] which yielded a clear gain of all it sold for; but the cost of the material, the labor employed in it, would be thrown away probably in many instances. * * * He hoped the article would remain in the bill."—Idem, p. 81.

The same. "The committee were already informed of the flourishing situation of the manufacture, [nails,] but they ought not to join the gentleman from South Carolina, Mr. Tucker, in concluding that it did not, therefore, deserve legislative protection. He had no doubt but the committee would concur in laying a small protecting duty in favor of this manufacture."—Idem, p. 82.

Mr. FITZSIMONS "was willing to allow a small duty, because it conformed to the policy of the states who thought it proper in this manner to protect their manufactures."—Idem, p. 83.

The same. "It being my opinion that an enumeration of articles will tend to clear away difficulties, I wish as many to be selected as possible. For this reason I have prepared myself with an additional number: among these are some calculated to encourage the productions of our country, and protect our infant manufactures."—Idem, p. 17.

Mr. HARTLEY. "If we consult the history of the ancient world, Europe, we shall see that they have thought proper, for a long time past, to give great encouragement to establish manufactures, by laying such partial duties on the importation of foreign goods, as to give the home manufactures a considerable advantage in the price when brought to market. * * * I think it both politic and just that the fostering hand of the general government should extend to all those manufactures which will tend to national utility. Our stock of materials is, in many instances, equal to the greatest demand, and our artisans sufficient to work them up, even for exportation. In those cases, I take it to be the policy of every enlightened nation to give their manufacturers that degree of encouragement necessary to perfect them, without oppressing the other paris of the community; and, under this encouragement, the industry of the manufacturer will be employed to add to the wealth of the nation."—Idem, p. 22.

Mr. WHITE. "In order to charge specified articles of manufacture so as to encourage our domestic ones, it will he necessary to examine the present state of each throughout the Union."—Idem, p. 19.

Mr. BLAND (of Virginia) "thought that very little revenue was likely to be collected from the importation of this article, [beef;] and, as it was to be had in sufficient quantities within the United States, perhaps a tax amounting to a prohibition would be proper."—Idem, p. 66.

Mr. BLAND "informed the committee that there were mines opened in Virginia capable of supplying the whole of the United States; and, if some restraint was laid on importation of foreign coals, those mines might be worked to advantage."—Idem, p. 97.

Mr. BOUDINOT. "I shall certainly move for it, [the article of glass,] as I suppose we are capable of manufacturing this as well as many of the others. In fact, it is well known that we have and can do it as well as most nations, the materials being almost all produced in our country."—Idem, p. 28.

The same. "Let us take, then, the resolution of Congress in 1783, and make it the basis of our system, adding only such protecting duties as are necessary to support the manufactures established by the legislatures of the manufacturing states."—Idem, p. 34.

Mr. SINNICKSON "declared himself a friend to this manufacture, [beer,] and thought that, if the duty was laid high enough to effect a prohibition, the manufacture would increase, and of consequence the price would be lessened."—Idem, p. 65.

Mr. LAWRENCE "thought that if candles were an object of considerable importation, they ought to be taxed for the sake of obtaining revenue, and if they were not imported in considerable quantities, the burden upon the consumer would be small, while it tended to cherish a valuable manufacture."—Idem, p. 68.

Mr. FITZSIMONS "moved to lay a duty of two cents per pound on tallow candles. The manufacture of candles is an important manufacture, and far advanced towards perfection. I have no doubt but in a few years we shall be able to supply the consumption of every part of the continent."—Idem, p. 67.

The same. "Suppose 5s. cwt. were imposed, [on unwrought steel:] it might be, as stated, a partial duty: but would not the evil be soon overbalanced by the establishment of such an important manufacture?"—Idem, p. 69.

The same. "The necessity of continuing those encouragements which the state legislatures have deemed proper, exists in a considerable degree. Therefore it will be politic in the government of the United States to continue such duties until their object is accomplished."—Idem, p. 67.

Mr. SMITH (of South Carolina.) "The people of South Carolina are willing to make sacrifices to encourage the manufacturing and maritime interests of their sister states"—Idem, p. 212.

Gen. Washington's Speech to Congress, of January 11, 1790, declares, "That the safety and interest of a free people require that Congress should promote such manufactures as tend to render them independent of others for essential, particularly military supplies.

"The advancement of agriculture, commerce, and manufactures, by all proper means, will not, I trust, need recommendation."

Extract from the reply of the Senate, to the speech of Gen. Washington, January, 1790.—"Agriculture, commerce, and manufactures, forming the basis of the wealth and strength of our confederated republic, must be the frequent subject of our deliberations, and shall be advanced by all the proper means in our power."

Extract from the reply of the House of Representatives.—"We concur with you in the sentiment that 'agriculture, commerce, and manufactures, are entitled to legislative protection.'"

His speech of December, 1796, holds out the same doctrine—"Congress have repeatedly, and not without success, directed their attention to the encouragement of manufactures. The object is of too much importance not to insure a Continuance of these efforts in every way which shall appear eligible."

Extract from the reply of the Senate to the speech of Gen. Washington, December, 1796.—"The necessity of accelerating the establishment of certain useful branches of manufactures, by the intervention of legislative aid and protection, and the encouragement due to agriculture by the creation of boards, (composed of intelligent individuals,) to patronize the primary pursuit of society, are subjects which will readily engage our most serious attention."

Mr. Jefferson, in his Message of 1802, states that—"To cultivate peace, maintain commerce and navigation, to foster our fisheries, and protect manufactures adapted to our circumstances, &c., are the landmarks by which to guide ourselves in all our relations."

From Mr. Jefferson's Message of 1808.—"The situation into which we have been thus forced has impelled us to apply a portion of our industry and capital to internal manufacturing improvements. The extent of this conversion is daily increasing, and little doubt remains that the establishments formed and forming will, under the auspices of cheaper materials and subsistence, the freedom of labor from taxation with us, and protecting duties and prohibitions, become permanent."

Extract from the Message of Mr. Madison, December 5, 1815.—"Under circumstances giving powerful impulse to manufacturing industry, it has made among us a progress, and exhibited an efficiency, which justify the belief that, with a protection not more than is due to the enterprising citizens whose interests are now at stake, it will become, at an early day, not only safe against occasional competitions from abroad, but a source of domestic wealth, and even of external commerce. * * * * In selecting the branches more especially entitled to public patronage, a preference is obviously claimed by such as will relieve the United States from a dependence on foreign supplies, ever subject to casual failures, for articles necessary for public defence, or connected with the primary wants of individuals. It will be an additional recommendation of particular manufactures, where the materials for them are extensively drawn from our agriculture, and consequently impart and insure to that great fund of national prosperity and independence an encouragement which cannot fail to be rewarded."

From the Message of President Monroe, December, 1818.—"It is deemed of importance to encourage our domestic manufactures. In what manner the evils which we have adverted to may be remedied, and how it may be practicable in other respects to afford them further encouragement, paying due regard to the other great interests of the nation, is submitted to the wisdom of Congress."

From the same, December 3, 1822.—"Satisfied I am, whatever may be the abstract doctrine in favor of unrestricted commerce, provided all nations would concur in it, and it was not liable to be interrupted by war, which has never occurred, and cannot be expected, that there are strong reasons applicable to our situation, and relations with other countries, which impose on us the obligation to cherish and sustain our manufactures."

From the same, December, 1823.—"Having communicated my views to Congress, at the commencement of the last session, respecting the encouragement which ought to be given to our manufactures, and the principle on which it should be founded, I have only to add that those views remain unchanged, and that the present state of those countries with which we have the most immediate political relations, and greatest commercial intercourse, tends to confirm them. Under this impression, I recommend a review of the tariff, for the purpose of affording such additional protection to those articles which we are prepared to manufacture, or which are more immediately connected with the defence and independence of the country."

Wm. H. Crawford, Secretary of the Treasury, in his report, December, 1819, says,—"It is believed that the present is a favorable moment for affording efficient protection to that increasing and important interest, if it can be done consistently with the general interest of the nation."

Extract from the Message of President Jefferson, December 2, 1806. "The question now comes forward, To what objects shall surpluses be appropriated, and the whole surplus of impost, after the entire discharge of the public debt, and during those intervals when the purposes of war shall not call for them? Shall we suppress the impost, and give that advantage to foreign over domestic manufactures? On a few articles of a more general and necessary use, the suppression, in due season, will doubtless be right; but the great mass of the articles on which impost is paid are foreign luxuries, purchased only by those who are rich enough to afford themselves the use of them. Their patriotism would certainly prefer its continuance, and application to the great purposes of public education, roads, rivers, canals, and such other objects of public improvement as it may he thought proper to add to the constitutional enumeration of federal powers. By these operations, new channels of communication will be opened between the states; the lines of separation will disappear; their interests will be identified, and the union cemented by new and indissoluble ties. Education is here placed among the articles of public care. Not that it would be proposed to take its ordinary branches out of the hands of private enterprise, which manages so much better all the concerns to which it is equal; but a public institution alone can supply those sciences which, though rarely called for, are yet necessary to complete the circle, all the parts of which contribute to the improvement of the country, and some of them to its preservation. The subject is now proposed for the consideration of Congress, because, if approved, by the time the state legislatures shall have deliberated on this extension of the federal trusts, and the laws shall be passed, and other arrangements made for their execution, the necessary funds will be on hand and without employment. I suppose au amendment to the Constitution, by consent of the states, necessary, because the objects now recommended are not among those enumerated in the Constitution, and to which n permits the public money to be applied." * * *

From the same, Nov. 8, 1808.—"The probable accumulation of surpluses of revenue beyond what can be applied to the payment of the public debt, whenever the freedom and safety of our commerce shall be restored, merits the consideration of Congress. Shall it lie unproductive in the public vaults? Shall the revenue be reduced? Or shall it not rather be appropriated to the improvements of roads, canals, rivers, education, and other great foundations of prosperity and union, under the powers which Congress may already possess, or such amendment of the Constitution as may be approved by the states? While uncertain of the course of things, the time may be advantageously employed in obtaining the powers necessary for a system of improvement, should that be thought best." * * *

Removal by the President.—On the Bill for establishing an executive Department, to be denominated the Department of Foreign Affairs.

The first clause, after recapitulating the title of the officer and his duties, had these words: "to be removable from office by the President of the United States."

Mr. WHITE. The Constitution gives the President the power of nominating, and by and with the advice and consent of the Senate, appointing to office. As I conceive the power of appointing and dismissing to be united in their natures, and a principle that never was called in question in any government, I am adverse to that part of the clause which subjects the secretary of foreign affairs to be removed at the will of the President. In the Constitution, special provision is made for the removal of the judges: that I acknowledge to be a deviation from my principle; but as it is a constitutional provision, it is to be admitted. In all cases not otherwise provided for in this Constitution, I take it that the principle I have laid down is the governing one. Now, the Constitution has associated the Senate with the President in appointing the heads of department; for the words of the law declare that there shall be a department established, at the head of which shall be an officer to be so denominated. If, then, the Senate is associated with the President in the appointment, they ought also to be associated in the dismission from office. Upon the justness of this construction, I take the liberty of reviving the motion made in the committee of the whole for striking out these words, "to be removable from office by the President of the United States."

Mr. SMITH, (of South Carolina.) The gentleman has anticipated me in his motion. I am clearly in sentiment with him that the words ought to go out. It is in the recollection of the committee, that, when the subject was last before us, this power was excepted to; and although the words were then allowed to stand, it was generally understood that it should be further debated. I then was opposed to giving this power to the President, and am still of opinion that we ought not to make this declaration, even if he has the power by the Constitution.

I would premise, that one of these two ideas is just—either that the Constitution has given the President the power of removal, and therefore it is nugatory to make the declaration here, or it has trot given the power to him, and therefore it is improper to make an attempt to confer it upon him. If it be not given to him by the Constitution, but belongs conjointly to the President and Senate, we have no right to deprive the Senate of their constitutional prerogative; and it has been the opinion of sensible men that the power was lodged in this manner. A publication of no inconsiderable eminence, in the class of political writings on the Constitution, has advanced this sentiment. The author, or authors, (for I have understood it to be the production of two gentlemen of great information,) of the work published under the signature of Publius, has these words:—

"It has been mentioned as one of the advantages to be expected from the coöperation of the Senate in the business of appointments, that it would contribute to the stability of the administration. The consent of that body would be necessary to displace as well as appoint. A change of the chief magistrate, therefore, would not occasion so violent or so general a revolution in the offices of the government as might be expected if he were the sole disposer of offices. Where a man, in any station, has given satisfactory evidence of his fitness for it, a new President would be restrained from attempting a change, in favor of a person more agreeable to him, by the apprehension that the discountenance of the Senate might frustrate the attempt, and bring some degree of discredit upon himself. Those who can best estimate the value of a steady administration will be most disposed to prize a provision which connects the official existence of public men with the approbation or disapprobation of that body which, from the greater permanency of its own composition, will, in all probability, be less subject to inconstancy than any other member of the government."

Here this author lays it down, that there can be no doubt of the power of the Senate in the business of removal, Let this be as it may, I am clear that the President alone has not the power. Examine the Constitution; the powers of the several branches of government are there defined; the President has particular powers assigned him; the judicial have, in like manner, powers assigned them; but you will find no such power as removing from office given to the President. I call upon gentlemen to show me where it is said that the President shall remove from office. I know they cannot do it. Now I infer from this, as the Constitution has not given the President the power of removability, it meant that he should not have that power, and this inference is supported by that clause in the Constitution, which provides that all civil officers of the United States shall be removed from office on impeachment for and conviction of treason, bribery, or other high crimes and misdemeanors. Here is a particular mode prescribed for removing, and if there is no other mode directed, I contend that the Constitution contemplated only this mode. But let me ask gentlemen if any other mode is necessary. For what other cause should a man be removed from office? Do gentlemen contend that sickness or ignorance would be a sufficient cause? I believe, if they will reflect, they cannot instance any person who was removed from ignorance. I venture to say, there never was an instance of this nature in the United States, There have been instances where a person has been removed for offences: the same may again occur, and are therefore judiciously provided for in the Constitution. But in this case, is he removed from his ignorance, or his error. which is the consequence of his ignorance? I suppose it is for his error, because the public are injured by it, and not for incapacity. The President is to nominate the officer, and the Senate to approve: here is provision made against the appointment of ignorant officers. They cannot be removed for causes which subsisted before their coming into office. Their ignorance therefore must arise after they are appointed; but this is an unlikely case, and one that cannot be contemplated as probable.

I imagine, sir, we are declaring a power in the President which may hereafter be greatly abused, for we are not always to expect a chief magistrate in whom such entire confidence can be placed as in the present. Perhaps gentlemen are so much dazzled with the splendor of the virtues of the present President, as not to be able to see into futurity. The framers of the Constitution did not confine their views to the first person who was looked up to, to fill the presidential chair. If they had, they might have omitted those checks and guards with which the powers of the executive are surrounded. They knew, from the course of human events, that they could not expect to be so highly favored of Heaven, as to have the blessing of his administration more than seven or fourteen years; after which, they supposed a man might get into power, who, it was possible, might misbehave. We ought to follow their example, and contemplate this power in the hands of an ambitious man, who might apply it to dangerous purposes. If we give this power to the President, he may, from caprice, remove the most worthy men from office: his will and pleasure will be the slight tenure by which an office is to be held; and of consequence, you render the officer the mere state dependant, the abject slave, of a person who may be disposed to abuse the confidence his fellow-citizens have placed in him.

Another danger may result. If you desire an officer to be a man of capacity and integrity, you may be disappointed. A gentleman possessed of these qualities, knowing he may be removed at the pleasure of the President, will be loath to risk his reputation on such insecure ground. As the matter stands in the Constitution, he knows, if he is suspected of doing any thing wrong, he shall have a fair trial, and the whole of his transactions developed by an impartial tribunal: he will have confidence in himself when he knows he can only be removed for improper behavior. But if he is subjected to the whim of any man, it may deter him from entering into the service of his country; because, if be is not subservient to that person's pleasure, he may be turned out, and the public may be led to suppose for improper behavior. This impression cannot be removed, as a public inquiry cannot be obtained. Beside this, it ought to be considered, that the person who is appointed will probably quit some other office or business in which he is occupied. Ought he, after making this sacrifice in order to serve the public, to be turned out of place without even a reason being assigned for such behavior? Perhaps the President does not do this with an ill intention: he may have been misinformed, for it is presumable that a President may have round him men envious of the honors or emoluments of persons in office, who will insinuate suspicions into his honest breast, that may produce a removal; be this as it may, the event is still the same to the removed officer. The public suppose him guilty of malpractices—hence his reputation is blasted, his property sacrificed. I say his property is sacrificed, because I consider his office as his property: he is stripped of this, and left exposed to the malevolence of the world, contrary to the principles of the Constitution, and contrary to the principles of all free governments, which are, that no man shall be despoiled of his property but by a fair and impartial trial.

I have stated that, if the power is given by the Constitution, the declaration in the law is nugatory; and I will add, if it is not given, it will be nugatory also to attempt to vest the power. If the Senate participate, on any principle whatever, in the removal, they will never consent to transfer their power to another branch of the government; therefore they will not pass a law with such a declaration in it.

Upon this consideration alone, if there was no other, the words should be struck out, and the question of right, if it is one, left to the decision of the judiciary. It will be time enough to determine the question when the President shall remove an officer in this way. I conceive it can properly be brought before that tribunal; the officer will have a right to a mandamus to be restored to his office; and the judges would determine whether the President exercised a constitutional authority or not.

Some gentlemen think the Constitution takes no notice of this officer, as the head of a department. They suppose him an inferior officer in aid of the executive. This, I think. is going too far; because the Constitution, in the words authorizing the President to call on the heads of departments for their opinions in writing, contemplates several departments. It says, "the principal officer in each of the executive departments."

I have seriously reflected on this subject, and am convinced that the President has not this power by the Constitution, and that, if we had the right to invest him with it, it would be dangerous to do so.

Mr. HUNTINGDON. I think the clause ought not to stand. It was well observed, that the Constitution was silent respecting the removal, otherwise than by impeachment. I would likewise add, that it mentions no other cause of removal than treason, bribery, or other high crimes and misdemeanors. it does not, I apprehend, extend to cases of infirmity or incapacity. Indeed, it appears hard to me that, after an officer has become old in an honorable service, he should be impeached for this infirmity. The Constitution, I think, must be the only rule to guide us on this occasion. As it is silent with respect to the removal, Congress ought to say nothing about it, because it implies that we have a right to bestow it, and I believe this power is not to be found among the enumerated powers delegated by the Constitution to Congress.

It was said, if the President had this authority, it would make him more responsible for the conduct of the officer. But if we have a vicious President, who inclines to abuse this power, which God forbid! his responsibility will stand us in little stead: therefore that idea does not satisfy me that it is proper the President should have this power.

Mr. SEDGWICK. I wish the words to be struck out, because I conceive them to be unnecessary in this place. I do conceive, Mr. Speaker, that this officer will be the mere creature of the law, and that very little need be said to prove to you that of necessity this ought to be the case. I apprehend, likewise, that it requires but a small share of abilities to point out certain causes for which a person ought to be removed from office, without being guilty of treason, bribery, or malfeasance; and the nature of things demands that it should be so. Suppose, sir, a man becomes insane by the visitation of God, and is likely to ruin our affairs; are the hands of government to be confined from warding off the evil? Suppose a person in office not possessing the talents he was judged to have at the time of the appointment; is the error not to be corrected? Suppose he acquires vicious habits, an incurable indolence, or total neglect of the duties of his office, which forebode mischief to the public welfare; is there no way to arrest the threatened danger? Suppose he becomes odious and unpopular by reason of the measures which he pursues,—and this he may do without committing any positive offence against the law, must he preserve his office in despite of the public will? Suppose him grasping at his own aggrandizement, and the elevation of his connections, by every means short of the treason defined by the Constitution,—hurrying your affairs to the precipice of destruction, endangering your domestic tranquility, plundering you of the means of defence, by alienating the affections of your allies, and promoting the spirit of discord,—is there no way suddenly to seize the worthless wretch, and hurl him from the pinnacle of power? Must the tardy, tedious, desultory road; by way of impeachment, be travelled to overtake the man who, barely confining himself within the letter of the law, is employed in drawing off the vital principle of the government? Sir, the nature of things, the great objects of society, the express objects of this Constitution, require that this thing should be otherwise. Well, sir, this is admitted by gentlemen; but they say the Senate is to be united with the President in the exercise of this power. I hope, sir, this is not the case, because it would involve us in the most serious difficulty. Suppose a discovery of any of those events which I have just enumerated were to take place when the Senate is not in session; how is the remedy to be applied? This is a serious consideration, and the evil could be avoided no other way than by the Senate's sitting always. Surely no gentleman of this house contemplates the necessity of incurring such au expense. I am sure it will be very objectionable to our constituents; and yet this must be done, or the public interest he endangered by keeping an unworthy officer in place until that body shall be assembled from the extremes of the Union.

It has been said that there is danger of this power being abused if exercised by one man Certainly, the danger is as great with respect to the Senate, who are assembled from various parts of the continent, with different impressions and opinions. It appears to me that such a body is more likely to misuse this power than the mall whom the united voice of America calls to the presidential chair. As the nature of the government requires the power of removal, I think it is to be exercised in this way by a hand capable of exerting itself with effect; and the power must be conferred on the President by the Constitution, as the executive officer of the government.

I believe some difficulty will result from determining this question by a mandamus. A mandamus is issued to replace au officer who has been removed contrary to law. Now, this officer being the creature of the law, we may declare that he shall be removed for incapacity; and if so declared, the removal will be according to law.

Mr. MADISON. If the construction of the Constitution is to be left to its natural course, with respect to the executive powers of this government, I own that the insertion of this sentiment in law may not be of material importance, though, if it is nothing more than a mere declaration of a clear grant made by the Constitution, it can do no harm; but if it relates to a doubtful part of the Constitution, I suppose an exposition of the Constitution may come with as much propriety from the legislature as any other department of government. If the power naturally belongs to the government, and the Constitution is undecided as to the body which is to exercise it, it is likely that it is submitted to the discretion of the legislatures, and the question will depend upon its own merits.

I am clearly of opinion with the gentleman from South Carolina, (Mr. Smith,) that we ought, in this and every other case, to adhere to the Constitution, so far as it will serve as a guide to us; and that we ought not to be swayed in our decisions by the splendor of the character of our present chief magistrate, but consider it with respect to the merit of men who, in the ordinary course of things, may be supposed to fill the chair. I believe the power here declared is a high one, and in some respects a dangerous one; but, in order to come to a right decision on this point, we must consider both sides of the question—the possible abuses which may spring from the single will of the first magistrate, and the abuse which may spring from the combined will of the executive and the senatorial qualification.

When we consider that the first magistrate is to be appointed at present by the suffrages of three millions of people, and, in all human probability, in a few years' time, by double that number, it is not to be presumed that a vicious or bad character will be selected. If the government of any country on the face of the earth was ever effectually guarded against the election of ambitious or designing characters to the first office of the state, I think it may with truth be said to be the case under the Constitution of the United States. With all the infirmities incident to a popular election, corrected by the particular mode of conducting it, as directed under the present system, I think we may fairly calculate that the instances will be very rare in which an unworthy man will receive that mark of public confidence which is required to designate the President of the United States; Where the people are disposed to give so great an elevation to one of their fellow-citizens, I own that I am not afraid to place my confidence in him; especially when I know he is impeachable, for any crime or misdemeanor, before the Senate at all times; and that, at all events, he is impeachable before the community at large every four years, and liable to be displaced if Iris conduct shall have given umbrage during the time he has been in office. Under these circumstances, although the trust is a high one, and in some degree, perhaps, a dangerous one, I am not sure but it will be safer here than placed where some gentlemen suppose it ought to be.

It is evidently the intention of the Constitution that the first magistrate should be responsible for the executive department; so far, therefore, as we do not make the officers who are to aid him in the duties of that department responsible to him, he is not responsible to his country. Again: is there no danger that an officer, when he is appointed by the concurrence of the Senate, and has friends in that body, may choose rather to risk his establishment on the favor of that branch, than rest it upon the discharge of his duties to the satisfaction of the executive branch, which is constitutionally authorized to inspect and control his conduct? and if it should happen that the officers connect themselves with the Senate, they may mutually support each other, and, for want of efficacy, reduce the power of the President to a mere vapor, in which case his responsibility would be annihilated, and the expectation of it unjust. The high executive officers, joined in cabal with the Senate, would lay the foundation of discord, and end in an assumption of the executive power, only to be removed by a revolution in the government. I believe no principle is more clearly laid down in the Constitution than that of responsibility. After promising this, I will proceed to an investigation of the merits of the question upon constitutional ground.

I have, since the subject was last before the house, examined the Constitution with attention; and I acknowledge that it does not perfectly correspond with the ideas I entertained of it from the first glance. I am inclined to think that a free and systematic interpretation of the plan of government will leave us less at liberty to abate the responsibility than gentlemen imagine. I have already acknowledged that the powers of the government must remain as apportioned by the Constitution. But it may be contended that, where the Constitution is silent, it becomes a subject of legislative discretion. Perhaps, in the opinion of some, an argument in favor of the clause may be successfully brought forward on this ground. I, however, leave it for the present untouched.

By a strict examination of the Constitution on what appear to be its true principles, and considering the great departments of the government in the relation they have to each other, I have my doubts whether we are not absolutely tied down to the construction declared in the bill.

In the 1st section of the 1st article, it is said that all legislative powers herein granted shall be vested in a Congress of the United States. In the 2d article, it is affirmed that the executive power shall he vested in a President of the United States of America. In the 3d article, it is declared that the judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as Congress may from time to time ordain and establish. I suppose it would be readily admitted that, so far as the Constitution has separated the powers of these great departments, it would be improper to combine them together; and so far as it has left any particular department in the entire possession of the powers incident to that department, I conceive we ought not to qualify them further than they are qualified by the Constitution. The legislative powers are vested in Congress, and are to be exercised by them uncontrolled by any other department, except the Constitution has qualified it otherwise. The Constitution has qualified the legislative power by authorizing the President to object to any act it may pass—requiring, in this case, two thirds of both houses to concur in making a law; but still the absolute legislative power is vested in the Congress, with this qualification alone.

The Constitution affirms that the executive power shall be vested in the President. Are there exceptions to this proposition? Yes, there are. The Constitution says that, in appointing to office, the Senate shall be associated with the President, unless in the case of inferior officers, when the law shall otherwise direct, Have we a right to extend this exception? I believe not. If the Constitution has invested all executive power in the President, I venture to assert that the legislature has no right to diminish or modify his executive authority.

The question now resolves itself into this: Is the power of displacing an executive power? I conceive that, if any power whatsoever is in its nature executive, it is the power of appointing, overseeing, and controlling those who execute the laws. If the Constitution had not qualified the power of the President in appointing to office, by associating the Senate with him in that business, would it not be clear that he would have the right, by virtue of his executive power, to make such appointment? Should we be authorized, in defiance of that clause in the Constitution,—"The executive power shall be vested in a President,"—to unite the Senate with the President in the appointment to office? I conceive not. If it is admitted we should not be authorized to do this, I think it may be disputed whether we have a right to associate them in removing persons from office, the one power being as much of an executive nature as the other; and the first only is authorized by being excepted out of the general rule established by the Constitution, in these words, "The executive power shall be vested in the President."

The judicial power is vested in a Supreme Court; but will gentlemen say the judicial power can be placed elsewhere, unless the Constitution has made an exception? The Constitution justifies the Senate in exercising a judiciary power in determining on impeachments. But can the judicial powers be further blended with the powers of that body? They cannot. I therefore say it is incontrovertible, if neither the legislative nor judicial powers are subjected to qualifications other than those demanded in the Constitution, that the executive powers are equally unabatable as either of the other; and inasmuch as the power of removal is of an executive nature, and not affected by any constitutional exception, it is beyond the reach of the legislative body.

If this is the true construction of this instrument, the clause in the bill is nothing more than explanatory of the meaning of the Constitution, and therefore not liable to any particular objection on that account. If the Constitution is silent, and it is a power the legislature have a right to confer, it will appear to the world, if we strike out the clause, as if we doubted the propriety of vesting it in the President of the United States. I therefore think it best to retain it in the bill.

Mr. WHITE. I have no doubt in my mind but an officer can be removed without a public trial. I think there are cases in which it would he improper that his misdemeanors should be publicly known, the tranquillity and harmony of the Union might be endangered if his guilt was not secreted from the world. I have therefore no hesitation in declaring, as my sentiment, that the President and Senate may dismiss him.

The Constitution contemplates a removal in some other way besides that by impeachment, or why is it declared, in favor of the judges only, that they shall hold their offices during good behavior? Does not this strongly imply that, without such an exception, there would have been a discretionary power in some branch of the government to dismiss even them?

Several objections have arisen from the inconvenience with which the power must be exercised, if the Senate is blended with the executive; and therefore it is inferred that the President ought exclusively to have this power. If we were framing a constitution, these arguments would have their proper weight, and I might approve such an arrangement. But at present, I do not consider we are at liberty to deliberate on that subject; the Constitution is already formed, and we can go no farther in distributing the powers than the Constitution warrants.

It was objected that the President could not remove an officer unless the Senate was in session; but yet the emergency of the case might demand an instant dismission. I should imagine that no inconvenience would result on this account; because, on my principle, the same power which can make a temporary appointment, can make an equal suspension: the powers are opposite to each other.

The gentleman says we ought not to blend the executive and legislative powers further than they are blended in the Constitution. I contend we do not. There is no expression in the Constitution which says that the President shall have the power of removal from office: but the contrary is strongly implied; for it is said that Congress may establish officers by law, and vest the appointment, and consequently the removal, in the President alone, in the courts of law, or heads of departments. Now, this shows that Congress are not at liberty to make any alteration by law in the mode of appointing superior officers, and consequently that they are not at liberty to alter the manner of removal.

Mr. BOUDINOT. This is a question, Mr. Speaker, that requires full consideration, and ought only to be settled on the most candid discussion. It certainly involves the right of the Senate to a very important power. At present, I am so impressed with the importance of the subject, that I dare not absolutely decide on any principle, although I am firmly persuaded we ought to retain the clause in the bill; and, so far as it has been examined, I agree that it is a legislative construction of the Constitution necessary to be settled for the direction of your officers. But if it is a deviation from the Constitution, or in the least degree an infringement upon the authority of the other branch of the legislature, I shall most decidedly be against it. But I think it will appear, on a full consideration of this business, that we can do no otherwise than agree to this construction, in order to preserve to each department the full exercise of its powers, and to give this house security for the proper conduct of the Officers who are to execute the laws.

The arguments adduced are to show that the power of removal lies either in the President and the Senate, or the President alone, except in cases of removal by impeachment. There is nothing, I take it, in the Constitution, or the reason of the thing, that officers should be only removable by impeachment. Such a provision would be derogatory to the powers of government, and subversive of the rights of the people. What says the Constitution on this point? I fear, sir, it has not been rightly comprehended. That the House of Representatives shall have the sole power of impeachment; that the Senate shall have the sole power to try all impeachments; and judgment shall not extend further than to removal from office, and disqualification to hold it in future: then comes the clause declaring, absolutely, that he shall be removed from office on impeachment for and conviction of treason, bribery, or other high crimes or misdemeanors.

It is this clause which guards the right of the house, and enables them to pull down an improper officer, although he should be supported by all the power of the executive. This, then, is a necessary security to the people, and one that is wisely provided in the Constitution. But I believe it is nowhere said that officers shall never be removed but by impeachment; but it says they shall be removed on impeachment. Suppose the secretary of foreign affairs shall misbehave, and we impeach him; notwithstanding the clearest proof of guilt, the Senate might only impose some trifling punishment, and retain him in office, if it was not for this declaration in the Constitution.

Neither this clause nor any other goes so far as to say it shall be the only mode of removal; therefore we may proceed to inquire what the other is. Let us examine whether it belongs to the Senate and President. Certainly, sir, there is nothing that gives the Senate this right in express terms; but they are authorized in express words to be concerned in the appointment. And does this necessarily include the power of removal? If the President complains to the Senate of the misconduct of an officer, and desires their advice and consent to the removal, what are the Senate to do? Most certainly, they will inquire if the complaint is well founded. To do this, they must call the officer before them to answer. Who, then, are the parties? The supreme executive officer against his assistant; and then the Senate are to set judges to determine whether sufficient cause of retrieval exists. Does not this set the Senate over the head of the President? But suppose they shall decide in favor of the officer; what a situation is the President then in, surrounded by officers with whom, by his situation, he is compelled to act, but in whom he can have no confidence, reversing the privilege, given him by the Constitution, to prevent his having officers imposed upon him who do not meet his approbation!

But I have another more solid objection, which places the question in a more important point of view. The Constitution has placed the Senate as the only security and barrier between the House of Representatives and the President. Suppose the President has desired the Senate to concur in removing an officer, and they have declined or suppose the House have applied to the President and Senate to remove an officer obnoxious to them, and they determine against the measure; the house can have recourse to nothing but an impeachment, if they suppose the criminality of the officer will warrant such procedure. Will the Senate, then, be that upright court which they ought, to appeal to on this occasion, when they have prejudged your cause? I conceive the Senate will be too much under the control of their former decision, to be a proper body for this house to apply to for impartial justice.

As the Senate are the dernier resort, and the only court of judicature which can determine on cases of impeachment, I am for preserving them free and independent, both on account of the officer and this house. I therefore conceive that it was never the intention of the Constitution to vest the power of removal in the President and Senate; but as it must exist somewhere, it rests on the President alone. I conceive this point was made fully to appear by the honorable member from Virginia, (Mr. Madison;) inasmuch as the President is the supreme executive officer of the United States.

It was asked if ever we knew a person removed from office by reason of sickness or ignorance. If there never was such a case, it is perhaps nevertheless proper that they should be removed for those reasons, and we shall do well to establish the principle.

Suppose your secretary of foreign affairs rendered incapable of thought or action by a paralytic stroke. I ask whether there would be any propriety in keeping such a person in office; and whether the salus populi—the first object of republican government—does not absolutely demand his dismission. Can it be expected that the President is responsible for an officer under these circumstances, although, when he went into office, he might have been a wise and virtuous man, and the President well inclined to risk his own reputation upon the integrity and abilities of the person?

I conceive it will be improper to leave the determination of this question to the judges. There will be some indelicacy in subjecting the executive action in this particular to a suit at law; and there may be much inconvenience if the President does not exercise this prerogative until it is decided by the courts of justice.

From these considerations, the safety of the people, the security of this house, and adherence to the spirit of the Constitution, I am disposed to think the clause proper; and as some doubts respecting the construction of the Constitution have arisen, I think it also necessary; therefore I hope it will remain

Mr. SMITH, (of South Carolina.) The gentleman from Virginia has said that the power of removal is executive in its nature. I do not believe this to be the case. I have turned over the constitutions of most of the states, and I do not find that any of them have granted this power to the governor.— In some instances I find the executive magistrate suspends, but none of them have the right to remove, officers; and I take it that the Constitution of the United States has distributed the powers of government on the same principles which most of the state constitutions have adopted; for it will not be contended but the state governments furnished the members of the late Convention with the skeleton of this Constitution.

The gentlemen have observed that it would be dangerous if the President had not this power. But is there not danger in making your secretary of foreign affairs dependent upon the will and pleasure of the President? Can gentlemen see the danger on one side only? Suppose the President averse to a just and honorable war which Congress have embarked in; can he not countenance the secretary at war (for it is in contemplation to establish such an officer) in the waste of public stores, and misapplication of the supplies? Nay, cannot he dragoon your officer into a compliance with his designs by threatening him with a removal by which his reputation and property would be destroyed? If the officer was established on a better tenure, he would dare to be honest; he would know himself invulnerable in his integrity, and defy the shafts of malevolence, though aimed with Machiavellian policy. He would be a barrier to your executive officer, and save the state from ruin.

But, Mr. Chairman, the argument does not turn upon the expediency of the measure, The great question is with respect to its constitutionality; and as yet I have heard no argument advanced sufficiently cogent to prove to my mind that the Constitution warrants such a disposition of the power of removal; and until I am convinced that it is both expedient and constitutional, I cannot agree to it.

Mr. GERRY. Some gentlemen consider this as a question of policy; but to me it appears a question of constitutionality, and I presume it will be determined on that point alone. The best arguments I have heard urged on this occasion came from the honorable gentleman from Virginia, (Mr. Madison.) He says, the Constitution has vested the executive power in the President; and that he has a right to exercise it under the qualifications therein made. He lays it down as a maxim, that the Constitution, vesting in the President the executive power, naturally vests him with the power of appointment and removal. Now, I would be glad to know from that gentleman, by what means we are to decide this question. Is his maxim supported by precedent drawn from the practice of the individual states? The direct contrary is established. In many cases, the executives are not, in particular, vested with the power of appointment; nor do they exercise that power by virtue of their office. It will be found that other branches of the government make appointments. How, then, can gentlemen assert that the powers of appointment and removal are incident to the executive department of the government? To me it appears at best but problematical. Neither is it clear to me that the power that appoints naturally possesses the power of removal. As we have no certainty on either of these points, I think we must consider it, as established by the Constitution.

It has been argued that, if the power of removal vests in the President alone, it annuls or renders nugatory the clause in the Constitution which directs the concurrence of the Senate in the case of appointment: it behoves us not to adopt principles subversive of those established by the Constitution. It has been frequently asserted, on former occasions, that the Senate is a permanent body, and was so constructed in order to give durability to public measures. If they are not absolutely permanent, they are formed on a renovating principle which gives them a salutary stability. This is not the case either with the President or House of Representatives; nor is the judiciary equally lasting, because the officers are subject to natural dissolution. It appears to me that a permanency was expected in the magistracy; and therefore the Senate were combined in the appointment to office. But if the President alone has the power of removal, it is in his power at any time to destroy all that has been done. It appears to me that such a principle would be destructive of the intention of the Constitution expressed by giving the power of appointment to the Senate. It also subverts the clause which gives the Senate the sole power of trying impeachments; because the President may remove the officer, in order to screen him from the effects of their judgment on an impeachment. Why should we construe any part of the Constitution in such a manner as to destroy its essential principles, when a more consonant construction can be obtained?

It appears very clear to me that, however this power may be distributed by the Constitution, the House of Representatives have nothing to do with it. Why, then, should we interfere in the business? Are we afraid the President and Senate are not sufficiently informed to know their respective duties?. Our interposition argues that they want judgment, and are not able to adjust their powers without the wisdom of this house to assist them. To say the least on this point, it must be deemed indelicate for us to intermeddle with them. If the fact is, as we seem to suspect, that they do not understand the Constitution, let it go before the proper tribunal; the judges are the constitutional umpires on such questions. Why, let me ask, gentlemen, shall we commit an infraction of the Constitution, for fear the Senate or President should not comply with its directions?

It has been said, by my colleague, that these officers are the creatures of the law; but it seems as if we were not content with that,—we are making them the mere creatures of the President. They dare not exercise the privilege of their creation, if the President shall order them to forbear. Because he holds their thread of life, his power will be sovereign over them, and will soon swallow up the small security we have in the Senate's concurrence to the appointment, and we shall shortly need no other than the authority of the supreme executive officer to nominate, appoint, continue, or remove.

Mr. AMES. When this question was agitated at a former period, I took no part in the debate. I believe it was then proposed without any idea or intention of drawing on a lengthy discussion, and to me it appeared to be well understood and settled by the house; but since it has been reiterated and contested again, I feel it my bounden duty to deliver the reasons for voting in the manner I then did and shall do now. Mr. Chairman, I took upon every question which touches the Constitution as serious and important, and therefore worthy of the fullest discussion and the most solemn decision. I believe, on the present occasion, we may come to something near certainty, by attending to the leading principles of the Constitution. In order that the good purposes of a federal government should be answered, it was necessary to delegate considerable powers; and the principle upon which the grant was made intended to give sufficient power to do all possible good, but to restrain the rulers from doing mischief.

The Constitution places all executive power in the hands of the President; and could he personally execute all the laws, there would be no occasion for establishing auxiliaries; but the circumscribed powers of human nature in one man demand the aid of others. When the objects are widely stretched out, or greatly diversified, meandering through such an extent of territory as what the United States possess, a minister cannot see with his own eyes every transaction, or feel with his hands the minutiae that pass through his department: he must therefore have assistants. But in order that he may be responsible to his country, he must have a choice in selecting his assistants, a control over them, with power to remove them when he finds the qualifications which induced their appointment cease to exist. There are officers under the Constitution who hold their office by a different tenure: your judges are appointed during good behavior; and from the delicacy and peculiar nature of their trust, it is right it should be so, in order that they may be independent and impartial n administering justice between the government and its citizens, But the removability of the one class, or immovability of the other, is founded,in the same principle—the security of the people against the abuse of power. Does any gentleman imagine that an officer is entitled to his office as to an estate? Or does the legislature establish them for the convenience of an individual? For my part, I conceive it intended to carry into effect the purposes for which the Constitution was intended.

The executive powers are delegated to the President, with a view to have a responsible officer to superintend, control, inspect, and check, the officers necessarily employed in administering the laws. The only. bond between him and those he employs is the confidence he has in their integrity and talents. When that confidence ceases, the principal ought to have the power to remove those whom he can no longer trust with safety. If an officer shall be guilty of neglect or infidelity, there can be no doubt but he ought to be removed; yet there may be numerous causes for removal which do not amount to a crime. He may propose to do a mischief, but I believe the mere intention would not be cause of impeachment: he may lose the confidence of the people upon suspicion, in which case it would be improper to retain him in service; he ought to be removed at any time, when, instead of doing the greatest possible good, he is likely to do an injury, to the public interest, by being combined in the administration.

I presume gentlemen will generally admit that officers ought to be removed when they become obnoxious; but the question is, How shall this power be exercised? It will not. I apprehend, be contended that all officers hold their offices during good behavior. If this is the case, it is a most singular government. I believe there is not another in the universe that bears the least semblance to it in this particular: such a principle, I take it, is contrary to the nature of things.

But the manner how to remove is the question. If the officer misbehaves, he can be removed by impeachment. But, in this case, is impeachment the only mode of removal? It would be found very inconvenient to have a man continued in office after being impeached, and when all confidence in him was suspended or lost. Would not the end of impeachment be defeated by this means? If Mr. Hastings, who was mentioned by the gentleman from Virginia, (Mr. Vining,) preserved his command in India, could he not defeat the impeachment now pending in Great Britain? If that doctrine obtains in America, we shall find impeachments come too late; while we are preparing the process, the mischief will he perpetrated, and the offender escape. I apprehend it will be as frequently necessary to prevent crimes as to punish them; and it may often happen that the only prevention is by removal The superintending power possessed by the President will perhaps enable him to discover a base intention before it is ripe for execution. It may happen that the treasurer may be disposed to betray the public chest to the enemy, and so injure the government beyond the possibility of reparation. Should the President be restrained from removing so dangerous an officer until the stow formality of an impeachment was complied with, when the nature of the case rendered the application of a sudden and decisive remedy indispensable?

But it will, I say, be admitted that an officer may be removed: the question then is, by whom? Some gentlemen say, by the President alone: and others, by the President, by and with the advice of the Senate. By the advocates of the latter mode it is alleged that the Constitution is in the way of the power of removal being by the President alone. If this is absolutely the case, there is an end to all further inquiry. But before we suffer this to be considered an insuperable impediment, we ought to be clear that the Constitution prohibits him the exercise of what, on a first view, appears to be a power incident to the executive branch of the government. The gentleman from Virginia (Mr. Madison) has made so many observations to evince the constitutionality of the clause, that it is unnecessary to go over the ground again, t shall therefore confine myself to answer only some remarks made by the gentleman from South Carolina, (Mr. Smith.) The powers of the President are defined in the Constitution; but it is said that he is not expressly authorized to remove from office. If the Constitution is silent also with respect to the Senate, the argument may be retorted. If this silence proves that the power cannot be exercised by the President, it certainly proves that it cannot be exercised by the President, by and with the advice and consent of the Senate. The power of removal is incident to government; but, not being distributed by the Constitution, it will come before the legislature, and, like every other omitted case, must be supplied by law.

Gentlemen have said, when the question was formerly before us, that all powers not intended to be given up to the general government were retained. I beg gentlemen, when they undertake to argue from implication, to be consistent, and admit the force of other arguments drawn from the same source. It is a leading principle in every free government—it is a prominent feature in this—that the legislative and executive powers should be kept distinct; yet the attempt to blend the executive and legislative departments, in exercising the power of removal, is such a maxim as ought not to be carried into practice on arguments grounded on implication. And the gentleman from Virginia's (Mr. White's) reasoning is wholly drawn from implication. He supposes, as the Constitution qualifies the President's power of appointing to office, by subjecting his nomination to the concurrence of the Senate, that the qualification follows of course in the removal.

If this is to be considered as a question undecided by the Constitution, and submitted on the footing of expediency, it will be well to consider where the power can be most usefully deposited, for the security and benefit of the people. It has been said by the gentleman on the other side of the house, (Mr. Smith,) that there is an impropriety in allowing the exercise of this power; that it is a dangerous authority, and much evil may result to the liberty and property of the officer who may be turned out of business without a moment's warning. I take it, the question is not whether such power shall be given or retained; because it is admitted, on all hands, that the officer may be removed; so that it is no grant of power it raises no new danger. If we strike out the clause, we do not keep the power, nor prevent the exercise of it; so the gentleman will derive none of the security he contemplates by agreeing to the motion for striking out. It will be found that the nature of the business requires it to be conducted by the head of the executive; and I believe it will be found, even there. that more injury will arise from not removing improper officers, than from displacing good ones. I believe experience has convinced us that it is an irksome business; and officers are more frequently continued in one place after they become unfit to perform the duties, than turned out while their talents and integrity are useful. But advantages may result from keeping the power of removal, in terrorem, over the heads of the officers: they will be stimulated to do their duty to the satisfaction of the principal, who is to be responsible for the whole executive department.

The gentleman has supposed there will be great difficulty in getting officers of abilities to engage in the service of their country upon such terms. There has never yet been any scarcity of proper officers in any department of the government of the United States; even during the war, when men risked their lives and property by engaging in such service, there were candidates enough.

But why should we connect the Senate in the removal? Their attention is taken up with other important business, and they have no constitutional authority to watch the conduct of the executive officers, and therefore cannot use such authority with advantage. If the President is inclined to shelter himself behind the Senate, with respect to having continued an improper person in office, we lose the responsibility which is our greatest security: the blame, amongst so many, will be lost. Another reason occurs to me against blending these powers. An officer who superintends the public revenue will naturally acquire a great influence. If he obtains support in the Senate, upon an attempt of the President to remove him, it will be out of the power of the house, when applied to by the first magistrate, to impeach him with success; for the very means of proving charges of malconduct against him will be under the power of the officer: all the papers necessary to convict him may be withheld while the person continues in his office. Protection may be rendered for protection; and, as this officer has such extensive influence, it may be exerted to procure the reëlection of his friends. These circumstances, in addition to those stated by the gentleman from New Jersey, (Mr. Boudinot,) must clearly evince to every gentleman the impropriety of connecting the Senate with the President, in removing from office.

I do not say these things will take effect now; and if the question only related to what might take place in a few years, I should not be uneasy on this point, because I am sensible the gentlemen who form the present Senate are above corruption; but in future ages, (and I hope this government may be perpetuated to the end of time,) such things may take place, and it is our duty to provide against evils which may be foreseen, but if now neglected, will be irremediable.

I beg to observe, further, that there are three opinions entertained by gentlemen on this subject. One is, that the power of removal is prohibited by the Constitution; the next is, that it requires it by the President; and the other is, that the Constitution is totally silent. It therefore appears to me proper for the house to declare what is their sense of the Constitution. If we declare justly on this point, it will serve for a rule of conduct to the executive magistrate: if we declare improperly, the judiciary will revise our decision; so that, at all events, I think we ought to make the declaration.

Mr. LIVERMORE. I am for striking out this clause, Mr. Chairman, upon the principles of the Constitution, from which we are not at liberty to deviate. The honorable gentleman from Massachusetts (Mr. Sedgwick) calls the minister of foreign affairs the creature of the law, and that very properly; because the law establishes the office, and has the power of creating him in what shape the legislature pleases. This being the case, we have a right to create the office under such limitations and restrictions as we think proper, provided we can obtain the consent of the Senate; but it is very improper to draw, as a conclusion from having the power of giving birth to a creature, that we should therefore bring forth a monster, merely to show we had such power. I call that creature a monster that has not the proper limbs and features of its species. I think the creature we are forming is unnatural in its proportions. It has been often said that the Constitution declares the President, by and with the advice and consent of the Senate, shall appoint this officer. This, to be sure, is very true, and so is the conclusion which an honorable gentleman from Virginia (Mr. White) drew from it—that an officer must be discharged in the way he was appointed.

I believe, Mr. Chairman, this question depends upon a just construction of a short clause in the Constitution—"the President shall have power, by and with the advice and consent of the Senate, to appoint ambassadors; other public ministers, and consuls; judges of the Supreme Court, and all other officers of the United States." Here is no difference with respect to the power of the President to make treaties and appoint officers, only it requires in the one case a larger majority to concur than in the other. I will not, by any means, suppose that gentlemen mean, when they argue in favor of removal by the President alone, to contemplate the extension of the power to the repeal of treaties; because, if they do, there will be little occasion for us to sit here. But, let me ask these gentlemen—as there is no real or imaginary distinction between the appointment of ambassadors and ministers, or secretaries of foreign affairs—whether they mean that the President should have the power of recalling or discarding ambassadors and military officers,—for the words in the Constitution are, "all other officers,"—as well as he can remove your secretary of foreign affairs. To be sure, they cannot extend it to the judges, because they are secured under a subsequent article, which declares they shall hold their offices during good behavior; they have an inheritance which they cannot be divested of but on conviction of some crime. But I presume gentlemen mean to apply it to all those who have not an inheritance in their offices. In this case, it takes the whole power of the President and Senate to create an officer; but half the power can uncreate him. Surely, a law passed by the whole legislature cannot be repealed by one branch of it; so, I conceive, in the case of appointments, it requires the same force to supersede an officer as to put him in office.

I acknowledge that the clause relative to impeachment is for the benefit of the people. It is intended to enable their representatives to bring a bad officer to justice, who is screened by the President. But I do not conceive, with the honorable gentleman from South Carolina, (Mr. Smith,) that it, by any means, excludes the usual ways of superseding officers. It is said, in the Constitution, that the house shall have the power of choosing their own officers. We have chosen a clerk, and, I am satisfied, a very capable one; but will any gentleman contend that we may not discharge him, and choose another, and another, as often as we see cause? And so it is in every other instance—where they have power to make, they have likewise the power to unmake. It will be said, by gentlemen, that the power to make does not imply the power of unmaking; but I believe they will find very few exceptions in the United States.

Were I to speak of the expediency, every one of my observations would be against it. When an important and confidential trust is placed inn man, it is worse than death to him to be displaced without cause; his reputation depends upon the single will of the President, who may ruin him on bare suspicion. Nay, a new President may turn him out on mere caprice, or in order to make room for a favorite. This contradicts all my notions of propriety; every thing of this sort should he done with due deliberation; every person ought to have a hearing before they are punished. It is on these considerations that I wish the general principle laid down by the gentleman from Virginia (Mr. White) may be adhered to.

I will add one word more, and I have done. This seems, Mr. Chairman, altogether to be aimed at the Senate. What have they done to chagrin us? or why should we attempt to abridge their powers, because we can reach them by our regulations in the shape of a bill? I think we had better let it alone. If the Constitution has given them this power, they will reject this part of the bill, and they will exercise that one privilege judiciously, however they may the power of removal. If the Constitution has not given it to them, it has not vested it any where else; consequently, this house would have no right to confer it.

Mr. HARTLEY, I apprehend, Mr. Chairman, that this officer cannot be considered as appointed during good behavior, even in point of policy; but with respect to the constitutionality, I am pretty confident he cannot be viewed in that light. The Constitution declares the tenure of the officers it recognizes, and says one class of them shall hold their offices during good behavior; they are the judges of your Supreme and other courts; but as to any other officer being established on this firm tenure, the Constitution is silent. It, then, necessarily follows that we must consider every other according to its nature, and regulate it in a corresponding manner. The business of the secretary of foreign affairs is of an executive nature, and must consequently be attached to the executive department.

I think the gentleman from South Carolina goes too far, in saying that the clause respecting impeachments implies that there is no other mode of removing an officer. I think it does not follow that, because one mode is pointed out by the Constitution, there is no other, especially if that provision is intended for nothing more than a punishment for a crime. The 4th section of the 2d article says that all civil officers shall be removed on conviction of certain crimes. But it cannot be the intention of the Constitution to prevent, by this, a removal in any other way. Such a principle, if once admitted, would be attended with very inconvenient and mischievous consequences.

The gentleman further contends that every man has a property in his office, and ought not to be removed but for criminal conduct; he ought not to be removed for inability. I hope this doctrine will never be admitted in this country. A man, when in office, ought to have abilities to discharge the duties of it. If he is discovered to be unfit, he ought to be immediately removed; but not on principles like what that gentleman contends for. If he has an estate in his office, his right must be purchased, and a practice like what obtains in England will be adopted here. We shall be unable to dismiss an officer, without allowing him a pension for the interest he is deprived of. Such doctrine may suit a nation which is strong in proportion to the number of dependants upon the crown, but will be very pernicious in a republic like ours. When we have established an office, let the provision for the support of the officer be equal to compensate his services; but never let it be said that he has an estate in his office when he is found unfit to perform his duties. If offices are to be held during good behavior, it is easy to foresee that we shall have as many factions as heads of departments. The consequence would be, corruption in one of the great departments of government; and if the balance is once destroyed, the Constitution must fall amidst the ruins. From this view of the subject, I have no difficulty to declare that the secretary of foreign affairs is an officer during pleasure, and not during good behavior, as contended for.

One gentleman (Mr. White) holds the same principles, but differs with respect to the power which ought to exercise the privilege of removal. On this point we are reduced to a matter of construction; but it is of high importance to the United States that a construction should be rightly made. But gentlemen say it is inconsistent with the Constitution to make this declaration; that, as the Constitution is silent, we ought not to be too explicit. The Constitution has expressly pointed out several matters which we can do, and some which we cannot; but in other matters it is silent, and leaves them to the discretion of the legislature. If this is not the case, why was the last clause of the 8th section of the 1st article inserted? It gives power to Congress to make all laws necessary and proper to carry the government into effect.

I look upon it that the legislature have, therefore, a right to exercise their discretion on such questions; and, however attentively gentlemen may have examined the Constitution on this point, I trust they have discovered no clause which forbids this house interfering in business necessary and proper to carry the government into effect.

The Constitution grants expressly to the President the power of filling all vacancies during the recess of the Senate. This is a temporary power, like that of removal, and liable to very few of the objections which have been made. When the President has removed an officer, another must be appointed; but this cannot be done without the advice and consent of the Senate. Where, then, is the danger of the system of favoritism? The President. notwithstanding the supposed depravity of mankind, will hardly remove a worthy officer to make way for a person whom the Senate max reject. Another reason why the power of removal should be lodged with the President, rather than with the Senate, arises from their connection with the people. The President is the representative of the people; in a near and equal manner, he is the guardian of his country. The Senate are the representatives of the State legislatures; but they are very unequal in that representation; each state sends two members to that house, although their proportions are as ten to one. Hence arises a degree of insecurity to an impartial administration; but if they possessed every advantage of equality, they cannot he the proper body to inspect into the behavior of officers, because they have no constitutional powers for this purpose. It does not always imply criminality to be removed from office, because it may be proper to remove for other causes; neither do I see any danger which can result from the exercise of this power by the President, because the Senate is to be consulted in the appointment which is afterwards to take place. Under these circumstances, I repeat it, that I have no doubt, in my own mind, that this office is during pleasure; and that the power of removal, which is a mere temporary one, ought to be in the President, whose powers, taken together, are not very numerous, and the success of this government depends upon their being unimpaired.

Mr. LAWRENCE. It has been objected against this clause, that the granting of this power is unconstitutional. It was also objected, if it is not unconstitutional, it is unnecessary; that the Constitution must contain, in itself, the power of removal, and have given it to some body, or person, of the government, to be exercised; that, therefore, the law could make no disposition of it, and the attempt to grant it was unconstitutional; or the law is unnecessary;—for, if the power is granted in the way the clause supposes, the legislature can neither add to nor diminish the power by making the declaration.

With respect to the unconstitutionality of the measure, I observe, that, if it is so, the Constitution must have given the power expressly to some person or body other than the President; otherwise, it cannot be said with certainty that it is unconstitutional in us to declare that he shall have the power of removal. I believe it is not contended that the Constitution expressly gives this power to any other person; but it is contended that the objection is collected from the nature of the body which has the appointment, and the particular clause in the Constitution which declares, that all officers shall be removed on conviction. It will be necessary to examine the expressions of that clause; but I believe it will be found not to comprehend the case we have under consideration. I suppose the Constitution contemplates somewhere the power of removal for other causes besides those expressed as causes of impeachment. I take it that the clause in the Constitution respecting impeachments is making a provision for removal against the will of the President; because the house can carry the offender before a tribunal which shall remove him, notwithstanding the desire of the chief magistrate to keep him in office. If this is not to be the construction, then a particular clause in the Constitution will be nugatory. The Constitution declares that the judges shall hold their offices during good behavior. This implies that other officers shall hold their offices during a limited time, or according to the will of some persons; because, if all persons are to hold their offices during good behavior, and to be removed only by impeachment, then this particular declaration in favor of the judges will be useless. We are told that an officer must misbehave before he can be removed. This is true with respect to those officers who hold their commissions during good behavior; but it cannot be true of those who are appointed during pleasure: they may be removed for incapacity, or if their want of integrity is suspected; but the question is to find where this power of removal resides.

It has been argued that we are to find this in the construction arising from the nature of the authority which appoints. Here I would meet the gentleman, if it was necessary to rest it entirely on that ground. Let me ask the gentleman, who appoints? The Constitution gives an advisory power to the Senate; but it is considered that the President makes the appointment. The appointment and responsibility are actually his; for it is expressly declared that he shall nominate and appoint, though their advice is required to be taken. If, from the nature of the appointment, we are to collect the authority of removal, then I say the latter power is lodged in the President; because, by the Constitution, he has the power of appointment: instantly as the Senate have advised the appointment, the act is required to be executed by the President. The language is explicit: "He shall nominate, and, by and with the advice and consent of the Senate, appoint;" so that, if the gentleman's general principle, that the power appointing shall remove also, is true, it follows that the removal shall be by the President.

It has been stated, as an objection, that we should extend the powers of the President, if we give him the power of removal; and we are not to construe the Constitution in such way as to enlarge the executive power to the injury of any other; that, as he is limited in the power of appointment by the control of the Senate, he ought to be equally limited in the removal.

If there is any weight in this argument, it implies as forcibly against vesting the power conjointly in the President and Senate; because, if we are not to extend the powers of the executive beyond the express detail of duties found in the Constitution, neither are we at liberty to extend the duties of the Senate beyond those precise points fixed in the same instrument: of course, if we cannot say the President alone shall remove, we cannot say the President and Senate may exercise such power.

It is admitted that the Constitution is silent on this subject; but it is also silent with respect to the appointments it has vested in the legislature. The Constitution declares that Congress may by law vest the appointment of such inferior officers as they think proper in the President alone, in the courts of law, or heads of departments; yet says nothing with respect to the removal. Now, let us suppose the legislature to have vested the power of appointment in the President in cases of inferior offices; can the intention of the Constitution in this, (contemplating this mode of appointment for the sake of convenience,) be ever carried into effect if we say nothing respecting the removal? What would be the consequence if the legislature should not make the declaration? Could it be supposed that he would not have the authority to dismiss the officer he has so appointed? To be sure he could. Then, of course, in those cases in which the Constitution has given the appointment to the President, he must have the power of removal, for the sake of consistency; for no person will say that, if the President should appoint an inferior officer, he should not have the power to remove him when he thought proper, if no particular limitation was determined by the law. Thus stands the matter with respect to the Constitution. There is no express prohibition of the power, nor positive grant. If, then, we collect the power by inference from the Constitution, we shall find it pointed strongly in favor of the President, much more so than in favor of the Senate combined with him.

This is a case omitted, or it is not; if it is omitted, and the power is necessary and essential to the government, and to the great interests of the United States, who are to make the provision and supply the defect? Certainly the legislature is the proper body. It is declared they shall establish offices by law. The establishment of an office implies every thing relative to its formation, constitution. and termination; consequently, the Congress are authorized to declare their judgment on each of these points. But if the arguments of the gentleman from South Carolina (Mr. Smith) prevail, that, as the Constitution has not meditated the removal of an officer in any other way than by impeachment, it would be an assumption in Congress to vest the President, courts of law, or heads of departments, with power to dismiss their officers in any other manner:—would a regulation of this kind be effectual to carry lute effect the great objects of the Constitution? I contend it would not. Therefore, the principle which opposes the carrying of the Constitution into effect, must be rejected as dangerous and incompatible with the general welfare. Hence all those suppositions, that, because the Constitution is silent, the legislature must not supply the defect, are to be treated as chimeras and illusory inferences.

I believe it is possible that the Constitution may be misconstrued by the legislature; but will any gentleman contend that it is more probable that the Senate, one branch only of the legislature, should make a more upright decision on any point than the whole legislature,—especially on a point in which they are supposed by some gentlemen to be so immediately interested, even admitting that honorable body to have more wisdom and more integrity than this house? Such an inference can hardly be admitted. But I believe it seldom or never was so contended, that there was more wisdom or security in a part than in the whole.

But supposing the power to vest in the Senate, is it more safe in their hands than where we contend it should be? Would it be more satisfactory to our constituents for us to make such a declaration in their favor? I believe not.

With respect to this and every case omitted, but which can be collected from the other provisions made in the Constitution, the people look up to the legislature, the concurrent opinion of the two branches, for their construction; they conceive those cases proper subjects for legislative wisdom; they naturally suppose, where provisions are to be made, they ought to spring from this source, and this source alone.

From a view of these circumstances, we may be induced to meet the question in force. Shall we now venture to supply the defect? For my part, I have no hesitation. We should supply the defect; we should place the power of removal in the great executive officer of the government.

In the Constitution, the heads of departments are considered as the mere assistants of the President in the performance of his executive duties. He has the superintendence, the control, and the inspection, of their conduct; he has an intimate connection with them; they must receive from him his orders and directions; they must answer his inquiries in writing, when he requires it. Shall the person having these superior powers to govern—with such advantages of discovering and defeating the base intentions of his officers, their delinquencies, their defective abilities, or their negligence—be restrained from applying these advantages to the most useful, nay, in some cases, the only useful purpose which can be answered by them?

It appears to me that the power can be safely lodged here. But it has been said by some gentlemen, that if it is lodged here it will be subject to abuse; that there may be a change of officers, and a complete revolution throughout the whole executive department, upon the election of every new President. I admit that this may be the case, and contend that it should be the case if the President thinks it necessary. I contend that every President should have those men about him in whom he can place the most confidence, provided the Senate approve his choice. But we are not from hence to infer that changes will be made in a wanton manner, and from capricious motives; because the Presidents are checked and guarded in a very safe manner with respect to the appointment of their successors; from all which it may be fairly presumed that changes will be made on principles of policy and propriety only.

Will the man chosen by three millions of his fellow-citizens, be such a wretch as to abuse them in a wanton manner? For my part I should think, with the gentleman from Virginia, (Mr. Madison,) that a President, thus selected and honored by his country, is entitled to my confidence; and I see no reason why we should suppose he is more inclined to do harm than good. Elected as he is, I trust we are secure. I do not draw these observations from the safety I conceive under the present administration, or because our chief magistrate is possessed of irradiated virtues, whose lustre brightens this western hemisphere, and incites the admiration of the world! But I calculate upon what our mode of election is likely to bring forward, and the security which the Constitution affords. If the President abuses his trust, will he escape the popular censure when the period which terminates his elevation arrives? And would he not be liable to impeachment for displacing a worthy and able man who enjoyed the confidence of the people?

We ought not to consider one side alone; we should consider the benefit of such an arrangement, as well as the difficulties. We should also consider the difficulties arising from the exercise of the power of removing by the Senate. It was well observed by an honorable gentleman (Mr. Sedgwick) on this point, that the Senate must continue in session the whole year, or be hastily assembled from the extremes and all parts of the continent, whenever the President thinks a removal necessary. Suppose an ambassador, or minister plenipotentiary, negotiating or intriguing contrary to his instructions, and to the injury of the United States; before the Senate can he assembled to accede to his recall, the interest of his country may be betrayed, and the evil irrevocably perpetrated. A great number of such instances could be enumerated; but I will not take up the time of the committee; gentlemen may suggest them to their own minds; and I imagine they will be sufficient to convince them that, with respect to the expediency, the power of removal ought not to be in the Senate.

I take it, Mr. Chairman, that it is proper for the legislature to speak their sense upon those points on which the Constitution is silent. I believe the judges will never decide that we are guilty of a breach of the Constitution, by declaring a legislative opinion in cases where the Constitution is silent. If the laws shall be in violation of any part of the Constitution, the judges will not hesitate to decide against them. Where the power is incident to the government, and the Constitution is silent, it can be no impediment to a legislative grant. I hold it necessary, in such cases, to make provision. In the case of removal, the Constitution is silent. The wisdom of the legislature should therefore declare in what place the power resides.

Mr. JACKSON. As a constitutional question, it is of great moment, and worthy of full discussion. I am, sir, a friend to the full exercise of all the powers of government, and deeply impressed with the necessity there exists of having an energetic executive. But, friend as I am to the efficient government, I value the liberties of my fellow-citizens beyond every other consideration; and where I find them endangered, I am willing to forego every other blessing to secure them. I hold it as good a maxim as it is an old one—of two evils to choose the least.

It has been mentioned, that in all governments the executive magistrate had the power of dismissing officers under him. This may hold good in Europe, where monarchs claim their powers jure divino; but it never can be admitted in America, under a Constitution delegating enumerated powers. It requires more than a mere ipse dixit to demonstrate that any power is in its nature executive, and consequently given to the President of the United States by the present Constitution. But if this power is incident to the executive branch of government, it does not follow that it vests in the President alone; because he alone does not possess all executive powers. The Constitution has lodged the power of forming treaties, and all executive business, I presume, connected therewith, in the President: but it is qualified by and with the advice and consent of the Senate—provided two thirds of the Senate agree therein. The same has taken place with respect to appointing officers. From this I infer that those arguments are done away which the gentleman from Virginia (Mr. Madison) used, to prove that it was contrary to the print pies of the Constitution that we should blend the executive and legislative powers in the same body. It may be wrong that the great powers of government should be blended in this manner, but we cannot separate them: the error is adopted in the Constitution, and can only be eradicated by weeding it out of that instrument. It may therefore be a proper subject for amendment, when we come to consider that business again.

It has been observed, that the President ought to have this power to remove a man when he becomes obnoxious to the people, or disagreeable to himself. Are we, then, to have all the officers the mere creatures of the President? This thirst of power will introduce a treasury bench into the house, and we shall have ministers obtrude upon us to govern and direct the measures of the legislature, and to support the influence of their master; and shall we establish a different influence between the people and the President? I suppose these circumstances must take place, because they have taken place in other countries. The executive power falls to the ground in England, if it cannot be supported by the Parliament; therefore a high game of corruption is played, and a majority secured to the ministry by the introduction of placemen and pensioners.

The gentlemen have brought forward arguments drawn from possibility. It is said that our secretary of foreign affairs may become unfit for his office by a fit of lunacy, and therefore a silent remedy should be applied. It is true such a case may happen; but it may also happen in cases where there is no power of removing. Suppose the President should be taken with a fit of lunacy; would it be possible by such arguments to remove him? I apprehend he must remain in office during his four years. Suppose the Senate should be seized with a fit of lunacy, and it was to extend to the House of Representatives; what could the people do but endure this mad Congress till the term of their election expired? We have seen a king of England in an absolute fit of lunacy, which produced an interregnum in the government. The same may happen here with respect to our President; and although it is improbable that the majority of both houses of Congress may be in that situation, yet it is by no means impossible. But gentlemen have brought forward another argument, with respect to the judges. It is said they are to hold their offices during good behavior. I agree that ought to be the case. But is not a judge liable to the act of God, as well as any other officer of government? However great his legal knowledge, his judgment and integrity, it may be taken from him at a stroke, and he rendered the most unfit of all men to fill such an important office. But can you remove him? Not for this cause: it is impossible; because madness is no treason, crime, or misdemeanor. If he does not choose to resign, like Lord Mansfield he may continue in office for ninety or one hundred years; for so long have some men retained their faculties.

But let me ask gentlemen if it is possible to place their officers in such a situation—to deprive them of their independency and firmness; for I apprehend it is not intended to stop with the secretary of foreign affairs. Let it be remembered that the Constitution gives the President the command of the military. If you give him complete power over the man with the strong box, he will have the liberty of America under his thumb. It is easy to see the evil which may result. If he wants to establish an arbitrary authority, and finds the secretary of finance not inclined to second his endeavors, he has nothing more to do than to remove him, and get one appointed of principles more congenial with his own. Then says he, "I have got the army; let me have but the money, and I will establish my throne upon the ruins of your visionary republic]" Let no gentleman say I am contemplating imaginary dangers—the mere chimeras of a heated brain. Behold the baneful influence of the royal prerogative. All officers till lately held their commissions during the pleasure of the crown.

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

A gentleman has declared that, as the Constitution has given the power of appointment, it has consequently given the power of removal. I agree with him in all that the Constitution expressly grants, but I must differ in the constructive reasoning. It was said by the advocates of this Constitution, that the powers not given up in that instrument were reserved to the people. Under this impression, it has been proposed, as a favorite amendment to the Constitution. that it should be declared that all powers not expressly given should be retained. As to what gentlemen have said of its giving satisfaction to the people, I deny it. They never can be pleased that we should give new and extraordinary powers to the executive. We must confine ourselves to the powers described in the Constitution; and the moment we pass it, we take an arbitrary stride toward a despotic government.

The gentleman from New York (Mr. Lawrence) contends that the President appoints, and therefore he ought to remove. I shall agree to give him the same power, in cases of removal, as he has in appointing; but nothing more. Upon this principle. I would agree to give him the power of suspension during the recess of the Senate. This, in my opinion, would effectually provide against those inconveniences which have been apprehended, and not expose the government to the abuses we have to dread from the wanton and uncontrolled authority of removing officers at pleasure. I am the friend of an energetic government; but while we are giving vigor to the executive arm, we ought to be careful not to lay the foundation of future tyranny.

For my part, I must declare that I think this power too great to be safely trusted in the hands of a single man; especially in the hands of a man who has so much constitutional power. I believe, if those powers had been more contracted, the system of government would have been more generally agreeable to our constituents; that is, at present it would conform more to the popular opinion, at least. For my part, though I came from a state where the energy of government can be useful, and where it is at this moment wanting, I cannot agree to extend this power; because I conceive it may, at some future period, be exercised in such a way as to subvert the liberties of my country; and no consideration shall ever induce me to put them in jeopardy. It is under this impression that I shall vote decidedly against the clause.

Mr. CLYMER. If I was to give my vote merely on constitutional ground, I should be totally indifferent whether the words were struck out or not; because I am clear that the executive has the power of removal, as incident to his department; and if the Constitution had been silent with respect to the appointment, he would have had that power also. The reason, perhaps, why it was mentioned in the Constitution, was to give some further security against the improper introduction of improper men into office. But in cases of removal there is not such necessity for this check. What great danger would arise from the removal of a worthy man, when the Senate must be consulted in the appointment of his successor? Is it likely that they will consent to advance an improper character? The presumption therefore is, that he would not abuse this power; or, if he did, only one good man would be changed for another.

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

Mr. PAGE. I venture to assert that this clause of the bill contains in it the seeds of royal prerogative. If gentlemen lay such stress on the energy of the government, I beg them to consider how far this doctrine may go. Every thing which has been said in favor of energy in the executive may go to the destruction of freedom, and establish despotism. This very energy, so much talked of, has led many patriots to the Bastile, to the block, and to the halter. If the chief magistrate can take a man away from the head of a department without assigning any reason, he may as well be invested with power, on certain occasions, to take away his existence. But will you contend that this idea is consonant with the principles of a free government, where no man ought to be condemned unheard; nor till after a solemn conviction of guilt on a fair and impartial trial? It would, in my opinion, be better to suffer, for a time, the mischief arising from the conduct of a bad officer, than admit principles which would lead to the establishment of despotic prerogatives.

There can be little occasion for the President to exercise this power, unless you suppose that the appointments will be made in a careless manner, which by no means is likely to be the case. If, then, you have a good officer, why should he be made dependent upon the will of a single man? Suppose a colonel in your army should disobey his orders, or cowardly flee before the enemy; what would the general do? Would he be at liberty to dismiss the officer? No; he would suspend him, until a court-martial was held to decide the degree of guilt. If gentlemen had been content to say that the President might suspend, I should second their motion, and afterward the officer might be removed by and with the advice and consent of the Senate; but to make every officer of the government dependent on the will and pleasure of one man, will be vesting such arbitrary power in him as to occasion every friend to liberty to tremble for his country. I confess it seems to me a matter of infinite concern, and I should feel very unhappy if I supposed the clause would remain in the bill.

Mr. SHERMAN. I consider this as a very important subject in every point of view, and therefore worthy of full discussion. In my mind, it involves three questions: First, whether the President has, by the Constitution, the right to remove an officer appointed by and with the advice and consent of the Senate. No gentleman contends but the advice and consent of the Senate are necessary to make the appointment in all cases, unless in inferior offices, where the contrary is established by law; but then they allege that, although the consent of the Senate is necessary to the appointment, the President alone, by the nature of his office, has the power of removal. Now, it appears to me that this opinion is ill founded, because this provision was intended for some useful purpose, and by that construction would answer none at all. I think the concurrence of the Senate as necessary to appoint an officer as the nomination of the President; they are constituted as the mutual checks, each having a negative upon the other.

I consider it as an established principle, that the power which appoints can also remove, unless there are express exceptions made. Now, the power which appoints the judges cannot displace them, because there is a constitutional restriction in their favor; otherwise, the President, by and with the advice and consent of the Senate, being the power which appointed them. would be sufficient to remove them. This is the construction in England, where the king had the power of appointing judges; it was declared to be during pleasure, and they might be removed when the monarch thought proper. It is a general principle in law, as well as reason, that there should be the same authority to remove as to establish. It is so in legislation, where the several branches whose concurrence was necessary to pass a law, must concur in repealing it. Just so I take it to be in cases of appointment; and the President alone may remove when he alone appoints, as in the case of inferior offices to be established by law.

Here another question arises—whether this officer comes within the description of inferior officers. Some gentlemen think not, because he is the head of the department for foreign affairs. Others may perhaps think that, as he is employed in the executive department in aid of the President, he is not such an officer as is understood by the term heads of departments; because the President is the head of the executive de pertinent, in which the secretary of foreign affairs serves. If this is the construction which gentlemen put upon the business, they may vest the appointment in the President alone, and the removal will be in him of consequence. But if this reasoning is not admitted, we can by no means vest the appointment or removal in the chief magistrate alone. As the officer is the mere creature of the legislature, we may form it under such regulations as we please, with such powers and duration as we think good policy requires. We may say he shall hold his office during good behavior, or that he shall be annually elected; we may say he shall be displaced for neglect of duty, and point out how he should be convicted of it, without calling upon the President or Senate.

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

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

When the question was brought forward, I felt unhappy, because my mind was in doubt; but since then, I have deliberately reflected upon it, and have made up an opinion perfectly satisfactory to myself. I consider that, in general, every officer