Gazette of the United-States. (New-York [N.Y.]) 1789-1793, June 24, 1789, Image 2

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    be annually ele&ed, and displaced for certain crimcs,:vS negle£tor
duty. '
Mr. Stone (Maryland) considered it the duty of the House to
determine on the question. He was oppoied to the leaving it so;
the decision ot a court of law or any other power than the legisla
When the qneftion was brought forward, his mind, he said, wa
in doubt. He had reflected upon it, and had formed an opinion
which was entirely fatisla£tory to himfelf. He thought thatevery
officer should be immoveable by the power that appointed him.
Jt was in the very nature of things. The power ot appointment
?rofe from a powerover the fubjett on which the officer was to ast ;
it was founded on an inttreft which the principal posT fled in the
tranfa&ions of his agent. Therefore in general, appointing offi
cers appeared to be nothing more than authorizing agents for the
dispatch of bufinefc. This was in his opinion an eltablifhed prin
ciple, and it would operate from a Minister ot State down to a
tide -waiter* The constitution, it had been admitted, recognized
this principle, and it could not be denied but that when general
appointments were made, they were during will and pleasure ;
that where appointments weic made during good behavior, they
were exceptions from the general rule, in which the cxercife of
the creating power was limited.
He would examine whence originated the power of Congress
rcfpe&ing these offices. He presumed that if it was veftcd in Con
grefsj by clear deduction from that inftrumcnt, to ere£fc depart
ments,thr-t no gentleman would consent to diminish it, or rcftritt
them in theexereife of it. The Congrcfs had power to levy and
collett tiixcs. This would include to ellabhfh an office ot trea
sury—to regulatecommerce with foreign nations, and with Indian
tribes. This comprehended a power ofere6fing a board of trade,
&c. and in order to carry these powers into execution, they were
to make all laws neceflary to carry the constitution into efTefh
Now it appeared to him that the eftabliihment of this department
was clearly w ithin'ftie constitution, and that as Congress, in their
Jegiflative capacity, had an interest in, and power ovef the whole
affairs of the department, they might appoint and displace its of
ficers. But again, the constitution had limited the legislature
"with refpeft to appointments, and given them to the President
and Senate. The question then wa? whether the Senate, having a
ihare in appointing, did not possess the power of removal as inci
dental to it.
Mr. S:one asked, what qualities were necefTary for an appoint
ment that were not requisite for difmifTing ? Information, impar
tiality, and judgment in the business to be condu&ed. Were not
the fame qualities neceflary in order to dismiss ? He was not able
tofubferibe to the principle, that the executive in its nature com
prehended a neceflary power of appointing or removing officers.
Why did it imply it r* The appointment of officers lequiring qua
lities which are neceflary to judge of the meritsof men—fothe dif
mifTing them—to know what was necefTary for an executive offi
cer—what for a judge, See.
Thisknowlege was acquired by experience, and might belong
to one body of men as well as another. In the nature of t!:in~s,
therefore, there was no necefTiry connexion between the executive
functions, and the power of removal. That body whieh could
best judge of the qualities necefTary to tranfa6l business, were the
most proper dilpoftrs of offices, and if it was contended that the
executive magistrate was in the belt fitnation, and under the belt
advantages to judge of these qualities, still this was a mere matter
of fa6t, whicli might depend on circumltances ; and the nature of
the office did not neceflarilv involve the capacity of 'lidding, or
imply the power of exercising that judgment.
Mr. Stone then took notice of the principles which had been
contended tor, in another view, as it applied to the fnuation of
other nations where a hereditary monarch was eftabliihed, who
had a personal property in the government and administration,
aud who was considered as the natural fountain of honor and of
fice. It wasfuppofed that he had neceflarily the power of choo
fmg and controling those who were to manage his property Eat
this had no application to ourcountry, where the chief magistrate
had nofpecicsot property in the government, and was not the
master ; but the great fervantof the people.
These circumitancci concurred to prove that the President of the
United States had no natural right to be the sole judge of the mer
its of officers ; and as tar as he could conclude from examining the
constitution. it never intended to beflow itupon him.
It therefore struck his mind that all coptroul of officers inde
pendent of the agency of the Senate, was confined to the cafe of
I'uch inferior officers, the appointment of which the constitution
hid enabled the legislature to vest solely in him. It flru6t him al
io that as to the power of pardoning, the President should be pre
cluded from the exereife of this* power, in cafe where the Senate
had convitted an offender. So that it appeared to him, that the
Senate were a body to whom the constitution had given great
weight in the executive scale, and in the administration of govern
In determining whether it was proper on the score of expedien
cy to give the p wertothe President, or to him with the Senate,
the degree or confidence which was to be placed in those bodies
were to be considered : Was it more probable, he asked, that one
man should do wrong, or that a number of men, chosen with equal
care, and atting tinder the fame obligations, should do wrong ?
Where were the greatest obstacles? Who would have the grcatcft
objects to attain ?
He concluded with proposing that the President should have the
power of suspension, in order to remedy a difficulty which had
been fuggefled in cafe of a rccefs of the Senate, when it became
necefTary to punish i-n officer by removal.
Mr. Madison : I feel the importance of the question before
us, as our decision will be a permanent cxpofition of the constitu
tion in this point, and as on this decision will depend, in a great
degree, the genius and character of our government. On the de
termination which will uow take place, will depend perhaps the
preservation of the government on that equal balance which the
constitution defigncd. It is therefore of the utmost importance
that we weigh the fubje6l with the most cautious deliberation. I
own to you, I feel an anxi ty on thi-s fubje£t. I feel anxious,
becaufel am called on to give my voice on a question which may
cfle£t the fundamental principles of the government. I3ut all
that I can do on an occasion of this kind, is to weigh the argu
ments which have been advanced 'on both fides, with an honest
defireto discover the truth, and to form my opinion under the
influence of an attachment to that spirit of liberty, which this con
ititutioii is happily calculated to preserve.
Several conftru£tiors have been put on the constitution, rela
tive to the point in question. It has been contended that the
power of difplacmgfrom office is fubje&to o legislative difcreti
ori, which is to create and to modify.—At firft fight, Sir, this
<lo6lrine appears considerably plausible. But wh n I consider
that a prime object of the constitution was to maintain a marked
diftin£ri«tn between the legislature, executive, «md judicial de
partments. and when I consider that the legislature, on this
principle of discretion, may transfer at their pleasure, powers
from one department to another—that they may narrow the ex
ecutive, confer new powers on the Senate, and enlarge the gene
jal mr.fsoft eir own authority; when I consider the confequcn
ces of this do&rine, and compare them with the true objects o!
theco' ftitution, I own I cannot subscribe to it.
Another do&rine, which has a very rcfpeftable patronage, is
that when an officer is appointed, he can be removed only by im
peachment, for some mifdemcanor in office. This would give
a permanency to the executive system, which would be more in
compatible with the genius of repubheanifm thnn any principle
that could be advocated. The danger to liberty, the danger of
despotism has never been found to spring so much from the diffi
culty of procuring virtuous men to fill the officcs of government
as the difficulty of displacing those who have been found un
worthv of trull. If it be said that an officer when once appoint
ed, should not be removed without a crime and eonvi&ion, I
would be clad to know what security there would be for a faith
rul administration of the government. —Every individual between
the highest aud lowest link irt the long chain of executive magif
racy, would find a security, which would gteatly relax his fide
lity in the discharge of his duty.
Ado&riiie which Hands most in opposition with the principle
we have contended for, is, that the power to make appointments
mplies in its own nature a power of removal as incidental to it.
If nothing more was said in the constitution than that the Presi
dent, with the Senate, should appoint officers, there would be
forcein the observation, that the power of difmifling results from
the power of appointing. But, Sir, there is another part of the
onftitution as explicit as that on which the gentlemen found their
doctrine : It is that which declares that the executive power lhall
'»e vested in the Prefidcnt of the United States. The afl'ociation
of the Senate with the President in the exercise of one particular
executive function, is an exception to this gen-r il principle; and
xceptions to general rules are ever taken ftri&ly. But there is
still another part of the constitution. which in my judgment,
clearly favors the conftruflion I give. The Prefidcnt is required,
Sir, to take care that thelaws be faithfully executed. Ifthefaith
ul execution of the laws be required at the hands of the executive
magistrate, it should seem that in general the constitution mull
have intended that he should have that species of power m all its
extent, which is necessary toaccompliih the purposes of the de
partment, and'to enable him toanfwer for their accomplishment.
Now, if the officer, when once appointed, is not to depend tor
his official exiftenceupon the Prefidcnt, but upon a diftiuft body,
tor wherethere is a mutual negative, either alone can secure this
dependence) I do not fee how the former can provide for the ex
ecution of tlie laws. It is true, that by a circuitous mode he may
obtain an impeachment, and gain the concurrence of the Senate ;
but will not this deprive him of that controul which is essential to
a refponfibilitv for the administration ?
There is another maxim which ought to direst us in expounding
the constitution. It is the opinion of all great civilians and po
litical writers, that the great departments of government ought to
he prefervedfeparatc and diftinft. That in anycafe wheretliey are
blended together, it ought to be under special reftri&ions and
guards. fhis is iaid down as essential to liberty. When there
fore .we review the fcveral parts of the constitution, which provide
that the legislative powers lhall be vested in two Houses, and the
executive in a President, with certain exceptions, wemuft con
clude that the intention of the constitution was, that these de
partments should be kept perfectly separate, where they were not
exprefjly mixed, and that we oughtto conftru6l the inftrumcnt in
such a manner as to confound them as little as poflible.
Sir, every thing which relates to the merits of the qucftion, as
distinguished from a constitutional question, fecms to turn on the
danger of such a power vt (led in the Prefidcnt. But when I con*
fider the checks which will attend the President in the exercise of
it, I confcTs, I feel no appreheniions. If there are any dangers
incident to that power, th§y must belong to it wherever it exists,
whether you place it in one body or another. I will not repeat
what has been said with refpeflt to the mode of the Prefidcnt's
cleft.ion, and the extreme improbability that any citizen will he
lelefted from the common mass, who is not dift nguilhed by his
virtue and worth. In this alone we have an unusual security for
the faithful exercise of the power. But leaving that out of the
question, let us confidcr the obligations and restraints he will feel
when placcd in that exalted responsible station. Perhaps, as has
been observed, the great danger arises from the continuance of un
worthy men in office; but so is the fyftein contrived that though
the President may be vested by la,w with a power of removal, he
is restrained and prevented from continuing a corrupt officer. For
if an unworthy man be not displaced by the supreme executive,
the House of Representatives may at any time impeach him, and
he may be removed in fpiteofthe Prefidcnt. But it is contended
that the danger confiftsin this, that the President may remove from
office a man whose merit requires that he Ihouldbe continued in it.
Let us confidcr what motives he can have for such an abuse of pow
er, and what will be the checks on him. In the fiift place, he
himfelf will be impeachable for the wanton removal of a merito
rious officer, and will himfelf be removed from his high trust.
-Again, what can be his motive for displacing a worthy man? It
must be with the expectation of filling the vacancy with some un
worthy favorite. Can he accomplilh tlvis himfelf? Must he not
conlblt the Senate? They may rcjeft the pcrfon he nominates. Sir,
)e can have no security forfuccefsin his projects. The Senate will
judge of them by the merits and character of the pcrfon removed ;
and having been guilty of one obnoxious measure, he will him
felf thereby fumifha check tf> his own delign : But let us confidcr
the confeqnence. The injured man will be supported by the pub
lic opinion. The community at large will take fide against the
i relident—and combinations will be oroduccd which may effec
tually prevent his re-election. To displace a man of high merit,
an one who from his station may be supposed a man of extensive
influence, will excite jealousies, and create an intereftcd oppositi
on in the fyfbm, and in the people. He will have his friends, his
dependents, and the public sympathy on his fide,' and if it should
not give birth to an impeachment in the legislature, it would pro
bably produce a fatal impeachment before the community at large
Butfuppofe the perfccuted individual lliould not be able to ac
complish object of his resentment in thi way, there are other
modes in which he can be very troublesome to the President. Ii
he has not influence enough to direst the vengeance of the who!
community, in all probability he will be able to obtain appoint
ments in one or the other branch of the legislature, and poir fling
weight and talents, he will be able at least to give him confidera
e dl<lu [ We have seen in the history of other nations, ex
amples that.juftify the remark I now make. Though the preroga
iveo t ie Bntifh King is great, and his resources of influence ex
tenhve and commanding, there have been examples of his miin-
Ms jcing opposed, and removed by the decision of one branch of
nn(T fTf '. hlsbC the cafe wlth a hTedicary monarch,
P? - nd ot luth hl S h Prerogatives, and furnilhed with such mean,
,I™' can we luppofe that a President of the United States,
Ii .V ? Ur n on the popular voice,irapcach-
; V ' and not perhaps distinguished in point.of
wea ior ptronal talent* from the head of the department him
can we luppofe, I fay, that in drfianceof all these confldcra
tions, lie will prcfume wantonly to dismiss a meritorious and vir
tuous officer from his service? 1 own it is an abuse of power which
exceeds my imagination, and of which I can form no
conception But let us not contemplate the dangers onlv on one
lide. V til this power m the Senate, jointly with the President,
and in my opinion you destroy that great principle of refponlibili
t>, which was intended so, the security ol liberty itfelf. Vrft the
power m the President, the chain of dependence is this—The ol
'l, •m ? W .' ft grade, the officer ,of the middle and higher
oeoole' T b ' aCP "' a ; n, 0n lhe President, and he again on the
people— 1 he chain of security therefore terminates in the general
community, who will possess,, in aid of tlieir great original pow
t,o„rh,w!." Ve Cr ' Vn l at J rnpeach ment. Take the other fuppofi
cin i h k P ° WCr ° U l !d r be veftcd in thc *<•'«»•> the prin
o?w-r t o .Power to displace is necelfarily conneftcd with the
The h'-.rl"r t T >ln; ' appointments may depend upon
the headsoi departments—and they must tUt refore remove I fee
re V fo ry nfibMTT P '^ nl Where lhall we find the
refponfibilityi \\ here does it terminate? If you begin with an
ml. nor officer, hejs dependent on his fupcrior, and'he again or
'frf"r c T :othe a permanent
°V y , (• y ' the lingular mode ot their eleflion, existing in
power wh CV b ri h a A* that poffeflts that portion of aristocratic
,r I I ! theconll,tut,on has Wifely eftablilhed. Shall we
. nate rather than the whole community? For though
Senators will not hold theiroffices for life, yet the fact is, that
hey will not pofTcfs any responsibility whatever, which will make
it lafeto trust them with such a power.
Cut, Sir. what an afpeft will it give to the executive depart.
ment? Infte3d of keeping it diiliiift from the legilLtive
fer its bell powers to a bodvin which the conftitution'never'.ft'
ed it ; you render the executive merely subservient to thr nil
branch, you destroy its refponfttrility and defeat the purnof-, f
which an executive was eftabhrtied. Sir, the laws cannot be «
ecuted but by officers chosen lor the purpose; and the contm.i
over the officers mud be in the executive power. If anv th
doctrine be admitted, what is the consequence? certainlyV
that you may go on with equal reason and let the Senate at
head of the executive department. You may dcclare thai ?1I o ft"
cers should hold their places during the pleasure of either brarrh
of the legislature. And by this means you may link to-ethe
branches which the preservation of liberty requires to be°ai '
ftantly feparatcd.
[For the remainder ofWednefday's Debate, fee laji Page.']
Monday, June 22, 1789.
The resolve which came down from the Senate, refp?6li n <r
appropriation of the rooms in the federal hall—was read° 2 nd
concurred. '
The order of the day being called for, the bill for eflablifl,.
ing the department of foreign as rep »rt d from t -
committee cf the whole, with the several amendments, were read
and the amendments agreed to by the House.
Mr. Carroll proposed aclaufeto limit the duration of the
bill: Among other reasons for the motion, Mr. Carroll observed
that he conceived the necelfity of such an officer would ceafeina
(hort time, by reason of the gradual withdrawing of our inter
course witli European countries; and in the course of a very few
years all political connexion with thole powes will be at an end
which would render the fitiblifoment a fuperfluous expencc.
Mr. Pace feconcied the motion—and added, That he could
not conceive the propriety of gentlemen, who were elected only
for two years, wifhlnj to extend" the laws of their to a
period beyond the time, when the use and design of fuchlaws
should exist, and thus perpetuate the power and influence of the
Mr. Ames opposed the addition of the clause as it would be
unfavorable to the liability of government; and was lirtle better
than infufmg a prematureprinciplc of mortality into the executive
Mr. Gerry was in favor of a limitation : He supposed, that
if the expiration of the bill was not provided for, at theprefent
time, it would be extremely difficult to effe£l its rcdu&ion, when
the officers of this department shall have formed connexions
with foreign courts; and by means of those connexions, an
extensive fphereof bufmefs uninteresting to the United States, (hall
be created.
The vote being taken, it patted in the negative.
Mr. Benson proposed an amendment, which he conceived
would more fully expfefs the sense of the committee, as itrefpe&ed
the conllitutionality of the decision which had taken place: The
amendment wa«, to flrike out in the second clause of the bill,
these Words, u In cafe cf vacancy in the fiid office of Secretary of the
i>l ted States \ for thr department of foreign affairs-" and toinfert in
hen thereof the followin r, " Whenever thefaid principal officer,
ffiall be removed by the President, or a vacancy in anyother way
shall happen."
I i is produced some debate, and the ayes and nays being called
for, it was determined in the affirmative, as follow, viz.
[ Meflieurs Ames, Baldwin, Benfon, Brouin, Burke, Car.
| rot, Cixmer, Center, Fitzftmons, Gilman, Goodhue, Grijfin,
Ayes qo. J Hartley, lleifler, Laurance. Lee, Leonard, Madison,
. Moore, P. Muhlenberg, Scot, Sedgwick, Seney, Sinnick
. fori. Smithy (Maryland), Sylvefler, Thatcher, Trumbull,
Wadfworth. —Thirty.
f Meflieurs Cadwallader, Coles, Gerry, Grout, Hathom,
Nays 18 J Huntington, Livcrmore. Matthews, Page, Parker, Pat-
I r2 dge, V a " RmfcUaer, Sherman, Smith, fS. C.) Sturgis,
ISumpter, Tucker, White.—Eighteen.
It was then moved to llrike out these words in the firfl clause,
" removable by the President of the United States."
The principal reason afiigned for firiking out these words was,
that as the bill now Hands, it appears to be a grant of power;
whereas it was presumed to he the sense of the committee, that the
power was veiled in the President by the Constitution. A recapi
tulation of arguments upon this point ensued, and the queflion
was finally determined by ayes and nays.—Some gentlemen voted
in the negative, supposing that retaining the words, would be an
additional evidence of the sense of the House that the power was
veiled in the President.
f Meflieurs Ames, Baldwin, Benfon, Brown, Burke,
j Cixmer, Coles, Gerry, Goodhue, Griffin, Grout, liathorn,
Ayes 91 J Huntington, Leonard, Livermore, Madison, Matthews,
, Moore, P. Muhlenberg, Page, Parker, Patridge. Van
I Ranjellaer, Scot, Sherman, Stnnicfon, Smith, (S. C.)
[.Sturgis, Sumpter, Vining, White.—Thirty-one.
f Meflieurs Boudinot, Gidwallader, Carrol, Contee, Fitz-
Nays jq J simons, Gilman. Hartley, Heifler, Laurance, Lee, Sher
} man, Sedgwick, Seney, Sm'th, (Maryland), Sylvejler,
L Thatcher, Trumbull, Tuckrr, Wadfworth. —Nineteen.
I hefe addititional amendments being compleated, the bill
ed to be cngrolfed for a third reading to-morrow.
And then the House adjourned.
Tuesday, June 23.
The committee appointed for that purpose, brought in a bill
'or f-curing to authors and inventors the benefits of their refper
tive publications and inventions—which was read and laid on the
1 he order of the day was then called for—and the engroffcd
bill for eftablifliing an executive department, to be denominated
the department of foreign affairs, was read a third time.
Mr. Sumpter moved, that the final consideration of the bill
mould be pollponed.
Mr. White piopoled, that the bill should be re-committed to
1 committee of the whole, iu order that the other departments
might be added, and one system formed, which {hould embracc
the whole—this motion after a ffiort discussion was negatived.
Mi Sumpter then renewed his motion for poflponement, and
that the bill lhould lie on the table till to-morrow. —The vote
upon this motion paflVd in the affirmative.
Mr. Laurance moved, that the House should take into con
udcration the amendments to the impost bill, which were yet to
he decided—this motion was adopted.—And the enabling clause
as amended by the Senate being read, which is in these words.
Be it enacted by the Senate and Representatives," &'• r '
1 hatcher proposed, that <{ House of" should be mferted imme
diately before Representatives—this motion was agreed to.
The next amendment which the Senate had not receded from
was, to llrike out the clause which makes a discrimination in the
duty injpofed on distilled spirits imported from countries with
whom the United States were in treaty, and from those with whom
no treaties had been formed—lt was moved and seconded, that
the Houfje should accede to the amendment : This produced an
animated debate, m which many new observations occurred,
and those which had been adduced in the former discussion, wer*-
peated : The vote being taken, it palled in the negative—twen
ty-five being in favor ot acceding, and twenty-seven againlt it.
So the discrimination remains as it originally flood.
The House then'adjourneded.
It is a pleasing reflection, that the attention of Congress to pub
lic bulinefs, has not been interrupted by any unfavorable incidents.
It is near three months fmce the feflion commenced, and only one
member has fallen sick—an evidence of the salubrity of the a. >
and healthiness of the situation of this city.