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OF A DEBATE IN THE SENATE OF THE UNITED STATES.
A Few very brief and fragmentary notes of one or two debates held in the Senate, during the first session after the adoption of the Constitution, have been found intermixed with the latest pages of the Diary. The interest that attaches to them grows out of the fact that, during this period, and even until 1795, the doors of the Senate were kept closed, with a single exception, through all legislative as well as executive transactions, and therefore nothing has been reported. The rescinding of the rule has changed the character of the body; whether for the better or for worse, time alone can fully determine. The discussions which took place in the first Congress have a peculiar interest, from the fact that they were held between persons, many of whom had been engaged in framing the Constitution, upon vital measures of organization. Of these measures, none were of more consequence than those creating the offices subordinate to the President, — the great executive departments of the government. It was during the progress of one of these through both Houses, that the question was agitated of the President's constitutional power of removing from office. A brief recital of the prominent steps taken will facilitate the comprehension of the succeeding notes. On the 19th of May, the House of Representatives being then in committee of the whole, Mr. Madison, of Virginia, moved a resolution organizing the Department of Foreign Affairs, &c., and terminating with these words, – “who shall be appointed by the President, by and with the advice and consent of the Senate, and to be removable by the President.” A long debate upon the power of removal ensued; Mr. Madison taking the lead in defence of the words of the resolution. Mr. Bland proposed to add “by and with the advice and consent of the Senate.” But his motion failed, and the language objected to was retained by a considerable majority. In accordance with this decision, a bill to organize the Department was subsequently reported, and was again debated in committee from the 16th to the 22d of June. A motion to strike out the words was lost, twenty voting for it against thirty-four in the negative. The objection then seems to have occurred to the majority, that they might be construed as conferring a power by the House, which the same authority might at any time withdraw. To escape this construction, when the bill was returned to the House, they consented to the erasure of the words which had caused the debate, and in lieu of them inserted in the second enacting clause the words “whenever the said principal officer shall be removed from office by the President of the United States.” This movement, acknowledging the power as conferred by the Constitution on the President, was sustained by thirty votes against eighteen in the negative. A day or two afterwards, the bill passed the House by twenty-nine affirmative against twenty negative votes.
The bill went to the Senate. On the 14th of July it was taken up for consideration, and was debated until the 18th. It is of a portion of this debate that the following notes were taken. Mr. Adams was then Vice-President; and it is probable that he took them for the sake of guiding his judgment in the contingency which happened of his being called to decide the disputed question by his casting vote. A motion was made to strike out the words marked in italics, which had been inserted in the last stages of the bill in the House; and the senators were found equally divided, nine on each side. The Vice-President then recorded his vote in the negative, and the words remained a part of the bill.
The country acquiesced in this decision; and the power of absolute removal has been exercised by the President ever since. The question has been agitated, however, at intervals, and it is liable to be whenever a majority of the Senate may be in political opposition to a new President coming in on a revolution of popular opinion. It is, therefore, not without its use, to accumulate as much of the contemporaneous construction of the Constitution on this point as possible. Among the papers of Mr. Adams, is what would seem to be the original of a paper defining the powers of the Senate on the subject of appointments, drawn up by Mr. Jefferson, as one of the Cabinet of General Washington, in the spring of the next year. It will be found in the Appendix to the present volume, A.
POWER OF REMOVAL.
July 15. Carroll." The executive power is commensurate with the legislative and judicial powers. The rule of construction of treaties, statutes, and deeds. The same power which creates must annihilate. This is true where the power is simple, but when compound, not. If a minister is suspected to betray secrets to an enemy, the Senate not sitting, cannot the President displace nor suspend ? The States-General of France demanded that offices should be during good behavior. It is improbable that a bad president should be chosen — but may not bad senators be chosen 2 Is there a due balance of power between the executive and legislative, either in the General Government or State governments? Montesquieu. English liberty will be lost when the legislative shall be more corrupt than the executive. Have we not been
1 Charles Carroll of Carrollton, Senator of Maryland.
witnesses of corrupt acts of legislatures, making depredations ? Rhode Island yet perseveres.
Ellsworth. We are sworn to support the Constitution.
There is an explicit grant of power to the President, which contains the power of removal. The executive power is granted; not the executive powers hereinafter enumerated and explained.
The President, not the Senate, appoint; they only consent and advise.
The Senate is not an executive council; has no executive power.
The grant to the President express, not by implication.
Butler. This power of removal would be unhinging the equilibrium of power in the Constitution.
The Stadtholder withheld the fleet from going out, to the annoyance of the enemies of the nation.
In treaties, all powers not expressly given, are reserved.
Treaties to be gone over, clause by clause, by the President and Senate together, and modelled.
The other branches are imbecile; disgust and alarm; the President not sovereign; the United States sovereign, or people or Congress sovereign.
The House of Representatives would not be induced to depart, so well satisfied of the grounds.
Ellsworth. The powers of this Constitution are all vested; parted from the people, from the States, and vested, not in Congress, but in the President.
The word sovereignty is introduced without determinate ideas. Power in the last resort. In this sense the sovereign executive is in the President.
The United States will be parties to a thousand suits. Shall process issue in their name versus or for themselves?
The President, it is said, may be put to jail for debt.
Grayson. The President is not above the law; an absurdity to admit this idea into our government. Not improbable that
1 Oliver Ellsworth, Senator of Connecticut. Afterwards Chief Justice of the Supreme Court of the United States.
* Pierce Butler, Senator of South Carolina. 3 Richard Henry Lee, Senator of Virginia. 4 William Grayson, Senator of Virginia. VOL. III.
the President may be sued. Christina II. of Sweden committed murder. France excused her. The jurors of our lord the President, present that the President committed murder. A monarchy by a side wind. You make him vindex injuriarum. The people will not like " the jurors of our lord, the President," nor the peace of our lord, the President,” nor his dignity; his crown will be left out. Do not wish to make the Constitution a more unnatural, monstrous production, than it is. The British Court is a three-legged stbol; if one leg is longer than another, the stool will not stand.
Unpalatable; the removal of officers not palatable. We should not risk any thing for nothing. Come forward like men, and reason openly, and the people will hear more quietly than if you attempt side winds. This measure will do no good, and will disgust.
Lee. The danger to liberty greater from the disunited opinions and jarring plans of many, than from the energetic operations of one. Marius, Sylla, Cæsar, Cromwell trampled on liberty with armies.
The power of pardon; of adjourning the legislature.
Power of revision sufficient to defend himself. He would be supported by the people.
Patronage gives great influence. The interference more nominal than real.
The greater part of power of making treaties in the President. The greatest power is in the President; the less in the Senate.
Cannot see responsibility in the President or the great officers of State.
A masked battery of constructive powers would complete the destruction of liberty.
Can the executive lay embargoes, establish fairs, tolls, &c. ?
The federal government is limited; the legislative power of it is limited; and, therefore, the executive and judicial must be limited.
The executive not punishable but by universal convulsion, as Charles I.
The legislative in England not so corrupt as the executive. There is no responsibility in the President or ministry.
Blackstone. The liberties of England owing to juries. The greatness of England owing to the genius of that people.
The Crown of England can do what it pleases, nearly. There is no balance in America to such an executive as that in England. Does the executive arm mean a standing army 2 Willing to make a law that the President, if he sees gross misconduct, may suspend pro tempore. Patterson." Laments that we are obliged to discuss this question ; of great importance and much difficulty. The executive coextensive with the legislative. Had the clause stood alone, would not there have been a devolution of all executive power ? Exceptions are to be construed strictly. This is an invariable rule. Grayson. The President has not a continental interest, but is a citizen of a particular State. A. K. of E. otherwise; K. of E. counteracted by a large, powerful, rich, and hereditary aristocracy. Hyperion to a satyr. Where there are not intermediate powers, an alteration of the government must be to despotism. Powers ought not to be inconsiderately given to the executive without proper balances. Triennial and septennial parliaments made by corruption of the executive. Bowstring. General Lally. Brutus's power to put his sons to death. The power creating shall have that of uncreating. The minister is to hold at pleasure of the appointer. If it is in the Constitution, why insert it in the law? brought in by a side wind, inferentially. There will be every endeavor to increase the consolidatory powers; to weaken the Senate, and strengthen the President. No evil in the Senate's participating with the President in removal. Read.” The President is to take care that the laws be faithfully executed. He is responsible. How can he do his duty or be responsible, if he cannot remove his instruments? It is not an equal sharing of the power of appointment
1 William Patterson, Senator of New Jersey. Afterwards Associate Justice of the Supreme Court of the United States. * George Read, Senator of Delaware.