Abridgment of the Debates of Congress, from 1789 to 1856, Vol. 1 (of 16)

by United States. Congress

I am not satisfied that removability shall be acquired only by impeachment. Were the advocates of this doctrine aware of its consequences, when they advanced it? The Senate has the sole power of trying impeachments; the President is here out of the question. If no officer can be constitutionally removed but by impeachment, it applies to subordinate officers as well as heads of departments. For the constitution only gives power to Congress to establish officers by law, and vests the appointment in the President. If these officers are not removable but by impeachment, what is to become of our affairs, when any of the accidents occur which were enumerated by the gentleman from Massachusetts (Mr. Sedgwick)? Are we to take the circuitous route of impeachment? The dilatory and inefficient process by that mode, will not apply the remedy to the evil till it is too late to be of advantage. Experience has fixed an eternal stigma upon the system of impeachment; witness the case I mentioned, the other day, of Warren Hastings before the British Lords; what delays and uncertainty with the forms of trial, details of evidence, arguments of counsel, and deliberate decision! I ask gentlemen, can there be a greater evil than this in any Government? Why, then, will gentlemen advocate a doctrine so obnoxious to the principles of the constitution, when a more favorable construction is at hand?

Mr. White.—Mention has been made of impeachments, as the only mode of removing an officer. I will explain my ideas on this point, in order that the committee may be masters of my particular objections to the clause. I consider impeachments necessary to be employed in cases respecting an officer who is appointed during good behavior. Thus the judges can only be removed by impeachment. The President and Vice President hold their offices for the terms mentioned in the constitution, not liable to be removed from office in any other way. These circumstances are a deviation from my general principle; but have nevertheless a proper ground to be supported on. The electors who appoint the President, cannot assemble to exercise the authority which would naturally be in them. With respect to the judges, it is found necessary for the proper and uncorrupt administration of justice, and the security of freedom, to have them independent in their stations, so that they be not removable at pleasure. To them, therefore, the doctrine of impeachment is peculiarly applicable. It may properly be extended further, in cases where the President is desirous of retaining an officer who ought not to be retained. This House has the power of controlling him, and may impeach the officer before the Senate. In either of these three cases impeachments are necessary.

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.

Mr. Smith, (of South Carolina.)—I have attended to the arguments of the gentlemen who oppose the motion for striking out, and I apprehend that their reasoning is not perfectly consistent. The construction of some gentlemen is, that the power of removal is given to the President by the constitution. Others are of opinion that the constitution is silent; and therefore the House ought to give it. To oppose these adverse arguments, I must return to my strong ground on which my opponents dare not venture. I state again, that if the constitution has given the power, it is unnecessary to give it here; or if it has not given it, we have no right to confer it, because it is not within the enumerated powers delegated to Congress.

Gentlemen have said that it is proper to give a legislative construction of the constitution. I differ with them on this point. I think it an infringement of the powers of the Judiciary. It is said, we ought not to blend the legislative, executive, or judiciary powers, further than is done by the constitution; and yet the advocates for preserving each department pure and untouched by the others, call upon this House to exercise the powers of the judges in expounding the constitution. What authority has this House to explain the law? But if it has this privilege, the Senate is also invested with it as part of the Legislature; and, in exercising it on the present question, we shall be likely to differ. If the constitution is silent, and gentlemen admit this, it is possible the Senate may view it with a favorable eye to their own right, and reject the bill on account of this clause. A great deal of mischief has arisen in the several States, by the Legislatures undertaking to decide constitutional questions. Sir, it is the duty of the Legislature to make laws; your judges are to expound them.

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; and 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 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 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 that 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?

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 now do. Mr. Chairman, I look 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 that the United States possess, a minister cannot see with his own eyes every transaction, or feel with his hands the minutiæ 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 in administering justice between the Government and its citizens. But the removability of the one class, or immovability of the other, is founded on 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 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 continued in the administration.