July 14, 1789
The Senate met, and One of the Bills for organizing one of the public departments, That of foreign affairs was taken up. after being read. I begged leave of the Chair to Submit, some general Observations which tho apparently diffuse. I considered as pertinent to the bill before Us, the first Clause of which was there shall be an executive department & ca. there are a number of such bills, and may be many more, giving tending to direct the most minute particle of the Presidents Conduct. if he is to be directed how he shall do every thing it follows, he must do nothing without direction, to What purpose then, is the executive power lodged in the President, if he can do nothing without a law directing the mode Manner and of Course, the thing to be done. May not the Two Houses of Congress on this principle pass a law depriving him of all power. you may say it will [lined out] not get his approbation. but Two thirds of both Houses will make it a law without. him. and the Constitution is undone at Once. Gentlemen may say how is [Page 110] this the Government then to proceed on these points. the simplest in the World, the President communicates to the Senate that he finds, such & such officers necessary in the Execution of the Government. and nominates the Men. if the Senate approve they will concur in the Measure. if not refuse their Consent & ca. When the appointments are made, the President in like Manner communicates to the H. of R. that such appointments have taken place & requires adequate Salaries. then the House of Representatives might shew their concurrence or disapprobation by providing for the Officer or not. I thought it my duty to mention these things, tho' I had not the Vanity to think, I would make any prosalites in this Stage of the business, and perhaps the best apology I could make was not to detain them long. a long desultory I likewise said That if the Senate were generally of my mind, a Conferrence between the Houses should take place. But the Sense of the House would appear on taking the Sense of the House Question on the first Clause. The first Clause was carried, now came the second Clause, it was for the Appointment of a Chief Clerk by the Secretary, who in fact was to be principal Whenever the said principal Officer shall be removed from Office by the President of the United States. There was a blank pause at the End of it. I was not in haste but rose first. Mr. President-- Whoever attends Strictly to the Constitution of the United States will readily observe that the part assigned to the Senate was an important one, no less than that of being the great Check, the regulator & Corrector, or, if I may so speak, the Balance of the Government. In their legislative Capacity, they not only have the Correction of all bills Orders Votes or resolutions but may originate any of them, save Money bills, in the executive branch they have likewise power to check and regulate the proceedings of the President, Thus Treaties the highest and most important part of the Executive department, must have a Concurrence of Two thirds of them. All appointments under the President and Vice President. must be by their advice and Consent, unless they concur in passing a law divesting themselves of this power. by the Checks which are intrusted with them upon both the executive and the other branch of the legislature, the Stability of the Government is evidently placed in their hands. The approbation of the Senate was certainly meant to guard against the Mistakes of the President in his appointments of officers. I do not admit the Doctrine of holding Commissions during pleasure as constitutional, and shall speak to that point presently. but supposing for a moment, that to be the Case. is not the same guard equally necessary to prevent removals improper steps in removals as in appointments, certainly the Spirit of the Constitution common inference or induction can mean nothing Short of this. It is a maxim in legislation as well as reason, and applies well in the present Case, that it requires the same power to enact repeal as to enact the depriving power should then be the same as the appointg. power. But was this a point left at large by the Constitution? [Page 111] clearly otherwise. five or Six times in our Short constitution is the tryal by impeachment mentioned-- in One place, the H. of R. shall have the sole power of impeachment-- in another the Senate shall have the sole power to try impeachments. in a third Judgt. shall not extend further than to removal from Office and disqualification to hold or enjoy Offices & ca. the President shall not pardon in Cases of impeachment. the President Vice President and all civil officers of the United States shall be removed from Office on impeachment & ca. no part of the Constitution is so fully guarded or more clearly expressed than this part of it. and most justly too, for every just good Government guards the reputation of her Citizens as well as their life and property. for every turning out of Office, is attended with reproach & the person so turned out is Stigmatized with infamy. by means of impeachment a fair hearing and Tryal is secured to the party. without this What Man of an independent Spirit would accept of such an Office, of What Service can his Abilities be to the Community if afraid of the nod or beck of a Superior, he must consult hims will in every Matter. Abject Servility is most likely to mark the line of his Conduct, & this on the One hand will not fail to be productive of despotism and Tyranny on the other. for I consider mankind as composed nearly of the same Materials in America as in Asia, in the United States as in the East Indias. The Constitution certainly never contemplated any other mode of removing from Office. the Case is not omitted here the most ample provision is made. if Gentlemen do not like it, let them obtain an alteration of the Constitution, but this cannot be done by law. if the Virtues of the present Chief Magistrate are brought forward, as a reason for vesting him with extraordinary powers. No nation ever trod more dangerous ground. his Virtues will depart with him. but the powers which You give him will remain, and if not properly guarded will be abused by future Presidents; if they are Men. This however is not the Whole of the Objection I have to the Clause a Chief Clerk is to be appointed, and When and this without any advice or Consent of the Senate. This Chief Clerk, on the removal of the Secretary will become the principal in the Office, and so may remain during the Presidency. for the Senate cannot force the President into a nomination, for a new Officer. This is a direct Stroke at the power of the Senate. Sir I consider the Clause as exceptionable every way, and therefore move You to Strike it out.
Langdon Jumped up in haste hoped the Whole would not be Struck out. but moved, that the clause only, of the President appoint removing, should be Struck out. up rose Elsworth & a most elaborate Speech indeed did he make, but it was all drawn from Writers on the distribution of Government. the President was the Executive officer he was interfered with in the appointment it was true, but not in the removal. the constitution had taken one but not the other from him. therefore removal remained to him intire-- he carefully avoided the Subject of impeachment-- he absolutely used the following Expressions with regard to the President. "It is Sacrilege to touch an Hair of his head, and, we may as well lay the President's head on a block and strike it off, with one blow" the way he came to Use these Words was, after having asserted, that removing from offices was his priviledge. We might as well do this, as deprive him of it. he had sore Eyes and a green silk over his eyes them, on pronouncing the last of the Two Sentences, he paused put his hand kerchief to his face and either shed tears or affected to do so. When he sat down, both Butler and Izard sprung up. Butler however continued up. he began with a declaration, that he came into the House in the most perfect State of indifference, & rather disposed to give the power in question to the President But the arguments of the Honorable. Gentleman. from Connecticut had, in endeavouring to support the Clause, convinced him in the clearest Manner, that the clause was highly improper and he would vote against it-- Izard now got at it. and spoke very long against the clause. Strong got up for the clause and a most confused speech he made indeed-- I have notes of it, but think it really not worth answering, unless to shew the folly of some things which he said-- Docr. Johnson rose and told Us twice before he proceeded far, that he would not give an Opinion on the power of the President, This Man's conscience will not let him be a thorough paced Courtier-- Yet he wished not to loose his interest with the President. however his Whole argument went against the Clause. and at last he declared he was against the Whole of it-- Mr. Lee rose he spoke long and pointedly against the clause he repeated many of my Arguments, but always was polite enough, to acknowledge the Mention I had made of them. he spoke from a paper which he held in his hand. he continued untill it was past 3 O'Clock and an adjournment was called for and took place-- in looking over my notes I find I omitted to set down Sundry arguments which I used, but no matter. I will not do it now.
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Documentary History of the First Federal Congress
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