Amendments to the Constitution, [8 June] 1789 — reading text

impeachment, if they fuppofe the crimi- nality of me officer will warrant fuch proceedure. Will the fenare tnen be that upright court \\hith ihey ci.pl. to appeal to on wiien they have prejudg- th.s occaUon, ed your caufe ? 1 conceive the fenate will be too much under the controul of their former decifion, to be a pro- per body for this houfe to apply to for impartial juftice. As the fenate are the dernier reiort, and the only court of judicature which can deterijiine on cafes of impeachment, I am for preferving theu) free and iiuiepenjcnt, both on account of the officer and this houfe. I tlierefore conceive that it was never the intention of the conltitutjon to veCt the power of reii;oval in the prelident and fenate ; but as it muft exlil fomewhere, it refls on the prelident alone. I conceive this point was made fully to appear by the ho- Dourable gentleman from Virginia (Mr. Madifon) ; iaaf- much as the prefident is the fupreme executive officer of the United States. If the dodrine of the gentleman from South Cirolina is true, tiien it follows that every officer has perpetuity in office, at leait during good behaviour. If th;s is to be the cafe, there waspp neceflity for declaring in the conlhtuiion that the judges (hall hold iheir offices during good beha- vior. This would be deilroying the refponhbility of the prefident ; and eflablifiiing fuch a principle in the govcrn- inent as would be extremely dangerous. 468 It w^s afked DEBATES if A. 1789, ever we knew a perfon removed fron^ office by realon of ficknefs or ignorance ? If there never was fuih a cale, it is perhaps neverthelefs proper that they ll'ould be ren->oved fur thole reafons ; and we Ihall dq weft to eftabliOi rhe pr'Hciple. Suppofe your fecreiary of foreign affairs rendered incapa- ble of thought or adion by a paralytic llroke I aik whether : there would be any propriety m keeping fuch a perfon in office, and whether the falus populi the firil objed of re- publican governments does not abfolutely demand his dif* inilfion? Can it be expe<3ed that the prtlident isrefponfible for an officer under thefe circumftances, although when he went into office he might have been a wife and virtuous man, and the prefident well inclined to rifle his own repu- tation upon the integrity and abilities of the perfon? I conceive it will be improper to leave the determination of this queftion to the judges. There will be fome inde- licacy in fubjecting the executive aftion in this particular to a fuit at law ; and there may be much iiKonvenience if the prefident does not exercife this prerogative until it is decided by the courts of juftice. From thefe conliderations, the lafety ef the people, the fecurity of this houfe, and the adherence to the Ipirit of theconltitution, I am difpofed to think the claufe proper; and as fome doubts refpedting the conliruftion of the confti- tution has arifen, I think ic aifo necelfary ; iherefore, | hope they w^\\] remain. Mr. Smith (of South-Carolina). I have attended to the arguments of the gentlemen who oppofe the motion for ftciking out • and I apprehend that their reafoning is not perfedtiy confiltent. 1 he conftruc- <flion of fome gentlemen is, that the power of removal is given to the prefident by the conftitution. Others are of opinion that the conllitution is iilent ; and therefore the houfe ought to give it. To oppofe thefe adverfe argu- ments, I muft return to my ftrong ground on which my opponents dare not venture. I (tate again, if the conftitu- tion has given the power, it is unneceflary to give it here | or it it has not given it, we have no right to confer it, be- caufe it is not within the enumerated powers delegated to cpngrefs. Gentlemen proper to give a legifia- liave faid that it is ?ive conifrudion of 1 differ with them the conftitution. on tfiis point 1 think it an infringement on the powers of : ihe judiciary. It is faid we ought not to blend the |e^| A.i7^9- Of C O N G R £ S S. 469 giflative, executive or judiciary powers, farther than is done by theconftitution ; and yet the advocates for prefer- ving each department pure and untouched by the others, call upon this houfe to exercife the powers of the judges in expounding the conftitution ; what authority has this houfe to explain the law? but if it has this privilege, the fenate is alio inverted with it as part of the legiflatnre, and in exercifing it on the prefent queftion, we Ihail be likely to differ ; ^f the conftitution is filent and gentlemen admit this, it is polTible the fenate may view it with a favorable eye to their own right, and rejeft the bill on account of this claufe. A great deal of inifchief has arifen in the fe- yeral ftates, by the legiQatures undertaking to decide con- ititutional queftions : Sir, it is the duty of the Icgiflature to make laws, your judges are to expound them. It has been laid, that cafes of impeachment do not ex- tend to officers who are indolent or delirious. 1 faid be- fore, that if a perfon became indolent he will negledl his duty, ^ind for that caufc 1 preiume he may be inipcached. Gentlemen have found out ihac impeachment is a tedious procefs ; 1 apprehend the perfon who is impeached will not think it a dilatory procefs, but fuch an one as is wife- ly inferted in the conftitution for the protedion of his per- fon and property. The delay of which gentkmen com- plain, is the greateft bulwark of liberty. Our anceftors who were tenacious of their privileges, guarded them in the beft manner they could devife to prevent the inroads of defpotifm. As well may ge.ntleii en complain of the tedious procefs in other criminal cafes, by indictment of a grand jury, and trial by a petit jury. I hope it is not contemplated, if it is 1 hope never to fee adopted in this country a {'ummary procefs, to hurry on judgment without refledion. Such dodrine may fuit the meridian of Turkey, where a cadi can give the order and the bov^ftring at the fame moment. If the conftitution does not extend to infanity or difiibi- lity by reafon of ficknefs, then let the law declare him re- moved until his recovery, but gentlemen's arguments go to prove that the conftitution authorifes the removal for this reafon ; why the fame argument would apply to the prefident and vice-prefident, it they were to become deli- rious, yet I thiuk they could not conftitutionaliy be remo- ved for fuch a caufe. • The conftitution declares that an officer Ihall be removed by impeachment for treafon, bribery, or ot|ier high crime* 470 DEBATES A 1789. and mlfdemeanors ; yet the doftrine of gentlemen will enable the preUdent or the prelide^it witli the advice of the lenate to inflidl the puniihinent withour trial, when the confUtution requires it to be done on impeathnienr and con- viftion, l^his appears to ine fo uicijafiltent, that 1 can by no means be reconciled to it. If this is wrong in the con- fiitution, it may be proper to amend it in that particular, and when the fubjei!^ of amend iients is taken up, let con- grefs recommend it with the other improvements to that iyJlein ; but tve cannot now proceed on this idea For my part I think under the conititution as it now Hands we have no other way 10 remove an officer than by impeach- "ixieht. "I'he gentleman from Virginia has faid, that the power of removal is executive i)i its riature. I do not believe this to be the cafe. I have turned over the conftitutions of mofi of the itates, and I do not find that any of them have granted this power to the governor. In fome in- llanccE 1 find the executive niagiitrate fufpends, but none of them have the right to remove officers ; and I take it that the conltitution of the United States has diftributed the powers of government on the fame principles which moit of the ftate coiiltituiions have adopted. For it will not be contended, but the Itate governmenrs furniihed the niembei^s c^f the late convention with thefkeleton of thi^ con'ititudon. 'The gentlemen hsve obferved, that it wouM be danger- ous if the prtiident h^d no-' this power. But is there not danger in nviK^iig your fecretary of foreign afTairs depen- dvj)t upon the will av.d j^leafure of the prelident ? Can '^enilenieii fee the da-igeron one fide only ? Suppofe the prelident averfe to a ju(i and honorable war which con- grefs liave embarked in, can he liOt countenance the fecre- tary at \\ar (for it is in contemplation to eltabliih inch an officer) in the wafte of public Ifores, and mifapphcation of the fupplies ? Nay, cannot he dragoon your officer into a compliance with his deligns, by threatening him with a removal by which his reputation ar.d property wou'd be deilroyed ? If the officer was eilabliijitd on a better tenure he would dare to be honell ; he would know him- felf invulnerable in his integrity, and defy the Ihafrs of malevolence, though aimed with Machaevilian policy. He "vvould be a barrier to your executive officer, and lave the ihue from ruin. But; Mr. chairman, the argument does not turn upon A. 1789. O F C O N G R E S S. '^yi the expediency of the me&fure. Ihe great queftion is with refped to its conftitutionality. And as yet I have heard no argument advanced fuftciently cogent to prove to my mind that the conftituiicn warrants luch a difpofition of the power of removal ; and until 1 am convinced that is both expedient and conftitutioiial, I cannot agree to it. Mr. Gerry. Some gentlemeti confider this as a queftion of policy • but to me it appears a queltion of conltitutionality, and I prefume it will be deterriiined on that point alone. T he beft arguments I have htard urged on this occalion, came from the honourable gentleman from Virginia (Mr. Madi- fon). He fays the conltiiution has veiled the executive power in the prefident ; and that he has a right to exercife it under the qualifications therein niade. tie lays it down as a maxim, that the conlhtution velting in the prefident the executive power, natuially vefts him with the power of appointment and removal. Now 1 would be glad to know from that gentleman by what means we are to decide this queftioii. Is his maxim fupported by precedent drawn from the pradice of the individual Hates ? The dire^H: contrary is eftablifhed. In many cafes the executive are rot iii particular vefted wiih me power of appointment ; and do they exercife that pow er by virtue of their office. It will be found that other branches of the government make appointments. How then can gentlemen afTert that the powers of appointment and removal are incident to the executive departpient of government ? 1 o me it appears at beft but problematical. Neither is it clear to me that the power that appoints naturally pofleffes the power of removal. As we have no certainty on either of thefe points, I think we mul^ coufiJcr it as eltaohllied by the conltitution. It has been argued that if the power of removal vefls in the prefident alone, it annuls or renders nugatory the claule in the conltitution, which directs the concurrente of the fenate in the cafe of appointiiient ; it behoves us not to adopt principles fubverlive of thofe eilablifhed by the conftitution. it has been frequently afiertcd on former oc- caiions, that the fenate is a permanent body and was fo conlfrufted in crder to give durability to public nieafures. If they are not abfolutely permanent, they are