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

executed ; the laws can.iot be executed but by officers ap- pointed for that purpofe ; therefore thofe who are .oyer I'uch officers naturally poffefs the executive power. If any other doftrine be adiuitted, what is the confequetxe ? You may fet the fenate at the head of the executive de- partment, or you may require that the officers hold their places during the pleal'ure of this branch of the legifla- ture, if you cannot go fo far as to fay we Ihall appoint tbera ; and by this means you link together two branches of the government wliich the prefcrvation of liberty re- quires to be conifantly feparated.. Another fpecies of argument has been urged againft thiS' clsufe. It is fald, that u is improper, or at leaft unnegef- fary to come to any decifion ou this I'ubjedl. It has beer* faid by one gentleman, that it would be officious in tljis branch of the legillature to expound the conftitution, fb far as it relates to tiie diviiion of power between the pret- iident and lenate ; it is incontrovertably of as much impgr- lance to this branch of the government as to any other j. ihat the conltitution ihould be preferved eiitire. It is pur duty, (o far as it depends upon us, to take care that the powers of the conftiiuiion be preferved entire to every department of government ; the breach of the conilitutipij in one point, will facilitate the breach in another 5 a bregck in this point may deltroy that equilibrium hy which the houfe retains it confequence and fhare of power ; tberefor,» we are not chargeable with an officiL.us interfsfenoe j b.e- fides, the bill, before it can have cfFeft, muil be fi!!?,ii;.i«:<:e^ ,19 both thole blanches who are particularly 'jnrcjr«ft^;^.M, Js s. s  ; 5o6 it; DEBATES the fenate may negative, or the prefident may objedt A. 1789. if he thinks it unconftitutional. But the great objedion drawn from the fource to which the laft arguiiients wouid lead- iis is, that the legifiature it- felfhas no right to expound tiie' conftitution ; that where- ever its meaning is doubtful, you mult leave it to take its courfe, until the judiciary is called upon to declare its meaning. I acknowledge, in the ordinary courfe of go- vernment, that the expolition of the laws and conftitution devolves upon the judicial. But, 1 beg to know, upon what principle it can be contended, that any one depart- ment draws from the conltitution greater powers than another, in marking out the limits of the powers of the feveral departments. 1 he conftitution is the charter of the people to the government it fpecifies certain great powers ; as abfoiutely granted, and marks out the departments to exercife them. If the coiiftitntional boundary of either be brought into queftion, I do not fee that any one of thefe independent departments has more right than another to declare their fentiments on that poinr. Perhaps this is an omitted cafe. There is not one go- vernnieint on the f^ce of the earth, fo far as 1 recoiled, there is not one in ihe Uniieci States, in which provifion is made for a particular authority to determine the limits of the coniiitutional divifron of power between the branches of the government. In all f3ltems there ars points which , muft be adjuited' by the departuients themielves, to w hich no one of them is coinpeteut. If it cannot be determined in this way, there is no refourcc left bur the will of the community, to be colleded in I'ome mode to be provided by the conftitution, or one dictated by the neceliity of the cale. It is therefore a fan- qucftiion, whether this great point may not as well he decided, at Icaft by the whole legillature, as by a part, by us as well as by the executive or judicial? As I think it willbe equally conftitutional, I cannot imagine it will be lefy fare, that the expofition liiould iflue from the Icgiiiative authority than any other ; and tlie more lb, be- caufe it involves, in the decilio:^ the opinions of both thofe departi^ents wliofe po^versare iuppofed to be afFeftcd by it. Beiide, I do ncu Ice in what way this queftion could come before the judges, to obtain a fair and Iblemn decifion ; but f ven if it were the cafe that it could, I fhould fuppofe, at leaft while the government is not led by paihon, diilurbed by faftion, or deceived by any difcolourcd medium of light but while there is a delire in aU to i\:.^, and be guided by A.1789. Of CONGRESS. 507 the benignant ray of truth, that the decifion may be made with the molt advantage by the legiOature itlelf. My conclulion from thefe refit dions is, that it will be conditutional to retain the claufe ; that it expreflfes the meaning of the conftitution as muli be eltablilhed by fair conltrudion, and a conltru(Jtion which, upon tlie whole, not only conlilts with liberty, but is more favorable to it than any one of the interpretatioi'.s that have been propofed. Mr. Gerfiy. I am clearly of opinion vvith the gentleman lall up, that it is of importance to decide this queltion on its true princi- ples ; and am free to declare, that 1 Ihall be as ready to oppole every innovation or encroachment upon the rights of the executive as upon thofe of the legiflative. I con- ceive inyfelt bound to do thii, not only by oath, but by an obligation equally itrong, I njean the (>oligation of honor. 1 wi(h, lir, to conlider this qu-- (tion i^o far as to afcertain, whether it is or is not uncoiiltitutioiial. i have hiteiicd with attention to the arguments which have been urged on both fides ; and it does appear to Uie that the chiufe is as as inconfiltent with the conftitution as any fee of v.ords which could poilibly be inferted in the bill. 1 here are two queitions relative to this clanfe ; The firft, whether the iovereignty of tke union has delegated to the government the power of removal? And the fe- cond, to whom ? 1 hat they have delegated fuch power has been clearly proved by the gentlemen who advocate the claufe ; who j.ultiy fay, if the power is not delegated, the claule in the conltitution, declanu!:^ the appointment of judges to be daring good t>ehjviour u'ould be nugatory, uiilefs loiiie branch of governmenc could othervvife have removed them from office. As to the {"econd qUeliion it depends upon the firll if the power is delegated it ; mull velt in fome part of the govern ient. The gen- tlemen will agree, that this hou(e has not the power of removal they will alfo agree, that it does not veil in the ; judicial ; thenit muit veil in the prcfident, or the preli- dent, by and with the advice and consent of the fer.ate ; in either of thefe cafes the claufe is altogether uieltfb and nu- gatcry. It is ufelefs if the power veils in the preiidcnt ; becaufe, when the queltion conies before him, he will de- cide upon the prcvifion made in the conltiiution, and not on what is contained in this claufe If the power velts in the : preiident aiid fenate, the fenate will not confent to r.afsthe bill with this chufc in it; tlicrefo; e theattcinpt isnuu,aiory; ^o6 DEBATES A.i78y, but if tlie fenate will alTent to the exercife of the power of removal by the prefident alone, whenever he think pro- per ro u!"e it loj then in that cafe the claufe is, as 1 faid be- lore, botii uielefs and nugatory. The fecond queltion which! propofed to examine, is to "vvhom the power of removal is committed. The gentle- tiien in favor of this claufe, have not Ihewn that, if the cdnfthiclion that the power vefis in the prefident alid fenate is admitted, it will be an iniproper conttrucl:ion. I call on gentlemen to point out the impropriety, if they difcover any. To nie it appears to prelerve the unity of the fcveral claijfes of the conititution ; while their conltruction pro- duces a clalhmg of powers, and renders of none elFedl fome powers the lenate by exprefs grants poflefs, VV hat becomes of their power of appointing^ when the prelident can re- move at difct-etion ? Their power of judging is rendered vain by the prelidcnt's difmiilion for the power of judg- ; jno- implies the power of difmifling, which will be totally iniigniHcant in its operation iftiie prefident can immediate- ly difmifs an officer whon) they have judged and declared innocent. It is faid that the prelident will be fub]e£l to an impeach- ment for difmiffinga good man. This in my mind involves ; sin s-bfurdity. Kow can the houfe impeach the prefident fordoing an a£t which the iegiHaiure ha* fubmitted to his difcretion ? But what conlequence may refuU from giving the preli- dent the abiolute control over ^11 officers ? Among the relf j I prefume he is to have an unlimited control over the nficers of the treafury. 1 think if this is the cafe, you may as well give him at once the appropriation of the revenue ; for of what ufe is it to make laws on this hesd, when the lireHdeiit by looking at the officer can make it his interefl i(» break them ? We may expert to fee inltitutions arifmg tnidcr the control of the revenuej and not of the law. Little then will it atifwer to fay we can impeach the pre- Tidrnt, when he can calily cover all his crimes by an appli- of the revenue to thole who are to try hinj. tacioji This uppHcstioh would certaiiily lie rrade in cafe of a corrupt |;rclident. And ic is againft corrui)tion in him that u c niufl; tr.deavour to guard not ihat \\ c fear any thing from ihe ; -. inUous charader v/ho now fills the executive chair ; he r:> perhaps to be fafer truited with fiich a power than any fnen on earth ; but it is to fecure us agaiuil thole whs f,r,»jv ht'reRf.er obtrude ih.cmfelves into power. i\. 1789. Of C O N G R E S S. 50,9 But ifgive the prefulent the" povver to remove we (though I contend if the conttitution has not given it him there is no power on eanb. that can except the people by an akeration of the conttitution, though 1 will fuppole it for arguiu.ent fake) ; you virtually give him a conhderable poA-er over the appointment, independent of the fenate for -; if the fenate fhould rejed his hril nomination, which will probably be his favorite, he mull continue to nominate until the fenate concur ; then immediately atter the rercis of the fenate, he may remove the officer, and nnroduce his own creature, as he has this power exprefsly by the conlti- tution. The influence created by this circumttance, would prevent his removal from an office which he held by 3 tem- porary appnintnient ironi his patron. I'his has been fuppofed by fonie gentlemen to be £iri omitted cafe, and that congrefs have the power of fupply- ing the defeft. Let gentlemen coniider the ground on ^vhich they tread. If it.is an omitted cafe, an attempt in the legidature to fupply the defec^t will be in faft an attempt to amend the conflitution But this can only be done in the : \vay pointed out by the iifth article of that initruiiient, and an attempt to amend it in any other way nay be a high crime or mifdcmeanor, or perhaps fomething worfe. From this view of our (ituation, gentlemen may perliaps be lead io conient to