University of Virginia Library

JUNE 16. POWER OF REMOVAL FROM OFFICE.

If the construction of the Constitution is to be left to its
natural course, with respect to the Executive powers of this
Government, I own that the insertion of this sentiment[119] in

law may not be of material importance, though, if it is nothing
more than a mere declaration of a clear grant made by the
Constitution, it can do no harm; but if it relates to a doubtful
part of the Constitution, I suppose an exposition of the
Constitution may come with as much propriety from the
Legislature, as any other department of the Government. If
the power naturally belongs to the Government, and the
Constitution is undecided as to the body which is to exercise
it, it is likely that it is submitted to the discretion of
the Legislature, and the question will depend upon its own
merits.

I am clearly of opinion with the gentleman from South
Carolina, (Mr. Smith,) that we ought in this, and every other
case, to adhere to the Constitution, so far as it will serve as a
guide to us, and that we ought not to be swayed in our decisions
by the splendor of the character of the present Chief
Magistrate, but to consider it with respect to the merit of
men who, in the ordinary course of things, may be supposed
to fill the Chair. I believe the power here declared is a high
one, and, in some respects, a dangerous one; but, in order to
come to a right decision on this point, we must consider both
sides of the question: the possible abuses which may spring
from the single will of the First Magistrate, and the abuse
which may spring from the combined will of the Executive
and Senatorial disqualification.

When we consider that the First Magistrate is to be appointed
at present by the suffrages of three millions of people,
and, in all human probability, in a few years' time by double
that number, it is not to be presumed that a vicious or bad
character will be selected. If the Government of any country
on the face of the earth was ever effectually guarded against
the election of ambitious or designing characters to the first
office of the State, I think it may with truth be said to be
the case under the Constitution of the United States. With
all the infirmities incident to a popular election, corrected by
the particular mode of conducting it, as directed under the

present system, I think we may fairly calculate that the
instances will be very rare in which an unworthy man will
receive that mark of the public confidence which is required
to designate the President of the United States. Where the
people are disposed to give so great an elevation to one of
their fellow-citizens, I own that I am not afraid to place my
confidence in him, especially when I know he is impeachable
for any crime or misdemeanor before the Senate, at all times;
and that, at all events, he is impeachable before the community
at large every four years, and liable to be displaced if his
conduct shall have given umbrage during the time he has
been in office. Under these circumstances, although the trust
is a high one, and in some degree, perhaps, a dangerous one,
I am not sure but it will be safer here than placed where some
gentlemen suppose it ought to be.

It is evidently the intention of the Constitution, that the
first Magistrate should be responsible for the Executive department;
so far therefore as we do not make the officers who
are to aid him in the duties of that department responsible to
him, he is not responsible to his country. Again, is there no
danger that an officer, when he is appointed by the concurrence
of the Senate, and has friends in that body, may choose
rather to risk his establishment on the favor of that branch,
than rest it upon the discharge of his duties to the satisfaction
of the Executive branch, which is constitutionally authorized
to inspect and control his conduct? And if it should happen
that the officers connect themselves with the Senate, they
may mutually support each other, and for want of efficacy
reduce the power of the President to a mere vapor; in which
case, his responsibility would be annihilated, and the expectation
of it unjust. The high Executive officers, joined in
cabal with the Senate, would lay the foundation of discord,
and end in an assumption of the Executive power, only to be
removed by a revolution in the Government. I believe no
principle is more clearly laid down in the Constitution than
that of responsibility. After premising this, I will proceed

to an investigation of the merits of the question upon Constitutional
ground.

I have, since the subject was last before the House, examined
the Constitution with attention, and I acknowledge that
it does not perfectly correspond with the ideas I entertained
of it from the first glance. I am inclined to think, that a
free and systematic interpretation of the plan of Government
will leave us less at liberty to abate the responsibility than
gentlemen imagine. I have already acknowledged that the
powers of the Government must remain as apportioned by the
Constitution. But it may be contended, that where the Constitution
is silent, it becomes a subject of legislative discretion;
perhaps, in the opinion of some, an argument in favor
of the clause may be successfully brought forward on this
ground: I, however, leave it for the present untouched.

By a strict examination of the Constitution, on what appears
to be its true principles, and considering the great
departments of the Government in the relation they have to
each other, I have my doubts whether we are not absolutely
tied down to the construction declared in the bill. In the
first section of the first article, it is said, that all Legislative
powers herein granted shall be vested in a Congress of the
United States. In the second article, it is affirmed that the
Executive power shall be vested in a President of the United
States of America. In the third article, it is declared that
the Judicial power of the United States shall be vested in
one Supreme Court, and in such Inferior Courts as Congress
may, from time to time, ordain and establish. I suppose it
will be readily admitted, that so far as the Constitution has
separated the powers of these great departments, it would be
improper to combine them together; and so far as it has left
any particular department in the entire possession of the
powers incident to that department, I conceive we ought not
to qualify them further than they are qualified by the Constitution.
The Legislative powers are vested in Congress,
and are to be exercised by them uncontrolled by any other

department, except the Constitution has qualified it otherwise.
The Constitution has qualified the Legislative power, by
authorizing the President to object to any act it may pass,
requiring, in this case, two-thirds of both Houses to concur
in making a law; but still the absolute Legislative power is
vested in the Congress with this qualification alone.

The Constitution affirms, that the Executive power shall be
vested in the President. Are there exceptions to this proposition?
Yes, there are. The Constitution says, that in appointing
to office, the Senate shall be associated with the
President, unless in the case of inferior officers, when the law
shall otherwise direct. Have we a right to extend this exception?
I believe not. If the Constitution has invested all
Executive power in the President, I venture to assert that the
Legislature has no right to diminish or modify his Executive
authority.

The question now resolves itself into this, Is the power of
displacing an Executive power? I conceive that if any
power whatsoever is in its nature Executive, it is the power
of appointing, overseeing, and controlling those who execute
the laws. If the Constitution had not qualified the power of
the President in appointing to office, by associating the Senate
with him in that business, would it not be clear that
he would have the right, by virtue of his Executive power,
to make such appointment? Should we be authorized, in
defiance of that clause in the Constitution,—"The Executive
power shall be vested in a President," to unite the Senate,
with the President in the appointment to office? I conceive
not. If it is admitted that we should not be authorized to do
this, I think it may be disputed whether we have a right to
associate them in removing persons from office, the one power
being as much of an Executive nature as the other; and the
first only is authorized by being excepted out of the general
rule established by the Constitution, in these words, "the
Executive power shall be vested in the President."

The Judicial power is vested in a Supreme Court; but will

gentlemen say the judicial power can be placed elsewhere,
unless the Constitution has made an exception? The Constitution
justifies the Senate in exercising a judiciary power in
determining on impeachments; but can the judicial power be
further blended with the powers of that body? They cannot.
I therefore say it is incontrovertible, if neither the Legislative
nor Judicial powers are subjected to qualifications, other than
those demanded in the Constitution, that the Executive
powers are equally unabateable as either of the others; and
inasmuch as the power of removal is of an Executive nature,
and not affected by any Constitutional exception, it is beyond
the reach of the Legislative body.

If this is the true construction of this instrument, the clause
in the bill is nothing more than explanatory of the meaning of
the Constitution, and therefore not liable to any particular
objection on that account. If the Constitution is silent, and
it is a power the Legislature have a right to confer, it will
appear to the world, if we strike out the clause, as if we
doubted the propriety of vesting it in the President of the
United States. I therefore think it best to retain it in the
bill.