The writings of James Madison, comprising his public papers and his private correspondence, including numerous letters and documents now for the first time printed. |
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JUNE 18. POWER OF REMOVAL FROM OFFICE. |
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 | The writings of James Madison, |  |
JUNE 18. POWER OF REMOVAL FROM OFFICE.
The question now seems to be brought to this, whether it
is proper or improper to retain these words in the clause, provided
they are explanatory of the Constitution. I think this
branch of the Legislature is as much interested in the establishment
of the true meaning of the Constitution, as either
the President or Senate; and when the Constitution submits
tenure the office should be held; and whether it should depend
upon the concurrence of the Senate with the President,
or upon the will of the President alone; because gentlemen
may hesitate in either case, whether they will make it for an
indefinite or precise time. If the officer can be removed at
discretion by the President, there may be safety in letting it
be for an indefinite period. If he cannot exert his prerogative,
there is no security even by the mode of impeachment;
because the officer may intrench himself behind the authority
Government. In this case, the question of duration would
take a different turn. Hence it is highly proper that we and
our constituents should know the tenure of the office. And
have we not as good a right as any branch of the Government
to declare our sense of the meaning of the Constitution?
Nothing has yet been offered to invalidate the doctrine,
that the meaning of the Constitution may as well be ascertained
by the legislative as by the judicial authority. When
the question emerges as it does in this bill, and much seems
to depend upon it, I should conceive it highly proper to make
a legislative construction. In another point of view it is
proper that this interpretation should now take place, rather
than at a time when the exigency of the case may require the
exercise of the power of removal. At present, the disposition
of every gentleman is to seek the truth, and abide by its
guidance when it is discovered. I have reason to believe the
same disposition prevails in the Senate. But will this be the
case when some individual officer of high rank draws into
question the capacity of the President, with the Senate, to effect
his removal? If we leave the Constitution to take this course,
it can never be expounded until the President shall think it
expedient to exercise the right of removal, if he supposes he
has it; then the Senate may be induced to set up their pretensions.
And will they decide so calmly as at this time,
when no important officer in any of the great departments is
appointed to influence their judgments? The imagination of
no member here, or of the Senate, or of the President himself,
is heated or disturbed by faction. If ever a proper
moment for decision should offer, it must be one like the
present.
I do not conceive that this question has been truly stated
by some gentlemen. In my opinion it is not whether we
shall take the power from one branch of the Government and
give it to another; but the question is, to which branch has
the Constitution given it? Some gentlemen have said, that it
the Government, we must apply to the people for it, and
obtain it by way of amendment to the Constitution. Some
gentlemen contend, that although it is given in the Constitution,
as a necessary power to carry into execution the other
powers vested by the Constitution, yet it is vested in the
Legislature. I cannot admit this doctrine either; because it
is setting the Legislature at the head of the Executive branch
of the Government. If we take the other construction of the
gentleman from South Carolina, that all officers hold their
places by the firm tenure of good behaviour, we shall find it
still more improper. I think gentlemen will see, upon reflection,
that this doctrine is incompatible with the principles of
free Government. If there is no removability but by way of
impeachment, then all the Executive officers of Government
hold their offices by the firm tenure of good behaviour, from
the Chief Justice down to the tide waiter.
[Mr. Smith interrupted Mr. M., and said that he had admitted
that inferior officers might be removed, because the
Constitution had left it in the power of the Legislature to
establish them on what terms they pleased; consequently, to
direct their appointment and removal.]
Mr. Madison had understood the gentleman as he now
explained himself. But still he contended, that the consequences
he had drawn would necessarily follow; because there
was no express authority given to the Legislature in the Constitution
to enable the President, the courts of law, or heads
of the departments, to remove an inferior officer; all that
was said on that head was confined solely to the power of
appointing them. If the gentleman admits that the Legislature
may vest the power of removal, with respect to inferior
officers, he must also admit that the Constitution vests the
President with the power of removal in the case of superior
officers; because both powers are implied in the same words.
This President may appoint the one class, and the Legislature
may authorize the courts of law or heads of departments to
power of removal vests in the President, or President and
Senate, the arguments which I urged yesterday, and those
which have been urged by honorable gentlemen on this side
of the question for these three days past, will fully evince
the truth of the construction which we give, that the power
is in the President alone. I will not repeat them, because
they must have full possession of every gentleman's mind. I
am willing, therefore, to rest the decision here; and hope
that it will be made in such a manner as to perpetuate the
blessings which this Constitution was intended to embrace.[121]
TO SAMUEL JOHNSTON.
I lost no time in handing to the President the address inclosed in
your favor of the 22 of May, and have postponed an acknowledgement
of the latter in expectation of being able at the same time to
cover the President's answer. This has been and continues to be
delayed by a very serious indisposition, we hope he is not in much
danger, but are by no means without our fears also. His disorders
commenced in a fever which has greatly reduced him, and is terminating
in a very large tumor which, unless it degenerate itself into a dangerous
malady, will probably be remedial.
In the enclosed paper is a copy of a late proposition in Congress on
the subject of amending the Constitution. It aims at the two-fold
object of removing the fears of the discontented and of avoiding all
such alterations as would either displease the adverse side, or endanger
the success of the measure. I need not remark to you the hazard of
attempting anything of a controvertible nature which is to depend on
the concurrence of 2/3 of both Houses here, and the ratification of 3/4 of
the State Legislatures. It will be some time before the proposed
amendments will become a subject of discussion in Congress. The
bills relating to revenue, and the organization of the Judiciary and
Executive Departments, being likely to remain for some time on hand.
This delay proceeds from the intricacy and partly from the novelty of
the business. At every step difficulties from one or another of these
sources arrest our progress. After the first essays the work will
become every day more easy.
Among other difficulties, the exposition of the Constitution is frequently
a Copious Source, and must continue so untill its meaning on
all great points shall have been settled by precedents. The greatest
part of the week past has been consumed in deciding a question as to
the power of removal from offices held during pleasure. Four Constructive
doctrines have been maintained 1, that the power is subject
to the disposal of the Legislature. 2 that no removal can take place
otherwise than by impeachment. 3 that the power is incident to that
of appointment and therefore belongs to the President & Senate.
4 that the Executive power being generally vested in the President
every power of an Executive Nature, not expressly excepted is to be
referred thither, and consequently the power of removal, the power
of appointment only being taken away.
In support of each of these constructions the Argumenta ab inconvenientibus
have been elaborately dealt out against the others. The
decision in a Committee of the whole on the Office of Foreign Affairs
has adopted the 4th opinion as most consonant to the frame of the
Constitution, to the policy of mixing the Legislature & Executive
honors as little as possible, and to the responsibility necessary in the
head of the Executive Department.
(Papers of Gov. Samuel Johnston of North Carolina.—N. C. Historical
and Genealogical Register, vii., 105.)
| The writings of James Madison, | |