400

POWER OF REMOVAL.

[CHAP. V. suppose that, after an officer has been suspended, if the Senate still decides on keeping him in office, do not all the evils which the suspension was meant to avoid, recur with redoubled force, by the irritations which have been increasing in the interim?

The general rule being that executive powers are to be exercised by the President, the concurrence of the Senate in appointing must be regarded as an exception, and exceptions should always be construed strictly.

Nor is it admitted that this is purely a judicial question. The other branches of the government have the same right to pass judgment on their own powers, as the judiciary, and very often they cannot discharge the functions assigned to them, without making these decisions for themselves.

This construction of the Constitution, they further urged, receives strong confirmation from considerations of policy. Unless the Executive has the power of appointing his officers, which comprehends that of removal, his responsibility for the faithful execution of the laws is at an end; the acts of the Executive are without harmony or consistency; and the power which was meant to be exclusively given to the President, of nominating his officers and deputies, is thus rendered unavailing.

It is denied that the Senate is more worthy of the public confidence than the President, since he is chosen. virtually by the people, and they by the deputies of the people. It will be rare that he will have any motive for removing a good man from office, and even if he should, the public mischief would be far greater for bad men, by the influence of intrigue and faction, to be retained, especially as we must admit that when a good man has been removed, another as good may be put in his place,

1789.]

POWER OF REMOVAL.

401

by means of the check exercised by the Senate. But again: should he abuse the power of removal, besides the public odium he would incur, he would be liable to impeachment.

On the question whether the words "removable by the President," should be struck out, it was decided in the negative by thirty to twenty-four.

Subsequently the language was changed, so as to avoid the appearance of a grant of power by the Legislature; whereupon a motion was again made to strike out the words, "removable by the President," and insert, "whenever the principal officer shall be removed by the Presi dent;" which was then carried by thirty-one votes to nineteen-some voting in the affirmative, because they did not consider officers so removable; and others, because they would not seem to grant a power already given by the Constitution.

In addition to those who took part in the first discussion, in the subsequent more warm and elaborate debates, Messrs. Ames, Sedgwick, Hartley, Scott, Lee, and Baldwin, spoke in favor of the President's power of removal; while Messrs. Huntingdon, Sherman, and Stone, were opposed to it.

As a further answer to those who thought the consent of the Senate necessary to the removal of an officer, and who relied mainly on the necessity of that consent to an appointment, it may be remarked that there is a wide difference between the case in which the power is expressly given, and that in which it is implied. For, by the former, the Constitution requires the joint consent both of the President and Senate to every appointment, and gives to the President exclusively the yet more important power of selection; thus making it an express fundamental principle, that no man should be VOL. I.-26

402

CONSTRUCTION OF CONSTITUTIONS.

[CHAP. V. appointed to office without the approbation of both President and Senate, and giving to him the largest share in the appointment. If, however, the President discovers that he has been mistaken in an officer's qualifications, or if friendly relations do not continue between him and the officer, and he wishes that officer removed, then, should the Senate have the power of preventing the removal, a man would be kept in office against the consent of the President, and thus the fundamental principle which requires the consent of both is violated; and his power, which is by far the greatest, and most important to a faithful co-operation in the execution of the laws, is defeated: whereas, if the President alone can remove, then, in any subsequent appointment, the consent of the Senate is still required, and that fundamental principle is preserved.

This was one of the first cases, greatly multiplied since that time, in which men in Congress and out of it dif fered about the meaning and construction of the Constitution recently made; and it would seem from all experience that, in every case in which a rule for future action is prescribed, from the last will and testament of an individual to a national Constitution, it is beyond the wit of man to devise any form of words which may not give rise to doubt and disputation. This inherent ambiguity in all written rules arises partly from the imperfection of language, by which the same words convey different ideas to different minds; and partly because cases are ever arising, which, not being foreseen by those who made the rule, there is some uncertainty in its application; but, more than all, the great source of collision in the interpretation of written rules is, that the wishes and interests of men greatly influence their opinions; and, as their wishes and interests clash, so must their opinions.

1789.]

TREASURY DEPARTMENT.

403

From that time, the question of the President's power to remove officers was considered as settled, and the subject was not again seriously discussed in the National Legislature until the administration of General Jackson, when some of the ablest men in Congress expressed doubts about the correctness of the principle decided in 1789, and were disposed to agitate it anew.

How far their sentiments on this occasion may have been biassed by party or personal considerations, this is no fit place to inquire.

When the committee proceeded to the consideration of the Treasury Department, Mr. Gerry strongly urged the advantage of putting the treasury under the management of commissioners, rather than under that of a single individual, on the several grounds that scarcely any one could be found who had the requisite skill and knowledge; that such an officer would be exposed to strong temptations to use the public money, which, if so disposed, he might do without control; and lastly, that, even if he proved incorruptible, he could not escape suspicion. In support of these views, he referred to the Board of Treasury, and to the single Head of finance, which had been severally tried by the old Congress.

Mr. Wadsworth pronounced that, from his experience, a Board of Treasury was the worst of all institutions, and that it had doubled the public debt; while, on the Superintendent of finance, he bestowed high encomiums.

Messrs. Benson, Baldwin, Madison, and Boudinot, were all in favor of a single head to the department.

Mr. Gerry's plan of a Treasury Board was rejected. Mr. Madison's resolutions for the three Departments, of Foreign Affairs, Treasury, and War, having been adopted, a committee of a member from each State was appointed to prepare bills for the regulation of those departments.

404

TREASURY DEPARTMENT.

[CHAP, V.

When the bill for the establishment of a Treasury Department was under consideration, Mr. Page objected to that part which required the Secretary "to digest and report plans for the improvement and management of the revenue, and the support of public credit; which he said would prove a dangerous innovation on the constitutional privileges of the House; would create an undue influence; and would establish a precedent which might be extended, until the ministers of the government were admitted on the floor.

His views were enforced by Mr. Tucker, who thought that the duty of the officer should be limited to preparing and reporting estimates of the public revenue and expenditures; and that the proposed duty was inconsistent with that clause of the Constitution which declares that all bills for raising revenue shall originate in the House of Representatives. If plans of revenue are to be prepared and reported to the House, he insisted that the President, who is required to recommend measures to their consideration, was the proper person to suggest them.

Mr. Sedgwick regarded the objections to this bill as groundless; said that the identical words had been used by the former Congress, in 1783, and subsequently when the revenue board was established; and that the public would have been benefited, if the power had been more fully and frequently exercised.

The dangers apprehended from the proposed measure were thought visionary by Messrs. Boudinot, Madison, and Ames, but they were supported by Messrs. Livermore and Gerry; and though the motion to strike out the clause was rejected, it so far prevailed, that the amendment proposed by Mr. Fitzsimmons, to strike out the word "report," and requiring the Secretary only to prepare reports, was adopted by a large majority.