CHAPTER White of Virginia, Gerry, Huntington of Connecticut, I: Livermore of New Hampshire, Jackson, and others. 1789. Madison, Benson, Goodhue, Lawrence, and Vining main

tained that, as the responsible executive head of the government, the president had, and ought to have, the constitutional power of removing all executive officers at pleasure. The bill for establishing the Department of Foreign Affairs being under consideration, this debate was earnestly renewed, and was kept up for four days. Smith of South Carolina now joined the party who insisted on the right of the Senate to be consulted on the question of removals. Sherman was inclined to the same opinion; but as the president was the head of the executive, the heads of the departments might, in that view, be considered as "inferior officers," and their appointment and removal subject, therefore, under the Constitution, to be regulated by law. He was, however, decidedly opposed to giving the president the power of removal. Ames, Boudinot, Baldwin, and Scott, seconded by those who had taken the same side in the former debate, insisted on the president's constitutional right; and they dwelt with great emphasis on the absolute necessity of such a power, if the president were to be held responsible for the execution of the laws. "The decision now made," said Madison, "will become the permanent exposition of the Constitution, and on that permanent exposition will depend the genius and character of the whole government."

It was suggested by those opposed to the president's power of removal that a suspending power during the vacation of the Senate might answer all necessary purposes. But where, it was asked, did those who denied the president's constitutional power to remove discover the constitutional power to suspend? That power,

be

sides, was totally insufficient.

How awkward would be CHAPTER

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the predicament of the president to have officers forced back upon him by the Senate whom he had suspended, 1789. and whom they might still refuse to remove.

Sedgwick was inclined to think that as Congress had

the power of creating these offices, it might also have,

as an incident, the power of fixing the period of the of fice and the method of removal. That power, however, for reasons of expediency, he was strongly inclined to vest in the president. Allowing that the power of removal appertained to the power of appointing, that did not sustain the claim set up for the Senate. The advice

and consent of the Senate was made necessary as a preliminary, but the power of appointing was in the president alone.

It was suggested by Scott, in answer to those who exaggerated the danger of giving the power of removal to the president, "that the president, above all the officers of the government, was justly to be denominated 'the chosen man of the people. He was elected by the voice of the whole Union. The senators, on the other hand, were the representatives of the state sovereignties, the very bodies which stood most in the way of the ef fectual operation of the federal government. How, then, could the Senate be held up as more nearly related to the people than the president, when no other man in the United States held office by the concurrent voice of the whole people?"

The House refused, by a vote of thirty-four to twenty, to strike out the clause giving the power of removal to the president. But afterward another difficulty was raised; for, if the president had this power under the Constitution, how could the House undertake to confer it upon him? To avoid this difficulty, Benson proposed

I.

CHAPTER to strike out the clause in question, and to provide in another section that whenever the secretary "should be re1789. moved by the president," the custody of the papers should devolve on the chief clerk. Much to the chagrin of the opposition, this recognition of the president's power of removal prevailed, and the bill, though denounced by Sumter, who had just taken his seat, as subversive of the Constitution and destructive of the liberties of the people, passed to be enacted by a vote of twenty-nine to twenty-two.

In the Senate, this legislative exposition of the power of the president as to removals from office was carried only by the casting vote of the vice-president. Though, like all other powers, liable to serious abuses, this right of removal seems essential to that concentration of executive authority, without which the action of the government might constantly be liable to be defeated by its own officers. Loud complaints have occasionally been made of its exercise, but the right itself has never seriously been called in question.

The office of Secretary of the Treasury, which it was necessary should be filled at once, was given to Alexander Hamilton, of whose penetrating judgment and superior executive abilities the president had enjoyed ample experience, while employing his services as an aidde-camp during the Revolutionary war. Since that period Hamilton had risen to the head of the New York bar, adding thus to his natural sagacity and his previous acquirements that knowledge of the law so essential to his new position. Knox was continued in office as Secretary of War. The Department of State remained for the present unfilled, but Jay continued to discharge the du ties of it.

While the House was employed on the Revenue Bills,

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the Senate had taken in hand the important matter of. CHAPTER the Federal Judiciary. A bill on that subject, drafted by Ellsworth, was, after some amendments, concurred 1789. in by the House. By the provisions of this act, the Supreme Court of the United States was to consist of a chief justice and five associate judges, to hold two sessions annually at the seat of government. The jurisdiction of this court, so the Constitution required, was, except in one or two specified cases, entirely appellate. For the trial of cases in the first instance, two sets of tribunals were instituted, called District Courts and Circuit Courts.

.. Each state was made a district, as were also Kentucky and Maine; each district to have a judge of its own, to hold four courts annually, besides such special ones as might be found convenient. These district courts had cognizance of all civil cases of admiralty and maritime jurisdiction, including cases of seizure under the revenue laws, and of all suits for penalties and forfeitures under the laws of the United States. Their jurisdiction also extended to all lesser crimes against the United States; and, concurrently with the state courts, to all suits to which the United States were a party, and the matter in dispute, exclusive of costs, exceeded one hundred dollars in value. All trials of questions of fact, except in civil cases of admiralty and maritime jurisdiction, were to be by jury. These district courts constituted, in fact, the revenue courts of the federal government, being the successors of the old royal admiralty courts, after which they were, in a great measure mod eled, and whose forms of practice they continued to follow,

The districts, except those of Maine and Kentucky, the judges of which were to have, in addition to their other powers, all the authority of circuit courts, were

CHAPTER grouped together into three circuits. Circuit courts I. were to be held semi-annually in each district (besides

1789. special courts when necessary for the trial of criminal cases), by any two judges of the Supreme Court, with whom was also to sit the judge of the district, any two of the three to constitute a quorum. These courts were to have jurisdiction, concurrent with the state courts, of all suits of a civil nature at common law or in equity between citizens of different states, or to which the United States or an alien was a party, the matter in dispute exceeding five hundred dollars in value. In criminal matters their jurisdiction was to be concurrent with that of the district courts, and exclusive as to all higher crimes. They were also to entertain appeals in all cases decided in the district courts, where the matter in dispute, if it belonged to the admiralty jurisdiction, amounted to three hundred dollars in value, or to fifty dollars, exclusive of costs, in ordinary civil actions. Juries, in all cases where they were needed, whether in the circuit or district courts, were to be summoned in accordance with the state usage of the district in which the court was held.

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An appeal lay, as to all points of law, in all cases where the matter in dispute amounted to two thousand dollars, from the circuit courts to the Supreme Court of the United States; and to this court was also given authority, in certain specified cases, to send writs of error to the state courts, and to revise, and, if error appeared, to reverse their decisions. But the only cases in which this high power could be exercised were those in which had been brought in question the validity of a treaty or of a statute of the United States, or the validity of acts claimed to have been done by virtue of such treaty or statute, and the decision had been against their valid