see that any one of these independent departments has more right than another to declare their sentiments on that point.
Perhaps this is an admitted case. There is not one government on the face of the earth, so far as I recollect—there is not one in the United States—in which provision is made for a particular authority to determine the limits of the constitutional division of power between the branches of the government. In all systems, there are points which must be adjusted by the departments themselves, to which no one of them is competent. If it cannot be determined in this way, there is no resource left but the will of the community, to be collected in some mode to be provided by the Constitution, or one dictated by the necessity of the case. It is, therefore, a fair question, whether this great point may not as well be decided, at least by the whole legislature, as by part—by us, as well as by the executive or the judicial. As I think it will be equally constitutional, I cannot imagine it will be less safe, that the exposition should issue from the legislative authority, than any other; and the more so, because it involves in the decision the opinions of both those departments whose powers are supposed to be affected by it. Besides, I do not see in what way this question could come before the judges to obtain a fair and solemn decision; but even if it were the case that it could, I should suppose, at least while the government is not led by passion, disturbed by faction, or deceived by any discolored medium of sight, but while there is a desire in all to see and be guided by the benignant ray of truth, that the decision may be made with the most advantage by the legislature itself.
My conclusion from these reflections is, that it will be constitutional to retain the clause; that it expresses the meaning of the Constitution as it must be established by fair construction—and a construction which, upon the whole, not only consists with liberty, but is more favorable to it than any one of the interpretations that have been proposed.
Mr. GERRY. I am clearly of opinion, with the gentleman last up, that it is of importance to decide this question on its true principles; and am free to declare that I shall be as ready to oppose every innovation or encroachment upon the rights of the executive, as upon those of the legislative. I conceive myself bound to do this, not only by oath, but by an obligation equally strong—I mean the obligation of honor.
I wish, sir, to consider this question so far as to ascertain whether it is or is not unconstitutional. I have listened with attention to the arguments which have been urged on both sides; and it does appear to me that the clause is as inconsistent with the Constitution as any set of words which could possibly be inserted in the bill.
There are two questions relative to this clause—the first, whether the sovereignty of the Union has delegated to the government the power of removal; and the second, to whom? That they have delegated such power has been clearly proved by the gentlemen who advocate the clause—who justly say, if the power is not delegated, the clause in the Constitution, declaring the appointment of judges to be during good behavior, would be nugatory, unless some branch of government could otherwise have removed them from office. As to the second question, it depends upon the first: if the power is delegated, it must vest in some part of the government. The gentlemen will agree that this house has not the power of removal; they will also agree that it does not vest in the judicial: then it must vest in the President, or the President by and with the advice and consent of the Senate. In either of these cases, the clause is altogether useless and
