« PoprzedniaDalej »
the effect of the confirmation by the Senate removes the officer, and the officer is not removed until that confirmation occurs. He says further, section 1539:
ferior officers' (which appellation probably includes ninety-nine out of a hundred of the lucrative offices in the Government) the remedy for any permanent abuse is still within the power of Congress by the simple expedient of requiring the consent of the Senate to removals in such cases.'
"This was the doctrine maintained with great earnestness by the Federalist; and it had a most material tendency to quiet the just alarms of the overwhelining influence and arbitrary exercise of this prerogative of the Executive, which might prove fatal to the personal independence and freedom of opinion of public officers, as well as to the public liberties of the country. Indeed, it is utterly impossible not to feel that, if this unlimited power of removal does exist, it may be made, in the hands of a bold and designing man of high ambition and feeble principles, an instrument of the worst oppression and most vindictive
vengeance. Even in monarchies, while the councils of state are subject to perpetual fluctuations and changes, the ordinary officers of the Government are permitted to remain in the silent possession of their offices, undisturbed by the policy or the passions of the favorites of the court. But in a republic, where freedom of opinion and action is guarantied by the very first principles of the Government, if a successful party may first elevate their candidate to office and then make him the instrument of their resentments or their mercenary bargains; if men may be made spies upon the actions of their neighbors, to displace them from office; or if fawning sycophants upon the popular leader of the day may gain his patronage, to the exclusion of worthier and abler men, it is most manifest that elections will be corrupted at their very source, and those who seek office will have every motive to delude and deceive the people. It was not, therefore, without reason that in the animated discussions already alluded to it was urged that the power of removal was incident to the power of appointment; that it would be a most unjustifiable construction of the Constitution and of its implied powers to hold otherwise; that such a prerogative in the Executive was in its own nature monarchical and arbitrary, and eminently dangerous to the best interests as well as liberties of the country. It would convert all the officers of the country into the mere tools and creatures of the President. A dependence so servile on one individual would deter men of high and honorable minds from engaging in the public service. And if, contrary to expectation, such men should be brought into office, they would be reduced to the necessity of sacrificing every principle of independence to the will of the Chief Magistrate or of exposing themselves to the disgrace of being removed from office, and that, too, at a time when it might no longer be in their power to engage in other pursuits."
I read yesterday, Mr. President, from a speech of Mr. Webster in 1835. I desire now to read a little more from that same speech in regard to the policy of the exercise of such a power as is claimed for the President:
"The unlimited power to grant office and to take it away gives a command over the hopes and fears of a vast multitude of men. In the main it will be found that power over a man's support is a power over his will. When favors once granted may be withdrawn at pleasure, there is ordinarily little security for personal independence of character.
The power of giving office thus affects the fears of all who are in and the hopes of all who are out; those who are out endeavor to distinguish themselves by active political friendship, by warm personal devotion, by the clamorous support of men in whose hands is the power of reward, while those who are in take care not to be surpassed in such qualities or conduct as will secure favor."
"The consequence of this is, that a competition ensues, not of patriotic labors, but of complaisances, of indiscriminate support of executive measures, of pliant subserviency, and gross adulation.
"The patronage of office, the power of bestowing place and emoluments, creates parties, not upon any principle or any measure, but upon the single ground of personal interest, and thus they form round a leader and go for the spoils of victory; if the party chieftain becomes the national chieftain, he is apt to consider all who oppose him as enemies to be punished, and all who have supported him as friends to be rewarded.
"Blind devotion to a party and to the head of a party thus takes the place of the sentiment of genuine patriotism and a high and exalted state of public duty."
I desire now to refer to one more authority, and I shall relieve the Senate. I refer to the opinion of Judge Story, in his Commentaries, to justify the legislation that is attempted by this provision offered by the Senator from Illinois. He says, on page 405 of volume two, section 1544:
Whether the predictions of the original advocates of the executive power or those of the opposers of it are likely, in the future progress of the Government, to be realized, must be left to the sober judgment of the community and to the impartial award of time. If there has been any aberration from the true constitutional exposition of the power of removal, (which the reader must decide for himself,) it will be diffi
cult, and perhaps impracticable, after forty years' experience, to recall the practice to the correct theory. But at all events, it will be a consolation to those who love the Union and honor the devotion to the patriotic discharge of duty, that in regard to "in
Mr. President, I have occupied too much of the time of the Senate, but the question is an important one. I know perfectly well that this proposition will be attacked all over the country, and it will be declared that it is an effort on the part of the Senate to curb unconstitutionally the power of the Executive. As I stated yesterday, I have no war to make upon the Executive; I have made no war in this body or elsewhere upon the Executive; but I have felt for many years that if this practice is to go on, whenever a President comes into office, of removing all officers who disagree with him in political opinion, however meritorious they may be, however deserving the confidence of the country; if the public offices are to be given as mere rewards for party fealty and without consideration of merit, it will ultimately lead to a destruction of our Government. I believe this as conscientiously as I believe any fact on earth; and it is not for the purpose so especially of curbing the present Executive as to curb any Executive who may come after him that I favor the amendment. The Senator from Maryland said yesterday that this precedent would return to plague the inventors. I hope so. If the next Executive shall be elected, as the present one was, receiving my vote, desire that this same curb shall apply to him, and I pledge the Senator from Maryland that if this proposition is adopted no vote of mine, so long as I hold a place here or elsewhere where I can affect the question, will ever be given to confer upon the President an absolute power of removal.
It is clear that we have the power to legislate on this subject. I have shown it from the contemporaneous history of the Government. I have shown it from the opinions of all the leading men of all political parties. I have shown it from the legislation of the country. It was only three sessions ago that we passed an act in regard to the Comptroller of the Currency, that Mr. Lincoln should not remove him without the consent of the Senate. I know it was modified the session afterward, and it now stands that the President must give his reasons for such removal to the Senate, without retaining for ourselves that power which we rightfully hold of preventing the removal entirely. I cannot doubt that we possess this right.
If this assumed power of removal by the President was a dangerous power in days gone by, how much more dangerous has it now become! I disagree with the Senator from Ohio and the Senator from Maryland that patronage of this character is calculated to weaken the man who holds the power of dispensing it. I think I have shown from the opinions of Judge Story, from the opinions of Mr. Webster, from the opinions of Mr. Calhoun, (which I might read to substantiate the others if it were necessary,) that they believed from circumstances surrounding them at the particular time that it degraded the American character; that it was calculated to make clamorous partisans of the Executive of all men who happened to hold office for fear they might be removed; it took away the independence of those who were in office and made mere slaves and barnacles of those who were out. We see plenty of it now. It is not worth while for us to disguise the fact; we know there is the greatest abundance of it at this day. We know that individuals in office who, judging from their past course, do not at heart agree to the policy of the Executive, have become clamorous advocates of it, and we know also that individuals who are outside have become clamorous advocates of the President's policy for the mere purpose of obtaining office. If any incumbent of any office anywhere in the land stands in opposition to the President's policy, there is somebody ready to take his place, and ready to declare his fealty to the policy of the Administration. Now, I do not
pass on that policy, because it does not legiti mately come in the purview of my argument. I have nothing to do with it on this occasion. I have attempted to examine this question legally and historically, and I think I have show beyond all doubt to the unprejudiced mind that the power proposed to be exerted exists in Congress. Now, are we to exercise it or not? That is the question. Are the circumstances of the country such as to induce us to exercise it? I say they are.
I am not afraid to take my position on this subject. I have nothing to ask from the present Executive in the way of patronage; and I can safely express the opinion here that if I had the President would not grant it. I am satisfied from various appointments that have been made in my own State, and from appointments that I understand are to be made in that State, that nothing I could say would have any influence whatever. Gentlemen may say that is the reason why I insist upon this proposition. We have had a bitter contest in the State of Missouri; we have had a bitter contest in this nation; it has been a contest for the life of the nation itself; and if patronage is to be distributed, I for one am frank to say that if it is in my power to prevent its going into the hands of those who, during the last four or five years have advocated a policy antagonistic to my own and antagonistic to the nation, to the existence and salvation of liberty on this continent, I will prevent that.
I do not wish to be misunderstood. I do not wish gentlemen to misunderstand the posi tion I occupy here. I am frank. I have nothing to ask of anybody; I am indebted to nobody; I feel dependent on nobody; but I desire to see the fruits of the victory we have achieved in this late contest garnered up and kept in the future for the preservation of liberty and of freedom in this nation, and that they shall not turn to ashes upon our lips. I do conscientiously believe that the policy entered upon by the President is well calculated to dash the hopes of the Union men of this nation. I have often said, and I now take occasion to repeat, that it is not my belief that the President intends by his course of policy, whatever it may be, to put under his heels the Union men of this land, and to build up the old rebel party. I have never so said, nor do I now say it; but I say that the effect of his policy is just that thing and nothing else. He has adopted a policy for the restoration of the southern States. Congress claims to have something to do with it; the President thinks not; and he persists in forcing upon us a system of poliey to which we object and which we believe will put in power our enemies, not only in this branch, but in the other branch of the Legislature also.
Mr. WILSON. The enemies of the country. Mr. HENDERSON. When I speak of "our enemies" I mean the enemies of the country. I believe that this course of conduct is well calculated to break down the moral sentiment of the country; and if we in our capacity here can uphold that sentiment it is our duty to do it, and I for one am willing to take the responsibility. I am not willing to violate the Constitution to curb the President. I want to see my way clear; I want to see it perfectly clear; but I am willing to declare now that in every particular in which I can, for the time being, curb that power constitutionally, legally, and in consonance with my own views of right, I will do it. I will do it because I have personal knowledge of some appointments. I will do it because I believe that if this course of policy be persisted in we shall inevitably have further trouble in this country. I do not charge that such is the design of the President. I hope that none such he has. I alluded yesterday to a newspaper article; I have it with me now. We all know that there is a difference between the Presi dent and the Senate. It is not worth while to disguise the fact; the country understands it, Measures have been passed by this body and sent to him which he has vetoed, and they
have come back; one of them has been passed; the other has been defeated. We know perfectly well that a very strong and powerful party is being organized against the majority in this body. We do not know their future intentions, we do not know their future designs; but we do know that in just such periods as are now upon us, in the past history of other nations much trouble has come. I do not know whether it is the intention to carry out the advice of many papers given to the President in my State and in other States; it is not only in the southern States that this advice is being daily given, but it is in the great West that we find advice of this character given to the President. I hope that nothing like it will be undertaken by him or others who agree or believe with him; but we do not know to what extent this vast power of patronage will urge the President; we do not know what he may attempt; we do not know how confident he may feel in his position; we do not know where this controversy that is now being carried on is to end. I take from a paper of very great influence and large circulation in the West this extract:
when Mr. Buchanan left the Presidency, and Mr. Lincoln came in, the idea of the southern people was that they for all time to come were to be denied the public crib at which they had fed heretofore, and that that belief rushed them into this rebellion. I know they used the slavery question, but they used it as a means of putting themselves in power.
But, sir, I was saying that if a controversy of this sort should come, the issue would the same that it was between Charles and the Parliament, and the result would be inevitably the same; but it would come after long trouble, after much suffering, after many tribulations. I know that Senators will say it is entirely unnecessary to refer to these things. Mr. President, I tell you, and I tell Senators, that this controversy has gone far enough. I do not say that it is our duty to cease; I do not believe any such thing; but I would gladly to-day, if it were in my power, bring it to an end, as I gladly attempted for many months before the controversy commenced, by all the influence I could bring to bear upon the Executive, to avoid it. I feel that whatever the controversy may lead to in the future, whatever calamities it may bring upon the country, my skirts are clear, and that I did all in my power to prevent it. I would that the course of the Executive had been such as to give the country the real results of our victory.
"If the disunion majority in Congress persist in their revolutionary measures
Several SENATORS. What is the paper? Mr. HENDERSON. The Illinois State Register, published at Springfield.
"If the disunion majority in Congress persist in their revolutionary measures, let the President take care of them. Capitol prisons and Government bastiles have yawned for purer patriots and better men than these incendiaries. Let the leader of the House, Thad. Stevens, and his revolutionists, and the leaders of the Senate, Sumner, Wade, and others of that class, be seized in the Halls they desecrate and be imprisoned. Let the southern members of Congress return to Washington and be duly installed in their seats. Then, on promise of amendment, let these revolutionists out, and the Union will be restored indeed. That day will be an illustrious one for the country, and will make the name of Andrew Johnson trebly immortal."
belong to every man who assisted in upholding and supporting the Government. That has been my view. I may be mistaken, but I entertain it sufficiently strong to say that if the President will continue to carry out an antago nistic policy, denying to them the rights of life, liberty, and property, denying to them that generosity and kindness which we are willing to extend to them; if the President be unwillbeing under any circumstances to extend to them the right hereafter to participate in government, which we are told must always rest upon the consent of the governed in order to be truly republican; if he will persist in that course of policy, I think it will justify us taking all legal and constitutional means to restrain his power.
But, Mr. President, I have said enough. I have frankly stated what my views are. I have no concealments to make. Others may seek to conceal their purposes; I do not. I want to be justified first by the Constitution; I want to be justified by laws that stand upon a sound constitutional basis; and when I have done that I would restrain this power, because I believe that it is degrading to the country; because I believe that under Administrations to come after us much harm may accrue to civil liberty in this country unless we pluck out this corrupting and baneful influence in the Government.
I took up a paper yesterday from New Orleans in which I saw similar advice. The other day I took up a paper from Mobile, Alabama, in which I saw similar advice. I alluded yesterday to language used by the Senator from Kentucky, [Mr. DAVIS.] I regret very much that I should have been the innocent cause of the colloquy that then took place between him and others. I take this occasion to assure the Senator that I was not aware that he had even neglected to publish his remarks made upon a previous occasion. I knew nothing of that, and I did not allude to what he had said for. the purpose of criticising the conduct of that Senator in this body or of censuring anything that he may have said or done; but I alluded to it for the purpose of showing that even gentlemen occupying places on this floor entertain this opinion and have expressed it. If this advice were carried out, do you not know that if the southern Senators should come here and Organize with the minority of this body, and the southern Representatives should organize with the minority of the other body they would be in the majority? Do you not know perfectly well that if the President has the power to recognize them as the Congress, it will become absolutely essential for him to carry out the advice given in this newspaper extract; that is, to seize the Union majorities of this present body and the other House and put them into bastiles? Do you suppose we should silently submit? Would we any more do it than the Parliament submitted to Charles I? Sir, if unfortunately a state of affairs of that sort should come upon us, we all know what would be the result: another war, the most terrible ever seen or known in this land, would be upon us. I know what the final result would
be. We might have a longer war than we have had; more cities would be burned, more individ uals would be killed, more blood would be spilled; there would be desolation in this land not seen or dreamed of during the past war. We know not where the ambition of man will go. I believe that the recent rebellion very largely sprang from this thing of appointments to and removals from office. I believe that
So far as I am concerned, I have not thought, and I do not now think, that the Congress of the United States has met this controversy as it ought to have done. When the war commenced, it was upon the idea of the inferiority of a race. Mr. Stephens said that our forefathers had built upon a false idea, that all men were equal; and that having built upon the sand, when the storms and the floods came their house fell. It turns out that Mr. Stephens was mistaken, and that the house we occupied was built upon the rock. The idea of the equality of men should be inflexibly adhered to. The question might easily have been settled when the war was over. Slavery was abolished, but slavery was the mere result of an opinion; that opinion was, that there was a difference between men, an inferiority which justified one in making himself the guardian of another, and that the patriarchal relation necessarily resulted from this inferiority. When this house fell and when this idea was exploded we ought to have adopted and insisted upon the other idea of the absolute equality of all men, and built our house upon that. But we are not to do it; I am perfectly aware of that; I know it will
not be done.
We shall fail in that endeavor, at least for the present; but then how much have you changed the whole negro question; once it was slavery and anti-slavery; the negro was made use of merely for party power. Now the negro is free, to be sure, physically free; but we are to have the contest over again as to whether he shall be free really. You have merely changed the form of the controversy, and for years and years it will go on as to whether four or five million people in this country, paying taxes, supporting the Government, bear ing arms in defense of your country in the great war that we are to have with Austria and other nations of the world, referred to by my friend from Maryland yesterday, are to have any rights at all in the Government. The policy of the Executive is, of course, that they shall have none. That is the controversy really. Hence your Freedmen's Bureau bill was an effort on the part of Congress to give them the rights that were about to be taken away from them; hence your civil rights bill, which was to give them those rights of life, liberty, and property, which were denied to them by the legislation of the southern States. Both of these bills were vetoed. My idea has been that we needed no civil rights bill, though I voted for it; that we needed no Freedmen's Bureau bill, although I voted for it; but that we could attain the object of both and reach it much better by giving them the rights that
Mr. JOHNSON. Mr. President, I rise with no view to discuss the policy of the President of the United States, or to contrast that with what is supposed to be the policy of those who differ from him and who constitute the majority of Congress. I have but a word to say in relation to the first, and that is that if I understand what his policy is in the particular referred to, it is that which was adopted and carried out to a certain extent up to the period of his decease by his immediate predecessor. But however that may be, it has nothing to do, as I think, with due submission to my friend who has just taken his seat, with the question which is now submitted for the judg ment and decision of the Senate. That question is one of constitutional law, and it should not be influenced, whatever may be the fact, by any political considerations except such as grow out of the nature of the Government constituted by the Constitution. We ought to ascertain what the Constitution is with reference to the subject before us, and to stand by it, no matter what its effects may be upon the party political destinies of the country.
The question is whether, under the Constitution, the President has the power to remove officers without the consent of the Senate; and the question, as it is presented by the amendment proposed by the honorable member from Illinois, comprehends every class of officers whom he may appoint with the advice and consent of the Senate. It embraces, consequently the members of his Cabinet who are called around him for the very purpose of aiding him in the administration of his office, in whom he is to confide, in whose sincerity of friendship, political as well as personal, he ought to rely; and if the Senators will look to what was said in both Houses of Congress at the period when the several Departments were organized, they will see that it never entered into the imagination of any of the statesmen of that day that the President could be compelled to retain in his Cabinet officers in whom he had ceased to confide, no matter upon what ground his confidence was lost. If he suspected a want of integrity, without having any positive proof, nobody doubted that it would be not only his right but his duty to remove. If he suspected or believed a want of fitness, the same was the universal opinion. If he suspected that they were hostile to what he believed to be a proper discharge of his duty, nobody questioned that he would have a right to dispense with them and to get around him men who would, with himself, be a unit with reference to all the executive functions intrusted to that department of Government. But if you adopt this amendment as it is now altered by my friend from Illinois, you to a
certain extent deny to him the right to remove a Cabinet officer, because the amendment as it now stands provides that if he does remove he must at the next session of the Senate report to the Senate the reasons upon which he reWhat is to be the effect of that, provided you have the authority to impose it? Suppose the reasons are not satisfactory, is the Cabinet member who has been removed to be reinstated? The amendment does not say so; and if it did say so, what would be the principle which the Senate would have adopted? That of forcing upon the President of the United States a Cabinet officer in whom he has no confidence, whom he believes to be untrue to duty, incompetent to the discharge of his office. The Senate may think differently from the President; they may believe that he has been true to duty, that he has every competency necessary to the discharge of the duties of the office, and so decide; is that to reinstate the minister who has been removed? This amendment does not say so. If it does not say so, what is to be the effect of the amendment? To get before the Senate some ground upon which the other branch of Congress may impeach the President of the United States.
laws; and how can he do it? Not personally;
Now, I speak knowingly, Mr. President, when I say that whatever doubt was expressed during the session of the Congress of 1789 in relation to the incidental power of the President to remove, no member of that body (and many of them had been members of the Convention by whom the Constitution was framed) ever suggested that the President could be compelled to keep around him any Cabinet officer whom he desired to displace. Let gentlemen reflect for a moment. We are not legislating now for an hour. Whatever may be the supposed exigency of the time, growing out of any actual or supposed difference of opinion between the President and Congress, what we do now
"Will be recorded for a precedent;
And many an error, by the same example,
We are but the creatures of an hour. This
was assailed. Members of the Senate have
"I think it absolutely necessary that the President should have the power of removing from office; it will make him in a peculiar manner responsible for their conduct, and subject him to impeachment himself if he suffers them to perpetrate with impunity high crimes or misdemeanors against the United States or neglects to superintend their conduct so as to check their excesses. On the constitutionality of the declaration I have no manner of doubt."
Well, then, your imposts are not collected; your tax remains in the hands of those who are liable to pay it; the duties which you owe to the Indians and the execution of your treaties with them remain unperformed. The Government, in a word, comes to a stand-still; and my honorable friend from Missouri thinks it would be pregnant with great public mischief to give to a President of the United States, clected by a majority of the people of the United States, a power of removal because he may abuse it. Certainly he may. Cannot we abuse our power? Are we individually better than he is? I do not speak of the present members of the Senate or of the House of Representatives or of the present incumbent of the presidential office; but looking into the manner in which they are respectively elected, is it a bit more probable that the President of the United States will be corrupt or prejudiced, almost to the point of practical corruption, than it is that some members of Congress may be corrupt; or to put a more respectable supposition, is it probable that they will be more enlightened and more able to see the true interests of the country than the President of the United States? I think not.
Now, let me stop for a moment to inquire, if there was no such power of removal what would be the condition of the country and what would be the condition of the President? He is sworn to see to the faithful execution of the
time, and every Senate will hereafter, if that should be the ground of impeachment, tell him in reply, "It was your duty to remove the incompetent."
I know that when the question was first presented, in 1780, there were differences of opinion, and I know that it was decided in favor of what has been the practice ever since by the casting vote of the Presiding Officer in this body, but it received a majority of more than twenty in the House of Representatives. And see what Chancellor Kent says upon the subject. He seems to have doubted it as an oriquestion; but after citing the preamble of the act of 1789, establishing the Treasury Department, which declared that whenever the Secretary shall be removed from office by the President of the United States," thus assuming the power to remove, the commen
"This amounted to a legislative construction of the Constitution, and it has ever since been acquiesced in and acted upon as of decisive authority in the case. It applies equally to every other officer of Government appointed by the President and Senate whose term of duration is not specially declared. It is supported by the weighty reason that the subordinate officers in the executive department ought to hold at the pleasure of the head of that department, because he is invested generally with the executive authority, and every participation in that authority by the Senate was an exception to a general principle, and ought to be taken strictly. The President is the great responsible officer for the faithful execution of the law, and the power of removal was incidental to that duty, and might often be requisite to fulfill it."— Kent's Commentaries, part 2, vol. 1, p. 310.
My friend from Missouri seems to suppose that he has found in the case of Marbury vs. Madison, and in a subsequent case that he cited from Peters, decisions of the Supreme Court of the United States at war with that principle. He entirely-I speak it respectfully-misapprehends both cases. The Constitution of the United States provides for certain officers by name; it gives to the President of the United States the authority, by and with the advice and consent of the Senate, to appoint to offices of that description. It vests in Congress the authority to give the power of appointment of other and inferior officers to any other department of the Government that it may think proper; and as Mr. Justice Story says, in the passages referred to by the honorable member from Missouri, under the latter authority nearly all the evils supposed to be incidental to the sweeping power of the President to remove may be guarded against, because Congress, under the power of providing for the appointment of inferior officers, have a right to provide for the term of office, and to make the particular officer independent of the Executive.
And now, what did Marbury rs. Madison decide? Mr. Adams, just at the close of his administration, appointed a number of magistrates here in this District, and he appointed a good many judges under a law passed about the same time constituting additional circuits of the United States, and making the Supreme Court of the United States exclusively an ap pellate tribunal. Before Mr. Adams went out of office his nomination of Marbury had been confirmed by the Senate, sent to the President, and a commission issued which he signed and which was deposited in the archives of the State Department, but was not delivered. The Supreme Court of the United States, upon an application made by Marbury for a mandamus to compel the Secretary of State, not the President, to deliver the commission, decided the question of the right of Marbury to the commission. With due deference to the very distinguished man then at the head of that court, and to those who were associated with him, must be permitted to say that in doing so they committed, in my judgment, a very grave fault. They committed the same fault which the Supreme Court afterward in the Dred Scott case is supposed to have committed. They committed the fault of deciding a controversy in a case which was not before them, because after a labored and an able argument, as every argument flowing from the pen of that great man ever was, they came to the conclusion at the end
of the opinion that the whole matter was coram non judice, that the act of 1789 which gave an authority to issue the writ of mandamus was to be construed in connection with the Constitution of the United States, and in such a case as was before them Congress had not power to clothe the court with the authority to issue the writ except in cases in which they had an appellate jurisdiction. Their original jurisdiction being of a limited character and that not including such a case as Marbury presented, Congress had no authority, as they said, to give to the Supreme Court of the United States the power to issue the writ, and they dismissed the application and it has ever been a subject of regret that principles should have been announced in that opinion upon the merits of the controversy which, as the result showed, in the opinion of the court were not before them. The court fell into the great error of assuming jurisdiction so far as to decide a controversy which they afterward held in the same opinion was not before them because of the want of jurisdiction; and the Supreme Court in the subsequent case of Dred Scott, in the opinion of some, was thought to have fallen into the same error, and that in part has led to the severe animadversions upon that adjudication.
But, Mr. President, suppose it was before them, and suppose that opinion to be esteemed as authority, what does it decide? That Congress having created the office of magistrate, an office not known to the Constitution, and under their power to create having provided that the term of service of the incumbent should be five years, the incumbent was not liable to be removed until the expiration of that period, never denying I think I speak knowingly; Heaven knows I have had occasion to read the judgment often enough—never denying the existence of the power decided in 1789 to exist in the President of removing officers generally; and the same remark is applicable to the case which my friend has cited from the thirteenth volume of Peters.
conjunction with the Senate was an exception from what would otherwise be the power of the President; and as the power of appointment in that view of it would have been an executive power, not requiring the advice a:.d consent of the Senate, the power to remove, which was not provided for in the Constitution, was a power resting in the President because that also was an executive power.
My learned friend-and that, as I think, if there be an error in the argument, is the ground of the error-says there is nothing in the Constitution which gives to the President the power to remove. Certainly not; nor is there anything in the Constitution which gives to the President, by and with the advice and consent of the Senate, the power to remove. There are no such words to be found in the instrument. The power to remove, if it is to be exerted by and with the advice and consent of the Senate, is a power incidental to the power to appoint, and can only be placed upon that ground. The Convention did not think it necessary to provide an express power by which an incompetent officer was to be removed. They left it to be inferred; and Mr. Madison and those who coincided with him (and the Government has been conducted ever since upon the hypothesis of the correctness of that decision) considered the power to remove as an executive power, not dependent upon the power to appoint with the consent of the Senate, because that looked to one object and the other looked to a different object. The one looked to the power to fill an office; the other looked to the power to remove an incompetent incumbent.
But if the honorable member had pushed his researches further he would have found another decision; and if he was at the bar, and we were trying a case, I should rather think it was because he found something in it against his
Mr. HENDERSON. I referred to it. Mr. JOHNSON. The case to which I allude was this: the Supreme Court having decided in the case of Canter vs. The American Insurance Company, reported in 1 Peters, that territorial judges were not constitutional judges, and therefore were not judges to hold their office during good behavior, but could be removed by the President at any time, Mr. Fillmore removed one or two; and one of those judges applied for a mandamus to compel the payment of his salary upon the ground that the President had no authority to remove him, and of course that his successor was improperly put in office. The Senate of the United States, the power to appoint in a case of that description being a power to be exerted in conjunction with the Senate of the United States, had approved the nomination.
Mr. HOWE. The subsequent nomination. Mr. JOHNSON. The subsequent nomination; but the question came before the Supreme Court, did that remove from office the original incumbent? That raised the question whether the President had power to remove; and as well as I recollect-I have not got the book by me-there was no member of the bench that suggested a doubt that as the Constitution was, in the judgment of that tribunal the power to remove was vested in the President, and pretty much for the reasons given by Chancellor Kent. If the Constitution had not provided that the appointment should be made in conjunction with the Senate, if it had merely created the office and created the executive department, the power to appoint would have been vested in the President, because in its nature it was an executive power, and therefore the provision of the Constitution which required the appointment to be made in
I have not time, nor would I fatigue the Senate if I had, by referring to Story for the purpose of showing that he coincides with the view of Chancellor Kent. As an original question he doubted the existence of the power, not upon the ground of its supposed corrupt or dangerous tendency, as it was questioned by a good many respectable and able men, but he came to the conclusion, in the words I have already read to the Senate, that it is incidental to the executive function, and is necessary to enable the Executive to discharge his duty of providing for the faithful execution of the laws.
Now, Mr. President, whatever may be the opinion of the Senate on this question, I submit to my friend from Missouri, and those who concur with him on the question of power, whether it is advisable to put the proposition in this appropriation hill. I do not know what view the President will entertain upon the question. I know what Andrew Jackson would have thought of it and how he would have acted. He would have considered it a direct infringement upon his constitutional rights, and he would have vetoed the bill. Now, suppose the President comes to that determination, and you are unable to override that veto of an appropriation bill, the whole appropriation will be lost. We lost an appropriation bill here at the last session, and a very important one, the miscellaneous appropriation bill, because there was tacked to it a provision that was offensive to the then President of the United States.
Mr. CLARK. It failed in conference. Mr. JOHNSON. It failed in conference finally, but it was understood to be very distasteful to the then President and very distasteful to a great many members of this body, and the bill failed. Now, let me ask the Senate, as statesmen, as sensible and unprejudiced menand I certainly assume that that is the case with all whom I address-where is the necessity of incumbering this bill with a measure which may be provided for in a distinct bill just as operative to effect its purpose, if it can be passed, and without subjecting the particular bill, an appropriation bill as important as this, to the delay, and perhaps to the defeat, which may be the result of incumbering it with a provision of this description? Suppose your post offices are stopped. You know as much of the President's purpose as I do; but sup
pose he comes to the conclusion that you have no right to interfere with what he believes to be his constitutional power, and the bill is lost, what will be the issue before the country? The post offices all to be closed, the mails arrested, communication between the several sections of the country put a stop to. You will say it is the President's fault; but what will the President say? "I stood upon the ground assumed by Madison in 1789 and never afterward departed from; questioned once or twice, but no measure ever proposed to change the question of power." Do you not think that the people will concur with the President, that the fault is with us? If you should reply, when you are called to account for having closed the post offices, that you were compelled to do it, the answer that could be and would be given to you would be considered as a triumphant answer, "Where was the necessity of clogging an appropriation bill with a measure of that description? Why did you not put it in a separate bill and let the issue go before the country whether you were right or wrong, if the President thought proper not to sanction that bill?"
I have no particular desire, provided there be a difference of opinion between Congress and the President of the United States, to render aid and comfort to Congress just at this particular juncture; but I tell them, and I tell them in all sincerity, that I think I am giving aid and comfort to them when I appeal to them not to incumber this bill with a provision of this description. They will give to the President a power before the country that he does not now possess, provided you can carry it through both branches, and provided he vetoes the bill, and the bill shall be lost on that account.
As I said in the beginning, Mr. President, it is not my purpose to discuss the differences, whatever they may be, existing now between the President of the United States and Congress. I am willing, more than willing, to admit that if there be such differences, each of the parties to the difference thinks that he is right; but I think I may say-I know I may say that those who differ from the President ought charitably to conclude that he just as firmly believes that he is right as they believe that the contrary policy which they pursue is right. There is an honest difference of opinion, if there be any difference of opinion, and it is material to the interests of the country, in my judgment, that that honest difference of opinion shall be healed as speedily as possible. Let it break out as is suggested by the member from Missouri, speaking upon the authority of some Illinois paper; let it be carried to the extremity recommended by that paper, and what will be our fate? God forbid that it should come to that result; but the mere threat of such a result is calculated to weaken the Government in the estimation of our own people and in the estimation of the world at large; to break down the credit which we want in support of our finances; to unsettle that which I had hoped the triumph of our arms had achieved; to bring about not a restored Union, but a Union more distracted and a Government in infinitely more peril than it was during the worst period of the civil strife out of which, as far as arms could accomplish it, we have so gloriously emerged.
Mr. WILSON. We have some very impor tant business to transact in executive session, and after consulting one or two Senators, Í move that the Senate proceed to the consideration of executive business.
Mr. SHERMAN. I trust the Senate will dispose of this bill to-day. We have been engaged now for three days on a collateral question on an appropriation bill. If the mo tion is insisted upon, I shall call for the yeas and nays upon it. If the majority of the Senate really desire to prolong this constroversy, I should like to be informed of it, so that I may act accordingly. In order to test the sense of the Senate, I call for the yeas and nays on the motion of the Senator from Massachusetts. The yeas and nays were ordered.
chooses to remove persons, we have a right to say that those appointed in their places shall not be paid until the Senate has chosen to act upon their nominations; but to put the President to the necessity in all cases of telling the Senate, if he nominates another person for an office, the reason why he does it, is a new thing. Such a proposition was offered once in the time of General Taylor by my immediate predecessor. He brought it up over and over again in a very strongly Democratic Senate. I do not remember whether they finally voted it down or not, but if not, they got rid of it; they would not pass it at any rate, holding to the doctrine that the President, having the power of removal, so long as he had it he must exercise his own discretion about that, and that with reference to his appointments the Senate would consider whether they were proper appointments to be made.
The PRESIDING OFFICER. The motion can be withdrawn by unanimous consent only, the yeas and nays having been ordered. The Chair hears no objection. The motion is withdrawn, and the question is on the amendment proposed by the Senator from Illinois.
Mr. TRUMBULL. On that question I ask for the yeas and nays.
The yeas and nays were ordered. Mr. CONNESS. I believe there has been a material change made in that amendment this morning, and therefore I ask for its reading.
The Secretary read the amendment, which was to insert as a new section the following:
And be it further enacted, That no person exercising or performing, or undertaking to exercise or perform, the duties of any office which by law is required to be filled by the advice and consent of the Senate, shall, before confirmation by the Senate, receive any salary or compensation for his services, unless such person be commissioned by the President to fill up a vacancy which has happened during the recess of the Senate, and since its last adjournment by death, resignation, expiration of term, or removal for acts done or omitted in violation of the duties of his office; the cause, in case of removal, to be reported to the Senate at its next session.
Mr. FESSENDEN. As the amendment offered by the Senator from Illinois stood yesterday, I should have very readily voted for it. I did not think it worth while to go into any argument on the subject. The constitutional right is very clear, so far as the appropriation of money is concerned. We can make any rules in reference to that that we please. The last clause, however, which is now introduced by the amendment this morning is very objectionable to me, and I hope the Senator from Illinois will withdraw it.
Mr. TRUMBULL. I preferred the amendment as it stood yesterday myself, but several Senators around me insisted upon having in it a provision in regard to removals; and I put it in at their suggestion.
Mr. FESSENDEN. As it stands now I cannot vote for it with that clause in it.
I see no impropriety whatever in saying that when appointments are made during the recess, especially those which might as well be made to the Senate when it is in session, payment to those appointees shall be deferred until they have been confirmed. I do not think there is anything personal or offensive in making that rule. The doctrine which has been broached lately, and a matter conversed about under the administration of President Lincoln, was carried as far as this: that the President might nominate an officer during the recess of the Senate, which would hold up to the conclusion of the next session, and if then he was rejected or turned out, or at least not acted upon, it was again a vacancy arising in the recess of Congress, and the President might immediately put the same man in that the Senate had refused to confirm; and thus, in spite of the Senate, in spite of the constitutional provision, the power of appointment would rest entirely in the President, and the Senate was a nullity. I do not know and do not presume that President Johnson would attempt to do anything of that description. It is to be presumed he would not; but President Lincoln did, certainly in one I thought at the time it was exceedingly improper, and if the doctrine was followed out and the practice became fixed, that in reality the Senate would amount to just nothing at all. Mr. JOHNSON. It is grossly improper. Mr. FESSENDEN. Undoubtedly. That was in the case of a judge appointed in this District. The Senate refused to confirm him, once rejected him; it was then reconsidered, and the matter went to the last day of the session and he was not confirmed, and immediately after the adjournment of the Senate he was reappointed by President Lincoln, and he was afterward confirmed by the Senate.
Mr. SHERMAN. I hope the Senator from Maine will now agree with me in the suggestion || that I made the other day, that this matter might be put on some other appropriation bill just as well. We have at least seven or eight appropriation bills; this is the first; and it is scarcely worth while, when there is so much difference among ourselves in regard to the phraseology of this provision, to put it on this bill. I hope, therefore, it may be withdrawn from this bill, and if it is necessary at all, let it be put on some other bill.
Mr. FESSENDEN. So far as that is concerned, I cannot control or would not undertake to control the action of the gentlemen who have moved it as an amendment to this bill. I do not see anything very inappropriate about it, if they choose to move it, because it has reference to the expenditure of the money and may very properly be here, if gentlemen insist on keeping it here. But the proposition as it stands now has a look that is disagreeable to
Mr. HENDERSON. It admits the power. Mr. FESSENDEN. I object to this last clause requiring the President in case of removals to give his reasons to the Senate. I do not think we have a right to require that. If the President in the exercise of this power
Mr. JOHNSON. That was Wylie's case. Mr. FESSENDEN. I voted against him finally, and I would vote against any man simply on that ground: that it is an encroachment upon the rights of the Senate, and if acceded to and followed the result is inevitable that the Senate is no part of the appointing power which the Constitution makes it. It was done in another case, and a more gross case, in my judgment, and that was in the case of General Blair, who had resigned his command and had been sworn as a member of the other House; his resignation had been accepted; and after the Senate had adjourned, I believe, the President undertook to put him in command of a corps of the Army.
Mr. JOHNSON, and others. It was during the session of the Senate.
Mr. FESSENDEN. While we we were in session; and the Senate and the House of Representatives, by almost unanimous votes, reproved the President in fact for doing so. I remember that I remarked at the time, or shortly after, when I went into the Treasury Department, that if it was in my power to do it-which it was not, because I had no control over it-he never should have been paid a dollar for the services rendered by him, because I thought his appointment was in gross violation of the Constitution.
Now, sir, when such things are done and
when such doctrines are advanced and claimed, I think, without any impropriety whatever, Congress may assert their right over the money of the country, which they have unquestionable power to do, without infringing upon the right of anybody, and say, that where things are done contrary to the usual course, done by whom they may, they will hold on to the money until the Senate has had an opportunity to judge in such cases. It is an imputation upon nobody. I do not presume that President Johason would do such a thing, or that he will take any offense at a provision of this kind.
That the President has the power of removal from office I have never doubted, for the simple reason that it seems to me to arise from the necessity of the case; that in the recess of Congress it may happen, and has happened, that a man may be guilty of such offenses that his removal at once becomes absolutely neces sary; and in that case certainly the President should exercise the power; and in that case, or in any similar case, for any good reason; in any case, in fact, which did not upon its face present a gross dereliction of duty and a violation of the principles of the Constitution, Congress would not hesitate to pay the money to the officer appointed.
Mr. HENDERSON. Then let me ask the Senator, why refuse to pay the man? If the President can constitutionally remove an officer and then make an appointment, of course the Constitution gives him a perfect right to fill the vacancy until the last day of the next session.
Mr. FESSENDEN. I would not refuse to pay him. I would, whenever the case came before me, vote to pay him; but I say that in view of the principle that has been acted upon in some cases, and avowed by gentlemen as a correct principle, that the President can appoint during the recess, and when Congress adjourns, the Senate having rejected that man, can appoint the same man over again, it is necessary that we should express our opinion on such a power. I would have done it before if I had had an opportunity to do it, and therefore, as I would have always acted upon it, I am perfectly willing to act upon it now.
Mr. SHERMAN. If the amendment were confined to that class of cases it would be all very well.
Mr. FESSENDEN. You cannot tell whether it is one of that sort until the question comes up.
Mr. SHERMAN. Take the case of a Cabinet minister, or a more exaggerated and harder case than that, the case of an internal revenue officer, who is compelled to pay the deputies out of the fees; and would you require him to act until the close of the next session without receiving any pay?
Mr. FESSENDEN. I do not think there need be cases of that description, because the first assistant of the collector or assessor who was removed would discharge the duties until the appointment was made.
Mr. SHERMAN. He cannot use a dollar of the money. The money is all paid into the Treasury.
Mr. FESSENDEN. I do not see that any very great inconvenience would arise. At any rate I do not feel disposed to argue that point. I have long felt that with reference to appointments the power was tending too much in the direction of nullifying entirely the action of the Senate, and that it was time we should assert our own power over the question in some practical way, and I know no way so practical as this. I had therefore made up my mind to vote for the amendment if it was presented, although I would rather have it in some other place than on this bill; but of that I do not assume to judge. But with regard to the last clause of the amendment as it now stands, that the President when he exercises the power of removal shall in all cases be bound to give his reasons to the Senate, I think it is offensive in its very nature and character, and I cannot consent to vote for it if it stands in that way.
Mr: TRUMBULL. In my desire to accommodate our friends I changed the amendment