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the effect of the confirmation by the Senate ferior officers' (which appellation probably includes pass on that policy, because it does not legitiremoves the oflicer, and the officer is not re- ninety-nine out of a hundred of thic lucritivo otices mately come in the purview of my argument.
in the Government) the remedy for any perinanent moved until that confirmation occurs. Ile says abuse is still within the power of Congress by thesim
I have nothing to do with it on this occasion, further, section 1539:
plo expelient of requiring the consent of the Senate I have attempted to examine this question “This was the doctrine maintained with great earto removals in such cases."
legally and historically, and I think I have nestness by the Federalist; and it had a most material
Mr. President, I have occupied too much of showrr beyond all doubt to the unprejudiced tendency to quiet the just alarins of the overwhelining influence and arbitrary exercise of this preroga
the time of the Senate, but the question is an mind that the power proposed to be exerted tive of the Executive, which might prove fatal to the important one. I know perfectly well that this exists in Congress. Now, are we to exercise personal independence and freedom of opinion of proposition will be attacked all over the coun: it or not? That is the question. Are the cirpublic officers, as well as to the public liberties of the country. Indeed, it is utterly impossible not to feel
try, and it will be declared that it is an effort cumstances of the country such as to induceus that, if this unlimited power of removal does exist, on the part of the Senate to curb unconstitu- to exercise it? I say they are. it may be made, in the hands of a bold and designing
tionally the power of the Executive. As I stated I am not afraid to take ny position on this man of high ambition and feeble principles, an instrument of the worstoppression and most vindictivo
yesterday, I have no war to make upon the || subject. I have nothing to ask from the pres, vengeance. Even in monarchies, while the councils Executive ; I have made no war in this body ent Executive in the way of patronage; and I of state are subject to perpetual fluctuations and or elsewhere upon the Executive; but I have can safely express the opinion here that if I changes, the ordinary officers of the Governmentare permitted to remain in the silent possession of their
felt for many years that if this practice is to go had the President would not grant it. I am offices, undisturbed by the policy or the passions of on, whenever a President comes into office, of satisfied from various appointments that have the favorites of the court. But in a republic, where
removing all officers who disagree with him in been made in my own State, and from appointfreedom of opinion and action is guarantied by the very first principles of the Government, if a success
political opinion, however meritorious they may ments that I understand are to be made in that ful party may first elevate their candidate to oflice and be, however deserving the confidence of the State, that nothing I could say would have any then make him the instrument of their resentments or
country; if the public offices are to be given as influence whatever. Gentlemen may say that their mercenary bargains; if men may be made spies upon the actions of their neighbors, to displace them
mere rewards for party fealty and without con- is the reason why I insist upon this proposifrom office; or if fawning sycophants upon the pop- sideration of merit, it will ultimately lead to a tion. We have had a bitter contest in the State ular leader of the day may gain his patronage, to tho destruction of our Government. I believe this of Missouri; we have had a bitter contest in exclusion of worthier and abler men, it is most manifest that elections will be corrupted at their very
as conscientiously as I believe any fact on this nation; it has been a contest for the life source, and those who seek office will have cvery mo- earth; and it is not for the purpose so espe
of the nation itself; and if patronage is to be tive to delude and deceive the people. It was not,
cially of curbing the present Executive as to distributed, I for one am frank to say that if therefore, without reason that in the animated discussions already alluded to it was urged that the
curb any Executive who may come after him it is in my power to prevent its going into the power of removal was incident to the power of ap- that I favor the amendment. The Senator from hands of those who, during the last four or five pointment; that it would be a most unjustifiable construction of the Constitution and of its implied pow
Maryland said yesterday that this precedent years have advocated a policy antagonistic to ers to hold otherwise; that such a prerogative in the
would return to plague the inventors. I hope my own and antagonistic to the nation, to the Executive was in its own nature monarchical and so. If the next Executive shall be elected, as existence and salvation of liberty on this conarbitrary, and eminently dangerous to the best interests as well as liberties of the country. It would
the present one was, receiving my vote, I de- tinent, I will prevent that.. convert all the officers of the country into the mere
sire that this same curb shall apply to him, and I do not wish to be misunderstood. I do tools and creatures of the President. A dependence I pledge the Senator from Maryland that if this not wish gentlemen to misunderstand the posiso servile on oue individual would deter men of high and honorable minds from engaging in the public
proposition is adopted no vote of mine, so long || tion I occupy here. I am frank. I have nothing service. And if, contrary to expectation, such men
as I hold a place here or elsewhere where I can to ask of anybody; I am indebted to nobody; should be brought into ollice, they would be reduced affect the question, will ever be given to con- feel dependent on nobody; but I desire to see to the necessity of sacrificing every principle of independence to the will of the Chicf Magistrate or of
fer upon the President an absolute power of the fruits of the victory we have achieved in this exposing themselves to the disgrace of being removed removal.
late contest garnered up and kept in the future from office, and that, too, at a time when it might no It is clear that we have the power to legis- for the preservation of liberty and of freedom longer be in their power to engage in other pursuits."
late on this subject. I have shown it from the in this nation, and that they shall not turn to I read yesterday, Mr. President, from a contemporaneous history of the Government. ashes upon our lips. I do conscientiously bespeech of Mr. Webster in 1835. I desire now I have shown it from the opinions of all the lieve that the policy entered upon by the Presto read a little more from that same speech in leading men of all political parties. I have ident is well calculated to dash the hopes of regard to the policy of the exercise of such a shown it from the legislation of the country,
the Union men of this nation. I have often power as is claimed for the President:
It was only three sessions ago that we passed || said, and I now take occasion to repeat, that “The unlimited power to grant office and to take an act in regard to the Comptroller of the Cur- it is not my belief that the President intends it away gives a coinmand over the hopes and fears
rency, that Mr. Lincoln should not remove him by his course of policy, whatever it may be, to of a vast multitude of men. In the main it will be found that power over a man's support is a power
without the consent of the Senate. I know it || put under his heels the Union men of this laud, over his will. When favors once granted may be was modified the session afterward, and it now and to build up the old rebel party. I have withdrawn at pleasure, there is ordinarily little se- stands that the President must give his reasons never so said, nor do I now say it; but I say curity for personal independence of character. “The power of giving office thus atfects the fears
for such removal to the Senate, without retain- that the effect of his policy is just that thing of all who are in and the hopes of all who are out; ing for ourselves that power which we right- and nothing else. He has adopted a policy for those who are out endeavor to distinguish themselves
fully hold of preventing the removal entirely. the restoration of the southern States. Conby active political friendship, by warm personal de
I cannot doubt that we possess this right. votion, by the clamorous support of men in whose
gress claims to have something to do with it; hands is the power of reward, while those who are in If this assumed power of removal by the the President thinks not; and he persists in take care not to be surpassed in such qualities or con- President was a dangerous power in days gone forcing upon us a system of poliey to which we duct as will secure favor."
by, how much more dangerous has it now be- object and which we believe will put in power Again:
come! I disagree with the Senator from Ohio our enemies, not only in this branch, but in the "The consequence of this is, that a competition and the Senator from Maryland that patronage other branch of the Legislature also. ensues, not of patriotic labors, but of complaisances, of indiscriminato support of executive measures, of
of this character is calculated to weaken the Mr. WILSON. The enemies of the country. pliant subserviency, and gross adulation. man who holds the power of dispensing it. I
Mr. HENDERSON. When I speak of our “The patronage of office, the power of bestowing place and emoluments, creates parties, not upon any
think I have shown from the opinions of Judge | enemies? I mean the enemies of the country. principle or any measure, but upon the single ground Story, from the opinions of Mr. Webster, from I believe that this course of conduct is well of personal interest, and thus they form round a the opinions of Mr. Calhoun, (which I might || calculated to break down the moral sentiment leader and go for the spoils of victory; if the party read to substantiate the others if it were neceschieftain becomes the national chieftain, he is apt
of the country; and if we in our capacity to consider all who oppose him as enemies to be pun
sary,) that they believed from circumstances here can uphold that sentiment it is our duty ished, and all who have supported him as friends to surrounding them at the particular time that to do it, and I for one am willing to take the be rewarded.
it degraded the American character; that it was responsibility: "Blind devotion to a party and to the head of a
I am not willing to violate party thus takes the place of the sentiment of genu
calculated to make clamorous partisans of the the Constitution to curb the President. I want ine patriotism and a high and exalted state of public Executive of all men who happened to hold to see my way clear; I want to see it perduty."
office for fear they might be removed; it took fectly clear; but I am willing to declare now I desire now to refer to one more authority, away the independence of those who were in that in every particular in which I can, for and I shall relieve the Senate. I refer to the office and made mere slaves and barnacles of the time being, curb that power constituopinion of Judge Story, in his Commentaries, those who were out. We see plenty of it now. tionally, legally, and in consonance with my to justify the legislation that is attempted by It is not worth while for us to disguise the fact ; own views of right, I will do it. I will do it this provision offered by the Senator from Illi- we know there is the greatest abundance of it because
he have personal knowledge of some nois. He says, on page 405 of volume two, at this day. We know that individuals in office appointments. I will do it because I believe section 1544:
who, judging from their past course, do not at that if this course of policy be persisted in we “Whether the predictions of the original advocates heart agree to the policy of the Executive, have || shall inevitably have further trouble in this of the executive power or those of the opposery of it become clamorous advocates of it, and we know | country. I do not charge that such is the are likely, in the future progress of the Government, to be realized, must be left to the sober judgment of
also that individuals who are outside have be- || design of the President. I hope that none such the community and to the impartial award of time. come clamorous advocates of the President's he has. . I alluded yesterday to a newspaper If there has been any aberration from the true constitutional exposition of the power of removal, (which
policy for the mere purpose of obtaining office. article; I have it with me now. We all know the rearler must decide for himself.) it will be dilli
If any incumbent of any office anywhere in the that there is a difference between the Presi. cult, and perhaps impracticable, after forty years' land stands in opposition to the President's dent and the Senate. It is not worth while to experience, to recall the practice to the correct the- poliey, there is somebody ready to take his disguise the fact; the country understands it. ory. But at all events, it will be a consolation to those who love the Union and honor the devotion to
place, and ready to declare his fealty to the Measures have been passed by this body and the patriotic discharge of duty, that in regard to 'in- policy of the Administration. Now, I do not sent to him which he has vetoed, and they have come back; one of them has been passed; when Mr. Buchanan left the Presidency, and belong to every man who assisted in upholding the other has been defeated.
We know per:
Mr. Lincoln came in, the idea of the southern and supporting the Government. That has fectly well that a very strong and powerful | people was that they for all time to come were been my view. I may be mistaken, but I enparty is being organized against the majority to be denied the public crib at which they had tertain it sufficiently strong to say that if the in this body. We do not know their future fed heretofore, and that that belief rushed them President will continue to carry out an antagointentions, we do not know their future designs; into this rebellion. I know they used the sla- nistic policy, denying to them the rights of life, but we do know that in just such periods as very question, but they used it as a means of liberty, and property, denying to them that are now upon us, in the past history of other putting themselves in power.
generosity and kindness which we are willing nations much trouble has come. I do not But, sir, I was saying that if a controversy to extend to them; if the President be unwillknow whether it is the intention to carry out of this sort should come, the issue would be || ing under any circumstances to extend to them the advice of many papers given to the Presi- the same that it was between Charles and the the right hereafter to participate in governdent in my State and in other States; it is not Parliament, and the result would be inevita- ment, which we are told must always rest upon only in the southern States that this advice is bly the same; but it would come after long || the consent of the governed in order to be truly being daily given, but it is in the great West | trouble, after much suffering, after many trib- | republican; if he will persist in that course of that we find advice of this character given to ulations. I know that Senators will say it is policy, I think it will justify us taking all legal the President. I hope that nothing like it will entirely unnecessary to refer to these things. || and constitutional means to restrain his power. be undertaken by him or others who agree or Mr. President, I tell you, and I tell Senators, But, Mr. President, I have said enough. I believe with him ; but we do not know to what that this controversy has gone far enough. I have frankly stated what my views are. I extent this vast power of patronage will urge do not say that it is our duty to cease; I do have no concealments to make. Others may the President; we do not know what he may not believe any such thing; but I would gladly || seek to conceal their purposes; I do not. I attempt; we do not know how confident he to-day, if it were in my power, bring it to an want to be justified first by the Constitution ; may feel in his position; we do not know end, as I gladly attempted for many months I want to be justified by laws that stand upon where this controversy that is now being car- before the controversy commenced, by all the a sound constitutional basis; and when I have ried on is to end. I take from a paper of very influence I could bring to bear upon the Execu- done that I would restrain this power, because great influence and large circulation in the tive, to avoid it. I feel that whatever the con- I believe that it is degrading to the country; West this extract:
troversy may lead to in the future, whatever because I believe that under Administrations "If the disunion majority in Congress persist in
calamities it may bring upon the country, my to come after us much harm may accrue to their revolutionary measures
skirts are clear, and that I did all in my power civil liberty in this country unless we pluck Several SENATORS. What is the paper?
to prevent it. I would that the course of the out this corrupting and baneful influence in Mr. HENDERSON. The Illinois State Executive had been such as to give the coun- the Government. Register, published at Springfield. try the real results of our victory.
Mr. JOHNSON. Mr. President, I rise with "If the disunion majority in Congress persist in
So far as I am concerned, I have not thought, no view to discuss the policy of the President their revolutionary measures, let the President take and I do not now think, that the Congress of of the United States, or to contrast that with care of them. Capitol prisons and Government bas- the United States has met this controversy as what is supposed to be the policy of those who tiles have yawned for purer patriots and better men than these incendiaries. Let the leader of the House,
it ought to have done. When the war com- differ from him and who constitute the majorThad. Stevens, and his revolutionists, and the leaders menced, it was upon the idea of the inferiority | ity of Congress. I have but a word to say in of the Senate, Sumner, Warlo, and others of that
of a race.
Mr. Stephens said that our fore- relation to the first, and that is that if I underelass, be seized in the Halls they desecrate and be imprisoned. Let the southern members of Congress
fathers had built upon a false idea, that all stand what his policy is in the particular rereturn to Washington and be duly installed in their men were equal; and that having built upon ferred to, it is that which was adopted and seats. Then, on promise of amendment, let these the sand, when the storms and the floods carried out to a certain extent up to the period revolutionists out, and the Union will bo restored indeed. That day will be an illustrious one for the
came their house fell. It turns out that Mr. of his decease by his immediate predecessor. country, and will make the name of Andrew John- Stephens was inistaken, and that the house But however that may be, it has nothing to son trebly immortal,"
we occupied was built upon the rock. The do, as I think, with due submission to my I took up a paper yesterday from New Or- idea of the equality of men should be inflexi- friend who has just taken his seat, with the leans in which I saw similar advice. The other | bly adhered to. The question might easily | question which is now submitted for the judg. day I took up a paper from Mobile, Alabama, have been settled when the war was over. ment and decision of the Senate. That
quesin which I saw similar advice. I alluded yes- Slavery was abolished, but slavery was the tion is one of constitutional law, and it should terday to language used by the Senator from mere result of an opinion ; that opinion was, not be influenced, whatever may be the fact, Kentucky, [Mr. Davis.) I regret very much that there was a dillerence between men, an by any political considerations except such as that I should have been the innocent cause of inferiority which justified one in making him- grow out of the nature of the Government the colloquy that then took place between him self the guardian of another, and that the constituted by the Constitution. We ought to and others. I take this occasion to assure the patriarchal relation necessarily resulted from ascertain what the Constitution is with referSenator that I was not aware that he had even this inferiority. When this house fell and ence to the subject before us, and to stand by neglected to publish his remarks made upon a when this idea was exploded we ought to it, no matter what its effects may be upon the previous occasion. I knew nothing of that, have adopted and insisted upon the other idea party political destinies of the country, and I did not allude to what he had said for of the absolute equality of all men, and built The question is whether, under the Constituthe purpose of criticising the conduct of that our house upon that. But we are not to do it ; tion, the President has the power to remove Senator in this body or of censuring anything I am perfectly aware of that; I know it will officers without the consent of the Senate; and that he may have said or done; but I alluded not be done.
the question, as it is presented by the amendto it for the purpose of showing that even gen- We shall fail in that endeavor, at least for the ment proposed by the honorable member from tlemen occupying places on this floor entertain present; but then how much have you changed | Illinois, comprehends every class of officers this opinion and have expressed it. If this the whole negro question; once it was slavery whom he may appoint with the advice and advice were carried out, do you not know that and anti-slavery; the negro was made use of consent of the Senate. It embraces, conseif the southern Senators should come here and merely for party power. Now the negro is quently the members of his Cabinet who are organize with the minority of this body, and free, to be sure, physically free; but we are called around him for the very purpose of aid. the southern Representatives should organize to have the contest over again as to whether ing him in the administration of his oflice, in with the minority of the other body they would he shall be free really. You have merely whom he is to confide, in whose sincerity of be in the majority? Do you not know per- changed the form of the controversy, and for friendship, political as well as personal, he ought fectly well that if the President has the power years and years it will go on as to whether to rely; and if the Senators will look to what to recognize them as the Congress, it will be- four or five million people in this country, was said in both Houses of Congress at the come absolutely essential for him to carry out || paying taxes, supporting the Government, bear || period when the several Departments were the advice given in this newspaper extract; ing arms in defense of your country in the great organized, they will see that it never entered that is, to seize the Union majorities of this war that we are to have with Austria and into the imagination of any of the statesmen present body and the other House and put other nations of the world, referred to by my of that day that the President could be comthem into bastiles? Do you suppose we should friend from Maryland yesterday, are to have pelled to retain in his Cabinet officers in whom silently submit? Would we any more do it any rights at all in the Government. The he had ceased to confide, no matter upon
what than the Parliament submitted to Charles I? policy of the Executive is, of course, that they ground his confidence was lost. If he sus
Sir, if unfortunately a state of affairs of that I shall have none. Thatis the controversy really. || pected a want of integrity, without having any sort should come upon us, we all know what Hence your Freedmen's Bureau bill was an positive proof, nobody doubted that it would would be the result: another war, the most cffort on the part of Congress to give them the be not only his right but his duty to remove. terrible ever seen or known in this land, would | rights that were about to be taken away from If he suspected or believed a want of fitness, be upon us. I know what the final result would them; hence your civil rights bill, which was the same was the universal opinion. If he be. We might have a longer war than we have to give them those rights of life, liberty, and suspected that they were hostile to what he had; more cities would be burned, more individ- property, which were denied to them by the believed to be a proper discharge of his duty, nals would be killed, more blood would be legislation of the southern States. Both of nobody questioned that he would have a right spilled ; there would be desolation in this land these bills were vetoed. My idea has been to dispense with them and to get around him not seen or dreamed of during the past war. that we needed no civil rights bill, though I men who would, with himself, be a unit with We know not where the ambition of man will voted for it; that we needed no Freedmen's rcference to all the executive functions ingo. I believe that the recent rebellion very Bureau bill, although I voted for it; but that trusted to that department of Government. But Targely sprang from this thing of appointments we could attain the object of both and reach if you adopt this amendment as it is now h and removals from office. I believe that ll it much better by giving them the rights that altered by my friend from Illinois, you to a
certain extent deny to him the right to remove laws; and how can he do it? Not personally; || time, and every Senate will hereafter, if that a Cabinet officer, because the amendment as it it can only be done through the instrumentality should be the ground of impeachment, tell now stands provides that if he does remove he of subordinate officers named in the Constitu- him in reply, “ It was your duty to remove the must at the next session of the Senate report tion, or officers appointed under the authority incompetent.” to the Senate the reasons upon which he re- conferred upon Congress by the Constitution. I know that when the question was first pre
What is to be the effect of that, pro- He finds that the laws are not being executed, sented, in 1787, there were differences of opinvided you have the authority to impose it? that an incumbent disregards his duty, is guilty ion, and I know that it was decided in favor Suppose the reasons are not satisfactory, is the of excesses, is dishonest, is appropriating the of what has been the practice ever since by Cabinet member who has been removed to be public money to his own purposes; what is he i the casting vote of the Presiding Officer in this reinstated? The amendment does not say so; to do? He cannot execute the laws except by body, but it received a majority of more than and if it did say so, what would be the prin- means of officers; he cannot gointo the country twenty in the House of Representatives. And ciple which the Senate would have adopted ? himself and collect the revenue; he cannot be at see what Chancellor Kent says upon the subThat of forcing upon the President of the Uni. every custom-house in the country and see to ject. He seems to have doubted. it as an orited States a Cabinet officer in whom he has no the collection of imposts; he cannot go him- | ginal question ; but after citing the preamble confidence, whom he believes to be untrue to self personally throughout the country and col- of the act of 1789, establishing the Treasury duty, incompetent to the discharge of his lect the internal tax, whatever that may be; he Department, which declared " that whenever office. The Senate may think differently from cannot execute the judgments of the courts; the Secretary shall be removed from office the President; they may believe that he has he cannot go with your Indian agents and see by the President of the United States," thus been true to duty, that he has every competency that they properly apply the money set aside assuming the power to remove, the commennecessary to the discharge of the duties of the by Congress for that purpose. He is ged
tator says: office, and so decide; is that to reinstate the to do it through the instrumentality of subor- "This amounted to alegislative construction of the minister who has been removed? This amend- dinates, and he finds that they are faithless; Constitution, and it has ever since been acquiesced ment does not say so. If it does not say so,
in and acted upon as of decisive authority in the case. what is he to do? You adjourn on the 4th of
It applies equally to every other officer of Governwhat is to be the effect of the amendment? To March ; you cannot sit longer at the second ses- ment appointed by the President and Senate whose get before the Senate some ground upon which | sion; you do not meet again until December.
term of duration is not specially declared. It is sup
ported by the weighty reason that the subordinate the other branch of Congress may impeach the According to this amendment, although he
Officers in the executive department ought to hold at President of the United States.
may turn out, (for the amendment does not the pleasure of the head of that department, because Now, I speak knowingly, Mr. President, | deny that,) he cannot supply the places of those
he is invested generally with theexecutiveauthority,
and every participation in that authority by the when I say that whatever doubt was expressed who may be dismissed; or unless he can find
Senate was an exception to a general principle, and during the session of the Congress of 1789 in | anybody disposed to take the place upon the ought to be taken strictly. The President is the great relation to the incidental power of the President | contingency that the Senate will thereafter
responsible officer for the faithful execution of the
law, and the power of removal was incidental to that to remove, no member of that body (and many approve of the appointment, the place is not
duty, and might often be requisite to fulfill it."of them had been members of the Convention to be filled.
Kent's Commentaries, part 2, vol. 1, p. 310. by whom the Constitution was framed) ever Well, then, your imposts are not collected; My friend from Missouri seems to suppose suggested that the President could be compelled your tax remains in the hands of those who that he has found in the case of Marbury vs. to keep around him any Cabinet oflicer whom are liable to pay it; the duties which you owe Madison, and in a subsequent case that he he desired to displace. Let gentlemen reflect to the Indians and the execution of your treat- cited from Peters, decisions of the Supreme for a moment. We are not legislating now for ies with them remain unperformed. The Gov. Court of the United States at war with that an hour. Whatever may be the supposed exi- ernment, in a word, comes to a stand-still; and principle. He entirely-I speak it respectgency of the time, growing out of any actual my honorable friend from Missouri thinks it fully-misapprehends both cases. The Conor supposed difference of opinion between the would be pregnant with great public mischief stitution of the United States provides for cerPresident and Congress, what we do now- to give to a President of the United States, tain officers by name; it gives to the President “Will be recorded for a precedent;
elected by a majority of the people of the Uni- of the United States the authority, by and with And many an error, by the same example, ted States, a power of removal because he may the advice and consent of the Senate, to appoint Will rush into the state."
abuse it. Certainly he may. Cannot we abuse to offices of that description. It vests in ConWe are but the creatures of an hour. This
our power? Are we individually better than gress the authority to give the power of appointnation, I trust, is to last as long as anything || he is? I do not speak of the present members ment of other and inferior officers to any other human continues, ever growing in prosperity of the Senate or of the House of Representa department of the Government that it may and power; and yet the principle included
tives or of the present incumbent of the pres- think proper; and as Mr. Justice Story says, within this amendment strikes a vital blow at idential office; but looking into the manner in in the passages referred to by the honorable the executive department, and is inconsistent
which they are respectively elected, is it a bit member from Missouri, under the latter authorwith all the objects which it was the purpose of
more probable that the President of the Uni- ity nearly all the evils supposed to be incithe Convention to have accomplished through ted States will be corrupt or prejudiced, almost dental to the sweeping power of the President the instrumentality of that department. The
to the point of practical corruption, than it is Senate are not to be told that the second article
to remove may be guarded against, because that some members of Congress may be cor- Congress. under the power of providing for of the Constitution of the United States, by
rupt; or to put a more respectable supposition, the appointment of inferior officers, have a which that department of the Government is
is it probable that they will be more enlight- | right to provide for the term of office, and to created, says that "the executive power shall ened and more able to see the true interests of be vested in a President;' nor are they to be
make the particular oflicer independent of the the country than the President of the United told that in the celebrated controversy between
And now, what did Marbury rs. Madison Mr. Madison and Mr. Hamilton in relation to
As far as my knowledge extends, nobody decide? Mr. Adams, just at the close of his the proclamation of neutrality, in letters writ
has ever impeached the personal integrity of administration, appointed a number of magis, ten over the signatures of " Pacificus" and
any President of the United States. As to trates here in this District, and he appointed "Helvetius," Mr. Hamilton took the ground || that, each has been spotless in the public estithat every power, executive in its nature, except | mation. Errors of judgment have been im
a good many judges under a law passed about so far as it was restrained by the Constitution, || puted to them; imbecility was imputed to him
the same time constituting additional circuits
of the United States, and making the Supreme was by force of the terms by which the execu
who preceded President Lincoln ; that is to Court of the United States exclusively an aptive department of the Government was created
say, an imbecility which unsuited him for the pellate tribunal. Before Mr. Adanus went out invested in the President. In the debate in
exigencies in which he was placed ; but in of office his nomination of Marbury had been 1789, to whieh my friend referred, Mr. Madi.
confirmed by the Senate, sent to the President, son expressed the opinion with such a positive point of personal integrity his character never
was assailed. Members of the Senate have and a cominission issued which he signed and conviction of its correctness that from that
been charged with improper conduct, and have which was deposited in the archives of the State time it has been practically acquiesced in.. A been expelled; members of the House of Rep. Department, but was not delivered. The Supart of the discussion in which Mr. Madison
resentatives have been charged with improper preme Court of the United States, upon an participated at that time the honorable mem ber from Missouri has not read. Let me call
conduct, and have been expelled. So then in application made by Marbury for a mandamus the attention of the Senate to it for a moment.
point of fact, looking to the experience of the to compel the Secretary of State, not the PresMr. Madison in that debate used this explicit
country, it is just as likely that misconduct ident, to deliver the commission, decided the
may be found in the Halls of Congress as that question of the right of Marbury to the comlanguage :
it may be found in the executive chamber. mission. With due deference to the very dis“I think it absolutely necessary that the President But what is to supply the evil consequent tinguished man then at the head of that court, should have the power of removing from office; it will make him in a peculiar manner responsible for
upon the inability of the President to execute and to those who were associated with him, I their conduct, and subject him to impeachment him
the laws because the officers placed under his must be permitted to say that in doing so they self if he suffers them to perpetrate with impunity charge are not fit, either morally or intellect- committed, in my judgment, a very grave
fault. high crimes or misdemcanors against the United States or neglects to superintend their conduct so as
ually, to execute the laws ? Above all, when || They committed the same fault which the Suto check their excesses. On the constitutionality of you charge him, as a Congress would have the preme Court afterward in the Dred Scott case the declaration I have no manner of doubt."
right to charge him ; when the judgment of is supposed to have committed. They comNow, let me stop for a moment to inquire, the country would charge him with having | mitted the fault of deciding a controversy in a if there was no such power of removal what || abandoned his duty in seeing the laws faith- case which was not before them, because after would be the condition of the country and what fully executed, and he comes before you and a labored and an able argument, as every arguwould be the condition of the President? He defends himself upon the ground that his offi- ment flowing from the pen of that great man is sworn to see to the faithful execution of the cers were incompetent, you would, at one ever was, they came to the conclusion at the end
of the opinion that the whole matter was coram conjunction with the Senate was an exception pose he comes to the conclusion that you have non judice, that the act of 1789 which gave an from what would otherwise be the power of no right to interfere with what he believes to authority to issue the writ of mandamus was to the President; and as the power of appoint- be his constitntional power, and the bill is lost, be construed in connection with the Constitu- ment in that view of it would have been an what will be the issue before the country? The tion of the United States, and in such a case executive power, not requiring the advice a:.d post offices all to be closed, the mails arrested, as was before them Congress had not power
to consent of the Senate, the power to remove, communication between the several sections clothe the court with the authority to issue the which was not provided for in the Constitution, of the country put a stop to. You will say it writ except in cases in which they had an appel- was a power resting in the President because is the President's fault'; but what will the late jurisdiction. Their original jurisdiction that also was an exccutive power.
President say?" I stood upon the ground being of a limited character and that not includ. My learned friend-and that, as I think, if || assumed by Madison in 1789 and never aftering such a case as Marbury presented, Congress there be an error in the argument, is the ground ward departed from ; questioned once or twice, had no authority, as they said, to give to the of the error-says there is nothing in the Con- but no measure ever proposed to change the Supreme Court of the United States the power stitution which gives to the President the power question of power." Do you not think that to issue the writ, and they dismissed the appli- to remove. Certainly not; nor is there any. the people will concur with the President, that cation and it has ever been a subject of regret thing in the Constitution which gives to the the fault is with us? If you should reply, when that principles should have been announced in President, by and with the advice and consent you are called to account for having closed the that opinion upon the merits of the controversy of the Senate, the power to remove. There post offices, that you were compelled to do it, which, as the result showed, in the opinion of are no such words to be found in the instru
the answer that could be and would be given the court were not before them. The court
The power to remove, if it is to be to you would be considered as a triumphant fell into the great error of assuming jurisdiction exerted by and with the advice and consent answer, Where was the necessity of clogging so far as to decide a controversy which they of the Senate, is a power incidental to the an appropriation bill with a measure of that afterward held in the same opinion was not power to appoint, and can only be placed upon description? Why did you not put it in a sepbefore them because of the want of jurisdiction; that ground. The Convention did not think arate bill and let the issue go before the coun. and the Supreme Court in the subsequent case it necessary to provide an express power by | try whether you were right or wrong, if the of Dred Scott, in the opinion of some, was which an incompetent officer was to be removed. President thought proper not to sanction that thought to have fallen into the same error, and They left it to be inferred; and Mr. Madison bill?" that in part has led to the severe animadver- and those who coincided with him (and the I have no particular desire, provided there sions upon that adjudication.
Government has been conducted ever since be a difference of opinion between Congress But, Mr. President, suppose it was before upon the hypothesis of the correctness of that and the President of the United States, to renthem, and suppose that opinion to be esteemed decision) considered the power to remove as der aid and comfort to Congress just at this as authority, what does it decide? That Con- an executive power, not dependent upon the || particular juncture; but I tell them, and I tell gress having created the office of magistrate, power to appoint with the consent of the Sen
them in ali sincerity, that I think I am giving an office not known to the Constitution, and ate, because that looked to one object and the aid and comfort to them when I appeal to them under their power to create having provided other looked to a different object. The one not to incumber this bill with a provision of this that the term of service of the incumbent should looked to the power to fill an office; the other || description. They will give to the President a be five years, the incumbent was not liable to looked to the power to remove an incompetent | power before the country that he does not now be removed until the expiration of that period, incumbent.
possess, provided you can carry it through both never denying-I think I speak knowingly; I have not time, nor would I fatigue the || branches, and provided he vetoes the bill, and Heaven knows I have had occasion to read the Senate if I had, by referring to Story for the the bill shall be lost on that account. judgment often enough - never denying the purpose of showing that he coincides with the As I said in the beginning, Mr. President, existence of the power decided in 1789 to exist view of Chancellor Kent.
As an original it is not my purpose to discuss the differences, in the President of removing officers generally; question he doubted the existence of the power, whatever they may be, existing now between and the same remark is applicable to the case not upon the ground of its supposed corrupt the President of the United States and Conwhich my friend has cited from the thirteenth or dangerous tendency, as it was questioned gress. I am willing, more than willing, to volume of Peters.
by a good many respectable and able men, but admit that if there be such differences, each of But if the honorable member had pushed his he came to the conclusion, in the words I have the parties to the difference thinks that he is researches further he would have found an- already read to the Senate, that it is incidental right; but I think I may say—I know I may other decision; and if he was at the bar, and we to the executive function, and is necessary to say-that those who differ from the President were trying a case, I should rather think it was enable the Executive to discharge his duty of ought charitably to conclude that he just as because he found something in it against his providing for the faithful execution of the firmly believes that he is right as they believe argument. laws.
that the contrary policy which they pursue is Mr. HENDERSON. I referred to it.
Now, Mr. President, whatever may be the right. There is an honest difference of opinMr. JOHNSON. The case to which I allude opinion of the Senate on this question, I sub- ion, if there be any difference of opinion, and was this: the Supreme Court having decided mit to my friend from Missouri, and those who || it is material to the interests of the country, in the case of Canter vs. The American Insur- concur with him on the question of power, in my judgment, that that honest difference of ance Company, reported in 1 Peters, that ter- whether it is advisable to put the proposition opinion shall be healed as speedily as possible. ritorial judges were not constitutional judges, in this appropriation bill. I do not know Let it break out as is suggested by the memand therefore were not judges to hold their what view the President will entertain upon ber from Missouri, speaking upon the authoroffice during good behavior, but could be re- the question. I know what Andrew Jackson ity of some Illinois paper; let it be carried to moved by the President at any time, Mr. Fill- would have thought of it and how he would the extremity recommended by that paper, and more removed one or two; and one of those have acted. He would have considered it a what will be our fate? God forbid that it judges applied for a mandamus to compel the direct infringement upon his constitutional should come to that result; but the mere threat payment of his salary upon the ground that the rights, and he would have vetoed the bill. of such a result is calculated to weaken the President had no authority to remove him, and Now, suppose the President comes to that Government in the estimation of our own peoof course that his successor was improperly determination, and you are unable to over- ple and in the estimation of the world at large; put in office. The Senate of the United States, ride that veto of an appropriation bill, the to break down the credit which we want in the power to appoint in a case of that descrip- whole appropriation will be lost.
We lost an
support of our finances; to unsettle that which tion being a power to be exerted in conjunc- appropriation bill here at the last session, and I had hoped the triumph of our arms had tion with the Senate of the United States, had a very important one, the miscellaneous appro- achieved; to bring about not a restored Union, approved the nomination.
priation bill, because there was tacked to it but a Union more distracted and a GovernDr. HOWE. The subsequent nomination. a provision that was offensive to the then ment in infinitely more peril than it was dur. Mr. JOHNSON. The subsequent nomina- President of the United States.
ing the worst period of the civil strife ont of tion; but the question came before the Supreme Mr. CLARK. It failed in conference. which, as far as arms could accomplish it, we Court, did that remove from office the original Mr. JOHNSON. It failed in conference have so gloriously emerged. incumbent? That raised the question whether | finally, but it was understood to be very dis
Mr. WILSON. We have some very importhe President had power to remove; and as tasteful to the then President and very distaste- tant business to transact in executive session, well as I recollect- I have not got the book ful to a great many members of this body, and and after consulting one or two Senators, I by me—there was no member of the bench the bill failed. Now, let me ask the Senate, as move that the Senate proceed to the considerthat suggested a doubt that as the Constitu- statesmen, as sensible and unprejudiced men- ation of executive business. tion was, in the judgment of that tribunal the and I certainly assume that that is the case Mr. SHERMAN. I trust the Senate will power to remove was vested in the President, with all whom I address-where is the neces- dispose of this bill to-day. We have been and pretty much for the reasons given by | sity of incumbering this bill with a measure engaged now for three days on a collateral Chancellor Kent. If the Constitution had not which may be provided for in a distinct bill question on an appropriation bill. If the moprovided that the appointment should be just as operative to effect its purpose, if it can tion is insisted upon, I shall call for the yeas and made in conjunction with the Senate, if it be passed, and without subjecting the particu- nays upon it. If the majority of the Senate had merely created the office and created the lar bill, an appropriation bill as important as really desire to prolong this constroversy, I executive department, the power to appoint this, to the delay, and perhaps to the defeat, should like to be informed of it, so that I may would have been vested in the President, because which may be the result of incumbering it with act accordingly. In order to test the sense of in its nature it was an executive power, and a provision of this description? Suppose your the Senate, I call for the yeas and nays on the therefore the provision of the Constitution | post offices are stopped. You know as much
motion of the Senator from Massachusetts. which required the appointment to be made in of the President's purpose as I do; but sup- The yeas and nays were ordered.
Mr. SHERMAN. I believe that if we pro- chooses to remove persons, we have a right to when such doctrines are advanced and claimed, ceed with its consideration we can dispose of say that those appointed in their places shall I think, without any impropriety whatever, Conthis bill in a few minutes, but if it goes over not be paid until the Senate has chosen to act gress may assert their right over the money of until to-morrow it will take another day. upon their nominations; but to put the Presi. the country, which they have unquestionable
Mr. WILSON. With the consent of the dent to the necessity in all cases of telling the power to do, without infringing upon the right Senate I will withdraw the motion; but I sup- Senate, if he nominates another person
of anybody, and say, that where things are posed, on consultation with several gentlemen, oflice, the reason why he does it, is a new thing. done contrary to the usual course, done hy some of whom now advise the other way, that Such a proposition was offered once in the time whom they may, they will hold on to the money it was the general desire that we go into execu- of General Taylor by my immediate predeces- | until the Senate has had an opportunity to tive session in order to give time to look into He brought it up over and over again in || judge in such cases. It is an imputation upon this question a little more carefully. I have a very strongly Democratic Senate. I do not nobody. I do not presume that President no doubt it would be better to do so; but at the remember whether they finally voted it down | Johason would do such a thing, or that he will same time I withdraw the motion.
or not, but if not, they got rid of it; they wonld take any offense at a provision of this kind. Mr. SHERMAN. I have not the slightest | not pass it at any rate, holding to the doctrine That the President has the power of removal feeling about the matter. If the majority of that the President, having the power of removal, from oflice I have never doubted, for the simthe Senate think that the bill had better go so long as he had it he must exercise his own ple reason that it seems to me to arise from over until to-morrow,
I have no objection ; discretion about that, and that with reference the necessity of the case; that in the recess of but I think we ought to finish it to-day and be to his appointments the Senate would consider Congress it may happen, and has happened, done with it.
whether they were proper appointments to be that a man may be guilty of such offenses that The PRESIDING OFFICER. The motion | made.
his removal at once becomes absolutely necescan be withdrawn by unanimous consent only, I see no impropriety whatever in saying that sary; and in that case certainly the Presthe yeas and nays having been ordered. The
when appointments are made during the recess, ident should exercise the power; and in that Chair hears no objection. The motion is with- especially those which might as well be made to case, or in any similar case, for any good readrawn, and the question is on the amendment the Senate when it is in session, payment to son; in any case, in fact, which did not upon its proposed by the Senator from Illinois.
those appointees shall be deferred until they face present a gross dereliction of duty and a Mfr. TRUMBULL. On that question I ask || have been confirmed. I do not think there is violation of the principles of the Constitution, for the yeas and nays.
anything personal or offensive in making that Congress would not hesitate to pay the money The nays were ordered.
rule. The doctrine which has been broached to the officer appointed. Mr. CONNESS. I believe there has been a lately, and a matter conversed about under the Mr. HENDERSON. Then let me ask the material change made in that amendment this | administration of President Lincoln, was car- Senator, why refuse to pay the man? If the morning, and therefore I ask for its reading. ried as far as this: that the President might nom- President can constitutionally remove an offi
The Secretary read the amendment, which inate an officer during the recess of the Senate, cer and then make an appointment, of course was to insert as a new section the following: which would hold up to the conclusion of the the Constitution gives him a perfect right to fill
And be it further enacted, That no person exer- next session, and if then he was rejected or the vacancy until the last day of the next sescising or performing, or undertaking to exercise
turned out, or at least not acted upon, it was sion. or perform, the duties of any office which by law is required to be filled by the advice and consent of the again a vacancy arising in the recess of Con- Mr. FESSENDEN. I would not refuse to Senate, shall, before confirmation by the Senate, gress, and the President might immediately put
I would, whenever the case came receive any salary or compensation for his services,
the same man in that the Senate had refused to unless such person be commissioned by the President
before me, vote to pay him ; but I say that in to fill up a vacancy which has happened during the confirm; and thus, in spite of the Senate, in view of the principle that has been acted upon recess of the Senato, and since its last adjournment spite of the constitutional provision, the power in some cases, and avowed by gentlemen as a by death, resignation, expiration of term, or removal
of appointment would rest entirely in the Pres- correct principle, that the President can aphis plice; the cause, in case of removal, to be reported ident, and the Senate was a nullity. I do not point during the recess, and when Congress to the Senate at its next session.
know and do not presume that President John | adjourns, the Senate having rejected that man, Mr. FESSENDEN. As the amendment son would attempt to do anything of that de. can appoint the same man over again, it is offered by the Senator from Illinois stood yes- scription. It is to be presumed he would not; necessary that we should express our opinion terday, I should have very readily voted for it. but President Lincoln did, certainly in one on such a power. I would have done it before I did not think it worth while to go into any case. I thought at the time it was exceedingly | if I had had an opportunity to do it, and there, argument on the subject. The constitutional || improper, and if the doctrine was followed out fore, as I would have always acted upon it, I right is very clear, so far as the appropriation and the practice became fixed, that in reality am perfectly willing to act upon it now. of money is concerned.
We can make any the Senate would amount to just nothing at all. Mr. SHERMAN. If the amendment were rules in reference to that that we please. Mr. JOHNSON. It is grossly improper. confined to that class of cases it would be all The last clause, however, which is now intro- Mr. FESSENDEN. Undoubtedly. That duced by the amendment this morping is very was in the case of a judge appointed in this Mr. FESSENDEN. You cannot tell whether objectionable to me, and I hope the Senator District. The Senate refused to confirm him, || it is one of that sort until the question comes up. from Illinois will withdraw it.
once rejected him; it was then reconsidered, * Mr. SHERMAN. Take the case of a CabiMr. TRUMBULL. I preferred the amend- and the matter went to the last day of the ses- net minister, or a more exaggerated and harder ment as it stood yesterday myself, but several || sion and he was not confirmed, and imme- case than that, the case of an internal revenue Senators around me insisted upon having in it diately after the adjournment of the Senate he officer, who is compelled to pay the deputies a provision in regard to removals; and I put it was reappointed by President Lincoln, and he out of the fees; and would you require him to in at their suggestion. was afterward confirmed by the Senaté.
act until the close of the next session without Mr. FESSENDEN. As it stands now I can- Mr. JOHNSON. That was Wylie's case. receiving any pay? not vote for it with that clause in it.
Mr. FESSENDEN. I voted against him Mr. FESSENDEN. I do not think there Mr. SHERMAN. I hope the Senator from finally, and I would vote against any man sim- need be cases of that description, because the Maine will now agree with me in the suggestion || ply on that ground: that it is an encroachment first assistant of the collector or assessor who that I made the other day, that this matter upon the rights of the Senate, and if acceded was removed would discharge the duties until might be put on some other appropriation bill to and followed the result is inevitable that the appointment was made. just as well. We have at least seven or eight the Senate is no part of the appointing power Mr. SHERMAN. He cannot use a dollar appropriation bills; this is the first; and it is which the Constitution makes it. It was done of the money. The money is all paid into the scarcely worth while, when there is so much in another case, and a more gross case, in my Treasury. difference among ourselves in regard to the judgment, and that was in the case of General
Mr. FÉSSENDEN. I do not see that any very phraseology of this provision, to put it on this | Blair, who had resigned his command and had great inconvenience would arise. At any rate bill. I hope, therefore, it may be withdrawn been sworn as a member of the other llouse; I do not feel disposed to argue that point. I from this bill, and if it is necessary at all, let his resignation had been accepted; and after have long felt that with reference to appointit be put on some other bill.
the Senate had adjourned, I believe, the Presi- ments the power was tending too much in the Mr. FESSENDEN. So far as that is con- dent undertook to put him in command of a direction of nullifying entirely the action of the cerned, I cannot control or would not under- corps of the Army.
Senate, and that it was time we should assert take to control the action of the gentlemen who Mr. JOHNSON, and others. It was during our own power over the question in some prachave moved it as an amendment to this bill. I the session of the Senate.
tical way, and I know no way so practical as do not see anything very inappropriate about it, Mr. FESSENDEN. While we we were in this. I had therefore made up my mind to vote if they choose to move it, because it has refer- session; and the Senate and the House of Rep- || for the amendment if it was presented, although ence to the expenditure of the money and may resentatives, by almost unanimous votes, re- I wonld rather have it in some other place than very properly be here, if gentlemen insist on proved the President in fact for doing so. I on this bill; but of that I do not assume to keeping it here. But the proposition as it || remember that I remarked at the time, or judge. But with regard to the last clause of stands now has a look that is disagreeable to || shortly after, when I went into the Treasury the amendment as it now stands, that the Pres
Department, that if it was in my power to do ident when he exercises the power of removal Mr. HENDERSON. It admits the power. it-which it was not, because I had no control shall in all cases be bound to give his reasons
Mr. FESSENDEN. I object to this last over it-he never should have been paid a dol- to the Senate, I think it is offensive in its very clause requiring the President in case of re- lar for the services rendered by him, because nature and character, and I cannot consent to movals to give his reasons to the Senate. I do I thought his appointment was in gross vio- vote for it if it stands in that way. not think we have a right to require that. If lation of the Constitution.
Mr: TRUMBULL. In my desire to accomthe President in the exercise of this power Now, sir, when such things are done and modate our friends I changed the amendment