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consequently no evil can arise until after the
have entire control over this question, and that
Now, what are the plans of the two, so far
Now, what is the policy of Congress? That is the most difficult thing to ascertain that I know of. It is stated that we want security for the future. I admit that. I feel the necessity of security for the future. I am a warm advocate for all the securities that can be taken for our republican institutions in the future. I will go as far as any man in this Congress to obtain those securities which shall do us some good. I am not afraid to meet any question, whether it may be called popular or unpopular, when the emergency arises to obtain a guarantee for security for the future; and I am not afraid to advocate any proposition which will give us security for the future.
The question of negro suffrage has been the only grand difficulty. I stated to my constituents before I left home that whenever I came to the conclusion that negro suffrage was a necessity as a security for the future in the reconstruction of these States I should go for it. I came here. I found both Houses of Congress advocating this theory. I found them laying down the doctrine that it was the only security that could be taken. I found them earnest in its advocacy. In the other House a bill was introduced granting universal negro suffrage in the District of Columbia. That bill drew forth a discussion which will mark the annals of the history of debate in America to all time. I read that discussion attentively. That bill passed the House of Representatives by more than a two-thirds vote. It came to the Senate. The Committee on the District of Columbia, however, saw fit to amend it by restricting the suffrage and rendering it partial; but on motion of the Senator from Illinois [Mr. YATES] the bill was recommitted by almost a unanimous vote of this body, for the avowed purpose of making suffrage in the District of Columbia impartial; and from that day on until the 16th day of March I heard eloquent and able speeches on this floor upon that question, declaring that it was the only security that could be given for the future, and I became satisfied that Congress would do nothing else. I, however, continued to mention the difficulties in the way, the prejudice which existed in nineteen northern States that had the word "white" in their constitutions. The radical press assailed me; I was assailed in this Chamber and
Mr. SHERMAN. I have already stated that we can declare that an officer shall hold his office only for such a term, and that he shall not be removed, or we may take away from the President the power to appoint these officers, or give it to another department or officer. Mr. HENDERSON. I thought that was the object of this amendment.
Mr. STEWART. Mr. President, as I am in favor of reconsidering this proposition and rejecting the proposed amendment, it may be proper for me to state my reasons, as they are somewhat different from any reasons that I have heard. If my views had been expressed by any other Senator I should not take this occasion to trouble the Senate with any remarks on this subject.
I have no doubt of the power of Congress to refuse to pay the appointees named in this amendment, or to refuse to pay anybody else, or to refuse to pass any appropriation bills whatever. I do not think there is any doubt about the power of the President to veto any bill that we may pass. I do not think there is any question of power involved, because that is ample. We can refuse to pass any bill or make any appropriation; but it is a question of policy, a question of a correct line of conduct. Inasmuch as it has been the habit in this Government for the last thirty years for the President of the United States to remove officers during the vacation of Congress and to appoint and commission others, and for the Government to pay them, there must be some new condition of things to make a law of this kind necessary at this particular time. It has not been the policy of Congress for the last thirty years to pass a law of this kind, and of course there must be some special reason now influencing Congress inducing them to pass such a law at the present time.
I have heard a great deal about the President's policy and the policy of Congress. I have heard a great deal about sustaining the policy of the President and sustaining the policy of Congress. The object of this amendment, so far as I have been able to learn from the course of this discussion, is to prevent the President from using this patronage in support of his policy. The world will so understand it. I believe that has been avowed here upon this floor. I do not think any one doubts that the object of this legislation is to prevent the President from using the power of his patronage to sustain his policy, it is said, as against the policy of Congress. If it be true that the President has a very bad policy, a policy that will be entirely destructive to the country, and Congress has a very good policy that will save the country, then it may be well to exercise this extraordinary power, unusual as it is; but that involves too extended a discussion for the present time. There is no danger until Congress does adjourn. While Congress is in session the Senate can reject all the appointments of the President; they need not confirm any of his appointments that are not suitable, and
elsewhere as unsound, because I did not see my way clear. I could not be convinced that Congress would stand up to its principles, but I was laughed at for so thinking.
While I heard some Senators here contending for this principle, while I heard the voice of the press contending for suffrage for the blacks, I also heard others contending for the punishment of traitors and the disfranchisement of rebels. I was aware how popular that cry was; but I reflected that disfranchisement was the old road to tyranny. I reflected that it was the effort of faction to disfranchise faction that had sunk in oblivion all the republics of antiquity. I reflected that in modern times we had examples of disfranchisement in Ireland and Poland. I reflected that Mexico for the last fifty years had been playing this game of disfranchisement; that each faction that would come into power would disfranchise the others, and the result was anarchy. I reflected upon the argument that the honorable Senators made on this floor to the effect that the evil under which we are now laboring was the disfranchisement of four million blacks; that the experiment of disfranchisement in the South had nearly ruined the country, and brought on the recent war; that the cause of that war was the violation of the great principle of enfranchisement; and I shuddered at the idea of adding fuel to this fire, adding to the disfranchised blacks seven million disfranchised whites. I believed that what we wanted was amnesty and suffrage. I believed that we wanted amnesty for the rebels, suffrage for the blacks. I believed that we wanted to turn our attention to the principles of democracy, to put faith in the people. I saw no other road out of this difficulty, and finally arriving at the conclusion that Congress was in earnest, I introduced a resolution proclaiming universal amnesty and impartial suffrage. I repeat, I came to the conclusion that what the country wanted was amnesty to the rebels and an extension, not a limitation, of the suffrage; that all our ills had grown out of the fact that we had deprived four million blacks of their civil and political liberty, and that violation of the democratic principle had brought on this rebellion, and caused all the trouble we have had.
I know you say these men are rebels and should be punished. That is what was said in Mexico. That is what was said among the factions in Rome. It is the same argument that they used at the time they murdered the Catiline conspirators. Cato used the same argument, and in a few years afterward the same argument was used and drove him from Rome and made Cæsar imperial. This argument that you use to disfranchise men leads to despotism, and it is a dangerous argument. It has been for insubordination, for treason, that the majority of mankind have been disfranchised; and you cannot show an instance on record where any good result has come from disfranchisement. On the other hand, we have some glorious examples of the beneficial results of a contrary policy. Scotland was enfranchised, Ireland disfranchised; compare the two. Compare our own progress with that of Poland. We have been enfranchised, Poland disfranchised. We were enabled to throw off the yoke when Great Britain attempted to disfranchise us. We have an example of the evil effects of disfranchisement in our own country. We found that the attempt to disfranchise the negroes, inferior as they are, few in numbers as they are, compared with the rest of our population, shook this great Republic from center to circumference, and now threatens its overthrow. However you may 'beat about the bush," I believe on full reflection that if this controversy is ever settled you will come down to the principle of impartial suffrage and universal amnesty, or as near as may be. The mere exclusion of a few leaders from office is immaterial, one way or the other, but you must come down to that principle if you ever have a settlement.
Now, what is the policy of Congress on this
vote for their own disfranchisement, they are less than slaves. I propose to call upon them for the enfranchisement of all men, but I never will submit to the proposition to call upon the South to vote for their disfranchisement.. It may be inferred by this time that I am opposed to some of the provisions of this plan. I shall not be very enthusiastic in advocating a provision of this kind in our plan, but I do believe that discussion and time will bring us a good plan, and then let us commence our war on all who oppose our principles; but let us organize first.
The fourth section is a good one. It repu
diates the confederate debt and all claims for damages for the emancipation of slaves. That is all right. Then it is provided that these amendments shall have been adopted by three fourths of all the States before any one of the southern States shall be admitted. You are not calling upon them to act individually. Their action will do them no good. It seems to me, as it stands, with a provision calling upon the South to vote to disfranchise themselves and making it impossible for them to get in unless they will consent to their disfranchisement, and postpone their admission until three fourths of the States adopt these amendments, it is not a very good plan. While I do not fully approve of the President's plan I freely say that I think the President's plan is a better one than the plan of the committee. I believe that we can get a better plan than either. I do not believe this report reflects the sentiment of any member of the committee. I believe it is a compromise of contending forces and conflicting opinions. They have gotten wearied of the subject. I believe if we get it into Congress and discuss it we shall develop something from this plan which will be more satisfactory. I do not believe any gentleman on that committee will say he favors that entire plan, but he will say, "I submitted to it in order to get a report. As it stands thus, let us postpone any outside issue; let us direct our attention to the work of reconstruction legitimately, and it seems to me fruits may come of it. We certainly never will agree upon a plan if we commence warring upon the President without a plan, distract our forces, and reduce our majority requisite to pass the plan when agreed upon; and consequently I hope that this amendment will be withdrawn and postponed until we know whether the President agrees with us or whether we differ from him.
case. I rise principally for the purpose of saying that I agree fully with the honorable member from Ohio, [Mr. SHERMAN,] that in relation to all inferior officers, it is competent for the Congress of the United States to vest their appointment either in the President alone, or in the heads of the Departments alone, and to provide either that they may be turned out by the party in whose power the appointment is vested or that they may not be turned out. In the case of Marbury vs. Madison, referred to by my friend from Missouri [Mr. HENDERSON] the other day, it will be found that Chief Jus tice Marshall, speaking for the whole court in that case, went upon the ground that the particular officer whose commission was involved being an inferior officer and his appointment by act of Congress being for the period of five years, it was not in the power of the President to remove him during that period; and Mr. Justice Story, in those passages of the Commentaries to which the honorable member also referred, takes the same ground, and I have never heard it disputed, that it is in the power of Congress by law to place inferior officers in a situation to which the power of removal by the President will not apply, to withhold from him a power which he has not except with the consent of Congress, as far as the inferior officers are concerned. In the absence of any provision in relation to such inferior appointments, placing the appointee out of the reach of the party who is to appoint for the term of the law, whether he be the President or the head of a Department or a judge of the court, it is in the power of the appointing power to remove; but it is in the power of Congress to provide that there shall be no removal in such cases except upon such terms as Congress themselves may provide. The honorable Senator from Ohio, therefore, in my judgment—and I can add nothing to the force of his argumentis clearly right in the opinion that he has expressed. It is an opinion that I have held for many, many years. I entertained it after an examination of the subject during the Presi dency of General Jackson.
I said the other day that the authority of the President of the United States to remove had not only never been denied by the Supreme Court in any of the cases in which that question was presented, but had been virtually admitted. The case that I had in my mindthe name of it, however, I did not for the mo ment recollect-was the case of ex parte Hennen, reported in 13 Peters. Hennen was a I did not intend to be drawn into a prema- clerk of the district court of the United States ture discussion of this question, and perhaps I for Louisiana. The act of Congress gave to have anticipated too far the discussion that that district judge the authority to appoint the must necessarily arise upon the report of the clerk, and without assigning any cause for his committee. I do not intend to despair of get- removal other than the wish to appoint a perting a good proposition submitted to the coun- sonal friend, which appeared in the proceedtry. I still have the utmost hope. I shall stillings, he removed Hennen and appointed somedo all I can to secure that end. If we can form body else, and Hennen applied for a mandamus none that is feasible, then I shall do all I can to compel the district court to reinstate him in to prevent any special war being made upon the office. The court, in the opinion as deliv the President, because if we have failed he has ered by Mr. Justice Thompson-as we all know, done no more, and we have no right to com- one of the ablest judges who ever sat upon that plain. I want to be distinctly understood that bench-throughout recognized, as I think, the I shall not vote to destroy what has been ac- authority of the President to remove. I will complished by the President until a better plan read a sentence or two from that part of his of reconstruction has been agreed upon by Cou- opinion. He says: gress; and if he can use his patronage in aid of his policy let him do it, for unless we have a plan and a policy to vindicate we will have no use for patronage.
question? It is not what it appeared to be when Congress met; and I mean to be understood on this point, I will change every time I see a principle that I have never discovered before, but I will not change and go backward unless I see a cause and a principle. I say that the position Congress occupies to-day is not a strong one. We have before us the report of a committee on this subject; a committee that has had great difficulty in agreeing; a committee composed of worthy and leading men in both Houses; a committee whose report is regarded by the country as extremely important, as reflecting the sentiments of this body-a report which I do not now propose to discuss, but which, if adopted, will become a policy. But, before we undertake war with others, let us organize and agree among ourselves and examine this report, and lay down the rules that shall govern us. I will look at that report for a moment, because I think it is important.
The first section of the constitutional amendment reported by the committee, if it stood alone, would grant universal civil and political rights, if it means anything. I think, however, that that was not the intention. that was not the intention, it adds nothing to the Constitution. It is evident that such was not the intention, because the second section provides for a case wherein the States deny the suffrage. It admits that that is a part of the programme, that they may deny suffrage. The second section, which is regarded as so all-important, is a provision that has been discussed in its substantial features in this body for weeks, and has finally been voted down. If in making these constitutional amendments we are to be the judges, as we are from necessity, in our own case-because we cannot, until these guarantees are fixed, allow the South to come back, and we must judge for them and ourselves-I say then in examining the amendments, I want to judge impartially. I say this provision is not impartial. If a move in that direction is to be made, changing the basis of representation, we should change it from numbers to voters and not invent an unfair proposition as this is. Being a judge in my own case, I want to judge fairly. This section provides, by its practical operation, for excluding from the basis of representation the non-voting population of the South and including the non-voting population of the North. The non-voting population of the South, according to the contemplation of this amendment, are the blacks. They will be excluded because they are native-born. The non-voting population of the North are aliens, and they will be included because they are not citizens. I say, therefore, that this provision is unfair, and it will be regarded as unfair in its operation. If you are going to make a change in the basis of representation change it to voters, which I have always contended for.
But I say, furthermore. that I do not believe there is any necessity for this change. I believe that if we plant ourselves on the original principle of democracy, that all the people shall be trusted to vote, we will find no necessity for these expedients. I hope that before this session closes we shall arrive at some conclusion of that kind. I am opposed to wasting our strength now in a war with the President until we have spent our power upon these amendments and attempted to agree and have a firm foundation. He can do no harm until that is done; and when we have planted ourselves on the broad principles of democracy and equal rights to all men, we can stand forth bold and strong; our principles will fight our battles for us; but until we have a platform of principles upon which we can stand, it seems to me idle to fight the President.
The third section submits a proposition to the southern States to vote for their own disfranchisement. I say that when they vote for their own disfranchisement they are no longer entitled to freedom, and it should be the work of the United States to provide a penal colony for them and send them there. If they will
Mr. HOWE obtained the floor.
Mr. JOHNSON. As I am obliged to leave the Senate, I appeal to the honorable Senator to permit me to detain the Senate for about ten or fifteen minutes only.
Mr. HOWE. Certainly.
Mr. JOHNSON. Mr. President, I do not know that I made myself understood when this question was before the Senate on a former occasion, and it is likely that some of the members of the Senate may have supposed that I was of opinion that it was not in the power of the Congress of the United States to interfere with the President's right to remove in any
"It cannot for a moment be admitted that it was the intention of the Constitution that those offices which are denominated inferior offices should be held for life. And if removable at pleasure, by whom is such a removal to be made? In the absence of all constitutional provision or statutory regulation it would seem to be a sound and necessary rule to consider the power of removal as incident to the power of appointment. This power of removal from office was a subject much disputed and upon which a great diversity of opinion was entertained in the early history of this Government. This related, however, to the power of the President to remove officers appointed with the concurrence of the Senate: and the great question was, whether the removal was to be by the President alone or with the concurrence of the Senate, both constituting the appointing power. No one denied the power of the President and Senate, jointly, to remove, where the tenure of the office was not fixed by the Constitution: which was a full reeognition of the principle that the power of removal was incident to the power of appointment. But it was very early adopted, as the practical construction of the Constitution, that this power was vested in the
of the Government to remove without assigning any cause; and it has now become, as I think, the settled construction of the Constitution, that so far as relates to appointments which you have given to the President, although they are to be made by and with the advice and consent of the Senate, he has a right to remove, and has a right to fill the places made vacant by removal, provided the removal is made during the recess of the Senate.
Mr. HOWE. Mr. President, I shall be very reluctant to see this vote reconsidered and to see this amendment rejected, because I think the amendment a very proper, a very judicious, and a very necessary one. There is no mere measure of expediency and but few of necessity the defeat of which would occasion me so much chagrin and mortification as to have any measure of any kind prevail by the sort of argument which is adduced in support of the reconsideration of this vote. I could not but regret most deeply that the Senator from Ohio [Mr. SHERMAN] thought fit to introduce here the argument which he has laid before the Senate. What is it? Conceding, for the purpose of his argument, our right to adopt this amendment, he still invokes the Senate not to do it; and why? Because it involves the Legislature in a collision with the Executive. For twenty years prior to 1860 a great deal of the legislation of this body, and a great deal of the political action of the people of the United States was controlled, not by appeals to the judgment of legislators or to the consciences and convictions of the people, but directly to their fears. The argument more potential than any other that was heard throughout the Republic was, upon various and sundry questions, not that it is or is not right and expedient, but you must adopt this or reject that; if you do not there will be a collision somewhere. I am glad to know that in those days, which I sometimes am made to fear were braver days even than these, there was no attempt to frighten the Legislature by pointing out the horrors of a collision with the President. We were threatened invariably with collisions in different portions of the Union. Different States of the Union said, if you do not submit to this policy, or to that, the Union will be disrupted. That was the threat which was held over the Legislature in those days. But now we are urged to pause, to reject an amendment conceded to be addressed to the discretion of the Legislature, because within its jurisdiction, for the simple and single reason that if we adopt it it may involve us in a collision with the President of the United States. Sir, if the Constitution, which we talk of frequently and which we regularly swear we will support, meant anything, if it meant to secure anything, it meant to secure a body to enact laws that should be as independent of the President as the President is of the Legislature.
Mr. STEWART. Will the Senator allow me one word at this point?
Mr. HOWE. Certainly.
Mr. STEWART. The Senator misapprehends me▬▬
Mr. HOWE. I am not referring to the Senator from Nevada. I have not got to him yet. Mr. STEWART. The Senator misappre hends me if he supposes that is the ground I place it upon. I place it on the ground that I do not know whether we have got any use for any such war as yet, and I want to wait and see.
President alone. And such would appear to have been the legislative construction of the Constitu
Then he refers to the acts constituting the several Departments of the Government, and in speaking of that which provides for the constitution of the Navy Department, he says:
"When the Navy Department was established in the year 1798, 1 Story, 498, provision is made for the charge and custody of the books. records, and documents of the Department, in case of vacancy in the office of Secretary, by removal or otherwise.'
In all the other laws, the provision is "by removal by the President or otherwise." The words "by the President" are omitted in the act establishing the Navy Department.
"It is not here said, by removal of the President, as is done with respect to the heads of the other Departments: and yet there can be no doubt that he holds his office by the same tenure as the other Secretaries, and is removable by the President. The change of phraseology arose. probably, from its having become the settled and well-understood construction of the Constitution, that the power of removal was vested in the President alone in such cases, although the appointment of the officer was by the President and Senate."
Mr. FESSENDEN. What is the Senator reading from?
Mr.JOHNSON. Thirteen Peters, page 259; and from that time to this-I am sure I can say with truth that I speak knowingly- -no judge of the Supreme Court has ever questioned the power of the President to remove, although the appointment is made by and with the advice and consent of the Senate. My honorable friend from Ohio has said that it never could be in any state of excitement the design of Congress to deny his right to remove his Cabinet officers; and yet it is in the power of Congress to repeal all the laws by which those officers are appointed. Cabinet officers are not provided for in the Constitution. His authority over them is derived from that part of the Constitution which says that he shall have the authority to appoint all the officers particularly named, and all officers the appointment of whom is vested in the President and the Senate. Congress may, therefore, repeal those laws and leave no Cabinet officers at all, and the President will have to act upon his own judgment; but the good sense and patriotism of the men of 1789 showed how important it was that the President should have official advisers, and they therefore provided that the heads of these several Departments should be what is termed the Cabinet of the President; and in all the laws providing for the appointment of those officers it is assumed that the power of removal shall remain in the President.
Now, my friend has said that we can provide against any removal by the President of postmasters and collectors of the revenue. That is all true. We may by law give to the President the power to appoint those officers and deny to him the power to remove them. We may give to the Secretary of the Treasury the like power and deny to him the power to remove them; but I am sure no Senator would be willing to say that the power of removal, in cases of that description, should not be vested somewhere; and the question, therefore, which would present itself, if such a measure was proposed to the Senate, would be, where will you vest it? Will you vest it in the President of the United States? If not, will you vest it in the Secretaries? It must be vested somewhere, or we must run the risk of having dishonest or incapable officers in the several Departments of the Government. If you vest it in a Secretary, the President can remove the Secretary, and appoint one who will suit him better, and thus effect the same object.
I agree with the honorable member that it is advisable that the patronage of the Govern ment should not be used for political purposes. In the beginning of the Government, and in the debates in 1789, which led to the determination of Congress that the power to remove was in the President, it was stated, and it is so stated, I think, in one of the numbers of the Federalist, that the exercise of that power, without cause, would be a good reason for impeachment. But it has long been the practice |
Mr. HOWE. If my friend from Nevada will wait and see, he will know when I reach him. I was referring to the argument introduced by the Senator from Ohio. I say the Constitution intended that the action of this law-making tribunal should be absolutely independent of the action of the Executive, except through the simple exercise of the veto power. But the argument which is paraded here calls upon us as a matter of usage, as a matter of expediency, as a matter almost of necessity, to inquire at the White House what sort of legislation will be approved there before we venture upon it. I am unwilling to see any such usage
adopted. I shall regret most profoundly the day when by any act or vote of the Senate or of the House of Representatives such a usage shall be sanctioned or seem to be sanctioned. When any proposition is laid before this body I ask, and I think I have a right in the name of the Constitution to demand, that its merits shall be passed upon with strict regard to its own terms. If we, a majority of this body, approve the merits of the proposition, we have no right to reject it. We betray what, in our judgment, is the true interest of the people if we do reject it. No man has a right to tell us that the President will veto the bill, and we have no right to listen if we are so told. When the Senate approves a measure right, it is bound to assume that the President will think it right, and that he will approve the measure; and upon this point I will not believe any testimony except the direct and official testimony of the President himself. When we have considered and approved a measure, then he is called upon to consider, and approve or disapprove; and when he has had an opportunity to consider, and has told us that he disapproves, I will believe him, and I will believe no man but him.
I therefore lay out of view entirely the suggestion that the adoption of this amendment will involve us in any controversy with the President. If he does not approve of the bill with this amendment upon it, he will veto the bill possibly; if he does not see fit to approve the bill, he will unquestionably veto it; and then the two Houses will be called upon to determine what they will do in that contingency, to pass upon the reasons he gives for not approving the bill.
But, says the Senator, it is an amendment to an appropriation bill-an appropriation bill every dollar of which is needed for the good of the public service, and by putting upon this bill this measure which may prove obnoxious to the President, you jeopard, you hazard the safety of the bill. How so, or if so, what pos sible measure can you put into an appropriation bill and not run the same hazard? Every single individual appropriation in this bill might have been opposed upon precisely the same ground. If any Senator had assumed to say the President is opposed to this or that appropriation, he could have called upon us with just as much authority to lay aside that particular appropriation upon peril of having the bill vetoed, and the appropriations lost in case we put it in. This is only designed to be one of a great many provisions in a single bill. It is not in terms an appropriation. It is in terms a direction as to the disbursement of the money appropriated, and I know of nothing more proper or more regular than the imposition of just such regulations as this, touching the disbursement of moneys upon bills making appropriations of public moneys.
But, says the Senator, if we do put it on and if the President does veto this bill, then the postal service must suffer and languish through a whole year, and we shall be held responsible. Why shall we be held responsible? What shall we have done to occasion this disaster to the postal service? We have seen fit to incorporate a section into the bill making appropriations for that service, which we approve, which we deem right in itself, and it is conceded by those who urge this argument to be right. We put it on to this bill; and the President, it is assumed, does not approve it, and therefore he will not assent to the appropriations, and we are to be held responsible for the disaster that overtakes that branch of the public service. I conceive that he who wrongfully refuses to approve the bill is alone responsible for the consequences that follow. If we put a provision in this bill which the President ought not to approve, then he is justified in vetoing the bill, and the consequences that may follow upon this service justly attach to us; but if we put nothing on this bill but what the President ought to approve, then I do humbly conceive that he ought to approve the bill, and if he refuses to approve the bill he is not only re
that wait to be provided for. I will not encourage the President to postpone that act of justice until this Congress shall have adjourned, and then do it upon his own private account. Let him do it now, because now justice waits to be done; let him send here the names of these crippled soldiers and let us pass upon the case. We can coöperate now, we are here to cooperate with him both in the act of removal and in the act of appointment.
The Senator admits, and I believe all who have spoken in opposition to this amendment concede to-day, that the power is in the Legislature to fix the terms of all these officers and to take from the President the right, if he has it, as I think by the statute he has, not by the Constitution, to remove any of these officers. We can, it is said, take that from him; and they say, why not do it? This is an indirect method of accomplishing the purpose, and the Senator from Ohio says it does not accomplish it after all. What is our purpose? To restrict the exercise of this power of removal. Do it then directly, they say, by act of Congress, and declare that the President shall not make these removals. Sir, that is only one way to do it. Is it a better way than this? That is the exercise of a greater power than this is. This does not say in terms, You shall not remove at all," but it says that if you do remove without cause the officer whom you select to succeed shall not be paid. They tell us we may prohibit him from removing at all, but it is very hard to say when he has removed and a man has been appointed, that man shall not be paid. Hard? Why? Upon whom is it hard? It is not hard upon the incumbent particularly. It is not any harder than the existing law, under which the President can remove him or does remove whenever he pleases. It is harder upon the incumbent of the office, to be sure, than would be a law which said he should not be removed at all; but that we do not choose to say; we want to reserve the power somewhere to remove for cause; but is it hard upon the appointee? Yes, it does seem to be rather hard upon a poor, ambitious aspirant for a post office to say that after he is put into it and discharges the duties of it he shall not be paid; but recollect that is no harder upon the aspirant for the post office than it is to say to the President, as they suggest to us to say, "You shall not make the removal; therefore you shall not make the vacancy; and therefore you shall not make the appointment," for if we say that, as they urge us to say it, certainly the vacancy cannot be made, and certainly the aspirant cannot be gratified. But, says my friend from Vermont [Mr. POLAND] in an "aside," in the one case the man would hold the office, in the other case he would not. True as holy writ; but by whose fault or connivance does he hold the office? By the connivance of the Legislature? By ours? The law does not compel him to take the office. He sees fit to take it with the deliberate notice placed upon your statute that he cannot be paid if he sees fit to take office under those circumstances. He acts with his eyes open, and he acts volunta rily; there is no sort of duress or constraint laid upon him. Of what shall he complain? Why shall he complain?
The Senator from Nevada [Mr. STEWART] seems to think we are anticipating, reaching out for, seizing a weapon to strike before it legitimately comes to us. He does not like this amendment. Why? Not because we have not the power to pass it, not because it is not right in itself, not because he would avoid a collision with the President, but he has not got ready to enter into a struggle with the President, because he does not precisely know whether he can stand by Congress or not. He waits to know what is the policy of Congress. Until he knows whether he is on the side of Congress he does not like to make up an issue with the President. Until, in other words, he can see and understand precisely how he will relish the service of the Almighty he does not like to desert-no, I believe it would not be proper to go on with that sen
sponsible for rejecting this proposition, conceded to be right in itself, but he is responsible to whatever consequences follow to this branch of the public service.
But the Senator from Ohio insists that it is not necessary. He says there is no necessity for it now; it is entirely within our power to do this thing; it will be justified if the President should assume to make removals for insufficient or unworthy reasons. But, the Senator says, that time has not come; wait; do not inaugurate the war; pass your regular appropriation bills; when another session shall have convened, if you find the President has exercised this power, then put on the checks. Is that sound advice to give to the Legislature? It is assumed here on the part of some that in the recess of the Senate the President may remove every officer employed in the public service, the term of whose office is not fixed by the Constitution. If there be danger that he will exercise this power for partisan or political purposes, the time will not come, perhaps, until Congress shall have adjourned; and the occasion will have passed before the next session will convene. The Senator says, do not anticipate any such thing; wait, try him, and when you convene again if you find he has done it, then provide the remedy. When the wolf is in the yard, be sure you shut the gate! Well, I am not anticipating any maladministration on the part of the President; but I find a certain power claimed here to make these removals, with or without cause, for any reason that pleases the President; I deny that such power is given to the President by the Constitution; I insist that the Legislature should not recognize any such power; but because I find it insisted upon here, and by some assuming to speak in the name of the President, I am led to fear that the power may be exerted, and if exerted it will be exerted during the very next vacation of this body; and when you come together again the occasion for its exercise will have passed; officers of the obnoxious kind will all have been removed from their places and those places will be filled with officers of the right kind, approved by the President himself. When that is the case, says the Senator from Ohio, then put on the brakes, to use a form of expression I get from the President himself. When he gets all these offices filled with just such men as he likes, then pass an act of Congress which will prevent him from making a removal without the consent of the Senate! It strikes me that that would be a little late in the season to plant with any certainty of a valuable crop. But these were not the only objections urged by the Senator from Ohio; they were the objec tions that I regretted to hear the most, for I do not like to have such considerations addressed to a legislative body ever. I like to have their judgments, their reasons, their convictions appealed to; their fears never. There was another objection. He argues that by the adoption of this amendment we restrict the power of the President to make removals. I think so; it is the very purpose. But if we restrict him in the exercise of that power, says the Senator, we may put it out of his power to remove a civilian who has been in office from the beginning of the war and to put in his place a poor soldier who has been crippled in the war; and will you not leave him that power? No, Mr. President; I think we had better not under existing circumstances leave him that I take it that all the occasion of the power. exercise of that power that will exist for a good many years exists now. I thank my God that we are enabled to reflect at last that our soldiers are done being crippled. All the cripples that are to be made in the progress of this rebellion are now made and are to be provided for; here is the tribunal, the President and the Senate together, that can make provision for them; and I shall not concede, either upon the suggestion of the Senator from Ohio or upon the suggestion of any other member of the Senate, that the President is more willing to take care of these crippled soldiers than we There are numerous cases of the kind
tence, I will omit the rest of it; until he understands clearly that he will relish the service of Congress, he does not like to step out of the service of the President.
I do not know but that I am prepared to commend such prudence as that; and I cannot really relieve the Senator from his difficulty. I do not know what is the policy of Congress. I am struggling here to find out, to develop, the policy of Congress. I trust in the name of the Almighty and of the people and of the Constitution that a part of the policy of Congress is to adopt this amend ment; and if my friend from Nevada approves it, I ask his assent to it. If he does not approve it, then I think he ought to vote against
But I ask him to lay aside now and forever the idea that he is inaugurating a fight with the President of the United States when he simply sits here like a Senator and gives to his country the benefit of such judgment as he has upon any and every question that may be laid before him. That is the idea that I want to see started. It has lingered about these Halls a great deal too long, and it is because it has lingered here so long that it makes the adoption of just such an amendment as this so very necessary.
I have spoken so far, Mr. President and I have spoken longer than I intended to dofrom the stand-point presented on the other side, conceding that the amendment was right in itself and entirely within our discretion. Is there any doubt about it? I understand the Senator from Maryland concedes it to-day. I said the other day, and I repeat again, that whoever doubts or denies our right or our power to incorporate this amendment upon this bill ought to vote against it, and whoever doubts or denies the power of Congress to restrict the right of removal and to fix the tenure of these offices, I think ought to vote against the adoption of this amendment, for I concede now, as I conceded then, that if the Constitution confers upon the President of the United States the power to remove these officers, that is a power which he may exercise in defiance of us, and when he has exerted it in any case he has made a vacancy, and when he has made a vacancy he has not merely clothed himself with the right, but he has charged himself with the duty under the Constitution of seeing that vacancy filled. It turns, then, upon our right to restrict this power of removal. I shall not detain the Senate with any argument upon that point; to-day I do not understand it to be controverted; and I have only one single remark to make upon that head. As I read the Constitution, T must say that if the President has the right under the Constitution, and independent of statute law, to remove a postmaster at pleasure and for political reasons, he has the right to remove a judge of the Supreme Court. If he has a right to remove one of these civil officers, he has the right to remove every civil officer. I mean if he has it under the Constitution. But you tell me that the Constitution expressly fixes the terms of the judges, limits them to good behavior. Yes, I admit it. If you see fit to fix the term of a postmaster at four years or ten years, or during good behavior, the two cases are put upon a footing so far as the law is concerned. It being conceded that we have the right to fix the tenure of these offices, when we have done it it is just as much a law as the Constitution, for the Constitution of the United States is no more valid than any act of Congress made in pursuance of and in accordance with the Constitution; and if you see fit to fix the tenure of these offices, and yet concede that in spite of your law, which says it shall be four years or six years, the President may, under powers derived from the Constitution, remove within the term, then he may remove the judge; and every one of the officers employed in the civil or in the military or in the naval service is not an agent of the people of the United States, not an agent of the law, but he is a servant of the President.
Sir, if any such notion has prevailed in the
minds of the American people, I think it is time to wipe it out. I could illustrate the necessity of this by facts which have fallen under my observation within a very short time. This is not the occasion to parade them before the Senate; but there is not a Senator sitting here that cannot point his own finger to numerous instances illustrating the necessity of teaching the American people that it was not the design of our institutions to make the President of the United States responsible for public opinion, or to make him a missionary clothed with patronage and power and emoluments for the purpose of inculcating his own opinions or his own political doctrines upon the people.
Mr. SAULSBURY. Mr. President, when this subject was before the Senate originally, I did not mingle in the debate, because I considered it then, as it seems to be now, a controversy more between the two branches of the Republican party than between the Republican party and the party to which I belong. Sir, there seem to be two wings of that party, according to this debate, the one led by Congress and the other by the President of the United States. As I have said before, I belong to neither, but I belong to a party much older than either, a party having its origin at the foundation of this Government, a party under whose counsels and advice and management this country grew from a feeble Republic to be one of the greatest nations upon the earth. During its existence and control no civil war afflicted the land, and none of the evils were experienced under its management of public affairs that we have suffered during the short, brief, and terrible reign of this now distracted party. The Democratic party has but very little interest in this controversy as a party. Believing, however, the President to be patriotic, and that his policy, if carried out into practice, would conduce to the general benefit of the whole country, would be the means of soon restoring amicable relations between the States of this Union, and would again put us on the high road to prosperity and happiness as a people, the Democratic party, with a unanimity, yea, sir, a generosity seldom witnessed in the hisiory of political parties, sustains the President in every constitutional effort to restore the relations which formerly existed between the States. That is the connection and that is the only connection which the Democratic party has with this controversy.
debates in Congress upon this subject, and I
The Constitution, in section two of article
"The President shall be Commander-in-Chief of
the Army and Navy of the United States, and of the
Mr. Smith, of South Carolina. Some contended that inasmuch as it required the advice of the Senate before an appointment could be made, the Senate also had the power, conjointly with the President, to remove, and that the President had not the power without the advisory body. But after full argument-and it is one of the ablest and most exhaustive arguments to be found in the debates of Congress either in former or present times-it was decided by Congress that the President, being the appointing power, had in himself alone the power of removal. And, sir, should it not be so? What are these but executive officers? Their Pres-appointment is an executive duty; they are called upon to discharge executive functions; the President of the United States is respon sible for their conduct to the people and to the country; and therefore, being chargeable with the due administration of public affairs, and being clothed with the executive power, it would, upon principle even, if there were no authority one way or the other, and we were driven to reason abstractly on the subject, be nothing but right and proper that the power to remove should be in the authority which is responsible to the country for the action of the executive agents.
But, sir, judicial decisions, as well as uniform practice, has settled the question. This principle was clearly recognized in the case of Marbury vs. Madison in 1 Cranch. It was recognized and decided to be settled law in the case of ex parte Hennen in 13 Peters. It was declared in both cases that the law was clearly settled, and if you turn to the Life of Washing ton, by John Marshall, Chief Justice of the United States, who certainly ought to have known something upon the subject, you will find that he declares it to be settled law that the power of removal is with the President alone. And yet, notwithstanding this construction and the uniform practice from 1789 down to the pres ent hour, some in this debate have gone so far as to question the right of the President of the United States to remove the head of a Department or any other officer. I might add to this authority the weight of the great name of Chancellor Kent, of New York, who held the same doctrine. This debate is the first time in my life, in the last twenty-five years at least, that I have heard the doctrine questioned.
Congress itself has uniformly heretofore recognized the power of removal to be in the President. In the acts of 1789 establishing the Departments of Foreign Affairs or State, of the Treasury, and of War, provision was made for the appointment of subordinate officers to take charge of the books, papers, &c., of said Departments in case of the removal of the heads of said Departments by the President. This is a clear legislative recognition of the right of the President to remove, and every President has acted under the Constitution in conformity with this recognition of right.
The Constitution contemplates offices denominated here as Executive Departments; and in 1789 Congress proceeded, under the authority of the Constitution, to create those Executive Departments-the office, as it was called, of Secretary of Foreign Affairs, now Secretary of State, and the offices of Secretary of War, Secretary of the Treasury, and Secretary of the Navy. In the bills organizing those Departments this very question was most elaborately argued and solemnly settled by a vote of Congress, that the power to appoint and the power to remove both existed in the President of the United States. It passed by a very large majority. The main argument upon the bills establishing those Departments arose on the power of the President to remove the officers at the head of them, after he had appointed them by and with the advice and consent of
The language of the Constitution is, that the
attaches his signature to the commission. It
While I am up, Mr. President, I will say a word upon the measure now before the Senate. It is very strange to me how the power of the President of the United States to remove certain officers from their offices can, at this late day, be questioned. I had supposed that, as Senators, we were familiar with the early
This shows that the President, and the President alone, has the appointing power, and that the office of the Senate is nothing but that of an advisory body. That being so, the question comes back to this: what is the principle governing the power of removal? Any one who looks into Lloyd's Debates of that day will see that the doctrine was universally admitted in the argument that the power which appoints is the power which can remove, and which alone can remove. I know that in those early days the question arose whether the only power of removal was not by impeachment. Some advocated that doctrine; among the rest,
But, sir, there are officers whom the Presi dent now has the power to remove that Congress may prevent his removing, by depriving him of the right to appoint them; but I hold that while you leave him the appointment of these officers, you cannot take away from him the power of removal. The Constitution empow ers Congress to vest the appointment of infe rior officers in the courts of law or in the heads of Departments. Congress has done that in reference to the appointmont of clerks, &c., in the Treasury and other Departments. Congress may by law provide for the appointment of inferior officers by some other party than the President, if Congress sees proper to do so; but Congress has not so far seen proper to do so; and the proposition now is to attach to an appropriation bill for the support of the postal service of the country an amendment providing that if the President of the United States shall, not only in reference to a vacancy happening during the sitting of Congress, but in reference to a vacancy which may occur during the recess, undertake to exercise the power admitted to be his, the person appointed by him shall not receive pay unless he shall be confirmed by the