[IN the course of a discussion on a bill relating to the power
of appointing to and removal from office, as exercised by the
president, Mr. Clay made the following speech, in which he
denies the constitutionality of the unlimited power of removal
from office, by the president, at his own will and pleasure,
without the consent of the senate. Mr. Clay’s views of the
nature and consequences of this arbitrary power claimed and
exercised by president Jackson, will be found interesting,
as well as his allusions to the pecuniary troubles and
distress, which he then predicted would follow from the acts
of Jackson’s administration――predictions painfully verified in
the subsequent succession of disasters which have befallen the
country.]
MR. CLAY thought it extremely fortunate that this subject of
executive patronage came up, at this session, unincumbered by any
collateral question. At the last session we had the removal of the
deposits, the treasury report sustaining it, and the protest of the
president against the resolution of the senate. The bank mingled itself
in all our discussions, and the partisans of executive power availed
themselves of the prejudices which had been artfully excited against
that institution, to deceive and blind the people as to the enormity
of executive pretensions. The bank has been doomed to destruction,
and no one now thinks the recharter of it is practicable, or ought to
be attempted. I fear, said Mr. Clay, that the people will have just
and severe cause to regret its destruction. The administration of
it was uncommonly able; and one is at a loss which most to admire,
the imperturbable temper or the wisdom of its enlightened president.
No country can possibly possess a better general currency than it
supplied. The injurious consequences of the sacrifice of this valuable
institution will soon be felt. There being no longer any sentinel at
the head of our banking establishments to warn them, by its information
and operations, of approaching danger, the local institutions, already
multiplied to an alarming extent, and almost daily multiplying, in
seasons of prosperity, will make free and unrestrained emissions. All
the channels of circulation will become gorged. Property will rise
extravagantly high, and, constantly looking up, the temptation to
purchase will be irresistible. Inordinate speculation will ensue, debts
will be freely contracted; and, when the season of adversity comes,
as come it must, the banks, acting without concert and without guide,
obeying the law of self-preservation, will all at the same time call
in their issues; the vast number will exaggerate the alarm, and general
distress, wide-spread ruin, and an explosion of the whole banking
system, or the establishment of a new bank of the United States, will
be the ultimate effects.
We can now deliberately contemplate the vast expansion of executive
power, under the present administration, free from embarrassment.
And is there any real lover of civil liberty, who can behold it
without great and just alarm? Take the doctrines of the protest, and
the secretary’s report together, and, instead of having a balanced
government with three coördinate departments, we have but one power in
the state. According to those papers, all the officers concerned in the
administration of the laws are bound to obey the president. His will
controls every branch of the administration. No matter that the law
may have assigned to other officers of the government specifically
defined duties; no matter that the theory of the constitution and the
law supposes them bound to the discharge of those duties according
to their own judgment, and under their own responsibility, and liable
to impeachment for malfeasance; the will of the president, even in
opposition to their own deliberate sense of their obligations, is to
prevail, and expulsion from office is the penalty of disobedience!
It has not, indeed, in terms, been claimed, but it is a legitimate
consequence from the doctrines asserted, that all decisions of the
judicial tribunals, not conformable with the president’s opinion, must
be inoperative, since the officers charged with their execution are no
more exempt from the pretended obligation to obey his orders than any
other officers of the administration.
The basis of this overshadowing superstructure of executive power is,
the power of dismission, which it is one of the objects of the bill
under consideration somewhat to regulate, but which it is contended by
the supporters of executive authority is uncontrollable. The practical
exercise of this power, during this administration, has reduced the
salutary coöperation of the senate, as approved by the constitution, in
all appointments, to an idle form. Of what avail is it, that the senate
shall have passed upon a nomination, if the president, at any time
thereafter, even the next day, whether the senate be in session or in
vacation, without any known cause, may dismiss the incumbent? Let us
examine the nature of this power. It is exercised in the recesses of
the executive mansion, perhaps upon secret information. The accused
officer is not present nor heard, nor confronted with the witnesses
against him, and the president is judge, juror, and executioner.
No reasons are assigned for the dismission, and the public is left
to conjecture the cause. Is not a power so exercised essentially a
despotic power? It is adverse to the genius of all free governments,
the foundation of which is responsibility. Responsibility is the
vital principle of civil liberty, as irresponsibility is the vital
principle of despotism. Free government can no more exist without this
principle than animal life can be sustained without the presence of the
atmosphere. But is not the president absolutely irresponsible in the
exercise of this power? How can he be reached? By impeachment? It is
a mockery.
It has been truly said, that the office was not made for the incumbent.
Nor was it created for the incumbent of another office. In both, and
in all cases, public offices are created for the public; and the people
have a right to know why and wherefore one of their servants dismisses
another. The abuses which have flowed, and are likely to flow from
this power, if unchecked, are indescribable. How often have all of us
witnessed the expulsion of the most faithful officers, of the highest
character, and of the most undoubted probity, for no other imaginable
reason, than difference in political sentiments? It begins in
politics, and may end in religion. If a president should be inclined to
fanaticism, and the power should not be regulated, what is to prevent
the dismission of every officer who does not belong to his sect, or
persuasion? He may, perhaps truly, say, if he does not dismiss him,
that he has not his confidence. It was the cant language of Cromwell
and his associates, when obnoxious individuals were in or proposed for
office, that they could not _confide in them_. The tendency of this
power is to revive the dark ages of feudalism, and to render every
officer a feudatory. The bravest man in office, whose employment and
bread depend upon the will of the president, will quail under the
influence of the power of dismission. If opposed in sentiments to the
administration, he will begin by silence, and finally will be goaded
into partisanship.
The senator from New York, (Mr. Wright,) in analyzing the list of one
hundred thousand, who are reported by the committee of patronage to
draw money from the public treasury, contends that a large portion of
them consists of the army, the navy, and revolutionary pensioners; and,
paying a just compliment to their gallantry and patriotism, asks, if
they will allow themselves to be instrumental in the destruction of the
liberties of their country? It is very remarkable, that hitherto the
power of dismission has not been applied to the army and navy, to which,
from the nature of the service, it would seem to be more necessary than
to those in civil places. But accumulation and concentration are the
nature of all power, and especially of executive power. And it cannot
be doubted, that, if the power of dismission, as now exercised, in
regard to civil officers, is sanctioned and sustained by the people,
it will, in the end, be extended to the army and navy. When so extended,
it will produce its usual effect of subserviency, or if the present
army and navy should be too stern and upright to be moulded according
to the pleasure of the executive, we are to recollect, that the
individuals who compose them are not to live always, and may be
succeeded by those who will be more pliant and yielding. But I would
ask the senator what has been the effect of this tremendous power
of dismission upon the classes of officers to which it has been
applied? Upon the post-office, the land-office, and the custom-house?
They constitute so many _corps d’armee_, ready to further on all
occasions the executive views and wishes. They take the lead in primary
assemblies, whenever it is deemed expedient to applaud or sound the
praises of the administration, or to carry out its purposes in relation
to the succession. We are assured, that a large majority of the recent
convention at Columbus, in Ohio, to nominate the president’s successor,
were office-holders. And do you imagine that _they_ would nominate any
other than the president’s known favorite?
The power of removal, as now exercised, is nowhere in the constitution
expressly recognised. The only mode of displacing a public officer, for
which it does provide, is by impeachment. But it has been argued, on
this occasion, that it is a sovereign power, an inherent power, and
an executive power; and, therefore, that it belongs to the president.
Neither the premises nor the conclusion can be sustained. If they could
be, the people of the United States have all along totally misconceived
the nature of their government, and the character of the office of
their supreme magistrate. Sovereign power is supreme power; and in no
instance whatever is there any supreme power vested in the president.
Whatever sovereign power is, if there be any, conveyed by the
constitution of the United States, is vested in congress, or in the
president and senate. The power to declare war, to lay taxes, to
coin money, is vested in congress; and the treaty-making power in the
president and senate. The postmaster-general has the power to dismiss
his deputies. Is that a sovereign power, or has he any?
Inherent power! That is a new principle to enlarge the powers of the
general government. Hitherto it has been supposed, that there are no
powers possessed by the government of the United States, or any branch
of it, but such as are granted by the constitution; and, in order to
ascertain what has been granted, that it was necessary to show the
grant, or to establish that the power claimed was necessary and proper
to execute some granted power. In other words, that there are no powers
but those which are expressed or incidental. But it seems that a great
mistake has existed. The partisans of the executive have discovered a
third and more fruitful source of power. Inherent power! Whence is it
derived? The constitution created the office of president, and made
it just what it is. It had no powers prior to its existence. It can
have none but those which are conferred upon it by the instrument
which created it, or laws passed in pursuance of that instrument. Do
gentlemen mean, by inherent power, such power as is exercised by the
monarchs or chief magistrates of other countries? If that be their
meaning, they should avow it.
It has been argued, that the power of removal from office is an
executive power; that all executive power is vested in the president;
and that he is to see that the laws are faithfully executed, which, it
is contended, he cannot do, unless, at his pleasure, he may dismiss any
subordinate officer.
The mere act of dismission or removal may be of an executive nature,
but the judgment or sentence which precedes it is a function of a
judicial, and not executive nature. Impeachments, which, as has been
already observed, are the only mode of removal from office expressly
provided for in the constitution, are to be tried by the senate, acting
as a judicial tribunal. In England, and in all the states, they are
tried by judicial tribunals. In several of the states, removal from
office sometimes is effected by the legislative authority, as in the
case of judges on the concurrence of two thirds of the members. The
administration of the laws of the several states proceeds regularly,
without the exercise on the part of the governors of any power similar
to that which is claimed for the president. In Kentucky, and in other
states, the governor has no power to remove sheriffs, collectors
of the revenue, clerks of courts, or any one officer employed
in administration; and yet the governor, like the president, is
constitutionally enjoined to see that the laws are faithfully executed.
The clause relied upon to prove that all executive power is vested in
the president, is the first section of the second article. On examining
the constitution, we find that, according to its arrangement, it treats
first of the legislative power, then of the executive, and lastly of
the judicial power. In each instance, it provides how those powers
shall be respectively vested. The legislative power is confided to a
congress, and the constitution then directs how the members of the body
shall be chosen, and, after having constituted the body, enumerates
and carefully specifies its powers. And the same course is observed
both with the executive and the judiciary. In neither case does the
preliminary clause convey any power; but the powers of the several
departments are to be sought for in the subsequent provisions. The
legislative powers granted by the constitution are to be vested, how?
In a congress. What powers? Those which are enumerated. The executive
power is to be vested, how? In a council, or in several? No, in _a_
president of the United States of America. What executive power? That
which is possessed by any chief magistrate, in any country, or that
which speculative writers attribute to the executive head? No such
thing. That power, and that only, which the constitution subsequently
assigns to the chief magistrate.
The president is enjoined by the constitution to take care that
the laws be faithfully executed. Under this injunction, the power
of dismission is claimed for him; and it is contended, that if those
charged with the execution of the laws attempt to execute them in a
sense different from that entertained by the president, he may prevent
it, or withhold his coöperation. It would follow that, if the judiciary
give to the law an interpretation variant from that of the president,
he would not be bound to afford means which might become necessary
to execute their decision. If these pretensions are well founded, it
is manifest that the president, by means of the veto, in arresting
the passage of laws which he disapproves, and the power of expounding
those which are passed, according to his own sense of them, will become
possessed of all the practical authority of the whole government.
If the judiciary decide a law contrary to the president’s opinion of
its meaning, he may command the marshal not to execute the decision,
and urge his constitutional obligation to take care that the laws be
faithfully executed. It will be recollected, perhaps, by the senate,
that, during the discussions on the deposit question, I predicted that
the day would arrive when a president, disposed to enlarge his powers,
would appeal to his official oath as a source of power. In that oath he
undertakes that he will, ‘to the best of his ability, preserve, protect,
and defend the constitution of the United States.’ The fulfilment
of the prediction quickly followed; and during the same session, in
the protest of the president, we find him referring to this oath as
a source of power and duty. Now, if the president, in virtue of his
oath, may interpose and prevent any thing from being done, contrary
to the constitution, as he understands it; and may, in virtue of
the injunction to take care that the laws be faithfully executed,
prevent the enforcement of any law contrary to the sense in which he
understands it, I would ask, what powers remain to any other branch of
the government? Are they not all substantially absorbed in the WILL of
one man?
The president’s oath obliges him to do no more than every member of
congress is also bound by official oath to do; that is, to support
the constitution of the United States, in their respective spheres
of action. In the discharge of the duties specifically assigned to
him by the constitution and laws, he is for ever to keep in view the
constitution; and this every member of congress is equally bound to do,
in the passage of laws. To step out of his sphere; to trench upon other
departments of the government, under the notion that they are about
to violate the constitution, would be to set a most pernicious and
dangerous example of violation of the constitution. Suppose congress,
by two thirds of each branch, pass a law contrary to the veto of the
president, and to his opinion of the constitution, is he afterwards
at liberty to prevent its execution? The injunction, to which I
have adverted, common both to the federal and most of the state
constitutions, imposes only upon the chief magistrate the duty of
executing those laws with the execution of which he is specially
charged; of supplying, when necessary, the means with which he is
intrusted to enable others to execute those laws, the enforcement of
which is confided to them; and to communicate to congress infractions
of the laws, that the guilty may be brought to punishment, or the
defects of legislation remedied. The most important branch of the
government to the rights of the people, as it regards the mere
execution of the laws, is the judiciary; and yet they hold their
offices by a tenure beyond the reach of the president. Far from
impairing the efficacy of any powers with which he is invested,
this permanent character in the judicial office is supposed to give
stability and independence to the administration of justice.
The power of removal from office not being one of those powers which
are expressly granted and enumerated in the constitution, and having
I hope successfully shown that it is not essentially of an executive
nature, the question arises, to what department of the government does
it belong, in regard to all offices created by law, or whose tenure is
not defined in the constitution? There is much force in the argument
which attaches the power of dismission to the president and senate
conjointly, as the appointing power. But I think we must look for it
to a broader and higher source; the legislative department. The duty
of appointment may be performed under a law which enacts the mode
of dismission. This is the case in the post-office department, the
postmaster-general being invested with both the power of appointment
and of dismission. But they are not necessarily allied, and the
law might separate them; and assign to one functionary the right to
appoint, and to a different one the right to dismiss. Examples of such
a separation may be found in the state governments.
It is the legislative authority which creates the office, defines its
duties, and may prescribe its duration. I speak, of course, of offices
not created by the constitution, but the law. The office, coming into
existence by the will of congress, the same will may provide how, and
in what manner, the office and the officer shall both cease to exist.
It may direct the conditions on which he shall hold the office, and
when and how he shall be dismissed. Suppose the constitution had
omitted to prescribe the tenure of the judicial office, could not
congress do it? But the constitution has not fixed the tenure of any
subordinate offices, and therefore congress may supply the omission.
It would be unreasonable to contend that, although congress, in pursuit
of the public good, brings the office and the officer into being,
and assigns their purposes, yet the president has a control over the
officer which congress cannot reach or regulate; and this control, in
virtue of some vague and undefined implied executive power, which the
friends of executive supremacy are totally unable to attach to any
specific clause in the constitution!
It has been contended, with great ability, that, under the clause
of the constitution which declares, that congress shall have power
‘to make all laws, which shall be necessary and proper for carrying
into execution the foregoing powers, and _all others_ vested by
this constitution in the government of the United States, _or in
any department or officer thereof_,’ congress is the sole depository
of implied powers, and that no other department or officer of the
government possesses any. If this argument be correct, there is an end
of the controversy. But if the power of dismission be incident to the
legislative authority, congress has the clear right to regulate it. And
if it belong to any other department of the government, under the cited
clause, congress has the power to legislate upon the subject, and may
regulate it, although it could not divest the department altogether of
the right.
Hitherto I have considered the question upon the ground of the
constitution, unaffected by precedent. We have in vain called upon
our opponents to meet us upon that ground; and to point out the clause
of the constitution which by express grant, or necessary implication,
subjects the will of the whole official corps to the pleasure of the
president, to be dismissed whenever he thinks proper, without any cause,
and without any reasons publicly assigned or avowed for the dismission,
and which excludes congress from all authority to legislate against
the tremendous consequences of such a vast power. No such clause has
been shown; nor can it be, for the best of all reasons, because it
does not exist. Instead of bringing forward any such satisfactory
evidence, gentlemen entrench themselves behind the precedent which was
established in 1789, when the first congress recognised the power of
dismission in the president; that is, they rely upon the _opinion_ of
the first congress, as to what the constitution meant, as conclusive of
what it is.
The precedent of 1789 was established in the house of representatives
against the opinion of a large and able minority, and in the senate
by the casting vote of the vice-president, Mr. John Adams. It is
impossible to read the debate which it occasioned, without being
impressed with the conviction that the just confidence reposed in the
father of his country, then at the head of the government, had great,
if not decisive influence in establishing it. It has never, prior to
the commencement of the present administration, been submitted to the
process of review. It has not been reconsidered, because, under the
mild administrations of the predecessors of the president, it was not
abused, but generally applied to cases to which the power was justly
applicable.
[Mr. Clay here proceeded to recite from a memorandum, the
number of officers removed under the different presidents,
from Washington down; but the reporter not having access to the
memorandum, is unable to note the precise number under each,
and can only state generally that it was inconsiderable, under
all the administrations prior to the present, but under that of
general Jackson the number of removals amounted to more than two
thousand; of which some five or six hundred were postmasters.]
Precedents deliberately established by wise men are entitled to great
weight. They are the evidence of truth, but _only_ evidence. If the
same rule of interpretation has been settled, by concurrent decisions,
at different and distant periods, and by opposite dominant parties, it
ought to be deemed binding, and not disturbed. But a solitary precedent,
established, as this was, by an equal vote of one branch, and a
powerful minority in the other, under the influence of a confidence
never misplaced in an illustrious individual, and which has never been
reëxamined, cannot be conclusive.
The first inquiry which suggests itself upon such a precedent as
this is, brought forward by the friends of the administration, is,
what right have they to the benefit of any precedent? The course
of this administration has been marked by an utter and contemptuous
disregard of all that had been previously done. Disdaining to move on
in the beaten road carefully constructed by preceding administrations,
and trampling upon every thing, it has seemed resolved to trace
out for itself a new line of march. Then, let us inquire how this
administration and its partisans dispose of precedents drawn from the
same source, the first congress under the present constitution. If
a precedent of that congress be sufficient authority to sustain an
executive power, other precedents established by it, in support of
legislative powers, must possess a like force. But do they admit this
principle of equality? No such thing. They reject the precedents of the
congress of 1789, sustaining the power of congress, and cling to that
only which expands the executive authority. They go for prerogative,
and they go against the rights of the people.
It was in the first congress that assembled in 1789, that the bank
of the United States was established, the power to adopt a protective
tariff was maintained, and the right was recognised to authorize
internal improvements. And these several powers do not rest on the
basis of a single precedent. They have been again and again affirmed,
and reaffirmed by various congresses, at different and distant periods,
under the administration of every dominant party; and, in regard to
the bank, it has been sanctioned by every branch of the government, and
by the people. Yet the same gentlemen, who console themselves with the
precedent of 1789, in behalf of the executive prerogative, reject as
unconstitutional all these legislative powers.
No one can carefully examine the debate in the house of representatives
in 1789, without being struck with the superiority of the argument
on the side of the minority, and the unsatisfactory nature of that of
the majority. How various are the sources whence the power is derived!
Scarcely any two of the majority agree in their deduction of it. Never
have I seen, from the pen or tongue of Mr. Madison, one of the majority,
any thing so little persuasive or convincing. He assumes that all
executive power is vested in the president. He does not qualify it;
he does not limit it to that executive power which the constitution
grants. He does not discriminate between executive power assigned by
the constitution, and executive power enacted by law. He asks, if the
senate had not been associated with the president in the appointing
power, whether the president, in virtue of his executive power, would
not have had the right to make all appointments? I think not; clearly
not. It would have been a most sweeping and far-fetched implication. In
the silence of the constitution, it would have devolved upon congress
to provide by law for the mode of appointing to office; and that in
virtue of the clause, to which I have already adverted, giving to
congress power to pass all laws necessary and proper to carry on the
government. He says, ‘the danger, then, merely consists in this; the
president can displace from office a man whose merits require that he
should be continued in it. What will be the motives which the president
can feel for such abuse of his power?’ What motives! The pure heart of
a Washington could have had none; the virtuous head of Madison could
conceive none; but let him ask general Jackson, and he will tell him
of motives enough. He will tell him, that he wishes his administration
to be a unit; that he desires only one will to prevail in the executive
branch of government; that he cannot confide in men who opposed his
election; that he wants places to reward those who supported it; that
the spoils belong to the victor; and that he is anxious to create a
great power in the state, animated by one spirit, governed by one will,
and ever ready to second and sustain his administration in all its acts
and measures; and to give its undivided force to the appointment of the
successor whom he may prefer. And what, Mr. President, do you suppose
are the securities against the abuse of this power, on which Mr.
Madison relied? ‘In the first place,’ he says, ‘he will be impeachable
by this house before the senate, for such an act of mal-administration,’
and so forth. Impeachment! It is not a scarecrow. Impeach the
president for dismissing a receiver or register of the land office,
or a collector of the customs! But who is to impeach him? The house of
representatives. Now suppose a majority of that house should consist of
members who approve the principle that the spoils belong to the victors;
and suppose a great number of them are themselves desirous to obtain
some of these spoils, and can only be gratified by displacing men from
office whose merits require that they should be continued, what chance
do you think there would be to prevail upon such a house to impeach
the president? And if it were possible that he should, under such
circumstances, be impeached, what prospect do you believe would exist
of his conviction by two thirds of the senate, comprising also members
not particularly averse to lucrative offices, and where the spoils
doctrine, long practiced in New York, was first boldly advanced in
congress?
The next security was, that the president, after displacing the
meritorious officer, could not appoint another person without the
concurrence of the senate. If Mr. Madison had shown how, by any action
of the senate, the meritorious officer could be replaced, there would
have been some security. But the president has dismissed him; his
office is vacant; the public service requires it to be filled, and the
president nominates a successor. In considering this nomination, the
president’s partisans have contended that the senate is not at liberty
to inquire how the vacancy was produced, but is limited to the single
consideration of the fitness of the person nominated. But suppose
the senate were to reject him, that would only leave the office still
vacant, and would not reinstate the removed officer. The president
would have no difficulty in nominating another, and another, until
the patience of the senate, being completely exhausted, they would
finally confirm the appointment. What I have supposed is not theory
but actually matter of fact. How often within a few years past have
the senate disapproved of removals from office, which they have been
subsequently called upon to concur in filling? How often wearied
in rejecting, have they approved of persons for office whom they
never would have appointed? How often have members approved of bad
appointments, fearing worse if they were rejected? If the powers of
the senate were exercised by one man, he might oppose, in the matter
of appointments, a more successful resistance to executive abuses.
He might take the ground that, in cases of improper removal, he
would persevere in the rejection of every person nominated, until the
meritorious officer was reinstated. But the senate now consists of
forty-eight members, nearly equally divided, one portion of which is
ready to approve of all nominations; and of the other, some members
conceive that they ought not to incur the responsibility of hazarding
the continued vacancy of a necessary office, because the president may
have abused his powers. There is then no security, not the slightest
practical security, against abuses of the power of removal in the
concurrence of the senate in appointment to office.
During the debate in 1789, Mr. Smith, of South Carolina, called for
the clause of the constitution granting the power. He said, ‘we are
declaring a power in the president which may hereafter be greatly
abused; for we are not always to expect a chief magistrate in whom
such entire confidence can be placed, as the present. Perhaps gentlemen
are so much dazzled with the splendor of the virtues of the present
president, as not to be able to see into futurity. * * * * * We ought
to contemplate this power in the hands of an ambitious man, who might
apply it to dangerous purposes. If we give this power to the president,
he may from caprice remove the most worthy men from office; his will
and pleasure will be the slight tenure by which the office is to
be held, and of consequence you render the officer the mere state
dependent, the abject slave of a person who may be disposed to abuse
the confidence his fellow-citizens have placed in him.’ Mr. Huntington
said, ‘if we have a vicious president who inclines to abuse this power,
which God forbid, his responsibility will stand us in little stead.’
Mr. Gerry, afterwards the republican vice-president of the United
States, contended, ‘that we are making these officers the mere
creatures of the president; they dare not exercise the privilege of
their creation, if the president shall order them to forbear; because
he holds their thread of life. His power will be sovereign over them,
and will soon swallow up the small security we have in the senate’s
concurrence to the appointment; and we shall shortly need no other than
the authority of the supreme executive officer, to nominate, appoint,
continue, or remove.’ Was not that prophecy; and do we not feel and
know that it is prophecy _fulfilled_?
There were other members who saw clearly into the future, and predicted,
with admirable forecast, what would be the practical operation of
this power. But there was one eminently gifted in this particular. It
seems to have been specially reserved for a Jackson to foretell what
a Jackson might do. Speaking of some future president, Mr. Jackson――(I
believe of Georgia――that was his name. What a coincidence!) ‘If he
wants to establish an arbitrary authority, and finds the secretary
of finance, (Mr. Duane,) not inclined to second his endeavors, he has
nothing more to do than to remove him, and get one appointed, (Mr.
Taney,) of principles more congenial with his own. Then, says he, I
have got the army; let me have but the money, and I will establish my
throne upon the ruins of your visionary republic. Black, indeed, is the
heart of that man who even suspects him, (WASHINGTON,) to be capable
of abusing powers. But, alas! he cannot be with us for ever; he is
but mortal,’ and so forth. ‘May not a man with a _Pandora’s box_ in
his breast come into power, and give us sensible cause to lament our
present confidence and want of foresight?’
In the early stages, and during a considerable portion of the debate,
the prevailing opinion seemed to be, not that the president was
invested by the constitution with the power, but that it should be
conferred upon him by act of congress. In the progress of it, the
idea was suddenly started, that the president possessed the power from
the constitution, and the first opinion was abandoned. It was finally
resolved to shape the acts, on the passage of which the question
arose, so as to recognise the existence of the power of removal in the
president.
Such is the solitary precedent on which the contemners of all
precedents rely for sustaining this tremendous power in one man! A
precedent established against the weight of argument, by a house of
representatives greatly divided, in a senate equally divided, under
the influence of a reverential attachment to the father of his country,
upon the condition that, if the power were applied as we know it has
been in hundreds of instances recently applied, the president himself
would be justly liable to impeachment and removal from office, and
which, until this administration, has never, since its adoption,
been thoroughly examined or considered――a power, the abuses of which,
as developed under this administration, if they be not checked and
corrected, must inevitably tend to subvert the constitution, and
overthrow public liberty. A standing army has been, in all free
countries, a just object of jealousy and suspicion. But is not a
corps of one hundred thousand dependents upon government, actuated by
one spirit, obeying one will, and aiming at one end, more dangerous
and formidable than a standing army? The standing army is separated
from the mass of society, stationed in barracks or military quarters,
and operates by physical force. The official corps is distributed and
ramified throughout the whole country, dwelling in every city, village,
and hamlet, having daily intercourse with society, and operates on
public opinion. A brave people, not yet degenerated, and devoted to
liberty, may successfully defend themselves against a military force.
But if the official corps is aided by the executive, by the post-office
department, and by a large portion of the public press, its power is
invincible. That the operation of the principle, which subjects to
the will of one man the tenure of all offices, which he may vacate
at pleasure, without assigning any cause, must be to render them
subservient to his purposes, a knowledge of human nature, and the short
experience which we have had, clearly demonstrate.
It may be asked, why has this precedent of 1789 not been reviewed? Does
not the long acquiescence in it prove its propriety? It has not been
reëxamined for several reasons. In the first place, all feel and own
the necessity of some more summary and less expensive and less dilatory
mode of dismissing delinquents from subordinate offices, than that
of impeachment, which, strictly speaking, was perhaps the only one
in the contemplation of the framers of the constitution; certainly it
is the only one for which it expressly provides. Then, under all the
predecessors of the president, the power was mildly and beneficially
exercised, having been always, or with very few exceptions, applied
to actual delinquents. Notwithstanding all that has been said
about the number of removals which were made during Mr. Jefferson’s
administration, they were, in fact, comparatively few. And yet he
came into power as the head of a great party, which for years had been
systematically excluded from the executive patronage; a plea which
cannot be urged in excuse for the present chief magistrate. It was
reserved for him to act on the bold and daring principle of dismissing
from office, those who had opposed his election; of dismissing from
office for mere difference of opinion!
But it will be argued, that if the summary process of dismission
be expedient in some cases, why take it away altogether? The bill
under consideration does not disturb the power. By the usage of the
government, not I think by the constitution, the president practically
possesses the power to dismiss those who are unworthy of holding these
offices. By no practice or usage but that which he himself has created,
has he the power to dismiss meritorious officers only because they
differ from him in politics. The principal object of the bill, is,
to require the president, in cases of dismission, to communicate the
reasons which have induced him to dismiss the officer; in other words,
to make an arbitrary and despotic power a responsible power. It is not
to be supposed that, if the president is bound publicly to state his
reasons, that he would act from passion or caprice, or without any
reason. He would be ashamed to avow that he discharged the officer
because he opposed his election. And yet this mild regulation of the
power is opposed by the friends of the administration! They think it
unreasonable that the president should state his reasons. If he has
none, perhaps it is.
But, Mr. President, although the bill is, I think, right in principle,
it does not seem to me to go far enough. It makes no provision for the
insufficiency of the reasons of the president, by restoring or doing
justice to the injured officer. It will be some but not sufficient
restraint against abuses. I have, therefore, prepared an amendment
which I beg leave to offer, but which I will not press against the
decided wishes of those having the immediate care of the bill. By
this ♦amendment,[22] as to all offices created by law, with certain
exceptions, the power at present exercised is made a suspensory power.
The president may, in the vacation of the senate, suspend the officer
and appoint a temporary successor. At the next session of the senate,
he is to communicate his reasons; and if they are deemed sufficient,
the suspension is confirmed, and the senate will pass upon the new
officer. If insufficient, the displaced officer is to be restored.
This amendment is substantially the same proposition, as one which
I submitted to the consideration of the senate at its last session.
Under this suspensory power, the president will be able to discharge
all defaulters or delinquents; and it cannot be doubted that the senate
will concur in all such dismissions. On the other hand, it will insure
the integrity and independence of the officer, since he will feel that
if he honestly and faithfully discharges his official duties, he cannot
be displaced arbitrarily, or from mere caprice, or because he has
independently exercised the elective franchise.
It is contended, that the president cannot see that the laws are
faithfully executed unless he possesses the power of removal. That
injunction of the constitution, imports a mere general superintendence,
except where he is specially charged with the execution of a law. It
is not necessary that he should have the power of dismission. It will
be a sufficient security against the abuses of subordinate officers,
that the eye of the president is upon them, and that he can communicate
their delinquency. The state executives do not possess this power of
dismission. In several, if not all, the states, the governor cannot
even dismiss the secretary of state; yet we have heard no complaints of
the inefficiency of state executives, or of the administration of the
laws of the states. The president has no power to dismiss the judiciary;
and it might be asked, with equal plausibility, how he could see that
the laws are executed if the judges will not conform to his opinion,
and he cannot dismiss them?
But it is not necessary to argue the general question, in considering
either the original bill or the amendment. The former does not touch
the power of dismission, and the latter only makes it conditional
instead of being absolute.
It may be said, that there are certain great officers, heads of
departments and foreign ministers, between whom and the president
entire confidence should exist. That is admitted. But, surely, if
the president remove any of them, the people ought to know the cause.
The amendment, however, does not reach those classes of officers. And
supposing, as I do, that the legislative authority is competent to
regulate the exercise of the power of dismission, there can be no just
cause to apprehend, that it will fail to make such modifications and
exceptions as may be called for by the public interest; especially as
whatever bill may be passed must obtain the approbation of the chief
magistrate. And if it should attempt to impose improper restrictions
upon the executive authority, that would furnish a legitimate occasion
for the exercise of the veto. In conclusion, I shall most heartily vote
for the bill, with or without the amendment which I have proposed.