DELIVERED IN THE SENATE OF THE UNITED STATES, ON THE 16TH OF FEBRUARY,
1835, ON THE PASSAGE OF THE BILL, ENTITLED "AN ACT TO REPEAL THE FIRST
AND SECOND SECTIONS OF THE ACT TO LIMIT THE TERM OF SERVICE OF CERTAIN
OFFICERS THEREIN NAMED."
Mr. President,--The professed object of this bill is the reduction of
executive influence and patronage. I concur in the propriety of that
object. Having no wish to diminish or to control, in the slightest
degree, the constitutional and legal authority of the presidential
office, I yet think that the indirect and rapidly increasing influence
which it possesses, and which arises from the power of bestowing office
and of taking it away again at pleasure, and from the manner in which
that power seems now to be systematically exercised, is productive of
serious evils.
The extent of the patronage springing from this power of appointment and
removal is so great, that it brings a dangerous mass of private and
personal interest into operation in all great public elections and
public questions. This is a mischief which has reached, already, an
alarming height. The principle of republican governments, we are taught,
is public virtue; and whatever tends either to corrupt this principle,
to debase it, or to weaken its force, tends, in the same degree, to the
final overthrow of such governments. Our representative systems suppose,
that, in exercising the high right of suffrage, the greatest of all
political rights, and in forming opinions on great public measures, men
will act conscientiously, under the influence of public principle and
patriotic duty; and that, in supporting or opposing men or measures,
there will be a general prevalence of honest, intelligent judgment and
manly independence. These presumptions lie at the foundation of all hope
of maintaining governments entirely popular. Whenever personal,
individual, or selfish motives influence the conduct of individuals on
public questions, they affect the safety of the whole system. When these
motives run deep and wide, and come in serious conflict with higher,
purer, and more patriotic purposes, they greatly endanger that system;
and all will admit that, if they become general and overwhelming, so
that all public principle is lost sight of, and every election becomes a
mere scramble for office, the system inevitably must fall. Every wise
man, in and out of government, will endeavor, therefore, to promote the
ascendency of public virtue and public principle, and to restrain as far
as practicable, in the actual operation of our institutions, the
influence of selfish and private interests.
I concur with those who think, that, looking to the present, and looking
also to the future, and regarding all the probabilities that await us in
reference to the character and qualities of those who may fill the
executive chair, it is important to the stability of government and the
welfare of the people that there should be a check to the progress of
official influence and patronage. The unlimited power to grant office,
and to take it away, gives a command over the hopes and fears of a vast
multitude of men. It is generally true, that he who controls another
man's means of living controls his will. Where there are favors to be
granted, there are usually enough to solicit for them; and when favors
once granted may be withdrawn at pleasure, there is ordinarily little
security for personal independence of character. The power of giving
office thus affects the fears of all who are in, and the hopes of all
who are out. Those who are _out_ endeavor to distinguish themselves by
active political friendship, by warm personal devotion, by clamorous
support of men in whose hands is the power of reward; while those who
are _in_ ordinarily take care that others shall not surpass them in such
qualities or such conduct as are most likely to secure favor. They
resolve not to be outdone in any of the works of partisanship. The
consequence of all this is obvious. A competition ensues, not of
patriotic labors; not of rough and severe toils for the public good; not
of manliness, independence, and public spirit; but of complaisance, of
indiscriminate support of executive measures, of pliant subserviency and
gross adulation. All throng and rush together to the altar of
man-worship; and there they offer sacrifices, and pour out libations,
till the thick fumes of their incense turn their own heads, and turn,
also, the head of him who is the object of their idolatry.
The existence of parties in popular governments is not to be avoided;
and if they are formed on constitutional questions, or in regard to
great measures of public policy, and do not run to excessive length, it
may be admitted that, on the whole, they do no great harm. But the
patronage of office, the power of bestowing place and emoluments,
creates parties, not upon any principle or any measure, but upon the
single ground of personal interest. Under the direct influence of this
motive, they form round a leader, and they go for "the spoils of
victory." And if the party chieftain becomes the national chieftain, he
is still but too apt to consider all who have opposed him as enemies to
be punished, and all who have supported him as friends to be rewarded.
Blind devotion to party, and to the head of a party, thus takes place of
the sentiment of generous patriotism and a high and exalted sense of
public duty.
Let it not be said, Sir, that the danger from executive patronage cannot
be great, since the persons who hold office, or can hold office,
constitute so small a portion of the whole people.
In the first place, it is to be remembered that patronage acts, not only
on those who actually possess office, but on those also who expect it,
or hope for it; and in the next place, office-holders, by their very
situation, their public station, their connection with the business of
individuals, their activity, their ability to help or to hurt according
to their pleasure, their acquaintance with public affairs, and their
zeal and devotion, exercise a degree of influence out of all proportion
to their numbers.
Sir, we cannot disregard our own experience. We cannot shut our eyes to
what is around us and upon us. No candid man can deny that a great, a
very great change has taken place, within a few years, in the practice
of the executive government, which has produced a corresponding change
in our political condition. No one can deny that office, of every kind,
is now sought with extraordinary avidity, and that the condition, well
understood to be attached to every officer, high or low, is
indiscriminate support of executive measures and implicit obedience to
executive will. For these reasons, Sir, I am for arresting the further
progress of this executive patronage, if we can arrest it; I am for
staying the further contagion of this plague.
The bill proposes two measures. One is to alter the duration of certain
offices, now limited absolutely to four years; so that the limitation
shall be qualified or conditional. If the officer is in default, if his
accounts are not settled, if he retains or misapplies the public money,
information is to be given thereof, and thereupon his commission is to
cease. But if his accounts are all regularly settled, if he collects and
disburses the public money faithfully, then he is to remain in office,
unless, for some other cause, the President sees fit to remove him. This
is the provision of the bill. It applies only to certain enumerated
officers, who may be called accounting officers; that is to say,
officers who receive and disburse the public money. Formerly, all these
officers held their places at the pleasure of the President. If he saw
no just cause for removing them, they continued in their situations, no
fixed period being assigned for the expiration of their commissions. But
the act of 1820 limited the commissions of these officers to four years.
At the end of four years, they were to go out, without any removal,
however well they might have conducted themselves, or however useful to
the public their further continuance in office might be. They might be
nominated again, or might not; but their commissions expired.
Now, Sir, I freely admit that considerable benefit has arisen from this
law. I agree that it has, in some instances, secured promptitude,
diligence, and a sense of responsibility. These were the benefits which
those who passed the law expected from it; and these benefits have, in
some measure, been realized. But I think that this change in the tenure
of office, together with some good, has brought along a far more than
equivalent amount of evil. By the operation of this law, the President
can deprive a man of office without taking the responsibility of
removing him. The law itself vacates the office, and gives the means of
rewarding a friend without the exercise of the power of removal at all.
Here is increased power, with diminished responsibility. Here is a still
greater dependence, for the means of living, on executive favor, and, of
course, a new dominion acquired over opinion and over conduct. The power
of removal is, or at least formerly was, a suspected and odious power.
Public opinion would not always tolerate it; and still less frequently
did it approve it. Something of character, something of the respect of
the intelligent and patriotic part of the community, was lost by every
instance of its unnecessary exercise. This was some restraint. But the
law of 1820 took it all away. It vacated offices periodically, by its
own operation, and thus added to the power of removal, which it left
still existing in full force, a new and extraordinary facility for the
extension of patronage, influence, and favoritism.
I would ask every member of the Senate if he does not perceive, daily,
effects which may be fairly traced to this cause. Does he not see a
union of purpose, a devotion to power, a co-operation in action, among
all who hold office, quite unknown in the earlier periods of the
government? Does he not behold, every hour, a stronger development of
the principle of personal attachment, and a corresponding diminution of
genuine and generous public feeling? Was indiscriminate support of party
measures, was unwavering fealty, was regular suit and service, ever
before esteemed such important and essential parts of official duty?
Sir, the theory of our institutions is plain; it is, that government is
an agency created for the good of the people, and that every person in
office is the agent and servant of the people. Offices are created, not
for the benefit of those who are to fill them, but for the public
convenience; and they ought to be no more in number, nor should higher
salaries be attached to them, than the public service requires. This is
the theory. But the difficulty in practice is, to prevent a direct
reversal of all this; to prevent public offices from being considered as
intended for the use and emolument of those who can obtain them. There
is a headlong tendency to this, and it is necessary to restrain it by
wise and effective legislation. There is still another, and perhaps a
greatly more mischievous result, of extensive patronage in the hands of
a single magistrate, to which I have already incidentally alluded; and
that is, that men in office have begun to think themselves mere agents
and servants of the appointing power, and not agents of the government
or the country. It is, in an especial manner, important, if it be
practicable, to apply some corrective to this kind of feeling and
opinion. It is necessary to bring back public officers to the
conviction, that they belong to the country, and not to any
administration, nor to any one man. The army is the army of the country;
the navy is the navy of the country; neither of them is either the mere
instrument of the administration for the time being, nor of him who is
at the head of it. The post-office, the land-office, the custom-house,
are, in like manner, institutions of the country, established for the
good of the people: and it may well alarm the lovers of free
institutions, when all the offices in these several departments are
spoken of, in high places, as being but "spoils of victory," to be
enjoyed by those who are successful in a contest, in which they profess
this grasping of the spoils to have been the object of their efforts.
This part of the bill, therefore, Sir, is a subject for fair comparison.
We have gained something, doubtless, by limiting the commissions of
these officers to four years. But have we gained as much as we have
lost? And may not the good be preserved, and the evil still avoided? Is
it not enough to say, that if, at the end of four years, moneys are
retained, accounts unsettled, or other duties unperformed, the office
shall be held to be vacated, without any positive act of removal?
For one, I think the balance of advantage is decidedly in favor of the
present bill. I think it will make men more dependent on their own good
conduct, and less dependent on the will of others. I believe it will
cause them to regard their country more, their own duty more, and the
favor of individuals less. I think it will contribute to official
respectability, to freedom of opinion, to independence of character; and
I think it will tend, in no small degree, to prevent the mixture of
selfish and personal motives with the exercise of high political duties.
It will promote true and genuine republicanism, by causing the opinion
of the people respecting the measures of government, and the men in
government, to be formed and expressed without fear or favor, and with a
more entire regard to their true and real merits or demerits. It will
be, so far as its effects reach, an auxiliary to patriotism and public
virtue, in their warfare against selfishness and cupidity.
The second check on executive patronage contained in this bill is of
still greater importance than the first. This provision is, that,
whenever the President removes any of these officers from office, he
shall state to the Senate the reasons for such removal. This part of the
bill has been opposed, both on constitutional grounds and on grounds of
expediency.
The bill, it is to be observed, expressly recognizes and admits the
actual existence of the power of removal. I do not mean to deny, and the
bill does not deny, that, at the present moment, the President may
remove these officers at will, because the early decision adopted that
construction, and the laws have since uniformly sanctioned it. The law
of 1820, intended to be repealed by this bill, expressly affirms the
power. I consider it, therefore, a settled point; settled by
construction, settled by precedent, settled by the practice of the
government, and settled by statute. At the same time, after considering
the question again and again within the last six years, I am very
willing to say, that, in my deliberate judgment, the original decision
was wrong. I cannot but think that those who denied the power in 1789
had the best of the argument; and yet I will not say that I know myself
so thoroughly as to affirm, that this opinion may not have been
produced, in some measure, by that abuse of the power which has been
passing before our eyes for several years. It is possible that this
experience of the evil may have affected my view of the constitutional
argument. It appears to me, however, after thorough and repeated and
conscientious examination, that an erroneous interpretation was given to
the Constitution, in this respect, by the decision of the first
Congress; and I will ask leave to state, shortly, the reasons for that
opinion, although there is nothing in this bill which proposes to
disturb that decision.
The Constitution nowhere says one word of the power of removal from
office, except in the case of conviction on impeachment. Wherever the
power exists, therefore, except in cases of impeachment, it must exist
as a constructive or incidental power. If it exists in the President
alone, it must exist in him because it is attached to something else, or
included in something else, or results from something else, which is
granted to the President. There is certainly no specific grant; it is a
power, therefore, the existence of which, if proved at all, is to be
proved by inference and argument. In the only instance in which the
Constitution speaks of removal from office, as I have already said, it
speaks of it as the exercise of _judicial_ power; that is to say, it
speaks of it as one part of the judgment of the Senate, in cases of
conviction on impeachment. No other mention is made, in the whole
instrument, of any power of removal. Whence, then, is the power derived
to the President?
It is usually said, by those who maintain its existence in the single
hands of the President, that the power is derived from that clause of
the Constitution which says, "The executive power shall be vested in a
President." The power of removal, they argue, is, in its nature, an
executive power; and, as the executive power is thus vested in the
President, the power of removal is necessarily included.
It is true, that the Constitution declares that the executive power
shall be vested in the President; but the first question which then
arises is, _What is executive power? What is the degree, and what are
the limitations?_ Executive power is not a thing so well known, and so
accurately defined, as that the written constitution of a limited
government can be supposed to have conferred it in the lump. What _is_
executive power? What are its boundaries? What model or example had the
framers of the Constitution in their minds, when they spoke of
"executive power"? Did they mean executive power as known in England, or
as known in France, or as known in Russia? Did they take it as defined
by Montesquieu, by Burlamaqui, or by De Lolme? All these differ from one
another as to the extent of the executive power of government. What,
then, was intended by "the executive power"? Now, Sir, I think it
perfectly plain and manifest, that, although the framers of the
Constitution meant to confer executive power on the President, yet they
meant to define and limit that power, and to confer no more than they
did thus define and limit. When they say it shall be vested in a
President, they mean that one magistrate, to be called a President,
shall hold the executive authority; but they mean, further, that he
shall hold this authority according to the grants and limitations of the
Constitution itself.
They did not intend, certainly, a sweeping gift of prerogative. They did
not intend to grant to the President whatever might be construed, or
supposed, or imagined to be executive power; and the proof that they
meant no such thing is, that, immediately after using these general
words, they proceed specifically to enumerate his several distinct and
particular authorities; to fix and define them; to give the Senate an
essential control over the exercise of some of them, and to leave others
uncontrolled. By the executive power conferred on the President, the
Constitution means no more than that portion which itself creates, and
which it qualifies, limits, and circumscribes.
A general survey of the frame of the Constitution will satisfy us of
this. That instrument goes all along upon the idea of dividing the
powers of government, so far as practicable, into three great
departments. It describes the powers and duties of these departments in
an article allotted to each. As first in importance and dignity, it
begins with the legislative department. The first article of the
Constitution, therefore, commences with the declaration, that "all
legislative power herein granted shall be vested in a Congress of the
United States, which shall consist of a Senate and House of
Representatives," The article goes on to prescribe the manner in which
Congress is to be constituted and organized, _and then proceeds to
enumerate, specifically, the powers intended to be granted_; and adds
the general clause, conferring such authority as may be necessary to
carry granted powers into effect. Now, Sir, no man doubts that this is a
limited legislature; that it possesses no powers but such as are granted
by express words or necessary implication; and that it would be quite
preposterous to insist that Congress possesses any particular
legislative power, merely because it is, in its nature, a legislative
body, if no grant can be found for it in the Constitution itself.
Then comes, Sir, the second article, creating an executive power; and it
declares, that "the executive power shall be vested in a President of
the United States." After providing for the mode of choosing him, it
immediately proceeds to enumerate, specifically, the powers which he
shall possess and exercise, and the duties which he shall perform. I
consider the language of this article, therefore, precisely analogous to
that in which the legislature is created; that is to say, I understand
the Constitution as saying that "the executive power _herein granted_
shall be vested in a President of the United States."
In like manner, the third article, or that which is intended to arrange
the judicial system, begins by declaring that "the judicial power of the
United States shall be vested in one Supreme Court, and in such inferior
courts as the Congress may, from time to time, ordain and establish."
But these general words do not show _what extent_ of judicial power is
vested in the courts of the United States. All that is left to be done,
and is done, in the following sections, by express and well-guarded
provisions.
I think, therefore, Sir, that very great caution is to be used, and the
ground well considered, before we admit that the President derives any
distinct and specific power from those general words which vest the
executive authority in him. The Constitution itself does not rest
satisfied with these general words. It immediately goes into
particulars, and carefully enumerates the several authorities which the
President shall possess. The very first of the enumerated powers is the
command of the army and navy. This, most certainly, is an executive
power. And why is it particularly set down and expressed, if any power
was intended to be granted under the general words? This would pass, if
any thing would pass, under those words. But enumeration, specification,
particularization, was evidently the design of the framers of the
Constitution, in this as in other parts of it. I do not, therefore,
regard the declaration that the executive power shall be vested in a
President as being any grant at all; any more than the declaration that
the legislative power shall be vested in Congress constitutes, by
itself, a grant of such power. In the one case, as in the other, I think
the object was to describe and denominate the department, which should
hold, respectively, the legislative and the executive authority; very
much as we see, in some of the State constitutions, that the several
articles are headed with the titles "legislative power," "executive
power," "judicial power"; and this entitling of the articles with the
name of the power has never been supposed, of itself, to confer any
authority whatever. It amounts to no more than naming the departments.
If, then, the power of removal be admitted to be an executive power,
still it must be sought for and found among the enumerated executive
powers, or fairly implied from some one or more of them. It cannot be
implied from the general words. The power of appointment was not left to
be so implied; why, then, should the power of removal have been so left?
They are both closely connected; one is indispensable to the other; why,
then, was one carefully expressed, defined, and limited, and not one
word said about the other? Sir, I think the whole matter is sufficiently
plain. Nothing is said in the Constitution about the power of removal,
because it is not a separate and distinct power. It is part of the power
of appointment, naturally going with it or necessarily resulting from
it. The Constitution or the laws may separate these powers, it is true,
in a particular case, as is done in respect to the judges, who, though
appointed by the President and Senate, cannot be removed at the pleasure
of either or of both. So a statute, in prescribing the tenure of any
other office, may place the officer beyond the reach of the appointing
power. But where no other tenure is prescribed, and officers hold their
places at will, that will is necessarily the will of the appointing
power; because the exercise of the power of appointment at once
displaces such officers. The power of placing one man in office
necessarily implies the power of turning another out. If one man be
Secretary of State, and another be appointed, the first goes out by the
mere force of the appointment of the other, without any previous act of
removal whatever. And this is the practice of the government, and has
been, from the first. In all the removals which have been made, they
have generally been effected simply by making other appointments. I
cannot find a case to the contrary. There is no such thing as any
distinct official act of removal. I have looked into the practice, and
caused inquiries to be made in the departments, and I do not learn that
any such proceeding is known as an entry or record of the removal of an
officer from office; and the President could only act, in such cases, by
causing some proper record or entry to be made, as proof of the fact of
removal. I am aware that there have been some cases in which notice has
been sent to persons in office that their services are, or will be,
after a given day, dispensed with. These are usually cases in which the
object is, not to inform the incumbent that he is _removed_, but to tell
him that a successor either is, or by a day named will be, appointed. If
there be any instances in which such notice is given without express
reference to the appointment of a successor, they are few; and even in
these, such reference must be implied; because in no case is there any
distinct official act of removal, that I can find, unconnected with the
act of appointment. At any rate, it is the usual practice, and has been
from the first, to consider the appointment as producing the removal of
the previous incumbent. When the President desires to remove a person
from office, he sends a message to the Senate nominating some other
person. The message usually runs in this form: "I nominate A.B. to be
collector of the customs, &c., in the place of C.D., removed." If the
Senate advise and consent to this nomination, C.D. is effectually out of
office, and A.B. is in, in his place. The same effect would be produced,
if the message should say nothing of any removal. Suppose A.B. to be
Secretary of State, and the President to send us a message, saying
merely, "I nominate C.D. to be Secretary of State." If we confirm this
nomination, C.D. becomes Secretary of State, and A.B. is necessarily
removed.
I have gone into these details and particulars, Sir, for the purpose of
showing, that, not only in the nature of things, but also according to
the practice of the government, the power of removal is incident to the
power of appointment. It belongs to it, is attached to it, forms a part
of it, or results from it.
If this be true, the inference is manifest. If the power of removal,
when not otherwise regulated by Constitution or law, be part and parcel
of the power of appointment, or a necessary incident to it, then whoever
holds the power of appointment holds also the power of removal. But it
is the President and the Senate, and not the President alone, who hold
the power of appointment; and therefore, according to the true
construction of the Constitution, it should be the President and Senate,
and not the President alone, who hold the power of removal.
The decision of 1789 has been followed by a very strange and
indefensible anomaly, showing that it does not rest on any just
principle. The natural connection between the appointing power and the
removing power has, as I have already stated, always led the President
to bring about a removal by the process of a new appointment. This is
quite efficient for his purpose, when the Senate confirms the new
nomination. One man is then turned out, and another put in. But the
Senate sometimes _rejects_ the new nomination; and what then becomes of
the old incumbent? Is he out of office, or is he still in? He has not
been turned out by any exercise of the power of appointment, for no
appointment has been made. That power has not been exercised. He has not
been removed by any distinct and separate act of removal, for no such
act has been performed, or attempted. Is he still in, then, or is he
out? Where is he? In this dilemma, Sir, those who maintain the power of
removal as existing in the President alone are driven to what seems to
me very near absurdity. The incumbent has not been removed by the
appointing power, since the appointing power has not been exercised. He
has not been removed by any distinct and independent act of removal,
since no such act has been performed.
They are forced to the necessity, therefore, of contending that the
removal has been accomplished by the mere _nomination_ of a successor;
so that the removing power is made incident, not to the appointing
power, but to one part of it; that is, to the _nominating_ power. The
nomination, not having been assented to by the Senate, it is clear, has
failed, as the first step in the process of appointment. But though thus
rendered null and void in its main object, as the first process in
making an appointment, it is held to be good and valid, nevertheless, to
bring about that which _results from an appointment_; that is, the
removal of the person actually in office. In other words, the nomination
produces the consequences of an appointment, or some of them, though it
be itself no appointment, and effect no appointment. This, Sir, appears
to me to be any thing but sound reasoning and just construction.
But this is not all. The President has sometimes sent us a nomination to
an office already filled, and, before we have acted upon it, has seen
fit to withdraw it. What is the effect of such a nomination? If a
_nomination_, merely as such, turns out the present incumbent, then he
is out, let what will become afterwards of the nomination. But I believe
the President has acted upon the idea that a nomination made, and at any
time afterwards withdrawn, does _not_ remove the actual incumbent.
Sir, even this is not the end of the inconsistencies into which the
prevailing doctrine has led. There have been cases in which nominations
to offices already filled have come to the Senate, remained here for
weeks, or months, the incumbents all the while continuing to discharge
their official duties, and relinquishing their offices only when the
nominations of their successors have been confirmed, and commissions
issued to them; so that, if a nomination be confirmed, the _nomination
itself_ makes no removal; the removal then waits to be brought about by
the _appointment_. But if the nomination be _rejected_, then the
_nomination itself_, it is contended, has effected the removal. Who can
defend opinions which lead to such results?
These reasons, Sir, incline me strongly to the opinion, that, upon a
just construction of the Constitution, the power of removal is part of,
or a necessary result from, the power of appointment, and, therefore,
that it _ought to have been_ exercised by the Senate concurrently with
the President.
The argument may be strengthened by various illustrations. The
Constitution declares that Congress may vest the appointment of
inferior officers in the President alone, in the courts of law, or in
the heads of departments; and Congress has passed various acts providing
for appointments, according to this regulation of the Constitution. Thus
the Supreme Court, and other courts of the United States, have authority
to appoint their clerks; heads of departments also appoint their own
clerks, according to statute provisions; and it has never been doubted
that these courts, and these heads of departments, may remove their
clerks at pleasure, although nothing is said in the laws respecting such
power of removal. Now, it is evident that neither the courts nor the
heads of departments acquire the right of removal under a general grant
of executive power, for none such is made to them; nor upon the ground
of any general injunction to see the laws executed, for no such general
injunction is addressed to them. They nevertheless hold the power of
removal, as all admit, and they must hold it, therefore, simply as
incident to, or belonging to, the power of appointment. There is no
other clause under which they can possibly claim it.
Again, let us suppose that the Constitution had given to the President
the power of appointment, without consulting the Senate. Suppose it had
said, "The President shall appoint ambassadors, other public ministers,
judges of the Supreme Court, and all other officers of the United
States." If the Constitution had stood thus, the President would
unquestionably have possessed the power of removal, where the tenure of
office was not fixed; and no man, I imagine, would in that case have
looked for the removing power either in that clause which says the
executive authority shall be vested in the President, or in that other
clause which makes it his duty to see the laws faithfully executed.
Everybody would have said, "The President possesses an uncontrolled
power of appointment, and that necessarily carries with it an
uncontrolled power of removal, unless some permanent tenure be given to
the office by the Constitution, or by law."
And now, Sir, let me state, and examine, the main argument, on which the
decision of 1789 appears to rest it.
The most plausible reasoning brought forward on that occasion may be
fairly stated thus: "The executive power is vested in the President;
this is the general rule of the Constitution. The association of the
Senate with the President in exercising a particular function belonging
to the executive power, is an exception to this general rule, and
exceptions to general rules are to be taken strictly; therefore, though
the Senate partakes of the appointing power, by express provision, yet,
as nothing is said of its participation in the removing power, such
participation is to be excluded."
The error of this argument, if I may venture to call it so, considering
who used it,[1] lies in this. It supposes the power of removal to be
held by the President under the general grant of executive power. Now,
it is certain that the power of appointment is not held under that
general grant, because it is particularly provided for, and is
conferred, in express terms, on the President and Senate. If, therefore,
the power of removal be a natural appendage to the power of appointment,
then it is not conferred by the general words granting executive power
to the President, but is conferred by the special clause which gives the
appointing power to the President and Senate. So that the spirit of the
very rule on which the argument of 1789, as I have stated it, relies,
appears to me to produce a directly opposite result; for, if exceptions
to a general rule are to be taken strictly, when expressed, it is still
more clear, when they are not expressed at all, that they are not to be
implied except on evident and clear grounds; and as the general power of
appointment is confessedly given to the President and Senate, no
exception is to be implied in favor of one part of that general power,
namely, the removing part, unless for some obvious and irresistible
reason. In other words, this argument which I am answering is not sound
in its premises, and therefore not sound in its conclusion, if the grant
of the power of appointment does naturally include also the power of
removal, when this last power is not otherwise expressly provided for;
because, if the power of removal belongs to the power of appointment, or
necessarily follows it, then it has gone with it into the hands of the
President and Senate; and the President does not hold it alone, as an
implication or inference from the grant to him of general executive
powers.
The true application of that rule of construction, thus relied on, would
present the argument, I think, in this form: "The appointing power is
vested in the President and Senate; this is the general rule of the
Constitution. The removing power is part of the appointing power; it
cannot be separated from the rest, but by supposing that an exception
was intended; but all exceptions to general rules are to be taken
strictly, even when expressed; and, for a much stronger reason, they are
not to be implied, when not expressed, unless inevitable necessity of
construction requires it."
On the whole, Sir, with the diffidence which becomes one who is
reviewing the opinions of some of the ablest and wisest men of the age,
I must still express my own conviction, that the decision of Congress in
1789, which separated the power of removal from the power of
appointment, was founded on an erroneous construction of the
Constitution, and that it has led to great inconsistencies, as well as
to great abuses, in the subsequent, and especially in the more recent,
history of the government.
Much has been said now, and much was said formerly, about the
inconvenience of denying this power to the President alone. I agree that
an argument drawn from this source may have weight, in a doubtful case;
but it is not to be permitted that we shall presume the existence of a
power merely because we think it would be convenient. Nor is there, I
think, any such glaring, striking, or certain inconvenience as has been
suggested. Sudden removals from office are seldom necessary; we see how
seldom, by reference to the practice of the government under all
administrations which preceded the present. And if we look back over the
removals which have been made in the last six years, there is no man who
can maintain that there is one case in a hundred in which the country
would have suffered the least inconvenience if no removal had been made
without the consent of the Senate. Party might have felt the
inconvenience, but the country never. Many removals have been made (by
new appointments) during the session of the Senate; and if there has
occurred one single case, in the whole six years, in which the public
convenience required the removal of an officer in the recess, such case
has escaped my recollection. Besides, it is worthy of being remembered,
when we are seeking for the true intent of the Constitution on this
subject, that there is reason to suppose that its framers expected the
Senate would be in session a much larger part of the year than the House
of Representatives, so that its concurrence could generally be had, at
once, on any question of appointment or removal.
But this argument, drawn from the supposed inconvenience of denying an
absolute power of removal to the President, suggests still another view
of the question. The argument asserts, that it must have been the
intention of the framers of the Constitution to confer the power on the
President, for the sake of convenience, and as an absolutely necessary
power in his hands. Why, then, did they leave their intent doubtful?
_Why did they not confer the power in express terms?_ Why were they thus
totally silent on a point of so much importance?
Seeing that the removing power naturally belongs to the appointing
power; seeing that, in other cases, in the same Constitution, its
framers have left the one with the consequence of drawing the other
after it,--if, in this instance, they meant to do what was uncommon and
extraordinary, that, is to say, if they meant to separate and divorce
the two powers, why did they not say so? Why did they not express their
meaning in plain words? Why should they take up the appointing power,
and carefully define it, limit it, and restrain it, and yet leave to
vague inference and loose construction an equally important power, which
all must admit to be closely connected with it, if not a part of it? If
others can account for all this silence respecting the removing power,
upon any other ground than that the framers of the Constitution regarded
both powers as one, and supposed they had provided for them together, I
confess I cannot. I have the clearest conviction, that they looked to no
other mode of displacing an officer than by impeachment, or by the
regular appointment of another person to the same place.
But, Sir, whether the decision of 1789 were right or wrong, the bill
before us applies to the actually existing state of things. It
recognizes the President's power of removal, in express terms, as it has
been practically exercised, independently of the Senate. The present
bill does not disturb the power; but I wish it not to be understood that
the power is, even now, beyond the reach of legislation. I believe it to
be within the just power of Congress to reverse the decision of 1789,
and I mean to hold myself at liberty to act, hereafter, upon that
question, as I shall think the safety of the government and of the
Constitution may require. The present bill, however, proceeds upon the
admission that the power does at present exist. Its words are:--
"Sec. 3. _And be it further enacted_, That, in all nominations made by
the President to the Senate, to fill vacancies occasioned by the
exercise of the President's power to remove the said officers mentioned
in the second section of this act, the fact of the removal shall be
stated to the Senate, at the same time that the nomination is made, with
a statement of the reasons for which such officer may have been
removed."
In my opinion, this provision is entirely constitutional, and highly
expedient.
The regulation of the tenure of office is a common exercise of
legislative authority, and the power of Congress in this particular is
not at all restrained or limited by any thing contained in the
Constitution, except in regard to judicial officers. All the rest is
left to the ordinary discretion of the legislature. Congress may give to
offices which it creates (except those of judges) what duration it
pleases. When the office is created, and is to be filled, the President
is to nominate the candidate to fill it; but when he comes into the
office, he comes into it upon the conditions and restrictions which the
law may have attached to it. If Congress were to declare by law that the
Attorney-General, or the Secretary of State, should hold his office
during good behavior, I am not aware of any ground on which such a law
could be held unconstitutional. A provision of that kind in regard to
such officers might be unwise, but I do not perceive that it would
transcend the power of Congress.
If the Constitution had not prescribed the tenure of judicial office,
Congress might have thought it expedient to give the judges just such a
tenure as the Constitution has itself provided; that is to say, a right
to hold during good behavior; and I am of opinion that such a law would
have been perfectly constitutional. It is by law, in England, that the
judges are made independent of the removing power of the crown. I do not
think that the Constitution, by giving the power of appointment, or the
power both of appointment and removal, to the President and Senate,
intended to impose any restraint on the legislature, in regard to its
authority of regulating the duties, powers, duration, or responsibility
of office. I agree, that Congress ought not to do any thing which shall
essentially impair that right of nomination and appointment of certain
officers, such as ministers, judges, &c., which the Constitution has
vested in the President and Senate. But while the power of nomination
and appointment is left fairly where the Constitution has placed it, I
think the whole field of regulation is open to legislative discretion.
If a law were to pass, declaring that district attorneys, or collectors
of customs, should hold their offices four years, unless removed on
conviction for misbehavior, no one could doubt its constitutional
validity; because the legislature is naturally competent to prescribe
the tenure of office. And is a reasonable check on the power of removal
any thing more than a qualification of the tenure of office? Let it be
always remembered, that the President's removing power, as now
exercised, is claimed and held under the general clause vesting in him
the executive authority. It is implied, or inferred, from that clause
alone.
Now, if it is properly derived from that source, since the Constitution
does not say how it shall be limited, how defined, or how carried into
effect, it seems especially proper for Congress, under the general
provision of the Constitution which gives it authority to pass all laws
necessary to carry into effect the powers conferred on any department,
to regulate the subject of removal. And the regulation here required is
of the gentlest kind. It only provides that the President shall make
known to the Senate his reasons for removal of officers of this
description, when he does see fit to remove them. It might, I think,
very justly go farther. It might, and perhaps it ought, to prescribe the
form of removal, and the proof of the fact. It might, I also think,
declare that the President should only suspend officers, at pleasure,
till the next meeting of the Senate, according to the amendment
suggested by the honorable member from Kentucky; and, if the present
practice cannot be otherwise checked, this provision, in my opinion,
ought hereafter to be adopted. But I am content with the slightest
degree of restraint which may be sufficient to arrest the totally
unnecessary, unreasonable, and dangerous exercise of the power of
removal. I desire only, for the present at least, that, when the
President turns a man out of office, he should give his reasons for it
to the Senate, when he nominates another person to fill the place. Let
him give these reasons, and stand on them. If they are fair and honest,
he need have no fear in stating them. It is not to invite any trial; it
is not to give the removed officer an opportunity of defence; it is not
to excite controversy and debate; it is simply that the Senate, and
ultimately the public, may know the grounds of removal. I deem this
degree of regulation, at least, necessary; unless we are willing to
submit all these officers to an absolute and a perfectly irresponsible
removing power; a power which, as recently exercised, tends to turn the
whole body of public officers into partisans, dependants, favorites,
sycophants, and man-worshippers.
Mr. President, without pursuing the discussion further, I will detain
the Senate only while I recapitulate the opinions which I have
expressed; because I am far less desirous of influencing the judgment of
others, than of making clear the grounds of my own judgment.
I think, then, Sir, that the power of appointment naturally and
necessarily includes the power of removal where no limitation is
expressed, nor any tenure but that at will declared. The power of
appointment being conferred on the President _and Senate_, I think the
power of removal went along with it, and should have been regarded as a
part of it, and exercised by the same hands. I think, consequently, that
the decision of 1789, which _implied_ a power of removal separate from
the appointing power, was erroneous.
But I think the decision of 1789 has been established by practice, and
recognized by subsequent laws, as the settled construction of the
Constitution, and that it is our duty to act upon the case accordingly,
for the present; without admitting that Congress may not, hereafter, if
necessity shall require it, reverse the decision of 1789. I think the
legislature possesses the power of regulating the condition, duration,
qualification, and tenure of office, in all cases where the Constitution
has made no express provision on the subject.
I am, therefore, of opinion, that it is competent for Congress to
declare by law, as one qualification of the tenure of office, that the
incumbent shall remain in place till the President shall remove him, for
reasons to be stated to the Senate. And I am of opinion that this
qualification, mild and gentle as it is, will have _some_ effect in
arresting the evils which beset the progress of the government, and
seriously threaten its future prosperity.
These are the reasons for which I give my support to this bill.
* * * * *