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 prompt.i.tude, diligence, and a sense of responsibility. These were the benefits which those who pa.s.sed 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 inst.i.tutions 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, inst.i.tutions of the country, established for the good of the people: and it may well alarm the lovers of free inst.i.tutions, 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 const.i.tutional 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 pa.s.sing before our eyes for several years. It is possible that this experience of the evil may have affected my view of the const.i.tutional argument. It appears to me, however, after thorough and repeated and conscientious examination, that an erroneous interpretation was given to the Const.i.tution, 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 Const.i.tution 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 Const.i.tution 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 Const.i.tution 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 Const.i.tution 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 const.i.tution 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 Const.i.tution 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 Const.i.tution 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 Const.i.tution 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 Const.i.tution means no more than that portion which itself creates, and which it qualifies, limits, and circ.u.mscribes.

A general survey of the frame of the Const.i.tution 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 Const.i.tution, 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 const.i.tuted 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 Const.i.tution 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 a.n.a.logous to that in which the legislature is created; that is to say, I understand the Const.i.tution 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 Const.i.tution 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 pa.s.s, if any thing would pa.s.s, under those words. But enumeration, specification, particularization, was evidently the design of the framers of the Const.i.tution, 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 const.i.tutes, 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 const.i.tutions, that the several articles are headed with the t.i.tles "legislative power," "executive power," "judicial power"; and this ent.i.tling 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 Const.i.tution 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 Const.i.tution 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 inc.u.mbent 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 inc.u.mbent. 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 Const.i.tution 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 Const.i.tution, 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 inc.u.mbent? 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 inc.u.mbent 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 a.s.sented 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 inc.u.mbent, 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 inc.u.mbent.

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 inc.u.mbents 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 Const.i.tution, 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 ill.u.s.trations. The Const.i.tution 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 pa.s.sed various acts providing for appointments, according to this regulation of the Const.i.tution. 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 Const.i.tution had given to the President the power of appointment, without consulting the Senate. Suppose it had said, "The President shall appoint amba.s.sadors, other public ministers, judges of the Supreme Court, and all other officers of the United States." If the Const.i.tution 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 Const.i.tution, 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 Const.i.tution. The a.s.sociation 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 partic.i.p.ation in the removing power, such partic.i.p.ation 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 Const.i.tution. 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 Const.i.tution, 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 Const.i.tution 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 a.s.serts, that it must have been the intention of the framers of the Const.i.tution 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 Const.i.tution, 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 Const.i.tution 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 Const.i.tution 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 const.i.tutional, 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 Const.i.tution, 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 unconst.i.tutional. 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 Const.i.tution had not prescribed the tenure of judicial office, Congress might have thought it expedient to give the judges just such a tenure as the Const.i.tution 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 const.i.tutional. 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 Const.i.tution, 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 Const.i.tution has vested in the President and Senate. But while the power of nomination and appointment is left fairly where the Const.i.tution has placed it, I think the whole field of regulation is open to legislative discretion.

If a law were to pa.s.s, 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 const.i.tutional 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 Const.i.tution 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 Const.i.tution which gives it authority to pa.s.s 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 Const.i.tution, 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 Const.i.tution 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 inc.u.mbent 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.