SENATE.] Executive Patronage. [FEBRUARY, 1835. tinct and separate as far as possible. When | disclaim the idea of attempting to derive any they are all united in the same person, this is the very definition of despotism. As you approximate to this state of things, in the same proportion you advance towards arbitrary power. These are axioms which cannot, which will not, be denied. Doubtless, for wise purposes, the framers of our constitution have, in a very few excepted cases, blended these powers together. The Executive, by his veto, has a control over our legislation. The Senate, although a branch of the Legislature, exercises judicial power in cases of impeachment. The President nominates, "and, by and with the advice and consent of the Senate," appoints all officers, except those of an inferior nature, the appointment of which may be vested by Congress, "in the President alone, in the courts of law, or in the heads of Departments." Now, sir, my position is, that when the Constitution of the United States, in a special case, has conferred upon the Senate, which is essentially a branch of the Legislature, a participation in executive power, you cannot by construction extend this power beyond the plain terms of the grant. It is an exception from the general rule pervading the whole instrument. Appointment to office is, in the strictest sense, an executive power. But it is expressly declared that the assent of the Senate shall be necessary to the exercise of this power on the part of the President. The grant to the Senate is special. In this particular case, it is an abstraction from the general executive powers granted under the constitution to the President. According to the maxim of the common law, expressio unius est exclusio alterius-it follows conclusively that what has not been given is withheld, and remains in that branch of the Government which is the appropriate depository of executive power. The exception proves the rule. And the grant of executive power to the Senate is confined to appointments to office, and to them alone. This necessarily excludes other executive powers. It cannot, therefore, be contended, with any force, as the gentleman from Massachusetts (Mr. WEBSTER) has contended, that because the consent of the Senate is made necessary by the constitution to appointments of officers, that therefore, by implication, it is necessary for their removal. Besides, these two things are very distinct in their nature, as I shall hereafter have occasion to demonstrate. But to proceed with the argument. I shall contend that the sole power of removing executive officers is vested in the President by the constitution. First, from a correct construction of the instrument itself; and, second, even if that were doubtful, from the great danger resulting to the public interest from any other construction. The constitution declares, in express language, that "the executive power shall be vested in a President of the United States." Under these general terms I shall, once for all, portion of the power of the Chief Magistrate from any other fountain than the constitution itself. I therefore entirely repel the imputation, so far as I am concerned, which would invest him with executive powers derived from the prerogatives of the Kings or the Emperors of the old world. Such arguments are entirely out of the question. The constitution also declares that "he shall take care that the laws be faithfully executed." These two clauses of the constitution confer the executive power on the President, and define his duties. Is, then, the removal from office an executive power? If it be so, there is an end of the question; because the constitution nowhere declares that the Senate, or any other human tribunal, shall participate in the exercise of this power. It will not be contended but that the power of removal exists, and must exist, somewhere. Where else can it exist but in the Executive, on whom the constitution imposes the obligation of taking care that the laws shall be faithfully executed? It will not be pretended that the power of removal is either of a legislative or judicial character. From its very nature it belongs to the Exccutive. In case he discovers that an officer is violating his trust-that, instead of executing the laws, his conduct is in direct opposition to their requisition-is it not, strictly speaking, an executive power to arrest him in his career, by removing him from office? How could the President execute the trust confided to him, if he were destitute of this authority? If he possessed it not, he would be compelled to witness the executive officers violating the laws of Congress, without the power of preventing it. On this subject it is impossible for me to advance any thing new. It was exhausted by Mr. Madison, in the debate of 1789, in the House of Representatives. I am confident the Senate will indulge me while I read two extracts from his speeches on that occasion, delivered on the 16th and 17th June, 1789. The first was delivered on the 16th of June, 1789, and is as follows: "By a strict examination of the constitution, on what appears to be its true principles, and considering the great departments of the Government in the relation they have to each other, I have my doubts whether we are not absolutely tied down to the construction declared in the bill. In the first section of the first article it is said that all legislative powers herein granted shall be vested in a Congress of the United States. In the second article it is affirmed that the Executive power shall be vested in a Presi dent of the United States of America. In the third article it is declared that the judicial power of the and in such inferior courts as Congress may, from United States shall be vested in one Supreme Court, time to time, ordain and establish. "I suppose it will be readily admitted that, so far as the constitution has separated the powers of these great departments, it would be improper to combine them together; and, so far as it has left any particular department in the entire possession of the powers incident to that department, I conceive we ought not to qualify them further than they are qualified by the constitution. The legislative powers are vested in Congress, and are to be exercised by them uncontrolled by any other department, except the constitution has qualified it otherwise. The constitution has qualified the legislative power, by authorizing the President to object to any act it may pass, requiring, in this case, two-thirds of both Houses to concur in making a law; but still the absolute legislative power is vested in Congress with this qualification alone. "The constitution affirms that the Executive power shall be vested in the President. Are there exceptions to this proposition? Yes, there are. The constitution says that, in appointing to office, the Senate shall be associated with the President, unless, in case of inferior officers, when the laws shall otherwise direct. Have we a right to extend this exception? I believe not. If the constitution has vested all executive power in the President, I venture to assert that the Legislature has no right to diminish or modify his executive authority." Again: "The doctrine, however, which seems to stand most in opposition to the principles I contend for, is, that the power to annul an appointment is, in the nature of things, incidental to the power which makes the appointment. I agree that, if nothing more was said in the constitution than that the President, by and with the advice and consent of the Senate, should appoint to office, there would be great force in saying that the power of removal reBulted by a natural implication from the power of appointing. But there is another part of the constitution, no less explicit than the one on which the gentleman's doctrine is founded: it is that part which declares that the executive power shall be vested in a President of the United States. [SENATE. But, sir, if doubts could arise on the language of the constitution itself, then it would become proper, for the purpose of ascertaining the true meaning of the instrument, to resort to arguments ab inconvenienti. The framers of the constitution never intended it to mean what would be absurd, or what would defeat the very purposes which it was intended to accomplish. I think I can prove that to deprive the President of the power of removal would be fatal to the best interests of the country. And, first, the Senate cannot always be in session. I thank Heaven for that. We must separate and attend to our ordinary business. It is necessary for a healthy political constitution that we should breathe the fresh and pure air of the country. The political excitement would rise too high if it were not cooled off in this manner. The American people never will consent, and never ought to consent, that our sessions shall become perpetual. The framers of the constitution never intended that this should be the case. But once establish the principle that the Senate must consent to removals, as well as to appointments, and this consequence is inevitable. A foreign minister in a remote part of the world is pursuing a course dangerous to the best interests, and ruinous to the character, of the country. He is disgracing us abroad, and endangering the public peace. He has been intrusted with an important negotiation, and is betraying his trust. He has become corrupt, or is entirely incompetent. before he can recall the corrupt or wicked minister? Or will any gentleman contend that, upon every occasion, when a removal from office becomes necessary, he shall call the Senators from their homes throughout this widely extended Republic? And yet, this is the inevitable consequence of the position contended for by gentlemen. Could the framers of the constitution ever have intended such an absurdity? This argument was also adverted to by Mr. Madison. This information arrives at Washington, three or four days after the adjournment of Congress on the 3d of March. "The association of the Senate with the President What is to be done? Is the President to be in exercising that particular function, is an exception entirely powerless until the succeeding Decemto this general rule; and exceptions to general rules, ber, when the Senate may meet again? Shall I conceive, are ever to be taken strictly. But there he be obliged to wait until the mischief is enis another part of the constitution which inclines, in tirely consummated-until the country is ruined my judgment, to favor the construction I put upon it. The President is required to take care that the laws be faithfully executed. If the duty to see the laws faithfully executed be required at the hands of the Executive Magistrate, it would seem that it was generally intended he should have that species of power which is necessary to accomplish that end. Now, if the officer, when once appointed, is not to depend upon the President for his official existence, but upon a distinct body, (for where there are two negatives required, either can prevent the removal,) I confess I do not see how the President can take care that the laws be faithfully executed. It is true, by a circuitous operation, he may obtain an impeachment, and even without this it is possible he may obtain the concurrence of the Senate for the purpose of displacing an officer; but would this give that species of control to the Executive Magistrate which seems to be required by the constitution? I own, if my opinion was not contrary to that entertained by what I suppose to be the minority on this question, I should be doubtful of being mistaken, when I discovered how inconsistent that construction would make the constitution with itself. I can hardly bring myself to imagine the wisdom of the convention who framed the constitution contemplated such incongruity." But again, there are great numbers of disbursing officers scattered over this Union. Information is received, during the recess of the Senate, that one of them in Arkansas or at the Rocky Mountains has been guilty of peculation, and is wasting the public money. Must the President fold his arms, and suffer him to proceed in his fraudulent course, until the next meeting of the Senate? The truth is, that the President cannot execute the laws of the Union without this power of removal. But cases still stronger may be presented. The heads of Departments are the confidential advisers of the President. It is chiefly through SENATE.] Executive Patronage. [FEBRUARY, 1835. their agency that he must conduct the great | removals are necessary must rapidly increase operations of Government. Without a direct with the number of our officers and our rapidly control over them, it would be impossible for extending population. If the President must him to take care that the laws shall be faithfully assign reasons to the Senate for his removals, executed. Suppose that one of them, during according to the provisions of this bill, or if the recess of the Senate, violates his instruc- the Senate must participate in these removals tions, refuses to hold any intercourse with the as well as in appointments, it ncessarily follows President, and pursues a career which he be- that these reasons must be investigated. Witlieves to be in opposition to the constitution, nesses must be examined, to ascertain the truth the laws, and the best interests of the country. or falsehood of the charges made against the Shall the Executive arm be paralyzed; and, in officer sought to be removed. The case must such a case, must he patiently submit to all be tried judicially. Time must be consumed, to these evils until the Senate can be convened? the prejudice of our other duties. The legislaIn time of war the country might be ruined by tive functions of the Senate must thus become a corrupt Secretary of War, before the Senate impaired, and feelings excited between co-ordicould be assembled. nate branches of the Government calculated to produce a most injurious effect upon the country. In this state of things, the case might readily occur which was anticipated by Mr. Madison in 1789. A majority of the Senate might even keep one of the heads of Department in office against the will of the President. Whether they would have done so or not last winter, in the case of the Secretary of the Treasury, I shall not pretend to determine. It is not my intention on this occasion to discuss the question of the removal of the deposits from the Bank of the United States. I merely wish to present it as a forcible illustration of my argument. Suppose the late Secretary of the Treasury had determined to remove the deposits, and the President had believed this measure would be as ruinous to the country as the friends of the bank apprehended. If the Secretary, notwithstanding the remonstrances of the President, had proceeded to issue the order for their removal, what should we have heard from those who were loudest in their denunciations against the Executive, if he had said, My arms are tied, I have no power to arrest the act; the deposits must be removed, because I cannot remove my Secretary? Here the evil would have been done before the Senate could possibly have been assembled. I am indebted to the speech of the Senator from South Carolina, (Mr. CALHOUN,) at the last session, for this illustration. The truth is, view the subject in any light you may, the power of removal is in its nature inseparable from the executive power. I have been presenting the inconveniences which would arise, during the recess of the Senate, from the want of this power in the Executive. But suppose the Senate to be always in session, would this remove every difficulty? By no means. Confer upon the Senate the power of rejecting removals, and you make the Executive, in the language of the debate of 1789, a double-headed monster. That power on whom is devolved the execution of your laws must be able to remove a corrupt or incompetent agent from office, or he cannot perform his duties. The Senate may, without inconvenience, and with very great advantage to the country, participate in appointments; but, when the man is once in office, the President must necessarily possess the power of turning him out in case he does not perform his duties. This power ought not to depend upon the will of the Senate, for that body have nothing to do with the execution of the laws. If the power contended for were vested in the Senate, what would be the consequences? Still more dangerous, if possible, than any which I have yet depicted. The cases in which If this power were conferred upon the Senate it would interfere with our judicial functions to a dangerous and alarming extent. The removal of a high officer of the Government is recommended by the President to the Senate, because of official misconduct. The charges are tried before the Senate. From the very nature of the question, it must become, in fact, a judicial investigation. The Senate determine, either that he shall remain in his office, or that he shall be removed. In either case, the House of Representatives, possessing the sole power of impeachment under the constitution, determine to exercise it against this officer. But the Senate have, by their previous proceedings, utterly disqualified themselves from giving to the accused an impartial trial. They have already decided upon his guilt or his innocence. Instead of proceeding to the trial unbiased by favor or by prejudice, their minds are inflamed, their judgments are biased, and they come to the investigation with the feelings of partisans rather than those of judges. The House of Representatives would have a just right to complain loudly against the exercise of this power by the Senate. We should thus disqualify ourselves from judging impartially in cases between the people of the United States and the high officers of the Government. I think I have successfully established the position that no two things can in their nature be more distinct than the power of appointment and that of removal. If this be the case, then what becomes of the argument of the gentleman from Massachusetts? (Mr. WEBSTER.) It rested entirely upon the principle that these two powers were so identical in their nature, that because the Senate, under the constitution, have the express power of advising and consenting to appointments, therefore, by implication, they must possess the power of advising and con senting to removals. The inference is without foundation. The truth is, that the more we discuss this question, we shall have the greater reason to admire the wisdom of the constitution, and of those enlightened and patriotic men who placed that construction upon it in the beginning, which I shall venture to predict never will be disturbed by the American people. The Senate, from the nature of the body, are fully competent to assist the President in appointments. It would change their character altogether, and paralyze the executive arm of the Government, if they were to usurp the power of interfering in removals from office. Let the constitution, and the construction of it by its founders, in this particular, be perpetual! It has been objected that the President, by this construction, is too far removed from responsibility in the exercise of this power. But he is responsible to the American people, whose servant he is in this, as in all other cases. Unless you palsy the executive arm, and render it powerless to do good, lest it may do evil, you cannot support the doctrine which has been urged. You must vest some discretion, you must repose some confidence, in the Executive, or the wheels of Government must stand still. Should he abuse his power, he is liable to the censure of public opinion; and, in flagrant cases, he may be impeached. It was contended in the first Congress, and the same argument has been urged upon the present occasion, that the power of removal was not recognized by the constitution; that it was a case omitted, and that therefore, by implication, it belongs to Congress. This argument was fully met and successfully refuted in 1789. If this principle were established, the executive power would have no necessary control over executive officers. Congress might confer the power of removal upon the Senate alone, upon the House of Representatives alone, or upon both conjointly, without any participation of the President. This Government-the admiration of the world-would present the solecism of an Executive without any control over executive agents, except what might be granted to him by the Legislature. We are not placed in this unfortunate predicament. The President, under the constitution, has the power of removal. It is a constitutional power, not to be controlled by the Legislature. It is a power equally sovereign in its nature with that of legislation itself. He is a co-ordinate branch of the Government, and has the same right to exercise his discretion in removals from office, that Congress possess in regard to the enact ment of laws. This brings me to consider the constitutionality of the third section of the bill now depending before us. It provides "that in all nominations made by the President to the Senate, to fill vacancies occasioned by removal from office, the fact of the removal shall be stated to the Senate at the time that the nomination is made, [SENATE. with a statement of the reasons for such removal." Whence do we derive our authority to demand his reasons? If the constitution has conferred upon him the power of removal, as I think I have clearly shown, is it not absolute in its nature, and entirely free from the control of Congress? Is he not as independent in the exercise of this power as Congress in the exercise of any power conferred upon them by the constitution? Would he not have the same authority to demand from us our reasons for rejecting a nomination as we possess to call upon him for his reasons for making a removal? Might he not say, I am answerable to the American people, and to them alone, for the exercise of this power, in the same manner that the Senate is for the exercise of any power conferred upon them by the constitution? With all the deference which I feel for the opinions of the Senator from Tennessee, (Mr. WHITE,) I think he has arrived at the conclusion that the third section of this bill is constitutional, by blending things together which are in their nature entirely distinct. He asks, is it not in the power of Congress to create the office, to define its duties, and to change and vary these duties at pleasure? Granted. May they not, if they believe the office unnecessary, repeal the law, and must not the officer fall under it? Granted. These are legislative powers, clearly conferred upon Congress by the constitution. It is then asked, may Congress not prescribe it as the duty of these officers to give reasons for their conduct? Certainly they may. And why? Because they are the creatures of Congress, they are called into existence by Congress, and they will cease to exist at the pleasure of Congress. Is this the condition of the Executive, who is a co-ordinate branch of the Government, and who is answerable for his conduct, not to Congress, but to the people of the United States? What right have we to demand reasons from the servant of another as to how he performs his duties? To his own master, which, in this particular, is the American people, and to them alone, he is responsible. If Congress can command him to give reasons to the Senate for his removals, the Senate may judge of the validity of these reasons, and condemn them if they think proper. The Execu tive of the country is thus rendered subordinate to the Senate-a position in which the constitution of the country never intended to place him. In my opinion, this bill as strongly negatives the constitutional power of the President to remove from office, without the concurrence of the Senate, as if it were so declared in express language. For this reason I shall vote against it. But if no such questions were involved in the bill, I should equally condemn its policy. Its evident tendency is substantially to make all offices offices for life, or during good behavior, which is contrary to the genius of our institutions. But the arguments against the policy of SENATE.] Executive Patronage. [FEBRUARY, 1835. this bill have been fully and ably insisted uponing after collateral questions, leading away by others. At this late period of the session, from the main point, and bewildering the judgwhen so much important business remains un- ment with disquisitions upon the various done, I shall not occupy the time of the Senate actions of Congress, and the wisdom or folly in discussing this branch of the subject. I rose of those actions. merely to present my views upon the constitutional question. Mr. PRESTON declared that it had not been originally his intention to take part in this debate; the state of his health was such as not to admit of it; but he felt himself bound to rise and express a general opinion, and more especially to enter his most solemn protest against the strange and unwarrantable doctrines which he had heard brought forward in the course of this discussion. Willing, however, as he professed himself to be, to acknowledge that Congress was the first spring and source of expenditure, he must beg to recall gentlemen to the consideration of the real question-which was not the question of origin, but of actual existence. The inquiry was directed to executive power, as now found to be, whatever may have been the errors, if they were errors, which first injudiciously suffered such a great and tremendous power to rise and grow to its present alarming height. | Congress must make appropriations, and authorize expenditure for the necessities and for the welfare of the country; but does it follow, therefore, that, because Congress must, by necessity, originate expenditure, that therefore it is admissible that these expenditures should be turned aside, or employed to the creation of a power preponderating over Congress and over every thing in the country? Does it follow that it is a harmless and innocent thing, that all this expenditure should go to the profit of one individual, to aggrandize his power, to increase his influence, to augment his patronage, and to render him the unlimited master who dictates the destiny of those to whom these expenditures are disbursed by his hand? If Congress holds the purse and pours out its treasures, does it follow that one hand is to receive them and control their disbursement, and be established necessarily as the master over all who look up to that hand for the sweets it dispenses? Vain, therefore, and futile, idle, and untenable, is the specious argument, which has been so much and so strongly dwelt upon, that, because the source of the expenditure is in Congress, therefore there is no dangerous accumulation of patronage with the President. There is (continued Mr. P.) a formidable amount of executive patronage. It is a proposition which no one can or will dare to deny, that this patronage has increased, and is still increasing. This is the proposition on which the report is founded: it is a proposition which imperatively calls upon all the power, and feeling, and energy of the people to awake and rouse themselves, and know their real situation; and, above all, not to be led to lose sight of the real fact, of the undeniable proposition, by being sent a hunt The gentleman from New York (observed Mr. P.) has analyzed and divided the mass of dependants, and then asked of each part, separately, whether there existed any danger in it? First he takes the pensioners, then the army, then the navy, and so on, and after reducing each to the utmost possible insignificancy, he then triumphantly asks, "is there danger here? By this specious mode of representing things, the honorable gentleman is mistaken if he imagines that he will succeed in convincing the country that an army of dependants, of all classes, gives no undue influence to the power which is made to preside over the mighty mass. However contemptible the mere individuals of each class may appear to him, the aggregate mass of patronage thrown, by their means, into the hands of the Executive, will not appear insignificant and contemptible to those who have at heart the welfare of the country, and the stability and permanency of our institutions. The mass of dependants gives power; that is undeniable, and that is sufficient. It is therefore to evade, it is to blink the question, to attempt to show that no power whatever. is conferred upon the individual who dispenses a patronage of such enormous extent. WEDNESDAY, February 18. Mr. BENTON offered the following resolution: ate on the 28th day of March, in the year 1834, in Resolved, That the resolution adopted by the Senthe following words, "Resolved, That the President, in the late executive proceedings in relation to the public revenue, has assumed upon himself authority and power not conferred by the constitution and laws, but in derogation of both," be, and the same hereby is, ordered to be expunged from the journals of the Senate, because the said resolution is illegal and unjust, of evil example, indefinite and vague, expressing a criminal charge without specification; and was irregularly and unconstitutionally adopted by the Senate, in subversion of the rights of defence and at a time, and under circumstances, to involve which belong to an accused and impeachable officer; interests of the people of the United States. peculiar injury to the political rights and pecuniary On motion of Mr. BENTON, the resolution was ordered to be printed. Executive Patronage. The Senate resumed the consideration of the bill to repeal the first and second sections of the act to limit the term of office of certain |