Chapter I: AM charged with the pleasing duty of presenting to the senate the (3)

MR. CLAY thought it extremely fortunate that this subject of executive patronage came up, at this session, unincumbered by any collateral question. At the last session we had the removal of the deposits, the treasury report sustaining it, and the protest of the president against the resolution of the senate. The bank mingled itself in all our discussions, and the partisans of executive power availed themselves of the prejudices which had been artfully excited against that institution, to deceive and blind the people as to the enormity of executive pretensions. The bank has been doomed to destruction, and no one now thinks the recharter of it is practicable, or ought to be attempted. I fear, said Mr. Clay, that the people will have just and severe cause to regret its destruction. The administration of it was uncommonly able; and one is at a loss which most to admire, the imperturbable temper or the wisdom of its enlightened president. No country can possibly possess a better general currency than it supplied. The injurious consequences of the sacrifice of this valuable institution will soon be felt. There being no longer any sentinel at the head of our banking establishments to warn them, by its information and operations, of approaching danger, the local institutions, already multiplied to an alarming extent, and almost daily multiplying, in seasons of prosperity, will make free and unrestrained emissions. All the channels of circulation will become gorged. Property will rise extravagantly high, and, constantly looking up, the temptation to purchase will be irresistible. Inordinate speculation will ensue, debts will be freely contracted; and, when the season of adversity comes, as come it must, the banks, acting without concert and without guide, obeying the law of self-preservation, will all at the same time call in their issues; the vast number will exaggerate the alarm, and general distress, wide-spread ruin, and an explosion of the whole banking system, or the establishment of a new bank of the United States, will be the ultimate effects.

We can now deliberately contemplate the vast expansion of executive power, under the present administration, free from embarrassment. And is there any real lover of civil liberty, who can behold it without great and just alarm? Take the doctrines of the protest, and the secretary’s report together, and, instead of having a balanced government with three coördinate departments, we have but one power in the state. According to those papers, all the officers concerned in the administration of the laws are bound to obey the president. His will controls every branch of the administration. No matter that the law may have assigned to other officers of the government specifically defined duties; no matter that the theory of the constitution and the law supposes them bound to the discharge of those duties according to their own judgment, and under their own responsibility, and liable to impeachment for malfeasance; the will of the president, even in opposition to their own deliberate sense of their obligations, is to prevail, and expulsion from office is the penalty of disobedience! It has not, indeed, in terms, been claimed, but it is a legitimate consequence from the doctrines asserted, that all decisions of the judicial tribunals, not conformable with the president’s opinion, must be inoperative, since the officers charged with their execution are no more exempt from the pretended obligation to obey his orders than any other officers of the administration.

The basis of this overshadowing superstructure of executive power is, the power of dismission, which it is one of the objects of the bill under consideration somewhat to regulate, but which it is contended by the supporters of executive authority is uncontrollable. The practical exercise of this power, during this administration, has reduced the salutary coöperation of the senate, as approved by the constitution, in all appointments, to an idle form. Of what avail is it, that the senate shall have passed upon a nomination, if the president, at any time thereafter, even the next day, whether the senate be in session or in vacation, without any known cause, may dismiss the incumbent? Let us examine the nature of this power. It is exercised in the recesses of the executive mansion, perhaps upon secret information. The accused officer is not present nor heard, nor confronted with the witnesses against him, and the president is judge, juror, and executioner. No reasons are assigned for the dismission, and the public is left to conjecture the cause. Is not a power so exercised essentially a despotic power? It is adverse to the genius of all free governments, the foundation of which is responsibility. Responsibility is the vital principle of civil liberty, as irresponsibility is the vital principle of despotism. Free government can no more exist without this principle than animal life can be sustained without the presence of the atmosphere. But is not the president absolutely irresponsible in the exercise of this power? How can he be reached? By impeachment? It is a mockery.

It has been truly said, that the office was not made for the incumbent. Nor was it created for the incumbent of another office. In both, and in all cases, public offices are created for the public; and the people have a right to know why and wherefore one of their servants dismisses another. The abuses which have flowed, and are likely to flow from this power, if unchecked, are indescribable. How often have all of us witnessed the expulsion of the most faithful officers, of the highest character, and of the most undoubted probity, for no other imaginable reason, than difference in political sentiments? It begins in politics, and may end in religion. If a president should be inclined to fanaticism, and the power should not be regulated, what is to prevent the dismission of every officer who does not belong to his sect, or persuasion? He may, perhaps truly, say, if he does not dismiss him, that he has not his confidence. It was the cant language of Cromwell and his associates, when obnoxious individuals were in or proposed for office, that they could not _confide in them_. The tendency of this power is to revive the dark ages of feudalism, and to render every officer a feudatory. The bravest man in office, whose employment and bread depend upon the will of the president, will quail under the influence of the power of dismission. If opposed in sentiments to the administration, he will begin by silence, and finally will be goaded into partisanship.

The senator from New York, (Mr. Wright,) in analyzing the list of one hundred thousand, who are reported by the committee of patronage to draw money from the public treasury, contends that a large portion of them consists of the army, the navy, and revolutionary pensioners; and, paying a just compliment to their gallantry and patriotism, asks, if they will allow themselves to be instrumental in the destruction of the liberties of their country? It is very remarkable, that hitherto the power of dismission has not been applied to the army and navy, to which, from the nature of the service, it would seem to be more necessary than to those in civil places. But accumulation and concentration are the nature of all power, and especially of executive power. And it cannot be doubted, that, if the power of dismission, as now exercised, in regard to civil officers, is sanctioned and sustained by the people, it will, in the end, be extended to the army and navy. When so extended, it will produce its usual effect of subserviency, or if the present army and navy should be too stern and upright to be moulded according to the pleasure of the executive, we are to recollect, that the individuals who compose them are not to live always, and may be succeeded by those who will be more pliant and yielding. But I would ask the senator what has been the effect of this tremendous power of dismission upon the classes of officers to which it has been applied? Upon the post-office, the land-office, and the custom-house? They constitute so many _corps d’armee_, ready to further on all occasions the executive views and wishes. They take the lead in primary assemblies, whenever it is deemed expedient to applaud or sound the praises of the administration, or to carry out its purposes in relation to the succession. We are assured, that a large majority of the recent convention at Columbus, in Ohio, to nominate the president’s successor, were office-holders. And do you imagine that _they_ would nominate any other than the president’s known favorite?

The power of removal, as now exercised, is nowhere in the constitution expressly recognised. The only mode of displacing a public officer, for which it does provide, is by impeachment. But it has been argued, on this occasion, that it is a sovereign power, an inherent power, and an executive power; and, therefore, that it belongs to the president. Neither the premises nor the conclusion can be sustained. If they could be, the people of the United States have all along totally misconceived the nature of their government, and the character of the office of their supreme magistrate. Sovereign power is supreme power; and in no instance whatever is there any supreme power vested in the president. Whatever sovereign power is, if there be any, conveyed by the constitution of the United States, is vested in congress, or in the president and senate. The power to declare war, to lay taxes, to coin money, is vested in congress; and the treaty-making power in the president and senate. The postmaster-general has the power to dismiss his deputies. Is that a sovereign power, or has he any?

Inherent power! That is a new principle to enlarge the powers of the general government. Hitherto it has been supposed, that there are no powers possessed by the government of the United States, or any branch of it, but such as are granted by the constitution; and, in order to ascertain what has been granted, that it was necessary to show the grant, or to establish that the power claimed was necessary and proper to execute some granted power. In other words, that there are no powers but those which are expressed or incidental. But it seems that a great mistake has existed. The partisans of the executive have discovered a third and more fruitful source of power. Inherent power! Whence is it derived? The constitution created the office of president, and made it just what it is. It had no powers prior to its existence. It can have none but those which are conferred upon it by the instrument which created it, or laws passed in pursuance of that instrument. Do gentlemen mean, by inherent power, such power as is exercised by the monarchs or chief magistrates of other countries? If that be their meaning, they should avow it.

It has been argued, that the power of removal from office is an executive power; that all executive power is vested in the president; and that he is to see that the laws are faithfully executed, which, it is contended, he cannot do, unless, at his pleasure, he may dismiss any subordinate officer.

The mere act of dismission or removal may be of an executive nature, but the judgment or sentence which precedes it is a function of a judicial, and not executive nature. Impeachments, which, as has been already observed, are the only mode of removal from office expressly provided for in the constitution, are to be tried by the senate, acting as a judicial tribunal. In England, and in all the states, they are tried by judicial tribunals. In several of the states, removal from office sometimes is effected by the legislative authority, as in the case of judges on the concurrence of two thirds of the members. The administration of the laws of the several states proceeds regularly, without the exercise on the part of the governors of any power similar to that which is claimed for the president. In Kentucky, and in other states, the governor has no power to remove sheriffs, collectors of the revenue, clerks of courts, or any one officer employed in administration; and yet the governor, like the president, is constitutionally enjoined to see that the laws are faithfully executed.

The clause relied upon to prove that all executive power is vested in the president, is the first section of the second article. On examining the constitution, we find that, according to its arrangement, it treats first of the legislative power, then of the executive, and lastly of the judicial power. In each instance, it provides how those powers shall be respectively vested. The legislative power is confided to a congress, and the constitution then directs how the members of the body shall be chosen, and, after having constituted the body, enumerates and carefully specifies its powers. And the same course is observed both with the executive and the judiciary. In neither case does the preliminary clause convey any power; but the powers of the several departments are to be sought for in the subsequent provisions. The legislative powers granted by the constitution are to be vested, how? In a congress. What powers? Those which are enumerated. The executive power is to be vested, how? In a council, or in several? No, in _a_ president of the United States of America. What executive power? That which is possessed by any chief magistrate, in any country, or that which speculative writers attribute to the executive head? No such thing. That power, and that only, which the constitution subsequently assigns to the chief magistrate.

The president is enjoined by the constitution to take care that the laws be faithfully executed. Under this injunction, the power of dismission is claimed for him; and it is contended, that if those charged with the execution of the laws attempt to execute them in a sense different from that entertained by the president, he may prevent it, or withhold his coöperation. It would follow that, if the judiciary give to the law an interpretation variant from that of the president, he would not be bound to afford means which might become necessary to execute their decision. If these pretensions are well founded, it is manifest that the president, by means of the veto, in arresting the passage of laws which he disapproves, and the power of expounding those which are passed, according to his own sense of them, will become possessed of all the practical authority of the whole government. If the judiciary decide a law contrary to the president’s opinion of its meaning, he may command the marshal not to execute the decision, and urge his constitutional obligation to take care that the laws be faithfully executed. It will be recollected, perhaps, by the senate, that, during the discussions on the deposit question, I predicted that the day would arrive when a president, disposed to enlarge his powers, would appeal to his official oath as a source of power. In that oath he undertakes that he will, ‘to the best of his ability, preserve, protect, and defend the constitution of the United States.’ The fulfilment of the prediction quickly followed; and during the same session, in the protest of the president, we find him referring to this oath as a source of power and duty. Now, if the president, in virtue of his oath, may interpose and prevent any thing from being done, contrary to the constitution, as he understands it; and may, in virtue of the injunction to take care that the laws be faithfully executed, prevent the enforcement of any law contrary to the sense in which he understands it, I would ask, what powers remain to any other branch of the government? Are they not all substantially absorbed in the WILL of one man?

The president’s oath obliges him to do no more than every member of congress is also bound by official oath to do; that is, to support the constitution of the United States, in their respective spheres of action. In the discharge of the duties specifically assigned to him by the constitution and laws, he is for ever to keep in view the constitution; and this every member of congress is equally bound to do, in the passage of laws. To step out of his sphere; to trench upon other departments of the government, under the notion that they are about to violate the constitution, would be to set a most pernicious and dangerous example of violation of the constitution. Suppose congress, by two thirds of each branch, pass a law contrary to the veto of the president, and to his opinion of the constitution, is he afterwards at liberty to prevent its execution? The injunction, to which I have adverted, common both to the federal and most of the state constitutions, imposes only upon the chief magistrate the duty of executing those laws with the execution of which he is specially charged; of supplying, when necessary, the means with which he is intrusted to enable others to execute those laws, the enforcement of which is confided to them; and to communicate to congress infractions of the laws, that the guilty may be brought to punishment, or the defects of legislation remedied. The most important branch of the government to the rights of the people, as it regards the mere execution of the laws, is the judiciary; and yet they hold their offices by a tenure beyond the reach of the president. Far from impairing the efficacy of any powers with which he is invested, this permanent character in the judicial office is supposed to give stability and independence to the administration of justice.

The power of removal from office not being one of those powers which are expressly granted and enumerated in the constitution, and having I hope successfully shown that it is not essentially of an executive nature, the question arises, to what department of the government does it belong, in regard to all offices created by law, or whose tenure is not defined in the constitution? There is much force in the argument which attaches the power of dismission to the president and senate conjointly, as the appointing power. But I think we must look for it to a broader and higher source; the legislative department. The duty of appointment may be performed under a law which enacts the mode of dismission. This is the case in the post-office department, the postmaster-general being invested with both the power of appointment and of dismission. But they are not necessarily allied, and the law might separate them; and assign to one functionary the right to appoint, and to a different one the right to dismiss. Examples of such a separation may be found in the state governments.

It is the legislative authority which creates the office, defines its duties, and may prescribe its duration. I speak, of course, of offices not created by the constitution, but the law. The office, coming into existence by the will of congress, the same will may provide how, and in what manner, the office and the officer shall both cease to exist. It may direct the conditions on which he shall hold the office, and when and how he shall be dismissed. Suppose the constitution had omitted to prescribe the tenure of the judicial office, could not congress do it? But the constitution has not fixed the tenure of any subordinate offices, and therefore congress may supply the omission. It would be unreasonable to contend that, although congress, in pursuit of the public good, brings the office and the officer into being, and assigns their purposes, yet the president has a control over the officer which congress cannot reach or regulate; and this control, in virtue of some vague and undefined implied executive power, which the friends of executive supremacy are totally unable to attach to any specific clause in the constitution!

It has been contended, with great ability, that, under the clause of the constitution which declares, that congress shall have power ‘to make all laws, which shall be necessary and proper for carrying into execution the foregoing powers, and _all others_ vested by this constitution in the government of the United States, _or in any department or officer thereof_,’ congress is the sole depository of implied powers, and that no other department or officer of the government possesses any. If this argument be correct, there is an end of the controversy. But if the power of dismission be incident to the legislative authority, congress has the clear right to regulate it. And if it belong to any other department of the government, under the cited clause, congress has the power to legislate upon the subject, and may regulate it, although it could not divest the department altogether of the right.

Hitherto I have considered the question upon the ground of the constitution, unaffected by precedent. We have in vain called upon our opponents to meet us upon that ground; and to point out the clause of the constitution which by express grant, or necessary implication, subjects the will of the whole official corps to the pleasure of the president, to be dismissed whenever he thinks proper, without any cause, and without any reasons publicly assigned or avowed for the dismission, and which excludes congress from all authority to legislate against the tremendous consequences of such a vast power. No such clause has been shown; nor can it be, for the best of all reasons, because it does not exist. Instead of bringing forward any such satisfactory evidence, gentlemen entrench themselves behind the precedent which was established in 1789, when the first congress recognised the power of dismission in the president; that is, they rely upon the _opinion_ of the first congress, as to what the constitution meant, as conclusive of what it is.

The precedent of 1789 was established in the house of representatives against the opinion of a large and able minority, and in the senate by the casting vote of the vice-president, Mr. John Adams. It is impossible to read the debate which it occasioned, without being impressed with the conviction that the just confidence reposed in the father of his country, then at the head of the government, had great, if not decisive influence in establishing it. It has never, prior to the commencement of the present administration, been submitted to the process of review. It has not been reconsidered, because, under the mild administrations of the predecessors of the president, it was not abused, but generally applied to cases to which the power was justly applicable.

[Mr. Clay here proceeded to recite from a memorandum, the
number of officers removed under the different presidents,
from Washington down; but the reporter not having access to the
memorandum, is unable to note the precise number under each,
and can only state generally that it was inconsiderable, under
all the administrations prior to the present, but under that of
general Jackson the number of removals amounted to more than two
thousand; of which some five or six hundred were postmasters.]

Precedents deliberately established by wise men are entitled to great weight. They are the evidence of truth, but _only_ evidence. If the same rule of interpretation has been settled, by concurrent decisions, at different and distant periods, and by opposite dominant parties, it ought to be deemed binding, and not disturbed. But a solitary precedent, established, as this was, by an equal vote of one branch, and a powerful minority in the other, under the influence of a confidence never misplaced in an illustrious individual, and which has never been reëxamined, cannot be conclusive.

The first inquiry which suggests itself upon such a precedent as this is, brought forward by the friends of the administration, is, what right have they to the benefit of any precedent? The course of this administration has been marked by an utter and contemptuous disregard of all that had been previously done. Disdaining to move on in the beaten road carefully constructed by preceding administrations, and trampling upon every thing, it has seemed resolved to trace out for itself a new line of march. Then, let us inquire how this administration and its partisans dispose of precedents drawn from the same source, the first congress under the present constitution. If a precedent of that congress be sufficient authority to sustain an executive power, other precedents established by it, in support of legislative powers, must possess a like force. But do they admit this principle of equality? No such thing. They reject the precedents of the congress of 1789, sustaining the power of congress, and cling to that only which expands the executive authority. They go for prerogative, and they go against the rights of the people.

It was in the first congress that assembled in 1789, that the bank of the United States was established, the power to adopt a protective tariff was maintained, and the right was recognised to authorize internal improvements. And these several powers do not rest on the basis of a single precedent. They have been again and again affirmed, and reaffirmed by various congresses, at different and distant periods, under the administration of every dominant party; and, in regard to the bank, it has been sanctioned by every branch of the government, and by the people. Yet the same gentlemen, who console themselves with the precedent of 1789, in behalf of the executive prerogative, reject as unconstitutional all these legislative powers.

No one can carefully examine the debate in the house of representatives in 1789, without being struck with the superiority of the argument on the side of the minority, and the unsatisfactory nature of that of the majority. How various are the sources whence the power is derived! Scarcely any two of the majority agree in their deduction of it. Never have I seen, from the pen or tongue of Mr. Madison, one of the majority, any thing so little persuasive or convincing. He assumes that all executive power is vested in the president. He does not qualify it; he does not limit it to that executive power which the constitution grants. He does not discriminate between executive power assigned by the constitution, and executive power enacted by law. He asks, if the senate had not been associated with the president in the appointing power, whether the president, in virtue of his executive power, would not have had the right to make all appointments? I think not; clearly not. It would have been a most sweeping and far-fetched implication. In the silence of the constitution, it would have devolved upon congress to provide by law for the mode of appointing to office; and that in virtue of the clause, to which I have already adverted, giving to congress power to pass all laws necessary and proper to carry on the government. He says, ‘the danger, then, merely consists in this; the president can displace from office a man whose merits require that he should be continued in it. What will be the motives which the president can feel for such abuse of his power?’ What motives! The pure heart of a Washington could have had none; the virtuous head of Madison could conceive none; but let him ask general Jackson, and he will tell him of motives enough. He will tell him, that he wishes his administration to be a unit; that he desires only one will to prevail in the executive branch of government; that he cannot confide in men who opposed his election; that he wants places to reward those who supported it; that the spoils belong to the victor; and that he is anxious to create a great power in the state, animated by one spirit, governed by one will, and ever ready to second and sustain his administration in all its acts and measures; and to give its undivided force to the appointment of the successor whom he may prefer. And what, Mr. President, do you suppose are the securities against the abuse of this power, on which Mr. Madison relied? ‘In the first place,’ he says, ‘he will be impeachable by this house before the senate, for such an act of mal-administration,’ and so forth. Impeachment! It is not a scarecrow. Impeach the president for dismissing a receiver or register of the land office, or a collector of the customs! But who is to impeach him? The house of representatives. Now suppose a majority of that house should consist of members who approve the principle that the spoils belong to the victors; and suppose a great number of them are themselves desirous to obtain some of these spoils, and can only be gratified by displacing men from office whose merits require that they should be continued, what chance do you think there would be to prevail upon such a house to impeach the president? And if it were possible that he should, under such circumstances, be impeached, what prospect do you believe would exist of his conviction by two thirds of the senate, comprising also members not particularly averse to lucrative offices, and where the spoils doctrine, long practiced in New York, was first boldly advanced in congress?

The next security was, that the president, after displacing the meritorious officer, could not appoint another person without the concurrence of the senate. If Mr. Madison had shown how, by any action of the senate, the meritorious officer could be replaced, there would have been some security. But the president has dismissed him; his office is vacant; the public service requires it to be filled, and the president nominates a successor. In considering this nomination, the president’s partisans have contended that the senate is not at liberty to inquire how the vacancy was produced, but is limited to the single consideration of the fitness of the person nominated. But suppose the senate were to reject him, that would only leave the office still vacant, and would not reinstate the removed officer. The president would have no difficulty in nominating another, and another, until the patience of the senate, being completely exhausted, they would finally confirm the appointment. What I have supposed is not theory but actually matter of fact. How often within a few years past have the senate disapproved of removals from office, which they have been subsequently called upon to concur in filling? How often wearied in rejecting, have they approved of persons for office whom they never would have appointed? How often have members approved of bad appointments, fearing worse if they were rejected? If the powers of the senate were exercised by one man, he might oppose, in the matter of appointments, a more successful resistance to executive abuses. He might take the ground that, in cases of improper removal, he would persevere in the rejection of every person nominated, until the meritorious officer was reinstated. But the senate now consists of forty-eight members, nearly equally divided, one portion of which is ready to approve of all nominations; and of the other, some members conceive that they ought not to incur the responsibility of hazarding the continued vacancy of a necessary office, because the president may have abused his powers. There is then no security, not the slightest practical security, against abuses of the power of removal in the concurrence of the senate in appointment to office.

During the debate in 1789, Mr. Smith, of South Carolina, called for the clause of the constitution granting the power. He said, ‘we are declaring a power in the president which may hereafter be greatly abused; for we are not always to expect a chief magistrate in whom such entire confidence can be placed, as the present. Perhaps gentlemen are so much dazzled with the splendor of the virtues of the present president, as not to be able to see into futurity. * * * * * We ought to contemplate this power in the hands of an ambitious man, who might apply it to dangerous purposes. If we give this power to the president, he may from caprice remove the most worthy men from office; his will and pleasure will be the slight tenure by which the office is to be held, and of consequence you render the officer the mere state dependent, the abject slave of a person who may be disposed to abuse the confidence his fellow-citizens have placed in him.’ Mr. Huntington said, ‘if we have a vicious president who inclines to abuse this power, which God forbid, his responsibility will stand us in little stead.’

Mr. Gerry, afterwards the republican vice-president of the United States, contended, ‘that we are making these officers the mere creatures of the president; they dare not exercise the privilege of their creation, if the president shall order them to forbear; because he holds their thread of life. His power will be sovereign over them, and will soon swallow up the small security we have in the senate’s concurrence to the appointment; and we shall shortly need no other than the authority of the supreme executive officer, to nominate, appoint, continue, or remove.’ Was not that prophecy; and do we not feel and know that it is prophecy _fulfilled_?

There were other members who saw clearly into the future, and predicted, with admirable forecast, what would be the practical operation of this power. But there was one eminently gifted in this particular. It seems to have been specially reserved for a Jackson to foretell what a Jackson might do. Speaking of some future president, Mr. Jackson――(I believe of Georgia――that was his name. What a coincidence!) ‘If he wants to establish an arbitrary authority, and finds the secretary of finance, (Mr. Duane,) not inclined to second his endeavors, he has nothing more to do than to remove him, and get one appointed, (Mr. Taney,) of principles more congenial with his own. Then, says he, I have got the army; let me have but the money, and I will establish my throne upon the ruins of your visionary republic. Black, indeed, is the heart of that man who even suspects him, (WASHINGTON,) to be capable of abusing powers. But, alas! he cannot be with us for ever; he is but mortal,’ and so forth. ‘May not a man with a _Pandora’s box_ in his breast come into power, and give us sensible cause to lament our present confidence and want of foresight?’

In the early stages, and during a considerable portion of the debate, the prevailing opinion seemed to be, not that the president was invested by the constitution with the power, but that it should be conferred upon him by act of congress. In the progress of it, the idea was suddenly started, that the president possessed the power from the constitution, and the first opinion was abandoned. It was finally resolved to shape the acts, on the passage of which the question arose, so as to recognise the existence of the power of removal in the president.

Such is the solitary precedent on which the contemners of all precedents rely for sustaining this tremendous power in one man! A precedent established against the weight of argument, by a house of representatives greatly divided, in a senate equally divided, under the influence of a reverential attachment to the father of his country, upon the condition that, if the power were applied as we know it has been in hundreds of instances recently applied, the president himself would be justly liable to impeachment and removal from office, and which, until this administration, has never, since its adoption, been thoroughly examined or considered――a power, the abuses of which, as developed under this administration, if they be not checked and corrected, must inevitably tend to subvert the constitution, and overthrow public liberty. A standing army has been, in all free countries, a just object of jealousy and suspicion. But is not a corps of one hundred thousand dependents upon government, actuated by one spirit, obeying one will, and aiming at one end, more dangerous and formidable than a standing army? The standing army is separated from the mass of society, stationed in barracks or military quarters, and operates by physical force. The official corps is distributed and ramified throughout the whole country, dwelling in every city, village, and hamlet, having daily intercourse with society, and operates on public opinion. A brave people, not yet degenerated, and devoted to liberty, may successfully defend themselves against a military force. But if the official corps is aided by the executive, by the post-office department, and by a large portion of the public press, its power is invincible. That the operation of the principle, which subjects to the will of one man the tenure of all offices, which he may vacate at pleasure, without assigning any cause, must be to render them subservient to his purposes, a knowledge of human nature, and the short experience which we have had, clearly demonstrate.

It may be asked, why has this precedent of 1789 not been reviewed? Does not the long acquiescence in it prove its propriety? It has not been reëxamined for several reasons. In the first place, all feel and own the necessity of some more summary and less expensive and less dilatory mode of dismissing delinquents from subordinate offices, than that of impeachment, which, strictly speaking, was perhaps the only one in the contemplation of the framers of the constitution; certainly it is the only one for which it expressly provides. Then, under all the predecessors of the president, the power was mildly and beneficially exercised, having been always, or with very few exceptions, applied to actual delinquents. Notwithstanding all that has been said about the number of removals which were made during Mr. Jefferson’s administration, they were, in fact, comparatively few. And yet he came into power as the head of a great party, which for years had been systematically excluded from the executive patronage; a plea which cannot be urged in excuse for the present chief magistrate. It was reserved for him to act on the bold and daring principle of dismissing from office, those who had opposed his election; of dismissing from office for mere difference of opinion!

But it will be argued, that if the summary process of dismission be expedient in some cases, why take it away altogether? The bill under consideration does not disturb the power. By the usage of the government, not I think by the constitution, the president practically possesses the power to dismiss those who are unworthy of holding these offices. By no practice or usage but that which he himself has created, has he the power to dismiss meritorious officers only because they differ from him in politics. The principal object of the bill, is, to require the president, in cases of dismission, to communicate the reasons which have induced him to dismiss the officer; in other words, to make an arbitrary and despotic power a responsible power. It is not to be supposed that, if the president is bound publicly to state his reasons, that he would act from passion or caprice, or without any reason. He would be ashamed to avow that he discharged the officer because he opposed his election. And yet this mild regulation of the power is opposed by the friends of the administration! They think it unreasonable that the president should state his reasons. If he has none, perhaps it is.

But, Mr. President, although the bill is, I think, right in principle, it does not seem to me to go far enough. It makes no provision for the insufficiency of the reasons of the president, by restoring or doing justice to the injured officer. It will be some but not sufficient restraint against abuses. I have, therefore, prepared an amendment which I beg leave to offer, but which I will not press against the decided wishes of those having the immediate care of the bill. By this ♦amendment,[22] as to all offices created by law, with certain exceptions, the power at present exercised is made a suspensory power. The president may, in the vacation of the senate, suspend the officer and appoint a temporary successor. At the next session of the senate, he is to communicate his reasons; and if they are deemed sufficient, the suspension is confirmed, and the senate will pass upon the new officer. If insufficient, the displaced officer is to be restored. This amendment is substantially the same proposition, as one which I submitted to the consideration of the senate at its last session. Under this suspensory power, the president will be able to discharge all defaulters or delinquents; and it cannot be doubted that the senate will concur in all such dismissions. On the other hand, it will insure the integrity and independence of the officer, since he will feel that if he honestly and faithfully discharges his official duties, he cannot be displaced arbitrarily, or from mere caprice, or because he has independently exercised the elective franchise.

It is contended, that the president cannot see that the laws are faithfully executed unless he possesses the power of removal. That injunction of the constitution, imports a mere general superintendence, except where he is specially charged with the execution of a law. It is not necessary that he should have the power of dismission. It will be a sufficient security against the abuses of subordinate officers, that the eye of the president is upon them, and that he can communicate their delinquency. The state executives do not possess this power of dismission. In several, if not all, the states, the governor cannot even dismiss the secretary of state; yet we have heard no complaints of the inefficiency of state executives, or of the administration of the laws of the states. The president has no power to dismiss the judiciary; and it might be asked, with equal plausibility, how he could see that the laws are executed if the judges will not conform to his opinion, and he cannot dismiss them?

But it is not necessary to argue the general question, in considering either the original bill or the amendment. The former does not touch the power of dismission, and the latter only makes it conditional instead of being absolute.

It may be said, that there are certain great officers, heads of departments and foreign ministers, between whom and the president entire confidence should exist. That is admitted. But, surely, if the president remove any of them, the people ought to know the cause. The amendment, however, does not reach those classes of officers. And supposing, as I do, that the legislative authority is competent to regulate the exercise of the power of dismission, there can be no just cause to apprehend, that it will fail to make such modifications and exceptions as may be called for by the public interest; especially as whatever bill may be passed must obtain the approbation of the chief magistrate. And if it should attempt to impose improper restrictions upon the executive authority, that would furnish a legitimate occasion for the exercise of the veto. In conclusion, I shall most heartily vote for the bill, with or without the amendment which I have proposed.

ON THE PUBLIC LANDS BILL.

IN THE SENATE OF THE UNITED STATES, DECEMBER 29, 1835.

[NILES’S Weekly Register of January second, 1836, makes the
following appropriate remarks. ‘We have the pleasure to present
the able and beautiful speech of Mr. Clay, on again presenting
his bill to dispose of the proceeds of the public lands. What
an immense good would grow out of the passage of that bill!
His history of this bill is very _severe_, though stated in the
mildest terms possible.’ The bill offered by Mr. Clay at this
session passed the senate, by a vote of twenty-five to twenty;
but was laid on the table in the house, by one hundred and four
to eighty-five.]

ALTHOUGH I find myself borne down by the severest affliction with which Providence has ever been pleased to visit me, I have thought that my private griefs ought not longer to prevent me from attempting, ill as I feel qualified, to discharge my public duties. And I now rise, in pursuance of the notice which has been given, to ask leave to introduce a bill to appropriate, for a limited time, the proceeds of the sales of the public lands of the United States, and for granting land to certain states.

I feel it incumbent on me to make a brief explanation of the highly important measure which I have now the honor to propose. The bill, which I desire to introduce, provides for the distribution of the proceeds of the public lands in the years 1833, 1834, 1835, 1836, and 1837, among the twenty-four states of the union, and conforms substantially to that which passed in 1833. It is therefore of a temporary character; but if it shall be found to have salutary operation it will be in the power of a future congress to give it an indefinite continuance; and, if otherwise, it will expire by its own terms. In the event of war unfortunately breaking out with any foreign power, the bill is to cease, and the fund which it distributes is to be applied to the prosecution of the war. The bill directs that ten per centum of the net proceeds of the public lands, sold within the limits of the seven new states, shall be first set apart for them, in addition to the five per centum reserved by their several compacts with the United States; and that the residue of the proceeds, whether from sales made in the states or territories shall be divided among the twenty-four states, in proportion to their respective federal population. In this respect the bill conforms to that which was introduced in 1832. For one I should have been willing to have allowed the new states twelve and a half instead of ten per centum, but as that was objected to by the president, in his veto message, and has been opposed in other quarters, I thought it best to restrict the allowance to the more moderate sum. The bill also contains large and liberal grants of land to several of the new states, to place them upon an equality with others to which the bounty of congress has been heretofore extended, and provides that, when other new states shall be admitted into the union, they shall receive their share of the common fund.

The net amount of the sales of the public lands in the year 1833 was the sum of three million nine hundred and sixty-seven thousand six hundred and eighty-two dollars and fifty-five cents; in the year 1834 was four million eight hundred and fifty-seven thousand and six hundred dollars and sixty-nine cents; and in the year 1835, according to actual receipts in the three first quarters and an estimate of the fourth, is twelve million two hundred and twenty-two thousand one hundred and twenty-one dollars and fifteen cents; making an aggregate for the three years of twenty-one million forty-seven thousand four hundred and four dollars and thirty-nine cents. This aggregate is what the bill proposes to distribute and pay to the twenty-four states on the first day of May, 1836, upon the principles which I have stated. The difference between the estimate made by the secretary of the treasury and that which I have offered of the product of the last quarter of this year, arises from my having taken, as the probable sum, one third of the total amount of the three first quarters, and he some other conjectural sum. Deducting from the twenty-one million forty-seven thousand four hundred and four dollars and thirty-nine cents the fifteen per centum to which the seven new states, according to the bill, will be first entitled, amounting to two million six hundred and twelve thousand three hundred and fifty dollars and eighteen cents, there will remain for distribution among the twenty-four states of the union the sum of eighteen million four hundred and thirty-five thousand and fifty-four dollars and twenty-one cents. Of this sum the proportion of Kentucky will be nine hundred and sixty thousand nine hundred and forty-seven dollars and forty-one cents, of Virginia the sum of one million five hundred and eighty-one thousand six hundred and sixty-nine dollars and thirty-nine cents, of North Carolina nine hundred and eighty-eight thousand six hundred and thirty-two dollars and forty-two cents, and of Pennsylvania two million eighty-three thousand two hundred and thirty-three dollars and thirty-two cents. The proportion of Indiana, including the fifteen per centum, will be eight hundred and fifty-five thousand five hundred and eighty-eight dollars and twenty-three cents, of Ohio one million six hundred and seventy-seven thousand one hundred and ten dollars and eighty-four cents, and of Mississippi nine hundred and fifty-eight thousand nine hundred and forty-five dollars and forty-two cents. And the proportions of all the twenty-four states are indicated in a table which I hold in my hand, prepared at my instance in the office of the secretary of the senate, and to which any senator may have access.[23] The grounds on which the extra allowance is made to the new states are, first, their complaint that all lands sold by the federal government are five years exempted from state taxation; secondly, that it is to be applied in such manner as will augment the value of the unsold public lands within them; and, lastly, their recent settlement.

It may be recollected that a bill passed both houses of congress, in the session which terminated on the third of March, 1833, for the distribution of the amount received from the public lands, upon the principles of that now offered. The president, in his message at the commencement of the previous session, had specially invited the attention of congress to the subject of the public lands; had adverted to their liberation from the pledge for the payment of the public debt; and had intimated his readiness to concur in any disposal of them which might appear to congress most conducive to the quiet, harmony, and general interest of the American people.

After such a message, the president’s disapprobation of the bill could not have been anticipated. It was presented to him on the second of March, 1833. It was not returned as the constitution requires, but was retained by him after the expiration of his official term, and until the next session of congress, which had no power to act upon it. It was understood and believed that, in anticipation of the passage of the bill, the president had prepared objections to it, which he had intended to return with his negative; but he did not. If the bill had been returned, there is reason to believe that it would have passed, notwithstanding those objections. In the house, it had been carried by a majority of more than two thirds. And, in the senate, although there was not the majority on its passage, it was supposed that, in consequence of the passage of the compromise bill, some of the senators who had voted against the land bill had changed their views, and would have voted for it upon its return, and others had left the senate.

There are those who believe that the bill was unconstitutionally retained by the president and is now the law of the land. But whether it be so or not, the general government holds the public domain in trust for the common benefit of all the states; and it is, therefore, competent to provide by law that the trustee shall make distribution of the proceeds of the three past years, as well as future years, among those entitled to the beneficial interest. The bill makes such a provision. And it is very remarkable, that the sum which it proposes to distribute is about the gross surplus, or balance, estimated in the treasury on the first of January, 1836. When the returns of the last quarter of the year come in, it will probably be found that the surplus is larger than the sum which the bill distributes. But if it should not be, there will remain the seven millions held in the bank of the United States, applicable, as far as it may be received, to the service of the ensuing year.

It would be premature now to enter into a consideration of the probable revenue of future years; but, at the proper time, I think it will not be difficult to show that, exclusive of what may be received from the public lands, it will be abundantly sufficient for all the economical purposes of government, in a time of peace. And the bill, as I have already stated, provides for seasons of war. I wish to guard against all misconception by repeating, what I have heretofore several times said, that this bill is not founded upon any notion of a power in congress to lay and collect taxes and distribute the amount among the several states. I think congress possesses no such power, and has no right to exercise it until such amendment as that proposed by the senator from South Carolina (Mr. Calhoun) shall be adopted. But the bill rests on the basis of a clear and comprehensive grant of power to congress over the territories and property of the United States in the constitution, and upon express stipulations in the deeds of session.