Chapter XXXV: Appendix: Impressment (34)

Having claimed for the executive the especial guardianship of the Constitution, the Protest proceeds to present a summary view of the powers which are supposed to be conferred on the executive by that instrument. And it is to this part of the message, Sir, that I would, more than to all others, call the particular attention of the Senate. I confess that it was only upon careful reperusal of the paper that I perceived the extent to which its assertions of power reach. I do not speak now of the President's claims of power as opposed to legislative authority, but of his opinions as to his own authority, duty, and responsibility, as connected with all other officers under the government. He is of opinion that the whole executive power is vested in him, and that he is responsible for its entire exercise; that among the duties imposed on him is that of "taking care that the laws be faithfully executed"; and that, "being thus made responsible for the entire action of the executive department, it is but reasonable that the power of appointing, overseeing, and controlling those who execute the laws, a power in its nature executive, should remain in his hands. It is, therefore, not only his right, but the Constitution makes it his duty, to 'nominate, and, by and with the advice and consent of the Senate, appoint,' all 'officers of the United States whose appointments are not in the Constitution otherwise provided for,' with a proviso that the appointment of inferior officers may be vested in the President alone, in the courts of justice, or in the heads of departments."

The first proposition, then, which the Protest asserts, in regard to the President's powers as executive magistrate, is, that, the general duty being imposed on him by the Constitution of taking care that the laws be faithfully executed, _he thereby becomes himself responsible for the conduct of every person employed in the government_; "for the entire action," as the paper expresses it, "of the executive department." This, Sir, is very dangerous logic. I reject the inference altogether. No such responsibility, nor any thing like it, follows from the general provision of the Constitution making it his duty to see the laws executed. If it did, we should have, in fact, but one officer in the whole government. The President would be everybody. And the Protest assumes to the President this whole responsibility for every other officer, for the very purpose of making the President everybody, of annihilating every thing like independence, responsibility, or _character_, in all other public agents. The whole responsibility is assumed, in order that it may be more plausibly argued that all officers of government are not agents of the law, but the President's agents, and therefore responsible to him alone. If he be responsible for the conduct of all officers, and they be responsible to him only, then it may be maintained that such officers are but his own agents, his substitutes, his deputies. The first thing to be done, therefore, is to assume the responsibility for all; and this you will perceive, Sir, is done, in the fullest manner, in the passages which I have read. Having thus assumed for the President the entire responsibility of the whole government, the Protest advances boldly to its conclusion, and claims, at once, absolute power over all individuals in office, as being merely the President's agents. This is the language: "The whole executive power being vested in the President, who is responsible for its exercise, it is a necessary consequence that he should have a right to employ agents of his own choice to aid him in the performance of his duties, and to discharge them when he is no longer willing to be responsible for their acts."

This, Sir, completes the work. This handsomely rounds off the whole executive system of executive authority. First, the President has the whole responsibility; and then, being thus responsible for all, he has, and ought to have, the whole power. We have heard of political _units_, and our American executive, as here represented, is indeed a _unit_. We have a charmingly simple government! Instead of many officers, in different departments, each having appropriate duties, and each responsible for his own duties, we are so fortunate as to have to deal with but one officer. The President carries on the government; all the rest are but sub-contractors. Sir, whatever _name_ we give him, we have but ONE EXECUTIVE OFFICER. A Briareus sits in the centre of our system, and with his hundred hands touches every thing, moves every thing, controls every thing. I ask, Sir, Is this republicanism? Is this a government of laws? Is this legal responsibility?

According to the Protest, the very duties which every officer under the government performs are the duties of the President himself. It says that the President has a right to employ _agents_ of his _own choice_, to aid HIM in the performance of HIS duties.

Mr. President, if these doctrines be true, it is idle for us any longer to talk about any such thing as a government of laws. We have no government of laws, not even the semblance or shadow of it; we have no legal responsibility. We have an executive, consisting of one person, wielding all official power, and which is, to every effectual purpose, completely _irresponsible_. The President declares that he is "responsible for the entire action of the executive department." Responsible? What does he mean by being "responsible"? Does he mean legal responsibility? Certainly not. No such thing. Legal responsibility signifies liability to punishment for misconduct or maladministration. But the Protest does not mean that the President is liable to be impeached and punished if a secretary of state should commit treason, if a collector of the customs should be guilty of bribery, or if a treasurer should embezzle the public money. It does not mean, and cannot mean, that he should be answerable for any such crime or such delinquency. What then, is its notion of that _responsibility_ which it says the President is under for all officers, and which authorizes him to consider all officers as his own personal agents? Sir, it is merely responsibility to public opinion. It is a liability to be blamed; it is the chance of becoming unpopular, the danger of losing a re-election. Nothing else is meant in the world. It is the hazard of failing in any attempt or enterprise of ambition. This is all the responsibility to which the doctrines of the Protest hold the President subject.

It is precisely the _responsibility_ under which Cromwell acted when he dispersed Parliament, telling its members, not in so many words, indeed, that they disobeyed the will of their constituents, but telling them that the people were sick of them, and that he drove them out "for the glory of God and the good of the nation." It is precisely the responsibility upon which Bonaparte broke up the popular assembly of France. I do not mean, Sir, certainly, by these illustrations, to insinuate designs of violent usurpation against the President; far from it; but I do mean to maintain, that such responsibility as that with which the Protest clothes him is no legal responsibility, no constitutional responsibility, no republican responsibility, but a mere liability to loss of office, loss of character, and loss of fame, if he shall choose to violate the laws and overturn the liberties of the country. It is such a responsibility as leaves every thing in his discretion and his pleasure.

Sir, it exceeds human belief that any man should put sentiments such as this paper contains into a public communication from the President to the Senate. They are sentiments which give us all one master. The Protest asserts an absolute right to remove all persons from office at pleasure; and for what reason? Because they are incompetent? Because they are incapable? Because they are remiss, negligent, or inattentive? No, Sir; these are not the reasons. But he may discharge them, one and all, simply because "he is no longer willing to be responsible for their acts"! It insists on an absolute right in the President to _direct and control_ every act of every officer of the government, except the judges. It asserts this right of direct _control_ over and over again. The President may go into the treasury, among the auditors and comptrollers, and _direct_ them how to settle every man's account; what abatements to make from one, what additions to another. He may go into the custom-house, among collectors and appraisers, and may _control_ estimates, reductions, and appraisements. It is true that these officers are sworn to discharge the duties of their respective offices honestly and fairly, according to their _own_ best abilities; it is true, that many of them are liable to indictment for official misconduct, and others responsible, in suits of individuals, for damages and penalties, if such official misconduct be proved; but notwithstanding all this, the Protest avers that all these officers are but the _President's agents_; that they are but aiding _him_ in the discharge of _his_ duties; that _he_ is responsible for their conduct, and that they are removable at his will and pleasure. And it is under this view of his own authority that the President calls the Secretaries _his_ Secretaries, not once only, but repeatedly. After half a century's administration of this government, Sir;--after we have endeavored, by statute upon statute, and by provision following provision, to define and limit official authority; to assign particular duties to particular public servants; to define those duties; to create penalties for their violation; to adjust accurately the responsibility of each agent with his own powers and his own duties; to establish the prevalence of equal rule; to make the law, as far as possible, every thing, and individual will, as far as possible, nothing;--after all this, the astounding assertion rings in our ears, that, throughout the whole range of official agency, in its smallest ramifications as well as in its larger masses, there is but ONE RESPONSIBILITY, ONE DISCRETION, ONE WILL! True indeed is it, Sir, if these sentiments be maintained,--true indeed is it that a President of the United States may well repeat from Napoleon what he repeated from Louis the Fourteenth, "I am the state"!

The argument by which the writer of the Protest endeavors to establish the President's claim to this vast mass of accumulated authority, is founded on the provision of the Constitution that the executive power shall be vested in the President. No doubt the executive power is vested in the President; but what and how much executive power, and how limited? To this question I should answer, "Look to the Constitution, and see; examine the particulars of the grant, and learn what that executive power is which is given to the President, either by express words or by necessary implication." But so the writer of this Protest does not reason. He takes these words of the Constitution as being, of themselves, a general original grant of all executive power to the President, subject only to such express limitations as the Constitution prescribes. This is clearly the writer's view of the subject, unless, indeed, he goes behind the Constitution altogether, as some expressions would intimate, to search elsewhere for sources of executive power. Thus, the Protest says that it is not only the _right_ of the President, but that the Constitution makes it his _duty_, to appoint persons to office; as if the _right_ existed before the Constitution had created the _duty_. It speaks, too, of the power of removal, not as a power _granted_ by the Constitution, but expressly as "an original executive power, _left_ unchecked by the Constitution." How original? Coming from what source higher than the Constitution? I should be glad to know how the President gets possession of any power by a title earlier, or more _original_, than the grant of the Constitution; or what is meant by an _original_ power, which the President possesses, and which the Constitution has _left_ unchecked in his hands. The truth is, Sir, most assuredly, that the writer of the Protest, in these passages, was reasoning upon the British constitution, and not upon the Constitution of the United States. Indeed, he professes to found himself on authority drawn from the constitution of England. I will read, Sir, the whole passage. It is this:--

"In strict accordance with this principle, the power of removal,
which, like that of appointment, is an original executive power, is
left unchecked by the Constitution in relation to all executive
officers, for whose conduct the President is responsible; while it
is taken from him in relation to judicial officers, for whose acts
he is not responsible. _In the government from which many of the
fundamental principles of our system are derived, the head of the
executive department originally had power to appoint and remove at
will all officers, executive and judicial._ It was to take the
judges out of this general power of removal, and thus make them
independent of the executive, that the tenure of their offices was
changed to good behavior. Nor is it conceivable why they are
placed, in our Constitution, upon a tenure different from that of
all other officers appointed by the executive, unless it be for the
same purpose."

Mr. President, I do most solemnly protest (if I, too, may be permitted to make a protest) against this mode of reasoning. The analogy between the British constitution and ours, in this respect, is not close enough to guide us safely; it can only mislead us. It has entirely misled the writer of the Protest. The President is made to argue, upon this subject, as if he had some right _anterior_ to the Constitution, which right is by that instrument checked, in some respects, and in other respects is left unchecked, but which, nevertheless, still derives its being from another source; just as the British king had, in the early ages of the monarchy, an uncontrolled right of appointing and removing all officers at pleasure, but which right, so far as it respects the judges, has since been checked and controlled by act of Parliament; the right being original and inherent, the _check_ only imposed by law. Sir, I distrust altogether British precedents, authorities, and analogies, on such questions as this. We are not inquiring how far our Constitution has imposed checks on a pre-existing authority. We are inquiring what extent of power that Constitution has _granted_. The grant of power, the whole source of power, as well as the restrictions and limitations which are imposed on it, is made in and by the Constitution. It has no other origin. And it is this, Sir, which distinguishes our system so very widely and materially from the systems of Europe. _Our_ governments are limited governments; limited in their origin, in their very creation; limited, because none but specific powers were ever granted, either to any department of government, or to the whole: _theirs_ are limited, whenever limited at all, by reason of restraints imposed at different times on governments originally unlimited and despotic. Our American questions, therefore, must be discussed, reasoned on, decided, and settled, on the appropriate principles of our own constitutions, and not by inapplicable precedents and loose analogies drawn from foreign states.

Mr. President, in one of the French comedies, as you know, in which the dulness and prolixity of legal argument is intended to be severely satirized, while the advocate is tediously groping among ancient lore having nothing to do with his case, the judge grows impatient, and at last cries out to him to _come down to the flood_! I really wish, Sir, that the writer of this Protest, since he was discussing matters of the highest importance to us as Americans, and which arise out of our own peculiar Constitution, had kept himself, not only on this side the general deluge, but also on this side the Atlantic. I desire that the broad waves of that wide sea should continue to roll between us and the influence of those foreign principles and foreign precedents which he so eagerly adopts.

In asserting power for an American President, I prefer that he should attempt to maintain his assertions on American reasons. I know not, Sir, who the writer was (I wish I did); but whoever he was, it is manifest that he argues this part of his case, throughout, on the principles of the constitution of England. It is true, that, in England, the king is regarded as the original fountain of all honor and all office; and that anciently, indeed, he possessed all political power of every kind. It is true that this mass of authority, in the progress of that government, has been diminished, restrained, and controlled, by charters, by immunities, by grants, and by various modifications, which the friends of liberty have, at different periods, been able to obtain or to impose. All liberty, as we know, all popular privileges, as indeed the word itself imports, were formerly considered as favors and concessions from the monarch. But whenever and wherever civil freedom could get a foothold, and could maintain itself, these favors were turned into rights. Before and during the reigns of the princes of the Stuart family, they were acknowledged only as favors or privileges graciously allowed, although, even then, whenever opportunity offered, as in the instance to which I alluded just now, they were contended for as rights; and by the Revolution of 1688 they were acknowledged as the rights of Englishmen, by the prince who then ascended the throne, and as the condition on which he was allowed to sit upon it. But with us there never was a time when we acknowledged original, unrestrained, sovereign power over us. Our constitutions are not made to limit and restrain pre-existing authority. They are the instruments by which the people confer power on their own servants. If I may use a legal phrase, the people are grantors, not grantees. They give to the government, and to each branch of it, all the power it possesses, or can possess; and what is not given they retain. In England, before her revolution, and in the rest of Europe since, if we would know the extent of liberty or popular right, we must go to grants, to charters, to allowances and indulgences. But with us, we go to grants and to constitutions to learn the extent of the powers of government. No political power is more original than the Constitution; none is possessed which is not there granted; and the grant, and the limitations in the grant, are in the same instrument.

The powers, therefore, belonging to any branch of our government, are to be construed and settled, not by remote analogies drawn from other governments, but from the words of the grant itself, in their plain sense and necessary import, and according to an interpretation consistent with our own history and the spirit of our own institutions. I will never agree that a President of the United States holds the whole undivided power of office in his own hands, upon the theory that he is responsible for the entire action of the whole body of those engaged in carrying on the government and executing the laws. Such a responsibility is purely ideal, delusive, and vain. There is, there can be, no substantial responsibility, any further than every individual is answerable, not merely in his reputation, not merely in the opinion of mankind, but _to the law_, for the faithful discharge of his own appropriate duties. Again and again we hear it said that the President is responsible to the American people! that he is responsible to the bar of public opinion! For whatever he does, he assumes accountability to the American people! For whatever he omits, he expects to be brought to the high bar of public opinion! And this is thought enough for a limited, restrained, republican government! an undefined, undefinable, ideal responsibility to the public judgment!

Sir, if all this mean any thing, if it be not empty sound, it means no less than that the President may do any thing and every thing which he may expect to be tolerated in doing. He may go just so far as he thinks it safe to go; and Cromwell and Bonaparte went no farther. I ask again, Sir, is this legal responsibility? Is this the true nature of a government with written laws and limited powers? And allow me, Sir, to ask, too, if an executive magistrate, while professing to act under the Constitution, is restrained only by this responsibility to public opinion, what prevents him, on the same responsibility, from proposing a change in that Constitution? Why may he not say, "I am about to introduce new forms, new principles, and a new spirit; I am about to try a political experiment on a great scale; and when I get through with it, I shall be responsible to the American people, I shall be answerable to the bar of public opinion"?

Connected, Sir, with the idea of this airy and unreal responsibility to the public is another sentiment, which of late we hear frequently expressed; and that is, _that the President is the direct representative of the American people_. This is declared in the Protest in so many words. "The President," it says, "_is the direct representative of the American people_." Now, Sir, this is not the language of the Constitution. The Constitution nowhere calls him the representative of the American people; still less, their direct representative. It could not do so with the least propriety. He is not chosen directly by the people, but by a body of electors, some of whom are chosen by the people, and some of whom are appointed by the State legislatures. Where, then, is the authority for saying that the President is the _direct representative of the people_? The Constitution calls the members of the other house Representatives, and declares that they shall be chosen by the people; and there are no other direct or immediate representatives of the people in this government. The Constitution denominates the President simply the President of the United States; it points out the complex mode of electing him, defines his powers and duties, and imposes limits and restraints on his authority. With these powers and duties, and under these restraints, he becomes, when chosen, President of the United States. That is his character, and the denomination of his office. How is it, then, that, on this official character, thus cautiously created, limited, and defined, he is to engraft another and a very imposing character, namely, the character _of the direct representative of the American people_? I hold this, Sir, to be mere assumption, and dangerous assumption. If he is the representative of _all_ the American people, he is the only representative which they all have. Nobody else presumes to represent all the people. And if he may be allowed to consider himself as the SOLE REPRESENTATIVE OF ALL THE AMERICAN PEOPLE, and is to act under no other responsibility than such as I have already described, then I say, Sir, that the government (I will not say the people) has already a master. I deny the sentiment, therefore, and I protest against the language; neither the sentiment nor the language is to be found in the Constitution of the country; and whoever is not satisfied to describe the powers of the President in the language of the Constitution may be justly suspected of being as little satisfied with the powers themselves. The President is President. His office and his name of office are known, and both are fixed and described by law. Being commander of the army and navy, holding the power of nominating to office and removing from office, and being by these powers the fountain of all patronage and all favor, what does he not become if he be allowed to superadd to all this the character of single representative of the American people? Sir, he becomes what America has not been accustomed to see, what this Constitution has never created, and what I cannot contemplate but with profound alarm. He who may call himself the single representative of a nation may speak in the name of the nation, may undertake to wield the power of the nation; and who shall gainsay him in whatsoever he chooses to pronounce to be the nation's will?

I will now, Sir, ask leave to recapitulate the general doctrines of this Protest, and to present them together. They are,--

That neither branch of the legislature can take up, or consider, for the purpose of censure, any official act of the President, without some view to legislation or impeachment;

That not only the passage, but the discussion, of the resolution of the Senate of the 28th of March, was unauthorized by the Constitution, and repugnant to its provisions;

That the custody of the public treasury always must be intrusted to the executive; that Congress cannot take it out of his hands, nor place it anywhere under such superintendents and keepers as are appointed by him, responsible to him, and removable at his will;

That the whole executive power is in the President, and that therefore the duty of defending the integrity of the Constitution _results to him from the very nature of his office_; and that the founders of our republic have attested their sense of the importance of this duty, and, by expressing it in his official oath, have given to it peculiar solemnity and force;

That, as he is to take care that the laws be faithfully executed, he is thereby made responsible for the entire action of the executive department, with the power of appointing, overseeing, and _controlling_ those who execute the laws;

That the power of removal from office, like that of appointment, is an _original_ executive power, and is _left_ in his hands _unchecked_ by the Constitution, except in the case of judges; that, being responsible for the exercise of the whole executive power, he has a right to employ agents of his own choice to assist _him_ in the performance of _his_ duties, and to discharge them when he is no longer willing to be responsible for their acts;

That the Secretaries are _his_ Secretaries, and all persons appointed to offices created by law, except the judges, _his_ agents, responsible to him, and removable at his pleasure;

And, finally, that he is the _direct representative of the American people_.

These, Sir, are some of the leading propositions contained in the Protest; and if they be true, then the government under which we live is an elective monarchy. It is not yet absolute; there are yet some checks and limitations in the Constitution and laws; but, in its essential and prevailing character, it is an elective monarchy.

Mr. President, I have spoken freely of this Protest, and of the doctrines which it advances; but I have spoken deliberately. On these high questions of constitutional law, respect for my own character, as well as a solemn and profound sense of duty, restrains me from giving utterance to a single sentiment which does not flow from entire conviction. I feel that I am not wrong. I feel that an inborn and inbred love of constitutional liberty, and some study of our political institutions, have not on this occasion misled me. But I have desired to say nothing that should give pain to the chief magistrate personally. I have not sought to fix arrows in his breast; but I believe him mistaken, altogether mistaken, in the sentiments which he has expressed; and I must concur with others in placing on the records of the Senate my disapprobation of those sentiments. On a vote which is to remain so long as any proceeding of the Senate shall last, and on a question which can never cease to be important while the Constitution of the country endures, I have desired to make public my reasons. They will now be known, and I submit them to the judgment of the present and of after times. Sir, the occasion is full of interest. It cannot pass off without leaving strong impressions on the character of public men. A collision has taken place which I could have most anxiously wished to avoid; but it was not to be shunned. We have not sought this controversy; it has met us, and been forced upon us. In my judgment, the law has been disregarded, and the Constitution transgressed; the fortress of liberty has been assaulted, and circumstances have placed the Senate in the breach; and, although we may perish in it, I know we shall not fly from it. But I am fearless of consequences. We shall hold on, Sir, and hold out, till the people themselves come to its defence. We shall raise the alarm, and maintain the post, till they whose right it is shall decide whether the Senate be a faction, wantonly resisting lawful power, or whether it be opposing, with firmness and patriotism, violations of liberty and inroads upon the Constitution.

[Footnote 1: Commonly called the Sedition Act, approved 14th July, 1798.]

[Footnote 2: South Carolina.]

THE APPOINTING AND REMOVING POWER.

DELIVERED IN THE SENATE OF THE UNITED STATES, ON THE 16TH OF FEBRUARY, 1835, ON THE PASSAGE OF THE BILL, ENTITLED "AN ACT TO REPEAL THE FIRST AND SECOND SECTIONS OF THE ACT TO LIMIT THE TERM OF SERVICE OF CERTAIN OFFICERS THEREIN NAMED."

Mr. President,--The professed object of this bill is the reduction of executive influence and patronage. I concur in the propriety of that object. Having no wish to diminish or to control, in the slightest degree, the constitutional and legal authority of the presidential office, I yet think that the indirect and rapidly increasing influence which it possesses, and which arises from the power of bestowing office and of taking it away again at pleasure, and from the manner in which that power seems now to be systematically exercised, is productive of serious evils.

The extent of the patronage springing from this power of appointment and removal is so great, that it brings a dangerous mass of private and personal interest into operation in all great public elections and public questions. This is a mischief which has reached, already, an alarming height. The principle of republican governments, we are taught, is public virtue; and whatever tends either to corrupt this principle, to debase it, or to weaken its force, tends, in the same degree, to the final overthrow of such governments. Our representative systems suppose, that, in exercising the high right of suffrage, the greatest of all political rights, and in forming opinions on great public measures, men will act conscientiously, under the influence of public principle and patriotic duty; and that, in supporting or opposing men or measures, there will be a general prevalence of honest, intelligent judgment and manly independence. These presumptions lie at the foundation of all hope of maintaining governments entirely popular. Whenever personal, individual, or selfish motives influence the conduct of individuals on public questions, they affect the safety of the whole system. When these motives run deep and wide, and come in serious conflict with higher, purer, and more patriotic purposes, they greatly endanger that system; and all will admit that, if they become general and overwhelming, so that all public principle is lost sight of, and every election becomes a mere scramble for office, the system inevitably must fall. Every wise man, in and out of government, will endeavor, therefore, to promote the ascendency of public virtue and public principle, and to restrain as far as practicable, in the actual operation of our institutions, the influence of selfish and private interests.

I concur with those who think, that, looking to the present, and looking also to the future, and regarding all the probabilities that await us in reference to the character and qualities of those who may fill the executive chair, it is important to the stability of government and the welfare of the people that there should be a check to the progress of official influence and patronage. The unlimited power to grant office, and to take it away, gives a command over the hopes and fears of a vast multitude of men. It is generally true, that he who controls another man's means of living controls his will. Where there are favors to be granted, there are usually enough to solicit for them; and when favors once granted may be withdrawn at pleasure, there is ordinarily little security for personal independence of character. The power of giving office thus affects the fears of all who are in, and the hopes of all who are out. Those who are _out_ endeavor to distinguish themselves by active political friendship, by warm personal devotion, by clamorous support of men in whose hands is the power of reward; while those who are _in_ ordinarily take care that others shall not surpass them in such qualities or such conduct as are most likely to secure favor. They resolve not to be outdone in any of the works of partisanship. The consequence of all this is obvious. A competition ensues, not of patriotic labors; not of rough and severe toils for the public good; not of manliness, independence, and public spirit; but of complaisance, of indiscriminate support of executive measures, of pliant subserviency and gross adulation. All throng and rush together to the altar of man-worship; and there they offer sacrifices, and pour out libations, till the thick fumes of their incense turn their own heads, and turn, also, the head of him who is the object of their idolatry.

The existence of parties in popular governments is not to be avoided; and if they are formed on constitutional questions, or in regard to great measures of public policy, and do not run to excessive length, it may be admitted that, on the whole, they do no great harm. But the patronage of office, the power of bestowing place and emoluments, creates parties, not upon any principle or any measure, but upon the single ground of personal interest. Under the direct influence of this motive, they form round a leader, and they go for "the spoils of victory." And if the party chieftain becomes the national chieftain, he is still but too apt to consider all who have opposed him as enemies to be punished, and all who have supported him as friends to be rewarded. Blind devotion to party, and to the head of a party, thus takes place of the sentiment of generous patriotism and a high and exalted sense of public duty.

Let it not be said, Sir, that the danger from executive patronage cannot be great, since the persons who hold office, or can hold office, constitute so small a portion of the whole people.

In the first place, it is to be remembered that patronage acts, not only on those who actually possess office, but on those also who expect it, or hope for it; and in the next place, office-holders, by their very situation, their public station, their connection with the business of individuals, their activity, their ability to help or to hurt according to their pleasure, their acquaintance with public affairs, and their zeal and devotion, exercise a degree of influence out of all proportion to their numbers.

Sir, we cannot disregard our own experience. We cannot shut our eyes to what is around us and upon us. No candid man can deny that a great, a very great change has taken place, within a few years, in the practice of the executive government, which has produced a corresponding change in our political condition. No one can deny that office, of every kind, is now sought with extraordinary avidity, and that the condition, well understood to be attached to every officer, high or low, is indiscriminate support of executive measures and implicit obedience to executive will. For these reasons, Sir, I am for arresting the further progress of this executive patronage, if we can arrest it; I am for staying the further contagion of this plague.

The bill proposes two measures. One is to alter the duration of certain offices, now limited absolutely to four years; so that the limitation shall be qualified or conditional. If the officer is in default, if his accounts are not settled, if he retains or misapplies the public money, information is to be given thereof, and thereupon his commission is to cease. But if his accounts are all regularly settled, if he collects and disburses the public money faithfully, then he is to remain in office, unless, for some other cause, the President sees fit to remove him. This is the provision of the bill. It applies only to certain enumerated officers, who may be called accounting officers; that is to say, officers who receive and disburse the public money. Formerly, all these officers held their places at the pleasure of the President. If he saw no just cause for removing them, they continued in their situations, no fixed period being assigned for the expiration of their commissions. But the act of 1820 limited the commissions of these officers to four years. At the end of four years, they were to go out, without any removal, however well they might have conducted themselves, or however useful to the public their further continuance in office might be. They might be nominated again, or might not; but their commissions expired.

Now, Sir, I freely admit that considerable benefit has arisen from this law. I agree that it has, in some instances, secured promptitude, diligence, and a sense of responsibility. These were the benefits which those who passed the law expected from it; and these benefits have, in some measure, been realized. But I think that this change in the tenure of office, together with some good, has brought along a far more than equivalent amount of evil. By the operation of this law, the President can deprive a man of office without taking the responsibility of removing him. The law itself vacates the office, and gives the means of rewarding a friend without the exercise of the power of removal at all. Here is increased power, with diminished responsibility. Here is a still greater dependence, for the means of living, on executive favor, and, of course, a new dominion acquired over opinion and over conduct. The power of removal is, or at least formerly was, a suspected and odious power. Public opinion would not always tolerate it; and still less frequently did it approve it. Something of character, something of the respect of the intelligent and patriotic part of the community, was lost by every instance of its unnecessary exercise. This was some restraint. But the law of 1820 took it all away. It vacated offices periodically, by its own operation, and thus added to the power of removal, which it left still existing in full force, a new and extraordinary facility for the extension of patronage, influence, and favoritism.

I would ask every member of the Senate if he does not perceive, daily, effects which may be fairly traced to this cause. Does he not see a union of purpose, a devotion to power, a co-operation in action, among all who hold office, quite unknown in the earlier periods of the government? Does he not behold, every hour, a stronger development of the principle of personal attachment, and a corresponding diminution of genuine and generous public feeling? Was indiscriminate support of party measures, was unwavering fealty, was regular suit and service, ever before esteemed such important and essential parts of official duty?

Sir, the theory of our institutions is plain; it is, that government is an agency created for the good of the people, and that every person in office is the agent and servant of the people. Offices are created, not for the benefit of those who are to fill them, but for the public convenience; and they ought to be no more in number, nor should higher salaries be attached to them, than the public service requires. This is the theory. But the difficulty in practice is, to prevent a direct reversal of all this; to prevent public offices from being considered as intended for the use and emolument of those who can obtain them. There is a headlong tendency to this, and it is necessary to restrain it by wise and effective legislation. There is still another, and perhaps a greatly more mischievous result, of extensive patronage in the hands of a single magistrate, to which I have already incidentally alluded; and that is, that men in office have begun to think themselves mere agents and servants of the appointing power, and not agents of the government or the country. It is, in an especial manner, important, if it be practicable, to apply some corrective to this kind of feeling and opinion. It is necessary to bring back public officers to the conviction, that they belong to the country, and not to any administration, nor to any one man. The army is the army of the country; the navy is the navy of the country; neither of them is either the mere instrument of the administration for the time being, nor of him who is at the head of it. The post-office, the land-office, the custom-house, are, in like manner, institutions of the country, established for the good of the people: and it may well alarm the lovers of free institutions, when all the offices in these several departments are spoken of, in high places, as being but "spoils of victory," to be enjoyed by those who are successful in a contest, in which they profess this grasping of the spoils to have been the object of their efforts.

This part of the bill, therefore, Sir, is a subject for fair comparison. We have gained something, doubtless, by limiting the commissions of these officers to four years. But have we gained as much as we have lost? And may not the good be preserved, and the evil still avoided? Is it not enough to say, that if, at the end of four years, moneys are retained, accounts unsettled, or other duties unperformed, the office shall be held to be vacated, without any positive act of removal?

For one, I think the balance of advantage is decidedly in favor of the present bill. I think it will make men more dependent on their own good conduct, and less dependent on the will of others. I believe it will cause them to regard their country more, their own duty more, and the favor of individuals less. I think it will contribute to official respectability, to freedom of opinion, to independence of character; and I think it will tend, in no small degree, to prevent the mixture of selfish and personal motives with the exercise of high political duties. It will promote true and genuine republicanism, by causing the opinion of the people respecting the measures of government, and the men in government, to be formed and expressed without fear or favor, and with a more entire regard to their true and real merits or demerits. It will be, so far as its effects reach, an auxiliary to patriotism and public virtue, in their warfare against selfishness and cupidity.

The second check on executive patronage contained in this bill is of still greater importance than the first. This provision is, that, whenever the President removes any of these officers from office, he shall state to the Senate the reasons for such removal. This part of the bill has been opposed, both on constitutional grounds and on grounds of expediency.

The bill, it is to be observed, expressly recognizes and admits the actual existence of the power of removal. I do not mean to deny, and the bill does not deny, that, at the present moment, the President may remove these officers at will, because the early decision adopted that construction, and the laws have since uniformly sanctioned it. The law of 1820, intended to be repealed by this bill, expressly affirms the power. I consider it, therefore, a settled point; settled by construction, settled by precedent, settled by the practice of the government, and settled by statute. At the same time, after considering the question again and again within the last six years, I am very willing to say, that, in my deliberate judgment, the original decision was wrong. I cannot but think that those who denied the power in 1789 had the best of the argument; and yet I will not say that I know myself so thoroughly as to affirm, that this opinion may not have been produced, in some measure, by that abuse of the power which has been passing before our eyes for several years. It is possible that this experience of the evil may have affected my view of the constitutional argument. It appears to me, however, after thorough and repeated and conscientious examination, that an erroneous interpretation was given to the Constitution, in this respect, by the decision of the first Congress; and I will ask leave to state, shortly, the reasons for that opinion, although there is nothing in this bill which proposes to disturb that decision.

The Constitution nowhere says one word of the power of removal from office, except in the case of conviction on impeachment. Wherever the power exists, therefore, except in cases of impeachment, it must exist as a constructive or incidental power. If it exists in the President alone, it must exist in him because it is attached to something else, or included in something else, or results from something else, which is granted to the President. There is certainly no specific grant; it is a power, therefore, the existence of which, if proved at all, is to be proved by inference and argument. In the only instance in which the Constitution speaks of removal from office, as I have already said, it speaks of it as the exercise of _judicial_ power; that is to say, it speaks of it as one part of the judgment of the Senate, in cases of conviction on impeachment. No other mention is made, in the whole instrument, of any power of removal. Whence, then, is the power derived to the President?

It is usually said, by those who maintain its existence in the single hands of the President, that the power is derived from that clause of the Constitution which says, "The executive power shall be vested in a President." The power of removal, they argue, is, in its nature, an executive power; and, as the executive power is thus vested in the President, the power of removal is necessarily included.

It is true, that the Constitution declares that the executive power shall be vested in the President; but the first question which then arises is, _What is executive power? What is the degree, and what are the limitations?_ Executive power is not a thing so well known, and so accurately defined, as that the written constitution of a limited government can be supposed to have conferred it in the lump. What _is_ executive power? What are its boundaries? What model or example had the framers of the Constitution in their minds, when they spoke of "executive power"? Did they mean executive power as known in England, or as known in France, or as known in Russia? Did they take it as defined by Montesquieu, by Burlamaqui, or by De Lolme? All these differ from one another as to the extent of the executive power of government. What, then, was intended by "the executive power"? Now, Sir, I think it perfectly plain and manifest, that, although the framers of the Constitution meant to confer executive power on the President, yet they meant to define and limit that power, and to confer no more than they did thus define and limit. When they say it shall be vested in a President, they mean that one magistrate, to be called a President, shall hold the executive authority; but they mean, further, that he shall hold this authority according to the grants and limitations of the Constitution itself.

They did not intend, certainly, a sweeping gift of prerogative. They did not intend to grant to the President whatever might be construed, or supposed, or imagined to be executive power; and the proof that they meant no such thing is, that, immediately after using these general words, they proceed specifically to enumerate his several distinct and particular authorities; to fix and define them; to give the Senate an essential control over the exercise of some of them, and to leave others uncontrolled. By the executive power conferred on the President, the Constitution means no more than that portion which itself creates, and which it qualifies, limits, and circumscribes.

A general survey of the frame of the Constitution will satisfy us of this. That instrument goes all along upon the idea of dividing the powers of government, so far as practicable, into three great departments. It describes the powers and duties of these departments in an article allotted to each. As first in importance and dignity, it begins with the legislative department. The first article of the Constitution, therefore, commences with the declaration, that "all legislative power herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives," The article goes on to prescribe the manner in which Congress is to be constituted and organized, _and then proceeds to enumerate, specifically, the powers intended to be granted_; and adds the general clause, conferring such authority as may be necessary to carry granted powers into effect. Now, Sir, no man doubts that this is a limited legislature; that it possesses no powers but such as are granted by express words or necessary implication; and that it would be quite preposterous to insist that Congress possesses any particular legislative power, merely because it is, in its nature, a legislative body, if no grant can be found for it in the Constitution itself.

Then comes, Sir, the second article, creating an executive power; and it declares, that "the executive power shall be vested in a President of the United States." After providing for the mode of choosing him, it immediately proceeds to enumerate, specifically, the powers which he shall possess and exercise, and the duties which he shall perform. I consider the language of this article, therefore, precisely analogous to that in which the legislature is created; that is to say, I understand the Constitution as saying that "the executive power _herein granted_ shall be vested in a President of the United States."

In like manner, the third article, or that which is intended to arrange the judicial system, begins by declaring that "the judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may, from time to time, ordain and establish." But these general words do not show _what extent_ of judicial power is vested in the courts of the United States. All that is left to be done, and is done, in the following sections, by express and well-guarded provisions.

I think, therefore, Sir, that very great caution is to be used, and the ground well considered, before we admit that the President derives any distinct and specific power from those general words which vest the executive authority in him. The Constitution itself does not rest satisfied with these general words. It immediately goes into particulars, and carefully enumerates the several authorities which the President shall possess. The very first of the enumerated powers is the command of the army and navy. This, most certainly, is an executive power. And why is it particularly set down and expressed, if any power was intended to be granted under the general words? This would pass, if any thing would pass, under those words. But enumeration, specification, particularization, was evidently the design of the framers of the Constitution, in this as in other parts of it. I do not, therefore, regard the declaration that the executive power shall be vested in a President as being any grant at all; any more than the declaration that the legislative power shall be vested in Congress constitutes, by itself, a grant of such power. In the one case, as in the other, I think the object was to describe and denominate the department, which should hold, respectively, the legislative and the executive authority; very much as we see, in some of the State constitutions, that the several articles are headed with the titles "legislative power," "executive power," "judicial power"; and this entitling of the articles with the name of the power has never been supposed, of itself, to confer any authority whatever. It amounts to no more than naming the departments.