Chapter XXXVI: Appendix: Impressment (35)

If, then, the power of removal be admitted to be an executive power, still it must be sought for and found among the enumerated executive powers, or fairly implied from some one or more of them. It cannot be implied from the general words. The power of appointment was not left to be so implied; why, then, should the power of removal have been so left? They are both closely connected; one is indispensable to the other; why, then, was one carefully expressed, defined, and limited, and not one word said about the other? Sir, I think the whole matter is sufficiently plain. Nothing is said in the Constitution about the power of removal, because it is not a separate and distinct power. It is part of the power of appointment, naturally going with it or necessarily resulting from it. The Constitution or the laws may separate these powers, it is true, in a particular case, as is done in respect to the judges, who, though appointed by the President and Senate, cannot be removed at the pleasure of either or of both. So a statute, in prescribing the tenure of any other office, may place the officer beyond the reach of the appointing power. But where no other tenure is prescribed, and officers hold their places at will, that will is necessarily the will of the appointing power; because the exercise of the power of appointment at once displaces such officers. The power of placing one man in office necessarily implies the power of turning another out. If one man be Secretary of State, and another be appointed, the first goes out by the mere force of the appointment of the other, without any previous act of removal whatever. And this is the practice of the government, and has been, from the first. In all the removals which have been made, they have generally been effected simply by making other appointments. I cannot find a case to the contrary. There is no such thing as any distinct official act of removal. I have looked into the practice, and caused inquiries to be made in the departments, and I do not learn that any such proceeding is known as an entry or record of the removal of an officer from office; and the President could only act, in such cases, by causing some proper record or entry to be made, as proof of the fact of removal. I am aware that there have been some cases in which notice has been sent to persons in office that their services are, or will be, after a given day, dispensed with. These are usually cases in which the object is, not to inform the incumbent that he is _removed_, but to tell him that a successor either is, or by a day named will be, appointed. If there be any instances in which such notice is given without express reference to the appointment of a successor, they are few; and even in these, such reference must be implied; because in no case is there any distinct official act of removal, that I can find, unconnected with the act of appointment. At any rate, it is the usual practice, and has been from the first, to consider the appointment as producing the removal of the previous incumbent. When the President desires to remove a person from office, he sends a message to the Senate nominating some other person. The message usually runs in this form: "I nominate A.B. to be collector of the customs, &c., in the place of C.D., removed." If the Senate advise and consent to this nomination, C.D. is effectually out of office, and A.B. is in, in his place. The same effect would be produced, if the message should say nothing of any removal. Suppose A.B. to be Secretary of State, and the President to send us a message, saying merely, "I nominate C.D. to be Secretary of State." If we confirm this nomination, C.D. becomes Secretary of State, and A.B. is necessarily removed.

I have gone into these details and particulars, Sir, for the purpose of showing, that, not only in the nature of things, but also according to the practice of the government, the power of removal is incident to the power of appointment. It belongs to it, is attached to it, forms a part of it, or results from it.

If this be true, the inference is manifest. If the power of removal, when not otherwise regulated by Constitution or law, be part and parcel of the power of appointment, or a necessary incident to it, then whoever holds the power of appointment holds also the power of removal. But it is the President and the Senate, and not the President alone, who hold the power of appointment; and therefore, according to the true construction of the Constitution, it should be the President and Senate, and not the President alone, who hold the power of removal.

The decision of 1789 has been followed by a very strange and indefensible anomaly, showing that it does not rest on any just principle. The natural connection between the appointing power and the removing power has, as I have already stated, always led the President to bring about a removal by the process of a new appointment. This is quite efficient for his purpose, when the Senate confirms the new nomination. One man is then turned out, and another put in. But the Senate sometimes _rejects_ the new nomination; and what then becomes of the old incumbent? Is he out of office, or is he still in? He has not been turned out by any exercise of the power of appointment, for no appointment has been made. That power has not been exercised. He has not been removed by any distinct and separate act of removal, for no such act has been performed, or attempted. Is he still in, then, or is he out? Where is he? In this dilemma, Sir, those who maintain the power of removal as existing in the President alone are driven to what seems to me very near absurdity. The incumbent has not been removed by the appointing power, since the appointing power has not been exercised. He has not been removed by any distinct and independent act of removal, since no such act has been performed.

They are forced to the necessity, therefore, of contending that the removal has been accomplished by the mere _nomination_ of a successor; so that the removing power is made incident, not to the appointing power, but to one part of it; that is, to the _nominating_ power. The nomination, not having been assented to by the Senate, it is clear, has failed, as the first step in the process of appointment. But though thus rendered null and void in its main object, as the first process in making an appointment, it is held to be good and valid, nevertheless, to bring about that which _results from an appointment_; that is, the removal of the person actually in office. In other words, the nomination produces the consequences of an appointment, or some of them, though it be itself no appointment, and effect no appointment. This, Sir, appears to me to be any thing but sound reasoning and just construction.

But this is not all. The President has sometimes sent us a nomination to an office already filled, and, before we have acted upon it, has seen fit to withdraw it. What is the effect of such a nomination? If a _nomination_, merely as such, turns out the present incumbent, then he is out, let what will become afterwards of the nomination. But I believe the President has acted upon the idea that a nomination made, and at any time afterwards withdrawn, does _not_ remove the actual incumbent.

Sir, even this is not the end of the inconsistencies into which the prevailing doctrine has led. There have been cases in which nominations to offices already filled have come to the Senate, remained here for weeks, or months, the incumbents all the while continuing to discharge their official duties, and relinquishing their offices only when the nominations of their successors have been confirmed, and commissions issued to them; so that, if a nomination be confirmed, the _nomination itself_ makes no removal; the removal then waits to be brought about by the _appointment_. But if the nomination be _rejected_, then the _nomination itself_, it is contended, has effected the removal. Who can defend opinions which lead to such results?

These reasons, Sir, incline me strongly to the opinion, that, upon a just construction of the Constitution, the power of removal is part of, or a necessary result from, the power of appointment, and, therefore, that it _ought to have been_ exercised by the Senate concurrently with the President.

The argument may be strengthened by various illustrations. The Constitution declares that Congress may vest the appointment of inferior officers in the President alone, in the courts of law, or in the heads of departments; and Congress has passed various acts providing for appointments, according to this regulation of the Constitution. Thus the Supreme Court, and other courts of the United States, have authority to appoint their clerks; heads of departments also appoint their own clerks, according to statute provisions; and it has never been doubted that these courts, and these heads of departments, may remove their clerks at pleasure, although nothing is said in the laws respecting such power of removal. Now, it is evident that neither the courts nor the heads of departments acquire the right of removal under a general grant of executive power, for none such is made to them; nor upon the ground of any general injunction to see the laws executed, for no such general injunction is addressed to them. They nevertheless hold the power of removal, as all admit, and they must hold it, therefore, simply as incident to, or belonging to, the power of appointment. There is no other clause under which they can possibly claim it.

Again, let us suppose that the Constitution had given to the President the power of appointment, without consulting the Senate. Suppose it had said, "The President shall appoint ambassadors, other public ministers, judges of the Supreme Court, and all other officers of the United States." If the Constitution had stood thus, the President would unquestionably have possessed the power of removal, where the tenure of office was not fixed; and no man, I imagine, would in that case have looked for the removing power either in that clause which says the executive authority shall be vested in the President, or in that other clause which makes it his duty to see the laws faithfully executed. Everybody would have said, "The President possesses an uncontrolled power of appointment, and that necessarily carries with it an uncontrolled power of removal, unless some permanent tenure be given to the office by the Constitution, or by law."

And now, Sir, let me state, and examine, the main argument, on which the decision of 1789 appears to rest it.

The most plausible reasoning brought forward on that occasion may be fairly stated thus: "The executive power is vested in the President; this is the general rule of the Constitution. The association of the Senate with the President in exercising a particular function belonging to the executive power, is an exception to this general rule, and exceptions to general rules are to be taken strictly; therefore, though the Senate partakes of the appointing power, by express provision, yet, as nothing is said of its participation in the removing power, such participation is to be excluded."

The error of this argument, if I may venture to call it so, considering who used it,[1] lies in this. It supposes the power of removal to be held by the President under the general grant of executive power. Now, it is certain that the power of appointment is not held under that general grant, because it is particularly provided for, and is conferred, in express terms, on the President and Senate. If, therefore, the power of removal be a natural appendage to the power of appointment, then it is not conferred by the general words granting executive power to the President, but is conferred by the special clause which gives the appointing power to the President and Senate. So that the spirit of the very rule on which the argument of 1789, as I have stated it, relies, appears to me to produce a directly opposite result; for, if exceptions to a general rule are to be taken strictly, when expressed, it is still more clear, when they are not expressed at all, that they are not to be implied except on evident and clear grounds; and as the general power of appointment is confessedly given to the President and Senate, no exception is to be implied in favor of one part of that general power, namely, the removing part, unless for some obvious and irresistible reason. In other words, this argument which I am answering is not sound in its premises, and therefore not sound in its conclusion, if the grant of the power of appointment does naturally include also the power of removal, when this last power is not otherwise expressly provided for; because, if the power of removal belongs to the power of appointment, or necessarily follows it, then it has gone with it into the hands of the President and Senate; and the President does not hold it alone, as an implication or inference from the grant to him of general executive powers.

The true application of that rule of construction, thus relied on, would present the argument, I think, in this form: "The appointing power is vested in the President and Senate; this is the general rule of the Constitution. The removing power is part of the appointing power; it cannot be separated from the rest, but by supposing that an exception was intended; but all exceptions to general rules are to be taken strictly, even when expressed; and, for a much stronger reason, they are not to be implied, when not expressed, unless inevitable necessity of construction requires it."

On the whole, Sir, with the diffidence which becomes one who is reviewing the opinions of some of the ablest and wisest men of the age, I must still express my own conviction, that the decision of Congress in 1789, which separated the power of removal from the power of appointment, was founded on an erroneous construction of the Constitution, and that it has led to great inconsistencies, as well as to great abuses, in the subsequent, and especially in the more recent, history of the government.

Much has been said now, and much was said formerly, about the inconvenience of denying this power to the President alone. I agree that an argument drawn from this source may have weight, in a doubtful case; but it is not to be permitted that we shall presume the existence of a power merely because we think it would be convenient. Nor is there, I think, any such glaring, striking, or certain inconvenience as has been suggested. Sudden removals from office are seldom necessary; we see how seldom, by reference to the practice of the government under all administrations which preceded the present. And if we look back over the removals which have been made in the last six years, there is no man who can maintain that there is one case in a hundred in which the country would have suffered the least inconvenience if no removal had been made without the consent of the Senate. Party might have felt the inconvenience, but the country never. Many removals have been made (by new appointments) during the session of the Senate; and if there has occurred one single case, in the whole six years, in which the public convenience required the removal of an officer in the recess, such case has escaped my recollection. Besides, it is worthy of being remembered, when we are seeking for the true intent of the Constitution on this subject, that there is reason to suppose that its framers expected the Senate would be in session a much larger part of the year than the House of Representatives, so that its concurrence could generally be had, at once, on any question of appointment or removal.

But this argument, drawn from the supposed inconvenience of denying an absolute power of removal to the President, suggests still another view of the question. The argument asserts, that it must have been the intention of the framers of the Constitution to confer the power on the President, for the sake of convenience, and as an absolutely necessary power in his hands. Why, then, did they leave their intent doubtful? _Why did they not confer the power in express terms?_ Why were they thus totally silent on a point of so much importance?

Seeing that the removing power naturally belongs to the appointing power; seeing that, in other cases, in the same Constitution, its framers have left the one with the consequence of drawing the other after it,--if, in this instance, they meant to do what was uncommon and extraordinary, that, is to say, if they meant to separate and divorce the two powers, why did they not say so? Why did they not express their meaning in plain words? Why should they take up the appointing power, and carefully define it, limit it, and restrain it, and yet leave to vague inference and loose construction an equally important power, which all must admit to be closely connected with it, if not a part of it? If others can account for all this silence respecting the removing power, upon any other ground than that the framers of the Constitution regarded both powers as one, and supposed they had provided for them together, I confess I cannot. I have the clearest conviction, that they looked to no other mode of displacing an officer than by impeachment, or by the regular appointment of another person to the same place.

But, Sir, whether the decision of 1789 were right or wrong, the bill before us applies to the actually existing state of things. It recognizes the President's power of removal, in express terms, as it has been practically exercised, independently of the Senate. The present bill does not disturb the power; but I wish it not to be understood that the power is, even now, beyond the reach of legislation. I believe it to be within the just power of Congress to reverse the decision of 1789, and I mean to hold myself at liberty to act, hereafter, upon that question, as I shall think the safety of the government and of the Constitution may require. The present bill, however, proceeds upon the admission that the power does at present exist. Its words are:--

"Sec. 3. _And be it further enacted_, That, in all nominations made by the President to the Senate, to fill vacancies occasioned by the exercise of the President's power to remove the said officers mentioned in the second section of this act, the fact of the removal shall be stated to the Senate, at the same time that the nomination is made, with a statement of the reasons for which such officer may have been removed."

In my opinion, this provision is entirely constitutional, and highly expedient.

The regulation of the tenure of office is a common exercise of legislative authority, and the power of Congress in this particular is not at all restrained or limited by any thing contained in the Constitution, except in regard to judicial officers. All the rest is left to the ordinary discretion of the legislature. Congress may give to offices which it creates (except those of judges) what duration it pleases. When the office is created, and is to be filled, the President is to nominate the candidate to fill it; but when he comes into the office, he comes into it upon the conditions and restrictions which the law may have attached to it. If Congress were to declare by law that the Attorney-General, or the Secretary of State, should hold his office during good behavior, I am not aware of any ground on which such a law could be held unconstitutional. A provision of that kind in regard to such officers might be unwise, but I do not perceive that it would transcend the power of Congress.

If the Constitution had not prescribed the tenure of judicial office, Congress might have thought it expedient to give the judges just such a tenure as the Constitution has itself provided; that is to say, a right to hold during good behavior; and I am of opinion that such a law would have been perfectly constitutional. It is by law, in England, that the judges are made independent of the removing power of the crown. I do not think that the Constitution, by giving the power of appointment, or the power both of appointment and removal, to the President and Senate, intended to impose any restraint on the legislature, in regard to its authority of regulating the duties, powers, duration, or responsibility of office. I agree, that Congress ought not to do any thing which shall essentially impair that right of nomination and appointment of certain officers, such as ministers, judges, &c., which the Constitution has vested in the President and Senate. But while the power of nomination and appointment is left fairly where the Constitution has placed it, I think the whole field of regulation is open to legislative discretion. If a law were to pass, declaring that district attorneys, or collectors of customs, should hold their offices four years, unless removed on conviction for misbehavior, no one could doubt its constitutional validity; because the legislature is naturally competent to prescribe the tenure of office. And is a reasonable check on the power of removal any thing more than a qualification of the tenure of office? Let it be always remembered, that the President's removing power, as now exercised, is claimed and held under the general clause vesting in him the executive authority. It is implied, or inferred, from that clause alone.

Now, if it is properly derived from that source, since the Constitution does not say how it shall be limited, how defined, or how carried into effect, it seems especially proper for Congress, under the general provision of the Constitution which gives it authority to pass all laws necessary to carry into effect the powers conferred on any department, to regulate the subject of removal. And the regulation here required is of the gentlest kind. It only provides that the President shall make known to the Senate his reasons for removal of officers of this description, when he does see fit to remove them. It might, I think, very justly go farther. It might, and perhaps it ought, to prescribe the form of removal, and the proof of the fact. It might, I also think, declare that the President should only suspend officers, at pleasure, till the next meeting of the Senate, according to the amendment suggested by the honorable member from Kentucky; and, if the present practice cannot be otherwise checked, this provision, in my opinion, ought hereafter to be adopted. But I am content with the slightest degree of restraint which may be sufficient to arrest the totally unnecessary, unreasonable, and dangerous exercise of the power of removal. I desire only, for the present at least, that, when the President turns a man out of office, he should give his reasons for it to the Senate, when he nominates another person to fill the place. Let him give these reasons, and stand on them. If they are fair and honest, he need have no fear in stating them. It is not to invite any trial; it is not to give the removed officer an opportunity of defence; it is not to excite controversy and debate; it is simply that the Senate, and ultimately the public, may know the grounds of removal. I deem this degree of regulation, at least, necessary; unless we are willing to submit all these officers to an absolute and a perfectly irresponsible removing power; a power which, as recently exercised, tends to turn the whole body of public officers into partisans, dependants, favorites, sycophants, and man-worshippers.

Mr. President, without pursuing the discussion further, I will detain the Senate only while I recapitulate the opinions which I have expressed; because I am far less desirous of influencing the judgment of others, than of making clear the grounds of my own judgment.

I think, then, Sir, that the power of appointment naturally and necessarily includes the power of removal where no limitation is expressed, nor any tenure but that at will declared. The power of appointment being conferred on the President _and Senate_, I think the power of removal went along with it, and should have been regarded as a part of it, and exercised by the same hands. I think, consequently, that the decision of 1789, which _implied_ a power of removal separate from the appointing power, was erroneous.

But I think the decision of 1789 has been established by practice, and recognized by subsequent laws, as the settled construction of the Constitution, and that it is our duty to act upon the case accordingly, for the present; without admitting that Congress may not, hereafter, if necessity shall require it, reverse the decision of 1789. I think the legislature possesses the power of regulating the condition, duration, qualification, and tenure of office, in all cases where the Constitution has made no express provision on the subject.

I am, therefore, of opinion, that it is competent for Congress to declare by law, as one qualification of the tenure of office, that the incumbent shall remain in place till the President shall remove him, for reasons to be stated to the Senate. And I am of opinion that this qualification, mild and gentle as it is, will have _some_ effect in arresting the evils which beset the progress of the government, and seriously threaten its future prosperity.

These are the reasons for which I give my support to this bill.

* * * * *

NOTE.

This speech is singular among the speeches of Mr. Webster, as it exhibits him as a "Strict-Constructionist," and as a master of that peculiar kind of deductive reasoning which is commonly considered the special distinction of his great antagonist, Mr. Calhoun. In subtilty and refinement of argument it is fully the match of most of Mr. Calhoun's elaborate disquisitions. At the time of its delivery it excited the almost savage ire of John Quincy Adams, as will be seen by reference to the latter's "Diary." It was in connection with this speech that Mr. Adams speaks of "the rotten heart of Daniel Webster." How such a purely intellectual feat as this, one so entirely passionless and impersonal, should be referred to rottenness of heart, is one of the unexplained mysteries of the operations of Mr. Adams's understanding, when that understanding was misled by personal antipathy.

[Footnote 1: Mr. Madison. See the discussion in Gales and Seaton's Debates in Congress, Vol. I. p. 473 _et seq._]

ON THE LOSS OF THE FORTIFICATION BILL IN 1835.

A SPEECH DELIVERED IN THE SENATE OF THE UNITED STATES, ON THE 14TH OF JANUARY, 1836, ON MR. BENTON'S RESOLUTIONS FOR APPROPRIATING THE SURPLUS REVENUE TO NATIONAL DEFENCE.

It is not my purpose, Mr. President, to make any remark on the state of our affairs with France. The time for that discussion has not come, and I wait. We are in daily expectation of a communication from the President, which will give us light; and we are authorized to expect a recommendation by him of such measures as he thinks it may be necessary and proper for Congress to adopt. I do not anticipate him. In this most important and delicate business, it is the proper duty of the executive to go forward, and I, for one, do not intend either to be drawn or driven into the lead. When official information shall be before us, and when measures shall be recommended upon the proper responsibility, I shall endeavor to form the best judgment I can, and shall act according to its dictates.

I rise, now, for another purpose. This resolution has drawn on a debate upon the general conduct of the Senate during the last session of Congress, and especially in regard to the proposed grant of the three millions to the President on the last night of the session. My main object is to tell the story of this transaction, and to exhibit the conduct of the Senate fairly to the public view. I owe this duty to the Senate. I owe it to the committee with which I am connected; and although whatever is personal to an individual is generally of too little importance to be made the subject of much remark, I hope I may be permitted to say a few words in defence of my own reputation, in reference to a matter which has been greatly misrepresented.

This vote for the three millions was proposed by the House of Representatives as an amendment to the fortification bill; and the loss of that bill, three millions and all, is the charge which has been made upon the Senate, sounded over all the land, and now again renewed. I propose to give the true history of this bill, its origin, its progress, and its loss.

Before attempting that, however, let me remark, for it is worthy to be remarked and remembered, that the business brought before the Senate last session, important and various as it was, and both public and private, was all gone through with most uncommon despatch and promptitude. No session has witnessed a more complete clearing off and finishing of the subjects before us. The communications from the other house, whether bills or whatever else, were especially attended to in a proper season, and with that ready respect which is due from one house to the other. I recollect nothing of any importance which came to us from the House of Representatives, which was neglected, overlooked, or disregarded by the Senate.

On the other hand, it was the misfortune of the Senate, and, as I think, the misfortune of the country, that, owing to the state of business in the House of Representatives towards the close of the session, several measures which had been matured in the Senate, and passed into bills, did not receive attention, so as to be either agreed to or rejected, in the other branch of the legislature. They fell, of course, by the termination of the session.

Among these measures may be mentioned the following, viz.:--

THE POST-OFFICE REFORM BILL, which passed the Senate _unanimously_, and of the necessity for which the whole country is certainly now most abundantly satisfied;

THE CUSTOM-HOUSE REGULATIONS BILL, which also passed nearly unanimously, after a very laborious preparation by the Committee on Commerce, and a full discussion in the Senate;

THE JUDICIARY BILL, passed here by a majority of thirty-one to five, and which has again already passed the Senate at this session with only a single dissenting vote;

THE BILL INDEMNIFYING CLAIMANTS FOR FRENCH SPOLIATIONS BEFORE 1800;

THE BILL REGULATING THE DEPOSIT OF THE PUBLIC MONEY IN THE DEPOSIT BANKS;

THE BILL RESPECTING THE TENURE OF CERTAIN OFFICES, AND THE POWER OF REMOVAL FROM OFFICE; which has now again been passed to be engrossed, in the Senate, by a decided majority.

All these important measures, matured and passed in the Senate in the course of the session, and many others of less importance, were sent to the House of Representatives, and we never heard any thing more from them. They there found their graves.

It is worthy of being remarked, also, that the attendance of members of the Senate was remarkably full, particularly toward the end of the session. On the last day, every Senator was in his place till very near the hour of adjournment, as the journal will show. We had no breaking up for want of a quorum; no delay, no calls of the Senate; nothing which was made necessary by the negligence or inattention of the members of this body. On the vote of the three millions of dollars, which was taken at about eight o'clock in the evening, forty-eight votes were given, every member of the Senate being in his place and answering to his name. This is an instance of punctuality, diligence, and labor, continued to the very end of an arduous session, wholly without example or parallel.

The Senate, then, Sir, must stand, in the judgment of every man, fully acquitted of all remissness, all negligence, all inattention, amidst the fatigue and exhaustion of the closing hours of Congress. Nothing passed unheeded, nothing was overlooked, nothing forgotten, and nothing slighted.

And now, Sir, I would proceed immediately to give the history of the fortification bill, if it were not necessary, as introductory to that history, and as showing the circumstances under which the Senate was called on to transact the public business, first to refer to another bill which was before us, and to the proceedings which were had upon it.

It is well known, Sir, that the annual appropriation bills always originate in the House of Representatives. This is so much a matter of course, that no one ever looks to see such a bill first brought forward in the Senate. It is also well known, Sir, that it has been usual, heretofore, to make the annual appropriations for the Military Academy at West Point in the general bill which provides for the pay and support of the army. But last year the army bill did not contain any appropriation whatever for the support of West Point. I took notice of this singular omission when the bill was before the Senate, but presumed, and indeed understood, that the House would send us a separate bill for the Military Academy. The army bill, therefore, passed; but no bill for the Academy at West Point appeared. We waited for it from day to day, and from week to week, but waited in vain. At length, the time for sending bills from one house to the other, according to the joint rules of the two houses, expired, and no bill had made its appearance for the support of the Military Academy. These joint rules, as is well known, are sometimes suspended on the application of one house to the other, in favor of particular bills, whose progress has been unexpectedly delayed, but which the public interest requires to be passed. But the House of Representatives sent us no request to suspend the rules in favor of a bill for the support of the Military Academy, nor made any other proposition to save the institution from immediate dissolution. Notwithstanding all the talk about a war, and the necessity of a vote for the three millions, the Military Academy, an institution cherished so long, and at so much expense, was on the very point of being entirely broken up.

Now it so happened, Sir, that at this time there was another appropriation bill which had come from the House of Representatives, and was before the Committee on Finance here. This bill was entitled "An Act making appropriations for the civil and diplomatic expenses of the government for the year 1835."

In this state of things, several members of the House of Representatives applied to the committee, and besought us to save the Military Academy by annexing the necessary appropriations for its support to the bill for civil and diplomatic service. We spoke to them, in reply, of the unfitness, the irregularity, the incongruity, of this forced union of such dissimilar subjects; but they told us it was a case of absolute necessity, and that, without resorting to this mode, the appropriation could not get through. We acquiesced, Sir, in these suggestions. We went out of our way. We agreed to do an extraordinary and an irregular thing, in order to save the public business from miscarriage. By direction of the committee, I moved the Senate to add an appropriation for the Military Academy to the bill for defraying civil and diplomatic expenses. The bill was so amended; and in this form the appropriation was finally made.

But this was not all. This bill for the civil and diplomatic service, being thus amended by tacking the Military Academy to it, was sent back by us to the House of Representatives, where its length of tail was to be still much further increased. That house had before it several subjects for provision, and for appropriation, upon which it had not passed any bill before the time for passing bills to be sent to the Senate had elapsed. I was anxious that these things should, in some way, be provided for; and when the diplomatic bill came back, drawing the Military Academy after it, it was thought prudent to attach to it several of these other provisions. There were propositions to pave the streets in the city of Washington, to repair the Capitol, and various other things, which it was necessary to provide for; and they, therefore, were put into the same bill, by way of amendment to an amendment; that is to say, Mr. President, we had been prevailed on to amend their bill for defraying the salary of our ministers abroad, by adding an appropriation for the Military Academy, and they proposed to amend this our amendment by adding matter as germane to it as it was itself to the original bill. There was also the President's gardener. His salary was unprovided for; and there was no way of remedying this important omission, but by giving him place in the diplomatic service bill, among _chargés d'affaires_, envoys extraordinary, and ministers plenipotentiary. In and among these ranks, therefore, he was formally introduced by the amendment of the House, and there he now stands, as you will readily see by turning to the law.

Sir, I have not the pleasure to know this useful person; but should I see him, some morning, overlooking the workmen in the lawns, walks, copses, and parterres which adorn the grounds around the President's residence, considering the company into which we have introduced him, I should expect to see, at least, a small diplomatic button on his working jacket.

When these amendments came from the House, and were read at our table, though they caused a smile, they were yet adopted, and the law passed, almost with the rapidity of a comet, and with something like the same length of tail.

Now, Sir, not one of these irregularities or incongruities, no part of this jumbling together of distinct and different subjects, was in the slightest degree occasioned by any thing done, or omitted to be done, on the part of the Senate. Their proceedings were all regular; their decision was prompt, their despatch of the public business correct and reasonable. There was nothing of disorganization, nothing of procrastination, nothing evincive of a temper to embarrass or obstruct the public business. If the history which I have now truly given shows that one thing was amended by another, which had no sort of connection with it; that unusual expedients were resorted to; and that the laws, instead of arrangement and symmetry, exhibit anomaly, confusion, and the most grotesque associations, it is nevertheless true, that no part of all this was made necessary by us. We deviated from the accustomed modes of legislation only when we were supplicated to do so, in order to supply bald and glaring deficiencies in measures which were before us.

But now, Mr. President, let me come to the fortification bill, the lost bill, which not only now, but on a graver occasion, has been lamented like the lost Pleiad.

This bill, Sir, came from the House of Representatives to the Senate in the usual way, and was referred to the Committee on Finance. Its appropriations were not large. Indeed, they appeared to the committee to be quite too small. It struck a majority of the committee at once, that there were several fortifications on the coast, either not provided for at all, or not adequately provided for, by this bill. The whole amount of its appropriations was four hundred or four hundred and thirty thousand dollars. It contained no grant of three millions, and if the Senate had passed it the very day it came from the House, not only would there have been no appropriation of the three millions, but, Sir, none of these other sums which the Senate did insert in the bill. Others besides ourselves saw the deficiencies of this bill. We had communications with and from the departments, and we inserted in the bill every thing which any department recommended to us. We took care to be sure that nothing else was coming. And we then reported the bill to the Senate with our proposed amendments. Among these amendments, there was a sum of $75,000 for Castle Island in Boston harbor, $100,000 for defences in Maryland, and so forth. These amendments were agreed to by the Senate, and one or two others added, on the motion of members; and the bill, as thus amended, was returned to the House.

And now, Sir, it becomes important to ask, When was this bill, thus amended, returned to the House of Representatives? Was it unduly detained here, so that the House was obliged afterwards to act upon it suddenly? This question is material to be asked, and material to be answered, too, and the journal does satisfactorily answer it; for it appears by the journal that the bill was returned to the House of Representatives on Tuesday, the 24th of February, _one whole week before the close of the session_. And from Tuesday, the 24th of February, to Tuesday, the 3d day of March, we heard not one word from this bill. Tuesday, the 3d day of March, was, of course, the last day of the session. We assembled here at ten or eleven o'clock in the morning of that day, and sat until three in the afternoon, and still we were not informed whether the House had finally passed the bill. As it was an important matter, and belonged to that part of the public business which usually receives particular attention from the Committee on Finance, I bore the subject in my mind, and felt some solicitude about it, seeing that the session was drawing so near to a close. I took it for granted, however, as I had not heard any thing to the contrary, that the amendments of the Senate would not be objected to, and that, when a convenient time should arrive for taking up the bill in the House, it would be passed at once into a law, and we should hear no more about it. Not the slightest intimation was given, either that the executive wished for any larger appropriation, or that it was intended in the House to insert such larger appropriation. Not a syllable escaped from anybody, and came to our knowledge, that any further alteration whatever was intended in the bill.

At three o'clock in the afternoon of the 3d of March, the Senate took its recess, as is usual in that period of the session, until five o'clock. At five o'clock we again assembled, and proceeded with the business of the Senate until eight o'clock in the evening; and at eight o'clock in the evening, and not before, the clerk of the House appeared at our door, and announced that the House of Representatives had _disagreed_ to one of the Senate's amendments, _agreed_ to others; and to two of those amendments, namely, the fourth and fifth, it had agreed, _with an amendment of its own_.

Now, Sir, these fourth and fifth amendments of ours were, one, a vote of $75,000 for Castle Island in Boston harbor, and the other, a vote of $100,000 for certain defences in Maryland. And what, Sir, was the addition which the House of Representatives proposed to make, by way of "_amendment_" to a vote of $75,000 for repairing the works in Boston harbor? Here, Sir, it is:--

"_And be it further enacted_, That the sum of three millions of
dollars be, and the same is hereby, appropriated, out of any money
in the treasury not otherwise appropriated, to be expended, in
whole or in part, under the direction of the President of the
United States, for the military and naval service, including
fortifications and ordnance, and the increase of the navy:
_Provided_, such expenditures shall be rendered necessary for the
defence of the country prior to the next meeting of Congress."

This proposition, Sir, was thus unexpectedly and suddenly put to us, at eight o'clock in the evening of the last day of the session. Unusual, unprecedented, extraordinary, as it obviously is, on the face of it, the manner of presenting it was still more extraordinary. The President had asked for no such grant of money; no department had recommended it; no estimate had suggested it; no reason whatever was given for it. No emergency had happened, and nothing new had occurred; every thing known to the administration, at that hour, respecting our foreign relations, had certainly been known to it for days and weeks.

With what propriety, then, could the Senate be called on to sanction a proceeding so entirely irregular and anomalous? Sir, I recollect the occurrences of the moment very well, and I remember the impression which this vote of the House seemed to make all round the Senate. We had just come out of executive session; the doors were but just opened; and I hardly remember that there was a single spectator in the hall or the galleries. I had been at the clerk's table, and had not reached my seat, when the message was read. All the Senators were in the chamber. I heard the message, certainly with great surprise and astonishment; and I immediately moved the Senate to _disagree_ to this vote of the House. My relation to the subject, in consequence of my connection with the Committee on Finance, made it my duty to propose some course, and I had not a moment's doubt or hesitation what that course ought to be. I took upon myself, then, Sir, the responsibility of moving that the Senate should disagree to this vote, and I now acknowledge that responsibility. It might be presumptuous to say that I took a leading part, but I certainly took an early part, a decided part, and an earnest part, in rejecting this broad grant of three millions of dollars, without limitation of purpose or specification of object, called for by no recommendation, founded on no estimate, made necessary by no state of things which was known to us. Certainly, Sir, I took a part in its rejection; and I stand here, in my place in the Senate, to-day, ready to defend the part so taken by me; or, rather, Sir, I disclaim all defence, and all occasion of defence, and I assert it as meritorious to have been among those who arrested, at the earliest moment, this extraordinary departure from all settled usage, and, as I think, from plain constitutional injunction,--this indefinite voting of a vast sum of money to mere executive discretion, without limit assigned, without object specified, without reason given, and without the least control.

Sir, I am told, that, in opposing this grant, I spoke with warmth, and I suppose I may have done so. If I did, it was a warmth springing from as honest a conviction of duty as ever influenced a public man. It was spontaneous, unaffected, sincere. There had been among us, Sir, no consultation, no concert. There could have been none. Between the reading of the message and my motion to disagree, there was not time enough for any two members of the Senate to exchange five words on the subject. The proposition was sudden and perfectly unexpected. I resisted it, as irregular, as dangerous in itself, and dangerous in its precedent; as wholly unnecessary, and as violating the plain intention, if not the express words, of the Constitution. Before the Senate, then, I avowed, and before the country I now avow, my part in this opposition. Whatsoever is to fall on those who sanctioned it, of that let me have my full share.

The Senate, Sir, rejected this grant by a vote of TWENTY-NINE against nineteen. Those twenty-nine names are on the journal; and whensoever the EXPUNGING process may commence, or how far soever it may be carried, I pray it, in mercy, not to erase mine from that record. I beseech it, in its sparing goodness, to leave me that proof of attachment to duty and to principle. It may draw around it, over it, or through it, black lines, or red lines, or any lines; it may mark it in any way which either the most prostrate and fantastical spirit of _man-worship_, or the most ingenious and elaborate study of self-degradation, may devise, if only it will leave it so that those who inherit my blood, or who may hereafter care for my reputation, shall be able to behold it where it now stands.

The House, Sir, insisted on this amendment. The Senate adhered to its disagreement; the House asked a conference, to which request the Senate immediately acceded. The committee of conference met, and in a very short time came to an agreement. They agreed to recommend to their respective houses, as a substitute for the vote proposed by the House, the following:--

"As an additional appropriation for arming the fortifications of the United States, three hundred thousand dollars."

"As an additional appropriation for the repairs and equipment of ships of war of the United States, five hundred thousand dollars."

I immediately reported this agreement of the committee of conference to the Senate; but, inasmuch as the bill was in the House of Representatives, the Senate could not act further on the matter until the House should first have considered the report of the committee, decided thereon, and sent us the bill. I did not myself take any note of the particular hour of this part of the transaction. The honorable member from Virginia[1] says he looked at his watch at the time, and he knows that I had come from the conference, and was in my seat, at a quarter past eleven. I have no reason to think that he is under any mistake on this particular. He says it so happened that he had occasion to take notice of the hour, and well remembers it. It could not well have been later than this, as any one will be satisfied who will look at our journals, public and executive, and see what a mass of business was despatched after I came from the committee, and before the adjournment of the Senate. Having made the report, Sir, I had no doubt that both houses would concur in the result of the conference, and looked every moment for the officer of the House bringing the bill. He did not come, however, and I pretty soon learned that there was doubt whether the committee on the part of the House would report to the House the agreement of the conferees. At first, I did not at all credit this; but was confirmed by one communication after another, until I was obliged to think it true. Seeing that the bill was thus in danger of being lost, and intending at any rate that no blame should justly attach to the Senate, I immediately moved the following resolution:--

"_Resolved_, That a message be sent to the honorable the House of Representatives, respectfully to remind the House of the report of the committee of conference appointed on the disagreeing votes of the two houses on the amendment of the House to the amendment of the Senate to the bill respecting the fortifications of the United States."

You recollect this resolution, Sir, having, as I well remember, taken some part on the occasion.[2]

This resolution was promptly passed; the secretary carried it to the House, and delivered it. What was done in the House on the receipt of this message now appears from the printed journal. I have no wish to comment on the proceedings there recorded; all may read them, and each be able to form his own opinion. Suffice it to say, that the House of Representatives, having then possession of the bill, chose to retain that possession, and never acted on the report of the committee of conference. The bill, therefore, was lost. It was lost in the House of Representatives. It died there, and there its remains are to be found. No opportunity was given to the members of the House to decide whether they would agree to the report of the committee or not. From a quarter past eleven, when the report was agreed to, until two or three o'clock in the morning, the House remained in session. If at any time there was not a quorum of members present, the attendance of a quorum, we are to presume, might have been commanded, as there was undoubtedly a great majority of members still in the city.

But, Sir, there is one other transaction of the evening which I now feel bound to state, because I think it quite important on several accounts, that it should be known.