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.
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 _charges 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.
A nomination was pending before the Senate for a judge of the Supreme Court. In the course of the sitting, that nomination was called up, and, on motion, was indefinitely postponed. In other words, it was rejected; for an indefinite postponement is a rejection. The office, of course, remained vacant, and the nomination of another person to fill it became necessary. The President of the United States was then in the Capitol, as is usual on the evening of the last day of the session, in the chamber assigned to him, and with the heads of departments around him. When nominations are rejected under these circumstances, it has been usual for the President immediately to transmit a new nomination to the Senate; otherwise the office must remain vacant till the next session, as the vacancy in such case has not happened in the recess of Congress. The vote of the Senate, indefinitely postponing this nomination, was carried to the President’s room by the secretary of the Senate. The President told the secretary that it was more than an hour past twelve o’clock, and that he could receive no further communications from the Senate, and immediately after, as I have understood, left the Capitol. The secretary brought back the paper containing the certified copy of the vote of the Senate, and indorsed thereon the substance of the President’s answer, and also added, that, according to his own watch, it was quarter past one o’clock.
There are two views, Sir, in which this occurrence may well deserve to be noticed. One is as to the connection which it may perhaps have had with the loss of the fortification bill; the other is as to its general importance, as introducing a new rule, or a new practice, respecting the intercourse between the President and the two houses of Congress on the last day of the session.
On the first point, I shall only observe that the fact of the President’s having declined to receive this communication from the Senate, and of his having left the Capitol, was immediately known in the House of Representatives. It was quite obvious, that, if he could not receive a communication from the Senate, neither could he receive a bill from the House of Representatives for his signature. It was equally obvious, that, if, under these circumstances, the House of Representatives should agree to the report of the committee of conference, so that the bill should pass, it must, nevertheless, fail to become a law for want of the President’s signature; and that, in that case, the blame of losing the bill, on whomsoever else it might fall, could not be laid upon the Senate.
On the more general point, I must say, Sir, that this decision of the President, not to hold communication with the houses of Congress after twelve o’clock at night, on the 3d of March, is quite new. No such objection has ever been made before by any President. No one of them has ever declined communicating with either house at any time during the continuance of its session on that day. All Presidents heretofore have left with the houses themselves to fix their hour of adjournment, and to bring their session for the day to a close, whenever they saw fit.
It is notorious, in point of fact, that nothing is more common than for both houses to sit later than twelve o’clock, for the purpose of completing measures which are in the last stages of their progress. Amendments are proposed and agreed to, bills passed, enrolled bills signed by the presiding officers, and other important legislative acts performed, often at two or three o’clock in the morning. All this is very well known to gentlemen who have been for any considerable time members of Congress. And all Presidents have signed bills, and have also made nominations to the Senate, without objection as to time, whenever bills have been presented for signature, or whenever it became necessary to make nominations to the Senate, at any time during the session of the respective houses on that day.
And all this, Sir, I suppose to be perfectly right, correct, and legal. There is no clause of the Constitution, nor is there any law, which declares that the term of office of members of the House of Representatives shall expire at twelve o’clock at night on the 3d of March. They are to hold for two years, but the precise hour for the commencement of that term of two years is nowhere fixed by constitutional or legal provision. It has been established by usage and by inference, and very properly established, that, since the first Congress commenced its existence on the first Wednesday in March, 1789, which happened to be the fourth day of the month, therefore the 4th of March is the day of the commencement of each successive term; but no hour is fixed by law or practice. The true rule is, as I think, most undoubtedly, that the session held on the last day constitutes the last day for all legislative and legal purposes. While the session begun on that day continues, the day itself continues, according to the established practice both of legislative and judicial bodies. This could not well be otherwise. If the precise moment of actual time were to settle such a matter, it would be material to ask, Who shall settle the time? Shall it be done by public authority, or shall every man observe the tick of his own watch? If absolute time is to furnish a precise rule, the excess of a minute, it is obvious, would be as fatal as the excess of an hour. Sir, no bodies, judicial or legislative, have ever been so hypercritical, so astute to no purpose, so much more nice than wise, as to govern themselves by any such ideas. The session for the day, at whatever hour it commences, or at whatever hour it breaks up, is the legislative day. Every thing has reference to the commencement of that diurnal session. For instance, this is the 14th day of January; we assembled here to-day at twelve o’clock; our journal is dated January 14th, and if we should remain here until five o’clock to-morrow morning (and the Senate has sometimes sat so late), our proceedings would still bear date of the 14th of January; they would be so stated upon the journal, and the journal is a record, and is a conclusive record, so far as respects the proceedings of the body.
It is so in judicial proceedings. If a man were on trial for his life, at a late hour on the last day allowed by law for the holding of the court, and the jury should acquit him, but happened to remain so long in deliberation that they did not bring in their verdict till after twelve o’clock, is it all to be held for naught, and the man to be tried over again? Are all verdicts, judgments, and orders of courts null and void, if made after midnight on the day which the law prescribes as the last day? It would be easy to show by authority, if authority could be wanted for a thing the reason of which is so clear, that the day lasts while the daily session lasts. When the court or the legislative body adjourns for that day, the day is over, and not before.
I am told, indeed, Sir, that it is true that, on this same 3d day of March last, not only were other things transacted, but that the bill for the repair of the Cumberland Road, an important and much litigated measure, actually received the signature of our presiding officer after twelve o’clock, was then sent to the President, and signed by him. I do not affirm this, because I took no notice of the time, or do not remember it if I did; but I have heard the matter so stated.
I see no reason, Sir, for the introduction of this new practice; no principle on which it can be justified, no necessity for it, no propriety in it. As yet, it has been applied only to the President’s intercourse with the Senate. Certainly it is equally applicable to his intercourse with both houses in legislative matters; and if it is to prevail hereafter, it is of much importance that it should be known.
The President of the United States, Sir, has alluded to this loss of the fortification bill in his message at the opening of the session, and he has alluded, also, in the same message, to the rejection of the vote of the three millions. On the first point, that is, the loss of the whole bill, and the causes of that loss, this is his language: “Much loss and inconvenience have been experienced in consequence of the failure of the bill containing the ordinary appropriations for fortifications, which passed one branch of the national legislature at the last session, but was lost in the other.”
If the President intended to say that the bill, having originated in the House of Representatives, passed the Senate, and was yet afterwards lost in the House of Representatives, he was entirely correct. But he has been wholly misinformed, if he intended to state that the bill, having passed the House, was lost in the Senate. As I have already stated, the bill was lost in the House of Representatives. It drew its last breath there. That House never let go its hold on it after the report of the committee of conference. But it held it, it retained it, and of course it died in its possession when the House adjourned. It is to be regretted that the President should have been misinformed in a matter of this kind, when the slightest reference to the journals of the two houses would have exhibited the correct history of the transaction.
I recur again, Mr. President, to the proposed grant of the three millions, for the purpose of stating somewhat more distinctly the true grounds of objection to that grant.
These grounds of objection were two; the first was, that no such appropriation had been recommended by the President, or any of the departments. And what made this ground the stronger was, that the proposed grant was defended, so far as it was defended at all, upon an alleged necessity, growing out of our foreign relations. The foreign relations of the country are intrusted by the Constitution to the lead and management of the executive government. The President not only is supposed to be, but usually is, much better informed on these interesting subjects than the houses of Congress. If there be danger of a rupture with a foreign state, he sees it soonest. All our ministers and agents abroad are but so many eyes, and ears, and organs to communicate to him whatsoever occurs in foreign places, and to keep him well advised of all which may concern the interests of the United States. There is an especial propriety, therefore, that, in this branch of the public service, Congress should always be able to avail itself of the distinct opinions and recommendations of the President. The two houses, and especially the House of Representatives, are the natural guardians of the people’s money. They are to keep it sacred, and to use it discreetly. They are not at liberty to spend it where it is not needed, nor to offer it for any purpose till a reasonable occasion for the expenditure be shown. Now, in this case, I repeat again, the President had sent us no recommendation for any such appropriation; no department had recommended it; no estimate had contained it; in the whole history of the session, from the morning of the first day, down to eight o’clock in the evening of the last day, not one syllable had been said to us, not one hint suggested, showing that the President deemed any such measure either necessary or proper. I state this strongly, Sir, but I state it truly. I state the matter as it is; and I wish to draw the attention of the Senate and of the country strongly to this part of the case. I say again, therefore, that, when this vote for the three millions was proposed to the Senate, there was nothing before us showing that the President recommended any such appropriation. You very well know, Sir, that this objection was stated as soon as the message from the House was read. We all well remember that this was the very point put forth by the honorable member from Tennessee,[3] as being, if I may say so, the but-end of his argument in opposition to the vote. He said, very significantly, and very forcibly, “It is not asked for by those who best know what the public service requires; how, then, are we to presume that it is needed?” This question, Sir, was not answered then; it never has been answered since, it never can be answered satisfactorily.
But let me here again, Sir, recur to the message of the President. Speaking of the loss of the bill, he uses these words: “This failure was the more regretted, not only because it necessarily interrupted and delayed the progress of a system of national defence projected immediately after the last war, and since steadily pursued, but also because it contained a contingent appropriation, inserted in accordance with the views of the executive, in aid of this important object, and other branches of the national defence, some portions of which might have been most usefully applied during the past season.”
Taking these words of the message, Sir, and connecting them with the fact that the President had made no recommendation to Congress of any such appropriation, it strikes me that they furnish matter for very grave reflection. The President says that this proposed appropriation was “in accordance with the views of the executive”; that it was “in aid of an important object”; and that “some portions of it might have been most usefully applied during the past season.”
And now, Sir, I ask, if this be so, why was not this appropriation recommended to Congress by the President? I ask this question in the name of the Constitution of the United States; I stand on its own clear authority in asking it; and I invite all those who remember its injunctions, and who mean to respect them, to consider well how the question is to be answered.
Sir, the Constitution is not yet an entire dead letter. There is yet some form of observance of its requirements; and even while any degree of formal respect is paid to it, I must be permitted to continue the question, Why was not this appropriation recommended? It was in accordance with the President’s views; it was for an important object; it might have been usefully expended. The President being of opinion, therefore, that the appropriation was necessary and proper, how is it that it was not recommended to Congress? For, Sir, we all know the plain and direct words in which the very first duty of the President is imposed by the Constitution. Here they are:–
“He shall, from time to time, give to the Congress information of the state of the Union, and recommend to their consideration such measures as he shall judge necessary and expedient.”
After enumerating the _powers_ of the President, this is the first, the very first _duty_ which the Constitution gravely enjoins upon him. And now, Sir, in no language of taunt or reproach, in no language of party attack, in terms of no asperity or exaggeration, but called upon by the necessity of defending my own vote upon the subject, as a public man, as a member of Congress here in my place, and as a citizen who feels as warm an attachment to the Constitution of the country as any other can, I demand of any who may choose to give it an answer to this question: WHY WAS NOT THIS MEASURE, WHICH THE PRESIDENT DECLARES THAT HE THOUGHT NECESSARY AND EXPEDIENT, RECOMMENDED TO CONGRESS? And why am I, and why are other members of Congress, whose path of duty the Constitution says shall be enlightened by the President’s opinions and communications, to be charged with want of patriotism and want of fidelity to the country, because we refused an appropriation which the President, though it was in accordance with his views, and though he believed it important, would not, and did not, recommend to us? When these questions are answered to the satisfaction of intelligent and impartial men, then, and not till then, let reproach, let censure, let suspicion of any kind, rest on the twenty-nine names which stand opposed to this appropriation.
How, Sir, were we to know that this appropriation “was in accordance with the views of the executive”? He had not so told us, formally or informally. He had not only not recommended it to Congress, or either house of Congress, but nobody on this floor had undertaken to speak in his behalf. No man got up to say, “The President desires it; he thinks it necessary, expedient, and proper.” But, Sir, if any gentleman had risen to say this, it would not have answered the requisition of the Constitution. Not at all. It is not by a hint, an intimation, the suggestion of a friend, that the executive duty in this respect is to be fulfilled. By no means. The President is to make a recommendation,–a public recommendation, an official recommendation, a responsible recommendation, not to one house, but to both houses; it is to be a recommendation to Congress. If, on receiving such recommendation, Congress fail to pay it proper respect, the fault is theirs. If, deeming the measure necessary and expedient, the President fails to recommend it, the fault is his, clearly, distinctly, and exclusively his. This, Sir, is the Constitution of the United States, or else I do not understand the Constitution of the United States.
Does not every man see how entirely unconstitutional it is that the President should communicate his opinions or wishes to Congress, on such grave and important subjects, otherwise than by a direct and responsible recommendation, a public and open recommendation, equally addressed and equally known to all whose duty calls upon them to act on the subject? What would be the state of things, if he might communicate his wishes or opinions privately to members of one house, and make no such communication to the other? Would not the two houses be necessarily put in immediate collision? Would they stand on equal footing? Would they have equal information? What could ensue from such a manner of conducting the public business, but quarrel, confusion, and conflict? A member rises in the House of Representatives, and moves a very large appropriation of money for military purposes. If he says he does it upon executive recommendation, where is his voucher? The President is not like the British king, whose ministers and secretaries are in the House of Commons, and who are authorized, in certain cases, to express the opinions and wishes of their sovereign. We have no king’s servants; at least, we have none known to the Constitution. Congress can know the opinions of the President only as he officially communicates them. It would be a curious inquiry in either house, when a large appropriation is moved, if it were necessary to ask whether the mover represented the President, spoke his sentiments, or, in other words, whether what he proposed were “in accordance with the views of the executive.” How could that be judged of? By the party he belongs to? Party is not quite strongly enough marked for that. By the airs he gives himself? Many might assume airs, if thereby they could give themselves such importance as to be esteemed authentic expositors of the executive will. Or is this will to be circulated in whispers; made known to the meetings of party men; intimated through the press; or communicated in any other form, which still leaves the executive completely irresponsible; so that, while executive purposes or wishes pervade the ranks of party friends, influence their conduct, and unite their efforts, the open, direct, and constitutional responsibility is wholly avoided? Sir, this is not the Constitution of the United States, nor can it be consistent with any constitution which professes to maintain separate departments in the government.
Here, then, Sir, is abundant ground, in my judgment, for the vote of the Senate, and here I might rest it. But there is also another ground. The Constitution declares that no money shall be drawn from the treasury but in consequence of appropriations made by law. What is meant by “_appropriations_”? Does not this language mean that particular sums shall be assigned by law to particular objects? How far this pointing out and fixing the particular objects shall be carried, is a question that cannot be settled by any precise rule. But “specific appropriation,” that is to say, the designation of every object for which money is voted, as far as such designation is practicable, has been thought to be a most important republican principle. In times past, popular parties have claimed great merit from professing to carry this doctrine much farther, and to adhere to it much more strictly, than their adversaries. Mr. Jefferson, especially, was a great advocate for it, and held it to be indispensable to a safe and economical administration and disbursement of the public revenues.
But what have the friends and admirers of Mr. Jefferson to say to this _appropriation_? Where do they find, in this proposed grant of three millions, a constitutional designation of object, and a particular and specific application of money? Have they forgotten, all forgotten, and wholly abandoned even all pretence for specific appropriation? If not, how could they sanction such a vote as this? Let me recall its terms. They are, 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.”
In the first place it is to be observed, that whether the money shall be used at all, or not, is made to depend on the discretion of the President. This is sufficiently liberal. It carries confidence far enough. But if there had been no other objections, if the objects of the appropriation had been sufficiently described, so that the President, if he expended the money at all, must expend it for purposes authorized by the legislature, and nothing had been left to his discretion but the question whether an emergency had arisen in which the authority ought to be exercised, I might not have felt bound to reject the vote. There are some precedents which might favor such a contingent provision, though the practice is dangerous, and ought not to be followed except in cases of clear necessity.
But the insurmountable objection to the proposed grant was, that it specified no objects. It was as general as language could make it. It embraced every expenditure that could be called either military or naval. It was to include “fortifications, ordnance, and the increase of the navy,” but it was not confined to these. It embraced the whole general subject of military service. Under the authority of such a law, the President might repair ships, build ships, buy ships, enlist seamen, and do any thing and every thing else touching the naval service, without restraint or control.
He might repair such fortifications as he saw fit, and neglect the rest; arm such as he saw fit, and neglect the arming of others; or build new fortifications wherever he chose. But these unlimited powers over the fortifications and the navy constitute by no means the most dangerous part of the proposed authority; because, under that authority, his power to raise and employ land forces would be equally absolute and uncontrolled. He might levy troops, embody a new army, call out the militia in numbers to suit his own discretion, and employ them as he saw fit.
Now, Sir, does our legislation, under the Constitution, furnish any precedent for all this?
We make appropriations for the army, and we understand what we are doing, because it is “the army,” that is to say, the army established by law. We make appropriations for the navy; they, too, are for “the navy,” as provided for and established by law. We make appropriations for fortifications, but we say what fortifications, and we assign to each its intended amount of the whole sum. This is the usual course of Congress on such subjects; and why should it be departed from? Are we ready to say that the power of fixing the places for new fortifications, and the sum allotted to each; the power of ordering new ships to be built, and fixing the number of such new ships; the power of laying out money to raise men for the army; in short, every power, great or small, respecting the military and naval service, shall be vested in the President, without specification of object or purpose, to the entire exclusion of the exercise of all judgment on the part of Congress? For one, I am not prepared. The honorable member from Ohio, near me, has said, that if the enemy had been on our shores he would not have agreed to this vote. And I say, if the proposition were now before us, and the guns of the enemy were pointed against the walls of the Capitol, I would not agree to it.
The people of this country have an interest, a property, an inheritance, in this INSTRUMENT, against the value of which forty capitols do not weigh the twentieth part of one poor scruple. There can never be any necessity for such proceedings, but a feigned and false necessity; a mere idle and hollow pretence of necessity; least of all can it be said that any such necessity actually existed on the 3d of March. There was no enemy on our shores; there were no guns pointed against the Capitol; we were in no war, nor was there a reasonable probability that we should have war, unless we made it ourselves.
But whatever was the state of our foreign relations, is it not preposterous to say, that it was necessary for Congress to adopt this measure, and yet not necessary for the President to recommend it? Why should we thus run in advance of all our own duties, and leave the President completely shielded from his just responsibility? Why should there be nothing but trust and confidence on our side, and nothing but discretion and power on his?
Sir, if there be any philosophy in history, if human blood still runs in human veins, if man still conforms to the identity of his nature, the institutions which secure constitutional liberty can never stand long against this excessive personal confidence, against this devotion to men, in utter disregard both of principle and experience, which seem to me to be strongly characteristic of our times. This vote came to us, Sir, from the popular branch of the legislature; and that such a vote should come from such a branch of the legislature was amongst the circumstances which excited in me the greatest surprise and the deepest concern. Certainly, Sir, certainly I was not, on that account, the more inclined to concur. It was no argument with me, that others seemed to be rushing, with such heedless, headlong trust, such impetuosity of confidence, into the arms of executive power. I held back the more strongly, and would hold back the longer. I see, or I think I see,–it is either a true vision of the future, revealed by the history of the past, or, if it be an illusion, it is an illusion which appears to me in all the brightness and sunlight of broad noon,–that it is in this career of personal confidence, along this beaten track of _man-worship_, marked at every stage by the fragments of other free governments, that our own system is making progress to its close. A personal popularity, honorably earned at first by military achievements, and sustained now by party, by patronage, and by enthusiasm which looks for no ill, because it means no ill itself, seems to render men willing to gratify power, even before its demands are made, and to surfeit executive discretion, even in anticipation of its own appetite.
If, Sir, on the 3d of March last, it had been the purpose of both houses of Congress to create a military dictator, what formula had been better suited to their purpose than this vote of the House? It is true, we might have given more money, if we had had it to give. We might have emptied the treasury; but as to the _form_ of the gift, we could not have bettered it. Rome had no better models. When we give our money _for any military purpose whatever_, what remains to be done? If we leave it with one man to decide, not only whether the military means of the country shall be used at all, but how they shall be used, and to what extent they shall be employed, what remains either for Congress or the people but to sit still and see how this dictatorial power will be exercised? On the 3d of March, Sir, I had not forgotten, it was impossible that I should have forgotten, the recommendation in the message at the opening of that session, that power should be vested in the President to issue letters of marque and reprisal against France, at his discretion, in the recess of Congress. Happily, this power was not granted; but suppose it had been, what would then have been the true condition of this government? Why, Sir, this condition is very shortly described. The whole war power would have been in the hands of the President; for no man can doubt a moment that reprisals would bring on immediate war; and the treasury, to the amount of this vote, in addition to all ordinary appropriations, would have been at his absolute disposal also. And all this in a time of peace. I beseech all true lovers of constitutional liberty to contemplate this state of things, and tell me whether such be a truly republican administration of this government. Whether particular consequences had ensued or not, is such an accumulation of power in the hands of the executive according to the spirit of our system? Is it either wise or safe? Has it any warrant in the practice of former times? Or are gentlemen ready to establish the practice, as an example for the benefit of those who are to come after us?
But, Sir, if the power to make reprisals, and this money from the treasury, had both been granted, is there not great reason to believe that we should have been now actually at war? I think there is great reason to believe this. It will be said, I know, that if we had armed the President with this power of war, and supplied him with this grant of money, France would have taken it for such a proof of spirit on our part, that she would have paid the indemnity without further delay. This is the old story, and the old plea. It is the excuse of every one who desires more power than the Constitution or the laws give him, that if he had more power he could do more good. Power is always claimed for the good of the people; and dictators are always made, when made at all, for the good of the people. For my part, Sir, I was content, and am content, to show France that we are prepared to maintain our just rights against her by the exertion of our power, when need be, according to the forms of our own Constitution; that, if we make war, we will make it constitutionally; and that we will trust all our interests, both in peace and war, to what the intelligence and the strength of the country may do for them, without breaking down or endangering the fabric of our free institutions.
Mr. President, it is the misfortune of the Senate to have differed with the executive on many great questions during the last four or five years. I have regretted this state of things deeply, both on personal and on public accounts; but it has been unavoidable. It is no pleasant employment, it is no holiday business, to maintain opposition against power and against majorities, and to contend for stern and sturdy principle, against personal popularity, against a rushing and overwhelming confidence, that, by wave upon wave and cataract after cataract, seems to be bearing away and destroying whatsoever would withstand it. How much longer we may be able to support this opposition in any degree, or whether we can possibly hold out till the public intelligence and the public patriotism shall be awakened to a due sense of the public danger, it is not for me to foretell. I shall not despair to the last, if, in the mean time, we are true to our own principles. If there be a steadfast adherence to these principles, both here and elsewhere, if, one and all, they continue the rule of our conduct in the Senate, and the rallying-point of those who think with us and support us out of the Senate, I am content to hope on and to struggle on. While it remains a contest for the preservation of the Constitution, for the security of public liberty, for the ascendency of principles over men, I am willing to bear my part of it. If we can maintain the Constitution, if we can preserve this security for liberty, if we can thus give to true principle its just superiority over party, over persons, over names, our labors will be richly rewarded. If we fail in all this, they are already among the living who will write the history of this government, from its commencement to its close.
[Footnote 1: Mr. Leigh.]
[Footnote 2: Mr. King, of Alabama, was in the chair.]
[Footnote 3: Mr. White.]
RECEPTION AT NEW YORK.
A SPEECH DELIVERED AT NIBLO’S SALOON, IN NEW YORK, ON THE 15TH OF MARCH, 1837.
Mr. Chairman and Fellow-Citizens:–It would be idle in me to affect to be indifferent to the circumstances under which I have now the honor of addressing you.
I find myself in the commercial metropolis of the continent, in the midst of a vast assembly of intelligent men, drawn from all the classes, professions, and pursuits of life.
And you have been pleased, Gentlemen, to meet me, in this imposing manner, and to offer me a warm and cordial welcome to your city. I thank you. I feel the full force and importance of this manifestation of your regard. In the highly-flattering resolutions which invited me here, in the respectability of this vast multitude of my fellow-citizens, and in the approbation and hearty good-will which you have here manifested, I feel cause for profound and grateful acknowledgment.
To every individual of this meeting, therefore, I would now most respectfully make that acknowledgment; and with every one, as with hands joined in mutual greeting, I reciprocate friendly salutation, respect, and good wishes.
But, Gentlemen, although I am well assured of your personal regard, I cannot fail to know, that the times, the political and commercial condition of things which exists among us, and an intelligent spirit, awakened to new activity and a new degree of anxiety, have mainly contributed to fill these avenues and crowd these halls. At a moment of difficulty, and of much alarm, you come here as Whigs of New York, to meet one whom you believe to be bound to you by common principles and common sentiments, and pursuing, with you, a common object. Gentlemen, I am proud to admit this community of our principles, and this identity of our objects. You are for the Constitution of the country; so am I. You are for the Union of the States; so am I. You are for equal laws, for the equal rights of all men, for constitutional and just restraints on power, for the substance and not the shadowy image only of popular institutions, for a government which has liberty for its spirit and soul, as well as in its forms; and so am I. You feel that if, in warm party times, the executive power is in hands distinguished for boldness, for great success, for perseverance, and other qualities which strike men’s minds strongly, there is danger of derangement of the powers of government, danger of a new division of those powers, in which the executive is likely to obtain the lion’s part; and danger of a state of things in which the more popular branches of the government, instead of being guards and sentinels against any encroachments from the executive, seek, rather, support from its patronage, safety against the complaints of the people in its ample and all-protecting favor, and refuge in its power; and so I feel, and so I have felt for eight long and anxious years.
You believe that a very efficient and powerful cause in the production of the evils which now fall on the industrious and commercial classes of the community, is the derangement of the currency, the destruction of the exchanges, and the unnatural and unnecessary _misplacement_ of the specie of the country, by unauthorized and illegal treasury orders. So do I believe. I predicted all this from the beginning, and from before the beginning. I predicted it all, last spring, when that was attempted to be done by law which was afterwards done by executive authority; and from the moment of the exercise of that executive authority to the present time, I have both foreseen and seen the regular progress of things under it, from inconvenience and embarrassment, to pressure, loss of confidence, disorder, and bankruptcies.
Gentlemen, I mean, on this occasion, to speak my sentiments freely on the great topics of the day. I have nothing to conceal, and shall therefore conceal nothing. In regard to political sentiments, purposes, or objects, there is nothing in my heart which I am ashamed of; I shall throw it all open, therefore, to you, and to all men. [That is right, said some one in the crowd; let us have it, with no non-committal.] Yes, my friend, without non-committal or evasion, without barren generalities or empty phrase, without _if_ or _but_, without a single touch, in all I say, bearing the oracular character of an Inaugural, I shall, on this occasion, speak my mind plainly, freely, and independently, to men who are just as free to concur or not to concur in my sentiments, as I am to utter them. I think you are entitled to hear my opinions freely and frankly spoken; but I freely acknowledge that you are still more clearly entitled to retain, and maintain, your own opinions, however they may differ or agree with mine.
It is true, Gentlemen, that I have contemplated the relinquishment of my seat in the Senate for the residue of the term, now two years, for which I was chosen. This resolution was not taken from disgust or discouragement, although some things have certainly happened which might excite both those feelings. But in popular governments, men must not suffer themselves to be permanently disgusted by occasional exhibitions of political harlequinism, or deeply discouraged, although their efforts to awaken the people to what they deem the dangerous tendency of public measures be not crowned with immediate success. It was altogether from other causes, and other considerations, that, after an uninterrupted service of fourteen or fifteen years, I naturally desired a respite. But those whose opinions I am bound to respect saw objections to a present withdrawal from Congress; and I have yielded my own strong desire to their convictions of what the public good requires.
Gentlemen, in speaking here on the subjects which now so much interest the community, I wish in the outset to disclaim all personal disrespect towards individuals. He[1] whose character and fortune have exercised such a decisive influence on our politics for eight years, has now retired from public station. I pursue him with no personal reflections, no reproaches. Between him and myself there has always existed a respectful personal intercourse. Moments have existed, indeed, critical and decisive upon the general success of his administration, in which he has been pleased to regard my aid as not altogether unimportant. I now speak of him respectfully, as a distinguished soldier, as one who, in that character, has done the state much service; as a man, too, of strong and decided character, of unsubdued resolution and perseverance in whatever he undertakes. In speaking of his civil administration, I speak without censoriousness, or harsh imputation of motives; I wish him health and happiness in his retirement; but I must still speak as I think of his public measures, and of their general bearing and tendency, not only on the present interests of the country, but also on the well-being and security of the government itself.
There are, however, some topics of a less urgent present application and importance, upon which I wish to say a few words, before I advert to those which are more immediately connected with the present distressed state of things.
My learned and highly-valued friend (Mr. Ogden) who has addressed me in your behalf, has been kindly pleased to speak of my political career as being marked by a freedom from local interests and prejudices, and a devotion to liberal and comprehensive views of public policy.
I will not say that this compliment is deserved. I will only say, that I have earnestly endeavored to deserve it. Gentlemen, the general government, to the extent of its power, is national. It is not consolidated, it does not embrace all powers of government. On the contrary, it is delegated, restrained, strictly limited.
But what powers it does possess, it possesses for the general, not for any partial or local good. It extends over a vast territory, embracing now six-and-twenty States, with interests various, but not irreconcilable, infinitely diversified, but capable of being all blended into political harmony.
He, however, who would produce this harmony must survey the whole field, as if all parts were as interesting to himself as they are to others, and with that generous, patriotic feeling, prompter and better than the mere dictates of cool reason, which leads him to embrace the whole with affectionate regard, as constituting, altogether, that object which he is so much bound to respect, to defend, and to love,–his country. We have around us, and more or less within the influence and protection of the general government, all the great interests of agriculture, navigation, commerce, manufactures, the fisheries, and the mechanic arts. The duties of the government, then, certainly extend over all this territory, and embrace all these vast interests. We have a maritime frontier, a sea-coast of many thousand miles; and while no one doubts that it is the duty of government to defend this coast by suitable military preparations, there are those who yet suppose that the powers of government stop at this point; and that as to works of peace and works of improvement, they are beyond our constitutional limits. I have ever thought otherwise. Congress has a right, no doubt, to declare war, and to provide armies and navies; and it has necessarily the right to build fortifications and batteries, to protect the coast from the effects of war. But Congress has authority also, and it is its duty, to regulate commerce, and it has the whole power of collecting duties on imports and tonnage. It must have ports and harbors, and dock-yards also, for its navies. Very early in the history of the government, it was decided by Congress, on the report of a highly respectable committee, that the transfer by the States to Congress of the power of collecting tonnage and other duties, and the grant of the authority to regulate commerce, charged Congress, necessarily, with the duty of maintaining such piers and wharves and lighthouses, and of making such improvements, as might have been expected to be done by the States, if they had retained the usual means, by retaining the power of collecting duties on imports. The States, it was admitted, had parted with this power; and the duty of protecting and facilitating commerce by these means had passed, along with this power, into other hands. I have never hesitated, therefore, when the state of the treasury would admit, to vote for reasonable appropriations, for breakwaters, lighthouses, piers, harbors, and similar public works, on any part of the whole Atlantic coast or the Gulf of Mexico, from Maine to Louisiana.
But how stands the inland frontier? How is it along the vast lakes and the mighty rivers of the North and West? Do our constitutional rights and duties terminate where the water ceases to be salt? or do they exist, in full vigor, on the shores of these inland seas? I never could doubt about this; and yet, Gentlemen, I remember even to have participated in a warm debate, in the Senate, some years ago, upon the constitutional right of Congress to make an appropriation for a pier in the harbor of Buffalo. What! make a harbor at Buffalo, where Nature never made any, and where therefore it was never intended any ever should be made! Take money from the people to run out piers from the sandy shores of Lake Erie, or deepen the channels of her shallow rivers! Where was the constitutional authority for this? Where would such strides of power stop? How long would the States have any power at all left, if their territory might be ruthlessly invaded for such unhallowed purposes, or how long would the people have any money in their pockets, if the government of the United States might tax them, at pleasure, for such extravagant projects as these? Piers, wharves, harbors, and breakwaters in the Lakes! These arguments, Gentlemen, however earnestly put forth heretofore, do not strike us with great power, at the present day, if we stand on the shores of Lake Erie, and see hundreds of vessels, with valuable cargoes and thousands of valuable lives, moving on its waters, with few shelters from the storm, except what is furnished by the havens created, or made useful, by the aid of government. These great lakes, stretching away many thousands of miles, not in a straight line, but with turns and deflections, as if designed to reach, by water communication, the greatest possible number of important points through a region of vast extent, cannot but arrest the attention of any one who looks upon the map. They lie connected, but variously placed; and interspersed, as if with studied variety of form and direction, over that part of the country. They were made for man, and admirably adapted for his use and convenience. Looking, Gentlemen, over our whole country, comprehending in our survey the Atlantic coast, with its thick population, its advanced agriculture, its extended commerce, its manufactures and mechanic arts, its varieties of communication, its wealth, and its general improvements; and looking, then, to the interior, to the immense tracts of fresh, fertile, and cheap lands, bounded by so many lakes, and watered by so many magnificent rivers, let me ask if such a MAP was ever before presented to the eye of any statesman, as the theatre for the exercise of his wisdom and patriotism? And let me ask, too, if any man is fit to act a part, on such a theatre, who does not comprehend the whole of it within the scope of his policy, and embrace it all as his country?
Again, Gentlemen, we are one in respect to the glorious Constitution under which we live. We are all united in the great brotherhood of American liberty. Descending from the same ancestors, bred in the same school, taught in infancy to imbibe the same general political sentiments, Americans all, by birth, education, and principle, what but a narrow mind, or woful ignorance, or besotted selfishness, or prejudice ten times blinded, can lead any of us to regard the citizens of any part of the country as strangers and aliens?
The solemn truth, moreover, is before us, that a common political fate attends us all.
Under the present Constitution, wisely and conscientiously administered, all are safe, happy, and renowned. The measure of our country’s fame may fill all our breasts. It is fame enough for us all to partake in _her_ glory, if we will carry her character onward to its true destiny. But if the system is broken, its fragments must fall alike on all. Not only the cause of American liberty, but the grand cause of liberty throughout the whole earth, depends, in a great measure, on upholding the Constitution and Union of these States. If shattered and destroyed, no matter by what cause, the peculiar and cherished idea of United American Liberty will be no more for ever. There may be free states, it is possible, when there shall be separate states. There may be many loose, and feeble, and hostile confederacies, where there is now one great and united confederacy. But the noble idea of United American Liberty, of _our_ liberty, such as our fathers established it, will be extinguished for ever. Fragments and shattered columns of the edifice may be found remaining; and melancholy and mournful ruins will they be. The august temple itself will be prostrate in the dust. Gentlemen, the citizens of this republic cannot sever their fortunes. A common fate awaits us. In the honor of upholding, or in the disgrace of undermining the Constitution, we shall all necessarily partake. Let us then stand by the Constitution as it is, and by our country as it is, one, united, and entire; let it be a truth engraven on our hearts, let it be borne on the flag under which we rally, in every exigency, that we have ONE COUNTRY, ONE CONSTITUTION, ONE DESTINY.
Gentlemen, of our interior administration, the public lands constitute a highly important part. This is a subject of great interest, and it ought to attract much more attention than it has hitherto received, especially from the people of the Atlantic States. The public lands are public property. They belong to the people of all the States. A vast portion of them is composed of territories which were ceded by individual States to the United States, after the close of the Revolutionary war, and before the adoption of the present Constitution. The history of these cessions, and the reasons for making them, are familiar to you. Some of the Old Thirteen possessed large tracts of unsettled lands within their chartered limits. The Revolution had established their title to these lands, and as the Revolution had been brought about by the common treasure and the common blood of all the Colonies, it was thought not unreasonable that these unsettled lands should be transferred to the United States, to pay the debt created by the war, and afterwards to remain as a fund for the use of all the States. This is the well-known origin of the title possessed by the United States to lands northwest of the River Ohio.
By treaties with France and Spain, Louisiana and Florida, containing many millions of acres of public land, have been since acquired. The cost of these acquisitions was paid, of course, by the general government, and was thus a charge upon the whole people. The public lands, therefore, all and singular, are national property; granted to the United States, purchased by the United States, paid for by all the people of the United States.
The idea, that, when a new State is created, the public lands lying within her territory become the property of such new State in consequence of her sovereignty, is too preposterous for serious refutation. Such notions have heretofore been advanced in Congress, but nobody has sustained them. They were rejected and abandoned, although one cannot say whether they may not be revived, in consequence of recent propositions which have been made in the Senate. The new States are admitted on express conditions, recognizing, to the fullest extent, the right of the United States to the public lands within their borders; and it is no more reasonable to contend that some indefinite idea of State sovereignty overrides all these stipulations, and makes the lands the property of the States, against the provisions and conditions of their own constitution, and the Constitution of the United States, than it would be, that a similar doctrine entitled the State of New York to the money collected at the custom-house in this city; since it is no more inconsistent with sovereignty that one government should hold lands, for the purpose of sale, within the territory of another, than it is that it should lay and collect taxes and duties within such territory. Whatever extravagant pretensions may have been set up heretofore, there was not, I suppose, an enlightened man in the whole West, who insisted on any such right in the States, when the proposition to cede the lands to the States was made, in the late session of Congress. The public lands being, therefore, the common property of all the people of all the States, I shall never consent to give them away to particular States, or to dispose of them otherwise than for the general good, and the general use of the whole country.
I felt bound, therefore, on the occasion just alluded to, to resist at the threshold a proposition to cede the public lands to the States in which they lie, on certain conditions. I very much regretted the introduction of such a measure, as its effect must be, I fear, only to agitate what was well settled, and to disturb that course of proceeding, in regard to the public lands, which forty years of experience have shown to be so wise, and so satisfactory in its operation, both to the people of the old States and to those of the new.
But, Gentlemen, although the public lands are not to be given away, nor ceded to particular States, a very liberal policy in regard to them ought certainly to prevail. Such a policy has prevailed, and I have steadily supported it, and shall continue to support it so long as I may remain in public life. The main object, in regard to these lands, is undoubtedly to settle them, so fast as the growth of our population, and its augmentation by emigration, may enable us to settle them.
The lands, therefore, should be sold, at a low price; and, for one, I have never doubted the right or expediency of granting portions of the lands themselves, or of making grants of money for objects of internal improvement connected with them.
I have always supported liberal appropriations for the purpose of opening communications to and through these lands, by common roads, canals, and railroads; and where lands of little value have been long in market, and, on account of their indifferent quality, are not likely to command a common price, I know no objection to a reduction of price, as to such lands, so that they may pass into private ownership. Nor do I feel any objections to removing those restraints which prevent the States from taxing the lands for five years after they are sold. But while, in these and all other respects, I am not only reconciled to a liberal policy, but espouse it and support it, and have constantly done so, I still hold the national domain to be the general property of the country, confined to the care of Congress, and which Congress is solemnly bound to protect and preserve for the common good.
The benefit derived from the public lands, after all, is, and must be, in the greatest degree, enjoyed by those who buy them and settle upon them. The original price paid to government constitutes but a small part of their actual value. Their immediate rise in value, in the hands of the settler, gives him competence. He exercises a power of selection over a vast region of fertile territory, all on sale at the same price, and that price an exceedingly low one. Selection is no sooner made, cultivation is no sooner begun, and the first furrow turned, than he already finds himself a man of property. These are the advantages of Western emigrants and Western settlers; and they are such, certainly, as no country on earth ever before afforded to her citizens. This opportunity of purchase and settlement, this certainty of enhanced value, these sure means of immediate competence and ultimate wealth,–all these are the rights and the blessings of the people of the West, and they have my hearty wishes for their full and perfect enjoyment.
I desire to see the public lands cultivated and occupied. I desire the growth and prosperity of the West, and the fullest development of its vast and extraordinary resources. I wish to bring it near to us, by every species of useful communication. I see, not without admiration and amazement, but yet without envy or jealousy, States of recent origin already containing more people than Massachusetts. These people I know to be part of ourselves; they have proceeded from the midst of us, and we may trust that they are not likely to separate themselves, in interest or in feeling, from their kindred, whom they have left on the farms and around the hearths of their common fathers.
A liberal policy, a sympathy with its interests, an enlightened and generous feeling of participation in its prosperity, are due to the West, and will be met, I doubt not, by a return of sentiments equally cordial and equally patriotic.