Mr. President, if these doctrines be true, it is idle for us any longer to talk about any such thing as a government of laws. We have no government of laws, not even the semblance or shadow of it; we have no legal responsibility. We have an executive, consisting of one person, wielding all official power, and which is, to every effectual purpose, completely irresponsible. The President declares that he is "responsible for the entire action of the executive department." Responsible? What does he mean by being "responsible"? Does he mean legal responsibility? Certainly not. No such thing. Legal responsibility signifies liability to punishment for misconduct or maladministration. But the Protest does not mean that the President is liable to be impeached and punished if a secretary of state should commit treason, if a collector of the customs should be guilty of bribery, or if a treasurer should embezzle the public money. It does not mean, and cannot mean, that he should be answerable for any such crime or such delinquency. What then, is its notion of that responsibility which it says the President is under for all officers, and which authorizes him to consider all officers as his own personal agents? Sir, it is merely responsibility to public opinion. It is a liability to be blamed; it is the chance of becoming unpopular, the danger of losing a re-election. Nothing else is meant in the world. It is the hazard of failing in any attempt or enterprise of ambition. This is all the responsibility to which the doctrines of the Protest hold the President subject.
It is precisely the responsibility under which Cromwell acted when he dispersed Parliament, telling its members, not in so many words, indeed, that they disobeyed the will of their constituents, but telling them that the people were sick of them, and that he drove them out "for the glory of God and the good of the nation." It is precisely the responsibility upon which Bonaparte broke up the popular assembly of France. I do not mean, Sir, certainly, by these illustrations, to insinuate designs of violent usurpation against the President; far from it; but I do mean to maintain, that such responsibility as that with which the Protest clothes him is no legal responsibility, no constitutional responsibility, no republican responsibility, but a mere liability to loss of office, loss of character, and loss of fame, if he shall choose to violate the laws and overturn the liberties of the country. It is such a responsibility as leaves every thing in his discretion and his pleasure.
Sir, it exceeds human belief that any man should put sentiments such as this paper contains into a public communication from the President to the Senate. They are sentiments which give us all one master. The Protest asserts an absolute right to remove all persons from office at pleasure; and for what reason? Because they are incompetent? Because they are incapable? Because they are remiss, negligent, or inattentive? No, Sir; these are not the reasons. But he may discharge them, one and all, simply because "he is no longer willing to be responsible for their acts"! It insists on an absolute right in the President to direct and control every act of every officer of the government, except the judges. It asserts this right of direct control over and over again. The President may go into the treasury, among the auditors and comptrollers, and direct them how to settle every man's account; what abatements to make from one, what additions to another. He may go into the custom-house, among collectors and appraisers, and may control estimates, reductions, and appraisements. It is true that these officers are sworn to discharge the duties of their respective offices honestly and fairly, according to their own best abilities; it is true, that many of them are liable to indictment for official misconduct, and others responsible, in suits of individuals, for damages and penalties, if such official misconduct be proved; but notwithstanding all this, the Protest avers that all these officers are but the President's agents; that they are but aiding him in the discharge of his duties; that he is responsible for their conduct, and that they are removable at his will and pleasure. And it is under this view of his own authority that the President calls the Secretaries his Secretaries, not once only, but repeatedly. After half a century's administration of this government, Sir;—after we have endeavored, by statute upon statute, and by provision following provision, to define and limit official authority; to assign particular duties to particular public servants; to define those duties; to create penalties for their violation; to adjust accurately the responsibility of each agent with his own powers and his own duties; to establish the prevalence of equal rule; to make the law, as far as possible, every thing, and individual will, as far as possible, nothing;—after all this, the astounding assertion rings in our ears, that, throughout the whole range of official agency, in its smallest ramifications as well as in its larger masses, there is but ONE RESPONSIBILITY, ONE DISCRETION, ONE WILL! True indeed is it, Sir, if these sentiments be maintained,—true indeed is it that a President of the United States may well repeat from Napoleon what he repeated from Louis the Fourteenth, "I am the state"!
The argument by which the writer of the Protest endeavors to establish the President's claim to this vast mass of accumulated authority, is founded on the provision of the Constitution that the executive power shall be vested in the President. No doubt the executive power is vested in the President; but what and how much executive power, and how limited? To this question I should answer, "Look to the Constitution, and see; examine the particulars of the grant, and learn what that executive power is which is given to the President, either by express words or by necessary implication." But so the writer of this Protest does not reason. He takes these words of the Constitution as being, of themselves, a general original grant of all executive power to the President, subject only to such express limitations as the Constitution prescribes. This is clearly the writer's view of the subject, unless, indeed, he goes behind the Constitution altogether, as some expressions would intimate, to search elsewhere for sources of executive power. Thus, the Protest says that it is not only the right of the President, but that the Constitution makes it his duty, to appoint persons to office; as if the right existed before the Constitution had created the duty. It speaks, too, of the power of removal, not as a power granted by the Constitution, but expressly as "an original executive power, left unchecked by the Constitution." How original? Coming from what source higher than the Constitution? I should be glad to know how the President gets possession of any power by a title earlier, or more original, than the grant of the Constitution; or what is meant by an original power, which the President possesses, and which the Constitution has left unchecked in his hands. The truth is, Sir, most assuredly, that the writer of the Protest, in these passages, was reasoning upon the British constitution, and not upon the Constitution of the United States. Indeed, he professes to found himself on authority drawn from the constitution of England. I will read, Sir, the whole passage. It is this:—
"In strict accordance with this principle, the power of removal, which, like that of appointment, is an original executive power, is left unchecked by the Constitution in relation to all executive officers, for whose conduct the President is responsible; while it is taken from him in relation to judicial officers, for whose acts he is not responsible. In the government from which many of the fundamental principles of our system are derived, the head of the executive department originally had power to appoint and remove at will all officers, executive and judicial. It was to take the judges out of this general power of removal, and thus make them independent of the executive, that the tenure of their offices was changed to good behavior. Nor is it conceivable why they are placed, in our Constitution, upon a tenure different from that of all other officers appointed by the executive, unless it be for the same purpose."
Mr. President, I do most solemnly protest (if I, too, may be permitted to make a protest) against this mode of reasoning. The analogy between the British constitution and ours, in this respect, is not close enough to guide us safely; it can only mislead us. It has entirely misled the writer of the Protest. The President is made to argue, upon this subject, as if he had some right anterior to the Constitution, which right is by that instrument checked, in some respects, and in other respects is left unchecked, but which, nevertheless, still derives its being from another source; just as the British king had, in the early ages of the monarchy, an uncontrolled right of appointing and removing all officers at pleasure, but which right, so far as it respects the judges, has since been checked and controlled by act of Parliament; the right being original and inherent, the check only imposed by law. Sir, I distrust altogether British precedents, authorities, and analogies, on such questions as this. We are not inquiring how far our Constitution has imposed checks on a pre-existing authority. We are inquiring what extent of power that Constitution has granted. The grant of power, the whole source of power, as well as the restrictions and limitations which are imposed on it, is made in and by the Constitution. It has no other origin. And it is this, Sir, which distinguishes our system so very widely and materially from the systems of Europe. Our governments are limited governments; limited in their origin, in their very creation; limited, because none but specific powers were ever granted, either to any department of government, or to the whole: theirs are limited, whenever limited at all, by reason of restraints imposed at different times on governments originally unlimited and despotic. Our American questions, therefore, must be discussed, reasoned on, decided, and settled, on the appropriate principles of our own constitutions, and not by inapplicable precedents and loose analogies drawn from foreign states.
Mr. President, in one of the French comedies, as you know, in which the dulness and prolixity of legal argument is intended to be severely satirized, while the advocate is tediously groping among ancient lore having nothing to do with his case, the judge grows impatient, and at last cries out to him to come down to the flood! I really wish, Sir, that the writer of this Protest, since he was discussing matters of the highest importance to us as Americans, and which arise out of our own peculiar Constitution, had kept himself, not only on this side the general deluge, but also on this side the Atlantic. I desire that the broad waves of that wide sea should continue to roll between us and the influence of those foreign principles and foreign precedents which he so eagerly adopts.
In asserting power for an American President, I prefer that he should attempt to maintain his assertions on American reasons. I know not, Sir, who the writer was (I wish I did); but whoever he was, it is manifest that he argues this part of his case, throughout, on the principles of the constitution of England. It is true, that, in England, the king is regarded as the original fountain of all honor and all office; and that anciently, indeed, he possessed all political power of every kind. It is true that this mass of authority, in the progress of that government, has been diminished, restrained, and controlled, by charters, by immunities, by grants, and by various modifications, which the friends of liberty have, at different periods, been able to obtain or to impose. All liberty, as we know, all popular privileges, as indeed the word itself imports, were formerly considered as favors and concessions from the monarch. But whenever and wherever civil freedom could get a foothold, and could maintain itself, these favors were turned into rights. Before and during the reigns of the princes of the Stuart family, they were acknowledged only as favors or privileges graciously allowed, although, even then, whenever opportunity offered, as in the instance to which I alluded just now, they were contended for as rights; and by the Revolution of 1688 they were acknowledged as the rights of Englishmen, by the prince who then ascended the throne, and as the condition on which he was allowed to sit upon it. But with us there never was a time when we acknowledged original, unrestrained, sovereign power over us. Our constitutions are not made to limit and restrain pre-existing authority. They are the instruments by which the people confer power on their own servants. If I may use a legal phrase, the people are grantors, not grantees. They give to the government, and to each branch of it, all the power it possesses, or can possess; and what is not given they retain. In England, before her revolution, and in the rest of Europe since, if we would know the extent of liberty or popular right, we must go to grants, to charters, to allowances and indulgences. But with us, we go to grants and to constitutions to learn the extent of the powers of government. No political power is more original than the Constitution; none is possessed which is not there granted; and the grant, and the limitations in the grant, are in the same instrument.
The powers, therefore, belonging to any branch of our government, are to be construed and settled, not by remote analogies drawn from other governments, but from the words of the grant itself, in their plain sense and necessary import, and according to an interpretation consistent with our own history and the spirit of our own institutions. I will never agree that a President of the United States holds the whole undivided power of office in his own hands, upon the theory that he is responsible for the entire action of the whole body of those engaged in carrying on the government and executing the laws. Such a responsibility is purely ideal, delusive, and vain. There is, there can be, no substantial responsibility, any further than every individual is answerable, not merely in his reputation, not merely in the opinion of mankind, but to the law, for the faithful discharge of his own appropriate duties. Again and again we hear it said that the President is responsible to the American people! that he is responsible to the bar of public opinion! For whatever he does, he assumes accountability to the American people! For whatever he omits, he expects to be brought to the high bar of public opinion! And this is thought enough for a limited, restrained, republican government! an undefined, undefinable, ideal responsibility to the public judgment!
Sir, if all this mean any thing, if it be not empty sound, it means no less than that the President may do any thing and every thing which he may expect to be tolerated in doing. He may go just so far as he thinks it safe to go; and Cromwell and Bonaparte went no farther. I ask again, Sir, is this legal responsibility? Is this the true nature of a government with written laws and limited powers? And allow me, Sir, to ask, too, if an executive magistrate, while professing to act under the Constitution, is restrained only by this responsibility to public opinion, what prevents him, on the same responsibility, from proposing a change in that Constitution? Why may he not say, "I am about to introduce new forms, new principles, and a new spirit; I am about to try a political experiment on a great scale; and when I get through with it, I shall be responsible to the American people, I shall be answerable to the bar of public opinion"?