Autobiography of Seventy Years, Vol. 1-2

by George Frisbie Hoar

This question first came up in Washington's Administration, on the bill for establishing a National Bank. Seldom any doubt is raised now as to the Constitutional power of the National Government to accomplish and secure any of the great results which we could not secure before the war, by reason of what is called the doctrine of State Rights. Democrat and Republican, men of the South and men of the North, now agree in exercising without a scruple the power of Congress to protect American interests by the tariff, to endow and to subsidize railroads across the continent, and to build an Oceanic canal.

I have in my possession, in Roger Sherman's and James Madison's handwriting, a paper which contains the first statement of a controversy which divided parties and sections, which inspired Nullification, and which entered largely in the strife which brought on the Civil War.

(In Roger Sherman's handwriting.) "You will admit that Congress have power to provide by law for raising, depositing and applying money for the purposes enumerated in the Constitution." X (and generally of regulating the finances). "That they have power so far as no particular rules are pointed out in the Constitution to make such rules and regulations as they may judge necessary and proper to effect these purposes. The only question that remains is—Is a bank (a necessary and) a proper measure for effecting these purposes? And is not this a question of expediency rather than of right?"

(The following, on the same slip of paper, is in James Madison's handwriting.) "Feb. 4, 1791. This handed to J. M. by Mr. Sherman during the debate on the constitutionality of the bill for a National bank. The line marked X given up by him on the objection of J. M. The interlineation of 'a necessary &' by J. M. to which he gave no other answer than a smile."

The other matter relates to the power of removal from office. Upon that the Constitution is silent. In the beginning two views were advocated. There was a great debate in 1789, which Mr. Evarts declares, "decidedly the most important and best considered debate in the history of Congress." The claim that the power of removal is vested absolutely in the President by the Constitution prevailed in the House of Representatives, under the lead of Madison, by a majority of twelve, and by the casting vote of John Adams in the Senate. Mr. Madison said:

"The decision that is at this time made will become the permanent exposition of the Constitution; and on a permanent exposition of the Constitution will depend the genius and character of the whole Government."

One party claimed that the power of removal was a necessary incident to the power of appointment, and vested in the President by virtue of his power to appoint. It was claimed also on the same side that the President's duty to see the laws faithfully executed could not be discharged if subordinates could be kept in office against his will. In most cases the President never executes the laws himself, but only has to see them executed faithfully.

This view prevailed, as we have seen, in Washington's Administration. It continued to be acted upon till the time of President Johnson. In General Jackson's time its soundness was challenged by Webster, Calhoun and Clay. But there was no attempt to resist it in practice. Mr. Webster in 1835 earnestly dissented from the original decision, while he admitted that he considered it "a settled point; settled by construction, settled by precedent, settled by the practice of the Government, and settled by statute." It remained so settled, until, in the strife which followed the rebellion, a two-thirds majority in Congress was induced by apprehension of a grave public danger to attempt to wrest this portion of the executive power from the hands of Andrew Johnson. The statute of March 2, 1867, as construed by nearly two-thirds of the Senate, enacted that officers appointed by the predecessor of President Johnson, who, by the law in force when they were appointed, and by the express terms of their commission, were removable at the pleasure of the President, should remain in office until the Senate should consent to the appointment of their successors, or approve their removal.

In 1867 Congress undertook to determine by statute the construction of the Constitution as to this disputed question. Some persons claimed that that power existed in the provision—"To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the Government of the United States, or in any Department officer thereof."

The Constitutionality and effect of this statute were debated on the trial of President Johnson. But it served its purpose during the last two years of Johnson's Administration. Five days after Grant's inauguration, the House of Representatives, by a vote of 138 to 16, passed a bill totally repealing it. The Senate was unwilling to let go the hold which it had acquired on the Executive power, but proposed to suspend the law for one year, so that there might be no obstacle in the path of General Grant to the removal of the obnoxious officials who had adhered to Andrew Johnson. So a compromise was agreed upon. It permitted the President to suspend officers during the vacation of the Senate, but restored officers so suspended at the close of the next session, unless, in the meantime, the advice and consent of the Senate had been obtained to a removal or the appointment of a successor.