The present bill presents a most important question concerning our fundamental institutions. It attacks a construction of the Constitution of the United States which has been considered settled for almost half a century. Has the President, under the Constitution, the power of removing executive officers? If any question can ever be put at rest in this country, this, emphatically, ought to be considered that one. It was solemnly settled in 1789 by the first Congress of the United States. Of whom was that Congress composed? Of the men who had sustained the toils and dangers of the revolutionary war—of the men who sat in the convention which framed the Constitution, and who passed from that convention into the first Congress. These men, who laid the foundations of our Republic broad and deep, most solemnly and deliberately decided, that to the President, and to him alone, belonged the power of removal. This was not at a moment when the country was convulsed by party spirit. Very far from it. The Fathers of the Republic were then occupied in putting the Government in motion, and in establishing such principles as might preserve the liberties and promote the best interests of the American people for ages. In what condition are we, at the present moment, to rejudge the judgment of those men and reverse their solemn decision? Is not party spirit raging throughout the land? Are there not high party feelings in this body? Are we in a condition calmly and deliberately, without prejudice and without passion, to review and to condemn their judgment?
Why, sir, even if there were no authority in the Constitution for the power of removal, the decision of this body, at this time, would have but little influence among the people. They would compare the calmness—the self-possession—the freedom from political excitement of the sages who established the precedent, with the party violence and the high political feeling of the Senate at the present day; and the weight of authority would be all against us.
The debate in the first Congress was very long and very able. Every argument which patriotism and ingenuity could suggest was exhausted. The question was at length decided in the House of Representatives on the 22d June, 1789. On the yeas and nays, thirty voted in affirmance of the President’s power of removal, and eighteen against it;—a large majority, considering the comparatively small number of which the House was then composed.
The question arose on the bill to establish the Department of Foreign Affairs. It contained a clause declaring the Secretary of State “to be removable from office by the President of the United States.” From this clause it might have been inferred that the power of removal was intended to be conferred upon the President by Congress, and not acknowledged to exist in him under the Constitution. To remove every difficulty,—to place doubt at defiance in all future time, the words “to be removable from office by the President of the United States” were stricken from the bill, and this right was expressly acknowledged to exist independently of all legislation. By the second section of the bill, which became a law on the 27th July, 1789, it is declared that “the Chief Clerk in the Department of Foreign Affairs,[Affairs,] whenever the principal officer shall be removed from office by the President of the United States, or in any other case of vacancy, shall, during such vacancy, have the charge and custody of all records, books, and papers, appertaining to the said Department.” Here then is a clear, strong, distinct recognition by the House of Representatives of the President’s power of removal, not by virtue of law, but under the Constitution. This phraseology was carefully adopted for the purpose of putting this very question at rest forever, so far as Congress could effect this purpose.
The bill, having passed the House of Representatives, was sent to the Senate for their concurrence. The power of removal was there solemnly considered. This was the very body which, according to the doctrine of gentlemen, has a right to control this power; and yet they affirmed the principle that it was vested in the President, and in him alone. It is true that the question was determined by the casting vote of Mr. Adams,—then the Vice-President: but the act was approved by General Washington, and the power has ever since been exercised without dispute by him and his successors in office, until after the election of the present President. Washington, the elder Adams, Jefferson, Madison, Monroe, and the younger Adams removed whom they pleased from office; but after the accession of Jackson, the existence of this power is denied. We are now required to believe that all which former Presidents have done was wrong;—that the first Congress were entirely mistaken in their construction of the Constitution:—and that the President does not possess the power of removal except with the concurrence of the Senate.
If ever a question has occurred in the history of any country which ought to be considered settled, this is that one. A solemn decision at first, adopted in practice afterwards by all branches of the Government, for five and forty years, makes the precedent one of almost irresistible force.
What then have we a right to expect on our side of the House from the opposition? Not merely that they shall prove it to be a doubtful question, but they shall present a case so clear as to render it manifest that all which has been done has been without authority, and all the removals which have ever been made, have been in violation of the Constitution. The burden rests entirely upon the gentlemen, and a ponderous load they have to sustain.
But, sir, if the question were entirely new, if it never had been decided either by precedent or by practice, I think it may be made abundantly clear, that the strength of the argument is greatly on the side of those who maintain the power.
What is the nature of the Constitution of the United States? The powers which it devolves upon the Government, are divided into three distinct classes, the Legislative, the Executive, and the Judicial. To preserve the liberties of any country, it is necessary that these three branches of the government should be kept distinct and separate as far as possible. When they are all united in the same person—this is the very definition of despotism. As you approximate to this state of things, in the same proportion you advance towards arbitrary power. These are axioms which cannot—which will not be denied.
Doubtless for wise purposes, the framers of our Constitution have in a very few excepted cases, blended these powers together. The executive, by his veto, has a control over our legislation. The Senate, although a branch of the legislature, exercises judicial power in cases of impeachment. The President nominates, “and by and with the advice and consent of the Senate,” appoints all officers, except those of an inferior nature, the appointment of which may be vested by Congress “in the President alone, in the courts of law, or in the heads of departments.”