I think I have successfully established the position that no two things can in their nature be more distinct than the power of appointment and that of removal. If this be the case, then what becomes of the argument of the gentleman from Massachusetts (Mr. Webster)? It rested entirely upon the principle, that these two powers were so identical in their nature, that because the Senate, under the Constitution, have the express power of advising and consenting to appointments, that, therefore, by implication, they must possess the power of advising and consenting to removals. The inference is without foundation.
The truth is, that the more we discuss this question, we shall have the greater reason to admire the wisdom of the Constitution, and of those enlightened and patriotic men who placed that construction upon it in the beginning, which I shall venture to predict never will be disturbed by the American people. The Senate, from the nature of the body, are fully competent to assist the President in appointments. It would change their character altogether, and paralyze the executive arm of the Government, if they were to usurp the power of interfering in removals from office. Let the Constitution and the construction of it by its founders, in this particular, be perpetual!
It has been objected that the President, by this construction, is too far removed from responsibility in the exercise of this power. But he is responsible[responsible] to the American people, whose servant he is, in this as in all other cases. Unless you palsy the executive arm, and render it powerless to do good, lest it may do evil, you cannot support the doctrine which has been urged. You must vest some discretion; you must repose some confidence in the executive, or the wheels of Government must stand still. Should he abuse his power, he is liable to the censure of public opinion; and, in flagrant cases, he may be impeached.
It was contended in the first Congress, and the same argument has been urged upon the present occasion, that the power of removal was not recognized by the Constitution—that it was a case omitted, and that, therefore, by implication, it belongs to Congress. This argument was fully met and successfully refuted in 1789. If this principle were established, the executive power would have no necessary control over executive officers. Congress might confer the power of removal upon the Senate alone, or upon the House of Representatives alone, or upon both conjointly, without any participation of the President. This Government—the admiration of the world, would present the solecism of an executive without any control over executive agents, except what might be granted to him by the legislature. We are not placed in this unfortunate predicament. The President, under the Constitution, has the power of removal. It is a constitutional power, not to be controlled by the legislature. It is a power equally sovereign in its nature with that of legislation itself. He is a co-ordinate branch of the Government, and has the same right to exercise his discretion in removals from office, that Congress possess in regard to the enactment of laws.
This brings me to consider the constitutionality of the third section of the bill now depending before us. It provides “that in all nominations made by the President to the Senate, to fill vacancies occasioned by removal from office, the fact of the removal shall be stated to the Senate at the time that the nomination is made, with a statement of the reasons for such removal.”
Whence do we derive our authority to demand his reasons? If the Constitution has conferred upon him the power of removal, as I think I have clearly shown, is it not absolute in its nature and entirely free from the control of Congress? Is he not as independent in the exercise of this power as Congress in the exercise of any power conferred upon them by the Constitution? Would he not have the same authority to demand from us our reasons for rejecting a nomination, as we possess to call upon him for his reasons for making a removal? Might he not say, I am answerable to the American people, and to them alone, for the exercise of this power, in the same manner that the Senate is for the exercise of any power conferred upon them by the Constitution?
With all the deference which I feel for the opinions of the Senator from Tennessee (Mr. White), I think he has arrived at the conclusion that the third section of this bill is constitutional, by blending things together which are in their nature entirely distinct. He asks, is it not in the power of Congress to create the office, to define its duties, and to change and vary these duties at pleasure? Granted. May they not, if they believe the office unnecessary, repeal the law, and must not the officer fall with it? Granted. These are legislative powers, clearly conferred upon Congress by the Constitution. It is then asked, may Congress not prescribe it as the duty of these officers to give reasons for their conduct? Certainly they may. And why? Because they are the creatures of Congress—they are called into existence by Congress—and they will cease to exist at the pleasure of Congress. Is this the condition of the executive, who is a co-ordinate branch of the Government, and who is answerable for his conduct, not to Congress, but to the people of the United States. What right have we to demand reasons from the servant of another as to how he performs his duties? To his own master, which, in this particular, is the American people, and to them alone, he is responsible. If Congress can command him to give reasons to the Senate for his removals, the Senate may judge of the validity of these reasons, and condemn them if they think proper. The executive of the country is thus rendered subordinate to the Senate;—a position in which the Constitution of the country never intended to place him. In my opinion, this bill as strongly negatives the constitutional power of the President to remove from office, without the concurrence of the Senate, as if it were so declared in express language. For this reason I shall vote against it.
In the next session, which commenced in December, 1836, Mr. Buchanan delivered a speech which may perhaps be regarded as the ablest of his efforts in the Senate. It related to a topic that had long been attended with intense political excitement. President Jackson’s removal of the public deposits from the Bank of the United States furnished to the Whig opponents of his administration a means of attack, of which they were not slow to avail themselves. The powerful opposition, which at the time of that occurrence controlled the proceedings of the Senate, was led by Mr. Clay, who was the defeated Whig candidate for the Presidency at the election of 1832. Swaying his party in the Senate with an imperious will, and enforcing his determinations by a fascinating eloquence, Mr. Clay, on the 28th of March, 1834, carried a resolution, which was inscribed on the journal of the Senate in the following words: “That the President, in the late executive proceedings, in relation to the public revenue, has assumed upon himself authority and power not conferred by the Constitution and laws, but in derogation of both.” On the 3d of March, 1835, a resolution introduced by Col. Benton, of Missouri, ordering Mr. Clay’s resolution to be “expunged” from the journal, came up for consideration. The word “expunged” was stricken out by a vote in which the mover and other friends of the administration concurred, so that some other less objectionable phrase might be substituted. But as soon as this word was stricken out, Mr. Webster moved to lay the resolution on the table, giving notice that he would not withdraw his motion “for friend or foe.” The motion was not debatable, and as the Whigs still had a majority, it was carried by a party vote. The Democratic Senators then determined that the word “expunged” should never be again surrendered. At the next session they had a majority; and Col. Benton’s resolution then came up, in a form which directed that Mr. Clay’s resolution of 1834 be expunged from the journal of the Senate, by drawing black lines around it, and writing across its face the words, “Expunged by order of the Senate, this —— day of —— in the year of our Lord 1837.” It was upon this proposal, in reply to an impassioned speech by Mr. Clay, that Mr. Buchanan, on the 16th of January, 1837, addressed the Senate.
There is one praise to be accorded to this speech, which, considering the party character of the struggle, is not a small one. Mr. Buchanan separated what was personal and partisan in this controversy from the serious questions involved; and covering the whole field of argument upon the really important topics in a temperate and courteous but firm discussion, he placed his side of the debate upon its true merits. He began by contending that the censure, which the Senate had in 1834 passed upon the President, was unjust, because he had violated no law in ordering the Secretary of the Treasury to remove the public deposits from the Bank. He then argued that the Senate had committed an infraction of the Constitution, by recording upon its journal an accusation that the President had been guilty of an offence for which he might be impeached, and for which it would be the duty of the Senate to try him on articles of impeachment, if the House of Representatives should ever proceed against him in that manner. In thus prejudging the case, by a resolution of mere naked censure, adopted in its legislative capacity, the Senate had rendered itself incompetent to perform its high judicial function. He concluded his argument by a very ingenious and elaborate criticism of the word “expunge,” arguing that there was a real and solid distinction between a physical obliteration of a record, making it impossible thereafter to be read, and such an annulment of its legal existence as was now proposed, and which, by leaving it in a condition to be read, would nevertheless deprive it of all force. It must be confessed that this was a very finely drawn distinction; but it was supported by no inconsiderable acuteness and force, and with great fairness of reasoning. Col. Benton’s resolution was adopted by a party vote, and was immediately carried out.[[53]]
The following is a full report of Mr. Buchanan’s speech in support of the Expunging Resolution: