A Biography of Henry Clay, the Senator from Kentucky / Containing Also, a Complete Report of All His Speeches; Selections From His Private Correspondence; Eulogies in the Senate and House; and a Poem, by George D. Prentice, Esq.

by Unknown

The senator from New York, (Mr. Wright,) in analyzing the list of one hundred thousand, who are reported by the committee of patronage to draw money from the public treasury, contends that a large portion of them consists of the army, the navy, and revolutionary pensioners; and, paying a just compliment to their gallantry and patriotism, asks, if they will allow themselves to be instrumental in the destruction of the liberties of their country? It is very remarkable, that hitherto the power of dismission has not been applied to the army and navy, to which, from the nature of the service, it would seem to be more necessary than to those in civil places. But accumulation and concentration are the nature of all power, and especially of executive power. And it cannot be doubted, that, if the power of dismission, as now exercised, in regard to civil officers, is sanctioned and sustained by the people, it will, in the end, be extended to the army and navy. When so extended, it will produce its usual effect of subserviency, or if the present army and navy should be too stern and upright to bemoulded according to the pleasure of the executive, we are to recollect, that the individuals who compose them are not to live always, and may be succeeded by those who will be more pliant and yielding. But I would ask the senator what has been the effect of this tremendous power of dismission upon the classes of officers to which it has been applied? Upon the post-office, the land-office, and the custom-house? They constitute so many corps d’armee, ready to further on all occasions the executive views and wishes. They take the lead in primary assemblies, whenever it is deemed expedient to applaud or sound the praises of the administration, or to carry out its purposes in relation to the succession. We are assured, that a large majority of the recent convention at Columbus, in Ohio, to nominate the president’s successor, were office-holders. And do you imagine that they would nominate any other than the president’s known favorite?

The power of removal, as now exercised, is nowhere in the constitution expressly recognised. The only mode of displacing a public officer, for which it does provide, is by impeachment. But it has been argued, on this occasion, that it is a sovereign power, an inherent power, and an executive power; and, therefore, that it belongs to the president. Neither the premises nor the conclusion can be sustained. If they could be, the people of the United States have all along totally misconceived the nature of their government, and the character of the office of their supreme magistrate. Sovereign power is supreme power; and in no instance whatever is there any supreme power vested in the president. Whatever sovereign power is, if there be any, conveyed by the constitution of the United States, is vested in congress, or in the president and senate. The power to declare war, to lay taxes, to coin money, is vested in congress; and the treaty-making power in the president and senate. The postmaster-general has the power to dismiss his deputies. Is that a sovereign power, or has he any?

Inherent power! That is a new principle to enlarge the powers of the general government. Hitherto it has been supposed, that there are no powers possessed by the government of the United States, or any branch of it, but such as are granted by the constitution; and, in order to ascertain what has been granted, that it was necessary to show the grant, or to establish that the power claimed was necessary and proper to execute some granted power. In other words, that there are no powers but those which are expressed or incidental. But it seems that a great mistake has existed. The partisans of the executive have discovered a third and more fruitful source of power. Inherent power! Whence is it derived? The constitution created the office of president, and made it just what it is. It had no powers prior to its existence. It can have none but those which are conferred upon it by the instrument which created it, or laws passed in pursuance of that instrument. Do gentlemenmean, by inherent power, such power as is exercised by the monarchs or chief magistrates of other countries? If that be their meaning, they should avow it.

It has been argued, that the power of removal from office is an executive power; that all executive power is vested in the president; and that he is to see that the laws are faithfully executed, which, it is contended, he cannot do, unless, at his pleasure, he may dismiss any subordinate officer.

The mere act of dismission or removal may be of an executive nature, but the judgment or sentence which precedes it is a function of a judicial, and not executive nature. Impeachments, which, as has been already observed, are the only mode of removal from office expressly provided for in the constitution, are to be tried by the senate, acting as a judicial tribunal. In England, and in all the states, they are tried by judicial tribunals. In several of the states, removal from office sometimes is effected by the legislative authority, as in the case of judges on the concurrence of two thirds of the members. The administration of the laws of the several states proceeds regularly, without the exercise on the part of the governors of any power similar to that which is claimed for the president. In Kentucky, and in other states, the governor has no power to remove sheriffs, collectors of the revenue, clerks of courts, or any one officer employed in administration; and yet the governor, like the president, is constitutionally enjoined to see that the laws are faithfully executed.

The clause relied upon to prove that all executive power is vested in the president, is the first section of the second article. On examining the constitution, we find that, according to its arrangement, it treats first of the legislative power, then of the executive, and lastly of the judicial power. In each instance, it provides how those powers shall be respectively vested. The legislative power is confided to a congress, and the constitution then directs how the members of the body shall be chosen, and, after having constituted the body, enumerates and carefully specifies its powers. And the same course is observed both with the executive and the judiciary. In neither case does the preliminary clause convey any power; but the powers of the several departments are to be sought for in the subsequent provisions. The legislative powers granted by the constitution are to be vested, how? In a congress. What powers? Those which are enumerated. The executive power is to be vested, how? In a council, or in several? No, in a president of the United States of America. What executive power? That which is possessed by any chief magistrate, in any country, or that which speculative writers attribute to the executive head? No such thing. That power, and that only, which the constitution subsequently assigns to the chief magistrate.

The president is enjoined by the constitution to take care thatthe laws be faithfully executed. Under this injunction, the power of dismission is claimed for him; and it is contended, that if those charged with the execution of the laws attempt to execute them in a sense different from that entertained by the president, he may prevent it, or withhold his coöperation. It would follow that, if the judiciary give to the law an interpretation variant from that of the president, he would not be bound to afford means which might become necessary to execute their decision. If these pretensions are well founded, it is manifest that the president, by means of the veto, in arresting the passage of laws which he disapproves, and the power of expounding those which are passed, according to his own sense of them, will become possessed of all the practical authority of the whole government. If the judiciary decide a law contrary to the president’s opinion of its meaning, he may command the marshal not to execute the decision, and urge his constitutional obligation to take care that the laws be faithfully executed. It will be recollected, perhaps, by the senate, that, during the discussions on the deposit question, I predicted that the day would arrive when a president, disposed to enlarge his powers, would appeal to his official oath as a source of power. In that oath he undertakes that he will, ‘to the best of his ability, preserve, protect, and defend the constitution of the United States.’ The fulfilment of the prediction quickly followed; and during the same session, in the protest of the president, we find him referring to this oath as a source of power and duty. Now, if the president, in virtue of his oath, may interpose and prevent any thing from being done, contrary to the constitution, as he understands it; and may, in virtue of the injunction to take care that the laws be faithfully executed, prevent the enforcement of any law contrary to the sense in which he understands it, I would ask, what powers remain to any other branch of the government? Are they not all substantially absorbed in the WILL of one man?

The president’s oath obliges him to do no more than every member of congress is also bound by official oath to do; that is, to support the constitution of the United States, in their respective spheres of action. In the discharge of the duties specifically assigned to him by the constitution and laws, he is for ever to keep in view the constitution; and this every member of congress is equally bound to do, in the passage of laws. To step out of his sphere; to trench upon other departments of the government, under the notion that they are about to violate the constitution, would be to set a most pernicious and dangerous example of violation of the constitution. Suppose congress, by two thirds of each branch, pass a law contrary to the veto of the president, and to his opinion of the constitution, is he afterwards at liberty to prevent its execution? The injunction, to which I have adverted, common both to the federal and most of the state constitutions,imposes only upon the chief magistrate the duty of executing those laws with the execution of which he is specially charged; of supplying, when necessary, the means with which he is intrusted to enable others to execute those laws, the enforcement of which is confided to them; and to communicate to congress infractions of the laws, that the guilty may be brought to punishment, or the defects of legislation remedied. The most important branch of the government to the rights of the people, as it regards the mere execution of the laws, is the judiciary; and yet they hold their offices by a tenure beyond the reach of the president. Far from impairing the efficacy of any powers with which he is invested, this permanent character in the judicial office is supposed to give stability and independence to the administration of justice.

The power of removal from office not being one of those powers which are expressly granted and enumerated in the constitution, and having I hope successfully shown that it is not essentially of an executive nature, the question arises, to what department of the government does it belong, in regard to all offices created by law, or whose tenure is not defined in the constitution? There is much force in the argument which attaches the power of dismission to the president and senate conjointly, as the appointing power. But I think we must look for it to a broader and higher source; the legislative department. The duty of appointment may be performed under a law which enacts the mode of dismission. This is the case in the post-office department, the postmaster-general being invested with both the power of appointment and of dismission. But they are not necessarily allied, and the law might separate them; and assign to one functionary the right to appoint, and to a different one the right to dismiss. Examples of such a separation may be found in the state governments.

It is the legislative authority which creates the office, defines its duties, and may prescribe its duration. I speak, of course, of offices not created by the constitution, but the law. The office, coming into existence by the will of congress, the same will may provide how, and in what manner, the office and the officer shall both cease to exist. It may direct the conditions on which he shall hold the office, and when and how he shall be dismissed. Suppose the constitution had omitted to prescribe the tenure of the judicial office, could not congress do it? But the constitution has not fixed the tenure of any subordinate offices, and therefore congress may supply the omission. It would be unreasonable to contend that, although congress, in pursuit of the public good, brings the office and the officer into being, and assigns their purposes, yet the president has a control over the officer which congress cannot reach or regulate; and this control, in virtue of some vague and undefined implied executive power, which the friends of executive supremacy are totally unable to attach to any specific clause in the constitution!