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

It has been contended, with great ability, that, under the clause of the constitution which declares, that congress shall have power ‘to make all laws, which shall be necessary and proper for carrying into execution the foregoing powers, and all others vested by this constitution in the government of the United States, or in any department or officer thereof,’ congress is the sole depository of implied powers, and that no other department or officer of the government possesses any. If this argument be correct, there is an end of the controversy. But if the power of dismission be incident to the legislative authority, congress has the clear right to regulate it. And if it belong to any other department of the government, under the cited clause, congress has the power to legislate upon the subject, and may regulate it, although it could not divest the department altogether of the right.

Hitherto I have considered the question upon the ground of the constitution, unaffected by precedent. We have in vain called upon our opponents to meet us upon that ground; and to point out the clause of the constitution which by express grant, or necessary implication, subjects the will of the whole official corps to the pleasure of the president, to be dismissed whenever he thinks proper, without any cause, and without any reasons publicly assigned or avowed for the dismission, and which excludes congress from all authority to legislate against the tremendous consequences of such a vast power. No such clause has been shown; nor can it be, for the best of all reasons, because it does not exist. Instead of bringing forward any such satisfactory evidence, gentlemen entrench themselves behind the precedent which was established in 1789, when the first congress recognised the power of dismission in the president; that is, they rely upon the opinion of the first congress, as to what the constitution meant, as conclusive of what it is.

The precedent of 1789 was established in the house of representatives against the opinion of a large and able minority, and in the senate by the casting vote of the vice-president, Mr. John Adams. It is impossible to read the debate which it occasioned, without being impressed with the conviction that the just confidence reposed in the father of his country, then at the head of the government, had great, if not decisive influence in establishing it. It has never, prior to the commencement of the present administration, been submitted to the process of review. It has not been reconsidered, because, under the mild administrations of the predecessors of the president, it was not abused, but generally applied to cases to which the power was justly applicable.

[Mr. Clay here proceeded to recite from a memorandum, the number of officers removed under the different presidents, from Washington down; but the reporter not having access to the memorandum, is unable to note the precise number under each, and can only state generally that it was inconsiderable, under all the administrationsprior to the present, but under that of general Jackson the number of removals amounted to more than two thousand; of which some five or six hundred were postmasters.]

Precedents deliberately established by wise men are entitled to great weight. They are the evidence of truth, but only evidence. If the same rule of interpretation has been settled, by concurrent decisions, at different and distant periods, and by opposite dominant parties, it ought to be deemed binding, and not disturbed. But a solitary precedent, established, as this was, by an equal vote of one branch, and a powerful minority in the other, under the influence of a confidence never misplaced in an illustrious individual, and which has never been reëxamined, cannot be conclusive.

The first inquiry which suggests itself upon such a precedent as this is, brought forward by the friends of the administration, is, what right have they to the benefit of any precedent? The course of this administration has been marked by an utter and contemptuous disregard of all that had been previously done. Disdaining to move on in the beaten road carefully constructed by preceding administrations, and trampling upon every thing, it has seemed resolved to trace out for itself a new line of march. Then, let us inquire how this administration and its partisans dispose of precedents drawn from the same source, the first congress under the present constitution. If a precedent of that congress be sufficient authority to sustain an executive power, other precedents established by it, in support of legislative powers, must possess a like force. But do they admit this principle of equality? No such thing. They reject the precedents of the congress of 1789, sustaining the power of congress, and cling to that only which expands the executive authority. They go for prerogative, and they go against the rights of the people.

It was in the first congress that assembled in 1789, that the bank of the United States was established, the power to adopt a protective tariff was maintained, and the right was recognised to authorize internal improvements. And these several powers do not rest on the basis of a single precedent. They have been again and again affirmed, and reaffirmed by various congresses, at different and distant periods, under the administration of every dominant party; and, in regard to the bank, it has been sanctioned by every branch of the government, and by the people. Yet the same gentlemen, who console themselves with the precedent of 1789, in behalf of the executive prerogative, reject as unconstitutional all these legislative powers.

No one can carefully examine the debate in the house of representatives in 1789, without being struck with the superiority of the argument on the side of the minority, and the unsatisfactory nature of that of the majority. How various are the sources whence the power is derived! Scarcely any two of the majority agree in theirdeduction of it. Never have I seen, from the pen or tongue of Mr. Madison, one of the majority, any thing so little persuasive or convincing. He assumes that all executive power is vested in the president. He does not qualify it; he does not limit it to that executive power which the constitution grants. He does not discriminate between executive power assigned by the constitution, and executive power enacted by law. He asks, if the senate had not been associated with the president in the appointing power, whether the president, in virtue of his executive power, would not have had the right to make all appointments? I think not; clearly not. It would have been a most sweeping and far-fetched implication. In the silence of the constitution, it would have devolved upon congress to provide by law for the mode of appointing to office; and that in virtue of the clause, to which I have already adverted, giving to congress power to pass all laws necessary and proper to carry on the government. He says, ‘the danger, then, merely consists in this; the president can displace from office a man whose merits require that he should be continued in it. What will be the motives which the president can feel for such abuse of his power?’ What motives! The pure heart of a Washington could have had none; the virtuous head of Madison could conceive none; but let him ask general Jackson, and he will tell him of motives enough. He will tell him, that he wishes his administration to be a unit; that he desires only one will to prevail in the executive branch of government; that he cannot confide in men who opposed his election; that he wants places to reward those who supported it; that the spoils belong to the victor; and that he is anxious to create a great power in the state, animated by one spirit, governed by one will, and ever ready to second and sustain his administration in all its acts and measures; and to give its undivided force to the appointment of the successor whom he may prefer. And what, Mr. President, do you suppose are the securities against the abuse of this power, on which Mr. Madison relied? ‘In the first place,’ he says, ‘he will be impeachable by this house before the senate, for such an act of mal-administration,’ and so forth. Impeachment! It is not a scarecrow. Impeach the president for dismissing a receiver or register of the land office, or a collector of the customs! But who is to impeach him? The house of representatives. Now suppose a majority of that house should consist of members who approve the principle that the spoils belong to the victors; and suppose a great number of them are themselves desirous to obtain some of these spoils, and can only be gratified by displacing men from office whose merits require that they should be continued, what chance do you think there would be to prevail upon such a house to impeach the president? And if it were possible that he should, under such circumstances, be impeached, what prospect do youbelieve would exist of his conviction by two thirds of the senate, comprising also members not particularly averse to lucrative offices, and where the spoils doctrine, long practiced in New York, was first boldly advanced in congress?

The next security was, that the president, after displacing the meritorious officer, could not appoint another person without the concurrence of the senate. If Mr. Madison had shown how, by any action of the senate, the meritorious officer could be replaced, there would have been some security. But the president has dismissed him; his office is vacant; the public service requires it to be filled, and the president nominates a successor. In considering this nomination, the president’s partisans have contended that the senate is not at liberty to inquire how the vacancy was produced, but is limited to the single consideration of the fitness of the person nominated. But suppose the senate were to reject him, that would only leave the office still vacant, and would not reinstate the removed officer. The president would have no difficulty in nominating another, and another, until the patience of the senate, being completely exhausted, they would finally confirm the appointment. What I have supposed is not theory but actually matter of fact. How often within a few years past have the senate disapproved of removals from office, which they have been subsequently called upon to concur in filling? How often wearied in rejecting, have they approved of persons for office whom they never would have appointed? How often have members approved of bad appointments, fearing worse if they were rejected? If the powers of the senate were exercised by one man, he might oppose, in the matter of appointments, a more successful resistance to executive abuses. He might take the ground that, in cases of improper removal, he would persevere in the rejection of every person nominated, until the meritorious officer was reinstated. But the senate now consists of forty-eight members, nearly equally divided, one portion of which is ready to approve of all nominations; and of the other, some members conceive that they ought not to incur the responsibility of hazarding the continued vacancy of a necessary office, because the president may have abused his powers. There is then no security, not the slightest practical security, against abuses of the power of removal in the concurrence of the senate in appointment to office.

During the debate in 1789, Mr. Smith, of South Carolina, called for the clause of the constitution granting the power. He said, ‘we are declaring a power in the president which may hereafter be greatly abused; for we are not always to expect a chief magistrate in whom such entire confidence can be placed, as the present. Perhaps gentlemen are so much dazzled with the splendor of the virtues of the present president, as not to be able to see into futurity. * * * * * We ought to contemplatethis power in the hands of an ambitious man, who might apply it to dangerous purposes. If we give this power to the president, he may from caprice remove the most worthy men from office; his will and pleasure will be the slight tenure by which the office is to be held, and of consequence you render the officer the mere state dependent, the abject slave of a person who may be disposed to abuse the confidence his fellow-citizens have placed in him.’ Mr. Huntington said, ‘if we have a vicious president who inclines to abuse this power, which God forbid, his responsibility will stand us in little stead.’