Mr. HENDERSON. It is very difficult to proceed when I cannot hear myse f. I do not propose to occupy much of the time of the senate, but this is an important question. I am perfectly aware that it is a proposition to change the entire policy of the Government on this soject, and some Senators who act with me politi cally have already expressed an opinion against the proposed amendment, doubting whether we have the constitutional power to adopt it. I am aware that the power claimed by the Executive to remove all officers in this Government has been exercised from the origin of the Government down to the present time. It is true, however, that during the 1st 40 years of the Government, as showed yesterday, but few removals Were made; and indeed, looking back to that period, I find, as I shallattemptto show in a moment that Mr. Madison, alt ough he is the authority for this long continued abuse, as I consider it, of the power of removal, de clared at the time of the discussion to which I referred yesterday that if the President under took to make removals without cause the exercise of that power on his part would be a just cause for imeachment, going to show most clearly that Mr. Madison never contemplated at the time the abuse of the position which he in the 1st debate on this an ject took. Before I proceed to examine the question legally and p I shall occupy but a short time in that examination I propose to show the inducements held out to the American people for the adoption of the Constitution. It isanoto rious fact that after the Constitution had been adopted by the Convention and placed before the people of the States an objection was urged on the part of many of the people against adopting it on account of the vast power of the Executive. That objection was answered in No. 77 of the Fedora ist. These papers were written and s read before the pee e for the purpose of in ucing them to adopt the Constitution of the U.S. In the 77th number, written by Mr. Hamilton, it is said: "The consent of that body be necessaryto displace as wc{lth aes tSocuaaptpoolwine tu. ldA changeof the Chief Magistrate therclbre, conldnot occasionso violent or so general a revolution in th officersof the Government as might be expected 1 he were the sole disposerof officcs. Where a man in any station had given antistuctoryevidence of his fitness for it a new President would be restrained from attempting a change in favor of a personmore agreeable to him by the apprehension that a discountenance of the Senatemight frustrate the attemptand bring somedecreeof discredit upon himself. Those who can best estimate the value of a steadyadministration will be mostdisposedto prize a provision which connects the otheial existence of public men with the approbation or disupprobation of that body which. from the greater permanencyof its own composition, will in all probability be less subjectto inconstancythan any other memberof the Government." Thus it will be seen that one of the inducements held out to the people of the U.S. to adopt this instrument was that the President would have no power of removal except in conjunction with the Senate of the U.S. As I stated yesterday, this wholesale removal of officers cominenced, I believe, with General Jackson. It was contin ued by the Administration of Mr. Van Buren. Afterward, when General Harrison became POTUS, it is a notorious fact to all the members of the Senate that the officers of the country were niii changed. The officers who had been selected by the Democratic party during the 12 Years of the Administrations preceding were turned out and Whigs were put in their places. Again, after Mr. Polk was elected in 1844, awholesale removal was again carried on. In 1848, when General Taylor was elected, and under Mr. Fillmores Administration, it is a notorious fact another wholesale removal of officers took place; and it has been continued from thatday own to the present time; and I dare say it all proceeds from the idea advanced by Mr. Madison in the debate of 1781). It will be recollected, however, thatin thatdebate Mr. Madison gave his opinion simply on the appointment of the chief executive officers who stand in a confidential relation to the President. It was in a debate on establishing the office of Secretary of Foreign Affairs, our present SecyState. lhere was some good reason for giving the power of removal to the President in cases of that sort. Objections were taken that the President should not have the power to remove even these officers, standing in so near and so confidential a relation to himself; and then Mr. Madison interosed his opinion, and becoming involved in the debate he afterward took the ground that the Position was equally applicable to all officers; and therein consists the error, in my judgment, of this whole false theory that has grown up in the administration of the Government. 1 have shown, I think, that it has been the opinion of the leading men of all the political parties of this Country that this power of renibval was one not granted to the residentby the Constitution of the U.S. It is notorious that Elbridge Gerry was opposed to it, and said that no such understanding ever existed in the Convention. Roger Sherman took the same ground. I will state another fact, while it is now before me, that the ComJudiciary of the Senate in 1789, composed of 9 members, decided against the view of Mr. Madison, and a majority of them voted against the passage of the measure carried by John Adamss casting vote. Of the members of the ComJudiciary at that day, composed of 9 as able men as then lived, 5 voted against giving this power to the President. the ComJudiciary of the body that adopted the provision by one vote only decided against the existence of the power to remove on the part of the President. But I do not rest alone upon the opinions of individuals. I miwho refer to the very able opinion given by Mr. Hamilton in 1799, years after the decision of Congress so much relied on, in a letter written to a friend of his. After he himself had been in office as the head of one of the Executive Depts of the Govern?ment, he gave an opinion from experience that his 1st views of the Constitution were correct. I refer next to JdeStory, in his work ii on the Constitution. e, referring to this original debate, says: "That the final decision of the question so made was greatly influenced by the exalted character of the President then in ofice. was assertedat the time and bus always beenbelieved. Yet the doctrine was OPPOSOGHBSIWaCsH supported. bf! the highest talents and patriotismoftho country. be public. however, acquiese ed in this decision; and it constitutes. perhaps, the most extgtordinary case in thgi historyof the Government of a power conferred by Implication on the Exreutive by the assentofu bare minority of Conness. which has not been questioned on many other occpsions.Even the most jealous advocates of state rights seemto have slumbered over this vast reachof authority and have left it untouched. M the neutral around of controversy.in which they desire to reapno harvest and lroui which they retired without leaving any protestationsof title or contest." Storue(himmenlarirson the Conslitulion.vol. 2. seo.15 l3. Judgl“st,O!y declares it as his opinion that the appointing power has the powerof removal. l In regard to inferior oficers we can give the ernment, and supposing that it was utterly appomtiu power entirely to the President; [ but if we do not, if we reserve the right to give our advice and consent before the appointment shall be made, then he is clearly of the opinion, as are the courts that have adjudicated upon the subject, that the Senate has a voice in saying whether the officer shall be removed or not. I know that the Senfrom Maryland [Mr. Jonssox] insisted yesterday that Mr. Madison ought to know, perhaps, better about this subject than anybody else. If Mr. Madison made no mistake on the question of constitutional power, he clearly made a very great blunder in regard to the future policy of this Government on the subject. He made predictions in regard to it which have not beenfulfilled. For instance, Mr. Madison on the occasion of that debate said I refer to Gales & Seotons Debates, 1st volume, page SIT in answer to an objection which was urged by Mr. Gerry: “The danger.then. consistsmerelyin this. that the President ciin displacefromofficeaman whosemerits require that he should becontinuedin it. Whatwill be the motive which the President can feel for such abuse of his power and the restraintsthat operateto prevent it? In the 1st place. he will be impeachd able bu the House for such an act of maluduiinistra ltion; or I contend that the wanton removal of meritorious Officers would subject him to impeachment and removal from his own high trust." Just think of it, Mr. President. Those Gentlemen who laid the foundation of this great abuse of power in subsequent yenrs of the government took the ground that if the President did thus abuse the power thus put into hisl hands, he himself ought to be impeached li That was not the view alone of Mr. Madison; but Mr. Vinin also, on page 531 of the same volume, remar ed that If the President removes avalunble officer. which seemsto be the great danger the Gentfrom SCarolina [ML Smith] apprcliciids, it an act of tyranny which the good sense of the wonualdti obne would never forget." Just think of it! Mr. Vining, who supported the power of the President, says it would be an act of tyranny on the part of the President to remove a valuable officer. 1,000s and 1,000s have been removed under different Administrations, and removed without any cause whatever except that they disagreed politically with the iower appointing them. If this idea of Mr. Madison and of Mr. Vining and of others in this debate which laid this unfortunate reeedent in the administration of the affairs of this Government had prevailed. various Presidents would have been imcache and turned out of their offices. Mr. aldwin also in that Congress said “that such an act would be an abuse of power.” The more removal of an officer for opinions sake and without cause other than opinions sake would be an abuse of power which, in the language of Mr. Madison, would subject the President himself to impeachment. I think that, considering the factthat in every opinion that has ever been given by a leading statesman of this country from that day to the present, this debate in the 1st Congress is alluded to as authority, and considering the additional fact that in everyjudgment of a court from that day down to the present in which this question came under review, this debate has been alluded to for authority and the only authority on the question, we ought to examine the debate ciirefdlly, and if it turns out that the views entertained by distinguished men on the occasion have proven in the administration of the Government to be false and ruine us to the best interests of the GOvernment, Congress ought now to resume the power with which it is clearly invested. Without detaining the Senate I will allude to the 1st judicial opinion that I find upon this subject. It is reported in l Crunch, and I desire to call to this decision the attention of the Senfrom Maryland, who expresses very confident views on this subject and with whom I was disposed to agree when I commenced the examination of the subject. Relying entirely on the long practice of the gov impossible that without good reasons the Government should have fallen into this prac tice, I was disposed at 1st to agree With him, but examination has led me to an opposite conclusion. llie decision toavhich 1 now refer is that in the case of Marhury rs. Madison. Of course the question did not arise directly in that case, but a question akin to it did, a ndin one point of view perhaps the question itself arose; but it was avmded in the decision of the court, because it passed off on the power of the Supreme Court, in the exercise of its originaljurisdiction, to issue the writ of manda mus to compel Mr. Madison to give the commission to Mr. Marbury. It seems that on the day before Mr. Adams went out “of Office, on the 3d of March, 1801, before the inauguration of Mr. Jefferson, he had appointed 5 justices of the peace in the DistCol, under a law which provided that they were to hold their offices for 5 years. The commissions were made out by Mr. Adams for those parties, signed by him, and sealed by the SecyState, but they remained in the office of the SecyState. The commissions were not delivered to the parties, and after Mr. Jefferson came into office, Mr. Marbury applied for a writ of mandamus to the SCOTUSStates, to compel the delivery of the commissions. The writ was to goagaiust Mr. Madison, who was SecyState, to comcl him to deliver the commissions to the parties to act as justices of the peace for 5 years. There is a mouse statement of the case in the 2nd volumeof Storys Commen taries on the Constititutiou, page 406, section 1546, where it is stated thus: " This subject waa very elaborately discussedin the celebrated case of Murbury 0: Madison. Marbury hiid been appointed itjustice oi the peaceof the DistCol for 5 years. according to an act of Congress, by President Adams. by imd With the consent of the Seniite. His commission had been signed by the President, and was sealed and de Klosited in the Dept of State at the time of Mr. Jeffersons accessionto the Presidency and was afterward withheld from him by the dircction of the latter. An act of Congress lit“ directed the score tar of State to keep the seal of the U.S. an to make out and recordand aflix the seal to all civil commissionsto officersof the U.S. to be appointed by the President, ufler he should have signed the some. Upon the fullest deliberation, the court were of opinion that when a commission h beensianed by the President, the appointment is final and comilelo. The officer upponiled has then conferred on imlegal rights which cannot be relsuuied. Until that the discretion of the Prmideut may be exercisedby him as to the appointment: but from that moment it is irrevocable. lis power over the office is then terminatedin all cases.where by law the officer is not removable by him. The right to the office is then in the person appointed and ho has the absolute unconditional power of accepting or rejecting it. Neithern.delivery of the commission, nor an actual acceptanceof the office is indispensable to make the appomtmentperfect.” Now I will read a few passages from the opinion of the Supreme Court in that case it was the unanimous opinion of the court, pronounced by Chief Justice Marshall to show most clearly that no idea ever entered the brain of a single judge that the President himself had the right of removal in cases where the law reserved to the Senate the pewer of consenting to the nomination before it was complete. The Senfrom Maryland takes the ground and I admit {but he has the authority of the 1st decision by Congress, in 1785), but he has no other authority, because that decision is everywhere alluded to by the judges in their opinions, and they rely upon that alone that the President has the right to remove an officer. I admit that that was the opinion given by Mr. Madison, but I desire to read from the opinion of the Supreme Court, to which I have called the attention of the Senate. as hearing on that point. The question arose whether under the circumstances I have stated the president had the right to withhold the commission. It was perfectly clear that the appointment had been made and confirmed by the Senate, but Mr. Madison, the SecyState, refused to deliver the commission. which was tantamount to a removal of the officer afterhis appointment, and it was notorious that Mr. Jefferson, the President, had so ordered it to be done. The Supreme Court say I read from 1 Cranch, page 156 "Some point of time must be taken when the power of the Executive over an officernot removable at his will mustcease." What do the court mean by an officer not removable at the Presidents Will? “Thatpoint of time must be when the constitutional power of apointment has been exercised and this wer has beenexercisedwhen the last not required tom the person possessing the power has, beenperformed. This last act is the signature of the commission.” Again, in this opinion the court say I read from page 102 “ It is, therefore.decidedly the opinion of the court that when a commissionhas beensigned by the pros ident the appointment is made; and that the commission is complete when the seal of the U.S. has been affixedtoit by the SecyState. Whero an officer is removable at the will of the Executive. the circumstance which completes his appointment is of no concern. because the act is at any time revocable: and the commission may be arrested.if still in the office. But when the officer is not removable at the will of the Executive. the appointment is not revocableand cannot beniliulledu has conferred legal rights which cannot ho proruined.” They decided afterward in this case that this appointment was complete and perfect of itself, that it vested a right, and that the president could not in the particular case with hold the commission.