Mr. HENDERSON. It is true that when this bill was up for consideration afew da 5 ago I offered 2 amendments, not going to length of the proposed amendment now pending, but I am not disposed to thiuk that this amendment cannot constitutionally be adopted. I think it can. I am not like the Senfrom Illinois, either, upon the subject of restraining the power of the President to make these appointments. I freely confess that so far as I am concerned that is my desire. When I 1st offered amendments to this bill, I was governed by what had been the policy of the executive government heretofore, and the claim of power on the part of the Executive to make removals. I was willing to admit the existence of the power simply because it had been exercised hereto ore. Since I offered those amendments I have examined somewhat into this subject, and I can state to the Senfrom Illinois that I have partially preared a bill covering this whole question, and design going on and completing a bill which will provide, as I think, for almost ever conceivable case. I have, since that time, a so examined somewhat into the history of this matter, and I have come to the conclusion and I hope that it is a conclusion arrived at without any bias or prejudice from existing circumstances that the President has no power constitutionally to remove an officer at all. I am aware that Mr. Madison expressed his opinions repeatedly on the subject. I will refer the Senfrom Maryland, who has given the opinions of Mr. Madison in a letter written in 1834, to his opinions given in the 1st debate on this subject in 1781). I honestly believe that all the mistake that has originated on this subject comes from the determination of the lower branch, and the Senate also, at a subsequent period in 1789 on this very subject. The Senator, of course, is well aware how the question came to be decided in 1789, and I really think it has been used as a precedent from that day to this without any reason for it. The truth of the matter is that it is not a precedent for such removals as are dail made now by the executive Dept of the Government. You will remember that immediately after the meeting of Congress a proposition was made to establish the various Executive Depts. Mr. Madison moved to amend it. The motion of Mr. Madison was: “ That it is the opinion of this committeethat there shall be establishedan Executive Dept to be denominated the Dept of Foreign Affairs, at the headof which there shall be an officer to be called the Secretaryto the Dept of Foreign Affairs. who shall be appointed by the President by and with the advice and consent of the Senate and to be removableby the President.” The debate which has been cited as a precedent upon this subject originated upon that proposition of Mr. Madison. Mr. Smith, of SCarolina, moved to strike out the words “who shall be appointed by the President by and with the advice and consent of the Senate? The ground of his motion was that the President had the power to make the nomination by virtue of the provisions of the Constitution; that there was no necessity for providing by law that he should nominate; but that when a law created an elliee under the U.S. it was the duty of the President to make the nomination, but the Senate must. confirm it; that the use of the words was mere su lus age: and the wordsivere stricken out by a urge majority. But the importantquestion then arose; the preposmoii was made by Mr. Bland, of Virginia, to strike out the other words, “ to be removable by the President, ” and then came the question. Mr. Madison upon that point used the following words, and they are much more clear and explicit than the words he used afterward in his letter to Mr. Coles: “ Mr. Madison did not concur with the gentleman in his interpretation of the constitution. 1 huh said he, would be the eoiiseluctice It of such construction1 would in effectestab isli every offleer of the government Ull the tiriutenuro of good behavior; iiotthe ItiZlti. of Depts only, but till the inferior officers of those Depts.would hold their offices during good behavior and that to be judized othy one branch of the Legislature onlyon the impeachment of ifio other. If the Constitution means this by its declarations to he the case, we must submit; but I should lament it as a fatal error interwoven in the S}: t.li!i, nd one that would ultimately prove its destruction. I think the inference would not arise from a [air constructionof the words of that instrument." After a very long discussion. from which I will read only a few extracts from the speech of Mr. Gerry, who was also a member of the Convention, it was decided by a very large majority that the power ofremoval should be.given to the Iresident. I desire to refer to the remarks of Mr. Gerry on that occasion. He said: “The Constitution provides for the appointment" of the public officers in this manner: the President Bliilll nominate and by and with the adviceandeon, Eiillof the Senate, shall appoint BlnbttstalltlOfS, 01ll(;l public ministers and consuls.judges of the Supreme Court, and iill other officers of the U.S. who“; appointments are not herein otherwisepro vided for, and which shall he established by law.” I call the attention of the Senfrom Maryland to this opinion of Mr. Gerry, which isof alniost as much value as the opinion of Mr. Madison: "Now. if there be no other clause respecting the appointment. I shall be glad to seeliowthe heads of Itrimrnts are to be removed by the President. til inc. What clause is it that gives this power in, expressterms? I believe therein nonesuch. If there is a powerotremoval, besidesthat by impeachment, it must vestsomewhere. It must vest in the President or in the president and Senate or in the president, Senate and HoRep. Now, there is iiocluusewhich express vestsit in the pros ldrnt. I believeno gentleman contends it is in this Hensonbecansothat would be that minglingof the ext cutiveand legislative powers thatgcptlomeudep reentc. I presume, then. gentlenieuWill rant that it there is such a power.it vests With the resident, by and With the advwe and consent at: the Senate. who are the bodythat appoints. I think we ought to be cautious how we step in between the President and the Senate.to abridge the power of the one or increase the other. If the power of removal vests. Where I suppose we by this declarution, undertakc to transfer it to the President alone." Ihis proposition afterward went to the Senate, and after a discussion in the Senatel upon the points involved in it, it was decided by the casting vote of the President of the Senate that the POTUS should have the power of removal: What was it thati was decit ed? It was decided the law should be so constructed in creating the Executive Depts, presided over by the SecyState, the SecyTreasury, and the TIinister of War, that the PreSident should at his pleasure remove them. That was all that was determined. The question arose again, itwdl be recollectod, in 1814, upon the appomtment by Mr. Madison of the commissioners to settle the terms of peace with GreatBritain. Mr. Madison, it will be remembered, made an appomtment of commissioners to go to Europe on the subject of peace and to meet commissioners to be appointed by GreatBritain, without any law 01 Congress whatever. A proposition was offered in the Senate declaring that Mr. Mad ison had exceeded his powers on that subject, and the question was discussed as to the power of the President to make such appointments without law. Although there was no positive decision on the point, perhaps the better of the argument was inasmuch as we were in a state i of war, even if the President had not the power to appoint those commissioners under the clause which we have been discussing here, namely, that the President, by and with the advice and consent of the Senate, shall appoint embas sadors, ministers, consuls, &c., he certainly had the authority under the treaty making power. The question came up again in 1827, and I desire to refer to the opinions that were then expressed. In 182, 7 the Senate appomted a committee to examine into this subject. That committee consisted of Mr. Benton, who was the chairman, Mr. Macon, of NCarolina, Mr. Van Baron, of how York, Mr. Dickerson, 0t NewJersey, who was afterwards SecyTreasury, Mr. Johnson, of Kentucky, Mr. White, of Tennessee, Mr. Holmes, of Maine, Mr. Hayne, of SCarolina, and Mr. Finlay, of Pennsylvania. They investigated the subject and made a report. The Senfrom. arylund has relied ugon the opinions of Mr. Madison. I do not desire to read the whole of this report, nor any very considerable portion of it, but I Wlll refer to a passage from itin order to show the reasoningin favor of the proposuion that is now made by the Senfrom llliiiois. They say: " It is no longer true that the President in deal 1112out ct1iccsWill be limited. as supposedin the Ft! lclllllltlo, the inconsideruble nnm or of places which may becomevacant by the ordinary casualties of death and feSlKlltlllOll. On the contrary. he may now draw for that purpose upon the entire fund of the executivepatronage. Constructionand legislation have accomplishedthis clianxre.In the very tirst. your of the Constitution a construction wasput upon that instruinciit which enabled the President to create as many vacanciesas he pleased.” Alluding to the construction to which I have referred: “ In the very 1st year of the Constitution a constructionwasput upon that instrument which enabled the President to create as many vacancies as he pleased and nny moinen the thought proper. This was ( cctedby icldinuto him the kingly prerogativ of disniissing officers without the formality of a trial. The authors of the Federalist had not foreseenthis construction. So far from it, they had asserted the contrary: and arguing logically that the dismissing power was pertinentto the appointing power.they admaintained, in he. 77of that standard work” that is a number written by Mr. Hamilton, because it is well known that Mr. Madisons opinions were to the contrary. From the very origin of the Government down to the day of his death, he held that the President had the power of removal; but I must say, from an examination of the opinions of the leading men of that day, that Mr. Madison was almost alone. "They had maintained in No. 7701that standard work that if the consent of the Senatewas necessary to appointment. their consentwas necessaryto dismission from o the c: but this construction was ever. ruled by the 1st Congresswhich was formed under the Constitution: the powerof dismisswnwasaban doned to the President alone: and With the acquisition of this prerogmive, the power and patroniiize of the presidential officewas increasedto iin indeffi iite extent and the argument of the Federalist against the capacityof the President to corrupt membersof Conzrcss founded on the small number of placeswas totally overthrown. So much for construction. New for the facts of legislation: without 8010! into an enumerationof the statuteswhich unnecessarily in crcase the executiye atronage. the 4 years appointment law will a one bementioned; for this single act places moreofliccs at the command of the President tha nwere known to the Constitution at. the time of its adoption, and is of itself amply sufficient to overthrow the whole argumentusedin the Federalist." That was not the only time that this subject was considered in Congress. I find that in 1834 this question came up again. Mr. Clay, on the 7th of March, 1884, introduced into t 10 Senate some resolutions in regard to it. I wish to direct the attention of the senate to those resolutions, and also to the opinion of Mr. Clay, which I think is dispassionate and correct. The 1st resolution was in these words: “1. Resolved. That the Constitution of the U.S. does not vest in the President power to remove at his leusnreofficers under the Governmentt of the U.S. whose offices have been established by law. "2. Resolved. That in all cases of officose reatedby law. the tenure of holding which is not prescribed l by the Constitution. congress is authorized by the Constitution to prescribe the tenure. terms, and conditions on which they are to be holden." Sustaining fully the view taken by my friendfrom Ohio. [Mr. SnnniiAN.] The 3rd resolution was in these words: “ 3.Resolved, That lhc Committce on the judiciury be instructed to inquire into the exediencyof providing by law that in all instances O appointment to office by the President. by and with the advice and consent of the Senate. Other than diplomatic appoint meats” Of course, leaving the action taken by Mr. Madison, in 1814, to stand as a valid action “tho power of removal shall be exercised only in concurrencewith the Senate: and when the Senate is not in session, that the Presidentmay suspendany such officcir communicating his reasonsfor the suspension to the Senateat its 1st succeedinirsession and if the Senate concur with him, the officer shall be removed: but if it do not concur with him, the oificer shall berestoredto of the e. “4. Resolved. That the comPostOfficeand Post Roads be instructed to inquire into the expediencyof making provision by law for the appointment. by and With the advice and consent of the Senate, of all de iuty postmasterswhose an nual emolumentsexcee a prescribedlimit." That was done afterward. I will now read an extract from the remarks of Mr. Clay on the subject. Upon the introduction of his res olntions, Mr. Clay said: "The 3 1st resolutions assumedthat the constitution gaveno power ofremovul from officeby the POTUS at his pleasure. He was fuly aware that.this powerwas concededto the: President by the 1st Congresswhich sat under the Constitution.“ {lluding, of course, to the proceedings to which I “ have referred. But since that period. exceptin an incidental discussionhere 4 or 5 yearsago. it has never beefl discussed in Congress.” Alluding to the discussion upon the report of Mr. Benton in 1827. " Ile had carefully looked into the Constitution, as it related to the powerof removal in the President, and the result was that the power wasnot repoaedin. the President in the instance indicated in the resolutions. He believed the assertion of the power by the 1st Congresswas improvident and not the least reason for this opinion was the confidencewhich that Congressrepose din the wisdom. the prudence, and the patriotism of the 1st President. the Father ofliis Country."