Mr. JOHNSON. Mr. President, I rise with no view to discuss the policy of the POTUS, or to contrast that with what is supposed to be the policy of those who differ from imand who constitute the majority of Congress. I have but a word to say in relation to the 1st, and that is that if I understand what his policy is in the particular referred to, it is that which was adopted and carried out to a certain extent up to the period of his decease by his immediate predecessor. But. however that maybe, it has nothing to do, as I think, with due submission to my friend who has just taken his seat, with the question which is now submitted for the judgment and decision of the Senate. That question is one of constitutional law, and it should not be influenced, whatever may be the fact, by any political considerations except such as grow out of the nature of the Government constituted by the Constitution. We ought to ascertain What the Constitution is with reference to the subject before us, and to stand by it, no matter what its etfects may be upon the party political destinies of the country. the question is whether, under the Constitution, the President has the power to remove Officers without the consent of the Senate; and the question, as it is presented by the amendment proposed by the honorable member from Illinois compreends every class of Officers whom he may appoint with the advice and consent of the Senate. It embraces, consequently the members of his Cabinet who are called around him for the very purpose of aiding him in the administration of his Office, in whom he is to confide, in whose sincerity of friendship, politicalaswell as personal, he on ht to rely; and if the Senators will look to what was said in both Houses of Congress at the period when the several Depts were organized, they will see that it never entered into the imagination of any of the statesmen of that day that the President could becom elled to retain in his Cabinet Officersm whom he had ceased to confide, no matter upon what ground his confidence was lost. I he suspected a want of inte it, without having any positive proof, nobody doubted that it would he not only his right but his duty to remove. If he suspected or believed a want of fitness, the same was the universal opinion. If he suspected that they were hostile to whatohe believed to be a proper discharge of his duty, nobody questioned that he won d have a rightto dispense with them and to get around him men who would with himself, he a unit with reference to all the executive functions in trusted to that Dept of Government. But if you adopt this amendment as it is now altered by my friendfrom Illinois, you to a certain extent deny to him the right to remove a Cabinet officei, because the amendment as it now stands provides that if he does remove he must at the next session of the Senate report to the Senate the reasons a on which he removes. What is to be the egect of that, provided you have the authority to impose it? suppose the reasons are not satisfactory, is the Ca met member who has been removed to be reinstated? The amendment does not say so; and if it did say so, what would be the principle which the Senate would have adopted? That of forcing upon the POTUS a Cabinet officer in whom he has no confidence, whom he believes to be untrue to duty, incompetent to the discharge of his office. The Senate may think differently from the President; they may believe that e has been true to duty, that he has every competency necessary to the discharge of the duties of the office, and so decide; is that to reinstate the minister who has been removed? This amendment does not say so. If it does not say so. what is to be the effect of the amendment? To get before the Senate some ground upon which the other branch of Congress may impeach the POTUS Now, I speak kaowin ly, Mr. President, when I say that whatever doubt was expressed during the session of the Congress of 1789 in relation to the incidehtal power of the President to remove, no member of that body (and many of them had been members of the Convention by whom the Constitution was framed) ever suggested that the President could be compelled to eep around him any Cabinet officer whom he desired to dislace. Let gentlemen reflect for a moment. We are not legislating now for an hour. Whatever may be the supposed exigency of the time, growing out of any actual or supposed difference of opinion between the Presideat and Congress, what we do now "Will he recorded for a.precedent: and many an error, by the some example. Will rush into the state." We are but the creatures of an hour. This nation, Itrust, is to last as long as anything human continues, ever growing in and power; and yet the principle prionse peurditeyd within this amendment strikes a vital blow at the executive Dept, and is inconsistent with all the objects which it was the purpose of the Convention to have accomplished t reach the instrumentality of that Dept. The Senate are not to be told that the 2nd article of the Constitution of the U.S., by which that Dept of the Government is created, says that “the executive power shall be vested in a President;” nor are they to be told that in the celebrated controversy between Mr. Madison and Mr. Hamilton in relation to the proclamation of neutrality, in letters writ ten over the si natures of “ Pacificus” and “Helvetius, Mr. Hamilton took the ground that every power, executive in its nature, except so far as it was restrained by the Constitution, was by force of the terms by which the executive Dept of the Government was created invested in the President. In the debate in 1789, to which my friend referred, Mr. Madison expressed the opinion with such a positive conviction of its correctness that from that time it has been practically acquiesed in. A part of the discussion in which Mr. Madison participated at that time the honorable member from Missouri has not read. Let me call the attention of the Senate to it for a moment. Mr. Madison in that debate used this explicit language: “I think it absolutely necessarythat the president should have the power of removing from otficc: it ill make him in a peculiar manner resonsible for air conduct and subject him to imposement himself if he safari! them to perpetratewith imiiinity hlg crimes or misdemeanors against the U.S or neglects to superintend their coriduet so as to check their “ceases. 0n the constitutionality of the declaration I have no manner of doubt." Now, let me stop for a moment to inquire, if there was no such power of removal what would be the condition of the country and what would be the condition of the President? He is sworn to see to the faithful execution of the laws; and how can he do it? Not personally; it can only be done through the instrumentality of subordinate Officers named in the Constitution, or officers a pointed under the authority conferred upon congress by the Constitution. He finds that the laws are not being executed, that an incumbent disregards his duty, is guilty of excesses, is dishonest, is appropriating the public money to his own purcase; what is he to do? He cannot execute e laws except by means of officers; he cannotgointo the country himself and collect the revenue; he cannot be at every customhouse in the country and see to the collection of imposts; he cannot go himself personally throughout the country and collect the internal tax, whatever that may be; he cannot execute the juments of the courts; he cannot go with your ndian agents and see that they properly apply the money set aside by Congress or that purpose. He is obliged to do it through the instrumentality of subordinates, and e finds that they are faithless; what is he to do? You adjourn on the 4th of March; you cannot sit longer at the 2nd session; (you do not meet again until December. Accoring to this amendment, although he may turn out, (for the amendment does not deny that) he cannot supply the places of those who may be dismissed; or unless he can find anybody disposed to take the place upon the contingency that the Senate will thereafter approve of the appointment, the place is not to )0 filled. Well, then, your imposts are not collected; your tax remains in the hands of those who are liable to pay it; the duties which you owe to the Indians and the execution of yenrtreat ies with them remain unperformed. The government, in a word, comes to a stand still; and my honorable friendfrom MissourI thinks it would be pregnant with great public mise hief to give to a POTUS, elected by a majority of the people of the U.S., a power of removal because he may abuse it. Certainly he may. Cannot we abuse our power? Are we individually better than he is? I do not speak of the present members of the Senate or of the HoRep or of the present incumbent of the presidential Office; but looking into the manner in which they are respectively elected, is it a bit more probable that the POTUS will be corrupt or prejudiced, almost to the point of practical corruption, than it is that some members of Congress may be corrupt; or to put amore respectable supposition, is it probable that they will be more enlight ened and more able to see the true interests of the country than the POTUS? I think not. As far as my knowledge extends, nobody has ever impeached the personal integrity of any POTUS As to that, each has been spotless in the public estimation. Errors of Judgment have been imputed to them; imbecility was imputed to him who preceded President Lincoln; that is to say, an imbecilit which unsuited him for the exigencies in which he was placed; but in point of personal integrity his character never was assailed. Members of the Senate have been charged with imroperconduct, and have been expelled; members of the HoRep have been charged with improper conduct, and have been expelled. So then in point of fact, looking to the experience of the country, it is just as likely that misconduct may be found in the Halls of congress as that it may be found in the executive c amber. But what is to supply the evil consequent upon the inability of the president to execute the laws because the officers placed under his charge are not fit, either morally or intellect ually, to execute the laws? Above all, when you charge him, as a Congress would have the right to charge him; when the judment of the country would charge him with having abandoned his dut in seeing the laws faith fully executed, and 7 he comes before you and defends himself upon the ground that his office is were incompetent, you would, at one time, and every Senate will hereafter, if that should be the round of impeachment, tell him in reply, “ t was ygur duty to remove the incompetent.” 1 know that when the question was 1st presented, in 1789, there were differences of opinion, andl know that it was decided in favor of what has been the practice ever since by the casting vote of the Presiding Officer in this body, but it received a majority of more than 20 in the HoRep and see what Chancellor Kent says upon the subject. He seems to have doubte it as an original question; but after citing the preamble of the act of 1789, establishing the Treasury Dept, which declared “that whenever the Secretary shall be removed from office by the POTUS, ” thus assuming the power to remove, the commentator says: “This amounted to a legislative construction of the Constitution, and it has ever since been acquiese ed in and acted upon as of decisive authority in the atres. It applies equall to every othor officer of Governments lpointed y the President and Sennto whose term O urntion is not speciallydeclared. It is supported by the weighty reason that the subordinate o the crsin the executiveDeptought to hold at the pleasureof the head of that Dept, because he is investedgenerally with the executive authority and ovary participatjon in that authority by the Senatewas an exception to a general principle, and ought to betakenstrictly. the presidentist a sat responsible officer for the faithful execution of the law and the power of removalwasincidental to that duty, and mightpften be requisito to fulfill it." Kent O Commentaries, part 2, v0. l. p. 310. My friendfrom Missouriseems to suppose that he has found in the case of Marbury vs. Madison, and in a subsequent case that he cited from Peters, decisions of the Supremo Court of the U.S. at war with that principle. He entirel I speak it respect fully misap rehends ioth cases. The constitution of the U.S. provides for certain Officers by name; it gives to the POTUS the authority, by and with the advice and consent of the Senate, to appoint to Offices of that description. It vests in congress the authority to give the power of appointment of other and in erior o cers to any other Dept of the Government that it may think proper; and as Mr. Justice Story says, in the passages referred to by the honorable member from Missouri, undert e latter authority nearly all the evils supposed to be incidental to the sweeping power of the President to remove may be guarded against, because Congress, under the power of providing for the appointment of inferior o cers, have a right to provide for the term of Office, and to make the particular officer independent of the Executive and now, what did Marbury cs. Madison decide? Mr. Adams, just at the close of his administration, appointed a number of magis trates here in this District, and be apointed a good many judges under a law passe abofi the same time constituting additional circuits of the U.S., and making the SCOTUS exclusively an appellate tribunal. Before Mr. Adams went out of office his nomination of Marbnry had been confirmed by the Senate, sent to the President, and a commission issued which he signed and which was deposited in the archives of the State Dept, but was not delivered. The SCOTUS upon an application made by Marbury for a mandamus to compel the SecyState, not the president, to deliver the commission, decided the question of the right of Marbiiry to the commission. With due deference to the very distin uished man then at the head of that court an to those who were associated with hiiu, i must be permitted to say that in doing so they committed, in myjudgmeut, a very grave fault. They committed the same fault which the supreme Court afterward in the Dred Scott case is supposed to have committed. They committed the fault of deciding a controversy in a case which was not before them, because after a labored and an able argument, as every argument flowing from the pen of that great man over was, they cameto the conclusion at the end of the opinion that the whole matter was comm nonjudice, that the act of 1789 which gave an authority to issue the writof mamlamus was to be construed in conntction with the Constitution of the U.S., and in such a case as was before them Congress had not power to clothe the court. with the authority to issue the writ except in cases in which they had an appel late jurisdiction. Their original jurisdiction being of a limited character and that not including such a case as Murbury presented. Congress had no authority, as they said, to give to the SCOTUS the power to issue the writ, and they dismissed the application and tt has ever been a subject of regret that principles should have been announced in that opinion upon the merits of the controversy which, as the result showed, in the opinion of the court were not before them. The court fell into the great error ofassuming jurisdiction so far as to decide a controversy which they afterward held in the same opinion was not before them because of the want of jurisdiction; and the Supreme Court in the subsequent case of Dred Scott, in the Opinion of some, was thought to have fallen into the same error, and that in part has led to the severe animadversions upon that adjudication. But, Mr. President, suppose it was before them, and supoose that opinion to be esteemed as authority, what does it decide? That congress having created the office of magistrate, an office not known to the Constitution, and under their power to create having provided that the termof service of the incumbent should be 5 years, the incumbent was not liable to be removed until the expiration of that period, never denying I think I speak knowingly; Heaven knows I have had occasion to read the judgment often enough never denying the existence of the pewer decided in1789 to exist in the President ofremoving officers generally; and the same remark is applicable to the case which my friend has cited from the 13th volume of Peters. But if the honorable member had pushed his researches further he would have found another decision; and ifhe was at the bar, and we were trying a case, I should rather think it was because he found something in it against his argument.