Mr. WILLIAMS. With the indulgence of the House I will now proceed to state the objects of the bill reported by your committee, along with some of the considerations which have commended it to their judgmentas a measureof great national concern, and one which falls within the constitutional powers of this Congress. The 1st section enacts that no officer who has been appointed by and with the advice and consent of the Senate shall be removable except by the same agencies, with the proviso, however, that in ease of disability or misconduct in office during the recess of that body, the President may, with the advice of the AttyGen, suspend the incumbent and commission another until the next session, at which it shall be his duty to report the fact, along with the causes of removal, and the name of the officer so appointed, or such other person as he shall choose to nominate; and that in case of the refusal of the Senate to approve the act, the officer so suspended shall resume his functions, without any allowance, however, of compensation in the meanwhile. The 2nd section provides that no officer renominated shall continue to hold after his rejection, and that the party so rejected shall not be again appointed. The 3rd section I propose, with the approbation of the committee, to strike out, and insert 2 others one to the effect that where a vacancy o;during the recess may have been flied by the President, it shall be his duty to make a nomination before the end of the next session, and in case of the nomination of any other person or persons than the one so commissioned, and the refusal of the Senate to advise and consent thereto, the office shall not be considered as vacant upon its adjournment, but the person so commissioned shall continue to hold and enjoy the same during the recess, and until he shall be either nominated and rejected, or duly superseded by a new appointment; and the other fo."; that the heads of depts shall hold their offices for the term of 4 years unless removed with the concurrence of the Senate; and shall moreover nomi nate, and by and with the advice and consent of the Senate appoint, all their assts and subordinates, to hold for the like period, unless removed in the same manner. The bill rests, therefore, on the hypothesis that the power of removal does not rightfully belong to the President alone even if he can be properly claimed to have any share of it, under the Constitution and cannot be safely left with that officer without any restraint upon its exercise; and this as a general principle, and without any reference to the merits or demerits of the existing functionary. It proposes to improve the rare advantage of a dissociation between the party in power here and the President of its own choice, for the correction of a great evil, by a surrender and dedication of the spoil which that party may be supposed to have won, upon the public altar, and for the nation's benefit, through all coming time. It aims at the reformation of a giant vice in the administration of this Government, by bringing its practice back from a rule of its infancy and inexperience, resting mainly, perhaps, on its unbounded confidence in the personal Virtues of its 1st Chief Magistrate, to what are believed to be the true spirit and meaning of its fundamental law. To accomplish this object it disturbs no title, and attacks no judicial precedent. It strikes not even at any prescription with “the hoar of innumerable ages” upon it. It contemplates but the review of a legislative opinion of yesterday, under the lights that a miraculous growth and an era of revolution have shed upon it, along with the resumption of a constitutional power that has been heretofore surrendered. Nor is this the 1st occasion on which that opinion has been questioned. It was antici Fo by a denial of an authoritative character. t was the opinion of a divided court. There has been no time, I think, at which its soundness has not been disputed. It has been subjected again and again to the most damaging criticism by the best professional minds of the nation. It has found no favor anywhere, I think, upon the score of reason. It is not even old enough to be venerable. There is nothing irreverent, therefore, in its impeachment, even though time might be supposed to consecrate error, or a prescription to run against truth or reason in the forum of the statesman. To estimate justly, however, the weight to which it is entitled, it is necessary to show its precise extent, the circumstances by which it was attended, and the argument on which it was sustained, before proceeding to discuss the question on ogrounds and with a sole reference to the Constitution itself, on lo. the that it is still an open one. this to be noted, then, that while it was objected widely in advance of the adoption of the Constitution, by those who were opposed to it, that it would give to the Executive the powers of a King, it does not seem even to have occurred to those who were the mostingenious in exploring and exaggerating its defaults, that there was anything in it which could be construed to bestow on the President the emi nently regal power of displacing the officers of the Government at his own individual will. It does appear, however, to have been argued by its friends, in answer to the objection of instability through frequent changes of administration, that inasmuch as the Senate was to cooperate in the business of appointments, and “its consent would therefore be necessary to displace as well as to appoint, a change of the Chief Magistrate would not occasion so violent or so general a revolution as might be expected if he were the sole disposer of the offices.” (Federalist, No. 77.) The undisputed assumption, therefore, that the President could not remove, was one of the arguments on which the briefness of his tenure and the frequency of elec.tions were defended, and the instrument itself commended to the support of the people of the States by the leading spirits who presided at its formation. When the 1st Congress met, however, to in augurate the Government then newly formed, the question arose at once, on the establishment of the Dept of Foreign Affairs, whether the head of that bureau should be made, in terms, removable by the President; one party claiming that the power of removal was included in the power to appoint, and could, therefore, be exercised only in connection with the Senate, and the other, with Madison at its head, asserting with equal confidence, that it was a strictly executive function, and as such, conferred on the President by the 1st section of the 2nd article of the Constitution. The result was, not a decision, but what better deserves to be characterized as a compromise or evasion of the question, by the substitution for the words, “to be removable by the President, ” of the phrase ology, “whenever the said principal officer shall be removed by the President, or in any other case of vacancy, the chief clerk shall take charge of the papers, ” &c.; a result which by no necessary inference imported anything more than an implied or permissive authority, which the Opposition was ready to accord to the President on personal grounds, but which the friends of that officer, claiming it under the Constitution as his right, were not willing to accept as a grant. In this shape, however, after a protracted contest and a close division in the House, the bill was passed through committee in the Senate by the casting vote of the VEEP, and finally by one majority. It is worthy of remembrance, however, that the VEEP was John Adams, and the President himself a man without “that sin by which the angels fell, ” who had never betrayed a trust or abused a power; and that, moreover, the weight of the argument turned on the impool. of future degeneracy, and the liability to impeachment in case of possible corruption or profligacy in future times. But succeeding Congresses went still further, in making the tenure of offices over which the Constitution had endowed them with exclusive and unquestionable control, dependent on the pleasure of the Executive, and the nation acquiesced under an experience of 40 years, which seemed to justify the confidence that the virtues of its 1st Chief Magistrate had inspired. It was not until it was startled from its security in 1829 by the new and atrocious doctrine, that the public offices were but the lawful plunder of contending factions, and the profligate cry that “to the victors belong the spoils, ” that it began seriously to inquire into the wisdom and lawfulness of a practice that had grown up subsilentio, and apparently fastened itself upon the Government. The result of that inquiry, however, was a general conviction that there was no warrant for it in the Constitution and no more of force in the argument that had been allowed to prevail, than there was of the prophetic spirit in the statesmen who were so prodigal of their assurances that no evil could flow from it, and that the corrective would be an easy one. That conviction was shared by the very ablest men of the nation, who had been trained in the study of its Constitution under the light of nearly half a century's experience, and were agreed upon the necessity of such a reform as would bring the Government back to its true principles. Mr. Webster, in a speech made by him in the Senate in 1835, holds this emphatic language: “After considering the quastion again and again within the last 6 years, I am willing to saythat in " my deliberate judgment, the original decisionwas. wrong. I cannot but think that thosewho denied the power in 1789had the best of the argument. It appears to me, after thorough and repeated and conscientious examination, that an erroneousinterpretation wasgiven to the Constitution in this respect by the decision of the 1st Congress.” And again: “I have the clearestconviction that they [the Convention] looked to no other mode of displacing an officer than o impeachment, or the regular appointment of another person to the same place.” And further: “I believe it to be within the just power of gress conto reversethe decision of 1789, and I mean to hold myself at liberty to act hereafter upon that question as the safety of the Government and of Sonstitutionmay require.” the The like opinion was obviously held by both Kent and Story, and the same is inferrible from the report made by Mr. Calhoun to the Senate, on the subject of removals from office, in 1835. If earlier authority were necessary, however, it may be found, not only in the federalist, but in a letter of Alexander Hamilton to James McHenry, then SecyWar, written in 1799, and about ten years after the debate in Congress that is supposed to have settled this. question. It was in vain, however, that the statesmen of a later period, in view of the enormous abuses that threatened to overthrow the just balances of this Government, and to dwarf all r its other depts under the overshadowing: growth of the executive, pointed out the error e. into which we had fallen, and the rocks upon e. which the ship of state was drivi g with such. headlong impetuosity. A triumphant party, successfully, every attempt to get back to the true reading of the Constitution; while this power of resistance was equally sure to be strength ened by the increase of the means of corruption in the multiplication of the Federal offices. That increase was, even in ordinary times, but on a natural and necessary result of our marvelous. growth as a nation. The exigencies of the war through which we have just passed, and the new so and heavy responsibilities it has left behind it, swelling our armies beyond example, and me. cessitating the establishment of a new dept of the public service, that permeates the land, and enters the castle and unlocks and in: spects the oand the strong box, of every citizen, have administered to it an impulse that has carried it beyond the remotest: point it was likely to have reached in the course ". of another century. The Executive of this nation, with its own tacit consent, now wields a power over the fortunes of its people, that S. would, in ambitious hands, and if adroitly used, be sufficient, not only to buttress and sustain a throne, but to make him the envy of the proud: ', est potentates of Christendom. He has not hesitated to proclaim aloud that he intends to use it to enforce his will; and upon this hint I now propose to strip him of the ability to make !. his menaces, by reasserting the authority of Congress, and taking back into its own custody, and for its own defense, the jewel with which it has so generously and improvidently parted in the honeymoon of its existence, when all was confidence and love. And now as to the extent of the decision, the length and breadth of the swaddling clothes that are supposed to fit us now, and cramp the movements of a giant State in the direction of reform. Confounded as it has been with a practice that has only followed out its spirit, its effect, I think, has been greatly magnified in the general estimation. In itself, and apart from the debate to which it gave rise, it decides absolutely nothing, except that in the absence of all legislation, the power of removal, " in cases of appointments confided to the executive by the Constitution, belongs to him alone. It rules nothing as to cases where the term is fixed, or as to inferior officers, where the mode of appointment is left entirely with supported, as it was almost sure to be, by an. unscrupulous majority in both Houses, and looking to the offices of the Government as its lawful spoil, was sure to resist, and resist such Congress. the heads of the Depts only, and although the line of demarkation has never yet been authoritatively drawn between the supe rior and inferior officers of the Government, it may be safely assumed that as the head which is the constitutional phraseology is superior to all the other members of the body, so these functionaries are to be classed among the superior othcers whose appointment is vested by the Constitution, though only submodo, in the President. There was no question, however, as to the power to regulate the duration of the office. It stood indefinite on the bill. In that condition it was not disputed that the tenure must be either at pleasure, or during good behavior. The Constitution had as signed the latter to no other officers except the judges, and the inference was irresistible that all others must hold their places by the former, unless Congress should give some other duration to their offices. (2 Story's Commenta ries, sec. 1537; 1 Lloyd's Debates, 511,512.) The point in dispute was only at whose pleas urethey were to be held; whether at that of the appointing power, or of the President alone. And this accords precisely with the statements of both Kent and Story, the 2 leading commentators on the Constitution, and unquestion ably the highest authorities in the country. The former describes it as “a question whether the power of removal in case ofcfficers appointed to hold at pleasure, or where the duration is not specially declared, resided anywhere but in the body that appointed.” (1 Kent's Commen taries. sec. 14, pages 308 11.) The latter puts it in the same way, by condensing the whole issue into the 2 great questions: 1st, to whom, in the absence of all legislation regulating the duration of the office, does the power of removal belong? And 2nd, if to the executive, in cases confided to him by the Constitution, can Congress give any duration to the office not subject to the exercise of such power? (2 Story's Commentaries, sec. 1537, citing 1 Lloyd’s Debates, 511, 12.) The latter of these 2 questions has not, he says, been raised, because all our legislation has recognized the executive power of removal as in full force, and the case here rests, of course, only on a silent practice, which had the recommendation of convenience, and was maintained by the harmonious couperation of the several depts of the Government, and a well authorized confidence in the Executive, which is now greatly disturbed, if not altogether destroyed. As regards, however, the former of these questions, they are equally agreed that the decision was an anomalous one. Judge Story speaks of it as “constituting the most extraordinary case, in the history of the Government, of a power conferred by implication on the Executive, by the assent of a bare majority in congress, which has not been questioned on many other occasions.” (2 Commentaries, 1543.) Chancellor Kent, referring to the fact that it had never been made the subject of judicial discussion, and that the construction given in 1789had continued to rest on “this loose, in cidental, and declaratory opinion of Congress, ” and although suggesting that it might now be considered “firmly and definitively settled, ” is constrained to speak of it, as “a striking fact in the constitutional history of our Government, that a power so transcendent as that which places at the disposal of the President alone, the tenure of every executive officer appointed by the President and Senate, should depend on inference merely, and should have been gratui tously declared by the 1st Congress in oppo.sition to the high authority of the Federalist, and supported, or acquiesced in, by some of those men who questioned or denied the power of Congress to incorporate a national bank.” (1 Kent's Commentaries, sec. 14, pages 308 11.) The Chancellor does not speak with the precision of the lawyer, and forgets his own statement, when he describes it as a power which places at the disposal of the President alone the tenure of every executive officer appointed by the presients and, The question involved was as to Senate. He does show, however, the training of the judge, in his remark that the construction based on such foundations might now be considered as “firmly and definitively settled.” Nobody but a man with a religious reverence for precedents, could have supposed that an ephemeral practice of 40 years' continuance, upon a question of governmental power so important as this, could settle forever the meaning of the fundamental law of a great State. It required 6 centuries of struggle to settle down the constitution of England on the basis of the Great Charter, and no parliamentary precedent of the reigns even of the Plantage nets or the Tudors, was allowed to stand in the way of the progressive movement that culminated in the Revolution of 1688. It is worthy of remark, moreover, that neither of these justly distinguished jurists has inti mated a doubt as to the power of Congress to regulate the duration of the inferior offices in such a way as to take them entirely out of the control of the Executive. Judge Story, on the contrary, observes that “as far as Congress has the power to regulate and delegate the appointment of inferior officers, so far they may prescribe the term of office, the manner in which and the persons by whom the removal as well as the appointment to office shall be made.” (2 Story's Commentaries sec. 1537, citing Mar bury vs. Madison, 1 Cranch, 137, 155.) And again: “If there has been any aberration it will be difficult, perhaps impracticable, now to recall the practice to the correct theory. But at all events it will be a consolation to those who love the Union, and honor a devotion to the patriotic discharge of duty, that in regard to inferior offices, which probably include 90 9 out of the 100, the remedy for any permanent abuse is still within the power of Congress by the simple expedient of requiring the consent of the Senate in such cases.” Ibid., sec. 1544.) And Chancellor Kent in orses this in a note, referring to the frequency of the exercise of this power by President Jackson, as having created serious doubts as to the propriety of the concession by the 1st Congress, and remarking that a high authority had declared it to be in the power of Congress to correct this by placing the appointment of inferior officers in other hands. (1 Kent's Commentaries, 309–11, citing 3 Story, 394–7.) And this is in accordance also with the legislation of the Government on more than one occasion, although it is assumed by those who rest upon the practice, that it has been inva riably the other way. The early case of Mar bury vs. Madison proves this beyond dispute. Marbury was a justice of the peace for this District, appointed by John Adams just before his retirement, under the authority of an act of Congress of 1801, fixing the term at 5 years. President Jefferson withheld the commission after it had been signed and registered. If he could have removed the officer, it would have been idle to stand upon the delivery of the commission, but it was assumed by the court, and conceded on all hands, that he was not removable, except for cause, until the expiration of his term. But even in the case of an office determi nable at pleasure, as that of deputy marshal, an act passed by the very Congress of 1789 itself, not only recognizes and asserts the right to take the power of removal from the President, but to sever it from the appointing power itself, by vesting it in the judges of the circuit and district courts. (Act of 24th September, 1789.) And in a still later case, (act of March 3, 1865, section 12,) it has been provided that where an officer in the military or naval service, who may be dismissed by the authority of the President, shall demand a trial, he shall convene a court martial, and if they shall not award the punishment of dismissal or death, or the court shall not be convened within 6 months, the order of dismissal shall be void; and this notwithstanding the fact, that the punishment by impeachment is confined by the Constitution to civil officers, and therefore, by necessary inference, all others are removable in a different way, and although, too, the President is, by virtue of his office, the Commander in Chief of the Army and Navy of the U.S. To show, moreover, that this was the interpretation given to the legislative action of 1789, and is in accordance with judicial opinion in the States, upon analogous provisions in their own constitutions, it is only necessary to refer to a decision of the supreme court of Pennsylvania, made as early as 1820, and when its judges were unusually eminent, to the effect that the tenure of ministerial offices in general is during pleas ure, unless the law establishing the office orders it otherwise. (Com. ex: relatione vs. Bassier, &c., 5 S. & R., 457.) And now, having, as I think, ascertained and defined the precise extent of the decision supposed to have been made in 1789, let us proceed to look into the argument by which it was sustained, and ascertain what the Constitution itself has to say on this subject. It is agreed, then, on all hands, that the power of removal must reside somewhere, when the term is indefinite. This bill denies it to the President alone, in all cases where the Senate has shared in the appointment; or, in other words, declares that nothing short of the power that makes shall unmake which is but the logical result of the doctrine of the minority in 1789, that the power to remove is included in or but an incident to the power to appoint; a doctrine, which is now sustained, as P shall show hereafter, by the authority of the SCOTUS On this point, however, the Constitution is silent, except so far as it is made a part of the judgment in cases of conviction on impeachment for “treason, bribery, or other high crimes and misdemeanors.” Nobody has ever pretended that it was anywhere expressly conferred but in this single case, where it is lodged exclusively with Congress. If it exists, therefore, at all, it is only by implication or inference. Taking it, however, to rest, as claimed, either upon the i. to appoint, as an inseparable incident thereof, or on the general assignment of executive powers to the President alone, it becomes important to look into the provisions of that instrument which bear upon these 2 subjects. And 1st, it is to be observed, that the constitution nowhere vests the appointing power in the President alone. It authorizes him to nominate, but only by and with the advice and consent of the Senate to appoint, the officers therein described, and “all others that might be established by law.” This, therefore, is the general rule. The exceptions, if they can be so termed, are 1st, that “in cases of vacancy happening during the recess of the Senate, ” and when that body is, of course, in no condition to be consulted, and to cooperate; or, in other words, where an appointmentis impracticable, for the time being, under the rule, the President shall, not appoint, but merely supply the interregnum, or “fill up the vacancy” by a commission which shall only endure “until the end of the next session, ” or until they shall be in a condition to exercise their power of concurrence in or rejection of an appointment; and 2nd ly, that in cases of inferior officers, the Congress may bestow on “the President alone, ” or the heads of depts, or the courts, the privilege of appointing without the advice or consent of the Senate, which is a recognition of the rule, and makes a solemn act of the Legislature necessary to dispense with it even in inferior cases. It would seem, therefore, too clear for dispute, if it has not the force of a self evident proposition, that the framers of the Constitution intended to place an effective check upon the President in this important matter, by denying to him in all cases the right to wield this formidable power alone, except where the accidents of administration might render it temporarily necessary, or the insignificance of the place might make it safe, in the judgment of the Legislature, to intrust it to him from time to time. It is claimed, however, in the absence of any direct authority to appoint, and in the face of the strongest implications to the contrary, that the President may practically defeat the obvious purpose of the framers of the instrument, by d. exercise of the power to remove in the recess, and thereby create a vacancy, which he may fill up without the concurrence of the Senate, or by appointing to an office already full, and thus accomplishing by indirection the very same thing. But what does the Constitution say on the subject? Why, only that “the President shall have the power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions that shall expire at the end of their next session.” The power, then, is not to appoint, but to “fill up.” The vacancy is not one that may be created, but one that may “happen.” And the commission is not one that is indefinite, but one that shall expire, by its own limitation, at the end of the next session, so as to give the President the whole of that session to nominate. Upon this transparent phraseology one would think that there could be no ground left for dispute. The case provided for is that of “all vacancies that may happen.” Hap is but another word for chance. exvi termini, it imports accident or casualty, without any agency on the part of the President in bringing it about. And such is the construction which it has received from the best intellects of the nation. Mr. Hamilton, in his remarks in No. 77 of the Federalist, on the same language precisely, as applied to Senators, describes it as “an express power given in clear and unam biguous terms to fill casual vacancies.” And again, in his letter to James McHenry, ten years afterward, he asserts that they imply casualty, and denote “such offices as, having been once filled, become vacant by accidental circumstances.” And in accordance with this idea, when Mr. Madison, during the recess of 1813, appointed ministers to negotiate the treaty at o Ghent, aquestion made whether it was the case of a vacancy or a new creation, the Senate is reported as having entered its protest against it. Again, on the 20th April, 1822, it was held by the same body, that the President could not create the office of a minister, and make appointments during the recess, it being their understanding that the vacancies provided for were such as occurred from death, resignation, promotion, or removal; that the word “hap pen” had relation to some casualty not provided for by law, and that if the Senate was in session when the office was created and no nomination then made, he could not appoint during the recess, because it was not a vacancy, happening at that time. In many instances where new offices were created a special power had been conferred on this account to fill them during the recess, and it was then said that in no other instances had the President filled such vacant offices without special authority of law. (2 Story's Commentaries, 1559, citing Sergeant on the Constitution;? Executive Journal, 515, 500; 3 Executive Journal, 297.) And this opinion is affirmed by the 2nd section of the act of 9th February, 1863, which provides that no money shall be paid out of the Treasury as salary to any person appointed, during the recess of the Senate, to fill any vacancy in any existing office, which vacancy existed while the Senate was in session, and is required by law to be filled by and with the advice and consent of the Senate, until such appointee shall have been confirmed. And to show, moreover, that the earlier practice had conformed to this theory, may be added the remark of Mr. Calhoun in his report to the Senate in 1835, on the corrupting in fluence of the President's power of removal, that “so long as it was the practice to continue in office those who had i, performed their duties, this patronage, in point of fact, was limited to the mere power of nominating to accidental vacancies, or newly created offices.” It is perfectly obvious, moreover, from the tenure of the commissions required in such cases, that this exceptional provision was only intended to meet the case of an accident occurring at a time when the Senate was not at hand to be consulted. To supply a vacancy is one thing, and a thing easily understood; to create a vacancy is a thing so different, as must have necessitated a different phraseology, and suggested a more stringent rule. Nobody would pretend that a removal, by the usual process, I. the President, while the Senate was in session, was a case of vacancy happening at that time, or indeed any case of vacancy at all. A new nomination approved by it, in a case where the term was not fixed, would operate, no doubt, as a supersedeas, by determining the office, but without making any vacancy whatever; and this I believe is the way in which the thing has been generally done. I do not know that there are any instances wherein a removal has been made in the 1st place, except, it may be, where the office was made expressly determinable at the will of the president. If he may make a vacancy in any case, he may do it in all, divest the Senate of its advisory power, and make the exception the rule. All he has to do is to withhold the appointments so made until the expiration of the session, or, upon rejection of any of his creat ures, recommission them after the adjournment, and thus perpetuate the power in himself, in defiance of the clear intention of the framers of the Constitution. And this he has actually done to such an extent, that if not seasonably checked, the Senate itself will soon have practically ceased to share all that part of the appointing power which it may not already have substantially surrendered by its complaisance. Nor does it seem improbable that this has been the studied purpose in high quarters, in view of the imputed illegitimacy of the body which is now supposed to be “hanging, as it were, on the verge of the Constitution.” The law officer of the Government has just been asked, with special reference, perhaps, to the act of 1863, whether a vacancy happening during the session, is not a vacancy happening during the recess; and he answers in the tra ditional spirit of an AttyGen, with an opinion that blots out of the Constitution the words “that may hitppen during the recess of the Senate, ” by making it entirely in different what may be the causes by which that vacancy is produced, or at what time it may occur. Nay, more. The very commissions now issued will be found to run, not only at “the pleasure of the President, ” where the tenure is indefinite, but even in cases of appointments made during the recess, where the very terms are proscribed by the Constitution itself, are interpolated with the same antirepublican phraseology, in utter disregard of the express provisions of that instrument. To the whole claim, however, of so formi dable a prerogative, it ought to be a sufficient answer: 1st, that the Constitution nowhere confers any such power, except in the cases already stated, and that from this exception, by well settled rules of construction, the inference is a legitimate one, that it was not in tended to be exercised in any other way, in civil cases at all events; and 2nd, that the exception which gives to Congress the authority to vest the appointments to inferior offices in the President alone, is as utterly irreconcilable with the idea that he can remove alone, and without cause, in the case of superior offices, as is the provision for impeachment and trial, with the notion of a summary ejection without any hearing at all. ut, then, it is insisted that this mode of removal would be inconvenient, because the machinery is too elaborate for ordinary use, and would be entirely inadequate to meet the exigencies of a vast and multiplied service, and the many unforeseen contingencies that might necessitate the existence of a jurisdiction more summary and extended; and hence the illogi. " cal inference of a power in the President to remove where the Constitution itself has not " spoken. o I will not stop to examine the argument ab " inconvenienti, even though so great a name as that of Coke may be invoked to show that it " prevails in law, where one construction would be more mischievous than another. It may be inconvenient to impeach in all cases. It was hardly expected, perhaps, that it would be necessary. It may be inconvenient to the President and his southern friends, that he is " not endowed with dictatorial powers, such as he has been claiming and exercising. It may be inconvenient to him that he cannot indulge " the parasites who swarm around him, by the unrestricted use of the guillotine under which so many heads have already fallen. It would be certainly very convenient to him and his southern friends, but very inconvenient to the nation, that he should be allowed to do all the things that this bill is intended to prevent. But all this is only an argument in favor of a " change in the law, or an amendment of the Constitution, which, in the view of the Presi. "dent, is not now amendable, for reasons that would dethrone Congress, and unseat himself. Isit, then, anecessary power? Andifso, why? " Because, it is said, the officer may prove incom. " petent or unfaithful, and the public interests may therefore require his dismissal. Granted that they may. ".follows? That he may remove him? That is a nonsequitur. The result of an admitted necessity, without any constitutional provision to meet it, would seem rather to be that the case was left to be provided for by law, than that a power so dangerous should be raised by implication in the Presi: dent. If there be a necessity, Congress can: provide for it, under its authority “to make all laws which shall be necessary or proper for carrying into execution all powers vested in the Government, or in any dept thereof.” – It is a capital error to suppose that the Executive is endowed with the incidental power to. legislate for constitutional defects which touch his office. To claim that it belongs to him, in virtue thereof, is no more or less than the asser.tion of adictatorial power to the extent of the very terms used by the Romans in conferring it. If the President is to do everything which in his opinion the public interests may require, then every defect in the Constitution or laws is to be supplied, and every disproportion sym:, metrized by him. And this, it seems, is the opinion of the present law adviser of the Gov. ernment, as expressed in his recent answer to the inquiry as to the power of the President to fill vacancies occurring during the session of the Senate. It is with him a necessary power, and though it may be so wielded, as he admits, as to oust the jurisdiction of the Senate entirely, he marches up to the reductio adabsurdum with a courage that might have graced a better cause, and thinks to put us off with the answer, that it is no objection to a power that it may be abused. If it had been an express power, the argument would have been a good one. Where. however, it is only implied, as here, a well trained lawyer, who could forget his office in his profession, would have said at once that the possibility of such an abuse was a conclusive argument against the existence of the power. It would be asking, perhaps, too much, to expect that an officer who holds his life at the pleasure of the President should be found standing in the way of the prerogative in times like these. When was it ever heard that an AttyGen in High Prerogative times had faltered in the support of the most extravagant of the pretensions of the Crown? How many judges have proved capable of emulating the sturdy virtue of Sir Edward Coke, before the Act of Settlement that made their tenure inde. pendent of the royal will? Possibly there are men here who are prepared to indorse such slavish views. Every traitor in the South, and every Democrat in the North who sympathized with him, would doubtless agree to them, as they have agreed sogenerally, that the President might organize State governments, and ordain State constitutions, while we are denied the humble privilege of suggesting amendments in the interests of liberty, and denounced as no better than “tinkers” I was going to say tailors by the minions, and upstarts, the pampered and insolent menials, who lick the royal hand, and look up beseechingly for the “bread and butter” that are flung contemptuously into their hungry jaws. In default, however, of the arguments from inconvenience and necessity, is there anything in the suggestion that this power of removal is a part or incident of the power of appointment? If there were, it would not the case, because the appointing power is nowhere lodged in the President alone the power to act dur:ing the recess being a mere authority to fill top vacancies adinterim and the power to remove, on this argument, could only be exercisable in conjunction with the Senate. But the SCOTUS has solemnly decided that there is, and has on this point affirmed the opinion of the minority in the Congress of 1789. The case Er relatione Heenan (13 Peters, 230,) which was that of the renoval, by the presiding judge, of a clerk of the district court of Louisiana, distinctly rules that, in the absence of all constitutional provision, or statutory regulation, it is a sound and necessary rule to consider the power of removal as incident to the power of appointment. The removal there was by the judge who appointed. Upon the theory of the majority the power would have resulted to the President. And here I might rest the argument with those who stand upon authority, and are willing to accept a judicial opinion in the place of a legislative precedent. but assuming that this power is but an incident, and so belonging to the Senate, in conjunction with the President, it is not only insisted that where no tenure is prescribed, the officer must necessarily hold at the will of the appointing power, but assumed that no other tenure is admissible. It is not necessary, however, that the tenure should be indefinite; and it is perhaps not safe, and not strictly in harmony with the spirit of our institutions, to leave it so, if the power claimed resides with the President, and may be exercised without cause, or without other reason than the want of personal subserviency to himself. The Constitution looks to the creation and establishment of all offices under it by the act of the lawmaking power, and in no case but that of the judges, and appointments made to fill up vacancies adinterim, undertakes to [. ". the tenure by which they are to be eld. But the power to create an office involves, of course, the power to determine upon its duration and duties, to say what it shall be and when it shall expire; the power, in short, to make all laws which may, in the judgment of cons, be necessary and proper for its regulation, including the period of service and the causes of. I know no limitation on the power of Congress here, except in the assignment to the President, in all cases but those of inferior offices, of the right to nominate, and, by and with the advice and consent of the senate, to appoint. Whenever an office is created of the superior class, that power devolves, under the Constitution, upon i and cannot, of course, be taken away. But with this exception only, and the cases of judges, and of appointments to fill vacancies, their jurisdiction over the subject is absolute. If there be anything to restrain or limit it beyond this, it behooves those who so assert to show where it is to be found. It is a fair inference from the provisions just recited, that the framers of the Constitution intended to leave the question of official tenure in all other than the excepted cases to congressional regulation. To suppose that they designed it to be indefinite, and determinable at the mere will of the appointing power, and without responsibility for abuse, even though that power were understood to comprehend the Senate, would be a violent presumption indeed. To conclude that they intended to make it determinable at the mere will of the President, either with or without cause, in view of the extreme jealousy with which that deonent was regarded, is absolutely incred lore. I take it, therefore, that Congress may dispose of this question, even in the case of the superior offices, by defining the tenure and changing the character of the estate, so as, in effect, to substitute its own will for that of the President, by giving to it the form of law, in accordance with the principles on which this Government is founded. An executive will is only admissible in the case of a despotic Government, of which it is the very essence and expression. The “sic colo, sic jubeo; stet proratione voluntas, ” is not the maxim for a republican State. But there is another ground the one as sumed by Madison, and perhaps the only one on which these royal pretensions have ever been plausibly defended and that is, that the exercise of the power of removal, the same being in its very nature an executive function, falls necessarily within the meaning of that clause of the Constitution which declares that “the executive power shall be vested in a POTUS;” that all executive powers not denied or lodged elsewhere, are thereby vested in the President; and that every participation of the Senate is an exception to a general principle, and ought to be taken strictly. This argument assumes, in the 1st place, that the power of removal is essentially an executive power, as I understand it to be just now asserted by the AttyGen to be. I know no reason to warrant the assumption." Whether it be so or not, will depend, I suppose, on what the Constitution makes it. There is nothing in the act itself, that decides it to be a ministerial function only. It involves the exercise of a discretion that does not belong to ministerial officers. So far as the Constitution makes provision for its exercise, it gives it a judicial character entirely. True to the idea on which our institutions rest, it leaves nothing here to the mere will of the Executive. No man's fortune is made dependent on a caprice that would make him a slave. If an officer is to be removed, it declares in what manner it shall be done, and that it shall be only on sufficient cause, and with the orivilege of an impartial hearing, which this is intended to secure. To infer, as seems to be imported by the argument, that it is an executive function, merely because the officer who is the subject of it may happen to be an executive officer, would he the most inconsequent of conclusions. If it were true, then the election or removal of a President, or a congressman, or a judge, would be an executive, legislative, or judicial act, according to the uality of the subject with which it had to } and without reference to the manner in which the act might be performed. It is the manner of performance, however, that is to determine the character of the act. It is a possible case, I suppose, that a man may be legislated out of office, by repealing the law creating it, or making the tenure dependent on the will of Congress. Clearly a circuit or a district judge may remove the clerk whom he has appointed, because that power is held to bean incident of the power to appoint, wherever the tenure is indefinite; but nobody has ever claimed that the President can do it, or would think of calling the act an executive one. If Mr. Madison and the AttyGen were right, however, in claiming it as an essentially executive function, the decision in exparte Heenan was erroneous, and the power belonged to the President alone. If, however, the assumption, that the power of appointment or removal was a purely executive one, was without warrant, as I think it was, there is an end, of course, to the argument based upon it, that the participation of the Senate was an exception to a general principle, and ought, therefore, to be strictly construed. But even though the function were, in its essence, an executive one, it does not then follow that it was conferred on the President, by the clause which vests the executive power in him, unless it can be held that all power that would be regarded as executive in England, passed by the general grant as it is claimed to be whether it was embraced within the scope and purview of the Constitution or not. Mr. Madison insisted that the clause in question carried everything that was not either expressly denied, or lodged in other hands. If it did, there is no prerogative of the British Crown that might not be claimed for him, because there are no negative words to restrain his powers. We must look, however, to the Constitution itself in order to interpret the intent of the grant if it is to be so considered. It is bad logic to infer that anything passes by it that is not to be found in the Constitution at all, because that would enlarge the grant be yond the purview of the instrument. If he had qualified his statement, by saying that it carried everything within the scope and spirit of the Constitution, that was purely executive, and not denied expressly or by implication, he would have conformed to a rule of construction, that in the search for truth is universally recognized, and absolutely essential to light up the devious passages and darkened chambers, that so often perplex the inquirer in the exploration of the meaning of the lawgiver. There was no more reason for excepting an express denial than an implied one, and no excuse for the omission when he was arguing the case of an implied or inferential power. But to infer the existence of that power from language so, general, without reference to the context, or the subject matter, and in the face of an express provision pointing out the method of impeachment, is something in the way of argument, that not even the deservedly great reputation of Mr. Madison himself can commend to the favorable judgment of a disciplined logician of the present day. seems to have been considered, however, that the power of removal was conferred by a sort of necessary implication, because the President is the responsible head to whom all others are subordinate, and bound by his oath for the faithful execution of the law, and that the power was incidental to the duty, and might be requi site for its fulfillment. Whether this much talked of responsibility of the President amounts to anything in prac tice, or can be held to go beyond an honest endeavor on his part to see that the laws are faithfully executed, so far as he is endowed with the means of enforcing them, is more than can be safely assumed, and more, I think, than any friend of the Executive would care to affirm. It does not, however, follow, exnecessitate, that although there were a failure of duty on the part of the officer, the power of removal would then belong to him either qua Executive, or as general residuary legatee or trustee under the Constitution. It is neither essential nor desirable that the officer should be responsible to him, or subject to his will. This would be to turn the faces of the public servants in the direction of the President, just as the fire wor shiper salutes the opening glories of the king of day, or the sun flower is supposed to “swing the circle” of the horizon in adoration of its God. There is a responsibility to the law, as there is a way of removal indicated by it, which is in nowise dependent on the executive will, that holds the officer to the performance of his duties, and is the only practical security for those who are interested in it. Any other is more imaginary than real, so long as it is enough for the President himself to say that he is irre sponsible because he is without power in the premises. He would be equally so in effect with all the power that he claims. He may say that he wants more than the Constitution intended to give him, that it is our interest that he should be gratified, and our necessity that he should be enabled to do our work; and a facile AttyGen, holding his own place by what he regards as the necessary tenure of executive pleasure, will be always found to attribute to ". all he covets, upon the convenient plea of an overruling public necessity. He will do this naturally, because he sees no power in the state, except the one. under whose shadow he reposes. If he can: not torture the Constitution into a grant of it, he will raise an incidental authority out of a supposed necessity, for the fulfillment of a general duty. The framers of the Constitution supposed that it might require an express grant even to the legislative dept, to make such laws as might be necessary and proper for carrying into execution all the powers wested in the Government. But they did not stop here. They looked to legislation only to supply the needs of the other depts, and provided them an auxiliary in Congress to aid them in the execution of their duties. They have done away, therefore, with the necessity of a resort to incidental powers in the Executive. If there is a casus omissus in the law it is for Qongress to apply, the remedy. But it required no constitutional provision for this purpose. Every Government has the in herent, because necessary, power of regulatin the tenure and conduct of its own officers, an displacing them at its own will, except where it is expressly forbidden by its fundamental law. iP. law is silent or defective it imports no surrender of so important a function, and no lapse to the executive magistrate. But what is there at last in the clause that vests the executive power in the President? Nothing more than in the corresponding clauses that vest the legislative power in Congress, and the judicial in the courts. In any sense, it is but a distribution or assignment to each of these depts, of its appropriate share of the Fo actually conferred on the Government By the Constitution. To say that this is in the nature of a grant that passes all power that may in any sense be regarded as executive, whether conferred by that instrument or not, is something in the way of construction, that can find no more favor with the statesman than with the lawver. everything depends upon a single will, all powers may be said to be executive, because there is no law but that will, which judges and executes itself. It will hardly be contended that the clause in question was intended to make the will of the Executive so large a part of the administration of this Government. Is it true, then, that upon such a case as this, a mere acquiescence, or even a vicious practice of 3 quarters of a century, is to can onize a doctrine that is so manifestly in conflict with the spirit of our Government, and the very letter of our Constitution? I have asked on another occasion I now repeat the question what is a century in the life of a State? What would be thought, moreover, of a constitutional amendment, or a declaratory law, broadly enun ciating and establishing the doctrine, that the President may appoint and remove all officers whose tenure is not made by the Constitution dependent on good behavior, of his own unassisted volition, and without regard to the merits or defaults of the objects of his bounty or his displeasure? Would Congress or the people agree to such a proposition? And yet this is precisely what is now claimed for him, and what he is now actually doing, on the hypothesis of a Cabinet minister, that the offices of the Government, as the rightful appanage of the Crown, are his property, and those who fill them were intended to be the mere creatures of his will. When it was suggested in the debate of 1789 that this enormous power might be thus abused to the destruction of our liberties, the answer was, that this was impossible, and would constitute a clearly impeachable offense, if done, and upon this point there was apparently no divided In an absolute monarchy, where sentiment. Since that time, and especially after the lapse of the 1st 40 years, it is not to be denied that the patronage of the Government has more than once been brought in conflict with the freedom, not only of elections, but of opinion. It was reserved for us to hear it publicly and defiantly declared, for the 1st time In Our. to be the settled intention of the Executive to use theowe gave him ay, to foot the objects of his predecessor's trust, as he “would spurn a stranger cur, over his threshold” for the purpose of overruling the judgment of Congress, and bending the whole nation to his will; and the results of the elections in Philadelphia and NewYork, so happily overruled by the healthful influences of the country, show that it was no idle menace on his part. But what avails either the supervisory power of the Senate, or the remedy by impeachment, which was relied on by the Congress of 1789, as against a high delinquent who holds the spoils of a nation in his hands? Has the constitutional brake been put down even where it might have been? And if it were, how is it to help us, when the jurisdiction of the Senate is ousted by the manyingenious devices of tyranny, that have found a ready support in the opinions of the law officers of the Government? May it not be said with truth, and without offense, that the Senate itself has tacitly countenanced, if not approved, removals for opinion's sake the very offense that would have warranted an impeachment, in the judgment of the Congress of 1789 by confirming nominations made obviously on no other grounds? What, then, are we to hope from the slow and doubtful and, perhaps, obnoxious process of impeachment, where the criminal is a President, and a vote of 2/3rds is required to convict? If you s would impeach successfully, you must stri him of his power over the fortunes of the citizen. No glittering bauble must be allowed to dazzle the vision, or tempt the cupidity or the ambition of either the prosecutor or the judge. No army of stipendiaries must be allowed to surround his person and depend upon his will. Invested with all these imperial prerogatives, and backed by the power of the sword, another President, with more discretion and wiser counselors, may threaten the public peace, and threaten it more successfully, by flinging himself into the arena, with an array more formi dable than either the Household Swiss or the incipient Praetorian guard who lately mustered On ". royal summons, and disputing with you the mastery of the empire. Have not the people been already told by the Executive himself that we were too lavish of our confidence, and that they owed it to his forbearance and humility alone that he had not accepted the crown, and endued himself in the purple that we had offered him? Have they not been asked by his chief adviser whether they would have him for President or King? Reduced to his constitutional nakedness, he is still formidable enough, but not so formidable as to endanger our liberties. What is he without the use of the unrestricted patronage that he commands? But for that, is it within the range of probability that any Executive would have ventured to insult and defy the loyal peole of the nation, by denouncing its high legisative council the constitutional depositary of its will as a body of usurpers “traitors on the other end of the line” in actual rebellion against the South, and proclaiming that it was to his self denial only that they were indebted for the preservation of their liberties? But for the prestige which it gives him, who would have thought it necessary to inquire whether the President would recognize the next congress, or submit to the public will, or favor the adoption of the constitutional amendment by the rebel States? If he were indeed the “humble individual” we have so often heard of, who would send, or who would listen to the daily bulletins announcing royal conferences upon the settlement of the nation, or imperial re; solves upon the great questions of war and peace with neighboring States? Without the power to reward his favorites, by putting a gold chain about their necks, and lifting them to the highest places in the kingdom, where was that spoil engendered and spoil inspired array that formidable shape “If shape it might be called that shapehad none Distinguishable in member, joint, or limb, Or substancemightbocailed that shadows&emed" “the National Union party?” Who is there, in that case, of aff the menials who have reechoed the classic objurgations with which the representative body of this nation has been assailed, that would have been so: poor to do their author reverence? What else to than the abject servility that flatters and ini. toxicates unless it were the Providence that sent out Pharaoh with his captains in the pursuit of the fugitives of Israel could have in spired the royal progress and the royal speech, and launched its victim on that crusade which ended so unhappily for himself? May I not ask, “Upon what other meat has this our Caesar fed that he is grown so great?” Pass this bill,, and the bloated and exaggerated power that now “bestrides this i. like a Colossus, ” and bids us all “to hide between its legs and find ourselves dishonorable graves, ” will sink down at once into its constitutional and healthful proportions. Pass this bill, and you may dispense with the dead letter of the impeach;ing power, because no future President will then presume either to depose, or ignore the legislative authority of this nation, or to refuse obedience to the high behests of the people, as o through their Representatives. Heed not a vicious precedent, as big with ruin as the primal fault, the plucking of the fruit, “whose mortal taste brought death into. the world.” What though the Fathers mayhave erred, as did the 1st? Their fault may be re. paired. It is of no consequence to us what the Congress of 1789 may have decided, or what any of their successors may have acquiesced in, if they were wrong, and the life of the nation has been imperiled by their error. The o public interests, the safety of the State, the “ sentiments of the people, all demand some measure of the ]". this bill proposes; and this Congress will fail in its duty, and dis. appoint the just expectations of its constituents, if it adjourns without providing it. Reject it, and the golden opportunity the ebb of the tide that has gone . under the earthquake o shock of the ballot box, and now invites you to build up a dike that the returning waters shall never overleap is gone, perhaps, for ever. It is not often that a President comes in with that kind of courage which is required for the betrayal of his party and his country; or the abandonment of the principles and ledges on which he was cook It E. has never before and perhaps never will again that the party so betrayed has been honest enough, to fling the offices of the Government behind it, like the temptation in the wilderness, and strong enough, and courageous enough; to grapple successfully with the hydra it hai unwittingly engendered. The people are now here in their unclouded power. have taken the Government into a their own hands. They have rebuked and trodden down the arrogant pretensions of the Executive. They have stricken the veto dead in his hands. They have declared that he shall not stand at your doors to arrest your legisla.tion, as he has publicly threatened that he would do. They have degraded him, for the time being, from your associate in council, to the mere minister of your will. It is their high and irreversible decree, that the public servant who presumed to deny their jurisdiction and yours, over the most momentous question o your history, shall stand aside until you have disposed of it, and then execute your judgment in good faith, whether it be agreeablf to him or not. They have now reviewed an reaffirmed their decision of 1864, and again instructed you to enact such laws as you may think proper, and to see that they are honestly enforced, or that the impediment is renoted. Pass this bill, as the 1st in the order of necessity, and the residue of the work will be of easy accomplishment. Reject it, and posterity will grieve that the courage which had conquered treason twice was not 2nded by the spirit that might have shorn its locks, and bound it in everlasting chains. We make history today. The classic Muse who looks down from her pedestal on this Chamber, stands ready, with uplifted style, to write the chapter that is to record the doings of this session. It behooves us to see that the judgment of a nation is not made void by the faint heartedness of its Representatives. There is no time now for dalliance with the power that we have conquered. No gentle speech, “no candy courtesies, ” no dull oblivion of the pregnant past, befits the crisis that is on us now. We have just trodden the wine press of Revolution, to encounter at its closing doors the bloodier form of Anarchy, while the untamed fiends of the rebellion, their appetites inflamed and their hands dripping with the blood of the martyrs, laughed as none but the damned could laugh at the rising vision, but dimly foreshadowed by the StBartholomews of Memphis and NewOrleans, of the opening of another seal, which should turn our rivers into blood, and visit upon us and our children more than apocalyptic woes. Over that precipice of ruin this nation has hung trembling for the last few months. The virtue and intelligence of a free people, inspired and directed by the providence of God, have bridged the fathomless abyss that yawned before us, and saved us from the horrors of this 2nd death. We can now look back and measure the danger, and detect its source.. We know its cause. Ezecutive usurpation despotic will encouraged and reenforced by the mnlimited command of all the offices of the Republic, and all the corrupting influences which they can employ, is written in flaming characters upon every rock that has threatened us with shipwreck. This giant power must be abridged if our peace is to be maintained, and our liberties made sure. The time is now to put a hook in the jaws of this leviathan that has tempested the waters, and moor him to his proper place under the Constitution. If we fail, the evil will go on swelling in volume, and accumulating a resistless momentum as it flows, until the one man power, become all in all, enthroned in solitary state, like some volcanic peak, shall tower aloft, uncontrollable and supreme, over a nation of slaves. Before the conclusion of the above remarks, Mr. WILLIAMs's hour having expired, on motion of Mr. SHELLABARGER, by unanimous consent, his time was extended.