Mr. JOHNSON. Mr. President, before the question is taken I propose to submit to the Senate some remarks in answer to what was stated yesterday by the Senfrom NewJersey [Mr. FRELINGHUYsen] and the Senfrom Oregon, [Mr. WILLIAMs] The Senfrom NewJersey, if I understood him aright, referred to a passage from Story's Commenta ries, which he considered as showing that the 'power vested in the Executive of appointing to and removing from office was a very dangerous one in a Government like ours, and he thought that it was proper to call the attention of the Senate and the public to the opinion of Mr. Justice Story, because the POTUS had deemed it proper to cite from the same commentator upon the Constitution several agraphs, and also from a number ofowritten by Mr. madison, and from Kent's Commentaries, for the purpose of showing that in a Government like ours the tendency to the usurpation of power? was more strongly exhibited in the legislative dept than in either of the other depts into which it is divided. Whether the President was right or was not right in referring to these passages upon the occasion of his veto of the District suffrage bill is a matter about which there may well be differences of opinion. My own impression, as I stated a few days since, was that it would have been better in a message relating to that particular bill to omit any discussion of the question whether the abuse or usurpation of power was more to be apprehended from the legislative than from the executive dept of the Government. I did not, however, understand my friendfrom NewJersey as meaning in the reference which he made to other passages in Story to deny that there does exist a greater tendency to abuse or usurpation in the The chair legislative dept than in the executive or judicial; and still less did I understand him as referring to the passages which he read to the Senate for the purpose of showing that there was any inconsistency between the doctrime of the commentator referred to by the President and that to which he called the attention of the Senate; and there is none. Mr. Justice Story, as well as the author of the number of referred to, was considering the theory of such a popular Gowernment as we have, divided into the 3 branches which all the writers upon political law tell us it should be divided into in order to secure freedom the theory as to the tendency of each of those branches respectively to usurp power; and they all of them came to the conclusion Mr. Justice Story and Chancellor Kent, as well as Mr. Madison, in the Federalist that the danger of abuse or of usurpation of power was more to be apprehended from the slative dept than from the executive. I could add nothing to the reasoning of the men to whom I have referred to o good that opinion. I think their reasoning is controlling, and I do not understand that my friendfrom NewJersey disputes it; but he says, and says properly, as everybody who has written on: the Constitution has said from the beginning of the Government, and as was said while the Constitution was under consideration in the Convention, that the President may abuse some of the powers with which he is clothed. There can be no doubt about that; and the particular power which it is imagined he may abuse and may have a disposition to abuse is the power to appoint officers, and the power which has been heretofore recognized to remove, without the consent of the Senate, officers who have been appointed by and with the advice and consent of the Senate. As far as relates to the power of appointment, my friendfrom NewJersey has net failed to consider that that may be abused by the Senate as well as by the President. The power of appointment of all constitutional officers, that is, those whose appointments are specially provided for by the Constitution, is not in the President alone. He can only exercise it (except in the case of a vacancy during the recess) with the approval of the Senate. The Senate, therefore, are just as much the appointing power as is the President, in relation to all such officers. If, then, the possession of such a power carries with it a tendency to abuse in its exercise, that tendency is just as greatin the Senate as in the Executive. The reasoning in support of the proposition that there is danger in clothing the President with the power of appointment is that he may use it for the purpose of rewarding favorites and continuing party ascendency to accomplish his reelection. That is all true; but it requires no particular foresight to see that each one of those motives may operate upon the Senate, if not collectively, individually. In a Government like ours parties must exist; the Senate therefore must necessarily be divide into parties, formed because of the adoption of different political principles either in relation to the construction of the Constitution, or in relation to matters of mere expediency. How the Constitution is to be construed as regards the powers which it may be supposed to contain, and how the polo which may be granted with the assent of all are to be exercised, are matters, about which there will be differences of.And that the factis so is illustrated by the position of the Senate now, and has been from the commencement of the Government to the present time. There are now in the senate but very few who concur in what has been called “the policy” of the President, which was neither more nor less than the policy of his immediate predecessor, in the steps which have been taken to restore into the Union for all purposes the States which attempted to escape from it. A large majority of the Senate are of a different opinion, and they think that that is a subject vital to the interests and to the safety of the U.S. Now, what is the purpose of this bill?. The President, it is said, has removed officers and appointed others in their stead because the 1st were adverse to his policy and the last are not; and it is said that he has been governed by the same motives in appointing to offices which have become vacant without the exercise by him of his power of removal. Their names are sent here, and what says this bill? The Senate, supposing that under the administration of his immediate predecessor nearly all the offices of the Government were held by men who favor what is termed the congressional as distinguished from executive if the President removes men of that escription we will not only not confirm those whom he appoints to take their places, but if he removes and appoints, as successors, those who have been nominated and rejected by the Senate they shall not receive any salary, and every officer of the Government through whose hands the money is to pass from the Treasury in the payment of the obligation of the government who pays the salary to such, a man is to be punished criminally. That is this bill. Why is that? Why does the Senate desire to take to itself that power? Why does the Senate charge as against the President an abuse of the power of appointment, founded upon the fact that he appoints those who concur with him instead of those who concur with Congress and differ from him? It is only because the Senate think proper to exercise the power of appointment which is in them to attain some political end or some party end, and to secure the continuance in power of the political party in the country to [. which they. And if my friendfrom NewJersey would, if he has not already done so, recur to what has been said by some of the lights who carried the Government through in the beginning of its existence, he would see that there is such danger to be apprehended from the conduct of the Senate in this particular as from the conduct of the President. In this connection I wish to read from a letter written by the elder Adams to Mr. Sherman, a member of the Convention from Connecticut, in reply to one which he had received from that distinguished man, stating that he thought there would be very great danger to be apprehended from vesting the power of appointment in the president alone, and insisting upon it that there should be associated with him either the senate or some other tribunal by way of a check, so as to guard against the abuse into which he might fall. Mr. Adams, after admitting that the President might through ambition exercise the power of pat which the sole authority would give him, if the sole authority was vested in him, as he thought it should be, objected to associating the Senate with him, and used these words: “A Senator of great influence will be naturally Wis and desirous of increasing his influence. Will he not be under a temptation to use his influence with the President as well as his brother Senators to appoint persons to office in the several States who will exert themselves in elections to get out his pemies or 9pposers, both in Senate, and HoRep, and to get in his friends, per his instruments?” There are several other passages in this letter which are full of instruction, and were in tended by way of warning to members of the Convention. It is published in Pitkin’s History. but I read it from the 2nd volume of the last edition of Story on the Constitution, page 394, where the greater part of the letter will be found. It does not apply to us, I know, for we have not any ambition; we do not want to get enemies out of office; but if Mr. Adams is right it may be in the future, though not in the present, that each individual Senator of those constituting the majority may be very anxious to keep his enemies out and to get his friends in; of course Mr. Adams meant political ene mies and political friends, and with a view to. both results a Senator may be very anxious to have appointed to office only his own friends, who will minister to his own pur. poses, or, to state it in the stronger language of Mr. Adams, who may be his mere instruments to serve the purposes of his ambition. The whole, then, results in this: that the tend ency to abuse of the appointing power, as that appointing power now exists, is just as great in the Senate as it is in the President. That abuse may be caused precisely by the same causes which may originate the abuse on the bart of the Executive.. In the beginning of the government, as we all know, the power was aringly exercised. In the debate of 1789 Mr. Madison admitted that the power of removal might be abused, and that to remove without good cause (that good cause, as he said, consisting only in the want of competency or faithfulness on the part of the officer) would be a good reason for impeachment; but that ioctrine has fallen–I suppose, some of my friends will say in the progress of liberty. general Washington turned out very few, and appointed in no case except upon a conviction of the fitness of the particular person appointed. Of those who immediately.?i.Mr. Adams turned out almost as few; Mr. Jeffer son rather more, but still very few; and such continued to be the conduct of the Executive until the period of General Jackson's adminis tration; but up to that time nobody doubted that the President had a right to remove, whether the officer was appointed by himself alone or by and with the advice and consent of the Senate. The doctrine was received as one settled from 1789 down to the period when General Jackson assumed the presidential office. We know how he came into it. He was one of the 3 returned to the HoRep in 1828, when there was no person elected by the people, receiving a majority of the electoral votes; and in that contest Mr. Adams received the P.I. vote of the House under circumstances which caused almost a convulsion in the U.S. He was voted for by Mr. Clay, of Kentucky, although as it was said, and I suppose correctly said, if the question had been submitted to the peole of Kentucky, as between Mr. Adams and GeneralJackson, General Jackson would have received 90 votes out of every 100. But Mr. Clay, in the discharge of a which he thought he owed to the public– and nobody who knew him as well as I knew him could doubt the purity of his purpose exercised the power with which the Constitution clothed him, and gave his vote for Mr. Adams. General Jackson was elected at the succeeding election by the people and reelected. e had a stronghold upon the people. Under his command the war of 1812 had terminated in a blaze of military glory. The result of his great battle was then unexampled and has never been exampled since I mean in relation to the disparity between the killed and wounded on each side. That gave him a deep seat in the hearts of the American peoF and they justified almost everything that e was disposed to do or did. And how did he administer this power? It is stated in a note, which I have no doubt is perfectly authentic in its facts, to be found at page 404 of the same volume of Story and the same edition before referred to, that he removed 664 officers. The most of them were removed before he was reelected. Who found fault with him? His political opponents found fault with him, not upon the ground that he had not the power to remove, but upon the ground that it was an abuse of the power. He went before the peole a 2nd time, and he was reelected by an increased majority. The people, therefore, according to the doctrine which says that the people when they decide in favor of a President who has been before in office settle finally what the true construction of the Constitution is and what the true policy of the Government is, deeided in that instance that the true construction of the Constitution in this particular is that the President is clothed with the power to remove, and that the true policy is to exercise that power, earrying out the doctrine announced in this Chamber by a very distinguished son of NewYork, afterward SecyWar and SecyState, equally distinguished in both characters, that “to the victors belong the spoils, ” a thischievous doctrine, in my opinion, as a political doctrine looking to the true interests of the country. But nobody then doubted or ventured to question General Jack son's authority to make those removals; and the bill upon your table, Mr. President, admits that the power is necessary; for what difference is there, so far as relates to the power, between suspending an officer for a time and taking from him the salary attached to his office during the whole period for which he is suspended and removing him altogether? That suspension is provided for by this bill, so that the friends of this measure including, of course, my friendfrom Oregon–admit by the very bill itself that the true interest of the country requires that there should be vested somewhere an authority to get rid of an in competent officer and o it should be vested during the recess in the President. Now, I have said all that I propose to say in regard to the remarks submitted by my friendfrom NewJersey; and I have next something to say respecting what fell from the Senfrom Oregon. In the 1st place, that honorable Senator assails the authority of Mr. madison upon these grounds, which he supposes he has made good: 1st, that it stands in opposition to the authority of General Hamilton, and 2nd ly, to the: of the Supreme Court. It is true that as far as relates to General Hamilton, in the number of the Federalist to which the Senator referred, it was stated by that very distinguished man that the power to remove being incident to the power to appoint, and the power to appoint being vested in the President and Senate conjointly, the power to remove could only be exercised conjointly. Now, I speak from recollection, but I am sure it is a recollection which does not fail me, when I say that, after General Hamilton had been in the Government as SecyTreasury and had been an anxious spectator and a student of the measures adopted by the Government from time to time, engaged in all the great political controversies that ensued even after he ceased to be the SecyTreasury of the U.S., he changed that opinion. He saw that the practical working of the Government demanded that such a power should be vested in the President if the Senate was not in session. He yielded to the reasoning of Mr. Madison, and he not only yielded to the reasoning of Mr. Madison, but yielded to the for. tification of that reasoning which experience after the power was held to exist, demonstrate to be the true policy of the Government and the true construction of the Constitution. I oft leave to say to my friendfrom Oregon, with all respect, that he has entirely misapprehended the cases in the Supreme Court to he referred. He 1st cited the case of Mar bury vs. Madison, reported in 7 Cranch, which I understood him to say decided that it was not in the power of the President to remove. There is no such doctrine in that case. Just at the close of the Adminstration of Mr. Adams, he having appointed justices of DistCol under the peace for the a law which limited their services to 4 years and required the appointments to be passed upon by the Senate, and the Senate having confirmed the particular nominations, among others that of o. Mr. Adams signed the commission and sent it to the State Dept, and there it was found when Mr. Madison became the SecyState, as he did upon the inauguration of Mr. Jefferson as President. Marbury applied to the SCOTUS for a mandamus against Mr. Madison to compet him to deliver to him that commission. There were 2 questions before the court: the 1st was whether the court had power to issue a mandamus in such a case as that. The act of 1789 gives the Supreme Court only the authority to issue that writ and the other writs which itmentions when they become necessary to the exercise of their own jurisdiction, and that is generally an appellate jurisdiction their original jurisdiction is limited to a very small class of cases cases between the States, cases affecting foreign ministers and embassadors. The court went beyond the mere question of their power to issue a mandamus in that case, and for so doing were not censured as the Supreme Court in modern days has been; I mean the judges who decided the case of Dred Scott upon the ground that the immediate question decided by them was not necessary to be decided in order to dispose of that case. Chief Justice Marshall, speaking for the whole court, enters into a labored argument, able as a matter of course, because he never labored in vain, for the purpose of proving that the office was vested in Marbury and that he was entitled to his commission; but concluded the opinion in a few sentences by stating that the court had no juris diction under which they could grant him redress in that form or perhaps in any form; certainly not in that form. The opinion in that case has never been assailed by either lawyer or judge upon the ground that that part of it was extra judicial, and yet it was just as extra judicial as was the opinion in the Dred Scott case. Mar shall had been baptized in the blood of the Revolution; he had served his country as dip lonmatist and as SecyState; he had illustrated the Constitution in judgments that challenged the admiration of the whole country; and no one ventured to assert, as against an officer of that description, that any improper motive, o desire to trench upon the legitimate power of the Executive, entered at all into the consideration of that judgment. But, says my brother and friendfrom Oregon, that case decided that the President had no right to remove. Surely that is an entire oThe Constitution gives to the President the authority to appoint, by and with the advice and consent of the Senate, to certain high offices, but gives to Congress the power to vest the appointment and to give the removal of inferior officers to anybody they think proper; and these justices of the peace were inferior and not high officers within the meaning of those 2 terms in the Constitution. Congress, therefore, by providing that such an officer should hold his commission for 4 years, removed the officer from the power of removal of the President, as they could have taken from him the power to appoint. Nobody doubts that if they were inferior officers, as they were, Congress might have given the power to appoint those officers to the peopleof the district by election, or to any individual that they might think proper, or to any tribunal other than the executive dept of the Government. They had a right, although they thought proper to give it to the President himself, to provide that it should endure for 4 years as against any such power of removal. That is all the case decided upon that question. My friend supposes that Mr. Justice Mc Lean, in the case in 17 Howard of the U.S. vs. Guthrie, to which he referred us, held a different doctrine. That also is an error into which the gentleman has fallen. The then AttyGen of the U.S. maintained that what was done in that case was properly done, because the President had the authority to remove a judge of a Territory, and having removed the judge the salary attached to the office failed as a matter of course as far as he was concerned. The court in deciding it, however, say that that question is not before them, and it is not necessary therefore to decide it. The question before them was whether they could, in the case of a man damus which might be applied for }. an officer to get his salary, enter into the Treasury by judicial process and command the officers of the Treasury to pay the amountclaimed. They said not, because that would be to administer the Treasury Dept. If the Supreme Court had that authority any other court of the U.S. had it; and it would be therefore to open the doors of the Treasury to every man who fancied that he was entitled to be paid money by the Government. It would be to convert the judges of the several courts into Secretaries of the Treasury. Now, what said Mr. Chief Justice McLean? What had been done in that case was done by Mr. Fillmore, and it is a striking case to show how universal was the opinion that the authority to remove was in the President. The case then before the court was the case of the removal of a territorial judge. Mr. Justice Mc Lean thought and I cannot add to the authority of his name by saying that in my judgment he thought correctly that however true it was, for he does not deny that it is a settled question that the President has the power to remove, a judicial officer is not within this power.