AN‘APPEAL

FROM TPIE

NEW TO TEE OEEWEIGS,

IN CONSEQUENCE op
THE sENATEwso0UEsE,
AND PARTICULARLY up
MR. WEB_STER’S SPEECH
*IJ“PON

'I‘I~IE EXECUTIVE PATRONAG~E BILL.

By A WI-IIG OF T1~1E~oL1:) SCHOOL.

VI

“ our curvml«;~,xim'1 1:4 z.-xtmh, tlmt we um pullml with c.mjoymm11E., n_m.1 b51,iH1[ll?.L1L(~}(.1 with harm 5

t}u:u:. Wu hmzouue ‘l(‘.‘.:~‘{~~‘. mm:-aihlcia to a Imag 1'uimsu::é:.~s«;:t1 l)mm'I"1t., i'ru1u the very c.i1'cuxx'1stm1cu them‘.

it. is l‘mmu1m 1mhit.u:Ll. E.~%pv.¢:i4:>|:1.~:, unt;x'imI, IllIl‘.)i.f,;l‘l(Jll'.-3 px‘0spm;:L.~; ()t'1'1zawz1(1vur1tzLga rm;:m'n-u

m(,$t)(l 1Ixc31:1s=;c.:lvcm to tlm spirit. (.'11':EL(1W.:I1txIr(), whi¢:.11 mom or laws prevuiha in cavtaary mind.
Froxn this 1.¢:I'npc:l', mm: zmd fu.¢;:t.ioxm and uu.tiom4 too, lmvu ssumillcecl the g;oucl,ot'wl1ici1
tlmy hucl Imam in m.;.ksurm1 1‘xc>s'4:mss.~'siux1, in fa.vor of wild and ixrzttionztl <3-:tpect1Lti0nr‘s.” %
Bumus.

BOSTON: f
I‘{l.J:3E5B:IIJ[J, ()D1()RNE, AND C0l\«‘1‘1"’ANY .A
1835.

CAMBRIDGE PRESS:

IME'.'I‘CALF, TORRY, AND 13.A.LLO't.T.

Tm‘: substtmce of this Appeal has already appeared in two
daily newspapers, in the form of m1mbe1~s. It is now thrown into
continuous text, the 1'ea,soning extended, and t11e1a11guag'e revised.
The W1°ite1' had no party pulrpose to serve in its publication. He
beliovtes, most fi1'mI_v, that tllo question involved is {L fundamental
one in the ltxisatory of gove1'111'ne11t 5 that the fztvorable reception, by
nmny intelligent pe1*so11s, of the speeches of the majority of the
Senate, anc11:m1'ticu1ar]y of M1‘. We1)sto1', upon it is ominous to
the stabilityof'ou1- ilastitutioms, and that nothing but a vigorous
call upon the good sense and unfettetml reason of those men of all
parties, who still revere ancient Whig principles, can save ustfroxn
agaitt being wide afloat upon the ocean of uncertain experiment.

APPEAL.

IT would seem as if in this country nothing was
destined to acquire stability. The constitution of the
United States has now been in operation nearly half a
century, during which period many doubtful points in
its construction have been thought to have been settled;
settled, too, under the most favorable circumstances, in-
asmuch as the framers of the instrument were still exist»-
ing to explain its meaning, and even present to participate
in the decision. They have now, for the most part,
passed away, and transmitted to us, their posterity, the
comparatively lighter task of preserving the principles
they established, of holding to the foundations they fixed.
Yet the experience of a few past years shows clearly
enough, that much of their labor was in vain. A turn in
party politics, a new concurrence of circumstances, seems
all that is requisite to unsettle what was most firmly done,
and to bring it up at a far more unfavorable moment for a
new decision. .

Of all the questions made since 1789 to this day, not
one can be cited, which has received so thorough and la»-

bored examination from the contemporaries and framers T

of the Constitution, as that upon» the removing power of
the President; not one ever obtained a more decisive and
concurring voice of confirmation from all departments of
the Government. The first I-Iouse of Representatives,
after elaborate discussion, established it. The firstjSen—
ate, againstdtsetf, conceded it. The Supreme Oourtof
the Union has virtually confirmed it. If any thing could
ever be said to be established in the United States, this is
that thing. Yet this question is again opened in the prin-
ciple of the patronage bill of the Senate. An extraordi-
nary and powerful" combination is forming. in if that body,

2

having for one of its objects the reversal of the old decis-
ion. The new whigs repudiate the doctrine of their pre-
decessors. They maintain that what was here done, was
done wrong, and they propose to set it right. Mr. "Web-
ster, one of the ablest, as well as the most distinguished of
the party, has announced that he holds himself at liberty
to act as he shall think proper in regard to future legisla-
tion upon the question. He has spoken and published
an argument almost exclusively upon the point. He
admits that it is “settled by construction, settled by pre-
cedent, settled by the practice of the government, and
settled by statute,” but denies that it is settled by reason-
ing, and endeavours to sustain his denial by argument.

It therefore becomes necessary for a follower of the old
whigs, to endeavour to sustain them against this formida-
ble attack of the new. It becomes necessary to show,
that they, who made; the Constitution, knew better the
principles of government, than they who profess to dem
fend it. It becomes necessary to secure, if possible, that
instrument from the hands of its misnamed friends, by a
vigorous appeal to those old principles, which are identi-
fied with the glorious days of the whig party, but which
are now rapidly falling into disgrace. Unequal as I know
myself to doing the subject the justice it merits, I yet
feel I am doing the public service, if I can rouse its atten-
tion to the nature of the attack. If I should fail inper-
forming the duty I have undertaken, my effort may stir

up other individuals, who, with more power, though with y

no more zeal, may complete its execution.
V The question proposed for discussion may be stated
thus: . .

Did the Constitution intend to give the power of re»
moval from office to the President alone, or did it intend
to subject it, together with the power of appointment, to
the advice and consent of the Senate? I

It will be convenient to divide my subject so far as
practicable into two parts; the first of which, as being
the rnostirnportant at this crisis, to be devoted to the
reasoning in support of each part of the proposition;

the second, to contain a review of the authority in favor

of the establishedconstruction.
, The first and fundamental principle of the Constitution
appears to bethe marking out, in broad lines, the distribu-

3

tion of the power of Government intended to be conferred.
It points out, in grand divisions, the three departments to
which it is entrusted, and disti.nctly marks their separate
independent character.

By article 1. Section 1. it ordains, that

All legislative powers herein granted shall be vested in

a Congress, which shall consist of a Senate and House of ,

Representatives.

Article 2. Section 1. The Executive power shall be
vested in a President of the United States.

Article 3. Section 1. The Jztdicial power of the Uni-
ted States shall be vested in one Supreme Court, and
such inferior courts as the Congress may from time to
time ordain and establish.

It will be seen, from these articles, what is the general
character of the bodies, which exist in our Government.
The Courts embrace all the judicial power granted, the
President, all the executive power, and the Congress, all
the legislative power granted, subject, all of them, to
exceptions made to this distribution in the body of the
Instrument, and which the sections of detail in the In-
strument proceed to enumerate.

To my utter amazement I find this general position
resisted at the threshold---and in order to be guilty of no
misrepresentation, I now subjoin the whole passage in
the speech of Mr. Webster which seems to be opposed
to it.

“ It is true, that the Constitution declares, that the executive
power shall be vested in the President; but the first question,
which then arises, is, What is executive power? What is the
degree, and what the limitations? Executive power is not a
thing so well known, and so accurately defined, as that the writ-
ten Constitution of a limited Government can be supposed to
have conferred it in the lump. What is executive power? What
are its boundaries? What model or example had the framers of
the Constitution in their minds, when they spoke of ‘executive
power?’ Did they mean executive power as known in Eng-
land, or as known in France, or as known in Russia? Did, they
take it as defined by Montesquieu, by Burlarnaqui, or by De
Lolrne? All these differ from one another, as to the extent of
the executive power of Government. What then was intended
by ‘the executive power?’ Now, Sir, I think it perfectly plain
and rmanifest, that, although the framers of the Constitution
meant to confer executive power on» the President, yet they

4

meant to define, and limit that power, and to confer no more
than they did thus define and limit. When they say it shall be
vested in a President, they mean that one magistrate, to be
called a President, shall hold the executive authority; but they
mean further, that he shall hold his authority according to the
grants and limitations of the Constitution.

“ They did not intend, certainly, a sweeping gift of preroga-
tive. They did not intend to grant to the President whatever
might be construed, or supposed, or imagined to be executive
power; and the proof, that they meant no such thing, is that, im-
mediately after using these general words, they proceed, specifi-
cally, to enumerate his several distinct and particular authorities;
to fix: and define them; to give the Senate an essential control
over zf/re e:rerc2'se of some of them, and to leave others uncontrolled.
By the executive power conferred on the President, the Consti-
tution means no more than that portion which itself creates, and
which it qualifies, limits, and circumscribes.”

“ That portion.” Portion of what? Executive power?
The definition is good for nothing, and the same question
comes back, what is executive power? after which the
reasoning will go round again. The whole passage is
remarkable for looseness of thought and expression; not
merely for doctrine, believed to be unsound, but for an
illogical confusion of ideas, not at all characteristic of the
author. Mr. VVebster appears to have confounded the
gertefic term “executive power ” with the spectflic modes
in which that power is made visible in the various coun-
tries of Europe. Whell the framers of the Constitution
spoke of “executive power,” they certainly never meant
that of England or of Fraiice or of Russia. They had
studied the science of government inpthat school which
teaches, that executive power is well known and cam be
accurately defined. It is not correct inlanguage, and
unsettlesthe whole science, to say the r,everse. In this
immediate connexion, however, it was not necessary to
gofto De lpolpple, who t1ieat% of 6?£@C1:1tlVefp:(l)3WeI;‘ ogly in
re erence o e particu ar onstitution o ng an ,nor
to Montesquieu, whose definition, given under the same
head, partal<Bes slightly of the same confined character,
nor yet to urlamaqui, who, under another name, does
furnish a general definition. It is not correctto say, that
these writers differ essentially, as to the extent of the
executive power of government. They do differs as to
its extent in particular forms of government. .This is

5

not, however, at all material to the present case. The
framers of the Constitution were not called to go beyond
a common English Dictionary.

What is executive power? Dr. Johnson gives under
the head “executive” a very plain and satisfactory answer
and an authority in support of it.

“ Active -——- not deliberative -—- not legislative ; having the power
to put in act the laws.”

Lo! the mystery is solved. But hear the authority.

“Hbbbes confounds the executive with the legislative power,
though all well instituted States have ever placed them in differ»-
ent hands”----Swift.

So it seems Hobbes, the most potverful of all tory wri-
ters, entertained the same indistinct notions of executive
power, that pervade the mind of M1‘. Webster‘. In truth
it is tory doctrine. The genuine old whigs have from
the first maintained, that the boundaries of executive
power are plain; that its extent is well l~:nowi1 an.d can
be accurately defined; and that no State can be well
governed where it is not well known. It is rioting»; power,
and not deliberating power»---—-both essential to good gov-~
ernment, but essential when in separate hands.

“ Executive power is not a thing so well known, and so acou-
rately defined, as that the written Constitution of a limited govw
ernment can be supposed to have conferred it in the lump.”

“ They did not intend certainly a sweeping grant of preroga-
tive. They did not intend to grant to the President whatever
miglit be construed, or supposed, or imagined to be executive
power.”

These ideas cannot have originated in any whig au-
thority. The tories of the age of Charles the li‘irst were
the persons, who insisted upon. COl1Sl1l."I..lll1g, si.1pposin.g, or

irnagiiiing executive authority to mean more than 1t

really did. Men then began in England to agitate this
very question, and it proved a leadiiig one in all the di-
visions, which in after time were known under the de~
nominations of Whig and tory. To this end, Hobbes
wrote in the manner which has been incidentally noticed;
and to this end Sir Robert Filmer, the great charnpion
of tory principles, wrote his book: called Patriarcha---the
text book of the party. It is the object of this author to
prove, that there is no such thing as the natural liberty of
the people; and that the executive power being in its

6

nature indefinite, there can be no clear division between
it and legislative, as well as judicial power. In short,
that it meant “a sweeping grant of prerogative,” as Mr.
Webster imagines, which might be “construed or sup-
posed or imagined” at the pleasure of its holder, to em-
brace the deliberative and judicial departments of the
government.

Against these positions the whig writers in England
have, it is believed without exception, protested. And it

now becomes necessary to appeal at once to them, the ‘

sources from which the doctrines of the Constitution
flowed. The age of Hobbes and Filmer was that, in
which the great battle was fought; and they were the
front rank men, who, by embodying in a system the tory
theories of that day, brought upon themselves all the
attacks of the Whigs. In a periodical paper of the time,
devoted to the Commonwealth, and in answer to the
pamphlets of the day, asserting “that the perfection of
monarchytlconsisted in governing by councils, not such
as are coordinate with the prince, but purely of advice
and despatch, with power only to persuade, not limit the
prince’s will,” appeared one of the earliest of the whig
works,——“ The excellency of a free State or the right
Constitution of a Commonwealth, by Marchmont Ned-
harn.” Its character partalges much of the early period of
the science in which it was written. But some of its
positions have been uniformly sustained by all whig wri--—
ters since. In that chapter, where he lays down the gen-
eral principle, “that the original of all just power is in
the people,” he exposes a number of errors, which oper---
ate as obstacles in its way. The fifth is to my purpose,
and runs as follows : «~-

‘‘ Permitting of the legislative and executive powers of a State,
to rest in one and the same hands and persons. By a the legis-
lative power we understand the power of wreaking, altering, or
repealing laws, which in all well ordered governments hath ever
been lodged in a succession of the supreme councils or assem-
blies of a nation. By the executive power we mean that, which
is derived from the other, and by their authority transferred into
the hands of one person, called a prince, or into the hands of
many, called States, for the administration of the government in
-the execution of those laws. In the keeping of these two powers
distinct, flowing in distinct channels, so tltatptlaey may never meet
intone, save upon some extraordinary occasion, consrstrs run
smart or ran STATE.”

7

Harrington, in the Preface to Oceana, where he lays
down his principles, says, in commenting upon Hobbes,
the author of Leviathan:

“ But the law being made,” says Leviathan, “is but Words and
paper, without the hands and swords of men; wherefore, as
these two orders of a Commonwealth, namely, the Senate and
the people, are legislative, so of ‘necessity there must be a third
to be executive of the laws made, and this is the magistracy; in
which order, with the rest being wrought up by art, the Com-
monwealth consists of the Senate proposing, the people resolving,
and the magistracy executing.” _

Again -— “ But the magistracy, both in number and function,
is different in diflerent Cornmonwealths.--——Nevertheless, there is
one conrlitirin of it, that must he the same in every] one, or it dis-
solves the Corzunonzoectlt/L where it is ztzantiizg. And this is no
less than that, as the hand of the magistrate is the executive
power of the law, so the head of the magistrate is answerable to
the people, that his e:2:ez:utz'o72, be accto7"(1ir2.g to the law ; by which
Leviathan may see, that the ham! or sword, that crtccutes the law,
is in it and not above it.”

And again, in the Art of Law-giving:

“ But the necessary definition of a Commonwealth, any thing
well ordered, is, that it is a government, consisting of the Senate
proposing, the people resolving, and the 27mg'ist2*m:_7/ e:z:ecutz'ng.”

Algernon Sidney, in his chapter including the work
upon government, which he wrote to refute Filmer,
speaks of the King as “not being created to make laws,
but to govern according to such as are made.”

Lastly, John Locke, in the Treatise of Civil Govern--
ment, also written to refute Filmer, thus defines Political
Power:

“ I take it to be a right of making laws with penalties of death,
and consequently all less penalties, for the regulating and pre-
serving of property, and of employing the force of the commu-
nity, in the execution of such laws, and in the defence of the
Commonwealth from foreign injury; and all this only for the
public good.”

From this definition, clearly showing the two branches,
in which power divides, follows in a subsequent chapter
the necessity of keeping these separate.

“ The legislative power is that, which has a right to direct how
the force of the Commonwealth shall be employed for preserving
the community and the members of it. But because those laws,
which are constantly to be executed, and whose force is always

8

to continue, may be made in a little time; therefore, there is no
need that the legislative should be always in being, not having
always business to do ; and because it may be too great a temp-
tation to human frailty, apt to grasp at power, for the same per-
sons, who have the power of rizahirzg laws, to have also in their
hands the power to execute them; whereby they may exempt
themselves from the obedience to the laws they make, and suit
the law, both in its making and execution, to their own private
advantage, and thereby come to have a distinct interest from the
rest of the community, contrary to the end of society and gov-
ernment.”

I have made these quotations with the View of show-
ing, as I think pretty conclusively, that the indefinite
character, ascribed by Mr. "Webster to executive power,
never was whig doctrine, and is not in point of fact cor—-
rect; and that a broad line is visible between the active
or executive, and the deliberative or legislative powers of
government. I will now endeavour to show, that these
ideas, drawn from the great sources of whig doctrine in
the mother country, were put in action by the Whig fra-
mers of the Constitution, in the very sections of the arti-
cles under consideration. To this effect it will, however,
be first necessary to see how Mr. "Webster explains those
sections.

“ I do not,” he says, “ regard the declaration, that the executive
power shall be vested in a President, as being any grant at all,
any more than the declaration, that the legislative power shall be
vested in Congress, constitutes by itself a grant of such power.
In the one case, as in the other, I think the object was to de-
scribe and denominate the department, which should hold, re-
spectively, the legislative, and the executive authority; very much
as we see, in some of the State Constitutions, that the several
articles are headed with the titles ‘legislative power,’ ‘execu-
tive povver,’ ‘judicial power,’ and this entitling of the articles,
with the name of the power, has never been supposed of itself to
confer any authority whatever. It amounts to no more than
naming the departments.” I I

It appears to me to be rating the intelligence of the
framers of the Constitution rather low, to suppose that
they could not make a caption without putting it into the
body of an instrument. They surely had something
more in their minds, at the moment of commencing the

i great work, than merely to give headings to paragraphs.

Yet this disparaging construction is the inevitable conse-
, . A .

9

quence of l‘.VIr. Webster’s previous argument. If nothing
else did, it seems to me this would, lead a calm person to
doubt the soundness of it all. For myself, I have too
high a regard for the great whigs of the revolution to ad~
mit the supposition for a moment. Those distinguished
statesmen, excelled by none of any age in capacity for
the business they had undertaken, genuine whigsof the
true school, appear to me to have had a great object in
view in the first sections of the three articles alluded to
—-—that object the a.pplication of the very.doctrine already
quoted, the marking out the great cl-z'm'clmg lines of the
Constitution.

But, says Mr. Webster, “they did not intend certainly
a sweeping grant of prerogative.” The word prerogative
ishere used in its technical sense; a sense which from
the books of law and government has crept into common
use, and has gathered to itself so much popular oclium,
that I am almost inclined to suspect it was for that reason
alone brought into this connexion. In this sense preroga-
tive means a power inherent in the sovereign, not grained
by and above the law; a power which, Mr. Webster
knows, could not have been conferred in Convention by
any written. form of Constitution, and which does not
exist in the United States. Then what was the purpose
of its introduction here? Be this question answered as
it may, I am not afraid to use theword, if it really ex-
presses best my meaning. I find by reference to Dr.
Johnson, that prerogative, in its ordinary sense, and the
only one at all adapted to American institutions, means
“an exclusive or peculiar privilege.” In this sense the
word appears to me admirably to express, what I think to
be the intention of the three sections in question.

That is, the framers of the Constitution wished to or-
dain by the first, that legislation should be the preroga-
tive of Congress. a ‘ p I . «

By the second, that action or execution should be the
prerogative of the President. _ . .

Bythe third, that judgment, or the power of judicial
decision, should be the prerogative of the Courts. ,

j “ But,” says Mr.Webster, “ each article proceeds to enumerate
specifieallythe powers intended to be granted.” , i

Certainly, the Constitution being a grant of lilgnited

powers, proceeds to define specifically the subjects it in-

10

tends for the exercise of legislation, action, or judgment
in the government. But it adheres to the general lines
of demarkation. In short, it has a negative, as well as a
positive force. It means to show as clearly as possible,
what each department should not touch of ‘the other, as
what each should touch of its own. It means to show,
that action should not include legislation, and, what is
particularly important in this instance, that legislation
should not encroach upon action ; and this it does through
the instrumentality of the sections which Mr. Webster
thinks mere captions to paragraphs.

If I am right in this my conjecture, that the whigs of
our revolution, listening to the earnest exhortation of their
whig predecessors in Great Britain, meant, as a primary
principle, to define in marked characters the three powers
of the government, for the purpose of keeping them sep-
arate for ever, it follows that wherever in the Constitution
they have in any degree departed from this primary prin-
ciple, by conferring upon one department a portion of

ower borrowed from another, they have expressly men-
tioned the instance, as an exception to the general action
of the rule. Thus, in the case of the legislative power,
they have expressly granted to one of its branches a por-~
tion of judicial and a portion of executive power——to
the executive power, a portion somewhat similar of legis-
lative power; but in making these grants expressly and
in the nature of exceptions, they purposely intended to
avoid the implications, which might by possibility result
from them in any other form —--they meant that the power
conferred should not extend a particle beyond the words
of the grant. C l l

According to this idea, then, the Senate-is in its nature
a part of the legislative power-————this is the sphere of its
legitimate action; but in addition the framers of the
Constitution thought proper, in certain particular cases, to
grant powers taken from the other departments of the
government. One of the cases is when the judicial power
is granted in instances of impeachment of public officers;
another when the executive power is so far granted, as
relates to the approbation of treaties already madewith
foreign powers, and so far as relates to the approval of

, appointments‘ by the President to oflice. The Constitution

goes so far and no farther. Beyond the defined limits of

11

the grant the Senate was not expected to step out of its
legitimate sphere. The approval or disapproval of re-
movals from oflice was not a power expressly granted by
the Constitution. to the Senate, and is therefore entirely
within the action of the uniform principle reserving to
the diliferent departments the powers respectivley granted
to them. It remains with the executive power.

I foresee the objection that will be immediately raised
against me; and, in order to do it justice, I will now ex-
tract from Mr. Webster’s speech that passage which in
substance contains it. I

“The error of this argument, if I may venture to call it so,
considering who used it, lies in this: It supposes the power of
removal to be holden under the general grant of executive power.
Now, it is certain that the power of appointment is not holden
under that general grant, because it is particularly provided for,
and is conferred, in express terms, on the President and Senate.
If, therefore, the power of removal be a natural appendage to
the power of appointment, then it is not conferred by the gen-
eral words, granting executive power to the President, but is
conferred by the special clause, which gives the appointing
power to the President and Senate. So that the spirit of the
very rule, on which the argument of 1789, as I have stated it,
relies, appears to me to produce a directly opposite result; for,
if exceptions to a general rule are to be taken strictly, when ex-
pressed, it is still more clear that they are not to be implied,
without evident and clear grounds, when they are not expressed
at all; and as the general power of appointment is confessedly
given to the President and Senate, no exception is to be implied
in favor of one part of that general power; namely, the removing
part, unless for some obvious and irresistible reason. In other
words, this argument, which I am answering, is not sound in its
premises, and therefore not sound in its conclusion, if the grant
of the power of appointment does naturally include also the
power of removal, when this last power is not otherwise ex-
pressly provided for; because, if the power of removal belongs
to the power of appointment, or necessarily follows it, then it has
gonelwith it into the hands of the President and Senate, and the
President does not hold it alone, as an implication or inference
from the grant to him of general executive powers.

“ The true application of that rule of construction, thus relied
on, would present the argument, I think, in this form: ‘The
appointing power is vested in the President and Senate: this is
the general rule of the Constitution: the removing power is part
of the appointing power: it cannot be separated from the rest,

1?»
but by supposing an exception was intended ; but all exceptions
to general rules are to be taken strictly, even when expressed;
and for a much stronger reason, they are not to be implied, when
not expressed, unless inevitable necessity of construction re-
quires it.”’

This is a somewhat syllogistic form of reasoning, and
looks tolerably imposing. But the misfortune of it is,
that the major proposition is not admitted, and therefore
the conclusion fails. The very point to be proved is
whether the a.}?p0'i)tZi7tI.g power is vested in t.he Senate. It
would seem by the words of the extract inarked in italics,
as if Mr. "Webster thought this conceded. Yet, after
looking carefully over the whole of the debate in the first
Congress, I cannot find in a single speech made by any
considerable man of the majority any such concession;
on the contrary, I find it repeatedly, earnestly, emphati-
cally denied, as I hope hereafter to show.

It is, however, of some importance, first to consider the
doubt indistinctly thrown out in the passage above quoted,
whether the appointing power is really an executive
power; a doubt which very naturally results from the
apparent ill comprehension of the nature of executive
power in the early part of the speech. Having already
maintained that the general section, conferring this power
upon the President, confers nothing but a name, that it is
a sort of see-saw of synonymous terms, with just the
weight that shall in due time be apportioned to them,
Mr. Webster looks down to the second paragraph of the
second section of the second article, a paragraph of a
section of detail, and holds flzait up as the sole grant,
general or particular, of executive power, so far as relates
to the appointing power, to be found in the Constitution,
and this grant he maintains to be the President fancl
Senate. i i

Now let us suppose for a moment that this paragraph
had never existed at all in the Constitution. Will it be
pretended in the face of the rest of the instrument, that
for want of the vitalrprinciple of an appointing power, it
could never have been carried into operation ? I am not
prepared to believe any body disposed to aifirin this, and
shall not throw away time in discussing it. But if it
cannot be affirmed, then. the appointing power, being no
where expressly granted, must be implied from such parts

13

of the system as absolutely require it, in order to be car-
ried into effect. Is the third article, creating the judicial

power, any such part? Certainly not, because the ap— 

pointing power must be supposed to preéxist somewhere
else in order to put that department into being. Is the
first article, creating the legislative power, any such part?
Surely not, because the grant is of the power of legisla-
tion, that is, makiug~eiaws; and in order to make laws
there is no necessit.y for any power of appointment. But
if this power ca.nnot be implied as a necessary part of the
judicial or the legislative grants, and it is to be implied
somewhere in order to execute the plan, it follows that it
must be implied in the grant to the only remaining de-—
parttnent, that of the Executive.

But, says Mr. Webster, “Executive power is not a
thing so well known and so accurately defined, as that
the written Constitution of a limited government can be
supposed to have conferred it in the lump.” Did he be-
fore saying this once ask himself how else it could have
been conferred ? Surely not. The whigs who formed the
instrument could never have been expected to define every
possible case, in which the President would be required to
perform any particular act. How could they define what
was not in their power to foresee? Depending as the
action of the executive necessarily must upon the legisla-—
tion of Congress, no wisdom could specify it, no power
short of prophecy could announce it. Change the phra-
seology of the general section of the second article, which
Mr. Webster so strangely considers as only naming the
executive department; word it according to his idea, so
that instead of its present form, “ The executive power
shall be vested in a President,” it shall run thus, “ There
shall be a President” and the consequence would bethat
the clauses of special grant, upon whichMr. Webster
relies for all the executive power would not enable him
to do his ordinary duty. These clauses are definitions
having reference to the generalgrantgythey are not in
themselves grants, excepting when they specially confer
powers not strictly executive. So far as these are con-
cerned, they are restrictions upon the general exercise of
them, instead of creations. They are injunctions against
his unlimited use of peculiar rights, already granted" him,
“ in the lump,” to use this gentleman’s phrase, and not

14

injunctions upon him to exercise such rights. Subtract-
ing from him the grant in the general sections, which is
maintained to mean nothing; in nine parts out of ten of
his ordinary duties, the President would find no sanction

for his inteference in the Constitution. This ordains that

“he shall take care that the laws be faithfully executed,”
which surely means something; and if it means enough
to confer any power at all, certainly confers it “in the
lump.”

But the Constitution also declares that the President
“may require the opinion in writing of the prizzcipaal of-
ficer in each of the executive departments,” and thus
presupposes the necessity of agents, bothrsubordinate
and principal, to assist him in the acts of coercion or ex-
ecution, which devolve upon him in his duty to the laws.
He is moreover bound “to take care that the laws be
faitltfully executed.” That is, that no instance of ne-
glect or violation of duty in the execution of the laws
shall pass by him uncensured or uncorrected. It is the
great principle of respotzsibilily in the President, for the
acts of his agents, that is introduced by this paragraph—--
a principle peculiar to our system, and which a lingering
habit of looking to the British theory, in which it is not
to be found, has occasionally led our public men t.o disre-
gard. It is because of his respr2n3z'biZ2'ty that the right of
selection of his agents is given t.o him, in the right of
nomination, and a mere choice not being enough to in-
sure the faithful execution of duty, it is because of his
responsibility, that the right of control is also given him.
The power of coercion, in case of infidelity, must neces-
sarily exist, because it is the President’s only preservative
against the censure consequent upoiz ]mIm- from failure of
duty in his agents. In order to maintain himself in the
direction of the Executive Departments, his Constitu-
tional province, nothing short of the mostpdecided control
over their actions will be sufficient. ‘

There is another idea particularly deserving of consid-
eration in this connexion; and of more extensive devel-
opment, thanit has yet received. If the President is
bound to take care that “the laws,” that is, the emana-
tions from the legislative power of the Government, shall
be faithfully executed, it, must absolutely follow, that his
power of executing shall be coextensive with the power

15

of legislation. This legislative power is then the precise
measure of the executive power, and not a few imperfect
sections of detail. It regulates the extent of the grant
which Mr. Webster does not appear to comprehend, and
yet it forms a grant “in the lump.” The peculiar phra-
seology of the two general sections, which relate to these
departments, is worthy of most particular attention. In
the one, where the words are “all legislative powers
herein ,g'mn.ted shall be vested in a Congress,” a limita-
tion is introduced, which in the other is not to be found,
“the executive power shall be vested in a President.”
The reason for the difference would seem too plain to be
mistaken. The legislative power was susceptible of ‘strict
definition, but the executive power, being in a great de-
gree dependent for the extent of its exercise upon that
very legislative power, was necessarily a general grant,
and yet susceptible of measurement, by being made co-
equal with it. Thus it can hardly be imagined how a
grant of so important a nature could have been made
more “in the lump,” and yet have been more effectively
restrained within its proper and specific limits.

The Constitution moreover designed to establish in
this clause, where Mr. Webster finds nothing but a name,
Von: et prceterea m’/vil, another sound principle,-—-the
unity of the executive power----To the President was
Congress to look for the execution of its decrees; and
therefore by another section, upon the President was that

execution made imperative; “he shall take care that the

laws be faitlifttlly executed,” not “ he may,” or “he will,”
but “lie s/tall.” The duty is exclusively his, it is en-
joined upon him in the manner the most absolute, and
the mode of doing, that is, the fcm't/vful performance of it,
is specified. Yet all this is done in none of the sections
of detail which Mr. Webster relies upon. , The grant of
power is distinct and absolute, though “in the lump.”

, It is a grant necessary to the development of the system

of Government contemplated by the Constitution, and
necessarily involves all the means requisite to insure that
development. Among these means, the power , of it ap-
pointing, and controlling or removing deputies in theiiacts
of imere execution, devolved upon the President by the
law, is necessarily implied; thenrhow csanitlybe main-

ll tained for a moment, that this power is derived solely from

16

the paragraph in the second section, to which Mr.Webster
would refer it. A paragraph, the existence of which is not
vitally essential to the Constitution, because, if it was not
there, the appointing power, of which it particularly treats,
would only return into the general clause.“ Being neces-
sary to the system, it would by implication fall into the
hands of, because absolutely essential to, the exercise of
the executive power. '

On the other hand, no such implication can possi-T

bly exist in the case of the Senate. The appointing
power is not essential to the exercise of any of its granted
powers. "Whatever control it has over it is the subject
of express grant, and would be had in no other man-
ner. This express grant is to be found in the paragraph
so often alluded to, and nowhere else. If that paragraph
did not exist, the Senate, so far as concerned the execu-
tive, would be a purely legislative body. But as it does
exist, and is a grant of substantial power, borrowed from
some source external to itself, the question recurs, where
is that source? The Senate furnishes its own answer,
and a perfectly satisfactory one. The duties, devolving
upon it by virtue of this express grant, have always been
set apart from their ordinary ones of legislation. They
have been denominated Esrecttzfive duties, and the Senate,
when it performs them, records that it goes into Executive
business.

I trust I have dissipated all doubt, if such existed, as
to the true nature of the appointing power, and the mode
in which it has in any shape fallen within the province of
the Senate. That body is in its character the anomalous
one of the Government——the solitary great case of ex--
ception to the uniform rule of the Constitution respect-
ing the separation of powers. As such an exception it
was, from the first, made the reason for vehement denun.-
ciation of the whole system. Mr. Elias Boudinot tells us
it was strongly objected to, in the ratifying Conventions.
Mr. James Madison, who was a member of the original
Convention, and one of the leading contrivers, as well as
an advocate of the instrument then framed, says that it was
one of the most successfully urged, and plausibly grounded
of all the objections to the plan, and that it was no favorite
of his. Mr. Baldwin of Georgia, also one of the Conven-
tion, goes still further and affirms “that in that body

17

some gentlemen opposed it to the last; and finally made
it the principal ground for refusing their signature and as-
sent. That one gentleman called it a monstrous and un-
natural connexion; and did not hesitate to aflirm it would
brrmg on corzvulsdorzs  the government.” Fellow citi-
zens, let us not make that gentleman’s words prophesy.
Let us not, when the very existence of the granted pow-
ers was so vehemently contended against, and the duty
of keeping them within the strict letter of the grant so
clearly enjoined, seek. now to enlarge them beyond all
bounds by letting loose a torrent of implication.

But it will be objected to me that I have not yet ap-
proached the true point at issue; that, if the President
and Senate are really the appointing power designated by
the Constitution itself, however good my objections may
be, they come too late. That the same power, which ap-
points, should by all rules of construction be the one to
remove. That, in short, I shall fail, unless I can touch
the great syllogism of Mr. Webster’s speech.

Of all the surprising things to be found in argument,
one of the most so appears to me to have been the singu-
lar assumption by many sensible and a very few great
men, that because the Senate had something to do with
the appointing power of the State, therefore it must be
the appointing power! A more huge deduction from
smaller premises, was perhaps never made in the annals
of controversy. What are the words of the article?

“The President shall have power, by and with the advice of
the Senate, to rnake treaties, provided two thirds of the sena-
tors present concur: and he shall nominate, and by and with
the consent of the Senate, shall appoint ambassadors, other pub-
lic ministers and consuls, judges of the Supreme Court, and all
other officers of the United States, whose appointments are not
herein otherwise provided for, and which shall be established by
law.---But the Congress may by law vest the appointment of
such inferior oflicers, as they think proper, in the President alone,
in the courts of law, or in the heads of departments.”

Now what is the grammar, as well as the common
sense of this paragraph? Who shall have power toimake
treaties? TheiPresident.---Who shall nominate? The
President, ea:clusz'vely.-—-Who shall appoint? The Pres-

_ident,- but with the advice and consent of the Senate

3

18

to his appointment. ‘How, in the meaning of language,
can it be said that the Senate appoints? Can the Senate
nominate? Assuredly not. But how can the Senate ap-~
point without the power to nominate ? Is there any force
in words? Then how can any body be said to appoint,
when the nomination is in another body, together with
the whole right, regulating the times and modes of ap—-
pointment ? when the Senate must depend upon the Pres-
ident for the occasions for, and indeed every incidental
circumstance respecting the exercise of its right? when
the President is a coordinate and independent power of
the State entirely beyond its control? Can the Senate
dictate the mode of or the office for appointment? Can
it, in short, do any thing in the premises but record its yes
or no, to the nomination and appointment of the Presi-
dent? Then how absurd it is to tall: of the Senate’s
appointing power! The mistake has arisen from an in-
accurate comprehension of language, from the confusing
application of a verb, with an active signification to the
exercise of power essentially passive. The Senate’s right
is a right of negative-——a check upon the act of another,

and by no means a right to act of its own. That body

has the privilege of saying what appointments shall not
take place. It has not, and God grant it never may have,
the right of directing what shall.

As well may it be argued, from the words above cited,
that the Senate is thetreaty-making power, as that it is
the appointing power. The clause of grant in both cases
is the same, with the provision that two thirds of the Sen-
ators present are required to approve a treaty. It would
follow from the same mode of reasoning, that because
seventeen senators can at any time defeat a treaty, those
seventeensenators will therefore be entitled to make all
the treaties with foreign States. Unfortunately for so in-
genious a construction of the Constitution, neither seven»
teen nor forty-eight can nominate ambassadors; nor yet
receive them when sent from a foreign State; so that
their grants of the appointing, as well as the treaty-mak-
ing power, both fail them at their utmost need. And it

t was intended that they should; for attempts were made

in the Convention to confer both by express gram: upon

the Senate, and failed. That body should then retreat

within its legitimate sphere. It can decide what treaty

19

shall not be the law of the land, but it cannot make the
treaty.’ It can also decide who shall not be a judicial
officer during good behaviour, or an inferior executive
officer during the pleasure of the chief, but it cannot say

who shall be the ofiicer. Here is the extent of its ap- .

pointing and its treaty-making powers; an extent, one
would suppose, quite sufficient for one branch of the
legislative department. i

In the filling an oflice under the Constitution, three dis-
tinct acts are mentioned as necessary to be done before
any assumption of its duties. There must be a nomina-

tion, and that is the sole act of the President. There,

must be an appointment, and that is the act of the Presi-
dent, subject to the consent of the Senate. There must
be a commissioning, and that is the sole act of the Pres-—
ident. Thus it is seen that, in mal<i1'.1g an oflicer, two
parts of the duty are entirely within the province of the
executive, while the third is exercised by him subject to
the check of the Senate. The phrase, therefore, so corn-
monly used, that the President cmcl Seizate are the ap—
pointing power, is deceptive, because those who now use
it mean by the word “appoir1tir1g” one thing, and the
Constitution another, and a very different thing. In
order to create the implication in favor of the 7‘em-oving
power of the Senate from its appoivzlivtg power, the Pres-
ident and Senate are called the appointing power, that is,
the power that makes the officer by the full completion of
the three actsiof nomination,appointment, and commis-
sioning. But the Constitution speaks of the appointing as
a separate and smaller portion of the power of making
an oflicer. It gives to the word the confined sense of.
an imperfect act ;, an act so imperfect, that no possible
implication could result from it in favor of the it further
power of the Senate. But by saying that the President
and Senate are “the appointing power,” two objects are
gained; the first, a delusive appearance of an equal die»
vision of the power, the second, that the appointing is
heldyout as the whole act instead of the third part of the
act of making the officer, of which third the Senate’s
share, if it could be measured, would hardly be deepmepd
itself a third. To restate the case plainly, then,-3-, If the
Senate is no part of the nominating power, and no part
of the commissioning, while it his ‘but the lesser part of

20

the appointing power, all three of which are equally es»-
sential to perfect the filling of an office, how can it be
said that the Constitution has granted to it such a partici-
pation in the executive power of malting officers, as ne-
cessarily to imply in it a participation in removing them?
The Constitution violates the general rule for the sake of
giving the Senate all the power it has over the subject.
That power is as small as it could well be, and remain a
substantial one; and yet, by a sort of Juggle of words,
this violation of rule is to be converted into the general
rule, and the rule itself is made the exception. By vir-
tue of this little grant, enough is to be implied virtually
to vest the whole executive power of the Government in
the Senate. «

For, let it be remembered, that the right to control
removals from oflice is a very different power in its es—-
sence from that over appointments, as this word is
understood in the Constitution. The word a_p}90’l7tZ"I7’l87Zi
in that sense does not include nomirzazfriorz, which is a
distinct right vested in the President alone. Thus, if the
Senate do not approve an appointment, the oflice remains
vacant, and the President may nominate again. But re-
moval necessarily includes nomination. For example, if
the Senate refuses to consent to a removal, it does to all
intents and purposes not only appoint but nominate the
incumbent to be the oflicer after the President had nomi-
nated another. Thus the granted power of the Senate
is exactly inverted, and from being a merely passive
power of saying who shall not be in office, it becomes an
active one of saying who shall. The President, who is
the executive power, loses the power of coercion over his
own agents ; and if he is ever so firmly convinced that a
subordinate is entirely unworthy of trust, he yet must be
obliged to rely upon him for the faltlzful’ execution of a
part of his own duty, for the performance of which he is
responsible, under the penalty of impeachment! If the
Secretary of State was to be bribed by a foreign power
to make a shameful concession in a treaty, which would
render him entirely unfit to remain in the confidence of
the President, and yet could conceal all evidence of his
guilt fromtheiparty prepossessions of twenty-five sena-
tors, they could,» by refusing to consent to his removal,

virtually nominate and appoint him to the oflice; thus

21

imposing the responsibility of his misconduct upon the
President, and forcing him to violate his own oath, in which
he solemnly swears to preserve, protect, and defend the
Constitution. All this is to be so done, by virtue of an
implication so monstrous, as would make a power of
negative into a positive control, never dreamed of by the
framers of the Constitution, and certainly at this critical
time not to be sanctioned for a moment.

I will add one more illustration, drawn from the Presi-
dent’s control over the laws of Congress. If the con-
struction contended for is true, why is it that the Presi-
dent, having just such a negati.ve upon the acts of the
two Houses, as the Senate has upon him, and t/zerefore,
according to their logic, being with élongress, the legisla-
tive power, does not take part in laying and collecting
taxes, borrowing money, regulating commerce, and all
the other duties assigned as the peculiar province of the
Senate and House of Representatives? To me it appears
plain that he is forbidden by the first article, first section
of the Constitution, which declares “ all legislative pow-
ers granted shall be vested in Congress,” and not in the
President and Congress. But, according to Mr. Webster,
this is nothing at all but “ iirtnting the legz‘slatz"ee depart-—
97’I«8'?’Zt,‘ so that by his reasoning there can be no greater
obstacle to consideringthe President a part of the..legisla-
tive power, because he has a negative upon its acts, than
there is to considering the Senate a part of the appointing
power, because it has a negative upon the President’s ap-
pointments. Thus the whole system of our government
is in perpetual danger of running into confusion from the
original rniscomprehension of the first principle laid down
at the beginning of the three first articles of the Consti-
tution, the great division of the three powers in separate
hands, which has been asserted. ‘‘ to amount to nothing
more than rzaming the departments.” The power con-

ferred upon the President, is in its nature legislative; that V

is, it controls legislation, exactly in the manner that the
Senate controls appointment. But it is not legislative,
because, besides the exclusive grant in the first article of
all legislative power to Congress, it is not in itself anac-
tive power. It is in his case towards the legislature, what
the Senate’s is towards him, a passive right of negative,
over the act of another, and no right to act of his own.

22

The President can say what bills shall not become laws,
unless afterwards made so by two thirds of each branch
of Congress. He cannot take part in making them. Just
so it is with the executive power vested in the President,
and not in the President and Senate. The power grant-
ed to the latter body, in cases of a_ppointment, is a power
of negative upon /its act, and as such neither justifies the
assertion that it appoints, nor any implication from it
whatsoever.

In the last place, against this great position, that the
President cmcl Senate are the appointing power, I must
appeal to a strong authority in this connexion----no less
than that of Mr. Webster himself, and in this very speech.
I mean to take no untgenerous advantage of the careless,
unguarded use of language which is Visible in all its parts.
But after the main body of the argument has been placed
upon pure, independent, reasoning ground, this may be
introduced as serving to add strength, without making
a point upon which to lay great stress, or bring up a
solemn charge of inconsistency. The example is too
striking, to be altogether omitted, of the opposition be-
tween what may be considered the natural flow of
ideas and that coming from laborious effort. When Mr.
Webster in one place speaks of the Senate, as “ exercising
an essential control over the exercise of some of the
Presridemfls powers,” he is describing the case in point
with far more correctness, than. when he asserts the Senate
to be exercising some of those powers itself. But this is
not all. In another place, where he has been mourning
over the times, he tells us that “ men in oflice have begun
to think themselves mere agents and servants of the AP"-
POINTING rowan, and not agents of the Government or
the country.” Now I appeal to the common sense of the
country to say whether, as the Senate and President have
for years been situated towards each other, these words
can by any possibility refer to the President and Senate ,-
and yet we are seriously told in the argument, that the
fact of the President cmd Senate being the appointing
power is confessed by all; and this assumed fact is made
the basis of the great syllogism intended as the quintess
sence of the whole speech. In truth, the above expres-
sion, was a slip occasioned by the prineiples of better
times.. Mr. Websiter meant to alliudiie to the ,Pr,esident

23

alone as the appointing power of the Government. He
was upon an incidental subject, following the natural
construction springing from ordinary impressions, and this
is worth at all times a dozen artificial ones resulting from
a course of thought to build up an argument.

The proposition, that the President and Senate are the
appointing power, is then utterly untrue in fact, and un-
sustained in argument. The grand point of the syllogism
fails, and with it goes the whole fabric which has been

made to rest upon it. The implication which gives the

Senate the power of removal, being raised out of an un-
sound claim of the power of appointment, vanishes at
once, and nothing remains to be noticed but a few scat-
tering positions, vvhich were made to serve the main end,
though not a whit better based in principle. The princi-
pal one will be found in the passage immediately annexed,
and as coming from Mr. Webster, gives cause for surprise
and serious concern.

“ The regulation of the tenure of office,” he says, “is a com--
mon exercise of legislative authority, and the power of Congress,
in this particular,  not at all 1'estrained or limited, by any thing
contained in the Constit.ution, except in regard to judicial ofl'i-
cers. All the rest is left to the ordinary discretion of the legis-
lature. Cc)1trg1'ess may give to offices which it creates (except
those of judges) what. duration it pleases. When the ofiice is
vacated and is to be filled, the President is to nominate the can-
didate to fill it; but when he comes into the ofiice, he comes into
it upon the restrictions which the law may have attached to it.
If C0rtgr'ass were to rlnolavre by law that the Attrmtey General,
or the :S'ecrctrtry of Strata, should hold hz'.s' ojicc tlrtrirzg good Im-
haviour, I am not aware of any grvmrtrl on which such (1 law
could be held zmcorzstitutional. A provision of that kind might
be unwise in regard to such officers, but I do not perceive that it
would transcend the power of Congress. l t i l

“ I f‘ the Constitution had not prescribed the tenure of judicial
office, Congress might have thought it expedient to give the

. judges just such a tenure as the Constitution has itself provided ;

that is to say, a right to hold during good behaviour; and I am
of opinion that such a law would have been perfectly constitu-

T tion al.‘ It is by law in England, that the judges are mettle inde-

pendent of the Crown. I do not think that the Constitution, by
giving the power of appointment, or the power both of appoint-
ment and removal to the President and Senate, intended to im-
pose any restraint on the legislature in regard to its authority of

24

regulating the duties, powers, duration or responsibility of oflice.
I agree that Congress ought not to do any thing, which shall es-
sentially impair that right of nomination and appointment of
certain oiiicers, such as minist.ers, judges, &c., which the Consti-
tut.ion has vested in the President. and Senate. But while the
power of nomination and appointment is left fairly where the
Constitution has placed it, I think the whole field of regulation
is open to legislative discretion. If a law were to pass, declar-
ing that district attornies or collectors of customs should hold
their offices four years, unless removed on conviction for misbe-
haviour, no one could doubt its constitutional validity; because
the legislature is nczturczlly competent to prescribe the tenure of

office.”

Has it come to this, that the “ablest defender” of the
Constitution, shall appear to know so little of awr2'25afen
form of Government as to argue up the legislative power
by analogy to the prescriptive omnipotence of the British
Parliament? Has it come to this, that the 72.aturaZ com-
petency of the legislature, created by an instrument of
Government, is equal to doing by an indirect mode of
action, what the whole spirit of that instrument forbids it
directly to do? Is the mere regulation of oflice to swal-
low up the executive power, when the whole legislative
power was designed to go no further than to counterbalance
it? Has it never occurred to Mr. Webster, that, when the
Constitution expressly directs that juclges shall hold oflice
during good behaviour, it made an exception, somewhat
more than formal in their favor, to a general rule? Is the
exclusive power of nomination in each successive Presi-
dent nothing? Is it to be imagined, that the framers of
the system ever dreamed of vesting any where a power
to create subordinate executive officers for life, when they
restricted the chief executive officer to a term of four
years ? If they did intend such ofiicers to be made inde-
pendent of the President, why did they not say so? Why
did they confine themselves to judges alone? and how
can it be supposed that they meant to leave a department
of the government, the right by implication, to do in one
case what they denied expressly to confide in another?
I now call upon Mr. "Webster to put his finger upon the
place in the Constitution, which authorizes Congress to
create oflicers for life. I ask him to ‘say where the legis-
lative power gets the authority to subject each executive

25.

nnagistrate, elected for four years, to the necessity of

taking all l1is agents fixed by the legislative power in their
posts during the pleasure of the latter. Such a perverse
confounding of every principle heretofore deemed at the
bottom of constitutional law, shall receive the rebuke it
merits, not at my hands, who am unworthy to give it,
but at those of a man whose life, now just drawn to its
close, has fully earned for him the title younger men may
forfeit, of genmne defender of the Constitution.

Listen to the words of Chief Justice Marshall.

“The original and supreme will ” of the people “organizes
the government, and assigns to different departments their re-
spective powers. It may either stop here, or establish certain
limits not to be transcended by those departments.” i

“ The government of the United States is of the latter de-
scription. The powers of the legislature are defined and limited ;
and that those limits may not be mistaken or forgotten, the con-
stitution is vvritten. To what purpose are powers lirnited, and to
what purpose 2'5 that lirnitation commzttecl to writing,  these
limits may, at any time, he passed by those zntenderl to be re-
strained? The distinction between a government with limited
and unlimited powers is abolished, if those limits do not confine
the persons on whom they are imposed, and if acts prohibited
and acts allowed are of equal obligation. It is a proposition
too plain to be contested, that the constitution controls any le-
gislative act repugnant to it; or, that the legislatzcre may alter the
Corzstitation by an ordinary act.

“ Between these alternatives there is no middle ground. The
Constitution is either a superior, paramount law, unchangeable
by ordinary means, or it is on a level with ordinary legislative
acts, and, like other acts, is alterable when the legislature shall
please to alter it. r

“If the former part of the alternative be true, then a legisla-
tive act, contrary to the Constitution, is not law: If the latter part
be true, then written constitutions are absurd attempts, on the part
of the people, to limit a power in its nature 2'llz'mz'table.” r T

The opinion given by Mr. Webster in this case would
make a legislative act subvert at one stroke the whole , of
the second article of the Constitution, securing the inde-
pendence of the executive power. For how could the
President assume in sincerity the responsibility of an oath
to preserve, protect, and defend the Constitution, when
the tenure of office of every executive agent was not only

4

26

beyond his control, but in point of permanency incom-
parably more fixed than his own? How could he faith-
fully execute the laws by deputies, who could laugh his
power of coercion to scorn? With what face could he,
the creature of a day, dictate to his lowest subordinate,
who might already have frowned upon a dozen of his
predecessors, or who expected and desired to see a suc~—
cessor of more congenial party faith? But, although the
subject is fruitful, I will not at this time follow it out any
farther. I cannot and will not believe that a man, who
claims so high rank as a statesman, will persevere in a
deliberate construction of an instrument, the effect of
which would be inevitably to destroy that instrument,
and sink the executive, and ultimately the judicial pow-
ers of the Government, into mere subjects for the caprice
of the legislative.

I have now done with the reasoning of Mr. Webster’s
speech; and the easier and pleasanter part of my task
only remains to me, that of summoning the ancient Whigs
as authority for my positions. I hope I have proved that
that gentleman has utterly failed in shaking them from
the high ground they occupy. It is true he stands high
in the community, and his judgments upon law are en-
titled to, and possess very great weight, while on my side
there is nothing to prepossess the public, nothing to in-
duce it to look beyond the natural strength of the argu-
ment. Upon that alone let the public judge, and the
decision is safe. Believing as I firmly do, that this speech
is made up of principles entirely unsound and dangerous,
there may by somebe thought to have been a greater ten~
dency to severe criticism than is quite proper. To this
my only reply must be, that the attempt has been to sub-
due feeling, rather than to indulge it. There is much in
the speech, that, coming from any other person than one
so highly distinguished, could have met with nothing
but the most unqualified condemnation. The measure,
which it advocated, is itself a relic of times of excessive
party violence. Its original author has since clearly man-
ifested the temporary character of the object he designed
it to serve. That this thing of rottenness should have
been picked out of the hole, Where it had been left to
moulder, should have been justified and defended by its

 former opponents, and its most fatal principle avowed as

F-'
I

:10

the guide for future movements, is really too serious a
matter to be met with trifling. The Senate is claiming
for itself an undue share of power. It is endeavouring
to reduce the President to a state of dependence upon it
for his oficers, which will, in the end, subvert the whole
principle of balance of the three powers, so studiously
introduced into the Constitution by its framers. Shall
not this effort meet with just rebuke ? Shall not the peo-
ple be made to see in time for prevention the true nature
of this extraordinary purpose P

That Mr. W'ebster should have allowed himself to
sanction this scheme of Mr. Calhoun, standing as that
gentleman already does on the outer border of the Consti-
tution, and actually declaring the necessity of at revolutiorrz,
that is, its total subversion, is matter to me of deep regret.
I think there is reason to be afraid of such an alliance.
It has already brought the opponent of Nullification into
the councils of Nullification. It has already given birth
to a speech, which, in its tendency, unsettles all the foun-
dations of the Constitution, rliesin the face of the great
federal principles that animated all the great men of New
England’s brightest era, and which, if it was not extra-
ordinarily weak, would be extraordinarily mischievous.
What will be the end of the career now opened, it would
be presumptuous to foretell; but if Mr. Webster will not
be warned, it will certainly do no harm to put Massach u-
setts on her guard. Reposing so much confidence as she
always does in her distinguished men, they incur a heavy
responsibility, if they lead her to the brink of a preci-
pice. ,
But previous to calling up the array of ancient whigs,
to express for themselves their opinions upon this impor-
tant question of the President’s exclusive power of
removal from office, it may be well to review the circum-
stances under which they were given. This will mate-
rially aid the formation of a just estimate of the weight of

the authority, particularly upon those modern whigs of

whom Mr. Webster is commonly regarded the organ and
leader. a a up
On the 13th of September, 1788, the Constitution hav-
ing then passed through all the forms, necessary to“make'“
it a valid instrument of government, the Congress of the
confederation fixed the time and place for the new sys-

28

tem to go into operation. The various elections having
taken place during the course of the winter; in March
and April, 1789, the bodies pointed out by the Constitu-
tion assembled for the execution of their duties. Upon
the Senate and House of Representatives, composing the
first Congress, devolved the immediate necessity of filling
up the details in the general plan; the responsibility of
framing those organic acts, which were to give a practical
character to the scheme. Among them, the most impor-
tant may be considered to have been the act organizing
the judiciary department, the revenue act, and that con-
stituting the executive departments. It was, in the pros-
ecution of this duty, that, within fifty days from the
meeting of the House, Mr. Elias Boudinot, a member of
the House from New Jersey, rose for the purpose of pro-
posing to act upon the last mentioned subject. He said
that he had observed that the Constitution contemplated
departments of an executive nature in aid of the execu-
tive, manifestly alluding to that part of the first paragraph,
second section of the second article, giving the President
a right to require from the principal officer, in each of the
executive departments, his opinion upon any subject rela-
ting to the duties of his office. Mr. Boudinot, therefore,
proposed to the House to go at once into committee, and
begin their Work by “ a settlement of p7'z’7zct‘_ples.”

This proposal was immediately acceded to, and for the
purpose of testing the principles of the House, Mr. Madi-
son, whose labors in forming, as Well as supporting our
Constitution, are too well known to need from me com-
ment or eulogy, brought forward, in the shape of resolu-
tions, a plan for the organization of three executive
departments. This plan, among other things, specified
two-—-the first, that the chief oflicer in each should be
appointed by the President, by and with the advice and
consent of the Senate; the second, that he should be re-
movable by the President alone.

An objection was instantly raised to the first of these
points, on the ground that Congress, by specifying the
mode of appointment, appeared to be assuming a power
not belonging to it, and attempting to regulate What was

i already regulated by the Constitution. This was deemed

a valid argument, and the clause to which it refered was
immediately struck out. A similar objection was started to

29

the second point, the specification of the mode of re-
moval; but it was not immediately pressed, because the
opponents of the President’s exclusive right probably felt
that a decision upon this, following so directly upon the
other, might place both equally in the Constitution, and
thus confirm the right they were anxious to deny. A
more advisable course to them seemed to be, to preserve
the clause with an addition, which would in efl"ect subject
the removing power to the check of the Senate. An
amendment adding words requiring the advice and con-
sent of the Senate to the act of removal, was accordingly
pushed, and after a short debate, lost. The second point
was then carried by a considerable majority, and with it
ended the settlement of principles for that time. The
resolutions were sent to a committee of eleven, for the
purpose of embodying their substance in a bill or bills for
the action of the House. This took place on the 21st of
May, and, on the 2d of June, Mr. Baldwin of Georgia,
the chairman, reported a bill to establish the department
of foreign afi"airs, which took the usual course.

On the 16th of June, this bill came up in committee of
the whole, and the three following days were passed in
the discussion of the same point, of wliich I have already
given an account. The debate, though poorly reported,
gives strong evidence of the very high character of the
members of the first House, and, for its business-like as
well as thorough style, must always take a high rank in
our Congressional history. A motion to strike out the
clause, aflirming the President’s exclusive right of removal,
was lost at the close of the third day, by a vote of 34 to
20.

It will be observed that, by the words of the bill sim-
ilar to the resolution, Congress was in fact making upon
the Constitution a decision, which granted to the Presi-
dent this exclusive right of removal. Both parties had,
for opposite reasons, chosen this question as the most con--
venient for the trial of their strength; the party opposed
to the right, because a legislative construction was far
less likely permanently to affirm it, than if» it was found-
ed upon the power of the Constitution, an instrument
entirely out of the power of Congress to change; the
party sustaining the right, because a doubt yet lingered
whether the Constitution itself would be deemed explicit

30

enough upon the subject, to justify the President in acting
without a confirming, cot.emporaneous construction on
the part of the legislature. But the progress of the de-
bate, together with the decided majority at its close, ap-
pears to have given confidence to the friends of the right,
and to have effected a considerable change in their opin-
ions. Far from supposing a legislative grant as lilrely to
do good, it became a matter of serious question with
them, Whether its supposed necessity would not injure,
instead of serving the cause the Constitution itself
was thought to secure. _A change of action is visible
upon this change of opinion. The objection, which had
been raised with so much effect against the specification
of the mode of appoirttvnerzt, was now urged with warmth
against that of removal. It was rnaintained that both
were already provided for by the Constitution, so that,
instead of being faintly pressed by the minority as a hos-
tile measure, the position was maintained by the majority,
as their most favorable one. One material distinction
was, nevertheless, preserved. The minority was desirous
of altogether sinking any mention of the subject, and
thus to leave it a question still open for debate at some
future moment, while the majority wished to introduce
some incidental allusion, which, while it appeared to af-
firm no right, yet implied its existence as derived from
the Constitution, and thus gave to it the sanction of a
formal legislative acknowledgement.

In consequence of these changes in opinion, when the

V bill came back to the House on the 22d of June, Mr. Eg-

bert Benson of New York, a person, whose judicial stand-
ing is perfectly well known by all acquainted with the
men of that generation, and who had been a warm advo-
cate of the disputed clause, came forward with a. motion
to strike it out; the very motion which, from the other
side, had just before so decidedly failed. I-Ie, however,
accompanied it with a motion to amend, by introducing in
another section, words, the effect of which were designed
to serve the purpose I have stated. So that, instead of
declaring thatithe officer should be removable by the Pres-
ident alone, the bill was made to provide. for the contin-
gency, “ whenever he shall be removed by the President,”
thus admitting the constitutional right of the President,
teed of making a legislative grant. After a brief de-

31

bate, the motion to add the words was carried by a vote
of 30 to 18, and that to strike out by 31 to 19. So that
the bill was finally made in this respect to stand on the
firmest footing. It avoided the appearance of granting
any power, and yet contained a strong acknowledgment
that it existed, and was derived from a higher instrument
than a legislative act ; from that by which all legislative
acts thernselves acquire their binding force 5 from the
Constitution of the United States.

The bill finally passed the House of Representatives
by the following vote:

Yeas ——- Messrs. Ames, Benson, Boudinot, Brown, Burke, C ad-
Wallader, Carroll, Cl‘?/mar, Contee, Fitzsirnrzzons, Gilman, Good-
hue, Griilin, Hartley, irleister, I-Inger, Lawrence, Lee, Madison,
Mopre, MSL1lile1"1bu1*gr,rSc1t1ureman, Scott, Sedgewick, Seney, Sin-
nic (son, y vester, rurnbull, and Vininrr.-----‘.39.

N ays---Messrs. Coles, Gerry, Grout, lldathorne, Huntington,
Jackson, Leonard, Liverrnore, Matthews, Page, Parker, Partridge,
Van Rensseluer, ».‘§'/urrmrm, Smith of S. C., Smith of Md., Stone,
Stnrges, Sumpter, Thatcher, Tuclter, and White.--22.

It will be perceived that of all the members of the
convention which framed the Constitution, who signed
it after it was framed, and were in this House of Repre-~
sentatives, five whose names are rnarlred in italics are
found among the yeas, while but one is in the negative.
Mr. Baldwin, who appears to have been absent, rnalces a
sixth in favor of the principle, as his course in the debate
leaves no doubt of his opinion. Six out of the seven
signers of the Constitution, in the first House of Repre-
sentatives, deliberately put upon record the meaning their
own instrument was designed to convey. Six out of
seven confirmed the construction, giving to the President
the unqualified power of removal from office.

The bill went to the Senate on the Zlltlr of June, and
in its regular progress appears to have been there very
thoroughly debated. Unfortunately the practice at the
time wasfor that body to sit with closed doors, so that
we have no record left of the opinions of its very distin-
guished members. This is more particularly to be regret-
ted in this instance, as the question was one affecting
their own rights, and the decision in favor of the bill was

r a clear renunciation, on their part, of powerclaimed for

332

them under the Constitution. That the majority must
have been influenced by the clearest conviction of duty,
is manifest; because the ordinary motives of action were
impelling them forcibly in the other direction. Had the
discussion been recorded, We should probably have been
saved a revival of it in the same body; but it was not,
and We must be content with the meagre facts transmit-
ted upon the journal. On the 18th of July, the question
was taken upon a motion to strike out the Words introdu-
ed by Mr. Benson, in the manner 1 have already described,
and the vote being 9 to 9, was lost by the casting vote of
the Vice President, John. Adams. But when the question
was again taken on the passage of the bill, another sena-
tor was present, and his vote decided the voice of the body
itself in favor of the principle. That senator was Oliver
Ellsworth, a man whose name carries some weight with
even the modern Whigs, and who, as Chief Justice of
the Supreme Court of the Union, afterwards contributed
largely in fixing the foundations of our constitutional
law.
The vote stood as follows:

Yeas-—-Messrs. Bassmft, Carroll, Dalton, Ellsworth, Elmer,
Henry, Mow-z'.<;, Patterson, Rear], Strong. ---10.

Nays-~— Messrs. Er:-w, Grayson, Gunn, Jolmson, Izard, Lang-
don, Lee, Maclay, Wingate. ----9.

Thus, of the signers of the Constitution in the Senate
four are in the majority, besides Messrs. Ellsvvorthand
Caleb Strong, who were accidentally absent at the time
of signature, but entirely approved of the instrument,
While only three are found among the nays. General
‘Washington, the President of the Convention, also as
President of the United States approved the bill. ‘

It will be seen from this statement, that of seventeen
persons, who had assisted in framing the Constitution it-
self, and approved the work, and who were at this time
engaged in carrying its details into execution, thirteen
maintained the exclusive right of the President under it
to remove his oflicers; six of them being in the very
body, for whom had been asserted a participation in the
right. I attach very great importance to this fact of the
presence of so many of the original convention at this
decision. They certainly were most likely to know the

33

intention and design of the instrument they assisted in
forming; and when it is considered that so large a pro-
portion of the whole number concurred in opinion, one
half of whom were in a situation in the Senate, where
their very natural feelings would have carried them to
the other side, the decision appears to me as strong a. co-
temporaneous construction of a doubtful point, as could
ever have been expected to take place out of the walls of
the convention itself.

But even this does not present the whole strength of
the cause. Another argument in its favor must be drawn
from the general character of the division. Mr. J efferson
has laid down a rule of construction which should never
be lost sight of in cases ati"ecting the Constitution, and
which is so forcibly expressed by himself as to render
words of mine superfluous. In spealring of his own

course, he says :--—--

“The Constitution, on whichour Union rests, shall be admin-
istered by me according to the safe and honest meaning con-
templated by the plain understanding of the people of the United
States, at the timeiofits adoption ; a meaning to be found in the
explanations of those who arlvocatecl, not of those who opposed
it; and who opposed it merely lest the constructions should be
applied, which they denounced as possible. These explanations
are preserved in the publications of’ the time, and are too recent
in the memories of most men to admit of question.”

If, in consonance with the spirit of construction recom-J

mended in the preceding extract, we look to the party
character of the votes in Congress, we shall find among
the majority, the names of Fisher Ames, Theodore Sedg—-
wick, Benjamin Groodhue, and Caleb Strong of Massachu-
setts, John Laurance and Egbert Benson of New Yolrk,
Elias Boudinot, William Patterson, and Jonathan Elmer of
New Jersey, George Clymer,’l‘homas Fitzsimrnons, and
Robert Morris of. Pensylvania, John Vining of Delaware,
Charles Carroll of Carrollton, James Madison of Virginia,
Daniel Huger of South Carolina, and Abraham Baldwin of
Georgia; all of them friendly to the Constitution, and efli-
cient in procuring its adoption by the people, while on the
other hand we find in the negative, Mr. Elbridge Gerry,
who refused tosign the Constitution, and was elected to
his place by the party opposed to it, over the head of Mr.
. 5

34

Gorharn who did sign it ; Mr. Jonathan Grout who voted
against ratification in the convention of Massachusetts; Mr.
Isaac Coles, who did the same in that of Virginia, and as
these three are the first on the list, they may serve to give
the general character of the opposition Without the ne—-
cessity of further and more laborious investigation. Then
how different must be the authorityof these persons with
us who vencrate the Constitution, when we reflect that
one party was doing all in its power to carry it into success-
ful operation, while the other, having expressed a dislike
and dread of its tendency, were in no haste, to confess
themselves in error. V

Let the new Whigs, while they bear in mind the
reasoning which I havelalready advanced, now listento
the authority. Let them remember that the founders of
the Constitution themselves are speaking, and that these
voices, coming as they do from the last generation, convey
in aid of the , sacred instruments which guaranteed our
independence, the most valuable lessons how to preserve
it. Let them attentively listen, for since we have been
under the Constitution, no battles have ever been fought
with such fury in its defence, as those waged at the
outset by these very rnen.

FISHER AMES, of Massachusetts:

“It is aleacling principle in every free government, it is a
prominent feature in this, that the legislative and executive
powers should be kept distinct; yet the attempt to blend the ex-
ecutive and legislative departments in exercising the power of
removal, is such a mixing as ought not to be carried into prac-
tice on arguments grourtrlrzrl on irrzplicatian. And the gentleman
from Virginia’s, (Mr. White) reasoning is wholly drawn from
implication. He supposes, as the Constitution qualifies the Pres-
ident’s power of appointing to office, by subjecting his nomina-
tion to the concurrence of the Senate, that the qualification
follows of course in the removal.”

, “ The exercise of this power by the Senate would be subver-
sive of the great principles of the Constitution, and destructive
to liberty ; because it tends to intermingle executive and legisla-
tive powers in one body of men, and this blending of powers
ever forms a tyranny.” L

“It is said, that the Constitution has blended these powers-
which we advise to keep separate, and therefore we ought to fol-
low in completing similar regulations; but gentlemen ought to

35

recollect, that has been an objection against the Constitution;
and it‘ it is a well founded one, we ought to endeavour, all that is
in our power, to restrain the evil, rather than to increase it.
But, perhaps, with the sole power of removal in the President, the
check of the Senate in appointments may have a salutary ten-
dency; in removing from oftice, their advice and consent is lia-
ble to all the objections that have been stated.”

Mark how he speaks of the doctrine, that the President
and Senate are the appointing power.

“It is admitted, that the Senate may check and regulate the
appointment by the President, but t/my can do not7az'ng more;
they are merely an advisory body, and do not secure any degree
of responsibility, which is one great object of the present Consti-
tution.

“The President, I contend, has expressly the power of nomi-
nating and appointing, though he must obtain the consent of the
Senate. 1113 is the otgcrzt; t/L6 Scrznte may prevent his acting,
but cannot act tlu2msoZ'ucs.” i

Again, “His idea was that the President was the agent, and
the Senate a check. to regulate the agency.”

And of the consequence of such a construction, he
says, n

“An officer, who superintends the public revenue, will naturally
acquire a great influence. If he obtains support in the Senate,
upon an attempt of’ the President to remove him, it will be out
of the power of the House, when applied to by the first magis-
trate, to impeach him with success; for the very means of prov-

l ing charges of mal-conduct against him will be under the power

of the oflicer; all the papers necessary to convict him may be
withheld, while the person continues in his office. Protection
may be rendered for protection. . .

“If the Senate are to possess the power of removal, they will
be enabled to hold the person in office, let the circumstances be
what they may that point out the necessity or propriety of his
removal; it creates a permanent connexion ; it will nurse faction;
it will promote intrigue to obtain protectors, and to shelter tools.
SIR, IT IS INFUSING POISON INTO THE eo;\'srrrUTroN; it is an

im ure and unchaste connexion ' there is ruin in it' it is tern t- .
3 7 P

ing the Senate with forbidden fruit; it ought not to be possible
for a branch of the legislature even to hope for a share of execu-
tive power; for they may be tempted to increase it, by a hope to
share the exercise of it. People are seldom jealous of their own
power; and if the Senate become part of the executive, they
will be very improper persons to watch that department; so far

36

from being champions for liberty, they will become conspirators
against it.”

Yes, Mr. Ames tells us, that the ‘.‘abl.est_ defender of
the Constitution”, 1S at thus time occupied 11] infusing into
it deadly poison!

Tnzeononn Srznowrcx, of Massachusetts:

“It is not conceded on one side, though aiiirmed on the other,
that the power of appointment rests in any sense in the Senate.
The words in the Constitution (and the t1i‘gt1r'11ents have been
drawn only from the construction) lead to a (.lifTe1'ex'it object. It
is therein said, that the l’resir.lent shall nominate and appoint---—
flze words are clear. Now if we take another power, which is
made analogous in the same clause, the power of making tree-
ties, will any one contend that treaties are made by the Senate?
So the legislative power is loclgetl in the Senate and House of
Representatives; yet this legislative power is exercised to a cer-
tain degree under the influence of the executive ma.gistrate.
Bot has it ever been considered that the President constitutes
part of the legislature’! Why, 'Vl’l”lGl‘Gi0l'G, will gentlemen con-
tend, that the influence which one branch of the legislature has
over the executive, vests that branch with executive powers’!
T/re doctrz'ne of the Corzstitrttirirz is Ii/M3 reverse of t/01:3.”

Grnonon TIrIA'fCI~l1ER, of Massachusetts:

“ Why were the jucl,cg;es particularly mentioned in the Consti-
tution, as holding their offices du1'ing,; good behaviour, if it was
not supposed that, without this express declaration in their favor,
they, in common with all other ofiicers, not immediately chosen
by the State legislat.ures and the people, would hold them during
pleasure’! The clause respecting irnpeachrnents was particularly
calculated for ren'1oving; unworthy oflicers of the other descrip-
tion.”

BENJAMIN Goo'n1~1U:1:~:, of Massachusetts:

“ Was decidedly against combining the Senate in this busi-
ness: he wished to make the President as responsible as possible
for the conduct of the oflicers, who were to execute the duties
of his own branch of the government. If the removal and ap-
pointment were placed in the hands of a numerous body, the
responsibility would be lessened. He admitted, there was a
propriety in allowing the Senate to advise the President in the
choice of officers; this the Constitution had ordained for wise
purposes; but there could be no real advantage arising from the

37’

concurrence of the Senate to the removal, but great disadvanta-
ges; it might beget faction and party, which would prevent the
Senate from paying proper attention to the public business. Upon
thelwhole, he concluded the community would be served by the
best men, when the Senate concurred with the President in the
appointment; but if any oversight was committed, it could best
be corrected by the superintending power. It was the peculiar
duty of the President to watch over the executive oflicers; but
of what avail would be his inspection, unless he had a power to
correct. the abuses he might discover’?

“It moreover appeared very clear to him, that the Senate,
who are a judicial body, ought not to meddle with the business
of removal; because they will have prejudged the case, if an
impeachment should be thereafter made.”

I might with perfect confidence rest my case here, and
call upon the rnodern Whigs to show cause, why they
are now ready to abandon the sound principles of their
ancient leaders in lvlassachusetts, as those principles stand
in living characters for their everlasting guidance; but
there is more and str*oriiger testimony to come.

Jenn LAURANCE, of New York:

“It has been argued, that we are to find the power of removal
in the construction arising‘ from the nature of the authority
which appoints. Here I would meet the gentlemen, if it was
necessary to rest it entirely on that ground. Let me ask the
gentlemen who appoints’! The Constitution gives an advisory
power to the Senate, but it is considered that the President makes
the appointment. The appointment and responsibility are actu-
ally his; for it is expressly declared that he shall nominate and
appoint, though their advice is required to be taken. If‘, from
thenature of the appointment, we are to collect the authority of
removal, then I say, the latter power is lodged in the President;
because, by the Constitution, he has the power of appointrnent;
instantly, as the Senate have advised the appointment, t/re act is
required to be etrecutecl by t/re Presirlent. The language is ex-
plicit; ‘He shall nominate, and by and with the advice and
consent of‘ the Senate, appoint,’ so that if the gentlemen’s gen-
eral principle, that the power appointing shall remove also is
true, it follows that the removal is to be by the President.

“But supposing the power to rest in the Senate, is it more
safe in their hands, than where we contend it should be?
Would it be more satisfactory to our constituents, for us tornake
such a. declaration in their favor? I believe not.”

38

Let it be recollected that this was said at a moment,
when the political character of the Senate was perfectly
in accordance with that of the person speaking, and the

majority in the House. Next comes

EGBERT BENSON, of New York:

“ It has been warmly contended that the power of removal is
incidental to the power of appointment. It may be true in gen-
eral ; but upon examination we shall find there is a distinction
in this case, from what the general principle supposes. If the
President and Senate are t.o be considered as one body, delib-
erating together on the business of appointments, every indi-
vidual of which participates equal powers, the reasoning that
has been urged will hold good. But I take it for granted, that
they are two distinct bodies, and can only give a simple afirma-
time or negative. N0 mrmzlwr of the :S'::rz(zte has power to oyfer an
origirzrzl proposit‘z'on.. In short, the moment we depart from this
simple idea, that the provision in the Constitution is intended for
any other purpose, but to prevent the President from introducing
improper persons into oflice, we shall find it diflicult to fortn any
certain principle, upon which they ouglit to act; and our opin-
ions and deliberations will be discordant and distracted.

“In short,” (he says at the close of‘ his luminous speech,) “ it
appears to me, that introducing; this clashing of the powers
which the Constitution has given to the executive, will be de-
structive of the great end of government. So far will restraining
the powers of that department he l"rmn producing security to the
liberties of the people, that they will inevitably be swallowed up
by an aristocratic l2od_-y.”

Ennis BOUDINOT, of New Jersey:

“This leads me to consider in whom the appointment is
vested by the Constitution. The President nominates and ap-
points; he is further expressly authorized to commission all
officers. Now, does it appear from this distribution of power,
that the Senate appoints’! Does an officer exercise powers by
authority of the Senate’! No; I believe the President is the
person from whom he derives his authority. He appoints; but
under a check; it is necessary to obtain the consent of the
Senate; but after that is obtained, 1 ask who appoints’! who
vests the ofiicer with authority’! who commissions him’! The
President does, these acts by his sole power; but they are ex.er-

cised in consequence of the advice of another branch of gov-'

ernment. If, therefore, the oflicer receives his authority and
commission from the President, surely the removal follows as
coincident. . l

39

“ The Constitution vested all executive power in the President.
The power of designating and appointing officers to execute the
laws was in its nature executive. Consequently, the President
would appoint, ex oflicio, if he had not been limited by the
express words of the Constitution. Hence he inferred, ex ofiicio,
he would remove without limitation.” r

Geoaea CLYMER, of Pennsylvania, a signer of the De-
claration of Independence as well as of the Constitution :

“ The power of removal was an executive power, and as such,
belonged to the President alone, by the express words of the
Constitution : ‘ The executive power shall be vested in a Pres-
ident of' the United States of America.’ The Senate was not an
executive body, they were a legislative. one. It was true, in
some instances, they held aqualilied check over executive power,
but that was in consequence of an express declaration in the
Constitution; without such declaration, they would not have
been called upon for advice and consent in the case of appoint-
ment; why then shall we extend their power to control the
removal, which is naturally in the executive, unless it is likewise
expressly declared in the Constitution ’l”

“ Ifthe President is divested of his power, his responsibility is
destroyed; you prevent his efliciency, and disable him from
affording that security to the people, which the Constitution.
contemplates. What use will it he of, to call the citizens of the
Union together every four years to obtain a purified choice of a
representative, if he is to be a mere cypher in the government?
The executive must act by others; but you reduce him to a
mere shadow, when you control both the power of appointment
and removal; if you take away the latter power, he ought to
resign the power of stipeririteir1<‘ling and directing the executive
parts of government into the hands of the Senate at once, and
then we become a (lfl,Ilg€l‘(.)LlS aristocracy, or shall be more des-
titute of tenergy than any government upon earth.”

It may appear tedious to some to follow the train of so
much CO1’1C1.1t‘I‘l1’],g testimony upon points made already
familiar in the course of my argument. To such as are
already convinced perhaps no further, examination is
necessary. But they will not be the majority among the
new Whigs; and to the more obstinate it is absolutely
necessary for me to ‘present, if by no means the whole,
at least the strongest part of the great mass of Whig
authority, which their ancient principles bind them to
respect. I am resolved to show that, if they do follow

40

the advice now given to themnpon this question, they
will be guilty of an utter desertion of their ancient land-

marks. _
The next person in the array of authority is JOHN

VINING, of Delaware :

“ It may be contended that the President shall have the power
of removal, because it is he who appoints. The Constitution
says he shall nominate, and, under_ certain qualifications, appoint.
The Senate do not appoint; their judgment only is required to
asquiesce in the President’s nomination. VVhere then is the
natural responsibility placed’! because, where that is, ought to
be the power of removal. The Constitution contemplates no
other principle. If we were to irzsert the contrary one, the gov-
ernmrmti must go to clcstruct'i0n.”

“ Will geiitlemeri View for a moment the efi"ect of their argu--
ments’! Suppose the President desirous to remove a bad officer,
and the Senate refuse, what is to become of your impeachment’!
I say, Sir, that the House of Representatives, combined with
your executive, will be unable to procure the dismission of an
ofiicer,wlio is hourly betraying his trust,and that in a most flagi-
tious manner. If your proofs are clear as a rnathernatical dem-
onstration, it is all in vain; your tribunal, which is to decide
upon the impeachrnent, has prejudged the question. I will, nev-
ertheless, on account of the expected patriotism of that body,
admit that there is a possibility of obtaining justice. But are
the interests, the riglits, and happiness of this great community
t.o depend upon a bare possibility alone, when our Constitution
has provided safety and stability to the public welfare? We say
that the mode of removing bad or obnoxious officers by impeach-
ment is tedious and uncertain at best; but it is not to be relied
on, if the Senate are connected with the President in the general
power of retrieving; for it would ever be in the power of a fac-
tion, or a party in the Senate, so to clog the wheels of our politi---
cal machine, as to render its motion slow and unavailing; and
this they could do under an impenetrable veil ; they could do it
without being in the least degree responsible.”

“ If you give the Senate a power in the removal, you give
them an agency in the executive business which the Constitution

never contemplated.”

RICHARD BLAND LEE, of Virginia:

“ It is laid down as a maxim in government by all judicious
writers, that the legislative, executive, and judicial powers should
be kept separate and distinct as possible, in order to secure the
liberties of the people. And this maxim is founded onthe ex-

41

perience of ages; for we find that however governments have
been established, however modified in their names or forms, if
these powers are blended or exercised by one body, the effects
are ever the same, the public liberty is destroyed.

“The framers of the Constitution came from among the peo-
ple, who venerated this general principle; they were the select
and honored sons of those people, who, like them, were impress-
ed with sovereign respect for a truth which supported the great
object; a good and free government. Characters like these,
with such impressions, were not likely to forego principles in
which they were matured. Did they forego them’? Examine
the result of their deliberations, and see how carefully they are
preserved. They have divided our government into three prin--
cipal branches, with express declarations that all legislative
power shall rest in one, all executive in another, and the whole
judicial in a third. It is our boundrm duty to z'mz'tate their great
eazarnples, and to support t/ta separation w/rich they lzaveformed.”

I regret that I cannot extract the whole of this speech
of Mr. Lee, which is as strong upon the points immedi-—
ately connected with the principles of the genuine Whig
party, as any that was made; but I am. so overwhelmed
with evidence, that even nice selection makes it too vol-
uminous.

ABRAHAM BALDWIN, of Georgia:

“A gentleman asks where is the danger of mixing these
powers, if the Constitution has already done it’! That gentle-—
man knows that it has always been viewed as an evil, and an
association of‘ the legislative and executive powers, in one body,
has been found to produce tyranny. It is a maxim among the
wisest legislators not to blend the branches of government, fur-
ther than is necessary to carry their separate powers into more
complete operation. It was found necessary to blend the powers
to a certain degree, so far we must acquiesce. The Senate
must concur with the President in making appointments, but
with respect to the removal, they are not associated; no such
clause is in the Constitution, and therefore I should conclude
that the Convention did not choose they should have the power.”

I have reserved to the last, the opinions of James Mad-
ison, as being the strongest of all, and themselves more
than equal to a total settlement of this question. Mr.
Madison, as is well known, was throughout one of the
pillars of the Constitution, when the storm raged around
it. it He was perfectly familiar with the principles which

4'2

operated in producing both general and detail; and has
always since been appealed to as a leading authority re-
specting them. In this instance he was the colossus of
the debate. He spoke no less than six times, and each
time seems to have had a decided effect upon the House.
I can do little justice to his perspicuous exposition of the
Constitution; but if the Whigs really wish to adhere to
sound principles upon this occasion, I would earnestly
exhort them to read What he says in full.

“ I feel,” says he, “the importance of the question, and know
that our decision will involve the decision of all similar cases.
The decision, that is at this time made, will become the perma-
nent exposition of the Constitution; and on CZ permanent expo-
sition of the Constitzztion will depend the genius and character
of the whole government. It will depend, perhaps, on this de—-
bate, whether the government shall retain that equilibrium which
the Constitution intended, or take a direction toward aristocracy,
or anarchy among the members of the government.”

“There is another maxim which ought to direct us in ex-
pounding the Constitution, and is of great importance. It is
laid down in most of the Constitutions or bills of rights in the
republics of America, it is to be found in the political writings
of the most celebrated civilians, and is every where held as es-
sential to the preservation of liberty, that the three great depart-
ments of governments be kept separate and distinct; and, if in
any case they are blended, it is in order to admit a partial qual--
ification in order more effectually to guard against an entire con-
solidation. , I think, therefore, when we review the several parts
of this Constitution, when it says that the legislative powers
shall be vested in a Congress of the United States under certain
exceptions, we must suppose they were intended to be kept sep-
arate in all cases in which they are not blended, and ought con-
sequently to expound the Constitution so as to blend them as
little as possible.”

“It is said that it comports with the nature of things, that
those who appoint should have the power of removal ; but I can-
not conceive that this sentiment is Warranted by the Constitution.
I believe it would be found inconvenient in practice. It is one
of the most prominent features of the Constitution, a principle
that pervades the whole system, that there should be the highest
possible degree of responsibility in all the executive officers
thereof; any thing, therefore, which tends to lessen this respon-
sibility is contrary to its spirit and intention, and unless it is sad-
dled upon us expressly by the letter of that Work, I shall oppose
the admission of it into any act of the legislature.

43

“ If you say that oflicers shall not be displaced, but by and
with the advice and consent of the Senate, the President is no
longer answerable for the conduct of the officer, all will depend
upon the Senate. You here destroy a real responsibility without
obtaining even the shadow; for no gentleman will pretend to say
the responsibility of the Senate can be of such a nature as to
afford substantial security. But why, it may be asked, was the
Senate joined with the President in appointing to office if they
have no responsibility’! I answer, merely for the sake of advis-
ing, being supposed from their nature better acquainted with the
characters of the candidates than an individual; yet even here
the President is held to the responsibility; he nominates, and
with their consent appoints; no person can be forced upon him
as an assistant by any other brrtneh of the government.”

“ I shall only say, if there is a principle in our Constitution,
indeed in any free Constitution, more sacred than another, it is
that which separates the legislative, executive, and judicial pow-
ers; if there is any point in which the separation of the legisla-
tive and executive powers ought to be maintained with greater
caution, it is that which relates to officers and ofiices. The
powers relative to ofiices are partly legislative and partly execu-
tive. The legislature creates the ofliee, defines the powers,
limits its duration, and annexes as compensation. This done,
the legislative powereeases They ought to have nothing to do
with designating the man to fill the office. That I conceive to
be of an executive nature. Although it be qualified in the Con-
stitution, I would not extend or strain that qualification beyond
the limits precisely fixed for it. We ought always to consider
the Constitution with an eye to the principles upon whieh it was
founcled. In this point of view, we shall readily conclude, that
if the legislature determines the powers, the honors, and emolu-
ments of’ an office, we should be insecure if they were to desig-
nate the oflicer also. The nature of things restrains and con-
fines the legislative and executive authorities in this respect; and
hence it is that the Constitution stipulates the independence of
each branch of the government.”

“ Is there no danger that an officer, wheushe is appointed by
the concurrence of the Senate and his friends in that body, may
choose rather to risk his establishment on the favor of that branch
than rest it upon the discharge of his duties, to the satisfaction
of theexecutive branch, which is constitutionally authorized to
inspect and control his conduct; and if it should happen that

. the officers connect themselves with the Senate, they may mutu-

ally support each other, and for want of efficacy reduce the
power of the President to a mere vapor; in which case -his re-
sponsibility would be annihilatedand the expectation of it un-

44

just. The high executive ofiicers joined in cabal with the Senate
would lay the foundation of discord, and end in an assumption
of the eazecutive power, only to be removed by at mvalzzt-ion in the
government.” ‘

Lastly. “The gentleman from Connecticut has advanced a
doctrine which was not touched upon before. He seems to think
(if I understood him right) that the power of displacing from
ofiice is subject to legislative discretion; because it having a
right to create, it may limit or modify as is thought proper. I
shall not say, but at first view this doctrine may seem to have
some plausibility; but when I consider that the Constitution
clearly intended to maintain a marked distinction, between the
legislative, executive, and judicial powers of government; and
when I consider that, if the legislature has a power such as con—-
tended for, they may subject and transfer at discretion powers
from one department of government to another; they may, on
that principle, exclude the President altogether from exercising
any authority in theremoval of officers; they may give it to the
Senate alone, or the President and Senate combined; they may
vest it in the whole Congress, or they may reserve it to be exer-
cised by this house. When I consider the consequences of this
doctrine, and compare them with the true principles of the Con-
stitution, I own that I cannot subscribe to it.”

There reinains to me but a siiigle further authority to
note. This is taken not from the debate of the House
‘1 . = . .
of Representatives, but from the decision of the Supreme
Court of the United States, in the case of Marbury and
Madison, and relates to the true ‘nature of the appointing
power, which has been maintained to be the President
and Senate.

“ These are the clauses of the Constitution, and laws of the
United States, which afiectthis part of the case. They seem to
contemplate three distinct operations. 4

“ 1st. The nomination. This is the sole act of the President,
and is completely voluntary.

‘‘2d. The appointment. This is also the act of the Pres-
ident, and is a voluntary act, though it can only be performed by
and with the advice and consent of the Senate.

“ 3d. The commission. To grant a commission to a person
appointed might perhaps be deemed a duty enjoined by the Con-
stitution. ‘ He shall,’ says that instrument, ‘ commission all the
ofiicers of the United States.’ ” i

And further on. “ The appoivztnzeizt being the sole act qf the
President, must be emphatically evidenced, when it is shown,
that hehas done every thing to be performed by him.”

45

Again. . “ The appointment being, under the Constitution, to
-be made by the President personally, the delivery of tlie deed of
appointment, if necessary to its completion, must be made by
tthae President also”

Again. “ The appointrnerzt is the sole act of the President.”
1 Cranch, p. 160.

Again. “ The appointment is the sole act of the President.”
1 Cranch, p. 161.

Let me now close this review of authority by a sum--
mary of the principles maintained as vital to the Consti-
tution, by the ancient whigs, and by contrasting them
with those now broached for the modern ones in the
speech of Mr. Webster.

The old whigs emphatically rested upon the principle of
a clear separation of the legislative and executive power.

Mr. Webster maintains that no such principle exists,
because the line between them cannot be accurately de-
fined.

The old whigs assert that the President appoints and
the Senat.e advises.

Mr. Webster repeats no less than seven times that the
President and Senate appoint.

The old Whigs declare that to vest the power of remo-
val in the Senate would be subversive of the true princi-
ples of the Constitution.

Mr. Webster, on the other hand, claims for the Senate
this very power.

In the last place, the old whigs deny that the mere
right of regulating oflice in the legislature, can extend so
far as in any degree to affect the exercise of the Presi-
dent’s legitimate power of appointment and removal.

Mr. Webster otters a deliberate opinion that Congress,
by the mere right of regulating office, can make every
officer hold his place for life, or for any term of years,
without reference to the powers of the executive.

If ever there was a difference in principle wide as the
poles asunder, here is one. I call upon the new Whigs,
to reflect well before they decide on which side to in-
cline. .

Facilis descensns averno;
Noctes atque dies patet atri janua Ditis:
Sed revoc-are gnadum, snperasque evadere ad auras,
I-Ioc opus, hic labor est! ,

4.6

I do not deem it quite proper to close this appeal with-
out some notice of the only authority which has ever been
much urged upon the other side. This m.ay be found in
the 77th No. of the Federalist, written by Alexander Ham-
ilton, and is in the following words:

“ It has been mentioned as one of the advantages to be expect-
ed from the cooperation of the Senate in the business of appoint-
ments, that it would contribute to the stability of the administra.-
tion. The consent of that body would be necessary to displace
as well as to appoint. A change of the chief magistrate, there-
fore, would not occasion so violent or so general a revolution in
the officers of the government, as might be expected if he were
the disposer of oflices.”

It is the more difficult to judge of the motive for this
assertion, (it being nothing more,) from the fact that no
such consent to displace is required by the words of the
Constitution, and yet the author has denied himself any
benefit from the only implication by which others have
ever attempted to affirm it. He is not one of those who
make the President and Senate the appointing power,
and then maintain that to the President and Senctte re-
sults the removing power. So far from this, he devotes
much space to the examination of the true relation be-
tween the President and Senate, contrasting it all the
while with a system in which the appointing power was
really shared by the executive with an advising council.
He shows the evils of this latter arrangement, as they
were felt in the constitution of New York, until they be»-
came so intolerable as to force a reform. The governor
of New York and his Cotmcril appointed to office. The
consequence of which was, the Council ruled the gover-
nor, and that in no creditable manner. Mr. Hamilton
clearly shows that this was no fit precedent for the use of
the national government; and therefore avoided the idea
that the Senate was the appointing power. But his suc-
cessors, who lean upon his authority, make this fallacy,
exploded by him, the foundation of all their argument.

The only clue now to be had for this singular opinion,
must be found in the proposition made by its author of a
form of government to the Convention. In that form he
provided in express terms for the submission both of
appointment and removal to the consent of the Senate. It

47

is clear that he even then saw so little of implication
resulting from the confined grant of a check upon the
appointing power to the Senate, that he thought it neces-
sary to specify the check upon the removals also. He
appears to have overlooked the remarkable fact of the
omission of the latter check in the final draft of the
Constitution. An omission, which taking place after the
consideration of his plan, and regarded in connexion with
the expressed sentiments of so many of the framers of the
Constitution in the first Congress, speaks volumes re-
specting the true feelings of a majority of the Convention.

Witliout any disrespect to the memory of Mr Hamil-
ton, I must be permitted to add, that, as between him and
Mr. Madison, he does not appear the one who best tinder-
stood the feelings of America upon government. His
own plan was the most obnoxious to those feelings, of all
those submitted. His idea of making the senators offi-
cers for life, and entrusting to them the war-making
power, as well as a control over treaties and all appoint-
ments and removals, except in the three principal offices,
was one he had a perfect right to entertain and suggest;
but it was altogether rniscalculated for any object of pub-
lic utility at the time, because it was not in consonance
with the feelings of the people. Perhaps the great mis-
take of his political career may be said to have been a
rather habitual neglect of the tone of public sentiment;
an over confidence in the dictates of his own judgment,
which led him to forget or disregard the judgment of
others. In his explanation of the Constitution, he must
be regarded as giving his own opinions, rather than those
of the Convention, and in the very passage in point, he
was probably influenced, rather by the character of his
owe plan, than by the voice of the rnajority- On this
account it is, that, upon any question where his mere
authority conflicted with that of Mr. Madison, I should
regard the latter as most likely to express the public
opinion. But when, as in this instance, his bare, un-
supported assertion is put in opposition to a clear and
thorough exposition of the subject, I cannot hesitate a.
moment how to decide. .

The notion of increasing the stability of the govern-
ment, by this check upon removals, has descended from
Mr. Hamilton through all his followers. If by stability,

48

is meant that a had set of public oflicers would be got rid
of with infinitely more difficulty than at present, perhaps
there may be something in it. Bad indeed must be the
man who could not raise some friend in. the Senate, to
resist his removal. Cold would be the sympathies of
forty eight persons elected from any portion of the com-
munity, if they could none of them be roused by tales
of distress, by pictures of men rendered desperate, of
women and children houselcss and pennyless, by the
account of hopes of amendment blasted, and certainty of
family ruin. And all for_what? A little misconduct,
perhaps, which Would, no doubt, appear very differently
to the eyes of the President, who had watched and been
Wearied by its progress, and to those of partisan senators
who see it but lately, or perhaps only hear of it at second
hand, through the softened rep1'esentations of friends. In
the mean time the Senate becomes the focus for all the
discontented, for all who fear they may be removed, be-
cause they know they deserve to be. The attention of
public officers will be turned to the business of forming
strong. connexions in that body; to anchoring firmly in that
haven, in prospect of an executive storm. The Senate
must then become the arena where the President shall
descend to fight with all his subordinate agents, with the
strongest probability in party times, that he may be dis»-
graced by the issue, rather than the persons he wishes to
censure.

It is strange to observe the blindness with which politi-
cal leaders often rush into temporary projects, in utter
disregard of the possible consequences of theirown acts
to themselves. Four individuals in the Senate now ad-
vocate this change of the removing power, each of whom
has been, is, or may again be a candidate for the Presidency.
Should a bill involving such change be passed by their
united exertions into a law, some one of them might be
the first and most severe sufferer under its operation.
Supposing, for example, (as is probable,) that the majority
in the Senate should presently appear on a different side,--
and notwithstanding that MM/Vebster should, against pres»
ent appearances, be elected President by the people. What
could he dowith Mr, Forsyth? How would he control
Mr.,Woodbury, and Mr. Dickerson? What success in
his career, with Amos Kendall, and W. B. Lewis, and the

49

rest of the present dynasty? Would not the whole execu-
tive department go into opposition; and be as thoroughly
-under Mr. Van Buren’s influence then, as the Whigs main.-
-tain that. it is no W? What sort ofa cabinet council would be
called together! What ‘prodigious mutual confidence would
ensue, and what energy in the executive arm! But if Mr.
Webster should think proper to send to the Senate a pro-
position to remove such officers as were refractory,and
put in others more agreeakile to his political principles,
they would doubtless turn short round upon him and say
in his own larligtiage, “Let him give his reasons and stand
on them; if they be fair and honest, he need have no
fear in stating; them.” Now even supposing that the
President should waive the Falstaflian punctilio, and give,
upon compulsion, reasons as plenty as blackberries; they
would probably have no relation to mere misconduct in
office. TheSenate would then ma.gr1a,11iir1ously refuse to
‘sanction the “persecution” of such meritorious officers,

and join to the refusal, no very ambi.guous opinion, that

the persons attacked would prove, in coopercttion with
t/temselees, a far better ezscecutive than the President could
possibly be. If we are to jtidge of what party may do,
from what it has done, there is no improbability in this
description. To be sure, something might in this way
be gained in strtbility of public oflicers; but it would be

a stability from which the first chief magistrate, who felt .

himself strong enoug1*1 in the public favor, would seek
relief by a revolution.

But the President has too much patronage; it must be
checked in some ‘way, or the people Will fall into a state
of utter corruption. Without stopping to examine the
justice of this charge, more rnortifying to our national
pride than all those made by the most malignant foreign
travellers in this country put together, it maybe asked at
once, Whether the proposed change is at all likely to be
an improvement even in this regard. The President is one
man, has the feelings and passions of but one; '1"ebe
sure he can promise placesfto many, but the must perform
to some, and he can do so to comparatively few. Those,
to whom he fails, withdraw vexed as well as disappointed,
and generally end by going into opposition; thus making

a serious deduction from the value of patronage, and a
heavy counterbalance to its injurious effects. But the

50

Senate consists of forty-eight men, and each of the num-
ber actuated by as many inducements to enlarge the
sphere of his influence, as the President himself can be.
As dispensers of patronage, each must necessarily become
the centre of a new circle. The solicitation addressed to
each under the proposed change would be two fold---first,
of the friends of the person proposed to be removed, anxious
to secure him in office against the will of the President-----
second, of the friends of the person proposed to be sub-
stituted, anxious to secure a confirmation of the removal
in order to establish the vacancy. Thus forty--eight new
courts of favor must arise, every one with some motives
of action peculiar to itself, and adverse to those of all
the rest.

Nor does the difficulty rest even here. It may be re-
marked with truth, that a more extraordinary change has
of late taken place in the character of the Senate, than
that which has been noticed in the executive. That
body has become a sort of nursery for Presidential can-
didates. The fashion of the day is to put here all aspir-—
ing persons, and from this position to present them to the
people. Of the impolicy of drawing from the only body
in our government, which through the nature of its ori-
gin, has no direct sympathy with the people, it is not so
much my province to speak, as of its effect upon this
question of patronage. Under the contemplated change,
each Presidential candidate becomes, so far as promises
will go, as much a distributer of patronage as the Presi-
dent himself -— while by sharing the responsibility of
action with so many others, he is released from the bur-
den of performance, which the President cannot be, Thus
each member of the Senate can keep up the hopes of
an indefinite number of office-seekers, by holding out
the notion of exerting his influence, while, having per-
formed his promise, he is, by his power of throwing the
blame of failure upon the rest, absolved from all conse-

quences of disappointment. 'l‘he materials of power thus .

acquired, though not perfectly accordant in themselves,
would nevertheless be homogeneous in their action upon
the President. They must render the chief executive
office almost anullity, and that without infusing execu-
tive energy any where else, For in so great a diver-
sity of interests as would be found in the S_enate,

51

nothing would be brought to pass without long negotiation
and mutual accommodation. The consequences of such

a state of things, upon the standing of the Senate in‘

the public estimation, are too palpable to need exposition.
The people would soon cry out intrigue, bargain, and cor-
ruption, and in the course of time the charge might not
be made without good cause. .

But it was not part of my original plan to enter very
largely into the discussion of the mere expediency of the
proposed plan. Believing it to be false in principle, main»-
tained upon principles equally false, and entirely at vari-
ance with genuine Whig feeling, I have chosen to rest my
argument mainly here. I have tried to show that sound
reasoning, as well as consistency, calls upon the Whigs of
the present day to stand by the side of their ancestors.

V I now call upon you, modern Whigs, to do so. You
have seen both sides of the argument, and are fully pre-
pared to judge. You have read the opinions of men who
always stood very high in your affections and esteem.
You remember that Mr. Webster himself lately said of
0liveriEllsworth, that he was “ a gentleman who had left
behind him, on the records of the government of his
country, proofs of the clearest intelligence and of THE
m:EI>Es:r SAGACITY, as well as of the utmost purity and
integrity of character.” .

Yet Oliver Ellsworth’s vote, in the Senate itself, estab-
lished the principle I have defended.

You all recollect the triumphant tone with which Mr.
VVebster asked of the nullifier, whether Mr. Madison
“was likely to know the intentions of the convention
AND THE PEOPLE? "Was /ze likely to understand the Con-
stitution ? ”

Yet Mr. Madison’s arguments, in the House of Repre-
sentatives, established the principle I have defended.

Iaslr. you then to stand by such men as Oliver Ells—"

worth, and James Madison, and John Marshall, now that
they are attacked by Mr. Webster himself. They have
not changed since he praised them in the Senate. T/my
have ceased to be under motives to change. Mr. Web-
ster is yet perhaps hardly aware of the force and extent
of those which operate at this mornent upon him. I call
upon you to guard against them while you stand by the
colors of your party; to remember principle and forget

52

passion; to sustain the Constitution now and for everf

True it may be, that our political history is degenerating
in its character with the course of t.irne—--that is the
strongest reason why you should be the more careful not
to accelerate its destiny. It may be that our public, men
are not like the statesmen of former days-——-that is the best
reason why you should keep in mind the counsels the
latter have bequeathed to you. If there is consistency left,
why not let it rest with you? If there is honesty, why
not have the pride to be distirigtiislied by it? If a piece
of mechanism does not go exactly as your hasty judg-~
Inent pronounces best, shall you undertake to instruct the
artists who made it? you, who are under a thousand in-
fluences adverse to a fair observation of the movement of
the Whole machine ? and know comparatively nothing of
the difficulty of fittiang; its coinponent parts together? I
trust you will reflect fully upon this before a decision
takes place, which may be big with consequences fatal to
your whole form of §?,‘OV(31‘l’1m(BI1t. 'I‘hink not too much
merely of the present rnornent. If the tree your fathers
planted, by reason of some (1I‘O1.'l,§_§ltlt has ‘faded so as to
look less beautiful than it did, thetask for you is to re-
storeits verdure by no1.t1ris}l1in,g,>; the roots from the peren-
nial fountains you knew in your c.l‘1ildhood—---—-not to hew

away any noble limb ; far less, tolay the axe to its trunk.

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