Alexandria gazette. [volume], April 19, 1834, Image 2

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ALEXANDRIA:
SATURDAY MORNING, APRIL 19, 1834.
PROTEST
Of the President, addressed to the Senate of
the United States.
To the Senate op the United States;
It appears by the published journal of the Se
nate, that, on the 26th of December last, a reso
lution was offered by a member of the Senate,
which, after a protracted debate, was, on the
twenty-eighth day of March last, modified by
the mover, and passed by the votes of twenty
six Senators out of forty-six,* who were pre
sent and voted, in the following words, viz:
— “ Resolved, That the President, in the late
Executive proceedings in relation to the pub
“ lie revenue, has assumed upon himself autho
« rity and power not conferred by the constitu
|: tion and laws, but in derogation of both.”
Having had the honor, through the voluntary
suffrages of the American People, to fill the of
fice of President of the United States during the
period which may be presumed to have been re
ferred to in this resolution, it is sufficiently evi
dent that the censure it inflicts was intended for
myself. Without notice, unheard and untried.
1 thus find myself charged on the records of the
Senate, and in a form hitherto unknown in our
history, with the high crime of violating the laws
and constitution of my country.
It can seldom be necessary for any Depart
ment *)f the Government, w’hen assailed in con
versation or debate, or by the strictures of the
press or of popular assemblies, to step out of its
ordinary path for the purpose of vindicating its
conduct, or of pointing out any irregularity or
Injustice in the manner of the attack. But w hen
the chief Executive Magistrate is, by one of the
most important branches of the Government; in
its official capacity, in a> public manner, and by
its recorded sentence,—but without precedent,
competent authority, or just cause,—declared
guilty of a breach of the laws and constitution,
it is due to his station, to public opinion, and to
a proper self-respect, that the officer thus de
nounced should promptly expose the wrong
which has been done.
In the present case, moreover, there is even a
stronger necessity for such a vindication. By
an express provision of the constitution, before
the President of the United States can enter on
the execution of his office, he is required to
take an oath, or affirmation, in the following
words;
“ I do solemnly swear (or affirm) that I will
“ faithfully execute the office of President of the
“ United States; and will, to the best of my abi
“ lity, preserve, protect, and defend, the consti
“ tution of the United States.”
The duty of defending, so far as in him lies,
the integrity of the constitution, would indeed
have resulted from the very nature of his office;
but by thus expressing it in the official oath or
affirmation, which, in this respect, differs from
that of every other functionary, the founders of
our Republic have attested their sense of its im
portance, and have given to it a peculiar solem
nity and force. Bound to the performance of
this duty by the oath I have taken, by the strong
est obligations of gratitude to the American
People, and by the ties which unite my every
earthly interest with the welfare and glory of
my country; and perfectly convinced that the
discussion and passage of the above-mentioned
resolution were not only unauthorized by the
constitution, but in many respects repugnant to
its provisions and subversive of the rights secur
ed bv it to other co-ordinate departments, I
4 deem it an imperative duty to maintain the su
premacy of that sacred instrument, and the im
munities of the department intrusted to my care,
by all means consistent with my own lawful
powers, with the rights of others, and with the
genius of our civil institutions. To^his end, I
have caused this, my solemn protest against the
aforesaid proceedings, to be placed on the files
of the Executive Department, and to be trans
mitted to the Senate.
It is alike due to the subject, the Senate, and
the People, that the views wThich I have taken of
the proceedings referred to, and which compel
me to regard them in the light that has been
mentioned, should be exhibited at length, and
with the freedom and firmness w’hich are requir
ed by an occasion so unprecedented and pecu
liar.
Under the constitution of the United States,
the powers and functions of the various depart
ments of the Federal Government, and their re
sponsibilities for violation or neglect of duty,
are clearly defined or result by necessary infe
rence. The Legislative power, subject to the
qualified negative of the President, is vested in
the Congress of the United States, composed of
the Senate and House of Representatives. The
Executive power is vested exclusively in the
President, except that in the conclusion of
treaties and in certain appointments to of
fice, he is to act with the advice and con
sent of the Senate. The Judicial power is vest
ed exclusively in the’Supreme and other Courts
of the United States, except in cases of impeach
ments, for which purpose the accusatory power
1s vested in the House of Representatives, and
th it of hearing and determining, in the Senate.
But although for the special purposes which have
been mentioned, there is an occasional inter
mixture of the powers of the different depart
ments, yet with these exceptions, each of the
three great departments is independent of the
others in its sphere of action; and when it de
viates from that sphere, is not responsible to
the others, further than it is expressly made so
in the constitution. In every other respect, each
of them is the coequal of the other two, and all
are the servants of the American People, with
out power or right to control or censure each
other in the service ol their common superior,
save only in the manner and to the degree
which that superior has prescribed.
The responsibilities of the President are nu
merous and weighty. He is liable to impeach
ment for high crimes and misdemeanors, and,
on due conviction, to removal from office, and
perpetual disqualification; and notwithstanding
such conviction, he may also be indicted and
punished according to law. He is also liable to
the private action of any party who may have
been injured by his illegal mandates or instruc
tions, in the same manner and to the same ex
tent as the humblest functionary. In addition
to the responsibilities which may thus be enforc
ed bv impeachment, criminal prosecution, or
♦ Yeas—Messrs. Bibb, Black, Calhoun, Clay,
Clayton, Ewing, Frelinghuvsen, Kent, Knight,
Leigh, Mangum, Naudain, Poindexter, Porter,
Prentiss, Preston, Robbins, Silsbee, Smith!
Southard, SoragUe, Swift, Tomlinson, Tyler,
Waggaman, Webster—26.
Nays—Messrs. Benton. Brown, Forsyth,Grun
dy, Hendricks. Hill, Kane. King of Ala., King
of* Ga., Linn, McKean, Moore, Morris, Robin
son, Shepley, Tallmadge, Tipton, White, Wil
kins, Wrigbi—20.
suit at law, he is also accountable at the bar of
public opinion, for every act of his administra
tion. Subject only to the restraints of Truth
and Justice, the free People of the United States
have the undoubted right, as individuals or col
lectively, orally or in writing, at such times and
in such language and foruyis they may think
proper, to discuss his official conduct, and to
express and promulgate their opinions concern
ing it. Indirectly, also, his conduct may come
under review in either branch of the Legisla
ture, or in the Senate when acting in ^Execu
tive capacity, and so far as the executive or le
gislative proceedings of these bodies may re
quire it, it may be examined by them. These
are believed to be the proper and only modes,
in which the President of the United States is
to be held accountable for his official conduct.
Tested by these principles, the resolution of
the Senate is wholly-unauthorized by the con
stitution, and in derogation of its entire spirit.
It assumes that a single branch of the Legisla
tive Department may, for the purposes of a pub
lic censure, and without any view to legislation
or impeachment, take up, consider, and decide
upon, the official acts of the Executive. But in
no pare of the constitution is the President sub
jected to any such responsibility; and in no part
of that instrument is any such power conferred
on either branch of the Legislature.
The justice of these conclusions will be illus
trated and confirmed by a brief analysis of the
powers of the Senate, and a comparison of their
recent proceedings with those powers.
The high functions assigned by the constitu
tion to the Senate, are in their nature either Le
gislative, Executive, or Judicial. It is only in
the exercise of its Judicial powers, when sitting
as a Court for the Trial of Impeachments, that
the Senate is expressly authorized and necessa
rily required to consider and decide upon the
conduct of the President, or any other public
officer. Indirectly, however, as has already
been suggested, it may frequently be called on
to perform that office. Cases may occur in the
course of its Legislative or Executive proceed
ings, in which it may be indispensable to the
proper exercise of its powers, that it should in
quire into, and decide upon, the conduct of the
President or other public officers; and in every
such case, its constitutional right to do so is
cheerfully conceded. But to authorize the Se
nate to enter on such a task in its Legislative or
Executive capacity, the inquiry must actually
grow out of and "terul to some Legislative or
Executive action; and the decision, when ex
pressed, must take the form of some appropriate
Legislative or Executive act.
The resolution in question was introduced,
discussed, and passed, not as a joint, hut as a
separate resolution. It asserts no Legislative
power; proposes no Legislative action; and nei
ther possesses the form nor any of the attributes
of a Legislative measure. It does not appear
to have been entertained or passed, with any
view or expectation of its issuing in a law or
joint resolution, or in the repeal of any law or
joint resolution, or in any other Legislative ac
tion.
Whilst wanting both the form and substance
of a Legislative measure, it is equally manifest,
that the resolution was not justified by any of
the Executive powers conferred on the Senate.
These‘powers relate exclusively to the consid
eration of treaties and nominations to office;
and they are exercised in secret session, and
with closed doors. This resolution does not ap
ply to any treaty or nomination, and was pass
ed in a public session.
Nor does this proceeding in any way belong
to that class of incidental resolutions which re
late to the officers of the Senate, to their cham
ber, and other appurtenances, or to subjects of
order, and other matters of the like nature—in
all which either House may lawfully proceed,
without any co-operation with the other, or with
the President.
On the contrary, the whole phraseology and
sense of the resolution seem to be judicial.«• Its
essence, true character, and only practical ef
fect, are to be found in the conduct which it
charges upon the President, and in the judg
ment which it pronounces on that conduct. The
resolution, therefore, though discussed and a
dopted by the Senate in its Legislative capacity
is, in its office, and in all its characteristics, es
sentially judicial.
That the Senate possesses a high judicial pow
er, and that instances may occur in which the
President of the United States will be amenable
to it, is undeniable. But under the provisions
of the constitution, it would seem to be equally
plain that neither the President nor any other
officer can be rightfully subjected to the opera
tion of the Judicial power of the Senate, except
in the cases and under the forms prescribed by
the constitution.
The constitution declares that“ the President,
“ Vice President, and all civil officers ol the
“ United States, shall be removed from office
“ on impeachment for, and conviction of trea
11 son, bribery, or other high crimes and misde
“ meanors”—that the House of Representat ves
i “ shall have the sole power of impeachment”—
| that the Senate “ shall have the sole power to
| try all impeachments”—that “ when sitting for
I that purpose, they shall be on oath or nffirma- j
tion”—that “ when the President of the United
States is tried, the Chief Justice shall preside”— ■
“ no person shall be convicted without the
u concurrence of two-thirds of the members :
“ present”—and that u judgment sh ill not ex-;
“ tend further than to removal from office, and
u disqualification under the United States.”
The resolution above quoted, charges in sub
stance that in certain proceedings relating to
the public revenue, the President has usurped
authority and power not conferred upon him by j
the constitution and laws, and that in doing so
he violated both. Any such act couslitues a!
high crime—one of the highest, indeed, which;
the President can commit—a crime which just- 1
ly exposes him to impeachment by the House \
of Representatives, and upon due conviction, to
removal from office, and to the complete and
immutable disfranchisement prescribed by the
Constitution.
The resolution, then, was in substance an im
peachment of the President; and in its passage,
amounts to a declaration by a majority of the
Senate, that he is guilty of an impeachable of
fence. As such, it is spread upon the journals
of the Senate—published to the nation and to
the world—made part of our enduring archives
—and incorporated in the history of the age.—
The punishment of removal from office and fu
ture disqualification, does not, it is true, follow
this decision, if the regular forms of pro
ceeding had been pursued, because the requi
site number did not concur in the result. But
the moral influence of a solemn declaration, by
a majority of the Senate, that the accused is
, guilty of the offence charged upon him, has
I been as effectually secured, as if the like decla
; ration has been made upon an impeachment
expressed in the same terms. Indeed, a great
i er practical effect has been gained, because the
! votes given for the resolution, though not suffi
cient to authorize a judgment of guilty on an
impeachment, were numerous enough to carry
that resolution.
That the resolution docs not expressly alledge
that the assumption of power and authority,
which it condemns, was intentional and cor
rupt, is no answer to the preceding view of its
character and effect. The act thus condemn
ed necessarily implies volition and design m
the individual to whom it is imputed, and being
unlawful in its character, the legal conclusion
is that it was prompted by improper motives,
and committed with an unlawful intent. The
charge is not of a mistake in the exercise of sup
posed powers, but of the assumption of powers
not conferred by the constitution and laws, but
in derogation of both, and nothing is suggested
to excuse or palliate the turpitude of the net.
In the absence of any such excuse, or palliation,
there is only room for one inference; and that
is, that the intent was unlawful and corrupt.—
Besides, the resolution not only contains no
mitigating suggestion, but on the contrary, it
holds up the act complained of, as justly obnox
ious to censure and reprobation: and thus as
distinctly stamps it with impurity of motive, as
if the strongest epithets had been used.
The President of the United States, there
fore, has been, by a majority of his constitu
tional triers, accused and found guilty of an im
peachable offence; but in no part of this pro
ceeding have the directions of the constitution
been observed. j
The impeachment, instead of being preferred j
and prosecuted by the House of Representa- j
fives, originated in the Senate, and was prose
cuted without the aid or concurrence of the
other House. The oath or affirmation prescri
bed by the constitution, was not taken by the
Senators; the Chief Justice did not preside; no
notice of the charge was given to the accused;
and no opportunity afforded him to respond to
the accusation, to meet his accusers face to face
to cross examine the witnesses, to procure
counteracting testimony, or to be heard in his
defence. The safe-guards and formalities which
the constitution has connected with the power
of impeachment, were doubtless supposed by
the framers of that instrument, to be essential to
the protection of the public servant, to the at
tainment of justice, and to the order, impartial
ity, and dignity of the procedure. These safe
guards and formal ties were not only practical
ly disregarded, in the commencement and con
duct of these proceedings, but in their result, I
find myself convicted by less than two thirds of
the members present, of an impeachable of
fence.
In vain may it be alledged in defence of this
proceeding, that the form of the resolution is
not that of an impeachment, or of a judgment
thereupon; that the punishment prescribed in the
constitution does not follow its adoption, or that
in this case, no impeachment is to be expected
from the House of Representatives. It is be
cause it did not assume the form of an impeach
merit, that it is the more palpably repugnant to
the constitution; for it is through that form on
ly that the President is judicially responsible to
the Senate; and though neither removal from
office nor future disqualification ensues, yet it
is not to be presumed, that the framers of the
constitution considered either or both of those
results, as constituting the whole of the punish
ment they prescribed. The judgment of guilty
by the highest tribunal in the Union; the stigma
it w ould inflict on the offender, his family and
fame; and the perpetual record on the journal,
handing down to future generations the story
of his disgrace, were doubtless regarded, by
them as the bitterest portions, if not the very
essence of that punishment. So far, therefore,
as some of its most material parts are concern
ed, the passage, recording, and promulgation
of the resolution, are an attempt to bring them
on the President, in a manner unauthorized by
the constitution. To shield him and other offi
cers who are liable to impeachment, from con
sequences so momentous, except when really
merited by official delinquencies,the constitution
has most carefully guarded the whole process
of impeachment. A majority of the House of
Representatives, must think the officer guilty,
before he can be charged. Two-thirds of the
Senate must pronounce him guilty or he is deem
ed to be innocent. Forty-six Senators appear
by the journal to have been present when the
vote on the resolution was taken. If, after all
the solemnities of an impeachment, thirty of
those Senators had voted that the President was
guilty, yet would he have been acquitted; but
by the mode of proceeding adopted in the pre
sent case, a lasting record of conviction has
been entered up by the votes of twenty-six Sen
ators, without an impeachment or trial, whilst
the constitution expressly declares that to the
entry of such a judgment, an accusation by the
House of Representatives, a trial by the Senate,
and a concurrence of two-thirds in the vote of
guilty, shall be indispensable pre-requisites.
Whether or not an impeachment w'as to be
expected from the House of Representatives,
was a point on which the Senate had no consti
tutional right to speculate, and in respect to
which, even had it possessed the spirit of pro
phecy, its anticipations w'ouid have furnished no
ju>t grounds for this proceedure. Admitting
that there w:as reason to believe that a violation
of the constitution and laws had been actually
committed by the President, still it w as the duty
of the Senate, as his sole constitutional judges,
to wait for an impeachment until the other House
should think proper to prefer it. The members
of the Senate could have no right to infer that
no impeachment wras intended. On the contra
ry, every legal and rational presumption on
their part ought to have been, that if there was
good reason to belive him guilty ol an impeacha
ble offence, the House of Representatives would
pei form its constitutional duty by arraigning the
offender before the justice of his country. The
contrary presumption would involve an impli
cation derogatory to the integrity and honor of
the Representatives of the People. But sup
pose the suspicion thus implied were actually
entertained, and for good cause, how can it jus
tify the assumption by the Senate of powers not
conferred by the constitution?
It is only necessary to look at the condition
in which the Senate and the President have been
placed by this proceeding, to perceive its utter
incompatibility with the provisions and the spi
rit of the constitution, and with the plainest dic
tates of humanity and justice.
If the House of Representatives shall be of
opinion that there is just ground for the censure
pronounced upon the President, then will it be
the solemn duty of that House to prefer the pro
per accusation, and to cause him to be brought
to trial by the constitutional tribunal. Bufin
what condition would he find that tribunal? A
majority of its members have already consider
ed the case, and have not only formed, but ex
pressed a deliberate judgment upon its merits.
It is the policy of our benign system of juris
prudence, to secure, in all criminal proceedings,
and even in the most trivial litigations, a fair,
unprejudiced, and impartial trial. And surely
it cannot be less important that such a trial
should be secured to the highest officer of the j
Government.
The constitution makes the House of Represen- j
tatives the exclusive judges, in the first instance, j
of the question, whether the President has com- j
mitted an impeachable offence. A majority of,
the Senate, whose interference with this preli
minary question, lias, for the best of all reasons,
been studiously excluded, anticipate the action
of the House of Representatives, assume not
only the function which belongs exclusively to
that body, but convert themselves into accusers,
witnesses, counsel,.and judges, and prejudge the
whole xase. Thus presenting the appalling
spectacle, in a free state, of judges going through !
a labored preparation for an impartial hearing
and decision, by a previous ex parte investiga
tion and sentence against the supposed offender.
There is no more settled axiom in that go
vernment whence we derived toe model of this
part of our constitution than, that “the Lords
cannot impeach any to themselves, nor join in
the accusation, because they are judges.” Inde
pendently of the general reasons on which this
rule is founded, its propriety and importance
are greatly increased by the nature of the im
peaching power. The power of arraigning the
high officers of government, before a tribunal
whose sentence may expel them from their seats
and brand them as infamous, is eminently a po
pular remedy—a remedy designed to be em
ployed for the protection of private right and
public liberty, against the abuses of injustice
and the encroachments of arbitary power. But
the framers of the constitution were also un
doubtedly aware, that this formidable instru
ment had been, and might be abused: and that
from its very nature, an impeachment for high
crimes and misdemeanors, whatever might be
its result, would in most cases be accompanied
by so much of dishonor and reproach, solici
tude and suffering, as to make the power of pre
ferring it, one of the highest solemnity and im
portance. It was due to both these considera
tions, that the impeaching power should be
lodged in the hands of those who, from the mode
of their election and the tenure of their offices,
would most accurately express the popular will,
and at the same time be most directly and spee
dily amenable to the People. The theory of
these wise and benignant intentions is, in the
present case.effectually defeated by the proceed
ings of the Senate. The members of that body
represent, not the People, but the States; and
though they are undoubtedly responsible to the
States, yet, from their extended term of service,
the effect of that responsibility, during the whole
period of that term, must very much depend
upon their own impressions of its obligatory
force. When a body, thus constituted, express
es, beforehand, its opinion in a particular case,
and thus indirectly invites a prosecution, it not
only assumes a power intended for wise reasons
to be confined to others, but it shields the latter
from that exclusive and personal responsibility
under which it was intended to be exercised,
and reverses the whole scheme of this part of
the constitution.
Such would be some of the objections to this
proceedure, even if it were admitted that there
is just ground tor imputing to the President the
offences charged in the resolution. But if, on the
other hand, the House of Representatives shall
be opinion that there is no reason for charging
them upon him, and shall therefore deem it
improper to prefer an impeachment, then will
the violation of privilege as it repectsthat House,
of justice as it regards the President, and of
the constitution, as it relates to both, be only
the more conspicuous and impressive.
The constitutional mode of proceedure on an
impeachment has not only been wholly disre
garded, but some of the first principles of na
tural right and enlightened jurisprudence, have
been violated in the very form of the resolution.
It carefully abstains from averring in which of
“ the late proceedings in relation to the public
“ revenue, the President has assumed upon him
self authority and power not conferred by the
“constitution and laws.” It carefully abstains
from specifying what laws or what parts of the
constitution have been violated. Why was not
the certainty of the offence—“the nature and
cause of the accusation”—set out in the manner
required in the constitution, before even the
humblest individual, for the smallest crime, can
he exposed to condemnation? Such a specifi
cation was due to the accused, that he might
direct his defence to the real points of attack;
to the People, that they might clearly understand
in what particulars their institutions had been
violated; and to the truth and certainty of our
public annals. As the record now stands, whilst
the resolution charges upon the President at
least one act of usurpation in “the late Execu
tive proceedings in relation to the public reve
nue,” and is so framed that those Senators who
believed that one such act, and only one, had
been committed, could assent to it; its language
is yet broad enough to include several such acts;
and so it may have been regarded by some of
those who voted for it. But though the accusa
tion is thus comprehensive in the censures it im
plies, there is no such certainty of time, place,
or circumstance, as to exhibit the particular
conclusion of fact or law, which induced any
one Senator to vote for it. And it may well
have happened, that whilst one Senator.believ
ed that some particular act embraced in the re
solution, was an arbitrary and unconstitutional
assumption of power, others of the majority
may have deemed that very act both constitu
tional and expedient, or if not expedient yet
still within the pale of the constitution. And
thus a majority of the Senators may have been
enabled to concur, in a vague and undefined ac
cusation, (hat the President, in the course of
“the late Executive proceedings in relation to
the public revenue,” had violated (he constitu
tion and laws: whilst, if a senarate vote had
been taken in respect to each particular act, in
cluded within the general terms, the accusers
of the President might, on any such vote, have
been found in the minority.
Still further to exemplify this feature of the
proceeding, it is important to be remarked, that
the resolution, as originally offered to the Se
nate, specified, with adequate precision certain
acts of the President, which it denounced as a
violation of the constitution and laws; and that
it was not until the very close of the debate, and
when, perhaps, it was apprehended that a ma
jority might not sustain the specific accusation
contained in it, that the resolution was so modi
fied as to assume its present form. A more strik
ing illustration of the soundness and necessity
of the rules which forbid vague and indefinite
generalities, and require a reasonable certain
ty in all judicial allegations; and a more glaring
instance of the violation of thosejrules, has sel- 1
dorn been exhibited.
In this view of the resolution it must certain- 1
ly be regarded, not as a vindication of any par
ticular provision of the law or the constitution,
but simply as an official rebuke or condemnato
ry sentence, too general and indefinite to be easi
ly repelled, but yet sufficiently precise to bring
into discredit the conduct and motives of the
Executive. But whatever it may have been in- i
tended to accomplish, it is obvious that the
vague, general, and abstract form of the reso !
lution, is in perfect keeping with those other de-.
partures from first principles and settled im •!
provements in jurisprudence, so properly the
boast of free conntries in modern times. And
it is not too much to say, of these proceedings, j
that if they shall be approved and sustained by
an intelligent People, then will that great contest
with arbitrary power, which had established in
!
mary of the views of the Executive in 7 ^ U! I
them, should be here exhibited. respectI
By the constitution, “ the Executive
vested in a President of the United s!°.Vi
Among the duties imposed upon him ph '
he is sworn to perform, is that of “tat; ”ic*!i
that the laws be faithfully executedCare
thus made responsible for the entire\ *•nt
the Executive Department, it was hnt °n o:
able that the power of appointing overZ^
and controlling those who execute the
power in its nature executive—should r
in his hands. It is, therefore, not only hi A??
but the constitution makes it his duly mi'
minate, and by and with the adviceand mi u'
of the Senate appoint,” all officers of tjie?v?
ed States whose appointments are not in '!,/ I
stitution otherwise provided for,” w[,|, ",e Coc
sion that the appointment of inferior 0m°V1
nmy be vested in the President alone inT*
Courts of Justice, or in the Heads of IW,
ments. ' n* I
The Executive power vested in the Senate
neither that of “ nominating” nor “ appointir 7 l
It is merely a check upon the Executive now?
of appointment. If individuals are proposed f,
appointment by the President, by them dee mi"'
incompetent or unworthy, they may withhok
their consent^ and the appointment cannot C
made. They check the action of the Executive
but cannot, in relation to those very subject?
act themselves, nor direct him. Selections are
still made by the President, and the negative
O'-"--..IMS 1C
sponsibiiity, furnishes an additional guurante.
to the country that the subordinate executive, a
well as the judicial offices, shall be tilled v:i!
worthy and competent men.
The whole Executive power being vested in
the President, who is responsible for its exercise
it is a necessary consequence, that he should
have a right to employ agents of his own choice
to aid him in the performance of his duties, and
to discharge them when lie is no longer willing
to be responsible for their acts. In strict ac
cordance with this principle, the power of remo
val, which, like that of appointment, is anony.
nal Executive power, is left unchecked by ti
constitution in relation to all executive officer;
for whose conduct the President is responsible!
while it is taken from him in relation to judicia
officers, tor whose acts he is not responsible, h.
the Government Horn which many of the‘fun
damental principles of our system are derived
the Head of the Executive Department origi
nally had power to appoint and remove at will
all officers, Executive and Judicial. ITwas tc
take the Judges out of this general power of re
moval, and thus make them independent of the
Executive, that the tenure of their offices wa»
changed to good behaviour. Nor islt conceiv
able, why they are placed, in our constitution
upon a tenure different from that of all other
officers appointed by the Executive, unless it be
for the same purpose.
But if there were any just ground for doubt oa
the face of the constitution, whether all execu
tive officers are removable at the will of the
President, it is obviated by the eolemporaneous
construction of the instrument, and the uniform
practice under it.
The power of removal was a topic of solemn
debate in the Congress of 1769, while organiz
ing the administrative departments of (he Go
vernment, and it was finally decided, that the
President derived from the constitution, the pow
er of removal, so far as it regards that depart
ment for whose acts he is responsible. Although
the debate covered the whole ground, embrac
ing.the Treasury as well as all the other Execu
tive Departments, it arose on a motion tostnke
out of the bill to establish a Department ot fo
reign Affairs, since called the Department of
State, a clause declaring the Secretary ‘‘to be
removable from office by the President ol the
United States.” A fter that motion had been de
cided in the negative, it was perceived t: nt
these words did not convey the sense ol the
House of Representatives, in relation to the trm
source of the power of removal, the
avowed object of preventing any future inference
that this power was exercised by the Pre>i<i'
in virtue of a grant from Congress, when in
that body considered it as derived from foe con
stitution, the words which had been the
of debate were struck out, and in lieu theie ^
a clause was inserted in a provision conceinn
the Chief Clerk of the Department, winch
dared that “ whenever the said principle onj
“shall be removed from office by the *ie&l 1'i
“of the United States, or in any other ca*.
“ vacancy,” the Chief Clerk should, dunng- ■
vacancy, have charge of the papers of the ^
This change having been made for theexp •
purpose of declaring the sense of Congi en -
tile President derived the power of remowi
the constitution, the act as it passed has a .
been considered as a full expression of the >
of the Legislature on this important nau <•
American constitution.
Here then we have the concurrent an • •
of President Washington, of the Senate am
House of Representatives, members of '. f|
had taken an active part in the convention
framed the constitution, and in the
ventions. which adopted it, that the ^ n
derived an unqualified power of rem0U
that instrument itself, which is “he>o 1
reach of Legislative authority.” f Pon a(j.
ciple the Government has now beenstca *
ministered for about forty-five ) ea,s’,. niad»‘
which there have been numerous remo\ a *■ . _
by the President or by his direction, em
every grade of Executive officers,
Heads of Departments to the messenger
The Treasury Department, in the a;
of 1789, was considered on the same m
the other Executive Departments, an j0
act establishing it, the precise wor“s ' tfre^.
corporated indicative of the sense of ® n
that the President derives his power to }
the Secretary from the constitution,"