Daniel Webster.

The Great Speeches and Orations of Daniel Webster With an Essay on Daniel Webster as a Master of English Style online

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the _appointment_. But if the nomination be _rejected_, then the
_nomination itself_, it is contended, has effected the removal. Who can
defend opinions which lead to such results?

These reasons, Sir, incline me strongly to the opinion, that, upon a
just construction of the Constitution, the power of removal is part of,
or a necessary result from, the power of appointment, and, therefore,
that it _ought to have been_ exercised by the Senate concurrently with
the President.

The argument may be strengthened by various illustrations. The
Constitution declares that Congress may vest the appointment of
inferior officers in the President alone, in the courts of law, or in
the heads of departments; and Congress has passed various acts providing
for appointments, according to this regulation of the Constitution. Thus
the Supreme Court, and other courts of the United States, have authority
to appoint their clerks; heads of departments also appoint their own
clerks, according to statute provisions; and it has never been doubted
that these courts, and these heads of departments, may remove their
clerks at pleasure, although nothing is said in the laws respecting such
power of removal. Now, it is evident that neither the courts nor the
heads of departments acquire the right of removal under a general grant
of executive power, for none such is made to them; nor upon the ground
of any general injunction to see the laws executed, for no such general
injunction is addressed to them. They nevertheless hold the power of
removal, as all admit, and they must hold it, therefore, simply as
incident to, or belonging to, the power of appointment. There is no
other clause under which they can possibly claim it.

Again, let us suppose that the Constitution had given to the President
the power of appointment, without consulting the Senate. Suppose it had
said, "The President shall appoint ambassadors, other public ministers,
judges of the Supreme Court, and all other officers of the United
States." If the Constitution had stood thus, the President would
unquestionably have possessed the power of removal, where the tenure of
office was not fixed; and no man, I imagine, would in that case have
looked for the removing power either in that clause which says the
executive authority shall be vested in the President, or in that other
clause which makes it his duty to see the laws faithfully executed.
Everybody would have said, "The President possesses an uncontrolled
power of appointment, and that necessarily carries with it an
uncontrolled power of removal, unless some permanent tenure be given to
the office by the Constitution, or by law."

And now, Sir, let me state, and examine, the main argument, on which the
decision of 1789 appears to rest it.

The most plausible reasoning brought forward on that occasion may be
fairly stated thus: "The executive power is vested in the President;
this is the general rule of the Constitution. The association of the
Senate with the President in exercising a particular function belonging
to the executive power, is an exception to this general rule, and
exceptions to general rules are to be taken strictly; therefore, though
the Senate partakes of the appointing power, by express provision, yet,
as nothing is said of its participation in the removing power, such
participation is to be excluded."

The error of this argument, if I may venture to call it so, considering
who used it,[1] lies in this. It supposes the power of removal to be
held by the President under the general grant of executive power. Now,
it is certain that the power of appointment is not held 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 general 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 expressed, it is still
more clear, when they are not expressed at all, that they are not to be
implied except on evident and clear grounds; 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 expressly provided for;
because, if the power of removal belongs to the power of appointment, or
necessarily follows it, then it has gone with 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, but by supposing that 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 requires it."

On the whole, Sir, with the diffidence which becomes one who is
reviewing the opinions of some of the ablest and wisest men of the age,
I must still express my own conviction, that the decision of Congress in
1789, which separated the power of removal from the power of
appointment, was founded on an erroneous construction of the
Constitution, and that it has led to great inconsistencies, as well as
to great abuses, in the subsequent, and especially in the more recent,
history of the government.

Much has been said now, and much was said formerly, about the
inconvenience of denying this power to the President alone. I agree that
an argument drawn from this source may have weight, in a doubtful case;
but it is not to be permitted that we shall presume the existence of a
power merely because we think it would be convenient. Nor is there, I
think, any such glaring, striking, or certain inconvenience as has been
suggested. Sudden removals from office are seldom necessary; we see how
seldom, by reference to the practice of the government under all
administrations which preceded the present. And if we look back over the
removals which have been made in the last six years, there is no man who
can maintain that there is one case in a hundred in which the country
would have suffered the least inconvenience if no removal had been made
without the consent of the Senate. Party might have felt the
inconvenience, but the country never. Many removals have been made (by
new appointments) during the session of the Senate; and if there has
occurred one single case, in the whole six years, in which the public
convenience required the removal of an officer in the recess, such case
has escaped my recollection. Besides, it is worthy of being remembered,
when we are seeking for the true intent of the Constitution on this
subject, that there is reason to suppose that its framers expected the
Senate would be in session a much larger part of the year than the House
of Representatives, so that its concurrence could generally be had, at
once, on any question of appointment or removal.

But this argument, drawn from the supposed inconvenience of denying an
absolute power of removal to the President, suggests still another view
of the question. The argument asserts, that it must have been the
intention of the framers of the Constitution to confer the power on the
President, for the sake of convenience, and as an absolutely necessary
power in his hands. Why, then, did they leave their intent doubtful?
_Why did they not confer the power in express terms?_ Why were they thus
totally silent on a point of so much importance?

Seeing that the removing power naturally belongs to the appointing
power; seeing that, in other cases, in the same Constitution, its
framers have left the one with the consequence of drawing the other
after it, - if, in this instance, they meant to do what was uncommon and
extraordinary, that, is to say, if they meant to separate and divorce
the two powers, why did they not say so? Why did they not express their
meaning in plain words? Why should they take up the appointing power,
and carefully define it, limit it, and restrain it, and yet leave to
vague inference and loose construction an equally important power, which
all must admit to be closely connected with it, if not a part of it? If
others can account for all this silence respecting the removing power,
upon any other ground than that the framers of the Constitution regarded
both powers as one, and supposed they had provided for them together, I
confess I cannot. I have the clearest conviction, that they looked to no
other mode of displacing an officer than by impeachment, or by the
regular appointment of another person to the same place.

But, Sir, whether the decision of 1789 were right or wrong, the bill
before us applies to the actually existing state of things. It
recognizes the President's power of removal, in express terms, as it has
been practically exercised, independently of the Senate. The present
bill does not disturb the power; but I wish it not to be understood that
the power is, even now, beyond the reach of legislation. I believe it to
be within the just power of Congress to reverse the decision of 1789,
and I mean to hold myself at liberty to act, hereafter, upon that
question, as I shall think the safety of the government and of the
Constitution may require. The present bill, however, proceeds upon the
admission that the power does at present exist. Its words are: -

"Sec. 3. _And be it further enacted_, That, in all nominations made by
the President to the Senate, to fill vacancies occasioned by the
exercise of the President's power to remove the said officers mentioned
in the second section of this act, the fact of the removal shall be
stated to the Senate, at the same time that the nomination is made, with
a statement of the reasons for which such officer may have been
removed."

In my opinion, this provision is entirely constitutional, and highly
expedient.

The regulation of the tenure of office is a common exercise of
legislative authority, and the power of Congress in this particular is
not at all restrained or limited by any thing contained in the
Constitution, except in regard to judicial officers. All the rest is
left to the ordinary discretion of the legislature. Congress may give to
offices which it creates (except those of judges) what duration it
pleases. When the office is created, and is to be filled, the President
is to nominate the candidate to fill it; but when he comes into the
office, he comes into it upon the conditions and restrictions which the
law may have attached to it. If Congress were to declare by law that the
Attorney-General, or the Secretary of State, should hold his office
during good behavior, I am not aware of any ground on which such a law
could be held unconstitutional. A provision of that kind in regard to
such officers might be unwise, but I do not perceive that it would
transcend the power of Congress.

If 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 behavior; and I am of opinion that such a law would
have been perfectly constitutional. It is by law, in England, that the
judges are made independent of the removing power of the crown. I do not
think that the Constitution, by giving the power of appointment, or the
power both of appointment and removal, to the President and Senate,
intended to impose any restraint on the legislature, in regard to its
authority of regulating the duties, powers, duration, or responsibility
of office. I agree, that Congress ought not to do any thing which shall
essentially impair that right of nomination and appointment of certain
officers, such as ministers, judges, &c., which the Constitution 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, declaring that district attorneys, or collectors
of customs, should hold their offices four years, unless removed on
conviction for misbehavior, no one could doubt its constitutional
validity; because the legislature is naturally competent to prescribe
the tenure of office. And is a reasonable check on the power of removal
any thing more than a qualification of the tenure of office? Let it be
always remembered, that the President's removing power, as now
exercised, is claimed and held under the general clause vesting in him
the executive authority. It is implied, or inferred, from that clause
alone.

Now, if it is properly derived from that source, since the Constitution
does not say how it shall be limited, how defined, or how carried into
effect, it seems especially proper for Congress, under the general
provision of the Constitution which gives it authority to pass all laws
necessary to carry into effect the powers conferred on any department,
to regulate the subject of removal. And the regulation here required is
of the gentlest kind. It only provides that the President shall make
known to the Senate his reasons for removal of officers of this
description, when he does see fit to remove them. It might, I think,
very justly go farther. It might, and perhaps it ought, to prescribe the
form of removal, and the proof of the fact. It might, I also think,
declare that the President should only suspend officers, at pleasure,
till the next meeting of the Senate, according to the amendment
suggested by the honorable member from Kentucky; and, if the present
practice cannot be otherwise checked, this provision, in my opinion,
ought hereafter to be adopted. But I am content with the slightest
degree of restraint which may be sufficient to arrest the totally
unnecessary, unreasonable, and dangerous exercise of the power of
removal. I desire only, for the present at least, that, when the
President turns a man out of office, he should give his reasons for it
to the Senate, when he nominates another person to fill the place. Let
him give these reasons, and stand on them. If they are fair and honest,
he need have no fear in stating them. It is not to invite any trial; it
is not to give the removed officer an opportunity of defence; it is not
to excite controversy and debate; it is simply that the Senate, and
ultimately the public, may know the grounds of removal. I deem this
degree of regulation, at least, necessary; unless we are willing to
submit all these officers to an absolute and a perfectly irresponsible
removing power; a power which, as recently exercised, tends to turn the
whole body of public officers into partisans, dependants, favorites,
sycophants, and man-worshippers.

Mr. President, without pursuing the discussion further, I will detain
the Senate only while I recapitulate the opinions which I have
expressed; because I am far less desirous of influencing the judgment of
others, than of making clear the grounds of my own judgment.

I think, then, Sir, that the power of appointment naturally and
necessarily includes the power of removal where no limitation is
expressed, nor any tenure but that at will declared. The power of
appointment being conferred on the President _and Senate_, I think the
power of removal went along with it, and should have been regarded as a
part of it, and exercised by the same hands. I think, consequently, that
the decision of 1789, which _implied_ a power of removal separate from
the appointing power, was erroneous.

But I think the decision of 1789 has been established by practice, and
recognized by subsequent laws, as the settled construction of the
Constitution, and that it is our duty to act upon the case accordingly,
for the present; without admitting that Congress may not, hereafter, if
necessity shall require it, reverse the decision of 1789. I think the
legislature possesses the power of regulating the condition, duration,
qualification, and tenure of office, in all cases where the Constitution
has made no express provision on the subject.

I am, therefore, of opinion, that it is competent for Congress to
declare by law, as one qualification of the tenure of office, that the
incumbent shall remain in place till the President shall remove him, for
reasons to be stated to the Senate. And I am of opinion that this
qualification, mild and gentle as it is, will have _some_ effect in
arresting the evils which beset the progress of the government, and
seriously threaten its future prosperity.

These are the reasons for which I give my support to this bill.

* * * * *

NOTE.

This speech is singular among the speeches of Mr. Webster, as it
exhibits him as a "Strict-Constructionist," and as a master of that
peculiar kind of deductive reasoning which is commonly considered the
special distinction of his great antagonist, Mr. Calhoun. In subtilty
and refinement of argument it is fully the match of most of Mr.
Calhoun's elaborate disquisitions. At the time of its delivery it
excited the almost savage ire of John Quincy Adams, as will be seen by
reference to the latter's "Diary." It was in connection with this speech
that Mr. Adams speaks of "the rotten heart of Daniel Webster." How such
a purely intellectual feat as this, one so entirely passionless and
impersonal, should be referred to rottenness of heart, is one of the
unexplained mysteries of the operations of Mr. Adams's understanding,
when that understanding was misled by personal antipathy.


[Footnote 1: Mr. Madison. See the discussion in Gales and Seaton's
Debates in Congress, Vol. I. p. 473 _et seq._]




ON THE LOSS OF THE FORTIFICATION BILL IN 1835.

A SPEECH DELIVERED IN THE SENATE OF THE UNITED STATES, ON THE 14TH OF
JANUARY, 1836, ON MR. BENTON'S RESOLUTIONS FOR APPROPRIATING THE SURPLUS
REVENUE TO NATIONAL DEFENCE.


It is not my purpose, Mr. President, to make any remark on the state of
our affairs with France. The time for that discussion has not come, and
I wait. We are in daily expectation of a communication from the
President, which will give us light; and we are authorized to expect a
recommendation by him of such measures as he thinks it may be necessary
and proper for Congress to adopt. I do not anticipate him. In this most
important and delicate business, it is the proper duty of the executive
to go forward, and I, for one, do not intend either to be drawn or
driven into the lead. When official information shall be before us, and
when measures shall be recommended upon the proper responsibility, I
shall endeavor to form the best judgment I can, and shall act according
to its dictates.

I rise, now, for another purpose. This resolution has drawn on a debate
upon the general conduct of the Senate during the last session of
Congress, and especially in regard to the proposed grant of the three
millions to the President on the last night of the session. My main
object is to tell the story of this transaction, and to exhibit the
conduct of the Senate fairly to the public view. I owe this duty to the
Senate. I owe it to the committee with which I am connected; and
although whatever is personal to an individual is generally of too
little importance to be made the subject of much remark, I hope I may be
permitted to say a few words in defence of my own reputation, in
reference to a matter which has been greatly misrepresented.

This vote for the three millions was proposed by the House of
Representatives as an amendment to the fortification bill; and the loss
of that bill, three millions and all, is the charge which has been made
upon the Senate, sounded over all the land, and now again renewed. I
propose to give the true history of this bill, its origin, its progress,
and its loss.

Before attempting that, however, let me remark, for it is worthy to be
remarked and remembered, that the business brought before the Senate
last session, important and various as it was, and both public and
private, was all gone through with most uncommon despatch and
promptitude. No session has witnessed a more complete clearing off and
finishing of the subjects before us. The communications from the other
house, whether bills or whatever else, were especially attended to in a
proper season, and with that ready respect which is due from one house
to the other. I recollect nothing of any importance which came to us
from the House of Representatives, which was neglected, overlooked, or
disregarded by the Senate.

On the other hand, it was the misfortune of the Senate, and, as I think,
the misfortune of the country, that, owing to the state of business in
the House of Representatives towards the close of the session, several
measures which had been matured in the Senate, and passed into bills,
did not receive attention, so as to be either agreed to or rejected, in
the other branch of the legislature. They fell, of course, by the
termination of the session.

Among these measures may be mentioned the following, viz.: -

THE POST-OFFICE REFORM BILL, which passed the Senate _unanimously_, and
of the necessity for which the whole country is certainly now most
abundantly satisfied;

THE CUSTOM-HOUSE REGULATIONS BILL, which also passed nearly unanimously,
after a very laborious preparation by the Committee on Commerce, and a
full discussion in the Senate;

THE JUDICIARY BILL, passed here by a majority of thirty-one to five, and
which has again already passed the Senate at this session with only a
single dissenting vote;

THE BILL INDEMNIFYING CLAIMANTS FOR FRENCH SPOLIATIONS BEFORE 1800;

THE BILL REGULATING THE DEPOSIT OF THE PUBLIC MONEY IN THE DEPOSIT
BANKS;

THE BILL RESPECTING THE TENURE OF CERTAIN OFFICES, AND THE POWER OF
REMOVAL FROM OFFICE; which has now again been passed to be engrossed, in
the Senate, by a decided majority.

All these important measures, matured and passed in the Senate in the
course of the session, and many others of less importance, were sent to
the House of Representatives, and we never heard any thing more from
them. They there found their graves.

It is worthy of being remarked, also, that the attendance of members of
the Senate was remarkably full, particularly toward the end of the
session. On the last day, every Senator was in his place till very near
the hour of adjournment, as the journal will show. We had no breaking up
for want of a quorum; no delay, no calls of the Senate; nothing which
was made necessary by the negligence or inattention of the members of
this body. On the vote of the three millions of dollars, which was taken
at about eight o'clock in the evening, forty-eight votes were given,
every member of the Senate being in his place and answering to his name.
This is an instance of punctuality, diligence, and labor, continued to
the very end of an arduous session, wholly without example or parallel.

The Senate, then, Sir, must stand, in the judgment of every man, fully
acquitted of all remissness, all negligence, all inattention, amidst the
fatigue and exhaustion of the closing hours of Congress. Nothing passed
unheeded, nothing was overlooked, nothing forgotten, and nothing
slighted.

And now, Sir, I would proceed immediately to give the history of the
fortification bill, if it were not necessary, as introductory to that
history, and as showing the circumstances under which the Senate was
called on to transact the public business, first to refer to another
bill which was before us, and to the proceedings which were had upon it.

It is well known, Sir, that the annual appropriation bills always
originate in the House of Representatives. This is so much a matter of



Online LibraryDaniel WebsterThe Great Speeches and Orations of Daniel Webster With an Essay on Daniel Webster as a Master of English Style → online text (page 73 of 122)