SENATE.] Mr. Foot's Resolution. [MARCH 1, 1830 large enough for an empire, purchased; the Floridas ac- league, [Mr. CROCKETT] of the other House, calls it, let quired; a respectable navy; the extensive sea-board forti- the Government relinquish the remainder to the States in fied; the Indian title to millions of acres of land extin- which it is situated; not upon the principle of a gift, creatguished; two wars with the most powerful nation on the ing an obligation and state of dependence, but because it earth successfully prosecuted and honorably terminated; is of little or no value to the General Government, and is a and, after all this, not one cent of the expenditures incur- matter of convenience to the States; thereby enabling them red remains unpaid! Will not all mankind say, if this to devise some means of disposing of it, so as to subject it new people and this new Government have achieved all to the taxing power of the States. This, in my judgment, this in their infancy, what can they not do in the days of is the best mode of disposing of the public lands; and I in their maturity? Sir, foreign nations will entertain a higher vite gentlemen on all sides, who have professed so much respect for our country, and the causes of future wars devotion to the interest of the West, to unite in maturing will be diminished. and adopting the system I have suggested, and thereby promote the best interests of the Western country and of the nation at large. With regard to some modification of the existing land laws, I am perfectly willing to unite in any scheme of graduation of prices which shall make a distinction between I will now proceed [said Mr. G.] to an examination of lands of different qualities or values, and shall not, at the another subject, upon which a great diversity of opinion same time, retard the sales, and thereby procrastinate the seems to prevail--I mean the powers of the State and Fedepayment of the public debt. Towards one class of indi- ral Governments. As to the true division or distribution of viduals, the actual settlers, I am willing to go as far as any their powers, no difficulty exists so long as we speak in man, in or out of this Senate. I am anxious to place it in general terms; differences of opinion arise when we come their power to become freeholders-to have an interest in to act on particular cases: at present, we have no case bethe soil. It is good policy to convert Eastern tenants into fore the Senate, and are only discussing the subject for Western freeholders. If the suggestions made were well the purpose of ascertaining the true rule by which to test founded, that some Eastern politicians desired to prevent cases as they arise; and in the event Congress should transtheir citizens from emigrating to the West, in order that cend the limits or boundaries of its constitutional powers, they might be retained in their manufacturing establish- to ascertain where we are to look for the ultimate correcments, all such efforts would be vain and ineffectual. You tive tribunal. might as well attempt to stop the torrents rushing from a The States existed prior to this Government. Each of thousand hills, as to arrest the tide of emigration, which them possessed all the rights and powers which appertain is rising higher and higher, and pouring and spreading it- to sovereign and independent nations. For all the purself over the vast valley of the Mississippi. It is the course poses of self-government, no want of power, or the means. of nature and of man, and no human legislation can stay of using it, was felt by any of these communities. Life, it. It is the duty of man to pursue his own happiness. liberty, reputation, and property, all found an ample proCompetence and independence are main ingredients in tection in the State Governments. If any Internal Imhuman happiness, and no portion of our citizens will be provement were necessary, within its limits, the sovereign. restrained from going to a land of ease and plenty if within power of the State, having entire and uncontrolled juristheir reach. I regretted to hear remarks made by the Se-diction, could cause; it to be undertaken and effected. For nator from New Hampshire, derogating from the merits of none of these purposes or objects was there a defect of settlers on the public lands. He considered them as tres competency in the State Governments. There were obpassers and intruders, and meriting punishment as infrac- jects, however, of high importance, to which the States, tors of the public law. Sir, they are acting on the original separately, were not equal or adequate to provide. These principle upon which titles to lands were first acquired; are specified in the recommendatory letter issued by the they are mixing their labor with the soil, and improving convention, and signed by General Washington, which acits condition; they are adding to its value, and increas-companied the constitution, when presented to the old ing the wealth of the country; and I can tell that Senator, Congress for its consideration. The language is, "The that, when the country shall be in adversity and peril, these friends of our country have long seen and desired, that men, now reviled, will prove as prompt to step forward the power of making war, peace, and treaties; that of leand defend it, as any other portion of our citizens. I refer vying money and regulating commerce, and the corre to the Senator from New Hampshire, [Mr. BELL] not to spondent executive and judi cial authorities, should be fulmy friend near me, [Mr. WOODBURY] who speaks in differ-ly and effectually vested in the General Government of ent tones; his voice falls, at all times, pleasantly on my ear. the Union." Here is an enumeration of the objects which I have already voted to give a preference to occupants made it necessary to establish this Government; and when now in possession, and am at all times ready to do so. This, we are called on to decide, whether a subject be within however, falls far short of my favorite system of disposing our powers, we ought not to lose sight of the purposes. of the public lands. I would not confine the provisions of for which the Governmer t was created. When it is rethe law or preference to settlers now seated upon the land, collected that all the powers now possessed by the Genebut would act prospectively. I would by no means limit ral and State Governmerats belonged originally to the latthe right of preference to the few who are now in the oc- ter, and that the former is constructed from grants of powcupation of the public lands, but say to all the citizens of er yielded up by the State Governments, the fair and just the United States, that any of them who would settle on conclusion would be, that no other power was conferred, the surveyed public land, should be entitled to a quarter except what was plain! y and expressly given. But if doubt section, or one hundred and sixty acres, at a reduced price, could exist, the 10th article in the amendments to the say fifty cents per acre or less; provided they would re-constitution settles this question. It declares that "The main on the land two years, and raise two crops upon it. powers not delegated to the United States by the constiYou would, by this course, enable men, who cannot ac- tution, nor prohibited by it to the States, are reserved to quire lands in the old States, to secure for themselves a the States, respecti rely, or to the people." The conclucompetence and independence; a wife, a home, and child sion hence arises, taat this Government is one of limited, to prattle on his knee, would be the lot of many who are delegated powers, and can only act on subjects expressly now destined to drudge on through life in poverty and placed under its control by the constitution, and upon such Rich communities would grow up in the distant other matters as i nay be necessarily and properly within wilderness, and the national wealth and strength be great- the sphere of its action, to enable it to carry the enumely increased. After all the land of value shall have been rated and specified powers into execution, and without disposed of, and nothing left but the refuse, as my col-which, the powers granted would be inoperative. This I want. understand to be the good old republican doctrine, and by it I will endeavor to regulate my conduct. [SENATE. In all questions of meum and tuum, embraced within its constitutional jurisdiction, this court is the supreme In cases of disagreement between the Federal and State tribunal, and incidentally, between individuals, it must deGovernments, as to their respective powers, who is to decide upon all questions necessary to enable it to come to cide? This is the question I propose briefly to examine. a result or final determination; and the decision will be In cases of doubtful character, no question will probably binding upon the parties. This, however, by no means arise, because no court, State or Federal, will declare a proves that the court can decide upon the sovereign rights law unconstitutional, unless it is clearly and manifestly so. of the States, so as to affect them. The gentlemen have This is the rule of decision avowed by all the high Judicial been requested by my friend from Kentucky, [Mr. ROWAN] tribunals of the country; nor will any State act differently. to produce an instance in which sovereignty has submitted I admit that the Supreme Court is the final arbiter in all itself to any judicial tribunal. The very act of doing so cases in law and equity, arising under the constitution, and implies dependence and inferiority; and that government the laws of the United States made in pursuance of it. which admits its adversary to decide in such a case, acStill, the case put by Mr. Madison, in his report to the Vir-knowledges that it is not sovereign and independent. Mr. ginia Assembly, in the year 1799, is not included. The Madison, who understood the constitution and structure of alien and sedition laws, the subjects on which he was then the Government as well as any man that ever lived, was acting, were believed and declared by him and the Vir- of opinion that the Federal Judiciary possessed no such ginia Assembly, to be a deliberate, palpable, and danger-power. Mr. Jefferson, the great teacher of republicanism, ous exercise of powers, not granted by the compact or throughout his whole life contended against it; and, forconstitution. In such a case as that, I ask the Senate, shall tunately for the American people, their opinions are one party decide? It will be readily granted, that, in set- recorded in our national archives, and will be pretling questions of right or power between different na- served for the benefit of those who are to succeed us. tions, one party ought not to be the exclusive judge; oth- The necessary result is, that the power of deciding finalerwise, so strong is the love of dominion and rule, it will ly and conclusively does not exist in either Government, include within its grasp all the power possessed by both. or any department of either. What, then, is to be done if This is the very principle for which gentlemen contend, Congress pass an act beyond the limits of its constitutionwhen the subject is stripped of a fallacy, which at first ob- al powers, and it is found to operate oppressively, say structs the mental vision of the inquirer after truth. Gen- upon Virginia? I name this old, leading, champion State, tlemen seem to consider the Supreme Court of the United for the purpose of illustrating my argument more clearly. States as a separate, distinct tribunal, erected by all the Shall Virginia submit? No. She is oppressed-unconstiparties concerned, and as dependent on one party as on tutionally oppressed. The General Government has dethe other. Not so; it is a portion or part of one of the clared in all its departments that the act is binding. The parties, created by the legislative and executive branches Legislature of Virginia is of a different opinion. Has she of the General Government, and responsible alone to that no right to say to the General Government we did not Government. The Federal Judiciary, although the te- give up this power which you have exercised? May she nure of office be during good behavior, is greatly de- not say it is an authority you have usurped? Such lanpendent on the other branches of the General Govern- guage has been held-it was done by Virginia and Kenment. Burthens may be imposed upon them, and their la- tucky, by their resolutions in 1798 and 1799; and it probors so increased, as to expel them from the bench, from duced the desired effect. Those who had exercised unan inability to discharge all the duties required by law. I constitutional powers were put down, and the adminisname this, because an effort is now making to compel the tration of Mr. Jefferson succeeded. This was an appeal present judges to perform their official duties in six addi- to the intelligence and patriotism of the nation, to corLonal States--a thing wholly impracticable. rect the evil through the medium of the elective franchise. It prevailed, and will always prevail, unless an interest exist in the majority at variance with the rights and interest of the minority. When that is the case, it may In every contest for power, there would exist in the Judiciary the same motives to lead it astray, as would exist in the other departments, with this difference-they would be stronger, because the judges hold their offices by a te- happen that a sense of justice will be too weak to proBure of greater duration If the position of Gentlemen be duce a repeal of the unconstitutional measure. What well founded, then the State Governments have been guil- then? Shall Virginia throw herself out of the Union? ty of the folly and weakness of creating a Government No. One set of agents employed to act in the Federal which can adjudge away all their sovereign rights and pow-Government have asserted their authority and jurisdiction ers; a creature competent to the destruction of its creators; over certain subjects, and they insist on their right to do and all this, by the easiest operations imaginable. A case so. Another, acting in the States, insist that the agents is presented to the court by the Attorney General, an opin- of the General Government have transcended their authoion is written on a few sheets of paper, and Mr. Peters rity, engrafted on the constitution provisions not original(the reporter) is directed to put it in his book, and forth- ly contained in it, and are exercising the reserved powwith twenty-four sovereign and independent States are ers of the State. It becomes a mere dispute among prostrated and destroyed. Sir, much as I love peace and agents; the employers, the masters, the real sovereigns, quietness, before I witness this, I desire to hear more cla- have not decided it. In this state of things, shall Virginia mor about it than would arise from this silent, sapping, submit to be despoiled of her sovereignty? Sir, she will and undermining procedure. I am arguing upon the prin- not, by tame submission, surrender her high political characciple, without reference to the judges now sitting under ter and pre-eminence: rather than do this, her Madisons this Senate chamber; towards each of them I entertain a and Monroes would forget their years, and mingle again high respect; and should any attempt be made affecting in the political strife; her Giles would lay aside the crutthe independence of the Judiciary, I will go as far as he ches of decrepitude; and the gentleman from Maine [Mr. who goes farthest in its defence. HOLMES] would again hear the keen, cutting voice of the Roanoke orator, dividing and separating, even unto the joints and marrow. If those from whom I differ be right, the only security the States have, is the integrity of a majority of seven men; and as the constitution did not direct what number of jadges should constitute the Supreme Court, one could have been placed there; and upon his will alone, accordng to the argument on the other side, would depend the Ste of twenty-four sovereign States. If I am to understand any Senator as saying that a State Legislature can nullify and make void an act of Congress, so far as to prevent its operation within its limits, I dissent from him. The Federal constitution was not received or adopted by the Legislatures of the States; the mem SENATE.] Mr. Foot's Resolution. It can [MARCH 1, 1830bers are not elected for such high purposes. The am-gress to call a convention for proposing amendments. bition of a few aspiring men might mislead the Legis- In either case, three-fourths of the States are required to lature, when called on to act suddenly and unexpectedly. ratify; and the agency of Congress is necessary in both. Let the injured and oppressed State, then, assume its On Congress, then, is the burthen of making the appeal, highest political attitude--a convention in the State, for on the ground that it claims the exercise of the power, the purpose of deciding whether the great fundamental and because, alone, it is possessed of the means. law, which unites and binds the States together, has been not be considered unreasonable that a State, which has violated, by Congress having exercised powers reserved declared, in the most solemn manner, its reserved rights to the States, and not delegated to the General Govern- to have been violated, should possess the power of comment. If a false clamor has been raised, this measure pelling the General Government to make an appeal to will put it down. In every State there is a division among the source from which all its powers are derived. It was politicians, and the minority are only waiting for an op-called into existence by three-fourths of the States, and portunity to put the majority in the wrong. The peo- can exercise no power, without usurpation, which has not ple being called on to act in this solemn manner, will been granted. What can be more rational? What more put the whole intelligence of the community into action. consistent with the spirit of our system, than where there The aged, the wise, the experienced, well tried friends is a conflict between a sovereign State (a party to the of the country will be called into the public service. compact) and the General Government, as to the powers Such men will not lightly pronounce an act of Congress which have been yielded to the latter, that it should be unconstitutional and void; but should they upon full con- compelled to decide the question by an appeal to the sideration so declare, how will the question then stand? source of all its powers? I do not hesitate to say that If the State possesses the power to act as I have shown, the power on the part of the States to compel such an the necessary consequence is, that the act of Congress appeal is indispensable to the existence of their sovemust cease to operate in the State; and Congress must reignty, and to the preservation of their reserved rights. acquiesce, by abandoning the power, or obtain an express Without it, the General Government, in its practical opegrant from the great source from which all its powers are ration, would be an unlimited, consolidated Government, drawn. The General Government would have no right notwithstanding the limitations imposed by the provisions to use force. It would be a glaring absurdity to suppose of the constitution. Its construction of the constitution that the State had the right to judge of the constitution- would be the constitution. Those who know the force ality of an act of the General Government, and at the and influence of construction, how it can pervert the same time to say that Congress had the right to enforce a plainest import of words, when under the influence of submission to the act. This would involve a palpable self interest, well understand the fearful changes it is contradiction. This may be illustrated by reference to capable of producing. If there be no check, an interthe powers of the Supreme Court in analogous cases. ested majority, using the powers of the General Govern All admit that this high tribunal has the right, in a case ment, which were given for the protection and benefit of properly before it, and within its jurisdiction, to declare all, as the instrument of aggrandizing themselves at the an act of Congress unconstitutional; the effect of which is, expense of the minority, may, by construction, gradually to render the act inoperative, not only in one State, but in undermine and render obsolete the sacred provisions of all. In this case, Congress is obliged to acquiesce and this instrument. We already see fearful symptoms of abandon the power, or obtain an express grant from the encroachment, which no patriot can look at without disoriginal source, after the manner already stated. No force may, and which, if persevered in, can only be arrested by can be applied to give effect to the act thus declared void an exercise of the power for which I contend. The by the Supreme Court, or to compel it to change its deci- Supreme Court is wholly inadequate. If three-fourths But gentlemen, instead of meeting our arguments of the States shall not concur in admitting the contested fairly, exclaim that such a power on the part of the State power, or shall not pronounce that it already exists, Conis inconsistent with the existence of the General Go-gress will be constrained to abandon the exercise of it, vernment, and is placing twenty-three States at the mercy inasmuch as no new power can be granted without such of one, and that the Union, by such an act, would be dissolv- concurrence. The decision of a less number ought not ed. I cannot but think that all such objections arise from an to be obligatory, where a State has solemnly pronounced imperfect view of our admirable system of Government. that such a grant of authority was never made. But supThey originate in a supposition that Congress possesses an pose three-fourths of the States decide the question independent and uncontrollable power, which is unknown against the complaining State, then acquiescence beto our system. If the gentlemen will but advert to the comes a duty, and it must submit; or a state of things fifth article of the constitution, they will find a redeem- arises not provided for by the constitution, on the coning power-a power above all others; which can mould sequences of which I will not dwell. The doctrine for the constitution, and define, anew, the relations between which I contend is not of recent origin. I am merely an the State and the General Governments: I mean the con- humble disciple of an old school, recalling it to public stitutional number of States. This is not a mere dormant view. Mr. Jefferson long since advanced the opinion 1 power. The mode in which it is to be called into action is now advocate, and in his letter to Judge Johnson, of June, expressly laid down, and, when properly invoked, will at 1823, he remarks, in reference to the following expression, all times prove adequate to save this glorious system of used by another distinguished citizen, that "there must ours from disorder and anarchy. Whenever a conflict, be an ultimate arbiter somewhere," "True," [said Mr. such as I have described, arises between one of the States, Jefferson] "there must; but does that prove it is in ei acting in its sovereign capacity, and the General Govern- ther party? The ultimate arbiter is the people of the ment, it is to this high arbiter, (a convention of the States) Union, assembled by their deputies in convention, at the the parties must resort, and not to the Supreme Court, the call of Congress, or of two-thirds of the States. Let creature of one of the parties. But who is to make the them decide to which they mean to give an authority, appeal? Surely the party claiming to exercise the power, claimed by two of their organs. And it has been the and which alone possesses the means of making it. To re- peculiar wisdom and felicity of our constitution to have quire the oppressed State to do it, would be absurd. The provided this peaceable appeal, where that of other nations constitution provides two modes of amendment: one, is at once to force." sion. when two thirds of both Houses of Congress shall pro- Sir, [said Mr. G.] the subject of slavery has been intropose amendments; the second, when two thirds of the duced into this debate. This is charged upon the slaveLegislatures of the State shall make application to Con-holding States by some as a misfortune; by others as a MARCH 1, 1830.] Mr. Foot's Resolution. [SENATE. crime. It may be the former, but cannot be the latter. justice and humanity. I am no advocate for slavery. I wish Were the question submitted to me, whether slavery success to the exertions of the philanthropists of all the should be introduced, I should, unhesitatingly, decide States, who are engaged in ameliorating the condition of, against it: for such is my devotion to liberty and the rights and laboring to restore, this unhappy race to the land of their of man, that I would have no agency in subjecting the fathers; and should another Moses rise up, and lead them person or will of one man to the dominion of another. peaceably to a distant land of liberty and plenty, I would Still, I am not prepared to condemn it as a crime, or charge not join in the pursuit to bring them back. What is our those who own them, under existing circumstances, with condition? We have the evil, and how can we get rid of doing wrong. All history speaks of its existence from it? That free people of color cannot live amongst us, is the earliest ages. Homer, the father of poets, makes demonstrated by what is seen in Ohio and the other non Hector tell Andromache; his wife, if Troy shall fall, she slave-holding Western States. I have in my hand the will draw water at the well of some victor chief. The memorial of two thousand free people of color, resident Phoenicians, Egyptians, Carthagenians, Greeks, and in Ohio, praying this Congress to provide them funds to Romans, all had slaves; with them the masters possessed enable them to remove to Canada, because they cannot the jus vitæ et necis--a state of slavery not tolerated in any remain in the State of Ohio, on account of the severity of of the United States: for, in all the States, laws are in the laws imposed on them. I do not censure the State of force requiring the masters to treat their slaves with hu- Ohio for the rigor of its statutes, because a community manity and kindness. We all know there is nothing in has a right to provide for its own safety. It proves, howthe Old Testament condemning it, nor in the New. I ad- ever, that these general notions about the liberation of mit that the commission of the Prince of Peace was to slaves are idle and visionary, when attempts are made to the hearts of men, and it was no part of his office to reduce them to practice. The State of Indiana has forchange governments or political institutions. Yet one warded its memorial, asking Congress for aid to remove thing ought to be admitted on the other side, that no vice the free people of color, now in that State, to Liberia. or sinful practice escaped his notice and animadversion. This shows that those who have tried the experiment of He came to reprove the world of all sin. Seeing that having free people of color amongst them, have become slavery existed at the time of his appearance amongst men, weary of it. I doubt whether this project of a settlement and within his knowledge, he enjoined it on slaves to be in Canada will succeed. I am not sure that the descenobedient to their masters, and did not command masters to dants of Africa can grow and thrive in a cold, frozen reliberate their slaves. I think the inference is clear and gion. If they can, may not all the horrid scenes, so ably conclusive, that it is not sinful to hold slaves; nor does portrayed by the Senator from South Carolina, [Mr. it present any obstacle in the way that leads to everlasting SMITH] occur? May not their present advocates and their happiness. The error, and the great error of this sub- children have to meet them in a very different character ject, is not attributable to the slave-holder, but to those than that of friends? This, I fear, will happen, whenever who produced this state of things. While England's Great Britain shall order it to be so. most inspired poet, of his day, was saying, in the language of enchantment, "I would not have a slave to till my ground, I had much rather be myself the slave, We have heard much upon the subject of removals from office. Some gentlemen have charged the administration with proscription; and one Senator, [Mr. HOLMES] still bolder than the rest, has charged it with "glutting its vengeance" upon its enemies. I like not this predatory warfare. I now challenge gentlemen to come out boldly, and discuss this subject with us freely and frankly, not calling to their aid passion or feeling. These are poor auxiliaries in inquiries after truth. In this way I will enWhile her orators were pouring forth similar language deavor to examine this subject, and afterwards will make in the Senate and the Forum: even at that very time, with some remarks specially for the gentleman from Maine the connivance, and by the authority and direction of the [Mr. HOLMES.] The question, as insisted on by the other Government, her subjects were engaged on the shores of side, is, that the Senate has the constitutional right to exAfrica, tearing asunder all the ligaments which bind the amine into and judge of the propriety of removals from husband to the wife and the parent to the child! And office, and to control the Executive in the discharge of this why was this done? Not to transport them to Great branch of his duty. We say the Senate possesses no such Britain. No. "Slaves cannot breathe in England; they authority, and that our power is confined to the question touch our country, and their shackles fall." This is the of fitness or unfitness of the persons nominated to succeed. language of poetry and fancy. What is the language of I think I have stated the matter in difference fairly, and truth and fact? Their labor was not needed in Great will proceed to its discussion. This is a subject of great Britain; already the population was so great as to be fed delicacy. It not only relates to the powers of the Presiwith difficulty, therefore were they sent to the British dent, but the powers of this House. If we decide that West Indies and her American plantations, as if this miti- the President has not this power, we determine in favor of gated the offence committed against high Heaven and the our own. We should approach this subject with great caurights of man. It was not until the year 1806 that this traffic tion, lest we be misled by the idea which sometimes influwas put a stop to by the British Government. It was the last ences the human mind, that power is always dangerous in act of Mr. Fox's public life. But let us come nearer home. the hands of others, though entirely harmless in our own; and When the history of this unhappy race shall be fairly written, more especially should we act warily, when we recollect the name of no Marylander, no Virginian, no Carolinian, that, for forty years, ever since this Government went (North or South) no Georgian, no man of the West, (for into operation, the practice we contend for has prevailWest there was none at that day) will be found inscribed ed, bottomed upon a legislative construction of the conin that chapter which is written in tears and blood. It stitution, made by the House of Representatives, the was the citizens of some of the Eastern States who car- Senate, and President of the United States, in the year ried on this traffic. My friend from Rhode Island [Mr. 1789. If those who insist on the power of the Senate ROBBINS] can tell you more upon this subject than I know. are not warranted by the constitution, they are guilty of I name not this by way of reproach on the great body of a greater error than that of which they complain. They the population. I have no doubt the moral sense of the are attempting to usurp a power not given to them by the community was against it; but the avarice and cupidity of constitution. In the first place, we will examine who some of their citizens prevailed over considerations of possesses this power of removal under the constitution. SENATE.] Mr. Foot's Resolution. [MARCH 1, 1830. The great, distinguishing, and characteristic principle in the President, who has already pronounced him unworour institutions, State and Federal, is the separate, dis- thy of confidence, and not fit to be trusted. What kind tinct, and independent existence of the different depart- of a cabinet will you have, made up and forced to remain ments, Legislative, Judicial, and Executive; and on every together, of such materials? Should the Secretary of the question of this kind, reference should be had to this lead- Treasury, in the absence of the Senate, be about to seing feature in our Government. In the first section of the crete all the money of the Government, will it do to wait second article of the constitution, it is provided that "the to take the advice of the Senate as to his removal? In Executive power shall be vested in a President of the time of danger and contest, the Secretary of War is in United States of America," &c. Had nothing more been the act of betraying the armies of the United States into said in the constitution, all seem to admit that the power the hands of the enemy: shall the President wait, and ask of appointment and removal would exclusively belong to the Senate what is to be done? The Secretary of the the President as a branch of Executive authority, and to Navy is about to deliver up the whole navy to the enemy: appertain to him as the Chief Magistrate of the nation. shall the President possess no power to displace him, but In the second section of the same article, his powers are sit quietly by, until his advisers shall convene? Gentlecnumerated, and appointment to office is one of them; but men say, the President ought to suspend the officer, and in making the appointment, he must obtain the advice and wait till the meeting of the Senate before the removal can consent of the Senate. This constitutes an exception to be effected. I answer, that the power of suspension is the general rule; that the departments are to be separate not given by the constitution, and it will require a greater and distinct; and there is wisdom in this provision. The power to suspend and appoint another, to perform the du framers of the constitution foresaw that all experience had ties in the interim, than to remove and supply the vacan proved, under this Government, that a President, with the cy. If the Senate possesses this power, the existing pracbest intentions, and anxious only to promote the general tice of the Government must be changed; the Senate good, might make a selection of an individual, through must always be in session. Our legislative functions must want of correct information, who would be deficient in be abandoned; the whole time will be consumed in these moral or intellectual worth. This has happened under investigations. The every administration. When this occurs, and the name of In the year 1789, this subject was taken up in the House the individual is placed before the Senate, a strict scrutiny of Representatives of the Congress of the United States, is instituted; and if, upon examination, he is found unwor- upon a bill to establish the Department of State. thy, he is withdrawn by the President, or rejected by the bill, as introduced, contained a provision giving the power Senate. In making this investigation into the character of removal to the President. Upon a full discussion, the and qualifications of the individual nominated, the Senate clause giving the power to remove was stricken out, upon has the aid of the Senators of the State in which he re- the ground that the Chief Magistrate possessed the pow sides, who are generally acquainted, and know whether er under the constitution; and the bill was so changed as the President has been misled by information received to acknowledge the pre-existing constitutional right, or from others. Thus far the constitution expressly au- power, in the President of the United States. The bill, thorizes the Senate to act in aid of, and in conjunction thus modified, passed the House of Representatives and with, the President of the United States, and no farther. Senate, and was approved by General Washington, then If further joint action were deemed proper, it could casi-President of the United States. ly have been expressed: Expressio unius est exclusio alterius. Let it be remembered that Mr. Madison, who is one of the best constitutional lawyers our country has ever produced, was a member of that Congress, and advocated the opinion for which I contend. He was a member of the convention that framed the constitution; had met the best talents of the country in the Virginia convention; had there discussed it in all its bearings and tendencies; and was then, in 1789, engaged in putting the Government into practical operation. Fisher Ames, whose fame and talents were great enough not only to make New Eng land, but all America, feel proud that he was her citizen, advocated the opinion which prevailed. In order that it might be understood how every President and Senate have thought and acted, from the commencement of the Government, I have looked into the Executive Journal, and find that every Chief Magistrate has acted upon this power as exclusively appertaining to him. I hold in my hands a copy of General Washington's commission to Mr. Jefferson, as Secretary of State, probably the first issued under the Government. That com mission reads, that the office is to be held during the pleasure of the President of the United States. Also, the commission of Mr. Morris, as minister to France. every President, all commissions to executive officers have issued in the same way. Was there any necessity or propriety in giving the power now contended for to the Senate? If it can be shown that it would do injury, and destroy the harmonious operations of the Government, it ought not to be considered as existing in this body, unless clearly given. Thus far we have considered the mode by which an individual gets into office. The question arises, how is he to be gotten out, and by whom? So soon as an Executive officer is appointed, he is placed under the immediate inspection and control of the President, who becomes intimately acquainted with his qualifications. Are his talents equal to his station? Has he integrity, industry, and all those other qualities, which will enable him to discharge his duties beneficially to the country? If so, the probability is strong in favor of his being retained, unless his place can be as well or better supplied. On the other hand, the President discovers a deficiency. It is his duty to remove him; and then, according to the argument on the other side, the case comes before the Senate for trial, I suppose. The Senate will not take the will of the President as the rule of its decision: for, if it should, no valuable purpose could be obtained by the action of the Senate. We are then to inquire whether this man shall be retained. We must not make a mockery of it; he must On the 3d of May, 1792, Edward Cross was removed, have a fair trial, and as necessary incidents to it, witness- and Edward Wigglesworth was appointed collector at es and counsel must be heard; and you thus place the the port of Newburyport. The surveyor of the port of Chief Magistrate of the country in the odious attitude of Plymouth, in North Carolina, was removed on the 19th of a public prosecutor, who may fail to make out his case, November, 1792. Mr. Carmichael, a foreign minister, as nothing is more true than that a fact may exist to the satisfaction of all men, and yet not be provable before a judicial tribunal. Suppose the Senate should decide that the officer shall not be removed-say the Secretary of He is sent back as the first confidential adviser of State. Under was recalled-1 Executive Journal, p. 157. The collector of Yorktown was removed, as appears by Executive Journal, 1 vol. p. 165; a collector in Maryland, p. 172; a collector in Jersey, p. 173; a collector in South Caroli na, p. 194; an inspector of revenue in Jersey, p. 176; |