objected, that it would serve to give the President an undue influence over the Senate; and in others, that it would have an opposite tendency; a strong proof that neither suggestion is true."'59

Mr. Madison took the opposite view and maintained that the power of removal belonged to the President, but said, "The wanton removal of meritorious officers by the President, without cause, would be ground for impeaching him. ''60

In the First Congress when a bill for the establishment of one of the executive departments of the Government was under consideration it contained the words, "To be removable from office by the President of the United States." It was moved to strike out this language, and that motion was the cause of a prolonged and earnest debate. On the one hand it was claimed that the right to remove officials belonged to the President, as he had the right in the first instance to appoint them. On the other hand it was claimed that as the Senate had to confirm the appointments that body should be consulted as to their removal. The motion was finally defeated and the bill, with the objectionable language in it, passed the House of Representatives by a vote of thirty-four in favor of it as against twenty in opposition to it. In the Senate the vote was a tie, and the Vice-President gave the casting vote in favor of the bill.61

59 The Federalist No. 77.

60 Story on the Constitution, Vol. 2, 367; 1 Lloyde's Debates 503. 61 Tucker on the Constitution, 733.

The following is an account of the decision of Vice-President Adams, during the First Congress, on casting the deciding vote in the Senate on the bill to create an executive department and to make the incumbent subject to "removal at the will of the President":

"The first instance in which opposition developed itself by close divisions in both Houses occurred in the case of the law proposed to organize the Department of Foreign Affairs. The question most earnestly disputed turned upon the power vested by the Constitution in the President to remove the person at the head of that bureau, at his pleasure. One party maintained it was an absolute right. The other insisted that it was subject to the same restriction of a ratification by the Senate which is required when the officer is appointed. After a long contest in the House of Representatives terminating in favor of the unrestricted construction, the bill came up to the Senate for its approbation.

"This case was peculiar and highly important. By an anomaly

This legislative construction was generally regarded as conclusive of the question and has always subsequently been pointed to as the interpretation of the Constitution by Congress, concerning the power of removal, but this

in the Constitution, which upon any recognized theory it is difficult to defend, the Senate, which in the last resort is made the judicial tribunal to try the President for malversation in office, is likewise clothed with a power of denying him the agents in whom he may choose most to confide for the faithful execution of the duties of his station, and forcing him to select such as they may prefer. If, in addition to this, the power of displacing such as he found unworthy of trust had been subjected to the same control, it can not admit of a doubt that the government must, in course of time, have become an oligarchy, in which the President would sink into a mere instrument of any faction that might happen to be in the ascendant in the Senate. This, too, at the same time that he would be subject to be tried by them for offences in his department, over which he could exercise no effective restraint whatever. In such case, the alternative is inevitable, either that he would have become a confederate with that faction, and therefore utterly beyond the reach of punishment by impeachment at their hands, for offences committed with their privity, if not at their dictation, or else, in case of his refusal, that he would have been powerless to defend himself against the paralyzing operation of their ill-will. Such a state of subjection in the executive head to the legislature is subversive of all ideas of a balance of powers drawn from the theory of the British constitution, and renders probable at any moment a collision, in which one side or the other, and it is most likely to be the legislature, must be ultimately annihilated.

In

"Yet, however true these views may be in the abstract, it would scarcely have caused surprise if their soundness had not been appreciated in the Senate. The temptation to magnify their authority is commonly all-powerful with public bodies of every kind. any other stage of the present government than the first, it would have proved quite irresistible. But throughout the administration of General Washington, there is visible among public men a degree of indifference of power and place, which forms one of the most marked features of that time. More than once the highest cabinet and foreign appointments went begging to suitable candidates, and begged in vain. To this fact it is owing that public questions of such moment were then discussed with as much of personal disinterested. ness as can probably ever be expected to enter into them anywhere. Yet even with all these favoring circumstances it soon became clear that the republican jealousy of a centralization of power in the President would combine with the esprit de corps to rally at least half the Senate in favor of subjecting removals to their control. In such a case the responsibility of deciding the point devolved, by the terms of the Constitution upon Mr. Adams, as Vice-President. The debate was continued from the 15th to the 18th of July, a very long time for that day in an assembly comprising only twenty

view has not always been submitted to. That the power to remove was not vested exclusively in the President, despite the vote in Congress, had warm and able advocates in the Senate at a later period. Reviewing the discussion which took place on the bill Mr. Calhoun says:

"During the pendency of the bill, a question arose, whether the President, without the sanction of an act of Congress, had the power to remove an officer of the government, the tenure of whose office was not fixed by the Constitution. It was elaborately discussed. Most of the prominent members took part in the debate. Mr. Madison, and others who agreed with him, insisted that he had the power. They rested their argument mainly on the ground, that it belonged to the class of executive powers; and that it was indispensable to the performance of the duty, 'to take care that the laws be faithfully executed.' Both parties agreed that the power was not expressly vested in him. It was, finally, decided that he two members when full, but seldom more than twenty in attendance. A very brief abstract, the only one that has yet seen the light, is furnished in the third volume of the present work. Mr. Adams appears to have made it for the purpose of framing his own judgment in the contingency which he must have foreseen as likely to occur. The final vote was taken on the 18th. Nine Senators voted to subject the President's power of removal to the will of the Senate; Messrs. Few, Grayson, Gunn, Johnson, Izard, Langdon, Lee, Maclay, and Wingate. On the other hand, nine Senators voted against claiming the restriction; Messrs. Bassett, Carroll, Dalton, Elmer, Henry, Morris, Paterson, Read, and Strong. The result depended upon the voice of the Vice-President. It was the first time that he had been summoned to such a duty. It was the only time, during his eight years of service in that place, that he felt the case to be of such importance as to justify his assigning reasons for his vote. These reasons were not committed to paper, however, and can therefore never be known. But in their soundness it is certain that he never had the shadow of a doubt. His decision settled the question of constitutional power in favor of the President, and consequently established the practice under the government, which has continued down to this day. Although there have been occasional exceptions taken to it in argument, especially at moments when the executive power, wielded by a strong hand, seemed to encroach upon the limits of the coordinate departments, its substantial correctness has been, on the whole, quite generally acquiesced in. And all have agreed, that no single act of the First Congress has been attended with more important effects upon the working of every part of the government." Life and Works of John Adams, Vol. 1, 448-450.

had the power-both sides overlooking a portion of the Constitution which expressly provides for the case. I refer to a clause, already cited, and more than once alluded to, which empowers Congress to make all laws necessary and proper to carry its own powers into execution; and also whatever power is vested in the Government, or any of its departments, or officers. And what makes the fact more striking, the very argument used by those who contended that he had the power, independently of Congress, conclusively showed that it could not be exercised without its authority, and that the latter department had the right to determine the mode and manner in which it should be executed. For, if it be not expressly vested in the President, and only results as necessary and proper to carry into execution a power vested in him, it irresistibly follows, under the provisions of the clause referred to, that it cannot be exercised without the authority of Congress. But while it effected this important object, the Constitution provided means to secure the independence of the other departments; that of the executive, by requiring the approval by the President of all the acts of Congress;-and that of the judiciary, by its right to decide definitely, as far as the other departments are concerned, the constitutionality of all laws involved in cases brought before it.

"No decision ever made or measure ever adopted, except the 25th section of the judiciary act, has produced so great a change in the practical operation of the Government as this. It remains, in the face of this express and important provision of the Constitution, unreversed. One of its effects has been to change entirely the intent of the clause in a most important particular. Its main object, doubtless, was to prevent collision in the action of the Government, without impairing the independence. of the departments, by vesting all discretionary power in the Legislature. Without this, each department would have had equal right to determine what powers were necessary and proper to carry into execution the powers vested in it; which could not fail to bring them into dangerous conflicts, and to increase the hazard of multiplying unconstitutional acts. Indeed, instead of a government, it would have been little less than the regime of

three separate and conflicting departments-ultimately to be controlled by the executive; in consequence of its having the command of the patronage and forces of the Union. This is avoided and unity of object and action is secured by vesting all its discretionary power in Congress; so that no department or officer of the Government can exercise any power not expressly authorized by the Constitution or the laws. It is thus made a legal as well as a constitutional Government; and if there be any departure from the former it must be either with the sanction or the permission of Congress. Such was the intent of the Constitution; but it has been defeated, in practice, by the decision in question.

"Another of its effects has been to engender the most corrupting, loathsome and dangerous disease that can infect a popular government-I mean that known by the name of the Spoils.' It is a disease easily contracted under all forms of government-hard to prevent and most difficult to cure when contracted; but of all the forms of government it is by far the most fatal in those of a popular character. The decision which left the President free to exercise this mighty power according to his will and pleasure-uncontrolled and unregulated by Congressscattered broadcast the seeds of this dangerous disease throughout the whole system. It might be long before they would germinate-but that they would spring up in time, and if not eradicated that they would spread over the whole body politic a corrupting and loathsome distemper, was just as certain as anything in the future. To expect, with its growing influence and patronage, that the honors and emoluments of the Government, if left to the free and unchecked will of the Executive, would not be brought in time to bear on the presidential election implies profound ignorance of that constitution of our nature which renders governments necessary to preserve society, and constitutions to prevent the abuses of governments. "'62

In this view of Mr. Calhoun's, Mr. Webster concurred. In his speech before the National Republican Convention, at Worcester, delivered on the 12th of October, 1832,

62 Works of Calhoun, Vol. 1, 345-48.