IT I SLIC DOCUMENTS. 





appol 



I; 



I 

 in 



The Constitution rifllrmn that the executive power Is 



it Ion mivs lli.it in 

 111 Hi.- 

 I Inferior Olllc.-l-s, When tin; 



rue direr- i-.Tens) a 



: 



V rr ill III.' I 1 . 



iTt th-it Hi.- Legislature liu-- ' 

 Jlfy hi* executive Biitliiirit-. . 



in:. i this : is tin- |im\iT of dis- 

 Ilint if uny 



:'ivi', it is In tli.- p..wvr c,f 

 rolling th one, who execute 



MM ha. I ii'. I <iir.il: 



ill ill iippolntlir..' to olllrr tiy :i .Mi-uiiiif; |!,,) 



iin 111 that luisiiiess, would It not !> clear thai 



.!>! li:iv-' tin- ri^ht, liy virtue of his i-xi-ruiiv.- power, 



I > make such Appointment? Should we In- authorized, in 



USe ill the Constitution " llle r\.-.-Iltm: 



:. lent" to unite th. 

 with the iVe-idcni in the appointment to offloe f I conceive 



Hot. It Is admitted that we slioulil Mot lie antliorlztd to do 

 this, I think it in ij- lie disputed whether we have :i right to 

 associate them in removing persons from office, the one 

 power Ill-ill:: us much of an executive nature as the other; 

 and the tir-t Is .-luihui-ized by being excepted out of the gen- 

 eral rule established by the Constitution in those words, 

 n power shall bo vested In the President." 



The question thus nhly and exhaustively argued 

 was decided by tin- House of Representatives, by a 

 vote <>! iu favor of the principle thut the 



executive power of removal is vested by the Consti- 

 tution in the Kxecntive, and in the Senate hy the 

 rusting vote of the Vice-President. The question 

 lias often been raised in subsequ< -nt times of high ex- 

 citement, and the practice of the Government has 

 nevertheless conformed in all cases to the decision 

 thus early made. 



The question was revived during the Administra- 

 tion of President Jackson, who made, as is well 

 recollected, a very large number of removals, which 

 were made an occasion of close and rigorous scru- 

 tiny and remonstrance. The subject was long and 

 earnestly debated in the Senate, and the early con- 

 struction of the Constitution was nevertheless freely 

 accepted as binding and conclusive upon Congress. 



The question came before the Supreme Court of 

 the United States in January, 1839, exparte Herren. 

 It was declared by the court on that occasion that 

 the power of removal from office was a subject 

 much disputed, and upon which a great diversity of 

 opinion was entertained in the cany history of the 

 Government. This related, however, to the power 

 of the President to remoye officers appointed with 

 the concurrence of the Senate, and the great ques- 

 ti..n w.is whetherthe removal was to be by the I'n-si- 

 dent alone or with the concurrence of the Senate, 

 both constituting the appointing power. No one 

 denied the power of the President and Senate jointly 

 to remove where the tenure of the office was not 

 fixed by the Constitution, which was a full recogni- 

 tion of the principle that the power of removal was 

 incident to the power of appointment ; but it was 

 very early adopted as a practical construction of the 

 Constitution that this power was vested in the Pi-.--i- 

 dent alone, and such would appear to have been 

 the legislative construction of the Constitution, fur 

 in the organization of the three great Departments 

 of State, War, and Treasury, in 1789, provision was 

 made for the appointment of a subordinate officer by 

 the head of the Department, who should have charge 

 of the records, books, and papers appertaining to 

 the office when the head of the Department should 

 be removed from office by the President of the 

 United States. When the Navy Department was 

 established, in the year 1798, provision was made 

 for the charge and custody of the books, records, 

 :md documents of the Department in case of vacancy 

 in the office of Secretary, by removal or otherwise. 

 It is not here said by "removal of the President," 

 as it is done with respect to the heads of the other. 

 Departments; yet, there can be no doubt that he 

 holds his office with the same tenure as the other 



Secretaries, And is removable by the President. 



The change of phraseology arose probably fr 



having become tin- nettled and wefl-und 



Btruction of the Constitution that the power 



moral was vested in 



cases, although the appointment of th. 



tin- I': -I Senate.- . KJ9.) 



Our most distinguished and ae ..enta- 



ji.in tin- Constitution concur in t' 

 tion thus early given by Congress, and thus sanc- 

 tioned l>y the Supreme Cuiiil. After a full a 

 Of the COngre-sional del/ate- to which I have iv: 



Mr. Ju.-tiee Mnry comes to this conclusion : 



n most anlmat?d dl.-cu-slon, tho vote Anally taken In 

 tin- HMII--- i.: : - atlirnntive of the power 



of removal in the President without an :\ of the 



- sgalnst M. 1 



the clause In the bill affirming t! ; l>y the 



- vote of the \ :slon of 



this question so made was greatly influenced by the 

 character of the President then In office w&t asserted at the 

 time, and has always been believed: yet t! e dorti! 

 opposed as well as supported by the highest talent and pa- 

 triotism of the country. The public have acquiesced In this 

 decision, and It constitutes perhaps the most extraordinary 

 case In the history of the Government of a power conferred . 

 by Implication on the Executive by the assent of a U. 

 jority of Congress which has not been questioned on many 

 other occasions. 



The commentator adds : 



Nor Is this general acquiescence and silence without a 

 satisfactory explanation. 



Chancellor Kent's remarks on the subject are as 

 follows: " On the first organization cf the Govern- 

 ment it was made a question wTiether the power of 

 removal in case of officers appointed to hold atpleas- 

 ure resided nowhere but in the body which appoint- 

 ed," and of course whether the consent of the Senate 

 was not requisite to remove. This was the construc- 

 tion given to the Constitution, while it was pending 

 for ratification before the State conventions, by the 

 author of the Federalist. But the construction which 

 was given to the Constitution by Congress after great 

 consideration and discussion was different. The 

 words of the act (establishing the Treasury Depart- 

 ment) are, " and whenever the same shall be removed 

 from office by the President of the United States, 

 or in any case of vacancy in the office, the assistant 

 shall act." This amounted to a legislative construc- 

 tion of the Constitution, and it has ever since been 

 acquiesced in and acted upon as a decisive authority 

 in the case. 



It applies equally to evcrv other officer of the Gov- 

 ernment appointed by the President whose term of 

 duration is not specially declared. It is supported by 

 the weightv reason that the subordinate officers in the 

 Executive Department ought to hold at the pleasure 

 of the head of the department, because he is invested 

 generally with the executive authority, and the par- 

 ticipation in that authority by the Senate was an ex- 

 ception to a general principle, and ought to be taken 

 strictly. The President is the great responsible offi- 

 cer for the execution of the law, and the power of re- 

 moval was incidental to that duty, and might often 

 be requisite to fulfil it. Thus has the important ques- 

 tion presented by this bill been settled, in the lan- 

 guage of the late Daniel Webster (who, while dis- 

 senting from it, admitted that it was settled), by 

 construction, settled by the practice of the Govern- 

 ment, and settled by statute. The events of the lust 

 war furnished i. practical confirmation of the wisdom 

 of the Constitution as it has hitherto been maintained 

 in many of its parts, including that which is now the 

 subject of consideration. When the war broke out, 

 rebel enemies, traitors, abettors, and sympathizers 

 were found in every department of the Government, 

 as well in the civil service as in the land and naval and 

 military service. They were found in Congress and 

 among the keeper^ of the Capitol, in foreign missions, 

 in each and all of the Executive Departments, in the 

 judicial service, in the Post-Office, and among the 



