and consent of the Senate, shall appoint ambassadors, ot ges of the Supreme Court, and all other officers of th ts are not herein otherwise provided for, and which shall ngress may by law vest the appointment of such inferic e President alone, in the courts of law, or in the heads o ident shall have power to fill up all vacancies that may h te, by granting commissions which shall expire at the er power to remove is incident to the power to ap ve with the power to appoint. In that case, duri e removal must be "by and with the advice and any other construction, the implied power would n all arguments on this subject it is assumed that must exist somewhere; that removal by impeach ded to be the only mode of removing an office remove must, from the necessity of its exercis rtment of the government, and must be implied -ower. By this reasoning some have implied t ower to appoint, and a distinction has been mad session of the Senate and one made during the r is derived from the power to appoint, then the I - exercise it, and may then fill the vacancy by a t if this argument is tenable, he cannot remove a the Senate without they consent. Then they s ppoint, and in all the power that is derived from the removal of one officer during the session of he appointment of another, or by the consent o unconstitutional, unless the power to remove is the appointing power.

case the removal of Mr. Stanton is not claimed by m the appointing power; but it is asserted as dent constitutional and legal power incident to h upon it by law. In the early discussions on this on, the alleged power of the President to remove a upon the general clauses already quoted conferri is is tenable all limitations upon his power of ren constitutional power can only be limited by the

cases other than of impeachment. His power to treaties is limited by the consent of the Senate. powers, far less important, are so carefully limited ied power to remove at pleasure the multitude of t be inferred from that instrument. If so the imovershadows all that are expressly given. What when he may remove in a moment, without cause, eir consent. What need he care for the law when

è instruments of his will, holding office, not under his pleasure alone. The logical effect of this power, 1 by virtue of the Constitution, is revolution. Howthe decision of the first Congress, yet the actual is a safer guide than the reasoning of the wisest

head of a departmant should be removable by the The power to remove is not conferred by the Constiself, is to be conferred, created, controlled, limited, hat such was the judgment of Marshall, Kent, Story, and other eminent jurists and statesmen, is shown the argument; but they regarded the legislative or the time the natural and proper construction of lative construction given by the first Congress has rmy and navy officers have long been placed beyond President. Postmasters and others have a fixed islative limitations have been put upon the power Comptroller of the Currency holds his office for five ed by the President upon reasons to be communicated en the derangement of the revenue service became of the power of removal produced a disgraceful lative authority asserted its power to regulate the he passage, on the second of March, 1867, of the hat this measure is constitutional, and that it is in t, we have asserted by our vote for the law. The mand of us a review of this opinion under the sanc

have takzon Aided by the vory oblo oraumont

nd if the court of last resort in his case pronoun he will be acquitted. He takes that risk at his stitutional his belief to the contrary will not acqu does not excuse crime, and he who undertakes at it is unconstitutional-thus setting up his opin king power-must take the consequences of his c e rule applies much stronger to the President whe n that it is unconstitutional. He is not only bou worn to execute the law. In resisting it he vio his oath.as an officer. If he may protect hir its unconstitutionality, then all his responsibility his trial like all other persons accused of crime, risdiction of his case, must decide this question t affirms the law, his guilt is complete.

ase the President knew that a breach of this law the Senate. His pardoning power exempts hi ot by and after impeachment.

His case can or it is a court of last resort. His violation of thi et the opinion of the Supreme Court, by creating his offence could not be tried before the Suprer ore a court that in its legislative and executive c dered this law and held it valid. A violation of unconstitutionality, would be in the face of th of the court that alone was competent to try his est sense wilful, deliberate, and premeditated. s to consider whether, under the law as it exi 868, the removal of Mr. Stanton was authorized struction of two acts, viz:

act entitled "An act to establish an Executive the Department of War," approved August 7, act of March 2, 1867, entitled "An act regul

offices."

= correctness of this construction. but they claimnoval was limited to during the recess of the Senate session of the Senate, and

nove Mr. Stanton was taken from the President by

e a distinction between removals during the session Senate? Upon this point, at the opening of this ded upon a distinction that I think ought to have full examination of the several acts cited, and the at in fact no such distinction was made. If such e framers of the act of 1789, instead of stating the they would have provided for a removal or vacancy enate." The debates show that no such distinction jority held that the unlimited power of removal was of the Constitution.

792, and 1795, in providing for vacancies, made no es during the session and during the recess, and in unsel, providing for the creation and tenure of offices, , no distinction is made between a removal during the . The practice has corresponded with this construcr to remove heads of departments has been exercised; the removal of Timothy Pickering; the other, by oval of Mr. Duane. The first case occurred during uring the recess. In compliance with this construccads of departments declare their tenure to be President, and the commission under which Mr. partment of War, limits his tenure "during the the United States for the time being." This form question for 70 years through memorable political ent with a construction of the act of 1789, limiting recess of the Senate.

the managers between removals during the session ived from the distinction made by the Constitution during the session and during the recess; but this the foundation upon which the tenure-of-office act

that invests him with discretionary power, and it is not a part, or a necessary incident, of his executive power. It may be and often is conferred upon others. That the power of removal is not incident to the executive authority, is shown by the provisions of the Constitution relating to impeachment. The power of removal is expressly conferred by the Constitution only in cases of impeachment, and then upon the Senate, and not upon the President. The electors may elect a President and Vice-President, but the Senate only can remove them. The President and the Senate can appoint judges, but the Senate only can remove them. These are the constitutional officers, and their tenure and mode of removal is fixed by the Constitution. All other offices are created by law. Their duties are defined, their pay is prescribed, and their tenure and mode and manner of removal may be regulated by law.

The sole power of the President conferred by the Constitution as to officers of the government is the power to appoint, and that must be by and with the advice and consent of the Senate. Does the power of appointment imply the power of removal? It is conferred by two clauses of section two of article two of the Constitution, as follows:

He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the senators present concur; and he shall nominate, and, by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States whose appointments are not herein otherwise provided for, and which shall be established by law; but the Congress may by law vest the appointment of such inferior officers as they think proper in the President alone, in the courts of law, or in the heads of departments.

The President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session. If the power to remove is incident to the power to appoint, it can only be co-extensive with the power to appoint. In that case, during the session of the Senate the removal must be "by and with the advice and consent of the Senate." By any other construction, the implied power would defeat the express, power. In all arguments on this subject it is assumed that the power to remove an officer must exist somewhere; that removal by impeachment could not have been intended to be the only mode of removing an officer, and therefore the power to remove must, from the necessity of its exercise, be held to exist in some department of the government, and must be implied from some express grant of power. By this reasoning some have implied the power to remove from the power to appoint, and a distinction has been made between a removal during the session of the Senate and one made during the recess. If the power to remove is derived from the power to appoint, then the President during the recess may exercise it, and may then fill the vacancy by a temporary appointment. But if this argument is tenable, he cannot remove an officer during the session of the Senate without they consent. Then they share with him in the power to appoint, and in all the power that is derived from the power to appoint. Therefore, the removal of one officer during the session of the Senate, except in an by the appointment of another, or by the consent of the Senate, would be clearly unconstitutional, unless the power to remove is derived from some other than the appointing power.

In this case the removal of Mr. Stanton is not claimed by the President to be derived from the appointing power; but it is asserted as a distinct exercise of an independent constitutional and legal power incident to his executive office, or conferred upon it by law. In the early discussions on this subject, especially by Mr. Madison, the alleged power of the President to remove all officers at pleasure was based upon the general clauses already quoted conferring executive authority. If this is tenable all limitations upon his power of removal are unconstitutional. A constitutional power can only be limited by the Constitution, and yet Congress has repeatedly limited and regulated the removal of officers. Officers of the army and navy can only be removed upon conviction by court martial,