But this vote, although a very emphatic expression of the opinion of that Senate upon the power in question, and very suggestive of the opinion of that age, cannot strictly be considered a decision of that Congress, since the bill did not pass, and was not considered by the House of Representatives.

But in 1863 Congress passed an act to provide a national currency. The first section provided for a Comptroller of the Currency, and enacted as follows:

He shall be appointed by the President, on the nomination of the Secretary of the Treasury, by and with the advice and consent of the Senate, and shall hold his office for the term of five years, unless sooner removed by the President by and with the advice and consent of the Senate.

Of course, if the Constitution confers upon the President the power to remove from office, this provision was in palpable conflict with it, and yet both houses agreed to it, and President Lincoln approved the act, as President Monroe approved the act of 1820, above referred to.

Congress again asserted the same control over the power of removal in the first section of "An act to provide a national currency secured by a pledge of United States bonds, and to provide for the redemption thereof," which act was also approved by the President, on the 3d of June, 1864. (See Statutes at Large, vol. 13, p. 100.)

Again, the 5th section of the act making appropriations for the support of the army, for the year ending June 30, 1867, contains the following provision:

And no officer in the military or naval service shall, in time of peace, be dismissed from the service except upon and in pursuance of the sentence of a court-martial to that effect or in commutation thereof.

The legislative history of this provision is brief. It is strikingly suggestive of how much of this clamor against the constitutionality of the tenure-of-office act is attributable to partizan zeal, and how much to real conviction. For this reason I refer to that history here.

The army appropriation bill being under consideration in the Senate on the. 19th of June, 1866, Mr. Wilson offered an amendment in the following words, to wit:

And be it further enacted, That section 17 of an act entitled "An act to define the pay and emoluments of certain officers of the army," approved July 17, 1862, and a resolution entitled "A resolution to authorize the President to assign the command of troops in the same field or department to officers of the same grade without regard to senority," approved April 4, 1862, be and the same are hereby repealed; and no officer in the military or naval service shall be dismissed from service except upon and in pursuance of the sentence of a court-martial to that effect, or in commutation thereof. (See Congressional Globe, 1st session 39th Congress, p. 3254.)

The amendment as offered was agreed to without division and without objection. When the bill was returned to the House of Representatives it was committed, together with the Senate amendment, to the Committee on Appropriations. On the 25th of June the amendments were reported back from that committee, with the recommendation that the House non-concur in that amendment among others. (Ibid., p. 3405.)

The bill subsequently was referred to a committee of conference, consisting on the part of the Senate of Messrs. Sherman, Wilson, and Yates; and on the part of the House of Messrs. Schenck, Niblack, and Thayer.

That committee reported that the House agree to the amendment of the Senate, with an amendment inserting the words "in time of peace," after the word 66 shall."

In that form the amendment was accepted, without a dissenting vote in either house.

The Senate which passed that act with such unanimity was composed substantially of the same individuals who now compose this tribunal. Moreover the act was approved by the respondent himself on the 12th of July, 1866. In his answer filed in this cause the respondent dwells upon the reluctance

he felt to surrendering any one of the prerogatives which the Constitution had intrusted to the presidential office. Such a reluctance, if sincere, becomes a President always. But the respondent's professions of reluctance in 1867 were surely ill-timed, admitting they were sincere. He had already surrendered this prerogative in the most solemn manner possible.

No one has asserted, and no one will assert, that the Constitution vests in the President any sort of control over the tenure of civil offices that he does not possess over that of military and naval offices.

If under the Constitution he can dismiss a postmaster, he can dismiss also the General of the army and the admiral of the navy; and a statute forbid. ding the dismissal of either is but idle words.

If Congress can lawfully forbid the President to remove any military or naval officer, as was done in the act above mentioned, surely it cannot be denied that Congress may prohibit the removal of any civil officer, as was subsequently done by the tenure-of-office bill.

Either, then, the respondent now asserts power which he believes to be uncon stitutional, or he then approved a statute which he believed to be unconstitutional. For myself I cannot help thinking the judgment of 1866 was the most candid and unbiased. He was then under every obligation to defend the Constitution that rests upon him now. But he is now manifestly under a necessity of defending himself, which he was not under then.

If the respondent were proved to have claimed to own an estate which he had by deed conveyed to another, he would be held guilty of slandering the title of his grantee. And when he is heard, in answer to a charge of usurping power, to assert an authority which he has solemnly abjured, he must be held guilty of slandering the Constitution and the prerogatives which that Constitution vests in Congress.

Following the act of 1866 came the act of March 2, 1867, entitled "An act regulating the tenure of civil officers."

In substance it prohibits the President from removing certain civil officers, except upon certain conditions, as the act of the preceding year prohibited him from removing military and naval officers, except upon certain conditions. The principles of the two acts are precisely the same. The power to pass them must be the same. There may be considerations of expediency opposed to one which cannot be urged against the other. But the President, who approved the first act, so far as I know, without hesitation, vetoed the second, upon the ground of unconstitutionality. This will be thought strange; but it will not be thought strange that Congress, adhering to a principle so often asserted in former acts, passed this act by a majority of more than two-thirds of each house, the President's objections to the contrary notwithstanding.

Upon all these instances, I conclude that the constitutional power to remove from office cannot be proved by the decisions of Congress. Congress has never in terms affirmed its existence once. On the contrary, it has, as I have shown, denied it repeatedly and explicitly. It can as little be proved by reference to the text of the Constitution itself.

Those who, in the debate of 1789 or in subsequent discussions, have ventured to seek for this baleful authority in the text of the Constitution have claimed to find the warrant for it in the first section of the second article. They assume that the power of removal is an executive power, and therefore that it is conferred upon the President by that section. The terms of the sec tion are these:

The executive power shall be vested in a President of the United States of America. In my judgment, the sole office of that clause is to fix the style of the officer who is to possess executive authority, and not to define his jurisdiction-to prescribe what the Executive shall be called, and not what he may do. It seems to bear the same relation to the executive department that the first

clause of the first article does to the legislative department, and the first clause of the third article to the judicial department. To ascertain what is executive power, we must examine other provisions of the Constitution.

But when you have searched the Constitution through, you do not find this of removal from office enumerated among executive powers, nor any other power like it. The one duty charged upon the President which is most like, or rather which is least unlike the duty in question, is this: "He shall take care that the laws be faithfully executed." He is not to execute the laws, but to "take care that the laws be * * executed." It is very little he can lawfully do to execute them. If, because he is charged to see that the laws are executed, he may provide any one of the means or methods, or instruments of their execution, he may provide all not otherwise expressly provided for. If, because he is to see that the laws be executed, he may remove any officer who may be employed in their execution, why should he not select all officers to be employed? Why not contrive and establish the offices they are to fill? Why not define the duties they are to discharge the parts they are severally to perform? Why not fix the compensation which they may receive?

No one will pretend that either of these powers belongs to the President, though each one is as much executive in its nature as is the power of removal. No office not established by the Constitution can be created but by an act of Congress. Congress alone can determine the manner of filling it, define its duties, and fix its emoluments. And yet it is strangely claimed that when the legislative power has done all this, the executive power may practically defeat it all; not by abolishing the office or changing the duties, or the rate of compensation, but by creating a vacancy in the office whenever he chooses. And so his duty to see the law faithfully executed is transformed into a power absolutely to defeat the whole purpose of the law. He is charged by the Constitution to see that the laws are faithfully executed, and yet he cannot transfer an old musket from one citizen to another without making himself liable as a trespasser.

The President of the United States recently commanded an army of more than a million of men; but with all that force at his command he could not lawfully eject from his cabin the humblest squatter on the public domain. Possession is stronger, in the eye of law, than the President, and before that naked possession the commander-in-chief must halt, no matter what the physical force he commands. Only when the wrongfulness of that possession has been determined by the judicial power in a procedure prescribed by the legislative power; not until the national precept has issued, attested not by the President, but by a judge, can that possession be disturbed. And even that writ must be executed by the very person to whom Congress requires it to be directed. Whoever else attempts to serve it is a trespasser, although it be the President himself.

do so,
but because

And yet it is strangely asserted that this officer, who is so impotent to redress so palpable a wrong, may, at his own pleasure, without judicial inquiry, without writ, in a moment by a command, in defiance of a statute, remove from the duties, the labors, the honors and emoluments of official position, the army of officers employed in the civil, the military, and naval service of the United States, not because the Constitution anywhere says he may the Constitution charges him with the duty of seeing the laws faithfully executed. This power of removal is, then, not vested in the President by anything said in the Constitution, nor by anything properly implied from what is said. It seems to me, on the contrary, it is positively denied by the manifest purpose of the Constitution. That manifest purpose is, that the principal offices shall be held by those in whose appointment the Senate has concurred. The plain declaration is that, "He (the President) shall nominate and, by and with the advice and consent of the Senate, appoint ambassadors," &c. But this purpose may be wholly defeated if the President have, by the Constitution, the unrestricted power of removal. For it is as plainly declared that "the President shall have

power to fill 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, then, the President has also the power, during the recess of the Senate, to make vacancies at his pleasure by removal, his choice is supreme and the Senate is voiceless. He is only to remove all officers in whose appointment the Senate has concurred, immediately upon the adjournment of that body, and commission others in their places. They will hold until the end of the next session. Just before that event he must nominate again to the Senate the officers he removed, or some others whom the Senate will confirm, and when the Senate has confirmed them and adjourned, the President may again remove them all and restore his favorites once more, to hold until the end of another session, when the same ceremony must be repeated.

it

A deed which should grant a house to "A" and his heirs and to their use for ever, but should also declare that "B" and his heirs should forever occupy free of rent, would probably be held void for repugnancy. I do not think the Constitution a nullity; and so I cannot concede that the President has in it a power implied so clearly repugnant to a power plainly declared to be in the

Senate.

But it is urged that it is necessary to the well-being of the public service that the President should be clothed with this extraordinary power. It is urged that unless he have it unfaithful men may be obtruded upon the public service, and it would take time to displace them. It is true, incompetent or dishonest men may get into the custom-houses or the marshalships. It would be folly to deny that. And so dishonest men may get possession of other men's property and refuse to make restitution; and dishonest men may refuse to pay their just dues on demand. I readily confess that some govermental contriv ance by which official positions could be instantly taken from unfaithful hands and placed in faithful ones, and by which all wrongs could be redressed and all rights enforced, instantly, and without the necessity of trial, or deliberation, or consultation, is a desideratum. But the men who made our Constitution did not provide any such contrivance. I do not think they tried to. It seems to me they studiously avoided all such effort. I think they believed what the world's whole history most impressively teaches: that while the administration of law is entrusted to fallible men, deliberation is safer than expedition.

Absolute monarchies are the handiest of all governments for that very reason; because they can execute justice and punish rascality so promptly. But the men who made our Constitution, looking back upon the experience of a few thousand years, came to the conclusion that absolute monarchs could just as promptly execute injustice and punish goodness. They resolved to discard the whole system. I am not yet satisfied they were mistaken, and am not therefore willing to see their decision reversed.

I readily concede that if we were sure the President would always be an honest, wise, unselfish, unprejudiced man, it might promote the efficiency of the public service to entrust him with the delicate and responsible duty of removing a bad officer and replacing him by a good one.

But the men who made our Constitution did not act upon any such hypothesis. They knew it was possible not only for bad men to become assessors of internal revenue, but to become Presidents as well, else they would not have provided this august tribunal for the trial and deposition of a delinquent President. I grant that when you have a true man for President it is convenient and not dangerous that he have the power of removal, for thereby he may be able to replace an incompetent district attorney with a competent one, or a dishonest inspector of customs with an honest one, without waiting to consult the Senate or with the law-making power. But if, instead, you happen to have a false man for President, then if he have the power of removal it is a power

which

the same words used by the same men in the fo

we look at the terms employed in the section, e debate which preceded the enactment, it is ve rred is something very different from that arbitrar emoval claimed by the President in his answeres, of removing from office all executive officers e President alone."

ary, the power contained in this section is insinua d rather than expressed, allowed rather than co granted him to be wielded wantonly and accord power entrusted to him in confidence that it w omote the public welfare, and not to promote his y his personal spites.

to which I have referred Mr. Goodhue urged t be served by the best men when the Senate con e appointment; but if any oversight was committe the superintending agent."

in reply to the suggestion that if the President w s pleasure he might remove meritorious men, said e impeachable by this house before the Senate ation; for I contend that the wanton removal of ject him to impeachment and removal from his o the power was felt to be is apparent from the fa act down to the 20th of February last it is certain rted but once, and it is not certain that it was ev ecretaries have been nominated to the Senate in nd upon receiving the assent of the Senate the the former ones. It is claimed that in 1800 a Se y President Adams without the assent of the Sei hed an order for the removal of Mr. Pickering befor but as Mr. Marshall was nominated to the Sena or Mr. Pickering's removal was dated, and as

romptly on the following dow it is ovi