The national era. [volume] (Washington [D.C.]) 1847-1860, 1855-02-15
WASHINGTON, d. c..
THE POWER OF REMOVAL FROM oFFIcE-A
QUESTION BEFORE THE SUPREME COURT

fore the Supreme Court, and is now under con-
sideration of the Judges. We hope they will
meet the question frankly aad fairly, and not
slide behind some petty inadvertency in the
manner in which it comes before them, to get
rid of the responsibility resting upon them.
Whether the President has power to remove
men in Office, comes home to the business and
bosoms of thousands, and has invested this con-
troversy with interest arising out of itself. In
Washington there has been superadded the in
terest attending war of intellect, for the argu-
ments of Mr.. Attorney General Cushing, for
the power OF the President to remove, and of
Mr.. Alexander II. Lawrence, of Washington.
against it, were listened to by the Bench OF
Judges the Bar, and a crowded audience, with
sustained and increasing attention, to the close.
And of this close of the argument by Mr.. Law
renee, we shall speak hereafter.
These antagonists in debate are both men
eminently gifted. The Attorney General has
long been before the country, while Mr.. Law
renee is known only as comparatively young
lawyer, whose attention has been devoted to
his profession; and in this he has come rapidly
into tho front rank Of those men whose bust
ness and practice is principally in the Supreme
Court. We will briefly state the points made
by each, and, in doing SO, we avail ourselves Of
letter which has appeared in the Boston
Transcript, from the pen of our friend and fell
low-citisen, Mr.. Peter Schlemihl.
: "The argument Of the Attorney General was,
that the Executive power included the power of
removal; and consequently no mere act of Con-
gress could take away the power of removal
without infringing upon Executive rights under
the Constitution. And he contended that such
had been the construction of all the departments,
from the beginning.
ION the other hand, Mr.. Lawrence, in speech
commenced on Friday, the 18th, and completed
on Monday following speech Of mastery
ability, which arrested the attention Of the Court
and audience throughout its delivery-maintain-
ed that the Executive power was only such pow
er az rises out Of the Constitution and lava of
the United States. That the Legislative power
is the only creative element of the Government,
and precedes In logical succession the action of
the other departments, inasmuch as they act no
ly upon that which the Legislative power has
brought into existence. From which il follows
that the Executive power, in any given case, is
Just that power which is required TO carry the
particular law into execution. And if the Leg
islsture, from motives of public policy, choose
TO make the tenure of office independent,
then the Executive power as to that law consists
In the power of appointment, acitiout the power
of removal. That this is the result of the fact
that the Departments of our Government are
coordinate, and NOT hostile parts Of one and the
same sovereignty. That the Government Of the
United States is an unit and that although
the functions of that Government are separated,
yet they are the functions of that Government
still !; and that the legitimate action of any of
these departments is to that extent the legitimate
action of the Government of the United States.
Mr.. Lawrence also maintained that to define
and tx the tenure OF an Office which it has the
power to create, is an element of that power,
and in its nature Legislative function And of
course it would be comprehended in the grant
of all Legislative power unless restrained or
denied expressly, or else by the grant Of some
other repugnant power TO some other depart
ment. Mr.. Lawrence contended that the con-
struction that the power Of removal was incident
70 the power OF appointment is applicable only
70 officers created by law silent as TO the
tenure. But whenever the tenure is fixed, then
the tenure ia Just what the law makes it, and
that construction cited by the Attorney General
is unnecessary and inapplicable. Such was the
effect of the great debate IN 1889 on the power
of removal. Such was the Legislative construc-
adapting the Ordinance Of 1887 to the Constitu-
lion, wherein the power to remove those officers
which had in the Ordinance been removable
by the Congress, was given to the President I;
but the Territorial Judges were not included in
this power of removal, because the tenure Of
thor Office by the Ordinance was during good
behavior The judicial Department has settled
.lis question early az the case of Marbury
and Madison. And the Executive had never.
I'll L f. Il
The present Secretary Guthrie had elected
Judge Goodrich, and hence this case before the
Supreme Court.
This question is ofitself of sufficient interest
l hope, TO repay the reading all l have written
4 have so stated II, the better to introduce Mr.
Lawrence's eloquent eulogy of Chief Justice
Marshall. Mr.. Attorney General Cushing, com.
menting upon the case of Marbury u.s. Madison.
had said, In the course of his speech, that il
was case which was o6iter dictuu, and in
which the Court of that day had gone far out of
the way to decide a point not necessary to the
decision of the case and that throughout the
opinion Of the Chief Justice could be traced
the effects of that palpitation which followed
the debate on the Judiciary of 1901. 1t was
this pointed and pungent criticism of Attorney
General Gushing that drew from Mr.. Lawrence
the remarks which follow, and which we give
as nearly as they can be now recollected
The argument being through, Mr.. Lawrence
closed by saying:
he had heard with sorrow the remarks of
the Attorney General upon the case Of Marbury
and Madison, and could have wished that they
had stopped with the suggestion that the opinion
was ootter dictun, without assigning to it the
degraded character which he had attributed to
II and the Chief Justice who had uttered IT.
Sir, the great heart of the late Chief Justice
never pdlpHdted. 1T beat regularly and firmly.
ever responsive to the requirements of duty but
never futtered from either fear or desire. If
we trace him in his early DAYS as Captain of
Militia at Brandywine, or Germantown or Mon
mouth, or In the severe trials of the winter at
Valley Forge, his heart never papitated. but
beat in unison with the calls of his country.
Or IL we view him later, when he had become
an advocate Of that Constitution which his after
life was to illustrate, and when a candidate for
the Convention which was to act upon its ratif-
cation, among people hostile to that Constitu-
ton, and who told him if he would pledge him
self to oppose it, they would unanimously elect
him, has hoart did not palpitate but it beat in
dignantly at the offer-he spurned the pledge,
and yet was triumphantly elected
"'And still later, SIR, when in that seat which
you now occupy, when that same Constitution
had como cut of the fierce discussion, tried as
by fire. when it was to receive its image and
superseription from the decisions of this bench,
when States were before the Court as litigants,
and the validity or nullity of the laws of States
were the subjects Of elaboration, and the disaf-
fected opponents of the Constitution were clam
oring around the Capitol, still the heart of the
Chief Justice never palpitated, but with his eve
on tho 1eftar of the great charter of our Govarp-