The daily union., 1855-09-15
ror the uslou.
For tue Uslons
THE REnovAL or TERRITORIAL JUDGES.


brought into discussion The power Of The President TO
make such removals. il may be proper refer TO Of
the Judicial authorities the subject The question is by
no means On the contrary, the right OF The
Executive to territorial judges has been OCCASION
ally exercised the first organization OF Territories
and apparently acqueseed n up 10 the time President Fill
more removed The chief justice Of Minnesota.
The oonsnuonaly Of this power appears to have been
deduced from the following principles:
Territorial federal courts within the third
article Of the constitutions and the judges thereof do not
bold their Offices during good behavior
H. All officers whose OF office is not during good
behavior and who appointed by the President hold
their Offices during the viii Of the President
The first of these propositions sustained BY the case of
the Amerc0n Insurance Company Cd,ter, IA Peterss
Rep, OIL One Of the questions involved was the power
OF the territorial OF Florida Chief Justice Marshall
10 delivering the eopinion Of the court said:
The judges Of the superior Of Florida hold their
Offices foe years These courts, them not consun
uonal courts IN which the Judicial power conferred ny the
constitution on the general government be deposited
They incapable Of receiving it. They legislative
courts created In virtue OF the general right OF sovereignty
winch exists IN the government In virtue OF tat clause
which enables Congress make all needfp rules and reg
ualions respecting the territory belonging 10 The United
States The Jurisdiction with which they are invested 10 not
part OF luat Judicial power which 10 dehned III me 80
arucle OF the constitution but is conferred by Congress IN
the execution Of thesu general powers vhch that body
possesses over ihe territories Of the United States"
Judge Story who was very tenacious of judicial rights
adops the doctrine in the came language in his Com
menaries the Constitution (vol q 1866 that
further authority the first point Will not be required
H. The great debate of the first Congress under the
stiution in 1892 participated in by thamos reliable men
Of hat day. resulted in the decision that the President had
power to remove all officers who were appointed by hm
and who declared by the constitution to hold
their offices during good behavior "a Elliotts Debates
part q l4l-2oa This authoritative construction OF the
power and responsibility Of the Executive has been concur
red in by the abest urss of the country though some
have conended that The principle did apply 10 officers
whose tenure specially limited by law Judge Story
however in he work before cited Gays that the final vote
seems TO have expressed the of the legislature that the
power OF removal by the Executive could not be aJd Iy
he legislature" QI, 1887, note In the En- afte
Hennen ia Pet 269) Mr. Justice Thompson deliver
ing the opinion OF the Supreme Court used the following
anguagei It cannot for morent be admitted that il
the intention of the constitution that those offices
which are denomnated inferior Offices should be held
during life; and if removable at pleasure, by whom
is such removal To be made In the absence of all consti
tnonal provision statutory regulation II would to
hea SQUAD and necessary rule consider the oscer
as incidental 10 The powe Of pfoiraen II is true that
the act organizing the Territory Of Kansas limits the tenure
oijudicnl Offices TO four years It the the
ganc act Of Minnesota Yet Mr. Cruenden in his official
opinion advising that the President had the power to
move the chief justice of Minnesota held that 1.-THE law n-
tended than that these officers should certainly at
the end Of that term be either of Office subjected
again 10 the scrutiny of the Senate upon renominaton
Opinions of Attorneys General g. 2Ss) There is, also
very much reason in the point made by Attorney General
Gushing, in his comprehensive and learned argument be
fore the Supreme Court in the of the Judge of Mime
sofa. III How, 29l) He conended hst "all public of-
GERS whether for life or for term OF year subject TO
an implied condition that the officer shall well behave
Therefore, it could not be inconsistent with the intention
Of act which had specially limited the Of Off
Ger he removed for violating this implied condition
Again if the President could not remove territorial
judges where would be the remedy in OF their mis-
behavior, neglect from any cause to perform their
duties? Could they be impeached The sole power to
mpeach is in the House Of Representatives the sole power
to try impeachmcns is in the Senate Constitution arti-
Gle sections and 81 1t would hardly be supposed that
the constitution contemplated that the misconduct of in
fcror officers they legally termed was engage
the time of Congress Accordingly it was held by Attor
ney General Grundy that territorial judges being egsa
tive officers only, subject to Impeachment within
the meaning OF the constitution. Opinions ILL., 409 The
power of the President to officer: also fully
considered by Attorney General Clifford and conclusions
arrived at by him similar 10 those above referred to-
(Opnions A, 603)
In the the chief justice of Minnesota which came
before the Supreme Court last winter application for
writ Of mandamus direct the Secretary of the Treas
ury TO pay the salary of the judge after his removal the
court gave opinion the question of the Presidents
power Mr. Justice Mclean however, dissened
and delivered opinion adverse to the right of the Pres
dent TO make such removal. The following among other
propositions rsanained by Attorney General Gushing in
his argumeu. in this casc appear to be entirely in
ormty with the construction heretofore given to this i'm
portant constitutional question: to be worthy of especial
consideration
l. That in republican government public Offices nre
created for the benefit of the people that the officer does
not hold private estate and property in the Office and
when the officer unfit for any whatever he ought
be displaced and another appointed, for the benefit of
the people and their security or If the Office itself be
found upon experience to be unnecessary it should be
abolished.
@ That the constitution contains the power Of removal
otherwise the declaration that the judges should hold their
offices during behavior would have been unnecessary
and utoogous The express declaration that the judges
shall hold their offices during good behavior necessarily
implies that the other officers shall not hold during good
behavior, but ut viii, durdnte bene piacito
g. That the power of removal from Office is incident
the power of appointment"
The foregoing authorities cited this time merely
show without any attempt argue the matter that the
power of the government to make the removals in ques
tion has been hitherto amply sustained WRIT
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From the Albany Argus