The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1855-09-02

The Power OF the Executive over tne Su-
dietary.
We have already announced the removal of
Rush Elmore, Esq, one Of the Associate JUS
tees of the Supreme Court of Kansas. We re-
ceived yesterday, the subjoined note from
member OF the Kansas Legislature, accompany
ing the opinion Of the Chief Justice of X ansas
upon the removal of the capital. Here 10 the
note -
]. G. Bennett ESQ.,
Of the President to him from office, upon the
ground that he has been appointed for four years. and
cannotbc removed until that time expires.
The great question il now waxing very warm in this
part Of the United States The prosavery men are fully
determined to carry the question in this Territory even
at the point of the bayonet There is much more Sc
rous condition of affairs here than the people generally
imagine Ispeak from certain knowledge OF the facts.
prepared defend ourselves in every way that
circumstances may require.
Yours, W.. TIBBs-
The alleged cause of Judge Elmore's remov-
al was some speculations in Indian reserved
lands, in which it is said he was engaged with
Mr.. Reeder. 1t was done probably to satisfy
the North that Reeder was not removed on ac-
count Of his free soil proclivities. This was
the old story of the ostrich hiding his head in
the sand, and believing that his whole body
was concealed. Nobody believed it, and the
Judge denies the right of the Executive to
touch the judicial erminc, unless the wearer of
it has been proved to be guilty of misbehavior
in Office and then only after trial and impeach-
ment by the concurrent appointing power-the
United States Senate
We believe that the President has stepped
~ - l.: <haxx
fixed by the constitution and the law; and
without regard to the personal matters involv-
ed in the case of Judge Elmore, we desire to
show that he is right in the position which
he has assumed.
IN the first place. we are accustomed to look
to the judicial bench as the fountain Of sound
law, pure justice, and opinions unbiased by par
ty prejudice and political corruption. This conf
dence in the judiciary is nothing new. One Of the
complaints in the Declaration Of Independence
against King George the Third, is that "he has
made Judges dependent on his will alone, for
the tenure Of their offices and the payment Of
their salaries" And it has always been held
both by the law and by unanimous agreement
of public sentiment, that Judge is to be con-
sidered as holding his place by tenure en-
tirely different from that of an ordinary Office
holder. Let us examine the facts.
The ninth section Of the act passed in May,
1854, to organize the Territories of Nebraska
and Kansas provides that the Supreme Court
shall consist Of Chief Justice and two Asso-
ciate Justices, any two Of whom shall consti-
stnte a quorum, and who shall hold term at
the seat of government Of said Territory an
nually; and they shall hold their offices during
the period of four years, and until their sue
cessors shall be appointed and qualified" This
is the law under which Judge Elmore was ap-
pointed; and we hold that it is not in the power
Of the President to remove him until the expi-
ration Of his term of office.
This question has been brought before the
United States Supreme Court several times,
and it has never been decided that the Presi-
dent had power to remove Judge. In fact,
the contrary has always been held to be good
law. In the celebrated case of Marbury
against Madison, a mdnddmus was applied for
to command the Secretary of State to deliver
commissions to certain persons appointed JUS
tees Of the Peace for the District of Colum-
bia-they holding Office by the same tenure as
Territorial Judges. The question was fully
argued. 1t was decided that some point of
time must be taken when the power Of the
Executive over an officer not removable at his
will, must cease. That point Of time must be
when the constitutional power Of appointment
has been exercised. When the President APP
points civil officer he may revoke the appoint
ment at his pleasure. But when an officer is
not removable at the will Of the Executive, the
appointment is not revocable, and cannot be
annulled. 1t has conferred legal rights which
cannot be resumed. The appointment Of
Judge Elmore was made under the conditions
last named. In all such appointments the dis
erection Of the Executive is to be exercised until
the appointment has been made. But having
once made the appointment, his power over
the Office is terminated in all cases where by
law the officer is not removable by him. That
is the law which applies to the Judges appoint
ed by act Of Congress, whether for the District
or for Territories. And as the law creating
the Office gave the officer right to hold for
five years Independent of the Executive, the
was uOb TcNUCuDlc. MaTk LHdt
the appointment Of Judge Elmore, according
to settled principle of law announced from
the Supreme bench before President Pierce
was born, is not revocable. The rights &C
quired by Judge Elmore under his appoint
ment remain to him during four years. and
they are not resnmable by the President until
the expiration Of that time. The appointment
e. l.
the space of five years.
We further hold that the President has not
the power to remove Judge, because no such
power is given to him by the constitution and
the laws whereas, special acts of Congress
have been deemed necessary to give him power
to remove civil officers employed under the Sc
veral heads of departments. They hold their
off at ha nj nf fba I,,x