The evening telegraph. [volume] (Philadelphia [Pa.]) 1864-1918, 1866-05-28
Executive Power.

The tendency of the present discussion upon
the limitations of executive power goes to show
that in many respects it is an open question.
In the early history of the country, it was con-
tended by leading statesmen that the power OF
removal and appointment was Jointly held by
the Senate and the Executive, Just as The treaty
making power is now held. In those days,
however, our national politics had not been
degraded to the base uses Of making Government
service the reward of political subserviency. II
was reserved for President Jackson to give the
Constitution a violent interpretation-to assume
that his personal will should govern every OH
Cia selection; that men who had served the
nation faithfully, who bore the scars of honor
able battle, should be dismissed rom the
nat onal service because they did not snare ms
opinions about the honesty of Nicholas Bldule,
or the virtae of Mrs. Timberlake. The Demo-
cratic domination was too glad TO accept the
imperious will of this resolute man as an element
OF political strength-to recognize as an axiom
the debaslug sentiment that 10 the Vlctors
blong the spolls" The abuse has been tole.
ra'ed partly because the power has never until
now seriously menaced the Union, AMI partly
because it vas pleasant abuse In the hands CT
power. Power never wishes to tie its hands nor
to invent restrictions.
Now. however, when we are reconstructing
the Union, and remodelling the essential con-
ditiOns OF government, it is proper to look into
this question OF Executive appointment. Presi-
dent Johnson expresses great sympathy with
urecedents so TAR as they control bis enemies,
aud equal sympathy with new lnterpretat ons
when they answer his own views. He has made
the Presidency Tribune" and hnds warrant
for exercising tribuntial powers. 1t Is, per-
haps, a tribunltial exercise OF power 10 remove
men rom office who do not 1ndorse certain
views upon reconstruction and to strengthen
tie hands OF the enemies OF Congress by con-
sulting their wishes in dsposng of revenue
and diplomatic appointments. President Jackson
thought so. President Jackson was good
authority on Indian and military matters In a
question of constitutional law we prefer other
statesmen.
The Constitution declares that the president
shall have power TO ill 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." Mark the words
'may happenw The Constitution here speci-
fes the only case in which the President may
exercise the absolute power OF appointment. In
PLAIN words ii the President believes that an
officer is incompetent or dishonest he can noni-
nate successor and submit to the Senate such
nomination, in order that he may have their
''advice" upon the incumbent's undtness, aud
their consent to a change. This Senatorial
limitation was the thought of Alexander Hamil-
ton. In Hamilton's first proposition OF Con-
stitution, submitted to The Convention on the
18th of June, are these words:-'To have the
appointment of the hedds or Chlef officers OF
the departments OF finance, war, ani foreisn
atfairs-to have the nomination OF all other Off
GERS ambassadors to foreign nations included)
subject to the appreciation or rejection OF the
Senate"
This provision was modified, in his full plan of
a constitution, to read d:-"He shall have the ap-
pointment OF the principal or chlet officer of
each OF the departments OF war, naval affairs,
finance and foreign affairs, and shall have the
nomination, and BY and with the consent of the
Senate, the appointment of all other officers to
be appointed uLder the authority OF the United
States except such for whom different provision
10 hu np .tt,fi and Ial
this shall not De construed to prevent the Legis-
lature from app poInting by name, in tLeir laws,
persons to special and particulars trusts created
in such laws; nor shall be construed to prevent
principals in Offices merely ministerial from con
stitutng deputies. In the recess Of the Senate,
he may fill vacancies In offices by appoint nents,
to continue in force until the end OF the next
session of the Senate; and he shall commission
all officers" The committee (Alr. Hamilton, a
conspicuous member) dlgesteu this plan into
the second section OF the second arhcle:-
"lhe President shall have power to fill up all
vacancies that may happen during tn recess OF the
Senate, by granting commissions which snail expire
al the end Of their next session."
Hamilton defended his doctrine of Senatorial
advice deliberately, showing the good tnat would
come from the cooperation OF the Senate in
the business of appointments" and contending
'that it would contribute to the stability Of the
Administration" "The consent of thai bOdY " he
adds (and our readers will observe the emphasis),
'COold be necessary to d5SpldCe as ,Ceb as 10 dp-
pOHW. a CuuuBe vi tue OulGl hdSlSIdlt, JueT6-
fore, would not occasion SO violent nor so gene
raj a revolution ID the officers of the Government
as might be expected If he we're the sole dis
poser of Offices" This doctrine, that the con-
sent of the Senate is necessary 10 'dsplace as
as well as to appoint" was admitted in the early
times. Hamilton was not given to euphemstic
phrases, and his meaning was plain. When Mr..
Madison asser ed the modern Interpretation
in 1889, he was assalled. "What," said a
Virginia member, "what, authorize in a free
republic, by law, too, by your first act,
the existence Of dangerous royal prerogative
in your Chief Magistrate When honor and
virtue ought to be the support of your Govern
ment, will you intuse and cherish meanness and
seryility in your citizens, and msolence and
ARBITRARY power in your Chief Magistrate? Does
increasing the power and multiplying the de-
pendants of the President diminish his re ponsi
bihty" The Senate ruled Otherwise by the
casting vote Of MIR. Adams, who always favored
strong Government Mr.. Hamilton accepted
the fact that his construction had been rejected
by the Legislature, and that lit was settled in
practice that the power OF displacing belong,
exclusively to the President" He never, how
ever, changed his own construction of the arti
Gle Ten years later, during his Presidency, the
elder Adams wrote thus to the Secretary of War
1t is not upon the act OF the Sd of March ultImo
tina ground the claim OF an authority to appOin
th officers IN question, but upon the Constitution
itself Whenever there Is an office that is not full
there is a vacancy, as have ever understood tn
Constitution"
General Hamilton was consulted by the Secre
tary, and replied:-
After mature reflection on the sui ject Of Won
letter Of the 26th of last month | am clearly c
OpnlOn that the President has power TO max
which Is TO be added to the Second Regiment
ATuleIists and Engineers. In my iniOn, Vacanc
is a relative term and presupposes that the OfiC
has been once filled. Ii so, the power TO Fl
vacancy is not the power to make an original al
polntment. The terms that may hapOe serve
cOnGrm this construction they imply casualt
anah off INA hoUt hoo GIIa