Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1867-03-14

IS binding and conclusive upon congress.
The question came again before the su-
preme court Of the United States in jan
uary, 1889, in eG pdrte, hence it was
declared by the court on that occasion
that the power Of removal from office
was a subject much disputed and upon
which a great diversity OF opinion was
entertained in the early history Of the
government. This related, however, to
the power Of the president 70 remove
officers appointed with the concurrence
Of the senate and the great question was
whether the removal was 10 be by the
president alone or with the concurrence
Of the senate, both constituting the ap-
pointing power. No one denied the
power Of the president aud senate,
Jointly, to remove where the tenure Of
the Office vas not fixed by the constitu-
ton, which was q lull recognition Of the
principle, that the power Of removal
was incident to the power Of appoint
ment. But it was very early adopted as
g practical construction OF the eOnstitu-
tisn, that this power was vested in the
president alone, and such would appear
% have been the legislative construction
Of the constitution, for in the organiza-
ton OF the three great departments Of
state, wal and treasury, in the year OF
1883, provision was made for the appoint
ment of u subordinate officer by the head
Of the department, who should have
charge of the record books and papers
appertaining to the office. when the
head of the department should be re-
moved from Office by the president of
the United States.
When the vydepartment was estab-
lished In the year 1888, provision was
made for the charge aud custody of the
books, records and documents OF the de-
partnent in Ease Of vacancy in the Office
OF secretary by removal or otherwise.
1t is not here said By removal 6g the pres
tdeat, as 10 lone with respect 70 the
heads Of the other departments yet
there can be no doubt that he holds his
Office with the same tenure as the other
secretaries and is removable by the pres
ident. The change of ~phraseoiogy arose
probably from its having bee, me the set
tied and well understood construction of
the constitution that the power of
removal was vested 10 the president
alone in suchcases, although the appoint
ment of the officer is BY the president
and the senate. 18th Peters, page 1873
Our most distinguished and accepted
counsel upon b constitution concur in
the construction thus early given by
congress, AMI thus sanctioned BY the u
preme court. After a full ANALYSIS of
the congressional debate to which I have
referred, MIR. Justice Story comes to this
conclusion AFTER q most animated
discussion the vote finally taken in the
hOus of representatives was affirmative
Of the power OF removal in the PRESIDENT
without any cooperation of the senate,
by the vote OF thirty-four mem
bers against twenty in the SEN
ate. The clause in the bill affirm
ing the power was carried by the casting
vote of the president.
That the final decision of the question
go made was greatly influenced by the
exalted character of the president then in
Office, was asserted at the time and has
always been believed, yet the doctrine
was opposed as we'll as supported by the
highest legal talent and patriotism of
the csuntry. The public have acqui-
esced in this decision and it constitutes
perhaps the most extraordinary case in
the history Of the government, of a
power conferred by implication On the
executive by a bare majority of congress
which has not Teen Questioned Oh many
other occasions. The commentators add
"N0r IS this general seQuiesence and
silence without a satisfactory explana-
ton"
Chancellor Kent's remarks on the
subject are as follows:
ION the first organization Of the gov
eminent il was made a question whether
the power Of removal in the case Of
officers appointed to hold at pleasure,
reside nowhere but in the body which
appointed them and of course whether
the consent Of the senate was not re-
quired to remove"
This was the construction given to the
constitution while it was pending for
ratification before the state convention
by the authority of the general act but
the construction which was given TO the
constitution by congress, after great csn-
sideration and discussion, was different.
The words of the act establishing
the treasury department are "And
whenever the same shall be re-
moved from Office by the president Of
the United States, or in any ,Other case
Of vacancy in office, the assistant shall
act.n This amounted to a legislative
construction of the constitution, and il
has ever since been acquiesced in and
acted upon as q decision Of authority in
the case. u applies equally to every
other officer Of government appointed by
the president whose term OF duration is
not specially declared. Ii is supposed by
the weighty reason that the subordinate
officer in the executive department ought
to be held at the pleasure of the head OF
the department., because he is invested
generally with the executive authority
and the participation in that authority
by the senate was an exception 10 a gen
erai principle, and ought to be taken
strictly. The president is the great re-
sponsible officer for the execution of the
and the power of removal was incl
dental 20 that duty and might often DE
requisite to fulfill it.
Thus has the important question pre-
scented by this bill been settled, in the
language Of the late Daniel Webster.
who while dissenting from it, admitted
that It was settled by construction set
tied by the practice of the
and settled by statute. The events Of
the last wal furnished a practical eontir-
of the wisdom Of the constitution
as it bas hitherto been maintained in
many of its parts, including that which IA
now the subject of consideration. When
the wal broke out, rebel enemies, t~raitots
and sympathizers were found in
every department Of the government a.
we'll as in the civil, the naval and mill
tary service. They were found in con.
gress and among the keepers of the
capitol, in foreign missions, in each and
ali Of the executive departments. in the
judicial service, in the postofdee and
among the agents conducting. Indian
AS upon probable suspicion thew
were promptly displaced by my prede-
cessoF, 80 far as they held their aaSces
under executive authority and their
duties eonfided to new and loval suc-
cessors no complaints against MAJ
power, o doubts Of its wisdom were
entertained in any quarter. I sin.
eerely trust n believe that no such
civil wal is likely to occur again. Lean
not doubt, however, that In whatever
occasion sedition can raise an effort TO
hinder or defeat the legislative action of
the government whether by preveDiipg
the collection OF revenue or disturbing
the peace, or separating the states. or he.
traying the country to a foreign enemy.
the power of removal from ofioe by tie
executive rs it has heretofore existed and