The Union and journal. [volume] (Biddeford, Me.) 1858-1882, 1868-06-05


the tenure by which they should be held b,
the persons 90 selected. Any other con
stniction would defeat, as for several year
|, prior to the recent act II has defeated 10
many instances, entirely the express decla
ration OF tho Constitution that the ofiices
shall be filed by such persons as sl,nll he
udvise,l by the Senate; for Temporary com
missions could be issued from session to
session. even to the very persons rejected by
the Senate, a. has been the case. And u
officers by The Constitution arc removable
a. the will Of tho President, why, when
once appointed, should they not hold nt his
pleasure, aud II 20. how can the law put a
period to their holding, as has been done In
various instances from the first, without
question from any source?
Certainly u. when the Constitution Is 81
lent, the legislative power may declare that
whoever is appointed to particular Office
shall cease to hold it at The end Of four
years, il may also declare that tho appoinlee
shall enjoy il during that time. The two
things arc complimentary to euch other,
and logically inseparable.
These views as to what In general de-
longs to Legislative power nro fully sustain.
ed by many decisions Of the Supreme Count
among which, Martin W. Hunters lessee,
! Wheat, 326 A; Wayman vs.. Soulhard, 10.
l; I6 Peters, 80; Jones W Van Zapdt, 5
How. may be read with profit.
Il was to establish reign Of law, the
only safeguard OF society and The only
means Of liberty, ,ha, The Constitution WIS
formed. We must, therefore, suppose that
the cases not specifically provided Tor and
the implied powers generally were intended
to be left to the provisions or law. in max
ing which both the President and Congress
must always participate, and usually con.
cur, and not to tho uncontrolled will Of tie
Executive. Indeed the counsel for the re-
spondent do not seem very seriously to
question this Interpretation Of the Consiitti-
ton considered independently ofa construc.
ton which they insist has i'ecn ny lecisla
tive discussion and enactment. and by long
practice Of Executives, put upon 1t.
will dispose, very briefly, Of this con-
str,lction, as il N called. Extended exam
nation, for which there Is not time, would
make the fnllacy Of il clear to demonstra.
ton. So far ns legislative discussion is
concerned, although that Is no safe or al.
missable guide 10 the construction Of law
as law, for no memberis bound by the opin-
ions or words Of nny other, and NJ his 81
lcncc IL no ncquiescencr, the prcicnsiOn
has been from the beginning the subject Of
dispute between adherents Of President
and the Representatives Of tho States and
people, not as to the right OF President to
resist legislative rule, which has rarely, "
l,aC, h<xx, fnst m
propriety Of enacting one; and even Mr..
Madison himself, Whose opinions are NJ
much relied upon by the council Tor tic
respondent, was, at different times on
both sides Of the question md Mr.. Adams
whose casting vote in tho Senate passed
tho net OF 1853, was strongly opposed to
the provision OF the Constitution requiring
the Senate to confirm any appointment. nnd
he was by the public 10 generally supposed
to have been Influenced by his expectation
Of becoming President himself that l'c
thought il necessary tn repel the accusation
of ito use his own wortls) tleciding in Ia.
vor of the powers Of tho primo because ]
look up to that goal" !" o.
An analysis Of the debates and votes
,,pon the act Of 1880. creating tho Depart.
ment Of Foreign Affairs, will demonstrate
the inclusiveness Of tests Of this sort. OF
the fifly.four members Of the House ol Rep.
rcsentatiyes present. those who argued TINT
the power Of removal was, by the Constitn.
ton, in the President, were Sedwick, Mndi-
son (who had maintained the opposite,)
Vining, Boudinot, Clyner. Benson, Scott,
Goodhue, and Baldwin. Those who con-
tended that the President had not the pow.
er. but that It might be conferred by law,
but ought not TO be, were Jackson Stone.
and Tucker. Those that believed that the
President had not the power, and that 10
could not be conferred, were White. Smith
Of South Carolina. Liver,nore, and Page
Those who maintained that the President
had not the inherent power, but that II
might be bestowed by law, and that II was
expedient to bsstow II, were Huntington,
Madison at first, Gerry, Ames, ilartly, Law
renee, Sherman, Lee, and Sylvester
twenty. -four IN all speaking. or these fl:
teen thought the Constitution did not confer
this power upon the President, while only
nine thought otherwise. But those who
Thought he had the power and those who
thought the law ought to confer Il were sev.
enteen.
Thirty did not speak nt all, and in voting
upon The words coniering or recognizing
the power they were J,st ns likely TO vote
upon the grounds OF Roger Sherman as
upon the reasons Of those who merely In
tended to admit The power On the motion
to strike out tho words ito be removable by
The President" the ayes were twenty an'l
the noes thirty fouri but no guess, even,
can be formed that this majority took one
view uther than The other. lndestl, add.
ing only tho eight ~ho spoke against the
Inherent power, but for the provisions OF
law, to lle twenty opponents Of both, and
there is y clear majority adverse TO any such
inherent power in the President. Aud
when OF The next day u was PROPOSED to
change the language to that which bccano
the law, among the ayes ara the names of
White. Smith Of South Carolina, Livcrmore
Page, Huntington. Gerry, Ames, and Sher.
man, oil Of whom, rs We have seen, were
Of opinion against tho claim ofnn inherent
power Of removal In tho President. All
this. with possible error rs to one or two
persons, arising from tho vngnencss or con.
irndic,ory character Of their language, Is in
tho reconl OF the proceedings, obvious 70
any one who will undergo tho labor Of its
examination. .r.l .# -, ..
The construction, then, claimed 10 he do.
rive,l irnm this source ceases to have any
foundation IN point Of fact.
On the other hand. a select committee ri
the Senate. ofwhich Thomas II. Benton was
, chairman, and having arnony It's members
Mr.. Van Buren, and Mr.. Hayne, mado a 70
port in 1926, in which they say:
"Not being able 70 reform The Consultation In The
election Of President, they must 70 70 work upou
Sis powers, and thin down thsse By statatosy On.
astnsnts Whessysr u esa b de.sby la.. and With
a ust rexard 70 the proper efnqisnoy OF the Gov.
srnmsnG FOR This purpose hey have reported
ak etnsHSe - .'..r. 1|i i7.ai - ttf' .s' 80
One Of ihess bills was blu entitled "a
b,ll to prevent military and naval officers
from being dismissed the service At the
Measure Of the PRESIDENT" and X prnhibi,.
cd any dismisal o1cePt 90 the sentence Of
s oourt.parsial, ron address Of bolh Hots-
| :. - SS,,v,-~.5 T,h0 sflsuennco ofthia bill