New-York tribune., 1868-04-28

the hrst IIes,uenu M Governments by procamaton
Of King without Congress- o usOsS & ~ Va tc iu,'
bIopelS Wy yer over the laws. IL is but logical Sc
Guence of What he has been airea1SS t oiD II he
coSd be tolerated far why not the W9rs
which was to rsneer enc legis,ati7e es power by set
TING this body aside as an adysaTy cC99S CF aSa
Y nnu The ,efens made here is defiance challenge
t the senate and the nation that must be met ana an
sweIed , ~ he the master II the claim asserted to be
maintained by your decision all that VIII remain LOT you
vii i've the formal abdication OF your high trust as part
" The appoinng power because there VIII be ten aeso
utey nothing left Of II worth M bat M tSes s
trayagant preensiOns or to prevent tne passage Vb law
tIooTv Of that instrument do not propose TO weary
vou with a prOtraced examination OF thls question
Gct in the discussion in the House OF the b relating
10 removals office in December 1896 to when wona
have yeutured invite attention. II the same point
had not been fully elaborated here You nave already
passed upon in the enactment OF the present aw & m
vote so decisive and rwheming, and there is so l
objection part of the counsel for the Preslden 1
the validity 4t he nt aw tTs ON % 6ot6 SIDES INTO few
general propositions which will conprehend telI Ca
TAI festures The case may be stated think anay
caIlv and synOpcay thus The first great fact TO De
observed is that while the CONSTITUTION ehuihcl"Voee
sundry Offices and provides the manner OF aOmtnems nv
of these cases as wen in all Others to be created Dy
law, il presCrbes no tenure, except hat VI 49,, ",
hayor in the Of the Judge, and IS entey s5 nv U
tie subject of removal by any other process tah uIt VI
impeachment From this the references are; ns., o MAJ
the terms of good behavior being snostshtaiy eI ,cr
lent TO that for life the office must IN an cases pS
lnuable at the will of some department oi n.y. to hn
ment unless limited by law, which ~, however pu
another name for the will of the law maker himself, anu
this is settled by authority second a 't Se confined
moval at will being an implied one oaiy Is ~ Uo m law
TO those cases where the tenure is not ~ Ia &
the right of removal in any other ioiih ta Ny tuo H.
cess of depending entirely on the hypothe
Sis of VIII OF whl1fh 'ht act y,ithout rea-
SON and without responsibility. Tmfd, lRaI d,i the
power of removal heng implied az neGessiy zee or 6t"
on ~ Se control of the legislative aud make him de
he will
that the President s by the terms OF the SOsuo, & W
nominate and by and with the advice and consent oi e
Senate appoint" to all Offices and that Wlthout
concurrence he appoints TO none except hehhe rule
lied by Congress- and this may be descrpet that in the
of the Constitution The exceptions aye NAV lodge this
cases Of inferior officers the Coror with the Courts,
power with the President Ad second that in cases OF
the heads Of departmeug the of the Senate hc
vacancy happen tH heD. Poy granting commissions %
10 expir%hien IL appears, hrst, that the President
| Fr91ot. as already stated in any case appoint
then only in the case Of inferior officers Second, That
the power 10 supply even an occidental Hdfany |s s
consulted and 10 advise and act upOn the case liu
as corolary from these two propositions that the
definite be- as it is solemuy conceded by the Supreme
incident TO the power appoint il belongs to the Pres
and Senate, and not 10 the President alone as
was held in that 10 be in the Judge who made the
appointment. The argument upon which TINS implied
and merely nferentia power not of GHtng up but OF
nneS % & 70 heen Offended is First The possible ncce
sity the exercise OF such power during the recess
of the senate or in other words. the argument db in
c0nennt Second That the power OF removal s purely
executive function which passed by Gen Grant IN the
first section Of the second article OF the Constitution
would have carried the power to appoint il unprOvded
for and is To be considered in him Ia all wherein
expressly denied or lodged IN other hands
while the association of the Senate the same not being
an executive body exception 10 the general prnc
pie TO be taken strictly as not TO extend thereto
that essential to the President as the responsible head
OF the Government charged by ms oath WIN the eNec
tion Of same, that he should control hs own subord
mates by making their tenure OF ONCE 70 depend upon ms
will as TO make unit OF the admlmtIatlon. me an
Is no necessity for the the power during the
because the case supposed may be by
its express Constitutional authority, To make al laws
which shall be necessary or proper for carrying into exc
parment thereof" power which, by the way, is very
strongly claimed by one of the Presidents counsel to be
an implied one. To the second, the answer II, that
whether executive power or not depends ON the strc
tITe Si me or III IN o.eI III on %l @ t
dstributive one that II all executive power IL In the
is in Congress- without reference 10 the Constitutions
that the Senate is not only associated with the President
may be withdrawn by Congress almost entirely
from 6Gih under the IN ta s no
grant relied ON the powee pe @ AN 9n m The Com
sution the power 10 supply the omission would have
resulted to the lawmaker, under the authority just
quoted, 10 make all that might he necessary
proper for carrying INTO execution all power vested IN the
GoXeTnment me OF any aetm@emt EN- nereoi TIGn % carries @
over the power Of removal IN the only wherein II IL
referred TO is made judicial one TO the third the
swer first that however natural it may for the Pres
dent after unchecked career OF usrpaton for three
long years. during which he used his subordinatet gen
orally the savish ministers OF his Will and dealt with
the affairs Of this nation IL lie thad been It's master
also, well theirs he greatly mistakes and magDlcs
his Office already shown in the fact that under
the Constitution lie may be stripped atany time by Con-
gress Of nearly the whole OF the appointing power and
second that the responsibility OF the President h 10 be
graduated by and can be only commensurate with the
power lhat is assigned TO him. that the obligation i'm
posed OH him Is 10 take care that the laws are faithfully
executed and his will What strangely assumed
the only law Of the exalted functionaes who
round him. and that 1t is not only not essential to the
af dufV Uf
departments should he the mere passive Instruments OF
his WILL tut the very contrary; Upon tins brief state
ment OF the argument would seem II there could be
reasonable doubt as to the meaning OF the Consitu
tiOn but the higher delinquent who Is now OH Tia feel
from the inexorable logic, rules u against him,
takes refuge IN the past and claims tohave found new
Constitution that suits him better than the old the
judicial authorities In the opinion " the
in the enlightened professional and public sentiment OF
are cOeval with the Government. have continued
the present tlme without interruption. little inqui
city OF refuge there TO shelter the greatest Of the
maefactors from the just vengence Of betrayed
There but three cases, think wherein these quest
have for adjudication before the Supreme
decisions have been directly in conflict with the theory
and pretensons OF the President The first the IA
mar OF Marbury agt. Madison, Cranch page 256)
made dOubly memorable from the fact that 10 out
Of OF the sOcalled midnight appointments made by
the elder ADAMS, the same, by the way whose casting
vote executive officer turned the scale in favor OF
the power TO which lie was destined to succeed in the
first Congress OF 1882 the OF his retirement under
law which had been approved only the day before au-
thOrzing the appointment Of five justices Of the for
the District of Columbia, to respectively for the
Of five years The commission In question had been
duly signed and registered, but withheld
by his successor JecrsOn the ground that the
incomplete without delivery. 1t was not claimed
by him thai the appointment TevOcable II
snmmaed. II it had beeD the resistance would have
unnecessary and the assertion Of the right Of the
office an idle one ChefJusce Marshall in delivering
the opinion Of the Court holds this language Where
an officer removable at the win OF the Executive, the
because