Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1869-04-08


tional. That, indeed, stands in no need
of proof from any quarter; for it would
insult the intelligence Of any Radical to
presume him ignorant that the usurpsa
ton of that power by Congress has bean
as conscious as criminal. But it would be
interesting to the country to know that,
for any reason, whether Of law or Of
policy, the Chief Justice should upon
this point repudiats alliance with the
usurpers:
One of the three following propositions
is true
Either the power Of removal is one Of
legislative jurisdiction-that is to say,
deriving its authority from act Of Com
gress and subject to regulation thereby
Or it is power vested in the Presi-
dent and Senate jointly, only to be ex-
ercised by their concurrent act
Or it is purely presidential peroga-
tive.
l, Is it subject of legislative juris-
diction ? Article one, section one, Of
the constitution provides as follows: "All
legislative powers herein granted shall
be vested in Congress of the United
States, which shall consist of Senate
and House Of Representatives" The
Congress, therefore, can exercise no
other powers than such as are granted
as above. The powers granted are such
as are expressly defined in terms in the
the constitution, and such deriyatiVe
powers as may be necessary to carry
them into execution and they consti-
tute the entire body of the legislative
powers of the government of the United
States.
II we look now to the constitution it
will be seen that the only grants of leg
islative power made thereby are to be
found in the ten sections constituting
article one, in three paragraphs in secs
ton two, and one paragraph in section
three, article two; in one paragraph in
section one, two paragraphs in section
three, article four; and one paragraph Of
article five; and if We Scrutinize all these
provisions it will be seen that not only is
there no express grant of power over the
subject of removal, but that no such
power is rightfully to be derived by i'm
plication from any Of them as being nee
essary to carry into effect the express
ofpower contained therein.
In this view, having thus surveyed the
whole field of legislative powers, we find
that, so far as the power of removal is
concerned, it is not there, either in ex>
press terms or by legitimate implication;
and not being there, the inevitable con-
clusion is that it is not of the domain Of
legislation capable either of being created
or controlled by act of Congress.
2. Is it a power vested in the PresiS
dent and Senate jointly, only to be ex-
ercised by their concurrent act?
The argument relied upon to sustain
this proposition is, that the power of re-
moyal is an incident of the power Of ap-
pointment, and that whereas the joint &C
ton Of the President and the Senate can
alone give validity to appointment, the
power of removal is subject to the same
condition of concurrent action on the
part of the President and Of the Senate.
That this position is untenable will
readily be seen. The provision oil the
constitution whence arises the only au>
thority which the Senate exercises in
this regard is contained in the second
section Of article 2 Of the constitution,
ami is in these words: "And he (the
PresidenO shall nominate, and, by and
with the advice and consent Of the Sens
ate, shall appoint ambassadors, other
public ministers and cOnsuls, judges OF
the Supreme Court and all other otfi~
C ITS, etc.
The President "shall nominate, and
by and with the advice and conIet OF
the Senate, shall appoint" This is the
precise language, and beyond the au-
thority thus granted, the Senate has no
other in the appointment Of officers.
What is this authority? In common
variance it is called the act of confirma-
ton by the Senate; but it is not that as
constitutional fact. 1t is the power to
advise and consent after nomination
shall have been matchmaking more.
The power Of appointment is an indepen>
dent power, vested only in the Presi-
dent. The President nominated and the
Senate advising and consenting thereto
th President may or may not appoint,
as in his executive right and pleasure
he sees fit. The function Of the Senate
in this matter is simply one of assent or
dissent, not controlling even the question
of appointment, and WIFI it shall have
exercised this function, in the manner OF
assent or dissent, its constitutional power
il exhausted. In the authority thus
| given to the Senate of advice and con-
| sent" not only is there no authority
vested in that body, either in express
| term or by implication, over the subject
of the removal of an officer, but not even
over the subject of his appointment. The
President may nominate; the Senate may
exercise its prerogative of advice and con-
sent and still the President may not ap-
point. To assume to derive from the
terms of this auxiliary intermediate
mower thus vested in the Senate jurisdlc-
ton of the subject of removal of an officer,
is to give thereto an implied Specification
broader in the scope of its authority as to
removal than that which they contain in
express terms as to appointment, con~
clusion utterly at conflict with the true
canous of constitutional construction.
3. Is it or not purely presidential
prerogative?
Not being found either as Legislative
power or as power vested in the Presi-
dent and Senate jointly, it must be
found in the executive branch OF the
government; for it could be lodged nos
where else save in the Judicial branch,
and no one contends for that But Is II
not clear, from other provisions OF the
constitution, that it is vested exclusively
in the President
In the first place, that it is an e!ecut,
i've function is not to be denied, IN all
governments as well as in our own; and
Nv section one Of article two OF the
constitution it il provided that thu
executive power shall be vested In Pre-
} sident Of the United States of America.
1t is derivable also from the proVisiI I
7 of the constitution (section three OF ar
: ticle two), which provides that the Pres
r ident shall take care that the laws shall
? be faithfully executed That the powe
/, of removal is essential 10 the faithful
, execution Of the laws cannot be gainsaid
=. And by the established rule OF construc
l ton that the expressed grants of the con
stitutiop carry with them by implicatiO!