National Republican. (Washington City (D.C.)) 1872-1888, 1886-02-10
rDMUNDs on THE EXECUTIVE.



what tho Vermont Constitutionalist
Win Report to the Senate on the
Duskin Case.
Senator Edmunds intends TO report In
open legislature on Thursday, on behalf of
the judiciary committee, touching the Az
torney Generals refusal TO submit the
papers in the Duskin case to the Senate.
In the report review Is made Of national
Legislative action touching the right Of re-
moval. There is no provision In the con-
stitution for the exercise Of this right, ex-
cept I'm the section relating TO impeachment.
The Supreme Court, in OK parte IIennen (13
Peters, 250), thus states "In an absence of
all constitutional provisions or statutory
regulations II would seem TO be a sound
and necessary rule to consider the power Of
removal as incident to thepower of appoint
ment.n And Mr.. Justice Harlan, In de-
livering the opinion Of the Supreme Court
I'm Blake VS.. the United States, quotes
this opinion with apparent concurrence;
If, then, the power OF removal Is a
necessary corollary or sequence Of the
power Of appointment, logically, whenever
an appointment is q concurrent act OF the
President and the Senate, the right to re-
can exercise II alone without the acqui-
escenco Of the other In 1859, in the first
Congress, an effort was made to determine
this right. In the bill TO establish the State
Department II was sought to insert clause
giving TO the President the right TO remove
the Secretary at pleasure. This clause was
stricken out in the lower house. The ven
Grafton for the character OF Washington was
SO profound that there was general indis-
position to question or restrict, even by i'm
plicatlon, any executive power which he
might seek TO exercise. The bill with the
clause Of removal stricken out, passed the
lower house by small majority. The ex-
pressed opinions Of the Senate cannot now
be ascertained, as they acted in secret
session in those days II is g sig1iidl,;
cant fact, however, that the bill
only passed the Senate by the casting vote
Of the Vice President. In number n of
the "Federalist,m those able papers ON the
construction Of the constitution, the
true Interpretation was maintained TO be
that the right Of removal was concurrent,
belonging to the Senate as well as to the
President. Nothing further appears in the
| proceedings Of Congress directly pertinent
| TO this question until 1926. In the early
| session Of that year a committee composed
| Of Benton, Macon, Van Buren, Dlckerson,
| johnson, White, Holmes, Hayne, and
Findleyi reported n bill restricting the
right Of the President to remove, and di-
recting that reasons for removals should be
| given to the Senate.
The report of Mr.. Benton, as chairman Of
| the committee, will be read and commented
on by Mr. Edmunds. There was no debate on
| this bill, and it was tabled on the last day
| of the session.
| In 1885 a committee was elected, consist
ing of Calhoun, Southard, Bib, Webster,
Benton, and King, who. were directed to
report bill on the subject Of executive
patronage. This committee prepared and
reported bill repeating the first two sec
tions Of the civil tenure act OF May 10, 1920,
and providing that the President must
state his reasons for removals to the Senate.
An amendment to this bill was offered by
Clay and adopted, providing that If the
reasons were not satisfactory to a majority
Of the Senate the former incumbent should
be reinstated.
A very exhaustive and interesting debate
then took place on the bill, in which nearly
every member of the Senate took part.
Clay, Webster, Calhoun, White, Benton,
and others agreed without dissent that the
power of removal was not vested In the
President, but that II was power belong
ing to Congress and subject to legislative
control. Calhoun, in that debate, said:
Ifthe power TO dismiss is possessed by the
Executive, he must hold II In ono of two
modcs-either by an express grant otthe power
in the constitution, or as a power necessary
and proper to execute some power ex
pressly granted by that instrument, The first
question then is has the President the power
In question by any express grant In the con
stitutlon? ask senators TO open the consttu-
ton, 10 examine it,.lnd to find. ifthey can, any
authority to dismiss any public officer None
such can be found. Wen, then, rs there is none
such, ir It exists at all, II must be as power
Pe%eT exists in that chapacoT sGa L
longs to Congress and not to the Executive
] venture not the assertion hastily,
Sacred isiFcnt M ntH says consFcs:
shall have power to make all laws which Shall
DC necessary and proper for carrying into eifec
the foregoing powers (those granted to Con
gtessl and all other powers vested by this con.
stltulion in the government OF the United
S!stes, or IN any department or officer thereof"
marx the fullness of the expression. Congress;
shall have power to make all laws, not only q
carry out the powers vested IN It. but likewise
those delegated to the government, or any de-
Congress to regulate removals from office.
Both Clay and Webster concurred In and
advocated the views held by Calhoun.
Even Benton, who was opposed to Calhoun
In the debate on other grounds, did moi
dissent from his views as to the power OF
the Executive touching removals, and voted
Tor the bill. The Senate passed the bill by
vote OF 81 to 10. II is curious and sig
niilcant foct that Calhoun, recognized eS.
pounder OF Democratic doctrines, and other
Democrats like Benton, Hayne, Van Buren,
and White should have supported meas.
ure calling on the President for his reasons
for making removal.
In the case of the United States VS.. Avery
(Deady'sreports, ,204), Judge Deadyreallirms
the ground taken by theleading senators In
this debate, and cites with warn. commenda-
tionthe posltiyedenial o. the,right of the Pres
ident to remove from Office without con
sent of the Senate, made by Calhoun.
After this review Mr.. Edmunds will then
ask how 1t is-in face Of these facts and the
further fact that the statute now provides
that removal is to be made by and with
the consent of the Senate-that the Prea-
ldent has made removal and seeks to hide
| from thn Sanota tha raosnne o., ,,l,,.L a..