National Republican. (Washington City (D.C.)) 1872-1888, 1886-02-13

cannot say that II shall be filed by the ap-
pointment Of the particular individual who
has lost similar office. Whether or not to
make that portion of the reparatlon Is the
exclusive prerogative OF the Executive, and
while deciding the question, he is entitled,
as has been said, to be absolutely free from
any apparent or actual coercion'by the legis-
latiye branch of the government
The counsel for Fitz-John Porter argue
that such a bill is merely an enabling act,
to remove, as TO tine particular person named
therein, the prohibition Of the act Of 1868,
which forbids the restoration, except with
the consent Of the state, of dismissed Of
ficer OF the army. But nothing seems
clearer than that an act Of legislation which
names one individual and releases him
from the operation Of prohibitory statue,
which is to continue to apply to all other
persons, is highly reprehensible; and when
the act further seeks to make the
removal Of the prohibition effectual,
by securing the appointment Of the named
person to federal office, the whole trans
action Is vicious and Unconstitutional action
by the legislature.
The argument Of counsel that an execu-
tive practice forbidden by a statute not
declaratory in its terms must be conclu-
sively held to have been previously lawful
because otherwise the statute is supernuous,
| Is as absurd as their claim that the appoint
| ing power of the President is not uncon-
additionally invaded by an act Of Congress,
| II this freedom is only taken away as to the
one office created by the act; that is, that a
small usurpation is not unconstitutional
Mr.. Porter's counsel claim that the ad-
mission that Congress may restrict and
limit the appointing power to particular
classes OF individuals comedies the whole
case. They ask, Is not the limitation to q
| particular class equally designation of q
| particular indivl1ualg The sound reply
| Is in the negative. IL is right here that
| practical wisdom will draw the line. Con-
gress, under It's power ITO make rules for
the government and regulation OF the land
and naval forces" may provide that mill
tary and naval appointments shall be made
| only from certain classes Of persons deemed
| by Congress TO be specially qualified to fur
nish the officers needed. Even this right
President Monroe disputed, as to offices
newly created, and asserted "as q general
| principle, that Congress have no right UNI
der the constitution to impose any restraint
by law on the power granted to the Presl-
dent, so as to prevent his making free Sc
| lection of proper persons for these offices
from the whole body OF his fellow cltizens.n
The committee on military affairs of the
Senate only took issue with President Mon
roe on the right Of Congress to des-
ignate class Of persons from whom offices
must be filed. A bill to actually name the
individuals would have been secuted by
every one. Concerning civil Us well as
military offices plausible, and perhaps,
sound reasons may be given why Congress
after creating them should, under q claimed
authority to guide and regulate the exercise
Of the power Of appointment for the public
good, be allowed to limit the selection Of
persons to fiji the offices, to described
classes of individuals; although this right is
vigorously denied by the opponents OF the
various bills for the reform of the civil
service. But all should agree that where
Congress or any other body of men or any
individual, except the President or the head
Of department, has undertaken to name
one person as the only possible appointee
to particular Office, constitutional regula-
tion Of the appointing power has been eX-
ceeded and unconstitutional usurpation has
begun.
But the advocates Of the power of APP
pointment to federal office by act of Con
gress say the precedents justify it, and
whatever theoretical doubt exists the COM
mon error makes the law.
The earliest statute named by the counsel
is that Of March 1, 1873, to make Frank NJ.
Ashton n second assistant engineer ia the
navy, and they also cite twenty-five other
acts between 1873 and 1889, naming indi-
uduals to be restored to the army or navy.
They seem to have overlooked the earliest
case In the army, in which an act OF Con
|
that of Maj. James Belger, on March B.
1871. The first special statute that can be
discovered in the naval records is that Of
Capt. Charles Stewart, on March 2, 1859
the next, that Of Charles Hunter, on Junt
81, 1866. The list of all the special acts in
, cludes some officers Of merit, but II is SAT-
to say Of them, as a whole, that they hay,
been grossly injurious to the military ser
vice. Most have reappointed WORTHLESS
, officers, and some of the most notorious
drunkards In the navy have been restored
one of them afterward sinking, Will,
( drunk, q naval vessel and destroying clever
, lives.
All earlier legislation of the republic un
der our present constitution, creating Off
ces, avoided specifying the persons to be
appointed. The Congress Of the old con
federacy was the only executive branch OF
the national government then existing, anC
had almost no legislative power. 1t had
the power of appointing all officers of thu
, land forces In the service Of the United
States excepting regimental officers, ap
pointing all the officers of the naval forces
and commissioning all officers whatever IL
) the services Of the United States.n Oul
D new national constitution, however, estab
; lished an executive branch, and gave to tn,
President this power: ale shall nominate
: and, by and with the advice and consent o
the Senate, shall appoint ambassadors, othe
puDllc ministers ana COnsulsi Judges Oh tn
5 supreme court, and all other officers Of
United States whose appointments are no
: herein otherwise provided for, and which
] shall be established by law, but the Con
Q gress may by law vest the appointment o
} such inferior officers as they think prope
t In the President alone, In the courts of law
g or in the heads of departments"
From the adoption of this constitution II
1897, vesting the appointing powerin the EX
| nhntlt oil n liGpnVar
was made Of the existence in the Congress
OF the legislative power OF appointment
, which is now set up. The occasion Ia
now arisen for returning to the correct con
struction Of the constitution, and establish
0 ing the true line Of separation between tn
legislative and executive branches of til
} government. Gradual Entertainments o
one branch upon the other will not be In
frequent in the working Of our system
The opportunities which occur for retreat
ing from such encroachnients should nj
ways, be unhesltatingly and courageous
seized.
, By o frequent recurrence to the funda
, mental principles OF the constitution vii
! its Yigor be best preserved. IL is instructiv
to notice the enunciatlon of this prlncipl
in the earlier state constitutions.
A frequent recurrence to fundamental prr
ciples is absolutely necessary to preserve tn
blessings of libcrty,-NORh Our. Cons, l77G an,
. 1876; ohio Cons, 1902.
A frequent recurrence to fundamental prir
} ciples and q firm adherence TO justice, &c, ar
A absolutely necessary TO preserve the blessing
4 Of liberty and keepa government free,-Rm
= Cons, l776; Vermont Cons, l777, 1856, 1898.
No free government or the blessings OF lii
9 erty can be preserved TO any people but by
4 firm adherence to Justice, &C., and by n fire.
D quent recurrence TO fundamental principles.
: Va Cons, 1916. 1850, 1870
. A frequent recurrence to the fundamental
principles of the constitution and n constau
, adherence to justice, &c, arc indispensable
I necessary to preserve the blessings of libcrt
r and good government; the people ought there
fore TO have q particular regard 20 all thoS
/. principles in the choice of their officers an
, Representatives and they have right TO r.
y miro of lhnlr lnNpiNnrs md mnnlsLrn an nN