Year: 1868

of the Executive TO follow new rule and


ing that TO adhere TO the ancient ways that sort OF bg
crime and misdeneanor which the Constitution eontem'
platesf Is u just ground for impeachment Does the
CRIME aud mIsdemeano- necessarily make it such high
crime and msdemeanor Is contemplated by the Con
military order TO the Secretary of War is that offence
worthy Of impeachment II he should remove an officer
22d. would that be an impeac4be mis.iemeanort Nov,
name OF Mr.. Ewing 10 the Senate on the 2lst In the
usual way, in place OF Mr. stanton removed , and
Office, but had left him TO await the action q The
Senate upon the nomination. certainly IN mere matter OF
of-Cffce act Now what did he doi lie made an order
for the removal Mr. Stanton on the 2ls Dat do not
10 the senate on the 22d Is possible that thereby he
had committed act that amounted to higs crime ana
vet that Is Just what the President has done lie hss
closely followed the mere matter OF form prescrDed
Manager who opened this prosecution was NECESSARY;
For II he had made an order Of removal ana AZ once naa
sent 10 the Senate for making snch removal
and had stated to them that his purpose was 10 MAKE
this removal in order 10 test the constt1onait OF
orable Manager had the Senate received such
message the representatives OF the people might
have deemed necessary inpeach the President for
such act 20 insure the safety OF the country, even
ey ese Se deneq eaS e he esS ei M i Is the
President for making an order OF removal on ono day
nomination OF a successor the next dayf Was ever
matter more purely formal than thsi And YET this Is
the only is this, in the words OF NJ BURKE not n
merely echtcot language bat IN realty IN substance





meaning OF the Constitution. The first clause OF Tho


first section declares that every person then or thereafter
advice and consent OF the Senate and due
shall hold his office until successor shall have been ia
like manner appointed ana qualified. -,


II the contained other provisions qualifying this
general clause, then It would be cIeal-


l. That Il would apply to all cyil officers who held by
appointment made by The President with the advice Of
the senate, including judicial officers well az Exec
and subjects all OF them liability TO be
moved From the exercise OF the Of suspension by
any officer holding, by the second section, Judges OF
the United States expressly excepted We mud no such
power removal declared in the first section, judicial
officers well as executive officers are made TO hold by
President and the Senate, and cease to hold when the
President and Senate appoint successor


O. IL applies equally TO officers whose tenure OF Office
fixed prior TO the act, was TO hold during the pleasure
of the President TO those who to hold for hAed
term OF years. during good behavior.


s. 1t purports to take from the President the power TO
remove any officer any tme for any canse by the ex
ercise Of his own power alone, but leaves him power
with the concurrence OF the senate Ia TILE
process of removal the separate action OF the President
and the senate is required The nitiatory
from the President, and from him alone IL Is upon MS
action as taken that the proceeds and they give
Withhold their consent to what he has done The
which the President may exercise his part OF the
process merely formal II may be simply by the nomina
tion OF successor the incumbent the officer intended
to be removed hen upon the confirmation by the Senate
OF such nomination. and the issuance OF commission o
him the renewal becomes complete. Or the President
may exercise his part OF the process by issuing an order
Of removal followed by nomination Neither the order
for removal or the nomination works change in itself
Both necessarily conditional upon the SUBSEQUENT ae
ton the So, too, the order Of removal, tho
nomination. and the confirmation OF the Senate are not
final further act remains TO be done before the APP
pOintment OF the successor Is complete and that an
executive excusiyelythe signing OF the commission
by the President Up to this point tne rresaent hss
HIM 10 appoint his nominee, the President not bound
by their advice but may defeat all the prer action BY
allowing the incumbent to remain in Office.


Thus far have considered the rst clause OF tine ht
section of the act without reference TO the context
Standing alone seems TO have universal application
all civil officers and 10 secure all OF them VINO nod W
against removal otherwise than by the concurrent
action and make all OF them liable TO removal by that
concurrent action.


Are there exceptions to the universally Of the
| of Office SO declared We say there are:


Of the United states come within this exception for
their tenure Of office is xed by the Constitution ,,ss
by the President and Senate conformity They alone
hold fe during good behavior subject 10 only one
mode Of removal, and that is by impeachment.


Exceptions made expressly by the provisions of the
ali civil officers OF tine United States First OF all, this
purpose is indicated by the hHe OF the act IL Is entitled
not OF al civil offices Next md that Immediately
succeeding the first clause which, has been shown, is
neran m e1s sodnr ~ any civil once tie purpose Of restrain


ing or limiting generality expressed in these words
us at once upon inquiry 1t advises that all persons
and all officers are not to be embraced In the com
and officers are intended to be excepted ana 10
be otherwise provided for that some who do hold by
the concurrent action OF the President ana inc senate are
not be secured against removal by any other process
than the same concurrent action.


What class of officers embraced by the general pr'v
sions OF the first clause are made 70 come within tne
lows answers the question II Is IN these words: F'O
uided That the Secretaries Of State OF the treasury o


General and the Attorney General shah hold their Offices
respectively for and during the term OF the President by
whom they may have been appointed ana tof one moh;h
thereafter subject to the removal by and with the advice
and const MT of the Senate"


only civil officers Of the United states which are es-
pecialy designated We see clear purpose 20 MAKE s9e
al 10
by the concurrent appointment of the President ani tho
Senate they would have been embraced Dy te nist gen
side is mai ,uotwIthstanding the declared puI.
pose 10 make EXCEPTIONS the officers not made
lions; that Notwithstanding there Is provso az TO them


enSRe e wc Of oSe we &t s look the
find their tenure Of office IL settled RUE OF consluo
count and that a proviso have effect as much as
any other clause Of the statute Upon looking INTO this
office FOR these seven officers And how is that tenure
fxedl We nd it thus declared some Of them are given


tenure of Office others not But as To the favored


class as TO that class intended TO be made safe and most
secure even their tenure Is not 50 ample aud perma-
prior to the act held by the same tenure as themselves
BY the general Se tdm m e remoSa
including well those who hold by no other
bs tenure during the pleasure Of the Presden was
the tenure by which all these Cabinet officers ned prior
proyso and safer for certain Cabinet
officers for all II gave to some of them the right 20



OF the term OF the succeeding President but did not
give that right TO all OF them. IL was given only TO
favored class, and the tenure SO given To the
favored class favorable that given to other
civil officers who had heretofore been held by precisely
the same uncertain tenure, that 10 say the pleasure OF
the President" for these other civil officers not


limited TO the Of President and one month after
ward but their tenure just as secure from 'the
pleasure OF the President after the expiration OF
Presidential term, and after the expiration OF the nrst
month OF the eedng rresoenuai term ASH was De-
fore.


We see, then that in fixing tenure OF Office for
Habf a
and that the most favored not favorable that
given other civil officers Heretofore holding by the
same tenure with Themselves This favored class