Year: 1868

and legislative power you break down the federal
equality OF States the partition and dstroution OF the
executive power OF this country. would IKE 70 Know
70 adopt this principle OF the Constitution that the
eeutye power, attributed TO federal numbers made up
of Senators and Representatives added together from
each State that that executive power which the people
supposed was involved in choice Of President is to be
equality Of States would like know on what plan OF
politics t Is to be carried out How can yog make t4e
cOthe themselves into popular election and then ma
that the executive power i already administered on the
how il IS that EeW.Sork and PennsyIysnia and Ohio
and Indiana. and Illinois, and Missouri, and the
force q popular win into the executive chair
Sn that II and s aSSr Snd e &
tan states unpopuated are to control the whole posses


Sn az and nS n St Of the % n Iy %
eecting President with the people between him, and


m a 81 M between Sl n% wSS TO


numbers or popular opinion There is the grave dsSeo


lutte distraction Of the Of the people Presiden


a authority keeping up the form of Of the election 6 w While S
body assumes tc itself this arrangement of Of
states and popular numbers how long New England can
maintain in its share Of executive power administered
Pennsylvania TO Ohio to Indiana to Illinois and to Mis-
souri, together. must think, Mr.. Chief,Jnstice and
these principles thus debated reach, and how the
trainers OF the Constitution when they came to debate
actual aud practical ALLEGATION OF that authority under
stood the question In its bearing and its future neces
sites True, indeed, that Mr.. Sherman always
stern and persistent advocate for the strength OF the
Senate as against the power OF the Executive 1t was on
that point that the Senate represented the equality Of
States and lie and Mr. Ellsworth holding their places in
the Convention as the repre- OF


the one side and NewYork on the other, and Judge
state Of New on tie one side and the great State Of
Pennsyyan ON the other were the advocates OF that
distribution of power In the Senate and Is well known





Importance took place between the elder Mr. Adams and
Mr. sherman In the early days OF the working Of the
Governments whether the fears OF Mr. Adams that
the Executive should prove too weak or the purpose of
MT Sherman that the Senate would be strong enough
not most IN accord with the principles Of
the Government. But all that was based upon
under the terms OF the Constitution In appointments
the only detraetion from the supremacy and inde
pendenoe Of the executive authority Now this question
comes up In this form. The power OF removal Is and
always has been claimed aud exercised by the executive
of this government separately and Independently Of the
Senate, until the act Of March Id, 1861 The actual
power Of removal by the Senate has been claimed
Some construction the affirmative exercise OF the
power OF appointment by the executive has at different


times been suggested aud mas received less sup
port tending " the conclusion that the then Senate might
have some hold upon the question Of removal Even this
act Of March 2d, 1867, which To consider more
definitely hereafter does not In terms to give the
Senate the participation in the distinct separate
act OF removal from office. Indeed tae manner
In which the Congress has dealt with the subject quite
peculiar. Unable, apparently 10 find adequate support
Tor provision that the Senate would claim share In the
distinct act Of removal or OF Yaeating an ONCE the
scheme OF law is 10 change the tenure OF Office that
remoyability as separate aud independent Govern.
mental act by womsOeyer TO be exercised, Is oberated
from the powers OF this Government Look at that now
that you do absolutely strike out OF the capacity and
sources OF tins Government the power OF removing an
officer separate Executive act You have detenie
by law that tere sha De no vacation once possioe
except with the OF the Senate and far
have You carried out that principle that you do not make
possible 10 IL by the OF the Senate
and the President, but you haze deliberately determined
that the Office shall remain full. estate
and possession OF the Incumbent, from which he
be removed under no stress Of the public neces-
sty. unless by the fact occurring Of complete appoint
nent for the permanent Tenure OF successor concurred
In by the Senate, and made operative by the new ap
pOniee, going there aud qualifying himself IN the Office
Now this at the first sight very extraordinary
provision for all the eXgences OF Government like ours,
Wth its 5000 officers whose list Is paraded here before
you, with their s2 OO0oO Of emounents TO show the
magnitude Of the great prize contended Tor between the
President aud the senate IL s very singular provision,
~ 60 on,tcrs tnerc should be- governmental poss
lty Of stopping man in or removing him
OF permanent successor approved by the senate and
eonsnrrsd ,a IA Dy the apPointee hInsei going
speak the language Of .ho while the Senate In


session there is not any power OF temporary suspension
arrest of fraud. OF violence, of danger OF menace
10 the Government by an officer. When the Senate is in
tive and better of Ia that respect when the SEN
In than when it In session. for the Presi
dent by definite aud appropriate action, arrest the
misconduct OF officer by bis suspension But. as
said before repeat IT. under this act the ineumbents OF
All those Offices nave permanent estate in them until


with your consent and his own, is inducted
into the office. Now. do not propose to discuss
as quite unnecessary to any decision OF any
matter TO be brought In your judgment |
any great length the question OF the
uncOnstitutionay OF that law. very deliberate
preston Of opinion after deliberate and thorough
debate conducted in this body IN which the of
each side were ably maintained by your most dstin
guished members, and after very thorough consdcra
non In the House of Representatives. where able and
eminent lawyers some Of whom appear among the man
ayers gave the country the benefit OF their knowledge
ard their acuteDess has placed this matter the legsa
tive Judgment Of consttutonaliiy. But think all viii
that legislative judgment OF the constitutionay
does not conclude court: and that, while legislative
Judgments have differed and while the practice OF the
Government for eighty years has been on one side aud
much to say that. after the expression OF the !
lcgslativ g and after the opinion OF the Legislature
implied Its action there yet would remain for debate
among juriss aud lawyers, among statesmen, among |
province OF the supreme Court OF the United States. The
question whether the or the other construction OF
the safe and for the conduct OF
the Government. Let me ask your attention for mo.
as to whether this was q reversal
aud revolution OF the practice aud theory Of the Govern


Mr. Eyarts here quoted from the debate In the Senate
the Civil Tenure Act the remarks of Senator Williams OF
took TO reverse what had heretofore been the
admitted practice OF the Government, and that
Of his Cabinet officers Mr.. Evarts then continued: This
Senator touches the very marrow OF the mstte-that
cai service Of the country reyerses the practice OF tue
Government should at least the Executive all
~ rt the bill as am EXCEPTION Il was Of the
tiee Of the Government to all the rest OF the officers,



thew were because as the Senator said wisely the
try will hold the Executive responsible for what his Cab
met does, and the country will so hold him
nntn the people find that you have robbed
the Executive OF all responsibility by robbing 1t OF
what the pth OF responsibility and dist reon Mr.
Evarts read further extracts from the remarks OF Mr.
Williams that occasion. and from the remarks Of
Howard who admitted the practice of the Gov
brnment regard TO appointments and removals, aud
the Senate that that claim OF power the part
Executive had been informally decided by some OF
the best minds Of the country. Mr. Evarts continued
And now as TO the weight OF mere legislative construc
pared with other OF authoritative determination.
Let ask your attention 10 very pertinent obser-
yatiOns OF the honorobe Senator from Oregon Mr..
Williams Those who advocate the executive power OF
removal rely altogether the sative construction Of