Year: 1868

accredited truth that tue speciul purpose VI the act
was to protect him. l do not affirm this and
"a not consider 1t necessary to say that should or
deem IT important to the case whether he favored
the pa of the law not Ii win be hardly pre-
tended however, by anybody that he was intended
TO be excluded entirely from lis operation; nor is
the act, Which provides that nothing herein con.
tanned shall be construed to extend the term OF anv
onlce the duration OF which is limited by law
The once in question was one OF those OF which the
upon by me does not extend it. The onIy sa eiisct Is
President at once and restore it to the the par. e
ties by whom the constitution intended that
i snonld q, M be s, exercised Assuming then. that


question is as TO the validity Of te law ITSELF And
here we are net, for the first tDne in history
nation by the assertion on the part of the President
of the flmftable end uncortrolable power under
the constitution In accordance, as he insists, with the
judicial opinion the professional sentiment and the
settled practice under the government OF removing
at any and all times, all executive officers whatever,
without responsibility to anybody, and as included
ing them independently and supplying their places
from time TO sine by appointments made by himself
heretofore extended even in theory, beyond
the mere power TO create vacancy by removal
during the recess OF the Senate DO not Know II.
there be anywhere the power TO suspend indefinite
ly which goes even beyond that is equally pew to
me- This truly regal pretension has been fttly
served for the first ~ esdent who has ever claimed
the imperial prerogative OF founding governments by
proclamation of tayiDg without Congress, of dis
posing OF the public property by millions at his own
will and Of exercising dispensing power over the
IL Is hut n logical sequence Of what he has
already permitted TO do with absolute mpunity
and almost without complaint II he could be
tolerated thus FAR, why, not consummate the
his victory over se legislative power by setting this
body aside rs IN advisory counsel and claiming him.
self 10 be the rightrul interprecr of the laws The
defence made here is ! defiance, challenge to the
Senate and the nation, that must he met and an
which, II ans, is to be the master. If the Clam
asserted isto be maintained by your decision all that
win remain FOR you VIII be only the formal abdica-
A hltn nf .fslfaFl
power, bpcause there viii be then absolutely
nothing left OF it worth preserving. But
rant these eXiaVagant pretensOns 10 prevent the
passage OF law ID restore The practice Of this
do nt propose to weary you with the pro.rac.ed
examination OF this question. | could not add 10
what have already said on the same subject in the
discussion In the House on the bill relating to re-
movals from olce in December, 1866 to which
would have ventured TO invite your attention. If the
same po.nt ha'. not been SO fully elaborated here.
You have already passed upon it in the enact
ment Of the present law by vote SO
decisive and overwhelming and there is so little
objection the part OF the counsel for the President
to the validity OF the law that may content myself
with.condensing the arguments Oh both sides into a
few general propositions which viii comprehend
their capital features. The case may be stated, /
think, analytcally and synOpticay thus:-The first
great fact to be observed tnat while the constitu-
ton enumerates s1ndry offices, and provides the
manner OF appointment OF these cases as well as IN
all others TO be created By law, it prescribes no
tenure except that of good behavior in the case OF
the Judge, and Is entirely silent on the subject of re-



ment. From this the lnferenUeS are first, that the
tenure OF good behavior, being substantially
equivalent TO that for life, the oilce must In all
other cases be determined at the will of some depart
ment OF the governments unless limited by law,
which Is, however but another name for the will OF
The awmaker himself and this is settled by author


ty. Second. that the power OF removal at VIII, be-
lnS an lillpeu one ohly Is 10 pe connned 10 those
cases where the tenure Is not ascertaned by law,
the right Of removal i'll any other ior.n than by the
process OF impeachment depending entirely on tue
hypothesis OF win OF Which the essential condition
always Is that 1t Is free to act without ana
without responsibility. Third. that the power Of re-


mova being implied necessity of state, to
the dependence OF the onlce in the government is
not to be extended by construction 80 a. to
take him out of the control of the legis.
lative, and make him dependent on the
will Of the Executive The next point is that the
President is by the terms OF the constitution, to
nominate and by and with the advice and consent OF
the Senate "appont" TO all offices, and that without
authorized by Congress. and this NAV be described
as the rule OF the constitution. The exceptions are,
first that IN the cases OF inferior Officers the Con-
or with the couIts or the heads OF departments: and
second that in cases Of vacancy happening during
the recess OF the Senate he may not appoint, but I'LL
them up by granting commissions, to expire at
the end OF the next session Of that body.
dent cannot already stated, in any case appoint
alone, without The express authority Of Congress,
and then only n the of inferior officers. Second
that the power TO supply even an accidental
vacancy was only to continue until the Senate was
in condition 10 be consulted and 20 advise and act
upon the case. Third as corollary from these two
propositions, that If The power to remove in cases
where the tenure Is indefinite be- as II Il solemnly
conceded b. tle supreme Court OF the United States,


a Bccnan, IL Peters an incident to the power 10
appoint Il belongs TO The President and senate, and
not TO the President acne, as II was held In that
10 be in the judge who made the
appointment. The argument upon which this
implied and merely inferental pOwer not OF filling
up buJ OF making vacancy durng the session.
which is now claimed TO extend To the making
vacancy OF any time has been defended is irst the
possible necessity for the exercise Of such power
during the recess OF the Senate, or, III other words,
the argument 40 taconren'e,ti. Second, that the
mfr eiians
passed by General Grant in the 1rst section Of the
second article o the constitution would have carried
tie power 10 appoint II unprovlded for, and is 10 be
hsdereo IN nm N an cases wherein u mas not
been expressly denied or lodged In other hands, !
while the association Of the senate. the same not
beng an executive body Il an exception TO the gene
raj principle seems To be taken strictly not to
extend thereto that is essential to the President as
ihe responsible head OF the government, charged by
his oath WITH ,he execution Of the same that he
should control his own subordnates Ivy making their
tenure OF olce 10 depend upon his viii Us to make
unit OF the administration.


Tie answer 10 the arst Of the propositions is that
here is no Necessity for the exercise Of the
power during the recess, because the case
:. s.pposed, may he provided for by Con
question. under ia express constitutional authority
- u axe all laws Which shall bc or prOpcr
foi Carrying nto execution all powers vested in The
gov at or In any department thcrcof.- A
pow er watch, 10y th. way, Is very strongly claimed
by one % she Pres,9ents counsel 10 be an implied
one. TO lne second t.e answer Is that whether an
executive 0oe or uot depends the structure OF the
goyei nme1t. or IN other words, on what the const
tuition makes II: that the clause in question Is but


distrih itiye one, thet II all executive power is
in the President, then, by parity OF reason
all leg slative power Is In Congress- with.
out r,8ere2ce TO the constitutions that the
Senate ~ not only asso,ia'cd with the President In
the gepeS, appointing power, but the power Itself
may be Withdrawn by CpngTess almost entirely from
both nndeY the provision In regard TO inferior Offices
which woud involve 9epugnahcy TO the general
grant relied on II the power he an executive one
that n no provision had been made FOR appoint
nen;s In the constitution. The power 10 supply the
omissou would have reSated to the awmaker
III der tue aut orty first quoed TO make all laws that
mgni be necessary proper for carrying into cXecu
tiOp all power vested In tine government or any
department. thereof which carries win II the power
10 create all Onces aud that. moreover, the power
OF removal in the only wherein II Is referred TO
IS MADE iudrici one. TO TIE third. the answer,
first that however natural may be FOR the Prcsi-
dent. afiGr an un.hecked carver OF usurpauon Tor
thtee long years d1ring which be used his subordi
mates generally rs TIE slavish ministers or his VIII
and dealt with the an tirs OF this nation as II he had