Year: 1868




be removed from ONCE by the President OF
the United States, or in any other case OF q
vacancy, have charge and custody Of all records
books and papers appertaining to the department
Mr.. Benson declared he would move to strike out
the words In the first clause to be removable by the
President which appeared somewhat IKE grant,
Now, :. .e node he took would eyade that point aud
establish legislative construction or s cOnsttu:
succeed in reconciiing both houses to the decision
debate 1Ss s%snS$sni .ss ss V;
to strike out the he; words ITO be removable
by the President OF the United States" which was
Ssnt to the Senate The debates Of that body being
In secret session we have NO record OF the discussion
which arose on the motion OF Mr. Benson establish
ing the implied power OF removal; but after very
elaborate consideration on several successive days.
the words implying this power in the Presi:
Hss' the elder der ADAMS % the Vice Vic. President. So.
this claimed legislative settlement was only
established by the vote OF the second Executive
ofcer OF the government. Aasl most OF our woes in
this government have come from Vice Presidents.
When the bill establishing the War Department came
dentn were struck out on the motion Of one Of the
opponents OF the recognition OF this power by vote
ike TO tha Ina q tne %
State being inserted. When, six years afterwards,
the Department OF the Navy was established no such
was inserted, and as the measure passed by
strict party vote ~ yeas TO- Ia nays s., may %
load it with this constitutional question when the
executive power was about passing into other hands;
for one cannot read the debates upon this question
without being impressed with the belief that reyer-
ence for the character OF washington largely deter
mined the argument IN the first Congress- Neitner
party did nor could have looked forward to such an
executive administration as we have this day.
1t has generally been conceded In subse-
quent discussion that here was legislative deter
taking the whole action OF Congress together, 1t Is
very far from being determined. ! should hardly
have dared in view OF the eminent names OF Holmes,
Clay, Webster and Calhoun that have hitherto made
the admission, to have ventured the assertion were
it not that In every case they as does the President
tee OF the Whole sustaining the words "tO be reno
vable by the President" and in no instance take
any notice Of the subsequent proceedings in the House
by which those worde were taken out Of the bill.
This may have happened because "Eli0t's Debates"
which Is the authority most frequently cited IN these
discussions, stops with the vote In committee ana
takes no notice OF the further discussion. But what
may be the effect Of this Legislative construction
government shows that the President made no re-
movas except by nominations to the Senate when IN
session and superseding officers by new commits.
sion to the confirmed nominee. Mr.. Adams, IN that
remarkable letter to Mr. Pickering in which he desires
his resignation, requests him to send 1t early IN
ate, then about to sit, and he in fact re-
moves Mr.. Pickering by nomination. Certainly
no such unlimited power ,a.. has G ever s been been
been set up for the President by his most remarka-
BILE, aye, criminal answer 1t will not have escaped



legislative construction to how the removal II in
the Presidents power should be made which Is now
the question In dispute. That has been determined
by the universal practice Of the government with
exceptions, II any, so rare as not to be worthy of con-
sideration so that we now claim the law to be what
the practice has ever been. II however we cOncede
the power Of removal to be in the President i'm
Piled power, yet we believe 1t cannot be successfully
contended upon any authorities or constant practice
OF the government that the States under the
clause in the constitution which "vests In Con-
gress the power to make all laws which SHAH
execution ali powers vested by this consti-
tuition In the government OF the United States or IN
any department or officer thereof" the power or
regulation OF the tenure OF Office and the manner OF
removal has always been exercised by Congress un-
questioned till now. On the 18th of May, 1920, (vol.


Statutes at Large p 6S2 Congress provided for the
term OF office OF certain officers therein named to be
four years, but made them removable at pleasure.
B ae on s e same acs
stoned In providing date when each commission
should expire, thus asserting legislative
by passing acts which appear to concede the
power to the President to remove at pleasure; sOme
inat power In their acts 6y the most
OF removal, and sometimes that Of appointment-the
acts establishing the territorial officers being the
nc claim OF exclusive right over removals appoint
ments seems TO have been made either by the Execu-
account until now. In 1918 Mr.. Writ, the Attorney
General, giving the earliest 0fficial opinion
that only where Congress had not undertaken ken
to restrict the tenure OF Ofllcc by the act
creating 1t would commission issue TO run during
the pleasure Of the President; but II the tenure
fixed by law, then commission must conform to the
law. No constitutional scruples as to the power Of
Congress TO limit the tenure OF Office seem to have
disturbed the mind OF that great lawyer. But this
was before any attempt had been made by any
President TO arrogate TO himself the official patron
age for the purpose OF party or personal aggrandze
ment, which gives the only value to this opinion as
an authority. Since the Attorney Generals Office
has become political one, ! shall not trouble the





Its occupants. In 1926 committee OF the
Senate, consisting Of Mr.. Benton OF Missouri,
Buren, OF New York, Mr.. Dckerson,s Of New Jersey,
Mr. Johnson, OF Kentucky, Mr.. White, OF Tennessee,
Mr. Holmes, OF Maine, Mr.. Hayne, OF South Carolina,
and Mr.. Findlay Of Pennsylvania, was appointed TO
take into consideration the question OF restraining
the power of the President over removal from once,
who made report through their chairman, Mr.. Ben
tonsetting forth the extent OF the evils arising from
the power Of appointment 70 and removal from office
by the President declaring that the constitution had
been changed In this regard, and that construction
and legislation have accomplished this change, ,n-and
submitted two amendments to the constitution one
providing direct election of the President by the peo-
pie, and another "that no Senator or Representative
should be appointed to any place until the expira-
ticn OF the Presidential terms IN which such person
shall have served as Senator or
remedies for some OF the evils complained Of; but
the committee say that mot being able to reform the
constitution In the election Of President they must
go TO work upon his powers, and trim down these
by statutory enactmens whenever 1t can be done by
law and with just regard TO the proper efficiency Of
government, and for this purpose reported six bills
regulate the publication OF the laws and public
advertisements another to secure in Office faithful
collectors and dsbursers Of the revenues and
to dispace defaulters-the first section OF
which vacated the commissions OF ..all Of
fccrs after given date charged with the collection
and disbursement OF the public moneys who had
failed to account for such moneys or before the
30th day of september preceding;r and the second
section enacted that:-"At the same time nomina-
ton Is made to I'LL vacancy 0ccasoned by the exer
else OF the Presidents power to remove from office,
the fact Of the removal shall be stated to the Senate
with report of the reasons for which such officers
may have been removed; also a bill to regulate the
appointment OF postmasters, and bill to
prevent military and naval officers from being
dismissed the service at the pleasure OF the
President, by inserting clause I'm the commission of
such officers that at is to continue In force during
good behavior" and that officer snail ever here
after be dismissed the service except in pursuance Of
the sentence OF court martial or upon address to
the President from the two houses Of Congress- Is
II not remarkable that exactly coreatve measures to
these have been passed by the Thirtyninth Congress
and the subject OF controversy ut this bar
IL does to have occurred to this able COM
mttee that Congress had not the power to curb