Year: 1868




President had on tn, 9th Of February last
right to remove the Secretary of War. Sec
ond that the case of the Secretary was not
embraced in the Tenure of Office act. Back
ed by the deliberate, and conscientious opin-
ions Of other men, whose rank as statesmen
and lawyers is not inferior to Mr.. Fessen-
denis, we do not hesitate to say the converse
of these two propositions is the sounder and
better sustained law.


The only warrant in the Constitution that
Mr.. Fessenden can find for the first PROPOSE
ton is in these words:


The Executive power shall be vested in Presi-
dent of the United States OF America.


He says that the first Congress by legisla-
tive implication put construction upon this
clause which has ever since been accepted.
This is the statute:


SEC ZION 2. And be it further enacted that there
shall be in the said department an interior officer
&C., who, whenever tie said principal officer shall
be rem red from office By the President of the United
States or in any other OF vacancy, shall during
such vacancy have the charge, &c.


Now this enactment is either,fir a control
ing legislative construction of the Constitu-,
ton, or it is the mere opinion of the members
OF the first Congress, who voted for it. Sup
pose it be the former, then the implication of
a removal by the President can only be of a





imply an illegal and arbitrary removal. The
intendment of lhe act is that the President
may remove, just as he might appoint, only
"with the sanction of the Senate" But if
legislation can either authoritatively interpret,
or supplement- the Constitution, it follows,
that the latest legislation supplants the
earlier. The latest act proprio uigore re-
peals all legislation inconsistent with itself,
as the last will abrogates an earlier one.
Whatever may be the scope of the tenure Of
office act, if it was subject upon which Con-
gress was competent to legislate, and this
Mr.. Fessenden assumes in deferring to the
legislative construction of the first Congress,
then it evidently became a legislative con-
struction, that all officers appointed by the
President and Senate could not be constitu-
tionally removed by the President alone.
Or take the other supposition that this act ofthe
first Congress could not vary or control or
even interpret the language of the COnstitu-
ton, and is to be respected only, as the opin-
ion OF the men who voted for il. Why should
the opinion of those statesmen be deferred to
in preference to the opinions of Webster, Ev-
ans and Holmes in 1885, or to the opinions
OF Spalding, Edmunds and Trumbull in 1867.


The views entertained in the first Congress
OF the constitutional limitations of the Exec
utive were held with reference to the Exec
utive power in the moderate and prudent
hands of Washington, and before any abuses
had grown out OF too liberal construction
They were speculative views. The scrUples
of Webster and other statesmen, who en-
deavored unsuccesslully to curb the arbitrary
assumptions of General jackson, were sug-
gested by practical exemplification of the
enormous corruption which the exercise OF a
mere inferential power to remove officers
constitutionally appointed, upon purely par
tisan grounds, had introduced into our poll
tics.


But the occasion upon which Mr.. Fessen-
den's opinion was pronounced was one tC
which an original and statesman like review
of all earlier doctrines whether held by legisIa-
ture, political writer's or even courts, was due
The Senate was claimed to be sitting as a
court: as such court it was not bound to take
precedents from even the Supreme Court,
much less from the loose and incisdental re-
marks dropped in a legislative debate over
another than the question now put in issue.
1t was court that was itself to make pre-
eedent. 1t was its junction to rescue the
constitution from the false interpretations, by
which it had been corrupted. The monstI Gus
claim of holding all the offices under the gov
ernment as mere spells to be divided among
the partisans of the President in the proper
ton of the zeal with which they had adher-
ed to his personal fortunes, first distinctly
dHHOu1Ccu III JdCkSOu > dullilllSlTdIlOl, UuI
never so indecently exercised as when john
son so far fulfilled his threat of kicking OUT
the officers of the law whom he had appoint
ed for voting for him, tor not partaking in
his treachery, urgently required an authori-
tatlve denial. The question of the Presidents
power was before the highest the abIest court
known to the Constitution for q decision
from which there could be no appeal. 1t
came before it, emphasized by the practice OF
partisan abuse, Illustrated by All exhaustive
debate participated in on both sides by the
best and best-equipped legal minds in the
country. 1t came before it not incidentally
but was the very gist of the matter involved
in the executive act for which the President
was on trial. 1t was certainly due to the his
toric dignity of this great occasion to enter
tain this question OF constitutional power as
II 1t had never been, as in fact it never has
been, settled before.


Examining it as an open question, to what
conclusion must any candid mind have ar
rived? If the President alone may remove
any officer he derives the power, either by a
direct grant, or as a part of his executive
power, or as incident to his right to appoint
Nobody has ever pretended that the power is
directly granted. The general executive power
would not in the absence of any provision Of
the Constitution allow the President to ap-
point any other officer than his own subordi-
mates in the execution of the laws, and those
he might also remove. IL would not embrace
any judicial or legislative officer But the
Constitution has made provision for every
executive officer under itself and for all that
may ever be created in these wo;ds.


ART. 2.-He [the PRESIDENT shall nominate, by
and with the advice and consent OF the Senate shall
appoint ambassadors and other public ministers and
cOnsus, judges OF the Supreme Court and other of
ficers of the United States whose appointments are
not herein otherwise provided Tor, and which shall
be established by law.


The general executive power is limited by
these provisions, which apply to all officers
of the United States including offices to be
established by law. Now there is no reSid-
uary executive power, under which the Pres
ident may appoint to office. The residuar,
power as to determining how our officer,
shall be appointed is conferred not upon the
President but upon Congress, as most other
residuary powers are, in these words:
But the Congress may by law vest the appoint
ment of such inferior officers they may think prop
er IN the PRESIDENT alone, in the courts of law or in
the heads OF Departments.


Ii the whole appointing power is embraced
in those express provisions of the Consttu-
ton, what subject matter is left for the gen.
eral executive power to operate upon. Tne
right to remove is claimed 10 be incidental
to the right TO appoint. But an incidental
power cannot be greater than the granted
power to which it is incident. To appoint
man to an existing office would seem to be
a common exercise of executive power, but
to remove man from an Office, which he
holds just as President holds his office, by
the law to which both are amenable is not a
| necessary but is much larger and more ex-
| traOrdinary exercise of executive power. Il
the lesser and principal power is limited in
the Constitution by the sanction of the Sen
| ate, how can the greater and incidental DOW
er exist independently of such sanction?
Not finding the authority TO remove in tbe
| executive power, is it an incident of the an
pointing? Mr.. Webster says: The remoy
| ing power is part of the appointing power
All argument on the subject assumes this But
the appointing power is not in the President
but IN the President and Senate, the Presi-
dent only having power to fill vacancies in
lhe recess OF the Senate, so that from TINS po-
sltion the assent of the Senate to legallze a
removal becomes imperative.
The Congress may confer upon the fresi-
dent alone the power to appoint secretary
OF War, he being evidently one OF the interl'
or officers referred to IN the above clause. Il
they should do so the power to remove might
be incident to the power of appointing. Blu
so long as the appointment must be sanction
ed by the Senate to make it valid, so Ions