for a supply of the temporary service by ad interim appointments, in cases of vacancy, sickness, absence, or other disability, as before the passage of the tenure-of-office act, and Congress cannot be understood to have intended to leave such cases unprovided for.

expressed, that if a technical violation of law has been established the Senate has no discretion, but must convict. I think the Senate may judge whether in the case a high crime or misdemeanor has been established, and whether in the name of the people the proseWhoever proposes to convict the President cution ought to be made and sustained. Van as of a crime for the ad interim appointment Buren was not impeached for the removal of of General Thomas should stop to consider the Pensacola navy agent and the designation the many cases in which his illustrious prede- of Purser Walker to take charge of the office. cessors exercised the same power during the President Jackson was not impeached for the session of the Senate, as well as during the ad interim appointment of Boyle as Secretary recess, under the Constitution, and without the of the Navy under a claim of constitutional aupretense of legislative authority. In this opin-thority, without any statute allowing it. Presion but a few of the many cases proven can be cited. It will be borne in mind that the acts of 1792 and 1795, authorizing temporary ap pointments, did not include the Navy, Interior, and Post Office Departments, and that until 1863 no law extended the authority over them, and therefore appointments made by the President in those Departments to supply the temporary service were made under the constitutional duty and authority to see that the laws be executed and not under any statute.

On the 9th July, 1836, President Jackson appointed John Boyle, the chief clerk of the Navy Department, to discharge the duties of Secretary during the absence of the Secretary. The Senate had then adjourned five days.

On the 6th October, 1838, President Van Buren made the same appointment.

On the 19th March, 1841, President Harrison appointed John D. Simmes to be acting Secretary of the Navy during the absence of the Secretary.

On the 13th May, 1851, President Fillmore appointed C. M. Conrad, the Secretary of War, to be "acting Secretary of the Navy ad interim" during the absence of the Secretary; and on the 3d August, 1851, the same President appointed W. A. Graham, the Secretary of the Navy, to be acting Secretary of the Interior.

And on 22d September, 1862, President Lincoln appointed John B. L. Skinner, then the acting First Assistant Postmaster General, to be acting Postmaster General ad interim, the Postmaster General being absent.

On the 29th of June, 1860, four days after the adjournment of the Senate, the postmaster of New Orleans was removed and the office placed in the hands of a special agent by President Buchanan, Joseph Holt being Postmaster General.

On the 10th day of May, 1860, the Senate then being in session, President Buchanan removed Isaac V. Fowler, the postmaster at New York, and placed the office in the hands of a special messenger.

On the 21st of January, 1861, the Senate being in session, he took the Milwaukee post office out of the hands of the postmaster, and placed it in the charge of a special agent. Hon. Joseph Holt was then Postmaster General.

On the 20th of June, 1864, the Senate being in session, President Lincoln removed Isaac Henderson from the office of navy agent at New York, and instructed a paymaster of the Navy to take charge of the office.

On the 26th of December, 1864, the Senate being in session, President Lincoln removed James S. Chambers from the office of navy agent at Philadelphia, and placed Paymaster Watson in charge. These two offices were highly important, both in view of the duties to be discharged and the emoluments received by the incumbents.

On the 19th of December, 1840, Thomas Eastin, the navy agent at Pensacola, was, by order of President Van Buren, "dismissed from the service of the United States," and Purser Dudley Walker appointed to take charge of the office. The Senate was then in session.

These are but a few of the hundreds of cases that might be cited to show that the practice of making ad interim appointments has been uniform, whether authorized by statute or not. I cannot concur in the opinion that has been

OPINION

OF

HON. TIMOTHY O. HOWE

One of the questions involved in the consideration of this cause is, whether the President is or is not intrusted by the Constitution with the power to remove the heads of the Executive Departments. Those who now assert he has such power, instead of attempting to prove it from the text of the Constitution, gen erally prefer to rely upon the debate which took place in the House of Representatives of 1789, and the act of July 27 of that year, "for establishing an executive Department to be denominated the Department of Foreign Af fairs." Now, I insist that what powers are or are not in the Constitution cannot be proved by reference to the annals of debates or to the Statutes at-Large. The Constitution speaks for itself. What its framers intended must be gathered from the clauses to which they agreed, and not from clauses agreed to by any Con gress whatever.

idents Harrison and Fillmore were not im-
peached for making ad interim appointments
of Secretary of the Navy, with no statute au-
thorizing it. President Buchanan was not im-
peached for removing the postmaster at New
Orleans and filling the place ad interim, not
for removing Fowler, the postmaster at New
York, during the session of the Senate, and
supplying the place ad interim, with no statu-
tory authority; nor was he impeached for au-
thorizing Joseph Holt to discharge the duties
of Secretary of War ad interim upon the res- But if the debate and the statutes were both
ignation of John B. Floyd, though the Senate evidence upon the point they would not prove
called upon him for his authority, and in his the power in question to be in the Constitu-
reply he cited one hundred and seventy-nine tion. That debate commenced on the 19th of
precedents, not going back of Jackson's ad- May, 1789, upon the proposition to make the
ministration. Mr. Lincoln was not impeached Secretary for Foreign Affairs "removable at
for the appointment of General Skinner Post- the pleasure of the President." It was objected
master General ad interim, without any statute that, by the terms of the Constitution, an officer
authorizing it, nor for the removal of Isaac could only be removed by impeachment before
Henderson, navy agent at New York, during the Senate. On the contrary, Mr. Madison
the session of the Senate, and the ad interim said "he believed they would not assert that
appointment of Paymaster Gibson to the office; any part of the Constitution declared that the
nor for the removal of Chambers, the navy only way to remove should be by impeach-
agent at Philadelphia, during the session of ment. The contrary might be inferred, be-
the Senate, and the appointment of Paymaster cause Congress may establish offices by law;
Watson ad interim to the office, there then therefore most certainly it is in the discretion
being no statute authorizing it. He was not of the Legislature to say upon what terms the
impeached for continuing Major General Frank office shall be held, either during good behavior
P. Blair in command long after the Senate had or during pleasure.' During that debate no
declared by resolution that in such case the less than twenty-five speeches were made.
office could not be held "without a new ap-Throughout the debate the issue was, Can Con-
pointment in the manner prescribed by the
Constitution;" nor for appointing at one time
any more generals in the Army than the laws
allowed.

Supported by a long line of precedents, coming through our whole history, unchallenged and unrebuked by Congress, President Johnson stands before us upon these charges; and I ask my brother Senators what answer we will make to the people when they ask us why we selected him for a sacrifice for doing just what was always recognized as right in his predecessors? Upon my oath I cannot strike such a blow.

The judgment of the First Congress was that the President has the right under the Constitution to remove the Secretaries, and that judg. ment is supported by the uniform practice of the Government from that day till the meeting of the Thirty-Ninth Congress. The evidence shows that Mr. Johnson was advised by every member of his Cabinet, including Mr. Stanton, that he had that right under the Constitution, and that Congress could not take it from him nor impair it, and therefore it was his duty to veto the tenure of office bill; and that the bill did not include the appointments made by Mr. Lincoln; and that, notwithstanding the passage of the bill, he would have the right to remove the Secretaries of War, of State, and of the Navy. This advice was given by the members of the Cabinet under the obligations of the Constitution and of their oaths; and now, if we say that he, being so informed and advised, was guilty of a crime in demanding the right to select his own constitutional advisers, as it has been conceded to all the Presidents, and for that drive him from his office and give it to a member of this body, it does seem to me that we will do an act of such flagrant injustice and cruelty as to bring upon our heads the indignant condemnation of all just men, and this impeachment will stand itself impeached before the civilized world.

||

gress authorize the President to remove from office, or is impeachment the only method of removal allowed by the Constitution?

Nearly a month later, on the 16th of June following, the debate was renewed upon a bill to establish a Department of Foreign Affairs. The first section provided that the Secretary should "be removable at the pleasure of the President." Mr. White, of Virginia, moved to strike out these words. Upon that motion a long debate ensued, running through several days. In the course of it Mr. Madison assumed a new ground of defense. In the former debate he had asserted that Congress could fix the tenure of the office as it pleased; that that power was a necessary incident of the power to create the office. In this debate he started the idea, for the first time, that the President could control the tenure as an incident of executive power.

The idea was broached cautiously and with evident hesitation. He acknowledged it was an afterthought. And he introduced it in these words:

"I have, since the subject was last before the House, examined the Constitution with attention, and I acknowledge that it does not perfectly correspond with the idea I entertained of it from the first glance. I am inclined to think that a free and systematic interpretation of the plan of Government will leave us less at liberty to abate the responsibility than gentlemen imagine."

"By a strict examination of the Constitution on what appears to be its true principles, and considering the great Departments of the Government in the relation they have to each other, I have my doubts whether we are not absolutely tied down to the construction declared in the bill."

Of those who affirmed and those who denied the power of removal to be in the President, during the debate, the numbers were about equal. Upon taking the vote on the motion to strike out, the noes were 34, while the ayes were but 20.

But it is evident from the nature of the question that the majority numbered all those who believed the Constitution conferred the

power of removal on the President, and all those, also, who thought Congress could and ought to confer it on him.

Mr. Sedgwick, of Massachusetts, called attention to this fact at the time. He said:

"If I understand the subject rightly there seem to be two opinions dividing the majority of this House. Some of these gentlemen seem to suppose that, by the Constitution, and by implication and certain deductions from the principles of the Constitution, the power rests in the President. Others think that it is a matter of legislative determination, and that they must give it to the President on the principles of the Constitution."

The minority do not seem to have been satisfied with the victory achieved by that combination of forces. Accordingly, on the 22d of June, Mr. Benson, of New York, who was of the majority, proposed once more to strike out those words in the first section which were equivalent to an express grant of the power of removal and in lieu thereof to insert in the second section, which provided for a chief clerk, who in case of "vacancy" should have custody of the books, papers, &c., the words "whenever the said principal officer shall be removed from office by the President of the United States, or in any other case of vacancy," shall, during such vacancy, have custody, &c. He explained that "he hoped his amendment would succeed in reconciling both sides of the House to the decision and quieting the minds of gentlemen."

He seems to have persuaded himself that as the law in that form would not assert either that the President could remove under the Constitution or that he might remove under the act, but only mildly suggested "removed by the President" as an event possible to happen without specifying whether it was likely to happen from an exercise of constitutional or statutory authority, no one would have any particular objection to it. This expectation does not seem to have been realized. The amendment to the second section was carried by even a less majority than was obtained against amending the first section. The vote was 30 ayes to 18 noes.

Then the question was renewed to strike out from the first section the words "to be removable," &c., and it was carried by 31 ayes to 19 noes. Thus amended, the bill went to the Senate and passed that body by the casting vote of the Vice President.

Such is in brief the character of the debate of 1789, and such the conclusion in which it issued. It has frequently been cited as a legislative interpretation of the Constitution, as a legislative decision, that the Constitution vested in the President the power of removal. But it ought not to be so regarded, for it is impossible to ascertain from the records how many supported the bill, because they regarded it as a declaration that the President had the power to remove; or how many supported it as a declaration that he ought to have it; or how many supported it for the sake of according with the majority, and because it declared neither one thing nor the other.

The idea that the President had the power of removal under the Constitution was not advanced for nearly a month after the debate commenced, and there is not the slightest reason for believing that the bill received a single vote for its passage in either House which it would not have received if that idea had never been conceived.

But if the act of 1789 ever had authority as a legislative decision upon the true meaning of the Constitution, that authority has been annulled by repeated decisions of the same tribunal to the contrary.

First in order of time I cite the act of May 15, 1820, entitled "An act to limit the term of office of certain officers therein named, and for other purposes." The first section of that act is in the following words, to wit:

"That from and after the passage of this act, all district attorneys, collectors of the customs, naval officers and surveyors of the customs, navy agents, receivers of public moneys for lands, registers of the land offices, paymasters in the Army, the apothecary general, the assistant apothecaries general, and the commissary general of purchases, to be appointed

under the laws of the United States, shall be
appointed for the term of four years, but shall be
removable from office at pleasure."

That section asserts the precise authority
claimed for Congress by Mr. Madison on the
19th of May, 1789, the authority to determine
when and how official tenure should end.

It was superfluous for Congress to enact that the President might remove officers if he had the same authority under the Constitution. And it was useless for Congress to attempt to limit the tenure of an office to four years if the President may extend it to twenty years, as he clearly can if the Constitution has vested in him alone the power of removal.

By that act Congress assumed to grant to the
Executive the power of removal. Six years
later a committee of the Senate, of which Mr.
Benton was chairman, made an elaborate re-
port, assuming the right of Congress to restrict
the power of removal. It does not appear to
have been considered by the Senate.

In 1835 another committee, of which Mr.
Calhoun was chairman, reported a bill which
practically denied the constitutional authority
of the President to remove from office. As
such it was received and considered by the
Senate. It led to a protracted and exhaustive
discussion. The debate of 1789 was thoroughly
reviewed. Among those who denied the power
now claimed by the President were Mr. Cal-
houn, Mr. Clay, Mr. Webster, Mr. Benton,
and Mr. Ewing, of Ohio, whose name the
President recently sent to the Senate as the
successor of Mr. Stanton, whom he claimed
to have removed from office under the very
of
authority Mr. Ewing then vehemently denied
and ably controverted. Upon the passage
the bill the vote of the Senate was as follows:
"YEAS-Messrs. Bell, Benton, Bibb, Black, Cal-
houn, Clay, Clayton, Ewing, Frelinghuysen, Golds-
borough, Kent, King of Georgia, Leigh, McKean,
Mangum, Moore, Naudain, Poindexter, Porter,
Prentiss, Preston, Tyler, Waggaman, Webster, and
White-31.

"NAYS-Messrs. Brown, Buchanan, Cuthbert,
Hendricks, Hill, Kane, King of Alabama, Knight,
Linn, Morris. Robinson, Ruggles, Shipley, Talmadge,
Tipton, and Wright-16."

But this vote, although a very emphatic
expression of the opinion of that Senate upon
the power in question, and very suggestive of
the opinion of that age, cannot strictly be con-
sidered a decision of that Congress, since the
bill did not pass, and was not considered by
the House of Representatives.

But in 1863 Congress passed an act to provide a national currency. The first section provided for a Comptroller of the Currency, and enacted as follows:

"He shall be appointed by the President, on the nomination of the Secretary of the Treasury, by and with the advice and consent of the Senate, and shall hold his office for the term of five years, unless sooner removed by the President, by and with the advice and consent of the Senate."

Of course, if the Constitution confers upon the President the power to remove from office, this provision was in palpable conflict with it, and yet both Houses agreed to it, and President Lincoln approved the act, as President Monroe approved the act of 1820, above referred to.

Congress again asserted the same control over the power of removal in the first section of an act to provide a national currency secured by a pledge of United States bonds, and to provide for the redemption thereof, which act was also approved by the President on the 3d of June, 1864. (See Statutes-atLarge, vol. 13, p. 100.)

Again, the fifth section of the act making appropriations for the support of the Army for the year ending June 30, 1867, contains the following provision:

"And no officer in the military or naval service shall, in time of peace, be dismissed from the service except upon and in pursuance of the sentence of a court-martial to that effect or in commutation thereof."

The legislative history of this provision is brief. It is strikingly suggestive of how much of this clamor against the constitutionality of the tenure-of-office act is attributable to parti- || san zeal, and how much to real conviction. For this reason I refer to that history here.

The Army appropriation bill being under consideration in the Senate on the 19th of June, 1866, Mr. WILSON offered an amendment in the following words, to wit:

"And be it further enacted, That section seventeen of an act entitled An act to define the pay and emoluments of certain officers of the Army," approved July 17, 1862, and a resolution entitled A resolution to authorize the President to assign the command of troops in the same field or department to officers of the same grade without regard to seniority," approved April 4, 1862, bc, and the same are.

hereby repealed; and no officer in the military or naval service shall be dismissed from service except upon and in pursuance of the sentence of a courtmartial to that effect, or in commutation thereof."See Congressional Globe, First session Thirty-Ninth Congress, p. 3254.

The amendment, as offered, was agreed to without division and without objection. When the bill was returned to the House of Representatives it was committed, together with the Senate amendment, to the Committee on Appropriations. On the 25th of June the amendments were reported back from that committee with the recommendation that the House non-concur in that amendment among others. (Ibid., p. 3405.)

The bill subsquently was referred to a committee of conference, consisting on the part of the Senate of Messrs. SHERMAN, WILSON, and YATES; and on the part of the House of Messrs. SCHENCK, NIBLACK, and Thayer.

That committee reported that the House agree to the amendment of the Senate, with an amendment inserting the words "in time of peace," after the word "shall."

In that form the amendment was accepted, without a dissenting vote in either House.

The Senate which passed that act with such unanimity was composed substantially of the same individuals who now compose this tribunal. Moreover the act was approved by the respondent himself on the 12th of July, 1866.

In his answer filed in this cause the respondent dwells upon the reluctance he felt to surrendering any one of the prerogatives which the Constitution had intrusted to the presidential office. Such a reluctance, if sincere, becomes a President always. But the respondent's professions of reluctance in 1867 were surely ill-timed, admitting they were sincere. He had already surrendered this prerogative in the solemn manner possible.

No one has asserted, and no one will assert, that the Constitution vests in the President any sort of control over the tenure of civil offices that he does not possess over that of military or naval offices.

If under the Constitution he can dismiss a postmaster, he can dismiss also the General of the Army and the Admiral of the Navy; and a statute forbidding the dismissal of either is but idle words.

If Congress can lawfully forbid the President to remove any military or naval officer, as was done in the act above mentioned, surely it cannot be denied that Congress may prohibit the removal of any civil officer, as was subsequently done by the tenure-of-office bill.

Either, then, the respondent now asserts power which he believes to be unconstitutional, or he then approved a statute which he believed to be unconstitutional. For myself I cannot help thinking the judgment of 1866 was the most candid and unbiased. He was then under every obligation to defend the Constitution that rests upon him now. But he is now manifestly under a necessity of defending himself, which he was not under then.

If the respondent were proved to have claimed to own an estate which he had by deed conveyed to another, he would be held guilty of slandering the title of his grantee. And when he is heard, in answer to a charge of usurping power, to assert an authority which he has solemnly abjured, he must be held guilty of slandering the Constitution and the prerogatives which that Constitution vests in Congress.

Following the act of 1866 came the act of March 2, 1867, entitled "An act regulating the tenure of certain civil offices."

In substance it prohibits the President from

removing certain civil officers, except upon certain conditions, as the act of the preceding year prohibited him from removing military and naval officers, except upon certain conditions. The principles of the two acts are precisely the same. The power to pass them must be the same. There may be considerations of expediency opposed to one which cannot be urged against the other. But the President, who approved the first act, so far as I know, without hesitation, vetoed the second, upon the ground of unconstitutionality. This will be thought strange; but it will not be thought strange that Congress, adhering to a principle 80 often asserted in former acts, passed this act by a majority of more than two thirds of each House, the President's objections to the contrary notwithstanding.

Upon all these instances I conclude that the constitutional power to remove from office cannot be proved by the decisions of Congress. Congress has never in terms aflirmed its existence once. On the contrary, it has, as I have shown, denied it repeatedly and explicitly. It can as little be proved by reference to the text of the Constitution itself.

Those who, in the debate of 1789 or in subsequent discussions, have ventured to seek for this baleful authority in the text of the Constitution have claimed to find the warrant for it in the first section of the second article. They assume that the power of removal is an executive power, and therefore that it is conferred upon the President by that section. The terms of the section are these:

"The executive power shall be vested in a President of the United States of America."

In my judgment, the sole office of that clause is to fix the style of the officer who is to possess executive authority, and not to define his jurisdiction to prescribe what the Executive shall be called, and not what he may do. It seems to bear the same relation to the executive department that the first clause of the first article does to the legislative department, and the first clause of the third article to the judicial department. To ascertain what is executive power we must examine other provisions of the Constitution.

But when you have searched the Constitution through you do not find this of removal from office enumerated among executive powers, nor any other power like it. The one duty charged upon the President which is most like, or rather which is least unlike, the duty in question, is this: "He shall take care that the laws be faithfully executed." He is not to execute the laws, but to "take care that the laws be" "executed." It is very little he can lawfully do to execute them. If, because he is charged to see that the laws are executed, he may provide any one of the means or methods or instruments of their execution, he may provide all not otherwise expressly provided for. If, because he is to see that the laws be executed, he may remove any officer who may be employed in their execution, why should he not select all officers to be employed? Why not contrive and establish the offices they are to fill? Why not define the duties they are to discharge the parts they are severally to perform? Why not fix the compensation which they may receive?

No one will pretend that either of these powers belongs to the President, though each one is as much executive in its nature as is the power of removal. No office not established by the Constitution can be created but by an act of Congress. Congress alone can determine the manner of filling it, define its duties, and fix its emoluments. And yet it is strangely claimed that when the legislative power has done all this the executive power may prac tically defeat it all; not by abolishing the office or changing the duties or the rate of compensation, but by creating a vacancy in the office whenever he chooses. And so his duty to see the law faithfully executed is transformed into a power absolutely to defeat the whole purpose of the law. He is charged by the Constitution to see that the laws are faith

SUPPLEMENT TO

old musket from one citizen to another with-
fully executed, and yet he cannot transfer an
out making himself liable as a trespasser.

commanded an army of more than a million of
The President of the United States recently
men; but with all that force at his command
he could not law fully eject from his cabin the
humblest squatter on the public domain. Pos-
session is stronger, in the eye of the law, than
the President, and before that naked posses-
sion the Commander-in-Chief must halt, no
Only when the wrongfulness of that possession
matter what the physical force he commands.
has been determined by the judicial power
in a procedure prescribed by the legislative
power; not until the national precept has
issued, attested not by the President, but by a
judge, can that possession be disturbed. And
even that writ must be executed by the very
person to whom Congress requires it to be
directed. Whoever else attempts to serve it
is a trespasser, although it be the President
himself.

officer, who is so impotent to redress so pal-
And yet it is strangely asserted that this
pable a wrong, may, at his own pleasure, with-
by a command, in defiance of a statute, remove
out judicial inquiry, without writ, in a momeut
emoluments of official position the army of
from the duties, the labors, the honors and
officers employed in the civil, the military, and
naval service of the United States, not because
the Constitution anywhere says he may do so,
but because the Constitution charges him with
the duty of seeing the laws faithfully executed.

This power of removal is, then, not vested
in the President by anything said in the Con-
stitution, nor by anything properly implied
from what is said. It seems to me, on the
contrary, it is positively denied by the manifest
purpose of the Constitution. That manifest
purpose is that the principal offices shall be
held by those in whose appointment the Senate
has concurred. The plain declaration is that
and with the advice and consent of the Sen-
"He (the President) shall nominate, and by
ate appoint, embassadors," &c. But this pur-
pose may be wholly defeated if the President
have, by the Constitution, the unrestricted
power of removal; for it is as plainly declared
that "the President shall have power to fill
all vacancies that may happen during the
recess of the Senate, by granting commissions
which shall expire at the end of their next
session." If, then, the President has also the
power during the recess of the Senate to make
vacancies at his pleasure by removal, his choice
only to remove all officers in whose appoint
is supreme and the Senate is voiceless. He is
ment the Senate has concurred immediately
upon the adjournment of that body and com-
mission others in their places. They will hold
until the end of the next session. Just before
that event he must nominate again to the Sen-
ate the officers he removed, or some others
whom the Senate will confirm, and when the
President may again remove them all and
Senate has confirmed them and adjourned the
restore his favorites once more, to hold until
the end of another session, when the same
ceremony must be repeated.

A deed which should grant a house to "A"
and his heirs and to their use forever, but
should also declare that "B" and his heirs
probably be held void for repugnancy. I do
should forever occupy it free of rent, would
not think the Constitution a nullity; and so I
cannot concede that the President has in it a
plainly declared to be in the Senate.
power implied so clearly repugnant to a power

But it is urged that it is necessary to the
well-being of the public service that the Presi-
dent should be clothed with this extraordinary
power. It is urged that unless he have it
service, and it would take time to displace them.
unfaithful men may be obtruded upon the public
It is true, incompetent or dishonest men may
get into the custom-houses or the marshalships.
It would be folly to deny that. And so dis-
honest men may get possession of other men's
property and refuse to make restitution; and

dishonest men may refuse to pay their just dues on demand. I readily confess that some gov ernmental contrivance by which official positions could be instantly taken from unfaithful hands and placed in faithful ones, and by which all wrongs could be redressed and all rights enforced, instantly, and without the necessity of trial or deliberation or consultation, is a desideratum. But the men who made our Constitution did not provide any such contrivance. they believed what the world's whole history they studiously avoided all such effort. I think I do not think they tried to. It seems to me most impressively teaches: that while the administration of law is intrusted to fallible men, deliberation is safer than expedition.

Absolute monarchies are the handiest of all they can execute justice and punish rascality so Governments for that very reason, because promptly. But the men who made our Constitution, looking back upon the experience of a few thousand years, came to the conclusion that absolute monarchs could just as promptly execute injustice and punish goodness. They resolved to discard the whole system. I am not yet satisfied they were mistaken, and am not, therefore, willing to see their decision reversed.

I readily concede that if we were sure the unselfish, unprejudiced man, it might promote President would always be an honest, wise, the efficiency of the public service to intrust him with the delicate and responsible duty of removing a bad officer and replacing him by a good one.

But the men who made our Constitution did it was possible not only for bad men to become not act upon any such hypothesis. They knew assessors of internal revenue, but to become Presidents as well, else they would not have provided this august tribunal for the trial and deposition of a delinquent President. I grant that when you have a true man for President it is convenient and not dangerous that he have the power of removal, for thereby he may be able to replace an incompetent district attorney with a competent one, or a dishonest inspector of customs with an honest one, without waiting to consult the Senate or with the law making power. But if, instead, you happen to have a false man for President, then if he have the power of removal it is a power which removes all honesty from the public service and ruption. fills it throughout with rottenness and cor

My conclusion is that the President derives is not warranted in asserting it. no authority from the Constitution to dismiss an officer from the public service. A lawyer of the Thirty-Ninth Congress, who assented to A member asserting it. The respondent, who approved the act of July 12, 1866, cannot be justified in that act, cannot be excused for asserting it. Whatever authority the President had on the 21st of February last to dismiss the Secretary of War, he derived, not from the Constitution, but from statute. The only authority he desection of the act of 1789 creating the office of rived from the statute is found in the second Secretary of War.

That section is in the words following:

"That there shall be in the said Department an inferior officer, to be appointed by the said principal officer, to be employed therein as he shall deem proper, and to be called the chief clerk in the Department of War; and who, whenever the said principal officer shall be removed from office by the President of the United States, or in any other case of vacancy. shall, during such vacancy, have the charge and oustody of all records, books, and papers appertaining to the said Departinent."

It was copied from the act to establish a passed by the same Congress at the same sesDepartment of Foreign Affairs, which had been sion. It is evidently to be construed as the same words used by the same men in the former act are to be construed.

And whether we look at the terms employed in the section, or at the terms employed in the debate which preceded the enactment, it is very evident that the power conferred is something very different from the arbitrary and irrespon sible power of removal claimed by the Presi