In Massachusetts the judiciary were appointed by the executive, and were removable by him on an address of the two branches of the legislature. Many officers of the State (some of them executive) were appointed by the legislature.

He passes over Rhode Island and Connecticut, as their constitutions were adopted before the Revolution, and before the principles under examination had become an object of attention.

In New York the powers of government were curiously blended. The executive had a partial control over the legislative, and a like control over the judiciary, and even blended the executive and judiciary in the exercise of this control. There was a council of appointment composed of the executive and partly of the legislative, which appointed both executive and judicial officers. New Jersey blended the powers of government more than either of the foregoing. The governor, who was the executive, was appointed by the legislature, and yet he was not only the executive, but he was chancellor and surrogate of the State; he was a member of the supreme court of appeals and president, with a casting vote, of one of the legislative branches. This same legislative branch acted again as executive council of the governor, and with him constituted the court of appeals. The judiciary were appointed by the legislature.

Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia, all had the same system of blended powers. In some of them even justices of the peace were appointed by the legislature.

It is scarcely possible to find anywhere in contemporary history a stronger proof of the jealousy with which the people clung to their right to control their own political affairs; and it was a great concession of the States of the Confederacy to the Union under the Constitution when they assented to the clause now being considered. In every State of the confederacy, at the time they were called upon to adopt the Constitution, the people, through the legislatures, not only made the laws, but they appointed the officers who were to execute them; and not only this, but provided for their removal in the same manner. They seemed to have regarded the chief executive as an officer designated to assist the execution of the laws, but that it was unsafe to give him power to appoint those who were to co-operate with him in this duty.

I say it was a great concession, and a radical change which conferred upon the President of the United States even the prerogatives which are now undisputed.

Sirs, the people who adopted the Constitution were unaccustomed to looking upon their Executives as standing high above them and distributing the powers which they alone possessed. They had never been in the habit of clothing them with imperial powers, or permitting them to suppose for a moment that they were a distinct and separate entity of government. They had never, in a single instance, given to a State executive a distinct existence, separate from the legislative and judicial departments. He always acted conjointly, and upon the question of appointments to and removal from office, more than upon any other, they seemed to have been cautious.

With the light of this history, it is monstrous to suppose that the people parted with their power, as is claimed by the respondent, in adopting the article under discussion, that they gave up without a word of dissent all those checks upon the Executive with which they had been so familiar, and which they had so uniformly adopted in their State governments.

They did no such thing, Mr. President, and nowhere can it be shown they intended any such thing. On the contrary, we have seen that this clause of the Constitution was urged upon them for the very reason that it practically secured to them a system with which they had been so long familiar. The debates at that time show that the Constitution was adopted under the impression that this clause gave the power of appointment and removal jointly to the Senate

and President, and they show, too, that the clause was framed to meet this view. I say, then, it is unwarrantable, upon any principle of constitutional or statutory construction, to give the instrument any other meaning.

As well might you annul an ordinary contract upon declarations given after it is signed. The most that can be shown is what the parties said at the time it was made, and the written compact is conclusive of the meaning expressed. We have seen how the people felt at the time. We have seen what two great writers upon the subject said at the time, and that their opinions influenced largely the adoption of the Constitution. Upon the question under discussion at that time there seemed but one mind.

Mr. President, I think I do not state it too strongly in saying that prior to the meeting of the first Congress, and at the time the Constitution was adopted, none of the friends of the Constitution claimed the power for the President which is now urged. Some of its enemies made the charge, but it was denied by its friends. No man in this country has studied more carefully the history on the subject than Mr. Story. He says, in his Commentaries on the Constitution, (pages 15, 39, 40, 41,) that the doctrine (speaking of the same construction urged by the managers) was maintained, with great earnestness, by the earliest writers, and says that at this period the friends of the Constitution had no other view. He cites 5 Marshall's Life of Washington, chapter 3, page 198, and 1 Lloyd's Debates, 351, 366, 450.

Of the effect of these opinions upon the public mind at that time this writer says:

This was the doctrine maintained, with great earnestness, by the federalists, and it had a most material tendency to quiet the just alarms of the overwhelming influence and arbitrary exercise of this prerogative of the Executive, which might prove fatal to the personal independence and freedom of opinion of public officers, as well as to the public liberties of the country. (Story's Commentaries, sec. 1539. Story on Constitution, vol. ii, page 400.)

I have been endeavoring to show that at the adoption of the Constitution the appointing power was regarded and made a joint power between the Senate and the President, as was also the power of removal. I think this position well established.

I have thus fully discussed the appointing power directly with the Senate because the same reasons that required that power to be joint apply with equal force to the power of removal.

Let us come down, however, to a period subsequent to the adoption of the Constitution.

year.

Congress met March 4, 1789, and continued until September 29, of the same On the 27th of July they passed the act organizing the Department of Foreign Affairs, and on the 7th of August following was passed the act organizing the Department of War. These two acts are identical in language in every particular, except the assignment of duties to the different principal officers of the department. As much of the argument hinges on the law organizing the Department of War, at this time it is important to know just what was said and done at the time. There are some peculiarities of the law to which I invite attention.

Section one provides that

There shall be an executive department to be denominated the Department of War, and that there shall be a principal officer therein, to be called the Secretary for the Department of War, who shall perform and execute such duties as shall from time to time be enjoined upon him by the President of the United States, agreeably to the Constitution, relative to military commissions, or to the land or naval forces, ships or warlike stores of the United States, or to such other matters respecting military or naval affairs as the President of the United States shall assign to said department, or relative to the granting of lands to persons entitled thereto for military services rendered to the United States, or relating to Indian affairs; and furthermore, that the said principal officer shall conduct the business of the said department in such manner as the President of the United States shall from time to time order or direct.

3 I P-Vol. ii

SEC. 2. 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 charge and custody of all records, books, and papers appertaining to the said department.

SEC. 3. The said principal officer, and every other person to be appointed or employed in the said department, shall, before he enters on the execution of his office or employment, take an oath or affirmation well and faithfully to execute the trust committed to him.

SEC. 4. The Secretary for the Department of War, to be appointed in consequence of this act, shall forthwith, after his appointment, be entitled to have the custody and charge of all records, books, and papers in the office of Secretary for the Department of War, heretofore established by the United States in Congress assembled.

It is noticeable that the law nowhere provides how or by whom the principal officer is to be appointed. The language of the law is, in the first section, "there shall be a principal officer;" in the third section, "that the said principal officer and every other person to be appointed or employed in said department," &c., shall take an oath, &c.; in section four," that the Secretary for the Department of War, to be appointed in consequence of this act, shall, forthwith after his appointment, be entitled to have custody and charge of all records," &c. It has been uniformly held that where no provision is made in the law for the appointment of the officer, the appointment must be made by and with the advice and consent of the Senate. (6th Attorney Generals' Opinions, page 1.) This results necessarily from the language of the Constitution. No provision was made in the laws organizing either of the executive departments as to how the principal officers were to be appointed; they were, therefore, all appointed by and with the advice and consent of the Senate. Is it not fair to suppose the removal was to take place in the same manner? On the same day the War Department was created, Congress passed an act giving the President power expressed to remove the governor and other officers of the territory organized under the ordinance of 1787, and yet these officers were by the same act to be appointed by and with the advice and consent of the Senate. Is it probable that Congress would have made special provision for the exercise of power in one case, if they had supposed that power incident to the share the President took in the appointment? The act, it seems to me, clearly indicates that Congress regarded legislation necessary to confer the power, else it was needless to have legislated at all upon the subject.

But it is urged that the second section of the War Department act does confer this power, absolutely. I say not. The second section provides for the appointment, by the Secretary of War, of an inferior officer, to be called the

chief clerk," who, whenever the said principal officer (the Secretary) shall be removed by the President of the United States, or in any other case of vacancy, shall, during such vacancy, have charge, &c.

There is a marked difference of expression between the act I have referred to as passed upon the same day, and this. In the one, the absolute power of revoking commissions and removing is conferred; in the other, the expression, "whenever the said principal officer shall be removed from office by the President," &c. Now, sirs, I think that the utmost which can be claimed from this grant, is recognition of a qualified and limited power over the Secretary of War, in case his removal should become necessary at a time when by the exercise of it a vacancy would be made at a time when the Senate could not assist in filling it. Provision had to be made for this, as the discussions at the time show, and I think the language means nothing more than that the Presi dent was to exercise the same and no more power than would be conceded to him in the entire absence of any provision on the subject. This law did not take the case out of the constitutional limitation, and by no legal interpretation can it be held to do so.

When the bill for organizing the Department of Foreign Affairs was under

discussion, the original draft read "to be removed by the President." Upon this arose all the discussion which is chiefly relied upon by the counsel for the respondent. Whatever may or may not be proved by that discussion, one thing is observable, namely the language of the first draft was materially changed, and, as finally adopted, left the question upon inference merely. Instead of declaring that this officer is removable by the President, in plain and unmistakable phrase, an equivocal expression was finally adopted, which it was thought would partially meet the views of the majority and yet decide nothing absolutely.

But let us notice for a moment this discussion of 1789. I am not inclined to underrate the value of that debate, but as forming any rule or guide for us I cannot give it great importance. The leading mind which controlled the removal party was that of Mr. Madison, and he it is known argued against his views expressed before the Constitution was adopted. Whether he began to have glimmering hopes of the presidency himself I will not say, but it certainly detracts from the value of his opinions to know that his views expressed after the Constitution was adopted were different from those entertained when he was urging its adoption. But, as I understand that discussion, the argument turned largely upon the necessity of this power resting somewhere at a time when there was a pressing emergency for its exercise.

The first proposition was made by Mr. Madison, that there be established an Executive Department, comprising the Departments of Foreign Affairs, of the War and of the Treasury, the chief officers thereof to be called Secretaries; to be nominated by the President and appointed by and with the advice and consent of the Senate, and "to be removable by the President." This resolution was finally made the basis for three separate bills, couched in similar language, creating the Department of Foreign Affairs, Department of the Treasury, and Department of War. The bill creating the Department of Foreign Affairs was first taken up, and gave rise to a long discussion. This bill was amended by inserting in the second article words implying the right of the President to remove the Secretary, and was subsequently amended by striking out of the first article the authority of the President to make such removals. This last amendment was carried by a vote of 31 ayes to 19 nays, and the bill, as amended, passed the House by a vote of 29 to 22. In the Senate the bill was carried by the casting. vote of the Vice-President.

It is an easily understood principle that where two or more unite in an act they may delegate the authority in all to any one of the number, and this, we may say, was done inferentially by the vote I have noticed. But, sirs, the Senate has since spoken upon this very subject many times, as I shall show, and on every occasion in unmistakable condemnation of the principle laid down by the respondent.

When John Quincy Adams, in 1826, attempted to entangle the United States in an alliance with the new republics of South America, and to establish what was popularly termed the "Panama mission," this encroachment upon legislative prerogative was sturdily resisted; the Senate insisting upon its rights to the utmost, even to contending that when a new mission is created it creates a new office, which does not come under the class of vacancies, and therefore the President has no right to fill it by a temporary appointment.

Under every administration since the days of Monroe, we observe attempts by the Executive to monopolize the right of appointment, but in every instance these encroachments were resisted, the Senate successfully asserting its joint authority to appoint and remove. In the session of 1825-'26, warned by the attempted exercise of this assumed power by Mr. Adams in the case of the Panama mission, a select committee was appointed by the Senate, charged with an inquiry into the expediency of reducing Executive patronage; which committee reported six bills, intended to control and regulate different branches of

the public service and limit some exercises of Executive power. In one of the six bills, to secure in office faithful collectors and disbursers of the revenue, the President was required to report to Congress the causes for each removal. The section of the bill to that effect reads:

That in all nominations made by the President to the Senate, to fill vacancies occasioned by an exercise of the President's power to remove from office, the fact of the removal shall be stated to the Senate at the same time that the nomination is made, with a statement of the reasons for which such officer may have been removed.

66

Benton says this was intended to operate as a restraint upon removals without cause, and was a recognition of a principle essential to the proper exercise of the appointing power, and entirely consonant with Mr. Jefferson's idea of removals, but never admitted by any administration, nor enforced by the Senate against any one-always waiting the legal enactment. The opinion of nine such senators as composed the committee who proposed to legalize this principle, all of them democratic, and most of them aged and experienced, should stand for a persuasive reason why this principle should be legalized." (Benton's Thirty Years' View, vol. 1, chap. 29.)

During Jackson's administration this power of removal as claimed by the accused came before the Senate many times, and never but to receive a decided condemnation. Upon the breaking up of Jackson's first cabinet, Mr. Van Buren was nominated to the Senate as minister to England. His confirmation was opposed for several reasons, and among them it was charged that he introduced, as Jackson's Secretary of State, a system of proscription or removal for opinion's sake, and a formal motion was made by Mr. Holmes, of Maine, to raise a committee, with power to send for persons and papers, to inquire into the charges and report to the Senate. But this looked so much like an impeachment of the President that it was dropped. The same reasons for the rejection were urged, however. Among those who insisted upon the rejection for the reason I have stated, among others, were Clay, Webster, Clayton, Colonel Hayne, of South Carolina, Governor Moore, of Alabama, and not least on the list was Thomas Ewing, of Ohio. Van Buren was rejected, and the right of the Senate and the truth of the principle I now insist upon was vindicated.

During Jackson's second term the question came up before the Senate in a different form. The offices of bank directors to the United States Bank were about to be vacated by limitation of their term. Jackson desired the reappointment of, and accordingly nominated, the incumbents. The Senate, for their own reasons, rejected the nominees. Jackson then attempted to coerce the Senate into the appointment, and accordingly sent the same names back, intimating in his message that he would nominate no others. The nominations went to a committee, who reported a resolution recommending rejection, which was immedi ately adopted. The report was an able review of the power of the Senate, and concludes as follows:

The Senate perceive, with regret, an intimation in the message that the President may no, see fit to send to the Senate the names of any other persons to be directors of the bank except those whose nominations have been already rejected. While the Senate will exercise its own rights according to its own views of duty, it will leave to the other officers of the government to decide for themselves on the manner they will perform their duties. The committee know no reasons why these offices should not be filled; or why, in this case, no further nominations should be made, after the Senate has exercised its unquestionable right of rejecting particular persons who have been nominated, any more than in other cases. The Senate will be ready at all times to receive and consider any such nominations as the President may present to it.

The Senate had condemned the assumption of the President in presuming to remove for opinion's sake, and here we have a condemnation of his attempt to perpetuate in office his own favorites against the wish of the Senate.

But Jackson persisted in putting the question to every conceivable test, and removed his Secretary of the Treasury (Mr. Duane) because he refused to do what he conceived to be a violation of the law and his duty in the removal of