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the duty of commissioning is distinct from the appointment. The legislature might require commissions. Marbury v. Madison, 1

Cr. 157; Story's Const. § 1548. Officers Clerks of courts are such officers; and, in such cases, the power

of removal is incident to the power of appointment. Ex parte Hennen, 13 Pet. 230, 259. And may be exercised by the court which appointed. Id.

The President cannot appoint a commissioner of bail, affidavits, &c. That power belongs to the circuit courts. Bates, 24th June,

1861. Tenure of 181. The POWER OF REMOVAL. The power of the President

to appoint to office, necessarily includes the power to remove all

officers appointed and commissioned by him, where the Constitution President

has not otherwise provided. Therefore he may remove a territorial well as

judge, in his discretion. 5 Opin. 288; 3 Id. 673; 4 Id. 603, 608-9; appoint? 4 Elliot's Debates, 330; Ex parte flennen, 13 Pet. 259. And he 179, 180. may cause a military officer to be stricken from the rolls, without a

trial by court-marcial, notwithstanding a decision in his favor by a court of inquiry. 4 Opin. 1. ; 2 Story's Const. § 1538; Stanbery, 17-19. But see act of 13th July, 1866, in this pote; Story's Coust. $ 1519-1554.

The Senate cannot originate an appointment; its constitutional the Senate's action is contined to a simple affirmation or rejection of the Presi. action fined.

dent's nominations; and such nominations fail whenever it dis193, 194. agrees to them. 3 Opin. 188 ; Stanbery, 18.

This clause gives him power to appoict diplomatic agents of any rank, at any place, and at any time, in his discretion, subject to the approbation of the Senate ; and this power cannot be limited by act of Congress. 7 Opin. 186.

Nothing is said about the power of removal by the executive of any officers whomsoever. As, however, the tenure of office of 10

officers except those in the juicial department, is, by the ConstituArt. III., tion, provided to be during good behavior, it follows, by irresistible

inference, that all others must hold their offices during pleasure, unless Congress shall have given some other duration to their office. (1 Lloyd's Debates, šll, 512.) Story's Const. § 1537: Keenan v. Perry, 24 Tex. 258. In the absence of a constitutional or statutory provision, the power of removal would seem to be in. cident to the power of appointment. (Ex parte Hennen, 13 Pet. 259.) Keenan v. Perry, 24 Tex. 258.

As far as Congress constitutionally possesses the power to regulate and delegate the appointment of “ inferior officers." so far they may prescribe the term of office, the manner in which, and the persons by whom, the removal, as well as the appointment to office, shall be made. (Marbury v. Madison, 1 Cranch, 137, 155.) Story's Const. § 1537. See Monroe's Message of 12th April, 1822, • Executive Journal, 286; Sergt's Const. ch. 29 (31]; 5 Mar. shall's Life of Washington, ch. 3, p. 196–200; 1 Lloyd's Debates, 351-366. and 150-600: Id. 1-12.

The removal takes place in virtue of the new appointment, by mere operation of law. Ex parte Hennen, 13 Pet. 300; Federalist, No. 77.

185.

Sec. 1.

18.

424,

officers ?

"The consent of the Senate would ho necessary to displace as 421, well as to appoint." (Federalist. No. 77.) Story's Const. § 1540.

While Mr. Madison claimed the power to remove, he said, "the wanton removal of meritorious officers would subject him (the 191-194. President) to impeachment.” (1 Lloyd's Debates, 503; and see Id. 351, 366, 450, 480–600; 4 Elliot's Debates, 141-207.

The first limitation on the President's power of removal is as How are the follows: " And no officer in the military or naval service shall, in military re

mored? time of peace, be dismissed from service except upon, and in pursuance of, the sentence of a court-martial to that effect, or in commutation thereof." Act of 13th July, 1866, 14 St. p. 92, $ 5.

In the differences between the President and Congress, the question was again discussed by the thirty-ninth Congress; and although not very elaborately argued, the positions taken for and against the power were urged, and will be found in the Congressional Globe of that session, and in the President's veto of the following law: An Act regulating the Tenure of certain Civil Offices.

Act of

March 2. "Sec. 1. Every person holding any civil office to which he has 1567, 14'st. been appointed by and with the advice and consent of the Senate, 430. and every person who shall hereafter be appointed to any such What is offic, and shall become duly qualitied to act therein, is, and shall be tenure of entitled to hold such office until a successor shall have been in like civil manner appointed and duly qualitied, except as herein otherwise

With what provided: Provided. That the Secretaries of State, of the Treasury,

exceptions ? of War, of the Navy, and of the Interior, the Postmaster-General, and the Attorney-General, shall hold their offices respectively for Omitted. and during the term of the President, by whom they may have been appointed, and for one month thereafter, subject to removal by and with the advice and consent of the Senate.

"2. When any officer appointed as aforesaid, excepting judges When may of the United States Courts, shall, during a recess of the Senate, be the Presi

dent sus. shown, by evidence satisfactory to the President, to be guilty of

pend and misconduct in office, or crime, or for any reason shall become in- ternporarily capable or legally disqualitied to perform its duties, in such case, appoint! and in no other, the President may suspend such officer and designate some suitable person to perform temporarily the duties of such office until the next meeting of the Senate, and until the case shall be acted upon by the Senate, and such person so designated shall take the oaths and give the bonds required by law to be taken and given by the person duly appointed to fill such office; aud in such case it shall be the duty of the President, within twenty days after the first day of such next meeting of the Senate, To whom to to report to the Senate such suspension, with the evidence and report ? reasons for his action in the case, and the name of the person so designated to perform the duties of such office. And if tho Senate shall concur in such suspension, and advise and consent to the removal of such officer, they shall so certify to the President, who may thereupon remove such officer, and, by and with the advice and consent of the Senate, appoint another person to such If the office. But if the Senate shall refuse to concur in such suspension, refuse to such officer so suspended shall forth with resume the functions of

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426. his office, and the powers of the person so performing its duties in

bis stead shall cease, and the official salary and emoluments of such officer shall, during such suspension, belong to the person so per.

forming the duties thereof, and not to the officer so suspended: May the Provided, howmer, That the President, in case he shall become President

satistied that such suspension was made on insufficient grounds, revoke the removal?

shall be authorized, at any time before reporting such suspension to the Senate as above provided, to revoke such suspension and reinstate such officer in the performance of the duties of his office.

3. The President shall have power to fill all vacancies which Senate re- may happen during the recess of the Senate, by reason of death or

resignation, by granting commissions which shall expire at the end vacancios? of their next session thereafter. And if no appointment, by and

with the advice and consent of the Senate, shall be made to such office so vacant or temporarily filled as aforesaid during such next session of the Senate, such office shall remain in abeyance, without any salary, fees, or emoluments attached thereto, until the same shall be filled by appointment thereto, by and with the adı ice and consent of the Senate; and during such time all the powers and duties belonging to such office shall be exercised by such other officer as may by law exercise such powers and duties in case o: a

vacancy in such office. Wbat limit “ 4. Nothing in this act contained shall be construed to extend

the term of any office the duration of which is limited by law. What “5. If any person shall, contrary to the provisions of this ac. penalty for accept any appointment to, or employment in, any office, or shall accepting or hold or exercise, or attempt to hold or exercise, any such office or office con employment, he shall be deemed, and is hereby declared to be, trary to this guilty of a high misdemeanor, and, upon trial and conviction thereoi, act

he shall be punished therefor by å fine not exceeding ten thousand dollars, or by imprisonment not exceeding five years, or both said

punishments, in the discretion of the court. And for ** 6. Every removal, appointment, or employment, made, had, or removal,

exercised, contrary to the provisions of this act, and the making, sigu. triry to the ing, sealing. countersigning, or issuing of any commission or letter of Act ? authority for or in respect to any such appointment or einployment,

shall be deemed, and are hereby declared to be, high misdemeanors, and, upon trial and conviction thereof, every person guilty thereof

shall be punished by a fine not exceeding ten thousand dollars, or When may by imprisonment not exceeding five years, or both said punish the Presi. monts, in the discretion of the court: Provided, That the President mission!

shall have power to make out and deliver, after the adjournment of the Senate, commissious for all officers whose appointment shall

have been advised and consented to by the Senate. How are

"7. It shall be the duty of the secretary of the Senate, at the rejections to close of cach session thereof. to deliver to the Secretary of the bo certified ?

Treasury, and to each of his assistants, and to each of the auditors, and to each of the comptrollers in the treasury, and to the treasurer, and to the register of the treasury, a full and complete list, duly certified, of all the persons who shall have been nominated to and rejected by the Senate during such session, and a like list of

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all the offices to which nominations shall have been made and uot confirmed and filled at sich session.

** 8. Whenever the President shall, without the advice and con- What is the sent of the Senate, designate, authorize, or employ any person to Cuty of the perform the duties of any office, he shall forth with notify the Secretary, in Secretary of the Treasury thereof; and it shall be the duty of the Secretary of the Treasury thereupon to communicate such notice 10 all the proper accounting and disbursing officers of his depart

"9. No money shall be paid or received from the treasury, or What re. paid or received from or retained out of any public moneys or funds strictions as of the United States, whether in the treasury or not, to or by or for the benefit of any person appointed to or authorized to act in or bolding or exercising the duties or functions of any office contrary to the provisions of this act; nor shall any claim, account, voucher, order, certificate, warrant, or other instrument, providing for or relating to such payment, receipt, or retention, be presented, passed, allowed, approved, certified, or paid by any officer of the United States, or by any person exercising the fiunctions or performing the duties of any office or place of trust under the l'nite States, for or in respect to such office, or the exercising or perform. ing the functions or duties thereof; and every person who sha!! violate any of the provisions of this section shall be deemed guilt: What of a high misdemeanor, and, upon trial or conviction thereof, shall penalty for be punished therefor by a fine not exceeding ten thousand dollars. or by imprisonment not exceeding ten years, or both said punishments, in the discretion of the court.” Passed over the President's 14 Stats. 430. reto, 2 March, 1867.

See the Debates in 1789, on the question Whether the heads of Are the departments were “inferior officers?" i Lloyd's Debates, 480-600; Cabinet in 2 Id. 1-12. The result of the debate seems to have been that they were not. (Rawle's Const. ch. 14, pp. 163, 164; Sergeant on the Const. ch. 29 (ch. 31); see President Monroe's Message of 12th April, 1822.) Story's Const. § 15:36–1579. The President was overruled by the Senate, which contended that, as Congress pos. 191. gessed the power to make rules and regulations for the land and naval forces, they had a right to make any wliich would promote the public service; that ('ongress fixes the promotions, and every promotion is a new appointment, which requires ratification. (Sergeant's Const. ch. 29) (ch. 31.)

The power to nominate does not naturally or necessarily include the power to remove; and if the power to appoint does include it. then the latter belongs conjointly to the executive and Senate. Story's Const. § 1538. It results, and is not separable from the appointment itself. (Er parte Hennen, 13 Pet. 213.) Story's Const. § 1538; Federalist. No. 77.

The power to remove by the President was affirmed during the admiristration of President Washington by the casting vote of the Vice-President. Senate Journal, July 18, 1789, p. 42.

The question was much agitted again during the administration of President Jackson. Finally the power has been denied, in the shape of the tenure of office bill, during the administration of

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421, 426. President Johnson, because of the peculiar attitudes of a Pres.

ident and a Congress elected at the same time, and upon the same platform of principles. Without pretending to assert posi. tively the constitution:lity of the law, the editor ventures to pie. Cict, that no political party will ever entirely remove the restrictions, and learn the tenure of office wholly and exclusively at the will of the President. The real evil results from the too great patronage in the liands of the executive, and the corrupting intinences, for a long time so openly employed, by the distribution of federal patronage to control State elections. Tlie eril couid only be reached and Presidential elections rendered peaceful and safe by an organic change, which would place the choice of federal magistrates where the constitutions of the States have generally placed them—in the hands of the people If time has demon. strated that the elective democratic principle may be leit to the wisdom of choice, why could not the rule apply to many grades of

federal officers ? What in: [3.] The President shall have power to fill up all power Pacancies? vacancies that may happen during the recess of the 184, $ 3. Senate, by granting commissions which shall expire at

the end of their next session. If the vacan- 185. "ALL VACANCIES THAT MAY HAPPEN DURING THE RECESS cies occur

OF THE SENATE.”—Mr. Wirt, in 1823, Mr. Taney, in 1832, and Mr. during the

Legare, in 1841, concur in opinion that vacancies first occurring

during the session of the Senate may be filled by the President in 425,

the recess. Mr. Mason, in a short opinion given in 1845. Jield that 426 vacancies known to exiit during the session could not be filled it

the recess: but in a more elaborate opinion, written in 1846, ho

expresses general concurrence with his three predecessors. Ail 82.

these concurring opinions give a construction to the meaning of the words; and they agree that these words are not to be confined to vacancies which first occur during the recess, but may apply to vacancies which first occur during the session and continue in the

recess. Attorney-General Stanbery on the President's power in 449, 455. the matter of appointments to office, 30th Aug. 1866, 12 Op. 32. How may 1. The vacancy may not have become known durin, the the vacancy recess; 2. It may have occurred by the failure of the Senate to occur?

act upon a nomination : 3. Or, upon a nomination and confirmation, where the party so nominated and confirmed refuses in the recess to accept the office; 4. Or by the rejection of the nominee of the President in the last hour of the session; 5. Or by the

failure of the President to make a nomination during the session 148. or after a rejection of his nominee. Id. What means The subject-matter is a vicancy. implies duration—a condi" that may tion or state of things which may exisi. I incline 10 think, happen"

upon the mere words, that we might coustrue them precisely as if the phrase were, "If it happen that there is a vacanes is the recess," or, “If a vacancy happen to exist in the rocess." Id. 5, 6.

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