Constitution to take care that the laws be faithfully executed it was indispensable that all executive officers should depend upon him.

187. It was replied, that, it was an assumption wholly gratuitous, to say, the power to remove was incident to the power to appoint; the one being readily separable from the other, as was apparent, by the Constitution itself, under which the President and Judges were appointable by one power, and removable by another; by the applicability of impeachment for removal, in all cases; and by the assignment of the power of removal to other than the persons who appoint, in various manners, under the State Legislatures: That, the power to remove, could not be deemed, exclusively, an executive power, since, even the power to appoint was exercised by the State Legislatures; and Congress might vest it in certain cases, in the judiciary, under the Federal Constitution: That, if it were an executive power, it must be given by the Constitution, since no department possessed any power not derived from that instrument, and whether it were so derived, was the matter at issue: That, if the removing power were incident to the appointing power, it did not pertain to the President alone, as the appointing power was in him and the Senate, conjointly: That, history forbade us to presume, the incorruptibility of any individual, however exalted; that he would not aim to increase his power, or that he would be superior to the evil passions common to our nature: That, the responsibility imputed to the President, was ideal; he was not punishable for the acts of any of his appointees; and even the responsibility for their appointment was divided with the Senate; that if responsibility rested on the power to remove, that power being denied, the responsibility ceased: That, the duty to superintend the execution of the laws, was to be performed as all other executive duties, by means supplied by the Constitution; and the averment that this was a constitutional mean, was but a begging of the question.

188. II. It was contended, that, if the power to remove, were incident to that of appointment, it vested in the President and Senate, as the President alone could only nominate; to appoint, required the advice and consent of the Senate. This view was sustained by the Federalist, (No. 77.)

It was also contended, that, not only was there no expression in the Constitution giving the President the power of removal from office, but that the contrary is strongly implied; for it is said, that, Congress may establish offices by law, and

vest the appointment, and consequently the removal in the President alone, in the courts of law, or heads of departments; showing that Congress was not at liberty to inake any alteration, by law, in the mode of appointing superior officers; and, consequently, not at liberty to alter the manner of removal: That, the Senate was a permanent body, so constructed as to give durability to public measures; that permanency was designed and desired in the magistracy, and, therefore, the Senate was combined in the appointment to office, and should be, in the removal. For, if the President alone have the power of removal, he may, at any time, destroy whatever has been done. Such a principle would be destructive of the intention of the Constitution, expressed by giving a participation in the power of appointment to the Senate; and would, also, subvert the clause, which gives to that body the sole power of trying impeachments; because, the President may remove the officer, in order to screen him from the effects of their judgment or impeachment.

189. It was objected, that the Constitution no more gave the power of removal to the President and Senate, than to the President alone; that, if the appointing power were in them, still it must be determined, that the removing power was incident to the appointing power: That, to require the concurrence of the President and Senate, in the removal of an officer, was highly inexpedient-for that, in all cases of removal, the President must accuse to the Senate; and every question of removal might become a trial of the accuser, as well as of the accused; that, the dignity and usefulness of the President must necessarily be, in either case, diminished; and that such joint power could be conveniently exercised, only, by the constant session of the Senate; as cases might arise, that would require action, before the Senate could be assembled.

190. III. A third party contended; That the case was provided for in the Constitution; the 18th clause, Sec. 8, Art. 1, giving Congress power to make all laws which shall be necessary and proper for carrying into execution the powers granted by the Constitution, and thereby vested in the Government of the United States, or any department or office thereof: That, the necessity of the power of removal, otherwise than by impeachment, was universally admitted: That, the power of creating offices is given to the Legislature, which under this grant may determine their organization, affix the tenure, and declare the control; may provide, that, the office be

held for any term of years, and that the incumbent be removable by the President, the President and Senate, the Legislature, or otherwise: That, Congress might adapt this power to all cases; giving it to the President, absolutely, where absolute and instantaneous control was necessary over the agent; as in the case of a diplomatic minister; limiting it to suspension, only, where time and circumstances would admit of due inquiry, into the propriety of removals; or vesting it, in proper cases, absolutely, or qualifiedly, in heads of departments or other officers: That, under this construction, it would not be necessary to concede the dangerous ground, that, the President possessed all executive power, and that being responsible for the conduct of all executive officers, held the threads of their destiny in his hands, to clip at pleasure: That, if the power of removal be granted by the Constitution, as seemed to be admitted on all hands, and was not given to the President, nor to the President and the Senate, it must vest in the Legislature, consisting of the House of Representatives, the Senate and the President; it being the very essence of legislative power to create officers, to prescribe their duties, to fix their tenure, and to determine what kind and degree of malversation shall be sufficient ground for dismissal from office.

191. This construction, which seems to us the only sound one, was, we think, feebly opposed. It was alleged, that this was a case omitted in, or provided for, by the Constitution; and that, in either view, the legislature had nothing whatever to do with it. If it were omitted, Congress by attempting to supply the power would amend the Constitution; which it had no right to do in this mode. But this argument, would deprive Congress of all the powers necessary and proper to carry the Constitution into effect. If it were provided for, Congress ought not to legislate upon that, which was already settled by the Constitution. But, if the power were given by the Constitution, the difficulty lay in determining to what department it was given.

192. At the time this question came up for decision, no experience could have been had, upon it, in the General, or State, Governments. In the Constitution of one of the latter, at least, and perhaps in others, expressions similar to those of the Constitution of the United States occur.

193. By the Constitution of Pennsylvania, "The Supreme Executive power of the Commonwealth shall be vested in the Governor;" "who shall appoint all officers whose offices are

established by the Constitution or shall be established by law, and whose appointments are not by the Constitution otherwise provided for." Now, these provisions present a stronger case in favour of the Executive, than those of the Constitution of the United States; inasmuch, as under the latter instrument, the legislature is expressly empowered to "vest the appointment of such inferior officers as they think- proper, in the President, alone, in the courts of law, or in the heads of departments.'

Under the Constitution of Pennsylvania, by construction alone, the Governor is holden to possess the right of removal from office; and in practice, the commissions of all officers holden at his will, are deemed to expire with his term of office; or at least, to require the authority of the new Governor, which is usually given by proclamation, to continue them in force; and a new commission is, we believe, issued for every such officer, by every new Governor, if not by every Governor upon re-election. The consequence of this is, a perpetual contest of parties for the possession of the instrument of appointment; the Governor being, commonly, we might say almost without exception, the mere tool of the party, that selects him; without discretion and without dignity; swayed with regard to the appointments of each county, not by the fitness of the candidates, but the recommendation of his partisans; and the officers selected, perfectly conusant of the quality which determined their appointments, are the humblest slaves of the Governor, so long as he is the candidate of the dominant party. At every change of the Executive, especially if such change be the consequence of a change of party power, the scramble for offices, the paltry intrigues, of which the appointor and the appointee are parties, are most shameful and disgusting. Yet, whenever the Legislature deems proper, it takes away from the Executive the power of removal, or qualifies it with conditions.

Thus, of the great offices of State, to which the Governor by the Constitution appoints, the Legislature has modified the tenure, and has taken to itself the power of removal. In minor offices, they have also taken from the Governor, or have qualified, the power of removal. And thus, they have conclusively shown, that neither by the power to appoint, nor by the duty to take care that the laws be faithfully executed, which is also imposed upon him, is the power to remove from office, under a grant similar to that given by the Constitution of the United States, exclusively and inseparably, vested in

the Executive. This is not a conclusive argument, we admit, against the construction given to the Constitution of the United States; but it is high presumptive evidence that a different construction may be safely adopted.

194. Still, the debate on this subject ended in Congress, in the House of Representatives, and in the Senate, in the latter body, by the casting vote of the Vice President, the elder Adams, by the recognition of the power of the President to remove from office, all persons holding appointments from him. This conclusion, which fortunately is not binding upon the present or a future Congress, was attained under deceptive circumstances and erroneous opinions. All parties were conscious of the importance of the subject before them. Those who denied the power, seem also to have had a prophetic view of the future; whilst those who supported it, professed to believe, that the halcyon present would never change, and that all future Presidents would be Washingtons.

195. The former averred, that they were about to declare a power in the President, which might be, thereafter, greatly abused; That, the country was not always to expect a Chief Magistrate, in whom it could place such entire confidence as in Washington, and that it ought, therefore, to look forward to a period, when this power might be in the hands of an ambitious man, who might apply it to dangerous purposes;—who might from caprice remove the most worthy man from office; whose will would be the only tenure, by which office would be held, and when, consequently, every officer would become the dependent, the abject slave of the President, and when men of reputation and honour would shun office as they would the degradation of slavery. But the case, they said, might also be looked at in another aspect. The removal might be made by a President, improperly, though without malicious motives. He might have about him, men, who were envious of the honours and emoluments of persons in office, men, who might, even use him as an instrument to effect sinister purposes, and who might insinuate suspicions into his honest breast, and thus produce the removal of incumbents who stood in their way.

They predicted, that, the President would, by these means, obtain the control and disposition of the Treasury: That, the Constitution gave him the command of the military, and that with the head of the Treasury Department at his mercy, he would soon be master of the liberties of the country: That, if he desired to establish an arbitrary authority, and found the