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of district judge, the letter which is contained | apprehended, it will be important to give to it in the record.

a careful attention. This letter demands the earnest attention of It originated in the House of Representatives, the court.

and grew out of a clause in the bill which pro1. It purports to be an act of removal of vided for the organization of an executive deMr. Hennen from the office which he held, and partment, to be styled “The Department of For. the appointment of Mr. Winthrop as his suc- eign Affairs.". This bill contained a clause cessor.

which provided that the secretary should be re2. It contains the highest testimonials to the movable by the President. It appears to have qualifications of every kind of Mr. Hennen for been discussed in committee before the debate the office which he held, and the fidelity and occurred in the House; and it was, therefore, skill with which he had discharged its duties. not taken up in the House as entirely a new

3. It assigns, as the only reason for the ex- question, but one to which the attention of ercise of the power with which he claims to be members had already been directed. The de. invested as a public officer, "a sense of duty, bate continued several days; and from the very and feelings of kindness towards one, between full and accurate report recently furnished to whom and himself the closest friendship had the public (1 Gales & Seaton's Register of ever existed.” He considers the claims of his Debates, 473), four entirely distinct opinions personal friend to every benefit in his power to may be perceived to have existed in relation confer in the exercise of his official functions, to the subject. "as of a paramount character.”

1. That inasmuch as under the Constitution This letter, then, raises for the consideration the Senate were to participate in appointing to of the court three distinct propositions.

office, it must also have an equal participation 1. That, by law, the district judge possesses in the act of removal. Messrs. White, Sherthe power, acting ministerially, not judicially, man, Jackson, Stone, Gerry, and others, mainto remove from office the clerk of the District tained this doctrine. Court.

2. That as the Constitution did, in terms, 2. That he may lawfully exercise this power, provide for the removal of officers, by the procat his own absolute will, in the case of a public ess of impeachment, for certain specified officer of acknowledged merit and undoubted causes, removal in any other manner, or for any qualifications, in the absence of any act of mis- other cause, was impliedly included. Messrs. feasance or nonfeasance.

Smith and Huntingdon were among the most 3. That he may lawfully employ a power prominent who asserted this proposition. confided to him as a public officer, for public 3. That as Congress possessed the power of purposes, as a means of gratifying the calls of creating the office, it was competent for the private friendship; and that in the exercise of legislative department to prescribe its duration, such an authority, he recognizes the claims of and the manner in which, and the power by personal friendship as of a paramount charac- whom, the officer might be removed." Messrs. ter.

Lawrence, Jackson, Lee, Sylvester, and others, Such are the doctrines promulgated by the concurred in this view of the subject. learned judge. How far they are correct it is 4. That as an incident to the executive power, for this court to pronounce. They are at least and a necessary means of enabling him to per new, if they are not equally illegal. They form his own constitutional duties, the power of are at least antirepublican, if they be not also removals belongs exclusively and absolutely to unconstitutional.

the President, when no other tenure of office is 1. The only source from which the power prescribed. Messrs. Madison, *Boudi. [*234 which is claimed can be derived, is the 7th not, Ames, Sedgwick, Vining, Hartley, Clymer, section of the Judicial Act of 1789, 2 Laws Benson, Goodhue, Baldwin, and others, asserted 233*] U. S. *59, which provides that the Su. this to be the true constitutional doctrine. preme Court and the district courts shall have The decision of the House was finally had power to appoint clerks for their respective upon a motion to strike out the clause, which courts. It is a power vested in these courts, in terms conferred the power of removing upon as courts. Does it involve, by necessary in the President, and inserting a clause which plication, the power of removal?

provided for a substitute for the principal offi. The power of removal from office, as an in cer, “whenever he shall be removed by the Pres. cident to the power of appointment, has been ident, or in any other case of vacancy." The much discussed as a political question, from motion to strike out was carried by a vote the period of the first Congress to the present of 31 to 19, and that to insert, 30 to 18. 1 day. Although by many it is considered as a Gales & Seaton's Debates, 600, 601. This desettled question, it is believed that a careful cision of the House of Representatives was conexamination of the proceedings of that Congress curred in by the Senate, by the casting vote will conduct us to the conclusion that, so far of the Vice-President. as regards the case at bar, if any authoritative A difference occurred in regard to the oropinion has been expressed, it is hostile to the ganization of the Treasury Department, bepower now claimed.

tween the two Houses, and it was finally ad. In the Congress of 1789, the question did justed by a species of compromise. The Senate arise, whether or not the President possessed receded from an amendment they had made to the power of removing from office a head of one the House bill, which struck out the clause of the executive departments. The debate on making the secretary removable by the Presithat question elicited the best talents of the able dent, and the House concurred in changing the men who then adorned the House of Represent title which, as originally drafted, designated atives. As that debate has been sometimes the treasury as an executive department. erroneously reported, and as frequently mis The proceedings of the Senate were at that

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period secret, and therefore there exists no rec- in cases of great public exigency, and as a necord of the debates in that body. An examina: essary means of preserving the country from tion, however, of the debate in the House, will impending danger or dishonor; and for causes show that substantially the decision was- the disclosure of which before he acted might

1. That the power of appointment was a con involve the most serious consequences. Nor current one, which the President and Senate does any power exist to accomplish the same exercised concurrently; and that this did not good, and to ward off these dangers, in any by implication vest the power of removal in other mode. The court, however, may arrest these two distinct authorities, as growing out a clerk in his career of misconduct, may enof the expressly granted power.

force obedience to his duties, may punish for 2. That the power of removal belonged to misconduct, may remove for sufficient cause. the President, not simply in consequence of This may all be done judicially. This will be his having an agency in the appointment, but again adverted to in the subsequent part of the as the executive of the nation, compelled to re- argument. sort to agents as the instruments by which he The general proposition was advanced, but was to perform his duties; and being responsi- as confidently denied in the debate in 1789, ble for the conduct of such agents, he must that the power of removal was an incident of necessarily possess the power of appointment the power of appointment. It may be asserted and removal at his own single pleasure. that there is nothing either in the provisions of

It is perfectly manifest, then, that these pro- the Constitution or in the principles of our inceedings of the Congress of 1789 cannot justly stitutions, which countenances the doctrine. be considered as a legislative exposition of By the express terms of the Constitution, the the Constitution that the power of appoint. judges are independent of the appointing powment necessarily implies a power of removal. er. The President is appointed by electors, To the extent to which the case at bar would who, having performed their constitutional carry this doctrine, these proceedings give it not function, are extinct; and have no power or the least countenance.

right to control the conduct of their appointee, It is equally apparent that the arguments ad- or to remove him from his high office. Such, vanced on that occasion in favor of the execu. also, is the case with the Vice-President. The tive power of removal, leave the case at bar senators are appointed by the State legislatures, untouched. While, therefore, we regard with and such appointment is irrevocable. The great respect, the opinions then promulgated by members of the House of Representatives, the fathers of the country and of the Constitu- when once elected, are independent of those tion, and are disposed to leave them wholly whom they represent. In truth, the principle, unquestioned; the distinction between the ques- is nowhere found, except in the executive de: tion then decided, and that now under consid-partment, and in the exercise of political power. eration, is widely different.

There is nothing in the office of clerk of It is conceded that in the exercise of a high a court which requires the application of this political power the President possesses, and principle to him. A court, in making such ought to have a large discretion the *an appointment, exercises not a judi. (*236 235*] *subject of removal. As the executive cial, but a purely ministerial function. Such magistrate of the country, he is the only func- was the understanding of the respondent him. tionary intrusted with the foreign relations of self in this case. He never would or dared to the nation. The Secretary of State and for have assigned as his motive for exercising a eign ministers are the agents through whom he judicial power in a particular mode, that it performs these duties of his office. He is the was done in obedience the paramount duty commander-in-chief of the Army and Navy, and imposed on him by the relations of private the secretaries of these departments are his friendship: To assign such a reason for a juagents in communicating his orders and indicial decision would stamp it with condemna. structions. Being responsible for the manner tion. In performing this merely ministerial in which these high trusts are executed, he function, he was executing a merely naked must, from the very nature of things, be at power. liberty to employ and dismiss at pleasure those A review of the causes which led to this prowhom he employs as his agents. The laws, vision in the Judicial Act, will corroborate therefore, which create those departments, ex: these views. Courts were to be created co-expressly recognize this relationship and this contensive with the Union. Casualties might octrol. Act of 27th July, 1789, establishing the cur which would leave the office vacant, and Department of Foreign Affairs; Act of 7th the most serious consequences might result August, 1789, establishing the Department of from leaving the place unfilled until the PresiWar; and the Act of 30th April, 1798, estab- dent could be notified of the fact, and make a lishing the Navy Department.

new appointment. In the country from which Widely different is the relation which sub- we have borrowed so many of our constitusists between the court and its clerk. The lat. tional and legal doctrines, the same practice ter is in no respect the agent of the former. extensively prevailed. It is believed it generHis duties are prescribed by law. He gives ally existed among the colonies. Wherever it bond to the United States for the security of did prevail, the power of appointment was con: those whose interests may be affected by his sidered as a naked power, which was exhausted malconduct. The court which appoints him is by the act of itself, and then slumbered until in no sense responsible to those who may be another vacancy awakened it again to life. injured by his malpractices.

As a general principle of the common law, Another palpable difference exists between in all cases of appointments under powers, the the cases. The President may have occasion appointment is not revocable unless expressly io exercise this power of removal summarily,' made so at the creation of the power. When


an appointment is made, the party takes, in remove. Avery v. The Inhabitants of Tyring. contemplation of law, immediately from him ham, 3 Mass. Rep. 160. who created the power. An officer thus cre. Such were the principles of law, of general ated is the creature of the law which confers policy, and of individual right, which prevailed the power of appointment, and holds as if his when the Judiciary Act of 1789 was framed; name had been specifically mentioned in the and a reference somewhat in detail to the prostatute. Shower, 523, per Gregory, J. ceedings of that Congress will demonstrate, it

Such powers and such exercises of them, and is believed, the proposition that neither the ju. such results, are usual and familiar. The mar- diciary committee who reported the bill, nor shal or sheriff selects and summons jurors, but the Senate that passed it, nor the House which when once they have entered upon the per- concurred, dreamed that they were conferring formance of their duties, he cannot discharge upon the district judge the power to remove them. In case of an insufficiency of numbers, the clerk, at his own mere capricious will. or the setting aside a verdict, or their discharge The bill originated in the Senate. It was rewithout rendering a verdict, a new exercise of ported by the committee on the 12th of June, the authority being required, the power revives. 1789, and the 22d of the same month was as

This general principle has been for a long signed for the second reading. It was taken series of years adopted in the English law as up for consideration on that day, and was the applicable to all concerned in the administra: subject for discussion during several consecutive tion of justice; to the inferior and ministerial days. While this bill was under the consid. officers, as well as to the judges. Originally, eration of the Senate, that for the organization the king had the appointment of all, for the of the Department of Foreign Affairs was uncourts were emphatically his courts. Per Holt, der debate in the House. That bill was brought Shower, 528, 529. The appointing power was up to the Senate, and a similar motion to that subsequently vested in the courts themselves, which had been discussed in the House, was Ibid, 130; 2 Inst. 425. But, as was distinctly made. The Judiciary Bill passed the Senate asserted in Harcourt v. Fox, Shower, 532, 535, on the 17th of July, before the other was finally the person having the power to make the ap- acted upon. On the 18th of July, the question pointment, having executed that power, hath on the President's power of removal was carried done with the business; he hath no more to do by the casting vote of the Vice-President. with the officer; the clerk of the peace being The judiciary committee of the Senate conin by that constitution which hath limited how sisted of Messrs. Ellsworth, Paterson, Maclay, the clerk shall be estated in his office. Ibid. Strong, Lee, Bassett, Few, Wingate, Carroll, 532. In the case of the Chief Justice granting and Izard. In the vote upon the question of offices in his gift, all that he had to do was to the executive * power of removal they [*238 point out the person who should have the office. stood: for striking out, Few, Izard, Lee, Ma237*] Ibid. 535. The *same great judge com- clay, and Wingate; against it, Bassett, Carroll

, mends the policy of this law: "it seems the Paterson, Strong. It thus appears that of the public good was designed, for it was a great nine members who reported the judicial bill, mischief to have the office so easily vacated.” five entertained the opinion that the President Ibid. 634.

had not the power of removing the Secretary In the course of his learned opinion, Lord of State from office. Holt lays considerable stress upon other consid- With what show of reason can it be inferred erations which are equally applicable to the in direct opposition to the opinions avowed by case at bar. He says: "I am the more inclined these gentlemen in that vote, that they believed to be of this opinion, because I knew the tem that they were conferring by implication upon per and disposition of the parliament at the the judges of the District Court the power of time when this act was made; their design was removing a clerk. With the views they had that men should have places, not to hold pre- taken of the Constitution, it is impossible to cariously or determinable at will or pleasure, believe that such a construction of the law upbut to have a certain durable estate, that they on which they were employed, ever suggested might act in them without fear of losing them." itself to them. Experienced lawyers as they He also considered this expression of the in- were, could they be supposed to innovate so tentions of the Legislature as a contempora- deeply upon the well established principles of neous exposition of the statute. It will be seen the common law; to change so essentially its presently how stringent is the application of wise provisions, and that this result was to be these principles to the case under consideration. accomplished by a remote and questionable im.

Second Hawkins, 100, bk. 2, ch. 10, sec. 38, plication ? contains this general dictum in relation to some The Supreme Court of Pennsylvania has deof the executive officers of the court: "It seems cided that this power of removal, as incident clear that the sheriff or steward having power to that of appointment, has never in this counto place a constable in his office, has, by conse- try been held to exist beyond the executive dequence, a power of removing him.” For this, partment: and does not extend to officers conhe cites Bulstrode, 174. A reference, howev- cerned in the administration of justice. 5 er, to the case reported by Bulstrode, shows Rawle, 203. that the decision was that this power of remov- It must be apparent, then, that the court is al could only be a removal for cause. Accord- not called upon to unsettle or disregard the coning to the principles of the same law, an officer stitutional doctrines adjudged by the Legisla. thus removed without cause, could be re-instat. ture in 1789. The counsel for the relator have ed by the process of mandamus. Bulst. 174; no such wish or design. Independently of the 2 Hawk. 103. So in Massachusetts, it has been weight of authority which sanctioned that de. adjudged that a power to appoint a minister at cision, we are free to confess that were the all times, does not carry with it the power to question now an open one, we should fully con

cur in the decision then made. We cannot be | English law, and contrary to the avowed doclieve that the government could exist a twelvetrine of those who drafted the statute under month under a different rule.

which the power is claimed. Upon all these Unless, then, we can satisfy the court that grounds, separately so strong, and in their joint the decision then made leaves this case wholly authority so conclusive, it is submitted that the unaffected, we bow to that authority. But in first point in the argument is established—that our judgment, the argument of Mr. Madison is as a ministerial power, growing out of the auconclusive; and there is every reason to believe, thority to appoint, it does not belong to the as well from tradition as from the report of th

district judge. debate itself, that that argument was mainly 2. The second point contended for on behalf instrumental in bringing about the result. Mr. of the relator is, that admitting the power of Madison did not rest his argument principally removal to reside in the district judge, yet the upon the ground that the power to remove was act of removal of Mr. Hennen was not a legal an incident of the power to appoint. He pro exercise of a legal authority, but a palpable ceeded upon the principle that the relation of and gross abuse; that such abuse is, per se, illeprincipal and agent existed between the Presi- gal, and cannot operate to deprive the relator of dent and the secretary. That such a power his office, or to confer the rights of office upon was essential to enable the former to perform Mr. Winthrop. his own constitutional duties. That he was re In general, the motives which stimulate men sponsible to the country for the acts of his to act, excepting so far as they are apparent in agents. That no other power existed which the act itself, are inscrutable to human ken. could guard against the mischiefs and dangers The motive is sometimes, however, worse than that might threaten the nation, if one of these the mere act itself would indicate, as in the cel. high functionaries should become faitbless or ebrated case decided under the Conventry Act; incompetent.

in which one brother, indicted for an assault That argument leaves this question un. upon another with intent to main and disfig. touched. The clerk is not in any sense the ure, had the audacity to defend himself upon agent of the court. The doctrine of responsi- the ground that his intention was to kill. bility does not exist. The clerk may be con In the present case, the learned judge, with trolled by the judicial power of the court. He more frankness and prudence in the very act may be adjudged, on familiar principles of the of dismissing the relator, bestows upon him common law, to forfeit his office by breach of the highest eulogium, declares him methodical, 239*) the condition annexed *to it by mis- prompt, skillful and *upright, in the [*240 feasance or nonfeasance. 1 Hawk. 412. He may discharge of his duties, and assigns as the mo. be punished by process of attachment, for å tive of his conduct the paramount claims of contempt in not obeying the lawful orders of personal friendship. The question, then, is dis. the court, even under the mitigated law, as it tinctly presented whether, when such objects exists since the Act of March, 1831. 8 Laws and such motives are avowed, the act can be U. S. 488.

deemed a legal and constitutional exercise of The possession of this ample judicial con power; or whether it be not a gross and lag. trol excludes the idea that the judge by virtue rant abuse which invalidates the act. of the power of appointment, a power minis Such a proceeding as that presented by the terial and not judicial, can remove the clerk at record, is a clear violation, by the judge, of his his own will and pleasure. He can oust him oath of office. He is required by law to take from office for good cause; there is therefore no an oath that he will "faithfully and in partial. room for implying a power to remove him with ly discharge and fulfil all the duties incumbent out cause. He may eject an officer who is in. upon him as district judge, according to the competent, who neglects to perform his duties, best of his abilities and understanding.” 2 or who abuses the trust reposed in him; this Laws U. S. 59, sec. 8. The phraseology of takes away the necessity for vesting in him, by this oath marks clearly the manner in which he implication, a power of removal; which, if ex. is to execute all the powers confided to him of. ercised under any other circumstances, or in ficially. any other cases, must involve, as in this case, Here, again, we may advert with advantage a flagrant breach of public duty, and a flagrant to the debate in the House of Representatives abuse of power. Powers are only implied from in 1789. Mr. Lawrence (1 Gale & Seaton's necessity. If no cogent reason exists why that Debates, 504), in an early stage of the debate which is not in express terms granted, should remarked: “If the President abuses his trust, yet pass by implication, such a construction is will he escape the popular censure! And would not to be favored.

he not be liable to impeachment for displacing It has been shown that this authority is a worthy and able man, who enjoyed the connot conferred upon the judge in any larger fidence of the people.” Mr. Madison (p. 617) grant, or as a necessary means to perform his observed: “The danger, then, consists merely own positive duties, as in the case of the Presi- in this, that the President can displace from dent: that it does not grow out of the relation office a man whose merits require that he should of principal and agent, as in that case, and that, which the President can feel for such abuse of

be continued in it. What will be the motive without invoking the aid of this strained con his power, and the restraints that operate to struction, the superintending power of the prevent it? In the first place, he will be im. court, acting within its appropriating sphere, peachable by the House, for such an act of and in conformity with its ordinary rules, is maladministration; for I contend that the ample for every lawful or useful purpose: that wanton removal of meritorious officers would such a construction is not in analogy to the subject him to impeachment and removal from principles of our institutions; that it is at vari. his own high trust.” Mr. Vining (p. 631) reance with the wise and liberal principles of marked that, “if the President removes a value

ble officer, which seems to be the great danger king shall be ordained or made for any gift the gentleman from South Carolina apprehends, or brokage, favor or affection, nor that any it would be an act of tyranny which the good which pursueth by him or any other, privily sense of the nation would never forget.” And or openly to be in any manner of office, sha il Mr. Baldwin (p. 580) pronounces such an act be put in the same office or any other; but "an abuse of power." Not one gentleman who that all such officers shall be made of the best participated in the debate dissented from these and most lawful men and sufficient: a law views.

worthy to be written in letters of gold, but We hold this to be the sound constitutional more worthy to be put in due execution. For doctrine. It is a vital principle of our institu- certainly never shall justice be duly admintions. To assert the contrary, is to confound istered, but where the officers and ministers power with right, and involves the absurdity of justice be of such quality, and come to their of making every exercise of power a rightful offices in such manner as by this law is reand lawful exercise.

quired.” The President has the power to interpose his The act, then, does not depend exclusively veto upon any act of Congress; were he, in the for its legality merely upon the fact that it is exercise of this high function, to avow his con within the power which the party possesses. viction that the law submitted to him was just | An abuse of a legal authority is illegal, an and proper, demanded by the wants of the com abuse of constitutional power a high misdemunity and the voice of the nation, and meanor. In the opinion of some of the most that no constitutional objection could be urged eminent men our country has produced, the against it, but that under the impression it very act which is the subject of our present might materially affect the interests of individ. consideration constitutes an impeachable of. uals, towards whom he cherished feelings offense. That conduct which is impeachable, affection, he had recognized the paramount cannot be legal. An illegal exercise of a power claims of private friendship, and vetoed the is a nullity, and void. bill, who could doubt that he had violated his Nor does this doctrine rest merely upon these high trust, grossly abused the power reposed authorities, venerable and respectable as they in him, and merited the severest punishment are. Chancellor Kent (1 Kent's Com. 288, the violated laws of his country could inflict ? 289) recognizes the doctrine that for an abuse

Did a judge assert the same paramount influ- of the executive trust the President is impeach241*) ence as furnishing *him with a motive able, and he considers it as an abuse of his to award judgment against a party whose legal | "authority to violate the Constitution (* 242 rights he at the same time recognized, can a or law of the land. Judge Story (Com. on doubt exist that he would meet with the appro. Const. sec. 788), speaking of the President, priate recompense ?

says, “if he ventures upon a system of favoritThis principle extends throughout the entire ism he will not escape censure, and can scarcesphere of official duty; it is applied by courts ly avoid public detection and disgrace." Sec. in the administra'ion of private justice. In | 789. “It should never be forgotten that in a M'Queen v. Farquhar, Lord Eldon observes, republican government offices are established “it is truly said this court will not permit a and are to be filled, not to gratify private in. party to execute a power for his own benefit. terests and private attachments; not as In Lord Sandwich's case, a father, having the means of corrupt influence or individual profit; power of appointment, and thinking one of his but for purposes of the highest public good." children was in a consumption, appointed in In sec. 792, we are told that "it is the duty of favor of that child; and the court was of opin. the President,” among other things “to disreion that the purpose was to take the chance of gard the importunities of friends; the hints getting the money as administrator of that or menaces of enemies; the bias of party, and child."

the hope of popularity.” Sec. 794. The courts If such an act would invalidate the exercise of the Union possess the narrow prerogative of a power involving the pecuniary interest of of appointing their own clerk and reporter a citizen, must it not work the same result, without further patronage. No intimation is when an individual abuses a public trust con given of the power to remove at pleasure. In fided to his hands from considerations of the contrast with this narrow prerogative, this disgeneral good? Can there result any injury or tinguished judge contrasts the exorbitant powwrong from carrying out, in every case, the er, grown up from a small “seminal principle” pure principles of private morality and fidelity of the Postmaster-General; of which he says, in the discharge of a trust?

"the great anomaly in the system is the enorThis doctrine has long been engrafted into mous patronage of the Postmaster-General, the English law. Lord Coke in his first Insti. who is invested with the sole and exclusive tute (1 Thom. Coke on Litt. 239, 240) says: authority to appoint and remove all deputy. "There be at this day more conditions in law postmasters." Finally (in sec. 798), he adopts annexed to offices than there were when Little to the fullest extent the opinions of Madison ton wrote; for example, for offices in any way and others as pronounced in 1789, and declares touching the administration of justice, or clerk- that "removals from office with a view to be. ship in any court of record,” etc. "For if any stow the oflice upon a dependent or favorite of these officers bargain or sell any of their of- is an impeachable offense.” fices, or any deputation of the same," etc., “he Fortified in our positions by this array of shall not only forfeit his estate, but be ad. authority, we have felt no hesitation in assert. judged a disabled person to have or enjoy the ing that the act of removal attempted to be ex. same office," etc. "Therefore,” he concludes ercised in this case, is a clear abuse of power, the subject, "by the law of England it is fur- if the authority indeed exists; is a palpable ther provided, that no officer or minister of the violation of duty, and subjects the offending



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