This letter demands the earnest attention of the court.

1. It purports to be an act of removal of Mr. Hennen from the office which he held, and the appointment of Mr. Winthrop as his suc

cessor.

2. It contains the highest testimonials to the qualifications of every kind of Mr. Hennen for the office which he held, and the fidelity and skill with which he had discharged its duties.

3. It assigns, as the only reason for the exercise of the power with which he claims to be invested as a public officer, "a sense of duty, and feelings of kindness towards one, between whom and himself the closest friendship had ever existed." He considers the claims of his personal friend to every benefit in his power to confer in the exercise of his official functions, "as of a paramount character."

This letter, then, raises for the consideration of the court three distinct propositions.

1. That, by law, the district judge possesses the power, acting ministerially, not judicially, to remove from office the clerk of the District Court.

2. That he may lawfully exercise this power, at his own absolute will, in the case of a public officer of acknowledged merit and undoubted qualifications, in the absence of any act of misfeasance or nonfeasance.

3. That he may lawfully employ a power confided to him as a public officer, for public purposes, as a means of gratifying the calls of private friendship; and that in the exercise of such an authority, he recognizes the claims of personal friendship as of a paramount character.

Such are the doctrines promulgated by the learned judge. How far they are correct it is for this court to pronounce. They are at least new, if they are not equally illegal. They are at least antirepublican, if they be not also unconstitutional.

1. The only source from which the power which is claimed can be derived, is the 7th section of the Judicial Act of 1789, 2 Laws 233*] U. S. *59, which provides that the Supreme Court and the district courts shall have power to appoint clerks for their respective courts. It is a power vested in these courts, as courts. Does it involve, by necessary im plication, the power of removal?

The power of removal from office, as an incident to the power of appointment, has been much discussed as a political question, from the period of the first Congress to the present day. Although by many it is considered as a settled question, it is believed that a careful examination of the proceedings of that Congress will conduct us to the conclusion that, so far as regards the case at bar, if any authoritative opinion has been expressed, it is hostile to the power now claimed.

In the Congress of 1789, the question did arise, whether or not the President possessed the power of removing from office a head of one of the executive departments. The debate on that question elicited the best talents of the able men who then adorned the House of Representatives. As that debate has been sometimes erroneously reported, and as frequently mis

It originated in the House of Representatives, and grew out of a clause in the bill which provided for the organization of an executive department, to be styled "The Department of Foreign Affairs." This bill contained a clause which provided that the secretary should be removable by the President. It appears to have been discussed in committee before the debate occurred in the House; and it was, therefore, not taken up in the House as entirely a new question, but one to which the attention of members had already been directed. The debate continued several days; and from the very full and accurate report recently furnished to the public (1 Gales & Seaton's Register of Debates, 473), four entirely distinct opinions may be perceived to have existed in relation to the subject.

1. That inasmuch as under the Constitution the Senate were to participate in appointing to office, it must also have an equal participation in the act of removal. Messrs. White, Sherman, Jackson, Stone, Gerry, and others, maintained this doctrine.

2. That as the Constitution did, in terms, provide for the removal of officers, by the process of impeachment, for certain specified causes, removal in any other manner, or for any other cause, was impliedly included. Messrs. Smith and Huntingdon were among the most prominent who asserted this proposition.

3. That as Congress possessed the power of creating the office, it was competent for the legislative department to prescribe its duration, and the manner in which, and the power by whom, the officer might be removed. Messrs. Lawrence, Jackson, Lee, Sylvester, and others, concurred in this view of the subject.

4. That as an incident to the executive power, and a necessary means of enabling him to perform his own constitutional duties, the power of removals belongs exclusively and absolutely to the President, when no other tenure of office is prescribed. Messrs. Madison, *Boudi- [*234 not, Ames, Sedgwick, Vining, Hartley, Clymer, Benson, Goodhue, Baldwin, and others, asserted this to be the true constitutional doctrine.

The decision of the House was finally had upon a motion to strike out the clause, which in terms conferred the power of removing upon the President, and inserting a clause which provided for a substitute for the principal officer, "whenever he shall be removed by the President, or in any other case of vacancy." The motion to strike out was carried by a vote of 31 to 19, and that to insert, 30 to 18. Gales & Seaton's Debates, 600, 601. This decision of the House of Representatives was concurred in by the Senate, by the casting vote of the Vice-President.

1

A difference occurred in regard to the organization of the Treasury Department, between the two Houses, and it was finally adjusted by a species of compromise. The Senate receded from an amendment they had made to the House bill, which struck out the clause making the secretary removable by the Presi dent, and the House concurred in changing the title which, as originally drafted, designated the treasury as an executive department.

The proceedings of the Senate were at that

period secret, and therefore there exists no record of the debates in that body. An examination, however, of the debate in the House, will show that substantially the decision was

1. That the power of appointment was a concurrent one, which the President and Senate exercised concurrently; and that this did not by implication vest the power of removal in these two distinct authorities, as growing out of the expressly granted power.

2. That the power of removal belonged to the President, not simply in consequence of his having an agency in the appointment, but as the executive of the nation, compelled to resort to agents as the instruments by which he was to perform his duties; and being responsible for the conduct of such agents, he must necessarily possess the power of appointment and removal at his own single pleasure.

It is perfectly manifest, then, that these proceedings of the Congress of 1789 cannot justly be considered as a legislative exposition of the Constitution that the power of appointment necessarily implies a power of removal. To the extent to which the case at bar would carry this doctrine, these proceedings give it not the least countenance.

It is equally apparent that the arguments advanced on that occasion in favor of the executive power of removal, leave the case at bar untouched. While, therefore, we regard with great respect, the opinions then promulgated by the fathers of the country and of the Constitution, and are disposed to leave them wholly unquestioned; the distinction between the question then decided, and that now under consideration, is widely different.

It is conceded that in the exercise of a high political power the President possesses, and ought to have a large discretion on the 235] subject of removal. As the executive magistrate of the country, he is the only functionary intrusted with the foreign relations of the nation. The Secretary of State and foreign ministers are the agents through whom he performs these duties of his office. He is the commander-in-chief of the Army and Navy, and the secretaries of these departments are his agents in communicating his orders and instructions. Being responsible for the manner in which these high trusts are executed, he must, from the very nature of things, be at liberty to employ and dismiss at pleasure those whom he employs as his agents. The laws, therefore, which create those departments, expressly recognize this relationship and this control. Act of 27th July, 1789, establishing the Department of Foreign Affairs; Act of 7th August, 1789, establishing the Department of War; and the Act of 30th April, 1798, establishing the Navy Department.

Widely different is the relation which subsists between the court and its clerk. The latter is in no respect the agent of the former. His duties are prescribed by law. He gives bond to the United States for the security of those whose interests may be affected by his malconduct. The court which appoints him is in no sense responsible to those who may be injured by his malpractices.

Another palpable difference exists between the cases. The President may have occasion to exercise this power of removal summarily,

in cases of great public exigency, and as a necessary means of preserving the country from impending danger or dishonor; and for causes the disclosure of which before he acted might involve the most serious consequences. Nor does any power exist to accomplish the same good, and to ward off these dangers, in any other mode. The court, however, may arrest a clerk in his career of misconduct, may enforce obedience to his duties, may punish for misconduct, may remove for sufficient cause. This may all be done judicially. This will be again adverted to in the subsequent part of the argument.

The general proposition was advanced, but as confidently denied in the debate in 1789, that the power of removal was an incident of the power of appointment. It may be asserted that there is nothing either in the provisions of the Constitution or in the principles of our institutions, which countenances the doctrine. By the express terms of the Constitution, the judges are independent of the appointing pow er. The President is appointed by electors, who, having performed their constitutional function, are extinct; and have no power or right to control the conduct of their appointee, or to remove him from his high office. Such, also, is the case with the Vice-President. The senators are appointed by the State legislatures, and such appointment is irrevocable. The members of the House of Representatives, when once elected, are independent of those whom they represent. In truth, the principle, is nowhere found, except in the executive department, and in the exercise of political power.

There is nothing in the office of clerk of a court which requires the application of this principle to him. A court, in making such an appointment, exercises not a judi- [*236 cial, but a purely ministerial function. Such was the understanding of the respondent himself in this case. He never would or dared to have assigned as his motive for exercising a judicial power in a particular mode, that it was done in obedience to the paramount duty imposed on him by the relations of private friendship. To assign such a reason for a judicial decision would stamp it with condemnation. In performing this merely ministerial function, he was executing a merely naked power.

A review of the causes which led to this provision in the Judicial Act, will corroborate these views. Courts were to be created co-extensive with the Union. Casualties might occur which would leave the office vacant, and the most serious consequences might result from leaving the place unfilled until the President could be notified of the fact, and make a new appointment. In the country from which we have borrowed so many of our constitutional and legal doctrines, the same practice extensively prevailed. It is believed it generally existed among the colonies. Wherever it did prevail, the power of appointment was considered as a naked power, which was exhausted by the act of itself, and then slumbered until another vacancy awakened it again to life.

As a general principle of the common law, in all cases of appointments under powers, the appointment is not revocable unless expressly made so at the creation of the power. When

Unless, then, we can satisfy the court that the decision then made leaves this case wholly unaffected, we bow to that authority. But in our judgment, the argument of Mr. Madison is conclusive; and there is every reason to believe, as well from tradition as from the report of the debate itself, that that argument was mainly instrumental in bringing about the result. Mr. Madison did not rest his argument principally upon the ground that the power to remove was an incident of the power to appoint. He proceeded upon the principle that the relation of principal and agent existed between the President and the secretary. That such a power was essential to enable the former to perform his own constitutional duties. That he was responsible to the country for the acts of his agents. That no other power existed which could guard against the mischiefs and dangers that might threaten the nation, if one of these high functionaries should become faithless or incompetent.

That argument leaves this question untouched. The clerk is not in any sense the agent of the court. The doctrine of responsibility does not exist. The clerk may be controlled by the judicial power of the court. He may be adjudged, on familiar principles of the common law, to forfeit his office by breach of 239] the condition annexed to it by misfeasance or nonfeasance. 1 Hawk. 412. He may be punished by process of attachment, for a contempt in not obeying the lawful orders of the court, even under the mitigated law, as it exists since the Act of March, 1831. 8 Laws U. S. 488.

The possession of this ample judicial control excludes the idea that the judge by virtue of the power of appointment, a power ministerial and not judicial, can remove the clerk at his own will and pleasure. He can oust him from office for good cause; there is therefore no room for implying a power to remove him without cause. He may eject an officer who is incompetent, who neglects to perform his duties, or who abuses the trust reposed in him; this takes away the necessity for vesting in him, by implication, a power of removal; which, if exercised under any other circumstances, or in any other cases, must involve, as in this case, a flagrant breach of public duty, and a flagrant abuse of power. Powers are only implied from necessity. If no cogent reason exists why that which is not in express terms granted, should yet pass by implication, such a construction is not to be favored.

It has been shown that this authority is not conferred upon the judge in any larger grant, or as a necessary means to perform his own positive duties, as in the case of the President: that it does not grow out of the relation of principal and agent, as in that case, and that, without invoking the aid of this strained construction, the superintending power of the court, acting within its appropriating sphere, and in conformity with its ordinary rules, is ample for every lawful or useful purpose: that such a construction is not in analogy to the principles of our institutions; that it is at variance with the wise and liberal principles of

trine of those who drafted the statute under which the power is claimed. Upon all these grounds, separately so strong, and in their joint authority so conclusive, it is submitted that the first point in the argument is established-that as a ministerial power, growing out of the authority to appoint, it does not belong to the district judge.

2. The second point contended for on behalf of the relator is, that admitting the power of removal to reside in the district judge, yet the act of removal of Mr. Hennen was not a legal exercise of a legal authority, but a palpable and gross abuse; that such abuse is, per se, illegal, and cannot operate to deprive the relator of his office, or to confer the rights of office upon Mr. Winthrop.

In general, the motives which stimulate men to act, excepting so far as they are apparent in the act itself, are inscrutable to human ken. The motive is sometimes, however, worse than the mere act itself would indicate, as in the celebrated case decided under the Conventry Act; in which one brother, indicted for an assault upon another with intent to main and disfigure, had the audacity to defend himself upon the ground that his intention was to kill.

In the present case, the learned judge, with more frankness and prudence in the very act of dismissing the relator, bestows upon him the highest eulogium, declares him methodical, prompt, skillful and upright, in the [*240 discharge of his duties, and assigns as the motive of his conduct the paramount claims of personal friendship. The question, then, is distinctly presented whether, when such objects and such motives are avowed, the act can be deemed a legal and constitutional exercise of power; or whether it be not a gross and flagrant abuse which invalidates the act.

Such a proceeding as that presented by the record, is a clear violation, by the judge, of his oath of office. He is required by law to take an oath that he will "faithfully and inpartially discharge and fulfil all the duties incumbent upon him as district judge, according to the best of his abilities and understanding." 2 Laws U. S. 59, sec. 8. The phraseology of this oath marks clearly the manner in which he is to execute all the powers confided to him of. ficially.

Here, again, we may advert with advantage to the debate in the House of Representatives in 1789. Mr. Lawrence (1 Gale & Seaton's Debates, 504), in an early stage of the debate remarked: "If the President abuses his trust, will he escape the popular censure? And would he not be liable to impeachment for displacing a worthy and able man, who enjoyed the confidence of the people." Mr. Madison (p. 517) observed: "The danger, then, consists merely in this, that the President can displace from office a man whose merits require that he should which the President can feel for such abuse of be continued in it. What will be the motive his power, and the restraints that operate to prevent it? In the first place, he will be impeachable by the House, for such an act of maladministration; for I contend that the wanton removal of meritorious officers would subject him to impeachment and removal from his own high trust." Mr. Vining (p. 531) remarked that, "if the President removes a valua

We hold this to be the sound constitutional doctrine. It is a vital principle of our institutions. To assert the contrary, is to confound power with right, and involves the absurdity of making every exercise of power a rightful and lawful exercise.

The President has the power to interpose his veto upon any act of Congress; were he, in the exercise of this high function, to avow his conviction that the law submitted to him was just and proper, demanded by the wants of the community and the voice of the nation, and that no constitutional objection could be urged against it, but that under the impression it might materially affect the interests of individuals, towards whom he cherished feelings of affection, he had recognized the paramount claims of private friendship, and vetoed the bill, who could doubt that he had violated his high trust, grossly abused the power reposed in him, and merited the severest punishment the violated laws of his country could inflict? Did a judge assert the same paramount influ241*] ence as furnishing him with a motive to award judgment against a party whose legal rights he at the same time recognized, can a doubt exist that he would meet with the appropriate recompense?

This principle extends throughout the entire sphere of official duty; it is applied by courts in the administration of private justice. In M'Queen v. Farquhar, Lord Eldon observes, "it is truly said this court will not permit a party to execute a power for his own benefit. In Lord Sandwich's case, a father, having the power of appointment, and thinking one of his children was in a consumption, appointed in favor of that child; and the court was of opinion that the purpose was to take the chance of getting the money as administrator of that child."

If such an act would invalidate the exercise of a power involving the pecuniary interest of a citizen, must it not work the same result, when an individual abuses a public trust confided to his hands from considerations of the general good? Can there result any injury or wrong from carrying out, in every case, the pure principles of private morality and fidelity in the discharge of a trust?

This doctrine has long been engrafted into the English law. Lord Čoke in his first Institute (I Thom. Coke on Litt. 239, 240) says: "There be at this day more conditions in law annexed to offices than there were when Littleton wrote; for example, for offices in any way touching the administration of justice, or clerkship in any court of record," etc. "For if any of these officers bargain or sell any of their of fices, or any deputation of the same," etc., "he shall not only forfeit his estate, but be adjudged a disabled person to have or enjoy the same office," etc. "Therefore," he concludes the subject, "by the law of England it is further provided, that no officer or minister of the

which pursueth by him or any other, privily or openly to be in any manner of office, shall be put in the same office or any other; but that all such officers shall be made of the best and most lawful men and sufficient: a law worthy to be written in letters of gold, but more worthy to be put in due execution. For certainly never shall justice be duly administered, but where the officers and ministers of justice be of such quality, and come to their offices in such manner as by this law is required."

The act, then, does not depend exclusively for its legality merely upon the fact that it is within the power which the party possesses. An abuse of a legal authority is illegal, an abuse of constitutional power a high misdemeanor. In the opinion of some of the most eminent men our country has produced, the very act which is the subject of our present consideration constitutes an impeachable of fense. That conduct which is impeachable, cannot be legal. An illegal exercise of a power is a nullity, and void.

Nor does this doctrine rest merely upon these authorities, venerable and respectable as they are. Chancellor Kent (1 Kent's Com. 288, 289) recognizes the doctrine that for an abuse of the executive trust the President is impeachable, and he considers it as an abuse of his authority to violate the Constitution [*242 or law of the land. Judge Story (Com. on Const. sec. 788), speaking of the President, says, "if he ventures upon a system of favoritism he will not escape censure, and can scarcely avoid public detection and disgrace." Sec. 789. "It should never be forgotten that in a republican government offices are established and are to be filled, not to gratify private interests and private attachments; not as a means of corrupt influence or individual profit; but for purposes of the highest public good." In sec. 792, we are told that "it is the duty of the President," among other things "to disregard the importunities of friends; the hints or menaces of enemies; the bias of party, and the hope of popularity." Sec. 794. The courts of the Union possess the narrow prerogative of appointing their own clerk and reporter without further patronage. No intimation is given of the power to remove at pleasure. In contrast with this narrow prerogative, this distinguished judge contrasts the exorbitant power, grown up from a small "seminal principle" of the Postmaster-General; of which he says, "the great anomaly in the system is the enormous patronage of the Postmaster-General, who is invested with the sole and exclusive authority to appoint and remove all deputypostmasters." Finally (in sec. 798), he adopts to the fullest extent the opinions of Madison and others as pronounced in 1789, and declares that "removals from office with a view to bestow the office upon a dependent or favorite is an impeachable offense."

Fortified in our positions by this array of authority, we have felt no hesitation in asserting that the act of removal attempted to be exercised in this case, is a clear abuse of power, if the authority indeed exists; is a palpable violation of duty, and subjects the offending