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ing to the law. The principle established by to the tenure by which they are held. 2 Black. these decisions is, that there must be a suit Commentaries, 36, 37. The law of the tenure pending in a court below, and that the of office in England is regulated, not by any act which the inferior court is required principles of ethics, or express provision, but 253*) to perform *must be ministerial in its by immemoral usage. Office is there an incharacter, and necessary to the final termina corporeal hereditament, as a right of way. tion of the cause in that tribunal.

There is, under the common law, an estate in The thirteen cases in which this court refused an office. application for mandamus, are The United But in the United States this is not so. State v. Lawrence, 3 Dall. 42; Marbury v. Madi. There is in this country no estate in any office. Bon, 1 Cranch, 137; M'Cluny v. Silliman, 2 No property in an office. Offices are held for Wheat. 369; Ex-parte Burr, 9 Wheat. 629; The the benefit of the community in which their Bank of Columbia v. Sweney, 1 Peters, 567; | functions are exercised. As to the tenure and Ex-parte Crane, 5 Peters, 190; Ex-parte Rob- nature of office in England, cited, Coke Litt. erts, 6 Peters, 216; Ex.parte Davenport, 6 Pet. 378a; 4 Institute, 117, Coke Litt. 233b. 2 Iners, 661; Ex-parte Bradstreet, 8 Peters, 588; stitute, 388. The New York Insurance Company v. Adams, 9 The position in England is, that unless the Peters, 573; The Postmaster-General v. Trigg, statute which creates the office limits its ten11 Peters, 173; Ex-parte Story, 12 Peters, 339; ure, at the time of the creation, it is an office Poultney v. Lafayette, 12 Peters, 472. The for life, as at the common law. But here no principles established in these cases in regard such principles prevail. The common law does to this writ are these: the Supreme Court will not apply to offices which are all created by the never compel an inferior court, in which a suit Constitution, or by express statute. is pending, to do any act relating either to the It is contended by the counsel for the relator, practice of the court, or the merits of the case, that the power of appointment in the United in regard to which act the inferior court is States is a naked power, as at common law, vested with a judicial discretion; even if they and that the power is at an end when it has are of opinion that the court erred in the exer- been executed. This would determine the power cise of their discretion. Nor will the Supreme after it had been used, and it could not afterCourt interfere with an inferior court in the wards be regained. Is it to be held, in the suspension of its attorneys. Nor will it control United States, that the power to appoint to an executive officer in the discharge of an office gives the appointing power a right to apexecutive function, unconnected with a pend: point for life only? The English doctrine on ing suit; even if they are of the opinion that this subject has nothing to do with the laws of it was improperly exercised.

the United States, where such powers are given If the rules thus laid down by the solemn de only by special enactments. cisions of fifty years, both for allowing and re The case cited from 3 Massachusetts Reports fusing writs of mandamus by this court, be has no application to the case before the court. applied to the present case, it will be evident That case decided no more than that the local that the application of the petitioner cannot be laws of the Colony of Massachusetts made a granted. It has solemnly decided when this settled minister of a congregation a minister process is, and when it is not necessary to aid for life, and the new constitution of the State the appellate jurisdiction of the court; and of Massachusetts had not abrogated that law. these decisions absolutely exclude a case like The question whether, when a new office is that now presented.

created by an act of Parliament, or a statute of Whatever, therefore, may be the legal rights the United States, it is an office for life or not, of the petitioner, or however proper a proceed has never been presented for decision. In this ing by mandamus might be in a court less case the question is presented in its naked simlimited in its duties and constitutional func- plicity. This question has recently been contions, it is submitted that there is nothing in sidered in the Court of Appeals of Virginia. the laws of the land, or in the established The question there was on the removal of a practice of the Supreme Court of the United district attorney, who is appointed by the court. States, which will warrant it in compelling a The officer was removed without fault, and the circuit' or district judge, by mandatory process, question of the right of removal came before to appoint a particular individual as clerk of the Court of Appeals. It was decided that the his court, or to restore him to that office after power was complete. he has been superseded or removed.

The government of the United States was Mr. Jones, also against the motion, present. brought into existence in all its proportions and ed the case to the court on the abstract, legal organization, without any of the relics of the power of the district judge to remove from of. barbarism of the darker ages attached to it. It fice a clerk who was the incumbent, and to ap- has many beauties, and some defects. It is a point another person.

new being starting into life, in all its regulaThe right to remove is an incident to the tions and arrangements. It is not like a statpower of appointment. It is essential to the ute, which is in abrogation of the common law, exercise of the power to appoint, and the pow. but it is independent in itself. It is an experier which is given by the law cannot exist with ment, to be examined by itself. The Constituout this incident.

tion provided for the terms of all offices created If the common law has any bearing on this by it. This has been interpreted so that the question, it is very remote. The Constitution power to appoint has, as incident and inherent of the United States, and the laws made in con in it the *power to remove, when [*255 formity with the provisions of the Constitution, thought proper, unless a special provision has 234") are essentially *different from the com- been made to the contrary. mon law, u to appointments to offices, and us The question is, what are the incidents to the

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power of appointment? If the power to ap: can only look at the question of the power of
point is given, it must be a continuing and the judge to remove, without going into a scru-
constantly existing power; and to be exercised tiny of his motives and conduct.
at the will of the person holding it. The term If there has been corruption in an appoint-
"power to appoint" comprehends this, and ment, the appointment is not thereby vacated.
makes it a continuing power always in vigor. Suppose a judge convicted of fraud in the act

This has been the course of the government of appointment, this does not affect its validity.
of the United States, and it has always been If the President of the United States should be
considered that an officer is displaced when a impeached, would his acts as President be
successor to the office is appointed. This avoided by his conviction?
places in full existence and in a simple form,
the power to appoint; non obstante that the Mr. Justice Thompson delivered the opinion
office is full at the time of the exercise of the of the court:

This is an application for a rule upon the
It is contended that the appointment of a Honorable Philip K. Lawrence, Judge of the
clerk of the District Court is not a judicial act, District Court of the United States for the
but is like the power which, under the Consti- Eastern District of Louisiana, to show cause
tution, is given to the President of the United why a mandamus should not be issued against
States, and is identical in its character with him, requiring him to show_cause why he
that power. The great object and purpose of should not restore Duncan N. Hennen to the of-
the counsel for the relator has been to show fice of clerk of the said District Court.
that the executive of the United States has the The petition sets forth that the petitioner,
power to appoint by the Constitution, and that Duncan N. Hennen, on the 21st day of Febru.
the appointment in this case is not given by the ary, in the year 1834, was duly appointed clerk
Constitution. Cited, as to the nature of the of the said court by the Honorable Samuel H.
power of appointment given by the Constitu. Harper, judge of the said court. That a com:
tion to the President, 5 Marshall's Life of mission was duly issued, under the hand and
Washington, 196.

seal of the judge. That he accepted the apThe discussions in the legislative bodies, soon pointment, and gave the bond with sureties reafter the establishment of the government of quired by law, and thereupon entered upon the the United States, did not draw into question duties of the office, and continued to discharge the power of removal, as incident to the power the same, methodically, skillfully, and uprightof appointment. The only question then ex- ly, and to the satisfaction of the District Court. amined was whether, as the Senate was a part That by virtue of said appointment, and of the of the appointing power, the senate should not provisions of the statute in such case made and concur as to removals.

provided, he was from the period of the organ: The Constitution of the United States de ization of the Circuit Court of the United clares that the executive power is in the Presi- States for the said District of Louisiana, in dent, and the limitation of appointments is a like manner the clerk of the said Circuit Court, diminution of that power, and it is to be strict- and performed all the duties of said office. ly construed. The President is charged with That he continued to perform the said duties, the execution of the laws; and the grant of and receive the emoluments, and in all respects executive power gives to the officer all the to hold and occupy said offices, until on or rights in relation to the execution of the laws about the 18th day of May, in the year 1838, that king or potentates have. This is derived when he received a communication from the from the nature of the duties enjoined on the orable Philip K. Lawrence, then and now office, and the obligation to perform them. the judge of the said District Court of the

It is now settled and established, and the po. United States for the said Eastern District of sition is not to be disturbed, that the President Louisiana, apprising him of his removal from of the United States has the power to remove the said office of clerk, and the appointment of or displace incumbents, as he has the power to John Winthrop in his place. And in this com. appoint to office. This, it is now fully settled, munication he states, unreservedly, that the is a portion of the executive power under the business of the office for the last two years had Constitution; and the right to use and exercise been conducted promptly, skillfully, and upit, in all cases where the tenure of office is not rightly, and that, in appointing Mr. Winthrop otherwise declared by the Constitution and to succeed him, he had been actuated purely by laws, is fully and unquestionably recognized. a sense of duty and feelings of kindness to. It is the universal practice to use the power to wards one whom he had long known, and beappoint, according to the views and wishes of tween whom and himself the closest friendship the person who makes the appointment. The had ever subsisted. And that, as his capacity motives to appoint do not enter into the questo fill the office cannot be questioned, he felt tion of the validity of the appointment. that he was not exercising 'any unjust (* 257

Suppose a judge to give a decision expressly preference in bestowing on him the appoint. on the face of it erroneous, as from favor to one ment. The petition further states that Judge of the parties, and stating this as the induce. Lawrence did, on or about the 18th day of May, 256*] 'ment “to his judgment, and which, ac in the year 1838, execute and deliver to the said cording to his opinion, was against the law; John Winthrop a commission or appointment, would the decision be reversed in this court as clerk of the said District Court for the because of these reasons of the judge, if the de- Eastern District of Louisiana, and that he does cision was right? If it was according to the to a certain extent execute the duties apper. law, this court would affirm the judgment. So taining to the said office, and is recognized by the motives for the removal of the relator can- the said judge as the only legal clerk of the not be inquired into by this court. The court said District Court.

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The petition further states that on or about have power to appoint clerks of their respective the 21st day of May, in the year 1838, the Cir- courts; and that the clerk for each district cuit Court of the United States for the Eastern court shall be clerk also of the Circuit Court District of Louisiana, met according to law; in such district. when the Honorable John MʼKinley, one of the When this law was passed, Louisiana formed associate justices of the Supreme Court of the no part of the United States, and of course had United States, and the said Judge Lawrence, no District Court to which the Act of 1789 appeared as judges of the said Circuit Court, would apply. But by the Act of the 26th of and that the petitioner and John Winthrop, March, 1804, 2 Story's Laws, 933, providing severally presented themselves, each claiming for the temporary government of Louisiana, a to be rightfully and lawfully the clerk of the district court is established; and the law disaid Circuit Court; that the judges differed in rects that the judge thereof shall appoint a opinion upon the said question of right, and be clerk for the said district, who shall keep the ing unable to concur in opinion, neither of said records of the court, and receive the fees proparties was admitted to act as clerk, or recog. vided by law for his services. And a like pronized by the court as being rightful clerk, and vision is made by the Act of April 8, 1812, 2 no business was or could be transacted, and the Story, 1225, passed for the admission of Louiscourt adjourned.

iana into the Union. And by the Act of the 3d The petitioner claims that he was legally and March, 1837, 4 Story, 2538, extending the Cir. in due form appointed clerk of said District cuit court system, and embracing Louisiana in Court, and by virtue of said appointment be- the Ninth Circuit, it is declared that the said came lawfully the clerk of said Circuit Court. Circuit Court shall be governed by the same And that he has never resigned the said offices, laws and regulations as apply to the other cir. or been legally removed from the same, or cuit courts of the United States; and the clerks either of them. But that he is illegally kept of the said courts respectively, shall perform out of the said office of clerk of the said Dis- the same duties, and be entitled to receive the trict Court by the illegal acts and conduct of same fees and emoluments, which are by law the said Philip K. Lawrence, judge as aforesaid, established for the clerks of the other circuit and the said "John Winthrop, claiming to hold courts of the United States. The clerk of the the said office under an appointment from the District Court, therefore, in Louisiana, became said Judge Lawrence, which he is advised and the clerk of the Circuit Court; standing upon believes is illegal and void, and prays that the the same footing in all respects as the clerks of court will award a writ of mandamus, directed the other district courts. His rights or his duto the said judge of the District Court, com- ties were in no respect changed by the estabmanding him forthwith to restore the petition lishment of a circuit court in that State, exer to the office of the clerk of the said District cept that the duties of a clerk of that court Court of the United States for the Eastern Dis- were superadded to those of a clerk of the District of Louisiana.

trict Court. And this was by express provision The district judge has appeared by counsel of law, and required no act on the part of the to oppose this motion, and the facts set out in Circuit Court to constitute him clerk of that the petition have not been denied. And the court. question presented to the court is, whether the Such, then, being the situation in which the petitioner has shown enough to entitle him to petitioner stood prior to the 21st of May, 1838, à rule to show cause why a mandamus should the question arises whether the district judge not issue. If he has been legally removed from had the power to remove him, and appoint anthe office of clerk, there are no grounds upon other clerk in his place. which the present motion can be sustained. The Constitution is silent with respect to the

By the Constitution of the United States power of removal from office, where the tenure (art. 2, sec. 2), it is provided that the Presi. is not fixed. It provides that the judges, both dent shall nominate, and by and with the advice of the supreme and inferior courts, shall hold and consent of the Senate, shall appoint cer- their offices during good behavior. But no tentain officers therein designated, and all other ure is fixed for the office of clerks. Congress officers of the United States, whose appoint- has by law limited the tenure of certain officers ments are not herein otherwise provided for, to the term of four years (3 Story, 1790), but and which shall be established by law; but the expressly providing that the officers shall, withCongress may by law vest the appointment of in that term, be removable at pleasure; which, such inferior officers as they shall think proper of course, is without requiring any cause for in the President alone, in the courts of law, or such removal. The clerks of courts are not inin the heads of departments. The appoint- cluded within this law, and there is *no (*259 258*) ing power *here designated in the latter express limitation in the Constitution or laws part of the section was no doubt intended to of Congress upon the tenure of the office. be exercised by the department of the govern. All offices, the tenure of which is not fixed ment to which the officer to be appointed most by the Constitution or limited by law, must appropriately belonged. The appointment of be held either during good behavior, or (which clerks of courts properly belongs to the courts is the same thing in contemplation of law) of law; and that a clerk is one of the inferior during the life of the incumbent; or must be officers contemplated by this provision in the held at the will and discretion of some departConstitution cannot be questioned. Congress, ment of the government, and subject to rein the exercise of the power here given by the moval at pleasure. Act of the 24th of September, 1789, establishing It cannot, for a moment, be admitted that it the judicial courts of the United States, i was the intention of the Constitution that Story's Laws U. S. 56, sec. 7, declare that the those offices which are denominated inferior of. Bupreme Court and the district courts shall fices should be held during life. And if remov. able at pleasure, by whom is such removal to nates. The execution of the power depends be made? In the absence of all constitutional upon the authority of law, and not upon the provision or statutory regulation, it would seem agent who is to administer it. And the Consti. to be a sound and necessary rule to consider tution has authorized Congress, in certain cases, the power of removal as incident to the power to vest this power in the President alone, in the of appointment. This power of removal from courts of law, or in the heads of departments; office was a subject much disputed, and upon and all inferior officers appointed under each, which a great diversity of opinion was enter by authority of law, must hold their office at tained in the early history of this government. the discretion of the appointing power. Such This related, however, to the power of the is the settled usage and practical construction President to remove officers appointed with the of the Constitution and laws under which these concurrence of the Senate: and the great ques- offices are held. The tenure of ancient common tion was whether the removal was to be by the law offices, and the rules and principles by President alone, or, with the concurrence of the which they are governed, have no application to Senate, both constituting the appointing power. this case. The tenure in those cases depends, in No one denied the power of the President and a great measure, upon ancient usage. But with Senate, jointly, to remove, where the tenure of us there is no ancient usage which can apply to the office was not fixed by the Constitution, and govern the tenure of offices created by our which was a full recognition of the principle Constitution and laws. They are of recent ori. that the power of removal was incident to the gin, and must depend entirely upon a just con: power of appointment. But it was very early struction of our Constitution and laws. And adopted as the practical construction of the the like doctrine is held in the English courts, Constitution that this power was vested in the where the office is not an ancient common law President alone. And such would appear to office, but of modern origin, under some act of have been the legislative construction of the Parliament. In such a case, the tenure of the Constitution. For in the organization of the office is determined by the meaning and intenthree great departments of State, War, and tion of the statute. The case of Smyth v. LathTreasury, in the year 1789, provision is made am, 9 Bing. 672, was governed by this rule. for the appointment of a subordinate officer The office in question was that of paymaster, by the head of the department, who should appointed under an act of Parliament, and the have the charge and custody of the records, court said: This is not an ancient common law books, and papers appertaining to the office, office, the tenure of which is to be governed by when the head of the department should be re- ancient usage, and the question is no more than moved from the office of the President of the an inquiry into the meaning and intention of United States. I Story, 5, 31, 47. When the the statute itself; and that by the legal conNavy Department was established in the year struction of the act of Parliament, the tenure 1798, 1 Story, 498, provision is made for the of the office was during pleasure, and that the charge and custody of the books, records, and new appointment was of itselr a revocation of documents of the department, in case of va- the first. cancy in the office of secretary, by removal or And the same rule has governed the deci. otherwise. It is not here said, by removal by sions of the State courts in this country, when. the President, as is done with respect to the ever the power of appointment and tenure of heads of the other departments; and yet there office has been drawn into discussion. The ques. can be no doubt that he holds his office by the tions have been governed by the construction same tenure as the other secretaries, and is re given to the constitution and laws of the State movable by the President. The change of where they arose. phraseology arose, probably, from its having The case of Avery v. The Inhabitants of Ty. become the settled and well understood con- ringham, 3 Mass. 177, falls within this class of struction of the Constitution that the power of cases. The Chief Justice there says it is a genremoval was vested in the President alone, in eral rule that an office is held at the will of such cases, although the appointment of the either party, unless a different tenure is exofficer was by the President and Senate. pressed in the appoiutment, or is implied by

In all these departments power is given to the nature of the office, or results from ancient the secretary to appoint all necessary clerks (1) usage. The office held by the petitioner clearly Story, 48); and although no power to remove is falls within neither of these exceptions, and of expressly given, yet there can be no doubt that course comes within the general rule, and is these clerks hold their office at the will and held "at the will of either party. The (*261 discretion of the head of the department. It petitioner would doubtless claim the right to re260*] *would be a most extraordinary con- sign the clerkship. if he chose so to do. And struction of the law that all these offices were the court had a right to put an end to it, at to be held during life, which must inevitably its election. follow, unless the incumbent was removable at The same principle governed the Supreme the discretion of the head of the department: Court of Pennsylvania in the case of Leghman the President has certainly no power to remove. v. Sutherland, 3 Serg. & Rawle, 145. The These clerks fall under that class of inferior question there turned upon the construction of officers, the appointment of which the Consti- the constitution and law of Pennsylvania. By tution authorizes Congress to vest in the head the constitution of 1790, it is provided that the of the department. The same rule, as to the governor shall appoint all officers whose office power of removal, must be applied to offices is established by the constitution, or shall be where the appointment is vested in the Presi. established by law, and whose appointments dent alone. The nature of the power, and the are not otherwise provided for. And the court control over the officer appointed, does not at. said, “The constitution is silent as to the reall depend on the source from which it ema. moval of officers. Yet it has been generally


supposed that the power of removal rested with dise from England, entered the same at the customthe governor, except in those cases where the house in New York, on the 29th of March, 1837, as tenure was during good behavior:” clearly for the duties, payable on the 27th of June, 1838.

cases containing cotton gloves. He gave a bond recognizing the principle that the power of re

In 1838 it was discovered that one of the cases, No. moval was incident to the power of appoint- pláintine paid the bond to the collector, under pro

45, contained sik hose, and not cotton gloves. The ment, in the absence of all constitutional or leg: test, and claimed from the comptroller of the islative provision on the subject. The case of treasury to be released from the payment of the Hoke v. Henderson, 4 Devereux, 1, decided in duties on case No. 45, alleging that as silk hose, the Supreme Court of North Carolina, is not they were not liable to duty under the Act of Con at all in conflict with the doctrine contained in sult against the collector to recover back the duties the cases referred to. That case, like the oth so paid by him. Held, that the suit could not be ers, turned upon the constitution and laws of sustained, after so long a time from the entry of

Held, tbat silk hose, and all North Carolina; and by the express terms of manufactures of silk, of which silk is the componthe law, the tenure of the office was during of the Cape of Good Hope, except sewing silk, are good behavior; and was, of course, governed by free of duty. very different considerations from those which Even courts of equity will not interfere to assist apply to the case now before the court.

a party to obtain redress for an injury which be The law giving the district courts the power a fortiori, a court of law ought not, when the other

might, by ordinary diligence, bare avoided. of appointing their own clerks does not pre-party has by his very acts and omissions lost his scribe any form in which this shall be done. own proper rights and advantages.

A collector is generally liable in an action to reThe petitioner alleges that he has heard and be

cover back an excess of duties paid to him as col. lieves that Judge Lawrence did, on the 18th lector, when the duties have been illegally deday of May, 1838, execute and deliver to John manded, and a protest of the illegality has been Winthrop a commission or appointment as clerk the party means

to contest the claim. Nor Is there of the District Court for the Eastern District of any doubt that a like action generally lies, where Louisiana, and that he entered upon the duties the excess of duties has been paid under a mistake of the office, and was recognized by the judge collector before he has pald over the money to the as the only legal clerk of the District Court. government. And in addition to this, notice was given by the judge to the petitioner of his removal from the circuite Court of the United States for the office of clerk, and the appointment of Winthrop in his place; all which was amply suffi- the Southern District of New York. cient, if the office was held at the discretion of This suit was originally instituted in the the court. The power vested in the court was Superior Court of New York, and was aftera continuing power; and the mere appointment wards brought before the Circuit Court of the of a successor would, per se, be a removal of Southern District of New York by a certiorari. the prior incumbent, so_far at least as his An action of assumpsit was instituted against rights were concerned. How far the rights of the collector of the port of New York to rethird persons may be affected is unnecessary cover the sum of one hundred and twenty. now to consider. There could not be two clerk's seven dollars, paid to him by the plaintiff for at the same time. The officers would be in the importation of silk hose. The duty was consistent with each other, and could not stand levied at the rate of twenty-five per centum ad together. If the power to appoint a clerk was valorem, “as hosiery,” under the second article vested exclusively in the District Court, and of the second section of the Act of Congress of the office was held at the discretion of the 14th July, 1832, entitled "An Act to alter and court, as we think it was, then this court can amend the several acts imposing duties on imhave no control over the appointment or re- ports.” moval, entertain any inquiry into the Upon the trial it was proved that on the grounds of removal. If the judge is chargeable 29th of March, 1837, the plaintiff made an en: with any abuse of his power, this is not the try at the custom-house in New York of eight tribunal to which he is amenable; and as we cases of cotton gloves, and that the duty was have no right to judge upon this matter, or levied on each of the eight packages of twenty. 262*) * power to afford redress if any is re- five per centum ad valorem; for which duty, quired, we abstain from expressing any opinion with the duties on other goods, the plaintiff upon that part of the case.

gave a bond for two hundred and ninety-four The motion is accordingly denied.

dollars, payable on the 27th June, 1838. On consideration of this motion, and of the usual affidavit to the truth of the invoice and

The plaintiff, on making the entry, made the arguments of counsel thereupon had, as well in bill of lading produced by him, and that the support of as against the motion, it is now here invoice produced by him was the true invoice considered, ordered and adjudged by this court, of the cost of the goods, and that if any error that the said motion be, and the same is hereby overruled; and that the said mandamus, or

was discerned in the invoice or cost of the rule prayed for be, and the same is hereby de- goods, he would immediately make the same nied.

known to the collector.

It was proved in the year 1838 it was

discovered that case *No. 45, one of the (* 264 263) •WILLIAM B. BEND

packages in the invoice, did not contain cotton JESSE HOYT.

gloves, but actually contained silk hose, and

that one hundred and twenty-seven dollars and Bond given for duties under mistake-payment ninety-two cents, were bonded by the plaintiff,

pursuant to bond under protest-lapse of under the belief that the case contained cotton time--negligence of importer.

gloves. On the 28th June, 1838, the plaintiff The plaintif, as the importer of certain merchan- served a protest on the collector against the

Peters 18.



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