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Maryland Legislature. Mr. Martin was certainly one of the ablest lawyers of his time, and had been a member of the Constitutional Convention. He says: "To that part of this article which gives the President a right to nominate, and with the consent of the Senate, appoint all the officers civil and military of the United States, there was considerable opposition. It was said that the person who nominates, will always in reality appoint, and that this was giving the President a power and influence which, together with the other powers bestowed upon him, would place him above all restraint and control. In fine, it was urged that the President as here constituted, was a King in every thing but the name; that though he was to be chosen for a limited time, yet, at the expiration of that time, if he is not re-elected, it will depend entirely upon his own moderation whether he will resign that authority with which he has once been invested; that from his having the appointment of all varieties of officers in every part of the civil department, who will be very numerous in themselves and their connections, relations, friends, and dependents, he will have a formidable host devoted to his interests, and ready to support his ambitious views. was further observed that the only appearance of responsibility in the President, which the system holds out to our view, is the provision for impeachment; but that when we reflect that he cannot be impeached but in the House of Representatives, and that the members of this house are rendered dependent upon, and unduly under the influence of, the President, by being appointable to offices of which he has the sole nomination, so that without his favor and approbation they cannot obtain them, there is little reason to believe that a majority will ever concur in impeaching the President, let his conduct. be ever so reprehensible; especially, too, as the final event of that impeachment will depend upon a different body, and the members of the House of Representatives will be certain, should the decision be ultimately in favor of the President, to become thereby the objects of his displeasure, and to bar to themselves every avenue to the emoluments of government.

1 Elliott's Debates, Vol. 1, p. 379.

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Should he, contrary to probability, be impeached, he is afterwards to be tried and adjudged by the Senate, and without the concurrence of two thirds of the members who shall be present, he cannot be convicted. This Senate being constituted a privy council to the President, it is probable many of its leading and influential members may have advised and concurred in the very measures for which he may be impeached."

In a letter addressed to the Legislature of Virginia, Edmund Randolph hoped that the proposed constitution would be amended by taking from the President "the power of nominating to the judiciary offices, or of filling up the vacancies which may happen during the recess of the Senate, by granting commissions which shall expire at the end of the next session." 1

These quotations will serve to illustrate the objections of statesmen to the proposed constitution; the violent and absurd vituperations of mere haranguers like Patrick Henry, need not be cited. How great an element of truth, and how great of error, is contained in these critical predictions, each student of our history must decide for himself.

645. To these arguments the friends of the Constitution replied, that as the President is responsible for the due execution of the laws, he should choose the subordinate agents by whom the execution was to be in fact performed; that in every form of civil society some confidence must be placed in human nature; that many of the objections brought forward would equally apply to every kind of government; that experience has shown that when the responsibility of appointment rests upon one person alone, he is much more likely to be affected by the weight of the duty, and to make good nominations, than where the responsibility is divided among several, so that no one can feel it to rest wholly upon himself; that the chances of having good men nominated by the President, are, therefore, much greater than would be were the officers to be chosen by Congress, or some other deliberative body; finally, that the President would always be held in check, for the ratification of the Senate was indispensable.

1 Elliott's Debates, Vol. 1, p. 491.

§ 646. I shall now consider the nature and extent of the power itself. The President is to nominate, and with the advice and consent of the Senate, appoint officers. At the very outset of the government, an attempt was made by a few persons to give such a construction to this language as would make the Senate the body to take the initiative. It was urged that, as the Senate was to advise as well as to consent, they could only advise a course of action prior to that action; that we consent to a thing after we know it is attempted to be done, but we advise a thing prior to any attempt; that the only way possible for the Senate to advise as well as to consent to the appointment of officers, was for them to suggest names to the President, from which he might choose a person whose nomination would be communicated to the Senate, whereupon that body would proceed to indicate its consent to that particular appointment by ratifying it. This course of argument, though plainly having some grammatical correctness, was not convincing. It was evident that such a course would virtually make the Senate the sole appointing power; that the President would only be the registrar of their decrees. And, besides, the nomination of a person is not his appointment; it is only the initial step towards that result. The appointment takes place when the President has issued the officer's commission, which can only be done after the action of the Senate. It may, therefore, be said with sufficient accuracy, that the Senate does advise the appointment as well as consent to it. This construction has been established by an uniform practice; and the appointing power is actually exercised by the President in nominating a person to the Senate, and by the Senate in ratifying or rejecting such nomination. Still, it must be conceded that, as the practice has been thus settled, the clause of the Constitution receives no greater efficacy from the presence of the word advise; to all intents and purposes the Senate simply consents to the action of the President, and to the appointment he makes. Indeed, the President goes elsewhere for advice. But the real power of the Senate has not been abridged by the received interpretation put upon the organic law. When there has been a difference between

them and the Executive, they have not been slow to use their prerogative, and to use it successfully. In fact, they may, perhaps, be able to go beyond the function specially committed to them, and may, in truth, dictate a nomination to the President.

§ 647. I am now brought to the important question, Can the President remove from office? It will be noticed that the Constitution is absolutely silent upon this subject. Whatever power of removal there may be, must, therefore, be implied as a reasonable consequence and concomitant of some other powers expressly granted. That officers may be removed, is conceded on all hands; by whom the removal is to be made, under the Constitution, is a question not yet definitely settled. There are only three possible alternatives. Either the President may remove, upon his own volition, independent of the Senate, or of Congress; or the President, by and with the advice and consent of the Senate, may remove, independent of Congress; or the Congress has complete control of the subject, and may establish such rules respecting removals as it thinks proper. If the authority belongs to the President, it is inferred from and included in some more general functions granted to the Executive; if the President and the Senate possess the power, it is because they together hold the power of appointment. In either case this special prerogative would be conferred by the Constitution as absolutely as though expressed in positive terms; it could not be abridged by any legislation. If the whole subject is within the control of Congress, this results from their general power to create offices, and to pass laws necessary and proper to carry into execution the attributes and functions granted to other departments. No case has ever yet arisen in which a judicial construction was given to the Constitution in this respect. Ex parte Hennen,1 which is sometimes referred to, simply determined the authority of a district judge to remove the clerk of the district court, under a statute of Congress which gave to the judge the right to appoint, but was silent in reference to removal. The legis lative and executive construction has, however, until very

1 13 Peters' R. 230.

recently, been uniform from the commencement of the government, and has declared in favor of the sole authority of the President.

§ 648. The question was first raised and discussed in Congress in the year 1789, when a bill for establishing an executive department, to be called the Department of Foreign Affairs, was pending before the House of Representatives. The first clause, after stating the title of the officer, and recapitulating his duties, had these words, "to be removable from office by the President of the United States." A motion was made to strike out this clause, and the discussion turned upon the power of removal under the Constitution. It seems to have been conceded that the power resides, either absolutely in the President, or in the President and Senate conjointly. The supporters of the motion generally advocated the latter construction. They urged that the removal from office was a part of the appointing power; that as the power to appoint was conferred in distinct terms upon the President, by and with the consent of the Senate, it was to be considered by necessary implication that the power to remove resided in the same hands; that under the Constitution the President could remove with the consent of the Senate, and that any attempt by statute to confer the power on the President alone, was unconstitutional; that to clothe the President with this power was in the highest degree impolitic, as he might as readily use it for partisan and personal ends, as for the public good. Many gentlemen of great ability and influence advocated these

views.

§ 649. It was answered, that the statute would not, indeed, make the President's power any greater than it was before, but that the clause in question was eminently proper as a construction put upon the Constitution by the legislature; that as the executive power was, in general terms, vested in the President, he possesses all such power to a full extent except where it is limited in the same instrument; that the appointment and removal of officers is essentially an executive act, and that, had the Constitution been entirely silent upon the subject, the President would have had full and sole power to make all ap

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