judges when appointed shall hold their offices during good behavior. It will be seen, therefore, that a very few offices and officers are entirely beyond the control of either Congress or President; that a very few are entirely under the control of the respective houses of Congress; that the judges when appointed, as long as the courts shall exist, are beyond the control of Congress or President, because they cannot be removed during good behavior, nor can their salaries be diminished during their terms of office.

§ 643. In regard to the great mass of subordinate officers, Congress and the President have correlative powers; neither can act without the other. Congress has full power to create the office by law; to fix the compensation; to allot the powers and duties; to prescribe general qualifications or conditions, such as that security shall be given for a faithful discharge of duties, and perhaps personal qualifications, such as loyalty; and, I have no doubt, to regulate the term of office. This done, the power of Congress ceases; they can do no direct act towards filling the office. Such act is the sole, independent function of the President, by and with the consent of the Senate; except that in the case of "inferior officers," the appointment may be vested by law in the President alone, or in the courts, or in the heads of departments, without requiring the Senate's consent. What class of officers come within the designation of 'inferior," has never been established, and cannot be determined with any precision and certainty. The practical construction which Congress has placed upon the clause, confines its operation to those public agents whose duties are quite subordinate.

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§ 644. When the Constitution was first submitted to the people for adoption, many persons of great ability and experience, as well as many others who were only demagogues, attacked the proposed scheme with vigor and persistence. These attacks were largely directed against the plan for an Executive; and among others of his powers which were objected to, none was opposed more bitterly than the power of appointment. As a clear statement of these objections, I will quote from the celebrated letter of Luther Martin to the

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.

It

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.

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.