in the way of the solution. The first is that it is not respectful to the legislature to presume that it ever intended to enact an absurdity, if the case is susceptible of any other construction; and the second that

Acts of Parliament that are impossible to be performed are of no validity; and if there arise out of them collaterally any absurd consequences manifestly contradictory to common reason, they are, with regard to these collateral consequences, void. (1 Blackstone's Commentaries, 91.)

If the effect of the proviso, however, upon something analogous to the doctrine of cy pres, or, in other words, of getting as near to its meaning as possible, was to determine the office at the time of the passage of the law, then, on the other hand, the retention of the officer by the President for five months afterward, and through an intervening Congress, without a commission or even a nomination, was a breach of the law, and therefore a misdemeanor in itself; which he could hardly plead, and would scarcely ask you to affirm against the general presumption of the faithful performance of official duty for the purpose of sheltering him from the consequences of still another violation of the law.

Assuming again, however, that, as is claimed by the defence, the case of Mr. Stanton does not fall within the proviso, what then is the result? Is it the predicament of a casus omissus altogether? Is he to be hung up, like Mahomet's coffin, between the body of the act and the proviso, the latter nullifying the former on the pretext of an exception, and then repudiating the exception itself as to the particular case; or is the obvious and indisputable purpose of providing for all cases whatever, to be carried out by falling back on the general enacting clause which would make him irremovable by the President alone, and leaving him outside of the provision as to tenure, which was the sole object of the exception? There is nothing in the saving clause which is at all inconsistent with what goes before. The provision that takes every officer out of the power of the President is not departed from in that clause. All it enacts is that the tenure shall be a determinate one in cases that fall within it. If Mr. Stanton was appointed by President Johnson within the meaning of the proviso, he holds, of course, until the expiration of his term. If not, he holds subject to removal like other officers under the enacting clause. It has been so often asserted publicly as to have become a generally accredited truth, that the special purpose of the act was to protect him. I do not affirm this, and do not consider it necessary that I should, or important to the case whether he favored the passage of the law or not. It will be hardly pretended, however, by anybody, that he was intended to be excluded entirely from its operation.

Nor is the case helped by the reference to the fourth section of the act, which provides that nothing therein contained shall be construed to extend the term of any officer the duration of which is limited by law. The office in question was one of those of which the tenure was indefinite. The construction insisted on by me does not extend it. The only effect is to take away the power of removal from the President alone and restore it to the parties by whom the Constitution intended that it should be exercised.

Assuming, then, that the case of Mr. Stanton is within the law, the next question is as to the validity of the law itself. And here we are met, for the first time in our history as a nation, by the assertion, on the part of the President, of the illimitable and uncontrollable power under the Constitution, in accordance, as he insists, with the judicial opinion, the professional sentiment, and the settled practice under the government of removing at any and all times all executive officers whatever, without responsibility to anybody, and as included therein the equally uncontrollable power of suspending them indefinitely and supplying their places from time to time by appointments made by himself ad interim. If there be any case where the claim has heretofore extended, even in theory, beyond the mere power to create a vacancy by removal during the recess of the Senate, I do not know it. If there be any wherein the power to suspend

indefinitely, which goes even beyond this, has been asserted, it is equally new to me. This truly regal pretension has been fitly reserved for the first President who has ever claimed the imperial prerogative of founding governments by proclamation, of taxing without a Congress, of disposing of the public property by millions at his own will, and of exercising a dispensing power over the laws. It is but a logical sequence of what he has been already permitted to do with absolute impunity and almost without complaint. If he could be tolerated thus far, why not consummate the work which was to render him supreme, and crown his victory over the legislative power by setting this body aside as an advisory council, and claiming himself to be the rightful interpreter of the laws? The defence made here is a defiance, a challenge to the Senate and the nation, that must be met and answered just now in such a way as shall determine which, if any, is to be the master. If the claim asserted is to be maintained by your decision, all that will remain for you will be only the formal abdication of your high trust as part of the appointing power, because there will be then absolutely nothing left of it that is worth preserving.

But let us see what there is in the Constitution to warrant these extravagant pretensions, or to prevent the passage of a law to restore the practice of this government to the true theory of that instrument.

I do not propose to weary you with a protracted examination of this question. I could not add to what I have already said on the same subject in the discussion in the House of the bill relating to removals from office in December, 1866, to which I would have ventured to invite your attention, if the same point had not been so fully elaborated here. You have already passed upon it in the enactment of the present law by a vote so decisive and overwhelming, and there is so little objection on the part of the counsel for the President to the validity of that law, that I may content myself with condensing the arguments on both sides into a few general propositions which will comprehend their capital features.

The case may be stated, as I think, analytically and synoptically thus:

The first great fact to be observed is, that while the Constitution enumerates sundry offices, and provides the manner of appointment in those cases, as well as in "all others to be created by law," it prescribes no tenure except that of good behavior in the case of the judges, and is entirely silent on the subject of removal by any other process than that of impeachment.

From this the inferences are:

1. That the tenure of good behavior, being substantially equivalent to that for life, the office must in all other cases be determinable at the will of some department of the government, unless limited by law; which is, however, but another name for the will of the law-maker himself. And this is settled by authority.

2. That the power of removal at will, being an implied one only, is to be confined to those cases where the tenure is not ascertained by law; the right of removal in any other form than by the process of impeachment depending entirely on the hypothesis of a will of which the essential condition always is that it is free to act without reason and without responsibility.

3. That the power of removal, being implied as a necessity of state to secure the dependence of the officer on the government, is not to be extended by construction so as to take him out of the control of the legislature, and make him dependent on the will of the Executive.

The next point is that the President is by the terms of the Constitution to "nominate, and by and with the advice and consent of the Senate appoint," to all offices, and that without this concurrence he appoints to none except when authorized by Congress. And this may be described as the rule of the Constitution.

The exceptions are:

1. That in the cases of inferior offices the Congress may lodge this power with the President alone or with the courts or the heads of departments; and 2. That in cases of vacancy happening during the recess of the Senate he may not appoint-but fill them up by granting commissions to expire at the end of the next session of that body.

From which it appears-

1. That the President cannot, as already stated, in any case, appoint alone without the express authority of Congress, and then only in the case of inferior offices.

2. That the power to supply even an accidental vacancy was only to continue until the Senate was in a condition to be consulted and to advise and act upon the case; and

3. As a corollary from these two propositions, that if the power to remove in cases where the tenure is indefinite be, as it is solemnly conceded by the Supreme Court of the United States in re Heenan, (13 Peters,) an incident to the power to appoint, it belongs to the President and Senate, and not to the President alone, as it was held in that case to be in the judge who made the appointment. The argument upon which this implied and merely inferential power, not of filling up," but of making a vacancy during the recess-which is now claimed to extend to the making of a vacancy at any time-has been defended, is— First. The possible necessity for the exercise of such a power during the recess of the Senate, or, in other words, the argument ab inconvenienti.

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Second. That the power of removal is a purely executive function, which, passed by the general grant in the first section of the second article of the Constitution, would have carried the power to appoint, if unprovided for, and is to be considered in him in all cases wherein it has not been expressly denied or lodged in other hands; while the association of the Senate, the same not being an executive body, is an exception to the general principle, and must be taken strictly so as not to extend thereto.

Third. That it is essential to the President, as the responsible head of the government, charged by his oath with the execution of the laws, that he should control his own subordinates by making their tenure of office to depend upon his will, so as to make a unit of the administration.

The answer to the first of these propositions is that there is no necessity for the exercise of the power during the recess, because the case supposed may be provided for by Congress-as it has been by the act now in question—under its express constitutional authority "to make all laws which shall be necessary or proper for carrying into execution all powers vested in the government or in any department thereof," a power which, by the way, is very strangely claimed by one of the President's counsel to be an implied one.

To the second the answer is, that whether an executive power or not depends on the structure of the government, or, in other words, on what the Constitution makes it; that the clause in question is but a distributive one; that if all executive power is in the President, then by parity of reason all legislative power is in Congress without reference to the Constitution; that the Senate is not only associated with the President in the general appointing power, but that the power itself may be withdrawn by Congress almost entirely from both, under the provision in regard to inferior offices, which would involve a repugnancy to the general grant relied on, if the power be an executive one; that if no provision had been made for appointment in the Constitution the power to supply the omission would have resulted to the law-maker under the authority just quoted, to make "all laws that might be necessary or proper for carrying into execution all powers vested in the government or any department thereof," which carries with it the power to create all offices; and that, moreover, this power of removal, in the only case wherein it is referred to, is made a judicial one.

To the third the answer is

1. That however natural it may be for the President, after an unchecked career of usurpation for three long years, during which he has used his subordinates generally as the slavish ministers of his will, and dealt with the affairs of this nation as if he had been its master also as well as theirs, he greatly mistakes and magnifies his office, as has been already shown in the fact that under the Constitution he may be stripped at any time by Congress of nearly the whole of the appointing power; and,

2. That the responsibility of the President is to be graduated by, and can be only commensurate with, the power that is assigned to him; that the obligation imposed on him is to take care that the laws are faithfully executed, and not his will, which is so strangely assumed to be the only law of the exalted functionaries who surround him; and that it is not only not essential to the performance of their duty under the law that the heads of departments should be the mere passive instruments of his will, but the very contrary.

Upon this brief statement of the argument it would seem as if there could be no reasonable doubt as to the meaning of the Constitution. But the high delinquent who is now on trial, feeling that he cannot safely rest his case here, and shrinking from the inexorable logic that rules it against him, takes refuge in the past, and claims to have found a new Constitution that suits him better than the old one, in the judicial authorities, in the opinion of the commentators, in the enlightened professional and public sentiment of the nation, and in a legislative practice and construction that are coeval with the government, and have continued without interruption until the present time. A little inquiry, however, will show that here is no altar of sanctuary, no city of refuge there, to shelter the greatest of the nation's malefactors from the just vengeance of a betrayed and indignant people.

And first, as to judicial authority. There are but three cases, I think, wherein these questions have ever come up for adjudication before the Supreme Court of the United States, and in all of them the decisions have been directly in conflict with the theory and pretensions of the President.

The first was the familiar one of Marbury vs. Madison, 1 Cranch, 256, made doubly memorable by the fact that it arose out of one of the so-called midnight appointments made by the elder Adams—the same, by the way, whose casting vote as an executive officer turned the scale in favor of the power to which he was destined to succeed in the first Congress of 1789, on the eve of his retirement-under a law which had been approved only the day before, authorizing the appointment of five justices of the peace for the District of Columbia, to serve respectively for the term of five years. The commission in question had been duly signed and registered, but was withheld by his successor (Jefferson) on the ground that the act was incomplete without a delivery. It was not claimed by him that the appointment was revocable, if once consummated. If it had been, the resistance would have been unnecessary, and the assertion of the right to the office an idle one. Chief Justice Marshall, in delivering the opinion of the court, holds this language:

Where an officer is removable at the will of the Executive, the circumstance which completed his appointment is of no consequence, because the act is at any time revocable. But where the officer is not removable at the will of the Executive, the appointment is not revocable and cannot be annulled. Having once made the appointment, his power over the office is terminated in all cases where by law the officer is not removable by him. Then, as the law creating the office gave the right to hold for five years independent of the Executive, the appointment was not revocable, but vested in the officer legal rights that are protected by the laws of his country.

The point ruled here is precisely the same as that involved in the tenure-ofoffice act, to wit: that Congress may define the tenure of any office it creates, and that once fixed by law, it is no longer determinable at the will of anybodythe act being a mere substitution of the will of the nation for that of the Execu

tive, by giving that will the form of law, which is, indeed, the only form that is consistently admissible in a government of law. The present Executive insistsas Jefferson did not-that he has the power under the Constitution to remove or suspend at any and all times any executive officer whatever for causes to be judged of by himself alone; and that, in the opinion of his advisers, this power cannot be lawfully restrained; which is in effect to claim the power to appoint without the advice and consent of the Senate, as he has just now done, as well

as to remove.

The next case in order is that of ex parte Heenan, reported in 13 Peters, which involved a question as to the right of the judge of the district court of Louisiana to remove, at his discretion, a clerk appointed by him indefinitely under the law. The court say there-Thompson, Justice, delivering the opinion-that

All offices, the tenure of which is not fixed by the Constitution or limited by law, must be held either during good behavior or at the will and discretion of some department of the government, and subject to removal at pleasure.

And again that—

In the absence of all constitutional provisions or statutory regulation it would seem to be a sound and necessary rule to consider the power of removal as an incident to the power to appoint.

They add, however

But it was very early adopted as the practical construction that the power was vested in the President alone, and that such would appear to have been the legislative construction, because in establishing the three principal Departments of State, War, and Treasury, they recognized the power of removal in the President, although by the act of 1798, establishing the Navy Department, the reference was not by name to him.

The result was that upon the principles thus enunciated, involving the exception as to cases where the tenure was limited by law, as laid down in Marbury vs. Madison, they declared the power of removal to have been well exercised by the judge who made the appointment under the law, for the reason only that it was an incident thereto.

It is well worthy of remark, however, in this connection, that although what is thus gratuitously said as to the practical construction in opposition to the rule there recognized does not conflict in any way with the doctrine of Marbury rs. Madison, it is entirely at variance, as seems to be confessed, with the decision itself, which, on the doctrine of Mr. Madison in the debate of 1789, that the power of removal was a strictly executive one, and passed by the general grant of the Constitution, unless expressly denied or elsewhere lodged, must have been inevitably the other way, because in that case it must have resulted, not to the judge, but to the President. Whether a mere permissive, sub silentio exercise of a power like this, or even a temporary surrender on grounds of personal confidence or party favor, where it perhaps violated no constitutional interdict, and was, in point of fact, authorized as to all but the superior offices, can raise a prescription against a constitutional right, or how many laws it will require to abrogate the fundamental law, I will not stop now to inquire. It is sufficient for my purpose that the case decides that the power of removal is but an incident to the power of appointment, and that, of course, it can be exercised only by the same agencies, as the tenure-of-office act exactly provides.

The next and last case is that of the United States ex relatione vs. Guthrie, reported in 17 Howard, 284, which was an application for a mandamus to the Secretary of the Treasury to compel him to pay the salary of a territorial judge in Minnesota, who had been removed by the President before the expiration of his term, which was fixed by law at four years. The case was dismissed, upon the doctrine that the proceeding was not a proper one to try the title to an office, and therefore the question of the power to remove was not disposed of or discussed, except by Justice McLean, who dissented on the main point and felt 16 I P-Vol. ii