that the removal of executive officers was an act so executive in its character and so intimately related to the execution of the laws, that it was clearly among the President's constitutional prerogatives, that participation of the Senate in removals would break down the separation of the powers deemed so essential in the Constitution. If a removal be desired by the President and denied by the Senate, the President would still be charged with the faithful execution of the laws while deprived of the loyalty and constancy of his subordinates and assistants. These would resent his efforts to remove them and would seek to thwart him in his work and they would rely upon another branch of the Government for their retention, and this would lead to defiant insubordination."' The Contest under Jackson. Congress adopted Madison's view-by the casting vote of the Vice-President-and recognized the power of removal as resting with the President alone. This interpretation of the Constitution went unquestioned for a period of forty years, until Jackson's abuse of this power by his sweeping removals. His wholesale treatment of public places as party spoils led many to question the wisdom of the decision of 1789. The alarming growth of executive patronage' and the use to which it was now put led both Mr. Webster and Mr. Calhoun, two of America's greatest constitutional lawyers, to array themselves against Madison's view of the sole executive power of removal. The abuse of a power, however, is no evidence of its unconstitutionality. The spoils system and the danger The "Four from executive patronage had been directly Years' Law," promoted by the notable law of 1820, known as 1820. the "four years' law." This law provides a limited term 1 See ex-President Cleveland on "Executive Independence," Atlantic Monthly, June and July, 1901; Rives's Madison, vol. iii., p. 35; Annals of Congress, vol. i., p. 503. ? See Calhoun's famous report on this subject, Jan. 9, 1835, and his Speeches of Feb., 1835, Works, vol. ii., pp. 426, 446. of four years for the offices mentioned. It was gotten up by Mr. Crawford, Secretary of the Treasury, for the purpose, as John Quincy Adams states, of securing "for Mr. Crawford the influence of all the incumbents in office upon peril of displacement, and of five or ten times as many ravenous office-seekers eager to supplant them."' The law itself vacates the offices, and this enables a President to displace satisfactory officers without the responsibility or odium of dismissing them, and to reward his party and personal favorites without exercising the power of removal. Madison's view and the Congressional decision of 1789, which gave the sole power of removal to the President, required positive executive action The law of 1820 vacated the entire country during the term of every to cause a vacancy. civil service of the President, who, "without an order of removal, could fill every place, small or large, from Maine to California, from the mouth of the Columbia to the Keys of Florida, at his pleasure. In contemplating the possible results of so vast a power Mr. Calhoun said, in 1835, that, if it should ever deal with a corps of one hundred thousand officeholders, the friends of liberty might surrender in despair, for the people could not resist them for six months." " Vast The use of the offices to promote party ends and to advance legislation that the President favors is one of the most palpable and dangerous forms of bribery. It stimulates both congressional intrigue and executive ambition, and it tends to the corruption of our whole political life. The President who buys votes by appointments betrays the national honor and becomes a corrupter 1 Speech of George William Curtis, Proceedings of National Civil Service Reform League, 1883, Orations of Curtis. Address of George William Curtis, Proceedings of National Civil Service Reform League, 1883. Tenure of Office Act, 1867. The Conflict with President Removals. of public morals.' Yet notwithstanding the grave dangers that were to be apprehended from this source, the great arguments of Webster and Calhoun against unlimited executive removal, combined with the powers of appointment, did not succeed in changing the constitutional interpretation in this regard. Congress did not interfere in removals until the notable conflict with President Johnson in 1867. In that year the Tenure of Office Act was passed, for the avowed purpose of preventing removals from office by President Johnson. The majority thus set Johnson over aside the congressional construction given to the Constitution seventy-eight years before. This Act 1 Responsible writers have charged this serious abuse of his office upon President Cleveland in connection with legislation in 1893. "There he stood, unmindful of God, man, or devil, putting aside past promises and future obligations with the sublime shamelessness of dire need-stolid, unmoral, buying votes with offices with no more emotion in his choice of purchasable swine than a hog-buyer in the pens. The public service was filled with incompetent men, recommended by purchasable national legislators, who traded their votes for this patronage."-William Allen White, in McClure's Magazine, January, 1902. This well illustrates the menacing power of the Presidency when the vast powers of the office are in the hands of a man who will consent to use his appointments corruptly in order to carry through a legislative policy. "In this instance Mr. Cleveland did not confine his interest in legislation to his message, which was his constitutional limitation. But the observer of events in Washington saw the Executive bring to bear upon the legislative branch of the Government an amount of personal pressure unequalled, perhaps, in the history of the Republic. Even now one can recall how the emissaries of the President thronged the halls of Congress; how strange and remarkable conversions were wrought through influences which emanated from the White House and which it was not politic to withstand. When the bill wiping the silverpurchasing law from the statute books went to the Senate, it did not command a majority of that body; but during the three months of acrimonious debate the power of the Executive was exerted to such an extent as to win the support of those Senators whose votes were needed to accomplish the Presidential purpose. No one who is at all familiar with the inner history of that memorable and dramatic struggle will dispute these statements.""The Growing Powers of the President," H. L. West, Forum, March, conferred upon the Senate the power of preventing the removal of officers without the consent of that body. It was provided that during a recess of the Senate an officer might be suspended, but this was to be done only in case it was shown by evidence satisfactory to the President that the incumbent was guilty of misconduct in office, or crime, or when for any reason he should become incapable or legally disqualified to perform his duties; and that within twenty days after the next session of the Senate the President should report to that body such suspension, with the evidence and reason for his action in the case. "If the Senate concur in such suspension and consent to the removal of such officer they should certify to the President who may then remove such officer and appoint another. But if the Senate refuse to concur in such suspension, such officer so suspended shall forthwith resume the functions of his office." This Act was passed with the design of forcing an unwelcome Cabinet officer upon the President, and in other respects tying his hands in the administration of his office. The Act was probably intended to be personally degrading to President Johnson and could only have grown out of the abnormal excitement created by the dissensions between the two departments of the Government. It presented the question whether the members of the President's Cabinet, his trusted associates and advisers, owe greater obedience to the Senate than to their Executive Chief in affairs relating to executive functions. Tenure of 1 On the 5th of April, 1869, just a month after the inauguration of President Grant, Congress and the President then being in party harmony, the provisions of the Tenure of Office Act that interfered with Act Uncon- the President's power in removal were repealed. They had served their purpose against President Johnson. This prerogative of the President is now virtu2 Blaine, vol. ii., p. 274. stitutional. 1 Act of 1867. ally restored, and it is now generally held by publicists of both parties that the Tenure of Office Act was unconstitutional and would have been so held by the courts if it could have been tested.' In 1886, what was left of the Tenure of Office Act was repealed, and, as President Cleveland says, there was "thus repealed the last vestige of statutory sanction to an encroachment upon constitutional executive prerogatives. In the matter of appointment, the President is to be the independent agent of the people, representing a co-ordinate branch of their Government, charged under his oath with responsibilities which he ought not to avoid or share; and invested with powers not to be surrendered, but to be used under the guidance of patriotic intentions,-answerable to his conscience and to the people." * The Executive The Cabinet, The Executive Departments have been created from time to time by Acts of Congress. The heads of these departments compose the Cabinet, though the "Cabinet" is not recognized in the Constitution. Only three departments were created in Departments. 1789, the Department of State, the Department of the Treasury, the Department of War. The office of Attorney-General was established in 1789, and that officer has always had a place in the President's Cabinet, though the separate department over which he presides-the Department of Justice-was not erected until 1870. The Navy Department was added in 1798; and the Department of the Post-Office was made a Cabinet position 'See Blaine's Twenty Years of Congress, vol. i., pp. 267-274. See, also, ex-President Cleveland's articles on "Executive Independence," Atlantic Monthly, June and July, 1900; President Johnson's Message, vetoing the Tenure of Office Act, March 2, 1867; Richardson's Messages and Papers of the Presidents, vol. vi., p. 492; the Commentaries of Kent and Story are quoted by President Johnson (the message was probably prepared by Secretary Seward), and the case is cited in which the question was considered by the Supreme Court, ex parte Hennen, 1839, 13 Peters, 139. Atlantic Monthly, July, 1900. |