of August, 1882. The amendment was first presented two days later, and was reintroduced in each of the two succeeding Congresses. A few of the resolutions in regard to the veto of items in appropriation bills, previously cited, also contained the provision that such items could only be passed over the veto by a similar majority of each House. Mr. Randall of Pennsylvania was the first and most zealous advocate of this reform.2 59. LIMITATIONS UPON THE APPOINTING POWER OF THE PRESIDENT. The two allied powers of the President, namely, of appointment and removal, the first of which is constantly used, have naturally given rise to much dissatisfaction and friction between the legislative and executive departments, so that it is not surprising that several amendments have been proposed to place limitations upon his exercise of these powers." In 1808 Mr. Hillhouse proposed a radical change in the power of appointment. His amendment provided that all the more important officers should be appointed by the President, by and with the advice of the Senate and House of Representatives. Congress could, by law, vest the appointment of such officers as they may think proper, either in the President, by and with the advice of the Senate, or in the President alone, or heads of Departments or courts of law.1 In addition, there have been several resolutions presented to vest the appointment of certain executive officials in Congress. In 1818 Mr. Lewis of Virginia introduced an amendment depriving the President of the power of appointing his own Cabinet ministers, and vesting the appointment in the Senate and House by joint ballot.5 In 1828 Mr. Barbour, also Ibid., p. 138, App., Nos. 1565, 1594, 1610, 1655. These provided for the submission of every order, resolution, or vote, to which the concurrence of the Senate and House may be necessary, except on questions of adjournment, to the President for his consideration, thus extending the veto power of the Pre ident to concurrent resolutions. 2 App., Nos., 1659, 1665, 1708. 3 The conclusion of the Federal Convention, reached at the last moment, to confer upon the Senate the power to confirm appointments (Art. II, sec. 11, cl. 2), has enabled that body to encroach upon this power of the President more successfully than upon any other. Wilson foresaw the result of this provision, for he declared: "The President will not be the man of the people, but the minion of the Senate. He can not even appoint a tidewaiter without it." On the other hand, for the influence the President is able to exert over legislation, see comments of Senator Benton, Thirty Years' View, 1, 86; Story, II, 337-347. 4 No law vesting the power of appointment shall be for a longer term than two years. App., No. 395: post, 60. of Virginia, presented an amendment to exclude the President from appointing or removing the principal Treasury officers.' In 1836, and again in 1838, Mr. Underwood of Kentucky, in connection with the amendments regulating the removal of officers, submitted an article which made provision for making the Treasury Department independent of the Executive, and vesting the appointment of the Secretary of the Treasury and other financial officers in Congress. This change was without doubt suggested by President Jackson's manipulation of the Treasury Department in his controversy with the United States Bank. A somewhat similar amendment, introduced by Clay, in 1841, received extended consideration. It was caused by the open hostility existing between Tyler and the Whigs. The amendment presented by Mr. Taliaferro of Virginia, in 1839, which is again considered under the subject of removals, vested all the appointments, except such as are otherwise directed by law in the Senate, by a viva voce vote on nomination of some Senator, and required Congress to provide for and to regulate by law all that concerns the removal from office and the filling of vacancies. Other amendments in regard to the appointment of officials were offered in this same year. In 1842 Mr. Underwood again presented his amendment, but this time it included the Post Office Department, against which charges had been made, as well as the Treasury Department." Mr. Ashley, who seemed deeply convinced of the necessity of subordinating the executive and judicial authority to the legislative, in connection with other amendments designed to accomplish this end, proposed in 1869 the election of the Cabinet officers by Congress in joint convention, for the term of six years, one to retire each year. The other appointments should be made as follows: "Each member of the executive council, including the President, shall, by and with the advice. of the Senate, appoint all officers for his department.” 8 7 See ante, par. 58; post, pars. 63, 72, 73. 8 App., No. 1315b. Each Cabinet officer could be removed by concurrent vote of the House and Senate. The executive council should keep a record of each meeting and all official transactions, which shall be subject to examination by a committee of the two Houses. Numerous amendments presented in recent years, either conferring the election of certain of the civil officers upon the people or vesting the appointment in another power, are treated elsewhere.1 60. REGULATION OF THE POWER OF REMOVAL. In addition to the amendments limiting or entirely depriving the President of the power of appointment, there have been presented a number of resolutions regulating the removal of officials. In the First Congress Mr. Tucker proposed an amendment giving the President the power "to suspend any person from office whom he shall have reason to think unfit."2 The amendment presented by Mr. Hillhouse, in 1808, besides making provision for new regulations to govern the appointing power, required the consent of both the Senate and the House before any removal should be made.3 The introduction of the "spoils system" into national politics with the accession of Jackson to the Presidency, led to the censure of the President by the National Republican members of the Senate in 1829, but did not result in the presentation of any amendments until 1835. In that year Mr. Vance of Ohio introduced an amendment, by the terms of which the President was prohibited from removing any person from office without the concurrence of the Senate.1 Webster maintained that the Senate already had full right to regulate the removal of officers, for the decision of 1789 was not in harmony with the Constitution.5 1 Post, pars. 61, 64. 2 App., No. 207. The question of removal came up first in the First Congress in connection with the bill creating the office of Secretary of the Treasury. By the casting vote of the Vice-President the bill passed with a provision allowing the removal by the President alone. The majority were probably influenced by respect for the exalted character of Washington Story, II, pp. 351-354, notes; Davis, Am. Consts., p. 492. 3 App., No. 396. In the criticism found among John Adams's papers upon Hillhouse's amendments was the following referring to this proposition and the one in regard to the appointing power: "It reduces the President's office to a mere Doge of Venice; a mere head of wood; a mere tool of the aristocratic branch-the Senate." Works, Vol. VI, p. 534. See ante, par. 47. 4 App., No, 639. 5 Speech of February 16, 1835. Works, IV, 179 et seq. Calhoun took a similar position. Works, 1, 345, 369. The Federalist, No. 77, maintained the same as now asserted by Webster. Madison, however, favored giving the power to the President alone. Story, II. 353-354; Kent, 1, 289–290; Rüttiman, Das Nordamerikanische Bundesstaatsrecht (Zurich, 1867), I, 280; L. Dupriez, Les Ministres dans Les Principaux Pays D'Europe et D'Amerique, 11, 40 (Paris, 1893). Another proposition offered by Mr. Taliaferro of Virginia, in 1839, declared that the power of the President to remove from office and to fill vacancies thus created is not a power conferred on him by the Constitution, either expressly or by necessary construction of any power delegated to him. The amendment, however, prescribed as one of the duties of the President the commissioning of all the officers to be appointed under the Government, expressing in each commission the term of service of the office.1 In 1836, and four times thereafter, Mr. Underwood of Kentucky presented an amendment which provided that the terms of all offices except those provided for in the Constitution, and the mode of removal from office, should be regulated by Congress.2 The general assembly of Kentucky, in 1842, proposed an amendment to confine removals from office by the President to heads of Departments and those employed in the foreign service. In the sixties the Senators from Kentucky were very solicitous in regard to the power of removal. In 1863 Senator Davis offered an amendment limiting the President's power to remove from office, in the case of all those officers in whose nomination the advice and consent of the Senate is required, until the next session of the Senate only, unless it should approve of such removal. In the next year Senator Powell proposed as an additional article to the thirteenth amendment a provision to permit the President to remove at pleasure the principal officers in the Executive Departments and all persons connected with the diplomatic service. All other officers of the Executive Departments might be removed at any time for cause, by the President or other appointing power, but when so removed the removal should be reported to the Senate with the reasons.5 It is noteworthy that the "tenure-of-office act" of 18676 accomplished the object aimed at by some of these amendments; but this act was partially repealed in 1869, and wholly repealed in 1877, so that at the present time the full power of removal has been restored to the President. In 1882 an App., No. 692. *In 1838, 1842, 1849, 1850, App., Nos. 651, 677, 722, 755c, and 762. 8 App., No. 728. 4 App., No. 979. 5 App., No. 996. Called out by the hostility of Congress to Johnson. amendment was presented the object of which has practically been accomplished by the above-mentioned act of 1877.1 These propositions were but an episode in the history of the amending power, for upon the decline of the influence of Jackson the attempts to amend the Constitution in these particulars, with the exception of the instances noted, end. For the sake of completeness, it is necessary to refer to a few additional propositions in regard to the tenure of office. An amendment introduced in the Senate of the First Congress reveals the fear of some of a revival of the hereditary system. This interesting amendment was as follows: "That no man or set of men are entitled to exclusive or separate public emolu. ments or privileges from the community but in consideration of public services, which not being descendible, neither ought the offices of magistrate, Senator, or judge or any other public offices to be hereditary." 2 Within recent years seven amendments have been proposed relative to fixing the tenure of civil officers of the United States. Six of these provide for a four-year term for all such officers except judges and heads of Departments and those whose duties were temporary in their nature, unless a longer term was fixed by law. The remaining one proposed a fiveyear term.1 61. CIVIL SERVICE REFORM. In addition to the propositions restricting the appointment. to office of members of Congress, electors and certain other persons, one curious attempt was made, previous to the civil war, to prevent certain abuses incident to the patronage system by means of an amendment to the Constitution. This amend ment was proposed by Mr. Quincy of Massachusetts, January 30, 1811. It provided that "no person standing to any Senator or Representative in the relation of father, brother, or son, App., No. 1541. It conferred upon the President power to remove heads of Departments and bureaus, and all persons connected with the diplomatic service. All other officers could be removed when their services were unnecessary, or for cause, but the reasons should be reported to the Senate. In 1886, owing to some friction between President Cleveland and the Senate, an amendment was proposed to give the election of Senators to the people, because The Senate, a subordinate branch of the legislative department,*** is now attempting to interfere with the power confided solely to the President of removing officials" Preamble to App., No. 1674. See ante, p. 61, note 7. 2 App., No. 270. App., Nos. 1344, 1376, 1405. 1517, 1532, elected by the people; No. 1547 appointed by a com. mission. See post, par. 61. App., No. 1566, appointed by a house of electors. Post, par. 61. |