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 serv ice. 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act" of 18676 accomplished the object aimed at by some of these amendments; but this act was partially repealed in 1869, and wholly repealed in 1877, so that at the present time the full power of removal has been restored to the President.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.

3 App., No. 728.

4 App., No. 979.

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 emoluments 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.4

5

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 amendment 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.

4 App., No. 1566, appointed by a house of electors. Post, par. 61. Ante, pars. 12, 21, 55.

by blood or marriage, shall be appointed to any civil office under the United States, or shall receive any place, agency, contract, or emolument from or under any Department or office thereof."

Mr. Wright moved to amend the same by adding a clause requiring "that each member of the Senate or House of Rep resentatives, when he takes his seat, file a list of his relations precluded by the said resolution." No further attempt, in addition to amendments referred to elsewhere, was made to counteract the system of rotation in office until 1864. In that year Senator Powell of Kentucky included in his article, to change the method of electing the President, a paragraph which declared that "it shall not be deemed compatible with the duty of a President habitually to use the patronage of his office for the special advantage of any particular political party, or suffer the patronage of any subordinate office so to be used." 2

Not until the agitation for the inauguration of reform in the civil service was well under way was another amendment suggested. In 1876 Mr. Williams of Michigan proposed a civil service reform amendment. It prohibited Senators and Representatives "from soliciting appointments to or removals from office." It further made provision for the creation of a commission of not less than five or more than nine which should have absolute advisory and confirmatory power in regard to appointments to and removals from office. Congress, however, was allowed to provide for the election of certain civil officers by the people of their respective States, districts, or locality, subject to removal by the civil service commission.3

Three years later, Mr. Turner introduced a resolution proposing that the Committee on Civil Service Reform in both branches of Congress should "be authorized and directed to inquire into and report upon the propriety of curtailing by constitutional amendment and by law the vast, corrupting, and dangerous patronage of the executive department." +

In the Forty-seventh Congress there were two amendments proposed depriving the President of a large share of the power to make appointments, by vesting this power in the one case in a commission, in the other in a house of electors. The first of these provided for the nomination and appointment of all public officers, except the heads of the Executive Departments, 1App., No. 403. 2 App., No. 1028. 3 App., No. 1417. 4 App., No. 1481a.

by a commission of three, composed of two commissioners appointed by the President-with the confirmation of the Senate-and the head of the Executive Department to which the business of the appointees belonged. Such appointments were to be temporary until confirmed by the Senate.' The other resolution proposed the creation of a house of electors, to be composed of one member from each State, elected by the people of the respective States, for the term of six years. Congress was to designate "what officers shall be elected, examined, or confirmed by the house of electors, and who shall make appointments for minor officers."2

Others have proposed as a remedy for the evils of the "spoils system" the making of many of the civil offices elective, thus rendering them in a large measure independent of the coercion of the Administration in power at Washington.3

62. MILITARY POWERS OF THE PRESIDENT.

Among the amendments proposed by the ratifying convention of the State of New York was one forbidding the President to command an army in the field in person, without the previous desire of the Congress. In the First Congress Mr. Tucker, doubtless influenced by this proposal, attempted to have the words "Commander in Chief" struck out of the Constitution, and the phrase "have power to direct the operations" inserted in their place. No similar proposition has been presented in either of the four wars of the United States."

63. THE PARDONING POWER OF THE PRESIDENT.

The New York convention which ratified the Constitution also proposed an amendment prohibiting the President granting pardon for treason without the consent of Congress, but

App., No. 1547. The commission also had power of removal, subject to approval of the Senate. Their term was to be four years, subject to removal by the President with consent of the Senate.

2 App., No. 1566. This resolution also provided for the election of postmasters by the people of the respective postal districts, subject to the confirmation of the house of electors or Postmaster-General, as Congress shall designate. The President was still to have the power of removal of any officer in the civil service for any reason except political.

3 See post, par. 64. The preamble of No. 1427 recites the evils and degradation of the system whereby one hundred thousand officers of the United States are subject to the coercion of the Administration in power, required to act, vote, and contribute money in accordance with the central will, by means of which caucuses and elections are controlled. App., No. 67.

Art. II, Sect. 2.

"App., No. 206.

7 See comment on the power of the President to force a war upon the country, written at the time of the Mexican war. Niles' Register, vol. LXXII, pp. 165, 166.

permitting him to grant reprieves until the case was laid before Congress.'

Only one other amendment has been proposed on this subject. This was suggested in 1869 by Mr. Ashley, who arraigned President Johnson for the wholesale use of the pardoning power. He suggested that the approval in writing of a majority of the Cabinet should be required before the President could grant reprieves or pardons, and that no general amnesty or pardon to persons who may have been engaged in rebellion. against the Government should be declared until the Congress had given its consent."

64. ELECTION OF EXECUTIVE OFFICIALS.

There have been twenty-eight propositions presented to Congress to amend the Constitution relative to permitting the election of postmasters and other local officers by the people. All of these have been introduced since 1848, and fifteen since 1881. The first time such a practice was sug gested was in 1848, when Mr. Wentworth of Illinois offered a resolution to require the Committee on the Judiciary to inquire whether any alteration of the Constitution was neces. sary in order to refer the election of either postmasters, or land officers, or revenue officers, or officers of any other kind, now appointed by the President, by and with the advice of the Senate, directly to the people. The resolution was agreed to, but the committee does not appear to have ever reported. Two other amendments were submitted previous to the civil war-one upon the election of deputy postmasters, the other upon the election of postmasters and collectors.

The first amendment on this subject after the war was introduced in 1866 by Mr. Broomall. It proposed that assessors and internal-revenue collectors should be elected by the people. A proposition for a popular election of some one or more classes of Federal officials has been presented in every Congress since 1871 down to the Forty-ninth Congress. Many of these, in addition to postmasters and revenue collectors, even provided that marshals, district attorneys and all other United States officials whose duties require them to live in the State, 1 App., No. 66.

3

App., No. 1315c.

$ App., Nos. 751, 768, 776, 1193 1331, 1334, 1344, 1376, 1379, 1405, 1417, 1427, 1444, 1517, 1526, 1527, 1532, 1546, 1554, 1556, 1558, 1566, 1582, 1598, 1618, 1646, 1658, 1664.

App., No. 1193.