CHAPTER VIII.

THE POWER OF REMOVAL.*

A remedy for its Mistakes and Abuses.-The Power discussed in the first Congress (1789).-The Decision then made criticised by Benton, Webster, and others.-The 4-Years' Term Law (note).

THE debate in the first Congress on the power to remove public officials was one of great interest and importance, and was besides very instructive. A bill was introduced in the House creating "The Depart

*On July 27, 1842, a Select Committee of the House, Garrett Davis chairman, reported as to "the cause, manner, and circumstances of the removal of Henry H. Sylvester, late a clerk in the Pension Office." It favored the repeal of the 4-years' law; also the giving of written reasons for removals, that the removed officer might have "an opportunity to arraign his superior for an abuse of power, both before the country and Congress." It denounced secret removals as "unjust, impolitic, and immoral." "No removal should ever take place except when the public weal requires it." It further says (H. Repts. No. 945, 27th Cong., 2d Sess., vol. iv, p. 4): "Your committee know no portion of the American population which is more oppressed and enslaved in will and spirit than the subordinates in the executive departments; none among whom there is more mental suffering, arising from a constant dread of being visited with the petty proscription of some small tyrant, clothed with (sic) a little brief authority,' by which they and their families are to be deprived of their support. It was the duty of Mr. Spencer * have protected such a subordinate as Sylvester."

* *

to

On page 6 of this powerful and most admirable report the committee says: "The practice of treating all the offices of this great government as 'the spoils of victory,' and, with the rise and fall of contending parties, the ejection of a large multitude of experienced, honest, and capable incumbents, to make room for needy mercenaries, who entered the political conflict without any principle or love of country, but impelled wholly by a hope of plunder, is the greatest and most threatening abuse that has ever invaded our system. It makes the President the great feuda

"AN INVIOLABLE RIGHT."

113

ment of Foreign Affairs" (State Department), the Secretary of which was, in the words of the bill, "to be removable by the President of the United States."* The discussion was on striking out the last quoted word. The majority claimed that the President alone had the power of removal, while the minority claimed that the consent of the Senate was necessary; that is, in the case of officers confirmed by the Senate.

Judged by the light of nearly a century of experience, it is plain that both sides were partly right and partly wrong. The forefathers, who were legislating for less than four million of people, were constructing a political chart to guide and protect future generations, and it is not strange that they should have made a few mistakes. While it is clear, as pointed out by the majority, that the President should have tory of the nation, and all offices fiefs, whose tenure is suit and service to him. It is because all those fiefs are at his sovereign will, to be confirmed or granted anew after each presidential election, that the whole country is kept perpetually convulsed by that oft-recurring and allabsorbing event."

The report of the Morehead Committee on Retrenchment, made June 15, 1844, is chiefly devoted to the evils of executive patronage and the abuse of the power of removal. Speaking of the latter subject, the committee proclaims the following incontrovertible truth (S. Docs. No. 399, 28th Cong., 1st Sess., vol. vii, p. 31): "A citizen of the United States who accepts a public trust, however obscure his birth or humble his employment, has an inviolable right to be protected in the faithful discharge of his duties from the violence or the menaces of arbitrary power."

On page 55 the committee recommends the passage of a civil service law (the first of its kind, so far as I know, ever made in Congress), as follows: "That a law ought to be passed, prescribing regulations as regards the qualifications, the appointment of persons to office, * * * and declaring the disqualifications or the reasons which will be considered in law sufficient to authorize the President, the heads of departments. and courts of law to suspend, dismiss, or remove persons from office." *The motion to establish the above and other Executive Departments was made originally by Mr. Boudinot, in a speech, on May 19, 1789.

114

A PROPOSED BOARD OF APPEALS.

the power of removal, it is equally clear, as pointed out by the minority, that there should be a check to prevent him or anybody else from abusing it. Further, the President and his chief officials are as liable to make mistakes as other men. Of all public men they should be the first to correct a mistake or to right a wrong, and thus set an example for others to follow.

We should give officeholders, chief as well as subordinate, all the protection we can from mistakes, dislikes, fits of passion, jealousy, prejudices, caprices, intrigues, &c. But what kind of protection can we give them? It appears to me that, under the civil service law system, a Board of Appeals should be established, which could be increased in number as the number of offices and the scope of the law increase, before which all reasonable complaints could be heard, and that where the complaint is sustained, the aggrieved official should be reinstated with full pay.* It is required by Rule 16 that the Civil Service Commissioners shall perform the work of this proposed Board. But as the Commis

*There is a remedy for every distemper in government, if the people are not wanting to themselves. For a people wanting to themselves, there is no remedy.-JAMES WILSON.

Napoleon was a despot, it is said. Yet he never dismissed any one from public office without an inquiry and report of facts, and rarely ever without hearing the accused functionary; never when the questions involved were civil or administrative.-NAPOLEONIC IDEAS. BY LOUIS NAPOLEON.

But Napoleon, who was a statesman as well as a soldier, sometimes dismissed officials without much ceremony. "You cannot find me guilty of dishonesty,' observed the minister, Barbé-Marbois, on receiving his dismissal. I had rather,' replied Napoleon, that you had shown yourself dishonest than a fool. There is a limit to one; there is none whatever to the other." (Crowe's "History of France," v, 147.)

Napoleon was right in one respect at least, namely, that fools are not proper persons to fill public offices

RESTRAINT THE BODY-POLITIC SAFETY-VALVE.

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sioners are already overworked, the proposition is not practical. The functions of this proposed Board would resemble in one respect those of the Supreme Court of the United States, for one of the most important functions of the Supreme Court is to correct the mistakes of the legislative and executive departments. Again, having had nothing to do with the nomination, confirmation, or appointment of officers, it would, like the Supreme Court, be free of prejudice. Such a Board would be at least a partial check on the President and all other chief officials, and would aid in preventing some future Jackson or Lincoln from throwing the official machinery of government out of gear. This is well, for restraint, in public as well as in private life, is the safety-valve of the body-politic.

The minority, as before said, were certainly right about the necessity of a check to prevent the President from abusing the power of removal. But the senatorial check they proposed, however practical it may have been then, is certainly not practical now, for, on account of the great increase of business, the Senate has hardly time now to look after confirmations, much less removals. Further, the exact check they proposed was incorporated in the Tenure of Office Act of 1866-67,* and was found in practice to be unsatisfactory. One example of its inefficacy will suffice. J. D. Cox, in an article in the North American Review for January, 1871 (p. 87), in speaking of the corruption at Washington after the demoralizing civil war, and incidentally of the Tenure of Office Act, says that "dishonest (official) incumbents were plundering the people under the shelter of a Tenure of Office Act, which seemed to be skillfully adapted to remove every

* Repealed in 1887.

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GREAT USE AND POWER OF THE SENATE.

trace of responsibility from both the appointing and confirming powers. The Republicans in Congress were complaining that the President refused to remove men who were indicted or convicted in the courts, and the friends of the President retorted that the Senate refused to consent to the removal of others who were proven to be plunderers of the treasury on the like evidence." *

Again, the minority were certainly right about it being the intention of the framers of the Constitution that the Senate should be a check on the President, and also (which was admitted by the majority) that its duties are sometimes executive and sometimes judicial, and that it is to this extent blended with both the executive and judicial departments. The Senate, so far as the removal of an officer confirmed by it is concerned, is at all times a more or less perfect check on the President, because he has to depend on it for the confirmation of a successor. The Senate, in fact, as it is almost selfevident was the intention of the framers of the Constitution, exercises great power. It should therefore be composed of experienced and trained statesmen only. No mere politician should enter its chamber. And it would be better, far better, that its members should all be as poor as Socrates, than that one of them should be chosen on account of his wealth, or be even charged with buying his election. Bad men may get into the Senate; but the people who, on account of this fact, howl for its abolition, would destroy the equilibrium of the government. They might as well, for the same reason, ask for the abolition of either the House of Representatives or the United States Supreme Court. The proper remedy is purification.

*See the remarkable prediction of Mr. Ames, page 125. Mr. Madison (page 117) also indulges in some lamentable forebodings, and under the patronage system their realization is not impossible.

Grote says (His. Greece, viii, 461, 463): "The political opinions of Socrates were much akin to his ethical, and deserve especial notice, as having in part contributed to his condemnation by the dicastery [jury court].** *The legitimate king or governor was not the man who held the scepter, nor the man elected by some vulgar persous, nor he who had got the post by lot, nor he who had thrust himself in by force or by fraud, but he alone who knew how to govern well. *** I was absurd to choose public officers by lot, when no one would trust himself on shipboard under the care of a pilot selected by hazard. *** The best man is he who, as an husbandman, performs well the duties of husbandry; as a surgeon, those of medical art; in political life, his duty toward the commonwealth."