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THE CIVIL SERVICE STATUTE.

consistent with this act, conferred by the 1753d section of said statutes; nor shall any officer not in the executive branch of the government, or any person merely employed as a laborer or workman, be required to be classified hereunder; nor, unless by direction of the Senate, shall any person who has been nominated for confirmation by the Senate be required to be classified or to pass an examination.

SEC. 8. That no person habitually using intoxicating beverages to excess shall be appointed to, or retained in, any office, appointment, or employment to which the provisions of this act are applicable.

SEC. 9. That whenever there are already 2 or more members of a family in the public service, in the grades covered by this act, no other member of such family shall be eligible to appointment to any of said grades. SEC. 10. That no recommendation of any person who shall apply for office or place under the provisions of this act which may be given by any Senator or member of the House of Representatives, except as to the character or residence of the applicant, shall be received or considered by any person concerned in making any examination or appointment under this act.

SEC. 11. That no Senator, or Representative, or territorial Delegate of the Congress, or Senator, Representative, or Delegate elect, or any officer or employé of either of said houses, and no executive, judicial, military, or naval officer of the United States, and no clerk or employé of any department, branch, or bureau of the executive, judicial, or military or naval service of the United States shall, directly or indirectly, solicit or receive, or be in any manner concerned in soliciting or receiving, any assessment, subscription, or contribution for any political purpose whatever, from any officer, clerk, or employé of the United States, or any department, branch, or bureau thereof, or from any person receiving any salary or compensation from moneys derived from the Treasury of the United States.

SEC. 12. That no person shall, in any room or building occupied in the discharge of official duties by any officer or employé of the United States mentioned in this act, or m any navy-yard, fort, or arsenal, solicit in any manner whatever, or receive any contribution of money or any other thing of value for any political purpose whatever.

SEC. 13. No officer or employé of the United States mentioned in this act shall discharge, or promote, or degrade, or in [any] manner change the official rank or compensation of any other officer or employé, or promise or threaten so to do, for giving or withholding or neglecting to make any contribution of money or other valuable thing for any political purpose.

SEC. 14. That no officer, clerk, or other person in the service of the United States shall, directly or indirectly, give or hand over to any other officer, clerk, or person in the service of the United States, or to any Senator or member of the House of Representatives, or territorial Delegate, any money or other valuable thing on account of or to be applied to the promotion of any political object whatever.

SEC. 15. That any person who shall be guilty of violating any provision of the four foregoing sections, shall be deemed guilty of a misdemeanor, and shall, on conviction thereof, be punished by a fine not exceeding $5,000, or by imprisonment for a term not exceeding 3 years, or by such fine and imprisonment both, in the discretion of the court. Approved, January 16th, 1883.

SECOND APPENDIX.

THE POWER OF REMOVAL (CONTINUED).

THE Journal of William Maclay (Appleton & Co.) sheds much light on the debates of the United States Senate from 1789 to 1791. The book is fearless, independent, original, descriptive, instructive, and but for the fact that Senator Maclay suffered acutely with rheumatism during his entire term of office, would doubtless have been fuller and perhaps fairer. Mr. Maclay's 'notes' of the Foreign Affairs bill debate begin July 14, 1789.* In substance he says (p. 109):

There are a number of such bills, and may be many more, tending to direct the most minute particle of the President's conduct. If he is to be directed how he shall do everything, it follows he must do nothing without direction. To what purpose then is the executive power lodged with the President, if he can do nothing without a law directing the mode, manner, and, of course, the thing to be done? May not the two Houses of Congress, on this principle, pass a law depriving him of all powers? You may say it will not get his approbation. But two-thirds of both Houses will make it a law without him, and the Constitution is undone at once.

Gentlemen may say, How is the government then to proceed on these points? The simplest in the world. The President communicates to the Senate that he finds such and such officers necessary in the execution of the government, and nominates the man. If the Senate approve, they will concur in the measure; if not, refuse their consent, etc, when the appointments are made. The President, in like manner, communicates to the House of Representatives that such appointments have taken place and require adequate salaries. Then the House of Representatives might show their concurrence or disapprobation by providing for the officer or not. I thought it my duty to mention these things, though I had not the vanity to think that I would make any proselytes in this stage of the business; and perhaps the best apology I could make was not to detain them long.

*For particulars about this bill and debate, see page 112, &c.

234 OFFICE DURING PLEASURE UNCONSTITUTIONAL.

I also said that, if the Senate were generally of my mind, a conference between the Houses should take place. But the sense of the House would appear on taking the question upon the first clause. The first clause was carried.

Now came the second clause. It was for the appointment of a Chief Clerk by the Secretary, who, in fact, was to be the principal, "whenever the said principal officer shall be removed from office by the President of the United States." There was a blank pause at the end of it. I was not in haste, but rose first: Mr. President, whoever attends strictly to the Constitution, will readily observe that the part assigned to the Senate was an important one-no less than that of being the great check, the regulator and corrector, or, if I may so speak, the balance of this government. In their legislative capacity they not only have the concoction of all bills, orders, votes, or resolutions, but may originate any of them, save money bills. In the executive branch they have likewise power to check and regulate the proceedings of the President. Thus treaties, the highest and most important part of the Executive Department, must have a con: currence of two-thirds of them. All appointments under the President and Vice-President must be by their advice and consent, unless they concur in passing a law divesting themselves of this power. By the checks which are intrusted with them upon both the executive and the other branch of the Legislature, the stability of the government is evidently placed in their hands.

The approbation of the Senate was certainly meant to guard against the mistakes of the President in appointments to office. I do not admit the doctrine of holding commissions during pleasure' as constitutional, and shall speak to that point presently.* But supposing that to be the case, is not the same guard equally necessary to prevent improper steps in removals as in appointments? Certainly common inference or induction can mean nothing short of this. It is a maxim in legislation as well as reason, and applies well in the present case, that it requires the same power to repeal as to enact. The depriving power should be the same as the appointing power.

But was this a point left at large by the Constitution? Certainly otherwise. Five or six times in our short Constitution is trial by impeachment mentioned. In one place the House of Representatives have the sole power of impeachment; in another the Senate; in a

*He doubtless did so, but neglected to record his words in his Journal, for in closing up his notes for the day (July 14) he says: "In looking over my notes I find I omitted to set down sundry ar guments which I used. But no matter; I will not do it now."

MR. MACLAY FEARS THE PRESIDENT.

235

third judgment shall not extend further than to removal from office and disqualification to hold or enjoy offices, etc.; the President shall not pardon in cases of impeachment: the President, Vice-President, and all civil officers of the United States shall be removed on impeachment, etc. No part of the Constitution is so fully guarded or more clearly expressed than this; and most justly too, for every good government guards the reputation of her citizens as well as their life and property. Every turning out of office is attended with reproach, and the person so turned out is stigmatized with infamy. By means of impeachment a fair hearing and trial are secured. Without this, what man of independent spirit would accept of such an office? Of what service can his abilities be to the community if afraid of the nod or beck of a superior? He must consult his will in every matter. Abject servility is apt to mark the line of his conduct; and this will not fail to be productive of despotism and tyranny, for I consider mankind composed of nearly the same materials in America as in Asia, in the United States as in the East Indies. The Constitution certainly never contemplated any other mode of removing from office. The case is not omitted here; the most ample provision is made. If gentlemen do not like it, let them obtain an alteration of the Constitution; but this cannot be done by law.

If the virtues of the present Chief Magistrate are brought forward as a reason for vesting him with extraordinary powers, no nation ever trod more dangerous ground. His virtues will depart with him, but the powers which you give him will remain, and if not properly guarded, will be abused by future Presidents, if they are men. This, however, is not the whole of the objection I have to the clause. A Chief Clerk is to be appointed, and without advice or consent of the Senate. This clerk, on the removal of the Secretary, will become the principal in the office, and so may remain during the presidency, for the Senate cannot force the President to nominate a new officer. This is a direct stroke at the power of the Senate. I consider the clause as exceptionable every way, and therefore move to strike it out,

Langdon jumped up in haste; hoped the whole would not be struck out; moved that the clause only of the President's removing be struck out. Up rose Ellsworth, and a most elaborate speech in deed did he make, but it was all drawn from writers on the distri bution of government. The President was the executive officer. He was interfered with in the appointment, but not in the removal. The Constitution had taken one but not the other from him. Therefore removal remained to him entire. He absolutely used the following expressions with regard to the President: "It is sacrilege to touch

236

MR. BUTLER'S SARCASTIC SPEECH.

a hair of his head; and we may as well lay the President's head on the block and strike it off with one blow."

When he sat down both Butler and Izard sprang up. Butler, however, continued up. He said he came into the House in the most perfect state of indifference, and rather disposed to give the power in question to the President. But the arguments of the honorable gentleman from Connecticut (Mr. Ellsworth), in endeavoring to support the clause, had convinced him in the clearest manner that the clause was highly improper, and he would vote against it.* Izard now got at it and spoke very long against the clause. Strong got up for the clause, and a most confused speech he made indeed. I have notes of it, but think it really not worth answering, unless to show the folly of some things that he said. Dr. Johnson rose and told us twice before he proceeded far that he would not give an opinion on the power of the President. However his whole argument went against the clause, and at last he declared he was against the whole of it. Mr. Lee spoke long and pointedly against the clause. He repeated many of my arguments, but always was polite enough to acknowledge the fact. He spoke from a paper in his hand.

July 15. Carroll spoke a considerable length of time. The burden of his discourse seemed to be the want of power in the President and a desire of increasing it. Great complaints of what is called the atrocious assumption of power in the States. Many allusions to the power of the British kings. The king can do no wrong. If any、 thing improper is done, the Ministers should answer.

Ellsworth rose with a lengthy debate. The first words he said were: "In this case the Constitution is our only rule, for we are sworn to support it." But he neither quoted it nor named it afterward except as follows, by allusion: "I buy a square acre of land, I buy the trees, water and everything belonging to it. The execu tive power belongs to the President. The removing of officers is a tree on this acre. The power of removing is therefore his. It is in him. It is nowhere else. Thus we are under the necessity of ascertaining by implication where the power is. Did we ever quarrel with the power of the Crown of Great Britain? No; we contended with the power of the Parliament. No one ever thought the Crown's power too great. We must extend the executive arm." The President would have power as far as he would be seen in his coach-and-six.

* Mr. Ellsworth was unwell during this debate. On page 73 of Maclay's Journal is this record: "Butler flamed away [against the proposed protective tariff] and threatened a dissolution of the Union with regard to his State as sure as God was in the firmament!"