# Field v. People

> Illinois Supreme Court · December 15, 1839 · 3 Ill. 79

URL: https://www.frixlaw.com/law-library/cases/6946064

## Case

- **Full name:** Alexander P. Field v. The People of the State of Illinois, ex relatione John A. McClernand
- **Court:** Illinois Supreme Court
- **Decided:** December 15, 1839
- **Citations:** 3 Ill. 79
- **Precedential status:** Published
- **Opinion:** Concurrence by Lockwood
- **Judges:** Lockwood, Smith, Wilson
- **Cited by:** 51 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6946064

## Opinion text

Lockwood, Justice, concurring with the Chief Justice :
The record in this cause exhibits the following facts. “ At the April term, 1839, of the Fayette Circuit Court, Wickliffe Kitchell, Esq., the Attorney General, on behalf of the people of the State of Illinois, on the relation of John A. McClernand, filed in said Court an information in the nature of a quo loarranto, setting forth that Alexander P. Field, without legal grant, right, or warrant whatsoever, had, for a long space of time then last past, to wit, for the space of ten days last past, unlawfully held and exercised the office of Secretary of State of the State of Illinois, and, without any legal right, warrant, or grant whatsoever, still does unlawfully hold and exercise the said office; and that he, for and during all the time last above mentioned, without any legal right, warrant, or grant whatsoever, has claimed, and still does claim, to be Secretary of State, and to hold and exercise the said office, and to keep the Seal of the State aforesaid, without any lawful warrant, grant, or right so to do ; against the peace and dignity of the people of the State of Illinois.”
To this information the said Field filed the following plea, to wit: “ The said Field, to the office, duties, and emoluments of Secretary of State, says, he is lawfully entitled, by appointment from the Governor of the State of Illinois, by and with the consent of the Senate of said State, on the 23d day of January, 1829; which said appointment was followed by a commission issued in the usual form, under the Great Seal of State, (and which is set forth in full in the plea,) and by this warrant the said Field has used during all the time in the said information mentioned, all the powers and duties of said office, and received the emoluments appertaining thereto, as he well might, and still may. Without this, that the said Field has unlawfully held and exercised the said office in manner and form as is by the said information supposed ; all of which he is ready to verify,” &c.
To this plea the people, by their Attorney General, replied, admitting the appointment, by Ninian Edwards, then Governor of the State, of the said Field, at the time stated in the plea ; and that, in pursuance of said appointment, he lawfully entered upon the discharge of the duties of the office, and continued to discharge them from the time of his appointment until the time of his removal as afterwards mentioned. That long after the appointment as aforesaid, to wit, on the first Monday in August, 1838, Thomas Carlin was elected Governor of the State of Illinois, and lawfully entered upon the discharge of the duties of said office, and still continues to exercise and discharge them ; and that on the fifth day of April, 1839, he, being Governor of the State, did, at the county aforesaid, by virtue of his authority as Governor, order and direct in writing, under his hand as Governor, the said Field to remove from, and out of, said office of Secretary of State, and to desist from further exercising the duties of said office, or from enjoying the privileges and immunities, or from taking the emoluments thereof; and did then and there remove the said Field from said office ; and did further direct, at the same time and place, by virtue of his authority as Governor, the said Field to deliver up to the said McClernand, the said office, and all the records and papers appertaining to the same, together with the Seal of State. And the said Attorney General, further averred, that Thomas Carlin, then being Governor, did, by virtue of his authority as Governor, afterwards, to wit, on the fifth day of April, 1839, appoint John A. McClernand, the relator, Secretary of State, and did then and there authorize the said McClernand to enter into said office, and to exercise the duties of the same ; and which appointment was then and there accepted by said McClernand ; and afterwards, on the same day and year aforesaid, the said McClernand, so authorized as aforesaid, did then and there call upon the said Field, and request him then and there to deliver up to him said office, with all the records and papers belonging thereto, and also the Seal of State; which said Field refused to do, and still refuses to do, and refuses to move out of and from said office, and still continues to exercise the functions thereof; with a replication and prayer of judgment.
To this replication there was a demurrer by Field, and a joinder by the Attorney General.
After argument heard, the Court below gave judgment on the demurrer in favor of plaintiffs below, that Field, the defendant below, be amoved from said office of Secretary of State. To reverse this judgment, an appeal has been taken to this Court.
The highly important question arising in this cause, was argued at great length, and with zeal and ability, at the last July term of this Court ; and it is much to be regretted that circumstances existed in the case, that required an immediate decision. It was the desire of the Court to have taken time to examine the question with more thoroughness and deliberation than the press of other business, and the shortness of the time, would allow. But the relator and the appellant were both exercising the duties of the office, and in a few days important elections were to take place in the State; and, unless a decision was made, great uncertainty would exist in the public mind as to the person to whom returns should be made, and probably much public mischief would ensue.
The Court, in view of the necessity of the case, came to the conclusion, (although they were unable to accompany their decision with their reasons,) that a decision was absolutely necessary to be made. In making the decision, without giving the reasoning on which it was based, the majority of the Court were fully aware that they were exposing themselves to much misconstruction and misrepresentation ; but considerations of duty to the public, overweighed any feelings of repugnance that they possessed to be thus subjected to misconstruction and abuse. The question presented by the record, is, Does the Constitution confer on the Governor of this State the power, at his will and pleasure, to remove the Secretary of State without any official misconduct on the part of the Secretary ?
In being thus called on to decide this question, the majority of the Court did not feel that they were required to decide a new and controverted point. Two former decisions of this Court had, in our estimation, settled the question.
The Constitution of this State says, that “ The Governor shall nominate, and by and with the advice and consent of the Senate, appoint a Secretary of State.” It also says, “ The Supreme Court, or a majority of the justices thereof; the Circuit Courts or the justices thereof, shall respectively appoint their own clerks.” By an act of the legislature, passed in 1819, the County Commissioners’ Courts were authorized to appoint their clerks. Now if the Governor has by implication the power of removing the Secretary of State, then the same language used in relation to the Courts in the Constitution and law of 1819, must also, by implication, have conferred the power of removal on the Courts ; yet this Court in 1822, in the case of Street against the County Commissioners of Gallatin County, (1) decided “that the County Commissioners’ Court bad no power to remove Street and appoint another clerk to said Court ; ” and awarded a mandamus to restore Street. This decision received the unanimous sanction of the Court.
In the case of the People, on the relation of Matheny, against Mobley, (2) (decided in this Court at the December term, 1835,) the judge of the Circuit Court of Sangamon County had removed Matheny from the office of clerk of the Court, and appointed Mobley to be his successor. Matheny filed his information, and, upon the case coming into this Court, it was decided, by the concurrence of all the justices, that the judge of the Circuit Court of Sangamon County had no power, at his discretion, to remove the clerk of said Court, and required that Matheny should be restored to his office. These cases are considered as directly in point, and as deciding the doctrine, that the appointing power has not, under the Constitution, the power of removal from office.
The case of The People v. Mobley was ably argued, and at a time when no party excitement mingled in the discussion. Matheny had been removed by a judge who was highly esteemed, both by the public and the members of this Court, for his sound learning, and the purity of his administration of justice. The decision was made on great deliberation, and has been universally acquiesced in, both by the profession and the public. The decision conforms to a previous decision of this Court, made at an early period of our judicial history, and is also in perfect conformity with the repeated action of the legislature in relation to removal from office.
No good grounds were shown in the argument of this cause, as we believed, why these cases should be overruled, and consequently we feel ourselves bound by them. These clerks had a more intimate official relation to their respective Courts, than the Secretary has to the Governor. It is also to be observed, that in each of these cases the whole of the appointing power had concurred in the removal; whereas, in this case, the Secretary had been removed by the Governor alone, who is only a part of the appointing power. This circumstance, in our view, made the case much stronger against the right of the relator to the office. In addition to the decisions above referred to", the Governor, during the late session of the legislature, had nominated the relator to the Senate, to fill the office of Secretary of State; which body rejected the nomination, and, by a vote of twenty-two to eighteen, passed the following resolution, to wit: “ That the executive does not possess the power to nominate to the Senate a Secretary of State, except in case of a vacancy in that office, and that, inasmuch as the Senate has not been advised of any vacancy in that office, the nomination of John A. McClernand be not advised and consented to by the Senate.”
By this resolution of the Senate, we understand that body to have decided, that the Governor had no power to remove the Secretary.
The Senate, equally with the Governor, are elected by the people. The opinions of the Senators, consequently, are entitled to respectful consideration.
These decisions of the Supreme Court, the repeated acts of the legislature in relation to the power of removal, and this decision of the Senate, required the Court, as it seemed to us, to decide, that the Governor had not, by the Constitution of this State, the power, at his will and pleasure, to remove the Secretary of State; and consequently judgment was rendered at the last term, that the judgment of the Circuit Court should be reversed, with costs, to be paid by the relator.
If, in making this decision, an error has been committed by the majority of the Court, it is committed on the safe side of the question. Had we decided that the Governor possessed the power of removal, the Court would, by construction, have declared the existence of a power in the Governor, which, if erroneously decided, or if the power, in the judgment of the public, should be abused, could only have been remedied by the expensive, exciting, and tedious process of calling a convention, and altering the Constitution. But as the decision was made, the legislature can, at any time, if they deem it wise, confer the power of removal on the Governor; and then, if injurious consequences should result, the legislature can repeal the law, and remedy the evil.
Having thus summarily given the reasons that governed the majority of this Court in making their decision at the last term, I will now proceed to enquire more at large into the correctness of that decision.
On the argument of this cause, it was contended, that if the Court decided that the Governor had no power to remove the Secretary, then he would hold his office for life.
If this consequence flows from the decision, the Court is not responsible for it. But I cannot yield my assent to the correctness of the conclusion. What is a life office ? I understand by a life office, an office held during the life of the incumbent, irrespective of qualifications or moral character. He holds the office, whether he discharges its duties or neglects them, and whether he acts honestly or corruptly.
At common law, a life office is an incorporeal hereditament, and the officer has an estate in the office, of which he cannot be deprived, however useless the office may be to the public. If this is a correct description of a life office, it is not entitled to favor from any quarter, and receives none from me. I am, however, satisfied, that no such office can exist under our Constitution, The judges, whose terms of office are the most durable of any in our government, hold only during good behavior, and no officer can hold by a more stable tenure. By the Constitution, every civil officer is liable to impeachment for any misdemeanor in office, and, on conviction, is removed. This provision at once puts an end to the idea of a life office, under our Constitution. Where the Constitution creates an office, and leaves the tenure undefined and unlimited, the officer holds during good behavior, until the legislature by law limits the tenure to a term of years, or authorizes some functionary of the government to remove the officer at will, or for good cause. This power the legislature have an undoubted right to confer.
The offices of Auditor of Public Accounts and Attorney General are both created by the Constitution, and the tenures of these officers, like that of Secretary of State, are unlimited. The legislature, however, by law, have limited the tenure of the offices of Auditor and Attorney General to a period of years.
Holding office during good behavior has also been the subject of much declamation, and is by many repudiated. Whether any office should be held by this tenure is entirely a question of expediency, and to be settled by the framers of the Constitution. Before, however, this principle, introduced into the Constitution of the United States, and most of the Constitutions of the original States, by the venerated patriots of the Revolution, is wholly rejected as anti-republican, perhaps a few suggestions and enquiries may not be inappropriate.
What is a public office ? Is it not a public trust, created for the purpose of promoting the public good ? What qualities in the officer are requisite to enable him properly to discharge his official duties ? Are not intelligence, integrity, faithfulness, and experience essential ? In whom are these combined qualities most likely to be found, — in the novice, or in the man of experience ? in the man just come into office, or the man who has been long enough in office to have gained a thorough knowledge of its duties ? Will, then, the public gain by clothing the executive with power to remove its officers at his will and caprice ? By frequent changes, is not the probability increased of getting not only incompetent, but dishonest men in office ? If the officer is honest, faithful, and capable, are not all the objects effected that were intended to be accomplished by the creation of the office ? What public good can be effected by the change of such an officer ? What greater inducement can there be to the 'faithful discharge of official duties, than the knowledge that the incumbent can only lose his office by negligently or corruptly discharging his duties ?
Perhaps it would not be unwise to enquire why, in the early history of our country, when executive removals were less frequent than at present, we find the duties of office more diligently and honestly discharged ? And why so rarely defalcations occurred ? And why, since offices have been held at the caprice of some functionary of the government, such wide-spread corruption should have become so prevalent among public officers, as nearly to bankrupt the treasury of the nation ?
It would be well, also, to enquire whether, when the tenure of office is very short, or it is at the will and caprice of another, men of competent talents, independence, and integrity are likely to accept office ? Whether the officer ought to hold his living upon the tenure of sacrificing his principles and opinions at the nod of another person P And whether this would not be making our public officers the sycophantic and corrupt tools of power, rather than the faithful and useful servants of the people ?
Would not, then, the public interests be best promoted by continuing faithful public servants in office, and by providing, at the same time, by judicious legal enactments, for the punishment and removal of the- unfaithful and corrupt ? It is not the province of the judge to answer these questions ; but they are commended to the serious consideration of those whose duty it is to devise wise measures to promote the public prosperity and happiness. Should it be said, that holding office during good behavior, is essentially holding office for life, I answer, that this result can only take place on condition that the officer faithfully and honestly performs his duty ; and if the duties of the office are well performed, who is injured ? Does the public service sustain any detriment ? But, if it is wrong on principle, to hold office during good behavior, on whom does the blame rest ? Surely not on the Court, whose only province is, to declare what the Constitution or law is, without the power to make either, or declare what either should be.
The Constitution, by leaving the offices of Secretary, Auditor and Attorney General, without limiting their tenure, has left it a question of expediency for the legislature to determine by law, for what length of time these officers shall continue in office ; for what misconduct, during their continuance in office, they shall forfeit their offices ; and what officers or tribunal shall determine when the forfeiture has occurred. On this principle, the first legislature passed laws, declaring that justices of the peace and notaries public should hold their offices during good behavior, and the latter officers still hold by that tenure.
By one of these statutes, justices of the peace could only be removed by impeachment before the Senate. But to return to the question before the Court, whether the Constitution of this State confers on the Governor the pow'er of removing the Secretary of State at his will and pleasure. If this power exists, it must be found in one of the following clauses of the Constitution, to wit: The executive power of this State shall be vested in a Governor.” “ He may require information in writing from the officers in the executive department, upon any subject relating to the duties of their respective offices, and shall take care that the laws be faithfully executed.” “ The Governor shall nominate, and, by and with the advice and consent of the Senate, appoint a Secretary of State, who shall keep a fair register of the official acts of the Governor, and, when required, shall lay the same, and all papers, minutes, and vouchers relative thereto, before either branch of the General Assembly ; and shall perform such other duties as shall be assigned him by law.” It will be readily conceded by all, that in none of these provisions of the Constitution is the power of removal expressly conferred on the Governor. I will, therefore, examine each of these clauses of the Constitution separately, to ascertain, if, by any fair construction, the power of removal can be inferred from any of them.
And, first, Is the power of removal conferred on the Govern- or, by the clause vesting the executive power in the Governor ? It was insisted, on the argument, that appointment to office, and removal from office, were executive functions ; and that the power of removal was conferred, by this provision, on the Governor. Before, however, any such construction can be given to this clause, it will be necessary to look further into the Constitution, and ascertain what other principles it contains, that may be affected by the construction. The Constitution authorizes the Supreme and inferior Courts, to appoint their own clerks ; and authorizes the two houses of the General Assembly to appoint the judges of the Supreme and inferior Courts; the Treasurer, Auditor of Public Accounts, Attorney General, public printer, and such other officers for the State as may be necessary. The legislature, under this clause, authorizing them to appoint “ such other officers for the State as may be necessary,” have passed from time to time laws authorizing the two houses of the General Assembly, to appoint State’s Attorneys, Commissioners to construct the Illinois and Michigan Canal, Fund Commissioners, Commissioners for Internal Improvements, and a great variety of other commissioners for temporary and local purposes. The legislature, also, by giving a broad construction to the latter clause of the twenty-second section of the third article, which is as follows : “ Inspectors, collectors, and their deputies, surveyors of the highways, constables, jailers, and such inferior officers whose jurisdiction may be confined within the limits of the county, shall be appointed in such manner as the General Assembly shall prescribe,” have passed laws, authorizing the people periodically to elect County Commissioners, Clerks, Recorders, Surveyors, Treasurers of counties, and Probate Justices. Within the last six years, the Governor has been stripped of the whole appointing power, with the exception of Secretary of State, Notaries Public, and perhaps a few other officers, of little or no importance.
The Constitution also authorizes the people, periodically, to elect Sheriffs, Coroners, and County Commissioners. Now, while I willingly agree, that appointment to office is, in its nature, an executive, rather than a legislative or judicial function, and it perhaps would have been wise, had the Convention so considered the subject, and conferred the whole appointing power upon the executive, with the advice and consent of the Senate, yet a careful examination of the various provisions of the Constitution, in relation to the power of appointing the officers of government, must lead to any other conclusion, than that the Convention considered the appointing power an executive function.
The Constitution gives the appointment of the most important of the local officers to the people ; and the legislature, to carry out what they believed the intention of the framers of the Constitution, have passed laws giving the appointment of nearly'all the inferior officers either to the people, or to the two houses of the General Assembly. On two occasions, the Council of Revision attempted to sustain the doctrine, that appointment to office was an executive function, and ought not to be exercised by the two houses ; but the views of the Council were not finally concurred in by the legislature ; and the Council have, since, repeatedly given their sanction to the passage of laws authorizing the two branches of the legislature, and the people, to appoint public officers. After the Governor and judges of the Supreme Court, as members of the Council of Revision, and the legislative body have frequently, and at different sessions, passed laws in conflict with the doctrine, that the appointing to office is an executive function, it would be absurd, whatever our theoretical opinions may be, any longer to consider, under our Constitution, and the legislation under it, that appointment to office, is, in practice, an executive function.
But were I still disposed to insist that appointment to office is an executive function, it by no means follows, that, under our Constitution, removal from office is also an executive function. Although the power of the President to remove from office, under the Constitution of the United States, has been the generally received doctrine, yet I might cite distinguished names in favor of the doctrine, that removal from office, during the period for which the officer was appointed, can only take place in pursuance of authority conferred by law. Whether this doctrine be correct or not, it is not my present purpose to enquire ; but I shall attempt to show, that removal from office is not, under the Constitution and laws of this State, an executive function. If it be an executive function, it follows, that the Governor, at his will and caprice, and without any official delinquency on the part of the officer, has the power to remove every officer in the government, except judges, from Secretary of State down to constable. It must be here recollected, that this power is nowhere expressly given to the Governor, and, that if it exists, it is only by inferring that the Convention intended to vest it in him, by conferring on him the executive power. Can it, then, for a moment be supposed, that the Convention intended to vest in the Governor a power, which, if exercised, would completely enable him to defeat the will of the legislature and of the people, in the appointment of nearly all the officers of the government ? To suppose that the Convention could be guilty of so great a piece of folly, is to accuse that body of a want of discernment. I am not willing to admit that it deserves such an accusation. It certainly could not have been the intention of its members to clothe the Governor with power to defeat the constitutional authority of the legislature and the people, in making appointments to office. It was urged, on the argument, that the Convention did not indulge, in any manner, a jealousy that the Governor would abuse the power conferred on him, but that its members reposed a liberal confidence in him, and were willing to see him vested with all the ordinary executive functions.
This argument, however, does not accord with the fact, that nearly all the appointing power is conferred either on the people, or on other departments of the government.
Executive powers and prerogatives have for ages been viewed with distrust, and, in most of the State Constitutions, as few powers are conferred on the Governors of the several States, as the nature of the executive office would permit. From these considerations I have come to the conclusion, that the Governor does not possess the power to remove the Secretary of State, under the grant of executive power.
Secondly. Does the Governor possess the power of removal under that clause of the Constitution authorizing him to call “ on the officers in the executive department for information in writing upon any subject relating to the duties of their respective offices ” ? The Constitution does not designate what officers belong to the executive department, but the general understanding is, that the Secretary of State, Auditor of Public Accounts, Treasurer, and Attorney General are the officers contemplated.
The same objection exists to the power of removal, as one incident to the right to call for information, as lies in the case of claiming the power under the clause giving the executive authority to the Governor. The power to remove would cover too much ground. It would enable the Governor to defeat, at his will, several appointments made by the General Assembly. Nor is it necessary, as the former action of the government proves, that the Governor should possess this power in order to compel these officers to perform this duty. Should either of these officers refuse to furnish the Governor with any information that he may desire, and which it is their duty to give, he may be impeached, and, should future experience prove that this fear of impeachment is inadequate to produce a compliance on their part, the legislature can always be invoked to provide such additional remedies as shall produce the requisite fidelity.
Thirdly. Does that provision of the Constitution, which requires, that the Governor “ shall take care that the laws be faithfully executed,” empower him to remove the Secretary, or any other officer, at his will and pleasure ? If, as has been shown before, the Governor possesses the power of removal under this provision, then he may, not only remove the Secretary of State, but every other officer in the State, except judges. For the reasons heretofore given, no such power can be implied in this case. Nor is it necessary that the Governor should have this power, in order to enable him to comply with this injunction of the Constitution. All that the Constitution contemplates is, that the Governor shall exercise a general oversight over the operations of the laws, and use such means, as the laws have placed in his hands, to overcome opposition, and remove obstacles to their due enforcement. If the laws be defective, or inefficient, it would doubtless be his duty to inform the legislature of such defects, and point out proper remedies. If the laws be opposed by force, it would be his duty, as the chief executive of the State, to call out the militia to aid the civil officer to put down such opposition. If a crime be committed, and the perpetrator escape into another State or country, it would be his duty to demand of the executive of the State where the fugitive had fled, that he be delivered up to the courts of this State for trial. Should a flagrant crime be secretly committed, he may, by proclamation, give notice of the fact, and offer a reward for the discovery of the perpetrator, and for his apprehension. In these and similar ways, I think the Governor will find full scope for his vigilance, in taking “ care that the laws be faithfully executed.” Should the Secretary, or any other officer, neglect or refuse to perform his duty, the laws possess sufficient energy to compel compliance, without resorting to the power of removal. If the Secretary refuses, or neglects, to perform any official duty, he may be impeached. He may also be compelled to perform the duty, by mandamus. If he, or any other officer, act partially or oppressively, from a malicious or corrupt motive, it is a fundamental principle of our government, that be may be punished, by a criminal prosecution. (1) The sheriffs of the different counties have more duties to perform, in relation to the execution of the laws, than all the other officers in the State ; yet, the present laws are abundantly sufficient to coerce these officers to a faithful discharge of their duties. For malfeasance, oppression, partiality in the discharge of their duties, or for any palpable omission of duty, they are liable to be indicted, and on conviction, to be removed from office. In addition to this, a party injured has a civil action, and for many neglects of duty, the courts of record have power to imprison them for contempt. ' I therefore conclude that it is not necessary, to enable the Governor to take care that the laws be faithfully executed, that he should possess the royal prerogative to remove the Secretary, or any other officer. If, however, as I have before observed, the present laws are inefficient, it will be within the scope of legislative competency, to provide other means to secure the faithful performance of official duties. Should the legislature deem it wise to vest this power in the Governor, they have the right so to do ; and if the Governor is to have this power, it is much better that it should be by legislative grant, than by the Constitution.
Fourthly. Does the Governor possess the power to remove the Secretary, in virtue of the clause of the Constitution which gives him, by and with the advice and consent of the Senate, power to appoint a Secretary of State ? If the power exists, I am willing to admit, that in this clause it is found. Yet, upon a much more mature consideration of the subject, than I was able to bestow upon the question, when the decision was made, I continue of opinion, that the Governor, according to the settled usage and practical construction of our Constitution, does not possess the power of removal under this provision of the Constitution. A question in relation to the power of the President, to remove from office, was elaborately discussed, in the first Congress that w'as held after the adoption of the Constitution of the United Slates, and a great variety of conflicting opinions was advanced, by the sages and patriots who composed that body. The debate arose on a bill “for establishing an executive department, to be denominated the ‘ department of foreign affairs.’ ” (1) That act, among other things, provides, that the Secretary, to be appointed under it, “ shall perform and execute such duties, as shall, from time to time, be enjoined on, or intrusted to him, by the President of the United States, agreeable to the Constitution, relative to correspondencies, commissions or instructions to, or with, public ministers or consuls from the United States ; or to negotiations with public ministers from foreign States or princes ; or, to memorials, or other applications, from foreign public ministers, or other foreigners ; or to such other matters respecting foreign affairs, as the President of the United States shall assign to said department; and furthermore, that said principal officer shall conduct the business of the said department, in such manner as the President of the United States shall, from time to time, order or instruct.” By the second section of this act, a chief clerk is to be appointed, “ who, whenever the said principal officer shall be removed from office, by the President of the United States,” shall have charge of the office, See.
It is apparent, from this law, that the officer created by it was the mere instrument or agent of the President, and to perform whatever duties the President directed, in relation to our foreign affairs. The Secretary was, as one of the leading members of that Congress expressed it, “ as much an instrument in the hands of the President, as the pen is the instrument of the Secretary, in corresponding with foreign courts.” Notwithstanding the officer created by this act, was made the agent of the President, and had no duties assigned him, either in the Constitution or law, except to obey the will of the President, yet a protracted debate ensued upon the question, whether the President had the power, by the Constitution, to remove this officer, whose whole duties he controlled, and for whose fidelity he was responsible to the country.
After an attentive perusal of that debate, my mind is left in doubt, whether a majority of the House of Representatives were of opinion, that the President possessed the power of removal, under the Constitution, or whether, as the power of removal was not expressly granted by the Constitution, it was not a power depending on the will of Congress, whether it should be granted or not.
Mr. Sedgwick, a distinguished member from Massachusetts, and who voted for the passage of the bill, says, “If I understand the subject rightly, there seems to be two opinions dividing the majority of this house. Some of these gentlemen seem to suppose, that by the Constitution, and by implication, and certain deduction from the principles of the Constitution, the power vests in the President. Others think, that it is a matter of legislative determination, and that they must give it to the President, on the principles of the Constitution.” (1) Mr. Sedgwick further said, “he believed there were a thousand circumstances, which would demand a removal from office, of which the President alone could be the proper judge ; therefore, the President alone ought to possess the power. He excluded cases of impeachment; but he thought it was in the discretion of the legislature to authorize the exercise of it, because they had complete power over the officers they created. Hence, he deemed it necessary to make an express grant of the power of removal; but strike out these words, and there is no express grant in the bill. Now if he was right in his construction, it became necessary to retain the words ; they could do no harm, for reasons before mentioned, and they stand very well with the amendment already agreed to, to wit, ‘whenever the said principal officer shall be removed from office by the President of the United States.’ If he erred in judgment, no injury could arise from the error. But if other gentlemen err in their construction, we have a weak, decrepid explanation, which the President may not easily understand. For if he supposes the Constitution totally silent, he can hardly draw authority from your law ; and he will be reduced to the dilemma of acting in the manner related of the late Governor of Virginia, by an honorable gentleman from that State, (Mr. White,) which is by no means to be wished.” These remarks of Mr. Sedgwick were made in opposition to a motion to strike out the words, “ to be removable by the President,” which were contained in the bill, as originally presented to the house. The motion to strike out, however, prevailed. Mr. Hardy, who also voted for the bill, as it finally passed, says, that he “ was against striking out, and so would every gentleman be, he trusted, who was not fully convinced that the power of removal vested, by the Constitution, in the President. He owned, he had some doubts on that head, himself; perhaps some others might be in the same predicament; but he had none, with respect to the propriety of the President’s exercising that prerogative, and therefore should readily consent to granting it ; this might be done by retaining the words, and without going beyond the avowed limits of the legislative authority.” (2)
Mr. Lawrence, who also voted for the bill, on its passage, and took an active part in the debate, concluded his speech, in these words : “ In the case of removal, the Constitution is silent; the wisdom of the legislature should, therefore, declare in what place the power resides.” (3)
Mr. Baldwin, of Georgia, says, “ I say it is not a natural consequence, that the power which appoints, should have the power of removal.” (1) Thus we find, that several members of distinction, expressed, in debate, strong doubts, whether the President had, under the Constitution, power to remove an officer, whose duties were to be assigned and regulated by the President himself; and yet several of these same members voted for the passage of a law implying, that the President, by the Constitution, had the power of removal. This act passed the House of Representatives, by a vote of twenty-nine in the affirmative, and twenty-two in the negative; and it passed the Senate by an equal division of that body, the elder Adams, then being Vice-President, giving the casting vote in its favor. This decision of Congress has been strongly urged upon this Court, as settling, not only the construction of the Constitution of the United States, but of this State. This position I cannot assent to. Legislative construction, although entitled to great respect, is not binding upon courts. No doubt this decision of Congress, followed by the practice of the federal government, for a long time, in unison with it, would furnish, to the courts of the Union, strong reasons for adopting it as the correct construction of the Constitution of the United States ; but when this Court is asked to adopt the same decision, as a correct construction of the Constitution of this State, it becomes the duty of this Court to enquire, whether the reasons for that decision were sufficiently comprehensive to include the case on which we are called to decide. The debate that arose, while that bill was pending before Congress, furnishes the reasons and opinions of the members ; and, from that debate, I think great uncertainly exists, whether a majority of Congress entertained the opinion, that the President possesses the power of removal, under the Constitution ; and hence, I conclude, it is not a precedent that ought to govern this Court. But, had this Court come to the conclusion, that the passage of this act of Congress was a strong precedent in favor of the doctrine, that the Constitution of the United States confers on the President the power of removal, it would still be our duty to decide, whether the Governor has that same power, and if so, in what clause of the Constitution this power is contained.
On this point, the debates in Congress, in 1789, and the opinions of distinguished commentators, would be a very uncertain guide, as I shall now proceed to show.
The Federalist is a work universally recognised as a production of great merit, and much relied on, both by legislators and judges, to settle the true construction of the Constitution of the United States. It was written by Madison, Hamilton, and Jay, for the express purpose of inducing the people of the United States to adopt the Constitution. In the 77th number of that work, the author says, that “ It has been mentioned, as one of the advantages to be expected from the cooperation of the Senate in the business of appointments, that it would contribute to the stability of the administration. The consent of that body would be necessary to displace, as well as to appoint. A change of the chief magistrate, therefore, would not occasion so violent or so great a revolution, in the offices of the government, as might be expected, if he were the sole disposer of offices. Where a man, in any station, had given satisfactory evidence of his fitness for it, a new President would be restrained from attempting a change in favor of a person more agreeable to him, by the apprehension that the discountenance of the Senate might frustrate the attempt, and bring some degree of discredit on himself. Those who can best estimate the value of a steady administration, will be most disposed to prize a provision, which connects the official existence of public men with the approbation or disapprobation of that body, which, from the greater permanency of its own composition, will, in all probability, be less subject to inconstancy, than any other member of the government.”
The number of the Federalist, from which the above extract is taken, is generally supposed to have been written by General Hamilton.
This great statesman, it is well known, was in favor of a strong national government, and his political opponents have gone so far as to charge him with being a great admirer of monarchy, with all its attendant trappings and prerogatives. Yet, desirous as he undoubtedly was, of an efficient and powerful chief magistrate, he was clearly and decidedly of opinion, that the President did not possess the royal prerogative of removal from office.
This statesman well knew, if the American people should believe, that the Constitution conferred this enormous power on the President — a power, which, in Great Britian, enables the monarch to control the Parliament of that immense empire at his will — that they would reject the Constitution proposed for their adoption. The opinion, therefore, expressed in the Federalist, that the Presi- v dent alone does not possess the power of removal, is entitled to ’ the more weight, coming as it does, from General Hamilton ; who, I have no doubt, was not only a sincere patriot, but an eminent statesman, and a profound lawyer.
Judge Story, in his abridged “ Commentaries on the Constitution,’ (1) asks these questions, “ To whom, in the absence of legislation, does the power of removal belong ? To the appointing power, or to the executive ? To the President and Senate, who have concurred in the appointment, or in the President alone ?” In answering these questions, he has discussed both sides, with great power and ability. In order that no injustice may be done this able and enlightened judge, I shall quote all he says on the subject, in his abridged work. “ This subject,” he says, “ is a vastly important practical question, and, in an early stage of the government, underwent a most elaborate discussion. The language of the Constitution is, that the President ‘ shall nominate, and, by and with the advice and consent of the Senate, appoint, &c.’ The power to nominate does not naturally or necessarily include the power to remove ; and, if the power to appoint does include it, then the latter belongs conjointly to the executive and the Senate. In short, under such circumstances, the removal takes place in virtue of the new appointment, by mere operation of law. It results, and is not separable, from the appointment itself.” “ This was the doctrine maintained with great earnestness by the Federalist ; and it had a most material tendency to quiet the just alarms of the overwhelming influence, and arbitrary exercise, of this prerogative of the executive, which might prove fatal to the personal independence and freedom of opinion of public officers, as well as to the public liberties of the country. Indeed, it is utterly impossible not to feel, that, if this unlimited power of removal does exist, it may be made, in the hands of a bold and designing man, of high ambition and feeble principles, an instrument of the worst oppression and most vindictive vengeance. Even in monarchies, while the councils of State are subject to perpetual fluctuations and changes, the ordinary officers of the government, are permitted to remain in the silent possession of their offices, undisturbed by the policy or the passions of the favorites of the court. But, in a republic, where freedom of opinion and action are guarantied by the very first principles of the government, if a successful party may first elevate their candidate to office, and then make him the instrument of their resentments, or their mercenary bargains ; if men may be made spies upon the actions of their neighbors, to displace them from office ; or, if fawning sycophants upon the popular leader of the day, may gain his patronage, to the exclusion of worthier and abler men, it is most manifest, that the elections will be corrupted at the very source, and those who seek office will have every motive to delude and deceive the people. It was not, therefore, without reason, that in the animated discussion already alluded to, it was urged, that the power of removal was incident to the power of appointment; that it would be a most unjustifiable construction of the Constitution, and of its implied powers, to hold otherwise. That such a prerogative, in the executive, was, in its own nature, monarchical and arbitrary, and eminently dangerous to the best interests as well as to the liberties of the country. It would convert all the officers in the country into the mere tools and creatures of the President. A dependence so servile, on one individual, would deter men of high and honorable minds from engaging in the public service. And if, contrary to expectation, such men should be brought into office, they would be reduced to the necessity of sacrificing every principle of independence to the will of the chief magistrate, or of exposing themselves to the disgrace of being removed from office ; and that, too, at a time when it might no longer be in their power to engage in other pursuits.
“ On the other hand, those who, after the adoption of the Constitution, held the doctrine, (for before that period, it never appears to have been avowed by any of its friends, although it was urged by its opponents, as a reason for rejecting it,) that the power of removal belonged to the President, argued, that it resulted from the nature of the power, and the convenience, and even necessity, of its exercise.
“ It was clearly in its nature a part of the executive power, and was indispensable for a due execution of the laws, and a regular administration of the public affairs. What would become of the public interests, if, during the recess of the Senate, the President could not remove an unfaithful public officer ? If he could not displace a corrupt ambassador or head of department, or other officer engaged in the finances or expenditures of the government ? If the executive, to prevent a non-execution of the laws, or a non-performance of his own proper functions, had a right to suspend an unworthy officer from office, this power was in no respect distinguishable from a power of removal. In fact, it is an exercise, though in a more moderate form, of the same power. Besides, it was urged, that the danger that the President would remove good men from office was wholly imaginary. It was not by the splendor attached to the character of a particular President, like Washington, that such an opinion was to be maintained. It was founded on the structure of the office. The man in whose favor a majority of the people of the United States would unite to elect to such an office, had every probability, at least, in favor of his principles. He must be presumed to possess integrity, independence, and high talents. It would be impossible that he should abuse the patronage of the government, or his power of removal, to the base purposes of gratifying a party, or of ministering to his own resentments, or of displacing upright and excellent officers, for a mere difference of opinion. The public odium, which would inevitably attach to such conduct, would be a perfect security against it. And, in truth, removals made from such motives, or with a view to bestow the offices upon dependents or favorites, would be an impeachable offence.” “ That the final decision of this question, in favor of the executive power of removal, was greatly influenced by the exalted character of the President then in office, was asserted at the time, and has always been believed. Yet, the doctrine was opposed, as well as supported, by the highest talents and patriotism of the country. The public, however, acquiesced in this decision ; and it constitutes, perhaps, the most extraordinary case in the history of the government, of a power conferred by implication on the executive, by the assent of a bare majority of Congress, which has not been questioned on many other occasions. Even the most jealous advocates of State rights, seem to have slumbered over this vast reach of authority, and have left it untouched, as the neutral ground of controversy in which they desired to reap no harvest, and from which they retired without leaving any protestations of title or contest.” “Nor is this general acquiescence and silence without a satisfactory explanation. Until a very recent period, the power had been exercised in few cases, and generally in such as led to their own vindication. During the administration of President Washington few removals were made, and none without cause ; few were made in that of the first President Adams. In that of President Jefferson, the circle was greatly enlarged ; but yet it was kept within narrow bounds, and with an express disclaimer of the right to remove for difference of opinion, or otherwise than for some clear public good.
“ In the administrations of the subsequent Presidents, Madison, Monroe, and J. Q. Adams, a general moderation and forbearance were exercised, with the approbation of the country, and without disturbing the harmony of the system. Since the induction into office of President Jackson, an opposite course has been pursued ; and a system of removals and new appointments to office, has been pursued so extensively, that it has reached a very large proportion of all the offices of honor and profit in the civil departments of the country. This is matter of fact, and beyond the statement of the fact, it is not the intention of the commentator to proceed. This extraordinary change of system has awakened general attention, and brought back the whole controversy, with regard to the executive power of removal, to a severe scrutiny. Many of the most eminent statesmen in the country, have expressed a deliberate opinion, that it is utterly indefensible, and that the only sound interpretation of the Constitution, is that avowed upon its adoption ; that is to say, that the power of removal belongs to the appointing power.
“ Whether the predictions of the original advocates of the executive power, or those of the opposers of it, are likely in the future progress of the government to be realized, must be left to the sober judgment of the community and to the impartial award of time. If there has been any aberration from the true constitutional exposition of the power of removal, which the reader must decide for himself, it will be difficult, and perhaps impracticable, after forty years’ experience, to recall the practice to the correct theory. But at all events, it will be a consolation to those who love the union, and honor a devotion to the patriotic discharge of duty, that in regard to “ inferior offices,” which appellation probably includes ninety-nine out of a hundred of the lucrative offices in the government, the remedy for any permanent abuse, is still within the power of Congress, by the simple expedient of requiring the consent of the Senate to removals in such cases.”
Who, after reading this extract can doubt, that in the opinion of this eminent judge, the practice established by the decision of Congress in 1789, is contrary to the “ correct theory” of the Constitution. His language is emphatic, that “the power to nominate does not naturally or necessarily include the power to remove ; and if the power to appoint does include it, then, the latter belongs conjointly to the executive and the Senate.”
In truth, does not the history of the last ten years clearly prove, that while the advocates in Congress of the doctrine, that to the President belongs the power of removal, were dreaming dreams ; the opponents of that doctrine were seeing realities ?
In a late work, entitled “ Democracy in America,” published in 1838, I find that it is the opinion of John C. Spencer, a lawyer of distinguished abilities, in the State of New York, that the question as to the right of the President to remove from office, is still “ an unsettled question.”
The members of Congress in 1789 differed very much, as to which clause of the Constitution contained the power of removal. Some found it in one clause, and some in another, and a large minority of the House of Representatives, including some members of the Convention, and one half of the Senate, denied that the President had the power.
When the adoption of the Constitution of the United States was under discussion, no friend of its adoption bad advocated the doctrine that the President could exercise this power under the clause of the Constitution giving him the executive power, nor under the clause requiring him to take care that the laws be faithfully executed. In the debate in Congress, before referred to, Mr. Madison says, that “ The doctrine, however, which seems to stand most in opposition to the principles I contend for, is, that the power to annul an appointment, is, in the nature of things, incidental to the power which makes the appointment. I agree, that if nothing more was said in the Constitution, than that the President, by and with the advice and consent of the Senate, should appoint to office, there would be great force in saying, that the power of removal resulted, by a natural implication, from the power of appointing. But there is another part of the Constitution no less explicit, than the one on which the gentleman’s doctrine is founded. It is that part which declares that the executive power shall be vested in a President of the United States. The association of the Senate with the President in exercising that particular function, is an exception to this general rule, and exceptions to general rules, I conceive, are ever to be taken strictly. But there is another part of the Constitution, which inclines, in my judgment, to favor the construction I put upon it. The President is required to take care that the laws be faithfully executed. If the duty to see the laws faithfully executed, be required at the hands of the executive magistrate, it would seem that it was generally intended he should have that species of power, which is necessary to accomplish that end.” (1)
Elbridge Gerry, who has occupied a large space in the public estimation, and who actively participated in all the measures that led to our Revolution, was a member of the Revolutionary Congress, and as such, signed the declaration of Independence, and the Articles of Confederation, was a member of the Convention that framed the Constitution of the United States ; a member of the first Congress under the Constitution, a former Governor of Massachusetts, and Vice-President of the United States under the administration of James Madison. This man, so distinguished by the confidence of his country, not only opposed the doctrine, that the-President had the power of removal, but raised his warning voice against the evil consequences that inevitably would flow from such a construction of the Constitution. In the same debate, he says, “It has been said by my colleague, (Mr. Sedgwick) that the President not only nominates, but appoints the officers ; and infers from hence, that as the power of removal is incident to the power of appointing, the President has the power of removal also. But I should be glad to know how it can with justice be said, that the President appoints. The Constitution requires the consent of the Senate ; therefore, they are two distinct bodies, and intended to check each other. If my colleague’s is a true construction, it may be extended further, and said, that in the act of nominating, the assent of the Senate is virtually given ; and, therefore, he has a right to make the whole appointment himself, without any interference on the part of the Senate. I contend there is just as much propriety in the one construction, as in the other. If we observe the enacting style of the statutes of Britain, we shall find pretty near the same words as what we used in the Constitution with respect to appointments : ‘ Be it enacted by the King’s most excellent Majesty, by and with the advice and consent of parliament.’ Here it might be said that the king enacts all laws ; but I believe the truth of this fact will be disputed in that country. I believe no one will pretend to say, that the king is the three branches of parliament; and unless my colleague will do all this, I never can admit, that the President, in himself, has the power of appointment. ” (2)
Mr. Gerry also says, (1) “ There is a consistency, under a monarchy, of the king exercising the power of appointment and removal, at pleasure. In Great Britain, this is the prerogative of the throne, where it is likewise held a maxim, that the king can do no wrong. The Chief Magistrate, under this Constitution, (the Constitution of the United States,) is a different character. There is a constitutional tribunal where he may be arraigned, condemned, and punished, if he does wrong. The reason of this distinction, I take to be this: the majesty of the people receives an injury when the President commits an improper act, for which they are to receive satisfaction. Kings have a property in government, and when a monarch acts unwisely, he injures his own interest, but is accountable to none, because satisfaction is due to himself alone. He is established in his office for life; it is an estate to him, which he is interested to transmit to his posterity unimpaired; the good of the people, upon principles of interest, will be his peculiar study; he ought, therefore, to have power to act in such manner as is most likely to secure to him this object; thus, necessarily, he must have the right of choosing and displacing his agents. There can be no difficulty on this point; but in a confederated republic, the Chief Magistrate has no such trust; he is elected but for four years, after which the government goes into other hands; he is not stimulated to improve a patrimony, and, therefore, has no occasion for complete power over the officers of the government. If he has such power, it can only be made useful to himself, by being the means of procuring him a reelection, — but can never be useful to the people, by inducing him to appoint good officers, or to remove bad ones.
“ It appears to me, that such unbounded power vitiates the principles of the Constitution, and the officers, instead of being the machinery of the government, moving in the regular order prescribed by the legislature, will be the mere puppets of the President, to be employed or thrown aside as useless lumber, according to his prevailing fancy.”
“ If gentlemen will take this step, they must take another, and secure the public good by making it the interest of the President to consult it ; they must elect him for life, or what will be more consistent still, they must make his office hereditary; then gentlemen may say with some degree of truth, that he ought to have the power of removal, to secure in his hands a balance in the government. But if gentlemen are willing to remain where they are, and abide by the Constitution, regarding its true principles, they will not contend that there is a necessity, or even a propriety, in vesting this power in the President alone.”
Roger Sherman, who was not only a sagacious statesman, but a signer of the Declaration of Independence, and a member of the Convention that framed the Constitution, says, that (1) “The Convention who formed this Constitution, thought it would tend to secure the liberties of the people, if they prohibited the President from the sole appointment of all officers. They knew that the crown of Great Britain, by having that prerogative, has been enabled to swallow up the whole administration. The influence of the crown upon the legislature, subjects both houses to its will and pleasure. Perhaps it may be thought by the people of that kingdom, that it is best for the executive magistrate to have such kind of influence; if so, it is very well, and we have no right to complain that it is injurious to them, while they themselves consider it beneficial. But this government is different, and intended by the people to be different. I have not heard any gentleman produce an authority from law or history, which proves that where two branches are interested in the appointment, that one of them has the power of removal.
“ I remember that the gentleman from Massachusetts (Mr. Sedgwick) told us that the two houses, notwithstanding the partial negative of the President, possessed the whole legislative power; but will the gentleman infer from that, that because the concurrence of both branches is necessary to pass a law, that a less authority can repeal it ? This is all we contend for.”
Mr. Tucker, a distinguished and learned judge of Virginia, in his remarks on the bill, says, (2) “ It appears to me that the power is not necessarily vested in the President by the Constitution. Neither in the President and Senate. I find no words that fix this power precisely in any branch of the government. It must, however, by implication, be in the legislature; or is nowhere, until the Constitution is amended. I presume the implication is, at least, equally favorable to the legislature as to any other branch, if it necessarily belongs to the government. I apprehend, a law is necessary, in every instance, to determine the exercise of the power. In some cases, it may be proper that the President alone should have it. I am not clear in my own mind, what general rule, if any, can be established on this subject. Perhaps, in other cases, it may be lodged with the President and Senate ; or it may be given to the heads of departments. But whosoever is invested with it, it must be in consequence of a law; and the legislature have a right to vest it where they please.”
Again, he says, “ I would rather a law should pass, vesting the power in improper hands, than that the Constitution should be wrongly construed. If we say, the President may remove from office, it is a grant of power ; and we can repeal the law, and prevent the abuse of it; but if we, by law, imply that it is a constitutional right, vested in the President, there will be a privilege gained, which the legislature cannot affect; at least, the reversion of such a solemn opinion, will occasion much inconvenience, not to say confusion.” Mr. Page of Virginia, and Mr. Smith of South Carolina, maintained, in the same debate, that removal from office could only take place by impeachment before the Senate.
From these extracts, (and they might be greatly multiplied,) it will be seen, that the passage of the act, in relation to the appointment of a Secretary for foreign affairs, furnishes but slight evidence of what were the opinions entertained by the members of Congress, of the proper construction of the Constitution of the United States, in relation to the right of removal from office, by the President; and the debate will be consulted in vain, to ascertain in what clause of the Constitution, a majority of the House of Representatives concurred in the opinion, that the power of removal, by the President, was found.
The subsequent legislation of Congress, on the power of removal, shows, that that body did not consider the question definitely settled, that the President has the power of removal, in all cases. In the “ Act to provide for the government of the Territory North of the river Ohio,” passed in 1789, (1) it is provided, “that the President shall nominate, and, by and with the advice and consent of the Senate, shall appoint all officers, which, by the Ordinance, were to be appointed by the United States, in Congress assembled; and all officers so to be appointed, shall be commissioned by him ; and in all cases, where the United States, in Congress assembled, might, by the said Ordinance, revoke any commission, or remove from any office, the President is hereby declared to have the same powers of revocation and removal.”
The officers contemplated by this act, had duties assigned them by law, and were not placed under the control of the President, as was the Secretary for foreign affairs, and consequently, instead of using language implying that the President had, by the Constitution, power to remove them, the power is expressly given to him, only to the extent that Congress had the power by the Ordinance.
If the power of removal was vested in the President, by the Constitution, then, this limitation upon his powers, was void, and the authority conferred, wholly unnecessary. Again ; Congress, by the first section of an “ Act to limit the term of certain officers, therein named, and for other purposes,” (2) passed May 15, 1820, declared, “ That from and after the passage of this act, all District Attorney, Collectors of the Customs, Naval Officers, and Surveyors of the Customs, Navy Agents, Receivers of Public Money for Lands, Registers of the Land Offices, Paymasters in the Army, the Apothecary General, the Assistant Apothecary General, and the Commissary General of Purchases, to be appointed under the laws of the United States, shall be appointed for the term of four years; but shall be removable from office, at pleasure.
The language here used, clearly confers on the President, the power of removal, and is entirely different from that used in the act organizing the office of Secretary for foreign affairs. Why did Congress confer the power to remove, on the President, if he already possessed the power, by the Constitution ?
From this review of the acts of Congress, I feel warranted in concluding, that down to 1820, Congress did not consider the question settled, that the President has, in all cases, the power of removal, in virtue of his power to nominate. But whether the question be considered as irrevocably settled by Congress or not, still, the question for this Court to decide is, whether the Governor of this State, at his will and pleasure, has the constitutional power to remove the Secretary of State, without any official misconduct on his part ? It is conceded on all hands, that the legislature have not conferred this power on the Governor, directly, or by implication. It has been shown, that although our Constitution, in some of its features, is similar to the Constitution of the United States; yet, that other provisions have so entirely changed its character, that even the settled construction of the one instrument, would not furnish a safe guide to construe the other. The objects, also, to be accomplished by the two governments, are entirely dissimilar. The powers delegated by the Constitution of the United States, to the federal government, are principally exercised on external objects. It has the sole management of the questions of peace and war, the negotiation of treaties with foreign nations, and the regulation of commerce.
Hence arises the propriety of conferring on the executive of the United States large discretionary powers, to enable him to manage with skill and prudence our extensive foreign relations; and hence, also, the propriety of giving him the control of such of the officers of government, as are concerned in the management of foreign affairs.
There is, also, a manifest propriety, that those officers should be persons in whom the President can confide. But in this State, it is entirely different. The powers of the government of this State are limited to objects, which, in the ordinary course of affairs, concern the lives, liberties, and property of the people, and the internal prosperity of the State. No relation of confidence exists between the Governor and any of the officers. None of them are placed under his control. All their duties are pointed out by law ; and to the law only ought they to be amenable for any violations of official duty. In consequence of this difference in the objects of the two governments, implied powers may be highly necessary to carry on the one government, while the same implied powers may be wholly unnecessary and mischievous in the other. In the latter case, no implication can arise. Implied powers are not, in their nature, subject to limitation, and ought never to be resorted to, but in cases of imperious necessity. Expediency enters largely into all views of construction, when in search of such powers. The human mind is so constituted, that it readily finds satisfactory reasons for believing that that is granted, which it thinks will be highly useful. As, for example, those statesmen who believe that a system of internal improvements,_ by the federal government, will be highly conducive “ to promote the general welfare,” have found in the Constitution of the United States, by implication and construction, authority to construct roads and canals ; while those who believe that the construction of roads and canals leads to great corruption in the government, and to a great waste of the revenues of the nation, are equally clear, that no such power is conferred on Congress. So, again, those who believe that the encouragement of domestic manufactures will greatly promote the interests of that portion of the country where they reside, find abundant authority in the Constitution to foster domestic manufactures, by high duties on foreign manufactures; while, on the contrary, those whose opinions are, that high duties bear oppressively on their portion of the Union, deny, most vehemently, that the Constitution grants to Congress any power to impose duties on importations, for any other purpose than to raise a sufficient revenue to defray the expenses of the government. These, and other instances that might be mentioned, show the strong tendency of the human mind, to put such a construction on language, as will promote its own views of expediency.
These considerations ought to teach us the wide field of uncertainty that we enter, when we are in search of implied or constructive powers. They should also admonish us of the difficulties that will surround our path, and the danger of straying beyond the line dictated by sound wisdom. For these reasons, also, I am of opinion, that every construction of the Constitution of the United States, by which implied powers are conferred on the President, ought not to be followed in construing our Constitution, unless the same reason can be shown, why the implied power should exist.
From what has already been remarked, and what will hereafter be said on this subject, I trust it will clearly appear, that no strong necessity exists why the Governor should possess the power of removal.
I shall now proceed to examine the practice of the government of this State, and the construction that has been given to our Constitution by the different departments of government, in relation to the power of removal from office.
Our Constitution was adopted in 1818, and six different individuals have filled the gubernatorial office. Till within the last six years, the Governor, by and with the advice and consent of the Senate, had the appointment of circuit attorneys, recorders of counties, and a variety of other officers; yet, until the present Governor came into office, neither of the Governors ever exercised, or, it is believed, ever claimed, the power to remove a single officer of the State. No one can doubt, who is at all conversant with the frailties of human nature, that had the power to remove existed in the Governor, that frequent occasions must have arisen, where the power could have been exercised to the manifest advantage of the public interests. During the canvass that took place in 1826, and which resulted in the election of the late Governor Edwards, it is well known, that the late George Forquer, Esquire, then Secretary of State, took an active and somewhat violent part against Governor Edwards; yet Governor Edwards, although a sound lawyer, and distinguished for his firmness and decision of character, did not remove Mr. Forquer. The reason that was given, and not then contradicted, was, that the Governor did not believe that he possessed the power. This case presented, particularly if the Secretary is to be considered a confidential officer, or, if strong “ political considerations ” ought to influence the Governor, a particular fitness for the exercise of the power of removal.
This power underwent, at the time referred to, considerable discussion, and Mr. Forquer, fearing that the Governor (who was well known not to be afraid of taking all proper responsibility,) would remove him, solicited and obtained the opinion of several eminent lawyers, who were all of opinion that the Governor did not possess the power. Among the opinions obtained, was that of the late Hon. Elias K. Kane, who was then a Senator in Congress, and had been a prominent member of the Convention that framed the Constitution. His opinion was decided, that the Governor did not possess the power of removal.
The non-exercise of the power for upwards of twenty years, when frequent cases must have occurred to call it into exercise, if it existed, is strong evidence, to my mind, that no former Governor supposed that he had the power; and goes far, under the circumstances, to establish the doctrine that it does not exist.
In the next place, I shall examine the question of removal from office, as understood and acted upon by the General Assembly of this State. By the act establishing Courts of County Commissioners, passed March 22d, 1819, said Courts are authorized to appoint their own clerks, and “ at any time for any cause to be stated on the record, to remove said clerks from office.” (1) By the sixth section of the fourth article of the Constitution of this State, “ the Supreme Court, or a majority of the justices thereof, the Circuit Courts, or the justices thereof shall respectively appoint their own clerks.” The language here used is the same with that authorizing the Governor and Senate to appoint a Secretary of State ; and yet, the first legislature that sat under the Constitution, by an act passed March 31st, 1819, gave the “ Supreme Court power to hear and determine all impeachments of any clerk or clerks of the Circuit Courts,” and, on the hearing of the impeachment, authorized the Supreme Court to remove such clerk.
If the power of removal vests, by the Constitution, in the appointing power, this act was clearly unconstitutional; yet it received the sanction not only of the General Assembly, but of the Governor and judges, who, under the Constitution, revised and approved the law, as a Council of Revision.
By the Act regulating the manner of appointing Justices of the Peace, approved July 19th, 1819, justices of the peace were to hold their offices during good behavior, and in case of misbehavior in office, or wilful omission of duty, they were to be indicted, and, if convicted, to be suspended from office, and the case reported to the House of Representatives, and by them impeached under the Constitution, before the Senate.
By an act passed January 19th, 1821; “When any county commissioner, sheriff, coroner, justice of the peace, clerk of the circuit court, clerk of the county commissioners’ court, recorder, or constable shall be guilty of any malconduct or palpable omission in the duties of their respective offices, such officer may be indicted, and, on conviction, removed from office.” Some of the officers mentioned in this act were elected by the people, others appointed by the courts, others by the General Assembly; and one of them, the recorder, by the Governor and Senate.
By the 107th section of the Criminal Code, approved by the Council of Revision, January 30th, 1827, “ Every clerk, sheriff, coroner, constable, county commissioner, justice of the peace, recorder, county surveyor, attorney general, or circuit attorney, who shall wilfully and corruptly be guilty of oppression, malfeasance, or partiality in the discharge of his official duties; or shall be guilty of palpable omissions of duty, “ are liable to indictment, and, on conviction and the recommendation of the jury, to removal from office. The legislature, in 1833, (1) reenacted the same provision. Here, again, these various officers are appointed, some by the people, some by the courts, under the Constitution, others by the legislature, and circuit attorneys and recorders, under the Constitution, by the Governor and Senate. This act would also be a palpable violation of the Constitution, if the appointing power impliedly gave, also, the power of removal, at discretion; and yet, all the three departments of the government concurred in the passage of the law.
The first section of the Act regulating the Office of Clerk of the Supreme Court, approved February 15th, 1831, provided “ The Supreme Court, or a majority thereof, shall have power to remove any clerk of said Court for neglect of duty, incompetency to perform the duties of his office, or for any misconduct in office of which he may be guilty, or for any other cause which shall be satisfactory to said Court, or a majority thereof; Provided, that the cause of removal of said clerk shall be expressed on the records of said Court.” By the second section of said act, the Court is, in a certain event, “ authorized and required to remove said clerk from office.”
The appointment of clerk of the Supreme Court, is, by the Constitution, vested in the Court; and, upon the doctrine that the appointing power has the power of removal, at discretion, the first section of this act was wholly unnecessary, and the second section an infringement upon the rights of the Court; yet the Governor and judges concurred in the passage of the act.
Other acts might be referred to, to show that the power of removal from office has, ever since the adoption of the Constitution, been considered a legislative power, and only to be exercised according to law. Not only have all the departments of the government, when acting in their legislative capacity, given their sanction to this doctrine, but the judges of the Supreme Court, when sitting in their judicial capacity, have, on two different occasions, affirmed the same principle. These cases have heretofore been referred to, and it is unnecessary further to remark on them.
From this review, we have these results, as to the practice of our State.
First. The Governors of this State, for upwards of twenty years, never exercised the power of removal, although, doubtless, during that time many cases occurred that would have rendered the exercise of it proper and useful, if it had existed. We have also the opinion of one of the most prominent members of the Convention, who was also a distinguished lawyer, that the Governor did not possess the power of removal, and this opinion is sustained by other members of the profession. The Governor and judges had also approved of laws pointing out the mode in which removals should be made. The Governor, by giving his sanction to these laws, has virtually acknowledged that the power to appoint does not necessarily inchide the power to remove.
Secondly. The legislature, by the passage of these laws, has repeatedly declared the doctrine, that removal from office is a legal power, and does not belong to the appointing power, nor any functionary of the government, except as vested in them by law.
Thirdly. The judiciary, on two different occasions, and in which two different sets of judges were unanimous, have, in effect, given it as their opinion, that the appointing power has not the power of removal.
After this expression of opinion on the part of all the different departments of the government, it seems to follow, as a necessary-consequence, that it is the settled usage and practical construction of the Constitution of this State, that the Governor does not possess the power to remove the Secretary of State, or any other officer of the government, under the Constitution.
When the decision of this case was made at the last term of the Court, none of the members of the Court had seen the decision of the Supreme Court of the United States, in the case of Hennen, who had been removed by the District judge, of the District of Louisiana, from the office of clerk of that Court. It appears, from a newspaper report of the decision, published since the last term, that Hennen had been removed by the District judge, and John Winthrop appointed as his successor. That, at a Circuit Court subsequently held in Louisiana, both persons presented themselves, claiming to be clerk ; that Judge McKinley, one of the judges of the Supreme Court of the United States, was of opinion, that Hennen was the legal clerk of the Court; and the District judge, that Winthrop was clerk, and, being unable to agree who was clerk of the Court, the Court adjourned without doing any business. Subsequently, Hennen filed a petition in the Supreme Court of the United States, praying for a mandamus to the District Court of Louisiana, to restore the petitioner to the clerkship. On the argument of this motion, the Supreme Court of the United States decided, that the District judge, being the appointing power, had the power of removal, at his will and discretion. (1) All the information possessed by this Court, at the last term, of the case of Hennen, was, that the judges of the Circuit Court of Louisiana differed in opinion, as to the power of the District judge to remove the clerk, and that the Supreme Court, on the application, refused to allow a mandamus; but, whether that refusal was upon the merits, or upon some technical ground not involving the power of removal, we were unadvised.
The opinion which we have seen, apparently conflicts with the decision of the Supreme Court of this State, in the case of The People v. Mobley. (2) This conflict, however, arises from the difference in the two Constitutions, and from the different legislation and practice that has prevailed in administering the two governments.
The Constitution of the United States confers the whole appointing power on the President and Senate, with the exception./ of such inferior officers as Congress might vest in the President alone, in the heads of departments and in the Courts.
None of the appointing power belongs to the people, or the two houses of Congress; and Congress had, by its repeated action, either acknowledged, that the removing power was in the President, or had expressly conferred it upon him. The power of removal, could also be readily exercised by the appointing power. The case, however, is widely different, under the Constitution of this State.
The power of appointment is vested in the Governor and Senate, in the two houses of the General Assembly, in the courts, and in the people. Consequently, a general rule, that the appointing power should possess the power of removal, could not be carried out in practice. It would be impossible for the people to exercise the function. It would also be extremely inconvenient for the two houses of the General Assembly to exercise it.
The legislature of this State, doubtless foreseeing the difficulty that would arise, if they recognised the doctrine, that the appointing power was vested with the removing power ; and probably believing that the doctrine of vesting a discretionary power in the Governor, or any other functionary of the government, to remove from office at his pleasure, was despotic in principle, and contrary to the genius of republican government, have, as I conceive, wisely legislated in the manner I have referred to. This course of legislation, for upwards of twenty years, has, in my opinion, settled the policy of this State, in regard to removal from office, on correct and safe principles. Should, however, further experience prove, that the discretionary power of removal would be more conducive to the honest and faithful discharge of official duties, it will be in the power of the legislature so to ordain.
It would be painful to this Court, if they should find that their opinion conflicts with the opinion of the Supreme Court of the United States, in a case where one or the other opinion must necessarily be wrong. I entertain for that exalted tribunal the most unfeigned respect; and I have the utmost confidence in the purity of character, and great learning of the venerable and enlightened judge, who delivered the opinion in the case of Hennen.
I however think, that, by the Constitution, laws, and practice of this State, different considerations ought to govern this Court, and that, in reality, there is no discrepancy between that decision and this. That decision was made from their understanding of what, to use the words of Judge Thompson, who gave that opinion, “ is the settled usage and practical construction of the Constitution and laws under which these offices are held.” This decision is based on our views of “ the settled usage and practical construction of the Constitution and laws of this State,” in regard to the power of removal. I consequently feel no disposition to controvert the correctness of the conclusion that the Supreme Court of the United States arrived at, in that case ; yet, a regard to my own consistency requires me to notice some remarks contained in that opinion. The remarks are as follows : “ This power of removal from office was a subject much disputed, and upon which a great diversity of opinion was entertained, in the early history of this government. This related, however, to the power of the President to remove officers, appointed with the concurrence of the Senate, and the great question was, whether the removal was to be by the President alone, or with the concurrence of the Senate, both constituting the appointing power. No one denied the power of the President and Senate jointly to remove, where the tenure of the office was not fixed by the Constitution ; which was a full recognition that the power of removal was incident to the power of appointment. But it was very early adopted as a practical construction of the Constitution, that this power was vested in the President alone. And such would appeartobe the legislative construction of the Constitution. ” (1) The able judge, who delivered this opinion, could not recently have read the debate that arose in the Congress of 1789, upon the organization of the department for foreign affairs, or he certainly could not have said, that “ no one denied the power of the President and Senate jointly to remove,” &c. If the extracts taken from Lloyd’s and Elliott’s Debates, which are given in a previous part of this opinion, truly represent the views of the speakers, then, certainly, a number of the members strongly denied that the power of removal, under the Constitution, belonged to the President alone, or to the President and Senate jointly, as a reference to the debate will clearly show.
The principle, that the power of removal was incident to the power of appointment, was not only denied by some, but was strongly resisted by several of the most enlightened and patriotic members of that body.
Indeed, so violently were some of the members opposed to the principle of the bill, that Mr. Page of Virginia, who was of opinion, that removal could only take place by impeachment, declared, that the act contained the “ seed of royal prerogative.”
Mr. Smith, of South Carolina, said, “ The gentleman from Virginia has said that the power of removal is executive in its nature. I do not believe this to be the case. I have turned over the Constitutions of most of the States, and I do not find that any of them have granted this power to the Governor. In some instances I find the executive magistrate suspends, but none of them have the right to remove officers ; and I take it, that the Constitution of the United States has distributed the powers of government on the same principles which most of the State Constitutions have adopted. For it will not be contended but that the State governments furnished the members of the late Convention with the skeleton of this Constitution.” (1)
General Sumpter, of North Carolina, said, “ This bill appears to my mind so subversive of the Constitution, and in its consequences so destructive to the liberties of the people, that I cannot consent to let it pass, without expressing my detestation of the principle it contains. I do it in this public manner, in order to fulfill what I think (o be my duty to my country, and to discharge myself of any concern in a matter that I do not approve.”
I have, however, not the least doubt, that the mistake of Judge Thompson arose from misrecollection of the various views of the members in that debate. I notice this discrepancy for no other purpose, than to vindicate my statement of the great contrariety of opinions that were advanced by the members of Congress in 1789.
Having arrived at the result, that the Constitution of this State does not authorize the Governor to remove the Secretary of State, and that no law has expressly, or by implication, vested any such power in him, I might close this opinion ; but as several, as was supposed, strong reasons were urged why the Governor should possess this power of removal, I will give them a passing notice.
It was urged in the argument, that the Secretary of State was a confidential officer, and, therefore, the Governor ought to have the power of removal.
I am willing to concede that, had our Constitution created such an officer as that of Secretary of Foreign Affairs, and authorized the Governor, at his discretion, to designate what duties he should perform, and how he should perform them ; and had the Governor a right to call on him for counsel and advice how to administer the government, there would undoubtedly be great force in the argument, that such an officer was a confidential officer, and that the Governor ought to possess the power of removal. But the Constitution has created no such officer. All the duties of the Secretary are either defined in the Constitution, or in the laws ; and nowhere is any authority given to the Governor, either to direct what he shall do, how he shall do it, or even to call on him for counsel or advice. On the contrary, I think it is fairly inferable, from the terms of the Constitution, not only that the Secretary is not a confidential officer of the Governor, but that it was intended he should not be one. The Secretary, by the Constitution, when required, “ shall lay the official acts of the Governor, and all papers, minutes, and vouchers relative thereto, before either branch of the General Assembly.” If the Secretary is to be considered a .confidential officer of the Governor, and removable at his pleasure, it would be in the power of the Governor, at any time, if he wished to conceal his acts from the legislature, to defeat this provision of the Constitution. And if the Governor did not resort to removal, and was unwilling his acts should be known by the General Assembly, this confidential officer would be placed in the unpleasant dilemma of betraying the confidence of bis principal, or violating the Constitution of his country. But is the Secretary of State a confidential officer ? The duties of his office, in all the States of the Union, are essentially the same.
I have examined the Constitutions of all the States, and find, that in thirteen States, the Secretary is appointed by the two branches of the legislature. In two of the States, he is elected by the people. In seven States, he is appointed by the Govern- or, or Governor and Senate. In four of the States, I could not ascertain how he was appointed. From this examination, it appears, that in fifteen States, the Governor has no agency whatever in appointing the Secretary. In several of these States, the duties of the Secretary are identical with the duties of Secretary in this State, and particularly in Mississippi, where the people elect their Secretary. Clearly, in none of the States where the Governor has no agency in the appointment of this officer, can he be considered a confidential one.
The probability is, that the duties of our Secretary were copied from the Tennessee, Ohio, or Indiana Constitutions, in each of which States the legislature appoints that officer.
There is, therefore, not the least propriety in considering the Secretary a confidential officer of the Governor.
Again, it was urged as a strong reason why the Governor should possess the power of removal, that the Secretary might obstinately refuse to perform important legal duties, and thus the public interests might suffer. A number of cases were supposed ; and it was said that the Secretary, by refusing to do his duty, might frustrate important objects of legislation, and even stop the wheels of government. For example, it was asked, suppose he should refractorily refuse to place the seal of State to the internal improvement bond, or to commissions for officers legally elected, where would be the remedy ? In answer to all this, I say, if the Constitution has not conferred the power of removal on the Governor, as I think has been sufficiently shown, the Governor cannot exercise the power, however beneficial its exercise might be.
But, should such cases ever occur, the Constitution and laws are not so defective, but that a speedy remedy may be obtained. The Secretary can be impeached and removed from office ; he can be indicted and punished : and he can be compelled to do his duty by mandamus ; and in case an individual sustains an injury, he may be prosecuted for damages. If all these remedies prove inadequate to compel a faithful performance of his official duties, and the public are likely to sustain detriment by delay, the Governor can call a special session of the legislature, and the power of removal can be conferred on the Governor, if the legislature deem that the exigencies of the case require it.
But improbable or extravagant suppositions neither prove nor establish principles, as I will show. Suppose the Governor should refuse to sign internal improvement bonds ; or should refuse to commission the multifarious officers, that are elected every year ? In the first case, is it not evident, that an important measure of the legislature would be defeated ; and,, in the other, would not the wheels of government be effectually arrested ? And, in such cases, where is the remedy ? The only remedy would be an impeachment, which could only take place once in two years, as it is not probable the Governor would call a special session of the legislature to enable that body to impeach himself.
The courts cannot compel obedience, by mandamus, because the Governor, being one of the coordinate departments of the government, is not liable, in his official capacity, to be called before the courts. As impeachment is confessedly a dilatory remedy, what, then, must be done ? I answer, if the law furnishes no adequate remedy, it is a good reason for concluding, that it is highly improbable, that so high a functionary as the Governor will ever be guilty of so gross and palpable a dereliction of his official duties, as the supposition would imply.
It is doubtless to be expected, in the course of events, that evils will arise in the administration of the government, that no human sagacity could have anticipated, and for which, of course, no remedy could be provided. When such evils arise, the wisdom of the times must be left to provide" remedies against their recurrence. “ Sufficient unto the day is the evil thereof.”
Lastly, It was contended by one of the counsel for the relator, that the Secretary held his office only during the term of the Governor by whom he was appointed ; and, consequently, that Field went out of office in December, 1830. If this construction of the Constitution be correct, each of the Governors of this State, with the exception of the first, have been guilty of a palpable violation of the Constitution. Even the present Governor himself would be obnoxious to the charge of permitting Field to usurp the office for more than a month after his inauguration. But, in order to justify this interpretation of the Constitution, it will be necessary to interpolate into the Constitution, the word “each,” before the word Governor, so as to make it read, that “ each Governor shall nominate,” &c. Had the Convention designed that each Governor should appoint a Secretary of State, tibe same or similar language to that employed in the Constitutions of Pennsylvania and Delaware, would have been used, to wit : “ That a Secretary shall be appointed and commissioned during the Governor’s continuance in office, if he shall so long behave himself well ; ” or, as in the Constitutions of the States of Kentucky and Louisiana, to wit : “ A Secretary shall be appointed and commissioned during the term for which the Governor shall have been elected, if he shall so long behave himself well.” I am, consequently, compelled to conclude, that when a Secretary is once appointed, the Governor’s power of appointment is suspended until a vacancy occurs.
Judgment reversed.
Breese 25.
1 Scam. 215 .
15 Wend. 278 .
1 Story’s Laws 5.
2 Lloyd’s Cong. Reg. 5, 9.
Ibid. 12.
4 Elliott’s Debates 168.
4 Elliott’s Debates 205.
p. 568. See also, 3 Story’s Com. 388 and following pages, where the same subject is discussed more at large, and from which I have also taken a short extract.
4 Elliott’s Debates 177.
Ibid. 193.
4 Elliott’s Debates 207.
4 Elliott's Debates 195.
Lloyd’s Debates 11.
1 Story’s Laws, 32.
3 Story’s Laws, 1790.
R. L. 142 ; Gale’s Stat. 161.
R. L. 195; Gale’s Stat. 218.
13 Peters.
1 Scam. 215 .
13 Peters.
4 Elliott’s Debates 153.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6946064. Public record. Not legal advice.