ed the following communication to Lewis E. Parsons, Jr., District Attorney at Birmingham, Alabama:

"Executive Mansion,

"Washington, D. C., May 26, 1893. "Sir: You are hereby removed from the office of Attorney of the United States for the Northern and Middle Districts of Alabama, to take effect upon the appointment and qualification of your successor.

"Grover Cleveland."

No charges had been preferred against the District Attorney, consequently it was not claimed that he was incapable of discharging the duties of the office, or that there was any cause for his removal. The district attorney replied to the President's communication as follows:

"My commission bears date of February 4, 1890, and authorizes me to hold said office for the definite term of four years from the date thereof, fixed by law, and I am advised by counsel, and it is my own opinion, that you have no power to remove me, and I respectfully decline to surrender the office.

"Very respectfully,

"Lewis E. Parsons, Jr., "United States Attorney for the Northern District of Alabama."

In deciding the case Mr. Justice Peckham said (p. 327): "The question here presented is whether the President of the United States has power to remove a district attorney, who had been duly appointed, when such removal occurs within the period of four years from the date of his appointment, and to appoint a successor to that officer by and with the advice and consent of the Senate.” It was claimed on the part of the district attorney that the President did not possess such power and that he was entitled to serve as such officer for the period of four years. Mr. Justice Peckham, in his opinion, reviewed the history of the subject of removal from office from the debate which occurred in the first session of Congress in 1789 until the last decision by the Supreme Court. The result reached was that the President can remove

a district attorney though such removal falls within the period of four years after his appointment and though he was appointed "by and with the advice and consent of the Senate" and his successor must be appointed "by and with the advice and consent of the same body." The court further held that the language of the statute that district attorneys shall be appointed for a term of four years, and their commissions shall cease and expire at the expiration of four years, means that the term should not last longer than four years and that during that time the President could remove them if he saw fit to do so.

The last case arose on these facts. A statute provided that the President by and with the advice and consent of the Senate should appoint general appraisers of merchandise . . . who may be removed from office at any time by the President for inefficiency, neglect of duty or malfeasance in office."

President McKinley sent the following communication to one of these appraisers:

"Executive Mansion,

"Washington, D. C., May 3, 1899. "Sir: You are hereby removed from the office of general appraiser of merchandise, to take effect upon the appointment and qualification of your successor.

"William McKinley."

The officer resisted the attempt to remove him and brought suit for the recovery of his salary. He never resigned his office nor acquiesced in any attempted removal therefrom, and was never notified or informed of any charges made against him, either of inefficiency, neglect of duty or malfeasance in office, and he knew of no cause for his removal from the office having been ascertained or assigned by the President. It will be seen that this case presented the question whether or not the President could at will, and without assigning a cause therefor, remove an officer, when the statute under which he was appointed provided the causes for which he might be removed. The court held he could. Mr. Justice Peckham again delivered the opinion of the

court and said (p. 317): "In making removals from office it must be assumed that the President acts with reference to his constitutional duty to take care that the laws are faithfully executed, and we think it would be a mistaken view to hold that the mere specification in the statute of some causes for removal thereby excluded the right of the President to remove for any other reason which he, acting with a due sense of his official responsibility, should think sufficient. It is true that under this construction it is possible that officers may be removed for causes unconnected with the proper administration of the office. That is the case with most of the other officers in the Government. The only restraint in cases such as this must consist in the responsibility of the President under his oath of office, to so act as shall be for the general benefit and welfare. The right of removal would exist as inherent in the power of appointment unless taken away in plain and unambiguous language" (p. 318).

But if a statute provides the grounds upon which the officer may be removed he is entitled to notice and hearing, if his removal is based upon one of those grounds. Congress could attach such conditions to the removal of an officer as it would seem proper, and it could provide that the officer could only be removed for the causes stated and for no other and after a hearing, but it would require in a case of inferior officers clear and explicit language in the statute to deprive the President of his right of removal, for that right seems to be inherent in the right to appoint to office.s

It was held in United States v. Perkins, "When Congress vests the appointment of an inferior officer in the head of a department it may limit and restrict the power of removal as it thinks best for the public interests. The constitutional authority in Congress to thus vest the appointment implies authority to limit, restrict and regulate the removal by such laws as Congress may pass relative thereto. The head of the department has no constitutional prerogative of appointment to offices independently of congressional action and he must be gov

68 Shurtleff v. United States, 189 U. S., 312, 318, 317.

erned not only in making appointments, but in all that is incident thereto.''69

These cases must be considered as establishing the principle that the President, at his pleasure, can remove an officer other than a judge, and is under no obligation to assign a reason for doing so. This doctrine is a long distance from the opinion of Hamilton, and of Madison, when the latter said, "that a wanton removal of an officer by the President without just cause would be grounds for impeaching and removing the President." But that was at the very beginning of the republic, and the doctrine which we have been discussing is one of the evolutions of the Constitution in the progress of the country; and while the conclusion of the courts vastly increases the influence of the Executive and confers power upon him far beyond the express contemplation of the Constitution, and contrasts strangely with the teachings of the fathers of the republic, it would be difficult to show that it was not correct. Unless the power to remove an officer other than a federal judge is lodged somewhere he would necessarily hold for life, and nothing could be more repugnant to the Constitution, or to the spirit of our republic and our institutions than this. The misfortune is that the Constitution does not determine who shall remove officers. But the doctrine that the removal of an officer is incident to his appointment is no more violent than the doctrine that an officer once appointed. could never be removed, and the question seemed ultimately to come to this, and it was between these two conclusions that the court was to decide.

69 116 U. S., 485.

CHAPTER XXXVIII.

THE EXECUTIVE, CONTINUED.

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

This clause was moved by Mr. Spaight while the Convention was considering the subject of the Executive, and was adopted by the Convention without change and reported without change by the Committee on Style. The provision was doubtless taken from the Constitution of North Carolina, which contained a similar clause.

This clause confers upon the President the power to make temporary appointments, or what are called "recess appointments." Such appointments cannot be made unless a vacancy actually exists. An office newly created which had not been filled is not a vacancy within this provision.2

In the above case, Peele, J. (p. 136), said: "The language of the Constitution 'to fill up all vacancies that may happen during the recess of the Senate,' necessarily implies, not only the previous existence of an office, but that 'during the recess of the Senate' a vacancy happened therein, which could be filled by the President by commission to expire at the end of the next session of Congress." On principle the President cannot create a vacancy, by removing the occupant of an office for the purpose of filling it, but if he chose to do so it would be difficult to challenge his motive or prove his purpose.

When must vacancy occur?-In an opinion rendered by Attorney General Taney, he said: "It has been contended that, in order to enable the President to make the appointment, the vacancy must take place during the recess; 1 Journal, 681.

2 Peck v. United States, 39 Court of Claims, 125.