Cyclopædia of Political Science, Political Economy, and the Political History of the United States

Edited by: Lalor, John J.
(?-1899)
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First Pub. Date
1881
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New York: Maynard, Merrill, and Co.
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1899
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Includes articles by Frédéric Bastiat, Gustave de Molinari, Henry George, J. B. Say, Francis A. Walker, and more.
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REMOVALS FROM OFFICE

III.132.1

REMOVALS FROM OFFICE. The subject of Appointments has been reserved, to be considered here with Removals. An appointment, in a political sense, is the designation and authorization, by the proper authority, of some person to be a public officer or agent, with the powers and duties conferred by law. A removal is an act, on the part of some competent authority, by which the holding of a public office or agency is brought to an end. Very generally the power of appointment and that of removal are vested in the same officer or body. Under enlightened governments this power, save in so far as it relates to the subordinates of the judicial and legislative departments, is, with few exceptions, treated as an executive power. Under the very defective confederacy which preceded the American constitution, the appointing power was in congress, there having been no executive branch; and in several of the states a greater or less portion of that power has been retained or usurped by the legislature. Sometimes, however, the power of appointment is divided between two authorities, as in the case of about 3,500 of the higher non-elective officers of the United States, who are nominated by the president and confirmed by the senate. (See CONFIRMATION.) The same mode of appointment generally prevails in the states; but Massachusetts gives the power of confirmation; generally, to a council of eight members elected by the people in districts, and perhaps some other states have followed her example.

III.132.2

—The federal constitution, the theory of which is followed by the states, confers the appointing power upon the president in these words: "He shall nominate, and by and with the advice and consent of the senate, shall appoint, ambassadors, other public ministers and consuls, judges of the supreme court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law; but the congress may by law vest the appointment of such inferior officers as they may think proper in the president alone, in the courts of law, or in the heads of departments." This power extends to army and navy appointments, as well as to those for the civil service. No power of removal is formally conferred, and the only provisions expressly affecting that power are these: 1. "The president, vice-president, and all civil officers of the United States, shall be removed from office on impeachment for a conviction of treason, bribery, or other high crimes and misdemeanors." 2. "The judges, both of the supreme and inferior courts, shall hold their offices during good behavior," and their compensation shall. not be diminished during continuance in office. 3. "The house of representatives shall elect their speaker and other officers; * * the senate shall choose their other officers, and also a president pro tempore in the absence of the vice-president." Each of these provisions plainly leaves the important authority and duty of removal of federal officials, in case they are not guilty of high crimes or misdemeanors, utterly unprovided for, and therefore to mere implication.

III.132.3

—The appointment has been held complete when the commission is filled out and signed by the president, even through not delivered. (Marbury vs. Madison, 1 Cranch, 137, and 19 Howard Rep., 4, 74.) But President Jefferson dissented from this view, and treated a delivery of the commission as essential to complete an appointment.

III.132.4

—Congress has vested in the courts of law the appointment of nearly or quite all the subordinates of those tribunals. With considerable exceptions (for which see CONFIRMATION and TERM AND TENURE OF OFFICE), it has vested in each of the heads of departments the appointment of its own subordinates. And legislative bodies in the United States, as in all other really free countries, appoint and remove their own subordinates.

III.132.5

—Under the federal constitution, it would seem plain, that, with the exception of officers of congress, no appointment of civil officers can be made, except, first, by the president, by and with the advice and consent of the senate; or, second, of inferior officers, 1, by the president alone. 2, by one of the heads of a department, or, 3, by a court of law.

III.132.6

—There seems to be no clear definition of an "inferior officer" in the sense of the constitution, and it would be very difficult to frame one of much definiteness. What, then, is the extent of the power of congress to vest appointments? It is by no means easy to determine what persons in the public service are, in any sense, officers within the purview of the constitution. There are at all times thousands in that service whom the law, with little precision, designates as employés. In legal phrase, they are employed, but not appointed, and are dismissed, or discharged, but not removed. Their selection for, and severance from, the public service, is, therefore, technically no exercise of the appointing power. Mere laborers in the navy yards, arsenals, and elsewhere, are clearly only employés. But many persons, in continuous service at custom houses and other offices, as well as the clerks of committees and commissions, and all like officials, whose relations and duties are nearly identical with those of others classed as officers, are designated and treated as if only employés. Such, too, is the case of nearly all of the tens of thousands of the subordinates of postmasters throughout the Union, they being employed and discharged by the postmasters themselves, without any action by the postmaster general; yet the subordinates of collectors, naval officers, surveyors, etc. with slight exception—though having analogous functions and authority, and being in no respect more official and permanent—are treated as officers. They are appointed and removed by the secretary of the treasury; the direct superiors of the latter "inferior officers" only making recommendations concerning them to that "head of department." On no sound principle can such discrimination be made. The clerk of the postmaster, on the basis of principle, dignity and justice, is as much an officer as the clerk of the collector. The question may well arise as to which of these two classes of public servants are now being selected and discharged in an unconstitutional manner.

III.132.7

—Confusion on the subject has existed from the beginning of the government. A law of 1789 (1 Stat. at Large, chap. xx., § 27), authorizes "marshals to appoint one or more deputies," and a court or judge to remove them. It has been decided (United States vs. Finkle, 3 Blatchford Rep., 425), that "these deputies are officers." But if they are officers, it is plain that they can not be appointed by a marshal, he not being an official upon whom congress can confer the appointing power. (See United States vs. Hertwell, 6 Wallace Rep., 385, for an analogous case.)

III.132.8

—The authority of congress, in regard to vesting the appointing power, may obviously be so exercised as to greatly affect not only the executive department itself, but the relations between it and the senate. The appointment of the vast number of subordinates now made by the heads of the departments alone might either be vested in the president alone or, on the other extreme, be made subject to the confirmation of the senate. So the appointment of all who can be classed as "inferior officers" of the about 3,500 officers now nominated by the president and confirmed by the senate, might be given to the president alone or to heads of departments. And it is by no means clear how far congress may go in regulating the power of removal. Even as early as 1826, a committee of the senate made a report in favor of requiring the president, in making nominations to that body, to fill a vacancy caused by a removal, to state the reasons for which the removal had been made. There is a statute forbidding the head of a department removing certain officers "except for cause stated in writing, which shall be submitted to congress at the session following such removal." (U. S. Rev. Stat., sec. 1705; and see CONFIRMATION, for effect of tenure of office acts.)

III.132.9

—The question where the right of removal was vested arose almost upon the government going into effect. Closely connected with that, was the question as to the theory and basis of removals. These questions were discussed in the house of representatives at its first session, of which Madison was a member. A considerable majority—contrary to a view expressed in the "Federalist," and approved by Mr. Webster—finally held that the power of removal was in the president alone, and that he could remove in his discretion. (Annals of Congress, vol. i., pp. 369-384.) The senate approved this view, but only by the casting vote of the vice-president, Mr. Adams. (Ex parte Hennin, 13 Peters Rep., 237, 240.) In conformity to this view, the act establishing the treasury department declares that "the secretary may be removed by the president." Ever since, this vast implied power—the greatest perhaps ever conferred by mere construction—has been accorded to the president, without its ever having been made an issue in the courts. (1 Kent's Commentaries, 311.) The debate in the house was elaborate, and disclosed great diversity of opinion. The rule for which Mr. Madison, who took a leading part, contended, was that the power of removal was an incident to or really a part of the power of appointments, and that it therefore belonged to the president alone. The senate was to have no part in its exercise. He also maintained, with unanswerable cogency, that removals can be made only for cause, and that a failure to remove for good cause and a removal without such cause, would alike be malfeasance on the part of the president, (and consequently on the part of any official having the appointing power). which would justly subject him to impeachment. It was strongly urged by others, that, as the senate had the power of confirmation (see CONFIRMATION), and hence in a sense shared the appointing power, it should also be consulted as to removals. Mr. Benson, of New York, (where the spoils system was first and most fully developed), advanced the doctrine that the president could "remove at pleasure"; and consequently that he was under no such legal or moral responsibility as Mr. Madison insisted upon. Others urged the equally radical view, on the other extreme, that appointed officers were removable only by impeachment and conviction, which would, of course, give a tenure of good behavior. The only decision reached was, that the power of removal was in the president alone, until some part of it should (with the power of appointment) be vested by congress elsewhere, as the constitution authorizes. Yet, with strange inconsistency, the first congress, in one case, by law vested the power of appointing certain officers in one subordinate official (not the head of a department), and the power of removing them in another. (1 Stat. at Large, chap. xx., § 27.)

III.132.10

—Despite the conflicting action of congress, the rule of the courts is, that the power of removal is an incident of the power of appointment. (Ex parte Hennin, 13 Peters Rep., 261.) It is the general rule, consequently, that when a power of appointment is conferred, the power of removal accompanies it as an incident; the conditions on which the removal may be made depending on the tenure of the office, as defined by law. (See TERM AND TENURE OF OFFICE.) Where there is a tenure of good behavior, it is plain there must be a good cause arising from the bad conduct of the official. Removal, in such a case. must be preceded by such action as is equivalent to a conviction for misbehavior; of which there must have been a charge, and upon that charge a trial and opportunity of defense. (Page vs. Hoedin, 8 B. Munroe, 672.) There are few cases of such tenure, except the judiciary. Under a power to remove "for cause" there is a limitation of the power of a mere discretionary removal, and there must be a legal cause—malfeasance, misfeasance or nonfeasance—constituting a breach of the trust of the office, of which the courts can take notice; and they will restore the officer removed without such cause. (State, etc., vs. Common Council, 9 Wisconsin Rep., 254; Ex parte King, 35 Texas Rep., 657; Field vs. Com., etc., 32 Penn. Rep., 478, 484; The People vs. Munday, 72 New York Rep.,445; The People vs. The Mayor, 79 New York Rep., 582.) If there is some evidence of cause for removal, the courts will not review that evidence, though they might in the first instance have reached a different conclusion. (The People vs. Campbell, 82 New York Rep., 247.)

III.132.11

—Nearly all appointed officials, save those having a fixed term, hold during the discretion of the official having the appointing power, or, in common phrase, "during his pleasure." A similar right of removal during the term exists in the case of appointed officials having a fixed term of year.

III.132.12

—Contrary to the general opinion until recently, the power of the president to remove (or dismiss) an officer of the army or navy is the same as his power to remove a civil officer; but congress has so regulated that authority, that, without the concurrence of the senate, the power of summarily discharging army or navy officers "in time of peace" can not be exercised "except in pursuance of the sentence of a court martial, or in commutation thereof." (Blake vs. The United States, 13 Ott Rep., 227, 237.) This liability of all officers of the army and navy, confirmed by the senate, to be removed at any time by the mere concurrent act of the president and the party majority of that body, has, unquestionably, a vicious tendency; drawing those officers into politics, and causing them to more and more dread political influence and to court the favor of parties and their leaders. This power of removal is held in partisan circles, and very generally on the part of the politician class, to mean a right to remove in order to promote the interests of the dominant party or faction, and even if not, yet in order to realize the political ambition of the appointing officer. The threat or fear of such use of it is made effective for extorting political assessments, and for compelling the officials of the government to become the henchmen of parties and chieftains. This prostitution of the power of removal, like that of the power of appointment, has been one of the most potent agencies by which the public service has been demoralized and degraded, and the spoils system has been made potential. There can be little doubt that there has been a mischievous and unwarranted suggestion drawn from the phrase "removable at pleasure," sometimes used by the courts. It has too often, ever by honest citizens, been accepted as meaning an authority under no moral obligations; when, in fact, nothing can be clearer than the duty of using it, conscientiously. for the promotion of the public interests in the broadest sense in which they may be affected. Whatever may be said of a technical, legal power, no officer can have a right to remove a worthy public servant, except for adequate public reasons, nor any right to for-bear to remove an unworthy one, unless the removal would, for peculiar reasons, be at the moment a public detriment. This was the rule laid down by Madison, and enforced during his generation.

III.132.13

—The moral obligations attending the exercise of the appointing power are clear enough to any candid mind, however party zeal and vicious usages may have obscured them in the minds of the mere politician. The same rules of duty which forbid the use of the people's money for private and party purposes, also forbid the exercise of any branch of the appointing power for the same purpose. The fact that the public conscience is outraged at every falsification of the public accounts and every peculation of the public moneys, yet takes but languid notice of the appointment of the friends of thieves to be constables and marshals, of ignorant politicians to be justices, or of second or third class lawyers to be judges, though abuses and disqualifications on the part of these latter officials may be ten times the most disastrous, only illustrates the lack of political education and the need of reflection upon all that pertains to one of the most vital and potential powers of government. We allow, all over the land, officers to appoint, almost without criticism, an incompetent relative, or an ignorant electioneering partisan, to official places, by reason of which the public business greatly suffers and official life is made disreputable: though we should be justly astir for a conviction, if a single dollar had been taken by a letter carrier, or a pair of gloves—on which we, perhaps, had paid no duties—had been abstracted by a baggage inspector. It will be a great advance of public education and of the public welfare iu many ways, when we shall have an intelligent public opinion which will be indignant and outspoken upon every prostitution of the high trust of the appointing power for party or selfish ends. And it may not be without use to invite special attention to the study and reflection required for comprehending how profoundly, and in what manifold ways, in federal, state and municipal affairs, the honest use of that power, for the selection of the wisest, purest and most efficient, could be made potential for the purification of politics and elevation of official life. Such teaching should find a place in our schools and colleges. It is now the accepted opinion of a great proportion of our people, if not that this power may justifiably be used to advance the personal friends of the officer, yet that it may be used to strengthen his party and his faction. Upon that theory it is now generally exercised. (See SPOILS SYSTEM, PATRONAGE, PROMOTION.)

III.132.14

—The abuses in connection with the power of removal are by no means all on the side of its selfish or partisan exercise. The same malign influences which cause worthy officials to be sent away, are as powerfully exerted to keep the unworthy in their places. Those who have been able to make the public service a hospital for their dependents, combine to resent all attempts to remove them. It may cost a postmaster or a head of a department his place to send away the incompetent electioneering agent of a great party chieftain, or even "the young lady" recommended "by a congressman." Offices are frequently burdened with supernumeraries, whom those having the power have not the courage to remove. President Grant, in one of his messages, referred to the fact that it was far easier to remove the unworthy who came in through competition, and were therefore without influence to keep them, than it was to remove the inefficient favorites of great politicians.

III.132.15

—Under despotic forms of government—or where corruption, as in Turkey, is habitually resorted to as an agency of administration—there is of course no more pretense of justice, or regard for moral obligation, in exercising the power of removal, than of that of appointment. It is, without scruple, used to reward favorites, to gain money, to suppress independence, to strengthen dynasties and hierarchies. Cromwell used it, almost as freely as did James and Charles, to uphold political and religious partisans. Even as late as George III. it was used for nearly or quite all those purposes, and in the army and navy as well as in the civil service. When liberty and justice were enough advanced to enable party majorities to rule, the dominant party began by prostituting that power for selfish ends in much the same spirit that the corrupt tyrants of earlier days had done.

III.132.16

—Soon after the formation of the American constitution, there arose a public opinion in Great Britain too strong for the king to confront, which condemned removals without cause, and such removals ceased. Parties, there, have long since reached the sound conclusion that even their own strength is not increased by mere partisan appointments or proscriptive removals. (See CIVIL, SERVICE REFORM, PROMOTIONS.)

III.132.17

—From the beginning of our national administration until Jackson came to the presidency, it was the accepted theory and the constant practice that removals were not to be made without good cause; and that, unless in the cases of the legal advisers of the president and perhaps a few-others, political opinion did not constitute such a cause. Under Jefferson and the second Adams especially, there was great pressure for removals for political reasons. But they, and each of the first six presidents, standing upon principle and a sense of public duty, nobly resisted that partisan demand; altogether making only seventy-three removals in the forty years covered by their terms. Of these, Washington made nine, and all for cause; John Adams, nine, and none on mere political grounds; Jefferson, thirty-nine, of which he said none were for party reasons; Madison, five; Monroe, nine; and John Q. Adams only two, and both for cause. It is certain that not one of these presidents made a proscription or partisan removal according to the later practice. With Jackson's accession to the presidency a new spirit triumphed. Offices were treated rather as party spoils than as public trusts. Removals were made for the treble purpose of punishing political opponents, of rewarding subservient supporters, and "of strengthening the party." In the year from March 4, 1829, to March 4, 1830, President Jackson appears to have made 734 removals. Throughout his two terms his use of the appointing power was in the same intolerant and despotic spirit. In all the lower grades of the public service, the president's example was soon followed. The theory that patronage is essential to the vitality and usefulness of parties, and that "to the victor belong the spoils," was generally enforced. The higher sentiment of the nation was outraged, and all official life was humiliated and debased. We have no space for enlarging upon the disastrous effects of the spoils system then first established in the national administration. (See SPOILS SYSTEM, PATRONAGE.)

III.132.18

—How thoroughly the theory enforced at Washington was also enforced in the local offices is well illustrated a few years later at the New York custom house. One collector, there, in the four years from 1858 to 1862, removed 389 of his 690 subordinates; another, of the opposite party, in the three and a half years next following, removed 525 out of 702 of those serving under him. Nearly all these removals were for partisan reasons. The duty of removing for cause was, by reason of vicious political influence, but rarely performed. And this reckless, demoralizing proscription, fatal alike to efficiency in the customs service, to purity in politics, and to all manly selfrespect in the public service, continued there, and generally prevailed in the whole civil administration, until the demand for a reform policy began to be effective soon after 1871. In the five years, or 1,565 secular days, preceding the year 1871, there were 1,678 removals, and nearly all for mere partisan reasons, in the New York custom house—or, more than at the rate of one every secular day of the five years!

III.132.19

—From the introduction of the reform methods, in July, 1878, (under which competitive examinations for admission to the New York custom house have been since enforced). until the 8th of September of that year, no removal was there made. From the last-named date to Feb. 20, 1881, (nearly two and a half years), only forty-four removals were made in the office, and all for cause, and hence none for political reasons. From the last-named date to this time (November, 1882), the removals have been upon the same basis and in almost the same ratio, as in the two and a half years preceding 1881.

III.132.20

—The effects of the new system upon removals, as enforced in the New York postoffice during the same periods, have been almost identical with those at the custom house. And at the several other offices where competitive examinations, with various defects and limitations, have been enforced, there has been a corresponding reduction in the number of proscriptive removals Like results attended the enforcement of such examination at Washington under President Grant.

III.132.21

—Proscriptive and partisan removals (or, in other words, removals without cause), are almost invariably made in order to furnish a vacancy for some influential or strongly backed office seeker. And if it were necessary that every such office seeker should win the first place in a competitive examination before he could be appointed, there would be few unjust removals, and the question as to a reasonably permanent tenure of office would present little difficulty, if it was not practically settled. The class of men who are being pushed, or who beg and intrigue for office, are rarely those who can win a place in an honest rivalry or competition of merit. The reasons why members of congress refused to vote money to enable President Grant to continue competitive examinations at Washington, and why congress has given no aid in support of the competitive or merit system at the New York offices, are largely. to be found in the simple facts that the new system was fatal to all arbitrary and proscriptive removals, and hence destructive of the vast congressional patronage, by the aid of which so many members secure their own elections, augment their influence and importance, and get places for their henchmen and favorites. Members of congress, whose duty it is to make laws in aid of keeping the most useful public servants in their places, have exerted a very great part of that pernicious influence which has so generally made our public servants the dependents and servile agents of scheming officials and unscrupulous chieftains.

III.132.22

—During the last few years there has been a rapid development of a sentiment which condemns all removals without cause. The people are beginning to take notice of the abuse which is becoming more and more an issue in the elections. If the more sagacious party leaders already see the need of arresting this form of proscription and despotism, it is yet true that very lately, and even within a few months, the most arbitrary and indefensible removals have been made. Upon each of the late changes in the party majorities in the houses of congress, mere ministerial subordinates have been changed in order to gain partisan patronage. The time of the national senate, during the past and present year, has been largely given to mere factional contentions, growing out of the attempted removals of postmasters and collectors whose political opinions all true statesmen must hold to be unimportant, if not utterly immaterial. At the last session the house was forced to a vote in order to retain a skilled and invaluable clerk against a pressure of many members who sought to put an inexperienced partisan of their own faction into his place. The speaker of the present house of representatives, merely for political reasons, has arbitrarily removed one or more of its most efficient stenographic reporters, in violation of the spirit if not the letter of its own rules and usages, which allow removals only for cause, and has appointed a successor, unequal in capacity, by reason of which the business of the house appears to have been embarrassed. (See speech of Mr. Springer, "Congressional Record," July 27, 1882.) And while we are writing, the facts are laid before the public of a removal of a female postmaster, very recently made in Virginia, only for the reason that a senator treats the sympathy of her brother with the political faction which opposes him as a sufficient cause for demanding such removal! In state and municipal administration, removals are constantly being made for no better cause; by reason of which, men of high self-respect and capacity scorn the public service; those in it are humiliated; administration is made inefficient and needlessly expensive; and the intensity, intrigue and corruption of party politics, and the strife for places, are greatly increased. It is not possible to exaggerate the discouraging, humiliating effects upon the great body of the civil servants, produced by the constant sense that no merits of their own, but an influence and interests foreign to their sphere of duties, are most potential for keeping them in their places; or to overstate the demoralizing influence upon all official and political life of so vast a power as that of appointment and removal habitually used in defiance of the highest obligations of morality, patriotism, and the official oath.

DORMAN B. EATON.

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