Mr. HALE. 2 to.; theories on the subject of the power of removal from office have been propounded in this House, one of tshpeomke biy.the Gentfrom Ohio, who 1st morning, [Mr. FINck] founded on the grave and venerable authority of Madison, that the power of removal by force of the Constitution rests in the President alone as the chief executive officer of the Government, and that no power exists ine to change or transfer that power; the other is the theory claimed by the Gentfrom Pennsylvania [Mr. WILLIAMs] and by the other Gentfrom Pennsylvania who recently addressed the House, [Mr. Stevens] that by force of the Constitution the power of removal rests only in the President jointly with the Senate in the same manner in which the power of appointment is given: This bill is based upon neither of those propositions, but in contradiction of both. Neither theory, I undertake to say, can be maintained logically from the Constitution itself. Neither theory, notwithstanding the eminent authorities that have been cited on both sides, can be sustained by judicial construction. 'Neither theory can be maintained by legislative construction. But the true theory, sustained by the best and ablest writers on the Constitution, sustained by judicial authority, sustained by the consistent and unvarying course of legislative action, puts the power of removal from office on the ground on which this bill puts it; which is, that where the Constitution is silent, where it does not in exPress terms provide for the manner in which officers may be removed, it does not, as a matter of logical conclusion, devolve either upon the President alone or upon the President jointly with the Senate, but that it is a case to be supplied by legislation. The power to create offices.?in the legislative dept assumes and implies neces. sarily a power also to fix the characteristics of the office, its nature, its duties, its duration, and its tenure. This is no new proposition. It was avowed in the earlier writings of Mr. madison, although he afterward, in the constitutional debates, abandoned that ground and occupied the one which has been maintained today by the Gentfrom Ohio [Mr FINck] and the Gentfrom Kentucky, [Mr. Hise. In Nos. 38 and 48 of the Federalist, Mr. Madison certainly uses language which can have no other construction than this view of the power of the Legislature to fix the tenure of office. A difference of opinion arose early upon this very question.. Hamilton, in the 77th number of the Federalist, took the ground now occupied by the 2 gentlemen from Pennsylvania, that the power of removal must rest in the same hands as the power of appointment that is with the President and the senate. The question came up for debate in the 1st Congress upon a bill establishing the office of Secretary of Foreign Affairs in 1789. I undertake to say that those who maintain that that Congress fixed and established the principle that the Constitution vested the power of removal in the President alone labor under a misapprehension. The debate took a wide range and was engaged in o many of the strongest and ablest men of that day. The question was simply whether the officer to be created, the Secretary of Foreign Affairs, should be removable by the Senate alone "or by the President alone, or by the conjoint action of the President and the Senate. Mr. Madison, in the early stages of the discussion, based the argument rather on the ground of convenience and propriety than upon that of constitutional right. But before the close of the debate he announced the broad ground that by force of the Constitution the power must vest necessarily in the President alone; that he as the supreme executive head of the nation must have the power of removal from office. But Mr. Madison was not the only advocate of the provision in that bill providing that the Secretary should be removable at the will of the President. Other gentlemen advocated it on the ground that it was matter of propriety; that the Secretary of Foreign Affairs was in fact the chief clerk, the adviser of the President, and therefore there was eminent fitness that he at least should be removable at the will of the President alone. Among the gentlemen who voted for retaining this clause in the bill, a large majority of those who spoke upon the question put it upon the ground of expediency only, and not upon that of constitutional rights. Among the names of those who voted in the affirmative upon the question of retaining the power of removal in the President was at least one gentleman, who in the debate stood exPressly committed to the idea that the Constitution did not of itself confine the power to the President. He announced and maintained that doctrine in some very ertinent and forcible remarks. I refer to Mr. ivermore, of NewHampshire. That debate, therefore, and that 1st vote of Congress did not determine anything upon this question. It did not make a legislative construction upon the subject of the power of the President to remove; although several different writers since that time, and some of them writers of distinction, have fallen into the mistake, while even the courts have fallen into a different mistake concerning that debate. That debate alone unless followed by some action. certainly could not be held to give a controlling legislative construction to this section of the Constitution. In different laws, which I will not now enu merate, creating heads of different Depts and subordinate officers, passed from time to time from that period down to this, and I may say, I believe, in every decade at least of our existence as a nation, this matter has been passed upon by Congress. And how? Not by iving a legislative construction as to what the constitution implies may be done in regard to removals from office, but by granting the exPress power to the President to remove; a thing which would be wholly needless if the power was already in the Constitution itself. Legislative construction in order to be binding must be in the nature of Prescription; it must be uniform and consistent, always recognizing the same doctrine of the Constitution. Now, so far is this from being the case, that in addition to the instances to which I have referred, wherein the statutes the exPress power was given to the President to remove without the concurrence of the Senate, at least one case has met the approval of Congress, and without question upon that point; it was made the subject of a very rigid and searching debate; and the power of removal was exPressly confined to the President, with the approval and consent of the Senate. In the act. 1863, creating the Bureau of the Currency, it was exPressly provided that the Comptroller of the Currency should be removable only by the President, by and with the advice and consent of the Senate. Instead, then, of finding a uniform course of precedent of legislative construction in favor of this constitutional power, the whole course of legislative precedent is against it, and precisely in favor of the doctrine upon which this bill is based, that the Constitution being silent it is a proper subject of legislative action to determine the tenure of these offices which the legislative power creates. his has been recognized, too, by the courts. I refer to the case which was read this morning by the Gentfrom Ohio, [Mr. FINck, and call his attention and the attention of the House to the manner in which the Supreme Court decided this question. The case cited by him is the case of exparte Hennan, 13 and 14 Peters. This very opinion contains one erroneous exPression as to the nature of the debate of 1789; but that is immaterial to the case. It certainly gives the true doctrine, as the court understood it, in regard to the construction of the Constitution in this respect. Mr. Justice Thompson, in delivering the opinion of the court, says: “In the absence of all constitutional provision or statutory regulation” Mark the words; they are such as never could have been employed except upon the idea that “statutory regulation” was admissible under the Constitution “In the absence of all constitutional provision or statutory regulation, it would seem to be a sound and necessaryrule to considerthe power of removal as incident to the power of appointment. This power of removal from officewas a subject much disputed, and upon which a great diversity of opinion was entertained in the early history of This related, however, the Government. to the power of the President to removeofficersappointedwith the concurrence of the Senate; and the great questionwas, whether the removal wasto be g. President alone or with the concurrence of the Senate, both constituting the appointing power. No one denied" In this Justice Thompson was in error, for Mr. Madison denied it; but so far as regards the decision of Congress it was undoubtedly true that Congress did not deny it “No one denied the power of the President and Senate jointly to remove where the tenure of the officewas not fixed by the Constitution: which was a full recognition of : principle that the power of removal wasincident to the power of appointment.” There is the solemn declaration of the supreme Court upon this point. It is explicit and full, covering the whole doctrine for which I now contend. I cannot occupy further time in the discussion of this question of power. The argument of the Gentfrom Pennsylvania [Mr. WILLIAMs] on this subject, presented some weeks ago, seemed to me i. conclusive on this point, although I differ wi him in the extent to which he now seems disposed to carry the construction of the constitutional power. If any weight can be attached to the declarations of the judiciary and to the action of Congress from 1789 down to 1863, if we are not prepared to stultify and nullify the action of Congress upon these topics in the different directions I have pointed out, then I think there can be no question that we are right today in saying that this is a power of legislation which the Constitution has left with us, and that all we have to do is to consider the expediency of its exercise and the best mode of exerting it to secure the desired ends. Now, sir, speaking for myself alone, I wish to say in all frankness and candor that I advocate this bill as a proper measure of permanent legislation for the country. I believe it to be desirable, not because the POTUS is today found in a position hostile to the large majority of this House; not for the reason that the President today seems to be attached to a political party to which I certainly do not belong. I always have repudiated, and always repudiate, the idea of changing the permanent legislation of the country for the Pupo. of remedying a purely tem porary evil. believe that by pursuing that practice, toward which the arguments of many gentlemen on this side of the House seem to point so often, I may say so constantly, we shall be led into fatal mistakes. The bill which is before us today proposes what I believe to be a proper, just, reasonable course of action, applicable as well to the hereafter as to today. And the Present relation of parties the fact that a President elected by one party finds himself abandoning that party ifacting in opposition to his former political friends may perhaps furnish an illustration of the propriety of such legislation, although it wo not of itself be for me a conclusive argument in its favor. I refer, therefore, to the circumstances of today only by way of illustration; and I submit that, taking these circumstances in view, and conceding if gentlemen wish the entire good faith of everybody, the provisions of this bill are such only as are desirable and approriate, and cannot be considered as derogating from the proper degree of executive power. This bill does not, as gentlemen on the other side would seem to argue, prevent the displacement of an incompetent and dishonest officer. Whenever an officer is found in default, incomtent, unworthy, ample provision is made for suspension until the question of his removal may be submitted to the Senate, and for his removal, after Fo examination, by the same power which concurred in his appointment. There is no difficulty in this case. All the power of suspension, all the power of getting rid of unworthy officers which exists today in the Government, either in the President alone or in the President and in the senate, is Preserved by this bill. The only change in that respect is this: instead of the removal being positive by the President, the officer is debarred from the exercise of his duties and the receipt of his pay until the 2 constitutional bodies agree whether he ought to be removed or not. Nor does it interfere with the tenure of of. fice; in other words, it does not extend the constitutional term of any office. It contains a provision exPressly on that point.