was reported out in the House on December | sent of the Senate also to removals.60 Expe *279 5, 1866, *was amended by the conference committee so as to apply to Cabinet officers, and having passed both Houses, was sent to the President on February 20, 1867, and passed over his veto on March 2, 1867. The fact that the removal clause had been inserted in the currency bill of 1863 (12 Stat. 665) shows that it did not originate in the contest of Congress with President Johnson, as has been sometimes stated. Thirty years before that, it had been recommended by Mr. Justice Story as a remedial measure, after the wholesale removals of the first Jackson administration. The Post Office Department was then the chief field for plunder. Vacancies had been created in order that the spoils of office might be distributed among political supporters. Fear of removal had been instilled in continuing officeholders to prevent opposition or lukewarmness in support. Gross inefficiency and hardship had resulted. Several remedies were proposed. One of the remedies urged was to require the President to report to the Senate the reasons for each removal.64 The second was to take the power of appointing postmasters from the Postmaster General and to confer it upon the President, subject to the consent of the Sen $280 ate.65 A third *proposal was to require con 30, 1864, presented in the Senate a bill for a classified civil service. On June 13, 1866, the House committee on civil service reform reported out the Jenckes bill. It contained among other provisions a section requiring the proposed commission to prescribe, subject to the approval of the President, the misconduct or inefficiency which would be sufficient ground for removal and also the manner by which such charges were to be proved. This provision was retained in the succeeding bill sponsored by Jenckes in the House. The provision was expressly omitted from the Pendleton bill, which later became the Civil Service Act of 1883, in order not to endanger the passage of a measure for a classified civil service by impinging upon the controversial ground of removal. Senators Sherman and Brown attempted to secure legislation restricting removal by amendments to the Pendleton bill. 14 Cong. Rec. 210, 277, 364. In the first session of the Thirty-Ninth Congress no action was taken upon the Jenckes bill; but the bill was reintroduced in the following session on January 29, 1867. An attempt on the part of Jenckes, after the initial passage of the Tenure of Office Act, to secure the passage of his bill resulted in the tabling of his scheme on February 6, 1867, by a vote of 72 to 66. This measure appears to have been first sug gested on May 4, 1826, in a bill which accompanied the report presented by Benton from the select committee of the Senate appointed to investigate executive patronage when abuse of the power by President John Quincy Adams was apprehended. Sen. Doc. No. 88, 19th Cong., 1st Sess., Ser. No. 128. On March 23, 1830, Barton's resolution asserting the right to such information was reported. Sen. Doc. 103, 21st Cong., 1st Sess., Ser. No. 193. On April 28, 1830, the proposal was renewed in a resolution introduced by Holmes. 6 Cong. Deb. 385. In 1835 it was embodied in the Executive Patronage Bill which passed the Senate on two successive occasions, but failed of action in the House. 65 This measure appears to have been first suggested by President Monroe in his message of December 2, 1823. 41 Ann. Cong. 20. Its proposal for enactment into law was first suggested on May 4, 1826, by rience since has taught that none of these remedies is effective. Then, however, Congress adopted the second measure. The evil continued; and the struggle against the spoils sys *281 tem was renewed. The *other crude remedies which had been rejected-accountability of the President to the Senate67 and the requirethe report of the select committee appointed by the Senate on possible abuses of executive patronage. In 1832 the proposal was again brought forward by Vance of Ohio in the nature of an amendment to the postal legislation, 8 Cong. Deb. 1913. On March 7, 1834, Clay's resolutions, that advocated the concurrence of the Senate in removals, also included a proposal for the appointment of postmasters by the President with the concurrence of the Senate. On January 28, 1835, a report by the Senate committee on post offices called attention to the extended removals of postmasters. Sen. Doc. No. 86, 23d Cong., introduction in 1835 and passage by the Senate of a 2d Sess., Ser. No. 268, p. 88. This report led to the bill reorganizing the Post Office, which contained the proposal under consideration. The House having failed to act upon the 1835 bill, it was reintroduced at the next session and passed by both Houses. Act July 2, 1836. c. 270, 5 Stat. 80. See, also, Sen. Doc. No. 362, 24th Cong., 1st Sess., Ser. No. 283. This measure appears to have been first proposed in Congress by Clay on March 7, 1834. 10 In 1835, it was, in substance, emCong. Deb. 834. bodied in an amendment proposed by him to the Executive Patronage Bill, which read: "That in all instances of appointment to office by the President, by and with the advice and consent of the Senate, the power of removal shall be exercised only in concurrence with the Senate; and, when the Senate is not in session, the President may suspend any such officer, communicating his reasons for the suspension during the first month of its succeeding session; and if the Senate concur with him, the officer shall be removed; but if it do not concur with him, the officer shall be restored to office." 11 Cong. Deb. 523. In 1836 when a Senate committee of commerce investigated the removal of a gauger for political reasons, Levi Woodbury, then Secretary of the Treasury, suggested the assumption of Congressional control over removals, saying: "The department deems it proper to add that • • a great relief would be experienced if • • the power of original appointment and removal in all these cases should be vested in Congress, if the exercise of it there is deemed more convenient and safe, and, at the same time, constitutional." Sen. Doc. No. 430, 24th Cong., 1st Sess., Ser. No. 284, p. 30. 67 On July 1, 1841, Benton again reintroduced a Cong. Globe, 27th Cong., proposal of this nature. 1st Sess., 63. On May 23, 1842, a select committee on retrenchment reported to the House on the necessity of diminishing and regulating executive patronage, saying "they entertain no doubt of the power of Congress to prescribe, and of the propriety of prescribing, that, in all cases of removal by the President, he shall assign his reasons to the Senate at its next session." House Rep. No. 741, 27th Cong., 2d Sess., Ser. No. 410, p. 5. See, also, Report of July 27, 1842, House Rep. No. 945, 27th Cong.. 2d Sess., Ser. No. 410; 5 Ex. Journ. 401. On Jan. 3, 1844, after an attempt to impeach President Tyler for misusing the appointing power had failed, Thomasson in the House again sought to secure the adoption of such a measure. On December 24, 1849, after the Post Office Department under Taylor's administration had recorded 3.406 removals, Bradbury proposed a resolution requiring the President to give the number and reasons for removals made from the beginning of his term of office. Senator Mangum, in order to cut short debate on the resolution, contended that it was an unconstitutional invasion of executive powers and called for a test vote upon the resolution. The Senate divided 29 to #282 (47 S.Ct.) removals68-were power over removal. It was because the spoils system held sway. ment of its consent to again considered; *and both continued to be urged upon Congress, even after the fourth and the more promising remedy —inquiry into fitness for office and competitive examinations-had been proposed. For a generation, the reformers failed to secure the adoption of any further measure. The first substantial victory of the civil service reform movement, though a brief one, was the insertion of the removal clause in the Currency Bill of 1863.69 The next forward step was taken by the Consular and Diplomatic Appropriation Act June 20, 1864, c. 136, 2, 13 Stat. 137, 139, 140, also approved by President Lincoln, which contained a provision that consular clerks should be appointed by the President after examination, and that "no clerk so appointed shall be removed from office except for cause stated in writing, which shall be submitted to Congress at the session first following such removal.” 70 It was in the next Congress that the removal clause was applied generally by the Tenure of Office Act. The long delay in adopting legislation to curb removals was not because Congress *283 accepted the doctrine that the Constitution had vested in the President uncontrollable 23 in upholding its right to demand reasons for removals. Cong. Globe, 31st Cong., 1st Sess., 160. On January 4, 1850, the Senate adopted a resolution call ing for a report upon the number and reasons for removals of deputy postmasters. Id. 100. The character that this movement to restrict the power of removal had assumed in consequence of the continuance of the spoils system is illustrated by the remarks of Bell in the Senate in 1850: ""To ernment is concerned. restrain this power by law I would urge as one of the greatest reforms of the age, so far as this govSir, I repeat that to restrain by law this unlimited, arbitrary, despotic power of the executive over the twenty or thirty thousand valuable public officers of the country the tendency of which is to make them slaves of his will-is the greatest reform demanded by the true interest of the country, no matter who may at any time be the tenant of the White House. Cong. Globe, 31st Cong., 1st Sess., App. 1043. Restrictions were twice advocated in the official utterances of President Tyler. 4 Messages and Papers of the Presidents, 50, 89. See, also, Report of June 15, 1844, by Sen. Com. on Retrenchment; Sen. Doc. 399, 28th Cong., 1st Sess., Ser. No. 437, p. 55; Resolution Dec. 17, 1844, by Grider in the House, Cong. Globe, 28th Cong., 2d Sess., 40. Act Feb. 25, 1863, c. 58, § 1, 12 Stat. 665. TO By Act March 3, 1853, c. 97, § 3, 10 Stat. 189, 211, clerks in the departments of the Treasury, War, Navy, Interior, and Post Office were to be classified and appointments to the various classes were to be made only after examination by a select board. This scheme was later abandoned after it became evident that the examinations prescribed were conducted arbitrarily and with no attempt to determine the fitness of candidates for positions. Fish, Civil Service and Patronage, 183. By Act Aug. 18, 1856, c. 127, 7, 11 Stat. 52, 55, the appointment of 25 consular pupils was authorized and examinations were to be conducted to determine the fitness of ap plicants for appointment. This provision was, however, stricken from the diplomatic and consular appropriation bill in the next session of Congress. The principle was not returned to again until Act June 20, 1864, c. 136, § 2, 13 Stat. 137, 139. 47 S.CT.-6 The historical data submitted present a legislative practice, established by concurrent affirmative action of Congress and the President, to make consent of the Senate a condition of removal from statutory inferior, civil, executive offices to which the appointment is made for a fixed term by the President with such consent. They show that the practice has existed, without interruption, continuously for the last 58 years; that throughout this period, it has governed a great majority of all such offices; that the legislation applying the removal clause specifically to the office of postmaster was enacted more than half a century ago; and that recently the practice has, with the President's approval, been extended to several newly created offices. The data show further that the insertion of the removal clause in acts creating inferior civil offices with fixed tenures is part of the broader legislative practice, which has prevailed since the formation of our government, to restrict or regulate in many ways both removal from and nomination to such offices. A per sistent legislative practice which involves a delimitation of the respective powers of Congress and the President, and which has been so established and maintained, should be deemed tantamount to judicial construction, in the absence of any decision by any court to the contrary. United States v. Midwest Oil Co., 236 U. S. 459, 469, 35 S. Ct. 309, 59 L. Ed. 673. found of action by Congress which in*volves 71 Chief Justice Marshall said of the proceedings of 1789: "In organizing the departments of the *286 *It is true that several Presidents have asserted that the Constitution conferred a pow *287 Nor does the debate show that the major-1 and by the action taken on Benson's moity of those then in Congress thought that the tions.75 President had the uncontrollable power of removal. The Senators divided equally in their votes. As to their individual views we lack knowledge; for the debate was secret.72 In the House only 24 of the 54 members voting took part in the debate. Of the 24, only 6 appear to have held the opinion that the President possessed the uncontrollable power of removal. The clause which involved a denial of the claim that the Senate had the constitutional right to participate in removals was adopted, so far as appears, by aid of the votes of others who believed it expedient *285 for *Congress to confer the power of removal upon the President alone.73 This is indicated both by Madison's appeal for support? executive, the question in what manner the high officers who filled them should be removable, came er of removal uncontrollable *by Congress.76 But of the many statutes enacted since the foundation of our government which in express terms controlled the power of removal, either by the clause here in question or otherwise, only two were met with a veto: The Tenure of Office Act of 1867, which related to high political officers among others, and the Budget Act of 1921 (Comp. St. § 400/2 participation in the removal of the Compet seq.), which denied to the President any troller and Assistant Comptroller. passed over the President's veto; the other It is true also that several Presidents have was approved by the succeeding President. One was than explanatory of the meaning of the Constitution, and therefore not liable to any particular ob on to be discussed." 5 Marshall, Life of Washing-jection on that account. If the Constitution is silent, ton, 196. 12 Of the ten Senators who had been members of the Constitutional Convention of 1787, four voted against the bill. A fifth, Bassett, changed sides during the debate. Maclay, Sketches of Debate, 110. 73 The six who held that the Constitution vested a sole power of removal in the President were Baldwin, 1 Ann. Cong. 557-560; Benson, Id. 505-507; Boudinot, Id. 526-532; Clymer, Id. 489; Madison, Id. 546; Vining, Id. 585. Madison, at first, considered it subject to congressional control. 1 Ann. Cong. 374, 375. Seven held that the power of removal was a subject for congressional determination and that it was either expedient or inexpedient to grant it to the President alone. Hartley, 1 Ann. Cong. 585; Lawrence, Id. 583; Lee, Id. 523-526; Sedgwick, Id. 582, 583; Sherman, Id. 491, 492; Sylvester, Id. 560-563; Tucker, Id. 584, 585. Five held that the power of removal was constitutionally vested in the President and Senate. Gerry, 1 Ann. Cong. 502; Livermore, Id. 477-479; Page, Id. 519, 520; Stone, Id. 567; White, Id. 517. Two held that impeachment was the exclusive method of removal. Jackson, 1 Ann. Cong. 374, 529-532; Smith, of South Carolina, 1 Ann. Cong. 457, 507-510. Three made desultory remarks-Goodhue 1 Ann. Cong. 378, 533, 534; Huntington, 1 Ann. Cong. 459; and Scott, 1 Ann. Cong. 532, 533-which do not admit of definitive classification. Ames was only certain that the Senate should not participate in removals, and did not differentiate between a power vested in the President by the Constitution and a power granted him by the Legislature. 1 Ann. Cong. 473-477, 538-543. He inclined, however, towards Madison's construction. 1 Works of Fisher Ames, 56. During the earlier debate upon the resolutions for the creation of Executive Departments, Bland had contended that the Senate shared in the power of removal. 1 Ann. Cong. 373, 374. The conclusion that a majority of the members of the House did not hold the view that the Constitution vested the sole power of removal in the President was expressed by Senator Edmunds. 3 Impeachment of Andrew Johnson, 84. It had been expressed 20 years earlier by Lockwood, J., of the Supreme Court of Illinois, in a case involving a similar question and decided adversely to Madison's contention. Field v. People, 2 Scam. 79, 162-173. 14 Madison's plea for support was addressed not only to those who conceived the power of removal to be vested in the President, but also to those who believed that Congress had power to grant the authority to the President and that under the circumstances it was expedient to confer such authority. After expressing his own views on the subject, he continued: "If this is the true construction of this Instrument, the clause in the bill is nothing more and it is a power the Legislature have a right to confer, it will appear to the world, if we strike out the clause, as if we doubted the propriety of vesting it in the President of the United States. I therefore think it best to retain it in the bill." 1 Ann. Cong. 464. 15 The initial vote of 34 to 20, defeating a motion to strike out the words "to be removable by the President," was indecisive, save as a determination that the Senate had no constitutional right to share in removals. Madison, June 22, 1789, 1 Ann. Cong. 578, 579. "Indeed, the express grant of the power to the President rather implied a right in the Legislature to give or withhold it as their discretion." 5 Marshall, Life of Washington, 200. Benson, therefore, proposed to remove this ambiguity by striking out the words "to be removable by the President," and inserting "whenever the said principal officer shall be removed from office by the President of the United States," thus implying the existence of the power in the President irrespective of legislative grant. The motions were successful and their adoption has been generally interpreted as a legislative declaration of Benson's purpose. Such interpretation, although oft repeated, is not warranted by the facts of record. The individual votes on these two motions are given. An examination of the votes of those whose opinions are also on record shows that Benson's first motion succeeded only as a result of coalition between those who accepted Madison's views and those who considered removal subject to congressional control but deemed it advisable to vest the power in the President. The vote on Benson's second motion to strike out the words "to be removable by the President" brought forth a different alignment. The minority now comprised those who, though they believed the grant of power to be expedient, did not desire to imply the existence of a power in the President beyond legislative control; whereas the majority exhibits a combination of diverse views-those who held to Madison's construction, those who initially had sought to strike out the clause on the ground that the Senate should share in removals, and those who deemed it unwise to make any legislative declaration of the Constitution. Thus none of the three votes in the House revealed its sense upon the question whether the Constitution vested an uncontrollable power of removal in the President. On the contrary the votes on Benson's amendments reveal that the success of this endeavor was due to the strategy of dividing the opposition and not to unanimity of constitutional conceptions. 16 President's Jackson, 3 Messages and Papers of the Presidents, 133; Johnson, 6 Id. 492; Cleveland, 8 Id. 379; Wilson, 59 Cong. Rec. 8609. (47 S.Ct.) at times insisted that for the exercise of Senate nor the House has at any time retheir power they were not accountable.to the #288 Senate.77 But even these Presidents *have at other times complied with requests that the ground of removal of inferior officers be stated.78 Many of the Presidents have furnished *289 the desired information *without questioning the right to request it.79 And neither the *290 ceded from the claim that Congress has power both to control by legislation removal from inferior offices and to require the President to report to it the reasons for remov relating to the failure to send in Captain H. Holmes' name for promotion. 7 Ex. Journ. 227. On September 2, 1850, President Fillmore complied with a Senate resolution requesting the President to commu"On February 2, 1835, the Senate adopted a reso- nicate correspondence relating to "the alleged resiglution requesting the President to communicate to nation" of Lieut. E. C. Anderson. 8 Ex. Journ. the Senate copies of the charges against Gideon 226. Fillmore, in compliance with a Senate resoluFitz, surveyor general, in that such information was tion of August 14, 1850, laid before the Senate a renecessary for its constitutional action upon the port of the Postmaster General communicating the nomination of his successor. 4 Ex. Journ. 465. On charges on file against the deputy postmaster at February 10, 1835, President Jackson refused to comMilwaukee. Id. 220. Nominations having been made ply with these alleged "unconstitutional demands." for the collectorships of New York and Chicago, 4 Ex. Journ. 468. On January 25, 1886, the Senate and the former incumbents suspended, Edmunds on adopted a resolution directing the Attorney GenerNovember 26, 1877, proposed a resolution directing al to transmit copies of documents on file in the the Secretary of the Treasury to transmit all papers Department of Justice relating to the management bearing upon the expediency of removing the colof the office of district attorney for the southern lectors. On January 15, 1879, the Secretary of the district of Alabama. J. D. Burnett had been nomTreasury communicated to the Senate an official reinated to the office in place of G. M. Duskin susport, and on January 31, 1879, President Hayes forpended. 25 Ex. Journ. 294. On February 1, 1886, a warded his reasons for the suspensions. 21 Ex. letter from the Attorney General was laid before the Journ. 140, 455, 497. Senate refusing to accede with the request by direction of the President. On March 1, 1886, President Cleveland in a message to the Senate denied the constitutional right of the Senate to demand such information. 8 Messages and Papers of the Presidents, 375. TS During March, 1830, prior to the Fitz episode, three resolutions to request the President to communicate grounds for the removal of inferior officials failed of adoption in the Senate. 4 Ex. Journ. 75, 76, 79. However, during April, 1830, in the case of nominations sent to the Senate for confirmation, resolutions requesting the President to communicate information relative to the character and qualifications of the appointees were adopted and complied with by President Jackson. 4 Id. 86, 88, 92. The instances of President Johnson's compliance with the second section of the Tenure of Office Act, requiring the communication of reasons for the suspension of inferior officials during the recess of the Senate, have been enumerated. See notes 23 and 24, supra. President Johnson also complied with a resolution adopted by the Senate on December 16, 1867, requesting him to furnish the petitions of Idaho citizens, filled with him, remonstrating against the removal of Governor Ballard. 16 Ex. Journ. 109, 121. Also, on April 5, 1867, his Attorney General complied with a Senate resolution calling for papers and other information relating to the charges against a judge of Idaho Territory, whose removal the President was seeking through the appointment of a successor. 15 Id. 630, 644. On February 18, 1867, his Postmaster General in compliance with a House resolution of December 6, 1866, transmitted the number and reasons for the removals of postmasters, appointed by the President, between July 28, 1866, and December 6, 1866. House Ex. Doc. No. 96, 39th Cong., 2d Sess., Ser. No. 1293. His Secretary of the Interior also complied with a House resolution requesting information as to removals and reasons therefor in the department. House Ex. Doc. No. 113, 39th Cong., 2d Sess., Ser. No. 1293. Prior to the date on which President Cleveland upheld his right to refuse the Senate information as to the conduct of a suspended official, his Secretary of the Treasury twice complied with requests of the Senate for such information. 25 Ex. Journ. 312, 317. These requests were couched in substantially the same form as that which was refused in the Duskin Case. Subsequent to that date, compliances with similar resolutions are recorded in four further cases, two by the Secretary of the Treasury, one by the Postmaster General and one by the Attorney General. 25 Ex. Journ. 362, 368, 480, 559. On March 2, 1847, President Polk complied with a Senate resolution requesting reasons and papers Compliances with Senate resolutions directed to the heads of departments relative to the removal of presidential appointees are also on record. In response to a House resolution of February 13, 1843, requesting the charges against Roberts and Blythe, collectors, and the names of the persons who petitioned for their removal, the Secretary of the Treasury transmitted the material that he had in his control. House Doc. No. 158, 27th Cong., 3d. Sess., Ser. No. 422. On January 14, 1879, the Secretary of the Treasury complied with a Senate resolution requesting the charges on file against the Supervising Inspector General of Steamboats. 21 Ex. Journ. 454. On January 20, 1879, the Secretary of the Treasury complied with a Senate resolution calling for the papers showing why Lieutenant Devereux was discharged from the Revenue Marine Service. Id. 470. The Secretary of the Navy complied with a Senate resolution of February 25, 1880, asking why Edward Bellows was dropped from the roll of paymasters. Sen. Doc. No. 113, 46th Cong., 2d Sess., Ser. No. 1885. Presidents Van Buren and Tyler also complied with resolutions requesting the number of removals. Sen. Doc. No. 399, 28th Cong., 1st Sess., Ser. No. 437, p. 351; House Doc. No. 48, 27th Cong., 1st Sess., Ser. No. 392. Senate resolutions, occasioned by the nomination of the successor in place of a former incumbent, requesting information as to the conduct or ability of the successor, have been complied with by Presidents Monroe on February 1, 1822 (3 Ex. Journ. 273); Jackson on April 12, and 15, 1830 (4 Ex. Journ. 88, 92), and on April 24, 1834 (4 Ex. Journ. 390); by Tyler on June 29, 1842 (6 Ex. Journ. 97); by Polk on June 23, 1848 (7 Ex. Journ. 435); by Fillmore on September 16, 1850 (8 Ex. Journ. 232); By Buchanan on March 2, 1858 (10 Ex. Journ. 237); by Grant on December 21, 1869 (17 Ex. Journ. 326); and by heads of departments under Polk on June 23, 1848 (7 Ex. Journ. 435); under Fillmore on September 25, 1850, and February 17, 1853 (8 Ex. Journ. 250, 9 Ex. Journ. 33); under Lincoln on January 22, 1862, and on February 23, 1865 (12 Ex. Journ. 95, 14 Ex. Journ. 135). The practice appears to have been suggested by President Washington. The Senate having rejected a nomination, President Washington on August 7, 1789, in nominating a successor, said: "Permit me to submit to your consideration whether, on occasions when the propriety of nominations appear questionable to you, it would not be expedient to communicate that circumstance to me, and thereby avail yourselves of the information which led me to make them, and which I would with pleasure lay before you." 1 Ex. Journ. 16. als made therefrom.80 Moreover, no instance | dicial. Obviously the President cannot sehas been found in which a President refused *291 *292 to comply with an act of Congress requiring cure full execution of the *laws, if Congress that the reasons for removal of an inferior denies to him adequate means of doing so. officer be given. On the contrary, President Full execution may be defeated because ConCleveland who refused to accede to the re- gress declines to create offices indispensable for that purpose; or because Congress, havquest of the Senate that he state the reasons for the removal of Duskin had, in the case of ing created the office, declines to make the inBurchard, complied, without protest or reserdispensable appropriation; or because Congress, having both created the office and made the appropriation, prevents, by restrictions which it imposes, the appointment of officials who in quality and character are indispensable to the efficient execution of the law. If, in any such way, adequate means lie with Congress. The President performs his full constitutional duty, if, with the means and instruments provided by Congress and within the limitations prescribed by it, he uses his best endeavors to secure the faithful execution of the laws enacted. Compare Kendall v. United States, 12 Pet. 524, 613 626, 9 L. Ed. 1181. va*tion, with the requirement of the Act of February 12, 1873, c. 131, § 1, 17 Stat. 424 (now Rev. Stat. § 343 [Comp. St. § 507]) that the reasons for the removal of the Director of the Mint be communicated by him to the Senate. 25 Ex. Journ. 242. A construction are denied to the President, the fault will given to the Constitution by the concurrent affirmative action of Congress and the President continued throughout a long period without interruption should be followed despite the isolated utterances, made in the heat of political controversies not involving the question here in issue by individual Presidents supported only by the advice of the Attorney General.81 The separation of the powers of government did not make each branch completely autonomous. It left each in some measure, dependent upon the others, as it left to each power to exercise, in some respects, functions in their nature executive, legislative and ju 80 The Executive Patronage Bill, containing such a requirement, passed the Senate on February 21, 1835, and on February 3, 1836. A test vote on the Senate's right in 1850 is also on record. See note 67, supra. Following the protest of President Cleveland, resolutions condemnatory of the Attorney Gen eral's refusal "under whatever influence" to communicate the information requested were favorably reported to the Senate, debated at length and passed. Among the members of the committee, advocating the adoption of the resolutions, were Hoar and Evarts, the two most energetic opponents of the Tenure of Office Act. Sen. Rep. No. 135, 49th Cong., 1st Sess., Ser. No. 2358. The acts of 1864 and 1873, approved by Presidents Lincoln and Grant, embody such a requirement. See note 33, supra. 81 Attorneys General Legare, Clifford, and Crittenden seem to have been of the opinion that the President possessed an absolute power of removal. 4 Op. A. G. 1, 603; 5 Op. A. G. 288. Legare, however, having occasion to consider Story's contention that the power of removal might be restricted by legislation with respect to inferior officers, said that he was "not prepared to dissent from any part of this sweeping proposition." 4 Op. A. G. 165, 166. In 1818 Attorney General Wirt in holding that where an act of Congress gave the President power to appoint an officer, whose tenure of office was not defined, that officer was subject to removal by the President, said: "Whenever Congress intend a more permanent tenure (during good behavior, for example), they take care to express that intention clearly and explicitly. 1 Op. A. G. 212, 213. Following the passage of the Tenure of Office Act the subject was considered by Attorney General Evarts, who disposed of the problem "within the premises of the existing legislation." 12 Op. A. G. 443, 449. In 1873 Attorney General Akerman refused to concede the President a power of removal in that under that Act he was limited to a power of suspension. 13 Op. A. G. 300. In 1877 Attorney General Devens concurred in the provisions of the Tenure of Office Act restoring a suspended officer to his office upon the failure of the Senate to act upon the confirmation of his successor. 15 Op. A. G. 375. Checks and balances were established in order that this should be "a government of laws and not of men." As White said in the House in 1789, an uncontrollable power of removal in the Chief Executive "is a doctrine not to be learned in American governments." Such power had been denied in colonial char *293 ters,82 and even under pro*prietary grants83 and royal commissions. 8+ It had been denied 83 The Connecticut Charter of 1662, vested the appointment of practically all officers in the assembly and provided that such officers were to be removable by the Governor, Assistants and Company for any misdemeanor or default. The Rhode Island Charter of 1663 contained the same provisions. The Massachusetts Charter of 1691 provided for the appointment of officers by and with the advice and consent of the council. Under Governors Phipps and Stoughton the council asserted its rights over appointments and dismissals, and in 1741 Shirley was prevented from going back to the earlier arbitrary practice of Governor Belcher. Spencer, Constitutional Conflict in Massachusetts, 28. The Georgia Charter of 1732 provided that the common council should have power to nominate and appoint and "at their will and pleasure to displace, remove and put out such treasurer or treasurers, secretary or secretaries, and all such other officers, ministers and servants." 83 As early as 1724 Mrs. Hannah Penn, in her instructions to Sir William Keith, governor of Pennsylvania, protested against his dismissal of the Secretary without seeking the advice of his council. The practice of seeking such advice continued in later years. Shepherd, Proprietary Government in Pennsylvania, 321, 370. 84 In the royal colonies there was a recognized tendency to guard against arbitrariness in removals by making the governor responsible to the home government instead of the local representative assembly. In New Hampshire the first and second Andros Commissions intrusted the power to the governor alone, but the Bellomont Commission of 1697, the Dudley Commission of 1702, the Shute Commission of 1716, the Burnet Commission of 1728, the Belcher Commission of 1729, the Wentworth Commission of 1741, and the John Wentworth Commission of 1766 were accompanied with instructions requiring either that removals be made only upon good and sufficient cause or upon cause signified to the home government in the "fullest and most distinct manner." In Virginia similar instructions accom |