to be held by two or more persons who were given power to appoint all federal officers, including the Judiciary; but, as they were themselves to be elected by Congress, that body would have great influence over appointments, and as its members were not to be ineligible to office, the plan was open to grave objections.

Mr. Charles Pinckney's plan' more nearly resembled the present system. The executive power was to be vested in a single person, who was to commission all officers of the United States, and, except ambassadors, other ministers, and judges of the Supreme Court, to nominate and, with the consent of the Senate, appoint all officers of the general government. The Senate was to have exclusive power to appoint those officers of whom exception was made, but its members were to be ineligible to office during their term of service and for one year afterward. Members of the Lower House were also not to receive office while sitting in Congress.

2

Mr. Hamilton's plan, which was intentionally theoretical rather than practical, gave to the Executive, elected by electors, the sole appointment of the heads of the departments of finance, war, and foreign affairs, and the nomination of all other officers, including ambassadors, subject to the approbation or disapproval of the Senate.

The essential differences of these projects, as they were considered by the convention, may be summed up in the questions, Shall the appointing power be given exclusively to one or both Houses of Congress, or shall it be given to the Executive subject to legislative control? In either case, shall the appointing power be limited in its choice to those who are not members of Congress?

The timid ones, who were still haunted by the fear of "monarchy," favored placing the chief power in Congress, but making its members ineligible to office, thus avoiding, as they thought, too great power in the hands of one man, and removing a means of temptation from a numerous body. But the more resolute, far-sighted members knew that if the Executive was to be an executive in more than name, he 2 Elliot, v., p. 205.

1 Elliot, v., pp. 129-132.

must be given adequate powers, unhampered by needless restrictions; that if he was to carry out the will of the people and be responsible to them, he must be given the choice of his servants; that corruption among many was more to be feared than abuse of power on the part of one; but that as it is sometimes necessary "to supply the want of wisdom or virtue in one department by the wisdom or virtue of another," he should be provided with a definite, constitutional means of seeking advice. In the end these views prevailed, though not without a long and bitter contest, while the question of eligibility of members was settled by one of the minor compromises of the Constitution. In order to understand the full meaning of these results, it is necessary to notice the successive steps by which they were reached.

1

July 26th, two months after the convention assembled, a series of resolutions was referred to the Committee of Detail, with instructions to report a constitution in conformity with them. As expressed in these resolutions, it was the opinion of the majority that the Executive should be chosen by the Legislature and given the power of appointment, except in the case of judges of the Supreme Court. These were to be elected by the Upper House of Congress, who were to be ineligible to office during their term of service and one year thereafter, while members of the Lower House were also to be ineligible during their term of service. This indirectly gave more control over appointments to the Legislature than to the Executive. The draft submitted by the committee, August 6th,' included these recommendations, varying only by giving to the Senate the additional power of appointing ambassadors. But these provisions were far from satisfactory, and no decision could be reached. With the exception of the eligibility of members, the entire question was again referred to the Committee of Eleven, and on September 4th they presented their report. It differed greatly from the resolutions of July 26th and the draft of August 6th, in giving more power to the Executive. The Elliot, v., pp. 376-381. Elliot, i., p. 283; v., 507.

1 Elliot, v., pp. 375, 376.

2

control of all appointments was given him, but abuse of that power was prevented by giving the Senate a veto on injudicious nominations. In a word, instead of dividing the appointing power between the Executive and the Senate, and allowing each to be independent of the other, it was united in one, but a negative given to the other. After a few minor changes in detail, this is the report adopted September 17th.' The ineligibility of members of Congress to any other office had been insisted upon, for reasons already mentioned, from the very beginning. The Virginia plan and that of Mr. Pinckney had placed great emphasis on this point. The abuse of the privilege in Great Britain, under the Confedera

2

'That even this plan did not meet the views of all, is evident from the correspondence that took place between John Adams and Roger Sherman. Mr. Adams favored giving the President the entire power, and depriving the Senate of all voice in the matter. The discussion is interesting as showing that, however groundless most of his fears have since proved, he appreciated in a measure some of the dangers that have arisen on account of giving this power to the Senate. His objections to a negative by the Senate are in substance as follows: 1. It lessens the responsibility of the President. 2. The time of the Senate is taken from legislative and given to executive matters. 3. The people ought to be free to watch the Executive, and not divide their time between him and the Senate. 4. It has a tendency to excite ambition in the Senate. Every member will be tempted to use his influence to secure appointments for those who will elect his friends and defeat his enemies, thus introducing corruption. 5. It will involve the Senate in censure and suspicion, without doing any good. 6. As soon as parties arise, these parties in the Senate will give rise to divisions on every nomination. 7. The whole business of the government will be delayed on account of the disproportionate demands upon the time of the Senate. 8. It will weaken the hands of the Executive by lessening the obligation and gratitude of the candidate to the President, and dividing it between him and the Senate.

Mr. Sherman's reply is briefly: 1. Without this power of the Senate, the President is a despot. 2. The Executive is to carry out the will of the Legislature declared by the laws. The Senate will accomplish that end by advising appointments that will be most likely to effect it. 3. The Senate will be watchful of any infringement of the rights of the States. 4. The Senate will be superior to faction, intrigue, or artifice in securing appointments. They can not hold office themselves, and will be diffident about suggesting friends, lest they be accused of partiality.

The correspondence is given in full in Pitkin, vol. ii., pp. 285–291.

2 Massachusetts, in her first instructions to her delegates, had forbidden them to accept any modification of the Articles of Confederation which did not include this provision.—Curtis, ii., p. 249.

2

tion, and in many of the States, could not reconcile the convention to the theoretical advantages of the opposite course. Mr. Madison and his associates failed to convince the majority that the appointing power must have freedom of choice, and that restriction was degrading both to the Executive and to Congress.' As late as the draft of August 6th this condition was insisted upon. It was not until September 3d that a compromise was effected between those who demanded entire exclusion of members from office and those who claimed for the Executive the privilege of selection. By this compromise members of Congress were excluded from any office created during their time of service, and from holding any other position while in Congress. This restriction was of great importance at that time, when a large proportion of the offices were of necessity new ones; but it has long since ceased to be any check upon either Executive or Congress.

We are thus able to trace from the very beginning the development of the idea that the appointing power must be given to the Executive rather than to Congress, even though restrictions be placed upon the latter. Such a result could not have been attained when the convention met; after long and frequent debates for three months and a half, it was one of the last measures decided upon before the assembly dissolved. It was a concession on the part of the States, and a concession in favor of theory rather than an acknowledgment that their individual systems had in the main been at fault. But though the delegates had assented to these terms, the States themselves were not all convinced of their wisdom. Among the first amendments suggested by Virginia before ratifying the Constitution was one dis qualifying members of Congress from holding federal office during the period for which they were chosen, and North Carolina proposed a similar one. While in no sense affecting the end gained, these propositions well illustrate the sentiment of the people on that point.

1 Elliot, v., pp. 420, 504, 505.

ง Elliot, i., p. 282.

3 Constitution, art. i., sec. 6, par. 2.

Elliot, iii., p. 659.
Elliot, iv., 245.

II.

THE INTERPRETATION OF CONGRESS IN 1789.

THE Constitution was adopted, but however explicitly its framers may have supposed that they had settled all its provisions in regard to the appointing power, there were many incidental questions connected with it still open for discussion. The most important of these that have been made the subject of legislative and judicial interpretation are the following:

I. Does the appointing power include the removing power?

2. If so, does the removing power belong to the President, or to the President and Senate?

3. If it belongs to the President, can Congress give any duration of office not subject to the power of removal?

4. Can the Executive create an office by appointing the officer?

5. Who are "inferior officers"?

6. What construction shall be put upon the power of the President to fill vacancies that may happen during the recess. of the Senate ?

7. When is the appointment of an officer to be deemed. complete ?

8. When Congress delegates the appointment of “inferior officers," can it prescribe the term of office and manner in which, and by whom, removals shall be made?

9. When the tenure of office is not provided for by the Constitution, is it to be held at pleasure or during good. behavior?

The questions in regard to removals were among the first to be discussed during the first session of Congress in 1789,