With respect to the unconstitutionality of the measure, I observe, that, if it is so, the Constitution must have given the power expressly to some person or body other than the President; otherwise, it cannot be said with certainty that it is unconstitutional in us to declare that he shall have the power of removal. I believe it is not contended that the Constitution expressly gives this power to any other person; but it is contended that the objection is collected from the nature of the body which has the appointment, and the particular clause in the Constitution which declares, that all officers shall be removed on conviction. It will be necessary to examine the expressions of that clause; but I believe it will be found not to comprehend the case we have under consideration. I suppose the Constitution contemplates somewhere the power of removal for other causes besides those expressed as causes of impeachment. I take it that the clause in the Constitution respecting impeachments is making a provision for removal against the will of the President; because the house can carry the offender before a tribunal which shall remove him, notwithstanding the desire of the chief magistrate to keep him in office. If this is not to be the construction, then a particular clause in the Constitution will be nugatory. The Constitution declares that the judges shall hold their offices during good behavior. This implies that other officers shall hold their offices during a limited time, or according to the will of some persons; because, if all persons are to hold their offices during good behavior, and to be removed only by impeachment, then this particular declaration in favor of the judges will be useless. We are told that an officer must misbehave before he can be removed. This is true with respect to those officers who hold their commissions during good behavior; but it cannot be true of those who are appointed during pleasure: they may be removed for incapacity, or if their want of integrity is suspected; but the question is, to find where this power of removal resides.
It has been argued that we are to find this in the construction arising from the nature of the authority which appoints. Here I would meet the gentleman, if it was necessary to rest it entirely on that ground. Let me ask the gentleman, who appoints? The Constitution gives an advisory power to the Senate; but it is considered that the President makes the appointment. The appointment and responsibility are actually his; for it is expressly declared that he shall nominate and appoint, though their advice is required to be taken. If, from the nature of the appointment, we are to collect the authority of removal, then I say the latter power is lodged in the President; because, by the Constitution, he has the power of appointment: instantly as the Senate have advised the appointment, the act is required to be executed by the President. The language is explicit: "He shall nominate, and, by and with the advice and consent of the Senate, appoint;" so that, if the gentleman's general principle, that the power appointing shall remove also, is true, it follows that the removal shall be by the President.
It has been stated, as an objection, that we should extend the powers of the President, if we give him the power of removal; and we are not to construe the Constitution in such way as to enlarge the executive power to the injury of any other; that, as he is limited in the power of appointment by the control of the Senate, he ought to be equally limited in the removal.
If there is any weight in this argument, it implies as forcibly against vesting the power conjointly in the President and Senate; because, if we are not to extend the powers of the executive beyond the express detail of
