Opinion of the Court, 272 U.S. it was simply declaratory of the long-established law; that the force of the act was to be found in the word "requested," by which it was intended to re-enforce strongly this power in the hands of the President at a great crisis of the state-a comment by the Attorney General which was expressly approved by this Court in Blake v. United States, 103 U. S. 227, 234. The acquiescence in the legislative decision of 1789 for nearly three-quarters of a century by all branches of the Government has been affirmed by this Court in unmistakable terms. In Parsons v. United States, already cited, in which the matter of the power of removal was reviewed at length in connection with that legislative decision, this Court, speaking by Mr. Justice Peckham, said (page 330): Many distinguished lawyers originally had very different opinions in regard to this power from the one arrived at by this Congress, but when the question was alluded to in after years they recognized that the decision of Congress in 1789 and the universal practice of the Government under it, had settled the question beyond any power of alteration." We find this confirmed by Chancellor Kent's and Mr. Justice Story's comments. Chancellor Kent, in writing to Mr. Webster in January, 1830, concerning the decision of 1789, said: "I heard the question debated in the summer of 1789, and Madison, Benson, Ames, Lawrence, etc. were in favor of the right of removal by the President, and such has been the opinion ever since and the practice. I thought they were right because I then thought this side uniformly right." Then, expressing subsequent pause and doubt upon this construction as an original question because of Hamilton's original opinion in The Federalist, already referred to, he continued: "On the other hand, it is too late to call the President's power in question after a declaratory act of Congress and 52 · Opinion of the Court. an acquiescence of half a century. We should hurt the reputation of our government with the world, and we are accused already of the Republican tendency of reducing all executive power into the legislative, and making Congress a national convention. That the President grossly abuses the power of removal is manifest, but it is the evil genius of Democracy to be the sport of factions." 1 Private Correspondence of Daniel Webster, Fletcher Webster ed., 486; 1903 National ed., Little Brown Co. In his Commentaries, referring to this question, the Chancellor said: "This question has never been made the subject of judicial discussion; and the construction given to the Constitution in 1789 has continued to rest on this loose, incidental, declaratory opinion of Congress, and the sense and practice of government since that time. It may now be considered as firmly and definitely settled, and there is good sense and practical utility in the construction." 1 Kent Commentaries, Lecture 14, p. 310, Subject, Marshals. Mr. Justice Story, after a very full discussion of the decision of 1789, in which he intimates that as an original question he would favor the view of the minority, says: "That the final decision of this question so made was greatly influenced by the exalted character of the President then in office, was asserted at the time, and has always been believed. Yet the doctrine was opposed, as well as supported, by the highest talents and patriotism. of the country. The public, however, acquiesced in this decision; and it constitutes, perhaps, the most extraordinary case in the history of the government of a power, conferred by implication on the executive by the assent of a bare majority of Congress, which has not been questioned on many other occasions. Even the most jealous advocates of state rights seem to have slumbered over this vast reach of authority; and have left it untouched, as the neutral ground of controversy, in which they de Opinion of the Court. 272 U.S. sired to reap no harvest, and from which they retired, without leaving any protestations of title or contest. Nor is this general acquiescence and silence without a satisfactory explanation." 2 Story, Constitution, § 1543. He finds that, until a then very recent period, namely the Administration of President Jackson, the power of unrestricted removal had been exercised by all the Presidents, but that moderation and forbearance had been shown, that under President Jackson, however, an opposite course had been pursued extensively and brought again the executive power of removal to a severe scrutiny. The learned author then says: "If there has been any aberration from the true constitutional exposition of the power of removal (which the reader must decide for himself), it will be difficult, and perhaps impracticable. after forty years' experience, to recall the practice to correct theory. But, at all events, it will be a consolation to those who love the Union, and honor a devotion to the patriotic discharge of duty, that in regard to inferior officers' (which appellation probably includes ninety-nine out of a hundred of the lucrative offices in the government), the remedy for any permanent abuse is still within the power of Congress, by the simple expedient of requiring the consent of the Senate to removals in such cases." 2 Story Constitution, § 1544. In an article by Mr. Fish contained in the American Historical Association Reports, 1899, p. 67, removals from office, not including Presidential removals in the Army and the Navy, in the administrations from Washington to Johnson, are stated to have been as follows: Washington 17; Adams 19; Jefferson 62; Madison 24; Jackson 180; Van Buren 43; Harrison and Tyler 389; Polk 228; Taylor 491; Fillmore 73; Pierce 771; Buchanan 253; Lincoln 1400; Johnson 726. These, we may infer, were all made in conformity to the legislative decision of 1789. Mr. Webster is cited as opposed to the decision of the First Congress. His views were evoked by the contro 52 Opinion of the Court. versy between the Senate and President Jackson. The alleged general use of patronage for political purposes by the President, and his dismissal of Duane, Secretary of the Treasury, without reference to the Senate, upon Duane's refusal to remove government deposits from the United States Bank, awakened bitter criticism in the Senate, and led to an extended discussion of the power of removal by the President. In a speech, May 7, 1834, on the President's protest, Mr. Webster asserted that the power of removal, without the consent of the Senate, was in the President alone, according to the established construction of the Constitution, and that Duane's dismissal could not be justly said to be a usurpation. 4 Webster, Works, 103-105. A year later, in February, 1835, Mr. Webster seems to have changed his views somewhat, and in support of a bill requiring the President in making his removals from office to send to the Senate his reasons therefor, made an extended argument against the correctness of the decision of 1789. He closed his speech thus: "But I think the decision of 1789 has been established by practice, and recognized by subsequent laws, as the settled construction of the Constitution, and that it is our duty to act upon the case accordingly for the present; without admitting that Congress may not, hereafter, if necessity shall require it, reverse the decision of 1789." 4 Webster, 179, 198. Mr. Webster denied that the vesting of the executive power in the President was a grant of power. It amounted, he said, to no more than merely naming the department. Such a construction, although having the support of as great an expounder of the Constitution as Mr. Webster, is no in accord with the usual canon of interpretation of that instrument, which requires that real effect should be given to all the words it uses. Prout v. Starr, 188 U. S. 537, 544; Hurtado v. California, 110 U. S. 516, 534; Prigg v. Pennsylvania, 16 Pet. 539, 612; Holmes v. Jennison, Opinion of the Court. 272 U.S. 14 Pet. 540, 570-571; Cohens v. Virginia, 6 Wheat. 264, 398; Marbury v. Madison, supra, at p. 174. Nor can we concur in Mr. Webster's apparent view that when Congress, after full consideration and with the acquiescence and long practice of all the branches of the Government, has established the construction of the Constitution, it may by its mere subsequent legislation reverse such construction. It is not given power by itself thus to amend the Constitution. It is not unjust to note that Mr. Webster's final conclusion on this head was reached after pronounced political controversy with General Jackson, which he concedes may have affected his judgment and attitude on the subject. Mr. Clay and Mr. Calhoun, acting upon a like impulse. also vigorously attacked the decision; but no legislation of any kind was adopted in that period to reverse the established constitutional construction, while its correctness was vigorously asserted and acted on by the Executive. On February 10, 1835, President Jackson declined. to comply with the Senate resolution, regarding the charges which caused the removal of officials from office, saying: "The President in cases of this nature possesses the exclusive power of removal from office, and, under the sanctions of his official oath and of his liability to impeachment, he is bound to exercise it whenever the public welfare shall require. If, on the other hand, from corrupt motives he abuses this power, he is exposed to the same responsibilities. On no principle known to our institutions can he be required to account for the manner in which he discharges this portion of his public duties, save only in the mode and under the forms prescribed by the Constitution." 3 Messages of the Presidents, 1352. In Ex parte Hennen, 13 Peters 230, decided by this Court in 1839, the prevailing effect of the legislative decision of 1789 was fully recognized. The question there |