Page:Joseph Story, Commentaries on the Constitution of the United States (1st ed, 1833, vol III).djvu/397

 CH. XXXVII.] of all such legislation, does the power of removal belong; to the appointing power, or to the executive; to the president and senate, who have concurred in the appointment, or to the president alone? The next is, if the power of removal belongs to the executive, in regard to any appointments confided by the constitution to him; whether congress can give any duration of office in such cases, not subject to the exercise of this power of removal? Another question occurred upon carrying into effect the act of congress of 1821, for reducing the military establishment. President Monroe, on that occasion, contended, that he had a right, in filling the original vacancies in the artillery, and in the newly created office of adjutant general, to place in them any officer belonging to the whole military establishment, whether of the staff, or of the line. "In filling original vacancies," said he, "that is, offices newly created, it is my opinion, that congress have no right, under the constitution, to impose any restraint, by law, on the power granted to the president, so as ta prevent his making a free election for these offices from the whole body of his fellow citizens."—"If the law imposed such a restraint, it would be void."—"If the right of the president to fill these original vacancies, by the selection of officers from any branch of the whole military establishment, was denied, he would be compelled to place in them officers of the same grade, whose corps had been reduced, and they with them. The effect, therefore, of the law, as to those appointments, would be to legislate into office, men, who had been already legislated out of office, taking from the president all agency in their appointment."—(Message, 12th April, 1822; 1 Executive Journal, 286.) The senate wholly disagreed to this doctrine, contending, that, as congress possessed the power to make rules and regulations for the land and naval forces, they had a right to make any, which they thought would promote the public service. This power had been exercised from the foundation of the government, in respect to the army and navy. Congress have a right to fix the rule, as to promotions and appointments. Every promotion is a new appointment, and is submitted to the senate for confirmation. Congress, in all reductions of the army, have fixed the rules of reduction, and no executive had hitherto denied their rightful power so to do, or hesitated to execute such rules, as had been prescribed. Sergeant on Const. ch. 29, (ch. 31.) Hitherto the latter has remained a merely speculative question, as all our