38 U.S. 230 (1839), Hennen, In Re

Citation:38 U.S. 230, 10 L.Ed. 138
Case Date:February 20, 1839
Court:United States Supreme Court

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38 U.S. 230 (1839)

10 L.Ed. 138


United States Supreme Court.

February 20, 1839


THE Court having decided that the rule granted at the August term of the Court, held by Mr. Chief Justice TANEY, should be discharged; the counsel presented another petition to the Court, setting forth the same facts as those stated in the petition, the matters of which are set forth in the report of the preceding case, with others.

The additional facts stated in the petition were, that the petitioner is in the full and undisputed possession of the seal of the Circuit Court for the eastern district of Louisiana, and of the records of the said Circuit Court.

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That there is now pending in said Circuit Court, a cause in which the petitioner, a citizen of the state of Louisiana, is the plaintiff, and Rezin D. Shepherd, a citizen of Maryland, is the defendant; that the value of the property in controversy between petitioner and said Shepherd, exceeds in amount the sum of six thousand dollars in cash. That in consequence of the disagreement between the judges of the Circuit Court, and the refusal of Judge Lawrence to allow the petitioner, the true and lawful clerk of said Court, to perform the duties thereof, the petitioner is prevented from proceeding in said cause; and the petitioner is prevented from bringing the said cause up to this Court for its final decision.

The petitioner further states, that the judges of the said Circuit Court continue to differ in opinion, as to the legal rights of the petitioner and said John Winthrop to the offices of clerk of the District and Circuit Courts, so that no one does or can perform the duties of the office of clerk of the Circuit Court aforesaid; and that the suitors in said Court are thereby delayed, and the administration of justice therein wholly suspended; and the appellate jurisdiction of the Supreme Court of the United States over the judgments and decrees of said Circuit Court wholly suspended, and incapable of being exercised.

'All which evils are remediless at and by the ordinary proceeding before the said District or Circuit Courts, and can only be terminated and redressed by the interposition of this honourable Court, by its extraordinary process of mandamus.'

The petition prays that the Court, after consideration, will award a writ of mandamus to be directed to the Honourable Philip K. Lawrence, judge of the District Court of the United States for the Eastern District of Louisiana, commanding him forthwith to restore the petitioner to his office of clerk of the District Court of the United States for the Eastern District of Louisiana.

By an agreement between the counsel for the relator and the judge of the District Court of Louisiana, the questions presented to the Court on the petition were argued; the usual notice being dispensed with.


The motion for a mandamus was argued by Coxe and Mr. Southard, for the relator, and by Mr. Gilpin and Mr. Jones, for the District Judge of Louisiana.

Mr. Coxe, with whom was Mr. Southard:----

The case, which it is proposed to submit to the consideration of the Court, is one equally novel and interesting. The principles which it involves are alike important to the parties on the record and to the public.

It is a case of the first impression; for although on a cursory and superficial examination, it may be thought to bear an analogy to others which have been heretofore and elsewhere discussed and disposed of, a more careful examination will make it perfectly apparent that it is now for the first time, in its naked simplicity, presented

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for investigation and decision. At all events, it is, beyond all doubt, now for the first time exhibited as the subject of judicial consideration.

The record presents a plain and unembarrassed case. In 1834 Mr. Hennen, the relator, was duly appointed to the office of clerk of the District Court for the eastern district of Louisiana. He accepted the appointment, took the oath of office prescribed by law, and gave a bond with sureties, approved by the judge, conformably to the provisions of the act of Congress. Of all these facts the record contains the most abundant evidence.

He continued to hold this office, and to perform its duties 'methodically, promptly, skilfully, and uprightly,' until the 18th of May, 1838; when he received from the Honourable Philip K. Lawrence, who then held the office of district judge, the letter which is contained in the record.

This letter demands the earnest attention of the Court.

1. It purports to be an act of removal of Mr. Hennen from the office which he held, and the appointment of Mr. Winthrop as his successor.

2. It contains the highest testimonials to the qualifications of every kind of Mr. Hennen for the office which he held, and the fidelity and skill with which he had discharged its duties.

3. It assigns, as the only reason for the exercise of the power with which he claims to be invested as a public officer, 'a sense of duty, and feelings of kindness towards one, between whom and himself the closest friendship had ever existed.' He considers the claims of his personal friend to every benefit in his power to confer in the exercise of his official functions, 'as of a paramount character.'

This letter, then, raises for the consideration of the Court three distinct propositions.

1. That, by law, the district judge possesses the power, acting ministerially, not judicially, to remove from office the clerk of the District Court.

2. That he may lawfully exercise this power, at his own absolute will, in the case of a public officer of acknowledged merit and undoubted qualifications; in the absence of any act of misfeasance or nonfeasance.

3. That he may lawfully employ a power confided to him as a public officer, for public purposes, as a means of gratifying the calls of private friendship; and that in the exercise of such an authority, he recognises the claims of personal friendship as of a paramount character.

Such are the doctrines promulgated by the learned judge. How far they are correct it is for this Court to pronounce. They are at least new, if they are not equally illegal. They are at least anti-republican, if they be not also unconstitutional.

1. The only source from which the power which is claimed can be derived, is the 7th section of the judicial act of 1789, (2 L. U.S.

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59,) which provides that the Supreme Court and the District Courts shall have power to appoint clerks for their respective Courts. It is a power vested in these Courts, as Courts. Does it involve, by necessary implication, the power of removal.

The power of removal from office, as an incident to the power of appointment, has been much discussed as a political question; from the period of the first Congress to the present day. Although by many it is considered as a settled question, it is believed that a careful examination of the proceedings of that Congress will conduct us to the conclusion, that so far as regards the case at bar, if any authoritative opinion has been expressed, it is hostile to the power now claimed.

In the Congress of 1789, the question did arise, whether or not the President possessed the power of removing from office a head of one of the executive departments. The debate on that question elicited the best talents of the able men who then adorned the House of Representatives. As that debate has been sometimes erroneously reported, and as frequently misapprehended; it will be important to give to it a careful attention.

It originated in the House of Representatives, and grew out of a clause in the bill which provided for the organization of an executive department, to be styled the department of foreign affairs. This bill contained a clause, which provided that the secretary should be removable by the President. It appears to have been discussed in committee before the debate occurred in the House; and it was, therefore, not taken up in the House as entirely a new question, but one to which the attention of members had already been directed. The debate continued several days; and from the very full and accurate report recently furnished to the public, (1 Gales and Seaton's Register of Debates, 473,) four entirely distinct opinions may be perceived to have existed in relation to the subject.

1. That inasmuch as under the Constitution, the Senate were to participate in appointing to office, it must also have an equal participation in the act of removal. Messrs. White, Sherman, Jackson, Stone, Gerry, and others, maintained this doctrine.

2. That as the Constitution did, in terms, provide for the removal of officers, by the process of impeachment, for certain specified causes, removal in any other manner, or for any other cause, was impliedly excluded. Messrs. Smith and Huntingdon were among the most prominent who asserted this proposition.

3. That as Congress possessed the power of creating the office, it was competent for the legislative department to prescribe its duration; and the manner in which, and the power by whom, the officer might be removed. Messrs. Lawrence, Jackson, Lee, Sylvester, and others, concurred in this view of the subject.

4. That as an incident to the executive power, and a necessary means of enabling him to perform his own constitutional duties, the power of removal belongs exclusively and absolutely to the President, when no other tenure of office is prescribed. Messrs. Madison,

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Boudinot, Ames, Sedgwick, Vining, Hartley, Clymer, Benson, Goodhue, Baldwin, and others, asserted this to be the true constitutional doctrine.

The decision of...

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