F 153 .P4Q6 Copy 1 REPOUT EELATIVJEi i* Alll,tJi:^A^Kli, READ IN SENATE MARCH Sg, 488S. M»-. HfLL. Chairmps ^03:S!!^^^ all the cmstitnHon^t pYGfhhns wliirk i» any ii^ay relate t« «xe»&- tive patronage: and also of the several acts of the legislature, whick have been passed at diflferent times for the purpose of explaining, extending or increasing the same. All of which constitutional pro- Tisions and acts of the legislature shall b© duly noticed in their proper places. The 9th section of the 2nd chapter of the constitution of 1778, rests in the general assembly the ^' power to choose their speaker^ the treasurer of the state and their other officers.]' The "iOth section of the same chapter, proT dea that " the president and ia his absence, the vice-president with the council, five of whom shall be a quorum, shall have power to appoint and commissionate judges, naval officers, judges of the admiralty, attorney-general, and all other officers, civil and militai-y ; except such as are chosen by the general assembly or the people," under the broad and inde- finite expression contained in the 9th section above quoted, ^ their Other officers." And the very indefinite exception from the ex- ecutive apjwintments, in favor of the general assembly, contained i» the 20th section, viz. " excpt^t such as are chosen by the general assembly or the people." The general assembly, did for some years claim and exercise not oidy the power of creating offices, but also the prerogative of appointing the officers ; except those ap- pointments specially given to the supreme executive council The extenP' f^mess of the appointing power thus exercised by the general ass^rxiibi/, was much complained of by the members of the executive council. But the general assembly notwithstanding those tomplaintscontinu?d to create offices, ?,nd to appoint officers im sucii manner, and at such times as in their own opinion was best calculated to promote the public weal, until thp meeting of the council of censors in 1783. That council of censors among other things, recommended to the general assembly, the passage of a law dividing the appointments thereafter to be xTrade, between the su- preme executive council and the general assembly, pursuant t# which recommendation, the general assembly did, on the fourtk day of April, one thousand seven hundred and eighty-five, pass a» act, prescribing the appointments to be made by the general as- sembly, and Vf sting in the executive council the appointment of all other oficers, whose appointments were not otherwise provided for by the constitution. But it must be borne in mind that this law is only an act of the general assembly, and like pH otlier legisla- tive acts, is liable to legislative alteration, revision or annihilation, at any time, when a succeeding legislature, from different views of the coisstitution, from different notions of public policy, or froni different ideas of the wis!ies of the people, shall deem it t© l»e »^ cWsary and proper so to d(r. Ihem, a letter from the secretary of the commonwealth, contain- ing much information on the Bubject of executive patronage, this, letter attached to this report, marked A, if an answer to a caU fnade upon that officer, at the last session of the legislature, by a •ommittee appointed for the purpose of ascertaining the governor's powers to appoint officers, and the diffiirent channels through whick those powers have been obtained. This intelligent, venerable and •andid statesman, relies on the eighth section of the second article •f the constitution of 1790, the law above referred to, several acts •f assembly oS^ subsequent date, and on comfuon law principles, t* justify the governor in the extent cf patronage, which he at pre- sent exercises. So far as the governors poweri are vested by the constitution, they ^ust remain unimpaired. Bat we presume, that however long the governor may have ex- ercised the power of appointing to office, by virtue of any statute^ •r common law principle, that the powers thus claimed and exer- cised can at any time be reclaimed by the legislature, and other- wise disposed of, whenever they shall deem a change necessary and expedient. Official powers vested in any officer by the legi*^. lature, may, when the public good requires it, be also divested bf *fae legislature. The peculiar business of legislation, is to pass laws for the reg« lation and guidance of all who are concerned in the administratloi ©f the government, and the ben>:!fit of the people Common law is an auxiliary to statute law, and is only to be called upon in ca* aes not particularly provided for by the statute. Those official powers, which are vested by act of the legislature and common law principles only, are not constitutional powers, and therefore fit •bjects of legislation. We now proceed to the examination of the only constitutional provisien relied on by the advocates of executive patronage, it is contained in the 8th section of the 2nd article of the constitutioM of 1790. By this article the governor is authorised to "appoint all officers whose offices are established by this constitution, or shaH be established by law, and whose appointments are not herein oth- erwise provided for." Preparatory to the construction of this pro- vision of the constitution, it may not be improper to take a review •f long established and well settled principles of construction ia all cases relative to vested rights. In every case where individual rights are legally and absolutely vested, they are supposed to remaia secure and unimpaired, until it can be clearly and conclusively- shown, that those rights have been expressly transferred. While your committee entirely approbate the cautionary and scrupulous m|i|iB«r wi whi^h atransf«y ^ iadiTidnial righto is «xaai{Me4 and decided upon, they earnestly, thougli fespectfully, recommend tt the legislature, in construing the powers delegated by the consti- tution ; at least to use as great caution and sirictness in faror of the rights of the great body of the people. It is not only acknowl- •dged by all republican politicians, but it is also positively declar- 9d by the constitution, " that all power is inherent in the people." It is therefore incumbent on every officer of the government, and agent of the people, who claim to have been invested by tUe con- stitution with the exercise of any power, to show that such pow- «r has been expressly vested in him by the constitution ; if he fail k) do this, it would be great remissness in the legislature, (wht are the immediate agents and representatives of the people,) t© indulge him, contrary to the public irtercst, in the exercise of a doubtful power. History affords us abundant proof, that the greal ^ianger to be apprehended, as well in republican governments at all others, is the engrossment of power by a few, and its exercise fe) them, to the injury of the many. Usurpation is the very mar- irow, the bon^, and t'le sinew of despotism — assumption freely in- dulged in by an individual, ^nd quietly acquiesced in by the peor pie, will in time bring upon the community, all the poisonous ef- fects of usurpation in its most terrific form. But to return to the words of the constitution of 1790, which are relied on by tiie friends of executive patronage, as justifying the executive in tlie extent of the appointing power, which he has been in the exer- •iseof: " He shall appoint all officers whose offices are estab- ished by this constitution, or shall be established by law." Is It reasonable to suppose, that the convention in speaking of #ie offices established by this constitution, had reference to otii^eg "ivhich had long before been established, and the incumbents where- tf, had long been aiding in the labors of the government ; the cor- rectness of such a construction, wlien viewed in connection with all the circumstances which are connected with this provision of the oonstitution, might well be doubted. The isolated word estab- lish is significant otj found, erect and confirm ; as well as, to, settU and fixfiniily that which has been founded and erected It would appear that the former of these two constructions, is the sense in which the convention had used the word establish in the constitu- tion, because it is used in connection with " shall be," evidently re- ferring to offices that might " be established by law" subsequently to the confirmation of the constitution, and had beyond question ia Tiew the appointment of officers to fill offices thereafter to be oreated and confirmed. But your committee in drawing their •onclusions of the sense in which the convention used ihe word " estabhsh" do not rely wholly, nor indeed so much upon the de- finition it bears, even as used in connection with the words " shall be," as they do upon other important facts which have a direct bearing upon the construction given to this provisioa of th© §oa- stitution, by the friends of executive |)atroHa^e-. If appears by a ftjH examtnatioH ©f the «onstHutfoil of 1*790^ and of sevtral acts (*f the legislature, passed immediately thereafter, that the convention have expressly vested sucli power of appoint- ment in the executive, as it was intended he should absolutely ex- trcise ; and also have expressly vested in the gjeneral assembly, tuch appointiiii^ power as was designed to be absolutely exercised by that body, leaving the appointment of officers not speciall} pro- Tided for, to be regulated (as had before been done,) by act of the legislature. Constitution Art. 5, Sec. 4, " he s/i«// appoint in eacli eounty not fewer than three, nor more than four judges Stc."— Same Art. Sec. 10, '* The governor shall appoint a competent Bumber of justices of the peace," &.c. Art. 6, Sec. 5, *< The state treasurer shall be appointed annually by thejoint voteof the mem<^ bers of both houses," &c. In those cases the convention left noth** ing to the discretion of the legislature, nor even to the people, fluring the continuance of the constitution, however great the pro- gress of information and political knowledge might be among the citizens in future times. But your committee trust, that they will be able to convince every candid, intelligent, unbiassed mind^ that all appointments, not specially provided for in the constitution, was iiitentled by the convention to be left to the future regulation law. The constitution was done in convention, the second day of September, one thousand seven hundred and ninety ; and on the seventh day of December next following^, the general assembly con- vened pursuant to the provisions of said constitution. In this le- gislature, there were fourteen members, who had been members •f the convention ^ combining as much general information, ae Biuch political knowledge, and as great a quantum of integrity, a« we ever have seen, or ever expect to see our general assembly adorned with, in an equal number of members. This opinion will be responded by all who are acquainted witli lihe public characters and private virtues of those gentlemen— their »ames we insert in the fidlnwing alphabetical order, viz. Jamee Boyd, John Breckbill, Lindsey Coates, William Findley, Albert Gallatin, John Gloninger, Sabastian Graff, Joseph Hiester, Job* Hoge, Thomas Jenks, James 31'Lene, Thomas Mawhorter, Joha Sellers, John Smiley. Tlie above facts are stated, and the names of those gentlemen are introduced for the purpose of show- ing what their opinion was respecting the powers tliat had beea ▼ested in the governor, by the constitution, as near as can be judged of by the enactment of various laws wiiile they were mem- bers of the legislature ; and the significant language made use of in those laws. It will be proper however, before we proceed to aa examination of those laws, to state that Thomas Mifflin, (the pre- sident of the convention) was declared to be duly elected governor ef this commonwealth, on the 18th day of December 1790. That •a the twenty-eighth day of the same month he addressed a mei- -m^e to tfte logt^atare, l»r!tta^ tfie ttttentids of the meTObew li^ •eriain important duties, requiring: their immediate attention undet #ienew structure of the government In detailing at considerable length, the objects of most press- ing necessity, the governor observes, (Journal of the House of Rt^presentatives of that session, page 46,) ** a« to the laws, which jequire an immediate revision, on account of the new structure of •nr state government, you will find that they principally relate t# nine exercise of the executive authority under its former modifica- tion." After specifying many official duties that were to be per- Ibrmed by the executive authority, under the former modificatio* •f the government ; the message remarks, *' In short, to the pre- sident and executive council, so great a variety" of appeals and re- ports were directed to be made — by them so great a variety of commissioners and other officers were to he appointed for specijim services — before them, so great a variety of official qualificationi and sureties were to be taken — and on them the superintendance •f so great a variety of public objects devolved, that a particu- lar recapitulation would, at this time be impracticable." It will Ibe observed, by an examination of the above extracts from gov** #rnor Mifflin's message, that he in a particulai manner notices the »i'eat power of appointing officers that had been vested in the ex* •cutive authority, under the former structure of government, t» jegulate the exercise of which power thereafter, legislative inter- position was immediately necessary j consequently, in the oplnioa #f the governor, the power of appointing many of the officers wiiick Iiad been vested in the executive authority under the former struc- ture of government, had not been provided for by the constitu- €on ; and were purposely left to the future regulation of law, iii fsach manner as propriety and experience ehould dictate. Your committee are fully apprized, that some of our state politi- cians are disposed to give the most liberal and extensive constructio* to delegated powers, that the words of the constitution will possibly hear ; while they construe in the must scrupulous and limited man- ner, those powers which are reserved by the people, or (which is Uie same thing,) the powers that they have not delegated. The anxiety with which some people labour in this cause, is much easier seen, than accounted for. Will they in this case attempt to say^ that the governor was ignorant of the extent of those provisions of the constitution, which had vested the powers that had been form- erly exercised by the executive authority, in the governor ? Will it jbe said by them, that the governor in this case, was unadvisedly •ailing on the legislature to provide by law for the exercise of pow- ers, that had been previously provided for by the constitution P Charges of this kind may be made, but among persons free front hxMj, aad beini; acquainted (ha vaoni iPw)»*ylvaj|iaiiji we) wifcli tkc aw^racyof hisdiseepHineiit — the soundness efMs judgment— the independence of his spntinripnt, and the extent of his political in- formation, they will fall lifeless to the ground as fast as they can be uttered. The character of gorernor Mifflin stands too high to be tarnlsli^ «d by an allegation that in the year 1790, he was unacquainted with his duties as governor of the commonwealth — that he was ig-* norant of the powers which had been vested in the executive by the constitution, which instrument he had so sliortly before, net only assisted in the formation of, but also, was president of the conven- tion, who had conceived, moulded and given to it their final finish. A committee was immediately appointed, to arran2:e the subject matter of the governor's message, from whicli the above quo- tations have been taken, and on the 30th day of the same month made report. In detailing the subject matter of the ad ]ress that required the immediate attention of the legislature, the report savsj '' That part of tlie address which enumerates the pow<'rs formerly vested in the president and supreme executive council, and wi;ich now cease to be operative, your committee conceive ought to be referred to a committee to bring in a bill for the purpose of trans- ferring^ those powers generally to the governor, until the end of the present session, in order to answer the immediately pressing exi- gencies until the legislature shall have leisure to enumerate and define the executive powers with more precision." A committee for this purpose was accordiiigl/ appointed, a bill reported, and became a law, by receiving tlie sio;ir.iti're of the governor on the fourteenth day of January following, whicJi law is in the words fol- lowing VIZ. " An act for transferring certain powers exercised by the late president and supreme executive council, to the governor of thb commonwealth. Sect. 1. Whereas by the present constitution of this common- wealth, the executive powers of government are vpsted in tlie gov- ernor, and it is proper and necessary, that such laws as t'irected any dutties to be performed by the former executive authority of tids state, should be made conformable to the new orgaiiizaiion of *he powers of government* Therefore, Sect. 2. Be it enacted by the Senate and House of Represeu- totives, of the Commonwealth of Pennsylvania, in General A»» sembly met, audit herebv ettact«J by the authority #f tke 8a»e> 10 That all and every duty, which by any of the laws of this state, was directed to be done and performed by the president, or by the president and supreme executive council, not inconsistent with the constitution of tliis commonwealth, and not otherwise directed by ^he act passed in the pr^-sent session, entitled " An act for instituting a board of property, and f r other purposes therein mentioned" shall be executed by the oovernor of tliis common- wealth, and that every of the laws relative to the duties first herein^ before mentioned, shall be, and they are hereby so far forth, and no further repealed and made void, Proimled neverllieksSj That this act shall continue in force until the end of the present session of the General Assembly, and no longer." So tenacious was that legislature of the rights of the people, so well did they know that the constitution had not vested the powers which had been formerly exercised by the executive au- thority in the governor, and so well were they convinced of the propriety of vesting them elsewhere, as soon as the legislature rhould " Jiave leisure to enumerate and define the executive pow- ers -vVith more precision " that when legislating on this subject "to answer the injmediate pressing exigencies" they only vested those powers in the governor to the end o^ that session. But it appears that the legislature di 3»(*(Hire his popularity with ? Would they not all revolt at the idea ? Would it not be said with mucii propriety, tliat an artful intrigue- h\^ governor, with that sum at command, for this purpose, might to.nmitmHQy acts of tyranny and oppression, and still have it in his power to stifle investigation, and continue his popularity, while he continues his oflico hy the liberal distributions of presents ? Such suspicions would doubtless be abroad among- the people, were it atL< lupted to appropriate. Yet that sum, in money distributed for thai purpose by donations, in the most advantageous manner, eoulu not su eflectually shield a person's character, or secure his popui'irity, as a politic distribution of the numerous offices in *he gift of the governor, would 'h> ; because, every person who would retelve a fee from tl>o governor, to spread abroad and exaggerate his rii'tues, to conceal, d'^ny and extenuate his vices, would bfe viewed, not only with suspicion, by the public, but with real con- tempt by all who knew the fact. The case is very different with ©llicers wiio are a{)po!nted by the governor ; instead of detracting from, it adds to their respectability ; instead of lessening their influence, it gives it a more extensive range; instead of prevent- ino; them from, it enables them more elTectually to support the character of the governor, to wliom many of them ar« as com- pletely devoted, as they possibly could be, were they paid by tlie, year for their services. Your committee have spoken plainly and freely on this subject., because, under all the circumstances of the case, freedom and plainness appeared to them necessary — but they do not wish to be understood as at-aching blame to any particular person. The gi- g^antic growth of executive patronage, can be easily and rationally accounted for without individual condemnation ; it is in some degree owing to the principles of our government, as well as to humaa nature generally. The governor is elected for three years, and may when elected, look around him with the purest intentions, to see what powers he has been vested with, that can be called into operation for the benefit of the people, and the advancement of his own character, a matter never lost sight of, nor should it ever be ; but we often mistake the means that will lead us to the end. He meditates, reflects and fancies public advantages, and enquires* whether he has within his power the means to promote them. If he has any doubts in his own mind of his powers, to provide a sa- lutary remedy in the case ; he takes the counsel of learned and in- fluential friends, by whom from the nature of his situation, he is generally surrounded. Those friends may very probably have a greater personal inters «st in an extensive executive patronage, than the governor himself has ; consequently the greatest possible range of construction, is ^iven to his powers- If this was only to happen ©nee, during the 14 •ontinuance of the conslitntion, the danger to he apprehend eti would not be so great ; but every new case produces a new cause for construction ; and every new governor has a new sot of advi- sers In this WHj, executive patronage has been swelled and ex- tended to the enormous size in which it now exists. Yery different is the case with the Ifgislature, many of whose members are elect- ed to effect some particular local objects, which eaiploy their whole attention, during the session, at the end of which, they return to their constituents perfectly satisfied with having effected the purpo- ses for whicli they were elected. The next legislature is composed of members who were elected with similar views — so one session passes after another — and al- though composed partly of diflVrent materials, the labors are very near the same, viz. each member is most anxious to promote the views and interest of his own immediate constituents ; and in the bustle of local business, each succeeding session passes off with but little attention to matters that might possibly at some remote pe- riod, effect the politicai relations of the state at large. Tills view of the subject presents a case, fit for the apphcation of the old a- dage, " that, v/'iat is every body's business', is nobody's business,'^ meaning that matters of general interest are apt to be neglected ; because no one individual feels sufficient personal intei'est to invite his particular attention to the case, and each one satisiies himself with the idea that otlicr persons are as deeply interested in the Blatter as he is, and consequently as much bound in duty to attend to it, as he is ; and as for himself, he must and will (for the pre- sent at all events) apply his time and talents, to etTect soine par- ticular matters in which his particular constituents and himself has a deep and lasting interest ; to effect which, was perhaps, the principal inducement to elect him to the legislature. Owing to these causes, questions that are general in their nature, thougii of great importance, are almost inevitably overlooked. To condemn this practice, would b^ declaring war against our- selves — against all the human family — it is in our nature to attend first to our own particular necessities and advancements. But the case before us, nevertheless shows the necessity of a vigilant watch- fulness on the part of the people, over their own concerns, which, if neglected too long, may bring much difficulty upon them. That the people who are always jealous of their rights, have S9 long permitted executive encroachments, is quite as easily account- ed for. The science of government, though the noblest invention of man, is no where taught in our country : nor any science connected there- with ; that of the law only excepted. And this honorable profes- 15 won is but a deduction from governmental science ; the votaries whereof may enjoy all the hom-rs and advantages of the profession, without paying' the least attention to any of the branches of govern- ment, otiier than the administration of the law : nor does the pro- fessional duties of this class of gentlemen, require them to become the vedettes of the people's riglits, or call upon them to volunteer their services as the sentinels and safe-guard against executive en- criKichments. Nor is it to be expected tiiat the citizens, whether professional or otherwise, will enter into, and produce a correct and general analysis of the constitution, pointmg out the particu- lar powers that properly belong to, and the particular duties to be performed by the different departments of tiie government, and the several officers of the state. After bringing into viewtlie difficulties that questions of this kind seen; to be involved in, it would be natural to ask, where a redress for such grievances, is to be had ? — Notv/ithstanding the difficulties and embarrassments, that such ?. question must under common cir- cumstances be surrounded by on account of the urgency of local concerns, and other matters more generally understood, which the citizens press upon the Legislature ; the answer must be in the le- gislature ; in them tie constitution has vested the power to pass laws for the general good, and rhey must, when necessity requires, ^exercise their constituti(mai powers in geL'eral cases, although •very local matter should be thereby neglected for a time. Your committee are aware, that they liave all the prejudice of •ustom to opp ise, and the interest of the executive adherents, and those who liold offices jnder him, to convince all of wiiom the lim- it bounds of a report of this kind is entirely insufficient ; their only hope is to convince the unbiassed, that the positions they have taken, and the conclusions which they have drawn, are in accord- ance with common sense, and with tfio true principles of our con- stitution. They therefore, offer tiie following resolution : THAT it is constitutional arnl expedient to provide by law for the election or appointment of an attorney general, and the necessary nun»ber of deputies to prosecute in belialf of the common- wealth, in the several counties, an auditor general, a secretary «f the land office, a surveyor general^ and the number of deputies necessary, to do the surveying in the several counties, prothonota- ries, registers and recorders, clerks of tlie courts of general quar- ter sessions of the peace, of oyer and terminer and general jail de- livery and orphans court, prescribing in such law the length of time •ach officer shall holdhia office, provided he shall so lon^; behave iliimsttlf wall Ah ]X)CTJMET^TS 'REFERRED TO IN THE PRECEDING REPORTS REES HILL, Es%. Sir, Office of the Commonwealfhf Harrisburg, Feb. 19, 1821. I have now the honor of enclosing herein such infor- motion, as is in my power touching the subject matter of the pre- amble and resolution, referred to me by the committee. 1 per- haps owe an apology to the committee, for the delny in making the eommunication, but I trust they will see a sufficient cause for it, in the frequent interruptions arising from attention to other official d uties. With very great respect, I have the honor to be ¥#ur and the committee's most obedien" servant, ANDREW GREGG. THE honorable Messrs. Hill, Kaj?uet and Eichelberger, the conmuttee to whom whs referred a preamble and two resolutions, au- thorizing them to call on the secretary of the commonwealth and attorney general, for any information in their power, to give, touchhig the subject matter of said pream- ble, and the first resolution. THE undersigned in endeavoring to comply ^vith the terms of the propositions contained in the preamble and resolution, sub- mitted to him by the committee, would remark, in general, that 7ie presumes there can be no diversity of sentiment among the peo- 17 ile of (his country, respecting the importance of all being made acq!iaint«^d w'th the principles of the governrnent, anvl with the pjbii'c act? of all w^o havu ajw agency in ils administration That thegreat power with which the governor is invested by the consti- tutiju, readei'8 it p^iculiarly necessary, t',at his public conduct s' ou'd bewmchod with vigiianre, is a subject in which it is also beijeved, thei'e is a g'^neral, p(n-haps a nijivf^rsal concurrence of sen- tiineiit. To preserve the permanency and p'nty of their ^ovtrn- mcnt, the aitcnlion of the people shoidd always be on the 'A'ri, to griard against any unconstitutional usurpations in any of its ciepart- nients. By the pighth sftction of the second article of the constitution, the governor is Inv:??ted with power to appoint all officers, whose offices a^re established by the constitution, or that shall be esi.ib- lisliedby law, and wlsose appointments are not therein otherwise provided for. Under this general power, the governor has, ever since the commenceTnent of the government under the present con- stitution, been in the regular habit of appointing all officers, whet ler i.nmediately designated by it, or whose offices- were made by law conformably to iis provisions. It is not known in this de- partment nor have any record;? been discovered to show, that any governor has exceeded his constitutional limits in the exercise of this power. It may not be considered irrelevant in this enquiry, to refer to the constitution of this state which was adopted on the 28th day of September 1776, and the practice of the government under it. By the ninth section of that constitution, it is declared, that the gen- eral assembly s'lall have power to choose their speaker and other officers, and the treasurer of the state. By the twentieth section, the supreme executive council was vested with power to appoint and commissionate judges, naval officers, judge of admiralty, at- torney general, and all other officeys, civil and military, except such as are chosen by the general assembly and t!ie people, agreea- bly to that frame of government, and the laws that might be made thereafter ; and also supply any vacancies that might be occasion- isd by death, resignation, removal or disqualification. It appears that the assembly prior to the meeting of the council •f censors, in 1783 had created some offices, and appointed the officers te execute them, in the same acts l)y wiiich the ollices were treated. This was censured by the council of censors as an un- we-rrantable encroacliment on the constitutional rights and powers of the executive ; and an act was passed on the 4th of April 1785, in conformity with the decision of the council of censors. The second section of this act designates particularly the officers to be appointed by the assembly, and declares the ai^pointment ^f aJJ C 18 other officers necessary for the execution of the laws, to be veked in the supreme executive council, with tlie exception of such as were specially reserved to the people, or plainly directed by the constitution to be otherwise chosen or appointed. There is no evidence of any subsequent interference with the oxecutive council in tlie exercise of its power of appointment, during the continuance of the government under that constitution. On the organization of the government under the present con- gtitution, an act was passed on the 14th of January, 1791, di- recting tl.at ail and every duty which by any of the laws was di- rected to be done and performed by the president and supreme ex- ecutive council, not inconsistent with U-e constitution, nor other- wise directed by an act for instituting a board of property, should be executed by the governor. By an act passed on the 13th of April, 1791, it was enacted, that in addition to the powers vested in tiie governor, by the constitution, he should have and exercise all the power that by any law or laws was vested in the supreme executive council, or in the president or vice-pi-esident thereof, unless the same should be vested in some other person, or be in- consistent with the provisions of the constitution. This power was continued by various subsequent acts passed, on the 21st of Sep- tember, 1791— on the 28th of March, 1792— on the 11th of April, 1793— and on the 22d of April, 1794. Any further pro- gress of these acts has not been pursued, it seeming to be under- stood that by these various enactments, the exercise of that power had acquired the force of common law, no question having ever been made, as far as it is known here, of its incompatibilitj with the constitution or the laws made under it. A reference to these acts Is made to show that if any appoint- ments not specially designated in the constitution, nor by law, but rendered necessary by the circumstances of the case or the com- mon consent of the people, were made by the supreme executive council, such power now Is legally vested in the governor. It is not however intended by thi:. to insinuate, that there are any such offi- ces, or that any such appointments have been made. It Is acknow- ledged that no special act has been found estabhshlng the various offices of courts of justice, with the exception of judges, and those that are elected by the people, but they are all recognized in the third section of the sixth article of the constitution, and in all the various acts of assem!)ly, estabhshlng courts. When the constitu- tion says, that prothonotarles, clerks of the peace, &c. shall keep their offices at a particular place, it is a constitutional acknow- ledgement or declaration tliat such offices do exist, and that there must be oiFiccrs to fill them. The power of appointing these offi- cers, Is of course vested "in the governor, under his general power 19 of appointment, agieeably to the eij^hth section of the second arti- cle of the constitution before quoted. The second act passed by the assembly, under the constitution of 1776, was to revive and establish courts of justice ; and among the first acts of the executive council, was the appointuient of pro- tlionotaries, clerks of sessions, of orphans courts, registers, &.o. The power of making these appointments, was vested in, and ex- ercised by tlie supreme executive council, until the change of gov- ernment took place, and that power having been transferred to the governor by various acts of assembly as herein before recited, may be considered as legally vested, even had it not been so ex- pressly given him by the constitution. This description of officers, with all others, the manner of whose removal from office is not pointed out in the constitution, have been considered removeable at the will of the governor, and the tenure of their appointments has invariably been so expressed in their commissions, that they were to hold till their commissions were revoked by the governor, or by other lawful authority, super- seded or annulled. The power of removal from office appears in- cident to the power of appointment, and was exercised by the su- preme executive council, under the constitution of 1776, and by each succeeding governor of the state under the present constitu- tion. It is presumed, the committee will not require the enumeration of a multiplicity of cases to evidence the genend exercise of the rig!it of judging, and power of removing. A reference might be made to many instances, in which it has been applied to officers in the various departments of government. A few "will be selected to show that such lias been the practice. The person who held the offices of prothonotary, clerk of the sessions, and oyer and terminer, in Huntingdon county was remov- ed by a resolution of the supreme executive council, and by a sub- sequent resolution, the same person was removed from the office of clerk of the orphans court. The receiver general of hind office was removed by the first governor of tAe state, and this wa> such a noted instance, andexcited so much interest, that it is still fresh in the re- collection of those who were conversant in the affairs of the state a . that time. Early in the administration of the second governor, the inspector of flour in Philadelphia was removed. This, it is believed, is the first case in which the power of removal was disputed. Tiie question was referred to Messrs. IngersoU and Dallas, and a state- ment of the case with their opinion, is hereto annexed. Removals since shat period have been more frequent. A surveyor general has been removed, a recorder of deeds has experienced the same ^0 fate, and the list might bo swelled with tlie cases of auctioneers, inspectors, prothonotaries, ^^c. &.c. There is no evidence in this office^ to show, that any le^al opposition has been made to any of these removals, but it may not be improper to mention a report, to \Yhich common fame has given currency, that a question recently arose on the removal oi the inspector of salted provisions, in Phi- ladelphia, and was decided by the supreme court, that the power as exercised, was constitutionally vested in the governor. The undersigned has not been able to discover any alteration, that, in his opinion might be constitutionally made in appoint- ments to, and continuance in office, of any of the offices now in the gift of the governor. His power is general, \vith the exception of the cases mentioned in the constitution. Whether he is the best depository for that power, is a very diffi:rent question, and one on which he should feel great dehcacy in giving an opinion. Tiie diffirrent modes, adopted by the different states, of the trust and ex- ercise of that pov/er, furnish a very striking evidence of the diffi- culty of settling the question. It is certainly a very important trust to be committed to one man, and yet we find complaints of abuse, have perhaps, been heard in every government that has had recourse to plural executives, as a security against the evil. — It is yet in the recollection of many that dissatisfitction with the executive council of the constitution of 1776, produced that under which we now live, and so strong did the current then run in fa- vor of a single executive and individual responsibility, that no ar- guments could prevail in favor of a division of the power, or se- curing against its improper exercise, by subjecting his appoint- ments to some concurring department of government Universal experience proves the importance of a watchful eye being kept on this power wherever it is placed. The vigilance and virtue of the people, are the best security against its abuse. Having given this general view of the subjects embraced in the preamble and resolution, such a detailed statement is now present- ed of offices and appointments, as appears more especially to have been intended by the resolution. It was thought it. might be de- sirable to tlie committee to have all the offices with their different tenures before them in a single view. Appointments by the governor, and for what period of service^ with reference to the authority under which they are made, that is to say. 2i Secretary of the CommonweaWi, daring the goveruor'a continuance in office — See 15th Section of the 2nd Articleof the constitution. Judges of the Sajireme Court y during good behavior. President Jadgas of the courts of common pleas in the several judicial dist^icis of the commonwealth^ during good behavior. Associate Judges of the courts of common pleas in the several counties of the state, during good behavior. Additional Judges of the district court of the city and county ofPhila- delphia, see acts of assembly of the 3d of March 1811, and the I3tli of March 1817, for the term of four years. Associate Judges of the same court y by the same act, for the same period. Additional Judges of the d.istrict court of the city and county oj Lan- caster , see act of assembly of the 27th of March 1820, for four years. Attorney General, during pleasure. ) Clerks of the supreme courts in several districtSj during pleasure. Prothonolaries of the courts of common pleas^ and Clerk of the or- phans^ courts, general quarter sessions of the peace, and of oyer and terminer and jail delivery, holden by the judges oj the court of common pleas, during pleasure. Clerks of the my yors courts in the cities of Philadelphia, Lancaster and Pittsburg, during pleasure. Recorders of the said several cities, during good behavior. Aldermen of the said cities, during good behavior. Justices of the Peace in the several counties^ during good behavior. Sheriffs and Coroners in the several counties, for three years. Recorders of deeds in the several counties, during pleasure. JVbtaries Public, during good behavior, see act of assembly of March 5th 1791. Interpreters of Foreign Languages j during pleasure Secretary of the Land O^ce and Surveyor General, for three years, removeable from office by the governor on the ad- dress of both houses of the leojislature, see act of the 29th of March, 1809, volume 5 Smith, page 48. Auditor General of Jlccounh for a like period, and removable in like manner, see act of the 30th of March 1811, 5th vol - ume, page 237. Jiuctio7ieerSj the president and council to appoint three during plea- sure, volume 1, page 509, 23d September 1780. The appointment of a fourth Auctioneer, authorised by act of assembly of the nineteentli of March, see 2nd volume, page 48 1 , during pleasure. The appointment of two additional Auctioneers au- tliorlsed I y act of assembly of the twenty-seventh of March 1790, same volume, page 520, during pleasure. The appointment of an auctioneer for the sale of horses, cattle and carriages, within the city of Phila- delpiiia, authorised by an act of assembly of the tenth day of April 1799, volume 3, page 379, during plea- sure The appointment of an auctioneer for the sale of books, stationary, paintings and prints, within the city and liberties of Pliiladelphia, see act of assembly of the 25tii January 1816, during pleasure. The appointment of two auctioneers, in and for the city of Pittsburof, authorised by acts of assembly of the 28th of March 1814, page 307, and the 22d March 1820, page 90, during pLasure. Inspector of beef and pork, shad and herring, by the governor, during pleasure, see volume 1, page 170, volume 2, pages 476, 498, volume 3, page 258, volume 1, page 418, volume 5th, page 121. Of staves and heading, boards, plank, timber and shingles, volume 1, pages 222, 277, volume 2, page 528, volume 3, pages 258, 268, 314, volume 5, page 147, volume 2, page 505, during pleasure. Of flour in and for the citj and county of "Philadel- phia, volume I, pages 528 and during pleasure Of flour for the ^Yestern counties, volume 3, page 52, during pleasure. Of butter and hogs lard, volume 4, pages 104 and 404, dui'iiig pleasure. Inspector of ground black oak bark, volume 4, page 194, during pleasure. of gunpowder, volume 3, pages 240, 498, during pleasure. of salted fish in the towns of C(^lumbiaand Pittsburg, see act of the 25th February, 1818, during pleasure. Measuterof corn and salt, lime and coal, 2d volume, pages 350, 441, and 442, during pleasure. Superintendent of the gunpowder magazine, 2d volume, pages 402 403, and 404, during pleasure. Reg;ister of German passengers, volume 2, page 329, during plea- sure. €r imagers and Inspectors of domectic distilled spirits; two to be ap- pointed during, pleasure, act of 14th March, 1814, page 100. Keeper of Wei2:h(s and Measures aid Sealer of dry measures, differ'* ent officers, during pleasure, to reside in the city and coun- ty of Philadelphia, volume 1, pages 18, 19,44. Fort Physiciany Lazardte Phjsician, Health Officer and Quarantine Masfer, may be removed fronj office by the Governor at the request of the members of the board of health, or a majority of them, volume 4, page 304. Maittr and Assistant Wardens of the port of Philadelphia, for one year. ^^ Very respectfully, I have the honor to be, Gentlemen, Your obedient servant, ANDREW GREGG. ^hrmr^ldth, 1821. «4 ( 1 ) [case.] Thomas Mifflin, Governor of the Commonwealth of Pennsjlva- ttia, executed a commission under the state seal, date^i January 14tn, 1799, to James Reed, as Inspector of bread and flour for the city and county of Philadelphia, to hold said office for the term of f*iir years, if he sliould so long behave himself well. The period of Go- vernor Mifflin's administration terminated on the 16tb day ci I^e- cember, 1799, by effluxion of time, and Thomas M'Kean was the next day proclaimed Governor. Question. Does the above commission continue in force for the term of four years, or did it determine with the power of the Gcver- nor? See first volume Pennsylvania Laws , 889, section 19. I am clearly of opinion that the commission of Mr. Read may be superseded' at the pleasure of the present Goven.or. The Le- o-lslature might create the office, the constitution ascertains the terms of the commission. Governor Mifflin could not give the ap- pointment, except in the manner prescribed in the coastitution, and this officer is not one of the enumerctei instances which are to be during: good behavior, for a term of years, or appointed by the legis- lature, and of v'ourse falls under the only remaining class revocable at the pleasure of the Executive. JARE.D IiNGERSOLL. March \st, 1800. Lancaster, March Isf, 1800. The ease naturally presents two principal objects for inquiry. Ist, "VVlietlier the Legislature has power to prescribe the duration •f commissions issued to the public Mfficers? 2d,iWhether it is in the power of the Governor, for the time being, to grant a commis- sion for any term of years, so as to be binding on his successor.'' 1st. The constitution vests in the Governor the exclusive power •f appointing, and it follows as an incident, of removing all public •fficers whose commissions are not otherwise provided for by the constitution itself. There are, indeed, but three tenures of office recognized by the constitution; 1st, Judicial offices, which ai'e to be held during good behavior; 2d, civil offices which are to be held at the pleasure of the Governor, and 3d, fiscal offices, wliich are con- stitutionally limited in point of time, with the exceptions of the se- cretaries, sheriffs and coVoners, and other enumerated offices which are to be held under the appointment of the legislature, or in such other manner as is, or shall be, directed by law, It is clear, there- fore, that the legislature cannot appoint to any offices which are not expressly designated, as exceptions to the general authority of the governor, and I think it necessarily follows that they cannot, in any other cases, interfere with his general authority of removal. The executive power of removal, and even the power of appoint- ing, would become, in a great measure^ nugatory, if the duration of the appointment after it was made depended on legislative regula- tions; for if the legislature can declare that a man shall continue in office for four years, the declaration may, with the same reason, be protracted for forty years, nay, speaking indefinitely, it might vest every office for the life of the officer, or during his good behavior, and thus the power, control, and responsibihty, intended for the executive magistrate, w^ould be essentially transferred to another department of the government. Under this impression, it appears to me that, though the legislature may establish temporary offices, or abolish any office not depending on the constitution, yet they have not a power lo prescribe the duration of any commission regularly issued for any permanent civil office by the governor. But it may be proper to add, that the law in question was, in oth- er views, unconstitutional. For instance, in assuming the power to nominate and appoint the officer, as well as to prescribe the dura- tion of his commission,* and even in the view now contemplated, it only respects the actual occupant and does not extend to his suc- cessors. In the case of a vacancy, indeed, it was to be supplied by justices of the peace *' until the Assembly shrJl appoint anotiier in- spector." Thus, excluding in one word, at least, the idea of any tenure for years, though the assembly might not re-appoint, and the truth is, that since the fii'st appointment by the law the legis- lature have never attempted to exercise the power of appointment, but it devolved (without any legislative cession) upon tlie supreme executive council, to whom, in the opinion of the council of cen- sors, it constitutionally belonged. ^ If the regulation was unconstitutional uWer the old frame govern- ment, the same reasons render it inconsistent with the provisions oi the existing system, and it is, of course, repealed or annulled. 2d. On the second object of inquiry, I premise that, if the law is repealed or annulled, by force of the existing constitution, the late governor could derive no power from it ; and if the legislaturfc- *9ee a declaration act on this point, p.-isssd the 4. h April 1785, D m could not prescribe a duration to the commission, I think they are equnllyincompetentto authorize tho governor to do so. The power of the executive depends implicitly, aiid entirely, on the grant of the constitution. The leg:islature and the governor cannot, there- fore, jointly, or separately, make the power an iota mgre or less than the constitution has made it, nor direct or modify the exercise of it, in a manner different from the obvious design and meaning of the grant. The power of appointing to office, and of removing from office, is gi anted to the Governor for the time being, upon principles of public pohcy and personal responsibility, but if it is construed so as to authorize the governor's issuing a commission for a term of years, all public policy and personal responsibility are at an end. No greater latitude of construction will be necessary to authorize the executive magistrate to confer commissions for life, or in tail ; and every Governor, at the close of a triennial adminis- tration, must have it in his power to impose his own partizans upon a rival successor, who may know nothing of the merits, and ought not to be made answerable for the conduct of officers thus appoint- ed witl.out his previous participation, or subseq^uent assent. Hence, I conclude, that the governor for the time being has not the power to grant a commission for any term of years, so as to be binding on his successor. And the general result, upon the case stated, is, that the commis- sion of Mr. Reed, may be superseded at the pleasure of the present (3) Office of the Commonwealth ^ February 21 St J 1821. REES HILL, Esq, Sir J Tn examining the law respecting escheats, passed orx the 29th of September, 1787, I find the suprenje executive coun- cil, were authorized and^directed to appoint an officer to be called Eachealor General, to hold his office for seven years, if he should so long behave iiimself well. And this office has been filled by succes- sive appointments since that time. The present incumbent wa& appointed on the 14ih September, 1815. — I have thought it neces- sai'y to mention this, to render more perfect the list already furn- ished Yery respectfully, I am yours, ANDREW GREGa sr (*) Gentlemen, I take the honor of acknowledging the receipt of Col. Hill's letter, covering the preamble and resolutions therein re- ferred to, and have taken time to collect on the subject such infor- mation, as was within the reach of my limited means. Having done so, I now respectfully assure the committee, that I know of no ap- pointment to, or removal from office, by any governor of Pennsyl- vania, since the adoption of the present constitution, which in my opinion, was not constitutional. I am, Gentlemen, Tour respectful and Obedient servant, THO. ELDER. To Rees Hilly Condy Ra^uet and Frederick Eichelberger, Esquires Committee of Senate, Sfc. Hanisburg, Feb. '26th, I82L '\ WB. .^.