Title: Orville Hickman Browning to Andrew Johnson, 26 March 1868
Date: March 26, 1868
Source: Transcribed from digital images or a microfilm reproduction of the original item. For a description of the editorial rationale behind our treatment of the correspondence, see our statement of editorial policy.
Location: National Archives and Records Administration
Whitman Archive ID: nar.00488
Contributors to digital file: Elizabeth Lorang, Kevin McMullen, John Schwaninger, and Nima Najafi Kianfar
March 26, 1868.
In conformity to your directions, under date of the 14th inst. I have caused to be prepared, and have the honor herewith to submit, a table (marked A.) of offices and their respective tenures, comprising the following classes, which have been created by Congress, exclusively of all military and naval offices, all judges of the Constitutional Judiciary of the United States, all judges of the Court of Claims, all public ministers, consuls, and other agents of foreign intercourse, and all inferior officers whose appointment is vested in the President alone, in Heads of Departments, or in Courts of Law, viz:
1: Officers with a tenure definitely limited, i.e., with a term prescribed.
2: Officers with a term prescribed, "unless sooner removed."
3: Officers without a prescribed term, and not expressly during pleasure.
4: Offices without a prescribed term, and expressly during pleasure.
As directed, the date of the Act of Congress creating the office in each instance is given in the table, with the volume and page of the public statutes, together with appropriate explanatory remarks.
The inquiry is also made in your communication "what officers holding for a fixed period of time, and whose tenure is not expressed by law to be 'unless sooner removed,' have been removed—and when, and by whom?"
This is understood as contemplating those officers only of whose appointments and removals the Attorney General would have official knowledge, and keep record.
I am not able to ascertain with certainty at what precise period the incumbency of Territorial Judges, District Attorneys, and Marshals, became regularly a matter of official notice and supervision in the Attorney General's Office. Our files and records show several removals of Territorial Judges, the earliest being made by direction of President Lincoln in 1864. I herewith submit a table marked B. of all removals of record in this office of Territorial Judges.
It is believed that the record of previous removals of Territorial judges is in the Department of State. One removal came incidentally before the Supreme Court of the United States in 1854, 17 Howard, 284—United States, vs: Guthrie. The court intimated no opinion touching the President's power of removal in the premises, the case going off on another point, notwithstanding that the former was very fully argued. Mr. Lawrence, of counsel, on that occasion, speaks as if the removal then in question was the first which had been made of a Territorial Judge, (page 298.) It was made on the 21 October, 1851, by President Fillmore, who acted upon the advice of Mr. Attorney Gen'l Crittenden, 23 January, 1851, (5 opinions Attorney's General, 288.) Mr. Attorney Gen'l Grundy had previously expressed his opinion, 1 February, 1839, that Territorial Judges could not be impeached as civil officers of the United States, in the sense of the constitution; (3 Opinions Attorneys Gen'l 409.)
A large number of removals have been made from time to time of District Attorneys and Marshals. But since 1820, (see Table A.) the tenure of District Attorneys of the United States—and from 1789 down, that of Marshals—has been for four years, unless sooner removed. The corresponding officers for Territories have, as believed, without exception, held, and still hold, by a similar tenure. No other officers except those whose appointment is vested in the Head of this Department, are under the supervision of the Attorney General.
It will be observed that all public ministers, consuls, & other agents of foreign intercourse are wholly omitted from Table A. herewith. As they are officers of the United States, it may be necessary to explain that the most important of them are substantially of Executive creation, under the express diplomatic powers vested in the President by the Constitution, and in conformity to the law regulating the intercourse of nations.
More to the point would not be pertinent here. It was, however, the subject of an ample exposition by Mr. Attorney General Cushing, 25 May, 1855. (7 Opinions Attorney's General, 186, et seq.)
In submitting the accompanying lists, it is proper to say that no diligence of our limited official force could insure perfect accuracy, or complete fulness, in an abstract from the fourteen volumes of public statutes, of all the statutory provisions, both operative and obsolete, which designate offices and prescribe their tenures. Especially is it probable that the attempt to include transient offices for special purposes has but imperfectly succeeded in the brief time which could be allowed to this work.
I have the honor to be, Respectfully,
O. H. Browning,
Attorney General, ad interim.