delivered the opinion of the Court.
This is an application for a rule upon the Honourable Philip K. Lawrence, Judge of the District Court of the United States for the eastern district of Louisiana, to show Cause why a mandamus should not be- issued against him, requiring him to show cause why he should not restore Duncan N. Hennen to the office of clerk of the said. District Court.
The'.petition sets forth, that the petitioner, Duncan N. Hennen, on the 21st day of February, in the year 1834, was duly appointed ■clerk of the said Court, by the Honourable Samuel H. Harper, judge of the said Court.- That a, commission was duly issued, under the hand and seal of the judge. . That he accepted the appointment, and gave the bond with sureties required by law, and thereupon entered upon the duties of the office, and continued to discharge the same, methodically, skilfully, and uprightly, and to the satisfaction of the District Court. That by virtue of said appointment, and of the provisions of .the statute in. such case made and provided, he was from the period of the organization of the Circuit Court of the United States for the said district of Louisiana, in like mannér the clerk of the said Circuit Court; and performed all the duties of said office. That he continued to perform the said duties, and receive the emoluments, and'in all respects to hold and occupy said offices, until on or about the 18th day of May, in the year 1838, when he received a communication from the Honourable Philip K. Lawrence, then and now the judge of the said District Court of the United States, for the said eastern district of Louisiana, apprizing him of his removal from the said office of clerk, and the appointment of John Winthrop in his place. And in this communication he states, unreservedly, that the business of the office for the last two years had been conducted promptly, skilfully, and-uprightly, and that, in appointing Mr. Winthrop to succeed him, he had been actuated purely by a sense of duty and feelings of kindness towards one whom he had long known, and between whom and himself the closest friendship had ever subsisted. And that, as his capacity to fill the office cannot be questioned, he felt that he was not exercising *257 any unjust preference, in bestowing on him the appointment. The petition further states, that Judge Lawrence did, on or -about the 18th day of. May, in the year 1838, execute and deliver to the said John Winthrop-a commission or appointment, as clerk of the said District Court for the eastern district of Louisiana-; and that he does to a certain extent execute,the duties appertaining to the said office, and is recognised by the said judge as the only legal clerk of the said District Court. ...
The petition further states,'that on or about the 2Íst day of May, in the year 1838, the Circuit Court of ,the United' States, for the eastern district of Louisiana, met according to law; when the Honourable John McKinley, one of the associate Justices of the Supreme Court of the United States, and the said Judge Lawrence, appeared as judges of the said Circuit Court, and that the petitioner and John Winthrop, severally presented themselves, each claiming to be rightfully and lawfully the clerk of the said Circuit Court; that the judges, differed in opinion upon the said question of right, and being unable-, to coneixr in opinion, neither of said parties was admitted'to act as clerk, or recognised by the Court as being rightful clerk; and no business was or could be transacted, and the Court adjourned.
The petitioner claims that he was legally and in due form appointed clerk of said District Court; and by virtue of said appointment: became lawfully the clerk of said Circuit Court. And that he has-never resigned the said'offices, or been 'legally removed from the same, or either of them. But that he is illegally kept out of the said office of clerk of the said District Court, by the illegal acts and conduct of the said Philip K. Lawrence, judge as aforesáid, and the said John Winthrop, claiming to hold the said office under an appointment from the said Judge Lawrence; which he is advised and believes is illegal and void.. And prays that the Court will award a writ of mandamus, directed to the said judge of the District Court,, commanding him forthwith to restore the petitioner to the office of clerk of the said District Court of the United States for the eastern district of Louisiana.
The district judge has appeared by counsel to oppose this motion, apd the facts set out in the petition have not been denied. And the question presented to the Court is, whether the petitioner has shown enough to entitle him to a rule to. show cause why a mandamus, .should not issue. If he has been legally removed from the office of clerk, there are no grounds upon which the present motion can be sustained.
By the Constitution of the United States, art. 2, s. 2, it is provided that the President shall nominate, axid by and with tlie advice and consent of the Senate, shall appoint certain officers therein designated, and all other officers of the United- States, whose appointments are not hereiix otherwise provided for, and which shall be established by law ;• but the Congress may by law ‘ vest the appointment of such inferior officers, as they shall think proper, in the President alone, in the Courts of law, or in the heads, of.departments. The appointing *258 power here designated, in the latter part of the section was no doubt intended to be exercised by the department of the government to. which the officer to be appointed most appropriately belonged. The appointment of clerks of Courts properly belongs to- the Courts of law; and that a clerk is one of the inferior officers contemplated by this provision in the Constitution cannot be questioned, Congress, in the exercise of the power here given, by’the act of the 24th of September, 1789, establishing the judicial Courts of the United States, 1 Story’s Laws U. S. 56, s. 7, declare that the Supreme Court, and the District Courts shall have power to appoint clerks of their respective Courts; and that the clerk for each District Court shall be clerk also of the Circuit Court in such die rict.
When this law was passed, Louisiana formed no part of the United States, and of course had no District Court, to whieh' the act of 1789 would’ apply. But by the act of the 26th of March, 1804, 2 Story’s Laws, 933, providing for the temporary government of. Louisiana, a District Court is established; and.the law directs that the judge thereof shall appoint a clerk for the said district, who shall keep the records of -the Court, and receive the fees provided by law for his servicés. Anda like provision-is made by the act of April 8, 1812;
Such then being the situation in which the petitioner stood prior to the 21st of May, 1838, the question- arises whether the district judge had the power to remove him, and appoint another cleyk in his place.
The Constitution is silent with respect to the power of removal ffom office, where the tenure is not fixed. It provides, that the judges, both of the supreme and inferior Courts, shall hold their offices during good behaviour. But no tenure is fixed for the office of clerks. Congress has by law limited the tenure of certain officers to the term of four years,
All offices, the tenure of which is not fixed hy the Constitution or limited bylaw, must be held either during good behaviour, or (which is the same thing in contemplation of laW) during the life, of the incumbent •> or must be held at the wifi and discretion of some department of the government, and subject to removal at pleasure.
It cannot, for a moment, be admitted,- that it was the intention of the Constitution, that those offices which, are denominated inferior offices should be held during life. And if removable at pleasure, by whom is such removal to be made. In the absence of all constitutional provision, or statutory regulation, it would seem to be a sound and necessary rule, to consider the power of removal as incident to the power of appointment. This power of removal from office was a subject much disputed, and upon Which a great diversity, of opinion was entertained in the early history of this government. This related, however, to. the power of the President to remove officers appointed with the concurrence of the Senate : and the'great-question was, whether the removal was to be by the President alone, Or with the concurrence of the Senate, both constituting the appointing power. No one denied the power of, the President and Senate, jointly, to remove, where the tenure of the office was not fixed by the Constitution ; which was a full recognition of the principle that the power of removal was incident to the power of appointment. But it was very early adopted, as the practical construction of the Constitution, that this power was vested in the President alone. And such would appear to have been the legislative construction of the Constitution. - For in the organization of the three great departments of state, war, and treasury, in the year 1789, provision is made for the appointment of a subordinate officer by the head of the department, who should have the charge and custody of the records, books, and papers appertaining to the office, when the head of the department should be removed from the office of the President of the United States.
In all these departments power is given to the secretary, to appoint all necessary clerks;
And the sárne rule has governed the decisions of the State Courts in this country, whenever the- power of appointment and tenure of qffice has been drawn into discussion. The questions ha v e been governed by the construction given to the constitution and laws of the state where they arose.
The'case of Avery
vs.
The Inhabitants of Tyringham,
The same principié governed th'q Supreme Court of Pennsylvania, in the cáse of Leghman vs. Sutherland, 3 Serg. and Rawle, 145. The question there turned upon the éonstruction of the Constitution and law of Pennsylvania. By the Constitution of 1790, it is provided that the governor shall-appoint all officers, whose office is established'by the Constitution, or shall be established by-law; and whose appointments are not otherwise provided for. And the Court said, “ The Constitution, is silent as to the removal of officers. Yet it has been generally supposed that the power of removal rested with the governor, except in., those-' cases where’'the tenure was during good behaviour :” clearly recognising the principle, that the power of removal was incident to the power of appointmént, in the absence of all constitutional or legislative provision on the subject. The case of Hoke vs. Henderson, 4 Devereux, 1, decided in the Supreme Court of North Carolina, is not at all in conflict with the doctrine contained in the cases referred to. That-case, like the others, turned upon the' Constitution and laws of North Carolina; and by the express terms of the law, the tenure of the office was during good behaviour; and was, of course, governed by very different considerations from those which apply to the case now before the Court.
The law giving the District Courts the power of appointing their • own Clerks, does not prescribe any form in which this shall be done. The petitionér alleges that he has heard and believes that Judge Lawrence did, on the 18th day of May, 1838, execute and deliver to John Winthrop, a commission or appointment as clerk of the District Court for the eastern district of Louisiana, and that he entered upon the duties of the office, and was recognised by. the judge as the only legal clerk of the District Court. And in addition to this, notice .was given by the judge to the petitioner, of his removal from the office of clerk, and the appointment of Winthrop in his place; all which was amply sufficient, if the office was held at the discretion of the Court. The power vested in the Court was a continuing power;' and the mere appointment of a successor would, per se, be a removal of the prior incumbent, so far at least as his rights were concerned. How far the rights of third persons may be affected is unnecessary now to consider. There could not be two clerks at the same time. • The offices would be inconsistent with each other, and could not stand together. If the power to appoint a clerk was vested exclusively in the . District Court, and the office was .held at the discretion of the Court, as we think it was; then this Court can have no control over the appointment or removal, or entertain any inquiry into the grounds of removal. If the judge is chargeable with any abuse of his power, this is not the tribunal to which he is amenable: and as we have no right to judge upon this matter, or *262 power to afford redress if any is required, we abstaiii from expressing any opinion upon that part of the case.
The motion is accordingly denied.
On consideration of this motioP? an<l of the arguments of counsel thereupon, had, as well in support of as against the,motion, it is now here considered, ordered, and adjudged, by this Court, that the said motion be, and the same is, hereby overruled.; and that the said mandamus or rule prayed for be, and the same is, hereby denied.