rine of "estate in office," from which the conclusion followed that
the impeachment power was the only power of removal intended by the
Constitution; _second_, that the power of removal was an incident of the
power of appointment and hence belonged, at any rate in the absence of
legal or other provision to the contrary, to the appointing authority;
_third_, that Congress could, by virtue of its power "to make all laws
which shall be necessary and proper," etc., determine the location of
the removal of power; _fourth_, that the President by virtue of his
"executive power" and his duty "to take care that the laws be faithfully
executed," possesses the power of removal over all officers of the
United States except judges. In the course of the debate on the act to
establish a Department of Foreign Affairs (later changed to Department
of State) all of these views were put forward, with the final result
that a clause was incorporated in the measure which implied, as pointed
out above, that the head of the department would be removable by the
President at his discretion. Contemporaneously and indeed until after
the Civil War, this action by Congress, in other words "the decision of
1789," was interpreted as establishing "a practical construction of the
Constitution" with respect to executive officers appointed without
stated terms. However, in the dominant opinion of those best authorized
to speak on the subject, the "correct interpretation" of the
Constitution was that the power of removal was always an incident of the
power of appointment, and that therefore in the case of officers
appointed by the President with the advice and consent of the Senate the
removal power was exercisable by the President only with the advice and
consent of the Senate. _See_ Hamilton in the Federalist No. 77; 1 Kent's
Comm. 310; 2 Story Comm. Sec. 1539 and 1544; Ex parte Hennen, 13 Pet. 225,
258-259 (1839). The doctrine of estate in office was countenanced by
Chief Justice Marshall in his opinion in Marbury _v._ Madison, 1 Cr.
137, 162-165 (1803), but has long been rejected. _See_ Crenshaw _v._
United States, 134 U.S. 99, 108 (1890). The three remaining views are
treated by the Chief Justice, at some cost in terms of logic as well as
of history, as grist to his mill.

[313] 272 U.S. at 134.

[314] Annals of Congress, cols. 635-636.

[315] 295 U.S. 602 (1935). The case is also styled Rathbun, Executor
_v._ United States, Humphrey having, like Mye