340 CONSTITUTION OF THE U. STATES. [BOOK III.
EXECUTIVE --POWERS AND DUTIES.
§ 1483. Having thus considered the manner, in which the executive department is organized, the next inquiry is, as to the powers, with which it is entrusted. These, and the.corresponding duties, are enumerated in the second and third sections of the second article of the constitution.
§ 1484. The first clause of the second section is, "The President shall be commander-in-chief of the army and navy of the United States, and of the militia of the several states, when called into the actual service of the United States.1 He may require the opinion in writing of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices. And he shall have power to grant reprieves and pardons for offences against the United States, except in cases of impeachment."
§ 1485. The command and application of the public force, to execute the laws, to maintain peace, and to resist foreign invasion, are powers so obviously of an executive nature, and require the exercise of qualities so peculiarly adapted to this department, that a well-organized government can scarcely exist, when they are taken away from it.2 Of all the cases and concerns of government, the direction of war most peculiarly demands those qualities, which distinguish
1 See Journal of Convention, 225, 295, 362, 383.
2 1 Kent's Comm. Lect. 13, p. 264; 3 Elliot's Deb. 103.
CH. XXXVII.] EXECUTIVE--POWERS. 341
the exercise of power by a single hand.1 Unity of plan, promptitude, activity, and decision, are indispensable to success; and these can scarcely exist, except when a single magistrate is entrusted exclusively with the power. Even the coupling of the authority of an executive council with him, in the exercise of such powers, enfeebles the system, divides the responsibility, and not unfrequently defeats every energetic measure. Timidity, indecision, obstinacy, and pride of opinion, must mingle in all such councils, and infuse a torpor and sluggishness, destructive of all military operations. Indeed, there would seem to be little reason to enforce the propriety of giving this power to the executive department, (whatever may be its actual organization,) since it is in exact coincidence with the provisions of our state constitutions; and therefore seems to be universally deemed safe, if not vital to the system.
§ 1486. Yet the clause did not wholly escape animadversion in the state conventions. The propriety of admitting the president to be commander-in-chief, so far as to give orders, and have a general superintendency, was admitted. But it was urged, that it would be dangerous to let him command in person without any restraint, as he might make a bad use of it. The consent of both houses of congress ought, therefore, to be required, before he should take the actual command.2 The answer then given was, that though the president might, there was no necessity, that he should, take the command in person; and there was no probability, that he would do so, except in extraordinary emergencies, and when he was possessed
1 The Federalist, No 74; 3 Elliot's Debates, 103.
2 2 Elliot's Debates, 365. See also 3 Elliot's Debates, 108.
342 CONSTITUTION OF THE U. STATES. [BOOK III.
of superior military talents.1 But if his assuming the actual command depended upon the assent of congress, what was to be done, when an invasion, or insurrection took place during the recess of congress? Besides; the very power of restraint might be so employed, as to cripple the executive department, when filled by a man of extraordinary military genius. The power of the president, too, might well be deemed safe; since he could not, of himself, declare war, raise armies, or call forth the militia, or appropriate money for the purpose; for these powers all belonged to congress.2 in Great Britain, the king is not only commander-in-chief of the army, and navy, and militia, but he can declare war; and, in time of war, can raise. armies and navies, and call forth the militia of his own mere will.3 So, that (to use the words of Mr. Justice Blackstone) the sole supreme government and command of the militia within all his majesty's realms and dominions, and of all forces by sea and land, and of all forts and places of strength, ever was and is the undoubted right of his majesty; and both houses or either house of parliament cannot, nor ought to pretend to the same.4 The only power of check by parliament is, the refusal of supplies; and this is found to be abundantly sufficient to protect the nation against any war against the sense of the nation, or any serious abuse of the power in modern times.5
1 2 Elliot's Debates, 366.
2 3 Elliot's Debates, 103.
3 3 Elliot's Debates, 103; 1 Black. Comm. 262, 408 to 421.
4 1 Black. Comm. 262, 263.
5 During the war with Great Britain in 1812, it was questioned, whether the president could delegate his right to command the militia, by authorizing another officer to command them, when they were called into the public service. (8 Mass, Reports, 548, 550.) If he cannot, this extraordinary result would follow, that if different detachment, of militia
CH. XXXVII.] EXECUTIVE--POWERS. 343
§ 1487. The next provision is, as to the power of the president, to require the opinions in writing of the heads of the executive departments. It has been remarked, that this is a mere redundancy, and the right would result from the very nature of the office.1 Still, it is not without use, as it imposes a more strict responsibility, and recognises a public duty of high importance and value in critical times. It has, in the progress of the government, been repeatedly acted, upon; but by no president with more wisdom and propriety, than by President Washington.2
§ 1488. The next power is, "to grant reprieves and pardons." It has been said by the marquis Beccaria, that the power of pardon does not exist under a perfect administration of the laws; and that the admission of the power is a tacit acknowledgment of the infirmi-
were called out, he could not, except in person, command any of them; and
if they were to act together, no officer could be appointed to command them
in his absence. In the Pennsylvania insurrection, in 1794, President
Washington called out the militia of the adjacent states of New Jersey,
Maryland, and Virginia, as well as of Pennsylvania, and all the troops, so
called out, acted under the orders of the governor of Virginia, on whom the
president conferred the chief command during his absence. Rawle on the
Const. ch. 20, p. 193. It was a practical affirmation of the authority,
and was not contested. See also 5 Marshall's Life of Washington, ch. 8, p.
580, 584, 588, 589.
1 The Federalist, No. 74. See Journal of Convention, 225, 326, 342.
2 Mr. Jefferson has informed us, that in Washington's administration, for measures of importance, or difficulty. a consultation was held with the heads of the departments, either assembled, or by taking their opinions separately in conversation, or in writing. In his own administration, he followed the practice of assembling the heads of departments, as a cabinet council. But he has added, that he thinks the course of requiring the separate opinion in writing of each bead of a department is most strictly in the spirit of the constitution; for the other does, in fact, transform the executive into a directory. 4 Jefferson's Corresp. 143, 144.
344 CONSTITUTION OF THE U. STATES. [BOOK III.
ty of the course of justice.1 But if this be a defect at all, it arises from the infirmity of human nature generally; and in this view, is no more objectionable, than any other power of government; for every such power, in some sort, arises from human infirmity. But if it be meant, that it is an imperfection in human legislation to admit the power of pardon in any case, the proposition may well be denied, and some proof, at least, be required of its sober reality. The common argument is, that where punishments are mild, they ought to be certain; and that the clemency of the chief magistrate is a tacit disapprobation of the laws. But surely no man in his senses will contend, that any system of laws can provide for every possible shade of guilt, a proportionate degree of punishment. The most, that ever has been, and ever can be done, is to provide for the punishment of crimes by some general rules, and within some general limitations. The total exclusion of all power of pardon would necessarily introduce a very dangerous power in judges and juries, of following the spirit, rather than the letter of the laws; or, out of humanity, of suffering real offenders wholly to escape punishment; or else, it must be holden, (what no man will seriously avow,) that the situation and circumstances of the offender, though they alter not the essence of the offence, ought to make no distinction in the punishment.2 There are not only various gradations of guilt in the commission of the same crime, which are not susceptible of any previous enumeration and definition; but the proofs must, in many cases, be imperfect in their own nature, not only as to the actual commission of the
1 Beccaria, ch. 46; l Kent. Comm. Leek 13, p. 265; 4 Black. Comm. 307; 2
Wilson's Law Lect. 193 to 198.
2 4 Black. Comm. 397.
CH. XXXVII.] EXECUTIVE--POWERS. 345
Offence, but also, as to the aggravating or mitigating circumstances. In many cases, convictions must be founded upon presumptions and probabilities. Would it not be at once unjust and unreasonable to exclude all means of mitigating punishment, when subsequent inquiries should demonstrate, that the accusation was wholly unfounded, or the crime greatly diminished in point or atrocity and aggravation, from what the evidence at the trial seemed to establish? A power to pardon seems, indeed, indispensable under the most correct administration of the law by human tribunals; since, otherwise, men would sometimes fall a prey to the vindictiveness of accusers, the inaccuracy of testimony, and the fallibility of jurors and courts.1 Besides; the law maybe broken, and yet the offender be placed in such circumstances, that he will stand, in a great measure, and perhaps wholly, excused in moral and general justice, though not in the strictness of the law. What then is to be done? Is he to be acquitted against the law; or convicted, and to suffer punishment infinitely beyond his deserts? If an arbitrary power is to be given to meet such cases, where can it be so properly lodged, as in the executive department?2
1 1 Kent's Comm. Lect. 13, p. 265.
2 Mr. Chancellor Kent has placed the general reasoning in a just light. "Were it possible," says he "in every instance, to maintain a just proportion between the crime and the penalty, and were the rules of testimony and the mode of trial so perfect, as to preclude mistake, or injustice, there would be some colour for the admission of this (Beccaria's) plausible theory. But even in that case policy would sometimes require a remission of a punishment, strictly due for a crime certainly ascertained. The very notion of mercy implies the accuracy of the claims of justice."* What should we say of a government, which purported to act upon mere human justice, excluding all opera-
* Kent's Comm. Lect. 13, p. 265.
346 CONSTITUTION OF THE U. STATES. [BOOK III.
§ 1489. Mr. Justice Blackstone says, that "in democracies, this power of pardon can never subsist; for, there, nothing higher is acknowledged, than the magistrate, who administers the laws; and it would be impolitic for the power of judging, and of pardoning to center in one and the same person. This (as the president Montesquieu, observes)1 would oblige him very often to contradict himself, to make and unmake his decisions. It would tend to confound all ideas of right among the mass of the people, as they would find it difficult to tell, whether a prisoner was discharged by his innocence, or obtained a pardon through favour."2 And hence, he deduces the superiority of a monarchical government; because in monarchies, the king acts in a superior sphere; and may, therefore, safely be trusted with the power of pardon, and it becomes a source of personal loyalty and affection.3
§ 1490. But, surely, this reasoning is extremely forced and artificial. In the first place, there is more difficulty or absurdity in a democracy, than in a monarchy, in such cases, if the power of judging and pardoning be in the same lands; as if tile monarch be at once the judge, and the person, who pardons. And Montesquieu's reasoning is in fact addressed to this very case of a monarch, who is at once the judge, and dispenser of pardons.4 In the next place, there is no inconsistency in a democracy any more, than in a monarchy, in entrusting one magistrate with a power to try
tions of mercy in all cases? An inexorable government would scarcely be
more praiseworthy, than a despotism. It would be intolerable and
1 Montesq. Spirit of Laws, B. 6, ch. 5.
2 4 Black. Comm. 397, 398.
4 Montesq. B. 6, ch. 5.
CH. XXXVII.] EXECUTIVE--POWERS. 347
the cause, and another with a power to pardon. The one power is not incidental to, but in contrast with the other. Nor, if both powers were lodged in the same magistrate, would there be any danger of their being necessarily confounded; for they may be required to be acted upon separately, and at different times, so as to be known as distinct prerogatives. But, in point of fact, no such reasoning has the slightest application to the American governments, or, indeed, to any others, where there is a separation of the general departments of government, legislative, judicial, and executive, and the powers of each are administered by distinct persons. What difficulty is there in the people delegating the judicial power to one body of magistrates, and the power of pardon to another, in a republic any more, than there is in the king's delegating the judicial power to magistrates, and reserving the pardoning power to himself, in a monarchy?1 In truth, the learned author, in his extreme desire to recommend a kingly form of government, seems on this, as on many other occasions, to have been misled into the most loose and inconclusive statements. There is not a single state in the Union, in which there is not by its constitution a power of pardon lodged in some one department of government, distinct from the judicial.2 And the power of remitting penalties is in some cases, even in England, entrusted to judicial officers.3
§ 1491. So far from the power of pardon being in-
1 Mr. Rawle's Remarks upon this subject are peculiarly valuable, from
their accuracy, philosophical spirit, and clearness of statement. Rawle on
Const. ch. 17, p. 174 to 177.
2 1 Tucker's Black. Comm. App. 331; 2 Wilson's Law Lect. 193 to 200.
3 Bacon's Abridg. Court of Exchequer, B.
348 CONSTITUTION OF THE U. STATES. [BOOK III.
compatible with the fundamental principles or a republic, it may be boldly asserted to be peculiarly appropriate, and safe in all free states; because the power can there be guarded by a just responsibility for its exercise.1 Little room will be left for favouritism, personal caprice, or personal resentment. If the power should ever be abused, it would be far less likely to occur in opposition, than in obedience to the will of the people. The danger is not, that in republics the victims of the law will too often escape punishment by a pardon; but that the power will not be sufficiently exerted in cases, where public feeling accompanies the prosecution, and assigns the ultimate doom to persons, who have been convicted upon slender testimony, or popular suspicions.
§ 1492. The power to pardon, then, being a fit one to be entrusted to all governments, humanity and sound policy dictate, that this benign prerogative should be, as little as possible, lettered, or embarrassed. The criminal code of every country partakes so much of necessary severity, that, without an easy access to exceptions in favour of unfortunate guilt, justice would assume an aspect too sanguinary and cruel. The only question is, in what department of the government it can be most safely lodged; and that must principally refer to the executive, or legislative department. The reasoning in favour of vesting it in the executive department may be thus stated. A sense of responsibility is always strongest in proportion, as it is undivided. A single person would, therefore, be most ready to attend to the force of those motives, which
1 Kent's Comm. Lect. 13, p. 266.
CH. XXXVII.] EXECUTIVE--POWERS. 349
might plead for a mitigation of the rigour of the law; and the least apt to yield to considerations, which were calculated to shelter a fit object of its vengeance. The consciousness, that the life, or happiness of an offender was exclusively within his discretion, would inspire scrupulousness and caution; and the dread of being accused of weakness, or connivance, would beget circumspection of a different sort. On the other hand, as men generally derive confidence from numbers, a large assembly might naturally encourage each other in acts of obduracy, as no one would feel much apprehension of public censure.1 A public body, too, ordinarily engaged in other duties, would be little apt to sift cases of this sort thoroughly to the bottom, and would be disposed to yield to the solicitations, or be guided by the prejudices of a few; and thus shelter their own acts of yielding too much, or too little, under the common apology of ignorance, or confidence. A single magistrate would be compelled to search, and act upon his own responsibility; and therefore would be at once a more enlightened dispenser of mercy, and a more firm administrator of public justice.
§ 1493. There are probably few persons now, who would not consider the power of pardon in ordinary cases, as best deposited with the president. But the expediency of vesting it in.him in any cases, and especially in cases of treason, was doubted at the time of adopting the constitution; and it was then urged, that it ought at least in cases of treason to be vested in one, or both branches of the legislature.2 That there are strong reasons, which may be assigned in favour of vesting the power in congress in cases of treason, need
1 The Federalist, No. 74. See 2 Wilson's Law Lect. 198 to 200.
2 2 Elliot's Debates, 366; The Federalist, No. 74.
350 CONSTITUTION OF THE U. STATES. [BOOK III.
not be denied. As treason is a crime levelled at the immediate existence of society, when the laws have once ascertained the guilt of the offender, there would seem to be a fitness in referring the expediency of an act of mercy towards him to the judgment of the legislature.1 But there are strong reasons also against it. Even in such cases a single magistrate, of prudence and sound sense, would be better fitted, than a numerous assembly, in such delicate conjunctures, to weigh the motives for and against the remission of the punishment, and to ascertain all the facts without undue influence. The responsibility would be more felt, and more direct. Treason, too, is a crime, that will often be connected with seditions, embracing a large portion of a particular community; and might under such circumstances, and especially where parties were nearly poised, find friends and favourites, as well as enemies and opponents, in the councils of the nation.2 So, that the chance of an impartial judgment might be less probable in such bodies, than in a single person at the head of the nation.
§ 1494. A still more satisfactory reason is, that the legislature is not always in session; and that their proceedings, must be necessarily slow, and are generally not completed, until after long delays. The inexpediency of deferring the execution of any criminal sentence, until a long and indefinite time after a conviction, is felt in all communities. It destroys one of the best effects of punishment, that, which arises from a prompt and certain administration of justice following close upon the offence. If the legislature is invested with
1 The Federalist, No. 74.
2 The Federalist, No. 74; Rawle on Const. ch. 17, p. 178.
CH. XXXVI.] EXECUTIVE--POWERS. 351
the authority to pardon, it is obviously indispensable, that no sentence can be properly executed, at least in capital cases, until they have had time to act. And a mere postponement of the subject from session to session would be naturally sought by all those, who favoured the convict, and yet doubted the success of his application. In many cases delay would be equivalent to a pardon, as to its influence upon public opinion, either in weakening the detestation of the crime, or encouraging the commission of it. But the principal argument for reposing the power of pardon in the executive magistrate in cases of treason is, that in seasons of insurrection, or rebellion, there are critical moments, when a well-timed offer of pardon to the insurgents, or rebels, may restore the tranquillity of the Commonwealth; and if these are suffered to pass unimproved, it may be impossible afterwards to interpose with the same success. The dilatory process of convening the. legislature, or one of the branches, for the purpose of sanctioning such a measure, would frequently be the loss of the golden opportunity. The loss of a week, of a day, or even of an hour may sometimes prove fatal. If a discretionary power were confided to the president to act in such emergencies, it would greatly diminish the importance of the restriction. And it would generally be impolitic to hold out, either by the constitution or by law, a prospect of impunity by confiding the exercise of the power to the executive in special eases; since it might be construed into an argument of timidity or weakness, and thus have a tendency to embolden guilt.1 In point of fact, the power has always been found safe in the hands of the state executives in trea-
1 The Federalist, No. 74; 3 Elliot's Debates, 105, 106, 107.
352 CONSTITUTION OF THE U. STATES. [BOOK III.
son, as well as in other cases; and there can be no practical reason, why it should not be equally safe with the executive of the Union.1
§ 1495. There is an exception to the power of pardon, that it shall not extend to cases of impeachment, which takes from the president every temptation to abuse it in cases of political and official offences by persons in the public service. The power of impeachment will generally be applied to persons holding high offices under the government; and it is of great consequence, that the president should not have the power of preventing a thorough investigation of their conduct, or of securing them against the disgrace of a public conviction by impeachment, if they should deserve it. The constitution has, therefore, wisely interposed this check upon his power, so that he cannot, by any corrupt coalition with favourites, or dependents in high offices, screen them from punishment.2
§ 1496. In England (from which this exception was probably borrowed) no pardon can be pleaded in bar of an impeachment. But the king may, after conviction upon an impeachment, pardon the offender. His prerogative, therefore, cannot prevent the disgrace of a conviction; but it may avert its effects, and restore the offender to his credit.3 The president possesses .no such power in any case of impeachment; and, as the
judgment upon a conviction extends no farther, than to a removal from
office, and disqualification to hold office, there is not the same reason
for its exercise after con-
1 The Federalist, No. 64; 3 Elliot's Debates, 105, 106; 1 Tucker's Black.
Comm. App. 331.
2 1 Kent's Comm. Lect. 13, p. 266.
3 1 Tucker's Black. Comm. App. 331, 332; 4 Black. Comm. 399, 400. See also Rawle on Const. ch. 17, p. 176; ch. 31, p. 293, 294.
CH. XXXVII.] EXECUTIVE--POWERS. 353
viction, as there is in England; since (as we have seen) the judgment there, so that it does not exceed what is allowed by law, lies wholly in the breast of the house of lords, as to its nature and extent, and may, in many cases, not only reach the life, but the whole fortune of the offender.
§ 1497. It would seem to result from the principle, on which the power of each branch of the legislature to punish for contempts is founded, that the executive authority cannot interpose between them and the offender. The main object is to secure a purity, independence, and ability of the legislature adequate to the discharge of all their duties. If they can be overawed by force, or corrupted by largesses, or interrupted in their proceedings by violence, without the means of self-protection, it is obvious, that they willsoon be found incapable of legislating with wisdom or independence. If the executive should possess the power of pardoning any such offender, they would be wholly dependent upon his good will and pleasure for the exercise of their own powers. Thus, in effect, the rights of the people entrusted to them would be placed in perpetual jeopardy. The constitution is silent in respect to the right of granting pardons in such cases, as it is in respect to the jurisdiction to punish for contempts. The latter arises by implication; and to make it effectual the former is excluded by implication.1
§ 1498. Subject to these exceptions, (and perhaps there may be others of a like nature standing on special grounds,) the power of pardon is general and unqualified, reaching from the highest to the lowest offences. The power of remission of fines, penalties, and forfeitures is
1 Rawle on Constitution, ch. 17, p. 177.
354 CONSTITUTION OF THE U. STATES. [BOOK III.
also included in it; and may in the last resort be exercised by the executive, although it is in many cases by our laws confided to the treasury department.1 No law can abridge the constitutional powers of the executive department, or interrupt its right to interpose by pardon in such cases.2
§ 1499. The next clause is: "He (the president) shall have power, by and with the advice and consent of the senate, to make treaties, provided two thirds of the senators present concur. And he shall nominate, and, by and with the advice and consent of.the senate, shall appoint ambassadors, other public ministers, and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein 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 think proper, in the president alone, in the courts of law, or in the heads of departments."
§ 1500. The first power, "to make treaties," was not in the original draft of the constitution; but was afterwards reported by a committee; and after some ineffectual attempts to amend, it was adopted, in substance, as it now stands, except, that in the report the advice and consent of two thirds of the senators was not required to a treaty of peace. This exception was struck out by a vote of eight states against three. The principal struggle was, to require two thirds of the
1 Act of 3d of March, 1797, ch. 67; Act of 11th of Feb. 1800, ch. 6.
2 Instances of the exercise of this power by the president, in remitting fines and penalties in cases, not within the scope of the laws giving authority to the treasury department, have repeatedly occurred; and their obligatory force has never been questioned.
CH. XXXVII.] EXECUTIVE--POWERS. 355
whole number of members of the senate, instead of two thirds of those present.1
§ 1501. Under the confederation congress possessed the sole and exclusive power of "entering into treaties and alliances, provided, that no treaty of commerce shall be made, whereby the legislative power of the respective states shall be restrained from imposing such imposts and duties on foreigners, as their own people were subjected to; or from prohibiting the exportation or importation of any species of goods or commodities whatsoever." But no treaty or alliance could be entered into, unless by the assent of nine of the states.2 These limitations upon the power were found very inconvenient in practice; and indeed, in conjunction with other defects, contributed to the prostration, and utter imbecility of the confederation.3
§ 1502. The power "to make treaties" is by the constitution general; and of course it embraces all sorts of treaties, for peace or war; for commerce or territory; for alliance or succours; for indemnity for injuries or payment of debts; for the recognition and enforcement of principles of public law; and for any other purposes, which the policy or interests of independent sovereigns may dictate in their intercourse with each other.4 But though the power is thus general and unrestricted, it is not to be so construed, as to destroy the fundamental laws of the state. A power given by the constitution cannot be construed to authorize a destruction of other powers given in the same instrument. It must be con-
1 Journal of Convention, p. 225, 316, 339, 341, 342, 343, 362; The
Federalist, No. 75.
2 Confederation, Art. 9.
3 The Federalist, No. 42.
4 See 5 Marshall's Life of Washington, ch. 8, p. 659 to 659.
356 CONSTITUTION OF THE U. STATES. [BOOK III.
strued, therefore, in subordination to it; and cannot supersede, or interfere with any other of its fundamental provisions.1 Each is equally obligatory, and of paramount authority within its scope; and no one embraces a right to annihilate any other. A treaty to change the organization of the government, or annihilate its sovereignty, to overturn its republican form, or to deprive it of its constitutional powers, would be void; because it would destroy, what it was designed merely to fulfil, the will of the people. Whether there are any other restrictions; necessarily growing out of the structure of the government, will remain to be considered, whenever the exigency shall arise.2
§ 1503. The power of making treaties is indispensable to the due exercise of national sovereignty, and very important, especially as it relates to war, peace, and commerce. That it should belong to the national government would seem to be irresistibly established by every argument deduced from experience, from public policy, and a close survey of the objects of government. It is difficult to circumscribe the power within any definite limits, applicable to all times and exigencies, without impairing its efficacy, or defeating its purposes. The constitution has, therefore, made it general and unqualified. This very circumstance, however, renders it highly important, that it should be delegated in such
1 See Woodeson's Elem. of Jurisp. p. 51.
2 See l Tuck. Black. Comm. App. 332, 333; Rawle on Const. ch. 7, p. 63 to 76; 2 Elliot's Deb. 368, 369 to 379; Journal of Convention, p. 342; 4 Jefferson's Corresp. 2, 3. -- Mr. Jefferson seems at one time to have thought, that the constitution only meant to authorize time president and senate to carry into effect, by way of treaty, any power they might constitutionally exercise. At the same time, he admits, that he was sensible of the weak points of this position. 4 Jefferson's Corresp. 498. What are such powers given to the president and senate? Could they make appointments by treaty?
CH. XXXVII.] EXECUTIVE--POWERS. 357
a mode, and with such precautions, as will afford the highest security, that it will be exercised by men the best qualified for the purpose, and in the manner most conducive to the public good.1 With such views, the question was naturally presented in the convention, to what body shall it be delegated? It might be delegated to congress generally, as it was under the confederation, exclusive of the president, or in conjunction with him. It might be delegated to either branch of the legislature, exclusive of, or in conjunction with him. Or it might be exclusively delegated to the president.
§ 1504. In the formation of treaties, secrecy and immediate despatch are generally requisite, and sometimes absolutely indispensable. Intelligence may often be obtained, and measures matured in secrecy, which could never be done, unless in the faith and confidence of profound secrecy. No man at all acquainted with diplomacy, but must have felt, that the success of negotiations as often depends upon their being unknown by the public, as upon their justice or their policy. Men will assume responsibility in private, and communicate information, and express opinions, which they would feel the greatest repugnance publicly to avow; and measures may be defeated by the intrigues and management of foreign powers, if they suspect them to be in progress, and understand their precise nature and extent. In this view the executive department is a far better depositary of the power, than congress would be. The delays incident to a large assembly; the differences of opinion; the time consumed in debate; and the utter impossibility of secrecy, all combine to render them unfitted for the purposes of diplomacy. And our
1 The Federalist, No. 64.
358 CONSTITUTION OF THE U. STATES. [BOOK III.
own experience during the confederation abundantly demonstrated all the evils, which the theory would lead us to expect.1 Besides; there are tides in national affairs, as well as in the affairs of private life. To discern and profit by them is the part of true political wisdom; and the loss of a week, or even of a day, may sometimes change the whole aspect of affairs, and render negotiations wholly nugatory, or indecisive. The loss of a battle, the death of a prince, the removal of a minister, the pressure or removal of fiscal embarrassments at the moment, and other circumstances, may change the whole posture of affairs, and ensure success, or defeat the best concerted project.2 The executive, having a constant eye upon foreign affairs, can promptly meet, and even anticipate such emergencies, and avail himself of all the advantages accruing from them; while a large assembly would be coldly deliberating on the chances of success, and the policy of opening negotiations. It is manifest, then, that congress would not be a suitable depositary of the power.
§ 1505. The same difficulties would occur from confiding it exclusively to either branch of congress. Each is too numerous for prompt and immediate action, and secrecy. The matters in negotiations, which usually require these qualities in the highest degree, are the preparatory and auxiliary measures; and which are to be seized upon, as it were, in an instant. The president could easily arrange them. But the house, or the senate, if in session, could not act, until after great delays; and in the recess could not act all. To have entrusted the power to either would have been to relinquish the benefits of the constitutional agency of the
1 The Federalist, No. 64.
2 Id. No. 64.
CH. XXXVII.] EXECUTIVE--POWERS. 359
president in the conduct of foreign negotiations. It is true, that the branch so entrusted might have the option to employ the president in that capacity; but they would also have the option of refraining from it; and it cannot be disguised, that pique, or cabal, or.personal or political hostility, might induce them to keep their pursuits at a distance from his inspection and participation. Nor could it be expected, that the president, as a mere ministerial agent of such branch, would enjoy. the confidence and respect of foreign powers to the same extent, as he would, as the constitutional representative of the nation itself; and his interposition would of course have less efficacy and weight.1
§ 1506. On the other hand, considering the delicacy and extent of the power, it is too much to expect, that a free people would confide to a single magistrate, however respectable, the sole authority to act conclusively, as well as exclusively, upon the subject of treaties. In England, the power to make treaties is exclusively vested in the crown.2 But however proper it may be in a monarchy, there is no American statesman, but must feel, that such a prerogative in an American president would be inexpedient and dangerous.3 It would be inconsistent with that wholesome jealousy, which all republics ought to cherish of all depositaries of power; and which, experience teaches us, is the best security against the abuse of it.4 The check, which acts upon the mind from the consideration, that what is done is but preliminary, and requires the assent of other independent minds to give it a legal conclusiveness, is a restraint, which awakens caution, and compels to deliberation.
1 The Federalist, No. 75.
2 1 Black. Comm. 957; The Federalist, No. 69.
3 The Federalist, No. 75.
4 Id. No. 75.
360 CONSTITUTION OF THE U. STATES. [BOOK III.
§ 1507. The plan of the constitution is happily adapted to attain all just objects in relation to foreign negotiations. While it confides the power to the executive department, it guards it from serious abuse by placing it under the ultimate superintendence of a select body of high character and high responsibility. It is indeed clear to a demonstration, that this joint possession of the power affords a greater security for its just exercise, than the separate possession of it by either.1 The president is the immediate author and finisher of all treaties; and all the advantages, which can be derived from talents, information; integrity, and deliberate investigation on the one hand, and from secrecy and despatch on the other, are thus combined in the system.2 But no treaty, so formed, becomes binding upon the country, unless it receives the deliberate assent of two thirds of the senate. In that body all the states are equally represented; and, from the nature of the appointment and duration of the office, it may fairly be presumed at all times to contain a very large portion of talents, experience, political wisdom, and sincere patriotism, a spirit of liberality, and a deep devotion to all the substantial interests of the country. The constitutional check of requiring two thirds to confirm a treaty is, of itself, a sufficient guaranty against any wanton sacrifice of private rights, or any betrayal of public privileges. To suppose otherwise would be to suppose, that a representative republican government was a mere phantom; that the state legislatures were incapable, or unwilling to choose senators possessing due qualifications; and that the people would voluntarily confide power to those, who were ready to promote
1 The Federalist, No. 75.
2 Id. No. 64.
CH. XXXVII.] EXECUTIVE--POWERS. 361
their ruin, and endanger, or destroy their liberties. Without supposing a case of utter indifference, or utter corruption in the people, it would be impossible, that the senate should be so constituted at any time, as that the honour and interests of the country would not be safe in their hands. When such an indifference, or corruption shall have arrived, it will be in vain to prescribe any remedy; for the constitution will have crumbled into ruins, or have become a mere shadow, about which it would be absurd to disquiet ourselves.1
§ 1508. Although the propriety of this delegation of the power seems, upon sound reasoning, to be incontestible; yet few parts of the constitution were assailed with more vehemence.2 One ground of objection was, the trite topic of an intermixture of the executive and legislative powers; some contending, that the president ought alone to possess the prerogative of making treaties; and others, that it ought to be exclusively deposited in the senate. Another objection was, the smallness of the number of the persons, to whom the power was confided; some being of opinion, that the house of representatives ought to be associated in its exercise; and others, that two thirds of all the members of the senate, and not two thirds of all the members present, should be required to ratify a treaty.3
§ 1509. In relation to the objection. that the power ought to have been confided exclusively to the president, it may be suggested in addition to the preceding remarks, that, however safe it may be in governments, where the executive magistrate is an hereditary monarch, to commit to him the entire power of making
1 The Federalist, No. 64.
2 See 2 Elliot's Debates, 367 to 379.
3 The Federalist, No. 75.
362 CONSTITUTION OF THE U. STATES. [BOOK III.
treaties, it would be utterly unsafe and improper to entrust that power to an executive magistrate chosen for four years. It has been remarked, and is unquestionably true, that an hereditary monarch, though often the oppressor of his people, has personally too much at stake in the government to be in any material danger of corruption by foreign powers, so as to surrender any important rights or interests. But a man, raised from a private station to the rank of chief magistrate for a short period, having but a slender or moderate fortune, and no very deep Stake in the society, might sometimes be under temptations to sacrifice duty to interest, which it would require great virtue to withstand. If ambitious, he might be tempted to seek his own aggrandizement by the aid of a foreign power, and use the field of negotiations for this purpose. If avaricious, he might make his treachery to his constituents a vendible article at an enormous price. Although such occurrences are not ordinarily to be expected; yet the history of human conduct does not warrant that exalted opinion of human nature, which would make it wise in a nation to commit its most delicate interests and momentous concerns to the unrestrained disposal of a single magistrate.1 It is far more wise to interpose checks upon the actual exercise.of the power, than remedies to redress, or punish an abuse of it.
§ 1510. The impropriety of delegating the power exclusively to the senate has been already sufficiently considered. And, in addition to what has been already urged against the participation of the house of representatives in it, it may be remarked, that the house of representatives is for other reasons far less fit, than 'the
1 The Federalist, No. 75.
CH. XXXVII.] EXECUTIVE--POWERS. 363
senate, to be the exclusive depositary of the power, or to hold it in conjunction with the executive. In the first place, it is a popular assembly, chosen immediately from the people, and representing, in a good measure, their feelings and local interests; and it will on this account be more likely to be swayed by such feelings and interests, than the senate, chosen by the states through the voice of the state legislatures. In the next place, the house of representatives are chosen for two years only; and the internal composition of the body is constantly changing so, as to admit of less certainty in their opinions, and their measures, than would naturally belong to a body of longer duration. In the next place, the house of representatives is far more numerous, than the senate, and will be constantly increasing in numbers so, that it will be more slow in its movements, and more fluctuating in its councils. In the next place, the senate will naturally be composed of persons of more experience, weight of character, and talents, than the members of the house. Accurate knowledge of foreign politics, a steady and systematic adherence to the same views, nice and uniform sensibility to national character, as well as secrecy, decision, and despatch, are required for a due execution of the power to make treaties. And, if these are not utterly incompatible with the genius of a numerous and variable body, it must be admitted, that they will be more rarely found there, than in a more select body, having a longer duration in office, and representing, not the interests of private constituents alone, but the sovereignty of states.
§ 1511. Besides; the very habits of business, and the uniformity and regularity of system, acquired by a long possession of office, are of great concern in all
cases of this sort. The senators from the longer duration of their office will have great opportunities of extending their political information, and of rendering their experience more and more beneficial to their country. The members are slowly changed; so, that the body will at all times, from its very organization, comprehend a large majority of persons, who have been engaged for a considerable time in public duties, and foreign affairs. If, in addition to all these reasons, it is considered, that in the senate all the states are equally represented, and in the house very unequally, there can be no reasonable doubt, that the senate is in all respects a more competent, and more suitable depositary of the power, than the house, either with, or without the co-operation of the executive. And most of the reasoning applies with equal force to any participation by the house in the treaty-making functions. It would add an unwieldly machinery to all foreign operations; and retard, if not wholly prevent, the beneficial purposes of the power.1 Yet such a scheme has not been without warm advocates. And it has been thought an anomaly, that, while the power to make war was confided to both branches of congress, the power to make peace was within the reach of one, with the co-operation of the president.2
§ 1512. But there will be found no inconsistency, or inconvenience in this diversity of power. Considering the vast expenditures and calamities, with which war is attended, there is certainly the strongest ground for
1 The Federalist, No. 64, 75. -- In the convention a proposition was made
to add the house to the senate, in advising and consenting to treaties.
But it was rejected by the vote of ten states against one. Journ. of
Convention, 339, 340.
2 1 Tuck. Black. Comm. App. 338, 339.
CH. XXXVII.] EXECUTIVE--POWERS. 365
confiding it to the collected wisdom of the national councils. It requires one party only to declare war; but it requires the co-operation and consent of both belligerents to make peace. No negotiations are necessary in the former case; in the latter, they are indispensable. Every reason, therefore, for entrusting the treaty-making power to the president and senate in common negotiations, applies a fortiori to a treaty of peace. Indeed, peace is so important to the welfare of a republic, and so suited to all its truest interests, as well as to its liberties, that it can scarcely be made too facile. While, on the other hand, war is at all times so great an evil, that it can scarcely be made too difficult. The power to make peace can never be unsafe for the nation in the hands of the president and two thirds of the senate. The power to prevent it, may not be without hazard in the hands of the house of representatives, who may be too much under the control of popular excitement, or legislative rivalry, to act at all times with the same degree of impartiality and caution. In the convention, a proposition to except treaties of peace from the treaty-making power was, at one time, inserted, but was afterwards deliberately abandoned.1
§ 1513. In regard to the objection, that the arrangement is a violation of the fundamental rule, that the legislative and executive departments ought to be kept separate; it might be sufficient to advert to the considerations stated in another place, which show, that the true sense of the rule does not require a total separation.2 But, in truth, the nature of the power of making treaties indicates a peculiar propriety in the Union of the executive and the senate in the exercise of it.
1 Journ. of Convention, 226, 395, 326, 341, 342.
2 See Vol. II. 524, et seq.
366 CONSTITUTION OF THE U. STATES. [BOOK III.
Though some Writers on government place this power in the class of executive authorities; yet, it is an arbitrary classification; and, if attention is given to its operation, it will be found to partake mere of the legislative, than of the executive character. The essence of legislation is to prescribe law, or regulations for society; while the execution of those laws and regulations, and the employment of the common strength, either for that purpose, or for the common defence, seem to comprize all the functions of the executive magistrate. The power of making treaties is plainly neither the one, nor the other. It relates, neither to the execution of subsisting laws, nor to the enactment of new ones; and still less does it relate to the exertion of the common strength. Its objects are contracts with foreign nations, which have the force of law with us; but, as to the foreign sovereigns, have only the obligation of good faith. Treaties are not rules prescribed by thesovereign to his subjects; but agreements between sovereign and sovereign. The treaty-making power, therefore, seems to form a distinct department, and to belong, properly, neither to the legislature, nor the executive, though it may be said to partake of qualities common to each. The president, from his unity, promptitude, and facility of action, is peculiarly well adapted to carry on the initiative processes; while the senate, representing all the states, and engaged in legislating for the interests of the whole country, is equally well fitted to be entrusted with the power of ultimate ratification.1
§ 1514. The other objection, which would require a concurrence of two thirds of all the members of the
1 The Federalist, No. 75.
CH. XXXVII.] EXECUTIVE--POWERS. 367
senate, and not merely of two thirds of all present, is not better founded.1 All provisions, which require more, than a majority of any body to its resolutions, have (as has been already intimated) a direct tendency to embarrass the operations of the government, and an indirect one to subject the sense of the majority to that of the minority. This consideration ought never to be lost sight of; and very strong reasons ought to exist to justify any departure from the ordinary rule, that the majority ought to govern. The constitution has, on this point, gone as far in the endeavour to secure the advantage of numbers in the formation of treaties, as can be reconciled either with the activity of the public councils, or with a reasonable regard to the sense of the major part of the community. If two thirds of the whole number of members had been required, it would, in many cases, from a non-attendance of a part, amount in practice to a necessity almost of unanimity. 'The history of every political establishment, in which such a principle has prevailed, is a history of impotence, perplexity, and disorder. Proofs of this position may be easily adduced from the examples of the Roman tribuneship, the Polish diet, and the states general of the Netherlands, and even from our own experience under the confederation.2 Under the latter instrument the concurrence of nine states was necessary, not only to making treaties, but to many other acts of a less important character; and measures were often defeated by the non-attendance of members, sometimes by design, and sometimes by accident.3 It is hardly possible, that a treaty could be ratified by surprise, or tak-
1 2 Elliot's Debates, 367 to 379.
2 The Federalist, No. 75; Id. No. 22.
3 Ibid. and 1 Elliot's Debates, 44, 45.
868 CONSTITUTION OF THE U. STATES. BOOK III.
ing advantage of the accidental absence of a few members; and certainly the motive to punctuality in attendance will be greatly increased by making such ratification to depend upon the numbers present.1
§ 1515. The Federalist has taken notice of the difference between the treaty-making power in England, and that in America in the following terms: "The president is to have power, with the advice and consent of the senate, to make treaties, provided two thirds of the members present concur. The king of Great Britain is the sole and absolute representative of the nation, in all foreign transactions. He can, of his own accord, make treaties of peace, commerce, alliance, and of every other description. It has been insinuated, that his authority, in this respect, is not conclusive; and that his conventions with foreign powers are subject to the revision, and stand in need of the ratification of parliament. But, I believe, this doctrine was never heard of, till it was broached upon the present occasion. Every jurist of that kingdom, and every other man acquainted with its constitution, knows, as an established fact, that the prerogative of making treaties exists in the crown in its utmost plenitude; and that the compacts entered into by the royal authority have the most complete legal validity. and perfection, independ-
1 The Federalist, No. 75, 22; 2 Elliot's Debates, 368. -- In the
convention a proposition to require the assent of two thirds of all the
members of the senate was rejected by the vote of eight states against
three. Another to require, that no treaty shall be made, unless two thirds
of the whole number of senators were present, was also rejected by the vote
of six states against five. Another, to require a majority of all the
members of the senate to make a treaty, was also rejected by the vote of
six states against five. Another, to require, that all the members should
be summoned, and have time to attend, shared a like fate, by the vote of
eight states against three. Journal of Convention, 343, 344.
CH. XXXVII.] EXECUTIVE--POWERS. 369
ent of any other sanction. The parliament, it is true, is sometimes seen employing itself in altering the existing laws, to conform them to the stipulations in a new treaty; and this may have, possibly, given birth to the imagination, that its co-operation was necessary to the obligatory efficacy of the treaty. But this parliamentary interposition proceeds from a different cause; from the necessity of adjusting a most artificial and intricate system of revenue and commercial laws to the changes made in them by the operation of the treaty; and of adapting new provisions and precautions to the new state of things, to keep the machine from running into disorder. In this respect, therefore, there is no comparison between the. intended power of the president, and the actual power of the British sovereign. The one can perform alone, what the other can only do with the concurrence of a branch of the legislature. It must be admitted, that, in this instance, the power of the federal executive would exceed that of any state executive. But this arises naturally from the exclusive possession, by the Union, of that part of the sovereign power, which relates to treaties. If the confederacy were to be dissolved, it would become a question, whether the executives of the several states were not solely invested with that delicate and important prerogative."1
§ 1516. Upon the whole it is difficult to perceive, how the treaty-making power could have been better deposited, with a view to its safety and efficiency. Yet it was declaimed against with uncommon energy, as dangerous to the commonwealth, and subversive of
1 See also the opinion of Iredell J. in Ware v. Hylton, 3 Dall. 272 to 276.
370 CONSTITUTION OF THE U. STATES. [BOOK III.
public liberty.1 Time has demonstrated the fallacy of such prophecies; and has confirmed the belief of the friends of the constitution, that it would be, not only safe, but full of wisdom and sound policy. Perhaps no stronger illustration, than this, can be found, of the facility of suggesting ingenious objections to any system, calculated to create public alarm, and to wound public confidence, which, at the same time, are unfounded in human experience, or in just reasoning.
§ 1517. Some doubts appear to have been entertained in the early stages of the government, as to the correct exposition of the constitution in regard to the agency of the senate in the formation of treaties. The question was, whether the agency of the senate was admissible previous to the negotiation, so as to advise on the instructions to be given to the ministers; or was limited to the exercise of the power of advice and consent, after the treaty was formed; or whether the president possessed an option to adopt one mode, or the other, as his judgment might direct.2 The practical exposition assumed on the first occasion, which seems to have occurred in President Washington's administration, was, that the option belonged to the executive to adopt either mode, and the senate might advise before, as well as after, the formation of a treaty.3 Since that period, the senate have been rarely, if ever, consulted, until after a treaty has been completed, and laid before them for ratification.4 When so laid before the senate, that body is in the habit of deliberating upon it, as, indeed, it does on all executive business, in secret,
1 2 Elliot's Debates, 367 to 379.
2 5 Marshall's Life of Washington, ch. 2, p. 223.
3 Executive Journal, 11th August, 1790, p. 60, 61.
4 Rawle on Const. ch. 7, p. 63.
CH. XXXVII] EXECUTIVE--POWERS. 371
and with closed doors. The senate may wholly reject the treaty, or advise and consent to a ratification of part of the articles, rejecting others, or recommend additional or explanatory articles. In the event of a partial ratification, the treaty does not become the law of the land, until the president and the foreign sovereign have each assented to the modifications proposed by the senate.1 But, although the president may ask the advice and consent of the senate to a treaty, he is not absolutely bound by it; for he may, after it is given,
1 Rawle on Const. ch. 7, p. 63, 64. -- Before the ratification of
treaties, it is common for the senate to require, and. for the president to
lay before them, all the official documents respecting the negotiations, to
assist their judgment. But the house of representatives have no
constitutional right to insist on the production of them; and it is matter
of discretion with the president, whether to comply, or not, with the
demand of the house, which is but in the nature of a request. In the case
of the British Treaty of 1794, President Washington refused to lay the
papers before the house of representatives, when requested by them so to
do. See his Massager 24th of March, 1796; 1 Tuck. Black. Comm. App. 334; 5
Marshall's Life of Washington, ch. 8, p. 654; 4 Jefferson's Corresp. 464,
465; Rawle on Const. ch. 16, p. 171.
In the early part of President Washington's administration, he occasionally met the senate in person, to confer with them on the executive business confided to them by the constitution. But this practice was found very inconvenient, and was soon abandoned. In June, 1853, the senate appointed a committee to hold a conference with President Madison, respecting his nomination of a minister to Sweden, then before them for ratification. Bat he declined it, considering, that it was incompatible with the due relations between the executive, and other departments of the government* It is believed,that the practice has been ever since abandoned.
Mr. Jefferson and the cabinet, (with tile exception of Mr. Hamilton,) in President Washington's administration, seem to have been of opinion, that neither branch of the legislature had a right to call upon the heads of departments, except through calls on the president for information or papers. (4 Jefferson's 'Corresp. 463, 461, 465.) The practice has, however, of late years, settled down in favour of making direct calls on the heads of the departments. Rawle on Const. ch. 16, p. 171, 172.
* Sergeant on Const. ch. 31, (2d edition,) p. 371; 5 Niles's Register, 213 290: Id. 276, 340; 2 Executive Journal, 354, 381, 382. See also 2 Executive Journal, 353, 354, 388, 383.
still constitutionally refuse to ratify it. Such an occurrence will probably be rare, because the president will scarcely incline to lay a treaty before the senate, which he is not disposed to ratify.1
§ 1518. The next part of the clause respects appointments to office. The president is to nominate, and by and with the advice and consent of the senate, to appoint ambassadors, other public ministers, and consuls, judges of the Supreme Court, and other officers, whose appointments are not otherwise provided for.
§ 1519. Under the confederation, an exclusive power was given to congress of "sending and receiving ambassadors."2 The term "ambassador," strictly construed, (as would seem to be required by the second article of that instrument,) comprehends the highest grade only of public ministers;3 and excludes those grades, which the United States would be most likely to prefer, whenever foreign embassies may be necessary. But under no latitude of construction could the term, "ambassadors," comprehend consuls. Yet it was found necessary by congress to employ the inferior grades of ministers, and to send and receive consuls. It is true, that the mutual appointment of consuls might have been provided for by treaty; and where no treaty existed, congress might perhaps have had the authority under the ninth article of the confederation, which conferred a general authority to appoint officers managing the general affairs of the United States. But the adrnis-
1 Rawle on the Constitution, ch. 20, p. 194, 195; 4 Jefferson's
Correspondence, 317, 318.
2 Article 9.
3 An enumeration of the various grades and powers or foreign ministers property belongs to a treatise on public law. The learned reader, however, will find ample information in the treatises of Grotius, Vattel, Martens, and Wiequefort.
CH. XXXVII.] EXECUTIVE--APPOINTMENTS. 373
sion of foreign consuls into the United States, when not stipulated for by treaty, was no where provided for.1 The whole subject was full of embarrassment and constitutional doubts; and the provision in the constitution, extending the appointment to other public ministers and consuls, as well as to ambassadors, is a decided improvement upon the confederation.
§ 1520. In the first draft of the constitution, the power was given to the president to appoint officers in all cases, not otherwise provided for by the constitution; and the advice and consent of the senate was not required.2 But in the same draft, the power to appoint ambassadors and judges of the Supreme Court was given. to the senate.3 The advice and consent of the senate, and the appointment by the president of ambassadors, and ministers, consuls, and judges of the Supreme Court, was afterwards reported by a committee, as an amendment, and was unanimously adopted.4
§ 1521. The mode of appointment to office, pointed out by the constitution, seems entitled to peculiar commendation. There are several ways, in which in ordinary cases the power may be vested. It may be confided to congress; or to one branch of the legislature; or to the executive alone; or to the executive in concurrence with any selected branch. The exercise of it by the people at large will readily be admitted by all considerate statesmen, to be impracticable, and therefore need not be examined. The suggestions, already made upon the treaty-making power, and the inconveniences of vesting it in congress, apply with great force to that of vesting the power of appointment. to office in the
1 The Federalist, No. 49.
2 Journ. of Convention, p. 225.
3 Id. 223.
4 Id. 325, 326, 340, 362.
374 CONSTITUTION OF THE U. STATES. [BOOK III.
same body. It would enable candidates for office to introduce all sorts of cabals, intrigues, and coalitions into congress; and not only distract their attention from their proper legislative duties; but probably in a very high degree influence all legislative measures. A new source of division and corruption would thus be infused into the public councils, stimulated by private interests, and pressed by personal solicitations. What would be to be done, in case the senate and house should disagree in an appointment? Are they to vote in convention, or as distinct bodies? There would be practical difficulties attending both courses; and experience has not justified the belief, that either would conduce either to good appointments, or to due responsibility.1
§ 1522. The same reasoning would apply to vesting the power exclusively in either branch of the legislature. It would make the patronage of the government subservient to private interests, and bring into suspicion the motives and conduct of members of the appointing body. There would be great danger, that the elections at the polls might be materially influenced by this power, to confer, or to withhold favours of this sort.2
§ 1523. Those, who are accustomed to profound reflection upon the human character and human experience, will readily adopt the opinion, that one man of discernment is better fitted to analyze and estimate the peculiar qualities, adapted to particular offices, than any body of men of equal, or even of superior discernment.3 His sole and undivided responsibility will naturally beget a livelier sense of duty, and a more ex-
1 See The Federalist, No. 76, 77.
3 The Federalist, No. 76; 2 Wilson's Law Lect. 191, 199.
CH. XXXVII.] EXECUTIVE--APPOINTMENTS. 375
act regard to reputation. He will inquire with more earnestness, and decide with more impartiality. He will have fewer personal attachments to gratify, than a body of men; and will be less liable to be misled by his private friendships and affections; or, at all events, his conduct will be more open to scrutiny, and less liable to be misunderstood. If he ventures upon a system of favoritism, he will not escape censure, and can scarcely avoid public detection and disgrace. But in a public body appointments will be materially influenced by party attachments and dislikes; by private animosities, and antipathies, and partialities; and will be generally founded in compromises, having little to do with the merit of candidates, and much to do with the selfish interests of individuals and cabals. They will be too much governed by local, or sectional, or party arrangements.1 A president, chosen from the nation at large, may well be presumed to possess high intelligence, integrity, and sense of character. He will be compelled to consult public opinion in the most important appointments; and must be interested to vindicate the propriety of his appointments by selections from those, whose qualifications are unquestioned, and unquestionable. If he should act otherwise, and surrender the public patronage into the hands of profligate men, or low adventurers, it will be impossible for him long to retain public favour. Nothing, no, not even the whole influence of party, could long screen him from the just indignation of the people. Though slow, the ultimate award of popular opinion would stamp upon his conduct its merited infamy. No president, however weak, or credulous, (if such a per-
1 The Federalist, No. 76.
376 CONSTITUTION OF THE U. STATES. [BOOK III.
son could ever under any conjuncture of circumstances obtain the office,) would fail to perceive, or to act upon admonitions of this sort. At all events, he would be less likely to disregard them, than a large body of men, who would share the responsibility, and encourage each other in the division of the patronage of the government.
§ 1524. But, though these general considerations might easily reconcile us to the choice of vesting the power of appointment exclusively in the president, in preference to the senate, or house of representatives alone; the patronage of the government, and the appointments to office are too important to the public weifare, not to induce great hesitation in vesting them exclusively in the president. The power may be abused; and, assuredly, it will be abused, except in the hands of an executive of great firmness, independence, integrity, and public spirit. It should never be forgotten, that in a republican government offices are established, and are to be filled, not to gratify private interests and private attachments; not as a means of corrupt influence, or individual profit; not for cringing favourites, or court sycophants; but for purposes of the highest public good; to give dignity, strength, purity, and energy to the administration of the laws. It would not, therefore, be a wise course to omit any precaution, which, at the same time, that it should give to the president a power over the appointments of those, who are in conjunction with himself to execute the laws, should also interpose a salutary check upon its abuse, acting by way of preventive, as well as of remedy.
§ 1525. Happily, this difficult task has been achieved by the constitution. The president is to nominate, and thereby has the sole power to select for office; but his
nomination cannot confer office, unless approved by a majority of the senate. His responsibility and theirs is thus complete, and distinct. He can never be compelled to yield to their appointment of a man unfit for office; and, on the other hand, they may withhold their advice and consent from any candidate, who in their judgment does not possess due qualifications for office. Thus, no serious abuse of the power can take place without the co-operation of two co-ordinate branches, of the government, acting in distinct spheres; and, if there should be any improper concession on either side, it is obvious, that from the structure and changes, incident to each department, the evil cannot long endure, and will be remedied, as it should be, by the elective franchise. The consciousness of this check will make the president more circumspect, and deliberate in his nominations for office. He will feel, that, in case of a disagreement of opinion with the senate, his principal vindication must depend upon the unexceptionable character of his nomination. And in case of a rejection, the most, that can be said, is, that he had not his first choice. He will still have a wide range of selection; and his responsibility to present another candidate, entirely qualified for the office, will be complete and unquestionable.
§ 1526. Nor is it to be expected, that the senate will ordinarily fail of ratifying the appointment of a suitable person for the office. Independent of the desire, which such a body may naturally be presumed to feel, of having offices suitably filled, (when they cannot make the appointment themselves,) there will be a responsibility to public opinion for a rejection, which will overcome all common private wishes. Cases, indeed, may be imagined, in which the senate
from party motives, from a spirit of opposition, and even from motives of a more private nature, may reject a nomination absolutely unexceptionable. But such occurrences will be rare. The more common error, (if there shall be any) will be too great a facility to yield to the executive wishes, as a means of personal, or popular favour. A president will rarely want means, if he shall choose to use them, to induce some members of such a body to aid his nominations; since a correspondent influence may be fairly presumed to exist, to gratify such persons in other recommendations for office, and thus to make them indirectly the dispensers of local patronage. It will be, principally, with regard to high officers, such as ambassadors, judges, heads of departments, and other appointments of great public importance, that the senate will interpose to prevent an unsuitable choice. Their own dignity, and sense of character, their duty to their country, and their very title to office will be materially dependent upon a firm discharge of their duty on such occasions.1
§ 1527. Perhaps the duties of the president, in the discharge of this most delicate and important duty of his office, were never better summed up, than in the following language of a distinguished commentator.2 "A proper selection and appointment of subordinate officers is one of the strongest marks of a powerful mind. It is a duty of the president to acquire, as far
1 The Federalist, No. 76, 77; 1 Kent's Comm. Lect. 13, p. 269; Rawle on
Const. ch. 14, p. 162, &c.; 1 Tucker's Black. Comm. App. 340 to 343. -- The
whole reasoning of the Federalist, on this subject, is equally striking for
its sound practical sense and its candour. I have freely used it in the
foregoing summary. The Federalist, No. 76.
2 Rawle on Const. ch. 14, p. 164.
CH. XXXVII.] EXECUTIVE--APPOINTMENTS. 379
as possible, an intimate knowledge of the capacities and characters of his fellow citizens; to disregard the importunities of friends; the hints or menaces of enemies; the bias of party, and the hope of popularity. The latter is sometimes the refuge of feeble-minded men; but its gleam is transient, if it is obtained by a dereliction of honest duty and sound discretion. Popular favour is best secured by carefully ascertaining, and strictly pursuing the true interests of the people. The president himself is elected on the supposition, that he is the most capable citizen to understand, and promote those interests; and in every appointment he ought to consider himself as executing a public trust of the same nature. Neither should the fear of giving offence to the public, or pain to the individual, deter him from the immediate exercise of his power of removal, on proof of incapacity, or infidelity in the subordinate officer. The public, uninformed of the necessity, may be surprised, and at first dissatisfied; but public approbation ultimately accompanies the fearless and upright discharge of duty."
§ 1528. It was objected by some persons, at the time of the adoption of the constitution, that this union of the executive with the senate in appointments would give the president an undue influence over the senate. This argument is manifestly untenable, since it supposes, that an undue influence over the senate is to be acquired by the power of the latter to restrain him. Even, if the argument were well founded, the influence of the president over the senate would be still more increased, by giving him the exclusive power of appointment; for then he would be wholly beyond restraint. The opposite ground was assumed by other persons, who thought the influence of the
senate over the president would by this means become dangerous, if not irresistible.1 There is more plausibility in this suggestion; but it proceeds upon unsatisfactory reasoning. It is certain, that the senate cannot, by their refusal to confirm the nominations of the president, prevent him from the proper discharge of his duty. The most, that can be suggested, is, that they may induce him to yield to their favourites, instead of his own, by resisting his nominations. But if this should happen in a few rare instances, it is obvious, that his means of influence would ordinarily form a counter check. The power, which can originate the disposal of honours and emoluments, is more likely to attract, than to be attracted by the power, which can merely obstruct their course.2 But in truth, in every system of government there are possible dangers, and real difficulties; and to provide for the suppression of all influence of one department, in regard to another, would be as visionary, as to provide, that human passions and feelings should never influence public measures. The most, that can be done, is to provide checks, and public responsibility. The plan of the constitution
1 A practical question of some importance arose soon after the
constitution was adopted, in regard to the appointment of foreign
ministers; whether tim power of the senate over the appointment gave that
body a right to inquire into the policy of making any such appointment, or
instituting any mission; or whether their power was confined to the
consideration of the mere fitness of the person nominated for the office.
If the former were the true interpretation of the senatorial authority,
then they would have a right to inquire into the motives, which should
induce the president to create such a diplomatic mission. It was after
debate decided by a small majority of the senate, in 1792, that they had no
right to enter upon the consideration of the policy, or fitness of the
mission. 5 Marshall's Life of Washington, ch. 5, p. 370, note. But the
senate have on several occasions since that time decided the other way; and
particularly in regard to missions to Russia and Turkey.
2 The Federalist, No. 77.
CH. XXXVII.] EXECUTIVE--APPOINTMENTS. 381
seems as nearly perfect for this purpose, as any one can be; and indeed it has been less censured, than any other important delegation of power in that instrument.1
1 Whether the senate should have a negative on presidential appointments,
was a question, upon which the members of the convention were much divided.
Mr. John Adams (afterwards president) was opposed to it; and a friendly
correspondence took place between him and Mr. Roger Sherman, of
Connecticut. (one of the framers of the constitution,) upon the subject. I
extract from Mr. Pitkin's valuable History of the United States, the
substance of the arguments urged on each side, as they present a general
view of the reasoning, which had influence in the convention.
"To some general observations of Mr. Sherman in favour of this power in the senate, Mr. Adams made the following objections.
"'The negative of the senate upon appointments,' he said 'is liable to the following objections.
"'1. It takes away, or at least it lessens the responsibility of the executive -- our constitution obliges me to say, that it lessens the responsibility of the president. The blame of an hasty, injudicious, weak, or wicked appointment, is shared so much between him and the senate, that his part of it will be too small. Who can censure him, without censuring the senate, and the legislatures who appoint them? all their friends will be interested to vindicate the president, in order to screen them from censure; besides, if an impeachment is brought before them against an officer, are they not interested to acquit him, lest some part of the odium of his guilt should fall upon them, who advised to his appointment?
"'2. It turns the minds and attention of the people to the senate, a branch of the legislature, in executive matters; it interests another branch of the legislature in the management of the executive; it divides the people between the executive sad the senate: whereas all the people ought to be united to watch the executive, to oppose its encroachments, and resist its ambition. Senators and representatives, and their constituents--in short, the aristocratical and democratical divisions of society, ought to be united, on all occasions, to oppose the executive or the monarchical branch, when it attempts to overleap its limits. But how can this union be effected, when the aristocratical branch has pledged its reputation to the executive by consenting to an appointment?
"'3. It has a natural tendency, to excite ambition in the senate. An active. ardent spirit, in that house, who is rich, and able, has a great reputation and influence, will be solicited by candidates for office; not to introduce the idea of bribery, because, though it certainly would force itself in, in other countries, and will probably here, when we
382 CONSTITUTION OF THE U. STATES. [BOOK III.
§ 1529. The other part of the clause, while it leaves to the president the appointment to all offices, not otherwise provided for, enables congress to vest the
grow populous and rich, yet it is not yet, I hope, to be dreaded. But
ambition must come in, already. A senator of great influence will be
naturally ambitious, and desirous of increasing his influence. Will he not
be under a temptation to use his influence with the president, as well as
his brother senators, to appoint persons to office in the several states,
who will exert themselves in elections to get out his enemies or opposers,
both in senate and house of representatives, and to get in his friends,
perhaps his instruments? Suppose a senator, to aim at the treasury office,
for himself, his brother, father, or son. Suppose him to aim at the
president's chair, or vice-president's, at the next election -- or at the
office of war, foreign or domestic affairs, will he not naturally be
tempted to make use of his whole patronage, his whole influence, in
advising to appointments, both with president and senators, to get such
persons nominated, as will exert themselves in elections of president,
vice-president, senators, and house of representatives, to increase his
interests, and promote his views? In this point of view, I am very
apprehensive, that this defect in our constitution will have an unhappy
tendency to introduce corruption of the grossest kinds, both of ambition
and avarice, into all our elections. And this will be the worst of poisons
to our constitution; it will not only destroy the present form of
government, but render it almost impossible to substitute in its place any
free government, even a better limited monarchy, or any other, than a
despotism, or a simple monarchy.
"'4. To avoid the evil under the last head, it will be in danger of dividing the continent into two or three nations, a case that presents no prospect but of perpetual war.
"' 5. This negative on appointments is in danger of involving the senate in reproach, obloquy, censure, and suspicion, without doing any good. Will the senate use their negative or not? -- if not, why should they have it? -- many will censure them for not using it -- many will ridicule them, call them servile, &c., if they do use it. The very first instance of it will expose the senators to the resentment, not only of the disappointed candidate and all his friends, but of the president and all his friends; and those will be most of the officers of government, through the nation.
"'6. We shall very soon have parties formed -- a court and country party -- and these parties will have names given them; one party in the house of representatives will support the president and his measures and ministers -- the other will oppose them -- a similar party will be in the senate -- these parties will struggle with all their art, perhaps with intrigue, perhaps with corruption at every election to increase their own
CH. XXXVII.] EXECUTIVE--APPOINTMENTS. 383
appointment of such inferior officers, as they may think proper, in the president, in the courts of law, or in the heads of departments. The propriety of this dis-
friends, and diminish their opposers. Suppose such parties formed in the
senate, and then consider what factions, divisions, we shall have there,
upon every nomination.
"' 7. The senate have not time. You are of opinion, "that the concurrence of the senate in the appointment to office will strengthen the bands of the executive, and secure the confidence of the people, much better than a select council, and will be less expensive," but in every one of these ideas, I have the misfortune to differ from you. It will weaken the hands of the executive, by lessening the obligation, gratitude, and attachment of the candidate to the president, by dividing his attachment between the executive and legislature, which are natural enemies.
"'Officers of government, instead of having a single eye, and undivided attachment to the executive branch, as they ought to have, consistent with law and the constitution, will be constantly tempted to be factious with their factious patrons in the senate. The president's own officers, in a thousand instances, will oppose his just and constitutional exertions, and screen themselves under the wings of their patrons and party in the legislature. Nor will it secure the confidence of the people; the people will have more confidence in the executive, in executive matters, than in the senate. The people will be constantly jealous of factious schemes in the senators to unduly influence the executive, and of corrupt bargains between the senate and executive, to serve each other's private views. The people will also be jealous, that the influence of the senate will be employed to conceal, connive, and defend guilt in executive officers, instead of being a guard and watch upon them, and a terror to them -- a council selected by the president himself, at his pleasure, from among the senators, representatives, and nation at large, would be purely responsible -- in that case, the senate, as a body, would not be compromised. The senate would be a terror to privy councillors -- its honor would never be pledged to support any measure or instrument of the executive, beyond justice, law, and the constitution. Nor would a privy, council be more expensive. The whole senate must now deliberate on every appointment, and, if they ever find time for it, you will find that a great deal of time will be required and consumed in thin service. Then the president might have a constant executive council; now he has none.
"'I said, under the seventh head, that the senate would not have time. You will find, that the whole business of this. government will be infinitely delayed, by this negative of the senate on treaties and appointments. Indian treaties and consular conventions have been
384 CONSTITUTION OF THE U. STATES. [BOOK III.
cretionary power in congress, to some extent, cannot well be questioned. If any discretion should be allowed, its limits could hardly admit of being exactly defined;
already waiting for months, and the senate have not been able to find a
moment of time to attend to them; and this evil must constantly increase,
so that the senate must be constantly sitting, and must be paid as long as
"'But I have tired your patience. Is there any truth or importance in these broken hints and crude surmises, or hot? To me they appear well founded, and very important.'
"To these remarks Mr. Sherman replied, that he esteemed 'the provision made for appointments to office to be a matter of very great importance, on which the liberties and safety of the people depended, nearly as much as on legislation. If that was vested in the president alone, he might render himself despotic. It was a saying of one of the kings of England, "that while the king could appoint the bishops and judges, he might have what religion and laws he pleased." To give that observation its full effect, they most hold their offices during his pleasure; by such appointments, without control, a power might be gradually established, that would be more formidable than a standing army.
"'It appears to me, that the senate is the most important branch in the government, for the aid and support of the executive, for securing the rights of the individual states, the government of the United States, and the liberties of the people. The executive is not to execute its own will, but the will of the legislature declared by the laws, and the senate, being a branch of the legislature, will be disposed to accomplish that end, and advise to such appointments, as will be most likely to effect it; from their knowledge of the people in the several states, they can give the best information who are qualified for office. And they will, as you justly observe, in some degree lessen his responsibility; yet, will he not have as much remaining as he can well support? and may not their advice enable him to make such judicious appointments, as to render responsibility less necessary? no person can deserve censure, when he acts honestly according to his best discretion.
"'The senators, being chosen by the legislatures of the states, and depending on them for re-election, will naturally be watchful to prevent any infringement of the rights of the states. And the government of the United States being federal, and instituted by a number of sovereign states for the better security of their rights, and advancement of their interests, they may be considered as so many pillars to support it, and by the exercise of the state governments, peace and good order may be preserved in the places most remote from the seat of the federal government, as well as at the centre.
CH. XXXVII.] EXECUTIVE--APPOINTMENTS. 385
and it might fairly be left to congress to act according to the lights of experience. It is difficult to foresee, or to provide for all the combinations of circumstances,
"'I believe this will be a better balance to secure the government, than
three independent negatives would be.
"'I think you admit, in your Defence of the Governments of the United States, that even one branch might serve in .a diplomatic government, like that of the Union; but I think the constitution is much improved by the addition of another branch, and those of the executive and judiciary. This seems to be an improvement on federal government, beyond what has been made by any other states. I can see nothing in the constitution, that will tend to its dissolution, except the article for making amendments.
"'That the evils, that you suggest, may happen in consequence of the power vested in the senate, to aid the executive, appears to me to be but barely possible. The senators, from the provision made for their appointment, will commonly be some of the most respectable citizens in the states, for wisdom and probity, and superior to faction, intrigue, or low artifice to obtain appointments for themselves, or their friends, and any attempts of that kind would destroy their reputation with a free and enlightened people, and so frustrate the end they would have in view. Their being candidates for re-election will probably be one of the most powerful motives (next to that of their virtue) to fidelity in office, and by that means alone would they hope for success. "He that walketh uprightly, walketh surely," is the saying of a divinely inspired writer--they will naturally have the confidence of the people, as they will be chosen by their immediate representatives, as well as from their characters, as men of wisdom and integrity. And I see not why all the branches of government should not harmonize in promoting the great end of their institution. the good and happiness of the people.
"'The senators and representatives being eligible from the citizens at large, and wealth not being a requisite qualification for either, they will be persons nearly equal, as to wealth and other qualifications, so that there seems not to be any principle tending to aristocracy; which, if I understand the term, is a government by nobles, independent of the people, which cannot take place with us, in either respect, without a total subversion of the constitution. I believe the more this provision of the constitution is attended to, and experienced, the more the wisdom and utility of it will appear. As senators cannot hold any other office themselves. they will not be influenced, in their advice to the president, by interested motives. But it is said, they may have friends and kindred to provide for; it is true they may, but when we consider their character and situation, will they not be diffident of nominating a friend, or relative, who may wish for an office, and be well qualified for it, lest it
386 CONSTITUTION OF THE U. STATES. [BOOK III.
which might vary the right to appoint in such cases. In one age the appointment might be most proper in the president; and in another age, in a department.
§ 1530. In the practical course of the government, there does not seem to have been any exact line drawn, who are, and who are not, to be deemed inferior officers in the sense of the constitution, whose appointment does not necessarily require the concurrence of the senate.1 In many cases of appointments, congress have required the concurrence of the senate, where, perhaps, it might not be easy to say, that it was required by the constitution. The power of congress has been exerted
should be suspected to proceed from partiality? And will not their fellow
members have a degree of the same reluctance, lest it should be thought
they acted from friendship to a member of their body? so that their friends
and connexions would stand a worse chance, in proportion to their real
merit, than strangers. But if the president was left to select a council
for himself, though he may be supposed to be actuated by the best motives
-- yet he would be surrounded by flatterers, who would assume the character
of friends and patriots, though they had no attachment to the public good,
no regard to the laws of their country, but influenced wholly by
self-interest, would wish to extend the power of the executive, in order to
increase their own; they would often advise him to dispense with laws, that
should thwart their schemes, and in excuse plead, that it was done from
necessity to promote the public good -- they will use their own influence;
induce the president to use his, to get laws repealed, or the constitution
altered, to extend his powers and prerogatives, under pretext of advancing
the public good, and gradually render the government a despotism. This
seems to be according to the course of human affairs, and what may be
expected from the nature of things. I think, that members of the
legislature would be most likely duly to execute the laws, both in the
executive and judiciary departments."*
1 Rawle on Const. ch. 14, p. 163, 164; 1 Lloyd's Debates. 480 to 600; 2 Lloyd's Debates, 1 to 12; Sergeant on Const. ch. 29, (ch. 31.) -- Whether the beads of departments are inferior officers in the sense of the constitution, was much discussed, in the debate on the organization of the department of foreign affairs, in 1789: The result of the debate seems to have been, that they were not 1 Lloyd's Debates, 480 to 600; 2 Lloyd's Debates, 1 to 12; Sergeant on Const. ch. 29, (ch. 31.)
* 2 Pitkin's Hist. p. 285 to 291.
CH. XXXVII.] EXECUTIVE--APPOINTMENTS. 387
to a great extent, under this clause, in favour of the executive department. The president is by law invested, either solely, or with the senate, with the appointment of all military and naval officers, and of the most important civil officers, and especially of those connected with the administration of justice, the collection of the revenue, and the supplies and expenditures of the nation. The courts of the Union possess the narrow prerogative of appointing their own clerk, and reporter, without any farther patronage. The heads of department are, in like manner, generally entitled to the appointment of the clerks in their respective offices. But the great anomaly in the system is the enormous patronage of the postmaster general, who is invested with the sole, and exclusive authority to appoint, and remove all deputy post-masters; and whose power and influence have thus, by slow degrees, accumulated, until it is, perhaps, not too much to say, that it rivals, if it does not exceed, in value and extent, that of the president himself. How long a power so vast, and so accumulating, shall remain without any check on the part of any other branch of the government, is a question for statesmen, and not for jurists. But it cannot be disguised, that it will be idle to impose constitutional restraints upon high executive appointments, if this power, which pervades every village of the republic, and exerts an irresistible, though silent, influence in the direct shape of office, or in the no less inviting form of lucrative contracts, is suffered to remain with. out scrutiny or rebuke. It furnishes no argument against the interposition of a check, which shall require the advice and consent of the senate to appointments, that the power has not hitherto been abused. In its own nature, the post-office establishment is susceptible of
abuse to such an alarming degree; the whole correspondence of the country is so completely submitted to the fidelity and integrity of the agents, who conduct it; and the means of making it subservient to mere state policy are so abundant, that the only surprise is, that it has not already awakened the public jealousy, and been placed under more effectual control. It may be said, Without the slightest disparagement of any officer, who has presided over it, that if ever the people are to be corrupted, or their liberties are to be prostrated, this establishment will furnish the most facile means,. and be the earliest employed to accomplish such a purpose.1
§ 1531. It is observable, that the constitution makes no mention of any power of removal by the executive of any officers whatsoever. As, however, the tenure of office of no officers, except those in the judicial department, is, by the constitution, provided to be during good behaviour, it follows by irresistible inference, that all others must hold their offices during pleasure, unless congress shall have given some other duration to their office.2 As far as congress constitutionally possess the power to regulate, and delegate the appointment of "inferior officers," so far they may prescribe the term of office, the manner in which, and the persons by whom, the removal, as well as the appointment to office, shall be made.3 But two questions naturally occur upon this subject. The first is, to whom, in the absence
1 It is truly surprising, that, while the learned commentator on
Blackstone hag been so feelingly alive to all other exertions of national
power and patronage, this source of patronage should not have drawn from
him a single remark, except of commendation. 1 Tuck. Black. Comm. App. 264,
2 1 Lloyd's Debates, 511, 512.
3 See Marbury v. Madison, 1 Cranch, 137, 155.
CH. XXXVII.] EXECUTIVE--REMOVALS. 389
of all such legislation, does the power of removal belong; to the appointing power, or to the executive; to the president and senate, who have concurred in the appointment, or to the president alone? The next is, if the power of removal belongs to the executive, in regard to any appointments confided by the constitution to him; whether congress can give any duration of office in such cases, not subject to the exercise of this power of removal?1 Hitherto the latter has remained a merely speculative question, as all our legis-
1 Another question occurred upon carrying into effect the act of congress
of 1821, for reducing the military establishment. President Monroe, on
that occasion, contended, that he had a right, in filling the original
vacancies in the artillery, and in the newly created office of adjutant
general, to place in them any officer belonging to the whole military
establishment, whether of the staff, or of the line. "In filling original
vacancies," said he, "that is, offices newly created, it is my opinion,
that congress have no right, under the constitution, to impose any
restraint, by law, on the power granted to the president, so as to prevent
his making a free election for these offices from the whole body of his
fellow citizens." -- "If the law imposed such a restraint, it would be
void." -- "If the right of the president. to fill these original vacancies,
by the selection of officers from any branch of the whole military
establishment, was denied, he would be compelled to place in them officers
of the same grade, whose corps had been reduced, and they with them. The
effect, therefore, of the law, as to those appointments, would be to
legislate into office, men, who had been already legislated ,at of office,
taking from the president all agency in their appointment." -- (Message,
12th April, 1822; 1 Executive Journal, 286.) The senate wholly disagreed
to this doctrine, contending, that, as congress possessed the power to make
rules and regulations for the land and naval forces, they had a right to
make any, which they thought would promote the public service. This power
had been exercised from the foundation of the government, in respect to the
army and navy. Congress have a right to fix the rule, as to promotions and
appointments. Every promotion is a new appointment, and is submitted to
the senate for confirmation. Congress, in all reductions of the army, have
fixed the rules of reduction, and no executive had hitherto denied their
rightful power so to do, or hesitated to execute such rules, as had been
prescribed. Sergeant on Const. ch. 29, (ch. 31.)
390 CONSTITUTION OF THE U. STATES. [BOOK III.
lation, giving a limited duration to office, recognises the executive power of removal, as in full force.1
§1532. The other is a vastly important practical question; and, in an early stage of the government, underwent a most elaborate discussion.2 The language of the constitution is, that the president "shall nominate, and, by and with the advice and consent of the senate, appoint," &c. The power to nominate does not naturally, or necessarily include the power to remove; and if the power to appoint does include it, then the latterbelongs conjointly to the executive and the senate. In short, under such circumstances, the removal takes place in virtue of the new appointment, by mere operation of law. It results, and is not separable, from the appointment itself.
§ 1533. This was the doctrine maintained with great earnestness by the Federalist;3 and it had a most material tendency to quiet the just alarms of the overwhelming influence, and arbitrary exercise of this prerogative of the executive, which might prove fatal to the personal independence, and freedom of opinion of public officers, as well as to the public liberties of. the country. Indeed, it is utterly impossible not to feel, that, if this unlimited power of removal does exist, it may be made, in the hands of a bold and designing
1 In the debate.in 1789 upon the bill for organizing the department for
foreign affairs, (the department of state,) the very question was
discussed; and the fired vote seems to have expressed the sense of the
legislature. that the power of removal by the executive could not be
abridged by the legislature; st least, not in cases, where the power to
appoint was not subject to legislative delegation. See 5 Marshall's Life
of Washington, ch. 3. p. 196 to 200; 1 Lloyd's Debates, 851 to 366; Id.
450, 480 to 600; 2 Lloyd's Debates, 1 to 12.
2 1 Lloyd's Debates, 351, 366, 450, 480 to 600; 2 Lloyd's Debates, 1 to 12; 5 Marshall's Life of Washington, ch. 3, p. 196 to 200.
3 The Federalist, No. 77.
CH. XXXVII.] EXECUTIVE--REMOVALS. 391
man, of high ambition, and feeble principles, an instrument of the worst oppression, and most vindictive vengeance. Even in monarchies, while the councils of state are subject to perpetual fluctuations and changes, the ordinary officers of the government are permitted to remain in the silent possession of their offices, undisturbed by the policy, or the passions of the favourites of the court. But in a republic, where freedom of opinion and action are guaranteed by the very first principles of the government, if a successful party may first elevate their candidate to office, and then make him the instrument of their resentments, or their mercenary bargains; if men may be made spies upon the actions of their neighbours, to displace them from office; or if fawning sycophants upon the popular leader of the day may gain his patronage, to the exclusion of worthier and abler men, it is most manifest, that elections will be corrupted at their very source; and those, who seek office, will have every motive to delude, and deceive the people. It was not, therefore, without reason, that, in the animated discussions already alluded to, it was urged, that the power of removal was incident to the power of appointment. That it would be a most unjustifiable construction of the constitution, and of its implied powers, to hold otherwise. That such a prerogative in the executive was in its own nature monarchical and arbitrary; and eminently dangerous to the best interests, as well as the liberties, of the country. It would convert all the officers of the country into the mere tools and creatures of the president. A dependence, so servile on one individual, would deter men of high and honourable minds from engaging in the public service. And if, contrary to expectation, such men should be brought into office, they would be reduced
to the necessity of sacrificing every principle of independence to the will of the chief magistrate, or of exposing themselves to the disgrace of being removed from office, and that too at a time, when it might no longer be in their power to engage in other pursuits.1
§ 1534. The Federalist, while denying the existence of the power, admits by the clearest implication the full force of the argument, thus addressed to such a state of executive prerogative. Its language is: "The consent of that body (the senate) would be necessary to displace, as well as to appoint. A change of the chief magistrate, therefore, could not occasion so violent, or so general a revolution in the officers of the government, as might be expected, if he were the sole disposer of offices. Where a man in any station had given satisfactory evidence of his fitness for it, a new president would be restrained from attempting a change in favour of a person, more agreeable to him, by the apprehension, that a discountenance of the senate might frustrate the attempt, and bring some degree of discredit upon himself. Those, who can best estimate the value of a steady administration, will be most disposed to prize a provision, which connects the official existence of public men with the approbation or disapprobation of that body, which, from the greater permanency of its own composition, will, in all probability, be less subject to inconstancy, than any other member of the government."2 No man can fail to perceive the entire safety of the power of removal if it must thus be exercised in conjunction with the senate.
1 5 Marshall's Life of Washington, ch. 3, p. 198; 1 Lloyd's Debates, 351,
366, 450, 480 to 600.
2 The Federalist, No. 77.
CH. XXXVII.] EXECUTIVE--REMOVALS. 393
§ 1535. On the other hand, those, who after the adoption of the constitution held the doctrine, (for before that period it never appears to have been avowed by any of its friends, although it was urged by its opponents, as a reason for rejecting it,) that the power of removal belonged to the president, argued, that it resulted from the nature of the power, and the convenience, and even necessity of its exercise. It was clearly in its nature a part of the executive power, and was indispensable for a due execution of the laws, and a regular administration of the public affairs. What would become of the public interests, if during the recess of the senate the president could not remove an unfaithful public officer? If he could not displace a corrupt ambassador, or head of department, or other officer engaged in the finances, or expenditures of the government? If the executive, to prevent a non-execution of the laws, or a non-performance of his own proper functions, had a right to suspend an unworthy officer from office, this power was in no respect distinguishable from a power of removal. In fact, it is an exercise, though in a more moderated form, of the same power. Besides; it was argued, that the danger, that a president would remove good men from office was wholly imaginary. It was not by the splendour attached to the character of a particular president like Washington, that such an opinion was to be maintained. It was founded on the structure of the office. The man, in whose favour a majority of the people of the United States would unite, to elect him to such an office, had every probability at least in favour of his principles. He must be presumed to possess integrity, independence, and high talents. It would be impossible, that he should abuse the patronage of the government, or his power of removal, to the
base purposes of gratifying a party, or of ministering to his own resentments, or of displacing upright and excellent officers for a moro difference of opinion. The public odium, which would inevitably attach to such conduct, would be a perfect security against it. And, in truth, removals made from such motives, or with a view to bestow the offices upon dependents, or favourites, would be an impeachable offence.1 One of the most distinguished framers of the constitution 2 on that occasion after having expressed his opinion decidedly in favour of the existence of the power of removal in the executive, added: "In the first place he will be impeachable by this house before the senate for such an act of mal-administration; for I contend, that the wanton removal of meritorious officers would subject him to impeachment, and removal from his high trust."3
§ 1536. After a most animated discussion, the vote finally taken in the house of representatives was affirmative of the power ofremoval in the president, without any co-operation of the senate, by the vote of thirtyfour members against twenty.4 In the senate the clause in the bill, affirming the power, was carried by the casting vote of the vice-president.5
§ 1537. That the final decision of this question so made was greatly influenced by the exalted character of the president, then in office, was asserted at the time, and has always been believed. Yet the doctrine
1 1 Lloyd's Debates, 351, 366, 450, 480 to 600; 2 Lloyd's Debates, 1 to
12; 4 Elliot's Debates, 141 to 207; 5 Marsh. Life of Washington, ch. 3, p.
196 to 200.
2 Mr. Madison, 1 Lloyd's Debates, 503.
4 5 Marsh. Life of Washington, ch. 3, p. 199; I Lloyd's Debates, 599; 2 Lloyd's Debates, 19.
5 Senate Journal, July 18, 1789, p. 42.
CH. XXXVII.] EXECUTIVE--REMOVALS. 395
was opposed, as well as supported, by the highest talents and patriotism of the country. The public, however, acquiesced in this decision; and it constitutes, perhaps, the most extraordinary case in the history of the government of a power, conferred by implication on the executive by the assent of a bare majority of congress, which has not been.questioned on many other occasions.1 Even the most jealous advocates of state rights seem to have slumbered over this vast reach of authority; and have left it untouched, as the neutral ground of controversy, in which they desired to reap no harvest, and from which they retired without leaving any protestations of title or contest.2 Nor is this general acquiescence and silence without a satisfactory explanation. Until a very recent period, the power had been exercised in few cases, and generally in such, as led to their own vindication. During the administration of President Washington few removals were made, and none without cause; few were made in that of the first President Adams. In that of President Jefferson the circle was greatly enlarged; but yet it was kept within narrow bounds, and with an express disclaimer of the right to remove for differences of opinion, or otherwise, than for some clear public good. In the administrations of the subsequent presidents, Madison, Monroe, and J.Q. Adams, a general moderation and forbearance were exercised with the approbation of the country, and without disturbing the harmony of the system. Since the induction into office of President Jackson,
1 1 Kent's Comm. Lect. 14, p. 289, 290.
2 Mr. Tucker in his Commentaries on Blackstone scarcely alludes to it. (See 1 Tucker's Black. Comm. App. 341.) On the other hand, Mr. Chancellor Kent has spoken on it with becoming freedom and pertinence of remark. 1 Kent's Comm. Lect. 14, p. 289, 290.
396 CONSTITUTION OF THE U. STATES. [BOOK III.
an opposite course has been pursued, and a system of removals and new appointments to office has been pursued so extensively, that it has reached a very large proportion of all the offices of honour and profit in the civil departments of the country. This is matter of fact; and beyond the statement of the fact1 it is not the intention of the Commentator to proceed. This extraordinary change of system has awakened general attention, and brought back the whole controversy, with regard to the executive power of removal, to a severe scrutiny. Many of the most eminent statesmen in the country have expressed a deliberate opinion, that it is utterly indefensible, and that the only sound interpretation of the constitution is that avowed upon its adoption; that is to say, that the power of removal belongs to the appointing power.
1 In proof of this statement, lest it should be questioned, it is proper
to say, that a list of removals (confessedly imperfect) between the 4th of
March, 1829, when President Jackson came into office, and the 4th of March,
1830, has been published, by which it appears, that, during that period,
there were removed, eight persons in the diplomatic corps; thirtysix in the
executive departments; and in the other civil departments including
consuls, marshals, district attorneys, collectors, and other officers of
the customs, registers and receivers, one hundred and ninetynine persons.
These officers include a very large proportion of all the most lucrative
offices under the national government. Besides these, there were removals
in the post-office department, during the same period, of four hundred and
ninety-one persons. (See Mr. Post-Master General Barry's Report of 24th of
March, 1830.) This statement will be found in the National Intelligence of
the 27th of Sept, 1832, with the names of the parties (except
post-masters;) and I am not aware, that it has ever been denied to be
correct. It is impossible for me to vouch for its entire accuracy. It is
not probable, that, from the first organization of the government, in 1789,
down to 1829, the aggregate of all the removals made amounted to one third
of this number. In President Washington's administration of eight years,
only nine removals took place. See Mr. Clayton's Speech in the Senate, on
the 4th of March 1830.
§ 1538. Whether the predictions of the original advocates of the executive power, or those of the opposers of it, are likely, in the future progress of the government, to be realized, must be left to the sober judgment of the community, and to the impartial award of time. If there has been any aberration from the true constitutional exposition of the power of removal, (which the reader must decide for himself,) it will be difficult, and perhaps impracticable, after forty years experience, to recall the practice to the correct theory. But at all events, it will be a consolation to those, who love the Union, and honour a devotion to the patriotic discharge of duty, that in regard to "inferior officers," (which appellation probably includes ninety-nine out of a hundred of the lucrative offices in the government,) the remedy for any permanent abuse is still within the power of congress, by the simple expedient of requiring the consent of the senate to removals in such cases.
§ 1539. Another point of great practical importance is, when the appointment of any officer is to be deemed complete. It will be seen in a succeeding clause, that the president is to "commission all the officers of the United States." In regard to officers, who are removable at the will of the executive, the. point is unimportant, since they may be displaced, and their commission arrested at any moment. But if the officer is not so removable, the time, when the appointment is complete, becomes of very deep interest.
§ 1540. This subject was very elaborately discussed in the celebrated case of Marbury v. Madison.1 Marbury had been appointed a justice of the peace of the
1 1 Cranch's R. 137; S. C. 1 Peters's Cond. R. 270.
398 CONSTITUTION OF THE U. STATES. [BOOK III.
District of Columbia for five years, according to an act of congress, by President Adams, by and with the consent of the senate. His commission had been signed by the president, and was sealed, and deposited in the department of state at the time of Mr. Jefferson's accession to the presidency; and was afterwards withheld from him by the direction of the latter. An act of congress had directed the secretary of state to keep the seal of the United States; and to make out, and record, and affix the seal to all civil commissions to officers of the United States, to be appointed by the president, after he should have signed the same. Upon the fullest deliberation, the court were of opinion, that, when a commission has been signed by the president, the appointment is final and complete. The officer appointed has, then, conferred on him legal rights, which cannot be resumed. Until that, the discretion of the president may be exercised by him, as to the appointment; but, from that moment, it is irrevocable. His power over the office is then terminated in all cases, where by law the officer is not removable by him. The right tothe office is then in the person appointed, and he has the absolute, unconditional power of accepting, or rejecting it. Neither a delivery of the commission, nor an actual acceptance of the office, is indispensable to make the appointment perfect.
§ 1541. The reasoning, upon which this doctrine is founded, cannot be better elucidated, than by using the very language of the opinion, in which it is promulgated. After quoting the words of the constitution, and laws above referred to, it proceeds as follows:
§ 1542. "These are the clauses of the constitution and laws of the United States, which affect this part of
the case. They seem to contemplate three distinct operations: (l.) The nomination. This is the sole act of the president, and is completely voluntary. (2.) The appointment. This is also the act of the president; and is also a voluntary act, though it can only be performed by and with the advice and consent of the senate. (3.) The commission. To grant a commission to a person appointed, might perhaps be deemed a duty enjoined by the constitution. 'He shall,' says that instrument, 'commission all the officers of the United States.' The acts of appointing to office, and commissioning the person appointed, can scarcely be considered as one and the same; since the power to perform them is given in two separate and distinct sections of the constitution. The distinction between the appointment and the commission will be rendered more apparent, by adverting to that provision in the second section of the second article of the constitution, which authorizes congress 'to vest, by law, the appointment of such inferior officers, as they think proper, in the president alone, in the courts of law, or in the heads of departments;' thus contemplating cases, where the law may direct the president to commission an officer appointed by the courts, or by the heads of departments. In such a case, to issue a commission would be apparently a duty distinct from the appointment, the performance of which, perhaps, could not legally be refused. Although that clause of the constitution, which requires the president to commission all the officers of the United States, may never have been applied to officers appointed otherwise, than by himself; yet it would be difficult to deny the legislative power to apply it to such cases. Of consequence the constitutional distinction between the appointment to
an office, and the commission of an officer, who has been appointed, remains the same, as if in practice the president had commissioned officers appointed by an authority, other than his own. It follows, too, from the existence of this distinction, that, if an appointment was to be evidenced by any public act, other than the commission, the performance of such public act would create the officer; and, if he was not removable at the will of the president, would either give him a right to his commission, or enable him to perform the duties without it. These observations are premised solely for the purpose of rendering more intelligible those, which apply more directly to the particular case under consideration.
§ 1543. "This is an appointment made by the president, by and with the advice and consent of the senate, and is evidenced by no act but the commission itself. In such a case, therefore, the commission and the appointment seem inseparable; it being almost impossible to show an appointment otherwise, than by proving the existence of a commission. Still the commission is not necessarily the appointment; though conclusive evidence of it. But at what stage does it amount to this conclusive evidence? The answer to this question seems an obvious one. The appointment, being the sole act of the president, must be completely evidenced, when it is shown, that he has done every thing to be performed by him. Should the commission, instead of being evidence of an appointment, even be considered as constituting the appointment itself; still, it would be made, when the last act to be done by the president was performed, or at farthest, when the commission was complete. The last act to be done by the president, is the signature of the commission.
He has then acted on the advice and consent of the senate to his own nomination. The time for deliberation has then passed. He has decided. His judgment, on the advice and consent of the senate concurring with his nomination, has been made, and the officer is appointed. This appointment is evidenced by an open, unequivocal act; and being the last act required from the person making it, necessarily excludes the idea of its being, so far as respects the appointment, an inchoate and incomplete transaction. Some point of time must be taken, when the power of the executive over .an officer, not removable at his will, must cease. That point of time must be, when the constitutional power of appointment has been exercised. And this power has been exercised, when the last act, required from the person possessing the power, has been performed. This last act is the signature of the commission. This idea seems to have prevailed with the legislature, when the act passed, converting the department of foreign affairs into the department of state. By that act it is enacted, that the secretary of state shall keep the seal of the United States, 'and shall make out and record, and shall affix the said seal to all civil commissions to officers of the United States, to be appointed by the president:' 'Provided, that the said seal shall not be affixed to any commission, before the same shall have been signed by the president of the United States; nor to any other instrument or act, without the special warrant of the president therefor.' The signature is a warrant for affixing the great seal to the commission; and the great seal is only to be affixed to an instrument, which is complete. It attests, by an act supposed to be of public notoriety, the verity of the presidential signature. It is never to be affixed, till the commission
all the weight, which it appears possible to give them, is signed, because the signature, which gives force and effect to the commission, is conclusive evidence, that the appointment is made. The commission being signed, the subsequent duty of the secretary of state is prescribed by law, and not to be guided by the will of the president. He is to affix the seal of the United States to the commission, and is to record it. This is not a proceeding, which may be varied, if the judgment of the executive shall suggest one more eligible; but is a precise course accurately marked out by law, and is to be strictly pursued. It is the duty of the secretary of state to conform to the law, and in this he is an officer of the United States, bound to obey the laws. He acts, in this respect, as has been very properly stated at the bar, under the authority of law, and not by the instructions of the president. It is a ministerial act, which the law enjoins on a particular officer for a particular purpose. If it should be supposed, that the solemnity of affixing the seal is necessary, not only to the validity of the commission, but even to the completion of an appointment; still, when the seal is affixed, the appointment is made, and the commission is valid. No other solemnity is required by law; no other act is to be performed on the part of government. All, that the executive can do to invest the person with his office, is done; and unless the appointment be then made, the executive cannot make one without the cooperation of others. After searching anxiously for the principles, on which a contrary opinion may be supported, none have been found, which appear of sufficient force to maintain the opposite doctrine. Such, as the imagination of the court could suggest, have been very deliberately examined, and after allowing them
they do not shake the opinion, which has been formed.
§ 1544. "In considering this question, it has been conjectured, that the commission may have been assimilated to a deed, to the validity of which delivery is essential. This idea is founded on the supposition, that the commission is not merely evidence of an appointment, but is itself the actual appointment; a supposition by no means unquestionable. But, for the purpose of examining this objection fairly, let it be conceded, that the principle claimed for its support is established. The appointment being, under the constitution, to be made by the president personally, the delivery of the deed of appointment, if necessary to its completion, must be made by the president also. It is not necessary, that the livery should be made personally to the grantee of the office. It never is so made. The law would seem to contemplate, that it should be made to the secretary of state, since it directs the secretary to affix the seal to the commission, after it shall have been signed by the president. If, then, the act of livery be necessary to give validity to the commission, is has been delivered, when executed and given to the secretary for the purpose of being sealed, recorded, and transmitted to the party. But in all cases of letters patent, certain solemnities are required by law, which solemnities are the evidences of the validity of the instrument. A formal delivery to the person is not among them. In cases of commissions the sign manual of the president, and the seal of the United States, are those solemnities. This objection, therefore, does not touch the case.
§ 1545. "It has also occurred, as possible, and barely possible, that the transmission of the commission, and
the acceptance thereof, might be deemed necessary to complete the right of the plaintiff. The transmission of the commission is a practice directed by convenience, but not by law. It cannot therefore be necessary to constitute the appointment, which must precede it, and which is the mere act of the president. If the executive required, that every person, appointed to an office, should himself take means to procure his commission, the appointment would not be the less valid on that account. The appointment is the sole act of the president; the transmission of the commission is the sole act of the officer, to whom that duty is assigned, and may be accelerated, or retarded by circumstances, which canhave no influence on the appointment. A commission is transmitted to a person already appointed; not to a person to be appointed, or not, as the letter enclosing the commission should happen to get into the post-office, and reach him in safety, or to miscarry.
§ 1546. "It may have some tendency to elucidate this point, to inquire, whether the possession of the original commission be indispensably necessary to authorize a person, appointed to any office, to perform the duties of that office. If it was necessary, then a loss of the commission would lose the office. Not only negligence, but accident or fraud, fire or theft, might deprive an individual of his office. In such a case, I presume, it could not be doubted, but that a copy from the record of the office of the secretary of state would be, to every intent and purpose, equal to the original. The act of congress has expressly made it so. To give that copy validity, it would not he necessary to prove, that the original had been transmitted, and afterwards lost. The copy would be complete evidence, that the
original had existed, and that the appointment had been made; but, not that the original had been transmitted. If, indeed, it should appear, that the original had been mislaid in the office of state, that circumstance would not affect the operation of the copy. When all the requisites have been performed, which authorize a recording officer to record any instrument whatever, and the order for that purpose has been given, the instrument is, in law, considered as recorded, although the manual labour of inserting it in a book kept for that purpose may not have been performed. In the ease of commissions, the law orders the secretary of state to record them. When, therefore, they are signed and sealed, the order for their being recorded is given; and whether inserted in the book, or not, they are in law recorded. A copy of this record is declared equal to the original, and the fees, to be paid by a person requiring a copy, are ascertained by law. Can a keeper of a public record erase therefrom a commission, which has been recorded? Or can he refuse a copy thereof to a person demanding it on the terms prescribed by law? Such a copy would, equally with the original, authorize the justice of peace to proceed in the performance of his duty, because it would, equally with the original, attest his appointment.
§ 1547. "If the transmission of a commission be not considered, as necessary to give validity to an appointment, still less is its acceptance. The appointment is the sole act of the president; the acceptance is the sole act of the officer, and is, in plain common sense, posterior to the appointment. As he may resign, so may he refuse to accept. But neither the one, nor the other, is capable of rendering the appointment a nonentity. That this is the understanding of the govern-
ment is apparent from the whole tenor of its conduct. A commission bears date, and the salary of the officer commences, from his appointment; not from the transmission, or acceptance of his commission. When a person, appointed to any office, refuses to accept that office, the successor is nominated in the place of the person, who has declined to accept, and not in the place of the person, who had been previously in office, and had created the original vacancy. It is, therefore, decidedly the opinion of the court, that, when a commission has been signed by the president, the appointment is made; and that the commission is complete, when the seal of the United States has been affixed to it by the secretary of state. Where an officer is removable at the will of the executive, the circumstance, which completes his appointment, is of no concern; because the act is at any time revocable; and the commission may be arrested, if still in the office. But when the officer is not removable at the will of the executive, the appointment is not revocable, and cannot be annulled. It has conferred legal rights, which cannot be resumed. The discretion of the executive is to be exercised, until the appointment has been made. But having once made the appointment, his power over the office is terminated in all cases, where, by law, the officer is not removable by him. The right to the office is then in the person appointed, and he has the absolute, unconditional power of accepting or rejecting it. Mr. Marbury, then, since his commission was signed by the president, and sealed by the secretary of state, was appointed; and as the law, creating the office, gave the officer a right to hold for five years, independent of the executive; the appointment was not revocable but vested in the officer legal rights, which
are protected by the laws of his country. To withhold his commission, therefore, is an act deemed by the court not warranted by law, but violative of a vested legal right."1
1 See also Rawle on the Constitution, ch. 14, p. 166; Sergeant on
Constitution, ch. 29, [ch. 31.] -- The reasoning of thin opinion would seem
to be, in a judicial view, absolutely irresistible; and, as such, received
at the time a very general approbation from the profession. It was,
however, totally disregarded by President Jefferson, who, on this, as on
other occasions, placed his right of construing the constitution and laws,
as wholly above, and independent of judicial decision. In his
correspondence, he repeatedly alluded to this subject, and endeavoured to
vindicate his conduct. In one of his letters he says, "In the case of
Marbury and Madison, the federal judges declared, that commissions, signed
and sealed by the president, were valid, although not delivered. I deemed
delivery essential to complete a deed, which, as long as it remains in the
hands of the party, is, as yet, no deed; it is in posse only, but not in
esse; and I withheld the delivery of the commission. They cannot issue a
mandamus to the president, or legislature, or to any of their officers."*
It is true, that the constitution does not authorize the Supreme Court to
issue a mandamus in the exercise of original jurisdiction, as was the case
in Marbury v. Madison; and it was so decided by the Supreme Court. But the
Act of Congress of 1789, ch. 20, § 13, had actually conferred the very
power on the Supreme Court., by providing, that the Supreme Court shall
have power "to issue writs of mandamus, &c. to any courts appointed, or
persons holding office under the authority of the United States." So, that
the Supreme Court, in declining jurisdiction, in effect declared, that the
act of congress was, in this respect, unconstitutional. But no lawyer
could doubt, that congress might confer the power on any other court; and
the Supreme Court itself might issue a mandamus in the exercise of its
appellate jurisdiction. But the whole argument of President Jefferson
proceeds on an assumption, which is not proved. He says, delivery is
essential to a deed. But, assuming this to be correct in all cases, it
does not establish, that a commission is essential to every appointment, or
that a commission must, by the constitution, be by a deed; or that an
appointment to office is not complete, before the commission is sealed, or
delivered. The question is not, whether a deed at the common law is perfect
without a delivery; but whether an appointment under the constitution is
perfect without a delivery of a commission. If a delivery were necessary,
when the president had signed the commission, and delivered it to the
secretary to be sealed and recorded, such delivery would be
* 4 Jefferson's Corresp. 317; Id. 75; Id. 372, 373.
408 CONSTITUTION OF THE U. STATES. [BOOK III.
§ 1548. Another question, growing out of appointments, is, at what time the appointee is to be deemed in office, whether from the time of his acceptance of the office, or his complying with the preliminary requisitions, (such, as taking the oath of office, giving bond for the faithful discharge of his duties, &c.) orhis actual entry upon the duties of his office. This question may become of great practical importance in eases of removals from office, and also in cases, where by law officers are appointed for a limited term. It frequently happens, that no formal removal from office is made by the president, except by nominating another person to the senate, in place of the person removed, and without any notice to him. In such a case, is the actual incumbent in office de facto removed immediately upon the nomination of a new officer? If so, then all his subsequent acts in the office are void, though he may have no notice of the nomination, and may, from the delay to give such notice, go on for a month to perform its functions. Is the removal to be deemed complete only, when the nomination has been confirmed? Or, when notice is actually given to the incumbent? Or, when the. appointee has accepted the
sufficient, for it is the final act required to be done by the president.
But, in point of fact, the seat is not the seal of the president, but of
the United States. The commission, sealed by the president, is not his
deed; and it does not take effect, as his deed. It is merely a
verification of his act by the highest evidence. The doctrine, then, of
deeds of private persons, at the common law, is inapplicable. It is
painful to observe in President Jefferson's writings, the constant
insinuations against public men and public bodies, who differ from his own
opinions or measures, of being governed by improper or unworthy motives, or
mere party spirit. The very letters here cited (4 Jefferson's Corresp. 75,
317, 372) afford illustrations, not to be mistaken; and certainly diminish
the value, which might otherwise be attributed to his criticisms.
CH. XXXVII.] EXECUTIVE--APPOINTMENTS. 409
office?1 Hitherto this point does not seem to have received any judicial decision, and therefore must be treated as open to controversy. If the decision should be, that in such cases the nomination without notice creates a removal de facto, as well as de jure, it is obvious, that the public, as well as private individuals, may become sufferers by unintentional and innocent violations of law. A collector, for instance, may receive duties, may grant clearances to vessels, and may perform other functions of the office for months after such a nomination, without the slightest suspicion of any want of legal authority. Upon one occasion it was said by the Supreme Court, that "when a person appointed to any office (under the United States) refuses to accept that office, the successor is nominated in the place of the person, who has declined to accept, and not in the place of the person, who had been previously in office, and had created the original vacancy."2 From this remark, it would seem to be the opinion of the court, that the office is completely filled in every case of vacancy, as soon as the appointment is complete; independently of the acceptance of the appointee. If so, it would seem to follow, that the removal must, at all events, be complete, as soon as a new appointment is made.3
§ 1549. The next clause of the constitution is, "The president shall have power to fill up all vacancies, that may happen during the recess of the senate, by grant-
1 See Johnson v. United States, 5 Mason's R. 425, 438, 439.
2 Marbury v. Madison, 1 Cranch's R. 137; S.C. 1 Peters's Cond. R. 270.
3 See Johnson v. United States, 5 Mason's R. 425, 438, 439; United States v. Kirkpatrick, 4 Wheat. R. 733, 734.
410 CONSTITUTION OF THE U. STATES. [BOOK III.
ing commissions, which shall expire at the end of their next session."
§ 1550. This clause was not in the first draft of the constitution; but was afterwards inserted by an amendment, apparently without objection.1 One of the most extraordinary instances of a perverse intention to misrepresent, and thereby to render odious the constitution, was in the objection, solemnly urged against this clause, that it authorized the president to fill vacancies in the senate itself, occurring during the recess;2 a power; which, in another clause of the constitution, was expressly confided to the state executive. It is wholly unnecessary, however, now to dwell upon this preposterous suggestion, since it does. not admit of a doubt, that the power given to the president is applicable solely to appointments to offices under the United States, provided for by the constitution and laws of the Union. It is only another proof of the gross exaggerations, and. unfounded alarms; which were constantly resorted to for the purpose of defeating a system, which could scarcely fail of general approbation, if it was fairly understood.3
§ 1551. The propriety of this grant is so obvious, that it can require no elucidation. There was but one of two courses to be adopted; either, that the senate should be perpetually in session, in order to provide for the appointment of officers; or, that the president should be authorized to make temporary appointments during the recess, which should expire, when the senate should have had an opportunity to act on the subject. The former course would have been at once burthensome to the senate, and expensive to the public. The latter combines convenience, promptitude of action, and general security.
1 Journal of Convention, 225, 341.
2 The Federalist, No. 67.
3 Id. No. 67,
CH. XXXVII.] EXECUTIVE--APPOINTMENTS. 411
§ 1552. The appointments so made, by the very language of the constitution, expire at the next session of the senate; and the commissions given by him have the same duration. When the senate is assembled, if the president nominates the same officer to the office, this is to all intents and purposes a new nomination to office; and, if approved by the senate, the appointment is a new appointment, and not a mere continuation of the old appointment. So that, if a bond for fidelity in office has been given under the first appointment and commission, it does not apply to any acts done under the new appointment and commission.1
§ 1553. The language of the clause is, that the president shall have power to fill up vacancies, that may happen during the recess of the senate. In 1813, President Madison appointed and commissioned ministers to negotiate the treaty of peace of Ghent during the recess of the senate; and a question was made, whether he had a constitutional authority so to do, there being no vacancy of any existing office; but this being the creation of a new office. The senate, at their next session, are said to have entered a protest against such an exercise of power by the executive. On a subsequent occasion, (April 20, 1822,) the senate seem distinctly to have held, that the president could not create the office of minister, and make appointments to such an office during the recess, without the consent of the senate. By "vacancies" they understood to be meant vacancies occurring from death, resignation, promotion, or removal. The word "happen" had relation to some casualty, not provided for by law. If the senate are in session, when offices are created by law, which have not as yet been filled, and
1 United States v. Kirkpatrick, 9 Wheat. R. 720, 733, 734, 735.
412 CONSTITUTION OF THE U. STATES. [BOOK III.
nominations are not then made to them by the president, he cannot appoint to such offices during the recess of the senate, because the vacancy does not happen during the recess of the senate. In many instances, where offices are created by law, special power is on this very account given to the president to fill them during the recess; and it was then said, that in no other instances had the president filled such vacant offices without the special authority of law.1
§ 1554. The next section of the second article is, "He (the president) shall from time to time give to the congress information of the state of the Union, and recommend to their consideration such measures, as he shall judge necessary and expedient. He may, on extraordinary occasions, convene both houses, or either of them, and, in case of a disagreement between them, with respect to the time of adjournment, he may adjourn them to such time, as he shall think proper. He shall receive ambassadors, and other public ministers. He shall take care, that the laws be faithfully executed; and shall commission all the officers of the United States."
§ 1555. The first part, relative to the president's giving information and recommending measures to congress, is so consonant with the structure of the executive departments of the colonial, and state governments, with the usages and practice of other free governments, with the general convenience of congress, and with a due share of responsibility on the part of the executive, that it may well be presumed to be above all real objection. From the nature and duties of the executive department, he must possess more extensive sources of
1 Sergeant on Const. ch. 29, (ch. 31); 2 Executive Journal, p. 415, 500; 3
Executive Journal, 297.
CH. XXXVII.] EXECUTIVE--DUTIES. 413
information, as well in regard to domestic as foreign affairs, than can belong to congress. The true workings of the laws; the defects in the nature or arrangements of the general systems of trade, finance, and justice; and the military, naval, and civil establishments of the Union, are more readily seen, and more constantly under the view of the executive, than they can possibly be of any other department. There is great wisdom, therefore, in not merely allowing, but in requiring, the president to lay before congress all facts and information, which may assist their deliberations; and in enabling him at once to point out the evil, and to suggest the remedy. He is thus justly made responsible, not merely for a due administration of the existing systems, but for due diligence and examination into the means of improving them.1
§ 1556. The power to convene congress on extraordinary occasions is indispensable to the proper operations, and even safety of the government. Occasions may occur in the recess of congress, requiring the government to take vigorous measures to repel foreign aggres-
1 See 1 Tuck. Black. Comm. App. 343, 344, 345; The Federalist, No. 78;
Rawle on Const. ch. 16, p. 175. -- The practice in the time of President
Washington, and President John Adams was, for the president, at the opening
of each session of congress to meet both Houses in person, and deliver a
speech to them, containing his views on public affairs, and his
recommendations of measures. On other occasions he simply addressed
written messages to them, or either of them, according to the nature of the
message. To the speeches thus made a written answer was given by each
house; and thus an opportunity was afforded by the opponents of the
administration to review its whole policy in a single debate on the answer.
That practice was discontinued by President Jefferson, who addressed all
his communications to congress by written messages; and to these no answers
were returned.* The practice thus introduced by him has been ever since
exclusively pursued by all succeeding presidents, whether for the better
has been gravely doubted by some of our most distinguished statesmen.
* Rawle on Const. ch. 16, p. 171, 172, 173.
414 CONSTITUTION OF THE U. STATES. [BOOK III.
sions, depredations, and direct hostilities; to provide adequate means to mitigate, or overcome unexpected calamities; to suppress insurrections; and to provide for innumerable other important exigencies, arising out of the intercourse and revolutions among nations.1
§ 1557. The power to adjourn congress in cases of disagreement is equally indispensable; since it is the only peaceable way of terminating a controversy, which can lead to nothing but distraction in the public councils.2
§ 1558. On the other hand, the duty imposed upon him to take care, that the laws be faithfully executed, follows out the strong injunctions of his oath of office, that he will "preserve, protect, and defend the constitution." The great object of the executive department is to accomplish this purpose; and without it, be the form of government whatever it may, it will be utterly worthless for offence, or defence; for the redress of grievances, or the protection of rights; for the happiness, or good order, or safety of the people.
§ 1559. The next power is to receive ambassadors and other public ministers. This has been already incidentally touched. A similar power existed under the confederation; but it was confined to receiving "ambassadors," which word, in a strict sense, (as has been already started,) comprehends the highest grade only of ministers, and not those of an inferior character. The policy of the United States would ordinarily prefer the employment of the inferior grades; and therefore the description is properly enlarged, so as to include all classes of ministers.3 Why the receiving of consuls
1 See 1 Tuck. Black. Comm. App. 343, 344, 345; The Federalist, No. 78;
Rawle on Const. ch. 16, p. 175.
2 Id. ibid.
3 The Federalist, No. 42.
CH. XXXVII.] EXECUTIVE--POWERS. 415
was not also expressly mentioned, as the appointment of them is in the preceding clause, is not easily to be accounted for, especially as the defect of the confederation on this head was fully understood.1 The power, however, may be fairly inferred from other parts of the constitution; and indeed seems a general incident to the executive authority. It has constantly been exercised without objection; and foreign consuls have never beer allowed to discharge any functions of office, until they have received the exequatur of the president.2 Consuls, indeed, are not diplomatic functionaries, or political representatives of a foreign nation; but are treated in the character of mere commercial agents.3
§ 1560. The power to receive ambassadors and ministers is always an important, and sometimes a very delicate function; since it constitutes the only accredited medium, through which negotiations and friendly relations are ordinarily carried on with foreign powers. A government may in its discretion lawfully refuse to receive an ambassador, or other minister, without its affording any just cause of war. But it would generally be deemed an unfriendly act, and might provoke hostilities, unless accompanied by conciliatory explanations. A refusal is sometimes made on the ground of the bad character of the minister, or his former offensive conduct, or of the special subject of the embassy not being proper, or convenient for discussion.4 This, however, is rarely done. But a much more delicate occasion is,
1 The Federalist, No. 42.
2 Rawle on Const. ch. 24, p. 224, 225.
3 Ibid.; 1 Kent's Comm. Lect. 2 p. 40 to 44; The Indian Chief, 3 Rob. R. 22; The Bello Corunnes, 6 Wheat. R. 152, 168; Viveash v. Buker, 3 Maule & Selw. R. 284.
4 1 Kent's Comm. Lect. 2, p. 89; Rutherforth's Instit. B 2, ch. 9, 20, Grotius, Lib. 2, ch. 8, § 1, 3, 4.
416 CONSTITUTION OF THE U. STATES. [BOOK III.
when a civil war breaks-out in a nation, and two nations are formed, or two parties in the same nation, each claiming the sovereignty of the whole, and the contest remains as yet undecided, flagrante bello. In such a case a neutral nation may very properly withhold its recognition of the. supremacy of either party, or of the existence of two independent nations; and on that account refuse to receive an ambassador from either.1 It is obvious, that in such cases the simple acknowledgment of the minister of either party, or nation, might be deemed taking part against the other; and thus as affording a strong countenance, or opposition, to rebellion and civil dismemberment. On this account, nations, placed in such a predicament, have not hesitated sometimes to declare war against neutrals, as interposing in the war; and have made them the victims of their vengeance, when they have been anxious to assume a neutral position. The exercise of this prerogative of acknowledging new nations, or ministers, is, therefore, under such circumstances, an executive function of great delicacy, which requires the utmost caution and deliberation. If the executive receives an ambassador, or other minister, as the representative of a new nation, or of a party in a civil war in an old nation, it is an acknowledgment of the sovereign authority de facto of such new nation, or party. If such recognition is made, it is conclusive upon the nation, unless indeed it can be reversed by an act of congress repudiating it. If, on the other hand, such recognition has been refused by the executive, it is said, that congress may, notwithstanding, solemnly
1 1 Kent's Comm. Lect. 2, p. 39; Rawle on Const. ch. 20, p. 195; Gelston
v. Hoyt, 3 Wheat. R. 324; United States v. Palmer, 3 Wheat. R. 630; Serg.
on Const. ch. 28, p. 324, 325, (2d edit. ch. 30, p. 336, 337, 338.)
CH. XXXVII.] EXECUTIVE--POWERS. 417
acknowledge the sovereignty of the nation, or party.1 These, however, are propositions, which have hitherto remained, as abstract statements, under the constitution; and, therefore, can be propounded, not as absolutely true, but as still open to discussion, if they should ever arise in the course of our foreign diplomacy. The constitution has expressly invested the executive with power to receive ambassadors, and other ministers. It has not expressly invested congress with the power, either to repudiate, or acknowledge them.2 At all events, in the case of a revolution, or dismemberment of a nation, the judiciary cannot take notice of any new government, or sovereignty, until it has been duly recognised by some other department of the government, to whom the power is constitutionally confided.3
§ 1561. That a power, so extensive in its reach over our foreign relations, could not be properly conferred on any other, than the executive department, will admit of little doubt. That it should be exclusively confided to that department, without any participation of the senate in the functions, (that body being conjointly entrusted with the treaty-making power,) is
1 Rawle on Constitution, ch. 20, p. 195, 196.
2 It is surprising, that the Federalist should have treated the power of receiving ambassadors and other public ministers, as an executive function of little intrinsic importance. Its language is, "This, though it has been a rich theme of declamation, is more a matter of dignity, than of authority. It is a circumstance, which will be without consequence in the administration of the government. And it was far more convenient, that it should be arranged in this manner, than that there should be a necessity of convening the legislature, or one of its branches, upon every arrival of a foreign minister, though it were merely to take the place of a departed predecessor." The Federalist, No. 69.
3 United States v. Palmer, 3 Wheat. R. 610, 634, 643; Hoyt v. Gelston, 3 Wheat. R. 246, 323, 324; Rose v. Himely, 4 Cranch, 441; The Divina Pastora, 4 Wheat. R. 599 and note 65; The Neustra Sonora de la Carldad, 4 Wheat. R. 497.
418 CONSTITUTION OF THE U. STATES. [BOOK III.
not so obvious. Probably the circumstance, that in all foreign governments1 the power was exclusively confided to the executive department, and the utter impracticability of keeping the senate constantly in session, and the suddenness of the emergencies, which might require the action of the government, conduced to the establishment of the authority in its present form.2 It is not, indeed, a power likely to be abused; though it is pregnant with consequences, often involving the question of peace and war. And, in our own short experience, the revolutions in France, and the revolutions in South America, have already placed us in situations, to feel its critical character, and the necessity of having, at the head of the government, an executive of sober judgment, enlightened views, and firm and exalted patriotism.3
§ 1562. As incidents to the power to receive ambassadors and foreign ministers, the president is understood to possess the power to refuse them, and to dismiss those who, having been received, become obnoxious to censure, or unfit to be allowed the privilege, by their improper conduct, or by political events.4 While, however, they are permitted to remain, as public functionaries, they are entitled to all the immunities and rights, which the law of nations has provided at once for their dignity, their independence, and their inviolability.5
§ 1563. There are other incidental powers, belonging to the executive department, which are necessarily implied from the nature of the functions, which are
1 See 1 Black. Comm. 953.
2 The Federalist, No. 69.
See 5 Marshall's Life of Washington, ch. 6, p. 398, 399, 404, 405, 411, 412; 1 Tuck Black. Comm. App. 341.
4 See 5 Marshall's Life of Washington: ch. 6: p. 443, 444; 7 Wait's State Papers, 282, 283, 302.
5 1 Kent's Comm. Lect. 2, p. 37, 38, 39.
CH. XXXVII.] EXECUTIVE--INCIDENTAL POWERS. 419
confided to it. Among these, must necessarily be included the power to perform them, without any obstruction or impediment whatsoever. The president cannot, therefore, be liable to arrest, imprisonment, or detention, while he is in the discharge of the duties of his office; and for this purpose his person must be deemed, in civil cases at least, to possess an official inviolability. In the exercise of his political powers he is to use his own discretion, and is accountable only to his country, and to his own conscience. His decision, in relation to these powers, is subject to no control; and his discretion, when exercised, is conclusive. But he has no authority to control other officers of the government, in relation to the duties imposed upon them by law, in cases not touching his political powers.1
§ 1564. In the year 1793, president Washington thought it his duty to issue a proclamation, forbidding the citizens of the United States to take any part in the hostilities, then existing between Great Britain and France; warning them against carrying goods, contraband of war; and enjoining upon them an entire abstinence from all acts, inconsistent with the duties of neutrality.2 This proclamation had the unanimous approbation of his cabinet.3 Being, however, at variance with the popular passions. and prejudices of the day, this exercise of incidental authority was assailed with uncommon vehemence, and was denied to be constitutional. It seems wholly unnecessary now to review
- 1 Marbury v. Madison, 1 Cranch. 137, S. C.; 2 Peters's Cond. R. 276,
2 1 Wait's American State Papers, 44.
3 5 Marshall's Life of Washington, ch. 6, p. 404, 408.
420 CONSTITUTION OF THE U. STATES. [BOOK III.
the grounds of the controversy, since the deliberate sense of.the nation has gone along with the exercise of the power, as one properly belonging to the executive duties.1 If the President is bound to see to the execution of the laws, and treaties of the United States; and if the duties of neutrality, when the nation has not assumed a belligerent attitude, are by the law of nations obligatory upon it, it seems. difficult to perceive any solid objection to a proclamation, stating the facts, and admonishing the citizens of their own duties and responsibilities.2
§ 1565. We have seen, that by law the president possesses the right to require the written advice and opinions of his cabinet ministers; upon all questions connected with their respective departments. But, he does not possess a like authority, in regard to the judicial department. That branch of the government can be called upon only to decide controversies, brought before them in a legal form; and therefore are bound to abstain from any extra-judicial opinions upon points of law, even though solemnly requested by the executive.3
1 Rawle on Const. ch. 20, p. 197. -- The learned reader, who wishes to
review the whole ground, will find it treated in a masterly manner, in the
letters of Pacificus, written by Mr. Hamilton in favour of the power, and
in the letters of Helvidius, written by Mr. Madison against it. They will
both be found in the edition of the Federalist, printed at Washington, in
1818, and in Hallowell, in 1826, in the Appendix.
2 1 Tuckers Black. Comm. App. 346.--Both houses of Congress, in their answers to the President's speech at the ensuing session, approved of his conduct, m issuing the proclamation. -- 1 Tucker's Black. Comm. App. 346.
3 5 Marshall's Life of Washington, ch. 6, p. 433, 441; Serg. Const. ch. 29, [ch. 31.] See also Hayburn's case, 2 Dall. R. 409, 410, and note; Marbury v. Madison, 1 Cranch. 137, 171. -- President Washington, in 1793, requested the opinion of the Judges of the Supreme Court, upon the construction of the treaty with France, of 1778; but they declined
CH. XXXVII.] EXECUTiVE--INCIDENTAL POWERS. 421
§ 1566. The remaining section of the fourth article, declaring that the President, Vice-President, and all civil officers of the United States shall be liable to impeachment, has been already fully considered in another place. And thus is closed the examination of the rights, powers, and duties of the executive department. Unless my judgment has been unduly biassed, I think it will be found impossible to hold from this part of the constitution a tribute of profound respect, if not of the liveliest admiration. All, that seems desirable in order to gratify the hopes, secure the reverence, and sustain the dignity of the nation, is, that it should always be occupied by a man of elevated talents, of ripe virtues, of incorruptible integrity, and of tried patriotism; one, who shall forget his own interests, and remember, that he represents not a party, but the whole nation; one, whose fame may be rested with posterity, not upon the false eulogies of favourites, but upon the solid merit of having preserved the glory, and enhanced the prosperity of the country.1
to give any opinion, upon the ground stated in the text. 5 Marshall's Life
of Washington, ch. 6, p. 433, 441.
1 In consequence of President Jackson's Message, negativing the Bank of the United States, July 10, 1832, in which be advances the doctrine, that the decisions made by other departments of the government, including the Judiciary, and even by his predecessors in office in approving laws, are not obligatory on him; the question has been a good deal agitated by statesmen and constitutional lawyers. The following extract from a letter, written by Mr. Madison to Mr. C. J. Ingersoll, on 25th of June, 1831, contains reasoning on this subject, worthy of the judgment of that great man.
"The charge of inconsistency between my objection to the constitutionality of such a bank, in 1791, and my assent, in 1817, turns to the question how far legislative precedents, expounding the constitution, ought to guide succeeding legislatures, and to overrule individual opinions.
"Some obscurity has been thrown over the question, by confounding
422 CONSTITUTION OF THE U. STATES. [BOOK III
it with the respect due from one legislature, to laws passed by preceding
legislatures. But the two cases are essentially different. A
constitution, being derived from a superior authority, is to be expounded
and obeyed, not controlled or varied by the subordinate authority of a
legislature. A law, on the other hand, resting on no higher authority,
than that possessed by every successive legislature; its expediency, as
well as its meaning, is within the scope of the latter.
"The case in question has its true analogy, in the obligation arising from judicial expositions of the law on succeeding judges, the constitution being a law to the legislator, as the law is a rule of decision to the judge.
"And why are judicial precedents, when formed on due discussion and consideration, and deliberately sanctioned by reviews and repetitions, regar ded as of binding influence, or rather of authoritative force, in settling the meaning of a law? It must be answered, 1st, because it is a reasonable and established axiom, and the good of society requires, that the rules of conduct of its members, should be certain and known, which would not be the case if any judge, disregarding the decisions of his predecessors, should vary the rule of law, according to his individual interpretation of it. Misera est servitus ubi jus aut vagum aut incognitum. 2d, because an exposition of the law publicly made, and repeatedly confirmed by the constituted authority, carries with it, by fair inference, the sanction of those, who, having made the law through their legislative organ, appear under such circumstances, to have determined its meaning through their judiciary organ.
"Can it be of less consequence, that the meaning of a constitution should be fixed and known, than that the meaning of a law should be so? Can, indeed, a law be fixed in its meaning and operation, unless the constitution be so? On the contrary, if a particular legislature, differing in the construction of the constitution, from a series of preceding constructions, proceed to act on that difference, they not only introduce uncertainty and instability in the constitution, but in the laws themselves; inasmuch as all laws, preceding the new construction, and inconsistent with it, are not only annulled for the future, but virtually pronounced nullities from the beginning.
"But, it is said, that the legislator, having sworn to support the constitution, must support it in his own construction of it, however different from that put on by his predecessors, or whatever be the consequences of the construction. And is not the judge under the same oath to support the law? yet, has it ever been supposed, that he was required, or at liberty, to disregard all precedents, however solemnly repeated and regularly observed; and by giving effect to his own abstract and individual opinions, to disturb the established course of practice, in the business of the community? Has the wisest and most conscientious judge ever scrupled to acquiesce in decisions, in which he
CH. XXXVII.] EXECUTIVE--POWERS. 423
has been overruled by the matured opinions of the majority or his
colleagues; and subsequently to conform himself thereto, as to
authoritative expositions of the law? And is it not reasonable, that the
same view of the official oath should be taken by a legislator, acting
under the constitution, which is his guide, as.is token by a judge, acting
under the law, which is his?
"There is, in fact and in common understanding, a necessity of regarding a course of practice, as above characterized, in the light of a legal rule of interpreting a law: end there is a like necessity of considering it a constitutional rule of interpreting a constitution.
"That there may be extraordinary and peculiar circumstances controlling the rule in both cases, may be admitted; but with such exceptions, the rule will force itself on the practical judgment of the most ardent theorist. He will find it impossible to adhere to, and act officially upon his solitary opinions, as to the meaning of the law or constitution, in opposition to a construction reduced to practice, during a reasonable period of time; more especially, where no prospect existed of a change of construction, by the public or its agents. And if a reasonable period of time, marked with the usual sanctions, would not bar the individual prerogative, there could be no limitation to its exercise, although the danger of error must increase with the increasing oblivion of explanatory circumstances, and with the continual changes in the import of words and phrases.
"Let it then be left to the decision of every intelligent and candid judge, which, on the whole, is most to be relied on for the true and safe construction of a constitution; that which has the uniform sanction of successive legislative bodies through a period of years, and under the varied ascendancy of parties; or that which depends upon the opinions of every new legislature, heated as it may be by the spirit of party, eager in the pursuit or some favourite object, or led astray by the eloquence and address of popular statesmen, themselves, perhaps, under the influence of the same misleading causes.
"It was in conformity with the view here token, of the respect due to deliberate and reiterated precedents, that the bank of the United States, though on the original question held to be unconstitutional, received the executive signature in the year 1817. The act originally establishing a bank, had undergone ample discussions in its passage through the several branches of the government. It had been carried into execution throughout a period of twenty years, with annual legislative recognitions; in one instance, indeed, with a positive ramification of it into a new state; and with the entire acquiescence of all the local authorities, as well as of the nation at large; to all of which may be added a decreasing prospect of any change in the public opinion, adverse to the constitutionality of such an institution. A veto from the executive under these circumstances; with an admission of.the expediency and almost necessity of the measure, would have been a
424 CONSTITUTION OF THE U. STATES. [BOOK III.
defiance of all the obligations derived from a course of precedents,
amounting to the requisite evidence of the national judgment and intention.
"It has been contended that the authority or precedents was in that case invalidated, by the consideration, that they proved only a respect for the stipulated duration of the bank, with a toleration of it, until the law should expire; and by the casting vote given in the senate by the Vice-President, in 1811, against a bill for establishing a National Bank, the vote being expressly given on the ground of unconstitutionality. But if the law itself was unconstitutional, the stipulation was void, and could not be constitutionally fulfilled or tolerated. And as to the negative or the senate, by the casting vote of the presiding officer; it is a fact well understood at the time, that it resulted not from an equality of opinions in that assembly, on the power or congress to establish a bank, but from a junction of those, who admitted the power, but disapproved the plan, with those who denied the power. On a simple question of constitutionality, there was a decided majority in favour of it"
There is also a very cogent argument, on the same side, in Mr. Webster's Speech in the senate, in July, 1832, on the Veto Message of the President.