Joseph Story: Executive - Powers and Duties

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Executive - Powers and DutiesSec. 1483.Sec. 1484.Sec. 1485.Sec. 1486.Sec. 1487.Sec. 1488.Sec. 1489.Sec. 1490.Sec. 1491.Sec. 1492.Sec. 1493.Sec. 1494.Sec. 1495.Sec. 1496.Sec. 1497.Sec. 1498.Sec. 1499.Sec. 1500.Sec. 1501.Sec. 1502.Sec. 1503.Sec. 1504.Sec. 1505.Sec. 1506.Sec. 1507.Sec. 1508.Sec. 1509.Sec. 1510.Sec. 1511.Sec. 1512.Sec. 1513.Sec. 1514.Sec. 1515.Sec. 1516.Sec. 1517.Sec. 1518.Sec. 1519.Sec. 1520.Sec. 1521.Sec. 1522.Sec. 1523.Sec. 1524.Sec. 1525.Sec. 1526.Sec. 1527.Sec. 1528.Sec. 1529.Sec. 1530.Sec. 1531.Sec. 1532.Sec. 1533.Sec. 1534.Sec. 1535.Sec. 1536.Sec. 1537.Sec. 1538.Sec. 1539.Sec. 1540.Sec. 1541.Sec. 1542.Sec. 1543.Sec. 1544.Sec. 1545.Sec. 1546.Sec. 1547.Sec. 1548.Sec. 1549.Sec. 1550.Sec. 1551.Sec. 1552.Sec. 1553.Sec. 1554.Sec. 1555.Sec. 1556.Sec. 1557.Sec. 1558.Sec. 1559.Sec. 1560.Sec. 1561.Sec. 1562.Sec. 1563.Sec. 1564.Sec. 1565.Sec. 1566. FOOTNOTES
   1. See Journal of Convention, 225, 295, 362, 383.
   2. 1 Kent's Comm. Lect. 13, p. 264; 3 Elliot's Deb. 103.
   3. The Federalist, No 74; 3 Elliot's Debates, 103.
   4. 2 Elliot's Debates, 365. See also 3 Elliot's Debates, 108.
   5. 2 Elliot's Debates, 366.
   6. 3 Elliot's Debates, 103.
   7. 3 Elliot's Debates, 103; 1 Black. Comm. 262, 408 to 421.
   8. 1 Black. Comm. 262, 263.
   9. 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 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.
   10. The Federalist, No. 74. See Journal of Convention, 225, 326, 342.
   11. 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.
   12. Beccaria, ch. 46; l Kent. Comm. Leek 13, p. 265; 4 Black. Comm. 307; 2 Wilson's Law Lect. 193 to 198.
   13. 4 Black. Comm. 397.
   14. 1 Kent's Comm. Lect. 13, p. 265.
   15. 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."^a What should we say of a government, which purported to act upon mere human justice, excluding all operations of mercy in all cases? An inexorable government would scarcely be more praiseworthy, than a despotism. It would be intolerable and unChristian.
   a. Kent's Comm. Lect. 13, p. 265.
   16. Montesq. Spirit of Laws, B. 6, ch. 5.
   17. 4 Black. Comm. 397, 398.
   18. Ibid.
   19. Montesq. B. 6, ch. 5.
   20. 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.
   21. 1 Tucker's Black. Comm. App. 331; 2 Wilson's Law Lect. 193 to 200.
   22. Bacon's Abridg. Court of Exchequer, B.
   23. Kent's Comm. Lect. 13, p. 266.
   24. The Federalist, No. 74. See 2 Wilson's Law Lect. 198 to 200.
   25. 2 Elliot's Debates, 366; The Federalist, No. 74.
   26. The Federalist, No. 74.
   27. The Federalist, No. 74; Rawle on Const. ch. 17, p. 178.
   28. The Federalist, No. 74; 3 Elliot's Debates, 105, 106, 107.
   29. The Federalist, No. 64; 3 Elliot's Debates, 105, 106; 1 Tucker's Black. Comm. App. 331.
   30. 1 Kent's Comm. Lect. 13, p. 266.
   31. 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.
   32. Rawle on Constitution, ch. 17, p. 177.
   33. Act of 3d of March, 1797, ch. 67; Act of 11th of Feb. 1800, ch. 6.
   34. 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.
   35. Journal of Convention, p. 225, 316, 339, 341, 342, 343, 362; The Federalist, No. 75.
   36. Confederation, Art. 9.
   37. The Federalist, No. 42.
   38. See 5 Marshall's Life of Washington, ch. 8, p. 659 to 659.
   39. See Woodeson's Elem. of Jurisp. p. 51.
   40. 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 the 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?
   41. The Federalist, No. 64.
   42. The Federalist, No. 64.
   43. Id. No. 64.
   44. The Federalist, No. 75.
   45. 1 Black. Comm. 957; The Federalist, No. 69.
   46. The Federalist, No. 75.
   47. Id. No. 75.
   48. The Federalist, No. 75.
   49. Id. No. 64.
   50. The Federalist, No. 64.
   51. See 2 Elliot's Debates, 367 to 379.
   52. The Federalist, No. 75.
   53. The Federalist, No. 75.
   54. 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.
   55. 1 Tuck. Black. Comm. App. 338, 339.
   56. Journ. of Convention, 226, 395, 326, 341, 342.
   57. See Vol. II. § 524, et seq.
   58. The Federalist, No. 75.
   59. 2 Elliot's Debates, 367 to 379.
   60. The Federalist, No. 75; Id. No. 22.
   61. Ibid. and 1 Elliot's Debates, 44, 45.
   62. 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.
   63. See also the opinion of Iredell J. in Ware v. Hylton, 3 Dall. 272 to 276.
   64. 2 Elliot's Debates, 367 to 379.
   65. 5 Marshall's Life of Washington, ch. 2, p. 223.
   66. Executive Journal, 11th August, 1790, p. 60, 61.
   67. Rawle on Const. ch. 7, p. 63.
   68. 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.^b It is believed, that the practice has been ever since abandoned. Mr. Jefferson and the cabinet, (with the 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 favor of making direct calls on the heads of the departments. Rawle on Const. ch. 16, p. 171, 172.
   b. 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.
   69. Rawle on the Constitution, ch. 20, p. 194, 195; 4 Jefferson's Correspondence, 317, 318.
   70. Article 9.
   71. 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.
   72. The Federalist, No. 49.
   73. Journ. of Convention, p. 225.
   74. Id. 223.
   75. Id. 325, 326, 340, 362.
   76. See The Federalist, No. 76, 77.
   77. Ibid.
   78. The Federalist, No. 76; 2 Wilson's Law Lect. 191, 199.
   79. The Federalist, No. 76.
   80. The Federalist, No. 76, 77; 1 Kent's Comm. Lect. 13, p. 269; Rawle on Const. ch. 14, p. 162, etc.; 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.
   81. Rawle on Const. ch. 14, p. 164.
   82. A practical question of some importance arose soon after the constitution was adopted, in regard to the appointment of foreign ministers; whether the 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.
   83. The Federalist, No. 77.
   84. 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 favor 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 hasy, 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 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, etc., 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 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 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 they sit.
"'But I have tired your patience. Is there any truth or importance in these broken hints and crude surmises, or not? 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 reelection, 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.
"'I believe this will be a better balance to secure the government, than three independent negatives would be.
"'I think you admit, in your Defense 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 reelection 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 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 connections 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."^c

   c. 2 Pitkin's Hist. p. 285 to 291.
   85. 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.)
   86. 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, 341, 342.
   87. 1 Lloyd's Debates, 511, 512.
   88. See Marbury v. Madison, 1 Cranch, 137, 155.
   89. 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.)
   90. 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.
   91. 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.
   92. The Federalist, No. 77.
   93. 5 Marshall's Life of Washington, ch. 3, p. 198; 1 Lloyd's Debates, 351, 366, 450, 480 to 600.
   94. The Federalist, No. 77.
   95. 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.
   96. Mr. Madison, 1 Lloyd's Debates, 503.
   97. Ibid.
   98. 5 Marsh. Life of Washington, ch. 3, p. 199; I Lloyd's Debates, 599; 2 Lloyd's Debates, 19.
   99. Senate Journal, July 18, 1789, p. 42.
100. 1 Kent's Comm. Lect. 14, p. 289, 290.
101. 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.
102. 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; thirty-six 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 ninety-nine 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.
103. 1 Cranch's R. 137; S. C. 1 Peters's Cond. R. 270.
104. See also Rawle on the Constitution, ch. 14, p. 166; Sergeant on Constitution, ch. 29, [ch. 31.] -- The reasoning of this 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 endeavored 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."^d 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, etc. 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 re-spect, 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 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.
   d. 4 Jefferson's Corresp. 317; Id. 75; Id. 372, 373.
105. See Johnson v. United States, 5 Mason's R. 425, 438, 439.
106. Marbury v. Madison, 1 Cranch's R. 137; S.C. 1 Peters's Cond. R. 270.
107. See Johnson v. United States, 5 Mason's R. 425, 438, 439; United States v. Kirkpatrick, 4 Wheat. R. 733, 734.
108. Journal of Convention, 225, 341.
109. The Federalist, No. 67.
110. Id. No. 67,
111. United States v. Kirkpatrick, 9 Wheat. R. 720, 733, 734, 735.
112. Sergeant on Const. ch. 29, (ch. 31); 2 Executive Journal, p. 415, 500; 3 Executive Journal, 297.
113. 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.^e 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.
   e. Rawle on Const. ch. 16, p. 171, 172, 173.
114. See 1 Tuck. Black. Comm. App. 343, 344, 345; The Federalist, No. 78; Rawle on Const. ch. 16, p. 175.
115. Id. ibid.
116. The Federalist, No. 42.
117. The Federalist, No. 42.
118. Rawle on Const. ch. 24, p. 224, 225.
119. 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.
120. 1 Kent's Comm. Lect. 2, p. 89; Rutherforth's Instit. B 2, ch. 9, § 20, Grotius, Lib. 2, ch. 8, § 1, 3, 4.
121. 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.)
122. Rawle on Constitution, ch. 20, p. 195, 196.
123. 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.
124. 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.
125. See 1 Black. Comm. 953.
126. 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.
127. See 5 Marshall's Life of Washington: ch. 6: p. 443, 444; 7 Wait's State Papers, 282, 283, 302.
128. 1 Kent's Comm. Lect. 2, p. 37, 38, 39.
129. Marbury v. Madison, 1 Cranch. 137, S. C.; 2 Peters's Cond. R. 276, 277.
130. 1 Wait's American State Papers, 44.
131. 5 Marshall's Life of Washington, ch. 6, p. 404, 408.
132. 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 favor 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.
133. 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.
134. 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 to give any opinion, upon the ground stated in the text. 5 Marshall's Life of Washington, ch. 6, p. 433, 441.
135. 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 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, regarded 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 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 favorite 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 taken, 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 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 favor 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.