is full and complete, and belongs to him by the express terms of the organic law; the legislature may pass laws proper and necessary to aid him, if needed, in the execution of this power, but may not lawfully increase or abridge it. The same discretion also extends to those subordinates who may be employed to exercise in fact this class of executive functions. Indeed their acts are, in such cases, his acts; their discretion is his discretion. The only manner in which Congress may curtail the number and scope of these attributes and functions held by the President, is by diminishing or removing the opportunities and occasions upon which they are called into operation.

The most important of these functions are those belonging to the commander-in-chief, the pardoning power, and the appointing power. The President's capacity as commander-inchief certainly remains dormant until Congress has raised an army, has constructed a navy, or has provided for calling forth the militia; his pardoning power cannot be exercised until Congress has defined crimes and apportioned punishments; his power to appoint officers cannot be exerted until Congress has created the offices which may be filled.

$ 638. Third. The third class of executive attributes and functions are those which depend upon some prior laws of Congress not only for the opportunities and occasions of their exercise, but for their number, character, and scope. Over this class the legislature has a more complete control. It passes laws which must be executed. No discretion need be left in the President. Indeed, the actual execution may be intrusted to designated subordinate officers, and these officers may be directed in the plainest and most positive terms what steps to take, what duties to perform. In such cases the only duty of the President is to "take care that the laws be faithfully executed." This class evidently embraces by far the greater part of the Congressional legislation, and of the executive functions based thereon.

§ 639. We have thus seen, that with respect to the functions included in the first and second classes, the President is clothed with a complete discretion. Many of the acts done by virtue thereof, he does himself; they are the result of his own

volition. Many of these acts, however, are done by subordinate officers, who to this extent represent the Chief Magistrate. But in respect to the functions included in the third class, the President may be deprived of all discretion; special officers may be charged by Congress with the duty of enforcing its measures. Such officers are subject to a double liability. As the laws of Congress indicate the exact scope of their public duties, an injured party may obtain redress against them through the courts for any transgression of those duties; and a party, whom the laws have clothed with a positive right, may invoke the aid of a court having jurisdiction, to compel them to perform their duties. These ministerial officers must also be responsible to the President for the manner in which they carry out the mandates of Congress, or else he would be deprived of the power given him by the Constitution to "take care that the laws be faithfully executed." The only method by which this responsibility can be made effective, is a removal of the delinquent subordinate from his office.

§ 640. The views set forth in the foregoing paragraphs were very clearly stated and maintained by Chief Justice Marshall in the great case of Marbury v. Madison. He says: "By

the Constitution of the United States the President is invested with certain important political powers, in the exercise of which he is to use his own discretion, and is accountable only to his country in his political character, and to his own conscience. To aid him in the performance of these duties, he is authorized to appoint certain officers, who act by his authority and in conformity with his orders. In such cases their acts are his acts; and whatever opinion may be entertained of the manner in which executive discretion may be used, still there exists and can exist no power to control that discretion. The subjects are political. They respect the nation, not individual rights, and being intrusted to the Executive, the decision of the Executive is conclusive. The application of this remark will be perceived by adverting to the Act of Congress for establishing the Department of Foreign Affairs. This officer, as his duties were prescribed by that act, is to conform precisely to

1 1 Cranch's R. 137, 165.

the will of the President. He is the mere organ by whom that will is communicated. The acts of such an officer, as an officer, can never be examinable by the courts. But when the legislature proceeds to impose on that officer other duties; when he is directed peremptorily to perform certain acts; when the rights of individuals are dependent on the performance of those acts; he is so far the officer of the law, is amenable to the laws for his conduct, and cannot at his discretion sport away the vested rights of others. The conclusion from this reasoning is, that where the heads of departments are the political or confidential agents of the Executive, merely to execute the will of the President, or rather, to act in cases in which the Executive possesses a constitutional or legal discretion, nothing can be more perfectly clear than that their acts are only politically examinable. But where a specific duty is assigned by law, and individual rights depend upon the performance of that duty, it seems equally clear that the individual who considers himself injured, has a right to resort to the laws of his country for a remedy."

§ 641. It is evident from the foregoing analysis, that the plan of government adopted in the Constitution is very different from that which is practically operative in Great Britain. So far as the President has executive functions directly conferred upon him, he is independent of Congress. It was never intended that the legislature should draw to itself the duty of administering the laws which it makes. There is danger, it cannot be doubted, lest the Congress should trench upon the attributes of the Executive. This is not done by interfering with the class of powers first above stated (§§ 635, 636). The subject-matter of these powers lies so plainly beyond the sphere of the legislature, that any assertion of jurisdiction over them is hardly to be anticipated. The tendency, if it exist at all, is to control the President in the exercise of his functions of the second class (§ 637); or to commit those of the third class (§ 638), to subordinates, and to limit and restrain the President in any practical exercise over those subordinates, of his power to "take care that the laws be faithfully executed." I need hardly say that such legislation is

opposed to the spirit of the organic law; and if it became general, would break down the independence of the Executive, and practically reduce the government to a single political

branch.

SECTION II.

THE POWER TO APPOINT OFFICERS.

§ 642. We are now prepared to take up and consider the various classes of executive powers in the order already mentioned. I examine, in the first place, the Power of Appointment, because the officers, in all their various subordinate grades, are the means and instruments by which the laws shall be executed, and the general functions and duties of the department performed. The provisions of the Constitution on this subject are as follows: "He [the President] 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. The President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session."

Certain officers are provided for in the Constitution, and the method of their choice or election is also strictly defined in that instrument. These are the President and Vice-President, the Presidential Electors, the Members of the Senate and of the House of Representatives. Article I., Sections II. and III., give exclusive power to each house of Congress to choose its own officers. Article III., Section I., declares that the judicial department shall consist of one Supreme Court, and of such inferior courts as Congress shall from time to time ordain and establish. The number of the judges is left ontirely to the Congress; but the article requires that all the

judges when appointed shall hold their offices during good behavior. It will be seen, therefore, that a very few offices and officers are entirely beyond the control of either Congress or President; that a very few are entirely under the control of the respective houses of Congress; that the judges when appointed, as long as the courts shall exist, are beyond the control of Congress or President, because they cannot be removed during good behavior, nor can their salaries be diminished during their terms of office.

§ 643. In regard to the great mass of subordinate officers, Congress and the President have correlative powers; neither can act without the other. Congress has full power to create the office by law; to fix the compensation; to allot the powers and duties; to prescribe general qualifications or conditions, such as that security shall be given for a faithful discharge of duties, and perhaps personal qualifications, such as loyalty; and, I have no doubt, to regulate the term of office. This done, the power of Congress ceases; they can do no direct act towards filling the office. Such act is the sole, independent function of the President, by and with the consent of the Senate; except that in the case of "inferior officers," the appointment may be vested by law in the President alone, or in the courts, or in the heads of departments, without requiring the Senate's consent. What class of officers come within the designation of "inferior," has never been established, and cannot be determined with any precision and certainty. The practical construction which Congress has placed upon the clause, confines its operation to those public agents whose duties are quite subordinate.

§ 644. When the Constitution was first submitted to the people for adoption, many persons of great ability and experience, as well as many others who were only demagogues, attacked the proposed scheme with vigor and persistence. These attacks were largely directed against the plan for an Executive; and among others of his powers which were objected to, none was opposed more bitterly than the power of appointment. As a clear statement of these objections, I will quote from the celebrated letter of Luther Martin to the