heads can not act President. "Lary style, in which an executive act is, by law, required Department erformed by a given Head of Department. I think here eral rule to be as already stated, that the Head of Depart- against the is subject to the direction of the President. I hold that no d of Department can lawfully perform an official act against e will of the President; and that will is by the Constitution to govern the performance of all such acts. If it were not thus, Congress might by statute so divide and transfer the executive ower as utterly to subvert the Government, and to change it into a parliamentary despotism, like that of Venice or Great Britain, with a nominal executive chief utterly powerless, — whether under the name of Doge or King, or President, who would then be of little account, so far as regards the question of the maintenance of the Constitution.1 Without enlarging upon this branch of the inquiry, it will suffice to say that, in my opinion, all the cases in which a Head of Department performs acts, independent of the President, are reducible to two classes, namely: first, acts purely ministerial; and, secondly, acts in which the thing done does not belong to the office, but the title of the office is employed as a mere designatio persona. To elucidate my thought in this respect, let us look into the daily course and routine of administration. duties of "executive The Secretary of State is constantly receiving communications Ordinary from the public ministers and consuls of the United States abroad, from foreign ministers accredited to the United States, and from heads. private citizens having concerns in his department, and he is dispatching letters, instructions, orders, in return, to all parts of the world. The Secretary of the Treasury is in communication with collectors, assistant-treasurers, disbursing agents, and many other officers, as also with private individuals in all the multifarious business of his department. The Secretary of War and the Secretary of the Navy are receiving applications from, and addressing instructions and orders to, all the officers of the Army and Navy, and contractors and others persons within the juris 1 For an opposite view, see below, p. 200. What must the President do personally? Statutes not uniform in functions. So he appoints and removes ambassadors and other officers of the United States, in the cases and with the qualifications indicated by the Constitution. So he approves or disapproves of bills which have passed both Houses of Congress: that is a personal act of the President like the vote of a Senator or Representatives in Congress, not capable of performance by a Head of Department or any other person. But the question, whether a given duty is to be the immediate deed of the President, or to be performed by delegation, does not seem to depend, at least in all its degrees, upon the fact of its being expressly enumerated in the Constitution; for, in certain stages of the negotiation of a treaty, anterior to and including its signature, he delegates full powers to another person. But, after all, it must be communicated by the President to the Senate, and it does not become the effective law of the land until there is exchange of ratifications, officially made and proclaimed by the President. At the same time, be it observed that, in the Constitution, no case occurs of the communication of power directly to any Head of Department, except in the respect of the appointment of such inferior officers as may be intrusted to them by act of Congress. We shall have reason to conclude, in the sequel, that even this cannot be regarded as a power independent of that of the President. On an examination of the whole body of the statutes of the United distribution States, it will be found that, in the designation of executive acts of executive to be performed, there is no uniformity of language, no systematic style of legislation. Sometimes a statute says the President shall perform the act, sometimes that this or that Secretary shall perform it, without there being, in general, any constitutional or legal distinction between the authority of the respective acts, all of them being of things which, on the one hand, the President may, if he please, delegate to a Head of Department, and which, on the other hand, cannot be done by a Head of Department without direction of the President. Take now the converse form of legislation, that common or strie, in vinh an exertive art is, by law, required Imano mec ta giver Head of Deparment I think ber but are Tut I be as 'reacy stated that the Head of Dean arare fre the dean of the President I noid that no Best of Den Lonment can avidly perform an official act against When the President must be consulted. Verbal directions by the President. Written directions. diction of their respective departments. The Postmaster General On such consultation, in the great majority of cases, the Secretary will take and act upon the verbal direction of the President, because the object of the consultation is, in general, to ascertain the President's will, or at most to determine, by conference and comparison of thought, what the public interest requires, just as in the last relation the President himself consults any one or all of the members of the Cabinet. But the case may and often does happen, in which the Secretary desires, or the President chooses, to give a written direction. In this contingency the responsibility of the act done continues to be shared in common by the President and the Secretary; but a direct and more individual responsibility, legal and moral, is assumed by the President. Just so it is in principle, but with inversion of responsibility, when the President, in regard to some line of public policy to be adopted by him, or some general or superior direction to be given, demands the written advice of the Heads of Departments. tion of responsibility. In a word, while there is a general solidarity of responsibility The ques for public measures, as between the President and the Heads of Department, and while a general responsibility of direction is attributable to the President and of execution to the Heads of Department, yet the weight of historical responsibility, and perhaps of legal, may be shifted partially from one to another, according as the determination is governed or evidenced by the written direction of the President or by the written advice of the Head of Department. 73. The President as National Spokesman in Foreign Affairs Early in the history of our republic, Thomas Jefferson as Secretary of State laid down in the following letter to M. Genet, the diplomatic representative of France, the proposition that the President was to be regarded as the sole person authorized to speak with authority for the United States on the conduct of foreign affairs. SIR, — In my letter of October 2, I took the liberty of noticing to you that the commission of consul to M. Dannery ought to have been addressed to the President of the United States; he being the only channel of communication between this country and foreign nations, it is from him alone that foreign nations or their agents are to learn what is or has been the will of the nation, and whatever he communicates as such, they have a right, and are bound to consider as the expression of the nation, and no foreign agent can be allowed to question it, to interpose between him and any other branch of the government, under the pretext of either's transgressing their functions, nor to make himself the umpire and final judge between them. The will of expressed through the the nation is President. The Presi dent's authority cannot be I am, therefore, sir, not authorized to enter into any discussions with you on the meaning of our constitution in any part of it, or to prove to you that it has ascribed to him alone the admission or interdiction of foreign agents. I inform you of the fact by author- questioned. ity from the President. I had observed to you that we were persuaded that in the case of the consul Dannery, the errour in the |