viously in the office and had created a vacancy. (Marbury v. Madison, 1 Cr. 137-156.) Story's Const. § 1554. See also Johnson v. United States, 5 Mason, 425, 438, 439; United States v. Kirkpatrick, 4 Wheat. 733, 734; Bowerbank v. Morris, Wallace Cir. R. 425, 438, 439; Thompson's Case, 3 P. Will. 194; Boucher v. Wiseman, Cro. Eliz. 440; Burch v. Maypowder, 1 Vt. 400.

dor?

180. "AMBASSADORS, OTHER PUBLIC MINISTERS, AND CONSULS." What is an -"AMBASSADORS," comprehend the highest grade only of public Ambassa. ministers. Story's Const. § 1525. See Grotius, Vattel, Martens, Wicquefort, Halleck (ch. 9, pp. 200-239) and Wheaton, Title, 202. AMBASSADORS. For a better definition, see note 202.

Ambassadors could not include consuls, hence the enlargement of the enumeration. Story's Const. § 1525; Federalist, No. 42. See ante, p. 14, Art. IX.

189.

181. "PUBLIC MINISTERS AND CONSULS."-CONSULS.-For the derivation of the word consul (consulere, consulatus, comes, comi- Define contatus), see Co. Litt. lib. 3, note 20; Burrill's Law Dic., CONSUL. suls? The name of a chief magistrate among the Romans, and of Earls, from consulendo, among the Britons. Bract. fol. 5, b. ; 1 Bl. Com. 227. For the origin, history, and duty of consuls, see Halleck's International Law, ch. 15, 239-269, and the many learned authorities there cited.

In commercial and international law, a public agent, appointed by a government to reside in a foreign country (and usually in seaports), to watch over its own commercial rights and privileges, and the commercial interests of its citizens or subjects. 1 Kent's Com. 41.

182. "JUDGES OF THE SUPREME COURT, AND ALL OTHER What offOFFICERS OF THE UNITED STATES, WHOSE APPOINTMENTS ARE Cers can the PresiNOT HEREIN OTHERWISE PROVIDED FOR, AND WHICH SHALL BE dent ESTABLISHED BY LAW."

Judges of the Supreme Court are defined in the Constitution. (Art. III. sec. 1.)

The effect of this and other clauses of the Constitution, on the subject of the appointments to office, is to declare that all offices under the federal government, except in cases where the Constitution itself may otherwise provide, shall be established by law. United States v. Maurice, 2 Brock. 96.

Every thing concerning the administration of justice, or the general interests of society may be supposed to be within the meaning of the Constitution, especially if fees and emoluments are annexed to the office. But there are matters of temporary and local concern, which, although comprehended in the term officers, have not been thought to be embraced by the Constitution. (Lehman v. Sutherland, 3 Serg. Rawle, 149.) Attorney-General Stanbery's Opinion on the Reconstruction Laws, 24th May, 1867, p. 12.

appoint? 179.

Where else

power be

183. "BUT THE CONGRESS MAY VEST BY LAW THE APPOINT- may the appointing MENT, ETC., OF INFERIOR OFFICERS IN THE PRESIDENT ALONE, IN THE COURTS OF LAW, OR IN THE HEADS OF DEPARTMENTS."-Here vested?

179-182.

Officers commissioned?

Tenure of
office?
Can the
President

remove as
well as
appoint?
179, 180.

To what is

the duty of commissioning is distinct from the appointment. The
legislature might require commissions. Marbury v. Madison, 1
Cr. 157; Story's Const. § 1548.

Clerks of courts are such officers; and, in such cases, the power
of removal is incident to the power of appointment. Ex parte
Hennen, 13 Pet. 230, 259. And may be exercised by the court
which appointed. Id.

The President cannot appoint a commissioner of bail, affidavits, &c. That power belongs to the circuit courts. Bates, 24th June, 1861.

184. THE POWER OF REMOVAL. The power of the President to appoint to office, necessarily includes the power to remove all officers appointed and commissioned by him, where the Constitution has not otherwise provided. Therefore he may remove a territorial judge, in his discretion. 5 Opin. 288; 3 Id. 673; 4 Id. 603, 608–9; 4 Elliot's Debates, 350; Ex parte Hennen, 13 Pet. 259. And he may cause a military officer to be stricken from the rolls, without a trial by court-martial, notwithstanding a decision in his favor by a court of inquiry. 4 Opin. 1.; 2 Story's Const. § 1538; Stanbery, 17-19. But see act of 13th July, 1866, in this note; Story's Const. § 1549-1554.

The Senate cannot originate an appointment; its constitutional the Senate's action is confined to a simple affirmation or rejection of the President's nominations; and such nominations fail whenever it disagrees to them. 3 Opin. 188; Stanbery, 18.

action con-
fined.
193, 194.

185.

Art. III.,
Sec. 1.

184.

This clause gives him power to appoint diplomatic agents of any rank, at any place, and at any time, in his discretion, subject to the approbation of the Senate; and this power cannot be limited by act of Congress. 7 Opin. 186.

Nothing is said about the power of removal by the executive of any officers whomsoever. As, however, the tenure of office of no officers except those in the judicial department, is, by the Constitution, provided to be during good behavior, 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. (1 Lloyd's Debates, 511, 512.) Story's Const. § 1537; Keenan v. Perry, 24 Tex. 258. In the absence of a constitutional or statutory provision, the power of removal would seem to be incident to the power of appointment. (Ex parte Hennen, 13 Pet. 259.) Keenan v. Perry, 24 Tex. 258.

As far as Congress constitutionally possesses 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. (Marbury v. Madison, 1 Cranch, 137, 155.) Story's Const. § 1537. See Monroe's Message of 12th April, 1822, 1 Executive Journal, 286; Sergt's Const. ch. 29 [31]; 5 Marshall's Life of Washington, ch. 3, p. 196-200; 1 Lloyd's Debates, 351-366, and 450-600; Id. 1-12.

The removal takes place in virtue of the new appointment, by mere operation of law. Ex parte Hennen, 13 Pet. 300; Federalist, No. 77.

"The consent of the Senate would be necessary to displace as well as to appoint." (Federalist, No. 77.) Story's Const. § 1540. While Mr. Madison claimed the power to remove, he said, "the wanton removal of meritorious officers would subject him (the 191-194. President) to impeachment." (1 Lloyd's Debates, 503; and see Id. 351, 366, 450, 480-600; 4 Elliot's Debates, 141–207.

inoved?

The first limitation on the President's power of removal is as How are the follows: "And no officer in the military or naval service shall, in military retime of peace, be dismissed from service except upon, and in pursuance of, the sentence of a court-martial to that effect, or in commutation thereof." Act of 13th July, 1866, 14 St. p. 92, § 5.

In the differences between the President and Congress, the question was again discussed by the thirty-ninth Congress; and although not very elaborately argued, the positions taken for and against the power were urged, and will be found in the Congressional Globe of that session, and in the President's veto of the following law:

officers?

An Act regulating the Tenure of certain Civil Offices. Act of March 2, "SEC. 1. Every person holding any civil office to which he has 1867, 14 St. been appointed by and with the advice and consent of the Senate, 430. and every person who shall hereafter be appointed to any such What is office, and shall become duly qualified to act therein, is, and shall be tenure of entitled to hold such office until a successor shall have been in like civil manner appointed and duly qualified, except as herein otherwise With what provided: Provided, That the Secretaries of State, of the Treasury, exceptions? of War, of the Navy, and of the Interior, the Postmaster-General, and the Attorney-General, shall hold their offices respectively for and during the term of the President, by whom they may have been appointed, and for one month thereafter, subject to removal by and with the advice and consent of the Senate.

"2. When any officer appointed as aforesaid, excepting judges When may of the United States Courts, shall, during a recess of the Senate, be the President susshown, by evidence satisfactory to the President, to be guilty of pend and misconduct in office, or crime, or for any reason shall become in- temporarily capable or legally disqualified to perform its duties, in such case, appoint? and in no other, the President may suspend such officer and designate some suitable person to perform temporarily the duties of such office until the next meeting of the Senate, and until the case shall be acted upon by the Senate, and such person so designated shall take the oaths and give the bonds required by law to be taken and given by the person duly appointed to fill such office; and in such case it shall be the duty of the President, within twenty days after the first day of such next meeting of the Senate, To whom to to report to the Senate such suspension, with the evidence and report? reasons for his action in the case, and the name of the person so designated to perform the duties of such office. And if the Senate shall concur in such suspension, and advise and consent to the removal of such officer, they shall so certify to the President, who may thereupon remove such officer, and, by and with the advice and consent of the Senate, appoint another person to such If the office. But if the Senate shall refuse to concur in such suspension, refuse to such officer so suspended shall forthwith resume the functions of concur?

Senate

May the President revoke the removal?

If the

Senate refuse to concur in vacancios?

What limit on term? What

his office, and the powers of the person so performing its duties in his stead shall cease, and the official salary and emoluments of such officer shall, during such suspension, belong to the person so performing the duties thereof, and not to the officer so suspended: Provided, however, That the President, in case he shall become satisfied that such suspension was made on insufficient grounds, shall be authorized, at any time before reporting such suspension to the Senate as above provided, to revoke such suspension and reinstate such officer in the performance of the duties of his office.

"3. The President shall have power to fill all vacancies which may happen during the recess of the Senate, by reason of death or resignation, by granting commissions which shall expire at the end of their next session thereafter. And if no appointment, by and with the advice and consent of the Senate, shall be made to such office so vacant or temporarily filled as aforesaid during such next session of the Senate, such office shall remain in abeyance, without any salary, fees, or emoluments attached thereto, until the same shall be filled by appointment thereto, by and with the advice and -consent of the Senate; and during such time all the powers and duties belonging to such office shall be exercised by such other officer as may by law exercise such powers and duties in case of a vacancy in such office.

"4. Nothing in this act contained shall be construed to extend the term of any office the duration of which is limited by law.

"5. If any person shall, contrary to the provisions of this act, penalty for accept any appointment to, or employment in, any office, or shall Accepting or hold or exercise, or attempt to hold or exercise, any such office or exercising office con- employment, he shall be deemed, and is hereby declared to be, trary to this guilty of a high misdemeanor, and, upon trial and conviction thereof, he shall be punished therefor by a fine not exceeding ten thousand dollars, or by imprisonment not exceeding five years, or both said punishments, in the discretion of the court.

act?

And for removal, &c., con

trary to the

act?

When may the President commission?

be certified?

"6. Every removal, appointment, or employment, made, had, or exercised, contrary to the provisions of this act, and the making, signing, sealing, countersigning, or issuing of any commission or letter of authority for or in respect to any such appointment or employment, shall be deemed, and are hereby declared to be, high misdemeanors, and, upon trial and conviction thereof, every person guilty thereof shall be punished by a fine not exceeding ten thousand dollars, or by imprisonment not exceeding five years, or both said punishments, in the discretion of the court: Provided, That the President shall have power to make out and deliver, after the adjournment of the Senate, commissious for all officers whose appointment shall have been advised and consented to by the Senate.

How are "7. It shall be the duty of the secretary of the Senate, at the rejections to close of each session thereof. to deliver to the Secretary of the Treasury, and to each of his assistants, and to each of the auditors, and to each of the comptrollers in the treasury, and to the treasurer, and to the register of the treasury, a full and complete list, duly certified, of all the persons who shall have been nominated to and rejected by the Senate during such session, and a like list of

all the offices to which nominations shall have been made and not confirmed and filled at such session.

8. Whenever the President shall, without the advice and con- What is the sent of the Senate, designate, authorize, or employ any person to duty of the perform the duties of any office, he shall forthwith notify the such case? Secretary in Secretary of the Treasury thereof; and it shall be the duty of the Secretary of the Treasury thereupon to communicate such notice to all the proper accounting and disbursing officers of his depart

ment.

"9. No money shall be paid or received from the treasury, or What re paid or received from or retained out of any public moneys or funds strictions as to pay? of the United States, whether in the treasury or not, to or by or for the benefit of any person appointed to or authorized to act in or holding or exercising the duties or functions of any office contrary to the provisions of this act; nor shall any claim, account, voucher, order, certificate, warrant, or other instrument, providing for or relating to such payment, receipt, or retention, be presented, passed, allowed, approved, certified, or paid by any officer of the United States, or by any person exercising the functions or performing the duties of any office or place of trust under the United States, for or in respect to such office, or the exercising or performing the functions or duties thereof; and every person who shall violate any of the provisions of this section shall be deemed guilty What of a high misdemeanor, and, upon trial or conviction thereof, shall penalty for be punished therefor by a fine not exceeding ten thousand dollars, or by imprisonment not exceeding ten years, or both said punishments, in the discretion of the court." Passed over the President's veto, 2 March, 1867.

violation?

ferior ofli

See the Debates in 1789, on the question Whether the heads of Are the departments were "inferior officers?" 1 Lloyd's Debates, 480-600; Cabinet in 2 Id. 1-12. The result of the debate seems to have been that they cors? were not. (Rawle's Const. ch. 14, pp. 163, 164; Sergeant on the Const. ch. 29 [ch. 31]; see President Monroe's Message of 12th April, 1822.) Story's Const. § 1536-1539. The President was overruled by the Senate, which contended 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 would promote the public service; that Congress fixes the promotions, and every promotion is a new appointment, which requires ratification. (Sergeant's Const. ch. 29) [ch. 31.]

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 latter belongs conjointly to the executive and Senate. Story's Const. § 1538. It results, and is not separable from the appointment itself. (Ex parte Hennen, 13 Pet. 213.) Story's Const. 1538; Federalist, No. 77.

The

The power to remove by the President was affirmed during the administration of President Washington by the casting vote of the Vice-President. Senate Journal, July 18, 1789, p. 42. question was much agitated again during the administration of President Jackson. Finally the power has been denied, in the shape of the tenure of office bill, during the administration of

179.