courts. But there can be no legislation without the cooperation of the house of representatives. The other factors of government cannot enforce this co-operation. The house, therefore, is always able in such a case to annul a treaty in fact, although it has no part in the power of making a treaty. Whether it has the right to do so has repeatedly given rise to very incisive and exciting debates. These debates have not led, however, to any certain decision of the question. The house has not withheld its co-operation; but it has also not dropped its claim of the right to act entirely in accordance with its own judgment, in cases when the fulfillment of the treaty requires it to make an appropriation or do anything else, as to which it may incontestably decide under all other circumstances with full freedom.

$59. THE APPOINTING POWER. Since the constitution, as has already been mentioned, imposes upon the president the duty of taking care that the laws be faithfully executed, it grants him, at the same time, the greatest influence in the selection of the persons by whom these laws are to be executed; that is, the federal officers. The right is unquestionably a necessary consequence of the duty, but only within certain limits. In no state, and least of all in a republic which is pre-eminently a state founded on law and governed "not by persons but by laws," can there be a reasonable ground for every inferior officer's being dependent for his office, that is, for his bread, immediately and absolutely upon the head of the state. On the other hand there are weighty reasons why in a republic the head of the state, even in the selection of those officers, who in a greater or less degree must be persons having his personal confidence, should not be free from all control. The provisions of the con1 Foster vs. Neilson, Peters, II., 253.

stitution as to the appointment of officials are drawn from both points of view. Besides diplomatic representatives and consuls, only the members of the federal supreme court are explicitly designated as officials to be appointed by the president with the consent of the senate. For the rest, the general phrase is used of "all other officers of the United States whose appointments are not herein otherwise provided for and which shall be established by law." This provision is, however, limited by the clause already mentioned, that "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." It is difficult to understand how the question as to whether the heads of the departments themselves should be regarded as "inferior officers," within the meaning of this clause, could have been seriously mooted. For the rest, it is manifestly entirely within the discretion of congress as to how narrowly or how broadly it will fix the limits of this idea. If it regards it as necessary or expedient it can, consequently, save as to the diplomatic corps and the consuls,— reduce the power of the president over appointments to a minimum, and could unquestionably do so in such a manner as not to increase the power of the heads of departments unduly. The legal regulation of the question is not confined to enumerating the offices and granting the power of appointment to the president, the courts of law or the heads of departments. This power, taken in connection with the duty of establishing the offices by law, is broad enough to embrace the right to establish all provisions deemed expedient as to the qualifications required in appointees, the time during which and the conditions under which their incumbency in office is to be ensured, the grounds of claims to promo

tions, etc. In a word, the so-called "civil-service reform," by which the federal offices are to be divested of the character of "spoils," with which party services are paid, is in no kind of opposition to any part of the constitutional law. The framers of the constitution cannot justly be held responsible for the grave abuses in the civil service since the presidency of Andrew Jackson. The constitution renders it possible to satisfy fully in every respect all the requirements of a modern civilized state as to the tenure of office. Nor can they be reproached with having made

1 A good beginning has been made herein by the law of January 16, 1883, the so-called Pendleton bill. The most important provisions of this very significant law are the following: The president is authorized to form a civil-service commission of five persons, of whom only three at most shall belong to the same political party; two must be federal officers of different departments, residing in Washington, and three occupy no other federal office. The task of the commission is to assist the president in formulating the regulations necessary for the execution of this law, on the basis of the following principles: The federal offices which have already been or will be classified for this purpose are to be filled by competitive examinations. Preference is to be given those applicants who have passed the best examinations. The offices in the departments at Washington are to be distributed as far as practicable in proportion to the population among the states and territories and the District of Columbia. A period of probation must precede permanent employment. The commission may order non-competitive examinations in such cases as it sees fit. It must regulate and control the examinations. It must annually report on everything covered by this law to the president for the use of congress and may use the report to make any further suggestions. The commission is authorized to appoint an examiner-in-chief, whose duty it is inter alia to see that the examining boards act alike. The commission appoints the examining boards, consisting of at least three federal officials in the particular state or territory; the heads of the departments to which these officials belong must be consulted in relation to their appointment; the examinations are to be held at least twice a year. The heads of departments must classify inferior officials in conformity with the intent of this law; officials whose appointment must be confirmed by

the president too dependent upon the senate as to the offices which he must fill with its consent. The nomination, that is, the selection of persons to be nominated, is left wholly to him. The co-operation of the senate comes into play only upon the nomination and is limited to that. If it refuse to confirm, the president again has full and free choice among all citizens, and it has happened that he has repeated his first nomination. And if the senate confirms he is still not yet irrevocably bound. The constitution provides in another paragraph that he shall commission all the federal officials (art. II., sec. 3). As long as he has not done this the appointment is not perfected, and he can send a new nomination to the senate. But the appointee has a legal claim to the office from the moment the commission is signed, even if it has not yet been delivered to him. No difficulties arise from the fact that the senate does not remain in permanent session. Vacancies which happen during the senate's recess are filled by the president provisionally. The commis

the senate shall be classified and subjected to examination only upon the request of the senate. Four articles forbid members of congress and all federal officials from asking in any way whatever for money contributions for any political purposes whatever from federal officials and employees, and also from receiving such taxes, and especially from inducing by threats or promises such contributions for political purposes. The prohibition extends to all in all places where federal officials or employees have to perform their official duties. Violations of these provisions are to be punished by fines of as much as $5,000 or by imprisonment for three years or less, or by both fine and imprisonment. See J. M. Comstock, Civil Service in the United States, 1885.

1 Marbury vs. Madison, Cranch, I., 156.

2 The unanimous opinions of several attorney-generals claim for the president the right of filling provisionally any vacancies which may occur during the session. They construe the word "happen" as synonymous with "exist." Certain weighty reasons of expediency

sions he issues in such cases expire at the end of the next session of the senate (art. II., sec. 2, § 3).1

§ 60. THE POWER OF PARDON. The president's power of pardon does not extend nearly as far as that of the rulers in monarchical states, but the interpretation of the constitutional provision concerned by various decisions of the United States supreme court has made this power so extensive that several of the principles set forth in these decisions have been most energetically attacked by leading American publicists. The president is authorized "to grant reprieves and pardons for offenses against the United States, except in cases of impeachment" (art. II., sec. 2, § 1). The president thus has not simply a right of pardon. He can pardon only for offenses against the United States, but as to these the power is entirely unlimited, for, according to the supreme court, the word "pardons" embraces everything which at the time of the adoption of the constitution was understood thereby in English law. He can remit every punishment, from a moneypenalty imposed for a violation of the internal-revenue or customs laws, up to and even including the death penalty. In cases of forfeiture, as far as others have acquired a legal right to the goods forfeited, the pardon naturally remains inoperative. And it does not effect a reinstatement in a forfeited office. For the rest, however, a full pardon annuls every legal consequence of a sentence. Indeed the pardon need not be a complete one. It may be coupled with a condition; and this, as a rule, tends to

certainly favor this interpretation, but the wording does not in my opinion justify it.

1 The important question of removal from office has already been treated. It may be mentioned here that the president cannot refuse the resignation of an official.

2 Ex parte Wells, Howard, XVIII., 309.