ployed in the execution of the law will be in their proper situation, and the chain of dependdle grade, and the highest will depend, as they ence be preserved; the lowest officers, the midought, on the President, and the President on the community." 1 Annals of Congress, 499.

Mr. Boudinot of New Jersey said upon the same point:

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any one inferior federal court which it may If the President should possess alone the powconstitute. It is clear that the mere estab-er of removal from office, those who are emlishment of a federal inferior court does not vest that court with all the Judicial power of the United States as conferred in the second section of article 3, but only that conferred by Congress specifically on the particular court. It must be limited territorially and in the classes of cases to be heard, and the mere creation of the courts does not confer jurisdiction except as it is conferred in the law of "The supreme executive officer against his asits creation or its amendments. It is said sistant; and the Senate are to sit as judges to that similarly in the case of the executive determine whether sufficient cause of removal power, which is "vested in the President," exists. Does not this set the Senate over the the power of appointment and removal can-head of the President? But suppose they *shall not arise until Congress creates the office and decide in favor of the officer, what a situation its duties and powers, and must accordingly is the President then in, surrounded by officers be exercised and limited only as Congress with whom, by his situation, he is compelled to shall in the creation of the office prescribe. act, but in whom he can have no confidence, reWe think there is little or no analogy be- versing the privilege given him by the Constitween the two legislative functions of Con- tution, to prevent his having officers imposed upon him who do not meet his approbation?" gress in the cases suggested. The judicial 1 Annals of Congress, 468. power described in the second section of article 3 is vested in the courts collectively, but is manifestly to be distributed to different courts and conferred or withheld as Congress shall in its discretion provide their respective jurisdictions, and is not all to be vested in one particular court. Any other construction would be impracticable. The duty of Congress, therefore, to make provision for the vesting of the whole federal judicial power in federal courts, were it held to exist, would be one of imperfect obligation and unenforceable. On the other hand, the moment an office and its powers and duties are created, the power of appointment and removal, as limited by the Constitution, vests in the exec

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u*tive. The functions of distributing jurisdiction to courts and the exercise of it when distributed and vested are not at all parallel to the creation of an office, and the mere right of appointment to, and of removal from, the office which at once attaches to the executive by virtue of the Constitution.

Fourth. Mr. Madison and his associates pointed out with great force the unreasonable character of the view that the convention intended, without express provision, to give to Congress or the Senate, in case of political or other differences, the means of thwarting the executive in the exercise of his great powers and in the bearing of his great responsibility by fastening upon him, as subordinate executive officers, men who by their inefficient service under him, by their lack of loyalty to the service, or by their different views of policy might make his taking care that the laws be faithfully executed most difficult or impossible.

Mr. Sedgwick of Massachusetts asked the question:

"Shall a man under these circumstances be saddled upon the President, who has been appointed for no other purpose but to aid the President in performing certain duties? Shall he be continued, I ask again, against the will of the President? If he is, where is the responsibility? Are you to look for it in the Presi-, dent, who has no control over the officer, no power to remove him if he acts unfeelingly or unfaithfully? Without you make him responsible, you weaken and destroy the strength and beauty of your system." 1 Annals of Congress, 522.

Made responsible under the Constitution for the effective enforcement of the law, the President needs as an indispensable aid to meet it the disciplinary influence upon those who act under him of a reserve power of reofficers appointed by the President with the consent of the Senate are bound by the statutory law, and are not his servants to do his will, and that his obligation to care for the faithful execution of the laws does not authorize him to treat them as such. The degree of guidance in the discharge of their duties that the President may exercise over executive officers varies with the character of their service as prescribed in the law under which they act. The highest and most important duties which his subordinates perform are those in which they act for him. In such cases they are exercising not their own but his discretion. This field is a very large one. It is sometimes described as political. Kendall v. United States, 12 *Pet.

moval. But it is contended that executive

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As Mr. Madison said in the debate in the 524, at page 610, 9 L. Ed. 1181. Each head of First Congress:

"Vest this power in the Senate jointly with the President, and you abolish at once that great principle of unity and responsibility in the executive department, which was intended for the security of liberty and the public good.

a department is and must be the President's alter ego in the matters of that department where the President is required by law to exercise authority.

The extent of the political responsibility thrust upon the President is brought out by

(47 S.Ct.)

Mr. Justice Miller, speaking for the court in, bureaus in which the discretion of the PresiCunningham v. Neagle, 135 U. S. 1, at page 63, 10 S. Ct. 658, 668 (34 L. Ed. 55):

"The Constitution, section 3, article 2, de

clares that the President 'shall take care that the laws be faithfully executed,' and he is provided with the means of fulfilling this obligation by his authority to commission all the officers of the United States, and by and with the advice and consent of the Senate to appoint the most important of them and to fill vacancies. He is declared to be commander-in-chief of the Army and Navy of the United States. The duties which are thus imposed upon him he is further enabled to perform by the recognition in the Constitution, and the creation by Acts of Congress, of executive departments, which

have varied in number from four or five to seven or eight, the heads of which are familiarly called Cabinet ministers. These aid him in the performance of the great duties of his office, and represent him in a thousand acts to which it can hardly be supposed his personal attention is called, and thus he is enabled to fulfill the duty of his great department, expressed in the phrase that he shall take care that the laws be faithfully executed.'"

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dent is exercised and which we have described are the most important in the whole field of executive action of the government. There is nothing in the Constitution which permits a distinction between the removal of the head of a department or a bureau, when he discharges a political duty of the President or exercises his discretion, and the removal of executive officers engaged in the discharge of their other normal duties. The imperative reasons requiring an unrestricted power to remove the most important of his subordinates in their most important duties must therefore control the interpretation of the Constitution as to all appointed by him.

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*But this is not to say that there are not strong reasons why the President should have a like power to remove his appointees charged with other duties than those above described. The ordinary duties of officers prescribed by statute come under the general administrative control of the President by virtue of the general grant to him of the executive power, and he may properly supervise and guide their construction of the statutes under which they act in order to secure that unitary and uniform execution of the laws which article 2 of the Constitution evidently contemplated in vesting general executive power in the President alone. Laws are often passed with specific provision for the adoption of regulations by a department or bureau head to make the law workable and effective. The ability and judgment manifested by the official thus empowered, as well as his energy and stimulation of his subordinates, are sub

He instances executive dealings with foreign governments, as in the case of Martin Koszta, and he might have added the Jonathan Robins Case as argued by John Marshall in Congress, 5 Wheat. Appendix 1, and approved by this court in Fong Yue Ting V. United States, 149 U. S. 698, 714, 13 S. Ct. 1016, 37 L. Ed. 905. He notes the President's duty as to the protection of the mails, as to which the case of In re Debs, 158 U. S. 564, 582, 584, 15 S. Ct. 900, 39 L. Ed. 1092, affords an illustration. He *instances executive obli-jects which the President must consider and gation in protection of the public domain, as in United States v. San Jacinto Tin Co., 125 U. S. 273, 8 S. Ct. 850, 31 L. Ed. 747, and United States v. Hughes, 11 How. 552, 13 L. Ed. 809. The possible extent of the field of the President's political executive power may be judged by the fact that the quasi civil governments of Cuba, Porto Rico, and the Philippines, in the silence of Congress, had to be carried on for several years solely un-acter imposed on executive officers and mem

der his direction as commander-in-chief.

supervise in his administrative control. Finding such officers to be negligent and inefficient, the President should have the power to remove them. Of course there may be duties so peculiarly and specifically committed to the discretion of a particular officer as to raise a question whether the President may overrule or revise the officer's interpretation of his there may be duties of a quasi judicial charstatutory duty in a particular instance. Then

bers of executive tribunals whose decisions

In all such cases, the discretion to be ex- after hearing affect interests of individuals, ercised is that of the President in deter- the discharge of which the President cannot mining the national public interest and in di- in a particular case properly influence or recting the action to be taken by his executive control. But even in such a case he may subordinates to protect it. In this field his consider the decision after its rendition as cabinet officers must do his will. He must a reason for removing the officer, on the place in each member of his official family, ground that the discretion regularly entrustand his chief executive subordinates, implicit ed to that officer by statute has not been on faith. The moment that he loses confidence the whole intelligently or wisely exercised. in the intelligence, ability, judgment, or loyal- Otherwise he does not discharge his own conty of any one of them, he must have the pow-stitutional duty of seeing that the laws be er to remove him without delay. To require faithfully executed. him to file charges and submit them to the consideration of the Senate might make impossible that unity and co-ordination in executive administration essential to effective action.

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*We have devoted much space to this discussion and decision of the question of the presidential power of removal in the First Congress, not because a congressional conThe duties of the heads of departments and clusion on a constitutional issue is conclusive,

deduced this from article 2 of the Constitution on the executive power, and followed exactly the reasoning of Madison and his associates as to the executive power upon which the legislative decision of the first Congress as to Presidential removals depends, and he cites it as authority. He said:

but first because of our agreement with the) tional treaties and to declare neutrality. He reasons upon which it was avowedly based, second because this was the decision of the First Congress on a question of primary importance in the organization of the government made within two years after the Constitutional Convention and within a much shorter time after its ratification, and third because that Congress numbered among its leaders those who had been members of the convention. It must necessarily constitute a precedent upon which many future laws supplying the machinery of the new government would be based and, if erroneous, would be likely to evoke dissent and departure in future Congresses. It would come at once before the executive branch of the government for compliance and might well be brought before the judicial branch for a test of its validity. As we shall see, it was soon accepted as a final decision of the question by all branches of the government.

It was, of course, to be expected that the decision would be received by lawyers and jurists with something of the same division of opinion as that manifested in Congress, and doubts were often expressed as to its correctness. But the acquiescence which was promptly accorded it after a few years was universally recognized.

"The second article of the Constitution of the United States, section first, establishes this general proposition, that 'the Executive Power shall be vested in a President of the United States of America.'

"The same article, in a succeeding section, proceeds to delineate particular cases of executive power. It declares, among other things, that the President shall be commander in chief.

138

of the army and navy of the United States, and of the militia of the several states, when called into the actual service of the United

States; that he shall have power, by and with the advice and consent of the Senate, to make treaties; that it shall be his duty to receive ambassadors and other public ministers, and to take care that the laws be faithfully executed. "It would not consist with the rules of sound construction, to consider this enumeration of particular authorities as derogating from the more comprehensive grant in the general clause, further than as it may be coupled with express restrictions or limitations, as in regard to the co-operation of the Senate in the appointment of officers and the making of treaties, which are plainly qualifications of the general executive powers of appointing officers and making treaties. The difficulty of a complete enumeration of all the cases of executive authority would naturally dictate the use of general terms, and would render it improbable that a specification of certain particulars was designed as a substitute for those terms, when antecedently used.

A typical case of such acquiescence was that of Alexander Hamilton. In the discussion in the House of Representatives in 1789, Mr. White and others cited the opinion of Mr. Hamilton in respect to the necessity for the consent of the Senate to the removals by the President before they should be effective. 1 Annals, First Congress, 456. It was expressed in No. 77 of the Federalist, as fol- The different mode of expression employed in

lows:

137

the Constitution, in regard to the two powers, firm this inference. In the article which gives the legislative and the executive, serves to conthe legislative powers of the government, the expressions are 'All legislative powers herein granted shall be vested in a congress of the United States.' In that which grants the execpower, the expressions are 'The executive power shall be vested in a President of the

*"It has been mentioned as one of the advantages to be expected from the co-operation of the Senate in the business of appointments, that it would contribute to the stability of the administration. The consent of that body would be necessary to displace as well as to appoint.utive A change of the Chief Magistrate, therefore,

would not occasion so violent or so general a revolution in the officers of the government as might be expected if he were the sole disposer

of offices."

Hamilton changed his view of this matter during his incumbency as Secretary of the Treasury in Washington's Cabinet, as is shown by his view of Washington's first proclamation of neutrality in the war between

United States.'

"The enumeration ought therefore to be considered, as intended merely to specify the principal articles implied in the definition of executive power; leaving the rest to flow from the general grant of that power, interpreted in conformity with other parts of the Constitution, and with the principles of free govern

ment.

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"The general doctrine of our Constitution then is that the executive power of the nation is vested in the President, subject only to the exceptions and qualifications, which are expressed in the instrument.

France and Great Britain. That proclamation was at first criticized as an abuse of executive authority. It has now come to be regarded as one of the greatest and most valuable acts of the first President's administration, and has been often followed by succeeding Presidents. Hamilton's argument was that the Constitution, by vesting the executive power in the President, gave him the right, as the organ of intercourse between the "With these exceptions, the executive power nation and foreign nations, to interpret na-lof the United States is completely lodged in the

"Two of these have already been noticed, the participation of the Senate in the appointment of officers, and in the making of treaties. A third remains to be mentioned; the right of the Legislature to 'declare war, and grant letters of marque and reprisal.'

(47 S.Ct.)

President. This mode of construing the Constitution has indeed been recognized by Congress in formal acts upon full consideration and debate, of which the power of removal from office is an important instance. It will follow that if a proclamation of neutrality is merely an executive act, as it is believed, has been shown, the step which has been taken by the President is liable to no just exception on the score of authority." 7 J. C. Hamilton's Works of Hamilton, 80, 81.

appointment, that the President had signed the commission as provided by the Constitution, and had transmitted it to the Secretary of State, who, as provided by statute, had impressed the seal of the United States thereon. The opinion of the Chief Justice on these questions was that the commission was only evidence of the appointment, that upon delivery of the signed commission by the President to the Secretary of State, the office was filled and the occupant was thereafter entitled to the evidence of his appointment in the form of the commission, that the duty of the Secretary in delivering the commission

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to the officer entitled *was merely ministerial and could be enforced by mandamus, that the function of the Secretary in this regard was entirely to be distinguished from his duty as a subordinate to the President in the discharge of the President's political duties which could not be controlled.

The words of a second great constitutional authority quoted as in conflict with the congressional decision are those of Chief Justice Marshall. They were used by him in his opinion in Marbury v. Madison (1803) 1 Cranch, 137, 2 L. Ed. 60. The judgment in that case is one of the great landmarks in the history of the construction of the Constitution of the United States, and is of supreme authority first in respect to the power and duty of the Supreme Court and other courts to consider and pass upon the validity of acts of Congress enacted in violation of the limitations of the Constitution when properly brought before them in cases in which the rights of the litigating parties require such consideration and decision, and second in respect to the lack of power of Congress to vest in the Supreme Court original jurisdic-in tion to grant the remedy of mandamus in cases in which by the Constitution it is given only appellate jurisdiction. But it is not to be regarded as such authority in respect of the power of the President to remove officials appointed by the advice and consent of the Senate, for that question was not before

the court.

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The case was heard upon a rule served upon James Madison, Secretary of State, to show cause why a writ of mandamus should not issue directing the defendant, Madison, to deliver to William Marbury his commission as a justice of the peace for the county of Washington in the District of Columbia. The rule was discharged by the Supreme Court, for the reason that the court had no jurisdiction in such a case to issue a writ of

mandamus.

It would seem that this conclusion applied, under the reasoning of the opinion, whether the officer was removable by the President or not, if in fact the President had not removed him. But the opinion assumed that in the case of a removable office the writ would fail on the presumption that there was such a case discretion of the appointing power to withhold the commission. the Chief Justice proceeded to express an opinion on the question whether the ap pointee was removable by the President. He

said:

And so

"As the law creating the office, gave the officer a right to hold it for five years, independent vocable; but vested in the officer legal rights, of the executive, the appointment was not rewhich are protected by the laws of his country."

rule issued in the case. There was no answer by Madison to the default. It did not appear even by avowed The case went by opposition to the issue of the writ that the President had intervened in the matter at all. It would seem to have been quite consistent with the case as shown that this was merely an arbitrary refusal by the Secretary to perform his ministerial function, and therefore that the expression of opinion that the ofThe court had therefore nothing before it ficer was not removable by the President calling for a judgment upon the merits of the was unnecessary, even to the conclusion that question of issuing the mandamus. Notwitha writ in a proper case could issue. Howstanding this, the opinion considered pre-ever this may be, the whole statement was liminarily, first, whether the relator had the right to the delivery of the commission; and, second, whether it was the duty of the Secretary of State to deliver it to him and a duty which could be enforced in a court of competent jurisdiction at common law by a writ of mandamus. The facts disclosed by affidavits filed were that President Adams had nominated Marbury to be a justice of the peace in the District of Columbia under a law of Congress providing for such appointment, by and with the advice and consent of the Senate, for the term of five years, and that the Senate had consented to such an 47 S.CT.-3

certainly obiter dictum with reference to the judgment actually reached. The question whether the officer was removable was not argued to the court by any counsel contending for that view. Counsel for the relator, who made the only argument, contended that the officer was not removable by the President, because he held a judicial office and

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*under the Constitution could not be deprived of his office for the five years of his term by presidential action. The opinion contains no wider discussion of the question than that quoted above.

While everything that the great Chief Jus-, ence to an office in the District of Columbia, tice said, whether obiter dictum or not, chal- over which by article 1, § 8, subd. 17, Conlenges the highest and most respectful con- gress had exclusive jurisdiction in all cases, sideration, it is clear that the mere statement and might not apply to offices outside of the of the conclusion made by him, without any District in respect to which the constant examination of the discussion which went practice and the congressional decision had on in the First Congress, and without refer- been the other way (page 335 [17 S. Ct. 880]). ence to the elaborate arguments there ad- How much weight should be given to this vanced to maintain the decision of 1789, can- distinction, which might accord to the special not be regarded as authority in considering exclusive jurisdiction conferred on Congress the weight to be attached to that decision, a over the District power to ignore the usual decision which, as we shall see, he subse- constitutional separation between the execuquently recognized as a well-established rule tive and legislative branches of the governof constitutional construction. ment, we need not consider.

In such a case we may well recur to the Chief Justice's own language in Cohen v. Virginia, 6 Wheat. 264, 399, 5 L. Ed. 257, in which, in declining to yield to the force of his previous language in Marbury v. Madison, which was unnecessary to the judgment in that case and was obiter dictum, said:

"It is a maxim, not to be disregarded, that general expressions, in every opinion, are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit, when the very point is presented for decision. The reason of this maxim is obvious. The question actually before the court is investigated with care, and considered in its full extent. Other principles which may serve to illustrate it, are considered in their relation to the case decided, but their possible bearing on all other cases is seldom completely investigated."

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If the Chief Justice in Marbury v. Madison intended to express an opinion for the court inconsistent with the legislative decision of 1789, it is enough to observe that he changed his mind, for otherwise it is incon

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ceivable that he should have written and printed his full account of the discussion and decision in the First Congress and his acquiescence in it, to be found in his Life of Washington (volume V, pp. 192-200).

He concluded his account as follows: "After an ardent discussion which consumed several days, the committee divided; and the amendment [i. e., to strike out from the original bill the words 'to be removable by the President'] was negatived by a majority of 34 to 20. The opinion thus expressed by the House of Representatives did not explicitly convey their sense of the Constitution. Indeed the express grant of the power of the President, rather implied a right in the Legislature to give or withhold it at their discretion. To obviate any misunderstanding of the principle on which the question had been decided, Mr. Benson [later] moved in the House, when the report of the Committee of the whole was taken up, to amend the second clause in the bill so as clearly to imply the power of removal to be solely in the President. He gave notice that if he should succeed in this, he would move to strike out the words which had been the subject of debate. If those words continued, he said the power of removal by the President might hereafter appear to be exercised by virtue of a legislative grant only and consequently be subjected to legislative instability, when he was well satisfied in his own mind, that it was by fair construction, fixed in the Constitution. The motion was secde-onded by Mr. Madison, and both amendments were adopted. As the bill passed into a law, it has ever been considered as a full expression of the sense of the Legislature on this important part of the American Constitution."

The weight of this dictum of the Chief Justice as to a presidential removal in Marbury v. Madison, was considered by this Court in Parsons v. United States, 167 *U. S. 324, 17 S. Ct. 880, 42 L. Ed. 185. It was a suit by Parsons against the United States for the payment of the balance due for his salary and fees as United States district attorney for Alabama. He had been commissioned as such under the statute for the term of four years from the date of the commission, subject to the conditions prescribed by law. There was no express power of removal provided. Before the end of the four years he was removed by the President. He was nied recovery.

The language of the court in Marbury v. Madison, already referred to, was pressed upon this court to show that Parsons was entitled, against the presidential action of removal, to continue in office. If it was authoritative, and stated the law as to an executive office, it ended the case; but this court did not recognize it as such, for the reason that the Chief Justice's language relied on was not germane to the point decided in Marbury v. Madison. If his language was more than a dictum and a decision, then the Parsons' Case overrules it.

Another distinction suggested by Mr. Justice Peckham in Parsons' Case was that the remarks of the Chief Justice were in refer

This language was first published in 1807, four years after the judgment in Marbury v. Madison, and the edition was revised by the Chief Justice in 1832. 3 Beveridge, Life of Marshall, 248, 252, 272, 273.

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*Congress in a number of acts followed and enforced the legislative decision of 1789 for 74 years. In the act of the First Congress, which adapted to the Constitution the ordinance of 1787 for the government of the Northwest Territory, which had provided for the appointment and removal of executive