to, that the contrary construction would partially enable the Chief Magistrate to dispense with the Senate, and to nullify a most important constitutional check.

§ 657. The objection to this method of reasoning is, that it is too refined, too etymological. The organic law should not be interpreted in this grammatical manner. Again, it is conceded that the President must remove during a recess, for a cause affecting the officer's capacity or integrity, and that a vacancy thus created must be filled. In conceding so much, the whole case is given up. The breach of trust, the neglect of duty may be considered sufficiently fortuitous, so that the term "happen can properly be applied to them. But these facts do not create the vacancy; that vacancy as much results from the deliberate, intentional act of the President, as though he removed a most able and faithful officer on purely partisan grounds. The Constitution does not recognize any ulterior causes of the vacancies; they must " happen "; and if a vacancy happens from the removal of an incumbent for any ground, the same must be true of a removal for all grounds. In conclusion, it appears evident that, the President's general power to make removals being admitted, his other power to fill all vacancies caused by such removals during a recess, cannot be successfully opposed. Those who would deny the latter authority must go to the bottom of the whole matter, and contest the power to remove at all.

§ 658. I cannot leave this branch of the executive functions without a few remarks which do not strictly belong to constitutional law, but relate rather to administrative policy. Most of the objections brought forward by the original opponents of the Constitution, have proved to be utterly without foundation, or else have been recognized as benefits. The fears expressed in regard to the appointing power of the President have been more than realized; not, perhaps, in the exact direction apprehended, but in another and far worse direction. Congress and the courts have not been corrupted; but the attempt has been made, during a large portion of our political history, and with an alarming success, to corrupt the electors themselves, the people, as the source of all power. Appointment to office has

come to be universally regarded as the reward due for mere partisan services, removal from office as the penalty justly incurred by a partisan opposition. This method of administering public affairs prevails throughout the nation and the states. No one thing has done so much to debauch the politics of this country; to drive good men from the active management of parties; to create the mercenary, trading, professional politician, and to throw the entire control of the political machinery into his hands. Whatever good Jefferson may have done to the cause of liberty and free government, he more than neutralized by the example he set of making removals and appointments as mere punishments and rewards for party opposition and support. This example has found ready imitators. Jackson enlarged its scope and operation, and every President has continued the demoralizing practice. I need not describe the iniquitous results, they are known to all. Passing by the necessary consequence that the public business is negligently and dishonestly performed, the evil influences upon the people themselves are far more destructive. The discharge of official duties in a manner most advantageous to the nation, is a secondary matter. The office holder sees that the administration of the ministerial functions committed to him, is a thing of no comparative importance; in fact, the most perfect administration will not secure him in his position. Above these ministerial functions, which in theory he is appointed to perform, stands the higher and more responsible one of managing party concerns, of packing conventions, of procuring nominations, of marshalling voters, of constructing platforms, of manufacturing a public opinion. In short the office holders throughout the country have become a vast organization, a most efficient instrument for promoting party measures and success.

§ 659. I am confident that this evil cannot be remedied until we return to the methods of Washington and the elder Adams; until we accept as a practical guide, the declaration of Madison, that the appointment of an unfit person, or the removal of a meritorious one, is an impeachable offence. Some officers, the personal advisers of the President, those who directly represent and act for him, whose functions, like his own,

are discretionary, should of course be changed with each Chief Magistrate. But the great mass of ministerial officers, whose duties are not political, should be allowed to hold during good behavior, or at least, should not be subject to removal by every incoming administration.

§ 660. The present system is certainly not absolutely essential to a free country and electoral institutions. The elections in England are contested with at least as much vigor and interest as those with us; party spirit runs as high; disturbances are much more common; the sums expended by candidates are vastly larger than any similar expenditures in this country. Yet no government, whatever be its opinions and its policy, would for a moment think of displacing the office holders which it found in service. The members of the Cabinet, those who are directly responsible for all legislative and executive meassures, are of course changed, but the subordinates of every grade hold during good behavior. We are accustomed to reproach the English politics with the extent of its corruption; we point to the open and almost universal bribery of electors; we comment upon the immense sums paid out by candidates; we contrast all this with our own comparative freedom from such practices. I believe, however, that the American mode of corruption is infinitely worse than the British, as it directly tends to destroy all independence of thought and opinion. The persistent attempt to change the convictions of the people, not by an appeal to their better judgments, but by the tremendous pressure exerted through an organized band of office holders, appears to be far more immoral than the system of direct pecuniary bribery.

§ 661. It may be asked whether there is any remedy for the evil. No mere alteration in the interpretation put upon the Constitution, no mere legislation of Congress will work a cure. The disease lies deeper, and will surely appear whatever be the form of the law. President and Senate can as easily appoint and remove for partisan purposes as the President alone. The remedy must be found in the people. Public opinion must be awakened; and when this mighty power is aroused, and is acting in the true direction, its effects will be seen at

once among office holders and office seekers, among Presidents and Legislatures. When the convictions of the nation are completely changed, the evil will have disappeared.

In March, 1867, Congress passed a statute which distinctly repudiated the construction which has heretofore been given to the Constitution. This act emphatically denies the President's power to remove from office; whether it asserts that the power resides in the President and Senate by the terms of the organic law, or whether it claims that Congress has complete control of the subject, does not distinctly appear. The important sections are three. The first declares in substance that no removal made by the President shall be valid unless consented to by the Senate, and this provision is extended to the heads of departments. The second recognizes the necessity of removals for good cause during a recess, but only permits the President to suspend the officer in such case, until the next session of the Senate, who shall then pass upon the propriety of the suspension. The third section limits the power of the President to fill vacancies which happen during a recess, by restricting his authority to those caused by death or by resignation. Of the validity of this statute I do not purpose to speak; the preceding discussion will indicate the questions which may arise concerning it.

SECTION III.

THE POWER AND DUTY OF THE PRESIDENT TO TAKE CARE THAT THE LAWS BE FAITHFULLY EXECUTED.

§ 662. I need not repeat the observations made in Section I. The Constitution vests in the President the sole executive power; it authorizes and requires him to take care that the laws are faithfully executed. His duties consist, as we have seen, partly in executing the provisions of the Constitution, in which he is independent of legislative control; and partly in taking care that the laws passed under and by virtue of the Constitution are executed. In exercising the latter function a greater or less degree of discretion may be left to him by the

legislative act. These degrees may be arranged as follows: The statute may intrust to him the whole execution, so that whatever is done must issue from him not only in theory, but in fact; or the statute may authorize the creation of new offices, leave the appointment of the officers to the President, and prescribe the exact duties which they, when appointed, are to undertake and perform; or the statute may create new duties, prescribe their methods of performance, and intrust their execution to officers already in existence, who were appointed for some other or different purposes. In the first case the President has the whole power of execution in his own hands; in the second case he must take the initiative by appointing the officers, who, when appointed, have the whole power of execution in their own hands; in the third case he has no function whatever except that of taking care that the laws are faithfully executed.

§ 663. We are met, however, by the question, Whether in those forms of legislative enactment in which the President is clothed with a discretion, in which he is charged with the duty of taking the initiative, in which he is required, not only to take care that the laws be faithfully executed, but to execute them in whole or in part, whether in these cases he may determine for himself what are the laws; whether he may refuse to execute a certain statute or a certain decree of the national courts, on the ground that, while having the outward form of law, the statute or decree is not in fact law, but is void. Were our government modelled exactly after that of Great Britain, this question could not arise; whatever Parliament may ordain, must have the compulsive efficacy of law. But our written national Constitution, lying back of all departments of the government, creating them and defining their functions, renders it possible for any or all of them to exceed their legitimate powers; such excess will be absolutely void; the statute directing it will be no law, however formal and regular its manner of enactment may have been. May the President judge of this character, and refuse to execute all laws which he deems unconstitutional and void?

§ 664. I have already discussed this question in its more