scribed by the Constitution that money may be paid out of the treasury, 181

No officer of the United States is authorized to pay debts of the United States on his own authority.182 This is true even if a judgment has been obtained against the United States.183 No mandamus or other remedy lies against any officers of the treasury department on a claim against the United States for the payment of which no appropriation has been made by Congress.

184

§ 169. Titles of nobility.-Clause 8: "No title of nobility shall be granted by the United States; and no person holding any office of profit or trust under them shall, without the consent of the Congress, accept of any present, emolument, office or title of any kind whatever from any king, prince or foreign state."

Titles of nobility were considered entirely out of place in a republic and were, therefore, prohibited. The provision against any person holding any office, public, under the United States, accepting, without the consent of Congress, any present, emolument, office or title from any king, prince or foreign state, was inserted to prevent any foreign power from acquiring any influence in the government of this country, through her control over certain public officials. Even a simple remembrance of courtesy, like a photograph, falls under this prohibition.1 A gift to a department of a government institution, however, is not within the scope of this prohibition.186

181 Campagna v. United States, 26 Ct. Cl. 317.

182 Reeside v. Walker, 11 Howard, 272.

183 United States v. Realty Co.,

163 U. S. 440.

183

CHAPTER IX.

THE EXECUTIVE DEPARTMENT.

§ 170. The Executive Department in England, the colonies and under the Articles of Confederation.-The Government of the United States, under the Articles of Confederation, possessed no Executive Department. The President of Congress was merely the presiding officer of that body, and all executive business was carried on through committees appointed by and under the control of Congress. There was under this form of government no division of powers among distinct departments; whatever powers the National Government possessed at this period were centered in Congress.1

The threefold division of powers among the Legislative, Executive and Judicial Departments, however, was to be found in the Constitutions of all the thirteen States. In eleven of the States the executive power was vested in a single officer, in the other two in an Executive Council.2

In England, at this time, the change was just being completed by which the executive authority passed from the King to a Ministry responsible no longer to the King but to Parliament and primarily to the House of Commons. This change, the result of which was to do away with the division of power among separate departments and to make the House of Commons practically supreme, was not yet appreciated by American students or statesmen. These still looked at the form, rather than the substance of the English Government, and to them this Government still appeared to be one where the powers of Government were divided among distinct and independent departments.

1

IX.

The whole experience and training of the framers of the

Articles of Confederation, Art.

The two States having an ex

ecutive council instead of a governor were Pennsylvania and Dela

ware.

United States Constitution thus were such as to lead them towards a Government with sharply defined Legislative, Executive and Judicial Departments. Such were the Governments of their States, and such as it seemed to them was the Government of England. Such a division, it is true, had not existed under the Articles of Confederation, but the Articles of Confederation had proved a failure and was not an instrument after which the new structure of Government could wisely be modeled.

§ 171. The Constitutional Convention.-The Virginia plan provided for a distinct Executive Department, and such was the desire of a large majority of the delegates to the Convention. In its original form, however, the Virginia plan did not specify whether the executive authority should be vested in a single person or in an executive council. This question between a single executive head and an executive council was felt to be a most delicate one by the members of the Constitutional Convention. Political history, during Colonial days, except in the Charter Colonies of Rhode Island and Connecticut, had consisted mainly of constant quarrels, and difficulties, between the Governors and the Legislatures. As the Governors of this period represented the Crown and the Legislatures the people, the legislative branch of the Government had come to be regarded as the protecting branch of the Government, and the Executive Department as the one from which tyranny might be feared.

Under these circumstances there existed in the country a large. class who were sure to view the establishment of a single national executive official as a menace to both national and personal liberty, and as a return step in the direction of that oppression, from which they had been rescued by the Revolutionary War.

The question as to the form of the Executive Department came before the Constitutional Convention sitting as a Committee of the Whole on June 1, 1787. At first no one seemed willing to venture to speak on this proposition, and discussion on the subject was only started through the suggestion of Mr. Rutledge, that whatever the members might say would only be an

See Appendix C.

* See Madison's Journal of the

Federal Convention under date of
June 1st.

expression of the present opinion of the speakers and would not bind their action in the future if they should see fit to change their position. Upon the ice being broken a spirited discussion ensued on this point, led by Mr. Wilson for a single executive, and by Mr. Rutledge against one. The vote (which was finally taken on June 4) resulted in favor of a single executive by a vote of seven States against three."

On the previous day the Constitutional Convention had voted, eight States to two, that the executive should be elected by the National Legislature.

In the report of the Committee of the Whole to the Convention the section relative to the executive was as follows:

9. "Resolved, that a National Executive be instituted, to consist of a single person, to be chosen by the National Legislature, for the term of seven years, with power to carry into execution the national laws; to appoint to offices in cases not otherwise provided for; to be ineligible to a second term, and to be removable on impeachment and conviction of malpractices or neglect of duty; to receive a fixed stipend by which he may be conrpensated for the devotion of his time to the public service, to be paid out of the National Treasury."

The New Jersey plan, which was rejected as a whole by the Convention on June 19, provided for an Executive Council. The term of office for the President was afterwards reduced from seven years to four, after various terms ranging all the way up to twenty years had been suggested by different delegates as to the proper length of the term of office of the President. At the same time that the length of his term was finally fixed at four years the President was made eligible for reëlection. The question as to the method to be used in the election of a President was debated on a number of days before it finally was set

tled by the Convention. Among the various methods proposed were elections by the people, by the executives of the different States, the executive of each State having one vote; by the executives of the different States, the executive of each having a vote proportionate to the population of the State; by Congress; by the Senate, and by Presidential electors. This last method, which was finally adopted, was suggested by the method used to elect State Senators in Maryland. The provision contained in the Constitution as finally adopted is as follows:

"The executive power shall be vested in a President of the United States of America. He shall hold his office during the term of four years and, together with the Vice-President, chosen for the same term, be elected as follows:

"Each State shall appoint, in such manner as the Legislature thereof shall direct, a number of electors equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress; but no Senator or Representative, or person holding an office of trust or profit under the United States, shall be appointed as elector.

"The electors shall meet in their respective States and vote by ballot for two persons, of whom one at least shall not be an inhabitant of the same State with themselves. And they shall make a list of all persons voted for, and of the number of votes for each, which list they shall sign and certify and transmit sealed to the seat of Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates, and the votes shall then be counted. The person having the greatest number of votes shall be President, if such number be the majority of the whole number of electors appointed, and if there be more than one who have such majority, and have an equal number of votes, then the House of Representatives shall immediately choose by ballot one of them for President; and if no person have a majority, then from the five highest on the list the said House shall in like manner choose the President. But, in choosing the President, the votes shall be taken by States, the Representatives from each State having one vote; a quorum for this purpose shall consist of a