cretionary power in congress, to some extent, cannot well be questioned. If any discretion should be allowed, its limits could hardly admit of being exactly defined;

already waiting for months, and the senate have not been able to find a moment of time to attend to them; and this evil must constantly increase, so that the senate must be constantly sitting, and must be paid as long as they sit.

"But I have tired your patience. Is there any truth or importance in these broken hints and crude surmises, or not? To me they appear well founded, and very important.'

"To these remarks Mr. Sherman replied, that he esteemed the provision made for appointments to office to be a matter of very great importance, on which the liberties and safety of the people depended, nearly as much as on legislation. If that was vested in the president alone, he might render himself despotic. It was a saying of one of the kings of England, "that while the king could appoint the bishops and judges, he might have what religion and laws he pleased." To give that observation its full effect, they must hold their offices during his pleasure; by such appointments, without control, a power might be gradually established, that would be more formidable than a standing army.

"It appears to me, that the senate is the most important branch in the government, for the aid and support of the executive, for securing the rights of the individual states, the government of the United States, and the liberties of the people. The executive is not to execute its own will, but the will of the legislature declared by the laws, and the senate, being a branch of the legislature, will be disposed to accomplish that end, and advise to such appointments, as will be most likely to effect it; from their knowledge of the people in the several states, they can give the best information who are qualified for office. And they will, as you justly observe, in some degree lessen his responsibility, yet, will he not have as much remaining as he can well support? and may not their advice enable him to make such judicious appointments, as to render responsibility less necessary? no person can deserve censure, when he acts honestly according to his best discretion.

"The senators, being chosen by the legislatures of the states, and depending on them for re-election, will naturally be watchful to prevent any infringement of the rights of the states. And the government of the United States being federal, and instituted by a number of sovereign states for the better security of their rights, and advancement of their interests, they may be considered as so many pillars to support it, and by the exercise of the state governments, peace and good order may be preserved in the places most remote from the seat of the federal government, as well as at the centre.

and it might fairly be left to congress to act according to the lights of experience. It is difficult to foresee, or to provide for all the combinations of circumstances,

"I believe this will be a better balance to secure the government, than three independent negatives would be.

"I think you admit, in your Defence of the Governments of the United States, that even one branch might serve in a diplomatic government, like that of the Union; but I think the constitution is much improved by the addition of another branch, and those of the executive and judiciary. This seems to be an improvement on federal government, beyond what has been made by any other states. I can see nothing in the constitution, that will tend to its dissolution, except the article for making amendments.

"That the evils, that you suggest, may happen in consequence of the power vested in the senate, to aid the executive, appears to me to be but barely possible. The senators, from the provision made for their appointment, will commonly be some of the most respectable citizens in the states, for wisdom and probity, and superior to faction, intrigue, or low artifice, to obtain appointments for themselves, or their friends, and any attempts of that kind would destroy their reputation with a free and enlightened people, and so frustrate the end they would have in view. Their being candidates for re-election will probably be one of the most powerful motives (next to that of their virtue) to fidelity in office, and by that means alone would they hope for success. “He, that walketh uprightly, walketh surely," is the saying of a divinely inspired writer-they will naturally have the confidence of the people, as they will be chosen by their immediate representatives, as well as from their characters, as men of wisdom and integrity. And I see not why all the branches of government should not harmonize in promoting the great end of their institution, the good and happiness of the people.

"The senators and representatives being eligible from the citizens at large, and wealth not being a requisite qualification for either, they will be persons nearly equal, as to wealth and other qualifications, so that there seems not to be any principle tending to aristocracy; which, if I understand the term, is a government by nobles, independent of the people, which cannot take place with us, in either respect, without a total subversion of the constitution. I believe the more this provision of the constitution is attended to, and experienced, the more the wisdom and utility of it will appear. As senators cannot hold any other office themselves, they will not be influenced, in their advice to the president, by interested motives. But it is said, they may have friends and kindred to provide for; it is true they may, but when we consider their character and situation, will they not be diffident of nominating a friend, or relative, who may wish for an office, and be well qualified for it, lest it

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which might vary the right to appoint in such cases. In one age the appointment might be most proper in the president; and in another age, in a department.

§ 1530. In the practical course of the government, there does not seem to have been any exact line drawn, who are, and who are not, to be deemed inferior officers in the sense of the constitution, whose appointment does not necessarily require the concurrence of the senate.' In many cases of appointments, congress have required the concurrence of the senate, where, perhaps, it might not be easy to say, that it was required by the constitution. The power of congress has been exerted

should be suspected to proceed from partiality? And will not their fellow members have a degree of the same reluctance, lest it should be thought they acted from friendship to a member of their body? so that their friends and connexions would stand a worse chance, in proportion to their real merit, than strangers. But if the president was left to select a council for himself, though he may be supposed to be actuated by the best motives- yet he would be surrounded by flatterers, who would assume the character of friends and patriots, though they had no attachment to the public good, no regard to the laws of their country, but influenced wholly by self-interest, would wish to extend the power of the executive, in order to increase their own; they would often advise him to dispense with laws, that should thwart their schemes, and in excuse plead, that it was done from necessity to promote the public good — they will use their own influence, induce the president to use his, to get laws repealed, or the constitution altered, to extend his powers and prerogatives, under pretext of advancing the public good, and gradually render the government a despotism. This seems to be according to the course of human affairs, and what may be expected from the nature of things. I think, that members of the legislature would be most likely duly to execute the laws, both in the executive and judiciary departments."

1 Rawle on Const. ch. 14, p. 163, 164; 1 Lloyd's Debates, 480 to 600; 2 Lloyd's Debates, 1 to 12; Sergeant on Const. ch. 29, (ch. 31.) — Whether the heads of departments are inferior officers in the sense of the constitution, was much discussed, in the debate on the organization of the department of foreign affairs, in 1789. The result of the debate seems to have been, that they were not. 1 Lloyd's Debates, 480 to 600; 2 Lloyd's Debates, 1 to 12; Sergeant on Const. ch. 29, (ch. 31.)

2 Pitkin's Hist. p. 285 to 291.

to a great extent, under this clause, in favour of the executive department. The president is by law invested, either solely, or with the senate, with the appointment of all military and naval officers, and of the most important civil officers, and especially of those connected with the administration of justice, the collection of the revenue, and the supplies and expenditures of the nation. The courts of the Union possess the narrow prerogative of appointing their own clerk, and reporter, without any farther patronage. The heads of department are, in like manner, generally entitled to the appointment of the clerks in their respective offices. But the great anomaly in the system is the enormous patronage of the postmaster general, who is invested with the sole and exclusive authority to appoint, and remove all deputy post-masters; and whose power and influence have thus, by slow degrees, accumulated, until it is, perhaps, not too much to say, that it rivals, if it does not exceed, in value and extent, that of the president himself. How long a power so vast, and so accumulating, shall remain without any check on the part of any other branch of the government, is a question for statesmen, and not for jurists. But it cannot be disguised, that it will be idle to impose constitutional restraints upon high executive appointments, if this power, which pervades every village of the republic, and exerts an irresistible, though silent, influence in the direct shape of office, or in the no less inviting form of lucrative contracts, is suffered to remain without scrutiny or rebuke. It furnishes no argument against the interposition of a check, which shall require the advice and consent of the senate to appointments, that the power has not hitherto been abused. In its own nature, the post-office establishment is susceptible of

abuse to such an alarming degree; the whole correspondence of the country is so completely submitted to the fidelity and integrity of the agents, who conduct it ; and the means of making it subservient to mere state policy are so abundant, that the only surprise is, that it has not already awakened the public jealousy, and been placed under more effectual control. It may be said, without the slightest disparagement of any officer, who has presided over it, that if ever the people are to be corrupted, or their liberties are to be prostrated, this establishment will furnish the most facile means, and be the earliest employed to accomplish such a purpose.

1

§ 1531. It is observable, that the constitution makes no mention of any power of removal by the executive of any officers whatsoever. As, however, the tenure of office of no officers, except those in the judicial department, is, by the constitution, provided to be during good behaviour, 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.2 As far as congress constitutionally possess 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.3 But two questions naturally occur upon this subject. The first is, to whom, in the absence

It is truly surprising, that, while the learned commentator on Blackstone has been so feelingly alive to all other exertions of national power and patronage, this source of patronage should not have drawn from him a single remark, except of commendation. Tuck. Black. Comm. App. 264, 341, 342.

21 Lloyd's Debates, 511, 512.

3 See Marbury v. Madison, 1 Cranch, 137, 155.