the Executive and stronger branch of the Legislature might combine against the weaker, and no provision was made against it. But circumstances have demonstrated, that, such combination may exist; and though it cannot compel the other branch to unite in declaratory laws, it may prevent it from applying remedial ones.

175. We have spoken of the Legislative, Judicial and Executive branches of Government, as if they, had existence anterior to, and independent of, the Constitution. Such inference, may be, because it has been, drawn from the generality of the terms used in the Constitution of the United States, for the purpose of enlarging the executive power. The pri mary articles of that instrument prescribe the organization and the powers of the three departments. The first declares, that, "all legislative power, herein granted, shall be vested in a Congress," &c. The second says, "The Executive power shall be vested in a President of the United States of America;" the third directs, that, "The Judicial power shall be vested in one Supreme Court," &c. It would be highly erroneous to suppose, that, these terms gave all power, which might be deemed, Legislative, Executive or Judicial, to the several branches, because they are but descriptions of the officers to whom such powers were to be confided, and do not define the extent of the grant. The Constitution, when conferring power, proceeds, not, by general definition, but, by specific grant. If, it confers power in general terms, it imposes limitations, and the grant and limitation must be construed together. The mere nomination, therefore, of a department, by the name of Legislative, Executive or Judicial, as a branch of the Government, does not confer any power; and we must look to the provisions of the Constitution, to learn what power it regards as Legislative, Executive and Judicial, and what is conferred on the departments, respectively. None, seriously, contend that all Legislative power belongs to Congress-all Executive power to the President—all Judicial power to the Courts of the United States.

176. The Government of the United States being a creature of limited powers, whose being, end and aim, are determined by the Constitution, it follows, that it has no powers originating in other sources. Original political power, may be a comprehensible term in Governments founded on other than definite grants; but in the United States, it is every where unknown, save in the body of the people. All the governments, here, are limited governments. And no department,

therefore, of any government, can, without usurpation, assume powers from any source, other than, or anterior to, the Constitution.

177. There is, perhaps, nothing more singular in American politics, than the apprehension of legislative, and the disregard of executive, encroachment on the other depart ments, prevailing in the Convention which formed the Federal Constitution. That body employed itself, principally, in raising barriers against legislative invasion, presuming sufficient restraint to have been imposed upon the Executive, by subjecting its appointments, and its diplomatic power to be controlled by the Senate. The members of that Convention, and the statesmen who succeeded them, have certainly shown great sagacity, having foreseen and provided against, many of the perils of delegated authority; but they saw not all the means of abuse. They foresaw, clearly, that, the legislative might, openly and successfully, invade the executive power; but they did not foresee, that the executive could, covertly and successfully, sap and control, the legislative. Such power was known to have been assumed by the executive department of the British Government, which, through its appointing and disbursing faculties, corruptly governed_the Parliament; but the members of the Convention trusted to the restraint of the Senate upon the former, and to the responsibility of our fiscal agents to the Congress, against the latter. Nor would they, perhaps, have trusted in vain, had not an unfortunate construction of the Constitution given to the President the uncontrolled power of removal of most of the agents of the people from office, with the flattering corollary that they are his deputies and servants; and, had not the Executive discovered the means of making appointments without the advice, and even, against the consent, of the Senate. This grievous fault, like to be grievously answered, is attributable to the confidence placed in the transcendent excellence of the first President. Had any other, than Washington, been proposed as first Chief Magistrate, the Federal Convention, would, probably, have guarded further against executive usurpations; and the first Congress would have been more disposed to limit, than to enlarge, executive influ

ence.

178. One must now smile, but sadly, at the confidence of the first Congress, in presidential honesty and discretion, in the use of the appointing power. So little did the majority of that Congress dread the abuse of this power, that, they

deemed it impossible that it should be employed for other than laudable and public ends. Yet, instructive history furnished them a precedent of abuse in a case strikingly analagous.

179. In theory, the legislative and executive powers in the English Constitution are as distinct and independent as in the Constitution of the United States; yet from the time of George I. and Sir Robert Walpole, the King swayed the boasted omipotence of the parliament, and, practically, with some few exceptions, exercised the whole legislative power; the lords and commons, enacting, pro formă, into laws, the resolutions of the royal council. The power which broke and deformed the British Constitution, was executive patronage corruptly employed, in appointments to office, and in public disbursements. The means by which the change was effected, were, the purchase of votes, grants of fraudulent contracts, iniquitous acts in the influence of elections, irresponsible use of secret service money, and the prostitution of the press; all of which, there is too much reason to believe, may be employed in this country.

180. We may not accuse the Convention, of 1787, of having altogether overlooked this danger, though it did not provide, efficiently, against it. It provided by the Constitution, that "no Senator or Representative shall, during the time for which he was elected, be appointed to any civil office under the authority of the United States, which shall have been created, or the emoluments whereof have been increased, during such time; and no person holding any office under the United States, shall be a member of either House, during his continuance in office." This restriction does not affect half the cases of temptation to officers; and it has been narrowed by the practice of appointing members of Congress to diplomatic stations. In our view, the office of a diplomatic agent is not perennial. It lives, changes form, and dies, at the breath of the President. At his will, a minister plenipotentiary, represents us, to-day, at St. James'; to-morrow, a chargé d'affaires; and on the third day, we have no representative. The office is created for the special occasion, and every nomination is a distinct creation of the office; and, therefore, no member of Congress can be appointed to such an office, consistently, with the Constitution. To have relieved Congress from the influence of this power, no member should have been permitted to take office, during the period, at least, for which he was elected.

181. To guard against treasury influence, the Constitution

forbids money to be taken from the treasury without appropriation by law; and the statute provides, that no member of Congress shall participate, in any contract with the United States; and that no contract shall be made by the secretaries, unless authorized by law, or under an appropriation adequate to its fulfilment; except certain contracts for subsistence and clothing, and contracts by quarter masters.

182. In every respect, these provisions have been in vain. We have shown how the executive power has been abused with Congress, and we shall see its abuse in the other cases hereafter: Of the effect of that power upon Congress, we shall also have an appropriate place to speak.

183. The power to appoint to office, is fully, and we think, wisely, given to the President. Responsibility for its exercise can be obtained, only, when it is in the hands of an individual; and liable, as we have, there, seen it, to perversion, intrigue, and corruption, these evils are multiplied by the multiplication of the members of the executive body. If the tenure of the office be independent of the appointing officer, much of the inducement to abuse that power is taken away. The appointee is a freeman, at liberty to exercise his own judgment in political affairs, and does not disfranchise himself by the acceptance of place. But, if the appointee be liable to removal, he is not only, irresistibly, tempted to purchase place, by subserviency, but to preserve it, by continued homage. It is, therefore, desirable, that the Constitution should have restrained the power of removal, in the hands of the President, or should have left it, more wisely, to the regulation of the Legislature. The latter, we think, has been done, as will be apparent from a review of the manner in which its exercise came to the President.

184. The Constitution of the United States, consisting of fundamental rules, only, contains little else than general principles, which are necessarily subject to various and conflicting interpretations. Scarce a year has elapsed, since its adoption, in which some construction, or new application of principle, has not agitated the country. Such will, probably, continue the case, so long as due regard for political liberty excites a wholesome jealousy of constructive power. As this power must be exercised in subservience to prevalent circumstances and opinions, and as these may prove deceptive, errors may arise, for which experience must furnish the corrective. If the sense of the Constitution be perfectly clear, and its operation prove mischievous, the sole remedy lies in the constitutional amendment of the instrument. But, when an evil

practice results from the construction of the letter, it is the voice of experience teaching us to seek another interpretation. It is the extraordinary and peculiar circumstance, which Mr. Madison admits may arise, to change the construction, however long received. The power to appoint to, and the power to remove from, office, may illustrate this distinction. Thus, the power of the President to appoint to office, in the cases stated in the Constitution, however injurious it may prove, cannot be resumed, without an alteration of the Constitution, by the people. It is clearly and expressly given. But, the power to remove from office, is no where given in terms, but is derived, altogether, from implication. If it be grievous, it may be remedied by changing the construction.

185. In the absence of every expression which might give this power, adherence to the letter of the Constitution, would make the tenure of every officer, that of good behaviour; since he could be removed, only, upon the judgment of the Senate, on impeachment. This opinion was sustained by some distinguished members of the first Congress. But the inconvenience, as it regards many offices, is such, that it has not had many advocates. Three other opinions have been maintained. I. That the power to remove belongs, exclusively, to the President: II. That it rests with the appointing power, consisting of the President and Senate: III. That it is a power necessary and proper, to carry into effect other powers, and being not otherwise delegated, is granted to the Congress, as a proper case for legislation. We will consider these in their order. The question came up for consideration, for the first time, in the first Congress, when about to establish the Executive Departments.

186. I. The power to remove from office, was claimed for the President alone, as incident to the power to appoint. It was admitted to be a dangerous one, but still convenient, necessary, and clearly a part of the executive power; all of which was vested in the President. Protection against its abuse, lay in the character of the Chief Magistrate; who it was to be presumed, would possess integrity, independence, and high talents, and would not pervert his power to the base purposes of ministering to his own resentments, or to party interests and intolerence; particularly, as the wanton removal of meritorious officers would be an impeachable of fence. It was further urged, that being responsible for all the officers of the executive department, they must be removable at his pleasure; and that, being required by the