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the public has much reason to complain. A mode of proceeding is interwoven with the military organization of great benefit to the sound constitution of the army. Although the president is unquestionably authorized to deprive any military officer of his commission at pleasure, yet the established practice is to allow the individual, whose conduct has given dissatisfaction, an opportunity of explaining and vindicating it, by means of a regular tribunal, before he is dismissed, suspended, or even reproved. The same usage prevails in the navy. Thus a sort of tenure during good behaviour is produced, the effect of which, with men of integrity, is eminently useful. In the diversified employments of civil life, no similar institution could be systematically adopted, and a full analogy, therefore, cannot exist, but if we sometimes see in the revolutions of party, as well in other countries as in this, whole hosts of meritorious officers suddenly swept away, and their places filled by men without superior qualifications, we may regret that the principle is lost sight of, and that no remedy can be applied.
Four executive departments have been created by congress at different times. The department of stateof the treasury-of war-and of the navy-over each of which a "principal officer," denominated the secretary, presides. Through one of these organs, the directions of the president are communicated, in all matters relative to their respective departments. But it has been decided that the president is not confined in his executive functions to the use of a particular department. Thus in a case where it was objected that an order from the secretary of state ought not to be considered as an act of the president; it was held that reference must be had to this department for the official acts of the president, which are not more immediately
connected with the duties of some other department, but, nevertheless, the president, for the more easy and expeditious discharge of his executive duties, may direct some other department to make known the measures which he may think proper to take. They are equally his acts, whether they emanate from the department of state or any other department. His immediate mandate to an inferior officer is in no case necessary. (68)
All commissions to officers issue from, and are signed by the president. When the president has nominated; the senate approved, and the commission is signed, the appointment is complete. If the officer be removable at the pleasure of the president, the commission may be arrested by him, if it is in the office of the secretary of state, but, if it is an office during good behaviour, the appointment is not revocable, and after it has received the approbation of the senate, cannot be annulled.
Delivery is not essential to the validity of a commission, nor is it affected by detention after it has been signed by the president, if the officer is not removable at pleasure. If in such case, the secretary of state being possessed of the commission, should refuse to deliver it, the judicial officer may nevertheless lawfully exercise his functions, and will be entitled to his legal compensations. (69)
Sickness, absence, or death, might delay the executing a commission, and the public interests in some cases, (as for instance the judge of a district court,) suffer great injury during the vacancy of the office.
(68) 1 Peters' Rep. 471.
(69) 1 Cranch, 137, Marbury v. Madison, and see particularly p. 167.
The commission is not the exclusive evidence of the appointment.
The appointments made, and commissions issued during the recess of the senate, are in force only till the end of the ensuing session. When their advice and consent are given, it is to be considered not as a confirmation of the preceding appointment made during the recess, but strictly as a new one, a new official oath must be taken, and if it is an office in which security is required, a new security must be given.
It has been decided that persons who have become bound for the good conduct of the officer on the first appointment, are not responsible for his acts after the date of the second commission, which virtually suspends the first. (70)
(70) 9 Wheaton, 730. United States v. Kirkpatrick.
On the Liability of Executive Officers.
IT is a self-evident principle, that an illegal mandate or instructions from the president, can give no sanction to the conduct of a subordinate officer. On the contrary, the president would be liable to the action of a person injured in the same manner that a private indi'vidual would be. The law makes no distinction of persons, and the maxim that the king can do no wrong, so much admired in England, exists by no analogy, in a republican government. It may not be improper to consider why such a rule is admitted in monarchies, and why it cannot take place in a well constituted republic. In every monarchy, a quality termed prerogative, is attached to the monarch. It is defined by the learned commentator on the laws of England "that "special pre-eminence which the king hath over and "above all other persons, and out of the ordinary "course of law." (71) It cannot be shared with the people, for then it would cease to be prerogative: "it "is that law in case of the king, which is law in no "case of the subject." One of these prerogatives is, that no personal redress can be had from the king. He may actually, (it would seem,) commit any outrage on any of his subjects; he would be liable neither to a prosecution nor a civil action. "He is considered as "a superior being, and entitled to that awful respect
(71) 1 Blackst. 239.
"which may enable him with greater ease to carry on "the business of government.” (72) These doctrines, grating as they are to republicans, are palliated by the further remark that prerogative is given for the "benefit "of the subject, in the confidence that it will only be "exerted to the advantage of the realm-and that to 66 subject him to civil or criminal proceedings, would "be to subvert the whole order of that species of go"vernment." The theory is not unjust, and the remark of Locke, the great champion of a tempered system of popular rights, must be acknowledged to be cogent"as to personal wrongs, the harm which the sovereign "can do, in his own person, not being likely to hap"pen often, nor to extend itself far; the inconvenience of "some particular mischiefs, that may happen some"times, when a heady prince comes to the throne, are "well recompensed by the peace of the public, and "the security of the government, in the person of the "chief magistrate being thus sent out of the reach of "danger." But the principle which thus shields and protects the monarch, the sovereignty resident in himself; creates the distinction between him and the elected, though supreme, magistrate of a republic, where the sovereignty resides in the people. All its officers, whether high or low, are but agents, to whom a temporary power is imparted, and on whom no immunity is conferred. An exemption from the power of the law, even in a small particular, except upon special occasions, would break in upon this important principle, and the freedom of the people, the great and sacred object of republican government, would be put in jeopardy. The exception adverted to, is that already
(72) 1 Blackst. 240.