NOTES UPON LECTURE III. 1. The Appointing Power. power. The difficulty in regard to appointments LECTure III. which Judge Miller suggests, began in the very Appointing beginning of the new government. At an early day in his first term Washington wrote to a friend who had solicited an office for another: "From the moment when the necessity had become more apparent, and, as it were, inevitable, I anticipated, with a heart full of distress, the ten thousand embarrassments, perplexities, and troubles, to which I must again be exposed in the evening of a life already nearly consumed in public cares. Among all these anxieties, I will not conceal from you, I anticipated none greater than those which were likely to be produced by applications for appointments to the different offices which would be created under the new government. Nor will I conceal that my apprehensions have already been but too well justified. Scarcely a day passes in which applications of one kind or another do not arise; insomuch that, had I not early adopted some general principles, I should before this time have been wholly occupied in this business. As it is, I have found the number of answers LECTURE III. Appointing power. Vacancies during the recess. Heads of Execu which I have been necessitated to give in my own hand, an almost insupportable burden to me.'" 2. Appointments to Vacancies during the Recess. A question has been made as to the power of the President to fill an office during the recess of Congress, which was created by the legislative body at its session immediately before that recess. In practice this has been frequently done; and the better opinion would seem to be that it has been rightfully done. 3. Heads of Executive Departments. "There can be no doubt that the President, tive Departments. in the exercise of his executive power under the Constitution, may act through the head of the appropriate executive department. The heads of departments are his assistants in the performance of his executive duties, and their official acts, promulgated in the regular course of business, are presumptively his acts. That has been many times decided by this court." 2 But when the action required of the President is judicial in character, not administrative, as when the duty is imposed upon him of reviewing the proceedings of Courts Martial, he must himself consider the proceedings laid before him, and decide personally whether they ought to be carried into effect. But this judgment, although 1 Sparks's Life of Washington, 454. 2 Runkle v. United States, 122 U. S. 543, 557. 8 Ib. his personal act in fact, and not presumptively, LECTure III. need not be attested by his sign manual, in order Heads of Execu to be effective.1 4. Pardons. tive Departments. In Hart v. United States the effect of a par- Pardons. don on the right to sue in the Court of Claims was again before the court. Hart, who was a resident in Texas, joined the insurgents in April, 1861, "and then and afterwards furnished them with supplies, money, and means of transportation to carry on their invasion and campaign into New Mexico. On the 3d of November, 1865, the President granted to him a full pardon and amnesty for all offences committed by him, arising from participation, direct or implied, in the rebellion. Hart claimed certain sums as due to him for flour, corn, and forage delivered to the United States before April 13, 1861, and certain sums for flour, corn, and forage delivered after that date." "The Court of Claims applied to those demands of the claimant which accrued before April 13, 1861, the provisions of joint resolution No. 46, approved March 2, 1867, 14 Stat. 571, now embodied in section 3480 of the Revised Statutes, forbidding the payment of claims against the United States, which accrued or existed prior to the thirteenth day of April, A.D. eighteen hundred and sixty-one, in favor of any person who promoted, encouraged, or in any 1 United States v. Page, 137 U. S. 673, 678, by Chief Justice Fuller. LECTURE III. manner sustained the late rebellion,' etc., and further providing that no pardon should 'authorize the payment of such account, claim,· or demand, until this resolution is modified or repealed.' "It was urged before the Court of Claims that the pardon and amnesty granted by the President to Hart on the 3d of November, 1865, 'for all offences committed by him arising from participation, direct or implied, in the rebellion,' operated to set aside the provisions of the joint resolution as to him and his claims. The court held otherwise. Its view was that Hart was guilty of numerous acts for which he could, on conviction, have been punished in his person and his property, and that the pardon freed him from liability for those offences; that his disability to receive from the United States a debt due to him was not a consequence attached to or arising out of any such offence; that it grew out of the fact, stated in the joint resolution, that he had been a public enemy; that every disability which a state of war imposed upon him was removed by the cessation of the war; that it needed no pardon to effect that result; that, as the pardon conferred upon him no new right, so the joint resolution did not take from him anything which the pardon had conferred; that it did not, like the legislation considered in United States v. Klein, 13 Wall. 128, attempt to prescribe to the judiciary the effect to be given to a pardon, in regard to a matter to which the pardon extended, but merely forbade certain debts to be paid, un til Congress should otherwise order; and that a LECTURE III. creditor of the United States can only be paid in Pardons. accordance with the provision of the Constitution (Art. I, sec. 9, subd. 7), which declares that 'no money shall be drawn from the treasury, but in consequence of appropriations made by law.' . . . We are of opinion that the judgment of the Court of Claims was right." 1 5. Treaties providing for payment of moneys. ing for payment Whether a treaty, providing for the payment Treaties providof money by the United States, makes it obliga-moneys. tory upon Congress to pass the necessary appropriation, is a question that has been more than once mooted. When the treaty of 1794 with Great Britain, known as Jay's Treaty, was sent to the House by President Washington, that body, on the motion of Mr. Edward Livingston, asked the President to transmit to it a copy of the instructions to Mr. Jay, and of the correspondence and documents relating to the treaty. This motion was resisted by the Federalists, on the ground that the treaty had become the supreme law, and that the House had no jurisdiction over a question which had been settled elsewhere under the Constitution. Notwithstanding the opposition the resolution was adopted. In reply the President said: "Having been a member of the General Convention, and knowing the principles upon which the Constitution was formed, I have 1 Hart v. United States, 118 U. S. 62, 64, 65, 66. |