ing to the law. The principle established by to the tenure by which they are held. 2 Black. these decisions is, that there must be a suit Commentaries, 36, 37. The law of the tenure pending in a court below, and that the of office in England is regulated, not by any act which the inferior court is required principles of ethics, or express provision, but 253*] to perform *must be ministerial in its by immemoral usage. Office is there an incharacter, and necessary to the final termina- corporeal hereditament, as a right of way. tion of the cause in that tribunal. There is, under the common law, an estate in an office.

The position in England is, that unless the statute which creates the office limits its tenure, at the time of the creation, it is an office for life, as at the common law. But here no such principles prevail. The common law does not apply to offices which are all created by the Constitution, or by express statute.

The thirteen cases in which this court refused application for mandamus, are The United But in the United States this is not so. State v. Lawrence, 3 Dall. 42; Marbury v. Madi- There is in this country no estate in any office. son, 1 Cranch, 137; M'Cluny v. Silliman, 2 No property in an office. Offices are held for Wheat. 369; Ex-parte Burr, Wheat. 529; The the benefit of the community in which their Bank of Columbia v. Sweney, 1 Peters, 567; functions are exercised. As to the tenure and Ex-parte Crane, 5 Peters, 190; Ex-parte Rob- nature of office in England, cited, Coke Litt. erts, 6 Peters, 216; Ex-parte Davenport, 6 Pet-378a; 4 Institute, 117, Coke Litt. 233b. 2 Iners, 661; Ex-parte Bradstreet, 8 Peters, 588; stitute, 388. The New York Insurance Company v. Adams, 9 Peters, 573; The Postmaster-General v. Trigg, 11 Peters, 173; Ex-parte Story, 12 Peters, 339; Poultney v. LaFayette, 12 Peters, 472. The principles established in these cases in regard to this writ are these: the Supreme Court will never compel an inferior court, in which a suit is pending, to do any act relating either to the practice of the court, or the merits of the case, in regard to which act the inferior court is vested with a judicial discretion; even if they are of opinion that the court erred in the exercise of their discretion. Nor will the Supreme Court interfere with an inferior court in the suspension of its attorneys. Nor will it control an executive officer in the discharge of an executive function, unconnected with a pending suit; even if they are of the opinion that it was improperly exercised.

If the rules thus laid down by the solemn decisions of fifty years, both for allowing and refusing writs of mandamus by this court, be applied to the present case, it will be evident that the application of the petitioner cannot be granted. It has solemnly decided when this process is, and when it is not necessary to aid the appellate jurisdiction of the court; and these decisions absolutely exclude a case like that now presented.

Whatever, therefore, may be the legal rights of the petitioner, or however proper a proceeding by mandamus might be in a court less limited in its duties and constitutional functions, it is submitted that there is nothing in the laws of the land, or in the established practice of the Supreme Court of the United States, which will warrant it in compelling a circuit or district judge, by mandatory process, to appoint a particular individual as clerk of his court, or to restore him to that office after he has been superseded or removed.

Mr. Jones, also against the motion, presented the case to the court on the abstract, legal power of the district judge to remove from office a clerk who was the incumbent, and to appoint another person.

The right to remove is an incident to the power of appointment. It is essential to the exercise of the power to appoint, and the power which is given by the law cannot exist without this incident.

If the common law has any bearing on this question, it is very remote. The Constitution of the United States, and the laws made in conformity with the provisions of the Constitution, 254 are essentially different from the common law, as to appointments to offices, and as

It is contended by the counsel for the relator, that the power of appointment in the United States is a naked power, as at common law, and that the power is at an end when it has been executed. This would determine the power after it had been used, and it could not afterwards be regained. Is it to be held, in the United States, that the power to appoint to office gives the appointing power a right to appoint for life only? The English doctrine on this subject has nothing to do with the laws of the United States, where such powers are given only by special enactments.

The case cited from 3 Massachusetts Reports has no application to the case before the court. That case decided no more than that the local laws of the Colony of Massachusetts made a settled minister of a congregation a minister for life, and the new constitution of the State of Massachusetts had not abrogated that law.

The question whether, when a new office is created by an act of Parliament, or a statute of the United States, it is an office for life or not, has never been presented for decision. In this case the question is presented in its naked simplicity. This question has recently been considered in the Court of Appeals of Virginia.

The question there was on the removal of a district attorney, who is appointed by the court. The officer was removed without fault, and the question of the right of removal came before the Court of Appeals. It was decided that the power was complete.

The government of the United States was brought into existence in all its proportions and organization, without any of the relics of the barbarism of the darker ages attached to it. It has many beauties, and some defects. It is a new being starting into life, in all its regulations and arrangements. It is not like a statute, which is in abrogation of the common law, but it is independent in itself. It is an experiment, to be examined by itself. The Constitution provided for the terms of all offices created by it. This has been interpreted so that the power to appoint has, as incident and inherent in it the *power to remove, when [*255 thought proper, unless a special provision has been made to the contrary.

The question is, what are the incidents to the

power of appointment? If the power to ap point is given, it must be a continuing and constantly existing power; and to be exercised at the will of the person holding it. The term "power to appoint" comprehends this, and makes it a continuing power always in vigor. This has been the course of the government of the United States, and it has always been considered that an officer is displaced when a successor to the office is appointed. This places in full existence and in a simple form, the power to appoint; non obstante that the office is full at the time of the exercise of the power.

It is contended that the appointment of a clerk of the District Court is not a judicial act, but is like the power which, under the Constitution, is given to the President of the United States, and is identical in its character with that power. The great object and purpose of the counsel for the relator has been to show that the executive of the United States has the power to appoint by the Constitution, and that the appointment in this case is not given by the Constitution. Cited, as to the nature of the power of appointment given by the Constitution to the President, 5 Marshall's Life of Washington, 196.

can only look at the question of the power of the judge to remove, without going into a scrutiny of his motives and conduct.

If there has been corruption in an appointment, the appointment is not thereby vacated. Suppose a judge convicted of fraud in the act of appointment, this does not affect its validity. If the President of the United States should be impeached, would his acts as President be avoided by his conviction?

Mr. Justice Thompson delivered the opinion of the court:

This is an application for a rule upon the Honorable Philip K. Lawrence, Judge of the District Court of the United States for the Eastern District of Louisiana, to show cause why a mandamus should not be issued against him, requiring him to show cause why he should not restore Duncan N. Hennen to the office of clerk of the said District Court.

The petition sets forth that the petitioner, Duncan N. Hennen, on the 21st day of February, in the year 1834, was duly appointed clerk of the said court by the Honorable Samuel H. Harper, judge of the said court. That a commission was duly issued, under the hand and seal of the judge. That he accepted the apThe discussions in the legislative bodies, soon pointment, and gave the bond with sureties reafter the establishment of the government of quired by law, and thereupon entered upon the the United States, did not draw into question duties of the office, and continued to discharge the power of removal, as incident to the power the same, methodically, skillfully, and uprightof appointment. The only question then ex-ly, and to the satisfaction of the District Court. amined was whether, as the Senate was a part of the appointing power, the senate should not

That by virtue of said appointment, and of the provisions of the statute in such case made and concur as to removals. provided, he was from the period of the organThe Constitution of the United States de-ization of the Circuit Court of the United clares that the executive power is in the President, and the limitation of appointments is a diminution of that power, and it is to be strictly construed. The President is charged with the execution of the laws; and the grant of executive power gives to the officer all the rights in relation to the execution of the laws that king or potentates have. This is derived from the nature of the duties enjoined on the office, and the obligation to perform them.

It is now settled and established, and the position is not to be disturbed, that the President of the United States has the power to remove or displace incumbents, as he has the power to appoint to office. This, it is now fully settled, is a portion of the executive power under the Constitution; and the right to use and exercise it, in all cases where the tenure of office is not otherwise declared by the Constitution and laws, is fully and unquestionably recognized. It is the universal practice to use the power to appoint, according to the views and wishes of the person who makes the appointment. The motives to appoint do not enter into the question of the validity of the appointment.

Suppose a judge to give a decision expressly on the face of it erroneous, as from favor to one of the parties, and stating this as the induce256*] ment to his judgment, and which, according to his opinion, was against the law; I would the decision be reversed in this court because of these reasons of the judge, if the decision was right? If it was according to the law, this court would affirm the judgment. So the motives for the removal of the relator cannot be inquired into by this court. The court

States for the said District of Louisiana, in like manner the clerk of the said Circuit Court, and performed all the duties of said office. That he continued to perform the said duties, and receive the emoluments, and in all respects to hold and occupy said offices, until on or about the 18th day of May, in the year 1838, when he received a communication from the Honorable Philip K. Lawrence, then and now the judge of the said District Court of the United States for the said Eastern District of Louisiana, apprising him of his removal from the said office of clerk, and the appointment of John Winthrop in his place. And in this communication he states, unreservedly, that the business of the office for the last two years had been conducted promptly, skillfully, and uprightly, and that, in appointing Mr. Winthrop to succeed him, he had been actuated purely by a sense of duty and feelings of kindness towards one whom he had long known, and between whom and himself the closest friendship had ever subsisted. And that, as his capacity to fill the office cannot be questioned, he felt that he was not exercising any unjust [*257 preference in bestowing on him the appointment. The petition further states that Judge Lawrence did, on or about the 18th day of May, in the year 1838, execute and deliver to the said John Winthrop a commission or appointment, as clerk of the said District Court for the Eastern District of Louisiana, and that he does to a certain extent execute the duties appertaining to the said office, and is recognized by the said judge as the only legal clerk of the said District Court.

nates. The execution of the power depends upon the authority of law, and not upon the agent who is to administer it. And the Constitution has authorized Congress, in certain cases, to vest this power in the President alone, in the courts of law, or in the heads of departments; and all inferior officers appointed under each, by authority of law, must hold their office at the discretion of the appointing power. Such is the settled usage and practical construction of the Constitution and laws under which these law offices, and the rules and principles by which they are governed, have no application to this case. The tenure in those cases depends, in a great measure, upon ancient usage. But with us there is no ancient usage which can apply to and govern the tenure of offices created by our Constitution and laws. They are of recent origin, and must depend entirely upon a just construction of our Constitution and laws. And the like doctrine is held in the English courts, where the office is not an ancient common law office, but of modern origin, under some act of Parliament. In such a case, the tenure of the office is determined by the meaning and intention of the statute. The case of Smyth v. Latham, 9 Bing. 672, was governed by this rule. The office in question was that of paymaster, appointed under an act of Parliament, and the court said: This is not an ancient common law office, the tenure of which is to be governed by ancient usage, and the question is no more than an inquiry into the meaning and intention of the statute itself; and that by the legal construction of the act of Parliament, the tenure of the office was during pleasure, and that the new appointment was of itsel a revocation of the first.

able at pleasure, by whom is such removal to be made? In the absence of all constitutional provision or statutory regulation, it would seem to be a sound and necessary rule to consider the power of removal as incident to the power of appointment. This power of removal from office was a subject much disputed, and upon which a great diversity of opinion was entertained in the early history of this government. This related, however, to the power of the President to remove officers appointed with the concurrence of the Senate: and the great ques-offices are held. The tenure of ancient common tion was whether the removal was to be by the President alone, or, with the concurrence of the Senate, both constituting the appointing power. No one denied the power of the President and Senate, jointly, to remove, where the tenure of the office was not fixed by the Constitution, which was a full recognition of the principle that the power of removal was incident to the power of appointment. But it was very early adopted as the practical construction of the Constitution that this power was vested in the President alone. And such would appear to have been the legislative construction of the Constitution. For in the organization of the three great departments of State, War, and Treasury, in the year 1789, provision is made for the appointment of a subordinate officer by the head of the department, who should have the charge and custody of the records, books, and papers appertaining to the office, when the head of the department should be removed from the office of the President of the United States. 1 Story, 5, 31, 47. When the Navy Department was established in the year 1798, 1 Story, 498, provision is made for the charge and custody of the books, records, and documents of the department, in case of vacancy in the office of secretary, by removal or otherwise. It is not here said, by removal by the President, as is done with respect to the heads of the other departments; and yet there can be no doubt that he holds his office by the same tenure as the other secretaries, and is removable by the President. The change of phraseology arose, probably, from its having become the settled and well understood construction of the Constitution that the power of removal was vested in the President alone, in such cases, although the appointment of the officer was by the President and Senate.

In all these departments power is given to the secretary to appoint all necessary clerks (1 Story, 48); and although no power to remove is expressly given, yet there can be no doubt that these clerks hold their office at the will and discretion of the head of the department. It 260*] *would be a most extraordinary construction of the law that all these offices were to be held during life, which must inevitably follow, unless the incumbent was removable at the discretion of the head of the department: the President has certainly no power to remove. These clerks fall under that class of inferior officers, the appointment of which the Constitution authorizes Congress to vest in the head of the department. The same rule, as to the power of removal, must be applied to offices where the appointment is vested in the President alone. The nature of the power, and the control over the officer appointed, does not at all depend on the source from which it ema

And the same rule has governed the decisions of the State courts in this country, whenever the power of appointment and tenure of office has been drawn into discussion. The questions have been governed by the construction given to the constitution and laws of the State where they arose.

The case of Avery v. The Inhabitants of Tyringham, 3 Mass. 177, falls within this class of cases. The Chief Justice there says it is a general rule that an office is held at the will of either party, unless a different tenure is expressed in the appointment, or is implied by the nature of the office, or results from ancient usage. The office held by the petitioner clearly falls within neither of these exceptions, and of course comes within the general rule, and is held at the will of either party. The [*261 petitioner would doubtless claim the right to resign the clerkship if he chose so to do. And the court had a right to put an end to it, at its election.

The same principle governed the Supreme Court of Pennsylvania in the case of Leghman v. Sutherland, 3 Serg. & Rawle, 145. The question there turned upon the construction of the constitution and law of Pennsylvania. By the constitution of 1790, it is provided that the governor shall appoint all officers whose office is established by the constitution, or shall be established by law, and whose appointments are not otherwise provided for. And the court said, "The constitution is silent as to the removal of officers. Yet it has been generally