delivered the following opinion :
This case was brought into this Court by appeal. It is an information in the nature of a quo warranto, filed by John A. McClernand against A. P. Field, to know by what authority he holds and exercises the office of Secretary of State of the State of Illinois. The facts of the case are, that Field was legally appointed Secretary of State, in 1829; and has continued in the discharge of the duties of said office ever since. On the second Monday of August, 1838, Thomas Carlin was elected Governor of the State of Illinois, and on the 1st day of April, 1839, by virtue of his authority as Governor, he appointed John A. McClernand Secretary of State, in the room and place of A. P. Field, the then acting Secretary.
The question presented for the opinion of the Court, is, whether A. P. Field, the appellant, or J. A. McClernand, is entitled to the office of Secretary of State. To the parties immediately before the Court, the case is of some interest; but it derives its great importance from the fact, that the fundamental principles of the government are drawn in question. In deciding who is entitled to the office of Secretary, it becomes necessary to decide whether the Governor of this State possesses the constitutional power of dismissing from office the Secretary of State, and appointing a successor, at his will and pleasure. For, upon the validity of the Governor’s claim to this power, depends the appellee’s title to the office of Secretary of State, which he claims under an appointment from the Governor.
The case, then, resolves itself into the single question, Does the Governor possess the constitutional power of removing from office the Secretary of State, and appointing a successor, at will ?
In deciding this question, recurrence must be had to the Constitution. That furnishes the only rule by which the Court can be governed. That is the charter of the Governor’s authority. All the powers delegated to him by, or in accordance with, that instrument, he is entitled to exercise, and no others. The Constitulion is a limitation upon the powers of the legislative department of the government; but it is to be regarded as a grant of powers to the other department. Neither the executive nor the judiciary, therefore, can exercise any authority or power, except such as is clearly granted by the Constitution.
In deciding upon the powers of the Governor, it will be necessary to enquire how far the provisions of the Constitution relied upon in support of his claim of power, have received a practical exposition by the several departments of government. An exposition of the Constitution, so made, and long acquiesced in, as to the powers of the several departments and functionaries of government, must prevail, unless it can be clearly shown to be founded in error.
The political axioms of other governments, have been referred to by the counsel for the appellee. The practice of other governments analogous to ours, in the objects of their creation, in their form, and in their constitutional grants of executive power, are certainly entitled to respect, in settling the unsettled practice of ours. But it must be obvious that the practice and maxims of governments widely different from ours in their character, and the theory and principles upon which they are constituted,- must be incongruous with ours, and inapplicable to a question involving the powers and duties of its functionaries.
The practice, therefore, of the general government, which is relied upon, and the maxims derived from the British government, that the power of appointment to, and removal from office, is an executive function, can be no further applicable to our government, than it is made so by the provisions of the Constitution.
The general government differs from ours in its powers and attributes ; and although we have adopted the common law of England, we have neither adopted the form of that government, nor recognised the principles upon which it is founded. According to the theory of that government, the king is the sovereign power of the State. When a question of prerogative, therefore, arises there, recurrence is had to the charters of the people’s rights and liberties, to ascertain whether the right in question has been surrendered by the king to the people ; and if the grant cannot be shown, the right is adjudged to the king, upon the principle that all rights of which he has not divested himself, by express grant to the people, come within his prerogative. But upon the principle of our government, that the sovereign power of the State resides in the people, and that only such powers as they have delegated to their functionaries, can be exercised, where a claim of power is advanced by the executive, the question is, not whether the power in question has been granted to the people, but whether it has been granted to the executive ; and if the grant cannot be shown, he has no title to the exercise of the power.
As the right of the Governor to remove the Secretary must be granted by the Constitution, or it does not exist, it therefore devolves upon those who advocate the claim of the executive power, to show the grant upon which it is founded ; to point out the clause and section of the Constitution from which it is derived. How has this been done ? Has any express grant been produced ? No ; it is not pretended that any express grant is to be found in the Constitution. But it is contended that the power in question is granted to the Governor by implication. That from the grant of other powers, this one of removing the Secretary from office is necessarily implied, as the means of rendering those grants available ; and the following clauses of the Constitution are relied on in support of this position :
“ Art. 1. Sec. 1. The powers of the government of the State of Illinois shall be divided into three distinct departments, and each of them be confided -to a separate body of magistracy, to wit : Those which are legislative to one, those which are executive to another, and those which are judiciary to another.”
“ Sec. 2. No person or collection of persons, being one of those departments, shall exercise any power properly belonging to either of the others, except as hereinafter expressly directed or permitted.”
“ Art. 3. Sec. 1. The executive power of the State shall be vested in a Governor.”
“ Art. 3. Sec. 7. He [the Governor] may require information in writing from the officers in the executive department, upon any subject relating to the duties of their respective offices, and shall take care that the laws be faithfully executed.”
“ Art. 3. Sec. 20. The Governor shall nominate, and by and with the advice and consent of the Senate, appoint a Secretary of State, who shall keep a fair register of the official acts of the Governor, and, when required, shall lay the same, and all papers, minutes, and vouchers relative thereto, before either branch of the General Assembly, and shall perform such other duties as shall be assigned him by law.”
These are the provisions of the Constitution, from which it is insisted the Governor’s power to remove the Secretary is implied. It is also claimed, upon the principle assumed, that the power of removal is incidental to the power of appointment; and again, that it is an executive function, and as such, belongs to the Governor.
It may be proper to observe, that there is some discrepancy between the views of some of the counsel for the appellee and those of the Circuit Court. While they all insist upon the authority claimed in the case, they do not agree as to the source from which it is derived ; nor do they all carry the practical application of the principles assumed, to the extent claimed for them by the Circuit Court. While some contend, with the Court below, that the Governor’s power of removal extends to all the officers in the executive department, others limit it to the Secretary. As the opinion of the Circuit Court has been published, and referred to by counsel, I will, in the examination of this question, advert to it, as containing the doctrine of the advocates of the power of removal.
I will examine the provisions of the Constitution relied on, and the positions assumed, in the order in which they are stated.
The first enquiry, then, is, can the power claimed by the Gov-\ ernor, be implied from the foregoing provisions of the Constitu- 1 tion ? That other powers than those expressly granted, may be, and often are, conferred by implication, is -too well settled to be doubted. Under every Constitution, the doctrine of implication must be resorted to, in order to carry out the general grants of power. A Constitution cannot, from its very nature, enter into a minute specification of all the minor powers, naturally and obviously included in, and flowing from the great and important ones which are expressly granted. It is therefore established as a general rule, that when a Constitution gives a general power, or enjoins a duty, it also gives, by implication, every particular power necessary for the exercise of the one, or the performance of the other. The implication under this rule, however, must be a necessary, not a conjectural or argumentative one. And it is further modified by another rule, that where the means for the exercise of a granted power are given, no other or different means can be implied, as being more effectual or convenient. By an application, then, of these rules, to the constitutional grants of power to, or injunctions of duty upon the Governor, considered separately, or in connexion, we can determine whether the authority to remove the Secretary is essential to the exercise of any powers conferred, or the performance of any duties enjoined on the Governor, or whether the exercise of such a power is contemplated by.the Constitution.
The first and second sections of the first article of the Constitution divide the powers of government into three departments, the legislative, executive, and judicial, and declare that neither of these departments shall exercise any of the powers properly belonging to either of the others, except as expressly permitted. This is a declaration of a fundamental principle ; and although one of vital importance, it is to be understood in a limited and qualified sense. It does not mean that the legislative, executive, and judicial power should be kept so entirely separate and distinct as to have no connexion or dependence, the one upon the other ; but its true meaning, both in theory and practice, is, that the whole power of two or more of these departments shall not be lodged in the same hands, whether of one or many. That this is the sense in whicffthis maxim was understood by the authors of our government, and those of the general and State governments, is evidenced by the Constitutions of all. In every one, there is a theoretical or practical recognition of this maxim, and at the same time a blending and admixture of different powers. This admixture in practice, so far as to give each department a constitutional control over the other, is considered, by the wisest statesmen, as essential in a free government, as a separation. This clause, then, is the broad theoretical line of demarcation, between the three great departments of government. But we are not therefore, when a question arises as to the extent of the powers of either, to confine our views to this general clause, which confers no specific powers. We should look to the division as actually made, to see what powers are clearly granted ; for such only can be exercised. As no power, then, is granted to the Governor by these sections, it necessarily follows that none can be implied. A power by implication, can only be claimed as necessary to the exercise of one expressly granted.
The next grant of power relied on, is, that “ The executive power of the State shall be vested in a Governor,” This clause is treated by the Court below, as conferring numerous and ample powers upon the Governor. All that are usually denominated executive powers, by theoretical writers, are supposed to be included in this grant to the Governor, except such as are expressly conferred upon other departments. This, I think I shall be able to show, is a mistaken view of the subject. This clause, like the preceding ones, is a declaration of a general rule ; and the same remarks are applicable to this, as a grant of power, that have been made in reference to them. It confers no specific power. What would have been its operation, if the Constitution had contained no specific enumeration of executive powers, is a very different question from that now presented, and might have admitted of a different answer. But it has been settled by the Supreme Court of the United States, that an enumeration of the powers of a department of the government, operates as a limitation and restriction of a general grant. It has also been laid down by the same high authority, “ That the general principles contained in the Constitution, are not to be regarded as rules to fetter and control, but as matter merely declaratory and directory ; for even in the Constitution itself, we may trace repeated departures from the theoretical doctrines that the legislative, executive, and judicial powers shall be kept separate and distinct.”(1)
This departure from the general theory, is much greater in our Constitution than in that of the United States. The reasoning therefore of the judge of the Supreme Court of the United States, must apply to it with a correspondingly increased force, and exclude all claim of power from this general declaration.
The authority of the Governor to require information from the officers in the executive department, relative to the business of their respective offices, and the obligation of the Secretary to keep a register of his official acts, are relied upon, in connexion with the injunction that the Governor shall see that the laws are faithfully executed, as implying an authority in him to dismiss the Secretary. Let it be conceded that the Secretary is one of the executive officers of whom the Governor may require information, does this imply a right to dismiss him from office ? If it does, then by the same rule the General Assembly may dismiss the Governor from office ; because he is under a constitutional obligation to give them information of the state of the government; and the obligation upon him to give the information, implies a right in them to demand it. The object of the information is the same in both cases. It is intended to aid the legislature in their deliberations, and the obligation to communicate it, is as imperative upon one officer as the other. The same reasons, therefore, that would subject the Secretary to removal, under this provision of the Constitution, will apply, with equal force, to the case of the Governor. The Constitution has made no distinction, and recognises no executive standard of obedience or responsibility to its precepts.
If the right to require information from an officer, implied the right to remove him, the legislature would have the power not only to remove the Governor, but a power, concurrent with him, to remove all the officers in the executive department; for the legislature has, under its general powers, authority to call on all of them for official information.
The Governor’s authority to call upon the Secretary and other officers in the executive department, is indisputable ; and his authority to enforce a compliance with his call, is equally clear. But to do this, he must have recourse to the mode prescribed by law ; he cannot, at discretion, adopt means unknown and unauthorized by law. The performance of a duty enjoined by law, may be enforced by its process ; and the rule, that when an instrument gives a power, it also gives, by implication, the means necessary to its exercise, is intended to render available those grants of power, which, without its application, would be inoperative and nugatory, , by reason of the means necessary to their exercise not being also J provided. But when the means of enforcing a given power arej) furnished by law, the rule does not apply. It cannot, therefore, apply in the present case. The duty of the Secretary to give the official information required, and to register the official acts of the Governor, is a legal injunction ; and the law has provided ample means for enforcing its observance : first, by a private action, for any private injury that may possibly result from his neglect of duty; and secondly, by a mandamus, by which a specific performance of the duty may be enforced ; and, lastly, if his contumacy should be thought to deserve it, he may be impeached, and, upon convicdismissed from office.
These are the means, in addition to an oath of office, and where pecuniary responsibility is involved, an official bond, which the law has provided for the purpose of securing the performance of the official duties of the officers in the executive department. They are the usual and appropriate remedies for official delinquency ; and being specially provided by law, they are, in contemplation of law, adequate to the end proposed, and all others are rejected. All the duties of the Secretary are assigned by law, and may all be enforced by its mandate, without recourse to an executive power which has not been given by express grant, or by necessary implication ; for the implication must be a necessary, not a conjectural, or even a convenient one.
But these remedies, which the law has expressly prescribed as the means of securing an observance of official duty, the Circuit Court considers inadequate to insure that despatch and prompitude which the executive may demand, and the interest of the public require ; and, by way of illustration, supposes the case of the Secretary refusing to put the seal of State to the Internal Improvement Bonds, or to keep a register of the official acts of the Governor, and enquires whether, in such cases, the Governor must submit to the law’s delay ? I think it may be safely answered that he must; that in a government of laws, all are bound to submit to the law ; and neither the executive, nor any other functionary, can stretch his powers beyond it, in order to obviate an imaginary inconvenience or defect. The forms of the law are the outworks, by which the citadel of liberty and the rights of person and property are defended ; and when they are broken down, the fortress itself must soon surrender.
Official responsibility is essential to a correct administration of the law ; and if that object is not effected by the remedies already provided, it is the province of the legislature to provide such as are more ample and efficacious. But this is alike beyond the remedial powers of the executive and the judiciary. Their appropriate functions are to expound and execute the law. In the exercise of the first of these functions, it is laid down as a rule of great importance in reference to a Constitution, “not to enlarge the construction of a given power beyond the fair scope of its terms, merely because the restriction is inconvenient, impolitic, or even mischievous.” (1)
The arguments in favor of the Governor’s power of removal, in the extreme cases of official abuse of trust by t.ie Secretary, Auditor, and Treasurer, that are instanced, apply with equal force to other officers.
If this prompt remedy of dismissal from office may be applied to these officers, because a mandamus or impeachment would be too dilatory a proceeding to suit the exigency of the case, why should it not be applied to State’s attorneys and judges. Suppose a State’s attorney should refuse to perform his duties, or a judge to hold courts ; the Constitution which requires a speedy administration of justice, would be violated, and the end and object of government defeated. But it cannot be contended that the Governor may apply a remedy, by dismissing these officers for neglect of duty, and appointing others. Yet the injury to the public is at least as great as any that can result from the Secretary’s neglect of his duty ; and the means of redress are at least as tardy and as remote. Again, suppose the Governor should refuse to put his signature to the commissions of officers legally appointed ; upon the happening of such an event, the machinery of government would be stopped, or greatly retarded, for the want of officers to execute the laws. But where is the remedy, except by address or impeachment ? What do these examples, and many others that might be instanced in addition to these, and those put by the Circuit Court, prove, but that every delegated trust is more or less liable to abuse, and that if we elect to be governed by the permanent and known rules of a Constitution, rather than the capricious and arbitrary will of one, or more, we must wait the time necessary to carry them into operation ? That according to the principles of law and justice, a conviction for crime or delinquency, must precede punishment, we must delay its infliction until the accusation is legally proven ? In despotic governments, where the will of the ruler is the law of the lahd, there is no delay between its promulgation and execution. The quickening influence of fear, the principle upon which such governments are founded, reaches every department, and keeps the head of every functionary, from that of the Bashaw to the Cadi, always in danger.
Upon a doubtful question, where the scales are equipoised, policy and convenience may be allowed a preponderating influence ; but they cannot be regarded as the legitimate source of power, without violating the settled rules of construction, and subjecting the Constitution to fluctuate and change, with the changing opinions of men, of times, and of parties. This would defeat the objects of its creation. It was intended as a fixed and permanent rule of government, and without the attribute of certainty it would be of no value ; we could not tell from what has been decided, how the same question would be decided again.
But does policy sanction a concentration of power in the hands of one man, to be used at discretion ? This doctrine is contrary to the opinions of the ablest writers upon government, and is also opposed to the Constitution, which has divided and subdivided the powers of government, and as far as practicable, made one a check upon another. And upon the principle that arbitrary, discretionary power is more liable to abuse than that regulated by law, the Constitution has made the law, and not the will of the executive, the rule to which all its officers are bound to conform and to which they are amenable.
But it is argued from the Secretary’s obligation to register the official acts of the Governor, and when required, to give him official information, that such an official intercourse of confidence must exist as to imply an authority in the Governor to remove the Secretary.
This is assuming the existence of a confidence, which ought to be established before any conclusion is drawn from it. Where is the evidence of any intercourse between these officers, of a character so confidential, as to render one dependent upon the other for his official existence, as the means of securing his fidelity ? It is not to be found in the nature of the duties enjoined upon the Secretary, or the information which he may be required to give ; nor does it receive any countenance from the Constitution or the laws. They both relate to public, not private matters, such as are recorded for the information of the public, and being enjoined by a public law, all idea of privacy or confidence must be excluded. I can imagine no other foundation for the idea of confidence, than a supposed analogy between the officers in the executive department of our government, and those in the executive department of the general government ; but there is no analogy between the legal obligations of the officers of the respective governments, or the relation in which they stand to the respective executives.
The President may require the opinion of the heads of departments, their views, counsel, and advice, relative to the legality or policy of measures. In this exercise of the right, he calls on one or more, according to the difficulty or importance of the subject; but whether the consultation is separate, or in cabinet council, it is always private and confidential, and is so regarded, not only by the officers, but by the law also ; for none of the officers, or their clerks (who are sworn to secrecy) can be required to give testimony of transactions, or matters of a confidential character. But neither in contemplation of law, nor in fact, is there any official confidential intercourse between the Governor and the Secretary, or other officers of the executive departments. He may call upon them for information relative to matters connected with their offices. He may, for example, enquire of the Treasurer, what amount of money is in the Treasury, of the Auditor, what amount of warrants are outstanding, and of the Secretary, what are the kind and number of commissions to which he has put the State seal; or whether the laws are all distributed, &c. These are all public matters, in reference to which there can be neither secrecy nor confidence, and it is only in relation to such that the Governor can require information. He has no right to the opinion or advice of the Secretary, as to the legality or propriety of measures of any kind ; and as all the duties of the Secretary are prescribed by law, and as it is only in relation to them that he can be required to give information, there cannot, therefore, in the nature of things, be any implication of confidence from communications relative to a public law, or to matters of fact recorded for public information.
The reasoning in favor of the Governor’s authority to remove the Secretary, because of the latter’s duty to register his official acts, might be applied with great propriety to the Governor’s secretary, but it can have no application to the Secretary of State ; an officer whose office is created, and whose duty to keep a register of the acts of the Governor is prescribed, by the Constitution. In the performance of this, as of other duties, he does not act as the Governor’s officer, subject to his control and direction, but as the officer of the Constitution, bound to the performance of such duties only as have been assigned by that instrument and the law.
Why, it is asked, require him to keep a register of the official acts of the Governor, if it was not intended to give the executive a control over him ? To do this, would defeat the object of the requisition. The Constitution has placed him beyond the control of the executive, that he might keep a true and faithful record of the official acts of the executive. The authority claimed for the Governor would be incompatible with the performance of this duty. In giving a construction to one clause of the Constitution, we should also take into view such other parts as have a bearing upon the subject, and if possible, give to it such an interpretation as will allow all its parts, an operation in harmony with the whole instrument. For what purpose, then, is a register of the official acts of the Governor required to be kept, and laid before the General Assembly, when called for ? Clearly for the purpose of informing them of his official conduct. And when it is recollected, that ours is a government of checks and balances, and that to the representatives of the people, and to them alone, is delegated a direct authority to enquire into his official conduct, and if he has corruptly abused the authority confided to him, or by transcending the limits prescribed by the Constitution, usurped that not delegated, to call upon him by impeachment, to answer at the bar of the Senate, the charges of official misconduct which they may prefer against him. Is it not the manifest intention of this provision to perpetuate in a legal, authentic, and responsible form, the evidence of the official acts of the executive, tobe recurred to at all times, by those who have a constitutional right to animadvert upon their legality, and the motives which originated them ? For what other object could it be intended ? It can serve no other purpose. And that it was intended for this, is also proved by the fact, that it is only at the instance of the General Assembly, not of the Governor, that this register is to be laid before them. It is not by his authority that it is made. He has no right to command or forbid the reading of his acts. He cannot say what shall be set down, or what shall be omitted. The Secretary acts under the imperative injunction of the Constitution, and the obligation of an oath. As the Governor, therefore, has no right to direct how the duty shall be performed, it would seem preposterous to give him the power to dismiss the officer for not conforming to directions which he has no authority to give.
If this view, relative to the object and intention of this provision of the Constitution, be correct, the authority claimed for the Governor would counteract and defeat it. What security, or even prospect would there be, for the representatives of the people obtaining the record evidence of executive abuse, or usurpation of power, when by giving him absolute control over the officer who is to make and keep the record, you put it into his power, by a word or look, to suppress it ? If he could be guilty of acts that would merit impeachment, can it be supposed that he would suffer the evidence of them to be placed upon record, and laid before the legislature as the means of his conviction, by an officer whose official conduct he has the means of controlling ? Would he not rather, if the officer’s sense of duty were stronger than bis love of office, dismiss him from it and appoint one whose principles would not interfere with his subservience to the will of the executive ?
As the opinion that the Secretary is a confidential officer receives no countenance from the Constitution, or the nature of the official intercourse between him and the Governor; all reasoning founded on that assumption must be fallacious. No authority to remove the Secretary, can be implied from his registering the official acts of the Governor; but on the contrary, his obligation to perform this duty affords a strong implication of his independence of the executive control, because that is necessary to a faithful performance of the duty. The rule relied upon in support of the Governor’s claim of power, that every injunction of duty includes, by implication, the power necessary to its performance, applies, also, to the Secretary, and would be violated by subjecting him to executive control. I have shown that the discharge of the duty enjoined by the Constitution, may render the Secretary obnoxious to the displeasure of the Governor; such a construction of jt, therefore, as would render him obnoxious to his authority, would defeat its obvious intention.
. The injunction, that the Governor shall see that the laws are \ faithfully executed, it is also urged, gives him the control, and consequently the power of removal of the officers of the executive department. This inference is not justified by the premises. It has neither the sanction of authority nor the practice of other State executives; both of which are opposed to it. The practice of the President, as I will show, is founded upon other grounds, and his power does not extend to the removal of any officers whose offices are created by the Constitution, and whose duties are regulated by law. But as this position has been earnestly urged, and relied upon, I will examine it more fully than I should otherwise consider necessary. This clause of the Constitution, like those dividing the powers of government, and declaring the attributes of each, is, the declaration of a general principle, which is “ not to be regarded as a rule to fetter and control, but as matter merely declaratory and directory.”(1) It confers no specific powers, “nor does it enjoin any specific duty.” “ This power of general supervision,” says an able commentator on American law, “ is a duty enjoined on the federal and State executives.” “It would be dangerous, however, to treat this clause as conferring any specific power which they would not otherwise possess. It is to be regarded as a comprehensive description of the duty of the executive to watch with vigilance over all the public interests. ”(2) The Governor is not to execute the laws himself, but is to see them executed. This duty is performed by lending the aid and power of the executive arm, to overcome resistance to the law. The history of the federal and State governments, affords practical expositions of this clause of the Constitution, in conformity with this construction. The executive is to see the laws executed, not as he may expound them, but as they may be expounded by those to whom that duty is intrusted. To the legislature is delegated the authority to make the law, to the courts the authority to expound them, and to the executive the authority to see them executed, as they are thus interpreted. His interpretation is proper only when specially required by law, or where the ordinary means are inadequate to the object of their design. But to assume the power of expounding, and also that of executing the law, would be a usurpation of the functions of the judiciary, and concentrating, in one department, powers expressly declared, by the Constitution, to belong to two separate and distinct departments.
The manifest intention of the Constitution, and the authority cited in the absence of all precedent and principle militating against it, would seem to be conclusive against the executive claim of power, under this provision, to direct the Secretary how he shall execute the duties assigned him by law ; and if he has no power to direct him how be shall execute his duties, he certainly has no power to dismiss him for not conforming to his directions.
But it is, notwithstanding, insisted that this clause of the Constitution confers the power of dismissing not only the Secretary, but all the other officers in the executive department. If it confers the power of supervision and dismissal as to one officer, it also gives the same authority over every other one in the government (except, perhaps, the judges) upon whom the performance of a duty may be enjoined by law. The injunction to see the laws executed, is general, and sufficiently comprehensive to embrace every law, and every officer ; and if under it the Governor may dismiss from office the Secretary, Auditor, Treasurer, and Attorney General, which is claimed for him, I cannot see why he may not dismiss every other one, without regard to the manner of their appointment, or the tenure of office ; and thus, by the construction of one clause of the Constitution, bring all the officers, and the operation of all the laws of the State, under executive control. This would counteract the whole scope and design of the Constitution, by substituting the changing and capricious will of one man, for the fixed and known rules of the law.
From this consequence I can see no escape, if the principle contended for be adopted. The argument in support of executive power, limits it to the removal of the officers in the executive department; but where is the authority for the discrimination? It is not to be found in the Constitution. It confers no authority over them that can be brought in aid of this construction, but, on the contrary, it would conflict with the performance of the duties assigned them, particularly that of registering the acts of the Governor, required of the Secretary. The language of the Constitution is general, and embraces all the officers, as much as part. If the executive, therefore, may say to one officer how he shall execute a law, and dismiss him if he does not obey, he may say so to another. He may not only direct the Auditor what warrants he shall issue, and the Treasurer what ones he shall pay, or refuse payment of, but he may direct the Attorney General and State’s attorneys whom they shall prosecute, the Court what judgment it shall render, and the sheriff in what manner he shall execute it. This power, in the hands of any ruler, would leave to the citizensmo safety for life, liberty, or property.
Although these consequences would, I believe, be alike deprecated by all, they are such as must flow from an exposition of this clause that would give to the executive, authority to direct how an officer should execute a law, and dismiss him from office if he did not obey the direction. It is no answer to say that the Governor has no right to violate the law, but only to see it executed. The right to direct how a law shall be executed, presupposes the right of exposition. How else can its meaning and intention be known? To direct an officer in the performance of his duty, he must decide what that duty is. This power, also, includes the right to decide upon the validity of the law ; for if it is in violation of the Constitution, it is no law, and cannot legally be enforced. But it is useless to talk of constitutional restraints, if the executive may decide upon the law, and the duty of the officer, and enforce his decision, it must prevail, right or wrong.
This construction of the Constitution is incompatible with the legal obligations of the officers of government, with the supremacy of the law, and with well settled principles. It is not denied that all the duties of the Secretary, and other officers, are prescribed by law; and the principle is also conceded, and relied upon, that when the law imposes upon an officer the performance of a duty, it also confers the power necessary for its performance. Its injunctions would be nugatory and idle, if they did not imply authority to enforce them. But how could the Secretary, or other officer, perform the duties enjoined upon him by law, in the manner the law prescribes, if the Governor might interpose his authority and suggest a different mode ?
With every disposition that his directions should conform to the law, the Governor may err, unless we impute to him infallibility; and then, the same liberal concession must be extended to the Court, or there may be a difference of opinion between them. And which is to prevail ? Will executive authority be a justification to the officer ? Can he plead that in his defence when prosecuted for a violation of his official duty ? Certainly he cannot. In what situation, then, does this executive authority place the officer ? If he prefers his duty to executive dictation, he may be dismissed from office. If he submits to it, he incurs the penally imposed by law for a violation of its injunctions, and may also be impeached, and dismissed from office ? A construction of the Constitution involving consequences so absurd and unjust, must be rejected as altogether inadmissible.
But this question is settled by the adjudication of the highest judicial tribunal in the nation. In the case of Marbury v. Madison, (1) the Supreme Court of the United States decided, that where the duty of an officer is prescribed by law, he is bound to conform to the law, and not to be guided by the will of the President. In the performance of a duty prescribed by law, he acts under the authority and direction of the law, and not under that of the Executive. This case was an application to the Supréme Court for a mandamus to compel the Secretary of State to deliver a commission withheld by direction of the President. In delivering the opinion, the Court remarked, in reference to the President’s authority to control the Secretary in the performance of the duty which the law enjoined upon him : “ This is not a proceeding which may be varied, if the judgment of the executive shall suggest one more eligible, but is a precise course, accurately marked out by law, and to be strictly pursued. It is the duty of the Secretary of State to conform to the law, and in this he is an officer of the United States, bound to obey the laws. He acts in this respect, as has been very properly stated at the bar, under the authority of law, and not by the instructions of the President. It is a ministerial act which the law enjoins on a particular officer for a particular purpose.”
This decision requires no comment. It is based upon the supremacy of the law, alike over the officer who administers it, and the President who appoints him. It is made directly upon the question under consideration, and under constitutional provisions, in some respects identical, and in others more favorable to executive authority than those of ours. I must, therefore, consider it decisive against all claim of executive authority to control an officer in the performance of a duty prescribed by law. The Constitution of the United States declares the executive power to be vested in the President; it confers the right to require the opinion of the officers in the executive department; and like ours, it enjoins upon the executive the duty of seeing the laws executed. And as the President cannot, under any or all of these provisions, control the Secretary of State in the performance of a duty enjoined by law, it follows, conclusively, that the Governor’s title to such a power over the Secretary of this State, must be equally invalid ; and as he has no right to direct him how he shall perform the duties assigned him, he can have no right to dismiss him for a non-compliance with an unauthorized assumption of authority. As he has no right to command, he has no title to obedience.
I The office of Secretary of State is created by the Constitution, /without any limitation of duration being provided. It is therefore contended that the incumbent of this office holds it at the pleasure of the appointing power; and a rule laid down by Judge Story, that an officer, the tenure of whose office is undefined, holds at will, is relied upon in support of the position. But if this rule is admitted to apply to the officers under our Constitution, and to confer upon the authority to whom the appointment of such officers is given, the power of removal, it would not establish the Governor’s right to remove the Secretary, because he alone does not confer the office upon him. That is done by the advice and consent of the Senate ; their advice and consent would, consequently, be necessary to his removal.
But this rule is not applicable to the officers of our government; nor is it so applied by Judge Story. It is laid down in a treatise upon the Constitution of the United States, and as applicable to the officers under it. The Constitution of the United States created no office the tenure of which is not provided for; and the judicial officers alone are to hold during good behavior ; the inference, therefore, is, that all others that may be created shall hold during pleasure, unless Congress shall provide a different tenure.
But under our Constitution, a large proportion of the offices which it has created, are unlimited in duration ; and not only the judicial officers hold during good behavior, but all militia officers until sixty years of age. For some of the offices to which the Constitution fixes no tenure, (County Commissioners, for example,) the legislature is required to provide one, while no tenure is required to be given to others.
What, then, is the most reasonable and natural conclusion to be drawn from these constitutional provisions ? Are all these officers intended to be upon the same footing ? Certainly not. The tenure of one class of officers is intended to be beyond legislative control, while that of others is left to be fixed by the legislature, as may suit the changing exigencies of time and circumstances. But as the offices are created without limitation as to time, they remain so, until the legislature provides one.
That the legislature has a right to limit the tenure of the office of Secretary, and that of all other offices to which no tenure is given by the Constitution, I have no doubt. No proposition is better settled, than that a State Constitution is a limitation upon the powers of the legislature, and that the legislature possesses every power not delegated to some other department, or expressly denied to it by the Constitution. The creation of offices, the delegation and the regulation of the powers and duties of officers, and prescribing the period for which they shall be exercised, are legislative functions, and no restraint upon their exercise, in reference to the tenure of the office of Secretary, is imposed by the Constitution. There can be no objection, therefore, to giving such limitation to that office as the interest of the State may require. And that it is the intention of the Constitution that those officers, the tenure of whose office is not fixed by the Constitution, should hold without limitation, until a limit was given by law, is strongly inferable from the fact, that the appointment of some of them is given, not only to the legislature, but to the people. It cannot be supposed that the Convention which formed the Constitution intended to confer upon the people or any department of the government, a right which could not be exercised. But that mockery must be imputed to them, by the adoption of the rule contended for.
Suppose the legislature had given no tenure to the office of Auditor, or of County Commissioner, how could the legislature in the one case, and the people in the other, remove the officer whom they had elected ? Such a proceeding on the part of the legislature, or the people, would be unprecedented, and in the case of the people, impracticable. But this objection does not exist in reference to any of the officers of the general government whom the President may remove.
The rule, laid down by Judge Story, is an inference from the Constitution of the United States. But our Constitution, being entirely different in relation to the tenure of its officers, and the appointing power, warrants a different inference ; and the inference that an officer under our Constitution, the tenure of whose office is undefined, holds, until the law provides a limit, is in accordance with the rule of the common law, and has been so decided in another State, which, like ours, has adopted the common law. In the case of the Fayette county lawyers, the Supreme Court of Pennsylvania, after remarking that the office of an attorney was one recognised by the Constitution and law of Pennsylvania, lays it down as the rule of the common law, “ That the grant of an office without limitation, being taken more strongly against the grantor, endures for the life or good behavior of the grantee.” This rule may admit of exceptions under our government ; but where the grant is intended for the benefit of the people, and the power conferred is to be exercised to promote their interest, I am not aware of any exception. In such a case, a liberal interpretation of the grant is for the benefit of the people-; inasmuch as the power granted cannot, if retained by them, be used for their benefit, but may. be so used by the functionary to whom it is so delegated.
The federal government not having adopted the common law, its courts are not bound to the rigid observance of its, rules that the courts of this State are. But it is not the rule relied upon by the Circuit Court that gives the President the power of removal. This power he has in the case of superior officers, in virtue of his right of supervision and control over them, and his consequent responsibility for them. And that the rule is a deduction therefrom, seems evident from the fact, as generally conceded, that Congress cannot, by giving a tenure to the office of these officers, abridge the President’s power of removal. (1)
The President’s right to remove the inferior officers of the government, is given by law.
The rule that an officer whose tenure of office is undefined, holds at will, having been early adopted in reference to ambassadors and heads of department, the courts of the United States have, in conformity with that rule, decided that other officers, whose tenure of office was undefined, should hold, subject to the same rule, without regard to the authority that conferred the appointment. But these decisions do not conflict with the rule we have adopted, because our Constitution admits of no such deduction as that of the Constitution of the United States, upon which these decisions are founded ; and the legislature has enacted no law defining the tenure of the office of Secretary of State. On the other hand, the rule that an officer, the tenure of whose office is undefined, holds during good behavior, has been recognised by every department of this government. In applying this rule, therefore, to the present case, we conform to the principle which governed the United States courts, in the cases adverted to. We adhere to, and carry out, the interpretation invariably given to the Constitution of this State, as the courts of the federal government adhered to the legislative interpretation, which had been given to the Constitution of the United States. Nor can I perceive any good reason for making the tenure of an office the rule by which to subject the officer to, or exempt him from, executive authority. The power of removal from office, is intended as the means of putting aside corruption and imbecility, and of compelling a performance of the duties prescribed. These are the legitimate causes for the exercise of this power when it exists, and they may occur in any office for one year, as well as one for life.
The rule that an officer, the tenure of whose office is undefined, holds during good behavior, until a limit is provided by law, is also established by judicial and legislative expositions of the Constitution of this State. The first case in which that principle was recognised by this Court, was that of Street v. County Commissioners of Gallatin county.(1) That case was an application for a mandamus to restore a clerk who had been dismissed by the Court without cause shown ; and it was allowed by the unanimous consent of the whole Court. And again, in the case of Matheny y. Mobley, this Court decided that a judge of the Circuit Court had no power, under the Constitution, to remove, at will and pleasure, a clerk. In my apprehension, that case is not distinguishable, in principle, from the present one. The office of clerk and of Secretary are both created by the Constitution, without any limitation of tenure. The appointment of clerk is given, by express grant of the Constitution, to the Court, and that of Secretary to the Governor, with the advice and consent of the Senate ; and no power to remove either is granted by the Constitution. Upon the principle that the clerk is entitled to hold his office during good behavior, until a different tenure is provided by law, it would seem that the Secretary would be entitled to hold his upon the same terms. This is virtually admitted by the Circuit Court, in its effort to prove the principles upon which the case of Matheny y. Mobley was decided to be incorrect. If they were not applicable to the present case, the comments of the Circuit Court would have been gratuitous, and if they were applicable, that Court should have been governed by them.
In delivering the opinion, as published, the Circuit Court says : “ I feel constrained to say, that I cannot accord with them (the Supreme Court) in all the doctrines and principles of that case, and therefore cannot apply them to this.” As he cannot accord with the Court in the principles laid down, he cannot apply them. The doctrine, before this decision, was considered well settled, that when the supreme judicial tribunal of a State had declared what the law was on any point, when the same point came again in litigation, all other courts were bound to conform to its decision. A different rule would destroy all that stability and uniformity in the rules of law, which is so essential to the administration of justice, and the safety of the citizen. If every judge can decide according to his private sentiments, without regard to precedent and authority, there may be as many rules of decision as there are circuits ; and the decision of one day would furnish no rule for the decision of the next. " Judges,” says the Circuit Court, “are hound, in deciding a point of law, to follow a preceding decision upon the same point. Yet if such decision is founded in error-, they are not bound by it.” The correctness of this principle cannot be controverted, when applied to a court of equal or superior authority with the one deciding the point. But is it not obvious that the judge has misapplied the principle, in assuming for the Circuit Court authority to reverse a decision of the Supreme Court? Who does not see that such doctrine is subversive of the fundamental principles of the government ? It is reversing the order of authority prescribed by the Constitution and the law, and rendering nugatory the right of appeal. ' It will readily be admitted that an erroneous decision ought not to prevail, but who has the right to declare it so ? This authority includes the right of supervision and control, and if the Circuit Court has it, in reference to a decision of the Supreme Court, upon the same principle, a justice of the peace will have it, in reference to a decision of the Circuit Court; and one step further will give the right of supervision to the parties in the cause ; thus resolving all authority back into the original elements. This would be the consequence of carrying out the position assumed.
The correctness of the opinion in the case of Matheny v. Mobley, is tested by the rule adverted to, that when the tenure of an office is undefined, the officer holds at the will of the appointing power. I have shown that this rule is not only in contravention of that of the common law, but that it is one not warranted by our Constitution; and could not, therefore, be applied to a clerk, or other officer under it. It is also objected to the opinion delivered in that case, that the Court said, that if the clerk is to be considered the officer of the judge, and not of the law, that upon a vacancy occurring in the office of judge, the clerkships would, under that rule, be vacated also. Is not this true ? Is it not a consequence necessarily flowing from the nature of the tenure by which the officer holds his office ? It has been always so considered, and is well settled. An officer, or an estate, held at will, is terminated by the demise, or other act of either party, that can be considered a determination of bis will. This is the universal operation of the rule. In England, all the officers who hold at the will of the king, go out of office upon his demise, because this is very naturally considered a determination of his will, which, alone, continued them in office. But the Circuit Court thinks the will or act of the judge continues in full force, after he ceases to be judge, by death or otherwise, and that a clerk appointed by him continues in office, and bound to the performance of his duties by his official bond. That he so continues, and is so bound, is evidence that he does not hold his office at the will of the judge appointing him. If he did, his office would terminate with that of the judge ; and his bond, which is given for the performance of his official duties, would not be obligatory for acts performed after the termination of his office.
For the purpose of obviating the inconvenience incidental to the rule of an officer holding his office at the will of the authority that confers it, statutes have generally been passed, where the rule exists, continuing the officer in office after the termination of the authority that appointed him, until he is superseded by the appointment of another. This was done in England, where the judges held at the will of the crown. (1) And the same precaution is generally observed here, for the purpose of preventing an interregnum in offices held for a limited period. But as no such provision is made in relation to officers who hold by an unlimited tenure, it may be fairly inferred that they are not considered as holding their offices at-the will of the power that confers them, or that they are liable to terminate with the termination of that power. Otherwise, the same regulation would be necessary to continue a clerk or Secretary of State in office, after a vacancy, by death or otherwise, in the office of judge or Governor, that was necessary in England to continue the judges in office after the death of the king ; and as it is necessary here to continue in office a sheriff or other officer, appointed for a limited time, till a successor can be appointed and qualified.
The authority of the case of Matheny v. Mobley is also impugned, upon the ground of policy and convenience. Authority in the Court to dismiss its clerk, is considered necessary to secure his subservience, and to promote the dignity and usefulness of the Court. I admit, without hesitation, that the Court should possess every power necessary to secure these objects. But an argument to prove the necessity of such power, might be addressed with much more propriety to the legislature than to the Court. The rule already slated, that a given power is not to be enlarged, by construction, beyond the fair scope of its terms, merely because the restriction is inconvenient, impolitic, or even mischievous,” forbids the Court the exercise of any discretion. It has been well remarked, that the duty of the Court is to follow and obey. Now, if a principle so just and conclusive could be overlooked, could there well be found a more unsafe guide in practice, than mere policy and convenience ? “ Men, on such subjects, complexion-ally differ from each other. The same men differ from themselves at different times.”(1)
But does policy or necessity require a more absolute control over the clerk than the law has given ? According to the opinion of the Circuit Court, its authority is altogether inadequate to insure the respect of the clerk, or his obedience to its mandates ; he may, it is thought, contemptuously question the correctness or justice of the judgments of the Court, and refuse to enter them ; or he may be too ignorant to perform the duties of bis office ; and although they are left unperformed, the power of the Court is inadequate to correct the mischief. “ It is no answer,” it is said, “ to say the clerk may be removed on complaint. Who is to make the complaint ? Is it, when made, to be tried by a jury ? Might not a disobedient or refractory clerk be, notwithstanding, so popular as to prevent a verdict against him ? ” If this description of the impotency of the Court were correct, it certainly might, with great propriety, claim an extension of its authority. But is it correct ? Has the Court no power to punish the clerk for a contempt of its authority, or for refusing or neglecting to perform the duties of his office ? And is the fact of his delinquency to be ascertained by the verdict of a jury ? This view of the authority of the Court is totally unlike that which the law has conferred. It has provided that if any clerk of the Circuit Court shall neglect or refuse to perform any of the duties enjoined upon him by law, or shall in any manner be guilty of malfeasance in office, he shall be removed from office by the Court, upon proper complaint being made to the said Court or judge, and the said complaint being proved true to the satisfaction of the said Court or judge.(2) Here, express authority is given to the Court to remove the clerk for refusing or neglecting to perform any of his official duties. Incapacity is also a sufficient cause of removal ; for it matters not from what cause his duties are left unperformed, it constitutes a cause of removal ; and the fact of malfeasance or dereliction of duty, is not, as the Circuit Court seems to suppose, to be tried by a jury, but is to be proved to the satisfaction of the Court alone, to justify his dismissal.
This power, in addition to that of fine and imprisonment for all contempts or disobedience to the authority of the Court, would seem amply sufficient to insure the subordination of its clerk, and the protection of its dignity, character, and authority.
The Circuit Court has also fallen into a like error with respect to the authority of the Supreme Court over its clerk. It says : “ Suppose the clerk of the Supreme Court should refuse to enter a judgment of the Supreme Court, where is the remedy ? Would a suit on his bond answer ? Would an indictment or impeachment answer ? Neither ; for in both cases he would be permitted to show, in his defence, if he were the officer of the law and not of the Court, that the judgment ordered to be entered was unjust and erroneous ; and thus bring into review, before another less competent tribunal, the correctness of the decisions of the Supreme Court.” I do not know to what tribunal the Court below can refer, as having cognizance of such a question. But without enquiring into the correctness of this reasoning, whether it would be competent, under any regulations, for the clerk to show, or for any other tribunal, of less authority than the Supreme Court, to determine its decisions to be erroneous, and thereby exonerate the clerk from the obligation of recording them ; it is sufficient, by referring to the law, to show that no such proceeding as the Circuit Court alludes to is authorized ; but that full power is given to the Supreme Court to dismiss its clerk for cause, without the intervention of a jury, or an appeal to any other tribunal. The law provides, “ That the Supreme Court, or a majority thereof, shall have power to remove any clerk of said Court for neglect of duty, incompetency to perform the duties of his office, or for any malconduct, in office, of which he may be guilty, or for any other cause which shall be satisfactory to said Court, or a majority thereof.”(1) This law is plain and clear, and leaves no doubt or question as to the authority of the Court, or the responsibility of the clerk.
The authority, therefore, which the law has conferred upon the Supreme and Circuit Courts over their respective clerks, would seem amply adequate to insure their subordination, and a prompt performance of their official duties. And, on the other hand, the regulations under which their authority is to be exercised, are sufficient to protect the clerk from its capricious or wanton abuse.
These acts of the legislature prove the premises, upon which the Circuit Court has predicated its argument against the authority of the case of Matheny v. Mobley, to be untenable. They also prove a practical construction of the Constitution by the legislature. By their passage, that department of the government has clearly expressed its sense of the unlimited duration of an office to which the Constitution has given no limit, and that the officer is not removable at will. They also constitute a practical exposition of the authority of the legislature over the subject. If the Court had been thought to possess the constitutional power to remove the clerk, at will, the acts of the legislature conferring that power, under the regulations it has prescribed, would have been not only nugatory, but, by the restrictions which it imposed upon the exercise of the right, in direct violation of the Constitution.
So, too, the offices of Auditor of Public Accounts and Attorney General, like that of Secretary of State, are also created by the Constitution, without any limitation of tenure. And the duration of both these offices has been limited by the legislature to two years, and the officers have, in accordance with this law, been elected at every regular session of the legislature, since its passage. If they had not been considered as holding their offices under the Constitution, during good behavior, until a different tenure was provided by law, there would have been no necessity for providing a limit. They could have been elected at any time, and as often as the legislature might have considered expedient. But, inasmuch as the Constitution provided no limit, it was considered necessary to provide one by law, in order to determine the duration of the offices. If, therefore, this was necessary, in reference to the Auditor and Attorney General, it must be equally so in reference to the Secretary of State. These respective offices have the same origin, and the same unlimited tenure. The manner of the appointment being different, can make no difference as to the duration or tenure of office ; and one cannot be regarded as holding at the will of the appointing power, more than the others. The office of each being alike in its origin and tenure, the same legal rules, as to the manner of holding, must prevail in regard to them.
But it is objected to this law, providing for the election of Auditor and Attorney General, being considered a legislative exposition of the Constitution, in relation to the tenure of an office to which no limit is given ; because, it is said, the legislature did not legislate upon, or fix the tenure of these officers, although it is admitted, that the effect of the legislation may be to determine their time of service. If this is not legislating upon the tenure, I do not know what to call it; it is legislating upon nothing else. The admission, too, that the law has limited and fixed the time of service of these officers, is admitting all that the law was referred to, for the purpose of proving, in the case of Matheny v. Mobley ; and it is all that it is now referred to for. By showing that the office of Auditor ,is created by the Constitution, without limitation of duration, and that the legislature has provided a limit, by declaring that they shall be elected every two years, it proves that they considered these officers as holding their offices without limitation, as to time, and that their time of service could only be limited or terminated by law. And if they held their offices without limitation, and a law was necessary to fix a limit, and terminate the period of their continuation in office, it would seem to be a necessary inference, that the Secretary and clerks, whose offices are ere-: ated by the same instrument, and have the same unlimited tenure, must hold them upon the same terms.
But these are not the only instances in which the rule, that an officer, whose office is unlimited in duration, during good behavior, until a limit is given by law, has been recognised, and acted upon by different departments of the government. In the case now under consideration, the rule has received the sanction of a coordinate branch of the government. Some resolutions of the House of Representatives and Senate have also been referred to upon this question ; but these resolutions are to be regarded as merely expressive of personal or political feeling. They were speculative, not practical expressions of opinion, and consequently without the authority of official responsibility.
The decision of the Senate upon this question, at the last session of the legislature, by which they in effect decided, that the Governor had no power to remove the Secretary of State, at will, is of a different character. The question came directly and properly before it, and was decided under official responsibility, and the solemn obligations of an oath. Nor was it made hastily, without reflection and deliberation, but upon full and able discussion. A decision so made, says Judge Story, by a coordinate branch of the government, “ under a deep sense of its importance and difficulty, in the face of the nation, with a view to present action, in the midst of jealous interests, and by men capable of urging and repelling the grounds of argument, from their exquisite genius, their comprehensive learning and deep meditation upon the absorbing topic, constitutes one of the most unexceptionable sources of interpretation of which the Constitution is capable, and approaches, nearest to its nature of any other, to a judicial one.” That this decision was not the result of political bias, may be fairly inferred from the notorious fact, that the Senate was equally divided in political sentiment; yet, notwithstanding this, and the additional circumstances of tbe weight of executive influence in favor of executive authority, there was a decided majority against the Govern- or’s claim of power to remove the Secretary. When, therefore, legislators, who, from their general habits of life, and tbe functions of their office, are more accustomed to look to policy and expedience, than to strict legal rules, decide a question of a political aspect against their political predilections, they must be supposed to have considered the obligation imperative, from the plainness of the question.
Upon the same principles that the Governor’s right to remove the Secretary is urged, it is also contended that he may remove the Auditor and other officers in the executive department. No construction of the Constitution can be a correct one, which, by extending the powers of one department of government, will narrow down, or render inoperative, the powers expressly granted to another; and this would be the effect of allowing to the Governor the right to remove the Auditor and other executive officers. The right to appoint these officers is given by the Constitution to the General Assembly ; but if the Governor may immediately remove those whom they appoint, and substitute for them those of his own selection, is not the right of the legislature converted into an idle and useless ceremony ? and one of the most important powers of the government, given, by express grant of the Constitution, to one department, taken from that department, by construction, and virtually given to another, contrary to the expressed intention of the Convention ?
This would be a most strained stretch of executive authority, for which no warrant can be found in the spirit of the Constitution, or the rules of interpretation. The settled doctrine is, that construction for the purpose of conferring power, should be resorted to with great caution, and only for the most persuasive reasons.
The enquiry then arises, what will authorize or justify the constructive grant of power claimed for the executive ? What fatal evil is to be corrected, or what absurd consequence is to be avoided, that will warrant the exercise of a power not expressly granted, or even hinted at by the Constitution, and one greater, of more controlling influence, and more liable to abuse, if allowed to the extent claimed, than any, or probably all the powers expressly granted by the Constitution ? If any such exists, I confess I have not astuteness of mind to discover it; and others have failed to point it out. But on the other hand, it is admitted, that the power of removal is not expressly granted by the Constitution, and I have attempted, and I think succeeded, in proving, by the reasons adduced, and, more conclusively, by authority, that it cannot be implied from any of the provisions relied upon.
I have shown, by authority, that the first and second section of the first article, and first section of the third article of the Constitution, are to be regarded as merely declaratory and directory, and confer no specific powers; and that authority and reason are equally conclusive against any implication of executive power, under the injunction to see that, the laws are executed, or under the authority to require information from the officers in the executive department; to direct or control any of those officers in the performance of duties enjoined by law (and all are so enjoined), and consequently against the power of removing them, which includes the power of supervision.
I have also shown, that the power of removal is unnecessary to the exercise of any of the powers granted, or the performance of any of the duties enjoined upon the Governor; but that this power would be incompatible with the performance of the duties enjoined upon other officers generally, and especially that of the Secretary, to register the official acts of the Governor. The assumption, that the Secretary is the confidential officer of the Governor, is also shown to be gratuitous and without foundation. The inference and arguments drawn from it must therefore be fallacious.
If these positions have been established, the arguments drawn from the Constitution itself have been answered. But it has been further shown, that the Constitution has received a judicial and legislative exposition, adverse to the power claimed. That, in accordance with the rule of the common law, it has been settled by judicial adjudications, and by early and subsequent legislative action, that an officer whose office is created by the Constitution, without limitation of duration, holds, accordingly, without limit, until one is given by law. To this authority may also be added, the implied disavowal of the power of removal by the executive department, arising from the fact, that it has never before been exercised, or claimed on any occasion, by any executive, since the adoption of the Constitution, for now upwards of twenty years. To this it is answered, that the right was never before denied ; but this does not obviate the force of the objection. The power could not be denied until claimed. The attempt to exercise a power, must, in the nature of things, precede resistance to it. Until the right is asserted, there is nothing to deny. It is not contended that the omission, for any length of time, to assert a power clearly granted, can operate as a bar to its exercise ; but a claim of power resting upon mere inference and presumption, may, by inference and presumption, be rebutted ; and an omission to assert it for a length of time sufficient to bar a title to an estate, ought to be sufficient, aside from other and stronger objections, to raise a presumption of want of title sufficient to bar, at least, a doubtful claim of power. And when, in connexion with this circumstance, we also take into consideration the doctrine, that the practical operation of the several departments of the government affords an exposition of their constitutional powers inferior only to a judicial one ; and that so far as the principles upon which this clause depends, have been drawn in question, the practical operation of every department, up to this time, has been adverse to it; authority and consistency would therefore seem to leave no discretion in the determination of this clause. If the power of removal from office, was one of little importance, or if opportunities for its exercise were of rare occurrence, the presumption against its existence, from its not having been exercised or claimed, would be measurably obviated. But the reverse of this is unquestionably true. So important was this power considered, and consequently so urgent the necessity for settling its extent and practice under the general government, that it was among the first subjects that engaged the attention of the first Congress under the Constitution of the United States. If it had been supposed that this power had been granted by our Constitution, why has it never before been .asserted ? It can hardly be pretended, that there has never been either occasion or temptation to its exercise. Such an assertion would imply a degree of fidelity and perfection in all the officers of the executive department, which facts and circumstances do not warrant; and also, such a degree of moderation, forbearance, and exemption from the contagion of example, on the part of the executives, as has rarely, if ever, been known to exist in connexion with power. It is no disparagement to the executives who have presided over the State, to say, that we cannot claim for them an exemption from the passions common to others, or the concomitant partialities and antipathies of party feeling. And when it is recollected that we have had mutations of party, and party ascendancy, can it be asserted that there has been no sufficient temptation to removal from office ; especially, when a want of identity of political faith with the executive is considered a legitimate cause ? How then has it happened that this prerogative of removal (which some consider so essential an executive attribute, and all must admit to be a most potent means of gratifying party and political predilections and resentments, and of maintaining political power, by keeping to its side those in office, and by winning over those who seek it) has never before been resorted to. Can any reason be assigned for its having so long remained dormant, unappropriated, and unclaimed, except that it was never before believed to exist ?
But other arguments than those drawn from the Constitution, have been advanced in support of the Governor’s right to remove the Secretary. While the exposition which the Constitution has received from the practical operation of the several departments of our government is rejected, the practice and principles drawn from other governments, totally unlike ours in their powers, objects, and nature, are relied upon as authority to change the settled construction of the Constitution, and extend the powers of the Governor, not only beyond the boundaries fixed by the uninterrupted and unquestioned practice of the government, since its formation, but to confer upon him powers which no other Governor in the Union, with perhaps but one exception, has been shewn to possess.
To carry out this object, two positions are assumed. First, that the power of removal is incidental to the power of appointment ; and next, that the power of appointment to office, and removal therefrom, are executive functions, and as such belong to the Governor. The enquiry, then, is, how far these assumed axioms are true ? and if true, how far they are applicable to the present case ?
If the principle, that the right of removal is incidental to, and is to be exercised by the power that confers the office, is to be tested by the practice of the republics of America, it will be found to be untenable. I have shown that the practice of our own government is opposed to it; and by recurring to the practice of the general government, it will be seen that the practice under that is also opposed to it. I am not familiar with the practice of the State governments generally, but so far as my knowledge extends, their practice accords with that under our government. But admit it to be correct, as contended for, it would not give the Governor the right to remove the Secretary from office, but would take from him all title to the exercise of this right, upon this or any other principle. The Constitution gives to the Governor and Senate, conjointly, the appointment of the Secretary. To them, conjointly, then, under the rule contended for, would belong the right to remove him. But, notwithstanding the unequivocal language, and obvious intention, of the Constitution, it is insisted, that the Governor alone appoints the Secretary ; and a decision of the Supreme Court of the United States is relied upon, in support of the position. " The Constitution of the United States gives to the President, by and with the advice and consent of the Senate, the power to make treaties, and to appoint ambassadors, judges, and all other officers, whose appointments are not otherwise provided for, and which shall be established by law. But Congress may vest the appointment of inferior officers in the President alone, &c. Our Constitution gives the appointment of the Secretary to the Governor and Senate, in language identical with the language of this provision in relation to appointments by the President and Senate. The question before the Supreme Court of the .United States, in the case referred to, (1) was not, whether the President alone, or whether the President and Senate conjointly conferred appointments. The question which it did decide, was in relation to its jurisdiction ; but that which was intended to be presented was, whether the President could control the Secretary of State in the performance of a duty prescribed by law ; and the Court said he possessed no such power. In the investigation of this point, it is said, in relation to appointments to office by the President and Senate, that the nomination is the sole and voluntary act of the President, and that the appointment is also the sole and voluntary act of the President, though it (the appointment) can only be performed by and with the advice and consent of the Senate. Does this prove that the President alone makes the appointment ? Does it not rather prove that the appointment is made by the joint action and cooperation of the President and Senate ? The action of the Senate is as necessary to create the appointment as that of the President. Without its vote of advice and consent, no appointment can be made. How, then, can it be contended that they have no participation in the matter ? We are not to lose sight of the sense and substance of the Constitution, by confining our attention exclusively to the form of expression. The whole clause, and every other clause having a bearing upon the subject, are to be taken together, and construed according to the plain and generally received meaning and acceptation of its language, and the obvious intention of its authors. As it is obvious, then, that the President alone, and consequently the Governor, does not confer the office, as he alone does not create the officer, be alone cannot, according to the rule laid down, remove him ; as the advice and consent of the Senate is necessary to confer the office, it must, according to this rule, be necessary to remove him.
After giving to the President and Senate the appointment of ambassadors and other superior officers, the Constitution provides that the appointment of inferior ones may be vested in the President alone. Is it not clear, then, that he alone does not appoint those just before enumerated, and declared to be appointed by the President with the advice and consent of the Senate ? A construction of the Constitution which would give the President alone the appointment of judges, and ambassadors, &c., would be rather an amendment, than a construction of it. It would leave out a part, and a very important part of the clause in relation to the appointment of officers. The cooperation of the Senate was intended for some purpose. The provision requiring it, was not inserted in the Constitution without design. It appears, from the journal of the Convention, that it was adopted as an amendment to the original drafts upon the report of a committee ; and was intended to give to the Senate a participation in, and control over appointments to office. That this was the light in which this provision was viewed by the first Congress, and that it was then understood that the Senate, conjointly with the President, was the appointing power, is proved by their debates. This is also Judge Story’s view of the subject. He says, “ The power to nominate, does not naturally or necessarily include the power to remove ; and if the power to appoint does include it, then the latter belongs conjointly to the executive and the Senate.”(1)
Again he says, “ The President is to nominate, and thereby has the sole power to select, for office ; but bis nomination cannot confer office, unless approved by a majority of the Senate. His responsibility and theirs is thus complete and distinct.”(2)
According to these authorities, and the plain and obvious meaning of the Constitution, the Senate, as a coordinate branch of the government, conjointly with the President, is the appointing power, under the Constitution of the United States ; and as our Constitution gives the Governor and Senate the appointment of Secretary, in the identical language of that of the United States, in reference to appointments by the President and Senate, it follows conclusively, that the Governor and Senate conjointly appoint the Secretary, and that the Governor alone cannot remove him, because he alone does not appoint him. The Secretary being appointed by and with the advice and consent of the Senate, upon the principle laid down by the Court below, their advice and consent is necessary to remove him.
Whatever degree of weight, therefore, may be allowed to the maxim, that the power of removal is incidental to, and included in the power of appointment, it cannot be brought in aid of the Governor’s claim of power to remove the Secretary. If it has no application under our government, it can have no influence upon the present case ; but if, on the other hand, it is, according to the assumption of the Court below, a principle of universal application, whenever the tenure of the office of the appointee is unlimited, it will be conclusive against the Governor’s power to remove the Secretary ; because, under this rule, the advice and consent of the Senate is as essential to the removal, as it is necessary to the appointment; and that has not been given.
It is also contended, that the Governor may remove the Auditor and Treasurer, &c. This position, and the position that the right of removal is incidental to that of appointment, cannot both be correct. The General Assembly appoint these officers ; how then can the Governor remove them, if that right belongs to the power that appoints them. ?
The arguments and positions in favor of the power claimed for the Governor, cannot be reconciled with each other. One clear and plain grant of power is sufficient to justify its exercise ; but it is certainly a presumption that no such grant can be found, when the advocates of the power rely with more confidence on general maxims, drawn from other governments, than upon the provisions of the Constitution itself. The application of one of these maxims to the present case, I have shown, would defeat, rather than sustain the claim of executive power. The next political maxim relied upon is, that the right of appointment and of removal from office are executive functions, and, as such, belong to the executive. The practice of the President, under the Constitution of the United States, is also relied upon as evidence of a similar authority in the Governor, because of the supposed similarity between that Constitution and ours.
It is assumed, as an undeniable proposition, that the power to appoint to, and remove from office, are executive functions ; and upon this assumption, the argument in favor of the Governor’s right to remove the Secretary, is based. The most improbable and fanciful theory may be established, if the premises upon which the arguments in its favor are founded, may be assumed without proof. But the truth of the premises should be established before we presume to draw conclusions. The assumption, that appointment to, and removal from office is an executive function, warranted by our Constitution, as a political maxim, is subject to exceptions, and is applicable only to governments which give that power to the executive. Such as deny to the executive the exercise of this prerogative are exceptions to the rule. It is rather a monarchical than a republican maxim of government; so far as I know, or as has been shown, we may search in vain, in the republics of the Union, for a constitutional grant to the executive, of the power of removal from office; while that of appointment is variously modified. In England, the power of appointment and removal belongs to the king ; but that does not prove that it does or should belong to the Governor. We have adopted the common law of that country, but not its government, or political maxims. According to the theory of that government, the king is the sovereign power. He is the fountain of all honors and offices ; all are conferred by him, and may be recalled by him, at pleasure. They are the officers of the king and not of the government or people ; hence the maxim, under that government, that the power of appointing and removing officers is an executive function. But as the theory and principles of our government are essentially different, it necessarily follows, that the maxims and rules of government flowing from, and applicable to it, are also different.
According to the theory of our government, the people are the sovereign power. All offices are created and administered for their benefit and convenience, and not for the benefit or con•venience of the chief magistrate. All the officers of government derive their authority directly or indirectly from the people ; and an officer who is to execute or administer the laws, is not less an officer of the people, nor more an officer of the executive, or the legislature, because the people have declared by the Constitution that he shall receive his appointment through their instrumentality. In making the appointment, they act as the agents of the people, but when that act is performed, their agency and authority ceases. The President is appointed by electors, but that does not make him their officer, or subject to their control. So, where no other power than that of appointment is given to a department of the government, none else can be exercised, unless where the appointee is the mere agent, and bound to execute the will of the appointing power.
If, in claiming the power of removal as an executive function, it is meant, that this power belongs, ex-officio, to the Governor ; that it grows out of, and belongs to, the office, the position is altogether untenable ; the executive power under this, and every other constitutional government, is just such power as the Constitution confers upon him. That is the only source of power. Neither the practice nor maxims of other governments can confer upon him any functions or powers. But it is laid down, as “ a well settled political proposition, that, whenever the legislative powers of a government are undefined, it includes the judicial and executive attributes.”(1) The executive and judiciary, therefore, can exercise no powers but such as are granted, while the legislature can exercise all powers not forbidden.
It is also argued, that the Constitution of this State was model-led after that of the United States ; and that, inasmuch as the President has the power, under that instrument, of removing officers in the executive department, the same power was intended to be given to the Governor. This reasoning is more plausible than sound, and, like that predicated upon the assumption that the Secretary is the confidential officer of the Governor, and that the power of appointment and removal is an executive function under our Constitution, is based upon incorrect premises. Some of the provisions of the two Constitutions are similar, but they are essentially different as regards the grants of executive power. They both contain the same general division and definition of the powers of government, and both grant to the executive the pardoning power, and constitute him commander-in-chief. They are also alike, in requiring him to see that the laws are executed, and to give information to the legislative department, of the state of the government. The right of the President to require the opinion, and of the Governor to require information from the officers in the executive department, I have shown to be different, and intended for a different purpose. And I think I have also shown, that the power of removal cannot be inferred from these, or any of the provisions in which the two Constitutions are similar. The power of appointment to office, delegated to the respective executives, and the power of supervision intended to be conferred, will, by a recurrence to the Constitution, be found to be widely different. If the constitutional grants of executive power can be shown to be similar in reference to some subjects, but are different in respect to appointment to office, it must be evident that different powers were intended to be conferred. That could be the only motive for a deviation from the supposed model.
But is there not as much reason for supposing that the Constitutions of the State governments served as models for the formation of ours, as that of the United States ? There is scarcely a provision in it that is not to be found in one or other of the State Constitutions, either identical, or in a form slightly modified ; and as the objects and general powers of our government bear a nearer resemblance to those of the other State governments, than to those of the general government, their practice, under constitutional provisions similar to ours, would seem to afford a precedent (so far as precedent is entitled to influence,) of more weight than that of the general government. But, so far as my knowledge upon this point extends, (though I confess it is limited,) I do not know of but one Governor in the Union who possesses the power claimed for the Governor of this State. And we may fairly presume that none other does, as the evidence of its exercise has not been adduced, by any of the able counsel, who did not omit to bring forward every practice or exercise of executive power, calculated to countenance or support that which they advocated.
In order to ascertain how far the practice of the President can be regarded as a precedent for the like practice by the Governor, it is necessary to enquire how far their constitutional powers of appointment to office are alike ; and also, whether the officers whom the President may remove, and the Secretary of this State, bear the same relation to the respective executives ? Upon a similarity in these points, and upon both executives having the same interest in, and control over, the subjects to which the duties of the officers relate, must depend the degree of influence which the practice of the general government is entitled to have upon that of ours. The same grant of power does not necessarily or naturally give the same control over subjects or officers of a different character.
But, recurring to the Constitution of the United States and of this State, there will be found a great disparity between the executive powers of appointment to office conferred by the two Constitutions ; and by recurring to the organization of the offices under the two governments, as great a disparity will be found to exist in relation to the control and supervision conferred upon the respective executives over the officers in the executive department ; and none of the reasons upon which Congress, in 1789, recognised in the President the right to remove those officers, are applicable to the Governor’s claim of power.
By the second section of the second article of the Constitution of the United States, it is provided, that the President shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur, and shall nominate, and by and with the advice and consent of the Senate shall appoint ambassadors, other public ministers, and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law. But Congress may by law vest the appointment of such inferior officers, as they may think proper, in the President alone, in the courts of law, or in the heads of departments.”
This clause gives to the President and Senate the appointment of all the superior officers of the government; and Congress has given most of the others. There is some propriety, therefore, in calling appointment to office an executive function, under the general government. But can it be so called, under ours ?
The Constitution of this State, after giving the appointment of clerks to the courts, and that of almost all the other officers to the people and the legislature, provides, by the twenty-second section of the third article, that “ The Governor shall nominate, and by and with the advice and consent of the Senate, appoint all officers whose appointments are not herein otherwise provided for ; ” with the further proviso that inspectors, &c. and all other office s whose jurisdiction is confined to the county, may be appointed in such manner as the General Assembly shall prescribe. Although the Constitution provides, I believe, for the appointment of all the officers it creates, and gives to the legislature the right of prescribing the manner of appointing all county officers, still, this section would have left to the Governor some chance of appointment to office, besides those specially given him, if this was all that had been said upon the subject. But it is not. By the tenth section of the Schedule, it is declared, that “ An Auditor of Public Accounts, an Attorney General, and such other officers for the State as may be necessary, may be appointed by the General Assembly, whose duties may be regulated by law.”
The practical construction which this section has received, takes from the Governor all appointments except such as are expressly given him. I do not express any opinion upon the propriety of this construction ; and I am still less disposed to advocate the policy of giving all appointments to office, to the legislature, rather than to the executive. But that is not the point for adjudication.
What officers, then, has the Constitution given the Governor the right to appoint, that establishes the analogy between the constitutional powers of the President and the Governor ? The President may, in conjunction with the Senate, appoint all the superior officers of the general government. The Governor may, in conjunction with the senate, appoint a Secretary of State, and he may appoint his staff officers. These are all. How, then, can it be said, that there is an analogy between the two Constitutions, in reference to the power of appointment delegated to the respective executives ? On the contrary, there is a marked contrast between their constitutional powers.
And does the Governor’s right to appoint two staff officers, and a Secretary of State, create a general rule, and constitute appointment to office an executive function, under our Constitution ? I think not. But, to prove that it does, the Court below gives a long list of officers, embracing nearly all belonging to the government, who may be appointed by the people, the legislature, or the judiciary, and says, that these are all the instances in which appointments can be made, except by the executive. And these, it is contended, are exceptions to the general rule, that appointment to office is an executive function. Now, to say that the appointment of three officers, and one of them in connexion with another branch of the government, constitutes a general rule, and that the appointment by the people, the legislature, and the judiciary, of several hundred times that number, are merely exceptions to this general rule, is, to my mind, a confusion of language, and confounds and reverses.all preconceived ideas of general rules, and the exceptions thereto.
As the right of appointment to office has not been given to the Governor as a general rule, as it has to the President, the analogy between their powers, relied upon, does not hold good ; and whatever may be the theoretical or political denomination of this power under other governments, it cannot be considered an executive function, under our Constitution, because it does not belong to the executive. Under the English government, the power to declare war and to coin money, as well as to appoint to office, are executive functions, because they belong to the executive. But they cannot be so denominated, even under the general government. These powers not having been granted to the executive of that government, they cannot, under it, be called executive functions. So diversified is the practice of the governments of the States, in reference to the appointment of officers, that no general rule can be deduced from it; certainly none to justify the assumption that it is an executive function. Under these governments, then, it is an executive, or legislative, or popular function, or power, according as the respective Constitutions have made it so.
The disparity between the powers of the President and Governor, is not greater in reference to appointment to office, than it is in reference to their supervision and control of the officers of the executive department, when appointed.
The Constitution of the United States and of this State contain the same declarations, that the executive powers of the government shall be vested in the respective executives ; and, in the Constitution of the first, this declaration is carried out by its other provisions. < It creates no other officers in whom a portion of this power is vested, or required to be vested, by law. Those officers whom the President may remove, are created by law, as aids and helps to him, in the performance of his duties. But the declaration in our Constitution, that the executive power of the government shall be vested in the Governor, is to be understood in a much more limited sense ; inasmuch as, by its other provisions, it is greatly circumscribed and narrowed down. Unlike the Constitution of the United States, ours has created other executive officers, in whom a portion of this power is required to be vested by law, not to be assigned by the Governor. He can assign no duties to the Secretary. That idea is negatived by the Constitution, requiring all his duties, in addition to such as it has prescribed, to be assigned by law. He is, therefore, the officer of the Constitution, and not of the Governor.
By an examination of the laws of Congress, organizing the offices of the executive department of the general government, and by recurring to the Constitution, it will be found, that this distinction exists in reference to all the officers in the executive department of the two governments. And by a recurrence to the congressional debates of 1787, it will be seen, that the power of removal was conceded to the President, because of bis executive powers, of his responsibility for the performance of the duties of the executive department, and of his supervision and control of the executive officers. None of these apply to the Governor.
The law creating the office of Secretary of Foreign Affairs, (now called Secretary of State,) provides, “ That the Secretary for the department of Foreign Affairs shall perform and execute such duties as shall from time to time be enjoined on, or intrusted to him, by the President of the United States, agreeably to the Constitution, relative to correspondence, commissions, or instructions to, or with, public ministers or consuls from the United States, or to negotiate with public ministers from foreign states or princes, or to memorials, or other applications from foreign public ministers, or other foreigners, or to such other matters respecting foreign affairs, as the President of the United States shall assign to the said department. And furthermore, that the said principal officer shall conduct the business of the said department, in such manner as the President of the United States shall from time to time order or prescribe.” This law, it will be observed, requires of the officer the performance of no duties but such as shall be assigned him by the President, and they are to be performed under his supervision and direction. Upon the passage of this law, in 1789, the question arose whether this officer should be removable from office by the President alone, or by the President and Senate, the generally recognised appointing power. Men of the highest talents and purest patriotism took different sides of the question. The republican party, generally, were opposed to the President’s exercise of the power of removal. They contended, that when that power existed, it should be exercised by the same power that conferred the appointment ; that it resulted from, and was incidental to, the power of appointment ; and as the consent of the Senate was necessary to confer an office, it should be necessary to remove the officer. That this power, vested in the President alone, would be an arbitrary and monarchical prerogative, that might, in the hands of an ambitious and corrupt man, be used for the base and unworthy purpose of gratifying personal and party resentments, of depressing the freedom of opinion and action, and of converting all the officers into mere tools and creatures of the executive.
The federal party advocated the power of dismissal by the President alone, and argued that it resulted from the powers and duties of the President, and was essential to their exercise. That as the President was responsible for the executive department, he should have the control of the officers who were to assist hirh in its administration. They contended that all the public ministers, and heads of department, were the mere aids and helps of the President in the performance of his duties ; and as they received their directions from him, and were, by law, bound to conform to his will and instructions, in the manner of performing the trust confided to them, he should have the power of removing them, as the means of compelling their obedience. They also argued, that the danger of dismissing good officers for a difference of political opinion, or to make room for favorites or dependents, must be imaginary. That no man, elevated to so exalted a station, could descend to such a prostitution of the power and confidence reposed in him. And Mr. Madison declared, that removals made, from motives so unworthy, would subject a President to impeachment, and removal from office.
These last arguments prevailed.- Which, from their prescience of coming events, were best entitled to prevail, each one will decide for himself. By a small majority in the House of Representatives, and by the casting vote of the Vice-President in the Senate, it was decided, that the President alone should have the power of removing the Secretary of Foreign Affairs, and consequently all other heads of departments, and ambassadors, &c., who, like him, are subject to the control and supervision of the President.
In relation to this decision, it is remarked by Judge Story, “ That the final decision of this question, so made, was greatly influenced by the exalted character of the President then in office, [Washington,] was asserted at the time, and has always been believed.”(1) That it was contrary to the exposition that had before that time been given to the Constitution, is asserted by high authority, and is proved by the Federalist, a work composed by several of the ablest statesmen of the age, for the purpose of answering objections brought against it by its opponents, and to propitiate for it the favor of the public.”(2)
But, whatever may be the opinion of the correctness of this exposition of the Constitution, the long acquiescence in, and practice under it, may well be considered as having established it too firmly to be shaken. That the power of removal is liable to great abuse cannot be doubted ; and that if required to be exercised in conjunction with the Senate, the danger of that abuse would be greatly diminished, if not entirely removed, admits of as little doubt. But whether, if to be thus exercised, its efficiency, as a means of putting aside imbecility and corruption, and frustrating i fraud or treachery, would, under all circumstances, be equal to the emergency, may well be doubted.
These questions, however, have no connexion with the present case. It is not necessary, for the support of my views in respect to it, that I should controvert that exposition of the Constitution that allows to the President the power of removal ; nor am I disposed to animadvert upon its exercise. But I propose to show, by a reference to the debates upon that question, that none of the reasons upon which this power was allowed the President, are applicable to the Governor.
One of the reasons assigned for the President’s authority to remove the executive officers, is his control over the executive department, and the executive officers. In the debate of 1789, Mr. Ames said, “ The Constitution places all executive power in the hands of the President; and could he personally execute all the laws, there would be no occasion for establishing auxiliaries ; but the circumscribed powers of human nature, in one man, demands the aid of others.” Mr. Madison held the same language. “ It is evidently the intention of the Constitution,” said he, “ that the chief magistrate should be responsible for the executive department. So far, therefore, as we do not make the officers who are to aid him in the duties of that department responsible to him, he is not responsible to the country.” Mr. Lawrence also contended, that, “ In the Constitution, the heads of department are considered the mere assistants of the President, in the performance of his executive duties. He has the superintendence, the control, and inspection, of their conduct ; he has an intimate connexion with them, they must receive from him his orders and direction.”(1)
Is it not clear, from these views of the advocates of the President’s power of removal, that there is no analogy between his power and duties, and those of the Governor, or between the character and accountability of the executive officers of the general government, and of this government ? The Governor has not, like the President, the whole control of the executive department ; the Secretary, and other officers, are not placed under his control, to receive his orders and direction, or to aid him in the performance of his duties. The office of Secretary, and that of the other officers of the executive department, like that of the Governor, are created by the Constitution, and their duties, like his, are assigned by law. Each constitutes different parts of the machinery of government, and is bound to move in the order prescribed by law. Where, then, is the analogy between these officers and those who are under the absolute direction of the President, to be controlled or dismissed at will ?
As, by the Constitution of the United States, the President has the control of the whole executive department, it having created no other officers in whom any portion is vested, or required to be vested, by law ; and as those who are to assist him in its administration, are by law placed under his supervision and control, he thereby becomes politically responsible for its proper administration. This responsibility was strongly urged as a reason for giving him authority to remove those officers for whose conduct he was responsible. “ It would seem incongruous and absurd, (said Mr. Sedgwick,) that an officer who, in the reason and nature of things, was dependent upon his principal, to conduct such business as was committed to the charge of his superior, (for this business is committed solely to his charge,) I say, it would be absurd, in the highest degree, to continue such a person in office contrary to the will of the President, who is responsible for business being conducted with propriety, and for the general interest of the nation. The President is made responsible ; and shall he not judge of the talents, ability, and integrity of his instruments ? ” Again, Mr. Stone remarked, “If we establish an office, avowedly to aid the President, we leave the conduct of-it to his discretion. Hence, the whole executive power is left to him.” Again, “Is it not made expressly the duty of the Secretary of Foreign Affairs to obey such orders as shall be given to him by the President; and would 3’ou keep in office a man who should refuse or neglect to do the duties assigned him ? Is not the President responsible for the administration ? He certainly is.”(1)
Many more extracts could be given from the debates upon this question, all tending to prove, that the power of removal by the President, was advocated and allowed, upon the ground, that the business that the officers were to conduct was his business, which he assigned them, and which was conducted under his supervision and control. That, as the officer was the mere organ through whom he transacted the business of this department, and as he was responsible for his acts, these considerations should entitle him to the right of dismissing him, as the means of insuring his obedience and vigilance.
Here, again, is a contrast, in place of an analogy, between the powers and responsibility of the executives of the two governments ; and also between the character and accountability of the executive officers of the respective governments.
The Governor is, neither in fact nor in theory, personally or politically responsible for the official conduct of the Secretary, or any other officer. He cannot ássign him the performance of a single duty, or control him in the performance of those assigned by law. He does not move in the executive circle, as has been said, but in that marked out by the Constitution and the law, separate, distinct from, and independent of, that of the Governor. He looks to the law for his authority and duties, and not to the Governor ; and to that, and that alone, he is responsible for their performance.
Another cogent reason in favor of the President’s authority and control over the heads of department and public ministers, arises out of the confidential character of the connexion and intercourse between them and the President. Through the Secretary of State and ambassadors, all negotiations, whether of peace or war, commerce or navigation, are conducted ; and with the Secretary of War and of the Navy, the plans of campaigns, the movements of the army and navy, are arranged and settled. It must, therefore, be manifest that the communications and intercourse between these functionaries are often of a secret and highly confidential nature, and such as, if betrayed, might greatly prejudice the interest and safety of the nation. Nothing, therefore, short of the power of promptly dismissing an unfaithful or even indiscreet agent, could counteract or obviate the effects of his folly or treachery.
This reason, no more than the others, upon which the President’s power of removal was allowed, applies to the present case. In no point of view does the Secretary bear the same relation to the Governor, that the secretaries or ambassadors of the' United States do to the President. He is not a confidential officer of the executive, and no official intercourse of a secret or confidential character can take place between them. The Governor has no title to the opinion or confidence of the Secretary, upon any subject; and the official information which he may require, relates to public matters which all may know ; and the object of the requisition is to make them still more public and notorious, by communicating them to the General Assembly. This is also the object of recording the official acts of the Governor. The very reverse of secrecy or confidence is contemplated by the Constitution, in requiring the performance of these duties. Neither the heads of departments of the United States, nor their clerks, can be required to give evidence of transactions in their offices of a confidential nature. But no such exemption applies to the Secretary of this State ; which shows, that no secret or confidential transactions or intercourse is contemplated between him and anjr other functionary of the government.
The congressional exposition of the constitutional powers of the President, in 1789, has been relied on, with much apparent confidence, as authority in favor of the Governor’s claim of the same power that was conceded to the President. But, from a view of the arguments and reasons upon which the authority of the President was urged, and allowed, taken in connexion with the disparity between the constitutional powers of the two executives, and the contrast between the character of the executive officers of the general and State governments, it is to my mind a strong authority against the exercise of the same power under the latter, that is allowed under the former. Throughout, there is rather a contrast than analogy between the circumstances of that case and the present. The office of Secretary is created by the Constitution, and all his duties are prescribed by law, agreeably to the Constitution. The President has no constitutional power to remove any officer whose office is thus created, or all of whose duties are thus prescribed. But so far as he possesses the power to remove this class of officers, it is expressly given by law. But the offices of those officers whom he may dismiss, owe their origin to the law, and not to the Constitution, and are consequently subject to repeal or modification. Their duties are, to a great extent, prescribed by the President; and to him alone, to that extent, they are accountable for their performance. The executive power, and the control of the executive department of the government are vested, by the Constitution, in the President alone. It creates no other officer in whom any portion of this power is vested, or required to be vested, by law ; and those who are to aid him in the performance of bis duties, are, by the laws of their creation, placed under his supervision and control. They bear to each other the relation of principal and agent. Hence his responsibility, and his right of removal. But mark the contrast between the constitutional delegation of power to the two executives, upon this subject. Our Constitution has not delegated to the Governor all the executive power of the government ; nor has it given him any direction or control over the Secretary, or other officers of the executive department.
By the creation of these officers, the Constitution contemplated a division of the executive power of the government; and by requiring their duties to be prescribed by law, it negatived the idea of their being prescribed by the executive, as those of the general government are. The Governor, therefore, has no control or direction of the Secretary, and his responsibility is as limited as his authority is circumscribed.
From this comparison between the powers of the President and Governor, and between the character, duties, and accountability of the officers whom the President may remove, and the Secretary 'of this State, there is no similarity, so far as regards the decision of this case ; and, by an examination of the debates of 1789", it will be seen, that the concession to the President, of the power now claimed by the Governor, was made for reasons which cannot apply to it. Convenience and a supposed necessity may have had some influence, but, from the general scope and tendency of the arguments of the advocates of the President’s power, there would seem to be no doubt but the concession was made because of the general grant to him of executive power ; his entire control over, and responsibility for, the proper administration of the executive departments ; and because of his right to prescribe the duties of the officers of the departments, and supervise and control them in the manner of their execution. The same principles upon which the President’s power was affirmed, was carried out and applied to the functionaries of the government by the legislation of this Congress. In organizing the judicial courts, they gave to the President and Senate the appointment of marshals, and to the marshals the appointment of their deputies ; but, because of the interest in and control over the subjects to which the deputies’ duties relate, that the court must necessarily have, the right to dismiss him from office was given to the court, and not to the marshal, by whom he was appointed.
The marked disparity between the powers and responsibility of the general government and that of this State, naturally and necessarily results from the different character of the respective governments, their powers, duties, and the object of their creation.
The government of the United States is the national government of the Union. To that is delegated the attributes of national sovereignty. The duties of the executive of the national Government, are, therefore, widely extended and greatly diversified; “ Embracing all the ordinary and extraordinary arrangements of peace and war, of diplomacy and navigation, of finance, of naval and military operations, and of the execution of the laws throughout almost infinite ramifications of details, and in places at vast distances from each other.” His views are not bounded even by the circuit of the whole Union, but must extend to the most remote regions to which commerce or navigation has extended, or connected our interest. So multifarious and diversified, therefore, are the functions of his office, that the limited abilities of no one man are equal to their discharge. Hence the necessity of organizing various departments, and the employment of numerous ambassadors, and other public ministers ; all of whom constitute so many aids and helps in the performance of the executive duties of the President. And as many of the duties of these officers cannot be regulated by law, because they cannot be anticipated, but arise out of the changing exigencies of time and circumstances, large discretion must, from necessity, be vested somewhere ; and it has been vested in the President as the chief executive officer of the government. From his interest in and control over all the business of the executive department, and his political responsibility for its administration, arises his right to supervise, control, and dismiss those executive officers who are his political and confidential aids in the discharge of his executive duties.
But the State governments are widely different in their objects, powers, and duties. Compared with the general government, they may be denominated domestic governments. They act, exclusively, upon the domestic relations of life. Their regulations and sphere of action are limited to their territorial boundaries. The powers and duties of the chief executive magistrate, therefore, are proportionably limited, and such as from their nature are capable of being specifically prescribed and regulated by law ; and, unlike those of the President, they may all be performed in person. He neither has, nor does he require, the aid of others in the performance of any of his duties. The duties, likewise, of all the executive officers of the State, are capable of being regulated by law ; and by our Constitution, they are required to be so regulated. No discretionary authority or control over them is delegated to the Governor, by the Constitution ; nor does it contemplate the delegation of such power, by law.
From the discretionary powers with which the President is clothed, there is a necessity for his possessing the power of removal, which does not exist in the case of the Governor. The heads of departments and public ministers being the political and confidential officers of the President, to execute his will, and act in cases in which he possesses a legal discretion, all their acts in this character are only politically examinable. The duties which are not enjoined by law, cannot be enforced by its process. But as the law has expressly given to the President the right to prescribe the duties of those officers, it also gives, by necessary implication, the power of removal, as a means of rendering available the authority expressly granted.
But this reason does not exist in favor of the like authority in the Governor. The rule is, that the duties of an officer that are enjoined by law, may be enforced by the mandates of the law ; and as all the duties of the Secretary, and other executive officers of this State are thus enjoined, they can be enforced by the process of the law. No authority being given to the Governor to assign any of these duties, no right of removal can be implied to enforce a command which he has no right to give. This is the doctrine of the Supreme Court of the United States, in the case of Marbury v. Madison, although the Secretary of State of the United States is the political and confidential officer of the President, so far as he may prescribe the duties of that officer ; but in the performance of duties which the law has enjoined, the Court said, the Secretary acted as the officer of the law, and not of the President. In such a case, the law, and not the will of the President, was to be his guide, and the rule to which he was to conform. Any other doctrine would place the executive above the law, and make his will, in place of the law, the rule to which its officers are amenable for the proper discharge of their duties. This would be in violation of the whole tenor and spirit of the Constitution, which regards the law as paramount to all other authority, and as constituting the rule to which all are bound to conform, and to which all are amenable, officially and individually.
In every aspect, then, in which I can view this case, I am constrained, according to the convictions of my mind, to say, that the Governor has no power, under the Constitution, to remove from office the Secretary of State, at will and pleasure. No express grant of this power is to be found in the Constitution ; nor can it be implied from any of its provisions. It is not a power necessary, as has been shown, to the exercise of any of the powers expressly delegated, or the performance of any of the duties enjoined upon the executive. It must, also, be manifest, that he alone can have no title to the exercise of this power, as being incidental to that of appointment, inasmuch as he alone does not confer the appointment. In the performance of that act, the cooperation of a coordinate and independent branch of the government is essential. Upon the principle, therefore, that the authority that confers an office may remove the officer, the advice and consent of the Senate is as necessary to the removal of the Secretary as it is to his appointment. It has also been shown, that the practice of the President can be no precedent for the like practice of the Governor, because of the disparity between the constitutional powers conferred upon the respective executives, particularly in reference to the power of appointment to office ; and also in reference to their authority over the officers of government, as contemplated by the respective Constitutions, and as delegated by law.
The doctrine, that the power of removal from office at will must necessarily be lodged in some department of every government, is abundantly refuted by the practice and experience of our own government, for upwards of twenty years ; and likewise by other State governments of the Union, for half a century; in none of which has the want of the power been complained of as an evil, or even a defect. But, although this Court cannot be governed by considerations of expediency, yet I do believe that the conclusion to which I have arrived, by the application of the legal rules of interpretation, is in accordance not only with the language and spirit of the Constitution, but with sound policy, and the best interests of community.
According to my construction of the Constitution, the power of removing from office the Secretary, Auditor, and Attorney General, is lodged in the hands of the representatives of the people. They may not only give these officers whatever tenure they please, but they may, by law, confer upon the executive the power of removal, under such regulations as the interest of the public may require. By those who hold the opposite doctrine, it is contended, that the power of removal belongs, unconditionally, to the Govern- or, not by any specific grant of the Constitution, but by construetion. The question, then, so far as power is concerned, is one between the executive and the legislative departments of the government. Which of these departments can be most safely trusted with, or would be most likely to abuse, this trust ? The lessons of political experience answer, that power is much safer when operating and regulated by a law made by the representatives of the peopie, than when its exercise depends upon the uncontrolled and arbitrary will of one individual, however exalted may be his station.