Another question of much practical importance is as to when an appointment to office becomes complete, so as to put the appointee beyond the arbitrary will of the executive. This question received very careful consideration in the early and leading case of Marbury v. Madison," wherein it was declared that when a commission has been signed by the President, the appointment is final and complete. The officer has then conferred on him legal rights which cannot be resumed. Neither a delivery of the commission, nor an actual acceptance of the office, is indispensable to make the appointment perfect.

We are next brought to the consideration of the subject of removals from office. The power of appointment necessarily includes the power to remove the appointee for cause. But the question which has been earnestly debated by statesmen and jurists is, where does this power reside, under the constitution? Is it in the President alone, or must the senate concur in a removal proposed by the executive, or is the whole matter within the jurisdiction of congress? On this point the constitution is entirely silent. But the whole course of executive and legislative interpretation of the constitution, from the earliest times until now, as well as the settled precedents, have practically determined that the power to remove public officers, when not otherwise expressly provided for, resides in the President alone. A complete discussion of this matter is beyond our present limits, but the reader may consult the authorities cited in the margin.52 It should be here mentioned, however, that the construction thus put upon the question was at one time practically reversed by an act of congress. This was the "Tenure of Office Act," so called, passed in 1867.53 This statute in effect denied to the President the power to remove public officers without the consent of the senate. And it provided that, if good cause for the removal of any officer should arise during a recess of the senate, the President should only have the power to suspend the officer until the next session of the senate. But this statute was repealed

51 1 Cranch, 137. See, also, U. S. v. Le Baron, 19 How. 73; 2 Story, Const. § 1546.

52 2 Story, Const. §§ 1537-1544; Pom. Const. Law, §§ 647-661; Miller, Const. pp. 156-162.

53 Rev. St. U. S. § 1767 et seq.

BL.CONST.L.-8

by an act passed in 1887, which apparently amounts to a conces sion that the power of removal in such cases belongs to the President alone.54

In the case of vacancies happening during the recess of the senate, the President has power to make appointments to such offices, at his own pleasure and discretion, but such appointments hold good only until the end of the next session. There is some doubt as to whether a newly created office, which never has been filled, presents a case of "vacancy" within the meaning of this provision. In practice, the question has been decided both ways. But the plain inferences from the context seem to indicate with sufficient clearness that the constitution originally contemplated only those offices which were in existence and filled before the particular recess began. It has also been ruled by the courts that if a vacancy in an office occurs during the session, but remains unfilled at the end of the session, this is a case of vacancy "happening" during the recess. 50 But the President has no power to anticipate a vacancy and make an appointment in advance to fill it. A commission issued by the President to fill a vacancy in an office, during a recess of the senate, continues in force until the end of the next session of congress, unless sooner determined by the President, even although the person commissioned shall have been in the mean time nominated to the office, and his nomination rejected by the senate."

55

PRESIDENTIAL MESSAGES.

57

58

78. The President is not only empowered, but he is required, from time to time, to give to congress information of the state of the Union, and recommend to their consideration such measures as he shall judge necessary and expedient.

Under the first two Presidents of the Republic, it was the custom for the chief executive to meet the two houses of congress in

54 24 Stat. 500.

55 2 Story, Const. § 1559; McCrary, Elect. § 237.

56 In re Farrow, 4 Woods, 491, 3 Fed. 112

57 McCrary, Elect. § 257.

58 In re Marshalship of Alabama, 20 Fed. 379.

person, at the opening of each session, and address them upon the state of the Union, recommending at the same time such acts of legislation as he deemed important or necessary. But from the time of Jefferson on, it has become the invariable practice for the President to make all his communications to congress, under this clause of the constitution, in writing. An annual message is prepared by the President and delivered to congress by his private secretary. And from time to time he sends to congress special messages relating to particular topics of national interest, often accompanied by correspondence or other documents. The propriety of laying this duty upon the President is at once apparent when we consider how many details in the practical administration of the government are within the personal supervision of the Presi dent or the heads of departments, and can be made known to congress only by this means, and how important it is that the legislative body should have the most full and accurate information as to the state of the Union, in order to frame its laws with reference to public needs and interests. Story says that the President "is thus justly made responsible, not merely for a due administration of the existing systems, but for due diligence and examination into the means of improving them." 59 It is also usual for congress to request the President to communicate to it facts or papers in his possession or knowledge which bear upon any subject to which the attention of congress is addressed, either by way of contemplated legislation or of investigation. These requests are always complied with, unless in the judgment of the executive the interests of the nation require that such facts or documents, or the dealings of the executive department with the subject in hand, should for the present be kept secret.

CONVENING AND ADJOURNING CONGRESS.

79. The President may, on extraordinary occasions, convene both houses of congress or either of them, and in case of disagreement between them, with respect to the time of adjournment, he may adjourn them to such time as he shall think proper.

2 Story, Const. § 1561.

"The power to convene congress on extraordinary occasions is indispensable to the proper operations and even safety of the government. Occasions may occur in the recess of congress requiring the government to take vigorous measures to repel foreign aggressions, depredations, and direct hostilities, to provide adequate means to mitigate or overcome unexpected calamities, to suppress insurrections, and to provide for innumerable other important exigencies arising out of the intercourse and revolutions among nations.” 60 This power is seldom exercised to the extent of calling together both houses of congress in extra sessions. But it is usual for a newly inaugurated President to call an extra session of the senate, for the purpose of confirming the nominations to his cabinet, and considering other important nominations. As to the power to adjourn congress in case of a disagreement as to the time of adjournment, it is said that this power is equally as indispensable as that to convene them. For it is the only peaceable way of terminating a controversy which can lead to nothing but distraction in the public councils.1

DIPLOMATIC RELATIONS.

80. By virtue of the treaty-making power combined with the power to receive the diplomatic agents of foreign governments, the President has entire control over the foreign relations of the United States.

The constitution provides that the President "shall receive ambas sadors and other public ministers." This grant of authority, together with the treaty-making power, invests the federal executive with entire control over the foreign relations of the United States. It is somewhat remarkable that foreign consuls should not have been mentioned in this clause. For they do not come under the designation of "public ministers," not being diplomatic agents, but mere commercial representatives of foreign powers, and yet they exercise very important powers within their own sphere of action. But the power of the executive to receive them and recognize their credentials may fairly be inferred from other parts of the constitution. And indeed foreign consuls have never been allowed to discharge any functions of of

60 Id. § 1562.

61 Id. 1563.

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fice until they have received the exequatur of the President."2 The power to receive foreign ministers necessarily implies the power in the President to refuse to receive any particular person accredited to him by a foreign government, whether the ground of his refusal be that he is unwilling to consider the special subject with relation to which the diplomatic agent is sent, or because he prefers not to recognize the accrediting authority as a rightful government, or whether his reasons are merely personal to himself. And after a foreign minister has been received by the President, the latter has the power, for reasons satisfactory to himself, to request the accrediting government to recall the minister, or, in case of refusal or delay in recalling him, to dismiss him or refuse longer to hold relations with him. But the most important feature of the President's diplomatic power is the authority to give recognition to the party or persons claiming to be the rightful government of a foreign country, or to withhold it. The reception of a diplomatic representative is equivalent to a formal recognition by the receiving power that the party or faction sending him is at least the de facto government of that country. And in this respect the constitution appears to give the President unrestrained authority and consequently unlimited discretion. The question has indeed been raised whether congress could not, by a solemn declaration, disavow or repudiate the action of the executive in either giving or withholding recognition of a de facto government. But as no necessity for such a course has yet arisen, the question has remained one of abstract interest only, and has never received an authoritative answer. One principle, however, is certain and well settled. The determination of the question which of two opposing governments, each claiming to be the rightful gov ernment of the state or country, is the legitimate power, does not belong to the courts. The judicial department cannot take notice of, or recognize, any new government or sovereignty, until it has been officially recognized by the political departments of the govern ment.63

62 Id. § 1565.

63 Gelston v. Hoyt, 3 Wheat. 324; U. S. v. Palmer, 3 Wheat. 610, 634, 643; The Divina Pastora, 4 Wheat. 52; The Neustra Senora de le Caridad, 4 Wheat. 497; Rose v. Himely, 4 Cranch, 241; Luther v. Borden, 7 How. 1.