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and expeditious discharge of his executive duties, may direct some other department to make known the measures which he may think proper to take. They are equally his acts, whether they emanate from the department of state, or any other department. His immediate mandate to an inferior officer is in no case necessary. *

All commissions to officers issue from, and are signed by the president. When the president has nominated, the senate approved, and the commission is signed, the appointment is complete. If the officer be removable at the pleasure of the president, the commission may be arrested by him, if it is in the office of the secretary of state, but, if it is an office during good behaviour, the appointment is not revocable, and, after it has received the approbation of the senate, cannot be annulled.

Delivery is not essential to the validity of a commission, nor is it affected by detention after it has been signed by the president, if the officer is not removable at pleasure. If in such case, the secretary of state being possessed of the commission, should refuse to,'the judicial officer mây nevertheless lawfully exercise his functions, and will be entitled to his legal compensations.t

Sickness, absence, or death, might delay the executing a commission, and the public interests in some cases, (as for instance the judge of a district court,) suffer great injury during the vacancy of the office. The commission is not the exclusive evidence of the appointment.

The appointments made, and commissions issued during the recess of the senate, are in force only till the end of the ensuing session. · When their advice and consent are given, it is to be considered not as a confirmation of the preceding appointment made during the recess, but strictly as a new one;

* 1 Peters' Rep. 471.
+ 1 Cranch, 137, Marbury v. Madison, and see particularly p. 167.

a new official oath must be taken ; and if it is an office in which security is required, a new security must be given.

It has been decided that persons who have become bound for the good conduct of the officer on the first appointment, are not responsible for his acts after the date of the second commission, which virtually suspends the first.*

9 Wheaton, 730. United States v. Kirkpatrick.



It is a self-evident principle, that an illegal mandate or instructions from the president, can give no sanction to the conduct of a subordinate officer. On the contrary, the president would be liable to the action of a person injured in the same manner that a private individual would be. The law makes no distinction of persons, and the maxim that the king can do no wrong, so much admired in England, exists by no analogy in a republican government.

It may not be improper to consider why such a rule is admitted in monarchies, and why it cannot take place in a well constituted republic. In every monarchy, a quality termed prerogative, is attached to the monarch. It is defined by the learned commentator on the laws of England, “ that

special pre-eminence which the king hath over and above “ all other persons, and out of the ordinary course of law."* It cannot be shared with the people, for then it would cease. to be prerogative: “it is that law in case of the king, which " is law in no case of the subject.” One of these prerogatives is, that no personal redress can be had from the king. He

1 Blackst. 239.

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may actually, (it would seem,) commit any outrage on any of his subjects ; he would be liable neither to a prosecution nor a civil action. “ He is considered as a superior being, and “entitled to that awful respect which may enable him with "greater ease to carry on the business of the government."* These doctrines, grating as they are to republicans, are palliated by the further remark, that prerogative is given for the “ benefit of the subject, in the confidence that it will only be "exerted to the advantage of the realm—and that to subject “ him to civil or criminal proceedings, would be to subvert the “ whole order of that species of government.” The theory is not unjust, and the remark of Locke, the great champion of a tempered system of popular rights, must be acknowledged to be cogent—"as to personal wrongs, the harm which the

sovereign can do, in his own person, not being likely to happen often, nor to extend itself far; the inconvenience of some particular mischiefs, that may happen sometimes, when a heady prince comes to the throne, are well recompensed

by the peace of the public, and the security of the govern“ment, in the person of the chief magistrate being thus sent “out of the reach of danger.” But the principle which thus shields and protects the monarch ; the sovereignty resident in himself, creates the distinction between him and the elected, though supreme, magistrate of a republic, where the sovereignty resides in the people. All its officers, whether high or low, are but agents, to whom a temporary power is imparted, and on whom no immunity is conferred. An exemption from the power of the law, even in a small particular, except upon special occasions, would break in upon this important principle, and the freedom of the people, the great and sacred object of republican government, would be put in jeopardy.


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* 1 Blackst. 240.

The exception adverted to, is that already noticed, of members of the legislature going to, attending at, or returning from a session of congress—but even this exception is qualified; the commission of treason, felony, or the slightest breach of the peace, would convince the member, that his public function in nowise protected him from the administration of justice; but no other officer of government is entitled to the same immunity in any respect.


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