(47 S.Ct.) fined special grants, as in the federal Constitution itself. They contained no intimation of executive powers except those definitely enumerated or necessarily inferred therefrom or from the duty of the executive to enforce the laws. Speaking in the Convention, July *205 17, *Mr. Madison said: "The executives of the states are in general little more than cyphers; the Legislatures nipotent." whole and referred to the committee on detail, June 13, it read thus: "Resolved, that a national executive be instituted to consist of a single person, to be chosen by the national legislature for the term of seven years, with power to carry into execution the national laws, to appoint to offices in cases not otherwise provided for-to be' ineligible a second time, and to be removable on om-impeachment and conviction of malpractices or neglect of duty-to receive a fixed stipend by which he may be compensated for the devotion In the proceedings of the Constitutional of his time to public service to be paid out of Convention no hint can be found of any execthe national treasury. That the national exutive power except those definitely enumerat-ecutive shall have a right to negative any legislative act, which shall not be afterwards ed or inferable therefrom or from the duty to passed unless by two-thirds of each branch of enforce the laws. In the notes of Rufus King the national legislature." (June 1) upon the convention, this appears: "Wilson an extive. ought to possess the powers of secresy, vigour & Dispatch-and to be so constituted as to be responsible-Extive. powers are designed for the execution of Laws, and appointing Officers not otherwise to be appointed-if appointments of Officers are made by a sing. Ex he is responsible for the propriety of the same. Not so where the Executive is numerous. "Mad: agrees wth. Wilson in his definition of executive powers-executive powers ex vi termini, do not include the Rights of war & peace &c. but the powers shd. be confined and defined-if large we shall have the Evils of elective Monarchies-probably the best plan will be a single Executive of long duration wth. a Council, with liberty to depart from their Opinion at his peril."-Farrand, Records Fed. Con. v. 1, p. 70. If the Constitution or its proponents had plainly avowed what is now contended for there can be little doubt that it would have been rejected. The committee on detail reported: "Sec. 1. The executive power of the United States shall be vested in a single person," etc. This was followed by section 2 with the clear enumeration of the President's powers and duties. Among them were these: "He shall from time to time give information to the Legislature of the state of the Union. He shall take care that the laws of the United States be duly and faithfully executed. * * * He shall receive ambassadors. * He shall be commander-in-chief of the Army and Navy." * * 207 Many of these *were taken from the New York Constitution. After further discussion the enumerated powers were somewhat modified, and others were added, among them (September 7) the power "to call for the opinions of the heads of departments, in writing." It is beyond the ordinary imagination to The Virginia plan, when introduced, pro- picture 40 or 50 capable men, presided over vided: "That a national executive be instituted; to be chosen by the national legislature for the term of years, to receive punctually at stated times, a fixed compensation for the services rendered, in which no increase or diminution shall be made so as to affect the magistracy, existing at the time of increase or diminution, and to be ineligible a second time; and that besides a general authority to execute the national laws, it ought to enjoy the executive rights vested in Congress by the Confederation. *206 "That the executive and a convenient number of the national judiciary, ought to compose a council of revision with authority to examine every act of the national legislature before it shall operate, and every act of a particular legislature before a negative thereon shall be final; and that the dissent of the said council shall amount to a rejection, unless the act of the national legislature be again passed, or that of a particular legislature be again negatived by of the members of each branch." This provision was discussed and amended. When reported by the committee of the by George Washington, vainly discussing, "That the United States in Congress be authorized to elect a federal executive to consist of persons, to continue in office for the term of years, to receive punctually at stated times a fixed compensation for their services, in which no increase or diminution shall be made so as to affect the persons composing the executive at the time of such increase or diminution, to be paid out of the federal treasury; to be incapable of holding any other office or appointment during their time of service and for- years thereafter; to be ineligible a second time, and removable by Congress on application by a majority of the executives of the several States; that the executives besides their general authority to execute the federal acts ought to appoint all federal officers not otherwise provided for, and to direct all military operations; provided that none of the persons composing the federal executive shall on any occasion take command of any troops, so as personally to conduct any enterprise as general or in other capacity." "The danger then consists merely in this: The President can displace from office a man whose merits require that he should be continued in it. What will be the motives which the Presi The sketch offered by Mr. Hamilton: "The supreme executive authority of the dent can feel for such abuse of his power, and United States to be vested in a governor to be the restraints that operate to prevent it? In elected to serve during good behavior-the elec- the first place, he will be impeachable by this tion to be made by electors chosen by the peo-House, before the Senate for such an act of malple in the election districts aforesaid the au- administration; for I contend that the wanton *208 removal of meritorious officers would subject * * * *thorities and functions of the executive to be as follows: to have a negative on all laws about to be passed, and the execution of all laws passed; to have the direction of war when authorized or begun; to have with the advice and approbation of the Senate the pow-an hereditary monarch, possessed of those high er of making all treaties; to have the sole ap- prerogatives and furnished with so many means pointment of the heads or chief officers of the of influence, can we suppose a President, elected Departments of Finance, War and Foreign Af- for four years only, dependent upon the popular fairs; to have the nomination of all other offi- voice, impeachable by the Legislature, little, if cers (ambassadors to foreign nations included) at all, distinguished for wealth, personal talents, subject to the approbation or rejection of the or influence from the head of the department Senate; to have the power of pardoning all himself; I say, will he bid defiance to all these offences except treason; which he shall not considerations, and wantonly dismiss a meripardon without the approbation of the Senate." torious and virtuous officer? Such abuse of If anything XI. The Federalist, Article LXXVI, by power exceeds my conception. Mr. Hamilton, says: takes place in the ordinary course of business of this kind, my imagination cannot extend to it *210 We face as an actuality what he thought was beyond imagination and his argument must now be weighed accordingly. Evidently the sentiments which he then apparently held came to him during the debate and were not entertained when he left the Constitutional Convention, nor during his later years. It seems fairly certain that he never con "It has been mentioned as one of the ad-on any rational principle." vantages to be expected from the co-operation of the Senate, in the business of appointments, that it would contribute to the stability of the administration. The consent of that body would be necessary to displace as well as to appoint. A change of the Chief Magistrate, therefore, would not occasion so violent or so general a revolution in the officers of the government as might be expected, if he were the sole disposer of offices. Where a man in any station had given satisfactory evidence of his fitness for it, a new President would be re-sciously advocated the extreme view now strained from attempting a change in favor of a person more agreeable to him, by the apprehension that a discountenance of the Senate might frustrate the attempt, and bring some degree of discredit upon himself. Those who can best estimate the value of a steady administration will be most disposed to prize a provision, which connects the official existence of public men with the approbation or disap-ritory, originally organized by the Continental Congress. This statute directed: probation of that body, which, from the greater permanency of its own composition, will in all probability be less subject to inconstancy than any other member of the government." His clearly attributed to him by counsel. By an Act approved August 7, 1789 (chapter 8, 1 Stat. 50, 53) Congress provided for the future government of the Northwest Ter "The President shall nominate, and by and with the advice and consent of the Senate, shall appoint all officers which by the said ordinance were to have been appointed by the United States in Congress assembled, and all officers so appointed shall be commissioned by him; and in all cases where the United States in Congress assembled, might, by the said ordinance, revoke any commission or remove from any office, the President is hereby declared to have the same powers of revocation and removal." Mr. Madison was much influenced by supposed expediency, the impossibility of keep ing the Senate in constant session, etc.; also the extraordinary personality of the Presi The Ordinance of 1787 authorized the apdent. He evidently supposed it would be pointment by Congress of a Governor, "whose come common practice to provide for officers commission shall continue in force for the without definite terms, to serve until resigna- term of three years, unless sooner revoked tion, death, or removal; and this was gener- by Congress," a secretary, "whose commisally done until 1820. The office under discussion shall continue in force for four years, sion was a superior one, to be filled only by presidential appointment. He assumed as obviously true things now plainly untrue and was greatly influenced by them. He said: unless sooner revoked," and three judges, whose "commissions shall continue in force during good behavior." These were not constitutional judges. American Insurance Co. *211 (47 S.Ct.) Thus Foreign Affairs over which the long debate arose. As nobody objected to the provisions concerning removals and life tenure in the two later acts it seems plain enough that the First Congress never entertained the constitutional views now advanced by the United States. As shown by Mr. Madison's letter to Edmund Randolph, supra, the point under discussion was the power to remove officers appointed to serve at will. Whatever effect is attributable to the action taken must be confined to such officers. v. Canter, 1 Pet. 511, 7 L. Ed. 242. Congress, at its first session, inhibited removal of judges and assented to removal of the first civil officers for whom it prescribed fixed terms. It was wholly unaware of the now-supposed construction of the Constitution which would render these provisions improper. There had been no such construction; the earlier measure and debate related to an officer appointed by legislative consent to serve at will, and whatever was said must be limited to that precise point. On August 18, 1789, the President nominated, and on the twentieth the Senate "did advise and consent" to the appointment of the following officers for the territory: Arthur St. Clair, Governor; Winthrop Sargent, secretary; Samuel Holden Parsons, John Cleves Symmes, and William Barton, judges of the court. The bill for the Northwest Territory was a House measure, framed and presented July 16, 1789, by a special committee of which Mr. Sedgwick, of Massachusetts, was a member, and passed July 21 without roll call. The Senate adopted it August 4. The debate on the bill to create the Department of Foreign Affairs must have been fresh in the legislative mind, and it should be noted that Mr. Sedgwick had actively supported the power of removal when that measure was up. The Act of September 24, 1789 (chapter 20, 27, 1 Stat. 73, 87), provided for another civil officer with fixed term: "A marshal shall be appointed in and for each district for the term of four years, but shall be removable from office at pleasure, whose duty it shall be," etc. This act also provided for district attorneys and an Attorney General without fixed terms and said nothing of removal. The Legislature must have understood that, if an officer be given a fixed term and nothing is said concerning removal, he acquires a vested right to the office for the full period; also that officers appointed without definite terms were subject to removal by the President at will, assent of Congress being implied. *212 Congress first established courts in the District of Columbia by the Act of February 27, 1801, c. 15, 2 Stat. 103. This authorized three judges to be appointed by the President, with consent of the Senate, "to hold their respective offices during good behavior." The same tenure has been bestowed on all subsequent superior District of Columbia judges. The same act also provided for a marshal, to serve during four years, subject to removal at pleasure; for a district attorney without definite term, and "such number of discreet persons to be justices of the peace, as the President of the United States shall from time to time think expedient, to con *213 *tinue in office five years." Here, again, Congress undertook to protect inferior officers in the District from executive interference, and the same policy has continued down to this time. See Act of February 9, 1893, c. 74 (27 Stat. 434). The acts providing "for the government of the territory of the United States south of the river Ohio" (1790), and for the organiza│tion of the territories of Indiana (1800), Illinois (1809), and Michigan (1805), all provided that the government should be similar to that established by the Ordinance of 1787 for the Northwest Territory. Judges for the Northwest Territory were appointed for life. The act establishing the territorial government of Wisconsin (1836) directed: "That the judicial power of the said Territory shall be vested in a Supreme Court, district courts, probate courts, and in justices of the peace. The Supreme Court shall consist of a *This bill was a Senate measure, prepared chief justice and two associate judges, any two by a committee of which Senators Ellsworth of whom shall be a quorum, and who shall hold and Paterson were members and introduced a term at the seat of government of the said June 12. It was much considered between territory annually, and they shall hold their ofJune 22 and July 17, when it passed the fices during good behavior." Senate 14 to 6. During this same period the House bill to create the Department of The organization acts for the territories of Foreign Affairs was under consideration by Louisiana (1804), Iowa (1838), Minnesota the Senate, and Senators Ellsworth and Pat- (1849), New Mexico (1850), Utah (1850), North erson both gave it support. The Judiciary | Dakota (1861), Nevada (1861), Colorado Bill went to the House July 20, and there (1861), and Arizona (1863) provided for judges passed September 17. Mr. Madison sup- "to serve for four years." Those for the orported it. ganization of Oregon (1848), Washington (1853), Kansas (1854), Nebraska (1854), Idaho (1863), Montana (1864), Alaska (1884), Indian Territory (1889), and Oklahoma (1890) provided for judges "to serve for four years, and until their successors shall be appointed If the theory of illimitable executive power now urged is correct, then the acts of August 7 and September 24 contained language no less objectionable than the original phrase in the bill to establish the Department of *214 and qualified." Those for Missouri (1812), | to establish the Department of Foreign AfArkansas (1819), Wyoming (1868), Hawaii fairs. (1900), and Florida (1822) provided that judges should be appointed to serve "four years unless sooner removed," "four years unless sooner removed by the President," "four years unless sooner removed by the President with the consent of the Senate of the United States," "who shall be citizens of the Territory of Hawaii and shall be appointed by the President of the United States by and with the advice and consent of the Senate of the United States, and may be removed by the President," and "for the term of four years and no longer." May 15, 1820, President Monroe approved the first general Tenure of Office Act (chapter 102, 3 Stat. 582). It directed: By an original proceeding here Marbury sought a mandamus requiring Mr. Madison, then Secretary of State, to deliver a commission signed by President Adams which showed his appointment (under the Act of February 27, 1801) as justice of the peace for the District of Columbia, "to continue in office five years." The act contained no provision concerning removal. As required by the circumstances, the court first considered Marbury's right to demand the commission and affirmed it. Mr. Chief Justice Marshall said: court that, when a commission has been signed "It is therefore decidedly the opinion of the *216 by the President, *the appointment is made, and that the commission is complete when the seal of the United States has been affixed to it by the Secretary of State. "All district attorneys, collectors of the customs, naval officers and surveyors of the customs, navy agents, receivers of public moneys "Where an officer is removable at the will of for lands, registers of the land offices, paymasthe executive, the circumstance which comters in the army, the apothecary general, the assistant apothecaries general, and the commis-pletes his appointment is of no concern, besary general of purchases, to be appointed under the laws of the United States, shall be appointed for the term of four years, but shall be removable from office at pleasure. [Prior to this time these officers were appointed without term to serve at will.] "Sec. 2. * * * The commission of each and every of the officers named in the first section of this act, now in office, unless vacated by removal from office, or otherwise, shall cease and expire in the manner following: All such commissions, bearing date on or before the thirtieth day of September, one thousand eight hundred and fourteen, shall cease and expire on the day and month of their respective dates, which shall next ensue after the thirtieth day of September next; all such commissions, bearing date after the said thirtieth day of September, in the year one thousand eight hundred and fourteen, and before the first day of October, one thousand eight hundred and sixteen, shall cease and expire on the day and month of their respective dates, which shall next ensue after the thirtieth day of September, one thousand eight hundred and twenty-one. And all other such commis *215 sions shall cease and expire at the expiration of the term of four years from their respective dates." Thus Congress not only asserted its power of control by prescribing terms and then giving assent to removals, but it actually removed officers who were serving at will under presidential appointment with consent of the Senate. This seems directly to conflict with the notion that removals are wholly executive in their nature. XIII. The claim advanced for the United States is supported by no opinion of this court, and conflicts with Marbury v. Madison (1803), supra, concurred in by all, including Mr. Justice Paterson, who was a conspicuous member of the Constitutional Convention and, as Senator from New Jersey, participated in the debate of 1789 concerning the power to remove and supported the bill cause the act is at any time revocable, and the But when the officer is not removable at the commission may be arrested, if still in the office. will of the executive, the appointment is not referred legal rights which cannot be resumed. vocable, and cannot be annulled. It has con "The discretion of the executive is to be exercised until the appointment has been made. But, having once made the appointment, his power over the office is terminated in all cases where by law the officer is not removable by him. The right to the office is then in the person appointed, and he has the absolute, unconditional power of accepting or rejecting it. "Mr. Marbury, then, since his commission was signed by the President and sealed by the Secretary of State, was appointed, and as the law crefor five years, independent of the executive, the ating the office gave the officer a right to hold appointment was not revocable, but vested in the officer legal rights, which are protected by the laws of his country. [This freedom from executive interference had been affirmed by Representative Bayard in February, 1802, during the debate on repeal of the Judiciary Act of 1801.] "It is then the opinion of the court, first, that President of the United States appointed him by signing the commission of Mr. Marbury the a justice of peace for the county of Washington in the District of Columbia, and that the seal Mr. Lee (theretofore Attorney General of the United States), counsel for Marbury, distinctly claimed that the latter was appointed to serve for a definite term independent of the President's will, and upon that predicate rested the legal right which he that right existed there was no occasion-no proinsisted should be enforced by mandamus. Unless priety, indeed-for considering the court's power to declare an act of Congress invalid. * * (47 S.Ct.) of the United States, affixed thereto by the | For 120 years that case has been regarded Secretary of State, is conclusive testimony of as among the most important ever decided. the verity of the signature, and of the completion It lies at the very foundation of our jurisof the appointment, and that the appointment prudence. Every point determined was conferred on him a legal right to the office for deemed essential, and the suggestion of dicthe space of five years. tum, either idle or partisan exhortation, ought not to be tolerated. The point here involved was directly passed upon by the great Chief Justice, and we must accept the result, unless prepared to express direct dis "It has already been stated that the applicant has to that commission a vested legal right, of which the executive cannot deprive him. He has been appointed to an office, from which he is not removable at the will of the executive, and, being so appointed, he has a right to the com-approval and exercise the transient power mission which the Secretary has received from the President for his use." which we possess to overrule our great predecessors; the opinion cannot be shunted. At the outset it became necessary to de *219 which could, prima facie at least, create a justiciable or actual case arising under the laws of the United States. Otherwise, there would have *been nothing more than a moot cause, the proceeding would have been upon an hypothesis, and he would have shown no legal right whatever to demand an adjudication on the question of jurisdiction and constitutionality of the statute. The court pro The point thus decided was directly pre-termine whether Marbury had any legal right sented and essential to proper disposition of the cause. If the doctrine now advanced had been approved, there would have been no right to protect, and the famous discussion and decision of the great constitutional question touching the power of the court to declare an act of Congress without effect would have been wholly out of place. The established rule is that doubtful constitutional problems must not be considered, unless nec-ceeded upon the view that it would not deessary to determination of the cause. The sometime suggestion that the Chief Justice indulged an obiter dictum is without foundation. The court must have appreciated that, unless it found Marbury had the legal right to occupy the office irrespective of the Presi-gument or illustration, but as definite opindent's will, there would be no necessity for passing upon the much-controverted and farreaching power of the judiciary to declare an act of Congress without effect. In the circumstances then existing it would have been peculiarly unwise to consider the second and more important question without first demonstrating the necessity therefor by ruling *218 upon the first. Both points *were clearly presented by the record, and they were decided in logical sequence. Cooley's Constitutional Limitations (7th Ed.) 231.7 But, assuming that it was unnecessary in Marbury v. Madison to determine the right to hold the office, nevertheless this court deemed it essential and decided it. I cannot think this opinion is less potential than Mr. Madison's argument during a heated debate concerning an office without prescribed ten ure. This opinion shows clearly enough why Congress, when it directed appointment of marshals for definite terms by the act of 1789, also took pains to authorize their removal. The specification of a term, without more, would have prevented removals at pleasure. We are asked by the United States to treat the definite holding in Marbury v. Madison that the plaintiff was not subject to removal by the President at will as mere dictum-to disregard it. But a solemn adjudication by this court may not be so lightly treated. At this time the power of the court to declare acts of Congress unconstitutional was being vigorously denied. The Supreme Court, by Chas. Warren, vol. 1. termine an important and far-reaching constitutional question unless presented in a properly justiciable cause by one asserting a clear legal right susceptible of protection. It emphatically declared, not by way of ar ion, that the appointment of Marbury "conferred on him a legal right to the office for the space of five years," beyond the President's power to remove, and, plainly on this premise, it thereupon proceeded to consider the grave constitutional question. Indeed, if Marbury had failed to show a legal right to protect or enforce, it could be urged that the decision as to invalidity of the statute lacked force as a precedent, because rendered upon a mere abstract question raised by a moot case. The rule has always been cautiously to avoid passing upon important constitutional questions, unless some controversy properly presented requires their decision. The language of Mr. Justice Matthews in Liverpool, etc., Steamship Co. v. Commissioners of Emigration, 113 U. S. 33, 39, 5 S. Ct. 352, 355 (28 L. Ed. 899), is pertinent: "If, on the other hand, we should assume the plaintiff's case to be within the terms of the statute, we should have to deal with it purely as an hypothesis, and pass upon the constitutionality of an act of Congress as an abstract question. That is not the mode in which this court is accustomed or willing to consider such questions. It has no jurisdiction to pronounce any statute, either of a state or of the United States, void, because irreconcilable with the Constitution, except as it is called upon to adjudge the legal rights of litigants in actual controversies. In the exercise of that jurisdiction, |