and although, when regularly and directly pre- | with regard to which nothing like judgment or sented for consideration, the responsibility of discretion, in the performance of his duties, is passing upon them can no more be avoided than left to the officer; but that wherever the right can the adjudication of any minor subject of of judgment or decision exists in him, it is he, judicial cognizance, yet their very importance and not the courts, who can regulate its exerfurnishes a cogent reason why any unauthor- cise. ized proceeding, in reference to them, should be cautiously avoided; why there should be no attempt to affect them by proceedings extrajudicial in their character, and such as would deprive of binding authority the action of the court, in matters even of trivial concernment. The true question presented for our consideration here, relates neither to the tenure of the judicial office, as created and defined by the Constitution or by Acts of Congress, nor to the powers and functions of the President, as vested with the executive power of the government. The only legitimate inquiry for our determination upon the case before us is this: Whether, under the organization of the federal government or by any known principle of law, there can be asserted a power in the Circuit Court of the United States for the District of Columbia, or in this court, to command the withdrawal of a sum or sums of money from the Treasury of the United States, to be applied in satisfaction of disputed or controverted claims against the United States. This is the question, the very question presented for our determination; and its simple statement would seem to carry with it the most startling considerations-nay, its unavoidable negation-unless this should be presented by some positive and controlling command; for it would occur, a priori, to every mind, that a treasury not fenced round or shielded by fixed and established modes and rules of administration, but which could be subjected to any number or description of demands, asserted and sustained through the undefined and undefinable discretion of the courts, would constitute a feeble and inadequate provision for the great and inevitable necessities of the nation. The government under such a regime, or rather, under such an absence of all rule, would, if practicable at all, be administered not by the great departments ordained by the Constitution and laws, and guided by the modes therein prescribed, but by the uncertain and perhaps contradictory action of the courts, in the enforcement of their views of private interests.

But the question proper for consideration here has not been left for its solution upon theoretical reasoning merely. It has already been authoritatively determined.

These are the doctrines expressly ruled by this court in the case of Kendall v. U. S., 12 Pet., 524; in that of Decatur v. Paulding, 14 Pet., 497; and in the more recent case of Brashear v. Mason, 6 How., 92; principles regarded as fundamental and essential, and apart from which the administration of the government would be impracticable. These principles, just stated, are clearly conclusive upon the case before us. The Secretary of the Treasury is inhibited from directing the payment of moneys not specifically appropriated by law. Claims against the Treasury of the United States like the present, are, according to the organization of that Department, to be examined by the first auditor; from this officer they pass, either under his approval or by appeal from him to the comptroller, and from the latter they are carried before the Secretary of the Treasury, without whose approbation they cannot be paid; and who cannot, even by the concurring opinions of the inferior officers of the Department, be deprived of his own judgment upon the justice or legality of demands upon public money confided to his care. Opposed to the claim under consideration, we have the decisions of three different functionaries, to each of whom has been assigned by law the power and the duty of judging of its justice and legality. By what process of reasoning, then, the authority to make those decisions, or those decisions themselves, can be reconciled or identified with the performance of acts merely ministerial, we are unable to perceive; and unless so identified. or there could have been shown some power in the Circuit Court competent to the repealing of the legislation by Congress, in the organization of the Treasury Department-competent, too, to the annulling of the explicit rulings of this court *in the cases herein before cited-the Circuit Court could have no jurisdiction to entertain the application for a writ of mandamus in this instance. As no such power has been shown, nor in our opinion, could have been shown, or ever had existence, the decision of the Circuit Court overruling the application, is approved and affirmed.

Mr. Justice Curtis:

The power of the courts of the United States I assent to the judgment of the court in this to command the performance of any duty to the Secretary of the Treasury is not a legal case, upon the ground that a writ of mandamus by either of the principal Executive Depart remedy to try the title of the relator to the of ments, or such as is incumbent upon any fice claimed by him; and that until that title executive officer of the government, has been strongly contested in this court; and in so far has been legally tried and determined, he can as that power may be supposed to have been take no step to compel the payment of the conceded, the concession has been restricted by salary attached by law to that office. I desire qualifications which would seem to limit it to to be understood as expressing no opinion upon acts or proceedings by the officer not implied any other question argued by the counsel in

in the several and inherent functions or duties incident to his office; acts of a character rather extraneous, and required of the individual rather than of the functionary.

Thus it has been ruled that the only acts to which the power of the courts by mandamus extends, are such as are purely ministerial, and

this case.

Concurring, Messrs. Justices Campbell and Grier.

Dissenting: Mr. Justice McLean.
As this case involves important principles,

and as I differ from the opinion of the court, I shall state my views.

The first inquiry that naturally arises in the case is, whether the President had power to 'make the removal complained of. This is not the object of the mandamus applied for, but it

is incidental to it.

The 2d section of the 2d article of the Constitution provides, "That the President shall have power, by and with the advice and consent of the Senate, to 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."

In his argument the Attorney-General says: "That the power of the President was discussed and settled by Congress in the commencement of the federal government: that the power to remove all officers, who, by the Constitution itself, were not declared to hold their offices during good behavior, was sustained by both houses; and that this power was recognized in the establishment of the Department for For eign Affairs."

Publius, in one of his numbers, says: "It has been mentioned as one of the advantages 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 appoint. A change of the Chief Magistrate, therefore, would not occasion so violent or so general a revolution in the offices of the government as might be expected if he were the sole disposer of offices. Where a man in any station has given satisfactory evidence of his fitness for it, a new President would be restrained from attempting a change in favor of a person more agreeable to him, by the apprehension that the discountenance of the Senate might frustrate the attempt, and bring some decree 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 disapprobation 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."

In the 2d section of the Act referred to it was provided, "When the principal officer In this discussion in Congress, Mr. Madison, of the Department should be removed, the one of the ablest and most enlightened stateschief clerk, during the vacancy, shall have men of which our country can boast, considcustody of the records of the Department." ered the removal from office was an executive And a similar provision is contained in the oth-power, and that Congress could not restrict its er Acts, to establish the Principal Departments exercise. He also considered the power of apof the government. The heads of these De-pointment an executive power, and that had not partments constituted the Cabinet of the Pres- the Constitution so provided, the concurrent ident, and as they were not only his advisers, action of the Senate could not have been rebut discharged their duties under his direction, quired by Act of Congress in making appoint there was a peculiar propriety that their office ments. If this were admitted, it would not should be held at the will of the Executive. give strength to the argument in favor of the There was great contrariety of opinion in exercise of the power by the President. Congress on this power. With the experience we now have in regard to its exercise, there is great doubt whether the most enlightened statesmen would not come to a different conclusion. The Attorney General calls this a constitutional power. There is no such power given in the Constitution. It is presumed to be in the President, from the power of appointment. This presumption, I think, is unwise and illogical. The reasoning is: the President and Senate appoint to office, therefore the President may remove from office. Now, the argument would be legitimate if the power to remove were in ferred to be the same that appoints.

It was supposed that the exercise of this power by the President was necessary for the efficient discharge of executive duties. That to consult the Senate in making removals, the same as in making appointments, would be too tardy for the correction of abuses. By a temporary appointment the public service is now provided for in case of death, and the same provision could be made where immediate removals are necessary. The Senate, when called to fill the vacancy, would pass upon the demerits of the late incumbent.

This, I have never doubted, was the true construction of the Constitution, and I am able to say it was the opinion of the late Supreme Court with Marshall at its head.

The numbers of the Federalist, though writ ten before the Constitution was adopted, have been considered as among its ablest expositors.

If the power to remove from office be inferred from the power to appoint, both the elements of the appointing power are necessarily included. The Constitution has declared what shall be the executive power to appoint, and by consequence, the same power should be exercised in a removal. But this power of removal has been, perhaps, too long established and exercised to be now questioned. The voluntary action of the Senate and the President would be necessary to change the practice, and as this would require the relinquishment of a power by one of the parties, to be exercised in conjunction with the other, it can scarcely be expected.

The Attorney-General says that "the construction of the Constitution concurred in by the two houses of the First Congress, and approved by President Washington, resolved, among others, the following point:

"That in a republican government, public offices are wanted for the benefit of the people; that the officer does not hold a private estate and property in the office, and when the officer is unfit, for any cause whatever, he ought to be displaced, and another appointed for the benefit of the people and their security; or if the office itself be found, upon experience, to be unnecessary, it should be abolished." The soundness of the policy expressed in this resolution must be admitted by every intelligent individual who understands and appreciates our system of governmen; and if the power had been ex

ercised under the limitations expressed in the resolution, it would have had a most salutary effect on office holders and on the public. For the truth of this, a reference may be made to the history of the earlier administrations.

But this power of removal from office by the President, was neither exercised nor supposed to apply, until recently, to the judicial office.

Territory of the United States, governed by virtue of that clause in the Constitution which empowers Congress to make all needful rules and regulations respecting the territory or other property belonging to the United States." This is the prevailing view of those who have examined the subject. But the Chief Justice proceeds: "Perhaps the power of governing a territory belonging to the United States, which In the establishment of the Territories, the has not, by becoming a State, acquired the "Northwestern," "Indiana," "Illinois," "Mis- means of self-goverment, may result necessasissippi," Michigan," and Wisconsin," it rily from the facts that is not within the was provided that the judges should hold their jurisdiction of any particular state, and is offices during good behavior. The Governor, within the power and jurisdiction of the Secretary, and the other officers of these Terri-United States. These facts exist in every tertories were appointed under the law, for a term ritorial government, but it does not show the of years "unless sooner removed." source of the power, unless by the doctrine of necessity, which does not seem to be a legitimate foundation for a civil government under our system. The Chief Justice further says:

By the Act of Congress of August, 1789, to provide the government of these territories, certain changes were made in the Ordinance of 1787, to adapt it to the Constitution of the United States. It was provided that 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 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 power of revocation and removal."

44

In the Territories of "New Orleans," "Florida," Iowa,' Oregon,' "Washington,' Utah," "New Mexico," "Minnesota,' 'Nebraska," and Kansas," the judges were appointed for four years; and the Governor and all other officers of the Territories were appointed for a term of years" unless sooner removed."

In the Missouri" and "Arkansas" Territories only, were the judges appointed for four years, "if not sooner removed."

In the Constitution no express provision was made for the government of territories. This, no doubt, was deemed unnecessary, as the Or dinance of 1787, which was passed before the Constitution was adopted, provided for the government of all the territory then claimed by the United States.

Territorial judges are said not be appointed under the Constitution, but by virtue of an Act of Congress. In The Am. Ins. Co. v. Canter, 1 Pet., 546, Chief Justice Marshall said: "The judges of the superior courts of Florida held their offices for four years. These courts, then, are not constitutional courts, in which the judicial power, con ferred by the Constitution on the general government, can be deposited." But all the judges of the territories, from 1787 to 1804, were appointed for good behavior, so that the term of service was not a safe criterion by which to determine the character of territorial judges.

It is admitted that the Judges of the Supreme Court cannot be appointed for a less period than good behavior; and the same may be said of the district judges.

The right to govern may be the inevitable consequence of the right to acquire territory." There is no special power given in the Constitution to acquire territory. This does not seem to have been within the view of the framers of the government; and the right was much contended in the acquisition of Louisiana, when the power was first exercised.

It seems to me that the power to govern a territory is a necessary consequence of the power given "to make all needful rules and regulations respecting the territory or other property belonging to the United States." No one doubts the power of Congress to sell the public lands beyond the limits of any state; and this renders necessary the organization of a government for the protection of the persons and property of the purchasers. This is an implied power, but it necessarily results from the power to sell the public lands.

It is difficult to say that any power can be exercised by Congress which is not derived from the Constitution. Without that instruIment, it is as powerless as any other association of men. The laws of the Union protect our commerce wherever the flag of the country may float, and in some instances our own citizens may be made responsible for acts done in foreign seas and countries; but this is the exercise of powers given by the Constitution, Under the legislative power of Congress, territorial governments are organized, and their functionaries are appointed by the President and Senate. Their laws emanate from Congress, or are passed by a territorial Legislature, subject to the approval of Congress. The government of the territory is a government of the United States; and although its courts do not exercise the judicial power to the same extent as the other courts of the United States, still they are courts of the United States and exercise such judicial powers as are conferred on them by law.

It is argued, that, as the President is bound to see the laws faithfully executed, the power to remove unfaithful or incompetent officers is necessary. This may be admitted to be a legitimate argument, as commonly applied to executive officers. My own view is, that the The power under which the territoriai gov-power to see that the laws are faithfully ernments are organized, is a matter of some controversy. In the case above cited, Chief Justice Marshall said: "Florida continues to be a

executed, applies chiefly to the giving effect to the decisions of the courts when resisted by physical force. But however strongly this

may refer to the political officers of the govern- souri Territory, and as the Arkansas Territory ment, how can it apply to the judicial office?

These are all ministerial duties performed un- Spanish land grant-construction of statuteder the Secretary of the Treasury. The money having been appropriated by law for the salary of the judge, the Secretary was bound to pay it. The justification for the non-payment by the Secretary is, that the relator had been removed from office by the President, and that by the President and Senate, his successor had been appointed, who, having entered upon the discharge of his duties, was entitled to the salary, and to whom it had been paid.

By the Act of March 3, 1807, Congress did not intend that a final legal title to lands held under Spanish and French grants should be made to vague grants, until the bounds had been ascertained, and the particular tract defined by survey.