you have him an independent, free man, alone responsible to his God and
his country for his official acts? To his God, because he takes an oath to
do his duty faithfully; and to his country, through his official responsibili-
ties. No, gendemen, leave him free; let him feel the pride of an American
citizen, and not be compelled to bow and cringe, as his Excellency, or his
Majesty, Governor Owsley, wrapped up in the folds of his fine cloak, may
proudly stalk by him, like Solomon, arrayed in all his glory.

"If the governor has the power to remove the secretary, he must find
that power somewhere else than in the bold assertions, that he is his secre-
tary, and not the secretary of the Constitution and the people. Such an
extravagant pretension can not be allowed— it can not be tolerated one
moment. The governor claims the power to remove the secretary, because
he can fill up the vacancies. I have already commented on that part of the
Constitution, and his claim under it.

"The governor asserts his power to remove the secretary under this part
of the Constitution : ' He (to-wit : the governor) shall take care the laws
be faithfully executed.' What is the fair interpretation of that clause in the
Constitution ? It is this, he is to furnish the military power to execute the
laws, if the ordinary officers of government can not enforce them ; he is to
see that criminals shall not escape, and when they fly from justice, offer
rewards for their apprehension, and demand them of the governor of sister
States, if they have fled there; he is, as governor, to exercise a general
superintendency and supervision over the whole administration of the gov-
ernment, and give notice to the Legislature, from time to time, if there be
any defect in the laws, or in the administration of the laws.

"If this power, under the section I have read, to see the laws faithfully
executed, goes beyond the rules and limits I have given to it, I ask, how
far ? Where is the stopping place? If the governor can turn out the secre-
tary at his will and pleasure, under the power to see the laws faithfully exe-
cuted, why not every other officer in the government? Why not say to our
judges of "the circuit courts and the Court of Appeals, you, gentlemen, do not
decide according to my judgment ? I will tell you what kind of a judgment
to enter, and if you do not do it. I will remove you, for I must see the laws
faithfully executed. The governor can hold the same language as to clerks,
sheriffs, and all executive officers. No officer in this government can plead
and say, turn us out in the manner prescribed in the Constitution. In vain
the judges and justices will say, we can alone be turned out by impeach-
ment, or an address of two-thirds of each branch of the Legislature, where
we can have a fair trial. The executive officers can make the same appeal
to the Constitution. All these appeals avail nothing. The governor can
make the same answer to them he can to the secretary. I am to see the



THE OWSLEY SPEECH. 427

laws faithfully executed, and under that power given me, I have a right, as
an incident to that power, to turn you out; and I am alone the judge
whether you execute the laws faithfully or not. They may all, with one
voice, appeal, again and again, for a fair constitutional trial, of being heard,
and have the witnesses who swear against them face to face — it will amount
to nothing, whenever the governor's claim of removal from office is tolerated
to the extent he contends for — then is there but one power in the State. All
the departments and offices concentrate in the governor alone. Such tyranny
and despotism must be put down. These high claims of the governor are
not imaginary, gentlemen. They are partially put into operation against me.

"The governor claims the power to remove me, because he nominated
me to the Senate, and signed my commission. That is a duty he was
required to perform by the Constitution. If the power of appointment gave
the power of removal, as a consequence then, the power would not be in
the governor alone, but in the Senate and governor.

"The Constitution of the United States and Kentucky never contem-
plated that kind of responsibility in the officers of their respective govern-
ments. According to that rule, the Electoral College can meet again in
their respective States and remove Mr. Polk. The several Legislatures of
the States can revoke and annul the election of the senators of the United
States, and the constituents of the members of the House of Representa-
tives can nullify their elections and call them home. There is no such
responsibility known to the Constitution of the United States. The presi-
dent is responsible to the people by an impeachment, and in no other way.
The senators are responsible to the Senate by the power of expulsion. In
the same way the representatives are responsible to the House of Represent-
atives. Take- our state government. Are you liable to be recalled, gentle-
men, by the people who elected you ? Can they assemble in their respective
counties and places of voting and revoke your elections? No; certainly not.
How is the governor himself responsible to the people ? By impeachment.
The people can not meet and nullify his election The governor had better
be a little careful how he presses the contrary principle ; for, if the people
could get a hold of him, he would go out with a much larger majority than
he came in. The vote would be nearly unanimous. A more absurd and
monstrous proposition could not be presented to the mind of man than
this — that the power of appointment carried with it, as an incident, the
power of removal.

"To prove to you, gentlemen, that the power of appointment does not
carry with it the power of removal, I will refer you to the case of Marbury
against Madison, decided in the Supreme Court of the United States. The
same decision, also, proves another position — that whenever an officer is com-
missioned for five years, to hold for that time during good behavior, that
during those five years he holds by the same tenure as if he held for life, or



428 BEN HARDIN.

good behavior, which decision is to be found in Peter's Condensed Reports,
volume I, page 26S, and so much of it as appUes to this case reads in these
words :

" ' At the December term, 1801, WiUiam Marbury, Dennis Ramsay, Rob-
ert Townsend Hooe, and WilHam Harper, by their counsel, severally moved
the court for a rule to James Madison, secretary of State of the United States,
to show cause why a mandamus should not issue commanding him to cause
to be delivered to them respectively, their several commissions as justices of
the peace, in the District of Columbia. This motion was supported by affi-
davits of the following facts : That notice of this motion had been given to
Mr. Madison; that Mr. Adams, the late President of the United States,
nominated the applicants to the Senate for their advice and consent to be
appointed justices of the peace of the District of Columbia; that the Senate
advised and consented to the appointments ; that commissions in due form
were signed by the said president appointing them justices, etc.. and that
the seal of the United States was in due form affixed to the said commissions
by the secretary of State ; that the applicants have requested Mr. Madison
to deliver them their said commissions, who has not complied with that
request ; and that their said commissions are withheld from them ; that the
applicants have made application to Mr. Madison, as secretary of State of
the United States, at his office, for information whether the commissions were
signed and sealed as aforesaid ; that explicit and satisfactory information has
not been given in answer to that inquiry, either by the secretary of State or
any officer in the department of State ; that application has been made to the
secretary of the Senate for a certificate of the nomination of the applicants,
and of the advice and consent of the Senate, who has declined giving such
a certificate; whereupon a rule was made to show cause on the fourth day of
this term. This rule having been duly served,

" ' Mr. Jacob Wagner and Mr. Daniel Brent, who had been summoned to
attend the court, and were required to give evidence, objected to be sworn,
alleging that they were clerks in the department of State, and not bound to
disclose any facts relating to the business or transactions of the office.

" 'The court ordered the witnesses to be sworn and their answers taken
in writing ; but informed them that when the questions were asked they
might state their objections to answering each particular question, if they
had any.

" ' Mr. Lincoln, who had been the acting secretary of State, when the cir-
cumstances stated in the affidavit occurred, was called upon to give testimony.
He objected to answering. The questions were put in writing.

" ' The court said there was nothing confidential required to be disclosed.
If there had been, he was not obliged to answer it, and if he thought that
anything was communicated to him confidentially he was not bound to dis-
close, nor was he obliged to state anything which would criminate himself.

" ' The questions argued by the counsel for the relators were :

" 'First: Whether the Supreme Court can award the writ of mandamus
in any case.

" 'Second: Whether it will lie to a secretary of State in any case what-
ever.

" ' Third: Whether in the present case the court may award a mandamus
to James Madison, secretary of State.

" * Mr. Chief-Justice Marshall delivered the opinion of the court.



THE OWSLEY SPEECH. 429

" ' At the last term, on the affidavits then read and filed with the clerk, a
rule was granted in this case, requiring the secretary of State to show cause
why a mandamus should not issue, directing him to deliver to William Mar-
bury his commission as a justice of the peace for the county of Washington,
in the District of Columbia.

" ' No cause has been shown, and the present motion is for a mandamus.
The peculiar delicacy of this case, the novelty of some of its circumstances,
and the real difficulty attending the points which occur in it, require a com-
plete exposition of the principles on which the opinion to be given by the
court is founded. These principles have been, on the side of the applicant,
very ably argued at the bar. In rendering the opinion of the court, there will
be some departure in form, though not in substance, from the points stated
in that argument.

" 'In the order in which the court has viewed this subject, the following
questions have been considered and decided :

" ' First: Has the applicant a right to the commission he demands?

" 'Second: If he has a right, and that right has been violated, do the
laws of his country afford him a remedy ?

" ' TJih-d : If they do afford him a remedy, is it a mandamus issuing
from this court ?

' ' ' The first object of inquiry is,

" ' First: Has the applicant a right to the commission he demands?

" ' His right originates in an act of Congress passed in February, iSoi,
concerning the District of Columbia.

" 'After dividing the district into two counties, the eleventh section of
this law enacts ''that there shall be appointed in and for each of the said
counties, 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
continue in office for five years."

" ' It appears from the affidavits that, in compliance with this law, a com-
mission for William Marbury as a justice of the peace for the county of
Washington was signed by John Adams, then President of the United States,
after which the seal of the United States was affixed to it ; but the commis-
sion has never reached the person for whom it was made out.

"'In order to determine whether he is entitled to this commission, it
becomes necessary to inquire whether he has been appointed to the office.
For, if he has been appointed, the law continues him in office for five years,
and he is entitled to the possession of those evidences of office, which, being
completed, became his property.

" ' The second section of the second article of Constitution declares that,
"the president shall nominate, and by and with the advice and consent of
the Senate, shall appoint embassadors, other public ministers and consuls,
and all other officers of the United States, whose appointments are not oth-
erwise provided for."

" 'The third section declares that, "he shall commission all the officers
of the United States."

" ' An act of Congress directs the secretary of State to keep the seal of
the United States, "to make out and record and affix the said seal to all
civil commissions to officers of the United States, to be appointed by the
president, by and with the consent of the Senate, or by the president alone;
provided that the said seal shall not be affixed to any commission before the
same shall have been signed by the President of the United States."



430 BEN HARDIN,



'"These are the clauses of the Constitution and laws of the United
States which affect this part of the case. They seem to contemplate three
distinct operations :

First: The nomination. This is the sole act of the president, and is



1 ( 1



completely voluntary. . . , , ^ , • , ,

" ' Second: The appointment. This is also the act of the president, and
is also a voluntary act, though it can only be performed by and with the
advice and consent of the Senate.

"â– 'Third: The commission. To grant a commission to a person
appointed, might, perhaps, be deemed a duty enjoined by the Constitution.
" He shall," says that instrument, " commission all the officers of the United
States." The acts of appointing to office, and commissioning the person
appointed, can scarcely be considered as one and the same ; since the power
to perform them is given in two separate and distinct sections of the Consti-
tution. The distinction between the appointment and the commission will
be rendered more apparent by adverting to that provision in the second sec-
tion of the second article of the Constitution, which authorizes Congress " to
vest by law the appointment of such inferior officers as they think proper in
the president alone, in the courts of law, or in the heads of depart-
ments;" thus contemplating cases where the law may direct the president to
commission an officer appointed by the courts or by the heads of depart-
ments. In such a case, to issue a commission would be apparently a duty
distinct from the appointment, the performance of which, perhaps, could not

legally be refused.

" ' Although that clause of the Constitution which requires the president
to commission all the officers of the United States may never have been
applied to officers appointed otherwise than by himself, yet it would be diffi-
cult to deny the legislative power to apply it to such cases. Of consequence
the constitutional distinction between the appointment to an office and the
commission of an officer who has been appointed, remains the same as if hi
practice the president had commissioned officers appointed by an authority

other than his own. . . , -^

'"It follows, too, from the existence of this distinction, that, if an
appointment was to be evidenced by any public act other than the commis-
sion, the performance of such public act would create the officer; and if he
was not removable at the will of the president, would either give him a right
to his commission or enable him to perform the duties without it.

" 'These observations are premised solely for the purpose of rendering
more intelligible those which apply more direcdy to the particular case under
consideration.

" ' This is an appointment made by the president, by and with the advice
and consent of the Senate, and is evidenced by no act but the commission
itself. In such a case, therefore, the commission and the appointment seem
inseparable ; it being almost impossible to show an appointment otherwise
than by proving the existence of a commission, still the commission is not
necessarily the appointment, though conclusive evidence of it.

" ' But at what stage does it amount to this conclusive evidence ?

" ' The answer to this question seems an obvious one. The appointment,
being the sole act of the president, must be completely evidenced when it is
shown that he has done everything to be performed by him.

" ' Should the commission, instead of being evidence of an appointment,
even be considered as constituting the appointment itself, still it would be



THE OWSLEY SPEECH.



431



made when the last act to be done by the president was performed, or, at
furthest, when the commission was complete.

" 'The last act to be done by the president is the signature of the com-
mission. He has then acted on the advice and consent of the Senate to his
own nomination. The time for deliberation has then passed. He has
decided. His judgment on the advice and consent of the Senate concur-
ring with his nomination has been made, and the officer is appointed. This
appointment is evidenced by an open, unequi\ocal act ; and being the last
act required from the person making it, necessarily excludes the idea of its
being, so far as respects the appointment, an inchoate and incomplete trans-
action.

" ' Some point of time must be taken when the power of the executive
over an officer, not removable at his will, must cease. That point of time
must be when the constitutional power of appointment has been exercised.
And this power has been exercised when the last act, required from the per-
son possessing the power, has been performed. This last act is the signature
of the commission. This idea seems to have prevailed with the Legislature
when the act ]jassed converting the department of foreign affairs into the
department of State. By that act it is enacted, that the secretary of State
shall keep the seal of the United States, " and shall make out and record,
and shall aflfix the said seal to all civil commissions to officers of the United
States, to be appointed by the president," " provided that the said seal shall
not be affixed to any commission, before the same shall have been signed by
the President of the United States ; nor to any other instrument or act, with-
out the special warrant of the president therefor."

" ' The signature is a warrant for affixing the great seal of the commis-
sion ; and the great seal is only to be affixed to an instrument which is com-
plete. It attests, by an act supposed to be of public notoriety, the verity of
the presidential signature.

" ' It is never to be affixed till the commission is signed, because the sig-
nature, which gives force and effect to the commission, is conclusive evidence
that the appointment is made.

" 'The commission being signed, the subsequent duty of the secretary of
State is prescribed by law, and not to be guided by the will of the president.
He is to affix the seal of the United States to the commission, and is to
record it.

" ' 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 is to be strictly pursued. It is the duty of the sec-
retary of State to conform to the law, and in this he is an officer of tlie
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
instruction of the president. It is a ministerial act which the law enjoins on
a particular officer for a particular purpose.

" ' If it should be supposed that the solemnity of affixing the seal is nec-
essary, not only to the validity of the commission, but even to the comple-
tion of an appointment, still, when the seal is affixed, the appointment is
made, and the commission is valid. No other solemnity is required by law ;
no other act is to be performed on the part of the government. All that the
executive can do to invest the person with his office is done ; and unless the
appointment be then made, the executive can not make one without the
co-operation of others.



432



BEN HARDIN.



" ' After searching anxiously for the principles on which a contrary opin-
ion may be supported, none have been found which appear of sufficient force
to maintain the opposite doctrine.

" 'Such as the imagination of the court could suggest, have been very
deliberately examined, and after allowing them all the weight which it
appears possible to give them, they do not shake the opinion which has

been formed.

" ' In considering this question, it has been conjectured that the commis-
sion may have been assimilated to a deed, to the validity of which, delivery

is essential.

•' 'This idea is founded on the supposition that the commission is not
merely evidence of an appointment, but is itself the actual appointment ; a
supposition by no means unquestionable. But for the purpose of examining
this ol)jection fairly, let it be conceded that the principle claimed for its sup-
port is established.

" 'The appointment being, under the Constitution, to be made by the
president personally, the delivery of the deed of appointment, if necessary
to its completion, must be made by the president also. It is not necessary
that the delivery should be made personally to the grantee of the office ; it
never is so made. The law would seem to contemplate that it should be
made to the secretary of State, since it directs the secretary to affix the seal
to the commission after it shall have been signed by the president. If then
the act of livery be necessary to give validity to the commission, it has been
delivered when executed and given to the secretary for the purpose of being
sealed, recorded, and transmitted to the party.

" ' But in all cases of letters patent, certain solemnities are required by
law, which solemnities are the evidences of the validity of the instrument.
A formal delivery to the person is not among them. In cases of commis-
sions, the sign manual of the president, and the seal of the United States,
are those solemnities. This objection, therefore, does not touch the case.

" ' It has also occurred as possible, and barely possible, that the transmis-
sion of the commission, and the acceptance thereof, might be deemed nec-
essary to complete the right of the plaintiff.

" 'The transmission of the commission is a practice directed by conven-
ience, but not by law. It can not, therefore, be necessary to constitute the
appointment which must precede it, and which is the mere act of the presi-
dent. If the executive required that every person appointed to an office
should himself take means to procure his commission, the appointment
would not be the less valid on that account. The appointment is the sole
act of the president ; the transmission of the commission is the sole act of
the officer to whom that duty is assigned, and may be accelerated or retarded
by circumstances which can have no influence on the appointment. A com-
mission is transmitted to a person already appointed ; not to a person to be
appointed or not, as the letter enclosing the commission should happen to
get into the post-office and reach him in safety, or to miscarry.

" ' It may have some tendency to elucidate this point to inquire whether
the possession of the original commission be indispensably necessary to
authorize a person appointed to any office to perform the duties of that
office. If it was necessary, then a loss of the commission would lose the
office. Not only negligence, but accident or fraud, fire or theft, might
deprive an individual of his office. In such a case, I presume it could not
be doubted but that a copy from the record of the office of the secretary of



THE OWSLEY SPEECH. 433

State would be, to every intent and purpose, equal to the original. The act of
Congress has expressly made it so. To give that copy validity, it would not
be necessary to prove that the original had been transmitted and afterward
lost. The copy would be complete evidence that the original had existed,
and that the appointment had been made, but not that the original had been
transmitted. If, indeed, it should appear that the original had been mislaid
in the office of State, that circumstance would not affect the operation of the
copy. When all the requisites have been performed which authorize a
recording officer to record any instrument whatever, and the order for that
purpose has been given, the instrument is in law considered as recorded,
although the manual labor of inserting it in a book kept for that purpose