may not have been performed.

" ' In the case of commissions, the law orders the secretary of State to
record them. When, therefore, they are signed and sealed, the order for
their being recorded is given ; and whether inserted in the book or not, they
are in law recorded.

" ' A copy of this record is declared equal to the original, and the fees
to be paid by a person requiring a copy are ascertained by law. Can a
keeper of a public record erase therefrom a commission which has been
recorded ? Or can he refuse a copy thereof to a person demanding it, on
the terms prescribed by law ?

" ' Such a co])y would, equally with the original, authorize the justice of
the peace to proceed in the performance of his duty, because it would,
equally with the original, attest his appointment.

" ' If the transmission of a commission be not considered as necessary to
give validity to an appointment, still less is its acceptance. The appoint-
ment is the sole act of the president ; the acceptance is the sole act of the
officer, and is, in plain, common sense, posterior to the appointment. As he
may resign, so may he refuse to accept ; but neither the one nor the other
is capable of rendering the appointment a nonentity.

" ' That this is the understanding of the government, is apparent from
the whole tenor of its conduct.

" ' A commission bears date, and the salary of the officer commences
from his appointment, not from the transmission or acceptance of his com-
mission. When a person, appointed to any office, refuses to accept that
office, the successor is nominated in the place of the person who has declined
to accept, and not in the place of the person who had been previously in
office and had created the original vacancy.

" ' It is, therefore, decidedly the opinion of the court that, when a com-
mission has been signed 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.

" ' When an officer is removed at the will of the executive, the circum-
stance which completes his appointment is of no concern, because the act
is at any time revocable ; and the commission may be arrested, if still in tlie
office. But when the officer is nut removable at the will of the executive,
the appointment is not revocable and can not be annulled. It has conferred
legal rights which can not be resumed.

" 'The discretion of the executive is to be exercised until the appoint-
ment 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 thoi in the person appointed,

28



434 BEN HARDIN.

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 creating
the office gave the officer a right to hold for five years, independent of the
executive, the appointment was not revocable, but vested in the officer legal
rights, which are protected by the laws of his country.

" ' To withhold his commission, therefore, is an act deemed by the court
not warranted by law, but violative of a vested legal right.

" ' This brings us to the second inquiry, which is :

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

" 'The very essence of civil liberty certainly consists in the right of every
individual to claim the protection of the laws whenever he receives an injury.
One of the first duties of government is to afford that protection. In Great
Britain the king himself is sued in the respectful form of a petition, and he
never fails to comply with the judgment of his court.

" 'In the third volume of his Commentaries, page 23, Blackstone states
two cases in which a remedy is afforded by mere operation of law.

" ' " In all other cases," he says " it is a general and indisputable rule,
that where there is a legal right, there is also a legal remedy by suit or action
at law whenever that right is invaded."

" ' And afterward, page 109 of the same volume, he says, " I am next to
consider such injuries as are cognizable by the courts of the common law.
And herein I shall for the present only remark, that all possible injuries what-
soever, that did not fall within the exclusive cognizance of either the ecclesi-
.... . . o

astical, mintary, or maritmie tribunals, are, for that very reason, within the
cognizance of the common law courts of justice, for it is a settled and inva-
riable principle in the laws of England, that every right, when withheld, must
have a remedy and every injury its proper redress."

" 'The government of the United States has been emphatically termed a
government of laws, and not of men. It will certainly cease to deserve this
high appellation if the laws furnish no remedy for the violation of a vested
legal right.

" ' If this obloquy is to be cast on the jurisprudence of our country, it
must arise from the peculiar character of the case.

" ' It behooves us, then, to inquire whether there be in its composition
any ingredient which shall exempt it from legal investigation or exclude the
injured party from legal redress. In pursuing this inquiry the first question
which presents itself, is, whether this can be arranged with that class of cases
which comes under the description of damnum absque injuria — a loss without
an injury.

" 'This description of cases never has been considered, and it is believed
never can be considered, as comprehending offices of trust, of honor, or of
profit. The office of justice of peace in the District of Columbia is such
an office; it is, therefore, worthy of the attention and guardianship of the
laws. It has received that attention and guardianship. 1\ has been created
by special act of Congress, and has been secured, so far as the laws can give
security to the person appointed to fill it, for five years. It is not, then, on
account of the worthlessness of the thing pursued that the injured pnrty can
be alleged to be without remedy.

" ' It is in the nature of the transaction. Is the act of delivering or with-
holding a commission to be considered as a mere political act belonging to



THE OWSLEY SPEECH.



435



the executive department alone, for the performance of which entire confi-
dence is placed by our Constitution in the supreme executive ; and for any
misconduct respecting which the injured individual has no remedy.

" ' That there may be such cases is not to be questioned ; but that every
act of duty to be performed in any of the great departments of government
constitutes such a case is not to be admitted.

" ' By the act concerning invalids, passed in June, 1794, the secretary of
war is ordered to place on the pension list all persons whose names are con-
tained in a report previously made by him to Congress. If he should refuse
to do so, would the wounded veteran be without remedy ? Is it to be con-
tended that where the law in precise terms directs the performance of an act
in which an individual is interested, the law is incapable of securing obedi-
ence to its mandate ? Is it on account of the character of the person against
whom the complaint is made ? Is it to be contended that the heads of depart-
ments are not amenable to the laws of their country ?

" ' Whatever the practice on particular occasions may be, the theory of
this principle will certainly never be maintained. No act of the Legislature
confers so extraordinary a privilege, nor can it derive countenance from the
doctrines of the common law. After stating that personal injury from the
king to a subject is presumed to be impossible, Blackstone, volume III, page
255, says : " But injuries to the rights of property can scarcely be committed
by the crown without the intervention of its officers, for whom the law, in
matters of right, entertains no respect or delicacy, but furnishes various meth-
ods of detecting the errors and misconduct of ihose agents by whom the king
has been deceived and induced to do a temporary injustice."

" ' By the act passed in 1796, authorizing the sale of lands above the mouth
of Kentucky river, the purchaser, on paying his purchase mon-ey, becomes
completely entitled to the property purchased ; and on producing to the sec-
retary of State the receipt of the treasurer upon a certificate required by the
law, the President of the United States is authorized to grant him a patent.
It is further enacted, tliat all patents shall be countersigned by the secretary
of State, and recorded in his office. If the secretary of State should choose
to withhold this patent, or the patent being lost, should refuse a copy of it,
can it be imagined that the law furnishes to the injured person no remedy?

" ' It is not believed that any person whatever would attempt to maintain
such a proposition.

" ' It follows, then, that the question, whether the legality of an act of the
head of a department be examinable in a court of justice or not, must always
depend on the nature of that act.

" ' If some acts be examinable, and others not, there must be some rule
of law to guide the court in the exercise of its jurisdiction.

" ' In some instances there may be difficulty in applying the rule to par-
ticular cases ; but there can not, it is believed, be much difficulty in laying
down the rules.

" ' By the Constitution of the United States, the president is invested with
certain important political powers, in the exercise of which he is to use his
own discretion, and is accountable only to his country in his political charac-
ter and to his own conscience. To aid him in the j^erformance of these duties
he is authorized to appoint certain officers, who act by his authority and in
conformity with his orders.

" ' In such cases their acts are his acts, and whatever opinion may be enter-
tained of the manner in which executive discretion may be used, still there



436



BEN HARDIN.



exists, and can exist, no power to control that discretion. The subjects are
political They respect the nation, not individual rights, and being entrusted
to the executive, the decision of the executive is conclusive. The application
of this remark will be perceived by adverting to the act of Congress for estab-
lishing the department of foreign affairs. This officer, as his duties were pre-
scribed by that act, is to conform precisely to the will of the president. He
is the mere organ by whom that will is communicated. The acts of such an
officer, as an officer, can never be examinable by the courts.

" 'But when the Legislature proceeds to impose on that officer other
duties ; when he is directed peremptorily to perform certain acts ; when the
rights of individuals are dependent on the performance of those acts ; he is
so far the officer of the law, is amenable to the laws for his conduct, and can
not at his discretion sport away the vested rights of others.

" 'The conclusion from this reasoning is that where the heads of depart-
ments are the political or confidential agents of the executive, merely to exe-
cute the will of the president, or rather to act in cases in which the execu-
tive possesses a constitutional or legal discretion, nothing can be more per-
fectly clear than that their acts are only politically examinable. But where
a specific duty is assigned by law, and individual rights depend upon the
performance of that duty, it seems equally clear that the individual who con-
siders himself injured has a right to resort to the laws of his country for a
remedy.

" ' If this be the rule, let us inquire how it applies to the case under the
consideration of the court.

" 'The power of nominating to the Senate, and the power of appointing
the person nominated, are political powers, to be exercised by the president,
according to his own discretion. When he has made an ap])ointment. he
has exercised his whole power, and his discretion has been completely applied
to the case. If, by law, the officer be removable at the will of the presi-
dent, then a new appointment may be immediately made, and the rights of
the officer are terminated. But, as a fact which has existed can not be made
never to have existed, the appointment can not be annihilated; and, conse-
quently, if the officer is by law not removable at che will of the president,
the rights he has acquired are protected by the law, and are not resumable
by the president. They can not be extinguished by execuUve authority, and
he has the privilege of asserting them in like manner as if they had been
derived from any other source.

" ' The question whether a right has vested or not, is. in its nature, judi-
cial, and must be tried by the judicial authority. If, for example, Mr. Mar-
bury had taken the oaths of a magistrate, and proceeded to act as one, in
consequence of which a suit had been instituted against him, in which his
defense had depended upon his being a magistrate, the validity of his
appointment must have been determined by judicial authority.

" 'So, if he conceives that by virtue of his appointment he has a legal
right either to the commission which has been made out for him, or to a copy
of that commission, it is equally a question examinable in a court, and the
decision of the court upon it must depend upon the opinion entertained on
his appointment.

" 'That question has been discussed, and the opinion is that the latest
point of time which can be taken as that at which the appointment was
complete and evidenced, was when, after the signature of the president, the
seal of the United States was affixed to the commission.



THE OWSLEY SPEECH.



437



I



" ' It is, then, the opinion of the court, that by signing the commission of
Mr. Marbury, the President of the United States appointed him a justice of
the peace for the county of Washington, in the district of Columbia; and
that the seal of the United States, affixed thereto by the secretary of State,
is conclusive testimony of the verity of the signature, and of the comple-
tion of the appointment ; and that the appointment conferred on him a
legal right to the office for the space of five years.'

' ' What are the responsibilities of the secretary of State ? His oath of
office is one. His liability to be sued by each individual injured by him, either
because he would not act or acted wrong ; and his responsibility to the peo-
ple, by impeachment. But the governor says that the Constitution and the
laws do not say that the secretary is in no other way responsible. To that I
answer I am in no way responsible for my actions, either officially or individ-
ually, unless I am made so by the Constitution and the law. Is there a secret
under-responsibility to the governor unless there is a constitutional negative
upon such power ? The reverse is the case. The governor has no power,
unless the same is given him by the Constitution and law.

" This question has been decided by the Senate of Illinois, and also the
Court of Appeals of that State. The governor of that State attempted to
remove the secretary, whose name was Fields, and appointed a McClernand
in his place. The Senate of that State decided the governor of that State
had not the power to remove the secretary of State. The Constitution of
Illinois, in relation to the secretary of State, is nearly like that of Kentucky.
The clause I refer to is to be found in volume II, Scammon's Reports, page
82, and reads in these words :

" ' Article 3, Sec. 20. The governor shall nominate, and by and with
the advice and consent of the Senate, appoint a secretary of State, who shall
keep a fair register of the official acts of the governor, and, when required,
shall lay the same, and all papers, minutes, and vouchers relative thereto,
before either branch of the General Assembly, and shall perform such other
duties as shall be assigned him b\- law."

" You will perceive, Mr. Chairman, that the section I have just read, does
not give the secretary the office by the tenure of good behavior ; but, yet it
was construed to have that effect, and that he was not responsible to the gov-
ernor, but to the people of Illinois.

"From the same, as a part of the opinion of the Court of Appeals of Illi-
nois, I will read a few extracts. Page 118 you will find these words:

" ' The governor is. neither in fact nor in theory, personally or politically
responsible for the official conduct of the secretary, or any other officer.
He can not assign him the performance of a single duty, or control him in
the performance of those assigned by law. He does not move in the exec-
utive circle, as has been said, but in that marked out by the Constitution
and the law, separate, distinct from, and independent of, that of the
governor. He looks to the law for his authority and duties, and not to the
governor, and to that, and that alone, he is responsible for their per-
formance.'



438 BEN HARDIN,

" I will read from the same book, page i6o, a part of the same opinion,
which reads in these words :

" ' Third: Does that provision of the Constitution which requires that
the governor " shall take care that the laws be faithfully executed," empower
him to remove the secretary, or any other officer, at his will and pleasure ?
If, as has been shown before, the governor possesses the power of removal
under this provision, then he may not only remove the secretary of State,
but every other officer in the State, except judges. For the reasons hereto-
fore given, no such power can be implied in this case. Nor is it necessary
that the governor should have this power, in order to enable him to comply
with this injunction of the Constitution. All that the Constitution contem-
plates is that the governor shall exercise a general oversight over the opera-
tions of the laws, and use such means as the laws have placed in his hands
to overcome opposition and remove obstacles to their due enforcement. If
the laws be defective, or inefficient, it would doubtless be his duty to inform
the Legislature of such defects, and point out proper remedies. If the laws
be opposed by force, it would be his duty, as the chief executive of the
State, to call out the militia to aid the civil officer to put down such opposi-
tion. If a crime be committed, and the perpetrator escape into another
State or country, it would be his duty to demand of the executive of the
State where the fugitive had fled that he be delivered up to the courts of
this State for trial. Should a flagrant crime be secretly committed, he may,
by proclamation, give notice of the fact, and offer a rev.ard for the discov-
ery of the perpetrator, and for his apprehension In these and similar ways,
I think the governor will find full scope for his vigilance, in taking "care
that the laws be faithfully executed." Should the secretary, or any other
officer, neglect or refuse to perform his duty, the laws possess sufficient
energy to compel compliance, without resorting to the power of removal. If
the secretary refuses or neglects to perform any official duty, he may be
impeached. He may also be comi)elled to perform the duty by mandamus.
If he, or any other officer, act partially or oppressively, from a malicious or
corrupt motive, it is a fundamental principle of our government that he may
be punished, by a criminal prosecution. The sheriffs of the different coun-
ties have more duties to perform, in relation to the execution of the laws,
than all the other officers in the State ; yet, the present laws are abundantly
sufficient to coerce these officers to a faithful discharge of their duties. For
malfeasance, oppression, partiality in the discharge of their duties, or for
any palpable omission of duty, they are liable to be indicted, and on con-
viction, to be removed from office. In addition to this, a party injured has
a civil action, and for many neglects of duty, the courts of record have
power to imprison them for contempt. I therefore conclude that it was not
necessary, to enable the governor to take care that the laws be faithfully
executed, that he should possess the royal prerogative to remove the secre-
tary, or any other officer. If, however, as I have before observed, the pres-
ent laws are inefficient, it will be within the scope of legislative competency
to provide other means to secure the faithful performance of official duties.
Should the Legislature deem it wise to vest this power in the governor, they
have the right to do so; and if the governor is to have this power, it is
much better that it should be by legislative grant than by the Constitution.'

" Again : I will call the attention of the committee to another part of the
opinion, page 182, which reads in these words :



THE OWSLEY SPEECH.



439



" ' All the duties of the secretary are either defined in the Constitution or
in the laws: and nowhere is any authority given to the governor, either to
direct what he shall do, how he shall do it, or even to call on him for coun-
sel or advice. On the contrary, I think it is fairly inferable from the terms
of the Constitution, not only that the secretary is not a confidential officer of
the governor, but that it was intended he should not be one. The secretary,
by the Constitution, when required, " shall lay the official acts of the gov-
ernor, and all papers, minutes, and vouchers relative thereto, before eidier
branch of the General Assembly." If the secretary is to be considered a
confidential officer of the governor, and removable at his pleasure, it would
be in the power of the governor, at any time, if he wished to conceal his
acts from the Legislature, to defeat this provision of the Constitution. And
if the governor did not resort to removal, and was unwilling his acts should
be known by the General Assembly, this confidential officer would be placed
in the unpleasant dilemma of betraying the confidence of his principal, or
violating the Constitution of his country. But is the secretary of State a
confidential officer ? The duties of his office, in all the States of the Union,
are essentially the same. '

" 1 find in a book of two volumes, containing the speeches of Henry Clay,
the following extracts :

" ' The mere act of dismission or removal may be of an executive nature,
but the judgment or sentence which precedes it is a function of a judicial
and not executive^iature. Impeachments which, as has been already observed,
are the only mode of removal from office expressly provided for in the Con-
stitution, are to be tried by the Senate, acting as a judicial tribunal. In
England, and in all other States, they are tried by judicial tribunals.

" 'In several of the States removal from office sometimes is effected by
the legislative authority, as in the case of judges, on the concurrence of two-
thirds of the members. The administration of the laws of the several States
proceeds regularly without the exercise on the jxart of the governor of any
power similar to that which is claimed for the president. In Kentucky, and
in other States, the governor has no power to remove sheriffs, collectors of
the revenue, clerks of courts, or any one officer employed in administration ;
and yet the governor, like the president, is constitutionally enjoined to see
that the laws are faithi'ully executed.

" ' It is contended that the president can not see that the laws are faith-
fully executed unless he possesses the power of removal. That injunction of
the Constitution imports a mere general superintendence, except where he
is specially charged with the execution of a law. It is not necessary that he
should have the power of dismission. It will be a sufficient security against
the abuses of subordinate officers that the eye of the president is u])on them,
and that he can communicate their delinquency. The State executives do
not possess this power of dismission. In several, if not all, the States, the
governor can not even dismiss the secretary of State ; yet we have heard no
complaints of the inefficiency of State executives or of the administration of
the laws of the States. The president has no power to dismiss the judiciary;
and it might be asked, with equal plausibility, how he could see that the laws
are executed if the judges will not conform to his oi)init)n, and he can not
dismiss them ?

" ' The president is enjoined by the Constitution to take care that the laws
be faithfully executed. Under this injunction, the power of dismission is



^O BEN HARDIN.

claimed for him ; and it is contended that if those charged with the execu-