example, to restore the offender's property which has been forfeited; 10 nor does it restore one ipso facto to a forfeited office.11 Also, though the pardon takes away the guilt, it does not effect the fact of conviction of the crime, which fact may be later shown as bearing upon the offender's character.

The power to pardon includes the right to remit part of the penalty as well as the whole, and in either case may be made conditional. The power may be exercised at any time after the offense has been committed, that is, either before, during, or after legal proceedings for punishment.12 General pardons, granting amnesty to classes of offenders, without naming them individually, may be granted.

The power is a purely discretionary one in the President, and therefore may not in any way be limited by Congress. 13

Though Congress has thus no power to limit in any way the exercise of the pardoning power by the President, it may itself exercise that power to a certain extent, if exercised prior to conviction. Thus acts of amnesty have been held valid.14

The power to suspend sentence, it has been held, is by the common-law inherent in the judicial power, and its exercise, therefore, would not be in conflict with the executive power to grant reprieves and pardons, even were that power considered exclusive.

10 Osborn v. United States, 91 U. S. 474; 23 L. ed. 388.

11 Ex parte Garland, 4 Wall. 333; 18 L. ed. 366.

12 Idem.

13 Idem.

14 Brown v. Walker, 161 U. S. 591; 16 Sup. Ct. Rep. 644; 40 L. ed. 819. As to remission of penalties by lower administrative officers, see Pollock v. Bridgeport Co., 114 U. S. 411; 5 Sup. Ct. Rep. 881; 29 L. ed. 147.

CHAPTER L

THE APPOINTMENT AND REMOVAL OF OFFICERS

Constitutional provisions

The Constitution provides that the President “shall nominate, and by and with the advice and consent of the Senate, shall 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; but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments."

It is also provided that the President "shall have power to fill all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session," and that he "shall commission all officers of the United States."

"Officer" of the United States defined

The definition of the term "officer" of the United States has been determined in United States v. Germaine 1 and United States v. Mouat.2 In the latter case the court say: "Unless a person in the service of the Government, therefore, holds his place by virtue of an appointment by the President, or of one of the courts of justice or heads of departments authorized to make such appointment,

199 U. S. 508; 25 L. ed. 482.

2 124 U. S. 303; 8 Sup. Ct. Rep. 505; 31 L. ed. 463.

he is not, strictly speaking, an officer of the United States."3

The Constitution, it is seen, fixes absolutely the manner in which certain officers: namely, ambassadors, other public ministers and consuls, and judges of the Supreme Court, shall be nominated and appointed. The Constitution itself provides, in other clauses, for the selection of the President, the Vice-President, presidential electors, Senators, members of the House of Representatives, and the officers of the two Houses of Congress. In addition to these officers whose selection is thus constitutionally determined, it would appear that all other officers not properly to be styled "inferior" are to be nominated by the President and appointed by and with the consent of the Senate. The appointment of all other officers of the United States, not mentioned within the foregoing classes, is subject to regulation by law of Congress, at least to the extent that that body may determine whether they shall be appointed by the President with the approval of the Senate, or by the President alone, or by the courts of law or the heads of the departments.

Inferior officers

The Constitution does not define the term "inferior officers," but it would appear that in this class are included all officers subordinate or inferior to those officers in whom other appointments may be vested. The point has never been squarely passed upon by the court since Congress has never attempted to regulate the appointment to any but distinctly subordinate and inferior positions. Should it attempt to determine by the law the appointment of heads of the great departments, or of the

3 That members of Congress are not "officers" of the United States Government, see Burton v. United States, 202 U. S. 344; 26 Sup. Ct. Rep. 688; 50 L. ed. 1057.

heads of bureaus and divisions and commissions, or even of important local officers, such as revenue officers or postmasters in the larger cities, the constitutionality of the law would undoubtedly be subjected to judicial examination.

Nominations

With reference to the President's power of appointment it is to be observed that nominating, appointing, and commissioning to office are distinct acts.

The nomination is exclusively in the hands of the President. During the first years of the Government the suggestion was several times made that the Senate might propose names for nomination to the President; but, whenever made, the suggestion was disapproved of as clearly not warranted by the Constitution. An appointment to office is not completed until the commission is signed. Therefore, even after sending a nomination to the Senate and even after the approval of that body has been given, the President may, having changed his mind, refuse his signature to a commission. His signature having once been appended, however, the appointment is complete, and the delivery of the commission by the head of the appropriate executive department may be commanded by mandamus, provided, of course, a Federal court has, by statute, been granted jurisdiction to issue the writ.4

Creation of offices

All offices are created either by the Constitution itself, or by Congress. The President, therefore, has not the power to create an office by directing some person to perform certain functions. However, the President as well as other executive officials may, for their assistance in executing their official duties, employ persons to perform cer4 Marbury v. Madison, 1 Cr. 137; 2 L. ed. 60.

tain specific duties. These persons have, however, legally speaking, no official powers, that is, they have no authority to issue orders to others, and for compensation for their services they must look either to contingent funds, the expenditure of which is placed in the discretion of the department employing them, or to a subsequent appropriation by Congress.

Congress has no appointing power, beyond the selection of its own officers. It may create an office but not designate the one to fill it.5

It has been held that Congress may authorize a particular person or official to perform a specific act, though it may not create an "office " for that person, in the sense that he is made an officer of the United States or entitled to any emolument or profit.6

The Congress may not vest the appointment of officers elsewhere than as permitted by the Constitution, that is, elsewhere than in the President alone, the President and the Senate or the heads of departments."

Civil Service requirements

The question has been at times raised as to the constitutional power of Congress, while providing for the appointment of officials by the President, or by the heads of the departments, to require that the appointees shall be selected from certain classes or persons, namely, those who have satisfied specified educational and other tests applied by the Civil Service Commission. Though the courts have never had occasion to pass upon this point, the constitu

5 United States v. Ferreira, 13 How. 40; 14 L. ed. 42. But see Shoemaker v. United States, 147 U. S. 282; 13 Sup. Ct. Rep. 361; 37 L. ed. 170.

6 Kentucky v. Dennison, 24 How. 66; 16 L. ed. 717.

7 Ekiu v. United States, 142 U. S. 651; 12 Sup. Ct. Rep. 336; 35 L. ed. 1146.