Congress can neither limit the effect of his pardon, nor exclude from its exercise any class of offenders. The benign prerogative of mercy reposed in him cannot be fettered by any legislative restrictions. . . . A pardon reaches both the punishment prescribed for the offense and the guilt of the offender; and when the pardon is full, it releases the punishment and blots out the existence of the guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offense

there is only the limitation to its operation; it does not restore offices forfeited, or property or interests vested in others in consequence of the conviction of judgment."

§ 688. Acts of Amnesty and Remission of Penalties.

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. In Brown v. Walker the act of Congress granting immunity from prosecution to witnesses testifying before the Interstate Commerce Commission was upheld, the court saying: "Although the Constitution vests in the President power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment, this power has never been held to take from Congress the power to pass acts of general amnesty."

In Pollock v. Bridgeport S. B. Co.40 it was held that the pardoning power of the President was not so exclusive as to prevent other officers, acting in conformity with statute, from remitting forfeitures and penalties incurred for the violation of laws of the United States. In its opinion the court say:

"It is not necessary to question the soundness of some of these propositions. It may be conceded that, except in cases of impeachment and where fines are imposed by a coördinate department of the government for contempt of its authority, the President, under the general qualified grant of power to pardon offenses against the

39 161 U. S. 591; 16 Sup. Ct. Rep. 644; 40 L. ed. 819. 40 114 U. S. 411; 5 Sup. Ct. Rep. 881; 29 L. ed. 147.

United States, may remit fines, penalties and forfeitures of every description arising under the laws of Congress; and, equally, that his constitutional power in these respects cannot be interrupted, abridged or limited by any legislative enactment. But is that power exclusive, in the sense that no other officer can remit forfeitures or penalties incurred for the violation of the laws of the United States? This question cannot be answered in the affirmative without adjudging that the practice in reference to remissions by the Secretary of the Treasury and other officers, which has been observed and acquiesced in for nearly a century, is forbidden by the Constitution. That practice commenced very shortly after the adoption of that instrument, and was perhaps suggested by legislation in England, which, without interfering with, abridging or restricting the power of pardon belonging to the Crown, invested certain subordinate officers with authority to remit penalties and forfeitures arising from violations of the revenue and customs laws of that country."

§ 689. Suspension of Sentences.

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.

CHAPTER LX.

THE APPOINTMENT AND REMOVAL OF OFFICERS.

§ 690. Constitutional Provisions.

The Constitution provides that the President "shall nominate, and by and with the advice and consent of the Senate, shall ap‐ point 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."

§ 691. "Officer" of the United States Defined.

The definition of the term "officer" of the United States has been determined in United States v. Germaine1 and United States v. Mouat.2 In the latter case the court say:

"What is necessary to constitute a person an officer of the United States, in any of the various branches of its service, has been fully considered by this court in United States v. Germaine, 99 U. S. 508; 25 L. ed. 482. In that case it was distinctly pointed out that, under the Constitution of the United States, all its officers were appointed by the President, by and with the consent of the Senate, or by a court of law, or the head of a department; and the heads of the departments were defined in that opinion to be what are now called the members of the

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

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

cabinet. 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 by law to make such an appointment, he is not, strictly speaking, an officer of the United States." 3

In

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. 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 paragraph, 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.

§ 692. 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 distinctively subordinate and inferior positions. Should it attempt to determine by law the appointment of heads of the great departments, or even of the heads of bureaus and divisions and commissions, or even of important local

3 See ante, section 231 for further discussion of what constitutes an office " within the meaning of the Constitution.

4 Collins v. United States, 14 Ct. of Claims, 565.

officers, such as revenue officers or postmasters in the larger cities, the constitutionality of the law would undoubtedly be subjected to judicial examination.

§ 693. 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 signed by the President. 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. This was determined in Marbury v. Madison.5 In that case, after quoting the clauses of the Constitution conferring the appointing power, and the act of Congress, providing that the Secretary of State shall keep the seal of the United States and affix it to all civil commissions to officers of the United States appointed by the President, by and with the consent of the Senate, Marshall says:

"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: 1st. The nomination. This is the sole act of the president, and is completely voluntary. 2d. 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. 3d. The commission. 61 Cr. 137; 2 L. ed. 60.