And be it further enacted, That the seal heretofore used by the United States in Congress assembled, shall be, and hereby is declared to be, the Seal of the United States.
The fourth section read:
That the said secretary shall keep the said seal, and shall make out and record, and shall affix the said seal to all civil commissions to officers of the United States to be appointed by the president, by and with the advice and 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, nor to any other instrument or act, without the special warrant of the president therefor.
It will be observed that the act described the “Seal of the United States” and not the “Great Seal of the United States,” although in all the preliminary reports and in the adopting act the term “Great Seal” was used. As no lesser seal of state was contemplated there was really no object in designating the only seal as the “Great Seal,” although for ordinary purposes it has never ceased to be called the “Great Seal,” and is so denominated in the decision of the Supreme Court where its uses are set forth. Before the seal was adopted the commissions of Congress read simply “By order of Congress,” being signed by the President. The countersigning was, “Attest Charles Thomson, Secretary.” When the seal came into use the form was, as it appears on Washington’s commission to exchange prisoners: “In testimony whereof we have caused these Letters to be made patent and the Great Seal of the United States of America to be thereunto affixed. Witness His Excellency John Hanson President of the United States in Congress assembled the Sixteenth day of September and in the year of our Lord one thousand seven hundred and eighty two, and of our Sovereignty & Independence the seventh.” After the adoption of the Constitution and before any custodian of the seal was provided by Congress, the wording ran: “In testimony whereof I have caused these letters to be made patent and the Seal of the United States to be hereunto affixed. Given under my hand the —— day of —— in the year of our Lord one thousand seven hundred and eighty nine,” this being signed by the President and not countersigned. This form continued in use after the Secretary of State became by law the keeper of the seal, and was not changed till August 3, 1790, when the recital was made to include the year of independence and was countersigned by Thomas Jefferson as Secretary of State. Thus, singularly enough, the abandonment of the term “Great Seal of the United States” began with the Executive some months before it received legal sanction.
VI
THE ILLEGAL SEAL
In ancient times a seal to authenticate a document was always impressed upon wax, or metal, or even upon clay; but this gave place to the more convenient method of impressing the seal directly upon the paper by the use of two faces of a die. It was, presumably, a desire to introduce this improvement which prompted the Department of State in 1841 to discard the seal of 1782 and have a new die cut. The work was ordered without any specific appropriation being made for the purpose by Congress, and was entrusted to Edward Stabler, of Sandy Spring, Md., where he was postmaster from 1828 to 1883, who cut many government seals, and had a reputation as a seal engraver. He was doubtless permitted to design the seal in his own way, and it was accepted without notice being taken of its palpable deficiencies from an artistic and heraldic point of view and its failure to satisfy the plain requirements of the law in the important particular of the number of arrows in the eagle’s sinister talon.
In reply to a letter from John D. Champlin, jr., in 1877, the Department of State said of the seal:
This change [from the design of the seal of 1782] does not appear to have been authorized by law, and the cause of it is unknown.[[30]]
The inaccuracies of the design of the arms on this seal were the subject of grave criticism from time to time. In the Galaxy Magazine for May, 1877, Mr. Champlin pointed out the improper arrangement of the pales, the red being twice as wide as the white, and the fatal disregard of the law requiring thirteen arrows in the eagle’s sinister talon. “Is it possible,” he said, “that an arbitrary alteration can be made in the great seal of the United States by the officials temporarily in charge of it? And if so, what is to prevent some future Secretary of State, with notions of his own in regard to heraldic bearings, from discarding the old seal altogether, in favor of some creation of his own?”
This seal was cut when Daniel Webster was Secretary of State, and a fair explanation of its deficiencies is that he knew nothing about the details of the prescribed design, and entrusted the business of securing a new seal to his subordinates, who were equally ignorant; and they in turn entrusted it to the engraver. Unquestionably, the Secretary of State has no authority to change the device of the arms, as it is prescribed by law, in the slightest degree, nor could the President himself properly authorize such a change. As the seal was created by Congress it would require an act of Congress to alter it. In this respect it is different from the arms of a monarchy. The arms of Great Britain, for example, being formed from those of different monarchs, have, in fact, undergone three changes since American independence—in 1801, when the arms of France were excluded and the arms of Hanover placed “over all on an escutcheon of pretense,” “ensigned with the electoral bonnet;” in 1816, when the bonnet was changed for the Hanoverian crown; and upon the death of William IV, when the present arrangement was made. How far the Secretary of State, as the custodian of the seal, may deviate from the original design in having a new one cut, provided he adheres to the terms of the creating law, is another question, which, as we shall see presently, was finally decided in favor of the conservative side.