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President's

mination to

and unrepealed. The House of Representatives are not above the law, and they have no dispensing power. They have a right to make and repeal laws, provided the Senate and President concur; but without such concurrence, a law in the shape of a treaty is as binding upon them as if it were in the shape of an act of congress, or of an article of the constitution, or of a contract made by authority of law. The argu

ment in favour of the binding and conclusive efficacy *287 *of every treaty made by the President and Senate, is

so clear and palpable, that it has probably carried very general conviction throughout the community; and this may now be considered as the decided sense of public opinion. This was the sense of the House of Representatives, in 1816, and the resolution of 1796 would not now be repeated.a

The President is the efficient power in the appointment of power of no- the officers of government. He is to nominate, and, with the office. advice and consent of the Senate, to appoint, ambassadors, or public ministers and consuls, the judges of the Supreme Court, and all other officers whose appointments are not otherwise provided for in the constitution; but congress may vest the appointment of inferior officers in the President alone, in the courts of law, or in the heads of departments.b

The appointment of the subordinate officers of government concerned in the administration of the laws, belongs, with great propriety, to the President, who is bound to see that the laws are faithfully executed, and who is generally charged with the powers and responsibility of the executive department. The association of the Senate with the President in the exercise of this power, is an exception to the general delegation of executive authority; and if he were not expressly invested with the exclusive right of nomination in the instances before us, the organization of this department would be very unskilful, and the government degenerate into a system of cabal, favouritism and intrigue. But the power of nomination is, for all the useful purposes of restraint, equivalent to

a The treaty-making power is necessarily and obviously subordinate to the fundamental laws and constitution of the state, and it cannot change the form of the government, or annihilate its constitutional powers. Story's Com. on the Constitution, vol. iii. sec. 1502.

b Art. 2. sec. 2.

the power of apointment. It imposes upon the President the same lively sense of responsibility, and the same indispensable necessity of meeting the public approbation or censure. This, indeed, forms the ultimate security that men in public stations will dismiss interested considerations, and act with a steady, zealous and *undivided regard for the *288 public welfare. The advice and consent of the Senate, which are requisite to render the nomination effectual, cannot be attended, in the nature of the case, with very mischievous effects. Having no agency in the nomination, nothing but simply consent or refusal, the spirit of personal intrigue and personal attachment must be pretty much extinguished, from a want of means to gratify it. On the other hand, the advice of so respectable a body of men will add still further inducements to a coolly reflected conduct in the President, and will be at all times a check on his own misinformation or error.a

The remaining duties of the President consist in giving information to congress of the state of the Union, and in recommending to their consideration such measures as he shall judge necessary or expedient. He is to convene both houses of congress, or either of them, on extraordinary occasions, and he may adjourn them in case of disagreement. He is to fill up all vacancies that may happen during the recess of the Senate, by granting commissions, which shall expire at the end of their next session. He is to receive ambassadors and

a It was settled, in the case of Marbury v. Madison, 1 Cranch, 137, that when a person has been nominated to the Senate for office by the President, and the President has received the advice and consent of the Senate to the appointment, and has signed the commission, the appointment is final and complete, and the person appointed is entitled to the possession of the commission, and to hold the office until constitutionally removed. The principle settled in that case was, that the official acts of the heads of the executive department, as organs of the President, which are of a political nature, and rest under the constitution and laws in executive discretion, are not within judicial cognizance. But when duties are imposed upon such heads, affecting the rights of individuals, and which the President cannot lawfully forbid-as, for instance, to record a patent, or furnish the copy of a record— the person, in that case, is the officer of the law, and amenable thereto in the ordinary course of justice. Ibid. 170, 171.

In the official opinion given by Mr. Wirt, as Attorney-General of the United States, to the President, in 1823, he considered that, according to the reason and spirit of the constitution, the President has the rightful power to supply vacancies in office existing when the appointment is made during the recess of the Senate,

May be impeached.

other public ministers, to commission all the officers of the United States, and take care that the laws be faithfully executed.a

The propriety and simplicity of these duties speak for themselves. The power of receiving foreign ministers includes in it the power to dismiss them, since he alone is the organ of communication with them, the representative of the people in all diplomatic negotiations, and accountable to the community, not only for the execution of the law, but for the competent qualifications and conduct of foreign agents.

In addition to all the precautions which have been mentioned to prevent abuse of the executive trust in the mode of

the President's appointment, his term of office and the *289 *precise and definite limitations imposed upon the

exercise of his power, the constitution has also rendered him directly amenable by law for mal-administration. The inviolability of any officer of government is incompatible with the republican theory, as well as with the principles of retributive justice. The President, Vice-President, and all civil officers of the United States, may be impeached by the House of Representatives, for treason, bribery, and other high crimes and misdemeanors, and upon conviction by the Senate, removed from office. If then, neither the sense of duty, the force of public opinion, nor the transitory nature of the seat, are sufficient to secure a faithful discharge of the executive trust, but the President will use the authority of his station to violate the constitution or law of the land, the House of

though the vacancy did happen before the adjournment of the Senate. The
instances he gives of the necessity of such a construction and power, are those in
which it was nearly or quite impossible to have sent in a nomination before the
adjournment of the Senate. Opinions of the Attorneys-General, vol. i. 476.
Art. 2. sec. 2, 3. It was considered, in The Message of President Jackson to
Congress, of the 21st December, 1836, in relation to Texas, to be an unsettled ques-
tion, to whom, under the government of the United States, strictly belonged the
power of originally recognising a new state. It was either necessarily involved in
some of the great powers given to congress, or in that given to the President and
Senate, to form treaties with foreign powers, and to appoint ambassadors and other
public ministers, or in that conferred upon the President to receive ministers from
foreign nations. It was admitted to be most expedient, that the recognition of the
independence of a newly assumed state should be left to the decision of congress,
and especially when the exercise of the power would probably lead to war.

b Art. 2. sec. 4.

Representatives can arrest him in his career, by resorting to the power of impeachment.

I have now finished a general survey of the office of President of the United States; and, considering the nature and extent of the powers necessarily incident to that station, it was difficult to constitute the office in such a manner as to render it equally safe and useful, by combining in the structure of its powers a due proportion of energy and responsibility. The first is necessary to maintain a firm administration of the law; the second is equally requisite, to preserve inviolate the liberties of the people. The authors of the constitution appear to have surveyed the two objects with profound discernment, and to have organized the executive department with consummate skill.

LECTURE XIV.

OF THE JUDICIARY DEPARTMENT.

As the judiciary power is intrusted with the administration of justice, it interferes more visibly and uniformly than any other part of government, with all the interesting concerns of social life. Personal security and private property rest entirely upon the wisdom, the stability and the integrity of the courts of justice. In the survey which is to be taken of the judiciary establishment of the United States, we will in the present lecture consider, (1.) The judges, in relation to their appointment, the tenure of their office, and their support and responsibility. (2.) The structure, powers and officers of the several courts.

I. The constitutiona declares, that "the judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the congress may from time to time ordain and establish." In this respect it is mandatory upon the legislature to establish courts of justice commensurate with the judicial power of the Union. Congress have no discretion in the case. They were bound to vest the whole judicial power, in an original or appellate form, in the courts mentioned and contemplated in the constitution, and to provide courts inferior to the Supreme Court, in which the judicial power, unabsorbed by the Supreme Court, might be placed. The judicial power of the United States is, in *291 point of origin and title, equal *with the other powers of the government, and is as exclusively vested in the courts created by or in pursuance of the constitution, as the legislative power is vested in congress, or the executive power

Art. 3. sec. 1.

Martin v. Hunter, 1 Wheaton, 328-337.

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