in 1816, and the Resolution of 1796 would not now be repeated. (a)

ination to of

The President is the efficient power in the appointment of the President's officers of government. He is to nominate, and, with power of nom- the advice and consent of the Senate, to appoint ambasfice. sadors, 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) 2

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, favoritism, and intrigue. But the power of nomination is, for all the useful purposes of restraint, equivalent to the power of appointment. 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 *288 act with a steady, zealous, and

undivided regard for the

(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 Comm. on the Constitution, vol. iii. sec. 1502.1

(b) Art. 2, sec. 2.

1 When the concurrence of Congress is necessary to give effect to a treaty, it is not the law of the land until that concurrence is given. The treaty-making power cannot bind or control the power of the legislature. Turner v. Am. Baptist Miss. Union, 5 McLean, 344. Congress may repeal a treaty so far as it is a municipal law, if it affect subjects which are within its legislative power. Taylor v. Morton, 2 Curtis C. C. 454.

2 The power of the President to remove a territorial judge is discussed in United States v. Guthrie, 17 How. U. S. 284.

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 simple 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. (b) He is to receive ambassadors and other public ministers, to commission all the officers of the United States, and to take care that the laws be faithfully executed. (c)

(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 jus Ibid. 170, 171.

tice.

(b) In the official opinion given by Mr. Wirt, as Attorney-General of the United States, to the President, in October, 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, 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.

(c) 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

VOL. I.

26

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.

May be

In addition to all the precautions which have been mentioned to prevent abuse of the executive trust in the mode of impeached. 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. (a) 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 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

tion to whom, under the government of the United States, strictly belonged the power of originally recognizing 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.

(a) Art. 1, sec. 2, and art. 2, sec. 4.

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 constitution (a) 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. (b) 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 point of origin and title, equal *291 * 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 in the President. (a) The President is to nominate, and, by and with the advice and consent of the Senate, to appoint "judges of the Supreme Court, and all other officers whose appointments are not therein otherwise provided for, and which shall be established by law. But Congress may, by law, vest the appointment of such inferior

(a) Art. 3, sec. 1.

(a) Story's Comm. vol. iii. pp. 449–456.

(b) Martin v. Hunter, 1 Wheaton, 328–337.