the people at large, so long as it continues in force 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 argument in favor of the bind*287 ing and conclusive efficacy 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)1

The President is the efficient power in the appointment of the officers of government. He is to nominate, and, with the 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

(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, Comm. on the Consti tution, iii. § 1502.

1 Judge McLean was of a different opinion from the author, Turner v. Amercan Baptist Miss. Union, 5 McLean, 344, and the point is still open and debated between the two houses of Congress.

Congress may repeal a treaty so far as it is municipal law, provided its subjectmatter is within the legislative power of Congress. Taylor v. Morton, 2 Curt. 454; The Cherokee Tobacco, 11 Wall. 616, 621; Ropes v. Clinch, 8 Blatchf. 304. But Congress has no power, it is said, to settle the rights under treaties, except in cases purely political. The construction of them is the peculiar province of the judiciary, when a case shall arise between individuals. Wilson v.

Wall, 6 Wall. 83, 89. On the other hand, the courts of the United States cannot question the power of the other party to a treaty to do certain acts when he has been treated as having the power by the President and Senate. Doe v. Braden, 16 How. 635; Fellows v. Blacksmith, 19 How. 366; see p. 330, n. 1.

State laws, inconsistent with a treaty constitutionally concluded and ratified, are thereby abrogated. 6 Op. Att.-Gen. 291; 8 Op. Att.-Gen. 411; Hamilton v. Eaton, Martin, N. C. 2d part, 1 U. S. C. C. 1792; [Hauenstein v. Lynham, 100 U. S. 483; Parrott's Chinese Case, 6 Saw. 349.] See, as to the sacrifice of private rights by treaty, ante, 167.

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. (x) The associa

(b) Art. 2, sec. 2. [By statute of Jan. 16, 1883 (25 St. at L. 403), provision is made for the appointment of three civil service commissioners. It is made the duty of such commissioners to aid the President, as he may request, in preparing rules providing for " open competitive examinations for testing the fitness of applicants for the public service now classified, or to be classified hereunder." All offices so classified are to be filled "by selections according to grade from among those graded highest as the results of such competitive examinations." Appointments are to be apportioned among the states and territories and the District of Columbia, according to population. There is to be a period of probation before any appointment becomes absolute. It is made the duty of heads of departments and of heads of offices, on request by the President, to classify the offices over which they are heads, in a manner prescribed in the act. It is further provided that, after six months from the passage of the act, all appointments and promotions, with specified exceptions, within said classes, shall be by means of such competitive examinations. B.]

(x) The President's constitutional duty to see that the laws be faithfully executed, includes the power, through the attorney general, to direct a U. S. marshal to attend and protect from threatened injury a judge of the U. S. Supreme Court while discharging his official duties. In re Neagle, 135 U. S. 1.

The President may act through the heads of the executive departments, who are his authorized assistants in the performance of his executive duties, and their official acts, promulgated in the regular course of business, have always been held to be presumably his acts. Runkle v. United States, 122 U. S. 543, 557; United States v. Badeau, 31 Fed. Rep. 697, 699. So long as the control of the subjectmatter has not been parted with by the political department, the judiciary will not compel it to act. United States v. Blaine, 139 U. S. 306. A claimant's bill in the nature of interpleader, or to quiet title to an international award held by the govern

ment, does not conflict with the diplomatic authority vested in the President by the Constitution. United States v. La Abra S. M. Co. 29 Ct. Cl. 432.

In general, Equity will not interfere by injunction or mandamus with any governmental matters, such as the lawful exercise of the police power by municipal officers, or the public duties of any department of the government. New Orleans v. Paine, 147 U. S. 261; Chicago P. S. Exchange . McClaughry, 148 Ill. 372; Hilligoss v. Grinslade, 32 Ill. App. 45. Mandamus lies to compel an executive officer of the government to perform a ministerial duty, but he will not be thus interfered with in the exercise of his ordinary official duties, even when those duties require an interpretation of the law. United States v. Black, 128 U. S. 40; see Bayard v. United States, 127 U. S. 246; United States v. Raum, 135 U. S. 200; In re Penn. Co., 137 U. S. 451; United States v. Brown, 41 Fed. Rep. 481; post, p. 321. Where

tion 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 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)1

(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 Pres

1 See, as to the power of removal, post, 311, n. 1.

the executive has not exhausted its power, as in the case of withholding payment of a claim made under a treaty, pending an investigation of fraud as to the claim, which involves the exercise of judgment and discretion, mandamus cannot issue to compel action by the head of a department. Frelinghuysen v. Key, 110 U. S. 63; United States v. Blaine, 139 U. S. 321. When a Federal statute delegates to an officer or tribunal full jurisdiction over a subject in which the United States are interested, the exercise of authority or discretion within the power thus conferred is conclusive, in the absence of fraud.

United States v. California & Oregon Land Co., 148 U. S. 31, 43; United States r. Lamont, 2 App. D. C. 532. State officials, acting under unconstitutional state legislation, may be controlled by injunction or mandamus. In re Ayers, 123 U. S. 443; see Yale College v. Sanger, 62 Fed. Rep. 177. But a Federal court cannot inquire into the legal adoption of a duly declared amendment of the State constitution. Smith v. Good, 34 Fed. Rep. 204.

The U. S. Rev. Stats., § 1768, excepts judges of the U. S. courts from the power thereby conferred upon the President to suspend civil officers appointed with the

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. (x) 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)

ident 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. Ib. 170, 171.2

(b) 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, 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. Op. Att.-Gen. 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 question to whom, under the government of the United States, strictly belonged the power of

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.

7. His Responsibility. 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, *289 and the * 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.1 (x)

I have now finished a general survey of the office of President of the United States; and, considering the nature and extent 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, 5, sec. 3, 6, and] art. 2, sec. 4.

1 Post, 343, n. 1.

(x) In England, an impeachment by the Commons in Parliament cannot be defeated by the pardon of the sovereign,

or by the prorogation or dissolution of Parliament. See Pike's Constitutional History of the House of Lords, p. 233.