great responsible officer for the faithful execution of the law, and the power of removal was incidental to that duty, and might often be requisite to fulfil it.

This question has never been made the subject of judicial discussion; and the construction given to the Constitution in 1789 has continued to rest on this loose, incidental, declaratory opinion of Congress, and the sense and practice of government since that time. It may now be considered as firmly and definitively settled, and there is good sense and practical utility in the construction. It is, however, a striking fact in the constitutional history of our government, that a power so transcendent as that is, which places at the disposal of the President alone the tenure of every executive officer appointed by the President and Senate, should depend upon inference merely, and should have been gratuitously declared by the first Congress in opposition to that high authority of the Federalist; and should have been sup- *311 ported or acquiesced in by some of those distinguished men who questioned or denied the power of Congress even to incorporate a national bank. (a) 1

(a) As the instances of the exercise of the power of removal from office have been multiplied beyond all former example, under President Jackson's administration, the propriety of the concession of the power itself, by the first Congress, has been strongly questioned. It is in the power of Congress, at any time, says a high authority, to correct the extensive operation of this executive power, by placing the appointment of inferior officers (and which would include ninety-nine out of a hundred of the lucrative offices of the government) in other hands. 3 Story's Comm. 394-397.

1 Tenure of Office Acts. By the Ten ure of Office Act of March 2, 1867, 14 U. S. St. at L. 430, c. 154, § 1, it was enacted that every person who is appointed to any civil office by and with the advice and consent of the Senate, and who becomes duly qualified to act therein, shall be entitled to hold such office until a successor shall have been in like manner appointed and duly qualified, with a proviso as to the heads of departments. It may be considered as settled by the discussion which this act received before and after its passage, and by the events to which it gave rise, that it was within the constitutional power of the legislature to pass. Johnson's Trial, passim, 2 Am. Law Rev. 560; Cong.

Globe, Feb. 1, 1867, Mr. Hale's Speech; United States v. Guthrie, 17 How. 284, 298; Webster's Speech in Senate, Feb. 16, 1835, Works, iv.; Marbury v. Madison, 1 Cranch, 137, 167, 168, 172.

The above provisions were repealed, however, by the act of April 5, 1869, c. 10, 16 U. S. St. at L. 6, and it was enacted instead, "that every person holding any civil office to which he has been or hereafter may be appointed by and with the advice and consent of the Senate, and who shall have become duly qualified to act therein, shall be entitled to hold such office during the term for which he shall have been appointed, unless sooner removed by and with the advice and con

The marshal is obliged to give security to the United States in twenty thousand dollars, for the faithful performance of the duties of his office by himself and his deputies, and, together with his deputies, to take an oath of office. (b) By the common law, the death of the principal is a virtual repeal of authority of the substitute or deputy; but to guard against any inconvenience which might arise from the operation of this principle, and to prevent the mischiefs of a vacancy in office, the act establishing the judicial courts has provided, that in case of the death of the marshal, his deputies shall continue in office, unless otherwise especially removed, and shall execute the same in the name of the deceased marshal, until another marshal shall be appointed and sworn. So, a marshal, when removed from office, or his term of office expires, may still execute all process in his hands, and he remains responsible for his prisoners until they are duly delivered over to his successor. (c) And with respect to the custody of the prisoners, under the law of the United States, the marshal is directed to deliver his prisoners to the keeper of one of the jails of the state in which he is marshal, in cases where the legislature of the state, in conformity with the recommendation of Congress, have made it the duty of the jailers to receive them; but where they have not, the marshal, under the direction of the district judge, is to provide his own place of security. (d)

(b) Act of Congress of September 24, 1789, sec. 27. By the act of Congress of April 10, 1806, c. 21, the marshal's bonds are to be filed and recorded in the office of the clerk of the district court or circuit court sitting within the district; and suits for the breach of the condition of any such bond may be instituted in the name and for the sole use of the person injured by a breach of the condition of the bond, and judgments on the bond are to remain as a security for the benefit of any person injured by the breach thereof.

(c) Ib. sec. 28; [Doolittle v. Bryan, 14 How. 563; Stewart v. Hamilton, 4 McLean, 534; United States v. Bank of Arkansas, Hempst. 460.]

(d) Resolutions of Congress, September 23, 1789, and March 3, 1791. See also the act of Congress of January 6, 1800, and 1 Paine, 368. The marshal is bound to take from the prisoner under United States process a bond for the limits, as in the case for prisoners under state process.

sent of the Senate, or by the appointment, with the like advice and consent, of a successor in his place, except," &c.

The President is empowered, during any recess of the Senate, in his discretion,

to suspend any such civil officer, except United States judges, until the end of the next session of the Senate, and to fill the vacancy in the mean time.

LECTURE XV.

OF THE ORIGINAL AND APPELLATE JURISDICTION OF THE

SUPREME COURT.

HAVING taken a general view of the great departments of the government of the United States, I proceed to a more precise examination of its powers and duties, and of the degree of subordination under which the state governments are constitutionally placed.

The Constitution of the United States is an instrument containing the grant of specific powers, and the government of the Union cannot claim any powers but what are contained in the grant, and given either expressly, or by necessary implication.1 The powers vested in the state governments by their respective constitutions, or remaining with the people of the several states prior to the establishment of the Constitution of the United States, continue unaltered and unimpaired, except so far as they are granted to the United States. We are to ascertain the true construction of the Constitution, and the precise extent of the residuary authorities of the several states, by the declared sense and practice of the governments respectively, when there is no collision; and in all other cases where the question is of a judicial nature, we are to ascertain it by the decisions of the Supreme Court of the United States; and those decisions ought to be studied and universally understood, in respect to all the leading questions of constitutional law. (a) The people of the United States have declared the Constitution to be the supreme law of the land, and it is entitled to universal and implicit obedience. Every act of Congress, and every act of the legislatures of the

(a) Vide supra, 243.

1 But compare Legal Tender Cases, 12 Wall. 457, ante, 254, n. 1.

states, and every part of the constitution of any state, * 314 which are repugnant to the Constitution of the United States, are necessarily void. This is a clear and settled principle of constitutional jurisprudence. The judicial power of the Union is declared to extend to all cases in law and equity arising under the Constitution; and to the judicial power it belongs, whenever a case is judicially before it, to determine what is the law of the land. The determination of the Supreme Court of the United States, in every such case, must be final and conclusive, because the Constitution gives to that tribunal the power to decide, and gives no appeal from the decision.

With respect to the judicial power, it may be generally observed, as the Supreme Court declared, in the case of Turner v. The Bank of North America, (a) that the disposal of the judicial power, except in a few specified cases, belongs to Congress; and the courts cannot exercise jurisdiction in every case to which the judicial power extends, without the intervention of Congress, who are not bound to enlarge the jurisdiction of the federal courts to every subject which the Constitution might warrant. So, again, it has been decided, (b) that Congress has not delegated the exercise of judicial power to the circuit courts, but in certain specific cases. Both the Constitution and an act

of Congress must concur in conferring power upon the circuit courts. A considerable portion of the judicial power, placed at the disposal of Congress by the Constitution, has been intentionally permitted to lie dormant, by not being called into action by law. (c) The 11th section of the Judiciary Act of 1789, giving jurisdiction to the circuit courts, has not covered the whole ground of the Constitution, and those courts cannot, for instance, issue a mandamus, but in those cases in which it may be necessary to the exercise of their jurisdiction. (d)

1. Its Original Jurisdiction.

The original jurisdiction of the Supreme Court is very limited, and it has been decided that

(a) 4 Dallas, 8.

(b) M'Intire v. Wood, 7 Cranch, 504; Livingston v. Van Ingen, 1 Paine, 45; United States v. Hudson & Goodwin, 7 Cranch, 32; United States v. Bevans, 3 Wheaton, 336.

(c) Conkling's Treatise, 2d ed. 68.

(d) Smith v. Jackson, 1 Paine, 453; [Bath County v. Amy, 13 Wall. 244.]

1

Congress has no power to extend it. (e) 1 (z) It is confined by the Constitution to those cases which affect ambassadors, other pub lic ministers and consuls, and to those in which a state is a party; (f) and it has been made a question, whether * 315 this original jurisdiction of the Supreme Court was intended by the Constitution to be exclusive. The Judiciary Act of 1789 seems to have considered it to be competent for Congress to vest concurrent jurisdiction, in those specified cases, in other courts; for it gave a concurrent jurisdiction, in some of those cases, to the circuit courts. (a) (y) In the case of the United States v. Ravara, (b) this point arose in the Circuit Court for Pennsylvania district, and it was held that Congress could vest a concurrent jurisdiction in other courts, of those very cases over which the Supreme Court had original jurisdiction; and that the word "original" was not to be taken to imply exclusive cognizance of the cases enumerated. But the opinion of the Supreme Court of the United States, in Marbury v. Madison (c) goes far towards establishing the principle of exclusive jurisdiction in the Supreme Court in all those cases of original jurisdiction. This last case was considered, in Pennsylvania v. Kosloff, (d) as shaking the decision in the case of Ravara; and yet the question was still left in doubt by the Supreme Court, in the case of the United

(e) Marbury v. Madison, 1 Cranch, 137.

(a) Act of Congress, September 24, 1789, sec. 13. (c) 1 Cranch, 137.

1 Ex parte Vallandigham, 1 Wall. 243, 252; Ex parte Yerger, 8 Wall. 85, 98; The Alicia, 7 Wall. 571. On the other hand, since the act of 1789, in all cases where original jurisdiction is given by the Constitution, the court has authority to exercise it without any further act of Congress to regulate its process or confer jurisdiction. Kentucky v. Dennison, 24 How. 66, 98.

See, as to cases in which a state is a party, post, 323, n. 1.

(x) Vide supra, 298, n. (y)

(y) The constitutional grant of original jurisdiction to the U. S. Supreme Court of all cases affecting consuls does not prevent

(f) Art. 3, sec. 2.
(b) 2 Dallas, 297.

(d) 5 Serg. & Rawle, 545.

In the case of a suit which was brought in the Circuit Court against a foreign consul, and which failed on other grounds, it was laid down by Nelson, J., that the jurisdiction of the Supreme Court was not exclusive. Graham v. Stucken, 4 Blatchf. 50; St. Luke's Hospital v. Barclay, 3 Blatchf. 259; Lorway v. Lousada, 1 Lowell, 77, 1 Am. L. Rev. 92; Pennsylvania v. Wheeling Bridge Co., 13 How. 518, 563, 579.

Congress from conferring original jurisdiction, in such cases, upon the subordinate courts of the Union. Börs v. Preston, 111 U. S. 252.