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 justice. Ibid. 170, 171. (b) In the official opinion given by Mr. Wirt, as attorney-general of the United States, to the President, in Oct. 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 Attorney-Generals, vol. i. 476. (c) Art. 2, sec. 2, 3. It was considered, in the Message of President Jackson to 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 May be mentioned to prevent abuse of the executive trust in impeached. the mode of the President's appointment, his term of office and the precise and definite limitations imposed 289 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 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 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. 2, sec. 4. 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 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 with the other powers of the government, 291 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. (c) VOL. I. * (a) Art. 3, sec. 1. (b) Martin v. Hunter, 1 Wheaton, 328–337. 27 * 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 officers as they think proper, in the President alone, in the courts of law, or in the heads of departments." (a) It has never been judicially settled, but it has been very authoritatively and very wisely settled by the uniform practice of the government, that the judges of the district courts are not inferior officers, whose appointments might be withdrawn by law from the President and senate, and placed in other hands. Judicial in The advantages of the mode of appointment of dependence. public officers by the President and senate, have been already considered. The mode is peculiarly fit and proper in respect to the judiciary department. The just and vigorous investigation and punishment of every species of fraud and violence, and the exercise of the power compelling every man to the punctual performance of his contracts, are grave duties, not of the most popular character, though the faithful discharge of them will certainly command the calm approbation of the judicious observer. The fittest men would probably have too much reservedness of manners, and severity of morals, to secure an election resting on universal suffrage. Nor can the mode of appointment by a large deliberate assembly be entitled to unqualified approbation. There are too many occasions, and too much temptation for intrigue, party prejudice, and local interest, to permit such a body of men to act, in respect to such appointments, with a sufficiently single and steady re*292 gard for the general welfare. *In ancient Rome, the prætor was annually chosen by the people, but it was in the comitia by centuries, and the choice was confined to persons belonging to the patrician order, until the close of the fourth century of the city, when the office was rendered accessible to the plebeians; and when they became licentious, says Montesquieu, (b) the office became corrupt. The popular elections did very well, as he observes, so long as the people were free, and (a) Const. art. 2, sec. 2. (b) Esprit de Loix, liv. viii. c. 12. |