236. What is the power to fill President Johnson, because of the peculiar attitudes of a President and a Congress elected at the same time, and upon the same platform of principles. Without pretending to assert positively the constitutionality of the law, the editor ventures to predict, that no political party will ever entirely remove the restrictions, and leave the tenure of office wholly and exclusively at the will of the President. The real evil results from the too great patronage in the hands of the executive, and the corrupting influences, for a long time so openly employed, by the distribution of federal patronage to control State elections. The evil could only be reached and Presidential elections rendered peaceful and safe by an organic change, which would place the choice of federal magistrates where the constitutions of the States have generally placed them in the hands of the people. If time has demonstrated that the elective democratic principle may be left to the wisdom of choice, why could not the rule apply to many grades of federal officers? [3.] The President shall have power to fill up all Vacancies? Vacancies that may happen during the recess of the 184, § 3. Senate, by granting commissions which shall expire at the end of their next session. If the vacan185. "ALL VACANCIES THAT MAY HAPPEN DURING THE RECESS cies occur OF THE SENATE."-Mr. Wirt, in 1823, Mr. Tauey, in 1832, and Mr. during the session? Legaré, in 1841, concur in opinion that vacancies first occurring 184. during the session of the Senate may be filled by the President in the recess. Mr. Mason, in a short opinion given in 1845, held that vacancies known to exist during the session could not be filled in the recess; but in a more elaborate opinion, written in 1846, he expresses general concurrence with his three predecessors. Ail these concurring opinions give a construction to the meaning of the words; and they agree that these words are not to be confined to vacancies which first occur during the recess, but may apply to vacancies which first occur during the session and continue in the recess. Attorney-General Stanbery on the President's power in the matter of appointments to office, 30th Aug. 1866, p. 4. 25. ៩៖ 32. How may occur? 179. 1. The vacancy may not have become known during the the vacancy recess; 2. It may have occurred by the failure of the Senate to act upon a nomination; 3. Or, upon a nomination and confirmation, where the party so nominated and confirmed refuses in the recess to accept the office; 4. Or by the rejection of the nominee of the President in the last hour of the session; 5. Or by the failure of the President to make a nomination during the session or after a rejection of his nominee. Id. 148. What means "that may happen"? The subject-matter is a vacancy. It implies duration-a condition or state of things which may exist. I incline to think, upon the mere words, that we might construe them precisely as if the phrase were, "If it happen that there is a vacancy in the recess," or, "If a vacancy happen to exist in the recess." Id. 5, 6. But if the office first occur during the recess; or if it be created during the session and the President fail to appoint, he cannot appoint during the recess. The word "HAPPEN" has relation to some casualty, not provided for by law. (The appointment of the Ministers to Ghent, in 1813; Senate Journal of 20th April, 1822; 2 Executive Journal, pp. 415, 500; 3 Executive Journal, 297.) Story's Const. § 1559. He may fill, during a recess of the Senate, a vacancy that occurred by expiration of commission during a previous session. 1 Opin. 631. So he may fill a vacancy which has occurred by the expiration of a former temporary appointment, the Senate having neglected to act on a nomination to fill the office. 3 Id. 673; 4 Id. 523; 2 Id. 525; 4 Id. 361. sion? 186. "WHICH SHALL EXPIRE AT THE END OF THE SESSION."-Length of The commission of an officer appointed during a recess, who is commisafterward nominated and rejected, is not thereby determined: it continues in force until the end of the next session, unless sooner determined by the President. 2 Opin. 336; 4 Id. 30. It was upon this state of facts that Mr. Taney gave his opinion What means in 1832, and held on this point that "the vacancy did take place "which shall in the recess," and that "the former appointment continued expire at the during the session, and there was no vacancy until after they ad- session"? journed." Stanbery on filling vacancies, 6. If the President appoint and commission, both expire at the end of the next session. If he nominate the same person, and the Senate concur, it is a new appointment; and the bond given "to fill up the vacancy," does not apply to acts done under the new appointment and commission (United States, v. Kirkpatrick, 9 Wheat. 720, 733, 734, 735.) Story's Const. § 1538. end of the 184. the duties upon the SEC. III. He shall, from time to time, give to the What are Congress information of the state of the Union, and enjoined recommend to their consideration such measures as he President? shall judge necessary and expedient. He may, on Further extraordinary occasions, convene both houses, or either powers? of them; and in case of disagreement between them, with respect to the time of adjournment, he may adjourn them to such time as he shall think proper. He shall receive ambassadors and other public ministers. He shall take care that the laws be faithfully executed, and shall commission all the officers of the United States. 187. "GIVE INFORMATION OF THE STATE OF THE UNION, AND How are the RECOMMEND," &c.—The opening messages of Presidents Washington opinions and John Adams were delivered in person and answered. 1 Ben- given? ton's Cond. Debates; Story's Const. 3d ed. § 1561, note 1. See Have extra What does "ambassadors and 1 Tuck. Bl. Com. 343-345; Federalist, No. 78; Rawle's Coust. ch. 16, p. 171. The practice was changed by President Jefferson; and ever since all messages have been delivered in writing. This "information of the state of the Union," embraces the reports of all the departments, and altogether they constitute what are called the executive documents of the government, which are valuable repositories for statesmon and students. Calls are often made by Congress on the President and the heads of departments, for information on special matters. 188. "MAY CALL CONGRESS TOGETHER AND ADJOURN," &c.— This power of convening Congress in extra session, has been frequently exercised, both in regard to Congress and the Senate. Never could the necessity of the power be more forcibly demonstrated than upon the occasion of its exercise by President Lincoln, in April, 1863. See Federalist, No. 78; Rawle's Const., ch. 16, p. 171. It is not remembered that the occasion ever has arisen for the President to exercise the power to adjourn Congress. The power to receive AMBASSADORS AND OTHER PUBLIC MINISTERS carries along the power to receive consuls, and they never other public act without exequaturs. Rawle's Const. ch. 24, pp. 224, 225. ministers" Story's Const. § 1564-1572. See Federalist, No. 42; 1 Kent's Com. Lect. 2, pp. 40-44. Halleck's International Law, p. 242, § 4; Fynn, British Consuls abroad, pp. 34-55; 2 Phillimore on International Law, § 246, 258. embrace? 180, 181, 202. In case of a revolution, or dismemberment of a nation, the judiciary cannot take notice of any new government or sovereignty, until it has been duly recognized by some other department of the government, to whom the power is constitutionally confided. (United States v. Palmer, 3 Wheat. 610, 634, 643; Hays v. Gelston, 3 Wheat. 246, 323, 324; Rose v. Himley, 4 Cr. 441; the Divina Pastora, 4 Wheat. 52, and note 65; the Nuestra Señora de la Caridad, 4 Wheat. 497.) Story's Const. § 1566. What is the 189. "HE SHALL TAKE CARE THAT THE LAWS BE FAITHFULLY duty of the EXECUTED."-That is, to execute the laws to the extent of the defensive means placed in his hands. 9 Op. 524. President to see the laws exe cuted? 204. 174, 175. The Supreme Court of the United States cannot enjoin the President from seeing the laws faithfully executed. Mississippi v. Johnson, 4 Wallace, 498. Where an executive officer is clothed with discretion, the act to be done is executive, and beyond judi cial control. (Marbury v. Madison, 1 Cranch, 137; Kendall, Postmaster-General v. Stockton and Stokes, 12 Pet. 527.) Id.; The State v. The Southern P. R. R. 24 Tex. 117; Paschal's Annotated Digest, note 191. It is of the very essence of executive power, that it should always and everywhere be capable of, and be in, full exercise. There shall be no cessation-no interval of time when there may be an incapacity of action. Stanbery on filling vacancies, 8, 9. Under this power the governor (the President) ought to order suits in all cases where the laws are infracted and the rights of the government invaded. The State v. Delesdenier, 7 Tex. 95. 190. "SHALL COMMISSION ALL OFFICERS."-This seems to be 185, 185. more properly connected with the appointing of officers; but it is not one and the same thing. Marbury v. Madison, 1 Cr. 156-7; Story's Const. § 1548. dent's As incident to this power, he has authority to appoint commis- What are sioners and agents to make investigations required by acts or reso- the Presilutions of Congress; but cannot pay them, except from an appro- powers? priation for that purpose. 4 Opin. 248. It is not, in general, judicious for him, in the exercise of this power, to interfere in the functions of subordinate officers, further than to remove them for any neglect or abuse of their official trust. 3 Id. 287. But where combinations exist among the citizens of one of the States, to obstruct or defeat the execution of acts of Congress, and the question of the constitutionality of such laws is made in suits against a marshal of the United States, the President is justified in assuming his defense on behalf of the United States. 6 Id. 220, 500. The various acts of President Lincoln, in calling out the militia, organizing an army, and proclaiming a blockade of the Southern ports, in April, 1861, for the suppression of the rebellion, were approved, ratified, and confirmed by a joint resolution of Congress, in August, 1861. The President was the judge of his powers, and the court is bound by his acts. The Prize Cases, 2 Black, 666. ment ? SEC. IV. The President, Vice-President, and all Impeachcivil officers of the United States, shall be removed Who may be from office on impeachment for, and conviction of, impeached? treason, bribery, or other high crimes and misde meanors. 191. "CIVIL OFFICERS."-The remedy is strictly confined to 27, 39, 40. civil officers, in contradistinction to military. Story's Const. § 690, 691. officers? A senator or representative in Congress is not such civil officer. Who are Blount's Trial, 22, 102; Wh. St. Tr. 260, 316; 1 Story's Const. civil §793, 802. See 2d vol. Senate Journal (1797), 383-393. Nor is a territorial judge, not being a constitutional, but a legislative office only. 3 Opin. 409. But United States circuit and district judges are subject to impeachment. Peck's Trial, 20, and Chase's Trial. No previous statute is necessary to authorize an impeachment Where must for any official misconduct. What are, and what are not high we look for crimes and misdemeanors, is to be ascertained by a recurrence to the rules of the common law. 1 Story's Const. § 799. Peck's Trial, 499. For the rules of proceedings prescribed in cases of impeachment, see Peck's Trial, 56–9. definitions? Blount was expelled as a senator for a "high misdemeanor;' but the Senate refused to consider him a "civil officer," liable to "impeachment." See 2 Senate Journal, pp. 383-397. The "high misdemeanor," was not in the violation of any particular statute. What is an "An impeachment before the Lords by the Commons in Great impeachment by Britain, in Parliament, is a prosecution of the already known and the common established law, and has been frequently put in practice, being a law? 27, 39, 177. presentment to the most high and supreme court of criminal jurisdiction by the most solemn grand inquest of the whole kingdom " (4 Blackstone, 259); and when this most high and supreme court of criminal jurisdiction is assembled for the trial of a person impeached for a violation of the "already known and established law," it must proceed according to the known and established law, for although "the trial must vary in external ceremony, it differs not in essentials from criminal prosecutions before inferior courts. The same rules of evidence, the same legal notions of crimes and punishments prevail." (Woodeson, vol. 2, 611.) Minority report on the Impeachment of the President, 62. See 2 Chase's Trial, 137; Rawle's Const. 204. 192. "TREASON AND BRIBERY."-TREASON against the United States shall consist only in levying war against them or in adhering to their enemies, giving them aid and comfort. Art. 3, sec. 3. The treason must be against the United States. (Rawle's Const. ch. 22, p. 215.) Story's Const. § 802. BRIBERY is the offense of taking any undue reward by a judge, juror, or other person concerned in the administration of justice, or by a public officer, to influence his behavior in his office, (4 Black. Com. 139, and Chitty's note; 3 Inst. 145; 4 Burr, 2494; 1 Russel on Crimes, 154.) Burrill's Law Dic., BRIBERY. For this definition resort must necessarily be had to the common law. Story's Const. § 796; Peck's Trial. No other crimes than bribery and treason can regularly be inquired into as ground of impeachment. Rawle's Const. ch. 22, p. 215. But neither this point, nor whether any other than a publicofficer can be impeached, has been authoritatively settled. Story's Const. § 802, 803. 193. "HIGH CRIMES."-Crime or misdemeaner is an act committed, or omitted, in violation of a public law, either forbidding or commanding it. 4 Bl. Com. 5. This general definition comprehends both crimes and misdemeanors. Id. Crime, in a narrower sense, is distinguished from a misdemeanor, as being an offense of a deeper and more atrocious dye, and usually amounting to a felony. 4 Bl. Com. 5; Burrill's Law Dic, CRIME; Minority report on the Impeachment of the President, 61. A breach or violation of some public right or duty to a whole community, considered as a community, in its social aggregate capacity; as distinguished from civil injury. 4 Bl. 5. The violation of a right, when considered in reference to the evil tendency of such violation, as regards the community at large. 4 Stephen's Com. 55; 1 Id. 127, 128. In this sense it includes misdemeanors. Burrill's Law Dic., CRIME. 194. "MISDEMEANOR is a less heinous species of crime; an indictable offense not amounting to felony. 4 Bl. Com. by Chitty, 5, note; Burrill's Law Dic., MISDEMEANOR. Properly speaking, crime and misdemeanor are synonymous. Id.; 4 Steph. Com. 57. In general, a misdemeanor is used in contradistinction to felony, and comprehends all indictable offenses which do not amount to felony; as perjury, battery, libels, conspiracies, attempts and so |