CHAPTER XXIV.

LEGISLATIVE POWERS. - SPECIAL.

§ 402. BESIDES the duties specially assigned to Congress in the different sections of the first Article, others are so assigned in the subsequent Articles. By Article II., "Congress may determine the time of choosing the electors" of President and Vice-President in the States, "and the day on which they shall give their votes," in their respective States, "which day shall be the same throughout the United States." They "may by law provide for the case of removal, death, resignation, or inability both of the President and Vice-President, declaring what officer shall then act as President; and such officer shall act accordingly, until the disability be removed, or a President shall be elected." But the office shall first devolve on the Vice-President, in case of such vacancy in the office of President.

§ 403. The duty of "providing" for an exigency necessarily involves the duty of ascertaining when it has occurred. Removal can be only by impeachment and conviction. Resigna

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tion or refusal, Congress have decided, can be proved only by writing, duly signed and delivered. But "inability," — what is that? If it is moral, it might perhaps be ascertained by impeachment and conviction before the Senate, and become removal or disqualification by judgment of law. If it is physical or intellectual, how is it to be dealt with? Is absence from the United States, voluntary or involuntary, a moral or physical inability to discharge the duties of the office? A similar difficulty might arise in ascertaining when the disability is removed. Congress has not yet provided for these exigencies beyond the accession of the President of the Senate, and Speaker of the House of Representatives respectively, in succession after the Vice-President, and then a new election of President.1

§ 404. By the 2d section of this Article, it would appear, that although the executive power is vested in the President, and he is bound to "take care that the laws be faithfully executed," yet he can appoint no officers to assist him in this duty, but such as are established by law; nor then even, without the advice and consent of the Senate, if in session, except in case of "such inferior officers" as Congress may authorize to be appointed by him alone, or by the courts of law or the heads of departments. Who are "such inferior officers" neither the Constitution nor any acts of the government has yet settled.

1 Some additional provisions have more recently been made.

Doubtless they do not include either of those by whom "such inferior officers" may be appointed; but it would be difficult to establish an exclusion of any other officers whose appointment should be authorized in that manner by law.

§ 405. By Article III., "Congress may, from time to time, ordain and establish . . . inferior courts;" and, by section 8 of Article I., they have power "to constitute tribunals inferior to the Supreme Court." They are also authorized to regulate the appellate jurisdiction of the Supreme Court, as conferred by the Constitution, and to make "exceptions" from it; which "exceptions," as the whole "judicial power of the United States" is vested in the Supreme and inferior courts, must inure to the inferior courts. They have also, by the 3d section of Article III., express "power to declare the punishment of treason," — which they must necessarily have done in order to carry "into execution . . . the powers vested in the government," if this special provision had not been made.

§ 406. The preceding Articles are mainly devoted to the organization, jurisdiction, and mode of operation of the three departments of the government; and the second and third, being upon the executive and judicial departments, include, incidentally only, the legislative powers above specified. The subsequent Articles provide certain rules, regulations, orders, and precepts, on sundry important miscellaneous sub

jects; but incidentally either delegate particular legislative powers expressly, or develop some general powers necessarily devolved or elsewhere conferred upon Congress, as the legislative department of the government. The first section of the fourth Article is, "Full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State. And the Congress may, by general laws, prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof."

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$407. The faith and credit" of a record is its efficacy in establishing the fact which it asserts. The "faith and credit" of the "acts and proceedings" recorded, is their force and effect in relation to the subject-matter so acted upon. Evidence is either prima facie only, and impeachable by superior evidence, or absolutely conclusive and unimpeachable. "Full faith and credit" is that for which it was made, what it has by law, when and where it was authorized and required to be made. Such a degree of credit, the "public acts, records, and judicial proceedings" of every State shall have in every other State, by constitutional right, independent of any legislation on the subject.

§ 408. But Congress may prescribe the manner of proving them, "and the effect thereof." Under this authority, Congress have, by Act of May 26, 1790, prescribed the mode of authenti

cating the legislative Acts of a State, and the form of attestation for judicial records; and they provide that such judicial records shall have the same faith and credit, "in every court within the United States, as they have in the courts of the State from whence they were taken," but say not one word about "the effect thereof." The "effect thereof," like its "faith and credit," may apply to it as evidence of the fact recorded, or to the force and efficacy of the fact itself. Without saying whether it alludes to one or the other, or both of these respects, the Constitution says it shall have "full faith and credit;." and the statute reiterates that this is the "same faith and credit" it has in the courts of the State.

§ 409. It is well known, that, in a State where a judgment at law is rendered, the authorized record of that judgment has "faith and credit" beyond the simple fact that such a judgment was rendered. The judgment itself has "faith and credit" as a legal and final determination of the right in controversy, unless it is open to further proceedings under the law by which it was authorized. To this extent, "faith and credit" is the "effect thereof," and "credit" and "effect" are identical. But if these terms are identical, then "full faith and credit" must include all ee the effect" it has where it was made; and this by constitutional right. If, notwithstanding all

1 Mills v. Duryee, 7 Cr. Rep., 481; and Hampton v. McConnel, 3 Wheat. R., 234.