the courts of law, heads of departments, and foreign ministers, who are the only others mentioned. 4. He has, by legislative construction or grant, the exclusive power of removal, which places at his control all officers appointed by himself, or others holding at his will. 5. He shall commission all the officers of the United States. 6. He can fill all vacancies that happen during the recess of the Senate, by granting commissions, which shall expire at the end of their next session.

§ 518. A vacancy is said to "happen," within the meaning of this section, when he removes the incumbent. If so, he may take the appointment of all the executive officers to himself, at any recess of the Senate; and, if no nominee of his is confirmed by the Senate during their next session, a vacancy will again "happen" on the adjournment of the Senate, which he may again fill in the same manner.

519. This construction would place all the officers, not permanent by the Constitution, as entirely at the disposal of the President as if no qualification of the executive power had been attempted by the Constitution. Such a consummation would, of course, be totally at variance with the designs and purposes of the American people, by whom it was made. If freely used, by a bad man, for personal or party aggrandizement, such a power would be one of the most tremendous engines of mischief that can be con

ceived under our government. What practical check upon such a use of the power is now in operation, is not perceived. Of those that might be applied, in case the necessity should arise, these three are the most obvious:

1. To alter the legislative Acts which place the power of removal exclusively in the President. 2. To provide for the permanent session of the Senate.

3. To exercise the power of impeachment for malfeasance in office.*

Since this work was sent to the press, the first of these alternatives has been adopted by Congress.

520. BY Article III., the judicial department of the government is composed of "one Supreme Court, and such inferior courts as Congress may, from time to time, ordain and establish." A Supreme Court is ordained by the Constitution; and, by Article II., section 2, it is expressly required that the President "shall nominate, and by and with the advice of the Senate shall appoint, judges of the Supreme Court." All other courts are inferior to the Supreme Court, and are such as Congress may see fit to create; and the judges are appointed in the same manner. "The judges, both of the Supreme and inferior courts, shall hold their offices during good behavior, and shall, at stated times, receive for their services a compensation which shall not be diminished during their continuance in office."

§ 521. Nevertheless, it has been held by Congress, that, where courts are established only by law, they may be abolished by a repeal of the

law; and thus the judges be deprived of their offices and of their compensation, notwithstanding the Constitution says the offices shall be held during good behavior, and the compensation not diminished while they are held. This construction has been followed in most of the States, in regard to such courts as were established by legislative Acts, and not by their constitutions. This department is co-ordinate with the other two. Whatsoever necessary and proper laws the first may make, and the second may take care to have faithfully executed, this department may administer judicially, in all cases legally brought

before them.

THE JUDICIAL POWERS.

§ 522. The Constitution, after providing for the organization of the legislative and executive departments, vests in them, respectively, all the legislative and executive powers of the government; and proceeds to point out, in terms more or less general and particular, certain things that they may do, amounting summarily, as to the first, to power to make all laws necessary and proper for executing the Constitution; and, as to the second, to power to execute all laws so made, and all other laws of the land. So, in regard to this department, after having provided for its organization as above, it proceeds to vest in it the judicial power, in terms equally broad and comprehensive. The judicial power of the

United States shall be vested" in its courts as above organized. These are the same words of investment that are used in regard to the other departments, and have never been understood to require an additional act of investment, and no authority is provided to perform such an act, but to be of themselves an actual investment; and they have always been so considered and acted upon, at least by both of the other departments in regard to themselves.1

§ 523. The whole duty of the courts expressly assigned in the Constitution is to exercise the judicial power; and they have no other. Consequently, the Constitution proceeds at once, in section 2, to describe and define the extent of that power. "The judicial power shall extend to all cases in law and equity, arising under this Constitution, the laws of the United States, and the treaties made, or which shall be made, under their authority." This is a broad and general statement of the judicial power of the government; and it will be seen in the sequel, that, like the general statement of the legislative power and of the executive power, it comprehends and covers all the items and particulars elsewhere mentioned in the Constitution, and a great deal more. "Judicial" relates to justice; and "judicial power" is to distribute and administer jus

1 By Article II., section 2, "The President shall be the commander-inchief of the army and navy of the United States." Who shall make him so, if the Constitution does not? and who shall vest legislative, executive, or judicial power, if the Constitution does not?