Page images


(6) Some ambiguity of expression has found its way into this clause. If the relative " which refers to the word “appointments,” that word is referred to in a sense rather different from that in which it had been used. It is used to signify the act of placing a man in office, and referred to as signifying the office itself. The relative may, however, be construed as referring to the word “offices,” which must be understood although not expressed. The Constitution then declares that all offices of the United States, except in cases where the Constitution may otherwise provide, shall be established by law. U. S. v. Maurice, 2 Brock. 96.

An office is a public charge or employment, and he who performs the duties of the office is an officer. U. S. v, Maurice, 2 Brock. 96.

Although an office is an employment, it does not follow that every employment is an office. A man may certainly be employed under a contract, express or implied, to do an act or perform a service without becoming an officer. U. S. v. Maurice, 2 Brock. 96.

If a duty is a continuing one, which is defined by rules prescribed by the Government, and not by contract, which an individual is appointed by Government to perform, who enters on the duties appertaining to his station, without any contract defining them—if those duties continue, though the person be changed—it is very difficult to distinguish such a charge or employment from an office, or the person who performs the duties, from an officer. U. S. v. Maurice, 2 Brock. 96.

The mere direction that a thing shall be done, without prescribing the mode of doing it, can not fairly be construed into the establishment of an office, for the purpose of the object can be effected without one. U.S. v. Maurice, 2 Brock. 96. All offices except in cases where the Constitution itself


otherwise provide, must be established by law. U. S. v. Maurice, 2 Brock. 96.

A State magistrate who cummits offenders against the criminal laws of the United States renders a voluntary service, and in an enlarged sense is pro hac vice an officer, but not one within the meaning of this clause. He is an officer of the State, and not a Federal officer. Ex parte Gist, 26 Ala. 156.

Congress can not by law designate the person to fill an office under the Government. U. S. v. Ferreira, 13 How. 40.

The heads of departments can make an appointment to office only in those cases where they have been authorized so to do by some act of Congress. U. S. v. Maurice, 2 Brock. 96.

Some point of time must be taken when the power of the executive over an officer not removable at his will must cease. That point of time must

[ocr errors]

be when the constitutional power of appointment has been exercised, and this power has been exercised when the last act required from the person possessing the power has been performed. This last act is the signature of the commission. Marbury v. Madison, i Cranch, 137.

Neither the transmission of the commission to the appointee, nor an acceptance thereof, is necessary to complete his right. Marbury v. Madison, 1 Cranch, 137.

A formal delivery of the commission to the appointee is not essential to the validity of the commission. Marbury v. Madison, i Cranch, 137.

The appointing power designated in the latter part of the section was no doubt intended to be exercised by the department of the Government to which the officer to be appointed most appropriately belonged. The appointment of clerks of court properly belongs to courts of law, and that a clerk is one of the inferior officers contemplated by this provision of the Constitution can not be questioned. Ex parte Hennen, 13 Pet. 230.

The President can not make a temporary appointment in a recess, if the Senate was in session when or since the vacancy occurred. Case of District Attorney, 16 A. L. Reg. 786.

Congress can not extend an existing term in an office in such manner as to prolong absolutely or conditionally the tenure of a present incumbent. This can not be done otherwise than by a renomination or new appointment by the President, and concurrence of the Senate as to the additional period. Case of District Attorney, 16 A. L. Reg. 786.

Congress may vest the appointment of a commissioner in the Circuit Court, although his power is of a judicial nature. Ex parte H. Robinson, 6 McLean, 355.

The President, in his discretion, may remove any officer whether civil or military, unless Congress shall have given some other duration to the office. Gratiot v. U. S. i Ct. Cl. 258.

A civil officer has a right to resign his office at pleasure, and it is not in the power of the President to compel him to remain in office. It is only necessary that the resignation should be received to take effect, and this does not depend on the acceptance or rejection of the resignation by the President. U. S. v. Wright, 1 McLean, 509.

It has become the settled and well understood construction of the Constitution that the power to remove officers appointed by the President and Senate is vested in the President alone. Ex parte Hennen, 13 Pet. 230; U.S. v. Avery, 1 Deady, 204.

All inferior officers appointed by authority of law, under the President, or the courts of law, or the heads of departments, hold their office at the

discretion of the appointing power. Ex parte Hennen, 13 Pet. 230; U.S. V. Avery, i Deady, 204.

A removal from office may be either express—that is, by a notification by order of the President that an officer is removed- or implied by the appointment of another person to the same office. But in either case the removal is not completely effected till notice is actually received by the person removed. Bowerbank v. Morris, Wall. Sr. 118.

3. The President shall have power 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.

This power is not confined to vacancies which may happen in offices created by law. U. S. v. Maurice, 2 Brock. 96.


1. He shall, from time to time, give to the Congress information of the state of the Union, and recommend to their consideration such measures as he shall judge necessary and expedient; he may, on extraordinary occasions, convene both houses, or either 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.

The President is not authorized to execute the laws himself, or through agents or officers civil or military appointed by himself, but he is to take care that they be faithfully carried into execution, as they are expounded and adjudged by the co-ordinate branch of the Government to which that duty is assigned. Ex parte John Merryman, Taney, 246.

The President is to take care that the laws are faithfully executed, but only by such means as the Constitution and laws themselves have given him power to employ, that is, by causing proceedings to be instituted according to law against those who violate the law, and by employing whatever force may be necessary to overcome all resistance that is offered to their execution. But he is to execute the laws, not to make or change them. If their more perfect execution requires additional laws, the President is wholly incompetent to provide this. It can be done by legislation only. So the oath to preserve and defend the Constitution gives the President no additional powers. He can not adopt all imaginable means that he may deem expedient for this purpose, but he is to defend it only by the use of such powers as the instrument itself and the laws enacted under it confer upon him. In re Nicholas Kemp, 16 Wis. 359.


1. The President, Vice-president, and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.

The power of impeachment extends to a person who is charged with the commission of a high crime while he was a civil officer and acting in his official character, although he ceased to be such officer before the finding of articles of impeachment. Impeachment of Wm. W. Belknap.

A. Senator who has been expelled from his seat is not, after such expulsion, liable to impeachment for acts done while he was a Senator. Impeachment of Wm. Blount, Whart. St. Tr. 250.



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. 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.

Judicial Power. By the term “judicial power” is meant that power with which the courts are to be clothed for the purpose of the trial and determining of causes. Ex parte Gist, 26 Ala, 156.

It is not sufficient to bring a matter under the judicial power that it involves the exercise of judgment upon law and facts. U. S. v. Ferreira, 13 How. 40; Murray v. Hoboken Co. 18 How. 272; Ex parte Gist, 26 Ala. 156.

The power to hear and pass upon the validity of a claim in an ex parte proceeding is not a judicial power. U. S. v. Ferreira, 13 How. 40; U. S. v. Todd, 13 How. 52; Humphreys v. U. S. 1 Dev. 204.

A provision requiring an assessor to impose a certain penalty, if he shall find a return false, does not confer judicial power, and is valid. Doll v. Evans, 15 I. R. R. 143.

Congress can not empower a commissioner to commit a person for an alleged contempt. Ex parte George Doll, 7 Phila. 595.


The auditing of the accounts of a receiver of public moneys may, in an enlarged sense, be a judicial act. So are all those administrative duties the performance of which involves an inquiry into the existence of facts and the application to them of rules of law. The adjustment of the balances due from accounting officers is not necessarily and without regard to the consent of Congress a judicial controversy. Murray v. Hoboken Co. 18 How. 272.

Congress can neither withdraw from judicial cognizance any matter which, from its nature, is the subject of a suit at the common law, or in equity, or in admiralty, nor bring under the judicial power a matter which, from its nature, is not the subject of judicial determination. At the same time, there are matters involving public rights which may be presented in such form that the judicial power is capable of acting upon them, and which are susceptible of judicial determination, but which Congress may or may not bring within the cognizance of the courts of the United States, as it may deem proper. Murray v. Hoboken Co. 18 How. 272.

Congress may consent to a second trial of a claim against the United States, although a judgment thereon has been rendered in favor of the Government. Nock v. U. S. 2 Ct. Cl. 451.

Neither the legislative nor the executive branches of the Government can assign to the judicial any duties but such as are properly judicial, and to be performed in a judicial manner. Hayburn's Case, 2 Dall. 409; U. S. v. Ferreira, 13 How. 40.

Whether a foreign country has become an independent State is a question for the treaty making power to determine, and can not be decided by the judicial tribunals. Kennett v. Chambers, 14 How. 38; Gelston v. Hoyt, 3 Wheat. 246; Rose v. Himely, 4 Cranch, 241.

« PreviousContinue »