as, if he had a discretion whether to perform it or not, and constitutes himself a judicial officer, to judge of the constitutionality of a law, when his office is merely ministerial, to execute it. For, by the constitution, whatever laws Congress see fit to enact, it is his duty to execute. To neglect it wilfully, is an assumption of authority, a denial of the wisdom of the general legislature, and a contempt of their authority. And in all cases where his assistance is required to execute the laws, if he withholds it, the laws virtually become so far annulled, and Congress is deprived of the power of legislation. For, of what avail are laws which are not enforced?

The same remark applies to treaties. Under the constitution, the President has no discretion in relation to the observance and enforcement of them. The constitution requires, that he should execute the laws; it also makes treaties, &c. the supreme law of the land. Treaties consequently are laws, which he must execute, and this can be done in no other way, than enforcing their observance. The assumption of a dispensing power, in this case, may be attended with worse conquences than a refusal to execute a law of congress. For, a refusal to execute or observe a treaty, made with a powerful nation, may be the means of involving the country in a ruinous war, the consequence of which possibly might be the dissolution of the Union, by the dismemberment or the separation of the states.

If he should in like manner refuse to observe a treaty made with a nation or tribe of men, too inconsiderable to be able to redress its own wrongs, he may be the means of stamping on the national character a mark of dishonor, which, after the wrong is once done, and consequently has become irremediable, no lapse of time will ever be able to efface; but which will remain a source of regret and mortification to future generations, as a proof of the breach of faith of their ancestors. Further, would there not be just reason to apprehend, that, it might bring upon the whole nation, if they should sanction such an act in their ruler, the punishment of the oppressor, the curse of those who remove their neighbor's landmark, the judg ment upon those who unrighteously 'slay and afterwards take possession?' See 1 Kings, chap xxi.

The wilful perversion of a legitimate authority, however difficult it might be to establish it by proof, would also be a misdemeanor. Let it be supposed, for example, that there is a vacancy in a public office, of which the appointment is vested in the President, provided it be done by and with the advice and consent of the senate, if in session. Suppose the President postpones the nomination until after the recess of the senate, in order to usurp to himself the unqualified power of appointment, is not this in direct violation of the constitution; and, if it is done wilfully and not through mistake of his power, is it not an impeachable offence? The case would undoubtedly be highly aggravated, if the President should appoint, during the recess of the senate, a person who had previously been nominated by him to the senate, and whose nomination had been expressly negatived by them.

The appointment of certain officers, which it would be superfluous to enumerate, is vested in the President alone, by the laws of the United States, made by virtue of an article in the constitution. Many, if not all such, are removable by the President at discretion. This provision, generally speaking, is conducive to the general interest, because, for many reasons besides malversation in office, a public officer may have lost the confidence of the President, or of the public, and may also cease to be qualified to discharge its duties. Besides, as the President is considered in some measure accountable for the neglect or failure of duty of those, whom he either appoints to office, or retains in it, it would seem no more than proper, that he should have the privilege of selecting those persons in whom he is to confide. Further, if the President were considered as having no right to remove a public officer, against whom no default could be proved, the tenure of the office would be changed. It would no longer be during the discretion of the President, but during good behavior. Great latitude of removal and appointment, therefore, should be permitted. Yet, it is obvious, very great abuses may be occasioned, if such an authority may be exercised arbitrarily and corruptly, without animadversion. Suppose, for example, the President should see fit to remove an officer, without assigning any reason; here, it can never be a proper subject of inquiry,

whether the President had or had not a good and sufficient reason for such a measure; because the President is under no obligation to assign reasons for the exercise of this discretion; and, if any sufficient cause for the removal can be supposed, without impeaching the officer's character, which ought not to be done on mere surmise, such cause in fairness should be taken to be the true one. But, if the President should see fit to assign as a reason, any cause wholly unfounded in fact, and which he had no good reason to believe, or, which was perfectly consistent with a faithful discharge of the officer's duty, and especially, if it were any cause, which would have a tendency to reduce all officers, who are removeable at the President's discretion, to become his mere servile instruments, as to all acts, whatever, as well without, as within the sphere of their official duties, and whether such acts are right or. wrong, such measure would deserve the severest reprehension. Because, it would be a tyrannical abuse of the discretion, intrusted to him by law for the public convenience, to the gratification of his ill will or arbitrary disposition. So, though the removal of one or more particular individuals from office, without assigning any reasons, might possibly be free from any in-. vidious remark, however unexceptionable the characters of such persons might be ; yet, if any President should, as soon as conveniently could be done, after entering upon his office as President, dismiss from all offices holden during his pleasure, all the former incumbents, and replace them immediately with such persons as had been most active in procuring his election, this also should be a sufficient cause for an impeachment; because it tends to produce, not only secret and indirect, but open and palpable bribery and corruption, in bargains and: stipulations for offices, not in consideration of services done for the public, but for services rendered and to be rendered to advance the interests of a party or faction; all of which is nothing less than selling the people, and pocketing the price. If such behavior in office is not liable to impeachment, of what avail is it, that it is regarded with disgust and contempt by every man of integrity.

Yet, it must be an extreme case, that would render it expedient to impeach the President of the United States. The

great delay and consequently expense, which must attend so important a trial before so numerous a tribunal as the senate, prosecuted by the still more numerous house of representatives; the neglect or suspension of other public business during the trial, which would probably be the consequence, would hardly be compensated by the removal of the President from his office, the term of which is only four years, and more or less of which must be consumed in his administration previous to the impeachment, as well as afterwards during the trial. To these may be added the danger, that the course of justice may be impeded by strong collisions of opinion between political parties, which might lead to civil commotions and disturbances, the final issue of which, it might be impossible to foresee. In most cases, therefore, it would be best to trust to the discernment and influence of the more intelligent of the citizens, at the presidential elections, to take care that a person who had once been guilty of malversation in this important office, should not have a second opportunity; and if his misdemeanor amounted to a high crime, as treason, or bribery, to make it the subject of an indictment, where the trial will be speedy, and on conviction, the court will award a suitable punishment. But if the default originates from mere incapacity, that is, a want of knowledge, experience, or natural abilities, let the people by their electors, at the regular expiration of his official term, select some other individual better qualified for the discharge of the duties of this high office, and peaceably restore the former incumbent to that station in private life, which is so graceful to honest intentions, when disqualified for those of more responsibility, by the possession of very limited abilities.

But nothing can be more unbecoming a worthy citizen, than to make any charges of this kind, against the principal executive officer of the United States, upon mere surmise or suspicion, having no other foundation, than, that the President has exercised his discretion in certain cases, and that his motives are unknown. For, in all governments, power must be confided somewhere; when so confided, it is liable to abuse; otherwise, there would be no confidence. If then the possi

bility of an abuse, is a sufficient foundation to infer its actual existence, who can be secure from suspicion, from calumny, or even from conviction on an impeachment?

DIVISION IV. Of the Judiciary.

1. General remarks. 2. Of the original jurisdiction of the Supreme Court of the United States. 3. Of its appellate jurisdiction. 4. Of the respect which ought to be paid to its decisions. 5. Passage from an opinion of Ch. Jus. Jay.

1. General remarks. The judicial department of every government, is the rightful expositor of its laws, emphatically of its supreme law. 2 Pet. 524.

In every well constituted government, it has been observed, the judicial power should be coextensive with the legislative, and must be capable of deciding every judicial question which grows out of the constitution and laws. See 2 Wheat. 397. 6 Wheat. 264.

Accordingly, under the constitution of the United States, the jurisdiction of the judiciary is coextensive with the constitution, laws and treaties of the United Sates, when the subject is submitted to it in the form prescribed by law. 9 Wheat. 738. See 5 Peters, 20. 6 Wheat. 264. For that power is capable of acting, only, when the subject is thus presented. Ibid. So, under the constitution, the courts of the Union have jurisdiction also of all controversies, between two or more states, between a state and citizens of another state, and between a state and foreign states, citizens or subjects. 6 Wheat. 264. In the former class of cases, the jurisdiction depends on the character of the cause; in the latter on the character of the parties. For, whatever may be the subject of the controversy, these parties have a constitutional right to come into the courts of the Union. 6 Wheat. 264.

Whenever, therefore, the correct decision of a case either in law or equity, depends on the construction either of the Constitution, or the laws of the United States, or of any treaty made under their authority, it falls within the jurisdiction of the national judiciary.