charge the duties of his office; and, therefore, that it will be incumbent upon congress to declare what officer shall act as president until the disability be removed, or a president be elected. It is contended on the other band, that the incumbent cannot be interfered with until after impeachment by the house and conviction by the senate. That during his trial on the impeachment he is to be left in the possession and exercise of all the powers incident to the office of president-and powers which he is charged by the house with abusing-both as the executive head of the nation, and as the commander-in-chief of the army and navy of the United States. That however dangerous it may be to leave in the hands of the individual incumbent, such powers during his trial, it is the fault of the constitution and must be submitted to by the nation.

$532. By the constitution of the United States the house of representatives, as a department of the government, has the sole power of impeachment; and the senate has the sole power to try all impeachments; and congress has power to make all laws which shall be necessary and proper for carrying into execution such powers.3 The constitution, not having determined the manner in which the accused shall be brought before the bar of the senate for trial, or the manner in which the trial shall be conducted, has left it to congress to provide by law for the same. Congress can determine by law whether the presidential incumbent shall be arrested on impeachment by the house, and whether, on being arrested, he shall be deemed to be unable to discharge the powers and duties of his said office. The constitution has wisely left the question of inability to discharge the powers and duties of any given office, to be defined by the people of the nation, through their representatives in congress, that is, to be defined by law. What shall amount to a disqualification to discharge the high trusts of the presidential office, could with safety be committed to no other department of the government; for there is no other department so immediately from the people, and so directly responsible to them. There is no other department in which the sovereignty of the nation is so potentially and perpetually present as in the congress of the United States. There may be many causes of inability in the presidential incumbent; such as, sickness, insanity, Art. 1, § 2, cl. 5. 2 Art. 1, § 3, cl. 6. 3 Art. 1, § 8, cl. 18.

doubtful loyalty, and the like. Who except Congress, as the law-making power, can determine the nature and extent of such inability? The constitution contemplates that this inability may be of a temporary duration only, and may be removed; or it may be permanent, continuing until the election of a successor. Thus, congress may, by law, provide for the case of removal, death, resignation, or inability, both of the president and vice-president, declaring what officer shall act accordingly until the disability be removed, or a president shall be elected.1

S533. The provisions of the constitution upon this subject are plainly these: The president may be impeached by the house, and tried by the senate; and congress may provide by law, for the manner in which he shall be arraigned and tried before the bar of the senate. If in the opinion of congress the presidential incumbent is disqualified from properly discharging the duties of the presidential office while on trial before the senate, it can provide by law for such inability by declaring what officer shall act as president until such disability be removed, or a successor be elected. There can be no legal inability on the part of the president to discharge the duties of his office, except such as congress shall determine by law, and what shall amount to such constitutional inability necessarily rests in the judgment, and discretion of congress. Their decision and action in the premises is conclusive; and there is no appeal therefrom but to the people. The constitution provides that in case of disability, etc., congress may provide for the administration of the presidential powers and duties, and has not provided what shall be deemed to amount to such disability; but has given to no other department than congress any powers in relation to the subject. The whole subject is by the constitution committed to congressional discretion, and congress has full power to declare by law, what shall amount to disqualification, and who shall administer during the continuance of such inability, etc.

$534. It has been contended by some that the fourth section of the second article of the constitution, should be understood to read that the president, vice president and all civil officers of the United States shall be removed from office on impeachment for treason, bribery and other high crimes and misdemeanors; as well as for convic

1 Art. 2, 1, cl. 6.

tion of the same. But such, evidently, is not the legal import of that section. An officer is not to be presumed to be guilty of the offense for which he stands impeached, until he is found guilty, after a full trial before the trying court. He had no opportunity of appearing or being heard before the house. His accusers were alone heard there. Therefore, it cannot be supposed that the people intended to authorize the final removal from office of one, who was merely accused of a high offense, without giving him an opportunity of being heard in his own defense. It cannot be doubted, that under this provision of the constitution, the officer must be convicted as well as impeached before he can be permanently removed from his office. But while the incumbent cannot be removed until convicted, he may be, under a temporary inability created or declared by law to discharge the powers and duties of the presidential officer during his trial before the bar of the senate. It is not only within the province, but it is likewise the duty, of congress to provide by law for the discharge of the presidential power and duties during the occurrence of such a possible event.

CHAPTER XVII.

OF THE JUDICIAL POWERS.

$535. By the express provisions of the constitution of the United States, the judicial authority of the nation is vested in one supreme court, and in such inferior courts as congress shall establish. The scope of this provision in its administrative effect upon the nation, depends upon a just definition of the term "judicial power." As used in the constitution of the United States, it is to have only its technical signification, distinguishing it from the legislative and executive departments of the government. As a judicial power, its whole province is to be found in ascertaining and applying the law according to the intent and purpose for which it was made. The law being a rule of civil conduct prescribed by the legislative will of the nation, it becomes the duty of the judiciary to ascertain that will as applicable to the case properly before the court, and to declare the requirements of the law therein, by

1 Art. 3, § 1, of the Const. U. S.

its order, judgment or decree. Thus, it is the province of the legislature, as the term implies, to give to society or to the members thereof, the laws by which they are required to regulate their civil conduct. It is the province of the judiciary to ascertain that legislative intent, and by appropriate orders, judgments or decrees, to apply the law according to such ascertained purpose and effect. The maxim, jus dicere, non jus dare, express with forcible brevity, the province of the judge. The function of the judge only begins where that of the legislator ends. He has no mission to perform where there is no law to be interpreted and applied. Until the legislator has spoken, and there is action or proposed action on the part of the subject, the judicial power must remain dormant. Not so with the legislative department. It is required to precede every other. It is necessarily rooted and grounded in ever-present sovereignty; not only providing for its own orderly existence and action, but for the orderly existence and action of every other department. Under the constitution of the United States, it is intrusted with the creation and organization of the national courts. It can construct and reconstruct them at pleasure. It can, by law, prescribe the rules by which the judges are to be governed in the administration of justice. It can determine what shall be the qualifications of the judges, and for what causes they may be removed by impeach

ment.

S536. But the legislative, executive and judicial departments of the general government are created by the constitution of the United States; which, in all that it directs in respect to each, is the supreme law; and each department in its administration, is limited to the authority conferred by that instrument. That is, the legislative department can exercise its powers only in respect to such subjects, as by the terms of the constitution, are committed to its jurisdiction; and to the making of such laws as are necessary and proper for carrying into effect the will of the nation as expressed or implied in that instrument. In enacting laws, congress must keep within the range of subjects committed to its jurisdiction; and must authorize or require nothing to be done which will conflict with any of the positive provisions of the constitution. But keeping within these limitations and restrictions, congress can exercise the legislative discretion of the nation; and

the judiciary are bound to interpret and apply, in good faith, the laws enacted by congress, according to the ascertained legislative intent thereof. Thus, while the judicial powers of the government are distinct from, and independent of, the legislative and executive departments, they can be exercised only in accordance with rules prescribed by law, for the ascertainment and application of the legislative will of the nation to affairs subject to its general jurisdiction.

S537. The judges of the supreme and inferior courts are nominated, and with the advice and consent of the senate, appointed by the president of the United States; and they hold their offices during good behavior.' During the continuance of the office to which they are appointed, they cannot be removed except upon impeachment and conviction of high crimes and misdemeanors. The object of this provision is to secure to the court that independence so essential to a just and faithful discharge of judicial duties. In many cases their jurisdiction is ascertained and secured by the constitution itself, in which respect the judicial powers are coordinate with the legislative. But in all other cases, their jurisdiction is fixed by law, which necessarily subordinates them in their jurisdiction to the legislative will. It has been questioned whether, after the courts have been organized by law, and the judges have been appointed and their salaries have been fixed, congress has the constitutional authority to repeal or modify the law in such a manner as to work a removal of a judge from office. In 1801, congress passed an act reorganizing the judiciary and authorizing the appointment of sixteen new judges with suitable salaries, to hold the circuit courts of the United States in the different circuits created by the act.2 Under this act the circuit judges were appointed and performed their duties until the next year, when the courts established by the act were abolished, without making any provision for paying their salaries or continuing their offices. It was contended by some that inasmuch as such act abolishing these courts, in effect removed these judges from office, that it was in violation of the constitution which provides, that they shall hold their office during good behavior. Judge STORY was of the opinion that such act could not be reconciled with the terms or

Art. 2, 32, cl. 2 of Const. U. S.; and Art. 3, § 1, of same. 2 Act of 1801, ch. 75.

3 Act of 1802, ch. 8.