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184.

But if the office first occur during the recess; or if it be created during the session and the President fail to appoint, he cannot appoint during the recess. The word “HAPPEN has relation to some casualty, not provided for by law. (The appointment of the Ministers to Ghent, in 1813; Senate Journal of 20th April, 1822; 2 Executive Journal, pp. 415, 500; 3 Executive Journal, 297.) Story's Const. § 1559.

He may fill, during a recess of the Senate, a vacancy that occurred by expiration of commission during a previous session. 1 Opin. 631. So he may fill a vacancy which has occurred by the expiration of a former temporary appointment, the Senate having neglected to act on a nomination to fill the office. 3 Id. 673; 4 Id. 523; 2 Id. 525; 4 Id. 36..

186. “WHICH SHALL EXPIRE AT THE END OF THE SESSION."- Length of The commission of an officer appointed during a recess, who is commisagerward nominated and rejected, is not thereby determined : it continues in force until the end of the next session, unless sooner determined by the President. 2 Opin. 336; 4 Id. 30.

It was upon this state of facts that Mr. Taney gave his opinion What means in 1832, and held on this point that "the vacancy did take place " which shall in the recess," and that “the former appointment continued expire at the during the session, and there was no vacancy until after they ad- session"! journed.” Stanbery on filling vacancies, 6.

If the President appoint and commission, both expire at the end of the next session. If he nominate the same person, and the Senate concur, it is a new appointment; and the bond given “to fill up the vacancy," does not apply to acts done under the new appointment and commission (United States v. Kirkpatrick, 9 Wheat. 720, 733, 734, 735.) Story's Const. § 1538.

Sec. III.-He shall, from time to time, give to the What are Congress information of the state of the Union, and enjoined recommend to their consideration such measures as he President? shall judge necessary and expedient. He may, on Further extraordinary occasions, convene both houses, or either powers ? of them; and in case of disagreement between them, with respect to the time of adjournment, he may arljourn then 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.

187. “GIVE INFORMATION OF THE STATE OF THE UNION, AND How are tho RECOMMEND," &c.—The opening messages of Presidents Washington Opinions and John Adams were delivered in person and answered. ton's Coud. Debates; Story's Const. 3d ed. 8 1561, note 1. See

1 Ben. given?

202.

Authorities. 1 Tuck. Bl. Com. 343–315; Federalist, No. 78; Rawle's Const. ch.

16, p. 171.

The practice was changed by President Jefferson; and ever since all messages have been delivered in writing. This "information of the state of the Union," embraces the reports of all the depart. ments, and altogether they constitute what are called the executive documents of the government, which are valuable repositories for statesmon and students. Calls are often made by Congress on the President and the heads of departments, for information on

special matters. Baro extra 188. “MAY CALL CONGRESS TOGETHER AND ADJOURN," &C.Bossions been

This power of convening Congress in extra session, has been frecalled ? quently exercised, both in regard to Congress and the Senate.

Never could the necessity of the power be more forcibly demon. strated than upon the occasion of its exercise by President Lincoln, in April, 1863. See Federalist, No. 78; Rawle's Const., ch. 16, p. 171.

It is not remembered that the occasion ever has arisen for tho

President to exercise the power to adjourn Congress. What does The power to receive AMBASSADORS AND OTHER PUBLIC MINIS"ambas

TERS carries along the power to receive consuls, and they never sadors and other public act without exequaturs. Rawle's Const. ch. 24, pp. 224. 225. ministers" Story's Const. § 1564-1572. See Federalist, No. 42; 1 Kent's embrace ?

Com. Lect. 2, pp. 40–44. Halleck's International Law, p. 242, 4; 180, 181, Fynn, British Consuls abroad, pp. 34-55; 2 Phillimore on Inter

national Law, § 246, 258.

In case of a revolution, or dismemberment of a pation, the judi. ciary cannot take notice of any new government or sovereignty, until it has been duly recognized by some other department of the government, to whom the power is constitutionally confided. (United States v. Palmer, 3 Wheat. 610, 634, 643; Hays v. Gelston, 3 Wheat. 246, 323, 324; Rose v. Himley, 4 Cr. 441; the Divina Pastora, 4 Wheat. 52, and note 65; the Nuestra Señora

de la Caridad, 4 Wheat. 497.) Story's Const. S 1566. What is the 189. “HE SHALL TAKE CARE THAT THE LAWS BE FAITHFULLY duty of the EXECUTED.”—That is, to execute the laws to the extent of the defen. President

sive means placed in his hands. 9 Op. 524. to see tho laws exe- The Supreme Court of the United States cannot enjoin the Pres. cuted ? ident from seeing the laws faithfully executed. Mississippi 5: 204.

Johnson, 4 Wallace, 498. Where an executive officer is clothed with discretion, the act to be done is executive, and beyond judicial control. (Marbury v. Madison, 1 Cranch, 137; Kendall

, Postmaster-General v. Stockton and Stokes, 12 Pet. 527.) Id.; The State v. The Southern P. R. R. 24 Tex. 117; Paschal's Annotated

Digest, note 191. 174, 175.

It is of the very essence of executive power, that it should always and everywhere be capable of, and be in, full exercise. There shall be po cessation-no interval of time when there may be an inca. pacity of action. Stanbery on filling vacancies, 8, 9.

Under this power the governor (the President) ought to order suits in all cases where the laws are infracted and the rights of the government invaded. The State v. Delesdenier, 7 Tex. 95.

ment?

190. “SIALL COMMISSION ALL OFFICERS.”—This seems to be 185, 185. more properly connected with the appointing of officers; but it is not one and the same thing. Marbury v. Madison, 1 Cr. 156–7; Story's Const. § 1548.

As incident to this power, he has authority to appoint commis. What are sioners and agents to make investigations required by acts or reso. the Presilutions of Congress; but cannot pay them, except from an appro. powers ? priation for that purpose. 4. Opin. 248. It is not, in general, judicious for him, in the exercise of this power, to interfere in the functions of subordinate officers, further than to remove them for any neglect or abuse of their official trust. 3 Id. 287. But where combinations exist among the citizens of one of the States, to obstruct or defeat the execution of acts of Congress, and the ques. tion of the constitutionality of such laws is made in suits against a marshal of the United States, the President is justified in assuming his defense on behalf of the United States. 6 Id. 220, 500.

The various acts of President Lincoln, in calling out the militia, organizing an army, and proclaiming a blockade of the Southern ports, in April, 1861, for the suppression of the rebellion, were approved, ratified, and confirmed by a joint resolution of Congress, in August, 1861. The President was the judge of his powers, and the court is bound by his acts. The Prize Cases, 2 Black, 666.

SEC. IV.-The President, Vice-President, and all Impeachcivil officers of the United States, shall be removed

Who may be from office on impeachment for, and conviction of, impeached ? treason, bribery, or other high crimes and misde- 310, 319-327. meanors.

191. “CIVIL OFFICERS.”—The remedy i: strictly confined to 27, 39, 40. civil officers, in contradistinction to military. Story's Const. $ 690, 691.

A senator or representative in Congress is not such civil officer. Who are Blount's Trial, 22, 102; Wh. St. Tr. 260, 316; 1 Story's Const. civil $ 793. 802. See 2d vol. Senate Journal (1797), 383–393. Nor is a territorial judge, not being a constitutional, but a legislative office

P, 181. only. 3 Opin. 409. But United States circuit and district judges 431. are subject to impeachment. Peck's Trial, 20, and Chase's Trial.

Nr previous statute is necessary to authorize an impeachment Where must for any official misconduct. What are, and what are not high we look for

detinitions ? crimes and misdemeanors, is to be ascertained by a recurrence to the rules of the common law. 1 Story's Const. § 799. Peck's Trial, 499. For the rules of proceedings prescribed in cases of impeachment, see Peck's Trial, 56–9.

Blount was expelled as a senator for a "high misdemeanor;" but the Senate refused to consider him a "civil officer," liable to "impeachment." See 2 Senate Journal, pp. 383-397. The “high misdemeanor," was not in the violation of any particular statute. What is an

** An impeachment before the Lords by the Commons in Great impeachBritain, in Parliament, is a prosecution of the already known and the commou established law, and has been frequently put in practice, being a law?

officers ?

For what

27, 89, 177. presentment to the most high and supreme court of criminal juris

diction by the most solemn grand inquest of the whole kingdom" (4 Blackstone, 259); and when this most high and supreme court of criminal jurisdiction is assembled for the trial of a person impeached for a violation of the “ already known and established law,” it must proceed according to the known and established law, for although “the trial must vary in external ceremony, it differs not in essentials from criminal prosecutions before inferior courts. The same rules of evidence, the same legal notions of crimes and punishments prevail.” (Woodeson, vol. 2, 611.) Minority report on the Impeachment of the President, 62. See 2 Chase's Trial, 137;

Rawle's Const. 204. What must 192. “ TREASON AND BRIBERY." --Treason against the Cnited the treason States shall consist only in levying war against them or in adlerbo against? ing to their enemies, giving them aid and comfort. Art. 3, sec. 3.

The treason must be against the United States. (Rawle's Const. ch. 22, p. 215) Story's Const. S 802.

BRIBERY is the offense of taking any undue reward by a judge, juror, or other person concerned in the administration of justice, or by a public officer, to influence his behavior in his office, (4 Black. Com. 139, and Chitty's note; 3 Inst. 145; 4 Burr, 2494; 1 Russel on Crimes, 15-1.) Burrill's Law Dic., BRIBERY.

For this definition resort must necessarily be had to the commust it be defined ?

mon law. Story's Const. § 796; Peck's Trial.

No other crimes than bribery and treason can regularly be inquired into as ground of impeachment. Rawle's Const. ch. 22, p. 215. But neither this point, nor whether any other than a public officer can be impeached, has been authoritatively settled. Story's

Const. S 802, 803. Define high

193. “High CRIMES."--Crime or misdemeaner is an act comcrimes? mitted, or omitted, in «iolation of a public law, either forbidding or 27, 89, 194, commanding it. 4 Bl. Com. 5. This general definition compre212, 228.

hends both crimes and misdemeanors. Id. Crime, in a narrower sense, is distinguished from a misdemeanor, as being an offense of a deeper and more atrocious dye, and usually amounting to a felony. 4 Bl. Com. 5; Burrill's Law Dic., CRIME; Minority report on the Impeachment of the President, 61. A breach or violation of some public right or duty to a whole community, considered as a community, in its social aggregate capacity; as distinguished from civil injury:

4 Bl. 5. The violation of a right, when considered in reference to the eril tendency of such violation, as regards the community at large. 4 Stephen's Com. 55; 1 Id. 127, 128. In this sense it includes mis.

demeanors. Burrill's Law Dic., CRIME. Define mis- 194. “MISDEMEANOR" is a less heinous species of crime; an demeanor! indictable offense not amounting to felony. 4 BI. Com. by Chitty, 5 27, 89, 192, note; Burrill's Law Dic., MISDEMEANOR. Properly speaking, crime 198.

and misdemeanor are synonymous. Id ; 4 Steph. Com. 57.

In general, a misdem anor is used in contradistinction to felony, and comprehends all indictable offenses which do not amount to felony; as perjury, battery, libels, conspiracies, attempts and sa

mea nor.

offense be against statute!

licitations 10 commit felonies, &c. 4 Bl. Com. notes 5, 6; Paschal's MisdeAduotated Digesc, 1638-1660.

The case of Judge Humphries, at the commencement of the rebelliol, was upon charges of disloyal acts and utterances, some of which clearly did not set forth offinses indictable by statute of the United States, and yet upon all those charges, with one exception only, he was convicted and removed. Report upon the Impeachment of the President, 52, 53. The minority say that they amounted to treason, because he advised secession by Tennessee, after thie ordinance by South Carolina and the levying war by that State. Id. 68.

It has been insisted that cone but an offense against a statute of Must the the United States is impeachable. (1 Chase's Trial, 9-18, 47, 18; 4 Elliot's Debates, 262; Rawle's Const. ch. 29, p. 273.) Story's Const. 3 7 96; Minority Report on the Impeachment of the Presi

19%. dent. 61. Where any offense is punishable by an act of Congress, it ought

327. to be in peachable. Story's Const. S 796.

So political offenses, impeachable at common law, may be so classified. Id. $ 764, 764, 797, 198, 799; Jefferson's Manual, $ 53, title, IMPEACHYENT; Blount's Trial, 29-31, 75–80; Farrar, S 194 496; Curtis' Com. p. 360.

No one of the cases yot tried rests upon statutable misdemeanorg. Story's Const. § 199; Report upon the Impeachment of the President, pp. 51–53.

For the English parliamentary cases, see 2 Woodeson's Law Lect. 40, p. 602 ; Comyn's Dig Parliament, 28-10; Story's Const. $ 800.

Vr. Jadison said: "He (the President) will be impeachable by What wero this House, before the Senate, for such an act of maladministra. Madison's tion: tile

views wanton removal of meritorious officers would subject him to impeachment and removal from his high trust." (Lloyd's 184186. Debates, 503, 351, 450; 4 Elliot's Debates, 141.) Farrar's Const. $ 495, 496.

Wheiher offenses not connected with office are impeachable is still unsettled. Story's Const. § 803-805.

While this work was runniug through the press, a majority of the State the judiciary committee on the 25th November, 1867) made a report history of to the House of Representatives (in response to a resolution of dent's im. the House), wherein they impeached ANDBEW Johnson, President peachment ? of the United States, of" " High crimes and misdemeanors.” The report was signed by five members; the minority, including the chairman, dissented. The report is long, and the evidence is volu

The committee did not charge the violation of any criminal statute. The charges are sundry usurpations of congressional power ; willi'ui efforts to defeat the work of reconstruction in the rebel States, and the encouragement of those who were engaged in the rebellion.

All the charges hinge upon this one point. But, in the specifications, there are sundry charges of the violation of statuite law: particularly in using money appropriated for other purposes to support the President's owu reconstruction measures; in levying taxes; using United States property; restoring abandonei and captured property ; ordering the dispersal of the Louisi.

minous.

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