are likewise bound, at every regular session of the courts, to exhibit an account of all the moneys remaining in court. (e)

309

9. Of Marshals. * Marshals are analogous to sheriffs at common law.1 They are appointed for each judicial district by the President and Senate, for the term of four years, but are removable at pleasure; and it is the duty of the marshal to attend the district and circuit courts, and to execute, within the district, all lawful precepts directed to him, and to command all requisite assistance in the execution of his duty. There are also various special duties assigned by statute to the marshals. The appointment of deputies is a power incidental to the office, and the marshal is responsible civiliter for their conduct, and they are removable not only at his pleasure, but they are also by statute made removable at the pleasure of the district or circuit courts. (a) The act says, that the marshal shall be removable at pleasure, without saying by whom; and on the first organization of the government, it was made a question whether the power of removal, in case of officers appointed to hold at pleasure, resided anywhere but in the body which appointed, and of course whether the consent of the Senate was not requisite to remove. This was the construction given to the Constitution while it was pending for ratification before the state conventions, by the author of the Federalist. "The consent of the Senate," the Federalist observes, (b) "would be necessary to displace as well as to appoint;" and he goes on to observe, that "those who can best estimate the value of a steady administration will be most disposed to prize a provision which connects the official existence of public men with the approbation or disapprobation of that body, which, from the great permanency of its own composition, will, in all probability, be less subject to inconstancy than any other member of the government." But the construction which was given to the Constitution by Congress,

(e) Act of March 3d, 1817, [c. 108.]

(a) Act of Congress of September 24th, 1789, sec. 27.

1 The marshals of the several districts and their deputies have the same powers in executing the laws of the United States as sheriffs and their deputies in the several states have by law in executing the laws of the respective states. Act of July 29, 1861, ch. 25, § 7, 12 U. S. St. at L. 282.

(b) No. 77.

A vacancy in the office of marshal may be filled by the circuit judge until an appointment is made by the Presi dent. Act of March 3, 1863, ch. 93, § 2 12 U. S. St. at L. 768.

*

after great consideration and discussion, was different. 310 the act for establishing the treasury department, (a) the secretary was contemplated as being removable from office by the President. The words of the act are, "That whenever the secretary shall be removed from office by the President of the United States, or in any other case of vacancy in the office, the assistant shall act," &c. This amounted to a legislative construction of the Constitution, and it has ever since been acquiesced in and acted upon, as of decisive authority in the case. It applies equally to every other officer of government appointed by the President and Senate, whose term of duration is not specially declared. It is supported by the weighty reason, that the subordinate officers in the executive department ought to hold at the pleasure of the head of that department, because he is invested generally with the executive authority, and every participation in that authority by the Senate was an exception to a general principle, and ought to be taken strictly. The President is the great responsible officer for the faithful execution of the law, and the power of removal was incidental to that duty, and might often be requisite to fulfil it.

This question has never been made the subject of judicial discussion; and the construction given to the Constitution in 1789 has continued to rest on this loose, incidental, declaratory opinion of Congress, and the sense and practice of government since that time. It may now be considered as firmly and definitively settled, and there is good sense and practical utility in the construction. It is, however, a striking fact in the constitutional history of our government, that a power so transcendent as that is, which places at the disposal of the President alone the tenure of every executive officer appointed by the President and Senate, should depend upon inference merely, and should have been gratuitously

declared by the first Congress in opposition to that high *311 authority of the Federalist; and should have been supported or acquiesced in by some of those distinguished men who questioned or denied the power of Congress even to incorporate a national bank. (a) 1

(a) September 2d, 1789, sec. 7.

1

(a) As the instances of the exercise of the power of removal from office have been

1 Tenure of Office Acts. - By the Tenure of Office Act of March 2, 1867, 14 U. S.

St. at L. 430, ch. 154, § 1, it was enacted that every person who is appointed to any

The marshal is obliged to give security to the United States in twenty thousand dollars, for the faithful performance of the duties of his office by himself and his deputies, and, together with his deputies, to take an oath of office. (b) By the common law, the death of the principal is a virtual repeal of authority of the substitute or deputy; but to guard against any inconvenience which might arise from the operation of this principle, and to prevent the mischiefs of a vacancy in office, the act establishing the judicial courts has provided, that in case of the death of the marshal, his deputies shall continue in office, unless otherwise especially removed, and shall execute the same in the name of the deceased marshal, until another marshal shall be appointed

multiplied beyond all former example, under President Jackson's administration, the propriety of the concession of the power itself, by the first Congress, has been strongly questioned. It is the power of Congress, at any time, says a high authority, to correct the extensive operation of this executive power, by placing the appointment of inferior officers (and which would include ninety-nine out of a hundred of the lucrative offices of the government) in other hands. 3 Story's Comm. 394-397.

(b) Act of Congress of September 24th, 1789, sec. 27. By the act of Congress of April 10th, 1806, c. 21, the marshal's bonds are to be filed and recorded in the office of the clerk of the district court or circuit court sitting within the district; and suits for the breach of the condition of any such bond may be instituted in the name and for the sole use of the person injured by a breach of the condition of the bond, and judgments on the bond are to remain as a security for the benefit of any person injured by the breach thereof.

civil office by and with the advice and consent of the Senate, and who becomes duly qualified to act therein, shall be entitled to hold such office until a successor shall have been in like manner appointed and duly qualified, with a proviso as to the heads of departments. It may be considered as settled by the discussion which this act received before and after its passage, and by the events to which it gave rise, that it was within the constitutional power of the legislature to pass. Johnson's Trial, passim, 2 Am. Law Rev. 560; Cong. Globe, Feb. 1, 1867, Mr. Hale's Speech; United States v. Guthrie, 17 How. 284, 298; Webster's Speech in Senate, Feb. 16, 1835, Works, iv.; Marbury v. Madison, 1 Cranch, 137, 167, 168, 172.

The above provisions were repealed, however, by the act of April 5, 1869, ch.

10, 16 U. S. St. at L. 6, and it was enacted instead, "that every person holding any civil office to which he has been or hereafter may be appointed by and with the advice and consent of the Senate, and who shall have become duly qualified to act therein, shall be entitled to hold such office during the term for which he shall have been appointed, unless sooner removed by and with the advice and consent of the Senate, or by the appointment, with the like advice and consent, of a successor in his place, except," &c.

The President is empowered, during any recess of the Senate, in his discretion, to suspend any such civil officer, except United States judges, until the end of the next session of the Senate, and to fill the vacancy in the mean time.

and sworn. So, a marshal, when removed from office, or his term of office expires, may still execute all process in his hands, and he remains responsible for his prisoners until they are duly delivered over to his successor. (c) And with respect to the custody of the prisoners, under the law of the United States, the marshal is directed to deliver his prisoners to the keeper of one of the jails of the state in which he is marshal, in cases where the legislature of the state, in conformity with the recommendation of Congress, have made it the duty of the jailers to receive them; but where they have not, the marshal, under the direction of the district judge, is to provide his own place of security. (d)

(c) Ib. sec. 28. [Doolittle v. Bryan, 14 How. 563; Stewart v. Hamilton, 4 McLean, 534; United States v. Bank of Arkansas, Hempst. 460.]

(d) Resolutions of Congress, September 23d, 1789, and March 3d, 1791. See, also, the act of Congress of January 6th, 1800, and 1 Paine, 368. The marshal is bound to take from the prisoner under United States process a bond for the limits, as in the case for prisoners under state process.

[846]

LECTURE XV.

OF THE ORIGINAL AND APPELLATE JURISDICTION OF THE SUPREME

COURT.

HAVING taken a general view of the great departments of the government of the United States, I proceed to a more precise examination of its powers and duties, and of the degree of subordination under which the state governments are constitutionally placed.

The Constitution of the United States is an instrument containing the grant of specific powers, and the government of the Union cannot claim any powers but what are contained in the grant, and given either expressly, or by necessary implication.1 The powers vested in the state governments by their respective constitutions, or remaining with the people of the several states prior to the establishment of the Constitution of the United States, continue unaltered and unimpaired, except so far as they are granted to the United States. We are to ascertain the true construction of the Constitution, and the precise extent of the residuary authorities of the several states, by the declared sense and practice of the governments respectively, when there is no collision; and in all other cases where the question is of a judicial nature, we are to ascertain it by the decisions of the Supreme Court of the United States; and those decisions ought to be studied and universally understood, in respect to all the leading questions of constitutional law. (a) The people of the United States have declared the Constitution to be the supreme law of the land, and it is entitled to universal and implicit obedience. Every act of Congress, and every act of the legislatures of the states, and every part of the constitution of any state, which are repugnant to the Constitution of the United *314

(a) Vide supra, 243.

*

1 But compare Legal Tender Cases, 12 Wall. 457, ante, 254, n. 1.