Page:Debates in the Several State Conventions, v4.djvu/644

628 17. An act of a state legislature, banishing the person and confiscating the property of certain individuals therein named as traitors, passed before the establishment of the Federal Constitution, is not void. Cooper v. Telfair, 4 Dall. 14.

18. The words of the Constitution, declaring that "the judicial power shall extend to all cases of admiralty and maritime jurisdiction," must be taken to refer to the admiralty and maritime jurisdiction of England. United States v. M'Gill, 4 Dall. 426, 429.

19. The Constitution, art. 2, sect. 2, 3, with regard to the appointment and commissioning of officers by the President, seems to contemplate three distinct operations—1. The nomination: this is the sole act of the President, and is completely voluntary. 2. The appointment: this is also the act of the President, though it can only be performed by and with the advice and consent of the Senate. 3. The commission: to grant a commission to a person appointed, might perhaps be deemed a duty enjoined by the Constitution. Marbury v. Madison, 1 Cranch, 137, 155.

20. The acts of appointing to office, and commissioning the person appointed, are distinct acts. Ibid. 156.

21. The Constitution contemplates cases where the law may direct the President to commission an officer appointed by the courts, or by the heads of departments. In such a case, to issue a commission would be apparently a duty distinct from the appointment, the performance of which, perhaps, could not be legally refused. Ibid.

22. Where the officer is not removable at the will of the executive, the appointment is not revocable, and cannot be annulled; it has conferred legal rights which cannot be resumed. Ibid. 162.

23. The question whether the legality of the act of the heads of departments be examinable in a court of justice, or not, must always depend on the nature of that act. Ibid. 165. Where the heads of departments are the political or confidential agents of the executive, merely to execute the will of the President, or rather to act on cases in which the executive possesses a confidential or legal discretion, nothing can be more perfectly clear than that their acts are only politically examinable. But where a specific duly is assigned by law, and individual rights depend on the performance of that duty, it seems equally clear that the individual who considers himself injured has a right to resort to the laws of his country for a remedy. Ibid.

24. Where the head of a department acts in a case in which executive discretion is to be exercised, in which he is the mere organ of executive will, any application to a court to control, in any respect, his conduct, would be rejected without hesitation. But where he is directed by law to do a certain act affecting the absolute rights of individuals, in the performance of which he is not placed under the particular direction of the President, and the performance of which the President cannot lawfully forbid, and therefore is never presumed to have forbidden,—as, for example, to record a commission, or a patent for land, which has received all the legal solemnities, or to give a copy of such record,—in such cases, the courts of the country are no further excused from the duty of giving judgment that right be done to an injured individual, than if the same services were performed by a person not at the head of a department. Ibid. 171.

25. The authority given to the Supreme Court, by the act establishing the judicial courts of the United States, to issue writs of mandamus to public officers, is not warranted by the Constitution. Ibid. 176.

26. An act of Congress repugnant to the Constitution cannot become the law of the land. Ibid. 176, 177, 180.

27. An act of Congress cannot invest the Supreme Court with an authority not warranted by the Constitution. Ibid. 175, 176.

28. A contemporary exposition of the Constitution, practised and acquiesced under for a period of years, fixes the construction, and the Court will not shake or control it. Stuart v. Laird, 1 Cranch, 299.

29. An act of Congress giving to the United States a preference over all other creditors, in all cases, is constitutional and valid. United States v. Fisher et Al., 2 Cranch, 358, 395.