cannot, by any laws penal or otherwise, interfere with the exercise of a discretion conferred by the Constitution. Even had the legislature been clothed with express authority to define and punish crimes generally, they could not make criminal any kind of act which the Constitution permits the President or the judges to do, and subject these individuals to indictment therefor. But in fact the express authority of Congress to define and punish crimes, is very limited. If the offence for which the proceeding may be instituted, must be made indictable by statute, impeachment thus becomes absolutely nugatory against those officers and in those cases where it is most needed as a restraint upon the violations of public duty.

§ 727. As far as can be gathered from their proceedings and debates, the convention which framed the Constitution did not intend to limit the operation of the impeachment clauses to indictable offences. At an early stage of the discussions, the following was added to the series of general propositions respecting the President: "He shall be removed on impeachment and conviction of malpractice or neglect of duty." This form was preserved through all the important debates upon the impeaching power. No suggestion was made that an offence must be indictable in order to be impeachable. The opposition came from another quarter. Gouverneur Morris, who favored a very short term of office, objected to the provision because it would destroy the independence of the Executive; but when the term was fixed at four years he withdrew all opposition. The propositions having been referred to a committee, they were reported back with the clause as follows: "He [the President] shall be removed from his office on impeachment by the House of Representatives, and conviction in the Supreme Court, of treason, bribery, or corruption." A reference of the whole draft having been made to a revising committee, they reported back the clause so changed as to make the President removable upon impeachment and conviction "for treason or bribery." A short debate arose upon this report. Col. Mason objected to the provision because it was not broad enough. He urged that the President mgiht

be guilty of many public offences besides bribery and treason. He said, "As bills of attainder are forbidden, it is more necessary to extend the power of impeachment." He moved to add the words "or maladministration." Mr. Madison objected to this term as too vague. Gouverneur Morris saw no harm in it. Col. Mason then withdrew the proposed words, and substituted" and other high crimes and misdemeanors against the state," which was adopted. The revising committee finally reported the clause as it now stands.1

When the Constitution was presented to the people for adoption, one of its most able opponents was Luther Martin. In his celebrated letter to the Maryland legislature he objected with great vehemence to the Presidential powers and office. He also considered the effect of the impeachment clauses. Had they been deemed insufficient in theory to meet the dangers he feared, no man would have been more ready or able to point out the defect, because no man was more conversant with the English law than he. But he distrusted the efficacy of impeachment, not because it was inapplicable to any offences except those against positive law, but because he believed the House would never impeach.2 Mr. Madison, in 1789, expressed his opinion in the most formal and authoritative manner that the President is impeachable for "the wanton removal of meritorious officers." 3 These references indicate how the impeaching power was regarded by the framers of the Constitution.

§ 728. (3.) What Punishment may be inflicted.—The Constitution prescribes the nature and limit, removal from office, and disqualification from holding office. The Senate can inflict no different punishment, but is not required to impose the entire penalty. A sentence of removal would be valid, although disqualification were not also imposed. But if the offence be also an indictable crime, the liability to the ordinary process of the criminal law still exists.

1 See Journal of the Convention, 1 Elliott's Deb. pp. 158, 213, 222, 228. Also Madison's Debates, 5 Elliott's Deb. pp. 149, 335, 340-343, 366, 380, 507, 528.

2 See § 644.

3 See § 649.

May the officer impeached be suspended from the exercise of his official duties during the pendency of the proceedings before final judgment of conviction or acquittal? The President, Vice-President, and judges clearly cannot be suspended, either by any act of the House of Representatives, or by any law of Congress. The Constitution certainly gives no express power to suspend; whatever authority exists must be derived by implication from other sources. One fact is absolutely conclusive upon this question, without any minute criticism of particular expressions in the Constitution. The President, Vice-President and judges while their offices exist, are placed by the Constitution in a position entirely independent of the legislature; their terms of office are fixed; they, as well as Congress, derive their authority from the fundamental law ; the only mode of removing them is by an impeachment, trial and conviction. This proceeding is not a legislative but a judicial act. Congress as a body does not remove, but the House accuses and the Senate tries and convicts.

In respect to subordinate ministerial officers I think the power exists. These offices are created by law; the Constitution does not prescribe any length of term, but Congress has this matter at its complete disposal. It would seem, therefore, that the legislature may, by general statute, provide for suspending all subordinate ministerial officers from the exercise of their functions during the pendency of an impeachment against them. I do not think the measures of arrest and bail, or confinement in ordinary criminal proceedings have any analogy to this process of suspension; nor do the English precedents, however numerous, give any aid in the interpretation of the Constitution in this respect.

CHAPTER VI.

THE JUDICIAL POWERS OF THE UNITED STATES GOVERNMENT.

§ 729. Article III., Section I. provides that "The judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish." Section II. is as follows: "The judicial power shall extend to all cases in law and equity, arising under this Constitution, the laws of the United States, and the treaties made, or which shall be made, under their authority; to all cases affecting ambassadors, other public ministers and consuls; to all cases of admiralty, and maritime jurisdiction; to controversies to which the United States shall be a party; to controversies between two or more states; between a state and citizens of another state; between citizens of different states; between citizens of the same state claiming lands under grants of different states; and between a state or the citizens thereof, and foreign states, citizens, or subjects. In all cases affecting ambassadors, other public ministers, and consuls, and those in which a state shall be a party, the Supreme Court shall have original jurisdiction. In all other cases before-mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations, as the Congress shall make." In this connection should be read Article XI. of the Amendments. "The judicial power of the United States shall not be construed to extend to any suit in law or equity commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state."

An exhaustive treatment of the judicial powers as now exercised in fact would require me, (1) to examine what powers in the aggregate may be wielded by the national judiciary, or

in other words, what jurisdiction has the Constitution directly conferred, or authorized the Congress to confer; (2) to describe the extent to which Congress has acted, or in other words, how far it has passed laws which confer the jurisdiction which may be given; and (3) to explain the organization of the national courts, and the distribution of functions among them. The first only of these topics belongs, however, to the department of Constitutional Law, and it alone will be considered in this work.

§ 730. As introductory to the particular matter of this chapter a few observations will be made upon the nature of jurisdiction in general. Jurisdiction is, in brief, the power of a court to decide. To state the same fact in another form, it is the power or capacity of a court to grant a remedy, and thus to protect some primary legal right, and enforce some primary legal duty. It may therefore be contentious, where the existence of the right and duty is denied, and must be established before the remedy is granted; or it may be ex parte or noncontentious, where the existence of the right is admitted, and only some formal act of court is necessary in order that the right may be protected or enforced.

The jurisdiction residing in all tribunals of justice, may be considered in respect of its several kinds, classes, natures, and grades or degrees, and also in respect of the sources from which it is derived. When jurisdiction is considered in respect of its various kinds, classes, natures, and degrees, we shall find several distinct lines of division, based upon different ideas, and often crossing each other.

§ 731. In relation to the mere form and kind of the remedy administered by the courts, there are in England and America the familiar departments of civil and criminal jurisdiction; the one being the power to administer a remedy on the application of a private suitor, for the establishment, protection, or enforcement of a private legal right; the other, the power to administer a remedy on the application of the state, for the punishment of a breach of a duty to society. Again: in relation to the mere form and kind of the remedy administered, there are in England and America the well known divisions of Common Law, Equity, Admiralty, and Probate jurisdiction; and in