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New-York, the same person can be admitted to the two degrees of attorney and counsel, and exercise the powers of each.
Besides the ordinary attorneys, the statute has directed, that a meet person, learned in the law, be appointed to act as attorney general of the United States, and besides special and incidental duties, it is made generally his duty to prosecute and conduct all suits in the Supreme Court, in which the United States are concerned, and to give his advice and opinion upon questions of law, when required by the President or the heads of the departments. Each judicial district has likewise a public officer to act as attorney for the United States in the district, and to prosecute all delinquents for crimes or offences cognizable under the authority of the United States, and to prosecute all civil actions within his district in which the United States are concerned,b
(2.) Clerks are appointed by the several courts, except that the clerk of the District Court is ex officio clerk of the Circuit Court in such district. They have the custody of the seal and records, and are bound to sign and seal all process, and to record the proceedings and judgments of the courts. And this is a trust of so much importance, that, in addition to the ordinary oath of office, clerks are obliged to give security to the public for the faithful performance of their duty. To guard still further against abuse of office, all moneys paid into the Circuit or District Courts, or received by the officers, in cases pending therein, are required to be immediately deposited in bank; and no money can be drawn out of bank, except by an order of a judge, to be signed by him, and certified of record by the clerk. The clerks are likewise bound, at every regular session of the courts, to exhibit an account of all the moneys remaining in court.d
a Act of 24th September, 1789, sec. 35.
e Act of 24th September, 1789, sec. 7.
(3.) Marshals are analogous to sheriffs at common law. 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. 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 the case of officers appointed to hold at pleasure, resided any where 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," "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, after great consideration and discussion, was different. In the act for es
a Act of 24th September, 1789, sec. 27.
b No. 77.
tablishing the treasury department, 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 I entertain no manner of doubt of the good sense and practical utility of 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 the high authority of the
a September 2d, 1789, sec. 7.
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.
The marshal is obliged to give security to the United States in 20,000 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. By the common law, the death of the principal is a virtual repeal of the 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 be appointed 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. And with respect to the custody of the prisoners, under the laws 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.c
a Act of 24th September, 1789, sec. 27.
b Ibid. sec. 28.
c Resolutions of Congress, September 23d, 1789, and March 3d, 1792. See, also, the act of Congress of 6th January, 1800, and 1 Paine, 368. The marshal is bound to take from the prisoner, under United States process, bond for the limits, as in the case for prisoners under state process.