question which of two opposing governments, each claiming to be the rightful government of the state or country, is the legitimate power, does not belong to the courts. The judicial department cannot take notice of, or recognize, any new government or sovereignty, until it has been officially recognized by the political departments of the government.6

62

EXECUTION OF THE LAWS

95. The President is required by the Constitution to "take care that the laws be faithfully executed.”

The President "is provided with the means of fulfilling this obligation by his authority to commission all the officers of the United States, and, by and with the advice and consent of the senate, to appoint the most important of them and to fill vacancies. He is declared to be commander in chief of the army and navy of the United States. The duties which are thus imposed upon him he is further enabled to perform by the recognition in the Constitution, and by the creation by acts of Congress, of executive departments, which have varied in number from four or five to ten, the heads of which are familiarly called cabinet ministers. These aid him in the performance of the great duties of his office, and represent him in a thousand acts to which it can hardly be supposed his personal attention is called, and thus he is enabled to fulfill the duty of his great department, expressed in the phrase that 'he shall take care that the laws be faithfully executed.' " 63 But the President has no law-making power. All his powers are derived either from the Constitution or from an act of Congress, and every step he takes, in the sense of an exercise of government, must be justified by the one or the other. It is not enough that the action in question is not forbidden by statute or by the Constitution.64 If there

62 Oetjen v. Central Leather Co., 246 U. S. 297, 38 S. Ct. 309, 62 L. Ed. 726; Ricaud v. American Metal Co., 246 U. S. 304, 38 S. Ct. 312, 62 1. Ed. 733; The Penza (D. C. N. Y.) 277 F. 91; Russian Government v. Lehigh Valley R. Co. (D. C. N. Y.) 293 F. 133; Gelston v. Hoyt, 3 Wheat. 324, 4 L. Ed. 381; United States v. Palmer, 3 Wheat. 610, 634, 643, 4 L. Ed. 471; The Divina Pastora, 4 Wheat. 52, 4 L. Ed. 512; The Neustra Senora de le Caridad, 4 Wheat. 497, 4 L. Ed. 624; Rose v. Himely, 4 Cranch, 241, 2 L. Ed. 608; LUTHER v. BORDEN, 7 How. 1, 12 L. Ed. 581, Black Cas. Constitutional Law, 55.

63 In re Neagle, 135 U. S. 1, 10 S. Ct. 658, 34 L. Ed. 55.

64 UNITED STATES v. WESTERN UNION TELEGRAPH CO. (D. C. N. Y.) 272 F. 311, Black Cas. Constitutional Law, 64.

is any "residuum" of governmental power in the United States-not provided by the Constitution-it is to the legislative department, not the executive, that it belongs.

EXECUTIVE PROCLAMATIONS

96. Proclamations may be issued by the executive from time to time, either on his own initiative or as authorized or directed by the Constitution or an act of Congress. While they have not the force of law, they are, in the latter case, of binding effect.

In English law, a proclamation is "a notice publicly given of anything whereof the king thinks fit to advertise his subjects." In American law, it is a formal and official public notice, issued by the chief executive in his own name, intended for the notice of all persons who may be concerned, announcing some statute or treaty, or some public act or determination, or intended action, of the executive department, which otherwise might not be so widely or so quickly promulgated. The making of proclamations is not an assumption of legislative powers.65 These documents have not the force of law, although Congress may make the taking effect of an act, or of some of its provisions, depend upon the existence of a state of facts to be ascertained and proclaimed by the President. Proclamations are issued on a great variety of occasions. It is usual in this manner to announce the admission of a new state into the Union; the ratification of a treaty with a foreign power, when it contains provisions which may affect the dealings of private persons; the intention of the United States to maintain a position of neutrality between contending powers, or the intention of the government to enforce the neutrality laws with strictness; the granting of an act of pardon or general amnesty; the reciprocity features of a commercial treaty or tariff act; and the annual appointment by the President of a day of public thanksgiving. Perhaps the most celebrated proclamation ever issued in this country was that by which President Lincoln announced the emancipation of the slaves. The same President, in 1861, issued a proclamation of blockade, announcing his intention to blockade all the ports of the states then in insurrection, and giving neutral vessels fifteen days from the commencement of actual blockade to leave those ports.

65 Sugar v. United States (C. C. A. Mich.) 252 F. 74.

The authority of the President to issue proclamations is sometimes derived from acts of Congress specifically empowering him to do so in relation to a particular matter, and in other cases appears to be derived from his duty to take care that the laws be faithfully executed. In regard to the observance of neutrality laws, for instance, it may not be obligatory upon the President to warn the people of the consequences attending their infraction, but still it is eminently proper for him, at times when there is danger of a breach of those laws, to advise all persons of the intention of the government with regard to their enforcement.

Executive Rules and Orders

Rules and orders promulgated by the President or by the heads of departments under his authority, relating to the conduct of public business or to the civil service or other administrative matters, have not the force of law and are not statutes in any sense; and although they are effective for the internal control and government of the executive departments, courts of equity have no jurisdiction or authority to enforce them.66

IMPEACHMENT

97. Impeachment proceedings, resulting, upon conviction, in removal from office, may be instituted against the President, the Vice-President, and all civil officers of the United States, including the judges, but not members of Congress. Judgment in case of conviction shall not extend further than to removal from office and disqualification to hold office under the United States. Right of trial by jury not to extend to cases of impeachment.

The federal Constitution contains the following provisions relating to the subject of impeachment: The President, the Vice-President, and all civil officers of the United States may be removed from office on impeachment for, and conviction of, treason, bribery, and other high crimes and misdemeanors. The House of Representatives has the sole power of impeachment, and the Senate the sole power to try all impeachments. When sitting for that purpose, they are to be on oath or affirmation. When the President is tried, the chief justice shall

66 Morgan v. Nunn (C. C.) 84 F. 551; Taylor v. Kercheval (C. C.) 82 F. 497; Carr v. Gordon (C. C.) 82 F. 373. And see United States Harness Co. v. Graham (D. C. W. Va.) 288 F. 929.

preside. No person shall be convicted without the concurrence of two-thirds of the senators present. Judgment in case of impeachment shall not extend further than to removal from office and disqualification to hold and enjoy any office of honor, trust, or profit under the United States; but the party convicted shall nevertheless be liable and subject to indictment, trial, judgment, and punishment according to law. By an express provision of the Constitution, the right of trial by jury does not extend to cases of impeachment.

The persons liable to impeachment under the federal Constitution are the President, the Vice-President, and "all civil officers of the United States." This excludes, in the first place, all private and unofficial persons. In the next place, it excludes all officers of the army, navy, and marine corps, because they cannot properly be called "civil" officers, and because they are triable for offenses by courts martial and under the laws of war. It is also settled, by a legislative precedent, that a Senator of the United States is not liable to impeachment. In general, so far as the matter can be said to be definitely settled, it appears that the officers liable to this process are those who are commissioned by the President (as provided by section 3, art. 2, of the Constitution) excepting those employed in the land and naval forces, but including all the federal judges.67

Treason and bribery are well defined crimes. But the phrase "other high crimes and misdeameanors" is so very indefinite that practically it is not susceptible of exact definition or limitation, but the power of impeachment may be brought to bear on any offense against the Constitution or the laws which, in the judgment of the house, is deserving of punishment by this means or is of such a character as to render the party accused unfit to hold and exercise his office. It is of course primarily directed against official misconduct. Any gross malversation in office, whether or not it is a punishable offense at law, may be made the ground of an impeachment. But the power of impeachment is not restricted to political crimes alone. The Constitution provides that the party convicted upon impeachment shall still remain liable to trial and punishment according to law. From this it is to be inferred that the commission of any crime which is of a grave nature, though it may have nothing to do with the person's official position, except that it

67 Private citizens are not amenable to impeachment; nor can articles of impeachment be preferred against a person after he has gone out of office. State v. Hill, 37 Neb. 80, 55 N. W. 794, 20 L. R. A. 573.

shows a character or motives inconsistent with the due administration of his office, would render him liable to impeachment. It will be perceived that the power to determine what crimes are impeachable rests very much with Congress. For the House, before preferring articles of impeachment, will decide whether the acts or conduct complained of constitute a "high crime or misdemeanor." And the Senate, in trying the case, will also have to consider the same question. If, in the judgment of the Senate, the offense charged is not impeachable, they will acquit; otherwise, upon sufficient proof and the concurrence of the necessary majority, they will convict. And in either case, there is no other power which can review or reverse their decision.68

The Constitution provides that the judgment, in cases of impeachment, shall not extend further than to removal from office and disqualification from further office. Since it also provides that the officers who are subject to this process shall be removed from office upon conviction under articles of impeachment, it follows that the party accused, if he is found guilty, must be adjudged to be removed from his office. But it rests in the discretion of the Senate whether or not to add to this sentence the judgment of disqualification. The nature of this punishment is political only. Conviction upon impeachment is the single case in which the pardoning power of the President cannot be exercised.

68 Where, in an impeachment proceeding, the act of official delinquency consists in the violation of some positive provision of the Constitution or a statute, which is denounced as a crime or misdemeanor, or where it is a mere neglect of duty, willfully done, with a corrupt intention, or where the negligence is so gross, or the disregard of duty so flagrant, as to warrant the inference that it was willful and corrupt, it is a misdemeanor in office. But where such act results from a mere error of judgment or omission of duty, without the element of fraud, or where the alleged negligence is attributable to a misconception of duty, rather than a willful disregard thereof, it is not impeachable, although it may be highly prejudicial to the interests of the state. With respect to the introduction of evidence and the quantum of proof required to warrant a conviction, impeachment is essentially a criminal prosecution; hence the guilt of the accused must be established beyond a reasonable doubt. State v. Hastings, 37 Neb. 96, 55 N. W. 774.