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$ 200. The power to make treaties is general, and, of course, it embraces treaties for peace, or war; for commerce, or cessions of territory; for alliance, or succors; for indemnity for injuries, or payment of debts; for the recognition or establishment of principles of public law; and for any other purposes, which the policy, necessities, or interests of independent nations may dictate. Such a power is so large, and so capable of abuse, that it ought not to be confided to any one man, nor even to a mere majority of any public body, in a republican Governmeñt. There should be some higher pledge of the policy or necessity of a treaty.
ecessity of a treaty. It should receive the sanction of such a number of public functionaries as would furnish a sufficient guaranty of its policy or necessity. Twothirds of the Senate, therefore, is required to give validity to a treaty. It would seem to be perfectly safe in such a body, under such circumstances, representing, as it does, all the States. The House of Representatives would not have been so eligible a body, because it is more numerous, more popular in its structure, more short in its duration, more unfit to act upon
sudden emergencies, more under the control of a few States; and, from its organization, it may fairly be presumed to have less experience in public affairs, and less knowledge of foreign relations, than the Senate.
$ 201. The power of appointment, one of the most important and delicate in a Republican Government, is next provided for. Upon its fair and honest exercise must, in a great measure, depend the vigor, the public virtue, and even the safety of the Government. If it shall ever be wielded by any Executive, exclusively to gratify his own ambition or resentments, to satisfy his personal favorites, or to carry his own political measures, it will become one of the most dangerous and corrupt engines to destroy private independence and public liberty. It should, therefore, be watched in every free Government with uncommon vigilance, as it may, otherwise, soon become as secret, as it will be irresistible in its
mischievous operations. If the time shall ever arrive, when no one can obtain any appointment to office, unless he subunits to sacrifice all personal independence and opinion, and to become the mere slave of those, who can confer it, it is not difficult to foresee, that the power of appointment will then become the fittest instrument of artful men, to accomplish the worst purposes. The framers of the Constitution were aware of this danger, and have sedulously interposed certain guards to check, if not wholly to prevent, the abuse of the power. The advice and consent of the Senate is required to the appointment of ambassadors, other public ministers, consuls, judges of the Supreme Court, and other high officers.
§ 202. The mode of appointment of inferior officers is left in a good measure to the discretion of Congress, and the power may be vested in the President, in the Courts of Law, or in the Heads of Department. The propriety of this grant of discretionary power in certain cases cannot well be doubted. But it is very questionable, if Congress have not permitted its exercise in some Departments to an extent, which may be highly alarming, and even incompatible with the sound policy and interests of the Government. Some Departments possess only the unenviable power of appointing their own clerks; whilst the Postmaster General possesses a power of patronage, which almost rivals that of the President himself, and is, up to this very time, wholly without check by the constitutional advice or consent of any other person.
$ 203. It is observable, that the Constitution makes no mention of any power of removal of any officer by the President, or any other Body. As, however, the tenure of office is not provided for in the Constitution, except in the judicial department, (where it is during good behavior) the natural inference is, that all other officers are to hold their offices during pleasure, or during such period as Congress shall prescribe. But if the power of removal exists, in cases not
thus limited by Congress, the question is, in whom does it reside? Does it reside in the President alone? Or in the Body entrusted with the particular appointment ? It was maintained with great earnestness and ability by some of the ablest statesmen, who assisted in framing the Constitution, that it belonged to the latter; and that in all cases, where the advice and consent of the Senate are necessary to an appointment, they are also necessary to a removal from office. It is singular enough, that in the first Congress, jealous, as it was, of executive power, a different doctrine was maintained, viz. that it is an incident to the executive department. This doctrine arose (it has been said) partly from a just deference to the great man (Washington) then in the office of President, and partly from a belief, that a removal from office without just cause would be an impeachable offence in the President; and, therefore, that there could be no danger of its exercise, except in flagrant cases of malversation, or incapacity in office. This latter doctrine has ever since prevailed; and the President is accordingly now permitted to exercise the
power of removal, without any restraint from the Senate, although the Constitution, in the enumeration of his powers, is wholly silent on the subject. If we connect this power of removal, thus practically expounded, with another power, which is given in the succeeding clause, to fill up vacancies in the recess of the Senate, the chief guards intended by the Constitution, over the power of appointment, may become utterly nugatory. A President of high ambition and feeble principles may remove all officers, and make new appointments in the recess of the Senate; and if his choice should not be confirmed by the Senate, he may re-appoint the same party in the recess, and thus set at defiance the salutary check of the Senate in all such cases.
* In the Federalist.
The clause to which we have alluded is .' The * President shall have power to fill up all vacancies, that may happen during the recess of the Senate, by granting com'missions, which shall expire at the end of their next ses‘sion.' This is a provision almost indispensable to secure a due performance of public duties during the recess of the Senate; and as the appointments are but temporary, the temptation to any abuse of the power would seem to be sufficiently guarded, if it might not draw in its train the dangerous consequences, which have been before stated.
The third section of the second article enumerates the duties of the President. 'He shall from time to time give to the Congress information of the state of the Union, and recommend to their consideration such measures, as he shall judge necessary and expedient. He may on ex
traordinary occasions convene both Houses, or either of "them; and in case of disagreement between them, he may adjourn them to such time, as he shall think proper.
He shall receive ambassadors, and other public ministers. He shall take care, that the laws be faithfully executed ; and • shall commission all the officers of the United States.'
206. The duty of giving information by the President to Congress, of the state of the Union, and of recommending measures, would seem almost too clear to require any express provision. But it is not without its use.
It fixes the respon. sibility on the President; and, on the other hand, it disables Congress from taking any objection, that he is impertinently interfering with their appropriate duties. His knowledge of public affairs may be important to them; and they ought consequently to have a right to demand it. His recommendation of measures may give them the benefit of his large experience; and at all events may compel them to a just discharge of their legislative powers. So that, in this way, each department may be brought more fully before the public, both as to what each does, and what each omits to do.
207. The power to convene Congress on extraordinary occasions is founded on the wisest policy. Sudden emergencies may arise in the recess of Congress, wholly beyond any previous foresight, yet indispensable to be met with promptitude and vigor. The power to adjourn Congress, in cases of disagreement between the two Houses, is a quiet way of disposing of a practical difficulty in cases of irritation or obstinate differences of opinion.
§ 208. The power to receive ambassadors and other public ministers is a very inportant and delicate function ; and far more so, than it seems to have been deemed even by the framers of the Constitution. In times of profound tranquillity throughout the world, it may properly be confided to the Executive alone. But it is not so clear, that the Senate ought not, in cases of revolutions in foreign Governments, to partake of the functions, by their advice and consent. The refusal to receive an ambassador or minister is sometimes a source of discontent to foreign nations, and may even provoke hostilities. But in cases of revolution, or the separation of a kingdom into two or more distinot Governments, the acknowledgment of an ambassador or minister of either party is often treated as an interference in the contest, and may lead to an open rupture.
There would seem a peculiar propriety in all such cases to require greater caution on the part of the Executive, by interposing some check upon
his unlimited discretion. Our own times have furnished abundant examples of the critical nature of the trust; but it has hitherto been exercised with such sound judgment, that the power has been felt to be safe, and eminently useful.
§ 209. Another duty of the President is 'to take care, 'that the laws be faithfully executed. And by the laws we are here to understand, not merely the acts of Congress, but all the obligations of treaties, and all the requisitions of the Constitution, as the latter are equally with the former the supreme law of the land.' The great object of the