specified date, elected by ballot "either out of their own body, or the people at large, fifteen senators (nine of whom to be residents on the western, and six to be residents on the eastern shore) men of the most wisdom, experience and virtue. " 1 Oath of The great duty imposed upon the president appears to be that prescribed President's in the oath or affirmation taken before entering upon the execution of his high Office office, that he will to the best of his ability "preserve, protect and defend the Constitution of the United States." That he may be held to strict accountability both for the performance of his duties and the exercise of his rights, both he and the vice president, who succeeds him in case of death or disability, are, to quote the exact language of the fourth section of the second article of the Constitution, to "be removed from Office on Impeachment for, and conviction of, Treason, Bribery or other high Crimes and Misdemeanors." Great It has often been stated that the president possesses greater power than His any constitutional monarch, in that he is ex officio commander in chief of the Powers army and navy in any event, and of the militia of the several States when called into the actual service of the United States. This is indeed a great power; but it is one with which the framers of the Constitution were familiar, and which they were therefore willing to entrust to an executive officer of their own choice, inasmuch as the several States had entrusted such powers to their chief executives, termed indifferently president or governor, and designated indifferently captain-general or commander-in-chief. The framers of the Constitution foresaw that it would be but natural that he would request the opinion of the principal officers of the various executive departments not created by but contemplated in the Constitution. It was neither unnatural that he should be authorized to grant reprieves and pardons for offenses against the United States; nor that he should be denied power, in cases of impeachment, lest he might be tempted to exercise it in behalf of one whom he himself had appointed and in whose offense he might have participated. The convention was much disturbed as to the appointing power and as to its location. This was to be expected, both from the difficulty inherent in the subject and from the lack of any uniform rule in or experience had with the constitutions of the States, where various methods had been tried without the development of any one which commended itself as perfect or markedly superior to the others. That the president should negotiate treaties in the first instance was seen Treaties to be inevitable from the outset; that he should conclude them and bind the States and their citizens and inhabitants without check or cooperation on the part of the legislative department was felt to be far from desirable. The solution in this case, however, was a very happy one, in that the president represents 1 The Constitutions of the Several Independent States, 1781, p. 128, Article 15. the States and only States, not the citizens or inhabitants thereof, could conclude treaties. Thus it seemed necessary to the members of the convention that the legislative branch should participate in the exercise of this power, inasmuch as treaties very frequently if not generally require legislation to carry them into effect. The cooperation of both branches of the legislature might therefore have been required, the more especially so, as by the great compromise, revenue bills could only originate in the House subject to amendment or modification in the Senate. The lower house therefore could have claimed a hand in the transaction, as it might be as unwilling to pass an appropriation to carry a treaty into effect, although approved or modified by the Senate, as if the president alone, without the concurrence of the Senate, had negotiated the treaty.1 There were other views of this question which weighed heavily with the members. The Senate, as expected, would always be a small body in comparison with the House of Representatives, and matters of great delicacy, such as foreign affairs, could, it was felt, be best determined in a body of restricted membership, especially as it was to possess advisory as well as ratifying qualities. Again, the States were expressly renouncing the right to conclude treaties and conventions with foreign powers, which, as free, sovereign and independent States, they had possessed. By a happy device the president, the general agent of the States, now conducts the negotiations with foreign powers, and the Senate, as the representative of the States, acts as an advisory body and as a check upon his action. That the advisability of the transaction. 1" Mr. Madison observed that the Senate represented the States alone, and that for this as well as other obvious reasons it was proper that the President should be an agent in Treaties." Documentary History, Vol. iii, p. 604. Session of August 23d. The following extracts, which are reprinted from Sydney George Fisher's Evolution of the Constitution, 1897, pp. 306-7, indicate the successive steps that led to the treatymaking plan finally adopted in the Constitution: "That the president-general, with the advice of the grand council, hold or direct all Indian treaties in which the general interest or welfare of the colonies may be concerned." (Franklin's Plan of 1754.) "That the president, by the advice of the council, may hold and manage all Indian treaties in which the general interest or welfare of the colonies may be concerned." (Hutchinson's Plan, 1754.) "That the power and duty of congress shall extend to entering into alliances." (Franklin's Articles of Confederation, 1775.) "That the president and commander-in-chief shall have no power to make war or peace, or enter into any final treaty, without the consent of the general assembly and legislative council." (South Carolina Constitution of 1776.) "The United States, in congress assembled, shall have the sole and exclusive right and power of entering into treaties and alliances, provided that no treaty of commerce shall be made whereby the legislative power of the respective states shall be restrained from imposing such imposts and duties on foreigners as their own people are subjected to, or from prohibiting the exportation or importation of any species of goods or commodities whatsoever." (Articles of Confederation, 1778.) "The congress shall have the sole power of entering into and concluding treaties and alliances with foreign powers." (Drayton's Articles of Confederation, 1778.) "The senate shall have the sole and exclusive power to make treaties." (Pinckney's Plan, 1787.) "He [the President] shall have power, by and with the advice and consent of the senate, to make treaties, provided two-thirds of the senators present concur." (The Constitution.) be beyond question and that mere majorities should not control, the approval of two-thirds of the senators present was required for approval of the treaty or convention submitted. The president, however, does not ordinarily negotiate directly with foreign countries, but indirectly by means of officers of the United States. The question naturally and inevitably arose as to the appointment of officers both to aid the president and to carry out the provisions of the Constitution in this and in other respects. At one time it was proposed that they be chosen by the Senate; but ultimately the convention, while reserving the right on the part of the legislature to determine the mode of appointment, other than those thought to be essential and therefore specified in the Constitution, vested their appointment in the president in the first instance, subject to confirmation in the Senate, as it seemed appropriate that persons to act as officers of the United States should be passed upon and confirmed by the branch of the government representing the States. The convention, in vesting the appointment of officers in the president subject to confirmation by the Senate, seems to have had in mind the practice of Massachusetts, a practice which was specifically called to its attention by Mr. Gorham, with the result that the power was happily at hand and in the following manner: He shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.1 It was natural, under these circumstances, that he should be empowered to commission all officers of the United States, that he should receive ambassadors and other public ministers, inasmuch as he himself was charged with the conduct of foreign relations; that he should 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; " and, in view of the experience of the colonies and the provisions to be found in the constitutions of the States, that he should "on extraordinary occasions, convene both houses, or either of them, and in case of disagreement between them, with respect to the time of adjournment, he may adjourn them to such time as he shall think proper." As executive of the United States it was highly desirable that he should, in the language of the Constitution, "take care that the laws be faithfully executed." If this were all, the eighth of Mr. Randolph's resolutions would have been 1 Article II, Section 2, of the Constitution. A Check upon the Legislature overlooked, although the president would indeed enjoy a general authority to execute the national laws, “enjoy the executive rights vested in Congress by the Confederation," in addition to others which could not well exist because of a defect of power in the Congress under the Articles of Confederation. And it may perhaps be said that the eighth resolution was one of the most difficult which confronted the convention, and one which, at the same time, was not the least successfully met and solved. The necessity was felt on all sides to have some check upon the legislative, just as there was a check upon the executive. Wise laws and unwise statutes could be passed by the national legislature as well as by the legislatures of the States, opposed to the Constitution. This the eighth and fourteenth of Mr. Randolph's resolutions (which can be called the large State plan), as well as the sixth of Mr. Patterson's resolutions (which may be called the small State plan), sought to obviate. The colonies had had experience in both these matters. The King in Council had passed upon acts of the colonies in some cases before they became law; in other cases rejected them within a prescribed period, and set aside decisions of courts of justice based upon alleged laws of the colonies in excess of the grant of power contained in the charter, or in instructions from the Crown. This power of the King in Council must on the whole have been reasonably exercised, inasmuch as the members of the convention frequently referred to it without criticism or disapproval. Indeed the local statesmen of the day retained this right or prerogative in various forms in the constitutions of the several States when they became independent political communities. Projects of the large and the small States containing provisions to the same effect can be taken as an opinion amounting to a conviction that some expedient or device of this kind was felt to be essential to the execution of the proposed Constitution, just as it was to the constitutions of the States and to the colonies under charter or governed directly by instructions from the Crown. The idea was an especial favorite with Mr. Madison and those of his school of thought. The eighth of Mr. Randolph's resolutions could be safely ascribed to Mr. Madison on the evidence of authorship contained in his correspondence with Mr. Randolph and with General Washington in the months preceding the Convention.1 The principle was sound but the method was faulty. Admitting the necessity of some check upon the legislature, there were strong reasons for lodging it in the hands of the executive. This would indeed be cooperation with the legislature in the framing of laws, violating to a certain degree the separation of functions which had been adopted as a fundamental principle of the proposed Constitution. It would be a further viola 1 See letter to Edmund Randolph, April 8, 1787, The Writings of James Madison, Hunt ed., Vol. ii, pp. 336-340; and to George Washington, April 16, 1787, Ibid., pp. 344–352. tion, and indeed a very serious one, if the judiciary, charged with the interpretation of the laws, should be required to participate with the legislature and executive in their making. Therefore, after much discussion, debate and heart-burning on the part of Messrs. Madison and Wilson, the president was given a veto upon the proposed legislation of Congress, separate and distinct from the judiciary. Article 3 of the Constitution of the State of New York, eliminating there from the cooperation of the judiciary, had furnished a precedent which Massachusetts adopted, freed from the cooperation of the judges, in Section I, Article II of the Constitution of that commonwealth. The New York expedient was to have even a larger influence and application. Substituting the president for the council, the Federal Convention literally took this provision from the following passage of Article 3 of the Constitution of the State of New York of April 20, 1777: And that all bills, which have passed the senate and assembly, shall, before they become laws, be presented to the said council for their revisal and consideration; and if upon such revision and consideration, it should appear improper to the said council, or a majority of them, that the said bill should become a law of this state, that they return the same, together with their objections thereto in writing, to the senate or house of assembly, in whichsoever the same shall have originated, who shall enter the objections sent down by the council, at large, in their minutes, and proceed to reconsider the said bill. But if after such reconsideration, two-thirds of the said senate or house of assembly, shall, notwithstanding the said objections, agree to pass the same, it shall, together with the objections, be sent to the other branch of the legislature, where it shall also be reconsidered, and if approved by twothirds of the members present, shall be a law. And in order to prevent any unnecessary delays, be it further ordained, that if any bill shall not be returned by the council within ten days after it shall have been presented, the same shall be a law, unless the legislature shall, by their adjournment, render a return of the said bill within ten days impracticable; in which case the bill shall be returned on the first day of the meeting of the legislature, after the expiration of the said ten days.1 So much for the act of Congress, which the president may deem unwise or inconsistent with the terms of the Constitution. A more delicate and difficult question arose in the case of an act of a State legislature, which might be unwise and, in addition, inconsistent with the terms of the Constitution or an act of Congress or a treaty of the United States. The view which ultimately prevailed was stated in the session of August 23, 1787, by Mr. Sherman, who thought a negative unnecessary, "the laws of the General Government being Supreme & paramount to the State laws according to the plan as it now stands." 2 Mr. Wilson, as set as Mr. Madison upon the council of revision as a check upon the States, is 1 The Constitutions of the Several Independent States, 1781, pp. 63-4. 2 Documentary History, Vol. iii, pp. 601-2. |