CHAPTER XIII.
Report of the Committee of Detail, continued.—Election and Powers of the President.
In describing the manner in which the Constitution and powers of the Senate were finally arranged, I have already had occasion to state, that, after the report of the committee of detail came in,—vesting the appointment of the President in the national legislature, creating a term of seven years, and making the incumbent ineligible a second time,—a direct election by the people was negatived by a large majority. This mode of election, as a means of removing the appointment from the legislature, would have been successful, but it was inadmissible on other accounts. In the first place, it would have given to the government a character of complete consolidation, so far as the executive department was concerned, to have vested the election in the people of the United States as one community. In the second place, not only would the States, as sovereignties, have been excluded from representation in this department, but the slaveholding States would have had a relative weight in the election only in the proportion of their free inhabitants. On the other hand, to provide that the executive should be appointed by electors, to be chosen by the people of the States, involved the necessity of prescribing some rule of suffrage for the people of all the States, or of adopting the existing rules of the States themselves. Probably it was on account of this embarrassment, that a proposition for electors to be chosen in this mode was negatived, by a bare majority, soon after the vote rejecting a direct election of the President by the people.[325] There remained the alternatives of an election by one or both of the houses of Congress, or by electors appointed by the States in a certain ratio, or by electors appointed by Congress. The difficulty of selecting from these various modes led the Convention to adhere to an election by the two houses; and when the disadvantages of this plan, already described, had developed the necessity for some other mode of appointment, the relations between the Senate and the executive were, as we have seen, sent to a grand committee, who devised a scheme for their adjustment.
In this plan it was proposed that each State should appoint, in such manner as its legislature might direct, a number of electors equal to the whole number of senators and representatives in Congress to which the State might be entitled under the provisions of the Constitution already agreed upon. The advantages of this plan were, that it referred the mode of appointing the electors to the States themselves, so that they could adopt a popular election, or an election by their legislatures, as they might prefer; and that it would give to each State the same weight in the choice of the President that it was to have in the two houses of Congress, provided a majority or a plurality of the electoral votes were to determine the appointment. The committee recommended that the electors should meet in their respective States, on the same day, and vote by ballot for two persons, one of whom, at least, should not be an inhabitant of the same State with themselves; and that the person having the greatest number of votes, if such number were a majority of all the electoral votes, should be the President. To this part of the plan, there was likely to be little objection. But the mode of electing the President in case of a failure to concentrate a majority of the electoral votes upon one person, or in case more than one person should have such a majority, was the most difficult part of the whole scheme. The object of the committee was to devise a process which should result in the election both of a President and a Vice-President; and they proposed to make the person having the next largest number of electoral votes the Vice-President. If two of the persons voted for should have a majority of all the votes, and the same number of votes, then the Senate were immediately to choose one of them, by ballot, as the President; if no person should have such a majority, then the Senate were to choose the President by ballot from the five highest on the list of candidates returned by the electors. If a choice of the President had been effected by the electoral votes, the person having the next highest number of electoral votes was to be the Vice-President; and if there were two or more having an equal number of electoral votes, the Senate were to choose one of them as Vice-President.
From the proceedings which took place upon this plan, it appears that what many of the framers of the Constitution most apprehended was, that the votes in the electoral bodies would not be sufficiently concentrated to effect a choice, from want of the requisite general knowledge of the persons who might be considered in different parts of the Union as fit candidates for these high offices; and consequently that the election would be thrown into such other body as might be directed to make it after a failure in the action of the electors. It is a remarkable proof of their wisdom, that, although intimations began to appear in the public prints, as soon as the Constitution was published, that Washington would be the first President of the United States,—an expectation that must, therefore, have been entertained by the members of the Convention before they had finished their labors,—they were at no time under the influence of this pleasing anticipation.[326] They kept steadily in view a state of things in which, from the absence of statesmen of national reputation and influence, and from the effect of local preferences, no choice would be made by the electors. Hence their solicitude to provide for the secondary election, in such a way as to admit of a re-election of the incumbent. It was soon found that between the President and the Senate there would be a mutual connection and influence, which would be productive of serious evils, whether he were to be made eligible or ineligible a second time, if the Senate were to have the appointment after the electors had failed to make a choice. To remedy this, many of the members, among whom was Hamilton, preferred to let the highest number of electoral votes, whether a majority or not, appoint the President. As the grand committee had proposed to reduce the term of office from seven to four years, and to strike out the clause making the incumbent ineligible,—a change which met the approbation of a large majority of the States,—it became still more necessary to prevent any resort to the Senate for a secondary election. But an appointment by less than a majority of the electoral votes presented, on the other hand, the serious objection that the President might owe his appointment to a minority of the States. To preserve, as far as possible, a federal character for the government, in some of its departments, was justly regarded as a point of great importance. One branch of the legislature had become a depositary of the democratic power of a majority of the people of the United States;—the other branch was the representative of the States in their corporate capacities;—the President was to be in some sense a third branch of the legislative power, by means of his limited control over the enactment of laws;—and it was, therefore, something more than a mere question of convenience, whether he should, at the final stage of the process, be elected by a less number than a majority of all the States. That part of the plan which proposed to elect him by a majority of all the electoral votes, giving to each State as many votes as it was to have in both houses of Congress, might make the individual, when so elected, theoretically the choice of a majority of the people of the United States, although not necessarily the choice of a majority of the States. But there was a peculiar feature of this plan,—afterwards, in the year 1804, changed to a more direct method,—by which the electors were required to return their votes for two persons, without designating which of them was their choice for President, and which for Vice-President, the designation being determined by the numbers of votes found to be given for each person. This method of voting increased the chances of a failure to choose the President by the electoral votes. It is not easy to understand why the framers of the Constitution adhered to it; although it is probable that its original design was to prevent corruption and intrigue. Whatever its purpose may have been, it served to make still more prominent the expediency, not only of removing the ultimate election from the Senate, but of providing some mode of conducting that election by which an appointment by a minority of the States would be prevented, when a majority of the electoral votes had not united upon any one individual, or had united upon two.
The plan which had been prepared by the grand committee, and which adjusted the relations between the executive and the Senate respecting appointments and treaties, had left no body in the government so likely to be free from intimate relations with the President, and at the same time so capable of being made the instrument of an election, as the House of Representatives. By the fundamental principle on which that body had been agreed to be organized,—in direct contrast to the basis of the Senate,—its members were the representatives of the people inhabiting the several States, and in the business of legislation a majority of their votes was to express the will of a majority of the people of the United States. But the representatives were to be chosen in the separate States; and nothing was more easy, therefore, than to provide that, in any other function, they should act as the agents of their States, making the States themselves the real parties to the act, without doing any violence to the principle on which they were assembled for the purposes of legislation. Accordingly, as soon as a transfer of the ultimate election from the Senate to the House of Representatives was proposed, the method of voting by States was adopted, with only a single dissent.[327] The establishment of two thirds as a quorum of the States for this purpose, and the provision that a majority of all the States should be necessary to a choice, followed naturally as the proper safeguards against corruption, and were adopted unanimously.
The principal office of the executive department was thus provided for; but the ultimate choice of the Vice-President remained to be regulated. This office was unknown to the draft of the Constitution prepared by the committee of detail, and was suggested only when the mode of organizing the executive, and of providing for some of the separate functions of the Senate, came to be closely considered together. We are to look for its purposes, therefore, in the provisions specially devised for the settlement of these relations. In the first place, it was apparent that the executive would be a branch of the government that ought never to be vacant. The principle which, in hereditary monarchies, on the death of the sovereign, instantly devolves the executive power upon him who stands next in a fixed order of succession, must in some degree be imitated in purely elective governments, if great mischiefs are to be avoided. The difficulty which attends its application to such governments consists not in the nature of the principle itself, but in finding a number of public functionaries who can be placed in a certain order of succession, without creating mere heirs to the succession, for that purpose alone. In hereditary governments, the members of a family, in a designated order, stand as the successive recipients of the executive office; and each of them, until he reaches the throne, may have no other function in the state than that of an heir, near or remote, to the crown, and may, without inconvenience to the public welfare, occupy that position alone. But in elective, and especially in republican governments, the succession must be devolved on some person already filling some other office; for to designate as a successor to the chief magistrate a person who has no public employment, and no other public position than that of an heir apparent, would be attended with many obvious disadvantages, in such a government.
Fortunately, the peculiar construction of the Senate was found to require a presiding officer who should not be a member of the body itself. As each State was to be represented by two delegates, and as it would be important not to withdraw either of them from active participation in the business of the chamber, a presiding officer was needed who would represent neither of the States. By placing the Vice-President of the United States in this position, he would have a place of dignity and importance, would be at all times conversant with the public interests, and might pass to the chief magistracy, on the occurrence of a vacancy, attended with the public confidence and respect. This arrangement was devised by the grand committee, and was adopted with general consent. It contemplated, also, that the Vice-President, as President of the Senate, should have no vote, unless upon questions on which the Senate should be equally divided; and on account of his relation to this branch of the legislature, the ultimate election of the Vice-President, when the electors had failed to appoint him under the rule prescribed, was retained in the hands of the Senate.
The rule that was to determine when the Vice-President was to succeed to the functions of the chief magistrate, was also embraced in the plan of the grand committee. It was apparent that a vacancy in the principal office might occur by death, by resignation, by the effect of inability to discharge its powers and duties, and by the consequences of an impeachment. When either of these events should occur, it was provided that the office should devolve on the Vice-President. In the case of death or resignation of the President, no uncertainty can arise. In a case of impeachment, a judgment of conviction operates as a removal from office. But the grand committee did not provide, and the Constitution does not contain any provision or direction, for ascertaining the case of an inability to discharge the powers and duties of the office. When such an inability is supposed to have occurred, and is not made known by the President himself, how is it to be ascertained? Is there any department of the government that can, with or without a provision of law, proceed to inquire into the capacity of the President, and to pronounce him unable to discharge his powers and duties? What is meant by the Constitution as inability is a case which does not fall within the power of impeachment, for that is confined to treason, bribery, and other high crimes and misdemeanors. It is the case of a simple incapacity, arising from insanity, or ill health, or, as might possibly occur, from restraint of the person of the President by a public enemy. But in the former case, how shadowy are the lines which often separate the sound mind or body from the unsound! Society has had one memorable example, in modern times and in constitutional monarchy, of the delicacy and difficulty of such an inquiry;—an instance in which all the appliances of science and all the fixed rules of succession were found scarcely sufficient to prevent the rage of party, and the struggles of personal ambition, from putting the state in jeopardy.[328] With us, should such a calamity ever happen, there must be a similar effort to meet it as nearly as possible upon the principles of the Constitution, and consequently there must be a similar strain on the Constitution itself.
In order to make still further provision for the succession, Congress were authorized to declare by law what officer should act as President, in case of the removal, death, resignation, or inability of both the President and the Vice-President, until the disability should be removed, or a new President should be elected.
The mode of choosing the electors was, as we have seen, left to the legislatures of the States. Uniformity, in this respect, was not essential to the success of this plan for the appointment of the executive, and it was important to leave to the people of the States all the freedom of action that would be consistent with the free working of the Constitution. But it was necessary that the time of choosing the electors, and the day on which they were to give their votes, should be prescribed for all the States alike. These particulars were, therefore, placed under the direction of Congress, with the single restriction, that the day of voting in the electoral colleges should be the same throughout the United States. In order to make the electors a distinct and independent body of persons, appointed for the sole function of choosing the President and Vice-President, it was provided further, that no senator or representative, or person holding an office of trust or profit under the United States, shall be appointed an elector.[329]
The electors were required to meet in their respective States, and to vote by ballot for two persons, one of whom at least should not be an inhabitant of the same State with themselves. Having made a list of all the persons voted for, and of the number of votes given for each, they were to sign and certify it, and to transmit it sealed to the seat of government of the United States, directed to the President of the Senate, who, in the presence of the Senate and the House of Representatives, was to open all the certificates, and the votes were then to be counted.
Such was the method devised by the framers of the Constitution for filling the executive office. Experience has required some changes to be made in it. It has been found that to require the electors to designate the persons for whom they vote as the President and Vice-President, respectively, has a tendency to secure a choice by the electoral votes, and therefore to prevent the election from being thrown into the House of Representatives; and it has also been deemed expedient, when the election has devolved on the House of Representatives, to confine the choice of the States to the three highest candidates on the list returned by the electors. These changes were made by the twelfth of the amendments to the Constitution, adopted in the year 1804, which also provides that the person having the greatest number of the electoral votes for President shall be deemed to be chosen by the electors, if such number be a majority of the whole number of electors appointed. If a choice is not made by the electors, or by the House of Representatives, before the fourth day of March next following the election, the amendment declares that the Vice-President shall act as President, "as in the case" (provided by the Constitution) "of the death or other constitutional disability of the President."
In the appointment of the Vice-President, the amendment has also introduced some changes. The person having the greatest number of the electoral votes as Vice-President, if the number is a majority of all the electors appointed, is to be the Vice-President; but if no choice is thus effected, the Senate are to choose the Vice-President from the two highest candidates on the list returned by the electors; but a quorum for this purpose is to consist of two thirds of the whole number of senators, and a majority of the whole number is made necessary to a choice. The amendment further adopts the same qualifications for the office of Vice-President as had been established by the Constitution for the office of President.[330]
Thus it appears, from an examination of the original Constitution and the amendment, that the most ample provision is made for filling the executive office, in all contingencies but one. If the electors fail to choose according to the rule prescribed for them, the election devolves on the House of Representatives. If that body does not choose a President before the fourth day of March next ensuing, the office devolves on the Vice-President elect, whether he has been chosen by the electors or by the Senate. But if the House of Representatives fail to choose a President, and the Senate make no choice of a Vice-President, or the Vice-President elect dies before the next fourth day of March, the Constitution makes no express provision for filling the office, nor is it easy to discover in it how such a vacancy is to be met. The Constitution, it is true, confers upon Congress authority to provide by law for the case of removal, death, resignation, or inability of both the President and Vice-President, and to declare what officer shall then act as President; and it provides that the officer so designated by a law of Congress shall act accordingly, until the disability be removed, or a President shall be elected. But there is every reason to believe that this provision embraces the case of a vacancy in both offices occasioned by removal, death, resignation, or inability, not of the President and Vice-President elect, but of the President and Vice-President in office. It may be doubted whether the framers of the original Constitution intended to provide for a vacancy in both offices occasioned by the failure of the House of Representatives to elect a President and the death of the Vice-President elect, or a non-election of a Vice-President by the Senate, before the fourth day of March. Their plan was in the first instance studiously framed for the purpose of impressing on the electors the duty of concentrating their votes; and although they saw and provided for the evident necessity of an election of a President by the House of Representatives, when the electoral votes had not produced a choice, they omitted all express provision for a failure of the House to choose a President, apparently for the purpose of making the States in that body feel the importance of the secondary election, and the duty of uniting their votes. This omission was supplied by the amendment, which authorizes the Vice-President elect to act as President, when the House of Representatives have failed to choose a President, "as in the case of the death or other constitutional disability of the President." This adoption, for the case of a non-election by the House, of the mode of succession previously established by the Constitution, shows that the authority which the Constitution gave to Congress to declare by law what officer shall act as President, in case of a vacancy in both offices, was confined to the removal, death, resignation, or inability of the President and Vice-President in office, and does not refer to the President and Vice-President elect, whose term of office has not commenced.[331]
The committee of detail made no provision respecting the qualifications of the President. But the grand committee, to whom the construction of the office was referred, recommended the qualifications which are to be found in the Constitution; namely, that no person shall be eligible to the office who was not born a citizen of the United States, or was not a citizen at the time of the adoption of the Constitution, and who had not attained the age of thirty-five years, and been fourteen years a resident within the United States. These requirements were adopted with unanimous assent.[332]
That the executive should receive a stipend, or pecuniary compensation, was a point which had been settled in the earliest stage of the proceedings, notwithstanding the grave authority of Franklin, who was opposed to it. The speech which he delivered on this subject was based upon the maxim, that, in all cases of public service, the less profit, the greater honor. He seems to have been actuated chiefly by the fear that the government would in time be resolved into a monarchy; and he thought this catastrophe would be longer delayed, if the seeds of contention, faction, and tumult were not sown in the system, by making the places of honor places of profit. He maintained this opinion for the case even of a plural executive, which he decidedly advocated; and he instanced the example of Washington, who had led the armies of the Revolution for eight years without receiving the smallest compensation for his services, to prove the practicability of "finding three or four men, in all the United States, with public spirit enough to bear sitting in peaceful council for perhaps an equal term, merely to preside over our civil concerns, and see that our laws are duly executed." His plan was treated with the respect due to his illustrious character, but no one failed to see that it was a "Utopian idea."[333] The example of Washington was, in truth, inapplicable to the question. A patriotic Virginia gentleman, of ample fortune, was called upon, in the day of his country's greatest trial, to take the lead in a desperate struggle for independence. The nature of the war, his own eminence, his character and feelings, the poverty of a country which he foresaw would often be unable to pay even the common soldier, and his motives for embarking in the contest, all united to make the idea of compensation inadmissible to a man whose fortune made it unnecessary. Such a combination of circumstances could scarcely ever occur in the case of a chief magistrate of a regular and established government. If an individual should happen to be placed in the office, who possessed private means enough to render a salary unnecessary to his own wants, or to the dignity of the position, the duty of his example might point in precisely the opposite direction, and make it expedient that he should receive what his successors would be unable to decline. But the real question which the framers of the Constitution had to decide was, in what way could the office be constituted so as to give the people of the United States the widest range of choice among the public men fit to be placed in it. To attach no salary to the chief executive office, in a republican government, would practically confine the office to men who had inherited or accumulated wealth. The Convention determined that this mischief should be excluded. They adopted the principle of compensation for the office of chief magistrate, and when the committee of detail came to give effect to this decision, they added the provision, that the compensation shall neither be increased nor diminished during the period for which a President has been elected.[334] The limitation which confines the President to his stated compensation, and forbids him to receive any other emolument from the United States, or from any State, was subsequently introduced, but not by unanimous consent.[335]
The question whether the single person in whom the executive power was to be vested should exercise it with or without the aid or control of any council of state, was one that in various ways ran through the several stages of the proceedings. As soon as it was settled that the executive should consist of a single person, the nature and degree of his responsibility, and the extent to which it might be shared by or imposed upon any other officers, became matters of great practical moment. What was called at one time a council of revision was a body distinct from a cabinet council, and was proposed for a different purpose. The function intended for it by its advocates related exclusively to the exercise of the revisionary check upon legislation. But we have seen that the nature of this check, the purposes for which it was to be established, and the practical success with which it could be introduced into the legislative system, required that the power and the responsibility should rest with the President alone. There remained, however, the further question concerning a cabinet, or council of state; an advisory body, with which some of the most important persons in the Convention desired to surround the President, to assist him in the discharge of his duties, without the power of controlling his actions, and without diminishing his legal responsibility. Such a plan not having received the sanction of the Convention, the draft of the Constitution reported by the committee of detail of course contained no provision for it. It was subsequently brought forward, and received the recommendation of a committee;[336] but the grand committee, who were charged with the adjustment of the executive office, substituted for it a different provision, which gave the President power to "require the opinion in writing of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices." The friends of a council[337] regarded this arrangement of the executive office, especially with regard to the power of appointment, as entirely defective.[338] But the reason on which it was rested by the grand committee, and on which the plan of a council of state was rejected, was, that the President of the United States, unlike the executive in mixed governments of the monarchical form, was to be personally responsible for his official conduct, and that the Constitution should do nothing to diminish that responsibility, even in appearance. If it had not been intended to make the President liable to impeachment, a cabinet might have been useful, and would certainly have been necessary, if there was to be any responsibility anywhere for executive acts. But a large majority of the States preferred to interpose no shield between the President and a public accusation. He might derive any assistance from the great officers of the executive departments which Congress might see fit to establish, that he could obtain from their opinions or advice; but the powers which the Constitution was to confer on him must be exercised by himself, and every official act must be performed as his own.[339]
What those powers were to be, had not been fully settled when the first draft of the Constitution came from the committee of detail. The executive function, or the power and duty of causing the laws to be duly and faithfully executed; authority to give information to Congress on the state of the Union, and to recommend measures for their consideration; power in certain cases to convene and to adjourn the two houses; the commissioning of all officers, and the appointing to office in cases not otherwise provided for by the Constitution; the receiving of ambassadors; the granting of reprieves and pardons; the chief command of the army and navy of the United States and of the militia of the several States,—were all provided for. But the foreign relations of the country were committed wholly to the Senate, as was also the appointment of ambassadors and of judges of the Supreme Court. It is not necessary to explain again the grounds on which the Convention were finally obliged to alter this arrangement. It will be convenient, however, to take up the several powers and functions of the executive, and to describe briefly the scope and purpose ultimately given to each of them.
In the plan of government originally proposed by Governor Randolph, the division into the three departments of an executive, a legislative, and a judiciary, implied, for the first of these departments, according to the theory of all governments which are thus separated, power to carry into execution the existing laws. This government, however, was to succeed one that had regulated the affairs of the Union for several years, in which all the powers vested in the confederacy of the States were held and exercised by the Congress of their deputies; and among those powers was that of declaring war and making peace. This function is, moreover, embraced in the general powers of the executive department, in most governments in which there is a regular separation of that department from the legislative and the judiciary. But it became apparent at the very commencement of the process of forming the Constitution of the United States, that the question whether the executive should be intrusted with the power of war and peace would not only be made, but that the system would have to be so arranged as to make the government, in this particular, an exception to the general rule. This was partly owing to an unwillingness to intrust such a power to one person;—or even to a plurality of persons, if the executive should be so constituted. If to the general powers of executing the laws, and of appointing to office, there were to be added the power to make war and peace, and the whole were to be vested in a single magistrate, it was rightly said that the government would be in substance an elective monarchy. The power of the executive, over the external relations of the country at least, would be the same, in kind and in extent, as it is in constitutional monarchies, and the sole difference would be that the supreme magistrate would be elective. This was not intended, and was not admissible. Still another reason for making the government of the United States, in this feature, an exception to the general rule, was the necessity for giving to the States, in their corporate capacities, some control over the foreign relations of the country.
Our further inquiries concerning this part of the powers and functions of the chief magistrate will only need to extend so far as to ascertain what is the "executive power," which the Constitution declares shall be "vested" in the President. In the resolutions, which at different stages had previously passed in the Convention, this had been described as a "power to carry into execution the national laws"; and this description was regarded as including such other powers, not legislative or judicial in their nature, as might from time to time be delegated to the President by Congress.[340] The committee of detail, in drafting the Constitution, employed the phrase "executive power" to describe what had thus been designated by the resolutions sent to them; and as the plan of government which they presented proposed to make the declaration of a state of war a legislative act, the prosecution of a war, when declared, was left to fall within the executive duties as part of the "executive power." In order, moreover, that the executive duties might be still more clearly defined, the committee provided that the President "shall take care that the laws be faithfully executed," and imposed upon him the same obligation by the force of his oath of office. The committee having been directed to provide for the end in view, it was considered that they were also to provide the means by which the end was to be obtained.[341] Accordingly, they made the President commander-in-chief of the army and navy, and of the militia of the States when called into the service of the United States. The President appears, therefore, to have been placed in the same position with reference to the means to be employed in the discharge of all his executive duties, when force may in his judgment be necessary. The declaration of a state of war is an enactment by the legislative branch of the government; the creation of laws is a function that belongs exclusively to the same department;—but when a law exists, or the state of war exists, it is for the President, by virtue of his executive office, and of his position as commander-in-chief, to employ the army and navy, and the militia actually called into the service of the United States, in the execution of the law, or the prosecution of hostilities, in such a manner as he may think proper.[342]
Closely allied to the power of executing the laws is that of pardoning offences, and relieving against judicial sentences. This power was originally extended by the committee of detail to all offences against the United States, excepting cases of impeachment, in which they provided that the pardon of the President should not be pleaded in bar. This would have made the power precisely like that of the king of England; since, by the English law, although the king's pardon cannot be pleaded in bar of an impeachment, he may, after conviction, pardon the offender. But as it was intended in the Constitution of the United States to limit the judgment in an impeachment to a removal from office, and to subsequent disqualification for office, there would not be the same reason for extending to it the executive power of pardon that there is in England, where the judgment is not so limited. The Convention, therefore, took from the President all power of pardon in cases of impeachment, making them the sole exception to the power.[343] A strong effort was indeed made to establish another exception in cases of treason, upon the ground, chiefly, that the criminal might be the President's own instrument in an attempt to subvert the Constitution. But since all agreed that a power of pardon was as necessary in cases of treason as in all other offences, and as it must be given to the legislature, or to one branch of it, if not lodged with the executive, a very large majority of the States preferred to place it in the hands of the President, especially as he would be subject to impeachment for any participation in the guilt of the party accused.[344]
The power to make treaties, which had been given to the Senate by the committee of detail, and which was afterwards transferred to the President, to be exercised with the advice and consent of two thirds of the senators present, was thus modified on account of the changes which the plan of government had undergone, and which have been previously explained. The power to declare war having been vested in the whole legislature, it was necessary to provide the mode in which a war was to be terminated. As the President was to be the organ of communication with other governments,[345] and as he would be the general guardian of the national interests, the negotiation of a treaty of peace, and of all other treaties, was necessarily confided to him. But as treaties would not only involve the general interests of the nation, but might touch the particular interests of individual States, and, whatever their effect, were to be part of the supreme law of the land, it was necessary to give to the senators, as the direct representatives of the States, a concurrent authority with the President over the relations to be affected by them. The rule of ratification suggested by the committee to whom this subject was last confided was, that a treaty might be sanctioned by two thirds of the senators present, but not by a smaller number. A question was made, however, and much considered, whether treaties of peace ought not to be subjected to a different rule. One suggestion was, that the Senate ought to have power to make treaties of peace without the concurrence of the President, on account of his possible interest in the continuance of a war from which he might derive power and importance.[346] But an objection, strenuously urged, was, that, if the power to make a treaty of peace were confided to the Senate alone, and a majority or two thirds of the whole Senate were to be required to make such a treaty, the difficulty of obtaining peace would be so great, that the legislature would be unwilling to make war on account of the fisheries, the navigation of the Mississippi, and other important objects of the Union.[347] On the other hand, it was said that a majority of the States might be a minority of the people of the United States, and that the representatives of a minority of the nation ought not to have power to decide the conditions of peace.
The result of these various objections was a determination on the part of a large majority of the States not to make treaties of peace an exception to the rule, but to provide a uniform rule for the ratification of all treaties. The rule of the Confederation, which had required the assent of nine States in Congress to every treaty or alliance, had been found to work great inconvenience; as any rule must do, which should give to a minority of States power to control the foreign relations of the country. The rule established by the Constitution, while it gives to every State an opportunity to be present and to vote, requires no positive quorum of the Senate for the ratification of a treaty; it simply demands that the treaty shall receive the assent of two thirds of all the members who may be present. The theory of the Constitution undoubtedly is, that the President represents the people of the United States generally, and the senators represent their respective States; so that, by the concurrence which the rule thus requires, the necessity for a fixed quorum of the States is avoided, and the operations of this function of the government are greatly facilitated and simplified.[348] The adoption, also, of that part of the rule which provides that the Senate may either "advise or consent," enables that body so far to initiate a treaty, as to propose one for the consideration of the President;—although such is not the general practice.
Having already described the changes which took from the Senate alone the appointment of the judges of the Supreme Court and ambassadors, it is only necessary in this connection to notice the manner in which the power of appointment to all offices received its final scope and limitations. The plan reported by the committee of detail had, as we have repeatedly seen, vested the appointment of ambassadors and judges of the Supreme Court in the Senate, and had given to the President the sole voice in the appointment of all other officers of the United States. The adjustment afterwards made gave the nomination of all officers to the President, but required the advice and consent of the Senate to complete an appointment. Two inconveniences were likely to be experienced under this arrangement. Many inferior offices might be created, which it would be unnecessary and inexpedient to fill by this process of nomination by the President and confirmation by the Senate; and vacancies might occur in all offices, which would require to be filled while the Senate was not in session. To obviate these inconveniences, the Congress were authorized to vest the appointment of such inferior officers as they might think proper in the President alone, in the courts of law, or in the heads of departments; and power was given to the President to fill up all vacancies that might happen during the recess of the Senate, by granting commissions which should expire at the end of their next session.[349] In order to restrain the President from practically creating offices by the power of appointment, his power was limited to "offices created by law," and to those specially enumerated in the Constitution.[350]
In addition to these powers, the committee of detail had provided for certain direct relations, of a special nature, between the President and the Congress. One of these was to consist in giving to the Congress from time to time information of the state of the Union, and in recommending to their consideration such measures as he shall judge necessary and expedient. The other was embraced in the power to convene the two houses on extraordinary occasions; and, whenever there should be a disagreement between them with respect to the time of adjournment, to adjourn them to such time as he shall think proper. The latter power is to be taken in connection with the clause which requires Congress to meet at least once in every year, and on the first Monday in December, unless a different day shall be appointed by law. Neither the two houses by agreement, nor the President in case of a disagreement, can fix on a time of adjournment beyond the day of the commencement of the next regular session. But subject to this restriction, the power of the President to determine the time at which the two houses shall reassemble, when they do not agree upon a time, extends to every session of Congress, whether it be regular or "extraordinary."[351]