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the public forces, to execute the laws, maintain peace, resist invasion, and carry on war, are powers obviously belonging to the executive department, and require the exercise of qualifications, which cannot properly be presumed to exist in any other department of the government. Promptitude of action, unity of design, and harmony of operations, are in such cases indispensable to success. Timidity, indecision, obstinacy, pride, and sluggishness, must mingle, in a greater or less degree, in all numerous bodies, and render their councils inert and imbecile, and their military operations slow and uncertain. There is, then, true wisdom and policy in confiding the command of the army and navy to the President, since it will insure activity, responsibility, and firmness, in public emergencies.

§ 279. The President is also authorized to require the opinions of the Heads of Departments, in writing, on subjects relative to their official duties. This, perhaps, might have been deemed an incidental right to his gener al authority. But it was desirable to make it a matter of constitutional right, so as to enforce responsibility in critcal times.

§ 280. To the President, also, is confided the power "to grant reprieves and pardons. Without this power, no government could be deemed to be suitably organized for the purposes of administering human justice. The criminal code of every country must necessarily partake, in some of its punishments, of a high degree of severity; and it is not possible to fix the exact degree of punishment, for every kind of offence, under every variety of circumstances. There are so many things, which may extenuate, as well as inflame the atrocity of crimes, and so many infirmities, which belong to human nature in general, which may furnish excuses, or mitigations for the commission of them, that any code, which did not provide for any pardoning or mitigating power, would be universally deemed cruel, unjust, and indefensible. It would introduce the very evils, which it would seek to avoid, by inducing the community to connive at an escape from punishment, in all cases, where the latter would be

disproportionate to the offence. The power of pardon and reprieve is better vested in a single person, than in a numerous body. It brings home a closer responsibility; it can be more promptly applied; and, by cutting off de. lays, it will, on the one hand, conduce to certainty of punishment, and, on the other hand, enable the Executive, at critical moments, to apply it as a means of detecting, or of suppressing gross offences. But if the power of pardon extended to impeachments, it is obvious, that the latter might become wholly inefficient, as a protection against political offences. The party accused might be acting under the authority of the President, or be one of his corrupt favorites. It is, therefore, wisely excepted from his general authority.

§ 281. The next clause respects the power to make treaties and appointments to office. "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. And 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 estabfished 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.

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§ 282. 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 government. There should be some higher pledge for the sound policy or necessity of a treaty. It should re

ceive the sanction of such a number of public functionaries, as would furnish a sufficient guaranty of such policy or necessity. Two thirds of the Senate, therefore, are 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 of the Union. 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.

§ 283. 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 own personal favorites, or to carry his own political measures, and, still more, if it shall ever interfere with the freedom of elections by the people, or suppress the honest expression of opinion and judgement by voters, it will become one of the most dangerous and corrupt engines to destroy private independence and public liberty, which can assail the republic. 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 citizen can obtain any appointment to office, unless he submits 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 appoint

ment of ambassadors, other public ministers, consuls, judges of the Supreme Court, and other high officers.

§ 284. The mode of appointment of inferior officers is left in a good measure to the discretion of Congress; and the power may be vested by them in the President, in the Courts of Law, or in the Heads of Departments. 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 of the government, 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 others possess a power of patronage, which almost rivals that of the Presdent himself; and the exercise of it is left, in a great measure, without the check of the constitutional advice or consent of the Senate.

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§ 285. It is observable, that the Constitution makes no mention of any power of removal of any officer by the President, or by 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 where the term of office is not thus limited by Congress, the question is, in whom does. it reside? Does it reside in the President alone? Or does it reside in the body intrusted 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, the same advice and consent are also necessary to a removal from office. In short, they maintained, with great force of argument and reasoning, that the power of removal was but an inci dent to the power of appointment, and that, consequently, the removal could only take place by the appointing pow

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er, and was consummated only by a new appointment. 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 of the officer. This latter doctrine has ever since prevailed in practice; 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 reappoint the same persons in the recess, and thus set at defiance the salutary check of the Senate in all such cases.

§ 286. 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 commissions, which shall expire at the end of their next session." This is a provision almost indispensable to secure a due performance of public duties by officers of the government, 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 consequen ces, which have been before stated.

§ 287. The third section of the second article enume rates the duties of the President. "He shall from time

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