treaty was ratified by the President and Senate, but required a law to carry it into effect. On that occasion, after much debate, the House of Representatives declared by a vote of 62 to 37, that they had the right to withhold their assent to the validity of a treaty, and might, at their pleasure, withhold a law to carry it into effect. This doctrine was denied by President Washington, and the exclusive power of the President and Senate affirmed. In their final decision upon the treaty, the House deemed it expedient, by a vote of 51 to 48, to execute the treaty, but reserved to themselves the rights they claimed. In 1816, the same question occurred, and the House then decided that the sole power over treaties rested with the Senate and President. § 309. The predominance of opinion now is, that the power to make treaties, &c., is vested only in the executive and two-thirds of the Senate. The great reason is, that the Constitution has made treaties, as well as laws, the supreme law of the land, and as such has made them, when ratified, a binding contract with other nations.1 § 310. The next power conferred on the President, with the advice and consent of the Senate, is the appointment of ambassadors, ministers, consuls, and other public officers. This power is necessary to, and a part of, the executive power; for the executive duties have to be performed by the officers, and if they are not appointed by, and not responsible to, the executive, he cannot be accountable for the performance of those duties.2 § 311. As the Constitution gave power "by and with the advice and consent of the Senate" to make appointments, but said nothing about removals, it early became a question whether the power of removal was vested in the President alone, or in the President and Senate jointly. In the year 1789, the question came before 14 Elliott's Debates, 250, 275. 2 Idem, 148. Congress, on a motion to strike out of the act creating a Secretary for Foreign affairs, a clause vesting the President with the power of removal. After a long and animated debate, the House decided by a vote of 34 to 20 not to strike out the clause,—thus affirming the power of the President. In this debate, it was expressly declared, that the decision was intended to be permanent, and act as an exposition of the Constitution; as such it has remained, and the power of the President to remove was never questioned til recently. In favor of the power were Messrs. Madison, Ames, Boudinot, and Baldwin; against it, Messrs. Sherman, Gerry, Smith, and Jackson, of Georgia. § 312. A learned commentator1 has recently expressed surprise, that this power of removal should so long remain in the President's hands without question, and intimates that it may be liable to abuses, and is at best of questionable constitutionality. To this it may be answered, that the decision of this question was one of the most solemn ever made by Congress, and, therefore entitled to high respect. As to the question itself, any other decision than that made, may at once be reduced to an absurdity. Thus, suppose the power is vested in the President with the advice and consent of the Senate; the President wishes to remove an officer, and communicates his wish to the Senate: that body calls for the reason; the President gives it, and the officer, through the mouth of some senator, replies: the President is then reduced to the level of an accuser, or a defendant, in respect to one of his own officers, before a collateral branch of the government, which assumes to decide between them, and be superior to both! And suppose the Senate does not consent to his removal,— the officer retains his place after he has become obnoxious to his superior, and it may be, obtains impunity. for his offences. Is this consistent with either the dignity 1 3 Story's Comm. 395, 396. or the responsibility of the executive? It is supposed by some very judicious persons, that an officer is entitled to his place during good behavior, and that he acquires something like an estate in his office. But no principle like this is recognised in the Constitution. On the contrary, every thing there is made directly or indirectly elective, and consequently nothing is placed on a more permanent footing than public opinion. When that changes, minor things must change with it. § 313. Such inferior offices as they may think proper, Congress may vest in the President alone, in the courts of law, or in the heads of departments. A learned commentator1 supposes, in consequence of this clause, that Congress may require the consent of the Senate to such appointments: now this is not at all obvious; for the Constitution, after giving the appointment of superior officers to the President and Senate, may give the appointment of inferiors to whom? to this same President and Senate? No, but to the President alone, the courts of law, or the heads of departments. After this express designation of these persons, it is not in the competency of Congress to confer the appointment on others. § 314. It is decided, in reference to the power of appointments, that the Supreme Court cannot issue a mandamus to compel the delivery of a commission to an officer after it is made out. This was so decided in a case2 in which the commission had been made out and deposited in the Secretary of State's office, during the administration of Mr. Adams, and on the accession of Mr. Jefferson he withheld it,-deeming that delivery was necessary to its perfection, and being himself unwilling to appoint the man. The case went off for want of original jurisdiction, but the court expressed the opinion, that the withholding the commission was a violation of a legal right. 13 Story's Comm. 397. 21 Cranch, 137. § 315. 3d clause. The President shall have power tò 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. The appointments thus made expire at the end of the next term of the Senate by the constitutional limitation. Suppose the President should fill a vacancy during the recess of the Senate, and should then nominate this officer to the Senate, and the Senate should reject him; and the President should, on the first day of the next recess, appoint him again to fill the vacancy, may he not in this manner perpetuate an appointment without the consent of the Senate? Certainly this cannot be the intention of the Constitution, for it would defeat the co-ordinate power of appointment which it has vested in the Senate: Yet such a practice' has in some instances recently obtained. Where is the remedy? Nobody is vested with power to annul the appointment; but it can be effectually restrained by withholding the appropriations. Here, then, is an instance of the signal virtue of powers, effective and restraining, vested directly in the representatives of the people. § 316. Does the power to fill up vacancies give the President authority to appoint and commission ambassadors during the recess of the Senate? In this manner President Madison appointed the Commissioners to negotiate the treaty of Ghent. But this is not a vacancy, neither does it happen, and the Senate held accordingly, in 1822, and decided, that the President could not create the office of minister during the recess of the Senate without the consent of the Senate. § 317. SECTION 3D. He shall, from time to time give 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 extraor 1 See the Journals of the Senate, 1830, 1831, 1832, 1833; cases of Gwynn and Gardner. dinary 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 may 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. § 318. The President, in conformity with the first part of this section, lays before Congress, at the first day of their session, a Message, in which is exhibited the operations of the government during the past year, and which is accompanied with reports from the chief officers of government, illustrating the condition and prospects of each department of the government. In addition to which the President gives his opinion upon all the measures which, in his opinion, ought to be acted upon. During the administration of Presidents Washington and Adams, the President met Congress in person, and delivered oral speeches, to which answers were returned, similar to the mode still adopted by the constitutional governments of Europe. President Jefferson, however, abolished that custom, and ever since the message has been sent to Congress, and no answer returned. The President communicates to Congress all the new circumstances, views, or information which may from time to time occur; and Congress, by calls upon the different departments, obtain all the documentary facts which they may desire. § 319. The power to call an extraordinary session of Congress may become absolutely necessary to the public safety. There have been three extraordinary sessions called; one in 1797, by President Adams, on the occasion of the difficulties with France; another in 1809, by President Madison; and another in 1813, also by President Madison. § 320. The President has a general authority to execute the laws; and in the exercise of his political du |