Gambar halaman
PDF
ePub

disproportionate to the offence. The power of pardon and reprieve 's better vested in a single person, than in a aumerous body. It brings home a closer responsibility ; it can be more promptly applied ; and, by cutting oft deiays, it will, on the one hand, conduce to certainty of punishment, and, on the other hand, enable the Execulive, 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 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."

$ 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 suc cors; 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 functiona. ries, 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 circumstan ces, 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 But it is very

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. 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.

§ 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. 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 ir its train the dangerous consequen cer, which have been before stated.

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

use.

to time give to the Congress information of the state oi the Union, and recommend to their consideration such measures, as he shall judge necessary and expedient. He may, 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. 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."

$ 289. 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

It fixes the responsibility 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 iinportant to them; and the people ought consequently to have a right to demand it. His recommendation of measures may give Congress the benefit of his large expe

ience; 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, and each will share the responsibility accordingly.

§ 289. The power to convene Congress on extraordinary occasions is founded on the wisest policy. Sudden emergencies may arise in the recess of Congress, and be 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 practica difficulty in cases of irritation or obstinate differences of opinion between them.

§ 290. The power to receive ambassadors and other public ministers, is a very important 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 througho'it the world, it may properly be con

« SebelumnyaLanjutkan »