to consider the right of concluding specific terms of *285 peace as of legislative jurisdiction. This has generally been the case in free governments. The determinations respecting peace, as well as war, were made in the public assemblies of the nation at Athens and Rome, and in all the Gothic governments of Europe, when they first arose out of the rude institutions of the ancient Germans. On the other hand, the preliminary negotiations which may be required, the secrecy and despatch proper to take advantage of the sudden and favorable turn of public affairs, seem to render it expedient to place this power in the hands of the executive department. The constitution of the United States has been influenced by the latter, more than by the former considerations, for it has placed this power with the President, under the advice and control of the Senate, who are to be considered, for this purpose, in the light of an executive council. The President is the constitutional organ of communication with foreign powers, and the efficient agent in the conclusion of treaties; but the consent of two thirds of the senators present is essential to give validity to his negotiations. To have required the acquiescence of a more numerous body, would have been productive of delay, disorder, imbecility, and, probably, in the end, a direct breach of the constitution. The history of Holland shows the danger and folly of placing too much limitation on the exercise of the treaty-making power. By the fundamental charter of the United Provinces, peace could not be made without the unanimous consent of the provinces; and yet, without multiplying instances, it is sufficient to observe, that the immensely important and fundamental treaty of Munster, in 1648, was made when Zealand was opposed to it; and the peace of 1661, when Utrecht was opposed. So feeble are mere limitations upon paper- mere parchment barriers, when standing in opposition to the strong force of public exigency.

*

The Senate of the United States is a body of men most wisely selected for the deposit of this power. They are easily assembled, are governed by steady, systematic views, 286 feel a due sense of national character, and can act with promptitude and firmness.

The question whether a treaty, constitutionally made, was obligatory upon Congress, equally as any other national engage

ment would be, if fairly made by the competent authority, or whether Congress had any discretionary power to carry into effect a treaty requiring the appropriation of money, or other act to be done on their part, or to refuse it their sanction, was greatly discussed in Congress in the year 1796, and again in 1816. The House of Representatives, at the former period, declared by resolution, that when a treaty depended for the execution of any of its stipulations on an Act of Congress, it was the right and duty of the House to deliberate on the expediency or inexpediency of carrying such treaty into effect. It cannot be mentioned at this day, without equal regret and astonishment, that such a resolution passed the House of Representatives on the 7th of April, 1796. But it was a naked abstract claim of right, never acted upon; and Congress shortly afterwards passed a law to carry into effect the very treaty with Great Britain, which gave rise to that resolution. President Washington, in his message to the House of Representatives of the 30th of March, 1796, explicitly denied the existence of any such power in Congress; and he insisted that every treaty duly made by the President and Senate, and promulgated, thenceforward became the law of the land.

If a treaty be the law of the land, it is as much obligatory upon Congress as upon any other branch of the government, or upon the people at large, so long as it continues in force and unrepealed. The House of Representatives are not above the law, and they have no dispensing power. They have a right to make and repeal laws, provided the Senate and President concur; but without such concurrence, a law in the shape of a treaty, is as binding upon them as if it were in the shape of an Act of Congress, or of an article of the constitution, or of a con

tract made by authority of law. The argument in favor ⚫287 of the binding and conclusive efficacy of every treaty

made by the President and Senate is so clear and palpable, that it has probably carried very general conviction throughout the community; and this may now be considered as the decided sense of public opinion. This was the sense of the House of Representatives, in 1816, and the Resolution of 1796 would not now be repeated. (a)

(a) The treaty-making power is necessarily and obviously subordinate to the funda

nomination

The President is the efficient power in the appoint- President's ment of the officers of government. He is to nomi- power of nate, and, with the advice and consent of the Senate, to office. to appoint, ambassadors, or public ministers and consuls, the judges of the Supreme Court, and all other officers whose appointments are not otherwise provided for in the constitution; but Congress may vest the appointment of inferior officers in the President alone, in the courts of law, or in the heads of departments. (a) 1

The appointment of the subordinate officers of government concerned in the administration of the laws, belongs, with great propriety, to the President, who is bound to see that the laws are faithfully executed, and who is generally charged with the powers and responsibility of the executive department. The association of the Senate with the President, in the exercise of this power, is an exception to the general delegation of executive authority; and if he were not expressly invested with the exclusive right of nomination in the instances before us, the organization of this department would be very unskilful, and the government degenerate into a system of cabal, favoritism, and intrigue. But the power of nomination is, for all the useful purposes of restraint, equivalent to the power of appointment. It imposes upon the President the same lively sense of responsibility, and the same indispensable necessity of meeting the public approbation or censure. This, indeed, forms the ultimate security that men in public stations will dismiss interested considerations, and act with a steady, zealous, and * undivided regard for the public welfare. The advice * 288

mental laws and constitution of the state, and it cannot change the form of the gov ernment, or annihilate its constitutional powers. Story's Comm. on the Constitution, vol. iii. sec. 1502.2

(a) Art. 2, sec. 2.

1 The power of the President to remove a territorial judge discussed in United States v. Guthrie, 17 How. U. S. 284.

2 When the concurrence of Congress is necessary to give effect to a treaty, it is not the law of the land until that concurrence is given. The treaty-making power cannot bind or control the power of the legislature. Turner v. Am. Baptist Miss. Union, 5 McLean, 344. Congress may repeal a treaty so far as it is a municipal law, if it affect subjects which are within its legislative power. Taylor v. Morton, 2 Curtis, C. C. 454.

and consent of the Senate, which are requisite to render the nomination effectual, cannot be attended, in the nature of the case, with very mischievous effects. Having no agency in the nomination, nothing but simple consent or refusal, the spirit of personal intrigue and personal attachment must be pretty much extinguished, from a want of means to gratify it. On the other hand, the advice of so respectable a body of men will add still further inducements to a coolly reflected conduct in the Presi dent, and will be at all times a check on his own misinformation or error. (a)

The remaining duties of the President consist in giving information to Congress of the state of the Union, and in recommending to their consideration such measures as he shall judge necessary or expedient. He is to convene both houses of Congress, or either of them, on extraordinary occasions, and he may adjourn them in case of disagreement. He is 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. (b) He is to receive ambassadors and other public ministers, to commission all the officers of the United States, and to take care that the laws be faithfully executed. (c)

(a) It was settled, in the case of Marbury v. Madison, 1 Cranch, 137, that when a person has been nominated to the Senate for office, by the President, and the President has received the advice and consent of the Senate to the appointment, and has signed the commission, the appointment is final and complete, and the person appointed is entitled to the possession of the commission, and to hold the office until constitutionally removed. The principle settled in that case was, that the official acts of the heads of the executive department, as organs of the President, which are of a political nature, and rest, under the constitution and laws, in executive discretion, are not within judicial cognizance. But when duties are imposed upon such heads, affecting the rights of individuals, and which the President cannot lawfully forbid — as, for instance, to record a patent, or furnish the copy of a record the person, in that case, is the officer of the law, and amenable thereto in the ordinary course of justice. Ibid. 170, 171.

(b) In the official opinion given by Mr. Wirt, as Attorney-General of the United States, to the President, in October, 1823, he considered that, according to the reason and spirit of the constitution, the President has the rightful power to supply vacancies in office existing when the appointment is made during the recess of the Senate, though the vacancy did happen before the adjournment of the Senate. The instances he gives of the necessity of such a construction and power, are those in which it was nearly or quite impossible to have sent in a nomination before the adjournment of the Senate. Opinions of the Attorneys-General, vol. i. 476.

(c) Art. 2, sec. 2, 3. It was considered, in the message of President Jackson to

The propriety and simplicity of these duties speak for themselves. The power of receiving foreign ministers includes in it the power to dismiss them, since he alone is the organ of communication with them, the representative of the people in all diplomatic negotiations, and accountable to the community not only for the execution of the law, but for the competent qualifications and conduct of foreign agents.

In addition to all the precautions which have been May be mentioned to prevent abuse of the executive trust in impeached. the mode of the President's appointment, his term of office and the precise and definite limitations imposed 289 upon the exercise of his power, the constitution has also rendered him directly amenable by law for mal-administration. The inviolability of any officer of government is incompatible with the republican theory, as well as with the principles of retributive justice. The President, Vice-President, and all civil officers of the United States, may be impeached by the House of Representatives for treason, bribery, and other high crimes and misdemeanors, and, upon conviction by the Senate, removed from office. (a) If, then, neither the sense of duty, the force of public opinion, nor the transitory nature of the seat, are sufficient to secure a faithful discharge of the executive trust, but the President will use the authority of his station to violate the constitution or law of the land, the House of Representatives can arrest him in his career, by resorting to the power of impeachment.

I have now finished a general survey of the office of President of the United States; and, considering the nature and extent of the powers necessarily incident to that station, it was difficult to constitute the office in such a manner as to render it

Congress, of the 21st December, 1836, in relation to Texas, to be an unsettled question to whom, under the government of the United States, strictly belonged the power of originally recognizing a new state. It was either necessarily involved in some of the great powers given to Congress, or in that given to the President and Senate, to form treaties with foreign powers, and to appoint ambassadors and other public ministers, or in that conferred upon the President to receive ministers from foreign nations. It was admitted to be most expedient, that the recognition of the independence of a newly assumed state should be left to the decision of Congress, and especially when the exercise of the power would probably lead to war.