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 Const.i.tution 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 Const.i.tution. 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 partic.i.p.ation 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 a.s.sent 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 Const.i.tution, 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 a.s.sent of two thirds of all the members who may be present. The theory of the Const.i.tution 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 amba.s.sadors, 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 amba.s.sadors 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 Const.i.tution.[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 rea.s.semble, when they do not agree upon a time, extends to every session of Congress, whether it be regular or "extraordinary."[351]

FOOTNOTES:

[325] August 24. Elliot, V. 472, 473.

[326] The Const.i.tution was published in the Pennsylvania Journal, Sept. 19th. On the 27th, another Philadelphia paper suggested, or, as we should now say, "nominated" General Washington for the Presidency.

[327] Delaware. Elliot, V. 519.

[328] I allude, of course, to the case of King George III., which had not happened when our Const.i.tution was framed. To ascertain the sanity of a private person is certainly often no less delicate and difficult, than to inquire into the sanity of a person in a high public position.

But there is a legal process for determining the capacity of every person to discharge private duties or to exercise private rights. In the case of the President of the United States, there is no mode provided by the Const.i.tution for ascertaining his inability to discharge his public functions, and no authority seems to have been given to Congress to provide for such an inquiry. Perhaps the authority could not have been given, with safety and propriety.

[329] This clause was inserted, by unanimous consent, on the motion of Mr. King and Mr. Gerry, September 6. Elliot, V. 515.

[330] See _post_, p. 621.

[331] Congress, however, have not only provided that the President _pro tempore_ of the Senate and the Speaker of the House of Representatives shall successively act as President, in case of the removal, death, resignation, or inability both of the President and Vice-President, until the disability be removed or a President shall be elected, but also that, whenever the offices of President and Vice-President _shall both become vacant_, a new appointment of electors shall be ordered, and a new election made. The const.i.tutional authority for this latter provision is at least doubtful. (Act of March 1, 1792.) I have discovered no evidence that the framers of the Const.i.tution contemplated an intermediate election of President and Vice-President, excepting an amendment moved by Mr. Madison. The clause which enables Congress to declare what officer shall act as President, on the death, &c. of both the President and Vice-President, was introduced by Governor Randolph, and terminated thus: "And such officer shall act accordingly, until the time of electing a President shall arrive." Mr. Madison moved to subst.i.tute for this the words, "until such disability be removed, or a President shall be elected"; and he has recorded in his Minutes, that he remarked, on moving this amendment, that the phraseology of Governor Randolph "would prevent a supply of the vacancy by an intermediate election." This amendment was adopted. (Elliot, V. 520, 521.) But the difficulty in the way of construing the clause so as to give effect to this suggestion is, that the terms employed by Mr. Madison do not of themselves necessarily import an authority to Congress to order an intermediate election, any more than those used by Governor Randolph. Either of these expressions, when incorporated into the Const.i.tution, would have to be construed with reference to the whole system prescribed by the Const.i.tution for filling the executive branch of the government.

Taking all the provisions together, it appears that the executive power is to be vested in a President, who is to hold his office for a term of four years; that Congress shall fix the day on which he is to be chosen by the electors; that, when so chosen, he is to hold the executive power for four years; that if he dies, or is disabled, within that term, and there is no Vice-President to succeed him, Congress shall declare by law what officer shall then _act as President_, that is, shall hold and exercise the executive power, and such officer is to _act accordingly_, until the disability be removed, or a President shall be elected. It would seem, therefore, that when the officer designated by Congress is required to _act as President_, the powers and duties of the office are devolved upon him for the residue of the term of four years, in a case of vacancy by death, removal, or resignation; for the terms "until a President shall be elected" certainly do not import any express authority to order a new election; and although there is a general authority in Congress to fix the day for the election of a President, it must be a President chosen for the term of four years.

[332] Elliot, V. 462, 507, 521, 522.

[333] He antic.i.p.ated that it would be so regarded. Hamilton, who was in all his views, as unlike Franklin as any man could be, seconded the motion, out of respect for the mover.

[334] Elliot, V. 380.

[335] Connecticut, New Jersey, Delaware, and North Carolina voted against it.

[336] Elliot, V. 446, 462.

[337] Mason, Franklin, Wilson, d.i.c.kinson, and Madison.

[338] Elliot, V. 525.

[339] Those who are not familiar with the precise structure of the American government will probably be surprised to learn that what is in practice sometimes called the "Cabinet" has no const.i.tutional existence as a directory body, or one that can decide anything. The theory of our government is, that what belongs to the executive power is to be exercised by the uncontrolled will of the President. Acting upon the clause of the Const.i.tution which empowers the President to call for the opinions in writing of the heads of departments, Washington, the first President, commenced the practice of taking their opinions in separate consultation; and he also, upon important occasions, a.s.sembled them for oral discussion, in the form of a council. After having heard the reasons and opinions of each, he decided the course to be pursued. The second President, Mr. John Adams, followed substantially the same practice. The third President, Mr. Jefferson, adopted a somewhat different practice. When a question occurred of sufficient magnitude to require the opinions of all the heads of departments, he called them together, had the subject discussed, and a vote taken, in which he counted himself but as one.

But he always seems to have considered that he had the _power_ to decide against the opinion of his cabinet. That he never, or rarely, exercised it, was owing partly to the unanimity in sentiment that prevailed in his cabinet, and to his desire to preserve that unanimity, and partly to his disinclination to the exercise of personal power. When there were differences of opinion, he aimed to produce a unanimous result by discussion, and almost always succeeded.

But he admits that this practice made the executive, in fact, a directory. Jefferson's Works, V. 94, 568, 569.

[340] Elliot, V. 141, 142.

[341] Elliot, V. 343, 344.

[342] The Const.i.tution having vested in Congress power to provide for calling the militia into the service of the United States, to execute the laws, suppress insurrections, and repel invasions, the President cannot call out the militia unless authorized to do so by Congress.

But with respect to the employment of the army and navy for any executive purpose, it may be doubted whether any authority from Congress is necessary; as it may also be doubted whether Congress can exercise any control over the President in the use of the land or naval forces, either in the execution of the laws, or in the discharge of any other executive duty.

[343] Elliot, V. 480.

[344] Ibid. 549.

[345] It was to be one of the distinct functions of the President "to receive amba.s.sadors and other public ministers."

[346] Mr. Madison so thought. Elliot, V. 524.

[347] Ibid.

[348] The several votes taken upon different aspects of the rule for the ratification of treaties make the theory quite clearly what is stated in the text. See the proceedings, September 7, 8. Elliot, V.

524, 526.

[349] This power embraces of course only those offices the appointment to which is vested in the President and Senate.

[350] The Const.i.tution (Art. II. -- 2) seems to contemplate amba.s.sadors, other public ministers and consuls, and judges of the Supreme Court, as officers to exist under the Const.i.tution, whether provision is or is not made by law for their appointment and functions. It is made the imperative duty of the President to nominate, and with the consent of the Senate to appoint them. Hence it has been supposed that the President can appoint a foreign minister without waiting to have his particular office regulated or established by law; and as the President conducts the foreign intercourse of the country, he could prescribe the duties of such a minister. In like manner, with the consent of the Senate, the President could appoint a judge of the Supreme Court, and would be bound to do so, although no act of Congress existed providing for the organization and duties of the Court. But as the President cannot distribute the judicial power, the Court, when so appointed, would have only the functions conferred by the Const.i.tution, namely, original jurisdiction in certain enumerated cases.

[351] In the text of the Const.i.tution, the President's power to adjourn the two houses of Congress in case of a disagreement follows immediately after his power to convene them on "extraordinary occasions"; and it has, therefore, been suggested that his power to adjourn them is confined to cases where they have been "extraordinarily" convened under the first power. But it is to be observed that the whole of the third section of Article II. contains an enumeration of separate powers of the President, recited _seriatim_. The power to _convene_ Congress is one power; and it extends only to "extraordinary" occasions, because the Const.i.tution itself, or a law, convenes them at a fixed period, and thus makes the _ordinary_ occasions. But the power to adjourn the two houses to a particular time, in cases of disagreement as to the time, is a separate and general power, because the reason for which it was given at all applies equally to all sessions. That reason is, that there may be a peaceful termination of what would otherwise be an endless and dangerous controversy. Both Hamilton in the Federalist and Judge Story in his Commentaries have treated this as a separate and general power. (The Federalist, No. 77. Story on the Const.i.tution, -- 1563.)

CHAPTER XIV.

REPORT OF THE COMMITTEE OF DETAIL, CONTINUED.--FORMATION OF THE JUDICIAL POWER.

There now remains to be described the full conception and creation of the third department of the government, its judicial power.

The distribution of the powers of government, when its subjects are to sustain no relation to any other sovereignty than that whose fundamental laws it is proposed to ordain, is a comparatively easy task. In such a government, when the theoretical division into the legislative, executive, and judicial functions is once adopted, the objects to which each is to be directed fall readily into their appropriate places. All that is necessary is, to see that these departments do not encroach upon the rights and duties of each other.

There is, at least, no other power, claiming the obedience of the same people, whose just authority it is necessary to regard, and on whose proper domain no intrusion is to be permitted.

How different is the task, when a government, either federal or national, is to be created, for a people inhabiting distinct political States, whose sovereign power is to remain for many purposes supreme over their respective subjects; when the individual is to be under rules of civil duty declared by different public organs; and when the object is to provide a judicial system through which this very difference of authority may be made to work out the ends of social order, harmony, and peace! This difficult undertaking was imposed upon the framers of the Const.i.tution of the United States, and it was by far the most delicate and difficult of all their duties. It was comparatively easy to agree on the powers which the people of the States ought to confer on the general government, to define the separate functions of the legislature and the executive, and to lay down certain rules of public policy which should restrain the States in the exercise of their separate powers over their own citizens. But to construct a judicial power within the general government, and to clothe it with attributes which would enable it to secure the supremacy of the general Const.i.tution and of all its provisions; to give it the exact authority that would maintain the dividing line between the powers of the nation and those of the State, and to give to it no more; and to add to these a faculty of dispensing justice to foreigners, to citizens of different States, and among the sovereign States themselves, with a more even hand and with a more a.s.sured certainty of the great ends of justice than any State power could furnish,--these were objects not readily or easily to be attained. Yet they were attained with wonderful success. The judicial power of the United States, considered with reference to its adaptation to the purposes of its creation, is one of the most admirable and felicitous structures that human governments have exhibited.

The groundwork of its formation has been partly described in a previous chapter, where some of the principles are stated, which had been arrived at as being necessary to its great purposes. These principles related to the persons who were to exercise its functions, and to the jurisdiction or authority which they were to possess. With respect to the persons who were to exercise the judicial power, the result that had been reached when the first draft of the Const.i.tution was to be prepared had fixed the tenure of good behavior for their office, and had placed their salaries, when once established, beyond the reach of any power of diminution by the legislature. It had also been determined that there should be one supreme tribunal, under the Const.i.tution, and that the legislature should have power to establish inferior tribunals. But nothing more precise had been arrived at respecting jurisdiction, than the broad principles which declared that it should extend to cases arising under laws pa.s.sed by the general legislature, and to such other questions as might touch the national peace and harmony. The committee of detail were to give effect to this declaration. Their scheme provided, under the first of these heads, that the jurisdiction should embrace cases arising under the laws of the United States; and as questions touching the national peace and harmony, they enumerated all cases affecting amba.s.sadors, other public ministers, and consuls; impeachments of officers of the United States; all cases of admiralty and maritime jurisdiction; controversies between two or more States, excepting such as might regard territory or jurisdiction; controversies between a State and citizens of another State, between citizens of different States, and between a State or the citizens thereof and foreign states, citizens, or subjects. In cases of impeachment, cases affecting amba.s.sadors, other public ministers, and consuls, and those in which a State should be party, they a.s.signed the original jurisdiction to the Supreme Court. In all the other cases enumerated, the jurisdiction of the supreme tribunal was to be appellate only, with such exceptions and regulations as the legislature might make; and the original jurisdiction was left to be a.s.signed by the legislature to such inferior tribunals as they might from time to time create. The trial of all criminal offences, except in cases of impeachment, was to be in the State where they had been committed, and was to be by jury.

Controversies between States respecting jurisdiction or territory, and controversies concerning lands claimed under grants of different States, were to be tried by the Senate, and were consequently excluded from the judicial power.

This plan, when compared with the full outline of the jurisdiction, as it was finally established, presented several remarkable defects. In the first place, it was silent with respect to the important distinction, familiar to the people of the United States, between proceedings in equity and proceedings at common law. This distinction, which extends not only to the forms of pleading, but to the principles of decision, the mode of trial, and the nature of the remedy, had been brought by the settlers of most of the Colonies from England, and had been perpetuated in their judicial inst.i.tutions. It existed in most of the States, at the time of the formation of the national Const.i.tution, and it was, in fact, a characteristic feature of the only system of judicature which the American people had known, excepting in their courts of admiralty. Although the inst.i.tutions of the States differed in the degree in which they had adopted and followed it, the basis of their jurisprudence and forms of proceeding was the common law, as derived from its English sources and modified by their own customs or legislation, with more or less of that peculiar and more ample relief which is afforded by the jurisprudence and remedy known in the English system under the name of equity.

Since the judicial power of the United States was to be exercised over a people whose judicial habits were thus fixed; since it must, to some extent, take cognizance of rights that would have to be adjudicated in accordance with the jurisprudence under which they had arisen; and since the individuals who would have a t.i.tle to enter its tribunals might reasonably demand remedies as ample as a judicature of English origin could furnish, it was highly expedient that the Const.i.tution should fully adopt the main features of that judicature. It is quite true, that a provision in the Const.i.tution extending the judicial power to "all cases" affecting certain persons or certain rights, might be regarded by the legislature as a sufficient authority for the establishment of inferior courts with both a legal and an equitable jurisdiction, and might be considered to confer such a double jurisdiction on the supreme tribunal contemplated by the Const.i.tution.

But the text of the Const.i.tution itself would be the source to which the people of the United States would look, when called upon to adopt it, for the benefits which they were to derive from it, and there would be no part of it which they would scrutinize more closely than that which was to establish the judicial power of the new government.

If they found in it no imperative declaration making it the duty of Congress to provide for a jurisdiction in equity as well as at law, and no express adoption of such a jurisdiction for the supreme tribunal, they might well say that the character of the judicial power was left to the accidental choice of Congress, or to doubtful interpretation, instead of being expressly ordained in its full and essential proportions by the people. If a citizen of one State were to pursue a remedy in the courts of the Union against a citizen of another State, or if one State should have a judicial controversy with another, that would be a very imperfect system of judicature which should leave the form and extent of the remedy to be determined by the local law where the process was to be inst.i.tuted, or which should confine the relief to the forms and proceedings of the common law. If the appellate jurisdiction of the supreme national tribunal were to be exercised over any cla.s.s of controversies originating in the State courts, it was extremely important that the Const.i.tution should expressly ascertain whether suits at law, or suits in equity, or both, were to be embraced within that appellate power. For these reasons, it became necessary for the Convention to supply this defect, by extending the judicial power, both in equity and at law, to the several cases embraced in it.

Another defect in the report of the committee,--or what was regarded as a defect when the Const.i.tution was ratified,--and one which the Convention did not supply, was in the omission of any express provision for trial by jury in civil cases. Such a provision was supplied by an amendment proposed by the first Congress that a.s.sembled under the Const.i.tution, and adopted in 1791; but it was regarded by the framers of the Const.i.tution as inexpedient, on account of the different construction of juries in the different States, and the diversity of their usages with respect to the cases in which trial by jury was used.[352] It is quite possible that, after the Const.i.tution had declared that the jurisdiction of the national tribunals should extend to all cases "in law" affecting certain parties or rights, Congress would not have been at liberty to establish inferior tribunals for the trial of cases "in law" by any other method than according to the course of the common law, which requires that the fact in such cases shall be tried by a jury. But the objection which afterwards prevailed was connected, as we shall presently see, with what was regarded as a dangerous ambiguity in the clause of the Const.i.tution which gave to the Supreme Court its appellate jurisdiction both as to law and fact.