an absolute inhabitancy in the United States during the whole period, but such an inhabitancy as constitutes a permanent domicil. Any other construction would take away the citizenship of any public officer resident abroad in pursuance of his duty.

§ 300. 5th Clause. In case of the removal of the President from office, or of his death, resignation, or inability to discharge the powers and duties of said office, the same shall devolve on the Vice-President; and the Congress may by law provide for the case of removal, death, resignation, or inability, both of the President and Vice-President, declaring what officer shall then act as President, and such officer shall act accordingly, until the disability be removed, or a President shall be elected.

Congress, on this head, have provided, that in case of the removal, death, or resignation, or inability of the President and Vice-President, the President pro tem. of the Senate, and in case there shall be no such President of the Senate, then the Speaker of the House of Representatives for the time being, shall act as President, until the disability be removed or the vacancy filled.

§301. The case of a vacancy in the offices of President and Vice-President, by reason of non-election at the proper period, is not provided for in the Constitution. Congress have declared that, in case of such an event, there shall immediately be held a new election. Whether this be constitutional or not is unsettled.

§ 302. 6th Clause. The President shall, at stated times, receive for his services a compensation which shall neither be increased nor diminished during the period for which he shall have been elected; and he shall not receive within that period any other emolument from the United States, or any of them.

The object of this provision is plain enough; it would not be proper to allow either the general or state governments an opportunity, by increasing or diminishing the

salary of the executive to play upon its wants or its avarice. Congress have permanently fixed the salary of the President at twenty-five thousand dollars, and that of the Vice-President at five thousand dollars.

§303. 7th Clause. Before he enter on the execution of his office, he shall take the following oath or affirma

tion:

I do solemnly swear (or affirm), that I will faithfully execute the office of President of the United States, and will, to the best of my ability, preserve, protect, and defend the Constitution of the United States.

The solemnities of an oath seem to be proper and necessary to all responsible offices, and peculiarly so to that great and sacred one, the chief magistracy of a great republic.

SECTION II.

$304. 1st. Clause. The President shall be commander in chief of the army and navy of the United States, and of the militia of the several states, when called into the actual service of the United States; he may require the opinion in writing of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices; and he shall have power to grant reprieves and pardons for offences against the United States, except in cases of impeachment.

The power to command the army and navy, militia, and entire military armament, flows necessarily from the nature of an executive. It is made the duty of the executive to enforce the laws, preserve order, and repel invasions, duties which could not be performed without the command of requisite force.

§ 305. The power of the President to delegate his authority to another officer was disputed during the last war.2 The exception, however, seems untenable, from

11 Kent's Comm. 264.

K

28 Mass. Rep. 548.

the reason that, if no one but the President in person can command them, then the President can only control one detachment in one place,-a result evidently contrary to the intention of the Constitution. During the administration of Washington, the governor of Virginia commanded several detachments from different states under the appointment of the President, without dispute.1 The power to require opinions in writing from the heads of departments is the mere expression of a power which was necessarily incident to the organization of the executive.

§ 306. The power to grant reprieves and pardons is one which requires to be, and is exercised. It has been supposed by some that a perfect criminal code requires no such power; but there is no perfect criminal code. There is no such administration of human justice, that, after the conviction of the prisoner, it shall always be improper and unjust to pardon him. The only proper depository of such a power is the executive. The Judiciary cannot pardon without first supposing itself wrong in its own decisions; nor can the Legislature without relaxing the law. He, however, whose only duty it is to execute the laws, which others have made and adjudged, may very consistently be allowed to exercise a discretion in punishment.

§ 307. 2d Clause. He 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 consent and advice 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 offi

15 Marshall's Washington, 580.

cers as they think proper, in the President alone, in the courts of law, or in the heads of departments.

Some very important political questions have arisen out of this provision, and agitated the minds of eminent statesmen, as well as the councils of the country.

§ 308. In the year 1796, a treaty was made1 by Mr. Jay with Great Britain, containing some stipulations very offensive to the House of Representatives. The 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.2

§ 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

15 Marshall's Life of Washington, 650. Debates, 250, 275.

24 Elliott's

appointed by, and not responsible to, the executive, he cannot be accountable for the performance of those duties.1

§ 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 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 till recently. In favour of the power were Messrs. Madison, Ames, Boudinot, and Baldwin; against it, Messrs. Sherman, Gerry, Smith, and Jackson.

§ 312. A learned commentator2 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

14 Elliott's Debates, 148.

23 Story's Comm. 395, 396.