of presidential impeachment which we have experienced. These postulates rest both upon natural reason and necessity. Democratic doctrinaires have tried to make it appear that such privileges can only spring from the monarchic principle that the "King can do no wrong"; but their argumentation is a tissue of sophistry. All states have found it necessary to recognize the complete personal independence of the executive head of the government, and some of them have founded it upon the doctrine that the "King can do no wrong." But there is another and deeper principle than that of the immaculate character of the king, upon which both the monarchic doctrine and the republican doctrine of the executive independence rest, vis; the necessary order of authority in every political organization. It is impossible to make the supreme executive head of the government subject to process without ultimately destroying all power to execute process, i.e. without disorganizing the government. It is impossible to make the executive head of the government of the United States subject to process without destroying the unity of the executive power, without placing a part of the power to execute the laws under the control of some other person than the President; and this the constitution forbids, in that it vests the whole executive power in the President. It is impossible to execute any process upon the President of the United States should he resist it, for the constitution makes the whole machinery of execution subject ultimately to his command. Moreover, the constitution vests in the President the unlimited power of pardon, except for impeachment. He could therefore, if made subject to ordinary process of law, free himself by pardoning himself. From whatever standpoint we regard the question, we are forced to the conclusion that the President is personally inviolable, and that it is the presumption of law that he has done no wrong until the Senate, by a two-thirds vote, upon a prosecution instituted by a majority of the House of Representatives, expels him from the presidency.

There is no danger to the people in this principle. There would be great and constant danger in the opposite theory. Under the opposite theory, any magistrate might, at the instigation of any individual, cause interregnum or a devolution of the presidential office, thus defeating the will of the whole people in the choice of the President, and exposing the whole people to the danger of anarchy. Moreover, as I have said, the principle only suspends the powers of the courts to subject the President to process. Upon his descent from office he becomes immediately liable to prosecution for every crime and misdemeanor committed while in office. There is but one process which he can escape by descent from office, viz; impeachment. Whether he can escape impeachment by resigning his office in the face of an impeachment, is a question. Upon technical grounds, it would appear that he can. The constitution, certainly, recognizes the power of the President to resign at his own discretion; and the statute of March 1st, 1792, provides that the "only evidence of a refusal to accept, or of a resignation. of the office of President or Vice-President, shall be an instrument in writing, declaring the same, subscribed by the person refusing to accept, or resigning, as the case may be, and delivered into the office of the Secretary of State." 2 The President may therefore resign at any moment; and there is no body vested with the power to refuse the resignation. From the moment that he deposits his resignation in the office of the Secretary of State, he ceases to be an officer; and when he ceases to be an officer he is no longer subject to the process of impeachment. He may thus avoid part of the penalty which the Senate might inflict in a condemnation on impeachment, viz; disqualification from hold ing office in the future.

1 United States Constitution, Art. II, sec. 1, § 5.

2 United States Revised Statutes, sec. 151.

8 United States Constitution, Art. II, sec. 4.

CHAPTER IV.

THE POWERS OF THE PRESIDENT.

I. The Diplomatic Powers.

I. The constitution vests the President with the power to negotiate treaties, conventions and agreements with foreign states. The exact language of the constitution is: "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." In the power to make a treaty must be included the power to make conventions and agreements, upon the principle that the greater includes the less. In the making of a treaty two distinct processes must be recognized. The first is the fixing of the points of the agreement, the negotiation; and the second is the ratification. From the nature of the case, the President must conduct the first. It requires secrecy, concentration of responsibility, and promptness of decision. The Senate, according to this principle, will be confined, in its activity, to the process of ratification. This is not only the dictum of a sound political science, but it is also the practice of our government.

The constitution, furthermore, makes the power of the President to negotiate treaties and agreements with foreign states practically exclusive as against the powers of the commonwealths. It forbids a commonwealth absolutely from entering into any treaty, alliance or confederation with a foreign state;1 and it forbids a commonwealth, without the consent of Congress, from entering into any agreement or compact with a 1 United States Constitution, Art. II, sec. 2, § 2. 2 Ibid. Art. I, sec. 10, § 1.

foreign state.1 The constitution apparently makes a distinction between treaties and agreements, forbidding the commonwealths absolutely from making the former, but allowing them, by consent of the Congress, to make the latter. If Congress should give its consent, then, naturally, the governor of the commonwealth concerned would be enabled, so far as the constitution of the United States is concerned, to negotiate the agreement with the foreign state. He would exercise a diplomatic power. This is a relic of confederatism. It does not trouble us in practice, but in theory it is an excrescence.

2. The constitution vests in the President the power of nominating the diplomatic and consular agents of the United States to foreign states, and of commissioning them. The exact language of the constitution is: "He shall nominate, and, by and with the advice and consent of the Senate, shall appoint, ambassadors, other public ministers and consuls . . . and shall commission all the officers of the United States. The power to nominate and commission these officials is thus vested wholly in the President. The power to "appoint" appears to be attributed to him and to the Senate jointly; but the exclusive power to nominate and to commission leaves nothing to the Senate but the power of approval; and that was meant to be the function of the Senate alone. The language of the constitution is a little unfortunate and obscure. It has given rise to claims on the part of the Senate, or rather of the senators, to participate in the nominations, even to dictate the nominations, claims which have caused the President, at times, great embarrassment. This is unwarranted by the constitution. The advice and consent of the Senate can be given only by way of a vote of approval or disapproval of the President's nomination. The advice and consent of individual senators have no constitutional force or value. The President alone may appoint these officials during a recess of the Senate, and com

1 United States Constitution, Art. I, sec. 10, § 3.

2 Ibid. Art. II, sec. 3.

mission them for a term which may extend to the expiration of the next session of the Senate.1 This power is expressly conferred by the constitution. It is of course implied that he shall make nominations to the Senate, at its next following session, for permanent appointments to such posts, but this is not expressly required by the constitution or by statute.

It is also implied, from the principle of the sole responsibility of the President in supervising the execution of the laws, that the President is authorized to dismiss or suspend any person from any diplomatic or consular office. During a period of twenty years, from 1867 to 1887, the Congress took a different view of the powers of the executive in this matter. In the tenure of office acts, of 1867 and 1869, the Congress went upon the theory that, inasmuch as the constitution makes no express provision for the dismissal and suspension of such officers or of officers generally, the Congress has the power to regulate the subject by law. The abolition of these acts, in the year 1887, may mean that Congress now regards these powers as conferred upon the executive by the constitution, and it may mean that Congress itself, now and for the time being, simply permits the President a discretionary exercise of these powers.2 There is a very wide difference in the two views. If the former be the correct interpretation, the Congress is debarred from any re-enactment of such measures. If the latter, then the Congress may again regulate this subject by statute. The Court has never had opportunity to pronounce upon the constitutionality of the acts of 1867 and 1869. There is no doubt that one of the great parties in our politics regarded them, at the time of their enactment, as encroachments upon the executive prerogatives. I think there is little doubt, also, that the friends of these measures were anxious to prevent any case involving their constitutionality from coming before 1 United States Constitution, Art. II, sec. 2, § 3.

2 Parsons v. United States, 167 U. S. Reports, 324.