with Notes of Reference (1803)St. George Tucker Executive Powers
| 
251. De Lolme, p. 149.
252. 1 Blacks. Com. 229.
253. C. U. S. Art. 1. Sec. 3. Art. 2. Sec. 4.
254. C. U. S. Art. 2 L. U. S. 1 Cong. 1 Sess. c. 4, 7, 12, 20. Sec. 35. 5 Cong. c. 52.
255. C. U. S. Art. 2. Sec. 1.
256. L. U. S. 2 Cong. c. 8.
257. C. U. S. Art. 2. Sec. 2.
258. 1 Blacks. Com. 154. De Lolme on the English Constitution, 171.
259. 1 Blacks. Com. 308.
260. C. U. S. Art. 2. L. U. S. 2. Cong. c. 8.
261. It may be demonstrated, that twenty representatives, at the last election, of a president and vice-president, might have carried the election against eighty-six: this supposes all the small states to have voted together.
262. C. U. S. Art. 2. §. 2.
263. Ibid. Art. 1. §. 8.
264. L. U. S. 5 Cong. c. 64. The establishment of a large corps of officers, to be provisionally employed, might be compared to the establishment of the Legion of Honour, in France. The corps of volunteers, the officers of which were likewise to be appointed by the president, alone, may be regarded in the same light. Can it be doubted that such distinguished mark, of presidential favour, must produce correspondent effects? Men ambitious of distinctions, are rarely ungrateful to their patrons in power.
265. 4 Blacks. Com. 396, 397.
266. C. U. S. Art. 1. §. 3. Art. 2. §. 2.
267. 4 Blacks. Com. 399, 400.
268. Spaven's Puffendorf, vol. 2. 346.
269. Grotius, 339, &c.
270. C. U. S. Art. 4. Sec. 4.
271. L. V. Edi. 1794. c. 40.
272. C. U. S. Art. 4. §. 3.
273. On the 24th of March, 1796, the house of representatives came to the following resolution "
| That the president of the United States he requested to lay before this house a copy of the instructions to the minister of the United States, who negotiated the treaty with the king of Great Britain, communicated by his message of the first of March, together with his correspondence and other documents relative to the said treaty; excepting such of said papers as any existing negotiation may render improper to be disclosed." |
The president answered,
| "That the power of making treaties is exclusively vested in the president, by and with the advice and consent of the Senate, provided two-thirds of the senators present concur; and that every treaty so made, and promulgated, thenceforward becomes the law of the land." "That the necessity of caution and secrecy in foreign negotiations, was one cogent reason for vesting the power in that manner." "That to admit a right in the house of representatives to demand, and to have, as a matter of course, all the papers respecting a negotiation with a foreign power, would be to establish a dangerous precedent." "That it being perfectly clear to his understanding, that the assent of the house of representatives is not necessary to the validity of a treaty; as the treaty with Great Britain exhibits in itself all the objects requiring legislative provision, and on these, the papers called for can throw no light; and as it is essential to the due administration of the government, that the boundaries fixed by the constitution between the different departments should be preserved. A just regard to the constitution, and to the duty of his office, under all the circumstances of the case, forbad a compliance with their request." |
On the 6th of April following, the house of representatives came to the following resolution:
| Resolved, that it being declared by the second section of the second article of the constitution, that 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, the house of representatives do not claim any agency in making treaties; but, that when a treaty stipulates regulations on any of the subjects submitted by the constitution to the power of congress, it must depend for its execution, as to such stipulations, on a law or laws to be passed by congress; and it is the constitutional right and duty of the house of representatives in all such cases, to deliberate on the expediency or inexpediency of carrying such treaty into effect, and to determine and act thereon, as in their judgment may be most conducive to the public good."
"Resolved, that it is not necessary to the propriety of any application from this house to the executive for information desired by them, and which may relate to any constitutional functions of the house, that the purposes for which such information may be wanted, or to which the same may be applied, should be stated in the application." |
275. A majority of two thirds of the senate being required to concur in opinion in both cases, and a majority of the senate being necessary to form a quorum in all cases, such a majority can never be formed on the trial of an impeachment without calling in at least two members of the former majority of the senate.
276. 2 Federalist, 210.
277. C. U. S. Art. 1. Sec. 3. And as a conviction upon an impeachment, is no bar to a prosecution upon an indictment, so perhaps, an acquittal may not be a bar.
278. Amendments proposed by the convention of Virginia, Art. 19. New York and North Carolina, proposed amendments to the like effect.
279. Constitution of Virginia Art. 16. 17. L. V. Edi. 1794. c. 72.
280. Debates on the treaty making power, p. 345.
281. Resolution of the house of representatives, April 6, 1796.
282. Such a doctrine appears to have been strenuously advocated in congress, some years ago. See debates on the treaty making power: March and April 1796. Philadelphia, printed 1796.
283. The commission-officers for an army of 85,000 men (including the volunteer corps which were authorised to be raised by the president) would amount to more than than 4,500. See the acts of 5 Cong. c. 7 and 48. Sec 3. c. 56. Sec. 2. c. 64. Sec. 2. 7. c. 74. Sec. 2. 4. c. 81. c. 93. Sec. 7. 8. c. 128. Sec. 99. c. 137. Sec 2. 6. c. 153, with many others.
284. See the speech of Mr. Gallatin on the foreign intercourse bill; by which it appears that the patronage of the executive (even before the passage of the law mentioned in the last note,) amounted in March, 1798, to the enormous sum of two millions of dollars, annually. It probably is not less at this day, notwithstanding the immense changes that have been made.
285. On the English Constitution, B. 2. c. 4.
286. C. U. S. Art. 1. Sect, 7.
287. C. U. S. Art. 2. Sect. 1, 3.
288. Montesquieu's Spirit of Laws, Vol. 1. p.173. Grotius, p.313.
289. Vattel, p. 348. &c. Grotius, 330.
290. The occasion here alluded to, was the president's proclamation of neutrality in June, 1793. This was merely an admonition, to the people of the U. States, of the duty imposed on them by the law of nations, and an annunciation of the fact that we were at peace with all nations. Both houses of congress in their addresses to the president approved of the proclamation, 3 Cong. 1 Session.
291. The proclamation of the two former presidents recommending fasting and prayer, were of this nature; they were an assumptton of power not warranted by the constitution, or rather prohibited, by the true spirit of the third article of amendments. Some persons excused the act as amounting only to the advice of the president as an individual. Why then was it clothed with all the forms of authority, the seal of the United States, and the attestation of the secretary of state?
292. Articles of confederation and perpetual union, Art. 9, and 10.