forward, and appears to be favoured by some of the most intelligent and upright of our public men.

Having fully explained the manner in which the supreme executive office is constituted, and the mode of electing the President, I proceed to consider,

11. The powers with which he is invested.

1. The first of these which offers itself to observation is one which has already been adverted to in reviewing the legislative department, and the connexion between it and the executive power, for the preservation of their mutual independence—I mean the qualified negative of the President upon the 'concurrent acts of Congress, or his right of returning bills and resolutions, with his objections to them, to the house in which they originated, for reconsideration, whereby they are prevented from taking effect as laws, unless again passed by two thirds of the members present in each house respectively.

The propensity of the legislative department to intrude upon the rights and absorb the powers of the other weaker branches of the government, and the consequent necessity of furnishing the latter with constitutional arms for their defence, have already been the subject of remark. From clear and indubitable principles, it has been shown that, without this control over the proceedings of Congress, the executive department would be unable to sustain itself against the encroachments of the Legislature. The President might be gradually stripped of his authority by concurrent resolutions of Congress, or so weakened as ultimately to be annihilated by a single vote even of the more popular branch of the Legislature; and by the one mode or the other, the legislative and executive powers might speedily be united in the same hands. Indeed, if no tendency had ever been.

manifested in legislative bodies to invade the rights of the executive power, just reasoning and theoretic propriety would of themselves teach us that the one ought not to be left to the mercy of the other, but should, on the contrary, be endowed with a constitutional and effectual power of self-defence.

It

But the power in question has a farther use. not only serves as a shield to the executive authority, but affords an additional security against the enactment of improper laws. It establishes a salutary guard upon the legislative power, well calculated to defend the community against the effects of faction, precipitancy, or any impulse hostile to the public good, which may happen for a moment to influence the majority of Congress. The propriety of resting such a power in the chief magistrate has been sometimes combated on the ground of its presuming that a single individual was possessed of more wisdom and virtue than a numerous assembly. The question, however, does not depend upon the supposition of superior wisdom and virtue in the President, but upon the presumption that the Legislature, if possessed of those qualities in the highest degree, would still be fallible; that the love of power would sometimes dispose them to acts injurious to the rights of the other members of the government; that a spirit of faction might sometimes pervert their deliberations; and that momentary impressions might sometimes impel them to measures which, upon mature reflection, they would themselves condemn. Thus the primary inducement of conferring this power on the President is to enable him to defend himself; the secondary, to increase the chances in favour of the community against the passage of bad laws by Congress, through haste, inadvertence, or design.

2. The President is constituted commander-inchief of the army and navy of the United States, and of the militia of the several states when called into the service of the Union. The command and direction of the public force, to execute the laws, maintain peace and tranquillity at home, and resist invasion from abroad, are powers so obviously of an executive nature, and so peculiarly demand the exercise of qualities characteristic of that department-these duties have been so uniformly appropriated to it in every well-organized government, and are so consonant to the precedents of the state constitutions, that little is necessary to explain or enforce them. Of all the cares or concerns of government, the management of war, which implies the direction of the public force, demands most peculiarly the exercise of power by a single hand; and even those of our states which have, in other matters, coupled their chief magistrate with a council, have, for the most part, concentrated the military authority exclusively in him.

3. The President has the sole power of granting reprieves and pardons for offences against the United States, except in cases of impeachment. The necessity of such an authority in every government arises from the infirmities incident to the adminis. tration of human justice. And were it possible in every case to maintain a just proportion between the crime and the penalty; were the rules of testimony, and the mode of trial, so perfect as to preclude every possibility of mistake or injustice; even then policy would sometimes require the remission of a punishment strictly due for a crime clearly ascertained. Both humanity and policy dictate that this benign prerogative of mercy should be as little as possible fettered and embarrassed, and suggest

as plainly the expediency of vesting it in the President.

As the sense of responsibility is always stronger in proportion as it is undivided, it may justly be inferred that one man will be most ready to listen to the force of motives and reasons for mitigating the rigour of the law, and least apt to yield to inducements calculated to shelter a fit object from its exemplary visitation; while, on the other hand, as men generally derive confidence from their numbers, it may, with equal justice, be apprehended that they might often encourage each other in acts of obduracy, and be less sensible to the dread of censure for an injudicious or affected clemency. The power of pardon vested in the President is not, however, without limitation. He is precluded, as we have seen, in cases of impeachment, from screening public officers, with whom he might possibly have formed a dangerous or corrupt coalition, or may frequently be his favourites and dependants.

4. The President has power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the senators present concur.

Much difference of opinion seems to prevail among writers on government upon the question whether, in the natural distribution of power, the authority to negotiate and conclude compacts and arrangements with foreign nations is properly of legislative or of executive cognizance. As treaties are declared by the Constitution to be a part of the supreme law of the land; as by means of these national engagements new relations are formed, and new obligations contracted, it seems more consonant to the principles of the government to consider the right of entering into them as falling within the jurisdiction of the Legislature. On the other hand, the preliminary negotia

tions which may be required, and the secrecy and despatch proper to take advantage of a sudden and favourable turn in public affairs, render it expedient to place this power in the hands of the executive. The framers of the Constitution were influenced by the latter more than the former consideration; but although the power in question, if we carefully attend to its operation, will be found to partake more of the legislative than of the executive character, yet it does not seem to fall strictly within either. The essence of the legislative power is to prescribe laws for the regulation of the commonwealth; while the execution of those laws, and the employment of the public force, either for that purpose, or for the common defence, comprise all the proper functions of the executive magistrate. The power of making treaties relates neither to the execution of subsisting laws, nor to the making of new ones. Its objects are contracts, which have, indeed, the force of laws, but derive that force, not from legislation, but from the obligations of good faith. They are not rules prescribed by the supreme legislative power to the citizens of the state, but agreements between sovereign and independent states. This power, then, forms a distinct department, and the Constitution has wisely confided it to the President.

The qualities indispensable in the management of international intercourse and negotiation, point to the President as the most fit organ of communication with foreign powers, and the efficient agent in the conclusion of treaties; while the vast importance of the trust, and the operation of treaties as laws, strongly recommend the participation of a portion, at least, of the legislative power in the office of making them. The Senate was most judiciously selected for that purpose, not only as the deposite of the power in