Commentaries on American Law (1826-30)
Chancellor James Kent
Of the President
THE title of the present lecture may conveniently be examined in the following order: 1. The unity of this department. 2. The qualifications required by the constitution for the office of president. 3. The mode of his appointment. 4. His duration. 5. His support. 6. His powers.
(1.) By the constitution, it is ordained, that the executive powers shall be vested in a president.1
The object of this department is the execution of the law; and good policy dictates that it should be organized in the mode best calculated to attain that end with precision and fidelity. Consultation is necessary in the making of laws. The defect or grievance they are intended to remove, must be distinctly perceived, and the operation of the remedy upon the interests, the morals, and the opinion of the community, profoundly considered. A comprehensive knowledge of the great interests of the nation, in all their complicated relations and practical details, seems to be required in sound legislation; and it shows the necessity of a free, full, and perfect representation of the people, in the body entrusted with the legislative power. But when laws are duly made and promulgated, they only remain to be executed. No discretion is submitted to the executive officer. It is not for him to deliberate and decide upon the wisdom or expediency of the law. What has been once declared to be law, under all the cautious forms of deliberation prescribed by the constitution, ought to receive prompt and irresistible obedience. The characteristic qualities required in the executive department, are promptitiide, decrsion, and force; and these qualities are most likely to exist when the executive authority is limited in a single person, moving by the unity of a single will. Division, indecision, and delay, are exceedingly unfavorable to that steady and vigorous administration of the law, which is necessary to secure tranquillity at home, and command the confidence of foreign nations. Every government ancient and modern, which has been constituted on different principles, and adopted a compound executive, has suffered the evils of it; and the public interest has been sacrificed, or it has languished under the inconveniences of an imbecile or irregular administration. In those states which have tried the project of executive councils, the weakness of them has been strongly felt and strikingly displayed; and in every instance in which they have been tried, (as in Pennsylvania and Georgia, for instance,) they were soon abandoned, and a single executive magistrate created, in accordance with the light afforded by their own experience, as well as by the institutions of their neighbors.
Unity increases not only the efficacy, but the responsibility of the executive power. Every act can be immediately traced and brought home to the proper agent. There can be no concealment of the real author, and, generally, none of the motives of public measures, when there are no associates to divide, or to mask responsibility. There will be much less temptation to depart from duty, and much greater solicitude for reputation, when there are no partners to share the; odium, or to communicate confidence by their example. The eyes of the people will be constantly directed to a single conspicuous object; and, for these reasons, De Lolme2 considered it to be a sound axiom of policy, that the executive power was more easily confined when it was one. “If the execution of the laws,” he observes, “be entrusted to a number of hands, the true cause of public evils is hidden.
Tyranny, in such states, does not always beat down the fences that fire set around it, but it leaps over them. It. mocks the efforts of the people, not because it is invincible; but because it is unknown.” The justness of these reflections might be illustrated and confirmed by a review of the proceedings of the former council of appointment in this state. All efficient responsibility was there lost, by reason of the constant change of the members, and the difficulty of ascertaining the individual to whom the origin of a bad appointment was to be attributed.
(2.) The constitution requires,3 that the president should be a natural born citizen, or a citizen of the United States at the time of the adoption of the constitution, and that he have attained to the age of thirty file years, and have been fourteen years a resident within the United States. Considering the greatness of the trust, and that this department is the ultimately efficient power in government, these restrictions will not appear altogether useless or unimportant. As the president is required to be a native citizen of the United States, ambitious foreigners cannot intrigue for the office, and the qualification of birth cuts off all those inducements from abroad to corruption, negotiation, and war, which have frequently and fatally harassed the elective monarchies of Germany and Poland, as well as the Pontificate at Rome. The age of the president is sufficient to have formed his public and private character; and his previous domestic residence, is intended to afford to his fellow citizens the opportunity to attain a correct knowledge of his principles and capacity, and to have enabled him to acquire habits of attachment and obedience to the laws, and of devotion to the public welfare.
(3) The mode of his appointment presented one of the most difficult and momentous questions that could have occupied the deliberations of the assembly which framed the constitution; and if ever the tranquillity of this nation is to be disturbed, and its peace jeopardized, by a struggle for power among themselves, it will be upon this very subject of the choice of a president, This is the question that is eventually to test the goodness, and try the strength of the constitution; and if we shall be able, for half a century hereafter, to continue to elect the chief magistrate of the union with discretion, moderation, and integrity, we shall undoubtedly stamp the highest value on our national character, and recommend our republican institutions, if not to the imitation, yet certainly to the esteem and admiration of the more enlightened part of mankind. The experience of ancient and modern Europe has been unfavorable to the practicability of a fair and peaceable popular election of the executive head of a great nation. It has been found impossible to guard the election from the mischiefs of foreign intrigue and domestic turbulence, from violence or corruption; and mankind have generally taken refuge from the evils of popular elections in hereditary executives, as being the least evil of the two. The most recent and remarkable change of this kind occurred in France in 1804, when the legislative body changed their elective into an hereditary monarchy, on the avowed ground that the competition of popular elections led to corruption and violence And it is a curious fact in European history, that on the first partition of Poland, in 1773, when the partitioning powers thought it expedient to foster and confirm all the defects of its wretched government, they sagaciously demanded of the Polish diet, that the crown should continue elective.4 This was done for the very purpose of keeping the door open for foreign intrigue and influence. Mr. Paley5 condemns all elective monarchies, and he thinks nothing is gained by a popular choice worth the dissentions, tumults, and interruptions of regular industry, with which it is inseparably attended. I am not called upon to question the wisdom or policy of preferring hereditary to elective monarchies among the great nations of Europe, where different orders and ranks of society are established, and large masses of property accumulated in the hands, of single individuals, and where ignorance and poverty are widely diffused, and standing armies are necessary to preserve the stability of the government. The state of society and of property in this country, and our moral and political habits, have enabled us to adopt the republican principle, and to maintain it hitherto with illustrious success. It remains to be seen whether the checks which the constitution has provided against the dangerous propensities of our system will ultimately prove effectual. The election of a supreme executive magistrate for a whole nation, affects so many interests, addresses itself so strongly to popular passions, and holds out such powerful temptations to ambition, that it necessarily becomes a strong trial to public virtue, and even hazardous to the public tranquillity. The constitution, from an enlightened view of all the difficulties that attend the subject, has not thought it safe or prudent to refer the election of a president directly and immediately to the people; but it has confided the power to a small body of electors, appointed in each state, under the direction of the legislature: and to close the opportunity as much as possible against negotiation, intrigue, and corruption, it has declared that congress may determine the time of choosing the electors, and the day on which they shall vote, and that the day of election shall be the same in every state.6 This security has been still further extended, by the act of congress,7 directing the electors to be appointed in each state within thirty-four days of the day of election.
The constitution,8 directs that the number of electors in each state shall be equal to the whole number of senators and representatives which the state is entitled to send to congress, and according to the now existing apportionment of congress, the president is elected by 261 electors. And to prevent the person in office at the time of the election from having any improper influence on his re-election, by his ordinary agency in the government, it is provided, that no member of congress, nor. any person holding an office of trust or profit under the United States, shall be an elector; and the constitution has in no other respect defined the qualifications of the electors.9 These electors meet in their respective states, at the place appointed by the legislature thereof, on the first Wednesday in December in every fourth year succeeding the last election, and vote by ballot for president and vice president, (for this last officer is elected in the same and for the same period as the president,) and one of whom at least shall not be an inhabitant of the same state with the electors. They name in their ballots the person voted for as president, and in distinct ballots, the person voted for as vice president, and of the number of votes for each, which list they sign, and certify and transmit, sealed, to the seat of government of the United States, directed to the president of the senate. The act of congress of 1st March, 1792, sec. 2. directs that the certificate of the votes shall be delivered to the president of the senate before the first Wednesday in January next ensuing the election. The president of the senate, on the second Wednesday in February succeeding every meeting of the electors, in the presence of both houses of congress, opens all the certificates, and the votes are then to be counted. The constitution does not expressly declare by whom the votes are to be counted, and the result declared. In the case of questionable votes, and a closely contested election, this power may be all important; and I presume, in the absence,of all legislative provision on the subject, that the president of the senate counts the votes, and determines the result, and that the two houses are present only as spectators, to witness the fairness and accuracy of the transaction, and to act only if no choice be made by the electors. The house of representatives, in such eases, are to choose immediately, which, I presume, may be while the two houses are so together, though they may vote after they have retired, for the constitution holds their choice to be valid, if made before the fourth day of March following. And in the cases of the elections in 1801 and in 1825, the house of representatives retired and voted, and the senate were admitted to be present as spectators. The person having the greatest number of votes for president is president, it such number be a majority of the whole number of electors appointed; but if no person have such majority, then, from the persons having the highest number, not exceeding three, on the list of those voted for as president, the house of representatives shall choose immediately by ballot the president. But in choosing the president, the votes shall be taken by states, the representation from each state having one vote. A quorum for this purpose shall consist of a member or members from two thirds of the states, and a majority of all the states shall be necessary to a choice. If the house of representatives shall not choose a president whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the vice president shall act as president, as in the case of the death or other constitutional disability of the president.10
The person having the greatest number of votes as vice-president, is vice president, if such number be a majority of the whole number of electors appointed; and if no person have a majority, then, from the two highest numbers on the list, the senate shall choose the vice president; a quorum for the purpose shall consist of two thirds of the whole number of senators, and a majority of the whole number is necessary to a choice; and no person constitutionally ineligible to the office of president, shall be eligible to that of vice president of the United States.11 The constitution does not specifically prescribe when or where the senate is to choose a vice president, if no choice be made by the electors, and, I presume, the senate may elect by themselves, at any time before the fourth day of March following.
It is provided by law12 that the term of four years, for which a president and vice president shall be elected, shall, in all cases, commence on the fourth day of March next succeeding the day on which the votes of the electors shall have been given.
In case of the removal of the president from office, or of his death, resignation, or inability to discharge the power, and duties of the office, the same devolve on the vice president; and congress are authorized to provide, by law, for the case of the vacancy in the office, both of president and vice president, declaring what officer should then act as president, and the officer so designated is to act until the office be supplied.13 In pursuance of this constitutional provision, the act of congress of March 1st, 1792, sec. 9 declared, that in case of a vacancy in the office, both of president and vice president, the president of the senate pro tempore, and in case there should be no president of the senate, then the speaker of the house of representatives, for the time being, should act as president, until the vacancy was supplied. The evidence of refusal to accept, or of a resignation of the office of president or vice president is declared by the same act of congress, sec. 11 to be a declaration in writing, filed in the office of the secretary of state. And if the office should, by the course of events, devolve on the speaker, after the congress for which the last speaker was chosen had expired, and before the next meeting of congress, it might be a question who is to serve, and whether the speaker of the house of representatives, then extinct, could be deemed the person intended.
The mode of electing the president appears to be well calculated to secure a discreet choice, and to avoid till those evils which the partisans of monarchy have described, and the experience of other nations and past ages have too clearly shown to be the consequence of popular elections. Had the choice of president been referred at once to the people at large, as one single community, there might have been reason to apprehend, and such no doubt was the sense of the convention, that it would have produced too violent a contest, and have been trying the experiment on too e tended a scale for the public virtue, tranquillity, and happiness. But a still greater and more insuperable difficulty was, that such a measure would be an entire consolidation of the government of this country, and an annihilation of the state sovereignties, so far as concerned the organization of the executive department of the union. This was riot to be permitted or endured, and it would, besides, have destroyed the balance of the union, and reduced the weight of the slave-holding states to a degree which they would have deemed altogether inadmissible. Had we imitated the practice of most of the southern states, in respect to their state executives, and referred the choice of the president to congress, this would have rendered him too dependent upon the immediate authors of his elevation to comport with the requisite energy of his own department; and it would have laid him under the temptation to indulge in improper intrigue, or to form a dangerous coalition with the legislative body, in order to secure his continuance in office. All elections by the representative body are peculiarly liable to intrigues and coalitions for sinister purposes. The constitution has avoided all these objections, by confiding the power of election to a small number of select individuals in each state, chosen only a few days before the election, and solely for that purpose. This would seem, prima facie, to be as wise a provision as the wisdom of man could have devised, to avoid all opportunity for foreign or domestic intrigue. These electors assemble in separate and distantly detached bodies, and. they are constituted in a manner best calculated to preserve them free from all inducements to disorder, bias, or corruption. There is no other mode of appointing the chief magistrate, under all circumstances peculiar to our political condition, which appears to unite in itself so many unalloyed advantages. It must not be pronounced to be a perfect scheme of election, for it has not been sufficiently tried. The election of 1801 threatened, the tranquillity of the union; and the difficulty that occurred in that case in producing a constitutional choice, led to the amendment of the constitution on this very subject; but whether the amendment be for the better or for the worse, may be well doubted, and remains yet to be settled by the lights of experience. The constitution says, that each state is to appoint electors in such manner as the legislature may direct; and in this and some other states, the electors have always been chosen by the legislature itself, in the mode prescribed by law. But it is to be presumed that there would be less opportunity for dangerous coalitions, and combinations for party, or ambitious, or selfish purposes, if the choice of electors was referred to the people at large; and this seems now to be the sense and expression of public opinion.
(4.) The president thus elected, holds his office for the term of four years, a period, perhaps, reasonably long for the purpose of making him feel firm and independent in the discharge of his trust, and to give stability and some degree of maturity to his system of administration, It is certainly short enough to place him under a due sense of dependence on the public approbation.
(5.) The support of the president is secured by a provision in the constitution, which declares14 that he shall, at stated times, receive for his services a compensation, that shall neither be increased nor diminished, during the period for which he shall have been elected; and that he shall not receive, within that time, any other emolument from the United States, or any of them. This provision is intended to preserve the due independence and, energy of the executive department. It would be in vain to declare that the different departments of government should he kept separate and distinct, while the legislature possessed a discretionary control over the salaries of the executive and judicial officers. This would be to disregard the voice of experience, and the operation of invariable principles of human conduct. A control over a man’s living is, in most cases, a control over his actions. The constitution of Virginia considered it as a fundamental axiom of government, that the three great and primary departments should be kept separate and distinct, so that neither of them exercised the powers properly belonging to the other. But without taking any precautions to preserve this principle in practice, it made the governor dependent on the legislature for his annual existence and his annual support. The result was, as Mr. Jefferson has told us,15 “that during the whole session of the legislature, the direction of the executive was habitual and familiar. The constitution of Massachusetts discovered more wisdom, and it set the first example in this country, of a constitutional provision for the support of the executive magistrate, by declaring that the governor should have a salary of a fixed and permanent value, amply sufficient, and established by standing laws.
Those state constitutions which have been made or amended since the establishment of the constitution of the United. States, have followed the example which it has happily set them, in this and in many other instances; and we may consider it as one of the most signal blessings bestowed on this country, that we have such a wise fabric of government as the constitution of the United States constantly before our eyes, not only for our national protection and obedience, but for our local imitation and example.
Having thus considered the manner in which the president is constituted, it only remains for us to review the powers with which he is invested.
He is commander in chief of the army and navy of the United States, and of the militia of the several states, called into the service of the Union.16 The command and application of the public force to execute the law, maintain peace, and resist foreign invasion, are powers so obviously of an executive nature, and require the exercise of qualities so characteristical of this department, that they have always been exclusively appropriated to it in every well organized government upon earth. In no instance, perhaps, did the enlightened understanding of Hume discover less acquaintance with the practical science of government, than when he gave the direction of the army and navy, as well as nil the other executive powers, to one hundred senators, in his plan of a perfect commonwealth.17 That of Milton was equally chimerical and absurd, when, in his “Ready and easy way to establish a free Commonwealth,” he deposited the whole executive, as well as legislative power, in a single and permanent council of senators. That of Locke was equally unwise, for, in his plan of legislation for Carolina, he gave the whole authority, legislative and executive, to a small oligarchical assembly. Such specimens as these will well justify the observation of President Adams,18 “that a philosopher may be perfect master of Descartes and Leibnitz, may pursue his own inquiries into metaphysics to any length you please, may enter into the inmost recesses of the human mind, and make the noblest discoveries for the benefit of his species; nay, he may defend the principles of liberty, and the rights of mankind, with great abilities and success, and, after all, when called upon to produce a plan of legislation, he may astonish the world with a signal absurdity.”
The president has also the power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment. The Marquis Beccaria has contended, that the power of pardon does not exist under a perfect administration of law, and that the admission of the power is a tacit acknowledgment of the infirmity of the course of justice. And where is the administration of justice, it may be asked, that is free from infirmity? Were it possible, in every instance, to maintain a just proportion between the crime and the penalty, and were the rules of testimony, and the mode of trial so perfect, as to preclude every possibility of mistake or injustice, there would be some color for the admission of this plausible theory. But, even in that case, policy would sometimes require a remission of a punishment strictly due, for a crime certainly ascertained. The very notion of mercy implies the accuracy of the claims of justice. An inexorable government, says Mr. Yorke, in his Considerations on the law of Forfeiture,19 will not only carry justice in some instances to the height of injury, but with respect to itself it will be dangerously just. The clemency of Massachusetts, in 1786, after an unprovoked and wanton rebellion, in not inflicting a single capital punishment, contributed, by the judicious manner in which its clemency was applied, to the more firm establishment of their government. And this power of pardon will appear to be the more essential, when we consider, that under the most. correct administration of the law, men will sometimes fall a prey to the vindictiveness of accusers, the inaccuracy of testimony, and the fallibility of jurors. Notwithstanding this power is clearly supported on principles of policy, if not of justice, English lawyers of the first class, and highest reputation,20 have strangely concluded, that it cannot exist in a republic, because nothing higher is acknowledged than the magistrate. Instead of falling into such an erroneous conclusion, it might fairly be insisted, that the power way exist with greater safety in free states, than in any other forms of government; because abuses of the discretion unavoidably confided to the magistrate in granting pardons, are much better guarded against by the sense of responsibility under which he acts. The power of pardon vested in the president is without any limitation, except in the single case of impeachments. He is checked in that case from screening public officers, with whom he might possibly have formed a dangerous or corrupt coalition, or who might be his particular favorites and dependents.
The president has also the power, by and with the advice and consent of the senate, to snake treaties, provided two thirds of the senators present concur.21
Writers on government have differed in opinion as to the nature of this power, and whether it be properly, in the natural distribution of power, of legislative or executive cognizance. As treaties are declared by the constitution to be the supreme law of the land, and as, by means of them, new relations are formed, and obligations contracted, it might seem to be more consonant to the principles of republican government, to consider the right of concluding specific terms of peace as of legislative jurisdiction. This has generally been the case in free governments. The determinations respecting peace, as well as war, were made in the public assemblies of the nation at Athens and Rome, and in all the Gothic governments of Europe, when they first arose out of the rude institutions of the ancient Germans. On the other hand, the preliminary negotiations which may be required, the secrecy and dispatch proper to take advantage of the sudden and favorable turn of public affairs, seem to render it expedient to place this power in the hands of the executive department. The constitution of the United States has been influenced by the latter, more than by the former considerations, for it has placed this power with the president, under the advice and control of the senate, who are to be considered for this purpose in the light of an executive council. The president is the constitutional organ of communication with foreign powers, and the efficient agent in the conclusion of treaties; but the consent of two thirds of the senators present is essential to give validity to his negotiations. To have required the acquiescence of a more numerous body, would have been productive of delay. disorder, imbecility, and probably, in the end, a direct breach of the constitution. The history of Holland shows the danger and folly of placing too much limitation on the exercise of the treaty-making power. By the fundamental charter of the United Provinces, peace could not be made without the unanimous consent of the provinces; and yet, without multiplying instances, it is sufficient to observe, that the immensely important and fundamental treaty of Munster, in 1648, was made when Zealand was opposed to it; and the peace in 1661, when Utrecht was opposed. So feeble are mere limitations upon paper mere parchment barriers, when standing in opposition to the strong force of public exigency.
The senate of the United States is a body of men most wisely selected for the deposit of this power. They are easily assembled, are governed by steady systematic views, feel a due sense of national character, and can act with promptitude and firmness.
The question, whether a treaty constitutionally made, was obligatory upon congress, equally as any other national engagement would be, if fairly made by the competent authority; or whether congress had any discretionary power to carry into effect a treaty requiring the appropriation of money, or other act to be done on their part, or to refuse it their sanction, was greatly discussed in congress in the year 1796, and again in 1816. The house of representatives, at the former period, declared, by resolution, that when a treaty depended for the execution of any of its stipulations on an act of congress, it was the right and duty of the house to deliberate on the expediency or inexpediency of carrying such treaty into effect. It can not be mentioned, at this day, without equal regret and astonishment, that such a resolution passed the house of representatives on the 7th of April, 1796. But it was a naked abstract claim of right never acted upon; and congress shortly afterwards passed a law to carry into effect the very treaty with Great Britain, which gave rise to that resolution. President Washington, in his message to the house of representatives of the 30th of March, 1796, explicitly denied the existence of any such power in congress; and he insisted, that every treaty duly made by the president and senate, and promulgated, thenceforward became the law of the land.
If a treaty be the law of the land, it is as much obligatory upon congress as upon any other branch of the government, or upon the people at large, so long as it continues in force and unrepealed. The house of representatives are not above the law, and they have no dispensing power. They have a right to make and repeal laws, provided the senate and president concur; but without such concurrence, a law in the shape of a treaty is as binding upon theta as if it were in the shape of an act of congress, or of an article of the constitution, or of a contract made by authority of law. The argument in favor of the binding and conclusive efficacy of every treaty made by the president and senate, is so clear and palpable, that it has probably carried very general conviction throughout the community, and this may be now considered as the decided sense of public opinion. This was the sense of the house of representatives in 1816, and the resolution of 1796 would not now be repeated.
The president is the efficient power in the appointment of the officers of government. He is to nominate, and with the advice and consent of the senate, to appoint ambassadors, other public ministers and consuls, the judges of the Supreme Court, and all other officers whose appointments are not otherwise provided in the constitution; but congress may vest the appointment of inferior officers in the president alone, in the courts of law, or in the heads of departments.22
The appointment of the subordinate officers of government concerned in the administration of the law, belongs with great propriety to the president, who is bound to see that the laws are faithfully executed, and who is generally charged with the powers and responsibility of the executive department. The association of the senate with the president in the exercise of this power, is an exception to the general delegation of executive authority, and if he were not expressly invested with the exclusive right of nomination in the instances before us, the organization of this department would be very unskillful, and the government degenerate into a system of cabal, favoritism, and intrigue. But the power of nomination is, for all the useful purposes of restraint, equivalent to the power of appointment. It imposes upon the president the same lively sense of responsibility, and the same indispensable necessity of meeting the public approbation or censure. This, indeed, forms the ultimate security that men in public stations will dismiss interested considerations, and act with a steady zealous, and undivided regard for the public welfare. The advice and consent of the senate, which are requisite to render the nomination effectual, cannot be attended, in the nature of the ease, with very mischievous effects. Having no agency in the nomination, nothing but simply consent or refusal, the spirit of personal intrigue and personal attachment must be pretty much extinguished, from a want of means to gratify it. On the other hand, the advice of so respectable a body of men will add still further inducements to a coolly reflected conduct in the president, and will be at all times a check on his own misinformation or error.
The remaining duties of the president consist in giving information to congress of the state of the union, and in recommending to their consideration such measures as he shall judge necessary or expedient. He is to convene both houses of congress, or either of them, on extraordinary occasions, and he may adjourn them in cases of disagreement. He is to supply occasional vacancies that happen during the recess of the senate, by granting commissions, which shall expire at the end of their next session. He is to receive ambassadors and other public ministers, to commission all the officers of the United States, and take care that the laws be faithfully executed.23
The propriety and simplicity of these duties speak for themselves. The power of receiving foreign ministers includes in it the power to dismiss them, since he alone is the organ of communication with them, the representative of the people in all diplomatic negotiations, and accountable to the community, not only for the execution of the law, but for the competent qualifications and conduct of foreign agents.
In addition to all the precautions which have been mentioned, to prevent abuse of the executive trust, in the mode of the president’s appointment, his term of office, and the precise and definite limitations imposed upon the exercise of his power, the constitution has also rendered him directly amenable by law for mal-administration. The inviolability of any officer of government is incompatible with the republican theory, as well as with the principles of retributive justice. The president, as well as all other officers of the United States, may be impeached by the house of representatives for treason, bribery, and other high crimes and misdemeanors, and upon conviction by the senate, removed from office.24 If, then, neither the sense of duty, the force of public opinion, nor the transitory nature of the seat, are sufficient to secure a faithful discharge of the executive trust, but the president will use the authority of his station to violate the constitution or law of the land, the house of representatives can arrest him in his career by resorting to the power of impeachment.
I have now finished a general survey of the office of president of the United States; and considering the nature and extent of the powers necessarily incident to that station, it was difficult to constitute the office in such a manner as to render it equally safe and useful, by combining in the structure of its powers a due proportion of energy and responsibility. The first is necessary to maintain a firm administration of the law; the second is equally requisite to preserve inviolate the liberties of the people. The authors of the constitution appear to have surveyed these two objects with profound discernment, and to have organized the executive department with consummate skill.