be beyond question and that mere majorities should not control, the approval of two-thirds of the senators present was required for approval of the treaty or convention submitted.

The president, however, does not ordinarily negotiate directly with foreign countries, but indirectly by means of officers of the United States. The question naturally and inevitably arose as to the appointment of officers both to aid the president and to carry out the provisions of the Constitution in this and in other respects. At one time it was proposed that they be chosen by the Senate; but ultimately the convention, while reserving the right on the part of the legislature to determine the mode of appointment, other than those thought to be essential and therefore specified in the Constitution, vested their appointment in the president in the first instance, subject to confirmation in the Senate, as it seemed appropriate that persons to act as officers of the United States should be passed upon and confirmed by the branch of the government representing the States. The convention, in vesting the appointment of officers in the president subject to confirmation by the Senate, seems to have had in mind the practice of Massachusetts, a practice which was specifically called to its attention by Mr. Gorham, with the result that the power was happily at hand and in the following manner:

He shall nominate, and by and with the Advice and Consent 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 Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.1

It was natural, under these circumstances, that he should be empowered to commission all officers of the United States, that he should receive ambassadors and other public ministers, inasmuch as he himself was charged with the conduct of foreign relations; that he should from time to time give to the Congress "information of the state of the Union, and recommend to their consideration such measures as he shall judge necessary and expedient; " and, in view of the experience of the colonies and the provisions to be found in the constitutions of the States, that he should "on extraordinary occasions, convene both houses, or either of them, and in case of disagreement between them, with respect to the time of adjournment, he may adjourn them to such time as he shall think proper." As executive of the United States it was highly desirable that he should, in the language of the Constitution, "take care that the laws be faithfully executed."

If this were all, the eighth of Mr. Randolph's resolutions would have been 1 Article II, Section 2, of the Constitution.

A Check upon the Legislature

overlooked, although the president would indeed enjoy a general authority to execute the national laws, "enjoy the executive rights vested in Congress by the Confederation," in addition to others which could not well exist because of a defect of power in the Congress under the Articles of Confederation. And it may perhaps be said that the eighth resolution was one of the most difficult which confronted the convention, and one which, at the same time, was not the least successfully met and solved.

The necessity was felt on all sides to have some check upon the legislative, just as there was a check upon the executive. Wise laws and unwise statutes could be passed by the national legislature as well as by the legislatures of the States, opposed to the Constitution. This the eighth and fourteenth of Mr. Randolph's resolutions (which can be called the large State plan), as well as the sixth of Mr. Patterson's resolutions (which may be called the small State plan), sought to obviate. The colonies had had experience in both these matters. The King in Council had passed upon acts of the colonies in some cases before they became law; in other cases rejected them within a prescribed period, and set aside decisions of courts of justice based upon alleged laws of the colonies in excess of the grant of power contained in the charter, or in instructions from the Crown. This power of the King in Council must on the whole have been reasonably exercised, inasmuch as the members of the convention frequently referred to it without criticism or disapproval. Indeed the local statesmen of the day retained this right or prerogative in various forms in the constitutions of the several States when they became independent political communities. Projects of the large and the small States containing provisions to the same effect can be taken as an opinion amounting to a conviction that some expedient or device of this kind was felt to be essential to the execution of the proposed Constitution, just as it was to the constitutions of the States and to the colonies under charter or governed directly by instructions from the Crown. The idea was an especial favorite with Mr. Madison and those of his school of thought. The eighth of Mr. Randolph's resolutions could be safely ascribed to Mr. Madison on the evidence of authorship contained in his correspondence with Mr. Randolph and with General Washington in the months preceding the Convention.1 The principle was sound but the method was faulty.

Admitting the necessity of some check upon the legislature, there were strong reasons for lodging it in the hands of the executive. This would indeed be cooperation with the legislature in the framing of laws, violating to a certain degree the separation of functions which had been adopted as a fundamental principle of the proposed Constitution. It would be a further viola

1 See letter to Edmund Randolph, April 8, 1787, The Writings of James Madison, Hunt ed., Vol. ii, pp. 336-340; and to George Washington, April 16, 1787, Ibid., pp. 344–352.

tion, and indeed a very serious one, if the judiciary, charged with the interpretation of the laws, should be required to participate with the legislature and executive in their making. Therefore, after much discussion, debate and heart-burning on the part of Messrs. Madison and Wilson, the president was given a veto upon the proposed legislation of Congress, separate and distinct from the judiciary. Article 3 of the Constitution of the State of New York, eliminating there from the cooperation of the judiciary, had furnished a precedent which Massachusetts adopted, freed from the cooperation of the judges, in Section I, Article II of the Constitution of that commonwealth. The New York expedient was to have even a larger influence and application. Substituting the president for the council, the Federal Convention literally took this provision from the following passage of Article 3 of the Constitution of the State of New York of April 20, 1777:

And that all bills, which have passed the senate and assembly, shall, before they become laws, be presented to the said council for their revisal and consideration; and if upon such revision and consideration, it should appear improper to the said council, or a majority of them, that the said bill should become a law of this state, that they return the same, together with their objections thereto in writing, to the senate or house of assembly, in whichsoever the same shall have originated, who shall enter the objections sent down by the council, at large, in their minutes, and proceed to reconsider the said bill. But if after such reconsideration, two-thirds of the said senate or house of assembly, shall, notwithstanding the said objections, agree to pass the same, it shall, together with the objections, be sent to the other branch of the legislature, where it shall also be reconsidered, and if approved by twothirds of the members present, shall be a law.

And in order to prevent any unnecessary delays, be it further ordained, that if any bill shall not be returned by the council within ten days after it shall have been presented, the same shall be a law, unless the legislature shall, by their adjournment, render a return of the said bill within ten days impracticable; in which case the bill shall be returned on the first day of the meeting of the legislature, after the expiration of the said ten days.1

So much for the act of Congress, which the president may deem unwise or inconsistent with the terms of the Constitution.

A more delicate and difficult question arose in the case of an act of a State legislature, which might be unwise and, in addition, inconsistent with the terms of the Constitution or an act of Congress or a treaty of the United States. The view which ultimately prevailed was stated in the session of August 23, 1787, by Mr. Sherman, who thought a negative unnecessary, "the laws of the General Government being Supreme & paramount to the State laws according to the plan as it now stands." 2 Mr. Wilson, as set as Mr. Madison upon the council of revision as a check upon the States, is

1 The Constitutions of the Several Independent States, 1781, pp. 63-4.

2 Documentary History, Vol. iii, pp. 601-2.

reported by the latter to the effect that he "considered this as the key-stone wanted to compleat the wide arch of Government we are raising. The power of self-defence had been urged as necessary for the State Governments It was equally necessary for the General Government. The firmness of Judges is not of itself sufficient - Something further is requisite - It will be better to prevent the passage of an improper law, than to declare it void when passed." To which Mr. Rutledge of South Carolina replied, apparently with some heat, for he was not of an uncholeric disposition, that "If nothing else, this alone would damn and ought to damn the Constitution. Will any State ever agree to be bound hand & foot in this manner. It is worse than making mere corporations of them whose bye laws would not be subject to this shackle."

The way out was contained in the sixth of Mr. Patterson's resolutions, providing" that all Acts of the U. States in Cong., and all Treaties made & ratified under the authority of the U. States shall be the supreme law of the respective States so far forth as those Acts or Treaties shall relate to the said States or their Citizens, and that the Judiciary of the several States shall be bound thereby in their decisions, any thing in the respective laws of the Individual States to the contrary notwithstanding."2 With slight modifications this clause became Article VI of the perfected Constitution, leaving with the president what may be called an executive veto of the acts of Congress and with the judiciary a judicial veto of the acts of the Congress and of the States inconsistent with the Constitution of the Union, whether embodied in the State constitutions or in their ordinary laws.

The President, it will be recalled, is charged with the execution of the laws of the United States, and it does not require argument that these should be executed, otherwise their enactment would be worse than futile. It is, however, to be borne in mind that the government created by the Constitution was one without precedent, and that a principle was fortunately found which was meant to prevent the impracticable method of execution by force against a State, by having the laws operate directly on the individual, by virtue whereof a private citizen violating the law could be arrested and punished, and an official, national or State, violating the law could be restrained under a government of laws, not of men. Indeed, Mr. Madison based the distinction between a national and a federal government on the fact that the former operated upon individuals, whereas the latter operated upon the States, and although this distinction did not appear clearly in the text of Mr. Randolph's resolutions, it may well have been in the minds of the Virginian members who stood sponsor for them

1 Documentary History, Vol. iii, p. 602.
2 Ibid., pp. 127-8.

In the plan of the Virginian delegation which Mr. Randolph laid before the convention on May 29th, the last clause of the sixth resolution authorized the national legislature "to call forth the force of the Union agt. any member of the Union failing to fulfill its duty under the articles thereof," a proposition likewise contained in the New Jersey plan, introduced on June 15th by William Patterson of that State, authorizing the federal government "to call forth ye power of the Confederated States, or so much thereof as may be necessary to enforce and compel an obedience to such Acts, or an Observance of such Treaties." 2

On the 30th of May, that is to say the very next day after Mr. Randolph's resolutions were introduced, Mr. Mason of Virginia observed, as reported by Mr. Madison, "that the present confederation was not only deficient in not providing for coercion & punishment agt. delinquent States; but argued very cogently that punishment could not in the nature of things be executed on the States collectively, and therefore that such a Govt. was necessary as could directly operate on individuals, and would punish those only whose guilt required it." 3

A very little experience of the temper of the Convention convinced Mr. Madison of the impracticability of this provision, although he himself is credited with the authorship of the Virginian plan, so that on May 31st, but two days after the introduction of the resolution, he changed his mind, as appears from the following extract from the debates:

The last clause of Resolution 6 authorizing an exertion of the force of the whole agst a delinquent State came next into consideration.

Mr. Madison observed that the more he reflected on the use of force, the more he doubted the practicability, the justice and efficacy of it when applied to people collectively and not individually, a Union of the States containing such an ingredient seemed to provide for its own destruction. The use of force agst. a State, would look more like a declaration of war, than an infliction of punishment, and would probably be considered by the party attacked as a dissolution of all previous compacts by which it might be bound. He hoped that such a system would be framed as might render this recourse unnecessary, and moved that the clause be postponed.” 4

Mr. Madison informs us that "this motion was agreed to nem. con." It does not figure in the Constitution for the reasons disclosed and set forth in the debates.

A few days later, to be specific on June 8th, Mr. Madison recurred to the subject and confirmed his recantation of the use of force against a State. Thus: