to the peace and security, and even the existence of the Nation. If the States could keep troops or ships of war in time of peace; enter into agreements or compacts with one another, or with foreign powers; or engage in war, unless invaded or in imminent danger, the Union would, in a short time, be wholly broken up. Unions would be formed within the Union; State treaties with foreign powers would be made; war would result, and disintegration would surely follow.

The States not Sovereign.

445. It is idle to hold that any body politic is sovereign, in the proper sense of the word, which is denied such powers as entering into treaties and compacts, granting letters of marque and reprisal, coining money, emitting bills of credit, establishing legal tender, laying imposts and tonnage taxes, keeping troops and ships of war in times of peace, and engaging in war.

NOTE.-The difficulty of adjusting the powers of Congress in respect to commerce to the rights of the States, has been remarked in Chapter XXV.

Mr. Desty groups the following points that had been adjusted, with appropriate citations: "Private interest must be made subservient to the general interest of the community, so the power of States over police regulations is supreme. A State law intended as a regulation of police, is not a regulation of commerce, but the police power cannot be extended over inter-State transportation of the subjects of commerce. A State may regulate the position of vessels in her harbors or rivers, or may regulate the speed of steamers or railroad trains. States may prohibit the introduction of slaves, or exclude paupers, criminals, diseased or infirm persons, and persons afflicted with contagious diseases, and may exact a bond to indemnify from expense of maintaining passengers after arrival ; but to exclude passengers who are in possession of their faculties, and neither paupers nor criminals, is a regulation of commerce which the State cannot exercise. So a State cannot legislate to prevent the importation of cattle during certain seasons of the year, this being more than an exercise of its police powers; but it may regulate the introduction of game during certain months; but forbidding the exportation of game, lawfully killed within the State, is unconstitutional. A State may forbid the sale of an illuminating liquid below a certain standard, or regulate the use of explosives and dangerous oils and substances, or may remove the same. The police power extends to the protection of the lives, limbs, health, comfort, morals, and quiet of all persons, and the protection of all property in the State. This clause does not interfere with the rights of States to enact inspection, quarantine, and health laws, as well as laws regulating internal commerce, or commerce local in its character, as requiring the master of a vessel to report the names, ages, and origin of passengers. Inspection laws are not burdens on trade, nor unjust discriminations, so long as they are reasonable; but a statute requiring vessels to furnish statements of the name and owner is void as to United States vessels. So, a statute relating to the survey of sea-going vessels is a regulation of commerce, and void."-The Constitution of the United States, p. 72; also, p. 298.

CHAPTER XXVIII.

VESTING THE EXECUTIVE POWER.

ARTICLE II.

Section 1, Clause 1.-The executive power shall be vested in a President of the United States of America. He shall hold his office during the term of four years, and, together with the Vice-President, chosen for the same term, be elected as follows.

446. Need of a National Executive.-With the throwing off of allegiance to the British Crown, the States ceased to be subject to any common executive authority. The Governors were but State executives. The President of Congress was merely a presiding officer. Congress had some slight executive powers, but there was no proper National executive. Much of the weakness of the Confederation was due to this fact, and there was in the Convention of 1787 practical unanimity of opinion that this defect must be cured. Accordingly, the Virginia plan and the Jersey plan, Pinckney's draft and Hamilton's draft, both provided for an Executive department.

447. An Independent Executive. The leading members of the Convention were determined to make the Executive Department thoroughly independent of the other departments, and especially of the Legislature. Mr. Madison said: "Experience in all the States had evinced a powerful tendency in the Legislature to absorb all power into its vortex. This was the real source of danger to the American constitutions, and suggested the necessity of giving every defensive authority to the other departments that was consistent with republican principles." And Mr. Hamilton: "We have seen that the tendency of repub

1 Elliot's Debates, Vol. V., p. 345.

1

lican governments is to an aggrandizement of the legislative at the expense of the other departments."!

To

448. A Single Executive.-The framers of the Constitution were more or less jealous of executive power. prevent even the semblance of monarchy, some of them favored an executive that should consist of two or more persons, chosen from the same number of divisions of the Union. On this question the Virginia plan was silent, the Jersey plan proposed a plural executive, while Pinckney and Hamilton each proposed a single executive. By a vote of eight States to three the Convention, in committee of the whole, adopted the unitary plan.

Mr. Randolph stated that the arguments against a single executive were these: (1) The people were opposed to it, and it would never have their confidence; (2) it was unnecessary; and (3) a single chief magistrate would commonly come from the central part of the Union, and consequently the remote parts would not be on an equal footing. It was replied that a plurality of magistrates chosen for the same number of districts would lead to constant struggles for local advantage; that the executive power would be weakened by its divisions and animosities; that the States all had single executives; that a plural executive would be particularly ill-adapted to controlling the militia, the army, and the navy; that the animosities arising from a tripartite executive would not only interrupt the public administration, but diffuse their poison through the other branches of government, through the States, and at length through the people at large.2

449. Style and Title of the Executive.-Hamilton proposed that the chief magistrate be called Governor, Pinckney that he be called President. A report submitted to the Convention proposed that his style should be The President of the United States, and his title, His Excellency. President was already familiar to the country; the Albany plan of 1754 contained the name and recommended such an office; Congress had a president, and some of the States styled their chief magistrates President. So this style was generally approved.

1 The Federalist, No. 49.

2 Elliot's Debates, Vol. V., pp. 141, 149-151.

Soon after the Government went into operation, some of the Federalists in Congress proposed the style, His Highness, the President of the United States, and Protector of their Liberties. It was then agreed that the President should be addressed in official documents simply as President of the United States.

450. Length of Term and Re-eligibility.-Hamilton proposed that the President should serve during good behavior. A single term of seven years was the declared preference of the Convention almost to its close, when, owing to a change in the plan of election that had previously been agreed upon, the term of four years was adopted, and the restriction to a single term was struck out.

The wisdom of shortening the term and of making the President eligible for a second term, has been doubted from the first, and especially in recent times. The main argument against a second term is, that the President will be apt to use the power that his office gives him, as the power to make appointments to office, to promote his re-election. It has therefore been often suggested that the Constitution be so amended as to limit the President to one term of six or seven years.

CHAPTER XXIX.

ELECTION OF PRESIDENT AND VICE-PRESIDENT. 1

ARTICLE II.

Section 1, Clause 2.-Each State shall appoint, in such manner as the Legislature thereof may direct, a number of Electors equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress; but no Senator or Representative, or person holding an office of trust or profit under the United States, shall be appointed an Elector.

451.

Mode of Election.-A far more troublesome question than that of a single or plural executive was, How shall the Executive be chosen? It is said to have occupied more than one-seventh of all the time of the Convention. The question may be stated in this more definite form: How the Executive could be chosen and at the same time be independent of the power that chose him. Many different plans were proposed as, election by the Houses of Congress, by the Senate, by the people voting en masse, by the people voting in districts; election by electors chosen by the Governors of the States, by electors chosen by the people, by electors chosen by the State Legislatures, by electors chosen by lot from Congress, by secondary electors chosen by primary electors, and electors appointed as the State Legislatures should direct.

452. The Convention's First Decision.-The Virginia plan proposed that the Executive should be chosen by Congress, and this mode of election was the decided preference of the Convention until near the end of its session. Many times it declared in favor of this mode by decided votes. And yet, September 4, the Committee of Detail recommended election by electors, and two days later this

1 See references to Chapter XXX.