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Again, the President and Senate have, by treaty, often regulated commercial affairs with other nations : customs, tonnage, duties, and the like, and foreigners have been naturalized by treaty en masse on the annexation of territory, although the Constitution expressly confers all these powers upon Congress.

490. The Relation of a Treaty to the Constitution and Laws.-The Constitution, the laws made in persuance thereof, and treaties entered into, are the supreme law of the land (Article VI.; clause 2). Hence State constitutions and laws in conflict with a treaty are, to this extent, null and void. In the Cherokee Tobacco Case.. the Supreme Court held that a treaty cannot change the National Constitution, or be held valid if it is in violation of that instrument; also that a treaty may supersede a prior act of Congress, and an act of Congress a prior treaty. In the Chinese Exclusion Case, the Court held that the act of Congress excluding Chinese laborers from the country is constitutional, although contrary to a treaty previously entered into with China. In 1798 Congress declared the United States freed and exonerated from the stipulations of all existing treaties and conventions with France.

IV. THE CIVIL SERVICE. Section 2, Clause 2.—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,

Section 2, Clause 3.-The President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session.

491. Officers of the United States.-The Constitution creates Senators and Representatives, and directs how

1 Hauenstein v. Lynham, 100 U. S. 483.

211 Wallace 616. 3 130 U. S. 581.



they shall be elected. It creates Presidential Electors, and commits the mode of their appointment to the State Legislatures. It creates the President and the Vice-President, and provides for their election. It provides also for a Chief Justice. Furthermore, the Constitution assumes that Congress will, by law, provide for public ministers of various grades, consuls, judges of the Supreme Court and the inferior courts, heads of departments, and inferior officers, and so indirectly gives it power to provide for them. For the most part, however, the Constitution commits the creation of offices to the law-making power. The rule is that the President cannot create offices, or appoint men to offices that have not been created.

492. Classes of Officers.-As respects their appointment, officers are divisible into three groups.

The President nominates, and by and with the consent of the Senate appoints, ambassadors, other public ministers and consuls, and judges of the Supreme Court.

Cougress vests the appointment of inany inferior officers in the President alone, in the courts of law, or in the heads of Departments.

3. The President nominates, and by and with the consent of the Senate, appoints all officers established by law who do not fall into either one of the preceding classes. The heads of Departments, for example, fall into this third class, which is a very large one.

493. Employes of the Government.—Only a minority of the persons engaged in the civil service are called officers. There are at all times thousands of persons in that service who are employed, not appointed, and are discharged, not removed. In this class are found not only the laborers in the navy yards, arsenals, and elsewhere, but also many persons in continuous service at custom houses and other offices, as well as clerks of committees, commissions, etc.

494. Vesting the Appointing Power.-The President appoints his private secretary and the clerks of his office. The Judges appoint the officers of their own courts, only the marshals are appointed by the President and Sen


ate. The appointment of their own subordinates, save the principal ones, which fall into the third class, is vested in the heads of Departments. For example, the PostmasterGeneral appoints all postmasters whose salaries are less than $1,000.

495 Nomination and Confirmation.--The advice and consent of the Senate in making appointments, like its advice and consent in making treaties, is practically consent only. The President sends a nomination to the Senate in writing ; the Senate commonly refers the nomination to the committee on the particular branch of the public business with which the officer will deal, as the Committee on Commerce, or the Judiciary; and then, on its report, the Senate confirms or rejects the nomination. If the Senate refuses to confirm, the President makes another nomination, and so on until the office is filled. Sometimes, but rarely, the President has nominated the same man the second time. The Senate acts on nominations in executive session. Defending this mode of appointment, Alexander Hamilton said: “The blame of a bad nomination falls upon the President simply and absolutely ; the crime of rejecting a good one lies entirely at the door of the Senate; while if a bad appointment is made, the two participate in the opprobrium and disgrace." 1

496. Courtesy of the Senate.-The theory of the Constitution is that the Senate, in advising and consenting to appointments, attends only to the merits of the persons nominated. The practice is widely different. In his first administration, Washington nominated a naval officer for the port of Savannah, whom the Senate refused to confirm, because the nominee was personally obnoxious to the Senators from Georgia. This was the beginning of the so-called “ tesy of the Senate,” according to which the Senate, as a rule, does not confirm a nominee unless he is acceptable to one or both of the Senators from the State in which the office exists, provided they, or one of them, belongs to the political party that for the time has a majority in the body, This custom practically puts the Senators, or a Senator, from a State in the room of the Senate as an advisivg body.


1 The Federalist, No. 77.

497. Power of Removal.—Save officers convicted on impeachment, the Constitution says nothing about removals from office. At the same time, it is clear that removals are sometimes necessary for causes that would not justify impeachment. Who shall make these removals ? Hamilton said in “The Federalist,” that the consent of the Senate would be as necessary to displace an officer as to appoint him in the first place; and no other view appears to have been entertained before the Constitution went into operation. But this did not become the practice.

While considering, in 1789, the organization of the Treasury Department, the House of Representatives discussed the subject of removals thoroughly. Some members advocated the view asserted by Hamilton the year before; others, as Mr. Madison, contended that the power of removal belonged to the President alone; Mr. Benson, of New York, advocated the theory that the President could remove at his own pleasure ; while still others held that an officer could not be removed unless actually impeached. The House, by a vote of 34 to 20, and the Senate, by the casting vote of the Vice-President, declared in favor of the second theory. Congress accordingly made the heads of the State, Treasury, and War Departments removable by the President alone, and this has since practically been the rule. The decision of 1789 was greatly influenced by the confidence reposed in Washington.

498. Removals from Office. --Although Congress left the causes for which removals might be made wholly to the discretion of the President, there were only 73 removals in 10 administrations. Washington made 9, John Adams 9, Jefferson 39, Madison 5, John Quincy Adams 2, Monroe 9. In this period the rule was, that the Presia dent made removals for legal and moral reasons only. President Jackson, in 1829, introduced a new order of things. In one year he made 734 removals; some of them to punish his political enemies, some to reward his political friends, and some to strengthen his party. This was adopting in its widest latitude the theory that the President could remove at his pleasure. The new method was borrowed from the politicians of New York, and Mr. Marcy, of that State, defending it in the Senate said : “When they are contending for victory, they avow the intention of enjoying the fruits of it. If they are defeated, they expect to retire from office. If they are successful, they claim as matter of right the advantages of success. They see nothing wrong in the rule that to the victors belong the spoils of the enemy."

499. The Spoils System.-President Jackson's course produced great dissatisfaction. In 1835 a committee of the Senate, Mr. Calhoun chairman, said the spoils system was as perfect a scheme as could be devised for enlarging the power of patronage, destroying love of country, and substituting a spirit of subserviency and manworship, encouraging vice and discouraging virtue, preparing for the subversion of liberty, and the establishment of despotism. An attempt was made to enact a law requiring the President, when making nominations that would work removals, to state the fact in his message, and to give the reason for which the removals were made. This attempt failed, and President Jackson went on as before. President Van Buren followed in the footsteps of his predecessor. When the Whigs came into power in 1841, although they had vehemently denounced the preceding administration for introducing the spoils system, they adopted it; and from that day to this, when a change of administration has occurred, and especially when it has involved a chavge of political party, there have been numerous removals for personal, factional, or political reasons.

500. Civil Service Reform.-Soon after the Civil War public attention was drawn to the state of the civil service. The Civil Service Reformers, who appeared at that time, hold that the President should be free to choose those officers that have to do with matters of public policy, such as the heads of Departments and their principal subordinates, from the party that has elected him ; also that these officers should be personally acceptable to him; but they contend that inferior officers and employés, who perform routine duties, should be appointed with sole reference to fitness and during good behavior. They also condemn assessments of money upon office-holders for party purposes. Since 1869 some practical reforms have been made in the civil service.

In 1883 the Pendleton Act was passed, of which these are the principal features: There shall be competitive examinations of candidates in the Departments at Washington, and in Custom-Houses and Post-Offices having 50 clerks; when a vacancy in such a department or office arises, it shall be filled from the four highest on the list of those who have passed such examinations; each State and Territory shall be entitled to a fair proportion of the appointments,

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