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the framers of the constitution certainly did not wish that duties should be fixed in a way repugnant to the views of the house of representatives, and yet this might be brought about at any moment by a commercial treaty. Of course it must not be inferred that in general there should be no commercial treaties. But Daniel Webster was certainly right in advising his countrymen to consider carefully before beginning to handle questions of duties in connection with treaties. The considerations which led him to give this advice are of even more importance now. The president and senate in concluding commercial treaties, and indeed treaties of all kinds, must keep steadily in mind the house of representatives, not only in order not to excite its sensitiveness and jealousy and to avoid any con

1 See his letter of November 25, 1842, to Everett, in Curtis, Life of D. Webster, II., 174. The Nation of January 29, 1885, says: "There have been treaties negotiated by President Arthur and now before the senate, that make, or will make if ratified, a new departure in our diplomacy. A series of commercial treaties, that tie the hands of the government in the future levy of duties on merchandise from all or a large part of the states and colonies on the south of us, must be of tremendous significance. The consequences of such treaties for good or for evil the country is just beginning to appreciate, and does not yet fully comprehend. Fortunately, President Arthur has inserted in the Spanish treaty, and presumably in all the commercial treaties that are on the way, a stipulation that they shall not be exchanged and proclaimed as binding till not only the senate, but the law-making power, has ratified them." As to the important results of this proviso it says farther on, in the same article: "If ratified by the senate, those treaties must then by the president be submitted to congress as a legislative body, and President Cleveland [a president, thus, who had nothing to do with the negotiation and conclusion of the treaties] may be called on to approve or veto the doings of congress thereon. Therefore, the responsibility of ratifying, exchanging and proclaiming the Spanish treaty may, and probably will, rest in the end on President Cleveland. He will probably be called on to deal with the whole subject de novo."

flict with it, but also in order not to act in opposition to the spirit of the constitution. It need but be suggested that the treaty-power embraces also treaties of peace to make it clear at the first glance that president and senate may remain fully within the letter of their constitutional authority and yet be in conflict with the fundamental ideas of the constitution. Nobody will assert that no treaty of peace should be concluded which did not in all its parts receive the approval of the house of representatives. But since the constitution gives congress the right to declare war, a treaty of peace, which a considerable majority of the house of representatives condemns in toto and with great emphasis, would seem to be a stretching of the authority of president and senate, according to the spirit of the constitution, although in a concrete case they may not only be politically fully justified but may also merit hearty thanks.

This leads to the last great question, to wit: Has the house of representatives the right to annul a treaty made in accordance with the constitution by the president by and with the advice and consent of the senate, by refusing its co-operation when this is necessary to carry out the stipulations of the treaty?

We already know the constitutional provision which declares that treaties, like the constitution itself and the federal laws, are "the supreme law of the land." As far as a treaty requires no legislation in order to become operative, federal and state judges are bound in making their decisions to regard it as valid from the very moment of its conclusion. If, however, the stipulations are of the nature of a contract, binding the powers concerned to perform certain acts, then the contract must be fulfilled by the action of the legislature (or executive) before the special provisions of the treaty become binding upon the

courts. But there can be no legislation without the cooperation of the house of representatives. The other factors of government cannot enforce this co-operation. The house, therefore, is always able in such a case to annul a treaty in fact, although it has no part in the power of making a treaty. Whether it has the right to do so has repeatedly given rise to very incisive and exciting debates. These debates have not led, however, to any certain decision of the question. The house has not withheld its co-operation; but it has also not dropped its claim of the right to act entirely in accordance with its own judgment, in cases when the fulfillment of the treaty requires it to make an appropriation or do anything else, as to which it may incontestably decide under all other circumstances with full freedom.

$59. THE APPOINTING POWER. Since the constitution, as has already been mentioned, imposes upon the president the duty of taking care that the laws be faithfully executed, it grants him, at the same time, the greatest influence in the selection of the persons by whom these laws are to be executed; that is, the federal officers. The right is unquestionably a necessary consequence of the duty, but only within certain limits. In no state, and least of all in a republic which is pre-eminently a state founded on law and governed "not by persons but by laws," can there be a reasonable ground for every inferior officer's being dependent for his office, that is, for his bread, immediately and absolutely upon the head of the state. On the other hand there are weighty reasons why in a republic the head of the state, even in the selection of those officers, who in a greater or less degree must be persons having his personal confidence, should not be free from all control. The provisions of the con1 Foster vs. Neilson, Peters, II., 253.

stitution as to the appointment of officials are drawn from both points of view. Besides diplomatic representatives and consuls, only the members of the federal supreme court are explicitly designated as officials to be appointed by the president with the consent of the senate. For the rest, the general phrase is used of "all other officers of the United States whose appointments are not herein otherwise provided for and which shall be established by law." This provision is, however, limited by the clause already mentioned, that "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." It is difficult to understand how the question as to whether the heads of the departments themselves should be regarded as "inferior officers," within the meaning of this clause, could have been seriously mooted. For the rest, it is manifestly entirely within the discretion of congress as to how narrowly or how broadly it will fix the limits of this idea. If it regards it as necessary or expedient it can, consequently, save as to the diplomatic corps and the consuls, reduce the power of the president over appointments to a minimum, and could unquestionably do so in such a manner as not to increase the power of the heads of departments unduly. The legal regulation of the question is not confined to enumerating the offices and granting the power of appointment to the president, the courts of law or the heads of departments. This power, taken in connection with the duty of establishing the offices by law, is broad enough to embrace the right to establish all provisions deemed expedient as to the qualifications required in appointees, the time during which and the conditions under which their incumbency in office is to be ensured, the grounds of claims to promo

tions, etc. In a word, the so-called "civil-service reform," by which the federal offices are to be divested of the character of "spoils," with which party services are paid, is in no kind of opposition to any part of the constitutional law. The framers of the constitution cannot justly be held responsible for the grave abuses in the civil service since the presidency of Andrew Jackson. The constitution renders it possible to satisfy fully in every respect all the requirements of a modern civilized state as to the tenure of office. Nor can they be reproached with having made

1 A good beginning has been made herein by the law of January 16, 1883, the so-called Pendleton bill. The most important provisions of this very significant law are the following: The president is authorized to form a civil-service commission of five persons, of whom only three at most shall belong to the same political party; two must be federal officers of different departments, residing in Washington, and three occupy no other federal office. The task of the commission is to assist the president in formulating the regulations necessary for the execution of this law, on the basis of the following principles: The federal offices which have already been or will be classified for this purpose are to be filled by competitive examinations, Preference is to be given those applicants who have passed the best examinations. The offices in the departments at Washington are to be distributed as far as practicable in proportion to the population among the states and territories and the District of Columbia. A period of probation must precede permanent employment. The commission may order non-competitive examinations in such cases as it sees fit. It must regulate and control the examinations. It must annually report on everything covered by this law to the president for the use of congress and may use the report to make any further suggestions. The commission is authorized to appoint an examiner-in-chief, whose duty it is inter alia to see that the examining boards act alike. The commission appoints the examining boards, consisting of at least three federal officials in the particular state or territory; the heads of the departments to which these officials belong must be consulted in relation to their appointment; the examinations are to be held at least twice a year. The heads of departments must classify inferior officials in conformity with the intent of this law; officials whose appointment must be confirmed by