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Article 2, Section 2, Clauses 2 and 3

Document 34

Joseph Story, Commentaries on the Constitution 3:§§ 1517, 1559--64


§ 1517. Some doubts appear to have been entertained in the early stages of the government, as to the correct exposition of the constitution in regard to the agency of the senate in the formation of treaties. The question was, whether the agency of the senate was admissible previous to the negotiation, so as to advise on the instructions to be given to the ministers; or was limited to the exercise of the power of advice and consent, after the treaty was formed; or whether the president possessed an option to adopt one mode, or the other, as his judgment might direct. The practical exposition assumed on the first occasion, which seems to have occurred in President Washington's administration, was, that the option belonged to the executive to adopt either mode, and the senate might advise before, as well as after, the formation of a treaty. Since that period, the senate have been rarely, if ever, consulted, until after a treaty has been completed, and laid before them for ratification. When so laid before the senate, that body is in the habit of deliberating upon it, as, indeed, it does on all executive business, in secret, and with closed doors. The senate may wholly reject the treaty, or advise and consent to a ratification of part of the articles, rejecting others, or recommend additional or explanatory articles. In the event of a partial ratification, the treaty does not become the law of the land, until the president and the foreign sovereign have each assented to the modifications proposed by the senate. But, although the president may ask the advice and consent of the senate to a treaty, he is not absolutely bound by it; for he may, after it is given, still constitutionally refuse to ratify it. Such an occurrence will probably be rare, because the president will scarcely incline to lay a treaty before the senate, which he is not disposed to ratify.

. . . . .

§ 1559. The next power is to receive ambassadors and other public ministers. This has been already incidentally touched. A similar power existed under the confederation; but it was confined to receiving "ambassadors," which word, in a strict sense, (as has been already stated,) comprehends the highest grade only of ministers, and not those of an inferior character. The policy of the United States would ordinarily prefer the employment of the inferior grades; and therefore the description is properly enlarged, so as to include all classes of ministers. Why the receiving of consuls was not also expressly mentioned, as the appointment of them is in the preceding clause, is not easily to be accounted for, especially as the defect of the confederation on this head was fully understood. The power, however, may be fairly inferred from other parts of the constitution; and indeed seems a general incident to the executive authority. It has constantly been exercised without objection; and foreign consuls have never been allowed to discharge any functions of office, until they have received the exequatur of the president. Consuls, indeed, are not diplomatic functionaries, or political representatives of a foreign nation; but are treated in the character of mere commercial agents.




§ 1563. There are other incidental powers, belonging to the executive department, which are necessarily implied from the nature of the functions, which are confided to it. Among these, must necessarily be included the power to perform them, without any obstruction or impediment whatsoever. The president cannot, therefore, be liable to arrest, imprisonment, or detention, while he is in the discharge of the duties of his office; and for this purpose his person must be deemed, in civil cases at least, to possess an official inviolability. In the exercise of his political powers he is to use his own discretion, and is accountable only to his country, and to his own conscience. His decision, in relation to these powers, is subject to no control; and his discretion, when exercised, is conclusive. But he has no authority to control other officers of the government, in relation to the duties imposed upon them by law, in cases not touching his political powers.

§ 1564. In the year 1793, president Washington thought it his duty to issue a proclamation, forbidding the citizens of the United States to take any part in the hostilities, then existing between Great Britain and France; warning them against carrying goods, contraband of war; and enjoining upon them an entire abstinence from all acts, inconsistent with the duties of neutrality. This proclamation had the unanimous approbation of his cabinet. Being, however, at variance with the popular passions and prejudices of the day, this exercise of incidental authority was assailed with uncommon vehemence, and was denied to be constitutional. It seems wholly unnecessary now to review the grounds of the controversy, since the deliberate sense of the nation has gone along with the exercise of the power, as one properly belonging to the executive duties. If the President is bound to see to the execution of the laws, and treaties of the United States; and if the duties of neutrality, when the nation has not assumed a belligerent attitude, are by the law of nations obligatory upon it, it seems difficult to perceive any solid objection to a proclamation, stating the facts, and admonishing the citizens of their own duties and responsibilities.


The Founders' Constitution
Volume 4, Article 2, Section 2, Clauses 2 and 3, Document 34
The University of Chicago Press


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