The executive power in the United States : a study of constitutional law

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THE

EXECUTIVE POWER

IN THE

UNITED STATES: ^ ^ -

A STUDY OF

CONSTITUTIONAL LAW.

BY

ADOLPHE DE CHAMBRUN.

TRANSLATED FROM THE ORIGINAL FRENCH
BY

MRS. madblei:n'e yinton dahlgren.

Yotesi cannot insure equal rights to all.

Taxes are, or should be, paid to support the institutions
of society — not for the pur5)o&3 of placing; certain men in
office. : ' : '■[ ] ' ' , >- >

LANCASTER, PA.

INQXnHBB PBINTINO AKD PTTBLISHIITG OOMPAWT.
1874.

^^<^:

g5

Entered according to Act of Congress, In the year 1874, by

Mrs. MADELEINE VINTON DAHLGREN,
In the Office of the Librarian of Congress, at Washington.

Lancaster, Pa.

IiTQUiREB Printing and Publishing Company,

Stereotypers and Printers.

^5*

PREFACE.

ERRATA.

Preface, p. 1, line 14, for "have" read " prove;" line 15,
for " experiments" read " experiment."

Chapter II., page 52, line 8, for " Eussa" read " Russia."

P. 122, line 9, for " repell" read " repel."

P. 127, line 12, interpolate the between *' executive" and
" preponderating,"

P. 176, line 14, for ca ira read ga ira.

P. 7, Opinions of the Press, line 30, for " open" read
" pen."

xuio vvjiuijuc uueis anew auu siFiKing Illustration of
the fact that many of the characteristics and tendencies
of a nation are better understood and appreciated by
foreigners than by native citizens. The foreign student
has an advantage in the stand-point from which he
makes his observation. He studies the institutions
from a distance, and is able to measure them by other
standards with less bias, perhaps, than those whose
opinions have become a part of the public thought of

(iii)

266132

.OS

IiTQUiBEB Printing and Publishing Company,
Stereotypers and Printers.

a t>

PREFACE.

It will be generally conceded that the most profound
and searching discussion of the democratic principle
and of the character and tendencies of the Government
of the United States, which has appeared in modern
times, is that of De Tocqueville. Many of his chapters
sound like prophecy when read in the light of recent
events. The monograph of the Marquis De Chambrun
on the Executive Power of the United States is a worthy
continuation of De Tocqueville's discussion. It is the
first of a series of four volumes, which the author pro-
poses to publish, on the several departments and func-
tions of our Government. Should the series be com-
pleted with the thoroughness and ability manifested
in this volume, it will have a repertory of the most
valuable political results of our republican experiments.

This volume offers a new and striking illustration of
the fact that many of the characteristics and tendencies
of a nation are better understood and appreciated by
foreigners than by native citizens. The foreign student
has an advantage in the stand-point from which he
makes his observation. He studies the institutions
from a distance, and is able to measure them by other
standards with less bias, perhaps, than those whose
opinions have become a part of the public thought of

(iii)
266132

IV PREFACE.

the country whose institutions they discuss. This
truth has frequently been exemplified in the criticism
of National . literature.

It is worthy of remark thet the efforts to recover the
fame of Shakespeare from the oblivion into which it
had fallen at the end of the Itth century was made by
men who did not speak the language of Shakespeare.
It was to Yoltaire, Goethe and Schlegel, that the world
was chiefly indebted for the Shakespearian revival.

This volume of the Executive Power of the United
States is another striking illustration of the same truth,
applied to political philosophy. While the author is
an ardent supporter of republican government, he has
evidently escaped the error that so many writers
have fallen into — that of believing that our forms can
be safely adopted by all nations.

Throughout the volume the author keeps two objects
constantly in view, viz.: To study our institutions in
relation to the traditions, spirit and tendencies of our
own people ; and to ascertain what features of our in-
stitutions are adapted to the tradition and spirit of
European nations. This comparative study will be
most interesting to the student of political philosophy.

In discussing the relation of the office of the Yice-
President to our system, the author notices the fact,
which I think has not been elsewhere discussed, that
the office of Yice-President, while it is valuable for the
purposes of an election — the candidate being usually
selected with a view to supplementing the opinions of
the candidate for the Presidency — yet this very fact
makes the Vice-President an inharmonious element for

PREFACE. V

purposes of administration. The author traces to this
cause the fact that whenever our Vice-President has
become President, his administration has not been satis-
factory to the country. On. the whole, the author doubts
the value of the office of Yice-President, and says that
our example in this particular should not be followed
elsewhere.

After giving a masterly analysis of the constitutional
power of the Executive, the author discusses the ad-
vantages and disadvantages af the frequent changes in
the Presidency by popular elections, and concludes that
the instability of the office is in the interest of liberty.

The fourth chapter contains a very clear and inter-
esting sketch of the conflicts that have occurred from
time to time between the Executive and the Legislative
departments, and concludes with the declaration that
on the whole " The prerogatives of the President are to-
day nearly what they were in the time of Washington,
though they have been rather increased than dimin-
ished."

The chapters of this work which will be of most
interest to the people of the United States are those in
'which the author discusses the effects of the late civil
war upon our system of government. It is hardly
possible for those who have been actors in the Execu-
tive, Legislative, or Judicial Departments of the Gov-
ernment to realize the changes which recent events
have produced. The author of these .chapters has
rendered a great service to every thoughtful American,
in setting forth with remarkable clearness and force the
changes which recent events have wrought. '

VI PREFACE.

Starting from the antagonistic views of Hamilton
and Jefferson, the one insisting upon a strong central
Government — ^the other upon the preponderance of
power in the people and the States — the author traces
clearly the influence of those two forces upon all our
subsequent history, and predicts that the safety of our
system depends upon the equilibrium of these two forces.
He concludes this portion of his discussion by saying
that " so long as political activity in the States remains
undiminished, and the existing division of sovereignty
between them and the national government continues,
the equilibrium will not be deranged. The Executive
authority cannot imperil the Constitution, unless the
local autonomies first disappear or become sensibly
weakened."

The author has been peculiarly fortunate in his selec-
tion of the translator. His thought has been faithfully
rendered into clear and elegant English ; and the work
has been done with so much grace that the reader dis-
covers nothing in the style to indicate that it is a trans-
lation.

JAMES A. GARFIELD.

Washington, March 16, 1874.

NOTICE.

Since 1776, when the thirteen colonies of North America
proclaimed their Declaration of Independence and defined the
principles of modern democracy, we have beheld the decay or
transformation of feudalism almost everywhere in Europe.

In view of such a state of things, the historian and the
statesman, without yielding to the promptings of the heart, or
to the flights of the imagination, should calmly observe and
classify facts and strive to deduce therefrom the laws that reg-
ulate the political progress of nations.

If, then, we inquire what forms of government democratic
nations may substitute for those of the past, we are naturally
led to study the organization of the American republic. In
pursuing such researches, the most suitable order to follow is
that invariably adopted by the Federal Constitution, as well as
the constitutions of the thirty-seven States of the Union.
Attention should be given first to the national sovereignty
and the supreme power of the people ; and then to the organi-
zation of the legislative, the executive and the judicial
branches of the government.

It has appeared to me, however, that such a work, for which
much material has been slowly gathered, might properly be
divided into four almost entirely distinct parts, and each of
them be treated in a separate publication. Acting upon that
impression, I have not hesitated to issue in the first place
this monograph on The Executive Power.

The question which it is proposed to examine in the book

now submitted to the public is this : How have a democratic

people succeeded in organizing an executive power which was,

up to a certain point, to take the place elsewhere occupied by

(vii)

Vlll NOTICE.

historic royalty, or by that constitutional monarchy of which
England has produced the model ?

Inasmuch as the knowledge I have acquired of the Consti-
tution of the United States has been principally gained in the
course of an' intimate association with some eminent men, I
desire to mention Senator Charles Sumner, Mr. Caleb Gushing
and Senator Schurzas those^^owhom I am the most indebted.

JCbe literary world of Europe will soon be in possession of
the complete works of Mr. Sumner. It will then be able to
appreciate the vast learning of this statesman, to understand
his superior nature, and to catch at least the faint echo of
those austere and eloquent utterances, which I have never
heard without being reminded of what the cotemporaries of our
Royer-Collard have told us of him.

After Mr. Sumner, I have named that jurisconsult who has
never separated the cultivation of letters from the study of
law, and whose attention has been alternately directed to the
most diverse branches of human knowledge ; after having filled
the highest political positions to which an American may
aspire, he has retired from the arena of political parties, re-
serving to himself only the right of judging their acts.

Finally, I have spoken of Senator Schurz, a German, natu-
ralized in the United States ; he has applied to the study of
the institutions of the country, to which he has forever promised
allegiance, the rigorous methods of European criticism, and
thus imparted those enlarged views and that political philoso-
phy which give to his speeches and writings a lasting value.

I take the liberty to place, under the protection of these
distinguished men, the work of which I ofifernow to the public
the first portion .1

Washington, February 18, 1873.

1 The works to which I refer are always quoted, so as to be as
accessible as possible to the European reader. Thus, for example,
when I have found the decisions of the Supreme Court reprinted
in books which could be easily procured, 1 have cited the latter in
preference to the reports of that tribunal.

TABLE OF CONTENTS.

PAOK.

Iktboduction 11

CHAPTER I.
Election of Peesident and Vice-president 19

CHAPTER II.
^Constitution of the Executive Power 52

CHAPTER III.

Of Functionaries charged with Administrative A c-
TION \ 77

CHAPTER IV.
jJIelations of the President to Congress 94

CHAPTER V.
The Power of Declaring War 116

' CHAPTER VI.

CHELATIONS OF THE PRESIDENT TO THE JUDICIAL PoWER

OF THE Union 125

CHAPTER VII.
The Federal Administration 149

CHAPTER VIII.
The Senate as an Executive Council 195

(ix)

X TABLE OP -CONTENTS.

PAGE.

CHAPTER IX.
Relations op the President to the States 223

CHAPTER X.
What the Executive Power became under Mr. Lin-
coln 237

CHAPTER XI
Impeachment and Acquittal of President Johnson... 258

CHAPTER XII.

Causes which might Modipy the Constitution op the
United States 278

INTRODUCTION.

The organization of the Executive Power in a re-
public offers the greatest difficulties. It should have
vigor and capacity to meet the necessities of the gov-
ernment without proving an obstacle to the develop-
ment of the liberties of the country.

There would seem to be, at first, almost a contradic-
tion between propositions so dissimilar, and yet, if they
cannot be harmonized, the republic will either be lost
in anarchy or replaced by military despotism.

From the moment when the American people decided
that they would thenceforth live under democratic and
republican institutions, questions regarding the consti-
tution of the Executive Power were naturally presented
for their consideration. The most opposite opinions
on the subject were at once expressed, traces of which
will be found in the debates which took place in the
Constitutional Convention of Philadelphia.^

Alexander Hamilton's plan provided for the vesting
of the supreme executive authority in a Governor, to be
chosen by electoral colleges, and to serve during good
behavior, his authorities and functions to be as fol-
lows : To have a negative on all laws about to be
passed, and the execution of all laws passed ; to have
the direction of war, when authorized or begun ; to

1 The convention of 1787 delibei-ated with closed doors. James
Madison, one of its members, drew up a summaiy of these debates,
which has been published under the title of " The Madison Papers."
(xi)

Xll INTRODUCTION.

have, with the advice and approbation of the Senate,
the power of making all treaties ; to have the sole
appointment of the heads or chief officers of the de-
partments of finance, war and foreign affairs ; to have
the nomination of all other officers (ambassadors to
foreign nations included), subject to the approbation or
rejection of the Senate ; to have the power of pardon^
log all offenses, except treason, which he could not
pardon without the approbation of the Senate. *' On
the death, resignation or removal of the Governor, his
authorities shall be exercised by the president of the
Senate until a successor be appointed." ^

At the time that Hamilton thus proposed to create
a strong power, another member of the convention,
Roger Sherman, maintained, on the contrary, that the
executive magistrate should be simply the agent of
the legislature. Others went still further by even
denying the principle of unity, and insisting that the
Executive Power could not be confided to one man
without danger to liberty.

After ela^)orate discussions, the convention finally
agreed and adopted a compromise. It, in the first
place, recognized the principle of unity, and committed
the Executive PoweMo. a single magistrate, who was
to be elected for four years. In the second place, that
power was constituted one of the three " co-ordinate
and independent" branches of the government, and
clothed with considerable prerogatives. It was finally
decided that no constitutional council should be as-
signed the President, but that he should be the acting

1 The Madison Papers, Vol. II., p. 890 et seq.

INTRODUCTION. XIH

and responsible head of the federal administration.
These principles are all set forth in the Constitution,
and for more than eighty years have been of constant
application.

It cannot be said that the members of the conven-
tion were entirely satisfied with their work. When
defending it before the Yirginia Convention, James
Madison frankly avowed that the organization of the
Executive Power was attended with peculiar difficulties,
and it is worthy of remark that he simply asserted
that the convention had acted for the best.

Notwithstanding the doubts he expressed on the
subject, that PoWer has remained such as it was con-
ceived by the convention. It has met the wants of a
free people, and been able to resist formidable dangers.

Thus, to explain why this has been so, is the princi-
pal aim of the present volume.

However, it would not answer for other nations who
are inclined to adopt " a republican form of govern-
ment," to believe that they can copy the Federal Con-
stitution and solve, as the Americans have done, the
problems regarding the powers and prerogatives of the
President. Republican institutions in the United
States were founded in historic right. The thirteen
colonies lived under democratic laws long before their
separation from the mother country. At the same time
the inhabitants of English birth brought with them all
the customs of Anglo-Saxon liberty.

They had, gradually, established in the new world a
close alliance between democracy and free institutions,
which eventually gave rise to the republic. It had

XIV INTRODUCTION.

existed in the national manners before it received its
definitive form; and those who proclaimed it only
recognized and gave effect to a long established state
of things.

This is true to such an extent that it is difficult
to find in the writings of that day a satisfactory ex-
planation of the manner of adopting the " republican
form of government" in the United States. Some
years before his death Thomas Jefferson carefully pre-
pared a memoir, wherein he recounts the part that he
had taken in the struggle of the thirteen colonies,
in the Declaration of Independence, and in the suc-
ceeding events. The word republic is not once
mentioned in this work.

The convention was not appointed to choose between
different forms of government ; its mission was restrict-
ed to the formation of such institutions as were best
adapted to the country. Thus the republic has been
able to maintain itself in the United States, because it
represents public sentiment and national traditions. It
performs there, in some respects, a similar part to that
which has been elsewhere enacted by monarchies or
historical aristocracies.

. In the second place the convention was called upon
to find the best possible compromise between the local
autonomies, which had for a long time existed, and the
central government it was about to create. It divided
the sovereignty then between the states and the federal
government, and conferred upon the latter, by the con-
sent of the people to whom it owed its existence, only
certain limited powers specifically enumerated in the
Constitution.

INTRODUCTION. XY

Out of this arose a division of powers which cannot
elsewhere be imitated.

In short, the United States did not from the begin-
ning propose to follow in the footsteps of other na-
tions. They desired to " form a government capable
of extending to its citizens all the blessings of civil and
religious liberty, capable of making them happy at
home. This, and not conquests or superiority, is the
great object of republican systems." " If they are suf-
ficiently active and energetic," said one of their distin-
guished statesmen, " to rescue us from contempt and
preserve our domestic happiness and security, it is all
that we can expect from them."^

In other words, the American Republic enjoys the
inestimable advantages which result as well from a
constant national tradition as from a perfectly logical
division of powers between vigorous autonomies and
the central institutions. It should, therefore, seek its
perpetuity in the peaceful development of its own vital
forces, and maintain, as far as practicable, an isolated
position among other nations.

The people of other countries, who are considering
the expediency of establishing American institutions,
should only do so with ihe most guarded caution. The
object of the following expositions is, however, merely
to explain how the Executive Power is organized in the
United States. The European reader must decide to
what extent the forms of American institutions can be
introduced in countries having a monarchical past,

1 The Madison Papers, Vol. II., p. 95 et. scq.; speech of Mr. Pinck-
ney.

XVI INTRODUCTION.

where the system of centralization has thrust its roots
far and deep, and where exterior action has become a
necessary condition of national life.

But it is impossible to enter upon the study of pro-
blems so complicated as those which, even in the
United States, arise out of the organization of the Ex-
ecutive Power, without at once recurring in thought
to M. de Tocqueville, and feeling serious apprehension
at the boldness of treating a subject upon which he
has shed a flood of light. " Democracy in America"
can neither be equaled nor repeated. Its appearance
inaugurated a new epoch in political science, and it
was at once classed among that small number of writ-
ings which have advanced this very important branch
of human knowledge. However, since the publication
of this masterly work, events of the gravest import
have occurred in the United States. The Federal Con-
stitution has been subjected to trials, foreseen indeed
by M. de Tocqueville, but the consequences of which
his premature death prevented him from measuring.
Learned researches and numerous publications have
thrown new light upon the authority of the national
government over the several States and the people.
There is, perhaps, an advantage in exhibiting the
changes that have taken place, and in analyzing the
views recently expressed by authors and statesmen,
whose opinions are of acknowledged authority. Never-
theless it may be safely asserted, that the literature
relating to America which has appeared during the past
thirty years has not deprived the " Democracy" of the
exceptional place it had acquired. It always recalls

INTRODUCTION, XVll

-\

those chapters, in which Montesquieu made known to
France the liberty which is the birthrigtit of English-
men, and described the structure and inner working
of their celebrated constitution. Other writers have suc-
ceeded the author of ''L^esprit des lois.^^ They have
discussed the same questions; they have thoroughly
examined the prerogatives of the crown, the powers
of each house of Parliament and the relations which
exist between them ; they have traced and explained
the influence of the historic causes which have de-
veloped and perfected those noble institutions. Black-
stone, Brougham, and others in England ; Fishel, and
especially Gneist, in Germany, have exhausted the sub-
ject, and yet over all their works still towers the
genius of Montesquieu, '' who abridged all, because he
had seen all."
2

THE EXECUTIVE POWER

IN

THE UNITED STATES.

CHAPTER I.
eIjECtion of president and vice-president.

THE members of the convention, in consider-
ing the questions relative to the Executive
Power, had to determine whether the chief
magistrate should be directly elected by the people,
or be designated by the legislative power. Each
system had its partisans. Finally, a compromise
was adopted. It was decided that "each State shall
appoint, in such manner as the inhabitants thereof
may direct, a number of electors equal to the whole
number of Senators and Representatives to which

the State may be entitled that the electors shall

meet in their respective States and vote by ballot
for President and Vice-president." The Constitu-
tion adds, "the votes shall be forwarded to the
President of the Senate at the seat of government,
and the person having the greatest number of votes

shall be the President, if such number be a major-
(19)

20 THE EXECUTIVE POWER

ity of the whole number of electors appointed, and
if there be more than one who have such majority,
and have an equal number of votes, then the House
of Eepresentatives shall immediately choose by
ballot one of them for President ; and if no person
have a majority, then from the five highest on the
list the said House shall in like manner choose the
President."^ If then the convention refused to
confide directly to the people the election of the
President, neither did it invest the legislative as-
semblies with so important a right. Hamilton
has explained, in the "Federalist," the motives
which led to the adoption of this compromise.^

"Nothing," said he, "was more to be desired
than that every practicable obstacle should be
opposed to cabal, intrigue and corruption. These
most deadly adversaries of republican government
might naturally have been expected to make their
approaches from more than one quarter, but chiefly
from the desire in foreign powers to gain an

improper ascendant in our councils But

the convention has guarded against all danger
of this sort with the most provident and judicious

1 See Constitution of the United States.

2 The best commentarj' on the Constitution of the United States
is to be found in the " Federalist." It was written by Alexander
Hamilton, James Madison and John Jay. The first two were
members of the Thiladelphia Convention, This admirable publi-
cation supplies, to some extent, the void in American political
literature occasioned by the failui*e to record the full debates of
that body.

IN THE UNITED STATES. 21

attention. They have not made the appointment
of the President to depend on any pre-existing
bodies of men, who might be tampered with before-
hand to prostitute their votes; but they have
referred it in the" first instance to an immediate act
of the people of America, to be exerted in the
choice of persons for the temporary and sole pur-
pose of making the appointment; and they have
excluded from eligibility to this trust all those who
from situation might be suspected of too great devo-
tion to the President in office. No Senator, Repre-
sentative or other person holding a place of trust
or profit under the United States can be of the
numbers of the electors. Thus, without corrupting
the body of the people, the immediate agents in
the election will at least enter upon the task free
from any sinister bias. Their transient existence
and their detached situation, already taken notice
of, afford a satisfactory prospect of their continuing
so to the conclusion of it. The business of corrup-
tion, when it is to embrace so considerable a num-
ber of men, requires time as well as means. Nor
would it be found easy suddenly to embark them,
dispersed as they would be over thirteen States, in
any combinations founded upon motives which,
though they could not properly be denominated
corrupt, might yet be of a nature to mislead them
from their duties." It was essential, and this was
no less important, that the Executive Power should

22 THE EXECUTIVE POWER

depend on the people alone during the exercise of
its functions. "He might otherwise be tempted to
sacrifice his duty to his complaisance for those
whose favor was necessary to the duration of his
official consequence. This advantage will also be
secured by making his re-election to depend on a
special body of representatives deputed by the
society for the single purpose of making the impor-
tant choice." ^

It is noticeable that Hamilton, who exposes so
forcibly the grave objections to the election of the
President by legislative assemblies, is much less
explicit when he criticises the system of direct
election by the people. Yet this subject was sev-
eral times under discussion in the convention,
but the members set it aside for various reasons,
which were, notwithstanding, very unsatisfactory.
They feared that the people were not sufficiently
enlightened to make an intelligent choice of the
executive chief; they also apprehended difficulties
as to the manner of execution

However that may be, the election of the Presi-
dent by the National Legislature having been
rejected, and the direct election by the people
having shared the same fate, there remained no
alternative but to organize, in -the most satisfactory
manner, the electoral colleges.

But the resulting consequences were far from

1 The " Federalist/' pp. 474-475. Edition of Henry B. Dawson.

IN THE UNITED STATES. 23

justifying the expectation of tlie convention. It
soon became evident that the electoral colleges had
no will of their own, and that their members were
pledged in advance to cast their votes for a can-
didate designated bj the party to which they them-
selves owed their election. In this particular the
system proved a failure.

But according to the Constitution, under certain
contingencies, a second election could be held.
This case speedily occurring, it was found that
here, also, experience was far from vindicating
theory. As we have just seen, if there was no
choice, either because no one candidate received
an absolute majority, or because several of them
obtained an equal number of votes, then, by a
provision of the Constitution, the House of Eepre-
sentatives moist, in its turn, resolve itself, if the
expression may be allowed, into an electoral college.
In that case it would then choose the President
from among the five persons who had the greatest
number of votes ; or, yet again, if two candidates
had the same majority it would decide between
them.

Nor was there then a separate vote for President
and Vice-president; the ballots did not designate
the office that the persons in whose favor they were
given were to fill. According to this provision,
the person who received the greatest number of
votes, if such number was equal to a majority of

24 THE EXECUTIVE POWER

the whole number of electors appointed, became
President, and the one who, having the next greatest
number of votes, providing it was a majority, was
elected Yice-president. But from the outset the
people made a distinction between these two offices,
and, in fact, cast their votes for President and for
Vice-president. However, according to the letter of
the Constitution, the House of Eepresentatives
might decline accepting the result of the popular
election, and it was authorized to select for the presi-
dential office the person whom the people had in-
tended to choose for Vice-president. But here also
all the constitutional combinations were of no avail.
The will of the people proved stronger than that
of the Legislature. This was shown in the election
of 1801.

This was the first which had devolved upon the
House of Representatives. Mr. Jefferson and Mr.
Burr had an absolute majority in the electoral col-
leges. Each of them received seventy-five votes.
Although the people had only nominated Mr. Burr
as Yice-president, the House could have elected
him' President. The delegations of the States
where the Federalists prevailed proposed to accom-
plish this result. However, the most distinguished
of them — Hamilton — rose under these circumstan-
ces superior to party considerations. The people's
choice was Jefferson, and Hamilton made an effort
to have this verdict accepted as definitive. Thanks,

IN THE UNITED STATES. 25

at least in a measure to his influence, the Demo-
^cratic principle prevailed. After this animated
contest, which lasted seven days and seven nights,
the Constitution was amended by providing that
the electors shall meet in their respective States,^
and vote by ballot for President and Yice-president

they shall make distinct lists of all persons

voted for as President, and of all persons voted for
as Vice-president, and of the number of votes for
each, which lists they shall sign and certify, and
transmit, sealed, to the seat of the government of
the United States, directed to • the president of the
Senate. The president of the Senate shall, in the
presence of the Senate and House of Representa-
tives, open all the certificates, and the votes shall
then be counted ; the person having the greatest
number of votes for President shall be the President

and if no person have a majority, then from

the two highest numbers, not exceeding three of
those voted for as President on the list, the House
of Representatives shall choose immediately by bal-
lot the President; but in choosing the President,
the votes shall be taken by States, the representa-
tion from each State having one vote." ....How-
ever, " in choosing, the President," adds the amend-

ISoe The PoliticEri Parties in the United States, by Martin Van
Buren. Tliis work, written by a former President orthe United
States, cannot be read too often. He has shown mucli impartiality
in his political views, and furnished very varied, and, in general,
very reliable, information.

26 THE EXECUTIVE POWER

ment, "the votes shall be counted bj States, and
each State shall have a vote.^

These constitutional provisions were applied for
the first time in 1824. "General Jackson, Mr.
John Qaincj Adams and Mr. William H. Craw-
ford were the three candidates for the presidency
who received the highest number of votes — 99, 84,
41 ; and in this case a second struggle took place
between the theory of the Constitution and the
Democratic principle, and with eventual defeat to
the opposers of that principle, though temporarily
successful. Mr. Adams was elected, though General

Jackson was the choice of the people The

election of Mr. Adams was perfectly constitutional,

and as such fully submitted to by the people

»vAll the representatives who voted against the will
of their constituents lost their favor, and disappear-
ed from public life. The representation in the
House of Representatives was largely changed at
the first general election, and presented a fall op-
position to the new President. Mr. Adams himself
was injured by it, and at the ensuing presidential
election was beaten by General Jackson more than
two to one— 178 to 83."2

Thus the electoral colleges have never had the
right of expressing a free opinion, and, on the
other hand, the House of Representatives has al-

ISee the Xllth Amendment to the Constitution.

2 Thirty Years' View, by a Senator of 30 years. Vol. 1, pp. 46, 47.

nV THE UNITED STATES.

27

most always been restricted in the exercise of these
functions to ascertaining the result of the ballot.

After the incidents that marked the elections of
Mr. Jefferson and of John Quincy Adams, it is
probable that, whenever this body is required to
choose between three candidates it will be satisfied
with the modest province of simply registering the
decision of the people.

Without here indicating other inconveniences
that the electoral colleges of the Union present, it
is proper to examine how far these constitutional
provisions have assisted a certain organization of
parties.

In the United States the entire sovereignty re-
sides in the people. They delegate a portion of it
to the federal government, another portion to the
States. But it is proper to remark that they re-
serve the exclusive right to elect, mediately or im-
mediately, the Federal and the State functionaries.
These all emanate from and are responsible to the
people. Thus, as is proved by facts, the represen-
tative is to such an extent governed by his consti-
tuents that he is almost always obliged to conform
to their wishes.

"^ Moreover, the powerful organizations of political
parties come between the people and the represen-
tative. They nominate the candidates, so that the
sovereign has only to decide between the claims of
persons who, long prior to an election, are selected

28 THE EXECUTIVE POWER

by party conventions as worthy of the support of
their adherents. At the beginning of the govern-
ment, certain meetings of members- of Congress
(caucuses) nominated the presidential candidates.
Thus, in 1800, the representatives of the Kepublican
party of the House nominated Jefferson ; in 1808
and in 1812, Madison ; in 1816, Monroe, and in 1824,
Crawford.

But in these meetings, formed exclusively of
members of one party, the majority of votes only
represented a small minority of the people. Sepa-
rated from their constituents, and yet compelled to
depend upon them, these representatives could not
always expect to satisfy their wishes, and obtain
their adhesion, so that this mode of nomination was
never entirely accepted by the people. The legis-
latures of the most important States arrogated the
right of designating the candidates, or at least in-
sisted on participating in the exercise of it. Thus,
in 1812, the Republican Legislature of New York
chose a candidate in opposition to Mr. Madison, and
in 1824 the name of General Jackson was presented
by the Legislature of Tennessee. It need not then
surprise us if, after the election of 1824, the different
parties recognized their incapacity of making nom-
inations through the instrumentality of their rep-
resentatives in Congress.

There gradually arose, oat of this state of things,
the systems of conventions now in force, and since

IlSr THE UNITED STATES. 29

1831 the J have acted without interruption. ^ The
Americans were, in this manner, led to create them.

A poHtical party can scarcely exist in the United
States without having adherents in almost all the
States. It is, then, necessary to have a general
organization which may apply to the whole nation,
and a local organization in each State, county and
township.

The Americans have succeeded in giving regular
action to this complicated political machinery by
exercising the right of peacefully assembling and
forming associations for the maintenance of their
political rights and opinions. The principle of
free unions is guaranteed by the common law,
and the use made of it by the Anglo-Saxons is so
general that no one thinks of restricting it. When
a party, then, is about to be formed, the persons
who advocate the principles which are to be sup-
ported by it publish their programme ; at the same
time they invite all those who share their ideas to
assemble in their respective districts and elect
representatives to a convention, by which the
contemplated party will be organized.

If the public respond, delegates will be chosen
in each State, or at least in a certain number of
States. They in their turn will unite and form a
convention. This assembly then is constituted in

1 Essays on Political Organization, published by the Union
League of Philadelphia, pp. 64, 65.

30 THE EXECUTIVE POWER

conformity with customs that are almost invariable.
The credentials of* the members are first verified
by a committee appointed ad hoc. The convention
declares, in a certain number of resolutions^ its politi-
cal principles, and sometimes also adopts an address
to the people. If the party considers itself strong
enough, or judges it to be opportune, candidates
are nominated, who are to be its standard-bearers,
and whose nan:ies are to be subsequently submitted
for popular suffrage. Finally, the convention con-
stitutes a permanent organization or central com-
mittee, clothed with the power to convoke, when
it is deemed expedient, a new assembly, similar to
the one just held. In the interval, the committee
will control the party and watch over its interests.
The Eepublican party was organized in this manner
in 1836. Some determined abolitionists of New
York nominated a presidential candidate, and
although the anti-slavery movement was still con-
fined to this State, they voted for him. At the
presidential election of 1840, the ^''National Lib-
erty Party''"' was organized, and cast 7,000 votes.
At the election of 1844 it received 70,000. In
1848 its candidate, Mr. Yan Buren, had nearly
250,000 votes. This organization increased at each
succeeding election until 1860, when its candidate,
Mr. Lincoln, was successful.

Let us now suppose a case where a party is so
far developed as to be on the point of becoming a

IN THE UNITED STATES. 31

great national party. The period approaches for a
presidential election; the committee of arrange-
ments convokes a convention in which all the
States are to be represented ; it fixes the place of
meeting, and determines, according to universally
observed rules, the number of delegates that each
State is to choose. The members of this party
then publicly assemble in their respective wards or
townships, and discuss the following questions :

1. What presidential candidate shall be nomi-
nated by the National Convention of the party ?
(In technical language the convention nominates a
candidate, and the people elect him.)

2. What political programme shall be adopted?
After deciding these questions, this primary

meeting (ward, township or county meeting), chooses
a certain number of delegates, instructs them to
sustain the ideas which have been adopted, and to
uphold the candidate or candidates for whom it
has expressed a preference.

Similar proceedings take place, almost at the
same time, in the other counties which form the
sub- divisions of the State. Then the citizens, cho-
sen in this manner by all the primary assemblies,
meet in their turn. They resume a second time the
discussion of ideas which have been already debated ;
finally they appoint delegates to represent the State
in the National Convention of the party. This is
composed of delegations thus selected by a sort of

32

THE EXECUTIVE POWER

doable election. Once united, this assembly har-
monizes, if we can make use of this expression,
all its discordant elements, chooses a candidate for
the presidency and makes known to the country its
political principles. Then, before finally adjourn-
ing, it forms a permanent committee, which will
retain its authority until the meeting of the next
convention. This committee consists of one or two
delegates taken from each State in the Union. At
the time of the appointment of delegates to the
National Convention, or at a subsequent meeting
of each State Convention, each party nominates
presidential electors, for whom the votes of the peo-
ple are solicited, inasmuch as those who are elected
will be called upon to choose officially the Presi-
dent. ^

In this way the persons who nominate a presi-
dential candidate, and the electors who compose the
college, and cast the electoral vote of the State,
represent a common thought. They are both des-
ignated in a manner which subjects them to the
control of the same men. Party pressure is brought
to bear as well upon the members of the National
Convention as upon the presidential electors. Mean-
while the opposing party or parties have acted in
the same manner. After all the nominations have

1 Sometimes it happens that the State Convention nominates only
the two presidential electors who represent the State at large in
the electoral college, and the others are chosen by the conventions
held in the congressional districts.

IN THE UNITED STATES. ^^

been made, and the programmes formally resolved
upon, the electoral campaign, properly speaking,
commences.

These very powerful combinations have been in
turn the subject of enthusiastic praise and of severe
criticism. In the first place, it cannot be denied
that they have sufficed to constitute great political
parties, given them peculiar vigor, and enforced
the strictest discipline. On the other hand, it has
been observed, and with much truth, that under
this regime it is not really the association that gov-
erns, but the most insignificant minority that rules
the majority.

" Party . organizations, such as we have in this
country, exist in no other, and are not necessary in

a well- organized government The principal

evils of our system of government grow out of these
organizations, nominating conventions, and other
party machinery devised to stimulate party spirit,
to secure success at elections, either by fair or
foul means, and to control the destinies of the
country."

"Party organizations and machinery consist of
national, state, county, city, ward and township
committees, and committees for each congressional
district for each political party, and township, ward
and city meetings, county, state, district and na-
tional conventions for making nominations, discus-
sing political questions, adopting resolutions, party
3

34 THE EXECUTIVE POWER

creeds and platforms, and appointing committees
for the succeeding year or term. The committees
call the meetings and conventions, provide for
holding them, procure and disseminate documents,
addresses, political tracts and other information
among the people; procure -and distribute tickets
at the polls, and do various other things to obtain
votes and carry elections, some of which honest
men will do, and some of which they will not
do."

"The primary meetings of each party which
nominate township and ward officers, and appoint
delegates to city and county conventions,- are gene-
rally composed of from ten to about fifty persons,
who are mostly politicians and aspirants to office,
or the friends of aspirants, and seldom comprise
more than from five to twenty per cent, of the
voters of the party for which they assume to act

all depending upon the action of the little

handful of party politicians attending the primary
meetings, and upon the delegates to county conven-
tions appointed by them, the most of the voters
having no voice in selecting the candidates or
adopting the creed of either party."

" The primary meetings are attended by so few
persons, that it is generally easy for two or three
leaders to rally their friends and secure the appoint-
ment of such delegates as they wish ; and conven-
tions are easily packed to procure the nomination

IN THE UNITED STATES. 35

•

of men who could not be nominated by the voice
of the party fairly represented."

" This is often accomplished by the expen-
diture of considerable sums of money, and the

profuse use of promises." "Conventions

come together simply to record the decisions of the
leaders when they are united, and to determine by
vote which faction or section is the strongest, when
they are divided."

"Party leaders, deeply imbued with ambition
and party spirit, desire an organization, frequent
meetings and addresses, a party creed and a politi-
cal faith, and also the establishment of some political
dogmas, to distinguish them from other political
parties, and to unite their friends and followers and
stimulate their zeal. By such means they can
determine what should be recognized as political
orthodoxy, and are enabled to restrain freedom of
opinion and individual liberty from endangering
the unity of the party ; and they can also maintain
rigid party discipline, and confine the patronage of
the party to the most zealous and active of the
faithful; one of the main objects of the party
leaders being to secure party zeal and fidelity, and
activity and capacity to promote the success of the
party, rather than the best interests of the country.
A still further object is to form public opin-
ion, and to educate and mould the public mind in

36 THE EXECUTIVE POWER

accordance with the creed and dogmas of the paTtj,
in order to secure permanent success and party dom-
ination." ^

The evils which have just been indicated are
not the only ones. These assemblies are in general
very numerously attended. Among those who com-
pose them are found a great many inexperienced
men, and a sufficient number of politicians to con-
duct the deliberations ; they hold very few sessions.
The delegates who attend are not in a situation to
consult, to understand, or often even to know each
other. It is not then to be wondered at that a
handful of adroit managers do all the work, and
vthat the convention generally does nothing more
than give expression to their will. Such an assem-
bly rarely accomplishes exactly what it wishes.
Doubtless examples may be cited, tending to prove
that the principle of association, thas applied, may
be productive of good results ; but, on the other
hand, an intelligent and unprejudiced reader of the
history of national conventions will not fail to per-
ceive and appreciate all the faults and defects of
the system.

For some time past the most sagacious observers
have regarded these organizations as dangerous to
the United States. In his great work, written

1 The American Sj'^stem of Government, by Ezra Seaman, pp. 62
and succeeding.

IN THE UNITED STATES. 37

several years before the breaking out of the civil
war, Mr. Benton said : ^

" I have seen the capacity of the people for self-
government tried at many points, and always found
it equal to the demands of the occasion. Two other
trials, now going on, remain to be decided to settle
the question of that capacity : 1st. The election of
President, and whether that election is to be gov-
erned by the virtue and intelligence of the people,
or to become the spoil of intrigue and corruption ?

An irresponsible body," continues the author,

" chiefly self-constituted, and mainly dominated by
professional office-seekers and office-holders, have
usurped the election of President (for the nomina-
tion is the election, so far as the party is concerned),
and always making it with a view to their own
profit in the monopoly of office and plunder."

The second danger pointed out by Mr. Benton,
and which it is not necessary to investigate here,
was the question of slavery.^

It results from the experience of the past forty
years in particular, that the organization of parties
identifies the President with that one which has
elected him. He becomes, by the very fact of his

1 Mr. Thomas H. Benton was for thirty years a United States
Senator. He has related in two large volumes the events which
he witnessed. This great work, entitled " Thirty Years' View," is
very useful to consult, although Mr. Benton has too often recorded
in his writings the passionate impressions which he received in
the struggles of the day.

2 See Thirty Years' View, Vol. II., p. 787.

38 THE EXECUTIVE POWER

nomination by a convention, the official representa-
tive, if not the chief, of this party. By it he obtains
power. By it he will be supported and will gov-
ern. It is scarcely possible for him to disconnect
himself from it, and up to the present time every
President attempting it has failed. Almost always
designated by politicians^ and presented by them
for the popular vote, he is, even before the election,
united to them by the strongest ties, and when he
enters on the discharge of his functions, woe betide
him if he forget those to whom he owes nearly all
his success.

If there be a man who, of late years, has been called
by public sentiment to the chief magistracy of the
United States, that man is assuredly General Grant.
The Eepublican party, without doubt, adopted him
in 1868, but this choice was in reality enjoined
upon it by public opinion; so that for once the can-
didate gained the presidential mansion free from
entangling engagements. He seemed at first resolved
to take advantage of this propitious circumstance,
and to maintain, at least as far as was practicable,
his independence. His first acts clearly denoted
this intention, but unhappily he soon reached the
conclusion that he must renounce the attempt. He
became impressed with the conviction that he could
not dispense with the support of the politicians, and
he was obliged to come to an understanding with
them.

IN THE UNITED STATES. 39

If the close relations which exist between the
President and the chiefs of his party often give
much vigor to his administration ; if in this way
he avoids many conflicts with Congress, and se-
cures the undivided support of a powerful organi-
zation, spread throughout the entire country, he
on the other hand incurs heavy obligations, and
must reward services which have been rendered
him. Hence his dependence ; hence also his weak-
ness. How many compromises is he not required
to make, how many interests is he not compelled
to satisfy !

The President is then plac^ in a situation wherein
the political organization which put him in power
actively supports him, provided, that it receives
in exchange all the gratifications and rewards to
which it considers itself entitled. In order to
govern the country, he must make habitual conces-
sions to his party, which acts, so to say, as his
executive agents ; if he withdraws from it, his
power will immediately diminish, and he will, ere
long, become the victim of those with whom he
fails to act in concert.

The administrative disorder which reigns in the
United States aggravates this condition of things ;
almost all public offices are considered as belong-
ing to the victorious party; "to the victors," says
the American maxim, " belong the spoils." There-
fore, at the beginning of an administration, those

40 THE EXECUTIVE POWER

who liave contributed to assure the success of the
electoral campaign, consider themselves entitled to
demand a division of the offices as an undoubted
right. The President has to meet innumerable
demands, and as he cannot overlook active party
services, the most annoying difficulties are thereby
entailed upon him, and they will increase with the
growing population and resources of the country.
The creation of public offices, rendered necessary
by the late civil war, greatly enlarged the patron-
age of the government, and added, in a correspond-
ing degree, to the embarrassments of him who dis-
penses it.

For some time past statesmen and publicists have
sought the means of putting an end to this state of
things. They have thought that if they succeeded
in rendering national conventions useless, they
could break up the machinery of that political
organization which incites and regulates party
movements, even in the counties and townships.
With this view, the suppression of the electoral
colleges has been proposed.

They could, without difficulty, prove that this
institution, to which, in theory, appertains the right
of choosing the President, has in practice no real
power whatever ; that, acting always in obedience
to special and imperative instructions, it is conse-
quently useless. In 1824 a Senator said that the
objections against a direct election by the people,

IN THE UNITED STATES. 41

which prevailed with the members of the conven-
tion of 1787, had already nearly lost their impor-
tance. An attempt was made at the session of
1825-26 to procure an amendment to the Consti-
tution. A committee composed of nine members
was appointed by the Senate, which agreed upon
a proposition of amendment. The prominent fea-
tures of this plan of election are, 1 . The abolition
of electors and the direct vote of the people ; 2. A
second election between the two highest on each
Hst, when no one has a majority of the whole; 3.
Uniformity in the mode of election.

The advantages of this plan would be to get rid
of all the machinery by which the selection of their
two first magistrates is now taken out of the hands
of the people. If any one received a majority
of the whole number of districts in the first elec-
tion, then the democratic principle, the majority to
govern, is satisfied. If no one receives such a ma-
jority, then the first election stands for a popular
nomination of the two highest — a nomination by
the people themselves. But to provide for a pos-
sible contigency — too improbable ever to occur
— and to save, in that case, the trouble of a third
popular election, a resort to the House of Kepre-
sentatives is allowed, it being nationally unimpor-
tant which is elected where the candidates were
exactly equal in the public estimation. The plan
was unanimously recommended by the committee.

42 THE EXECUTIVE POWER

But it did not receive the requisite support of
two-thirds of the Senate to carry it through that
body.^

The 8th of December, 1829, General Jackson
recommended to Congress the adoption of a similar
measure: "To the people," said the message, "be-
longs the right of electing their chief magistrate ;
it was never designed that their choice should, in
any case, be defeated, either by the intervention of
electoral colleges, or by the agency confided, under
certain contingencies, to the House of Eepresenta-
tives "2

In 1844 the question again came up, but it does
not appear at that time to have occupied the atten-
tion of Congress as it had done twenty years before.
Since then it has often been agitated, without ever
having been made the subject of earnest investiga-
tion. In the course of the session of 1871-72,
Mr. Sumner reproduced it, in the following terms:

"Whereas, According to the existing system,
the President of the United States, instead of being
chosen directly by the people, is chosen by the in-
tervention of electoral colleges in the several States;
and

"Whereas, This system, besides excluding the
'people from a direct vote in the choice of President^

1 Thirty Years' View, pp. 78-79.

2 See " The Addresses and Messages of the Presidents of the
United States." New York, 1842. P. 359.

IN THE UNITED STATES. 43

is operated hy the caucus or convention^ an irrespon-
sible hody^ unknown to the law or Constitution^ where
a few persons hy combination^ and sometimes by in-
trigue or corruption J succeed in putting forward a
candidate who becomes forthwith the exclusive repre-
sentative of a political party, so that the triumph of
the party assures his election; and

".Whekeas, The caucus or convention^ after being
the engine for the nomination of President^ allowing
the people a little more than to record its will, becomes
the personal instrument of the President when elected,
giving him a dictatorial power, which he may employ
in reducing the people to conformity with his purposes
and promoting his re-election, all of which, is hostile
to good government, and of evil example ; and

"Whereas, The existing system of choosing a
President, besides being highly artificial and cumber-
some, is radically defective and unrepublican, inas-
much as it fails to secure for each voter the oppor-
tunity of declaring for the candidate of his choice,
and in its operation substitutes therefor the dicta-
tion of a caucus or convention."

Such are the reasons assigned by Mr. Sumner
in the preamble to the resolutions which he offered
looking to the abolition of the system now in force.
They recapitulate very clearly the objections to
which it has given rise.

It is impossible to say whether the United
States will soon adopt any project of electoral re-

44 THE EXECUTIVE POWER

form. It is, however, probable that the existing
system has not jet outlived its time. Its inherent
faults must first be more generally known.

Such are the varied experiences of the United
States regarding the presidential election. The
convention of 1787 was right in withholding from
the House of Representatives the right to elect the
President. Had it done otherwise, one of two things
would have happened — either the House would
have received imperative instructions from its con-
stituents— it would itself have been elected, in view
of the presidential choice to be made by it, or it
would have become a central point of intrigues.
Party spirit would have distracted it, and each can-
.didate would have employed every means at his dis-
posal to secure votes. Nev^r would an election
have been less free and unbiased.

The system adopted by the Philadelphia Con-
vention, which, with the amendment of 1803, has
been maintained to the present day, has encouraged
the organization of parties. At the same time, as
has been seen, the electoral colleges have lost even
the right of expressing a personal preference.
They have been reduced to simply registering the
popular verdict. In this, then, the election, through
a second agency, has completely failed.
■ The direct election of the chief magistrate by
the people remains to be tried. It is impossible to
foresee the practical result of this experiment.

IN THE UNITED STATES.

45

The choice of a President determines for four
years the general policy of the United States. The
convention that designates the candidate whose
nomination is subsequently ratified by the people,
has marked out a programme. This programme
has been explained by all the " stump-speakers " of
the party, and adopted by the innumerable local
conventions held about the same time. The party
has in this way expressed its ideas upon the situa-
tion ; the candidate for the presidency has formally
given in his adhesion, and his honor, as a public
man, is pledged to its execution.

Once elected, the President knows then the policy
he is to pursue. If no exceptional or disturbing
causes occur to distract the public mind, it is easy
to tell from the day that he enters upon his duties
what will be his line of conduct. But at a critical
juncture matters do not take place in the same
manner; if new political questions arise, a pro-
gramme previously decided on cannot have foreseen
them. Then it becomes his duty to discern the
direction of that public opinion, which alone has
supreme authority to sit in judgment on his action.
Within these limits he has full scope to display
all the qualities of a statesman. As he is not
politically amenable to any jurisdiction, he may act
with entire freedom, provided he does not violate
the laws with a criminal intent. Even if he
deem it best either to offer a momentary resistance

46 THE EXECUTIVE POWER

to public opinion, or to anticipate it, he is at liberty
to do so. However, he should never lose sight of
the party chiefs, who have borne him into power ;
he must at all hazards avoid an estrangement from
them.

Notwithstanding these conditions of political de-
, pendence on a party, and an ultimate responsibility
to the people, pubhc opinion allows the greatest
liberty of action to the President. He is in a posi-
tion to act with vigor, and up to a certain point his
movements may be independent. It cannot be
doubted that this authority is indispensable to the
development of the United States, as well as to the
maintenance of liberty.

The election of the Vice-president of the repub-
lic requires some special remarks. By the terms
of the Constitution he performs, for the greater
part of the time, unimportant functions. He pre-
sides over the deliberations of the Senate, but can-
not take part in them, nor has he a vote, except in
rare instances, in which the members are equally
divided. However, under certain circumstances
he may be called to the presidency. " In case of
the removal of the President from office, or of his
death, resignation, or inability to discharge the
powers and duties of the said office, the same shall
devolve on the Vice-president." This clause of
the fundamental law^ has already taken effect three

I Constitution, Article IL, Section 1, ^ 5.

IN THE UNITED STATES. 47

times in the history of the United States. At the
death of General Harrison, Mr. Tyler succeeded
him ; Mr. Fillmore became President at the death of
Greneral Taylor, and finally, when Mr. Lincoln was
assassinated, Mr. Johnson took his place.

Perplexing questions relative to the then Con-
stitutional status of -the Yice-president have arisen.
Some assert that he administers the Executive
Power, being simply charged with its functions ;
others, on the contrary, maintain that, by the very
• fact of a change of persons, he becomes in deed and
of right President of the United States. This dif-
ference of opinion is not unimportant; however,
as the question is yet in abeyance, there is no
reason for dwelling upon it now. On the contrary,
it is useful to consider all the bearings of the ar-
rangement which may eventually place him in
the executive chair.

On the three occasions m which the Yice-presi-
dent succeeded the President, disagreements more
or less serious existed between the executive and
the legislative power.

The administration of Mr. Tyler was very
troubled, and although Mr. Fillmore did not en-
counter so violent an opposition, yet he met with
very serious embarrassments; while under Mr.
Johnson matters proceeded to the utmost extremity.
The experience of the United States on this subject
is, then, very far from giving satisfactory results.

48 THE EXECUTIVE POWER

It is not, moreover, difficult to see why this ar-
rangement did not succeed. In the first place, the
Vice-president and President are nominated by
the same convention. The important man has
been chosen for the first office ; but almost always
there will be found, in assemblies thus constituted,
a minority who are not wholly pleased with the
nomination. These discontented persons must be
satisfied — and the second place 'is given to the
candidate selected by them.

It frequently occurs that the Yice-president does
not exactly represent the ideas or interests which
dictated the first choice. Doubtless, the system
in use offers advantages in regard to the election.
As the two candidates have many points of dif-
ference, they supplement and at times strengthen
each other. But that which may be useful during
the canvass may eventually become a cause of very
serious embarrassment. In case the Vice-president
is suddenly called upon to exercise the office of
chief magistrate, it is easy to foresee the con-
sequences growing out of this change of persons.
Although he has been elected by a majority of
the people, yet he does not the less for all that
represent, in many respects, the views of a certain
minority. If he remain faithful to them, he may
find himself in open opposition to his own party.
Besides, from the moment when the people elect a
President this candidate alone is before the public

IN THE UNITED STATES. 49

eye, and it is to him that the authority is delegated
by the vote of the country. So, in this case, the
question is not simply to ascertain the degree of
opposition that one man is able to make to the
collective power of Congress.

"If the President is strong, it is because the peo-
ple who, by their suffrage, have raised him to
his place, are behind him, holding up his hands,
speaking with his voice, sustaining him in his high
duties, that the President has the place and can

maintain it under the Constitution So this

great power does not present any danger to the
country, and the President may exercise it safely,
because he is supported by the people who have
just given him so striking a proof of their confi-
dence in calling him to the chief magistracy."^ If,
on the contrary, he who fills the executive func-
tions has not been chosen by a popular election
made with the view of confiding this power to him

directly "then at once discord, dislocation,

deficiency, difficulty show themselves; then at once
the great powers of the office, which were conso-
nant with a free constitution and with the supre-
macy of popular will, by the fact that for a brief
term the breath of life of the continuing favor of
the people gave them efficiency and strength, find
no support in fact. Then it is, that in the eriti-

ilmpoacbment Trial of Andrew Johnson, pp. 721, 722; argu-
ment of Hon. William M. Evarts.

50

THE EXECUTIVE POWER

cisms of the press, in the estimate of public men,
in the views of the people, these great powers,
strictly in trust and within the Constitution, seem
to be despotic and personal." ^

Finally, all the aspirants, all those who are in-
terested in the public service, or who established
relations with the late President, find themselves
in an awkward position as regards his succes-
sor. If then a Vice-president, who is suddenly
called upon to occupy so different a situation, fails
to show the requisite wisdom and prudence, if he
does not possess the personal qualities necessary
to maintain peace, contests must inevitably ensue,
and then the executive falls into an exceptional
state of weakness.

Thus the constitutional provision, in virtue of
which the Yice-president may eventually take the
place of the President, has caused the United States,
up to the present time, inconveniences of the
gravest nature ; and, although this question has
not as yet attracted public attention to the extent
that it deserves, it is possible -that sooner or later
it may become the subject of thorough discussion.
However that may be, this provision ought not to
be imitated elsewhere. If a nation should adopt
" the republican form of government," it would be
more to its advantage to declare that if the Presi-

1 Impeachment Trial of Andrew Johnson^ pp. 721, 722; argument
of Hon. William M. Evarts.

IN THE UNITED STATES. 51

dent elect ceases, from any reason whatever, to
exercise his functions, the presiding officer of one
of the legislative chambers should temporarily
serve, and be required to order the election of a
successor with the least possible delay.

CHAPTER 11.

CONSTITUTION OF THE EXECUTIVE POWER.

WE mu^t not for a moment lose siglit of the
fact that the people have not delegated all
their powers to the Federal Government.
The latter is only sovereign within a restricted
sphere of action prescribed by the Constitution. It
is, then, impossible to compare it with the govern-
ments of other States. In England, Prussia, Rus-
sa and France, the central power, whatever it may
be, represents the whole national sovereignty, while
in the United States the Federal Government only
represents a part of it, and is confined to the ex-
ercise of the powers enumerated by the funda-
mental law.

There is no necessity for presenting here the con-
siderations which induced the Philadelphia Conven-
tion to adopt this system; but it is important to
remark that it would be almost impossible for other
nations to make a similar division of powers. In-
deed, a country must be placed in peculiar circum-
stances to prevent an absorption of all authority
by the general government.

We will now look into the Constitution of the
(52)

IN THE UNITED STATES. 53

Unit(,d States, and see in' what manner it divides
between several departments tlie sovereign preroga-
tives conferred upon the Federal Government. It
creates an executive, a legislative and a judicial
department, and provides that they shall be all
three " co-ordinate and independent" ; or, to use the
words of a decision of the Supreme Court, the
several branches of the government " are co-ordi-
nate in degree to the extent of the powers delegated
to each of them. Each, in the exercise of its pow-
ers, is independent of the other, but all, rightfully
done by either, is binding upon the others." ^

It was thus the purpose of the convention to
unite the three powers in such manner that each
of them might exert a constitutional control with-
in its own orbit, and at the same time that neither
should have a marked ascendency over the others.
It neglected nothing in order to avoid an absorp-
tion, or even a gradual concentration, of all powers
in one, and labored to assure the independence of
each. To this end it declared, in effect, that the
President, or a civil officer, should not be impeached
except for high crimes and misdemeanors, and that
no executive agents should be held politically re-
sponsible to Congress. On the other hand, the
President could never dissolve the Congress, or
even suspend the course of its deliberations.

At the same time the convention calculated that

1 18 Howard. Dodge v». Woolsey, p. 347.

54

THE EXECUTIVE POWER

personal motives would' plaj an important part,
and that the men who would form one of the three '
powers would be naturally called upon to defend its
privileges and maintain its prerogatives. Thas, after
having explained how human ambition would con-
tribute to preserve each branch of the government in
its constitutional rights, the "Federalist" observed
that, in order to avoid a predominance of legislative
authority, it was necessary to divide the Legisla-
ture into two branches, as distinct as possible. But
this did not appear to be sufficient ; the Executive
Po.wer must still be strengthened, and, neverthe-
less, all these precautions would not have reassured
the authors of the "Federalist," if they had not
found a new guaranty in the very division of the
sovereignty between the Federal government and
the State governments. It was well, in their opin-
ion, that power should be divided at first between
two distinct governments, and then be distributed
among the several departments of each. Hence
this partial delegation of sovereignty. Hence these
three powers, at once co-ordinate and independent,
which derive their authority from the Constitu-
tion, and which, while they act in concert, yet
serve to counterpoise each other.

This leads us to explain how the Executive
Power was organized, in order to assure its co-
operation with the two other departments, and at
the same time to guaranty its independence. The

IN THE UNITED STATES. 55

first care of the convention was to give to the
President as much strength as possible.^

" There is an idea," says the "Federalist," " which
is not without its advocates, that a vigorous execu-
tive is inconsistent with the genius of republican
government. The enlightened well-.wishers to this
species of government must at least hope that the
supposition is destitute of foundation, since the\^
can never admit its truth without, at the same
time, admitting the condemnation of their own
principles. Energy in the executive is a leading
character in the definition of good government. It
is essential to the protection of the community
against foreign attacks ; it is not less essential to
the steady administration of the laws, to the pro-
tection of property against those irregular and
high-handed combinations which sometimes inter-
rupt the ordinary course of justice, to the security
of liberty against the enterprises and assaults of

ambition, of faction, and anarchy" "A feeble

executive implies a feeble execution of the govern-
ment. A feeble execution is but another phrase for
a bad execution, and a government badly executed,
whatever it may be in theory, must te, in practice,
a bad government."

It remains to be seen what are the essential ele-
ments of that energy which is necessary to the
Executive Power. According to the "Federalist"

1 See the " Federalist," pp. 333-3<)4.

56 . THE EXECUTIVE POWER

they are, first, unity ; secondly, duration ; thirdly,
an adequate provision for its support, and fourthly,-
competent powers.

" Those politicians and statesmen," adds the
"Federalist," "who have been the most celebrated
for the soundness of their principles, and for the
justness of their views, have declared in favor of a
single Executive and a numerous Legislature. They
have, with great propriety, considered energy as
the most necessary qualification of the former, and
have regarded this as most applicable to power in
a single hand, while they have, with equal pro-
priety, considered the latter as best adapted to
deliberation and wisdom, and best calculated to con-
ciliate the confidence of the people, and to secure
their privileges and interests "

" That unity is conducive to energy will not be
disputed. Decision, activity, secrecy and dispatch
will generally characterize the proceedings of one
man in a much more eminent degree than the pro-
ceedings of any greater number, and in proportion
as the number is increased, these qualities will be
diminished."

If the Executive Power was confided to two or
three persons the people would be deprived of the
strongest guarantees which can be found in the dele-
gation of power. /Thanks to unity, public opinion
is able to scrutinize the President, and to determine
upon whom to direct its censure;, the people are

IN THE UNITED STATES. 57

also capable of determining the responsibility wbich
may attach to their mandatary, and, if need be,
they know whom to punish. " But in a republic,
where every magistrate 'ought to be personally

responsible for his behavior in office the

propriety of a council not only ceases to apply but
turns against the institution."^

"Duration in office has been mentioned as the
second requisite to the energy of the executive
authority. This has relation to two objects :^{_to
the personal firmness of the executive magistrate in
the employment of his constitutional powers, and to
the stability of the system of administration which
may have been adopted under his auspices.' With
regard to the first, it must be evident that the
longer the duration in office, the greater will be
the probability of obtaining so important an advan-
tage. It is a general principle of human nature
that a man will be interested in whatever he pos-
sesses, in proportion to the firmness or precarious-
ness of the tenure by which he holds it ; will be less
attached to what he holds by a momentary or un-
certain title This remark is not less applica-
ble to a political privilege, or honor, or trust, than
to any ordinary article of property. The inference
from it is, that a man acting in the capacity of
chief magistrate, under a consciousness that in a
very short time he must lay down his office, will be

I The "Federalist," p. 486 et. seg.

58 THE EXECUTIVE POWER

apt to feel himself too little interested in it to haz-
ard any material censure or perplexity from the
independent exertion of his powers, or from encoun-
tering the ill humors, kowever transient, which
may happen to prevail, either in a considerable part
of the society itself, or even in a predominant fac-
tion of the legislative body. If the case should
only be that he might lay it down, unless continued
by a new choice, and if he should be desirous of
being continued, his wishes, conspiring with his
fears, would tend still more powerfully to corrupt
his integrity or debase his fortitude. In either
case, feebleness and irresolution must be the char-
acteristics of the station."

"There are some who would be inclined to re-
gard the servile pliancy of the executive to a pre-
vailing current, either in the community or in the
Legislature, as its best recommendation. But such
men entertain very crude notions, as well as of the
purposes for which government was instituted, as
of the true means by which the public happiness
may be promoted. The republican principle de-
mands that the deliberate sense of the community
should govern the conduct of those to whom they
intrust the management of their affairs ; but it does
not require an unqualified complaisance to every
sudden breeze of passion, or to every transient im-
pulse which the people may receive from the arts
^of men who flatter their prejudices to betray their

IN THE UNITED STATES. 59

interests. It is a just observation that tlie people
commonly intend the public good. This often applies
to their very errors. But their good sense would
despise the adulator who should pretend that they
always reason right about the means of promoting
it. They know from experience that they some-
times err, and the wonder is, that they so seldom
err as they do, beset, as they continually are, by
the wiles of parasites and sycophants ; by the snares
of the ambitious, the avaricious, the desperate ; by
the artifices of men who possess their confidence
more than they deserve it; and of those who seek
to possess rather than to deserve it. When occa-
sions present themselves, in which the interests of
the people are at variance with their inclinations,
it is the duty of the persons whom they have ap-
pointed to be the guardians of those interests, to
withstand the temporary delusion in order to give
them time and opportunity for more cool and sedate
reflection. Instances might be cited in which a
conduct of this kind has saved the people from
very fatal consequences of their own mistakes, and
has procured lasting monuments of their gratitude
to the men who had courage and magnanimity
enough to serve them at the peril of their displea-
sure "^

Nor should the executive yield to the caprices
of the Legislature. "It may sometimes stand in op-

l The "Federalist," p. 496 et seq.

6o THE EXECUTIVE PC WER

position to llie forme? : and at other times the peo-
ple may be entirely neutral. In either supposition, it
is certainly desirable that the executive should be
in a situation to dare to act his own opinion with
vigor and decision."

If it is necessary to divide power between differ-
ent branches of the government, it is equally indis-
pensable to guarantee the independence of each
What good purpose would be subserved by sepa-
rating the executive and the judicial from the legis-
lative power, if the first two were so constituted,
as to be constrained to obey implicitly the third?
In such a case a division would be purely nominal,
and none of the expected results would be realized.
"It is one thing to be subordinate to the laws, and
another to be dependent on the legislative body.
The first comports with, the last violates, the funda-
mental principles of good government ; and what-
ever may be the forms of the Constitution, unites

all powers in the same hands In governments

purely republican this tendency is almost irresisti-
ble. The representatives of the people, in a popular
assembly, seem sometimes to fancy that they are
the people themselves, and betray strong symptoms
of impatience and disgust at the least sign of oppo-
sition from any other quarter, as if the exercise
of its riehts by either the executive or judiciary
were a breach of their privilege and an outrage to

IN THE UNITED STATES. 6r

their dignity. Tliey often appear disposed to exert
an imperious control over the other departments." ^

As regards the duration of the presidential term,
the Federalist asks if four years suffices to give to
the Executive Power that vigor which is essential
to it? and in reply. expresses its apprehensions:
"Between the commencement and termination of
such a period there would always be," said liamil
ton, " a considerable interval, in which the prospect
of annihilation would be sufficiently remote not to
have an improper effect upon the conduct of a man
endued with a tolerable portion of fortitude, and in
which he might reasonably promise himself that
there would be time enough before it arrived to
make the community sensible of the propriety of the
measures he might be inclined to pursue. Though
it is probable that, as he approached the moment
when the public were, by a new election, to signify
their sense of his conduct, his confidence, and with
it his firmness, would decline."

And in the third place, the executive authority
must be maintained, and with this view the
President is to receive a salary in proportion to
the importance of his functions. Had this point
been overlooked in the Constitution, thought the
authors of the "Federalist," the separation of the
executive and legislative branches of the govern-
ment would be quite illusory. If Congress had a

1 Tlie "Federalist," p. 499.

62 ' THE EXECUTIVE POWER

discretionary power over the compensation of tlie
chief magistrate, he would cease to be independent.
The legislative power could in a measure starve him
out. Therefore the Constitution prescribes that
'' The President of the United States shall, at stated
times, receive for his service a compensation, ivhich
shall neither he increased^ nor diminished^ during the
period for which he shall have been elected; and he
shall not receive within that period any other emolu-
ment from the United States, or any of them."

Thus, at the time of his election, Congress de-
termines once for all what pecuniary provision shall
be made for him during his term of office.

Finally, in order to give him that vigor which is
indispensable to the efficient exercise of his func-
tions, he must have the requisite prerogatives.
The Constitution defines them ; but this is not the
place to examine them in detail.

) Thus the framers of the Constitution determined
to assure to the Executive Power both independ-
ence and vigor; to organize it, in a. word, in such
manner that it should possess all the requisite qual-
ities for the conduct of affairs. ^\ Kesults attest
that their plan was well conceived.

Notwithstanding the numerous struggles that
have taken place between the three powers, these
co-ordinate and independent branches of the Federal
government have been able to co-exist.

1 The "^Federalist," p. 86 el seg.

IN THE UNITED STATES. 63

Experience also proves that (thanks to the term
of office fixed by the Constitution for the President
and for Congress) a contest between them would
never be pushed to extreme consequences, and that
the people, as sovereign judge of the questions at
issue between the contending parties, would almost
always be able to intervene in time.

However, the Constitutional Convention was not
able to organize a system of political responsibility.
Doubtless, it provided that all federal functionaries,
the President not excepted, might be impeached
by the House of Kepresentatives and tried by the
Senate ; but, as will be seen in the course of this
work, this procedure applies solely to the func-
tionary who has committed a crime or a misde-
meanor which a law of the United States defines .and
punishes. His criminal responsibility is confined
within those limits.

/"It is true that the President is morally responsi-
ble to the people ; public opinion may always con-
demn him. But if the entire nation, as if with one
voice, should arraign and consure him, his legal
situation would in no wise be modified. In fact,
he would probably have lost all his moral authori-
ty, but in law, he would none the less continue to
exercise to the fullest extent all the inherent powers
of the presidential office.

It is said that it would have been otherwise, had
the Constitution established ministerial responsi-

64 THE EXECUTI\'E POWER

bility. A council, according to the doctrine of a
well-known school, would have sufficed to harmon-
ize these independent powers; nevertheless the
United States were right in rejecting the system.

The President is elected by the people ; the Con-
stitution confers upon him large powers. What
purpose would this election subserve, and of what
avail would be these powers, if the chief magistrate
was obliged to surround himself with a council,
organized for the purpose of governing in his name ?
He would then necessarily become the instrument
of Congress, and be constrained to yield incessantly
to its wishes. His situation would soon be ren-
dered intolerable ; elected by, and morally respon-
sible to, the people, he would be compelled to let
his council govern in order to satisfy the legisla-
tive power ! Had this been the case the executive
authority would have almost entirely disappeared.
The supreme power would then abide in Congress ;
and this is precisely what a democratic people
should above all things avoid. If the appropriate
province of legislative assemblies is yet but imper-
fectly understood, the cause of the errors which
prevail in this regard may be readily found. For
nearly a century the constitutional and parliament-
ary school of Europe has to some extent based its
doctrines on Enujlish tradition. Doubtless, in the
great British monarchy, Parliament has been able
to occupy the first place ; but the Executive Power

IN THE UNITED STA TES. 65

is there hereditary and irresponsible, and therefore
bears, in this respect, no resemblance to the elective
presidency. Again, English parliamentary author-
ity has for a long time been engrossed by a small
number of persons. The heads of aristocratic fam-
ilies have almost to the present day governed the
affairs of the nation. How different the conditions
imposed by a democratic society upon the legisla-
tive assemblies. The latter may doubtless be well
qualified to pass laws and discuss the budget of
receipts and expenditures ; at least up to the pres-
ent time no substitute for them has been found in
a free government, but history famishes scarcely
an instance of their. capacity to govern the country
which they represent.

In the United States, if the administration of
public affairs devolved on Congress, . it is very
questionable whether a judicious use would long be
made of its authority. Disorder in transacting
them would probably soon be manifest. Now, it
must not be forgotten that disorder — and this is
specially the case in democratic nations — is essen-
tially incompatible with liberty. Forced to choose
between anarchy and despotism, they will always
select the latter alternative. In this respect, they
are infinitely more impressionable than aristocracies,
and the framers of the Constitution were fully
aware of the fact. Their resolution to exclude the
plan of an executive council was, however, only
5

66 THE EXECUTIVE POWER

reached after long debates. The English parlia-
mentary system had great prestige in their eyes,
and their refusal to adopt it must be ascribed to
their conviction, that it was incompatible with the
existence of a republican government. Being thus
constrained to give to the executive branch the
unity, vigor and powers which are indispensable
to it, and, at the same time, shield it from political
responsibility to Congress, they preferred to submit
to the great inconveniences which might result
from the sacrifice. At the same time they limited
the presidential term to four years. The people, by
the exercise of their sovereign power, can correct,
at the end of this period, the error which they may
have committed at its commencement.

If we reflect, however, on the conditions under
which the ^President is nominated by a convention
and elected by the people, we cannot avoid the
conclusion, that if the hereditar37- transmission of
power is exposed to great hazards, those incident
to a popular election are perhaps equally great.
And yet the people ought to be willing to acquiesce
in a choice imprudently made. The Executive
Power is confided to their selected agent for four
years. If they have been deceived by him, they
must quietly submit until the expiration of his
term. It is only on these conditions that the
republic can be maintained.

Another question, almost as complicated as the

IN THE UNITED STATES. 67

preceding ones, the re-eligibilitj of the President,
was also presented for the consideration of the
framers of the Constitution. Thej determined it
in the afl&rniative. Hamilton thus explains in the
" Federalist " the motives which led them to this
result :

" One ill effect of the exclusion would be a dimi-
nution of the inducements to good behavior. There
are few men who would not feel much less zeal in
the discharge of a duty, when they were conscious
that the advantages of the station with which it
was connected must be relinquished at a determi-
nate period, than when they were permitted to en-
tertain a hope of obtaining by meriting a continu-
ance of them. This position will not be contested
so long as it is admitted that the desire of reward
is one of the strongest incentives of human con-
duct, or that the best security for the fidelity of
mankind is to make their interest coincide with
their duty." ^

At the same time Hamilton was of opinion that
in this way the President would not allow himself
to be influenced by unworthy designs, which might
even lead to ideas of usurpation.

"A third ill effect of the exclusion would be the
depriving the community of the advantage of the
experience gained by the chief magistrate in the
exercise of his office What more desirable or

1 The " Federalist," p. 502 et seq.

68 THE EXECUTIVE POWER

more essential tlian this quality in the governors
of nations? Can it be wise to put this desirable
and essential quality under the ban of the Constitu-
tion, and to declare that the moment it is acquired
its possessor shall be compelled to abandon the
station in which it was acquired, and to which it

was adapted? And yet, what would result

from such exclusion? — the banishing men from sta-
tions in which, in certain emergencies of the State,
their presence might be of the greatest moment to
the public interest and safety. There is no nation
which has not, at one period or another, experi-
enced an absolute necessity of the services of par-
ticular men in particular situations; perhaps it
would not be too strong to say, to the preservation
of its political existence." ^

To those who \ assumed that the very fact of
exclusion would assure a greater degree of independ-
ence to the chief magistrate and a better security
to the people, Hamilton replied by presenting con-
siderations of a nature to show, in his view, the
futility of such objections. As is known, the con-
stitutional provision has been maintained to the
present day ; the President has always been re-
eligible. However, guided by the example of
Washington, who had himself refused the third
election, the practice has been to re-elect the Presi-
dent but once.

1 The " Federalist," p. 505 et seq.

IN THE UNITED STATES. 69

Nevertheless, in 1829, General Jackson recom-
mended to Congress the adoption of a constitu-
tional amendment, declaring that the President
could not be elected a second time. ^ Since then
the question has been often agitated, and the dis-
advantages resulting from the system now in force
have been pointed out from time to time by lead-
ing statesmen.

It has been said that in every country the
inquiry naturally suggests itself, whether the ruler
of the nation, holding in his hands the resources of
the Executive Power, is an ordinary candidate?
When the patronage and authority vested in him
by the Constitution be considered, it is obvious that,
in an electoral contest, he occupies a different
position from that of a private citizen, soliciting
the people to confer upon him the first office in
their gift.

The party which aids in securing the re-election of
the President is also placed in an exceptional situ-
ation. It is supported by the office-holders, who
place at its disposal all the influence of the govern-
ment. If we suppose an administration as regular
and as well organized as" could be desired, yet even
then the means of action that the President may
use will be immense.

As has been elsewhere very justly remarked, if

1 See his first annual message, in the compilation entitled, "Ad-
dress and Messages, of the President," New York, 1842.

70 THE EXECUTIVE POWER

magistracies, traditionally constituted and irremova-
ble, can assure but imperfectly the independence af
the incumbents, what will be the result when func-
tionaries are interested, whose official existence, or
at least advancement, may depend on the executive
chief.

The advocates of the re-eligibility of the President
affirm, in reply to these criticisms, that the public
service might and should be organized and regulated
so as to protect dependent functionaries from any
pressure that he might bring to bear upon them.
Nothing is less sound than this argument, for he
will always have means of influence powerful
enough to constrain them to conform to his wishes:
When he desires a re-election, he employs in the
attainment of that object all the means that the
Constitution gives him. If he has conceived this
design for some time previous to the commence-
ment of the presidential campaign, he calls around
him those partisans who favor his wishes, and
distributes amongst them his political patronage, so
as to acquire in the party, which has already elected
him, that aid which is indispensable to his purpose.
By the emploj^ment of all the resources at the
disposal of the administration, as many journals as
possible are enlisted for the candidate for re-elec-
tion. Gradually the office-holders organize all over
the country primary meetings, which are skillfully
composed of devoted parrtisans. A united effort is

IN THE UNITED STATES. 71

then made, and a national convention, consisting of
delegates carefully chosen, ratifies the decision
made a long time before by the chief of the Execu-
tive Power.

From the moment of the nomination the strength
of the party combines with the administrative or-
ganization of the United States. They are blended
to such a deoree, that their separate existence ceases
for a time ; then the partisans can no longer be dis-
tinguished from the functionaries, for they are all
transformed into electioneering agents. Without
having witnessed such a spectacle, it is doubtful if
a European can appreciate its character ; he would
find it difficult to understand the extent to which
matters are pushed. When the electoral struggle
begins, neutrality is no longer permitted. If a
politician tries to preserve his independence and at
the same time remain in full fellowship with his
party, he is soon forced by its discipline to express
his sentiments, and if he openly revolts against this
tyranny, he will be denounced as a traitor, no mat-
ter what signal services he may have previously
rendered. His conscientious resistance to the ex-
actions and intrigues of party leaders will soon
shi'oud in oblivion all his past efforts and sacri-
fices.

Such proceedings have an inevitable tendency
to corrupt the public morals. Their recurrence,
then, must be prevented. This can only be effect-

72 THE EXECUTIVE POWER

ually accomplished by a constitutional amendment
prohibiting the re-election of the President. Much
reliance cannot be safely placed upon his patriotic
abnegation. During his first term he has before him
the history of his predecessors, and beholds them,
so to say, divided into two classes, in one of which
are found those who held the office for eight years,
and at their head is the name of Washinsfton. In
the other, are those whose administration was not
always crowned with success, and it is natural that
he should seek to be ranked with the first. The
more elevated his sentiments, the more will he
cherish a legitimate ambition, coupled with an
earnest desire to prolong the duration of his service
and to perpetuate his name. In this case, the noblest
impulses of human nature will prpmpt him to solicit
the honor of a new lease of official life.

Doubtless such exceptional circumstances may
occur as to render the re-election of the President
up to a certain point a public necessity. But too
much importance must not be attached to what
may be said in this respect. If ever an election
occurred during a crisis, it was that of 1864, which
returned Mi. Lincoln to a second te^m. The elec-
toral campaign took place during the war, and as
he himself said in words which were at least
quaintly original, " it is not prudent to swap horses
in the middle of a river." However, it is very
doubtful if his rare gifis and the prestige of his

IN THE UNITED STATES. 73

honored name were indispensable to the safety
of the Union. In 1864, even under circumstan-
ces of such gravity, the Kepublican party could
without danger have elected another President.
He would have followed the same line of conduct.
Doubtless, the re-election of Mr. Lincoln gave an
emphatic popular sanction to the policy of abolish-
ing slavery and waging war until all armed oppo-
sition should cease ; but any other candidate, chosen
with a view to this programme, would have prob-
ably executed it. The support of the Eepublican
party would have been given to the elect of the
nation, and the effect of a change of persons would
not have compromised the triumph of the arms of
the Union. As the Constitution p.ermitted the
re-election of Mr. Lincoln, his success offered great
advantages ;• but if that instrument had interdicted
it, the United States would have conformed without
serious embarrassment to the law 6f exclusion.

On the other hand, it cannot be denied that a
term of four years, without a possibility of re-elec-
tion, is not long enough. In fact, the President
elect enters almost always upon his duties without
much experience in public affairs. He requires at
least six months of initiation to render them famil-
iar to him. He is scarcely then in the exercise of
full authority, and, unfortunately, only preserves it
during two years and a half. When the fourth
year of his term commences, the country enters

74 THE EXECUTIVE POWER

upon a new presidential crisis. This affects tlie
political situation to such a degree that, up to the
close of the electoral campaign, something like a
suspension in the life of the government takes
place. After the election of his successor, the
President still remains in office fwir months, but
he then confines himself almost exclusively to clos-
ing up current business.

Thus, many thoughtful persons have been struck
by the inconveniences arising out of the short du-
ration of the term. They have, therefore, proposed
to prolong it by two years, and at the same time
rendej' the President ineligible. There is no reason
to doubt the happy results of this reform. He
would have four years and a half of full authority;
and this arrangement would agree very well with
the exigencies of a democratic society. • In a coun-
try vv^here a disposition to watch the progress of
public affairs and the conduct of public men per-
vades all classes, where criticism is so keen and so
personal, it is difficult for one in an elevated official
position to resist for a longer time the incessant
attacks of which he is the object. Do as he may,
he is soon worn out.

But, then, if the President remained in office six,
or even eight years, the essential conditions to the
existence of his authority could not be modified,
for in that event he would not be surrounded by a
parliamentary cabinet responsible to Congress. It

IN THE UNITED STATES. 75

is proper also to observe, by the way, that when
Hamilton proposed to elect a President for li fe, and
thus sought to approach toward an hereditary roy-
alty, he was not in favor of surrounding that offi-
cer with a council taken from the deliberative as-
semblies; he maintained that this power should be
active, energetic, and clothed with large authority.
However that may be, it is evident that if an
amendment to the Constitution should extend the
presidential term to six years, it would not remedy
grave embarrassments. Even with this prolonged
duration a lamentable instability in the chief mag-
istracy would still exist. But is not this very in-
stability inherent in democratic institutions, and
should not a nation ardently devoted to them cheer-
fully accept their disadvantages when they reap
their benefits ? Moreover, in a society so constitut-
ed politics must necessarily be confined to domestic
exigencies, which occur from day to day. All
questions of foreign policy must be studiously
avoided. Certain aristocracies have been able to
prepare slowly the greatness of the country they
governed ; generations have succeeded each other
and transmitted an immutable tradition; monar-
chies have done the same thing with equal suc-
cess; the father has taught the son the lessons that
he had himself received from his ancestors. He
has made it his glory to bequeath to his successors
the means of securing the greatness of the king-

76 THE EXECUTIVE POWER

dom, and the same spirit has thus been maintained
for ages. The countries of Europe that preserve
their unity have ahiiost-all been peopled by those
patient and tenacious races who have preserved and
perpetuated the secret of the national thought. A
democratic republic does not pursue a similar ob-
ject. On the contrary, it can scarcely be main-
tained, except upon condition of setting aside all
that recalls the past. Its ideal is diiferent. Its
predominant desire is to assure the liberty and
equality of mankind. If, unfortunately, that is no
longer cherished, it must speedily perish.

It is important for nations who appear to desire
a republic not to lose sight of this observation. If,
in establishing this form of government, Americans
had continued the traditions of the old European
regimes^ they would soon have witnessed its down-
fall. They were then obliged to accept the essen-
tial conditions of their existence. Had they been
unable to do so, they would have been reduced to
two alternatives — either to establish a monarchy,
and clothe the king with considerable power, or to
endanger the very life of the nation.

CHAPTER III.

OF FUNCTIONARIES CHARGED WITH ADMINISTRATIVE
ACTION.

^ ^ r I aHE administration of government," says
I the "Federalist," "in its largest sense,
comprehends all the operations of the bodj
politic, whether legislative, executive or judicial;
but in its most usual, and perhaps in its most pre-
cise signification, it is limited to executive details,
and falls peculiarly within the province of the ex-
ecutive department. The actual conduct of foreign
negotiations, the preparatory plans of finances, the
application and disbursement of public moneys in
conforijiity to the general appropriations of the Leg-
islature, the arrangement of the army and navy,
the direction of the operations of war. These, and
other matters of like nature, constitute what seems
to be most properly understood by the administra-
tion of government. The persons, therefore, to
whose immediate management these different mat-
ters are committed, ought to be considered as the
assistants or deputies of the chiof magistrate, and
on this account they ought to derive their offices
(77)

73 THE EXECUTIVE POWER

from his appointment, at least from his nomination,
and ought to be subject to his superintendence." ^

Snch were, no doubt," the considerations which
controlled the convention in conferring on the Pres-
ident the power of selecting the chiefs of the
various departments, who are charged with admin-
istrative action.

At the first session of Congress, the question
relative to the executive departments was pre-
sented. The debates to which their organization
gave rise are considered, by competent judges, as
the most remarkable, perhaps, which have occurred
in the parliamentary history of the United States.
The chief point in controversy was as to the power
of the President to remove a federal officer. It
probably had not specially attracted the attention
of the framers of the Constitution. They were
aware that he could not be appointed for life, as
they made an express exception to this rule in the
tenure of office of the members of the supreme and
inferior courts. At the same time they declared
that the President should, by and with the advice
and consent of the Senate, appoint all officers
whose appointments were not otherwise provided
for in the Constitution, and they authorized Con-
gress to vest the appointment of iifferior officers,
either in the President, in the courts of law, or in
the heads of departments. This clause of the Con-

iTho "Pedei-aUst," p. 502.

IN THE UNITED STATES. 79

stitution gave rise to the whole difficulty. A Rep-
resentative in. Congress, who had played an impor-
tant part in the convention of Philadelphia, insisted
that the consent of the Senate was as essential to
the removal of an officer as it was to his appoint-
ment. Mr. Madison replied that the President had
the exclusive power to choose his agents, and that
the constitutional restriction touchins- the inter-
vention of the Senate in appointments should be
considered only as an exception, which could not
. be extended in the absence of an express provision
authorizing it. Now there is no clause sanction-
ing or requiring the action of the Senate in cases
of removal. He further contended that the gravest
political considerations confirmed this interpreta-
tion. "It is," said he, "evidently the intention of
the Constitution, that the first magistrate should be
responsible for the executive department ; so far,
therefore, as we do not make the officers who are
to aid him in that department responsible to him,
he is not responsible to the country." He then
pointed out the dangers which would result from
the opposite view. The menaced functionary
might find supporters in the Senate, and this would
give' rise to inevitable conflicts between it and the
executive." "I believe," said he finally, "that no
principle is more clearly established in the Consti-
tution than that of responsibihty." Another Rep-
resentative expressed the same opinions. " If the

8o THE EXECUTIVE POWER

President," said lie, "complains to the Senate of the
misconduct of an officer, and desires their advice
and consent to the removal, what are the Senate to
do ? Naturally they will inquire if the complaint
is well founded. To do this, they must call the
officer before them to answer. Who, then, are the
parties? The supreme executive officer against
his assistant, and the Senate are to sit as judges to
determine whether sufficient cause for removal ex-
ists. Does not this set the Senate over the head
of the President ? But suppose they shall decide
in favor of the officer, what a situation is the Presi-
dent then in, surrounded by officers with whom, by-
his situation, he is compelled to act, but in whom
he can have no confidence." ^

Such were the considerations that decided the
House to recognize the President's constitutional
power of removal, at least in all cases where the
power to appoint was not subject to legislative
delegation.

The Senate had in its turn to pass upon the same
question. Mr. Charles Francis Adams thus recounts
what took, place on this memorable occasion:
*' But throughout the iadministation of General
Washington there is visible among public men a
•degree of indifference to power and place, which
forms one of the-most marked features of that timeT
To this fact it is owing that public questions of

1 Debates of Congress, Vol. I., pp. 480-487.

IN THE UNITED STATES. iSi

such moment were then discussed with as much
personal disinterestedness as can probably ever be
expected to enter into them anywhere, yet, even
with all these favorable circumstances, it soon be-
came clear that the republican jealousy of a central-
ization of power in the President would combine
with the esprit de corps to rally at least half the
Senate in favor of subjecting removals to their
control. In such a case the responsibility of
deciding the point devolved, by the terms of the
Constitution, upon Mr. Adams, as Vice-president.
It was the first time that he had been sum-
moned to such a duty His decision settled the

question of constitutional power in favor of the
President, and consequently established the practice,
under the government, which has continued to
this day." ^

In vindicating the action of Congress on the
right of removal, Chancellor Kent observes in his
commentaries that the power of the President is
justified by the most weighty reasons. The subor-
dinate'functionaries of the executive department
ought to hold at the pleasure of its head, because
he is invested generally with the executive authority
and every participation in that authority by the
Senate is an exception to a general principle and
ought to be taken strictly. " The President is the
great functionary, responsible for the faithful execu-

1 Life of John Adams, by Charles Francis Adams, Vol. 1., p. 448.
6

82 THE EXECUTIVE POWER

tion of the law, arjd the power of removal was
incidental to that duty^ and might often be requisite
to fulfill it."i

In 1839 the question was also decided in a simi-
lar sense by the Supreme Court. Matters rested
there until the presidency of Mr. Johnson.

During the session of 1866-67, Congress passed
an act " regulating the tenure of certain civil offices."
It provides that " every person holding any civil
office to which he has been appointed by and with
the advice and consent of the Senate, and every
person who shall be hereafter appointed to any
such office, and shall become duly qualified to act
therein, is, and shall be, entitled to hold such
office until a successor shall have been in like
manner appointed and duly qualified.'^ It adds :
" Provided^ that the Secretaries of State, of the
Treasury, of War, of the Navy and the Interior,
the Postmaster-general and the Attorney-general,
shall hold their offices respectively for and during
the term of the President, by whom they may
have been appointed."

Mr. Johnson coald not mistake the bearing of
this measure. It reversed the settled practice of
the Government since 1789, and put the President
himself under the guardianship of the Senate. At
the same time Congress specially had in view keep-

1 Kent's Commentaries, 7th edition, Vol, I., pp. 30&-307.

2 Ex-parte Hennen, 13 Peters, p. 139.

IN THE UNITED STATES. 83

ing in office the Secretary of War, in whom the
Republican majorities had the utmost confidence,
and who, for that very reason, was peculiarly ob-
noxious to Mr. Johnson. Nevertheless, the latter
could not prevent the passage of the bill ; it became
a law notwithstanding his veto.

A year after the adoption of this measure, which
had contributed more than any other to render him
powerless, Mr. Johnson thought that he had discov-
ered the means of evading its provisions, and he
removed the Secretary of War. The House of
Representatives construed this act as a declaration
of hostilities.

The long expected occasion occurred, and the
President was impeached. It was the province of
the Senate, sitting as a high court, for the purpose
of trying him, to decide upon his imputed violation
of the act of 1867, and also upon the constitution-
ality of the act itself. The verdict of acquittal
proved that, even under the extraordinary circum-
stances in which it was rendered, the Senate would
not so interpret the law as to oblige him to retain
in ofl&ce a hostile Cabinet. The executive thus suc-
cessfully resisted this exaggerated claim of Con-
gress.

The tenure of office act owed its existence to a
peculiar condition of affairs, and to a mistaken be-
lief of its necessity to the safety of the nation. It
has been in a great measure repealed, and things

84 THE EXECUTIVE POWER

have in a great degree returned totlieir accustomed
order. The right of the President to choose the
members of the Cabinet, and other administrative
functionaries^ is no longer subject to any important
restrictions.

Aside from some unusual occasions, when party
spirit has almost always played a conspicuous part,
the President's nominations of the members of his
Cabinet have been in general confirmed without
difficulty by the Senate. That body has usually
respected his wishes, and left him at full liberty to
choose his confidential advisers. The practice of
the several Presidents has in this respect varied to
the greatest extent. Some have appointed to these
arduous positions men of distinction, others, personal
friends, without experience or special qualifications.
Washington called to his aid two of the most emi-
nent statesmen of the day, and exerted all his influ-
ence to bring about their harmonious co-operation.
In our times, Mr. Lincoln selected his council from
the leaders of the Eepublican party, among whom
were Mr. Seward and Mr. Chase.

The last Cabinet of General Jackson, on the con-
trary, was chiefly composed of his obsequious in-
struments. They were not brought to his notice
by their prominent position before the country.
Their principal title to his recognition was an at-
tachment to his person and an unhesitating support
of his cause. But never, perhaps, was the system

IN THE UNITED STATES. 85

then inaugurated pushed so far as under the presi-
dency of General Grant. With the exception of
two or three, whose appointment may have met
the wishes of the party which elected him, the
members of his Cabinet owed their elevation to
personal favor alone. Whatever may, in other
respects, be thought of this practice, it seems to be
a plain violation of the spirit, if not the letter, of
the Constitution. The President ought to be sur-
rounded by able and experienced men, capable of
sharing with him the labors of the government.
The Constitution provides that "he may require
the opinion in writing of the principal officer in
each of the executive departments upon any sub-
ject relating to the duties of their respective offices."
This clause can only be fully carried out by select-
ing such officers from among the most eminent
statesmen ; for when the complicated and arduous
duties devolving upon them are considered, simply
personal friends cannot meet its requirements.

The practice upon another point is far from uni-
form. The President is not bound to ask the
opinion of his advisers upon all pending questions.
He may either take their individual views, or call
them together for consultation; but in case their
united opinions are contrary to his own, he is not
obliged to conform to them. In such a case, the
secretaries would doubtless be justified in tendering
their resignations; yet the rules of American pub-

S6 THE EXECUTIVE POWER

He life do not make such an extreme course impera-
tive. They may, if they so prefer, submit to his
will and quietly retain their portfolios.

In general, important Cabinet deliberations are
confidential. It is therefore very difficult to ascer-
tain exactly the relations of the President with his
secretaries. Nevertheless, aided by disclosures that
time brings about, discoveries are occasionally made
of the manner of deciding great measures.

Thus, from different documents relating to the
presidency of Washington, we learn how, at that
period, business was transacted between him and
his Cabinet. Such, for example, is John Marshall's
account of the deliberations when the neutrality
policy of the United States was determined. France
had just declared war against the Enghsh and the
Dutch. What attitude ought the United States to
assume? A question of the gravest import. The
President wrote immediately to Thomas Jefferson,
Secretary of State : " War having actually com-
menced between France and Great Britain, it be-
hooves the government of this country to use all the
means in its power to prevent the citizens thereof
from embroiling us with either of these powers,
by endeavoring to maintain a strict neutrality. I,
therefore, require that you will give the subject
mature consideration, that such measures as shaU
be deemed most likely to effect this desirable
purpose may be adopted without delay "

IN THE UNITED STATES. 87

Some days later, the President addressed to the
members of his Cabinet a. circular letter submitting
thirteen questions. They met and upon certain
points were unanimous, but upon others they
could not agree. He then requested a written
opinion from each of them. Based upon these
documents, he established that foreign policy which
is still maintained by the United States.^

During the progress of the war of secession Mr.
Lincoln followed a very different practice. Not-
withstanding the portentous gravity of the situa-
tion, it seems that he very seldom called a Cabinet
meeting, with a view of asking advice. It is prob-
able, for instance, that without previously con-
sulting them upon its expediency, he read to his
Cabinet the emancipation proclamation of 22d of
September, 1862, which embodied and gave effect
to his own deliberate views and purposes upon that
momentous question. It is generally thought that
he pursued the same course with regard to the
second proclamation of emancipation, bearing date
1st January, 1863. It appears that, when he com-
municated it to his Cabinet, the Secretary of the
Treasury, Mr. Chase, suggested that it ought to con-
tain some sentence less technical than the others, and
presenting at least amoral consideration or reflection.
Mr. Lincoln proposed to Mr. Chase to prepare it,

iLife of George Washington^ by John MarshaU, VoL V., pp. 401-
404.

88 THE EXECUTIVE POWER

whicli he did, by inserting the concluding words of
that memorable document : " And upon this act,-
sincerely believed to be an act of justice, warranted
by the Constitution upon military necessity, I in-
voke the considerate judgment of mankind and the
gracious favor of Almighty God." The part taken by
Mr. Lincoln's advisers in one of the most important
decisions of the age, seems to have been limited to
drawing up this felicitous expression.

At the very moment when the armies of the
Union triumphed on all sides, a question, almost as
weighty as that of emancipation, was forced upon
the attention of Mr. Lincoln. It was necessary to
determine the policy to be adopted with regard to
the States lately in rebellion. Mr. Stanton, one of
the most distinguished members of the Cabinet,
thus related before a congressional committee of
inquiry what took place on this occasion : " Shortly
previous to that time I had myself, with a view of
putting in a practicable form the means of over-
coming what seemed to be a difficulty in the mind
of Mr. Lincoln as to the mode of reconstruction,
prepared a rough draft of a form or mode by
which the authority and laws of the United States

should be re-established In the course of that

consultation Mr. Lincoln alluded to the paper,
went into his room, brought it out, and asked me
to read it, which I did, and explained my ideas in
regard to it." "I was requested by the other

IN THE UNITED STATES. 89

members of the Cabinet, and by Mr. Lincoln, to
have a copy printed for each member for subse-
quent consideration That night Mr. Lincoln

was murdered. Subsequently, at an early day, the
subject came under consideration, after the surren-
der of Johnston's army, in the Cabinet of Mr. John-
son. The project I had prepared was printed, and
a copy placed in the hands of each member of the
Cabinet and the President. It was somewhat altered
in some particulars, and came under discussion in
the Cabinet, the principal point of discussion being
as to who should exercise the elective franchise. I
think there was a difference of opinion in the Cabi-
net upon that subject. The President expressed
his views very clearly and distinctly. I expressed
my views, and other members of the Cabinet
expressed their views. The objections of the Presi-
dent to throwing the franchise open to the colored
people appeared to be fixed, and I think every
member of the Cabinet assented to the arransjement
as it was specified in the proclamation relative to
North Carolina. ^ After that I do not remember
that the subject was ever again discussed in the
Cabinet." 2

1 It is this proclamation that determines the conditions under
which the Southern States were to be re-admitted into the Union.
It is known that at a later period Congress refused to approve of
this plan of reconstruction.

2 Impeachment Investigation, 2d Session, 39th Congress, and Ist
Session 40th Congress, 1867, p. 401.

90

THF EXECUTIVE POWER

We must here inquire how far a decision of the
Cabinet would, under certain contingencies, tend to
shield the President from responsibility. Yery
different answers have been made to this question.
A distinction can moreover be established. If his
political responsibility is in question, it is evidently,
under the Constitution, devolved exclusively upon
him. Had a unanimous written opinion on any
measure been obtained from his Cabinet, still the
people would none the less consider him as the only
author of it.

Is it, on the contrary, a question of criminal lia-
bility ? It is certain that a President, impeached
for an act suggested or explicitly approved by his
Cabinet, can always plead his good faith in the
premises. Let • us suppose, for instance, that the
interpretation of a law is involved, and that the
Attorney -general, to whom it was submitted, gave
a written opinion, in which all the secretaries
concurred.. The President can always allege that
he with good motives and for justifiable ends acted
in conformity with this opinion, although it is of
questionable soundness. Thus, the action of the
Cabinet may in certain cases, and to a limited extent,
relieve the President from the penal. consequences
of an act not palpably in violation of the law of
the land.

Such is the organization of the different branches
of the public service which constitute the executive

IN THE UNITED STATES. 91

department. The chief magistrate confides the
supervision of them to the men of his choice. If
they are prominent members of his party, he must
neglect nothing to secure their friendly and efficient
co-operation. Among them there may be several
presidential aspirants, and one of the principal
difficulties with which he may have to contend
may arise from this source, springing up in the
very bosom of his administration. He must then
judge on what conditions these rival candidates,
who are in such close official relations with him,
can be prevailed on to subordinate to the public
interests their ambitious personal aims.

Undoubtedly the President, by inviting to his
Cabinet obscure personal friends, will avoid this
danger. He must, in that event, be a superior, self-
relying man, conscious of his power to master at
all times the political situation ; but even then the
selection of novices for advisers is an experiment
full of danger. He should therefore avoid it, and
yet the history of the United States furnishes nu-
merous precedents, which will scarcely encourage
him to call around him noted political personages.
On almost every page will be found traces of those
internal strifes which divided the Cabinets of his pre-
decessors. Very often intrigues have been prompted
by the desire of the occupants of the most import-
ant posts to gain an exceptional place, by which
they may attract the attention, and ultimately se-

92 THE EXECUTIVE POWER

cure the suffrages of the people. As the term is
only for a limited period, all citizens having elevat-
ed positions may aspire to the chief magistracy.
Thus restless ambition is ever at work and every
possible candidate on the alert. Hence unnumbered
rivalries, and never-ceasing combinations, which
embarrass the President and paralyze his power.
In his own Cabinet are often his most dangerous
adversaries, and it requires all his skill and patience
to submit to this state of things, which, it seems,
exist in all countries, where the republican system
prevails.

The experience of a republic, already acquired by
the United States, permits us at least to point out
the defects inherent in the elective system as applied
to the chief magistracy. It must be admitted that
they are not so sensibly felt in the constitution of
the legislative and judicial branches of the gov-
ernment, and that the questions relating to them
were solved in quite a satisfactory manner by the
convention of 1787. In organizing the executive,
that body had often to run counter to the very nature
of things, and could do no better, for in that depart-
ment are found the defects in the republican system,
for which no efficient remedy has yet been, or can
be devised.

It was necessary to confer on the President very
extensive powers and to forbid the people abridging
their duration, and at the same time to avoid the

IN THE UNITED STATES. 93

formation of a Cabinet depending for its existence
upon tlie pleasure of Congress. How were these
propositions to be reconciled witb the principles of
political responsibility. It must then be sacrificed
or its application rendered illusory. It was impos-
sible for the Legislature to avoid creating different
executive departments, and it was still more impos-
sible to withdraw them from the exclusive control
of the President. He must therefore put at the
head of them men of weight and influence in the
country, who, in most instances, will aspire to
succeed him, and who will very often embarrass
his administration ; or he can select his personal
friends, and, in that event, he will form merely a
corps of clerks, but in no just sense a Cabinet.

Those nations who aspire to a republican govern-
ment should carefully reflect upon these problems,
which have not been hitherto solved. If, as every-
thing leads us to believe, they are unable to give
them a satisfactory solution, they should submit to
the inconveniences inseparable from an elective
regime. There is scarcely an intelligent man in
the United States who does not feel them, and yet
everybody accepts them — an example of wisdom
which, for more than eighty years, has been given
by the American people to those nations who de-
sire to tread in their footsteps.

CHAPTER ly.

RELATIONS OF THE PRESIDENT TO CONGRESS.

ALTHOUGH, as we have seen, neither the Pres-
ident nor the principal executive agents are
politically amenable to Congress, neverthelessi
as one of the '' co-ordinate " branches of the govern-
ment, he has constant relations with each of the
others, especially the legislative.

In taking into view these relations it must not
be forgotten that the political party which elects
the President has almost always been able to com-
mand a majority in the House of Representatives
of the first Congress which meets after his inau-
guration. Matters are much more complicated in
regard to the Senate. As it is a permanent body,
of which one-third of the members are biennially
chosen, more than that number cannot, during the
year of the presidential election, be secured in any
way by the dominant party. So decisive a result
is, indeed, very rarely attained, as it requires a ma-
jority in the Legislature of each State in whose
senaljorial delegation there is a vacancy to be filled.
A party must, therefore, be in the ascendency for
manv years in the country to obtain a majority in
(04)

IN THE UNITED STATES. 95

the Senate. That body seldom makes such factious
opposition as will arrest the action of the govern-
ment, if the lower house concurs with the President
in his views of public policy. Should he, however,
have cause to expect resistance in both houses, he
has none the less a right to propose to them such
legislation as he deems to be wise and just.

As a matter of fact, the order of things is this :
" The President," says the Constitution, " shall from
time to time give to Congress information of the
state of the Union, and recommend to their consid-
eration such measures as he shall judge necessary
and expedient." In performing the duty thus en-
joined, he sends to Congress each year, at the open-
ing of the session, a message containing as well
a complete exposition of his policy, as a statement of
the condition of affairs, and suggesting such action
as the public service seems to require. It is accom-
panied by special reports of almost all the secreta-
ries, who recommend in general the passage of cer-
tain laws, and transmit, in support of their opinion,
an immense mass of documents, so arranged as to
fully exhibit all the details of the administration.
These various reports are intended to furnish a
complete summary of the situation. The first ques-
tion that arises, then, is whether Congress will adopt
the measures thus submitted to it.

Th^se communications are soon followed by

96 THE EXECUTIVE POWER

others.^ Let us take, for example, tliose wliicTi
relate to the funds required for carrying on the
government. The documents on the subject are
prepared by the executive departments and sub-
mitted to the House. As the appropriation bills
contain from eight to nine hundred items, it is very
natural that the members of the committee charged
with the duty of preparing them should consider it
indispensable for them to be fully informed. They
hold frequent conferences with the different secre-
taries, and the latter furnish the requested explana-
tions, sometimes by writing, but in most instances
orally, as special inquiries are made. Some-
times the chiefs of bureaus perform this ofQce. The
money bills are the result of this long and elabor-
ate examination and interchange of views. It will
thus be seen that, although the administration is
not officially represented in the public debates, it
participates with none the less activity in the pre-
liminary preparations. It is only after a mutual
agreement between the members of the Cabinet and
the House committee, that the latter report the bills
which have been prepared after a severe scrutiny
and by their common consent. When the House
passes them, they are sent to the Senate, and there
referred in turn to the appropriate committee or
committees. If the administration is not satisfied

1 If Congress is organized, the budget is sometimes laid before
the appropriate committee, who meet ad hoc even before the be-
ginning of the session.

IN THE UNITED STATES. 97

witli the sums granted bj the House, it may en-
deavor to get an increase from the Senate. Here,
also, it is at liberty to have its views presented,
and things take very much the same course as they
did before the House.

"What has just been stated with regard to the
budget applies to almost all laws and joint resolu-
tions discussed during the session. If the President
at any time thinks that Congress ought to adopt a
measure, he can send a special message recom-
mending it. On the contrary, when Congress takes
the initiative in any matters which may affect his
administration, he has the right to present his
opinion before the committee to which they have
been referred, and if it is not heeded, he may invite
his friends to attack the measure, and to say that
he disapproves it. In that case it is almost always
made a party question ; involving either the defeat
or the success of the administration. If he prefers
to employ other means, he is at liberty to do so ;
he may, for example, invite Senators and Repre-
sentatives to confer with him. He may, also,
instruct a member of his Cabinet, to draw up a bill,
and put it in the hands of a member of either House,
who will introduce it in his own name. In such
case, the true author of the measure will be generally
known or at least suspected. Those who are
conversant with the legislation of past years can
7

98 THE EXECUTIVE POWER

mention many important laws prepared and drawn
up by one of the secretaries.

The relations between the President and Congress
are also affected by the composition of his Cabinet.
In the latter are frequently found several prominent
ex-members of the Senate or House. These parlia-
mentary leaders, in withdrawing from Congress,
maintain their personal, and, to a certain degree,
even their political relations with their former
colleagues. Secretaries have often in this way
continued to direct the political party to which
they belong. But if, as he is permitted to do, the
President prefers to isolate hirnself from Congress,
and selects his counselors from dependents and
personal friends who have never played an import-
ant part in politics, then his means of influence
will be greatly diminished ; and it may happen
that Congress will emancipate itself from adminis-
trative influence. We have so far assumed that the
friends and supporters of the President have a major-
ity in Congress ; should they on the contrary be in a
minority in one or both Houses, his opponents will
then limit themselves for the most part to thwarting
his action ; and some conflicts may even break forth.
But the Constitution co-ordinates the two powers in
such manner that the people will soon be called upon
for their decision. However, before affairs proceed
to this extremity, he is clothed with a power which
may be always exercised in case Congress pass such

IN THE UNITED STATES. 99

bills as lie considers to be unconstitutional or dan-
gerous.

By tbe terms of the Constitution, " Every bill
wbich shall have passed the House of Eepresenta-
tives and the Senate shall, before it becomes a law,
be presented to the President of the United States ;
if he approve, he shall sign it; but if not, he shall
return it, with his objections, to that House in
which it shall have originated, who shall enter the
objections at large on their journal, and proceed to
reconsider it. If, after such reconsideration, two-
thirds of that House shall agree to pass the bill, it
shall be sent, together with the objections, to the
other House, by which it shall likewise be con-
sidered, and, if approved by two-thirds of that
House, it shall become a law. But in all such cases
the votes of both Houses shall be determined by
yeas and nays ; and the names of the persons vot-
ing for and against the bill shall be entered on the
journal of each House respectively. If any bill
shall not be returned by the President, within ten
days (Sundays excepted) after it shall have been
presented to him, the. same shall be a law in like
manner as if he had signed it, unless the Congress,
by their adjournment, prevent its return, in which
case it shfill not be a law."

" Every order, resolution, or vote, to which the
concurrence of the Senate and House of Eepresen-
tatives may be necessary (except on a question of

lOO THE EXECUTIVE POWER

adjournment), sliall be presented to the President
of the United States "^

Thus he is placed under one of the following
alternatives : he either signs a bill, in which case
it becomes a law, or he withholds his approval and
returns the bill, or joint resolution, to the House
in which it originated, with a message setting forth
his objections. If Congress persists, then a second
vote, requiring a two- thirds majority of each House
to be efiectual, must be taken. Finally, if he
does not fully approve a legislative act, and at the
same time does not think it requisite so to return
it, he may refrain from either course, and then,
after the lapse of ten days, it will become a law.
But if it is presented to him toward the close of
the, session, so that he has not the full period for
considering it given by the Constitution, then his
non-concurrence is fatal to its validity. He may
also sign it under protest. Several instance^, of
this kind are recorded in the legislative history of
the. United States.

It is proper to remark, that the separate action
of ojie of the legislative branches may morally in-
fluence, the President, but it has no legal force or
efieot. He is left at liberty to be guided by this
expression of opinion, or to proceed in sucj| course
as he may have adopted. In the session of 1863-
64, for example, the House of Eepresentatives

1 Conatitation, Article 1., Section 7.

IN THE UNITED STATES. loi

unanimously adopted a resolution protesting against
the establishment of an empire in Mexico, in favor
of an Austrian prince. The Senate, with the view
of suppressing the question, abstained from discuss-
ing that resolution. The French authorities were
none the less roused, and requested an explanation
of it. The Secretary of State replied by disavow-
ing any responsibility therefor on the part of the
government, and said that a vote of the House of
Representatives or of the Senate could neither
coerce the executive to modify its policy, nor de-
prive it of freedom of action. This matter, in the
course of December, 1864, came before the House of
Representatives. By an immense majority they af-
firmed their right to advise on questions of foreign
policy ; but this declaration does not a,ppear to have
had any influence on the course of the administra-
tion.

The motives which determined the framers of
the Constitution to confer on the executive so large
a legislative authority, are explained in the fol-
lowing manner by the authors of the "Federalist:"
"The propensity of the legislative department to
intrude upon the rights, and to absorb the poweis
of the other departments, has been already suggested
and repeated ; the insuffi.ciency of a mere parchment
delineation of the boundaries of each has also been
remarked upon; and the necessity of furnishing
each with constitutional arms for its o\vn defense

102 THE EXECUTIVE POWER

has been inferred and proved. From these clear
and indubitable principles, results the propriety of
a negative, either absolute or qualified, in the ex-
ecutive, upon the acts of the legislative branches.
Without the one or the other the former would be
absolutely unable to defend himself against the dep-
redations of the latter. He might gradually be
stripped of his authority by successive resolutions,
or annihilated by a single vote. And in the one
mode or the other the legislative aud executive
powers might speedily come to be blended ^in the
same hands, if even no propensity had ever dis-
covered itself in the legislative body to invade the
rights of the executive I The power not only
serves as a shield to the executive, but it furnishes
an additional security against the enaction of im-
proper laws. It establishes a salutary check upon
the legislative body calculated to guard the com-
munity against the effects of faction. The pro-
priety of a negative has, upon some occasions, been
combatted by an observation that it was not to be
presumed a single man would possess more virtue
and wisdom than a number of men, and that unless
this presumption should be entertained, it would
be improper to give the executive magistrate any
species of control over the legislative body. The
primary inducement to conferring the power in
question upon the executive is to enable him to
defend himself; the secondary one is to increase

IN THE UNITED STATES. 103

the chances in favor of the community against the
passing of bad laws through haste, inadvertence
or design. Nor is this all. The superior weight
and influence of the legislative body in a free gov-
ernment, and the hazard to the executive in trial
of strength with that body, afford a satisfactory
security that the negative would generally be em-
ployed with great caution, and there would the
oftener be room for a charge of timidity than of
rashness in the exercise of it. But the Con-
vention has pursued a mean in this business
which will both facilitate the exercise of the power
vested in this respect in the executive magistrate,
and make its efficacy to depend on the sense of a
considerable part of the legislative body. Instead
of an absolute negative, it is proposed to give the
executive the qualified negative already described.
This is a power which would be more readily exer-
cised than the other. A man who might be afraid
to defeat a law by his single veto might not scruple

to return it for reconsideration He would be

encouraged by the reflection that, if his opposition
should prevail, it would embark in it a very re-
spectable proportion of the legislative body, whose
influence would be united with his in supporting
the propriety of his conduct in the public opinion." ^
The considerations which decided the framers of
the Constitution to adopt the compromise of a quali-

1 The " Federalist," p. 510 et. seq.

I04

THE EXECUTIVE POWER

fied negative were for the most part just and sound ;
however, after an experience of nearly a century,
tlie situation has •undergone considerable change.

Although the veto power is indispensable to the
maintenance of the executive prerogatives, it is
now evident that its exercise may lead to fierce
antagonisms full of disaster to the country, were it
not for the frequent recurrence of elections, by
which the people, the ultimate source of power ^
can decide the matters in controversy.

The 10th July, 1832, President Jackson returned
to the Senate the bill re-chartering the Bank of the
United States. Without. here entering on the de-
tails of this affair, in which the most violent pas-
sions of both parties were enlisted, it suffices to
say that he, the acknowledged head of the Demo-
cratic party, was, on this occasion, in opposition to
the Whigs, then led by Mr. Webster and Mr. Clay,
and commanding a considerable majority in the
Senate. In his memorable veto message the Presi-
dent said :

"The Congress, the executive and the court
must each for itself be guided by its own opinion
of the Constitution. Each public officer, who takes
an oath to support the Constitution, swears that he
will support it as he understands it and not as it is
understood by others. It is as much the duty of
the House of Eepresentatives, of the Senate and
of the President to decide upon the constitutionality

IN THE UNITED STATES.

los

of any bill or resoluti<5n which may be presented
to them for passage or approval, as it is of the su-
preme judges, when it may be brought before them
for judicial decision. The opinion of the judges
has no more authority over Congress than the opin-
ion of Congress has over the judges, and on that
point the President is independent of both." ^

These propositions could not be seriously contro-
verted by the Whig leaders. All their skill was
exerted in shaping the issues to be presented to the
people at the then approaching election. They
knew that in the then condition of parties it was
impossible to carry the measure . over the veto ;
but they relied upon a favorable verdict from that
sovereign power whose decision in the last resort
was about to be invoked. They were deceived in
their expectations. In the following November
the President was re-elected by an overwhelming
majority.

From the administration of General Jackson to
that of Mr. Johnson several Presidents exercised
the veto power, and with but one exception the
measures thus returned to Congress could not be
passed a second time.

Under Mr. Johnson affairs assumed a different
aspect; but we must note how very peculiar

1 See Thirtj^ Years' View, Vol. I., p. 251 et seq. See also the mes-
sage accompanying the President's veto, in Presidents' Messages,
p. 418 et seq.

io6 THE EXECUTIVE POWER

was tlie then existing sifuation, and not ascribe
undue importance to the occurrences of his admin-
istration, nor draw too positive conclusions from
them. Certainly, if a "Vice-president, suddenly
placed at the head of the government, was satisfied
with the simple fulfillment of his duties, without
attempting to impress his peculiar views upon the
public mind or control the political action of the
country, he would probably avoid angry controver-
sies. But this was not the case with Mr. Johnson.
An obstinate will, a very narrow intellect, and
perhaps also the violence of ardent convictions,
prompted him, in the crisis through which the
country was passing, to assume an attitude well
fitted to excite resentment and opposition. Con-
gress had compact Kepublican majorities, with
skillful and determined leaders. Under such
circumstances a struggle was inevitable. So Con-
gress had not been in session one hour before
the quarrel commenced (first Monday of Decem-
ber, 1865) ; and it continued, without intermission,
until- March 4th, 1869, when he was succeeded by
Grant. During that time he vetoed all the political
measures of Congress, and the latter almost always
passed them the second time, notwithstanding his
opposition. However, it must not be thought that,
under these altogether exceptional circumstances,
the majorit}^ in each House were free from doubt
or acted without hesitation. The first veto of Mr.

IN THE UNITED STATES. io7

Joliason was sustained by the Senate, to which he
had transmitted the message giving his objections.
Some weeks later he pursued the same course with
regard to another bill, when a violent contest took
place in the Senate, which was prolonged through
many sessions. Up to the last m.oment the result
of the vote was uncertain, and it was with great
difficulty that the RepubHcan party could unite the
requisite majority of two-thirds. But this bill,
having been passed over the veto, the decisive step
was taken. Then, in the name of tlie public wel-
fare, it was, in the opinion of Congress, expedient
and necessary to restrain the power of the Presi-
dent by legislative acts.

It might be supppsed that by reason of these con-
flicts the Constitution would be modified, the inde-
pendence of the executive permanently afiected,
and the legislative authority rendered supreme.
Such were in effect the consequences involved
when the House of Representatives impeached the
President, and sent him before the Senate for trial.

In another part of this work will be found an
analysis of the principal points raised by this trial,
but it must be here remarked how, on this solemn
occasion, the counsel of Mr. Johnson claimed in his
name the right to interpret the sense and determine
the scope of a statute. They argued that, charged
with the faithful execution of the laws, he could
not perform this arduous duty otherwise than by a

io8 THE EXECUTIVE POWER

vigilant supervision of the subordinate officers, by
whose instrumentality he acted. In the attainment
<5f this end he must exercise the right of interpre-
tatien. Now, if he is doubtful as to the meaning of
any provision, he has then the privilege of taking
the advice of the members of his Cabinet. His
constitutional oath obliges him not only to execute
the laws, but also to support the Constitution itself,
and this great trust implies the exercise of a large
discretion. This doctrine, added one of the ablest
advocates of Mr. Johnson, has been sustained by
the decisions of the Supreme Court, affirming that,
in the administration of the laws, the President
was not a simple ministerial officer, but that he
exercised executive and political functions. He
had then a certain freedom of action that Con-
gress could not rightfully restrain. ^ This opinion
is constitutional. The acquittal of President John-
son soon proved tbat, even in extreme cases, the
Legislature sbould confine its attacks within the
certain limits ordained by the Constitution.

Moreover, the contest could not be carried
further ; and in fact, at the very time when the
Senate decided the fate of Mr. Johnson, the "Repub-
lican National Convention met at Chicago, and nom-
inated General Grant for the presidency. Without
openly disavowing the policy which had led Con-
gress to impeach Mr. Johnson, the Republican

1 Impeachment Trial, Mr. Stanberry's argument, pp. 773-74.

IN THE UNITED STATES. 109

party showed by its attitude that matters could
not be pushed to the last extremity. A reaction
in the country was manifestly taking place. Thts
people were about to appear on the scene, and in
their turn judge the judges. As might have been
expected, when the nation called General Grant to
preside over its destinies, the natural balance of
powers was re-established. After his inauguration
he regained, in a few months, almost as a matter of
course, nearly all the ground lost by his predeces-
sor. At the present day the presidential authority
is perhaps relatively stronger than when General
Jackson left office.

Thus the American Executive Power has been
able to sustain itself throughout the most critical
periods, and, aside from the occasional instances
when the Vice-president exercised its functions,
has triumphed in every contest between it and
Congress.

And it is well here to observe, that the frequency
of elections always permits the masses to intervene
seasonably and to proclaim their will. It may be
thought dangerous, perhaps, to rpmit to them the
final judgment of such delicate questions. In the
United States, however, the verdicts of the nation
are in general sound and prudent. The public con-
science is not deadened or perverted by party spirit.
The people calmly investigate and wisely deter-
mine. In a republic the soverignty must be effeo-

no THE EXECUTIVE POWER

tively exercised by them. Congress and the Presi-
dent himself are to be considered as their delegates,
and, in a certain sense, their agents, or, as General
Grant expressed it in one of his happiest inspira-
tions, " This country is a republic, where the will
of the people must be obeyed."

If the presidential term were prolonged two
years the nation would not be deprived of the
right to express its opinion. In fact the House of
Representatives would continue to be integrally
renewed as it has been, and the Senate would become
entirely so, during this period of six years. The
people could express their approval or disapproval,
by sending to the House or the Senate friends
or opponents of the policy of the President, and at
the same time the local elections enable them to
declare their opinions, which, if he is wise, he will
carefully heed.

It has now been shown in what way the Execu-
tive Power "forms a co-ordinate branch of the gov-
ernment," how, as such, it intervenes in legislative
questions, and how its action is felt in all the
phases through which a bill or resolution must
pass in order to become eventually a law. It re-
mains to be seen why the President is independent
of Congress.

We must, in the first place, observe that, except
by way of impeachment^ the legislative power has
no constitutional means of reaching the President.

IN THE UNITED STATES. m

One of tlie most distingaished members of the
Philadelphia convention, Koger Sherman, advocated
in that assembly the theory that the executive
magistracy should be instituted for the sole purpose
of doing the behests of the Legislature ; that it should
be, elected by and be responsible to. Congress — in a
word, that the latter ought to be the representative
and exponent of the supreme will of the country.
He therefore proposed that it should be vested with
the power of organizing the executive in the man-
ner which it might deem the most advantageous.^
But, as we have seen, this opinion found ho favor
in the convention. It decided that the President
should be independent of the Legislature. The latter,
then, cannot in reality attack this independence with-
out violating the Constitution, and if it hesitated to go
that far, it would speedily feel its own impotency.

This question was first presented at the moment
of General Jackson's re-election by an immense
majority. Although this re-election had notably
affected the composition of the House of Represen-
tatives, the Whigs still had a majority in the Sen-
ate, and they also found allies in Senator Calhoun
and his personal friends. Thus the violent con-
test, commenced under the first administration of
General Jackson, was continued after his re-elec-
tion. It then assumed a new phase. Mr. Clay,
the leader of the coalition, taking advantage of a

1 The Madison Papers, Vol. II., p. 763.

112 THE EXECUTIVE POWER

supposed favorable circamstance, offered in the
Senate a resolution censuring the President, which,
after long debates, was adopted by a vote of 26 to
20. General Jackson answered by protesting.
This rigid defender of the Execative Power thus
proved that this high assembly had exceeded its
rightful authority.

" That the Senate," said he, " possesses a high j u-
dicial power, and that instances may occur in which
the President of the United States will be amen-
able to it, is undeniable. But under the provi-
sions of the Constitution it would seem to be
equally plain that neither the President nor any
other officer can be rightfully subjected to the
operation of the judicial power of the Senate,
except in the cases and under the forms prescribed
by the Constitution. The "Constitution declares
that the President, Yice-president, and all civil
officers of the United States, shall be removed from
office on impeachment for and conviction of trea-
son, bribery, and other high crimes and misdemean-
ors. That the House of Representatives shall have
the sole power of impeachment. That the Senate
'shall have the sole power to try all impeach-
ments.' That, ' when sitting for that purpose, they
shall be on oath or affirmation.' That ' when the
President of the United States is tried, the Chief
Justice shall preside.' That 'no person shall be

IN THE UNITED STATES. 113

convicted without the concurrence of two-thirds of
the members present '

" The resolution above quoted," continues Gen-
eral Jackson, " charges in substance that in certain
proceedings relating to the public revenue the
President has usurped authority and power not
conferred upon him by the Constitution and laws,
and that in doing so he violated both. Any such
act constitutes a high crime — one of the highest
indeed which the President can commit — a crime
which justly exposes him to impeachment by the
House of Representatives, and upon due conviction
to removal from office."

But even admitting the Senate's right to pass this
vote of censure, it could do nothing more. It had
no means of forcing the President in his strong-
hold. It was therefore constrained to confine its
further action to a refusal to receive his protest in
answer. On the other hand his friends at once
went to work. The Senator who particularly
represented the ideas of the administration, imme-
diately announced that he should propose not only
to rescind the resolution, but even ta expunge it
from the journal. To this end he soon after made
a motion in due form. It was, of course, at first
rejected by the same majority that had adopted
the resolutioii ; but the popular reaction in favor
of General Jackson continued to increase, and at
the succeeding partial renewal' of the Senate a
8

114 ^^-^ EXECUTIVE POWER

majority of the members elected were found to be
devoted to bim . Finally, three years after - he
had been censured, the expunging resolution was
adopted. At that moment a Senator rose and said,
that it only remained to execute at once the order
of the Senate.

"The Secretary thereupon produced the original
manuscript journal of the Senate, and opening at
the page which ccmtained the condemnatory sen-
tence of March 28th, 1834, proceeded in open Sen-
ate to draw a square of broad black lines around
the sentence, and to write across its face in strong
letters these words : ' Expunged by order of the
Senate, this 16th day of March, 1837.'" ^

Thus General Jackson came victorious out of
this struggle. Without pronouncing a judgment
upon his character, which cannot yet be done with
entire impartiality, it suffices to remark that dur-
ing his two terms the Executive Power was main-
tained in its plentitude, and that he achieved this
signal success by his energy in defending his con-
stitutional prerogatives.

Since then Congress has had many contests with
the President. It has not in the main gained more
over him, than he has over it. In fact, that branch
of the Government which seeks to attack the other
cannot do so, in the greater number 'of instances,
without exceeding the limits of the Constitution.

1 Thirty Years' View, Vol. I.", p. 730.

IN THE UNITED S TA TES. 1 1 5

The framers of the Constitution so effectually
guarded the independence of the executive, that
Congress has not been able to deal it fatal blows.
Upon the whole, the prerogatives of the President
are to day nearly what they were in the time of
Washington ; they have even been rather increased
than diminished.

.The " Federalist " observed that the legislative
power always tended to intrench upon the other
branches of the government, and if feared that the
President could not resist its attacks. These fears
were ill-founded ; at least the danger was exagger-
ated. Elected by the people, the first magistrate of
the republic sways the popular mind with that
natural ascendency which a living and acting per-
sonality exercises over the masses. They behold
in him thein direct representative. Congress, on
the contrary, appears to them as a kind of ab-
straction, and in a contest their instincts lead them
to sustain him. It must, then, be under very ex-
ceptional conditions that they will do violence to
their inclinations and give their support to Con-
gress when opposed to him.

CHAPTER y.

THE POWER OF DECLARING WAR.

WE cannot here refrain from presenting sonie
considerations on tlie province assigned by
the Constitution to the Legislative and the
Executive Power in questions concerning peace and
war.

At their session, August 17th, 1787, the conven-
tion discussed, for the first time, that portion of the
draft of the Constitution in which this grave prob-
lem was placed. The most contradictory opinions
were in turn advanced. It was proposed to confer
on the Legislature the power " to make war." Two
members of the convention asked that the word
''^declare'''' should be substituted for "maZ:e"; for in
this way, said, they, the executive would be in a
position to repel any sudden attack.

This motion having been adopted by an almost
unanimous vote, it followed that the power of
declaring war was confided to the legislature,
whilst the convention remitted to the President
and Senate that of making peace.^ The temper of

1 The Madison Papers, Vol. III., p. 1551 ei. seq.
(116)

IN THE UNITED STATES. 117

the convention was eminently pacific, and opposed
to invasion and conquest. As was said in debate,
the members of that assembly desired to make it
more difficult to declare war than to conclude a
treaty of peace.

In commenting upon these constitutional provi-
sions, the Supreme Court of the United States-
has expressed itself in the following manner :

"But the genius and character of our institutions
are peaceful, and the power to declare war was not
conferred upon Cong'ress for the purposes of aggres-
sion or aggrandizement, but to enable the general
government to vindicate, by arms, if it should be-
come necessary, its own rights and the rights of its
citizens."

"A war, therefore, declared by Congress, can
never be presumed to be waged for the purpose of
conquest or the acquisition of territory." ^

At the same time that the convention gave to
the legislature the war-declaring power, it chose
to reserve to the President the duty of repel-
ling all attacks which might come either from
abroad or at home ; it also wished to . enable
him to act without delay, a precaution worthy of
praise, the wisdom of which was justified by the
events of the Spring of 18^1. This contingency
occurred at the moment when Fort Sumter fell
into the hands of the insurgent forces. President

2 See Heming vs. Page, 9 Howard, p. 614.

Ii8 THE EXECUTIVE POWER

Lincoln, without loss of time, issued his proclama-
tion, April 16, 1861, calling forth the militia of the
several States to the aggregate number of 75,000,
and convening an extraordinary session of Congress.
Four days later, 19 th April following, he declared
the blockade of the southern ports. Thus the power
of declaring war, of summoning the militia to arms,
and of blockading ports, which the Constitution
appeared to grant to Congress alone,* was exer-
cised by him.

At first sight, nothing would seem more illegal,
and yet, not only did Congress ratify the action of
the President, but the Supreme Court also ex-
plained, in an important decision, why he, in thus
taking the initiative, had only exercised the power
conferred upon him.

" As a civil war," said the Supreme Court, " is
never publicly proclaimed, eo nomine^ against in-
surgents, its actual existence is a fact in our do-
mestic history which the court is bound to notice
and to know."

" The true tests of its existence are found in the
writings of the sages of the common law, and may
be thus summarily stated: 'When the regular
course of justice is interrupted by revolt, rebellion,
or insurrection, so that the courts of justice cannot
be kept open, civil war exists, and hostilities may be
prosecuted on the same footing as if those opposing

IN THE UNITED STATES. 119

the government were foreign enemies invading the
land.' "

" By the Constitution," adds the Supreme Court,
" Congress alone has the power to declare a national
or foreign war.* It cannot declare war against a
State, or any number of States, by virtue of any
clause in the Constitution. The Constitution confers
on the President the whole Executive Power. He
is bound to take care that the laws be faithfully
executed. He is commander-in-chief of the army
and navy of the United States, and of the militia
of the several States when called into the actual ser-
vice of the United States. He has no power to
initiate or declare a war cither against a foreign
nation or a domestic State. But by the acts of
Congress of February 28th, 1795, and March 3d,
1807, he is authorized to call out the militia and
use the military and naval forces of the United
States in case of invasion by foreign nations, and to
suppress insurrection against the government of a
State or of the United States."

"If a war be made by invasion of a foreign i;ia-
tion the President is not only authorized but bound
to resist force by force. He does not initiate the
war, but is bound to accept the challenge without
waiting for any special legislative authority. And
whether the hostile party be a foreign invader, or
States organized in rebellion, it is none the less a
war, although the declaration of it be ' unilate-

I20 THE EXECUTIVE POWER

ral.' " Lord Stowell observes: " It is not tlie less
a war on that account, for war may exist without.
a declaration on either side. It is so laid down
by the best writers on the law of nations. A de-
claration of war by one country only is not a mere
challenge to be accepted or refused at pleasure by
one country only" and further on, the Su-
preme Court, continuing the same argument, says:
"If it were necessary to the technical existence
of a war that it should have a legislative sanc-
tion, we find it in almost every act passed at the
extraordinary session of the Legislature of 1861
"Without admitting that such an act was nec-
essary under the circumstances, it is plain that if
the President had in any manner assumed powers
which it was necessary should have the authority

or sanction of Congress this ratification has

operated to perfectly cure the defect We

are of opinion that the President had a right, jure
helli^ to institute a blockade of ports in possession
of the States in rebellion." ^

The doctrine announced by the Supreme Court
may, then, be summed up as follows : The Legis-
lature has the power to declare war, but it should
never be aggressive; the United States should
limit itself to the defensive, and cause the rights

1 Claimants of Schooners Brillant, Crushaw, Bark Hiawatha
and others, .vs. The United States, 9th March, 1S«9. Black's Re-
ports, Vol. II., pp. (>65 et seq.

IN THE UNITED STATES. 121

of American citizens to be respected abroad ; and,
on the other hand, if the Union is attacked, the
President should take all necessary measures to
defend the country.

"When the framers of the Constitution vested in
Congress exclusively the power to declare war, their
thought might seem to be as just as their inten-
tions were wise. They appeared to foresee the
terrible influence of that "spirit of conquest and
usurpation" which was about to break forth in
Europe with unexampled violence. Opposed as
they were to aggressive war, they used many precau-
tions to forestall its fatal consequences. However,
when the means to which they had recourse are
considered, we may question if they were not labor-
ing under illusions. In fact, according to the
terms of the judicial decision just cited, a President
who conducts affairs with a foreign power, so as
skillfully to lead it to attack the United States, can
always engage the action of the country and inau-
gurate defensive war.

If the American republic has, in the course of
its history, almost constantly manifested a pacific
disposition, it cannot be attributed to the constitu-
tional article relating to the war-power. The
progress of this work will show how a foreign
policy was established in the United States cal-
culated to moderate a spirit of aggression. But
the credit of having inaugurated and maintained

122 THE EXECUTIVE POWER

it is principally due to the Presidents, and it is
at least doubtful if Congress would have evinced
similar wisdom. However that may be, it is
important to remark the interpretation given
by the Supreme Court and by Congress itself to
the constitutional clause in question. On the
President is enjoined the high duty of watching
over the maintenance of the Union. He will,
therefore, repell foreign invasion and suppress
domestic insurrection without awaiting the in-
structions of Congress. In a word, his remaining
on the defensive is all that is required to author-
ize him to act. Possessing such powers, a Presi-
dent, animated with a war-like spirit, is always able
to initiate hostilities. In studying the diplomacy
of other nations, it would not be difficult for him
to find numerous precedents, and to learn the art
of inviting an attack, when, in reality, he would be
the aggressor. The issue once made, the honor of
the nation once at stake, patriotic sentiments would
be excited in the United States probably sooner
than elsewhere, and the constitutional guaranty,
which intrusts to the Legislature exclusively the
power of^ declaring war, would thus become an
empty phrase, signifying nothing.

We thus perceive that the President has, in most
all questions of foreign policy, a very large con-
trol. The Constitution attempted, without doubt,
to restrict it- within narrower limits : but custom

y

IN THE UNITED STATES 123

has constrained legislators as well as judges to give
to these clauses an interpretation generally favorable
to his authority. The latter has been augmented
and confirmed by the trials to which it has been
subjected. Ought the United States to regret that
such is the case ? It is impossible to think so. The
President really comes from the people. He is
their representative, and is more fully sustained
by public opinion than by legislative assemblies.
Nor must we forget that such bodies are, by the
nature of things, more liable than he to be con-
trolled by transitory impressions. The reader who
desires to convince^ himself of this fact, has only to
glance at the resolutions relative to foreign policy,
adopted by the House of Eepresentatives from time
to time. This body, so remarkable from many
other stand -points, is liable at certain periods to be
carried away in quest of the most unsubstantial
popularity. Then all restraints are disregarded.
Without going further back than 1864, nothing is
hazarded by saying that, if its policy in regard to
Mexico had then prevailed, war would probably
have ensued between France and the United States.
In 1866, with a view of gaining some Irish votes,
it passed a bill which, had it become a law, would
at one blow have destroyed the whole neutrality
policy created by Washington and continued by
all his successors. In 1870 it was scarcely more
prudent on the subject of Cuban affairs. Clearly,

124 THE EXECUTIVE POWER

these criticisms do not apply to the Senate. It has
almost always evinced a prudent reserve on such
questions. But why has this been so ? The answer
is obvious. This body is more directly in com-
munication with the President*; and forming, as will
soon be seen, his executive council, it partakes, to
a certain degree, the grave responsibility that he
incurs. This important distinction should be care-
fully considered by those who favor the omnipo-
tence of legislative assemblies . Many theorists hold
that, represetiting the people directly, the legislative
power is more favorably situated than any other to
decide the weightiest matters growing out of the
foreign relations of the country, and that the power
of making war and peace should be lodged exclu-
sively with it. Nevertheless, the experience of
the United States attests that the executive has
alone evinced in a very marked degree a sense of
responsibility, and although public opinion would
have nearly always justified it in exercising an in-
fluence over Congress to further an aggressive and
menacing policy toward other nations, it has contin-
ually restrained, by its prudent moderation, the ill
effects that might have resulted from the precipi-
tate action of the House of Representatives.

CHAPTER YI.

BELATIONS OF THE PKESIDENT TO THE JUDICIAL
POWER OF THE UNION.

THIS is not the place to investigate the very
interesting questions connected with the judi-
cial power, or the organization of the courts
of the United States. The constitutional relations
existing between them and the President will alone
be considered.

Although by the Constitution the three powers
are "equal, co-ordinate and iDdependent," never-
theless the judicial branch occupies a peculiar posi-
tion in regard to Congress and the President. It
does not, in the first place, emanate from the peo-
ple. It consists of judges appointed for life, who,
by this very circumstance, are gradually raised above
the impure and troubled atmosphere of party pas-
sions. Hence its relative weakness as compared
with the other powers, and its imposing moral weight
upon the more intelligent classes of society.

At the same time the federal courts are in many

respects dependent. The Constitution declares :

" Th^ judicial power of the United States shall be

vested in one Supreme Court, and in such inferior

(125)

126 THE EXECUTIVE POWER

courts as the Congress may, from time to time,
ordain and establish." ^

Congress is, without doubt, bound to respect this
constitutional provision; but, in conforming to it,
may still maintain a preponderance over the
judicial department. If it desires, it may, undoubt-
edly, restrict the appellate jurisdiction of the
Supreme Court. It may also enact, as was pro-
posed in 1868, that this court shall not affirm the
unconstitutionality of an act of Congress, unless
two4hirds of the judges present concur in the deci-
sion.^ It can also increase or diminish the number
of judges, so as to modify, almost at discretion, the
constitution of the court. On the other hand, the
President exercises a considerable influence over the
judicial power. It must not be forgotten, that in
fact he appoints all the federal judges. As
vacancies happen he can, by ' the selections he
makes to fill them, modify the character of the
court.

Notwithstanding the very peculiar status of the Su-
preme Court, parties on several occasions endeavored
to compel it to play a political part of the highest im-
portance. These various attempts were made under
the following circumstances. At the close of the
presidency of John Adams, the Federal party retired

1 Constitution, Article III. Sec. 1.

2 The House Representatives adopted this measure the 13th of
January, 1868. (See INIcPherson's Political Manual, 1868, pp. 90-91.)

IN THE UNITED STATES. 127

Irom power, having lost the control not only of the
executive, but also of the two branches of Congress.
From the formation of the American Government
leading Federalists tried to build up a strong central
power. The judicial authority, however, answered
but very imperfectly their designs. Hamilton him-
self said that it was the weakest branch of the gov-
ernment. To use his own words : " The judiciary,
on the contrary, has no influence over either the

sword or the purse and can take no active

resolution whatever." He desired to render the
executive preponderating power, but in 1800 he had
no longer a choice.

In this situation the Federalists decided to give to
the judicial power a sort of supreme control. Hav-
ing so resolved, it was necessary first to strengthen
its organization. To this end they agreed to increase
the number of courts and also of judges, and at the
same time to extend their jurisdiction. The hours
of power yet remaining to this party were already
numbered when it seized the occasion to pass a
bill through Congress which met their wishes, and
to secure the approval of Mr. Adams. At the last
moment the President sent to the Senate, for its
confirmation, the na«nes of forty-two judges. This
was done during the day of March 2d, 1801. On
the evening of the third these nominations were
confirmed, and the morning of the fourth Presi-
dent Jefferson was inaugurated.

128 THE EXECUTIVE POWER

He found, on the table of the State Department,
the commissions of some of these magistrates,
signed by his predecessor, countersigned by the
Secretary of State, and attested with the official
seal. Jefferson ordered that they should be neither
registered nor delivered, but be considered as void.
This act furnished the Federalists an opportunity to
attack him, and they could rely upon the support
of the Supreme Court, with John Marshall at its
head. One of the magistrates, Marbury, whose
commission had been thus withheld, instituted pro-
ceedings in that court against James Madison, then
Secretary of State, and applied for a nnandaraus^
requiring that officer to deliver it. President
Jefferson understood at once the full bearing of
this movement. He therefore directed Mr. Madi-
son and all of the employees of the State Depart-
ment not to enter their appearance to the suit. At
the December term, 1801, a motion was made for a
rule against Mr. Madison to show cause why a
mandamus ought not to be issued. Madison failed
to plead. The matter was then argued. The fol-
lowing is an analysis of the celebrated decision
pronounced on this occasion by Chief Justice Mar-
shall, in which he elaborately discussed the follow-
ing questions :

1. Has the plaintiff a right to the commissioh to
which he lays claim? 2. If he has si>ch right, and
it has been violated, do the laws of the country

IN THE UNITED STATES. 129

furnisli him a remedy? 3. If this is admitted to
be so, is the remedy to be found in a mandamus
granted by the Supreme Court ? After having an-
swered the first question in the affirmative, the
learned judge proceeded: "The very essence of
civil liberty certainly consists in the right of every
individual to claim the protection of the laws,
whenever he receives an injury. One of the first
duties of government is to afford that protection.
In Grreat Britain the king himself is sued in the
respectful form of a petition, and he never fails to
comply with the judgment of his court."

The Chief Justice here cited Blackstone in sup-
port of his opinion. According to the English
commentator, wherever there is a legal right there
is a legal remedy, when that right is invaded or
withheld. The opinion then proceeded : " The
government of the United States has been emphat-
ically termed a government of laws, and not of
men. It will cej-tainly cease to deserve this high
appellation if the laws furnish no remedy for the
violation of a vested legal right." "Is the act of de-
livering or witholding a commission to be considered
as a mere political act, belonging to the Executive
Department alone, for the performance of which en-
tire confidence is placed by our Constitution in the
supreme executive, for any misconduct respecting
which the injured individual has no remedy ? "

He admitted, then, that without doubt circum-
9

I30 THE EXECUTIVE POWER

Stances might occur in which a recourse to the
courts would be impossible ; but he refused to de-
clare that every act committed by one of the great
branches of the government ought to be classed in
this category.

He established on this subject the following distinc-
tion : "By the Constitution of the United States the
President is invested with certain important political
powers, in the exercise of which he is to use his
own discretion, and is accountable only to his coun-
try in his political character and to his own con-
science. To aid him in the performance of these
duties he is authorized to apppoint certain ofiicers,
who act by his authority and in conformity with
his orders." " In such cases their acts are his acts,
and whatever opinion may be entertained of the
manner in which executive discretion may be used,
still there exists, and can exist, no power to control
that discretion. The subjects are political. They
respect the nation, not individual rights, and being
intrusted to the executive, the decision of the exec-
utive is conclusive. The application of this remark
will be perceived by adverting to the act of Con-
gress for establishing the department of foreign
affairs. This officer, as his duties were prescribed
by that act, is to conform precisely to the will of
the President. He is the mere organ by whom that
will is communicated. The acts of such an officer
can never be examinable by the courts."

IN THE UNITED STATES.

131

"But wlieii the Legislature proceeds to impose on
that officer other duties ; when he is directed per-
emptorily to perform certain acts ; when the rights
of individuals are dependent on the performance
of those acts, he is so far the officer of the law —
is amenable to the laws for his conduct, and cannot
at his discretion sport away the vested rights of
others." The Chief Justice said, in conclusion, that
"The question whether a right has vested gr not
is in its nature judicial, and must be tried by the
judicial authority. If, for example, Mr. Marbury
has taken the oath, of a magistrate, and proceeded
to act as one ; in consequence of which a suit has
been instituted against him, in which his defense
depended on his being a magistrate, the validity of
his appointment must have been determined by
judicial authority."

Such was the Federal doctrine announced by the
Chief Justice in this case. But what is remarkable,
the judge who had just argued with such forcible
logic the question of the relations subsisting be-
tween the Judicial and the Executive Powers
was constrained to conclude that the Supreme Court,
in the exercise of its original jurisdiction, could not
award the writ. That jurisdiction was prescribed
by the Constitution and could not be enlarged or
diminished by act of Congress.

"Still," said he, "to render the TTmwcZamws a pro-
per remedy, the officer to whom it is to be directed

132 THE EXECUTIVE POWER

must be one to whom, on legal principles, sucli writ
may be directed, and the person applying for it
must be without any other specific and legal remedy.
First, with respect to the officer to whom it would
be directed. The intimate political relations sub-
sisting between the President of the United States
and the heads of departments necessarily renders
any l^egal investigation of the acts of one of those
high officers peculiarly irksome, as well as deli-
cate."

Thus, after having several times demonstrated
the principles previously enunciated, he concluded
by rejecting the claim of Marbury upon jurisdic-
tional grounds alone. So that the judicial power
explicitly affirmed the doctrine, that where tha law
imposes upon an executive officer a ministerial act
not involving the exercise of judgment or discretion,
a mandamus would lie when a proper case arises,
but that the courts could not interfere with the
President or his subordinates in the discharge of
their political duties. This distinction has been
recognized and enforced by the Supreme Court in
an unbroken series of decisions ; and in a leading
case under the following circumstances :

The Thirty-ninth Congress, at its last session,
(1866-67) passed a first measure — so called — of
reconstruction^ which was subsequently completed,
and in many respects made more stringent by the
act of 23d March, 1867. Mississippi raised the

IN THE UNITED STATES. 133

constitutional question before tlie Supreme Court,
by a bill in chancery, praying tbat the Pre^dent
of the United States and the- general commanding
the military district in which this State was com-
prised, be enjoined from executing these laws. The
court dismissed the bill. Chief Justice Chase gave
the opinion. Although less emphatic in tone than
that of his great predecessor Marshall, in Marbury
against Madison, it distinctly declares that the judi-
cial power cannot take cognizance of the political
acts of the President. " It is true," said he, *' that in
the instance before us the interposition of the court
is not sought to enforce action by the executive
under constitutional legislation, but to restrain such
action under legislation alleged to be unconstitu-
tional. But we are unable to perceive that this
circumstance takes the case out of the general
principle which forbids j udicial interference with the
exercise of executive discretion. The Congress,"
continues the opinion, "is the legislative department
of the government ; the President is the executive
department ; neither can be restrained in its action
by the judicial department, though the acts of both,
when performed, are in proper cases subject to its
cognizance." And here the opinion makes this im-
portant observation. "If the President refuse
obedience, it is needless to observe the court is with-
out power to enforce its process. If on the other
hand the President complies with the order of the

134 ^^^ EXECUTIVE POWER

court, and refuses to execute the act of Congress,
is it not clear that a collision may occur between
the executive and legislative departments of the
government? May not the House of Eepresenta-
tives impeach the President for such refusal?
And in that case could this court interpose in be-
half of the President, thus endangered by compli-
ance with its mandate, and restrain by injunction
the Senate of the United States from sitting as a
court of impeachment ?" ^ Thus the political action
of the President completely escapes examination
by the courts of justice. It remains to consider in
what way an act of Executive Power falls under
their jurisdiction.

It is almost impossible to give fixed rules in this
respect. No uniform law has attempted to declare
them, and the doctrine of the court has naturally
varied in different cases, so that it is advisable only
to show in what manner the Supreme Court has,
under certain circumstances, asserted and vindi-
cated private rights. One of the most important
causes decided by it is that relating to the legality
of military commissions. During the war of se-
cession those who took the broadest views of
Executive Power maintained that the President
could declare martial law not only in the insur-
gent districts, but also in the loyal States wher-
ever conspiracies occurred which threatened the

1 Political Manual for 1867, by McPherson, p. 113.

IN THE UNITED STATES. 135

public safety. Indiana was thus placed under
this exceptional rule. The executive had ordered
the arrest of several individuals, and, what was
still more serious, created a military commission
for their trial. Among others, one Milligan was
tried by it and condemned to death. It is proper
to observe, also, that the President's power sus-
pending the privilege of the writ of habeas corpiLS
in the loyal States had been approved by Con-
gress. In this situation of affairs Milligan resorted
to the district court, and grounded his claim to
relief upon the incompetence of the commission to
try and condemn a person not in the military service
of the United States. The cause was appealed to
the Supreme Court. His counsel discussed the
questions involved in all their aspects. On the
other side, the United States vigorously maintained
the (Jrder of the President. Finally the court ren-
djcred its judgment. The majority of the judges
declared the proceedings illegal, and ordered Milli-
gan to be set at liberty. Their opinion sets forth
that "the provisions of that instrument on the
administration of criminal justice are too plain
and direct to leave room for misconstruction- or
doubt of their true meaning. Those applicable
to this case are found in that clause of the origi-
nal Constitution which says that ' the trial of all
crimes, except in case of impeachment, shall be by
j^ry.'

136 THE EXECUTIVE POWER

"But it is said that the jurisdiction is complete

under the 'laws and usages of war' this

court has judicial knowledge that in Indiana the
federal authority was always unopposed, and its

courts always open Congress could grant no

such power."

What has just been given suffices, without here
reproducing the entire argument, to show that the
judicial power could effectually interpose to protect
the liberty of a citizen against the combined
action of the executive and the Legislature. ^

This judgment was rendered the 17th December,
1866. The civil war then at an end ; the order
declaring martial law in the loyal States had been
revoked. Therefore the Supreme Court could not
modify the situation, and it limited itself, if we
may say so, to declaring and maintaining the rights
guaranteed by the Constitution to the citizen.
But suppose that the opinion and judgment had
been pronounced during the continuance of the
armed struggle. What course would the executive
have adopted? Perhaps it would have resolved
to disregard them. In such case the Supreme
Court could only have repeated the protest of
Chief Justice Taney on another occasion : "I
have exercised all the power which the Constitution
and laws confer on me, but that power has been

1 Political Manual for 1867, by McPherson, p. 83 ei aeq, and 4
Wallace pp. 121-22.

IN THE UNITED STATES. 137

resisted by a force too strong for me to overcome,"
and awaited its justification by the public senti-
ment of tlie country. ^ Bat if, on the contrary, the
President had obeyed the decision, and hberated
Milhgan, he would not have been thereby compelled
to abolish military commissions in the loyal States.
He would simply have said that the decision was
only binding in that case, and so then Milligan
alone would have been benefited by it. We must
not, however, conclude from this instance, occurring
as it did during the perils and agitations of a
civil war, that in ordinary times the executive
fails to manifest an earnest desire to accept and
abide by the decisions of the Supreme Court,
whenever a case arises to which they apply.

"We give one example among a thousand to show
the ordinary course of proceedings. The President
was authorized by the law of neutrality of 1794 to
detain all vessels which had been fitted out and
armed within the ports or waters of the United
States, for violatioii of its prohibitions or provi-
sions.^ The President, in 1816, ordered the col-
lector of the port of New- York to seize and detain
a suspected vessel. The detention was continued
by him for some time without taking the required
steps to bring her before the proper court for adju-

1 Law Reporter, June, 1861, p. 89 exparte Merryman.

2 This provision again appears in the act commonly known as
the neutrality act, adopted in 1818, and now in force.

138 THE EXECUTIVE POWER

dication. The proprietors then resorted to judicial
proceedings to determine whether the prerogative
of the President implied a right unduly to prolong
the duration of an arbitrary seizure. On appeal
to the Supreme Court it was held that the Presi-
dent could not detain a vessel, except during the
time necessary to carry the case before the courts.^

Since then the Executive Power has made no dif-
ficulty in conforming its action in such cases to this
decision.

Thus, in 1869, when Spain was building thirty gun-
boats in New York, Peru, alleging that there still
existed a state of war between her and Spain, re-
quested the President of the United States to detain
them provisionally. Although no proof was fur-
nished of the truth of the allegation, he consented
to exercise the power granted him by the neutrality
act, and in consequence forbade the launching of
them ; but as Pern took no further step in the
matter, he, in view of the decision of the Supreme
Court, soon directed their release. In recapitu-
lating what has been said upon the relations of the
executive to the Supreme Court, it is well to
notice :

1. That the judicial authority must avoid inter-
fering with the legislative and political functions of
the President. It can neither constrain him to exe-
cute or to oppose a law.

1 Slocura vs. Mayberry et al., 2 Wlieaton p. 1 el seq.

IN THE UNITED STATES. 139

2. That in the greater number of cases the Judi-
cial Power, when it has jurisdiction of a cause,
protects the constitutional or vested rights of a
citizen against the encroachments of the Executive
or the Legislative Power. Its decisions, as a gen-
eral thing, constitute a jurisprudence full of wis-
dom. They are consulted bj the other branches
of the government, and considered of the> highest
authority.

But we canhot close this chapter without speci-
ally adverting to the right which the Supreme Court
has almost constantly asserted of deciding, as a tri-
bunal of last resort, upon the constitutionality of
laws. In fact it has not simply limited its action
to the interpretation of the laws and the establish-
ment of its jurisprudence; but at certain epochs
has assumed to impose its opinions upon other
branches of the federal government, and render
judgments upon the validity of their acts. In the
decision in Marbury against Madison, Chief Justice
Marshall clearly asserted this claim. He says
" That the people have an original right to establish,
for their future government, such principles as in
their opinion shall most conduce to their own hap-
piness ; it is the base on which the whole American
fabric has been erected. The exercise of this orig-
inal right is a very great exertion ; nor can it, nor
ought it, to be frequently repeated. The princi-
ples, therefore, so established, are deemed funda-

I40 THE EXECUTIVE POWER

mental, and as . the authority from which they
proceed is supreme, and can seldom act, they are
designed to be permanent. This original and
supreme will organizes the government, and assigns
to dijfferent departments their respective powers.
It may either stop here, or establish certain limits
not to be transcended by those departments." The
opinion -then establishes that the powers of the
Legislature are defined and limited, by a written
Constitution, in order that Congress should not
exceed them. If then a legislative act be con-
trary to the Constitution, it follows as an inevi-
table conclusion, inasmuch as that instrument is
of paramount authority, that such act "is not
law.;'

The Chief Justice deduced from these principles
the following conclusion : If an act ©f the Legisla-
ture is void, it cannot bind the courts, and they are
not, therefore, obliged to put it in execution. "It
is emphatically the province and duty of the judi-
cial department to say what the law is. Those
who apply the rule to particular cases must of
necessity expound and interpret that rule. If two
laws conflict with each other, the courts must
decide on the operation of each. So if a law be in
opposition to the Constitution, if both the law and
the Constitution apply to a particular case, so that
the court must either decide that case conformably
to the law, disregarding the Constitution, or con-

IN THE UNITED STATES. 141

formably to the Constitution, disregarding the law,
the court must determine which of these conflicting
rules govern the case. This is of the very essence
of judicial duty.^

Moreover, the text of the Constitution of the
United States confirms this opinion : " The judicial
power shall extend to all cases arising under this
Constitution." What meaning could be given to
this clause, if the tribunals had not the right of
interpretation ?

The principles deduced with so much force by
Chief Justice Marshall, are incontestably sound, as
applied to the judicial power. No one has doubted
the power of the courts to determine the consti-
tutionality of a law, when the question arises, in
any pending suit, within their jurisdiction. But
the point now under discussion is, whether their
decision upon constitutional questions establishes
a rule which binds the other branches of the gov-
ernment. In a word, is the Legislature or the
executive compelled to consider as unconstitutional
an act declared to be such by the Supreme Court,
or as one of the disciples of John Marshall said,
dpes the power of interpreting the laws necessarily
imply that of examining, if they are in accordance
with the Constitution, and is the judgment of that
court, declaring them null and void, conclusive 1}

1 Cranch's Reports, pp. 131 elseq.

2 Commentaries on the Constitution of the United States by Mr.
Justice story, If 1570.

142 THE EXECUTIVE POWER

Such is the question in all its breadth. If Mar-
Rhall did not present it in its full extent, Story
went further. Moreover, we must observe that this
eminent magistrate and commentator wrote at the
moment when the discussion relative to the right
of interpretation claimed by the Supreme Court
was about to be renewed.

In fact, the old Republican party of Jefferson,
which had become, under President Jackson, the
Democratic party, had never for a moment ceased
to protest against the constitutional prerogatives
that the judicial power assumed to maintain. Un-
der these circumstances the question again came
up on the subject of the United States Bank.

Although the Supreme Court had declared that
the act incorporating the bank was constitutional,
yet President Jackson, as mentioned in one of the
preceding chapters, vetoed the act renewing its
charter. It was insisted by the advocates of the bank
that its constitutionality, in all its features, ought
to be considered as settled by precedent and by the
decision of the Supreme Court. But he pro-
tested against that doctrine, and observed that
" without the consent of the people the Supreme
Court could not decide questions of this class. The
Congress, the Executive and the Court must each for
itself be guided by its own opinion of the Constitu-
tion. Each public officer who takes an oath to
support the Constitution swears that he will sup-

IN THE UNITED STATES. 143

port it as he understands it, and not as it is under-
stood by others. The opinion of the judges has
no more authority over Congress than the opin-
ion of Congress has over the judges, and on that
point the President is independent of both. The
authority of the Supreme Court must not, there-
fore, be permitted to control the Congress or the
executive when acting in their legislative capaci-
ties," ^

The Whig party adhered to the Federal doc-
trine, and Mr. Webster defended it with all the
force of his talent, yet the prevailing words of this
discussion, so far as we can judge at present, were
uttered by a Democratic Senator from Tennessee,
who was assuredly not the intellectual equal of the
great Whig orator.

" The honorable Senator," said Mr. White, " ar-
gues that the Constitution has constituted the Su-
preme Court a tribunal to decide great constitu-
tional questions such as this, and that when they
have done so, the question is put at rest, and every
other department of the government must acqui-
esce. This doctrine I deny. The Constitution
vests 'the judicial power in a Supreme Court, and
in such inferior courts as Congress may from time
to time ordain and establish.' Whenever a suit is
commenced and prosecuted in the courts of the
United States, of which they have jurisdiction, and

1 Thirty Years' View, Vol. I., p. 252.

144 THE EXECUTIVE POWER

suit is decided by tlae Supreme Court — as that is
the court of last resort — its decision is final and
conclusive between the parties. But as an au-
thority it does not bind either the Congress or the

President of the United States If different

interpretations are put upon the Constitution by
the different departments, the people is the tribu-
nal to settle the dispute. Each of the departments
is the agent of the people, doing their business ac-
cording to the powers conferred, and where there
is a disagreement as to the extent of these powers,
the people themselves, through the ballot-boxes,
must settle it."^

Such was the opinion of General Jackson and his
leading adherents, in which a majority of the people
acquiesced.

Twenty-five years later the Democratic "party
repudiated these doctrines. Eelying upon the sym-
pathies of a majority of the Supreme Court, they
asserted the binding authority of judicial interpre-
tation. On the other hand, the new Eepublican
party, although rather allied by its principles to
the old Federal school, espoused the doctrine of
President Jackson. Thus, by a strange turning
over, the Democrats in 1857 became the disciples
of Hamilton, and the Eepublicans, of Jefferson.

At that date the question of the power of Con-

iPoUtical Parties in the United States, by Martin Van Buren,
p. 311 et seq.

IN THE UNITED STATES, 145

gress over slavery in tlie territories was profoundly
agitating the Union, and the celebrated case of Dred
Scott against Sanford was carried before the Su-
preme Court. It involved matters which might
lead the judges to render a decision bearing upon
the political issues of the day. The court might
have given its opinion during the term of 1855-
56, but as the presidential election was impending,
the judges thought it best to postpone the judg-
ment.

President Buchanan was inaugurated March 4th,
1857. In his address on that occasion he said that
a difference of opinion had arisen as to the time
when the inhabitants of a territory were author-
ized to decide for themselves the question of sla-
very. "Besides," added he, "it is a judicial ques-
tion which legitimately belongs to the Supreme
Court of the United States, before whom it is now
pending, and will, it is understood, be speedily and
finally settled. To their decision, in common with
all good citizens, I shall cheerfully submit."^

Tv\''o days later the decision was pronounced.
Its doctrines need not be here analyzed. It is suf-
ficient to say, that never had the Federalists pushed
further the legislative assumptions of the Supreme
Court.2

1 ^naugural address of President James Buchanan.

2 The American Conflict, by Horace Greeley, p. 251. Mr. Bu-
chanan's Administration, p. 50.

10

146 THE EXECUTIVE POWER

Nevertheless this decision was not received as
final. The President asked in vain, that it should
be so considered. The Republicans replied, as Gen-
eral Jackson had formerly done, that, although
conclusive upon Dred Scott and Sanford, the par-
ties to the suit wherein it was rendered, it had no
binding effect upon the country. They protested
vehemently against the doctrines it announced.
Then, as Mr. Buchanan himself observes in a pub-
lished defense of his administration, the agitation
continued for years, just as if the Supreme Court
had not spoken.

And March 4th, 1861, President Lincoln men-
tions the subject in the following manner : "Con-
stitutional questions are to be decided by the
Supreme Court; nor do I deny that such decision
must be binding in any case upon the parties fo a
suit, as to the object of that suit, while they are
also entitled to very high respect and consideration
in all parallel cases by all other departments of the

government At the same time the candid

citizen must confess that if the policy of the gov-
ernment upon vital questions, affecting the whole
people, is to be irrevocably fixed by decisions of
the Supreme Court, the instant they are . made in
ordinary litigation between parties in personal
actions, the people will have ceased to be their own
rulers, having to that extent practically resigned

IN THE UNITED STATES. 147

their government into tlie hands of that eminent
tribunal." ^

Thus the doctrine of the finality of the decisions
of the Supreme Court on constitutional questions
has never met Avith universal acceptance. Sus-
tained by one party, they have been resisted by the
other. Under Jefferson and Jackson the execu-
tive refused to yield to them ; under Buchanan it
taught that unhesitating submission to them was
the first duty of all good citizens. The Eepublican
party refused to accept as a rule of political action
the opinions of that court which asserted the un-
constitutionality of federal legislation excluding
slavery from the territories. Indeed it could
scarcely have been otherwise.

To recapitulate, the three powers are co-ordinate
and independent. Each, in the discharge of its
appropriate duties, is to decide for itself the con-
stitutionality of laws. Congress determines this
question. So does the President, whenever bills
are presented for his signature. So must the Su-
preme Court, in cases within its original or appel-
late jurisdiction. The judgment of the latter upon
the inquiry whether a given law is in accordance
with the Constitution is undoubtedly final, so far
as the parties to the record are concerned ; but the
other branches of the government are not bound

1 Mr. Lincoln's Inaugural Address, March 4th, 1861. McPherson's
History of the Rebellion, p. 107.

148 THE EXECUTIVE POWER

by it or by the doctrines advanced in the reasoned
opinion of the court. So the action of the judicial
tribunals is thus necessarily confined within fitting
and salutary limits. Charged with the protection
of individual rights, they are invested with an au-
thority, the importance of which can be scarcely
exaggerated.

It is their duty, in disposing of suits, not only to
interpret the enactments which are applicable to
the subject-mafter in controversy, but to decide
whether they are in conflict with the Constitution,
and if so, to give to the latter supreme authority.
That instrument guarantees almost all the individ-
uol rights of the citizen, and when they are assailed
by the tyrannical acts of either legislative or Exec-
utive Power, the Supreme Court can almost always
stretch forth its protecting arm in his defense.

CHAPTER YII.

THE FEDERAL ADMINISTRATION.

THE President is elected in the beginning of
November.^ The 4th of March following, at
noon precisely, the powers of his predecessor
expire, and the newly-elected President appears
before the people, assembled at the Capitol, and
the Chief Justice of the United States administers
the constitutional oath. This scene is always im-
pressive, and, under certain circumstances, inspires
the nation with the deepest interest.

On the occasion of this solemn ceremony the
President makes known to the people his political
programme. He has had negirly four months to
prepare it and to think over the pledges given by
his party during the electoral campaign. He has
also, as a general thing, counseled with experienced
men. He has not, then, wanted opportunities of
informing himself upon the great issues of which
he is about to assume the direction, so that his
address, at the moment of entering upon office,
ought to give the result of his preliminary reflec-
tions.

(149)

I50 THE EXECUTIVE POWER

When the President has been re-elected, his situ-
ation is infinitely better. He has the advantage
of experience ; but, even in this event, a new period
begins for him at his second inauguration. Ameri-
can politics change every four years, and this is
almost as much the case when the President is re-
elected as when a new personage makes his appear-
ance.

The address delivered, the chief magistrate takes
the following oath: "I do solemnly swear [or af-
firm] that I will faithfully execute the office of
President of the United States, and will, to the best
of my ability, preserve, protect and defend the
Constitution of the United States." It is thus that
he enters on the execution of his office. If, in
order to prepare himself for the proper fulfillment
of the duties imposed upon him, he limited himself
to a study of the text of the Constitution, he would
fail to have an exact idea of them. He would
there find that he is vested with the power of a
suspensive veto, and that it is his duty to take care
that the laws be faithfully executed. He would
also learn that he is the commander-in-chief of the
army and navy of the United States, and of the
militia of the several States when called into the
actual service of the United States; that he may
require the opinion, in writing, of the principal
officer in each of the executive departments upon
any subject relating to the duties of their respec-

IN THE UNITED STATES. 151

tive offices ; that he has the power to grant reprieves
and pardons for offenses against the United States
in cases of impeachment; that he has the power,
by and with the advice and consent of the Seriate,
to make treaties, provided two-thirds of the Sena-
tors present concur, and to nominate, and by and
with the advice and consent of the Senate, appoint
ambassadors, other public ministers and consuls,
judges of the Supreme Court, and all other officers
of the United States whose appointments are not
therein otherwise provided for, and which have
been, or shall be, established by law ; that he has
power to fill up all vacancies that may happen
during the recess of the Senate, by granting com-
missions which shall expire at the end of their
next session ; that he shall 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 ;
that he may, on extraordinary occasions, convene
both Houses, or either of them, and in case of disa-
greement between them, with respect to the time
of adjournment, may adjourn them to such time
as he shall think proper; that he shall receive
ambassadors and other public ministers ; and, finally,
that he shall commission all the officers of the
United State. ^.

Such are his powers and duties, as set forth in

1 Constitution, Article II., Sections 2, 3.

152 THE EXECUTIVE POWER

the Constitution. As may be seen they are quite
undefined. A commentator remarks : " In many re-
spects the most defective part of the Federal Con-
stitution, beyond all question, is that which relates
to the executive departments. It is impossible to
read that instrument without being forcibly struck
with the loose and unguarded terms in which
the powers and duties of the President are pointed
out but in regard to the executive the con-
vention appears to have studiously selected such
loose and general expressions as would enable the
President, by implication and construction, either
to neglect his duties or to enlarge his powers." ^

But, on the other hand, it is almost certain that,
if the convention had been more definite, the Con-
stitution could not have withstood the .trials to
which it has been exposed. /That it has done so is
owing to the fact that there is in reality in the
United States an Executive Power for time of
peace, and another adapted to times of commotion
or war. ^ Then, so far from concurring in the opin-
ion of the commentator, those who study American
institutions will be lead to conclude that the article
of the Constitution which is the subject of his
criticism is one of the most skillfully conceived, by
reason of the very general and somewhat indefinite
phraseology used by its framers.

1 Upshur on Nature and Character of our Federal Government.
£d. 1863, pp. 116-119.

IN THE UNITED STA TES. 'L}Si\

Indeed, the organization of the Executive Power
in a republican form of government always presents
the greatest difficulties. If its powers are defined
with exact precision, events may at some critical
juncture occur which will baffle all calculations.
Then the republic will be placed between the dan-
ger of violating its fundamental law and the impe-
rious necessities of public- safety. Now it is much
to be feared that, in moments of imminent peril,
the majority would decide in favor of usurpations
of power, and suffer the Constitution to be sacri-
ficed. \The only means of avoiding these dangers
is to mould the fundamental law so that the Presi-
dent, always prominent in times of crisis, may be
able to stretch his privileges, in case circumstances
shall absolutely require it]..

It is needless to dwell upon this point ; political
history shows its full importance. Why have so
many written constitutions, monarchical or repub-
lican, proved utter failures? It is because they
have almost always been constructed so logically
that their framers attempted to provide for all the
contingencies of an unknown future. They thus
exhausted the resources of their genius in an im-
practicable programme ; but the work so labori-
ously constructed was overthrown by the first
political convulsion that occurred. Happily for
the United States, the framers of the Constitution
pursued an entirely different course; they vested

154 THE EXECUTIVE POWER

certain powers in the President, but did not declare
that these powers should form a limit to his
authority. Besides, the prerogatives thus conferred
upon him admit on certain occasions of an almost
indefifiite extension.

In examining the constitutional provisions rela-
tive to the President, it is first of all to be noticed
that he has certain powers which belong properly
to him alone. Others, on the contrary, are exer-
cised under the supervision of a great council of
the government which the Constitution has associ-
ated with him. If he shall take care that the laws
be faithfully executed, command the army and
navy of the United States, receive ambassadors and
other public ministers, and grant reprieves and
pardons for offenses against the United States
without being subject to any restraint, he is not
allowed to conclude treaties, nor appoint the prin-
cipal public functionaries, without the concurrent
action of the Senate. In such matters, that high
assembly no longer forms a part of the legislative
power, but is transformed, so to express it, into a
sort of family council, whose advice the President
is required to take.'

It is fitting, then, first to examine into those
powers conferred solely on the President, and after-
ward allude to those which he cannot execute with-
out the intervention of the Senate.

Pursuant to the constitutional provisions above

IN THE UNITED STATES. 155

mentioned, Congress organized, at the formation- of
the Government, the principal executive depart-
ments which were to be placed under the immediate
direction of the President.

An act of July 27th, 1789, created the State De-
partment, and confided to it the conduct of foreign
affairs. Another act, of September 15th of the
same year, conferred upon it certain other powers
of a different nature, and among them that of pro-
mulgating the laws. Its jurisdiction has been still
further extended by subsequent legislation.

The organization of the Treasury Department
dates September 2d, 1789. The act of Congress cre-
ating it defined the extent of its powers, and charged
it with the management of the federal finances.

The War Department was established the 7th of
August of the same year. Since then its powers
have been modified, augmented or diminished, ac-
cording to the necessities of the hour.

The Navy Department was organized April 21st,
1806.

The general post-office was formed into a separate
department March 3d, 1825.

Finally, the Department of the Interior was con-
stituted by the act of March 3d, 1849.

Thus, the navy, the postal service and the branches
of the service under the supervision of the Depart-
ment of the Interior were successively detached
from the State, Treasury, and War Departments.

IS6 THE EXECUTIVE FOWER

But this is not all. At the formation of the
government Congress provided for the appointment
of a functionary, whose special duty it is to inter-
pret the laws, act as the legal adviser of the Presi-
dent and heads of departments, and represent the
United States before the Supreme Court. Such is
the province of the Attorney-general, as declared
by an act of September 4, 1789. He is at the
same time a member of the Cabinet, and a sort
of solicitor-general before the Supreme Court, and
was destined, in the legislative thought, to play a
part of the highest importance near the executive.
Experience has since proved that the Attorney-
general is in reality one of the most considerable
functionaries of the government. ^

Thus the creation of these several departments
places under the immediate direction of the Execu-
tive Power foreign affairs, finances, the army, the
navy, the post-offices, the branches of the service
relative to the management, sale and disposal of
the public lands, to pensions, to patents for inven-
tions in the useful arts, and to Indian affairs. It
likewise secures a legal adviser to the President
and a representative of the entire goyernment
before the Supreme Court. In a word, Congress,
in organizing the public administration, confided to
the Executive Power the duty of directing it. In

1 Brightly 's Digest. See the table of contents and the laws
which are therein cited.

IN THE UNITED STATES. 157

order to ^ee how it has been fulfilled it is necessary
to pass in review the foreign policy, the organiza-
tion of the army and navy, the financial system of
the government and its jurisprudence as established
by the Attorney-general.

FOREIGN AFFAIRS.

As Pinckney said in the convention of 1787,
those who devote themselves to the great work of
forming the American republic must renounce, in
the conduct of foreign affairs, the traditions of
European policy. So the relations of the new
republic with foreign powers should be as slight as
the essential interests of the country would allow.
Such was the principle that Washington was soon
to apply. Events soon forced him to determine
what should be the foreign policy of the United
States. At the time when the Federal Govern-
ment went into operation the states general were
on the point of meeting at Yersailles, so that almost
at the same date when the national life of the United
States commenced, France was preparing those
changes which were so seriously to affect the insti-
tutions of the old world. As the French revo-
lution progressed, it attracted more and more
deeply the attention of the United States. Had
not the co-operation of France been of incalcu-
lable advantage to the thirteen colonies ? Was
there not apparently a perfect similarity between

158 THE EXECUTIVE POWER

the principles proclaimed on the American conti-
nent in 1776, and those imposed by the Constituent
Assembly on French royalty ?

In fact, the sympathies of a great number of
Americans were enlisted in the movements of which
France was the theater. Bat in 1793 the position
of the United States had changed. They were to
consider if the war which had just broken out be-
tween the French convention and England would
not be likelj'- to constrain them to take an active
part in these hostilities. On the one side was France,
who had given the aid of her sword to the cause
of American independence ; on the other, England,
against whom the thirteen colonies had sustained
a long struggle. What was Washington to do ?
Under these decisive circumstances he announced,
for the first time in the world, the principle that
"every nation has a right to remain neutral whilst
other nations are at war."

" The critical and irritable state of things in
France," says his biographer, " began so materially
to affect the United States as to require an exer-
tion of all the prudence and all the firmness of the
government. The 10th of August, 1792, was suc-
ceeded in that nation by such a state of anarchy and
by scenes of so much blood and horror ; the nation
was understood to be so divided with respect to its
future course, and the republican party was threat-
ened by such formidable external force, that there

IN THE UNITED STATES. 159

was mucli reason to doubt whether the fallen
monarch would be finally deposed, or reinstated
with a greater degree of splendor and power than the
constitution just laid in ruins had assigned to him."

Gouverneur Morris then represented the United
States in France. President Washington, send-
ing him instructions, said " the American admin-
istration entertained no doubt of the propriety
of recognizing the existing authority of France,
whatever form it might assume ; that every nation
possessed a right to govern, itself according to its
own will, to change its institutions at discretion,
and to transact its business through whatever
agents it might think proper "

" Such are the principles upon which the Ameri-
can government is itself established, and it cannot
deny to another nation the right to apply them."
Beside, the United States Minister was to assure
the French people that America entertained, for
them the sincerest sympathy.

" Yet," he adds, " that, devoted to the principles
of real liberty, and approving unequivocally the re-
publican form of government, he hoped for a favor-
able result from the efforts which were making to
establish that form by the great ally of the United
States, but was not so transported by those efforts
as to involve his country in their issue." Washing-
ton also observed that the aid to American inde-
pendence had been given by the old royalty.

i6o THE EXECUTIVE POWER

It was tlieii the fixed pujpose of the President to
maintain the neutrality of the United' States, how-
ever general the war might be in Europe. In the
meantime, in the beginning of April, 1793, the fed-
eral government was apprised of the declaration
of war by France against England and Holland.
This event awakened all the ardor of feeling that
ten years of peace had not extinguished. The pre-
judices against England, which had become so deep-
seated during the revolutionary war, seemed again
to revive. A great portion of the American people
considered it criminal for the United States to re-
main indifferent spectators of a conflict between
their former enemy and the French Republic.

" The feeling upon this occasion was almost uni-
versal the war was confidently and generally

pronounced a war of aggression on the part of Great
Britain, undertaken for the sole purpose of imposing

a monarchical government on the French people

Yet the disposition to engage in the war was far
from being general." i

It was for President Washington to decide what
should be the foreign policy of the republic. Was
he to be led away by the popular current ? Could
he, on the contrary, resist it? A statesman, who
bears with honor the greatest historic name of the
United States, Mr. Charles Francis Adams, describes
in the following manner what then took place :

1 The Life of Greorge Washington, by John Marshall, Vol. V., p.
898 el seq.

-IN THE UNITED STATES. i6i

" To that council Washington had carefully elect-
ed two of the ablest and best qualified statesmen
that the great struggle for liberty had produced, the
only drawback to which was the misfortune that
they scarcely ever could agree ; the one, abounding
in capacity, leaned to speculation and theory, to
which he sought to accommodate facts ; the other,
equally gifted, preferred to view the facts first, and
from them form his theories afterward. The first

had a synthetic, the other an analytic, mind Yet

between these discordant elements it was .the pecu.
liar faculty of Washington to be able to educe from
each most valuable contributions to the regulation
of his policy. They neVer served him better than
in the present emergency. The sixteen questions
were submitted on the 18th of April, 1793. On the
next day all four of the Cabinet had united in an
affirmative answer to the first, which was the essen-
tial one."

It ran in the following words: "Shall a procla-
mation issue for the purpose of preventing inter-
ferences of the citizens of the United States in the
war between France and Great Britain ?" Another
question — whether the minister, known to be on
his way as a representative from the new republic,
should be received, was also unanimously agreed
to. And here the President was fai-n to stop ; for
the opposing forces, Jefferson and Hamilton, fell*
into such differences upon the remaining questions
11

i62 THE EXECUTIVE POWER

that it was weeks before they got through their
expositions. This was of no consequence, as from
the one answer he laid the great foundation of his
policy. A proclamation was immediately drawn
up and issued on the 2 2d of April, 1793. The
substantial part was in these words :

*' Whereas, it appears that a state of war exists
between Austria, Prussia, Sardinia,Great Britain and
the United Netherlands on the one part, and France
on the other ; and the duty and interest of the United
States require that they should, with sincerity and
good faith, adopt and pursue a conduct friendly and
impartial toward the belligerent powers^ Wash-
ington then gave notice of the neutrality of the
United States ; and he warned " the citizens of the
United States carefully to avoid all acts and pro-
ceedings whatsoever which may in any manner
tend to contravene such disposition." ^

At -the opening of the following session of Con-
gress, the 2d December of the same year, the
President announced to Congress the policy that he
had adopted. At the very time when he had just
published this proclamation of April 22d, contain-
ing almost all the foreign policy of the United
States, the minister of the French republic arrived
at Charleston.

Edmund Genet, brother of Madam Campan, had
•

I Address of Hon. Charles Francis Adams, delivered before the
New York Historical Society, Dec. 13th, 1870.

IN THE UNITED STA TES. 163

received some diplomatic training under the old
regime; his last post had been that of Charge
d'affaires to Kassia. The revolutionary attitude
which he then assumed had brought him to the
notice of the dominant party in Paris. As his
instructions directed him to neglect nothing to
force the United States to take part in the war, he
thought it good policy to land first at Charleston.
He supposed that in this city, remote from th6
seat of government, he could readily render him-
self master of the situation. He at once commenced
distributing commissions and arming privateers.

During the nine months that his mission lasted,
Genet either tried to elude the neutrality policy of
the government, or opposed it directly. Every-
where he labored to arouse popular prejudices
against the administration, and everywhere he was
met by its unflinching determination. It is to be
regretted that no one has ever taken the pains to
write a circumstantial account of the diplomacy of
this French sans-culotte ; his pompous declarations,
his revolutionary verbosity ought to be contrasted
with the calm resolution and dignified language of
the rulers of the American republic. But how-
ever much he may have succeeded in exciting the
vulgar passions of the masses, he could not tri-
umph over the President or his Cabinet. At the
end of several months Washington peremptorily-
demanded and obtained his recall.

i64 THE EXECUTIVE POWER

The neutrality of the United States had thus
been maintained in their relations with France. It
was now to be jeopardized by England. This latter
nation had for the preceding ten years maintained an
attitude of sullen indifference. When the armed
struggle commenced between her and France, an
order in council struck a cruel blow at the com-
merce of. the United States. At the same time
hostile indications were manifested in Canada.
Congress became in turn excited, and retaliatory
measures were proposed ; the times were critical.

Washington watchecT the progress of events
with anxious attention. He determined to make
a last effort in favor of his policy of neutrality.
With this view he created a special mission to Eng-
land, and confided it to John Jay, Chief Justice of
the United States. A treaty was soon concluded,
and hostilities thus avoided. It was no sooner
signed, however, than it became the subject of vio-
lent opposition. The press abounded in assaults
upon it, and popular assemblies denounced it in
their resolutions. Washington, on one occasion,
made the following reply :

" Without a predilection for my own judgment,
I have weighed with attention every argument
which has at any time been brought into view.
But the Constitution is the guide which I never
can abandon. It has assigned to the President the
power of making treaties with the advice and con-

IN THE UNITED STATES. 165

sent of the Senate. It was doubtless supposed that
these two branches of government would combine,
without passion and with the best means of infor-
mation, those facts and principles upon which the
success of our foreign relations will always depend ;
that they ought not to substitute for their own con
viction the opinions of others, or to seek truth-
through any channel but that" of a temperate and
well informed investigation. Under this persua-
sion I have resolved on the manner of executing:
the duty before me; to the high responsibility
attached to it I freely submit."^

Thus did "Washington inaugurate the neutrality
of the United States ; he had maintained it with
regard to France and afterward caused it to be
accepted by England. But his task was not yet
completed. The. effect produced in France by the
treaty concluded between the United States and
England was, as might have been expected,
extremely unfavorable. The directory manifested,
as the convention had done, the utmost resentment.
At that moment General Bonaparte triumphed in
Italy ; the French government then thought itself
in a condition to make unreasonable demands upon
the United States. It was also fully aware that the
foreign policy of Washington was violently attacked
by portions of the American people.

In the meantime Washington retired from pub-

1 Washington's Writings, edited by Sparks, Vol. I., p. 505.

i66 THE EXECUTIVE POWER

lie life, bequeathing to his country his foreign
policy. It is fully explained in a memorable paper,
the farewell address of that great man.

" In the execution of such a plan," said he, "noth-
ing is more essential than that permanent, inveterate
antipathies against particular nations, and passionate
attachments for others, should be excluded, and that,
in place of them, just and amicable feelings toward
all should be cultivated. The nation which indulges
toward another an habitual hatred, or an habitual
fondness, is in some degree a slave. It is a slave
to its animosity or to its affection, either of which
is sufficient to lead it astray from its duty and its
interest. Antipathy in one nation against another
disposes each more readily to offer insult and injury,
to lay hold of slight causes of umbrage, and to be
haughty and intractable when accidental or trifling
occasions of dispute occur. Hence frequent colli-
sions, obstinate, envenomed and bloody contests.
The nation, prompted by ill will and resentment,
sometimes impels to war the government, contrary
to the best calculations of policy. The government
sometimes participates in the national propensity,
and adopts, through passion, what reason would
reject "

"So, likewise, a passionate attachment of one
nation to another produces a .variety of evils. Sym-
pathy for the favorite nation, facilitating the illu-
sion of an imaginary common interest, in cases

IN THE UNITED STATES. 167

where no real common interest exists, and infusing
into one the enmities of the other, betrays the
former into a participation in the quarrels and wars
of the latter, without adequate inducement or justi-
fication. It leads also to concessions to the favorite
nation of privileges denied to others, which is apt
doubly to injure the nation making the concessions,
by unnecessarily parting with what ought to have
been retained, and by exciting jealousy, ill will and
a disposition to retaliate, in the parties from whom
equal privileges are withheld ; and it gives to ambi-
tious, corrupted, or deluded citizens (who devote
themselves to the favorite nation), facility to betray
or sacrifice the interests of their own country with-
out odium, sometimes even with popularity "

" Against the insidious wiles of foreign influence
(I conjure you to believe me, fellow citizens,) the
jealousy of a free people ought to be constantly
awake; since history and experience prove th^
foreign influence is one of the most baneful foes of

republican government.'. " "The great rule

of conduct for us, in regard to foreign nations, is
in extending our commercial relations, to have with
them as little political connection as possible. So
far as we have already formed engagements, let

them be fulfilled with perfect good faith

Here let us stop."

"Europe has a set of primary interests which
to us have no, or a yQvj remote, relation. Hence,

1 68 THE EXECUTIVE POWER

she must be engaged in frequent controversies, the
causes of which are essentially foreign to our con-
cerns. Hence, therefore, it must be unwise in us
to implicate ourselves, by artificial ties, in the ordi-'
nary vicissitudes of her politics, or the ordinary
combinations and collisions of her friendships or
enmities."

"Our detached and distant situation invites and
enables us to pursue a different course. If we
remain one people, under an efficient government,
the period is not far off when we may defy mate-
rial injury from external annoyance; when we
may take such an attitude as will cause the neu-
trality we may at any time resolve upon to be
scrupulously respected ; when belligerent nations,
under the impossibility of making acquisitions
upon us, will not lightly hazard the giving us
provocation ; when we may choose peace or war,
as our interest, guided by justice, shall counsel."

" Why forego the advantages of so peculiar a
situation ? Why quit our own to stand upon for-
eign ground ? Why be interweaving our destiny

with that of any part of Europe? " "It is

our true policy to steer clear of permanent alliances
with any portion of the foreign world "

Washington thus explained in this immortal
" address " the policy which he had created and
which the United States still upholds. Since his
day the most celebrated American state papers on

IN THE UNITED STATES. 169

foreign affairs have been but commentaries on this
text. Successive parties have held power, and,
although differing widely on the domestic policy
of the, country, have all concurred in regard to its
foreign policy. In the midst of the quadrennial
changes of the executive, a uniform line of conduct
has been maintained at the State Department. The
statesmen who have been at its head, from Jefferson
down to the present moment, have found, on enter-
ing it, the memories of their predecessors, and to
this tradition, thus transmitted intact for nearly a
century, the federal government is indebted for its
almost unvarying diplomatic success.

It is not be re proposed to narrate a history so
full of interest and instruction. It is sufficient to
remark tbat the application of the doctrines incul-
cated by "Washington enabled Adams and Jeffer-
son to adjust the irritating questions then pending
between the United States and France. These
last acts completed the system of American neu-
trality, and led to its acceptance by Europe.

Since then, how many events have taken place !
What serious conflicts have burst forth ! But
despite these violent excitements, the United States
have never deviated from this settled policy, and
it is proper -to add, that by their patience and mod-
eration they have almost always accomplished
their objects. The executive is specially entitled
to the honor of initiating and adhering to it, and

I70 THE EXECUTIVE POWER

in this Washington and his successors 'have been
the true representatives of the people. It was so
clearly foreshadowed in the debates of the Conven-
tion of 1787,. that he who runs may read, and
Washington, who presided over that body, may
have derived from them his first conceptions on the
subject. But if the direction of foreign affairs
had been confided to Congress, it is almost certain
that the United States would have been drawn into
European complications. The most distinctive
portion, perhaps, of their policy would soon have
disappeared, and their condition have become
almost similar to that of other nations. Could
they then have at once dispensed with a large
standing army, and a very great increase of their
navy ? Gradually military spirit, giving birth in
its turn to a passion for conquest, would have been
fostered, and American liberty might have perished
in the shock of arms.

The policy of neutrality, which appeared to the
framers of the Constitution as an inevitable conse-
quence of republican institutions, is probably des-
tined sooner or later to a general acceptance in the
world.

The geographical position of the United States
has doubtless singularly favored the independence
of their foreign relations, but this cause alone would
not suffice for an explanation. •' Current events in
England show that in proportion as countries be-

IN THE UNITED STATES. 171

come more democratic, and through a progressive
movement approach more closely to republican in-
stitutions, they lose almost insensibly a taste for
the policy of diplomacy. The studied combinations,
the treaties of alliance secretly prepared, the great
schemes of men of genius, who, like Eichelieu, hadso
admirably re-adjusted Europe, wars of equilibrium
and of conquest are all of a nature essentially aris-
tocratic. With the removal of the last traces of
germanic feudal institutions, will also disappear all
that has fostered the grandeur of the societies in
which they existed. It remains to be seen how
this transformation, which the American democracy
was the first fully to accept, and which England,
owing to her insular position, regards with increas-
ing favor, can be effected on the continent of Europe.
Will the democratic spirit destroy those almost
feudal societies, which still cling to the traditions
of the past, or will it, on the contrary, be conquered
and suppressed ? But the solution of this knotty
problem will not be attempted here. By the side
of old Europe new democratic communities are in
process of formation at different points of the globe,
thanks to the indo-germanic emigration which is
spreading over the whole world.
. Sir Charles Bilke, who has recently visited them,
has given a most interesting account of his voyages
in "The Greater Britain." In the same category
with the United States he places New Zealand and

172 THE EXECUTIVE POWER

Australia, societies which are developing with
prodigious rapidity, and where a new spirit is
breathing in full liberty. In all probability these
people of yesterday are destined to perform one day
a leading part in the world ; and among them will
naturally prevail the doctrines of neutrality which
sprung from the American democracy, and received
their shape from Washington.

It would not certainly be accurate tb ^2,j that
the executive, left to itself, would not have made
frequent mistakes in conducting foreign affairs;
that despite the teachings of its cherished tradition
it would not have yielded at times to fatal influen-
ces; but the framers of the Constitution, whilst
wisely leaving to that branch of the government
the initiative, placed its action u.nder the supervi-
sory control of the Senate. It is only by and with
the consent of that body that the President can con-
tract international engagements; a judicious ar-
rangement, to which special reference will hereafter
be made. The foreign policy of the United States
has relieved them from the necessity of keeping up
a large standing army. The system adopted in that
regard has been uniformly maintained. It may be
applied as well to sea as to land forces, and has
essentially affected the financial policy of the gov.-
ernment.

THE ARMY AND NAVY.

The convention of 1787 was not in favor of

IN THE UNITED STATES, 173

maintaining standing armies. It deemed a military
spirit to be incompatible witb a republican form of
government. The United States was, however, then
surrounded by European colonies ; it had also to
face the difficulties that the Indians would not fail
to stir up. It was therefore necessary to organize
a sufficient force. The great maritime and commer-
cial interests of a growing country also required
protection, and created the necessity for a navy.
"America united," said Mr. Madison, "with a hand-
ful of troops, or without a single soldier, exhibits
a more forbidding posture to foreign ambition than
America disunited, with a hundred thousand vete-
rans ready for combat." But although believing
that the Union, cemented and secured by the Con-
stitution, obviated the necessity of large standing
armies, and that liberty would be crushed between
them and perpetual taxes, he admitted the propri-
ety of organizing and maintaining such land and
sea forces as were indispensable. He thought that
they would work no danger to free institutions, and
declared that suspicion herself ought to blush, in
pretending that the representatives of the United
States, elected freely by the whole hody of the peo-
ple, every second year^ could not be safely intrusted
with a discretion over the appropriations for " rais-
ing and supporting armies," expressly limited to the
short period of two years ! ^

1 The " Federalist," p. 278 et seq.

174 THE EXECUTIVE POWER

In this he was evidently mistaken. Parliaments
votiqg annually contingents, and determining the
budget for the army and navy, have in other
countries been expelled by military conspiracies
from the halls where they deliberated. Thus the
American legislator has felt that the precautions
taken by the Constitution were not sufficient, and
he has therefore added others vastly more effica-
cious. The army has been limited to a very small
number of regiments, stationed at detached posts
over the whole United States, and more especially
distributed in the immense deserts of the west. In
reality, when the country is at peace, the presence
of the army is not felt ; the citizen rarely meets or
comes in contact with a soldier. The eminent
officers, who generally command special corps, do
not in a greater degree arrest public attention ;
almost always as capable as modest, they cherish
the military spirit and traditions, and keep them-
selves aloof from political associations. They
form a very small circle, and rarely aspire to go
beyond it.

Besides, the standing army is deprived of the
right of suffrage. Thus, so far from desiring to
make use of it, demagogues are at a loss for epithets
strong enough to express their dislike for it. This
state of things places it in a very peculiar position.
It almost feels that it ought not to make itself con-
spicuous, and that its very existence depends on its

IN THE UNITED STATES. I75

extreme reserve. It is also well to notice that,
although the President is commander-in-chief, yet
he cannot make an instrument of the army. The
regulations, which may be called^ organic, of the
War Department, determine the different posts that
the army is to occupy. He has doubtless a right
to transfer a regiment, but he could not order it to
Washington without at once exciting an opposition
which he could scarcely resist. In a word, public
liberty cannot be threatened by an army so organ-
ized that its approach to the capital is impossible.
In reality, the defensive force of the United States
does not depend on the regular army. In moments
of crisis the entire people are called to arms. The
Union contains within its broad territories a popu-
lation admirably adapted to war. The man best
fitted for military service is incontestably he who
unites to a high measure of intelligence and of
education that habit of self-dependence which is
gradually lost in those communities where the
principle of a division of labor has been fully devel-
oped. The settler in the forest or the plains, whose
arm has felled the trees, built his cabin and guided
his plowshare through the virgin soil, who has
lived with a gun in one hand and an ax in the
other, and breasted unnumbered perils, may become,
almost in a twinkling of an eye, a first-class soldier.
Inured to fatigue, a stranger to the luxuries of
life, he can make forced marches, and will soon

175 THE EXECUTIVE POWER

learn to handle tlie fire-arms whicli modern sci-
ence has perfected, and to face the foe with the
coolness of a veteran. The United States have at
their disposal this admirable 'personnel whenever it
is needed.

The question was asked some years ago of that
Frenchman who Has, perhaps, most clearly analyzed
the Jacobin spirit, " What were the successive chan-
ges of sentiment which transformed the veterans of
1792 into the men of 1800?" He replied, "This
question can only be answered in closely following
their private correspondence. "Wholly devoted to
the nation, and finding ' in their vocabulary no such
word as fail,' their cry of '•ca ird! reaches the Alpine
glaciers. When the reign of terror comes, the most
intrepid in the ranks dares not look behind him
toward his home. To his eyes the enemy is the
only object ; all else is unknown or forgotten. Then,
after passing the crisis and surmounting the danger,
he soon becomes weary of glory and feels a con-
tempt for everything but the army. There is his
universe ; outside of it is nothing. The army is
his all in all, and in it he sees nothing but the
General-in-chief. Henceforth nothing of the citizen
will remain. The profession absorbs the man ; the
military spirit absorbs the hero." ^

The American volunteer has never undergone
such transformations. Four years of uninterrupted

iThe "Revolution," by Edgar Quinet, Vol. 2, p. 310 et seq.

IN THE UNITED STATES. ^11

war did not alter his essential characteristics. He
is a member of the political society of the nation,
and in fighting to maintain it remains deeply
attached to its institutions. Undoubtedly, a spirit
of obedience and discipline gradually prevailed in
the ranks, but without in any wise impairing his in-
dividuality or modifying his political convictions.
He makes war because he belongs to the country,
yet he knows that his is not the profession of arms.
The camp does not blot out the memory of his boy-
ish and youthful habits and associations, nor wean
him from them, and when the war is over he
resumes them without regretting the adventurous
life in which for a time he was engaged.

It is probable that the historian who will some
day recount these facts will be less struck by the
formation of the American armies than by what
took place at the close of the civil war. It was
less difficult to arm a million of men than, at a
later period, to discharge them and send them to
their homes. He will doubtless dwell at length upon
the spirit which animated the masses, but neither
should he overlook the stern control that the Sec-
retary of War exercised over men and events.
The great patriot kept an incessant watch over any
untoward symptoms which might appear in the
Union armies. He taught both officers and soldiers
that their generals were but agents of the civil

power. When men of pre-eminent ability and
12

178 THE EXECUTIVE POWER

great vigor of character are called in similar cir-
cumstances to the head of affairs, they may, to a
certain point, give a direction to events. It rests
with them to save republican liberty or to let it
perish.

The naval and the military service of the Union
are organized very much upon the same principles.
Some vessels are in commission to protect the mari-
time and commercial interests of the republic in
time of peace. They are commanded by a select
corps of officers, whose number greatly exceeds the
habitual requirements of the service; the rea-
son of this being that at any given moment the
commercial can be suddenly transformed into a
naval marine. In such an eventuality the United
States will have at least a portion of the 'personnel
for the command of these improvised fleets.

As may be seen, the American people, assuming
the defensive, and determined to avoid as far as pos-
sible all foreign complications, consider themselves
as beyond the reach of invasion, because they are
conscious of their ability, at any required moment,
to make an immense effort. They may justly rely
upon their own vigorous qualities and the mechan-
ical and industrial resources of their country.
Doubtless, the actual geographical position of the
United States is extremely favorable to this state
of things. Since the commencement of their na-
tional existence they have beheld the gradual

IN THE UNITED STATES. 179

giving away of the various parts of the European co-
lonial edifice. On the other hand Europe is more
and more impressed with the belief that her interests
upon the continent of North America are growing
less, and after several deplorable attempts she seems
to have almost wholly renounced interference in
its affairs. The federal government has naturally
taken advantage of this state of things ; its very
isolation has greatly increased its power of resist-
ance. However, let us for a moment suppose it
surrounded by neighbors ; it would, without doubt,
be then obliged to increase its precautionary meas-
ures; but were it firmly resolved to maintain
neutrality and abstain from intermeddling with the
concerns of other nations, it would still be possible
to keep on the defensive, and thus become impreg-
nable. Looking to such contingencies, the United
States should require every American to learn to
handle arms. Without even resorting to federal
intervention, each State could undertake this task
and enroll every able-bodied man in the militia, so
that at a given signal the entire nation would be
under arms. If this arrangement prevailed, it
would only remain for the federal government to
keep in reserve a body of general ofiicers capable
of directing operations.

A similar measure might be applied to the naval
forces of the United States; it would suffice to
store in their arsenals material in reserve and

iSo THE EXECUTIVE POWER

to develop the merchaiit marine proportionably.
Upon any special emergency it would be easy to
draw from these elements all needful resources for
the defense of the country. Doubtless, these pre-
cautions would involve considerable expense ; the
productive forces of the country would suffer
in a certain measure ; but what would be such ex-
pense compared to that incurred by European
societies ?

At the same time a methodical organization of
the militia would not admit the growth of a spirit
of conquest or the birth of a military rule. These
defensive precautions would not then affect repub-
lican institutions. However, it must here be ob-
served that free America, in spite of the spirit that
animates her, could not endure more. Keeping on
foot great standing armies never fails to undermine
the most solid institutions ; little by little a warlike
spirit would make its way, and, in proportion to its
increase, endanger even the republic itself. The
time would come when it might govern the execu-
tive and compel the Legislature to come to terms.
These contingencies eminently demand the atten-
tion of those countries that desire to try the experi-
ment of a republic. Military establishments were
created in Europe when royalty gained the ascend-
ant, and they were in perfect harmony with it. By
their agency most of the modern nations have at-
tained their development, and now, if monarchical

IN THE UNITED STATES. i8i

institutions are destined to pass away, standing
armies will probably disappear with tliem.

ADMINISTRATION OF FINANCES.

The history of the financial policy of the United
States cannot be given here. It would require
long explanations, and withdraw attention from the
subjects which this volume was designed to treat.

The policy of neutrality, rendering unnecessary
a large military establishment, exercised a decisive
influence over financial measures. It is easy to
prove this from official documents, all of recent
date. When the war of secession broke out, it
is nearly the precise truth to say that the Northern
States had neither army nor navy. Their fiscal
system, organized to meet the very limited exigen-
cies of the government, worked in a very restricted
circle. In 1861 every thing had to be at once
created. But the majority of the American people
were determined to save the Union, and, having once
taken this resolution, would not be deterred by any
sacrifice. So the levies of men succeeded each other
for four years with unexampled rapidity ; large and
increasing demands for money were constantly made.
The nation responded to both. It is proper to add
that on repeated occasions in the darkest days of
the war, states and cities addressed remonstrances to
the federal government, complaining of its extreme
caution and its failure to resort to more aggressive

i82 THE EXECUTIVE POWER

measures, and almost always closing by renewed
offers of assistance.

These observations serve to facilitate a compre-
hension of the financial operations of this period.
A table of the expenditures, including the interest
paid on the debt,^ is herewith subjoined :

1861 $ 66,571,328

1862 474,744,777

1863 714,709,997

1864 865,234,087

1865 1,290,308,982

1866 520,750,939

1870 309,553,560

These figures would be incomplete with out adding

1. The federal debt prior to the war, $76,455,299.

2. The sum total of debt contracted by the fed-
eral government, say $2,412,547,181.

3. Pensions paid and still payable to the wounded
and to the widows and children of deceased soldiers,
say $30,000,000 per annum.

4. Finally, the extraordinary expenditures of
states, counties, townships and towns on account
of the war, amounted, by the most, reliable esti-
mates, to $^23,000,000. This last item, not being
charged to the federal government, is merely al-
luded to. Thus the United States had, properly
speaking, no financial precedents to guide them in
providing for these enormous outlays. Before the
war they enjoyed, in this respect, an exceptional

iSee the learned reports of Mr. David A. Wells, Special Com-
missioner of the llevenue, from 1866 to 1870.

IN THE UNITED STATES. 183

position. They were but slightly in debt, and the
sums they needed were collected without scarcely
exciting public attention. It was natural that
questions of finance should be then regarded with
but little interest. In 1861 the country entered
upon an entirely new state of things, and resolved
without hesitation to be equal to it; but in erecting
an immense edifice, required for immediate use,
more attention was given to its rapid construction
than to the adjustment of its proportions. The
government acte^ with promptness and vigor, and
the taxes levied from time to time to keep pace
with its constantly increasing necessities were cheer-
fully paid. The working of the system which was
adopted subjected to severe trials the patriotism
and the power of a people who never sunk under
the weight of these burdens.

The two principal sources of revenue during the
war were, 1, the internal revenue, composed of taxes
intended to reach, under every possible form, all ar-
ticles of production and consumption ; 2, the duties
on merchandise imported into the United States. A
table of the prodigious results obtained is here given :

1. Internal revenue:

1863, year of its creation $ 37,640,787

1864 109,741,134

1865 209,464,215

1867.. 309,226,813

1867 1 266,027,537

1 After a reduction of over $50,000,000, made In consequence of a
legislative measure of July 13, 1866.

i84 THE EXECUTIVE POWER

Finally, in 1870, after new reductions exceeding
$80,000,000, the internal revenue still produced
$185,128,859.1

2. The principles relative to the existing customs
duties were established by the act of March 2, 1861.
Since its passage, until that of July 14, 1870, the
tariff was a dozen times amended. From 1865 to
1868 the average of such duties was raised to 48
per cent. A table of revenue derived therefrom is
subjoined:

1861 • $39,582,125

1862 49,056,397

1863 69,059,643

1864 102,316,152

1865 84,928,260

1866 179,046,651

1867 176,417,810

1870 194,538,374

It is to be remarked that these duties have not
been reduced in proper proportion to the internal
revenue tax. The manufacturing interest per-
suaded the country that duties on imported mer-
chandise were not so onerous on the masses as other
taxes, so that, in place of ceasing with the war, the
ascending scale continued up to 1870. If we ask
why this financial policy succeeded, we must in the
first place attribute it to the patriotism of Ameri-
cans who never despaired of their country. In the
second place, the natural riches of almost an entire

1 111 1872 new reductions took place.

IN THE UNITED STATES. 185

continent inspired the confidence of the people, and
enabled them to meet the almost crushing demands
made upon them. In the third place, there are no
unoccupied classes in the United States. Labor is
almost always considered honorable, and the rich
claim no repose. So that all the living forces of
society are perpetually active. And, in conclusion,
the American people knew how to put forth great
efforts, and after obtaining success, to make a sud-
den halt. The victory was scarcely won when the
executive disbanded the armies and replaced the
fleets of the Union on a peace footing ; so that ex-
penses immediately diminished, and labor, returning
to its former channels of agriculture, industry and
commerce, swelled the producing strength of the
country. This point cannot be too earnestly in-
sisted upon. The earliest practicable disbandment
of the troops enabled the American republic to
avoid the grave financial embarrassments which
would have inevitably occurred if it had been con-
strained to keep a large armed force in time of
peace. In proof of this assertion, the following table,
showing the annual cost of the army and navy from
1861 to 1871, is appended:

ARMY. NAVY.

1861 $23,001,530 $12,387,156

1862..... 394,368,407 42,674,569

1863 599,298,600 63,211,105

• 1864 690,791,842 85,738,292

1865 1 1,031,323,360 122,567,776

1 It was from the month of June, 1865, that the disbanding com-
menced.

Ig6 THE EXECUTIVE POWER

1866 $284,479,701 $43,324,118

1867 95,224,415 31,034,011

1870 57,655,674 21,780,229

1871 1 28,488,194 20,045,417

These figures scarcely require comment ; it is
evident that, if the army and navy had not been
speedily restored to their minimum force, not only
would it have been impossible to reduce the debt,
but it must have been necessarily increased.

Nevertheless, it cannot be said that the United
States could not then have followed an entirely
different policy. At the close of the war the French
army still occupied Mexico, and many Americans
were of opinion that the United States ought to
expel it from the country. The attitude of Eng-
land during the civil war had also given birth to
the most bitter feelings, and grave complications
seemed almost inevitable. It was the glory of the
then Secretary of State to resist all these influ-
ences. Mr. Seward retained for diplomatic discus-
sion those questions that oth-er eminent public
men desired to settle by the sword. He avoided
ever J cause for war, and preferred to its hazards
and sufferings a policy of peace and reparation.

Thus the system of neutrality has given to the
whole American administration its peculiar char-
acter. To the Presidents of the United States is
in great part due the credit of .having advanced and
maintained these ideas of government. They have

1 Estimate of the Secretary of the Treasury.

IN THE UNITED STATES. ^^l

created nearly all tlie system ; they have conducted
the foreign relations of the country ; in moments
of crisis they have organized either resistance or
attack. They have generally evinced more discre-
tion than Congress, and almost always proved
themselves to be worthy of the confidence of the
people.

DEPARTMENT OF JUSTICE.

By the Constitution the President is required to
take care that the laws shall be faithfully executed.

In the discharge of these arduous duties, he is
specially aided by a member of the Cabinet, who
acts as his legal adviser, and whose relations to the
executive branch of the government are of a pecu-
liar character.

The Attorney-general's office, created September
24th, 1787, became, by virtue of an act of June
22d, 1870, the department of justice. The act
transferred to that department, and placed under
the supervision of the Attorney-general, who is its
chief, all the law-of&cers who had been previously
attached to the other departments. He. can refer
all questions of law submitted to him, except such
as involve a construction of the Constitution, to any
of his subordinates, and require a written opinion
thereon, which, if approved by him, has the same
force and effect as belong to his own. One of *he
most distinguished juris-consults who have filled

i88 THE EXECUTIVE POWER

the place thus defines its duties: "We have seen,"
says Mr. Caleb Gushing, " that the act establishing
the office of Attorney- general expressly imposed on
him two classes of duty ; first, to prosecute all suits
in the Supreme Court, in which the United States is
concerned ; and secondly, to give his advice and
opinion in questions of law to the President and to
the heads bf departments.

In the discharge of the second-class of the above-
mentioned duties, the action of the Attorney-general
is quasi -judicial. His opinions officially expound
the law in a multitude of cases, where his decision
is, in practice, final and conclusive.

Although the act requiring this duty of the
Attorney-general does not expressly declare what
effect shall be given to his opinion, yet the general
practice of the government has been to follow it ;
partly for the reason that an officer going against it
would be subject to the imputation of disregarding
the law as officially pronounced, and partly from
the great advantage, and almost necessity, of acting
according to uniform rules of law in the manage-
ment of public business." ^

However, the head of the department of justice
has not the powers of a quasi-appellate tribunal.
An appeal does not lie to him from another depart-
ment by a party assuming to be aggrieved by its
action and seeking to have it reviewed. He

1 Opinions of Attorneys-general, pp. 333-4, Vol. VI.

IN THE UNITED STATES. 189

advises a department on the request of its chief,
and only in cases actually depending, in which the
United States has an interest. It is impossible
for Congress to foresee and specifically provide for
all the possible future contingencies of executive
business, either in respect to the business itself or
the manner of conducting it. In the nature of
things, a necessary discretion as to all such business
must exist somewhere, and that discretion, when
the law does not speak, resides with the President.
It stops when the law defines what is to be done by
a given head of department, and how he is to do it ;
but if the law requires an executive act to be per-
formed without saying how or by whom, it must
be for the President to supply the defect in virtue
of his powers under the Constitution. Sometimes
the laws are obscure or abound in conflicting provi-
sions. In all such cases the President may require
the advice of the Attorney-general, and it will, in
general, be considered as binding. So far as exec-
utive action is concerned it is final and beyond the
revisory power of the courts.^

The latter have uniformly and firmly refused
to interfere, either by mandamus or injunction,
with an executive officer in the discharge of duties
confided to him by law, and involving the exercise
of judgment and discretion. It is proper to add
that they will in some cases pass upon his acts,

1 Opinions of the Attorneys-general, Vol. VI. p. 326, passim.

I90 THE EXECUTIVE POWER

when foanded upon a misconstruction of the law,
after the title has passed from the government and
the question beconie one of private right between
adversary parties.

\We must here notice that the administration
may be viewed in two ways : the executive agent
may allow himself to be controlled by considera-
tions exclusively political ; he will then administer
as so many have done on the European continent, J
He may doubtless have the best intentions, hold the
public interest in view, even contribute to the
well being of those under his jurisdiction ; and
yet, although personally devoted to political liberty,
2liis modes of thought will be fatal to the cause he
desires to serve. In free countries, on the contrary,
the functionary should give an entirely different
bent to his ideas. He would thus gradually cease to
be pre- occupied by merely political, and become
more and more influenced by legal considerations.
Then he would conclude that individuals ought to
assert their own claims and rights, and as cases arise
he would confine himself to the duty of interpret-
ing and applying the law. Above all, in peaceful
times he would almost cease to be an administrator
and become in some sense a judge.^

In the United States, in the ordinary practice,
those who possess authority act in general very

1 These remarks neither apply to the intervention of federal
agents in the affairs of the political party to which they belong,
nor to their action in electoral campaigns.

IN THE UNITED STATES. 191

little. Their principal function consists in deciding
what the law authorizes and what it forbids. A
European who should enter the office of the chief of
an executive department would doubtless be aston-
ished to see him less occupied in impressing his
views of public questions on the minds of the sub-
ordinates in that branch of the public service over
which he presides, than in deciding matters of law ;
and yet this is his principal duty. If he declines
to abide by his own judgment, or wishes to avoid
responsibility, he submits to the Attorney-general
the difficulties he hesitates to solve. In this way
he contracts vastly better habits. He ceases to be
restless and turbulent, and is no longer anxious to
meet all contingencies. He does not look upon
himself as called upon to make a people happy.
The greater part of the time he remains inactive,
until a question is presented, and then his true
functions commence. A kind of executive magis-
trate.^ he weighs arguments and decides. "We
cannot dwell too pointedly upon this difference
between the European and the American function-
ary ; it may be found in every institution. The
President of a French, Italian or German assembly,
for instance, considers himself in many respects as
a sort of administrator. He conducts the delibera-
tions, interferes incessantly, and in short is, or
thinks he is, a political power. The presiding
officer of an American legislative body allows each

192 THE EXECUTIVE POWER

one to exercise his own initiative. When there is
a conflict of opinion on any question of order, one
of the members asks him to pass upon the contro-
verted point. He then examines the precedents
and gives his decision. Any dissenting member
may appeal from it to the House, and its vote finally
settles thB question. Thus has been formed that
great parliamentary law which for nearly a century
has guaranteed the liberty of American legislatures
and the rights of those who belong to them.

These observations will aid us in understanding
in what manner the President of the United States
performs his daily duties. In administrative ques-
tions he leaves the citizen almost entire liberty ;
allows him the initiative ; he remains, as far as
possible, in a passive position ; he is, according to
a common expression, the chief magistrate of the
country, a title which particularly well describes
the head of a republican government.

As may be understood from the explanations
already given, the President wields an immense
power. As it is incumbent on him to propose
general measures to Congress, to furnish it with all
the information it requires, and to aid it in elabo-
rating the laws ; .so he, in a great measure, gives
direction to federal legislation. At the same time
the Constitution enjoins upon him the execution
of the laws. Hence, the necessity of his exercising,
in the last resort, the right of interpretation.

IN THE UNITED STATES. 193

In the history of the United States, the action
of the executive is everywhere felt. As stated in a
preceding page, it has, by skillfully maintaining
their foreign policy, essentially aided in securing an
almost complete disarmament. It is also due in
great part to its firmness and perseverance that the
financial system of the country has been upheld.
At the same time, numerous precedents are re-
corded in each branch of the executive administra-
tion. We cannot here speak of the personal char-
acter of the men who have in succession occupied
the presidential chair. History has already given
an assured immortality to some of them. Others
will be placed in the category of ordinary men.
The influence of the latter has, however, been rarely
disastrous, as most of them were surrounded by
distinguished advisers, who concealed from public
view and supplied the personal insufficiency of
their chiefs. It is well also to observe that the ex-
ecutive administration has its traditions, for the
most part so firmly established that a President
can rarely depart from them. A demagogue, en-
tering the White House after having pledged him-
self to a course contrary to that of his predecessors,
(and this is scarcely probable), would soon be con-
strained to conform to pre-existing usages. It is
doubtful if the will of any man, however obsti-
nate, would not bend under the" weight of long-
settled precedents.
13

194 THE EXECUTIVE POWER

At the same time a sentiment of responsibility,
inseparable from power, has bad tbe most propitious
influence upon tbe Presidents. They have in gen-
eral followed the path which duty and honor pre-
scribe and shunned the pursuit of a vain popularity.
It is worthy of record that public opinion has
appreciated and honored their resistance to the
passions and excitements of the hour, and recog-
nized that they were guided in so doing by a love
for their country and a desire to promote her per-
manent interests.

CHAPTEK YIII.

THE SENATE AS AN EXECUTIVE COUNCIL.

WHEN the framers of the Constitution rejected
the plan of a collective responsibility of
the ministry, they could not have provided
for the intervention of Congress in certain execu-
tive acts without bringing on a conflict of powers.

On the other hand, had the President been in-
vested with the exclusive right to conclude inter-
national engagements, the foreign relations of the
Union would have escaped all manner of control ;
had the appointing power been conferred upon him
alone, he would have become the absolute head of
the civil and military administration.

The convention avoided these difiiculties by
adopting a new method ; the Senate was clothed
with the right of assisting the President as an
executive council. The Constitution says, that he
"shall have power, by and with the advice and
consent of the Senate, to make treaties, provided
two-thirds of the Senators present concur,"^ and
that the consent of that body is necessary to

1 Constitution, Article II., Section 2.
(195)

196 THE EXECUTIVE POWER .

the appointment of functionaries nominated by
him. These constitutional provisions confer on
the Senate prerogatives, which constitute it a coun-
cil of the government.

We must carefully notice that the Senate, when
. acting in this special capacity, ceases to be a part
of the legislative power. When engaged upon
questions of this nature it is, according to a tech-
nical expression, transacting " executive business."

It would be difficult to contrive a more satisfac-
tory combination. The Senate is few in number
and renewed by thirds. It thus constitutes a per-
manent body, and can preserve its traditions;
whilst on the other hand, thanks to the intimate
relations established with the executive, it partici-
pates in matters of the highest moment. Con-
formably to constant practice, whenever the Senate
is engaged in the consideration of "executive"
questions, the sittings are secret. This rule is as
applicable to-day as it was eighty years ago, when-
ever nominations are disposed of The debates, in *
which the antecedents of the nominee are often re-
viewed with great freedom and warmth, cannot
take place in public. But for some years past the
inquiry has boen made, whether the same reason
applies to the discussion of treaty stipulations.
How, it is said, can such a usage be maintained
when every legislature in Europe deliberates them
in open session. For instance, a convention is con-

IN THE UNITED STATES. 197

eluded between the United States and England. It
is considered publicly at London, but with closed
doors at Washington. Its scope and bearing can
be ascertained from the English parliamentary de-
bates, while those in the Senate are a sealed book.

But hitherto the Senate has very justly refused
to modify this regulation. Those who desire its
continuance say that in a private session much
greater latitude in the expression of opinion upon
the conduct of diplomatic affairs and the action of
the executive can be indulged, and a more searching
examination made of the questions at issue.

As it is important to understand fully the
authority of the Senate in acting upon such mat-
ters, we shall examine in what manner it inter-
venes, first, in the ratification of treaties, and then
in the appointment of officers nominated by the
President.

An international engagement is hot binding on
the United States, except it be ratified by the Sen-
ate. This rule is peremptory and without exception.
The President is always subject to the action of the
council that the Constitution has associated with
him. He cannot therefore make secretly such en-
gagements upon which it has had no information.
Thus his functions are limited to negotiating, pre-
paring and drafting the convention. He then com-
municates it to that body, which has an absolute
power to approve, reject or amend it.

,98 THE EXECUTIVE POWER

Foreign powers have, at times, learned to their
cost the full force pf these constitutional provisions. '
At times it has happened that the President has
allowed himself to go too far by consenting, in the
hope of influencing the Senate, that the execution
of certain treaties should be commenced before
that body had considered them. On these occa-
sions, the Senate has often vigorously maintained
its rights, and at times even disregarded the stipu-
lations the President had made. This happened,
for instance, when the United States purchased the
islands belonging to Denmark in the West Indies.
By the terms of the project of the treaty, the peo-
ple of St. Thomas and St. John were to be consulted
before a transfer of sovereignty could take place.
The Danish government fulfilled its engagements
faithfully, and the result of the vote in the islands
was favorable to their annexation to the United
States. The king absolved his subjects from
their oath of allegiance. So that, before the Senate
had considered the question, Denmark had done
certain irrevocable acts ; but, notwithstanding, that
body refused to regard itself as concluded by them.
Vainly did Denmark attempt to maintain that,
according to international law, the Senate was
bound, and the honor of the United States at stake.
All was useless; the Senate decided that it pos-
sessed, under the Constitution, rights that no person
could compromise. ^

1 other similar examples might be cited.

IN THE UNITED STATES.

199

On another recent occasion the Senate directly
opposed the execative. Soon after his installation,
General Grant signed a treaty stipulating for the
annexation of the Dominican Kepublic, and by a
separate protocol entered into personal obligations
to exert all his influence to obtain its ratification.
He kept his word ; he neglected no opportunity of
presenting to the Senate the advantages of this addi-
tion to the territory of the United States ; but all his
influence was unable to overcome its opposition.

If the United States were not determined to
maintain their policy of neutrality and abstention,
the province of the Senate in the ratification of
treaties would paralyze all the foreign policy of the
government.

A power enters into negotiations with the execu-
tive, who is represented by the Secretary of State ;
when they are closed, a treaty is prepared and
communicated to the Senate. That body exam-
ines, discusses and rejects it. In making known
this result to the power with whom he has been in
treaty, the Secretary of State is obliged to allege
that he has exhausted all appropriate means in his
power to obtain a ratification, but that the Senate
differed with him in opinion. He expresses regret,
and the matter stops there ; he can have no direct
control over the Senate. Its decision does not af-
fect his constitutional responsibility, or that of the
President.

200 THE EXECUTIVE POWER

In some countries subject to parliamentary con-
trol, matters take a different course. It is the duty
of the minister who has signed a treaty to submit
it to the Chambers, and ask for its ratification. If
the majority withhold their sanction, he can dis-
solve the assembly and appeal to the electoral body,
and if it sustains the majority against him, he
tenders his resignation. Then the power with
whom he has been in treaty will be satisfied that he
has neglected no means at his command in order to
meet his engagements. In the United States noth-
ing of the sort exists. A treaty concluded with
the executive does not oblige the Senate, and he
has no constitutional means of acting on that body.
If it dissents from his opinion and refuses the re-
quested ratification, he can neither dissolve it nor
appeal to the people.

Nor is this all ; according to the constant usage
of the United States other nations can have no
relations whatever with its deliberative assemblies.
American customs would not suffer the accredited
minister of a foreign power to treat directly with
the Senate upon matters of the greatest interest.
What happens in consequence ? Any government
negotiating with the United States is placed to
some extent in a position of inferiority. When its
representative signs an engagement, an obligation
to have it ratified in due form and by the proper
authority is thereby assumed. If a responsible min-

IN THE UNITED STATES. 201

ister makes a treaty, lie is bound, if need be, to
dissolve the parliament of bis country, or send in
his resignation, if he cannot perform that obliga-
tion. On the contrary, as soon as the President
sends the convention to the- Senate his power is ex-
hausted, and if that body does not ratify it his re-
sponsibility is completely released.

In order to avoid the serious perplexity growing
out of such a state of things, several Presidents, be-
fore concluding negotiations, have preferred to
communicate certain projects of treaties to the Sen-
ate, for the purpose of consultation, and to ascertain
if it would eventually consent to their ratification.
The executive has in this way always been able to
regulate its action and escape embarrassment and
responsibility.

This was particularly the case in a recent circum-
stance. When the question relating to the settle-
ment of the Alabama claims became involved with
that of indirect damages, they proposed at London
to negotiate a supplementary treaty, disposing of
this subject. General Grant, having reasons to
doubt if the Senate would authorize him to proceed
further, communicated the project previously to
that body. They modified it in some particulars,
and informed him that negotiations might proceed
on that basis. After past experience, at times so
painful to the powers that have been in treaty with
the United States, it is probable that the method

202 THE EXECUTIVE POWER

pursued in regard to this supplementary treaty
will be more and more adopted in the future. It
has some objectionable features ; it is especially
almost impossible to guard secresy; but on the
other hand it provides against the ultimate disagree-
ment of the Senate, and enables the executive to
act with a full knowledge of all the facts bearing on
the subject-matter.

The negotiators may also take a middle course
and attempt to ascertain in advance, and confiden-
tially, the views and intentions of the principal
Senators, so that a satisfactory form may be given
to pending negotiations ; but this plan requires the
utmost tact to ensure success, and is, moreover, liable
to be frustrated by those sudden changes of opinion
that occur so unexpectedly in all .deliberative
bodies.

However that may be, when the project of a
treaty, or a treaty itself, is once decided on or con-
cluded, the President transmits it to the Senate,
accompanied by an explanatory message, and very
often by papers sustaining it, as for instance the
diplomatic correspondence that took place during
the negotiations. When these documents are sent
to that body it goes into secret session, and on
motion of the chairman of the committee on foreign
relations the whole subject is referred to that com-
mittee. As is known, the Senate committees are
organized permanently. Every two years, when

IN THE UNITED STATES. 203

the partial renewal of the assembly takes place,
they are remodeled, but their formation is never
entirely changed. A tradition is thus preserved in
each of them. This is particularly the case with,
the committee on foreign relations ; it has generally
consisted of distinguished Senators, and most of the
time has had for chairman a statesman of com-
manding ability. It suffices to mention the names
of Mr. John Forsyth and Mr. Charles Sumner as
proof of the jealous care with which the Senate
has at certain periods chosen those to whom such
delicate and important functions are confided. Under
their auspices and by their labors — and in these past
years this remark applies with special emphasis to
Mr. Sumner — this committee has performed a most
conspicuous part in the history of the foreign affairs
of the Union. In the crises through which the
United States has passed, it has greatly contri-
buted to maintain the foreign policy founded by
Washington ; and if at times the executive seemed
inclined to go too far, it has restrained and arrested
his action, so that by the side of the Department of
State is a superintending power which has almost
always saved the country from the fatal effects which
might have resulted from yielding to temporary
excitement.

As soon as the project of a treaty is referred to
the committee on foreign relations, the text and
accompanying papers are printed, and the investi-

204 THE EXECUTIVE' POWER

gation of the questions is proceeded with. If they
are of importance, the committee Very often- does
not confine itself to the communications received,
but calls for further information, or even requests
the personal attendance of the Secretary of St^ite
for consultation and a full interchange of views,
and then the subject in all its aspects and bearings
is carefully examined. When the committee is
fully informed it adopts one of the following plans :
it makes a report in favor of the treaty, or pro
poses amendments, or decides against the ratifi-
cation ; or, without expressing any opinion, submits
the question for the consideration and action of the
Senate; or still again, it allows the time in which
the ratifications are to be exchanged, to expire
without making a report. The Senate can of
course always insist upon a report, but in most
cases great latitude is allowed the committee.

If the committee reports favorably, it generally
looks to the chairman to sustain its opinion. He
is then, in an accommodated sense, a representative
of the executive before the Senate, and an exponent
of the policy of the administration. But if the
majority of the committee oppose the ratification,
he is simply their organ.

As a general thing, party spirit does not enter
largely into foreign questions; they are usually
considered and decided on their own merits. So
the relative strength of parties in the Senate does

IN THE UNITED STATES. 205

not determine the fate of a diplomatic convention.
Thus a ratification becomes possible ; were it other-
wise, it could not be expected in the majority of
cases that two- thirds of the Senators present would
vc be in favor of a treaty. If the Senate approve
the ratification of the instrument submitted to it,
it gives its "advice and consent to the President."
He is then authorized to set his hand and cause
the seal of the United States to be affixed ; but
he is in no wise obliged to do so, and, if he
has changed his opinion, he may always refuse his
consent. But when he has given it, the treaty then
becomes obligatory upon the United States, and in
the energetic words of the Constitution, is an in-
tegral part of " the supreme law of the land." How-
ever, in 1795, the question arose whether the
House of Eepresentatives, in which all bills for
raising revenue must originate, was constitutionally
bound to vote the money stipulated by an inter-
national act to be paid. The biographer of Wash-
ington has thus narrated what took place on the
occasion of the treaty that John Jay had just con-
cluded with England :

" The Constitution declaring a treaty, when made,
the supreme law of the land, it became essentially
the duty of the President officially to announce it
to the people of the United States. In pursuance
of this duty he issued his proclamation dated the
last day of February For the information of

2o6 THE EXECUTIVE POWER

CoDgress, a copy of this proclamation was trans-
mitted to each House on the first of March ...."

" The party which had attained the majority in
one branch of the Legislature, having openly denied
the right of the President to negotiate a treaty of
commerce, was not a little dissatisfied at his ventur-
*ing to issue this proclamation before the sense of
the House of Representatives, had been declared on
the obligation of the instrument."

" This dissatisfaction was not concealed. On the

second of March Mr. Livingston .laid upon

the table a resolution requesting the President ' to
lay before the House a copy of the instructions,

together with the correspondence and other

documents, relative to said treaty.' The debates

soon glided into an argument on the nature and
extent of the treaty-making power."

"By the friends of the administration it was
maintained that a treaty was a contract between
two nations, which, under the Constitution, the
President, by and with the advice afid consent of
the Senate, had a right to make, and that it was
made when, by and with such advice and consent,
it had received its final act. Its obligations then
became complete on the United States "

" By the opposition it was contended that the pow-
ers to make treaties, if applicable to every object,
conflicted with powers which were vested exclusively
in Congress. That either the treaty-making power

IN THE UNITED STATES. 207

must be limited in its operation so as not to touch
objects committed- by the Constitution to Congress,
or the assent and co-operation of the House of
Kepresentatives must be required to give validity
to any compact, so far as it might comprehend
those objects. A treaty, therefore, which required
an appropriation of money or any act of Congress
to carry it into effect, had not acquired its obliga-
tory force until the House of Kepresentatives had
exercised its powers in the case. They were at full
liberty to make or withhold such appropriation, or

other law "

" The debate was protracted without inter-
mission until the 22d of March, when the resolution
was carried in the afl&rmative by sixty-two to

thirty-seven voices." (22d March, 1795.)

" The situation in which this vote placed the execu-
tive was peculiarly delicate He returned the

following answer to the resolution which had been

presented to him 'To admit then a right in

the House of Eepresentatives to demand, and to
have, as a matter of course, all the paper.s respect-
ing a negotiation with a foreign power, would be

to establish a dangerous precedent.'" "The

course which the debate has taken on the resolution
of the House," adds Washington, " leads to some
observations on the mode of making treaties under
the Constitution of the United States." *

iLife of Washington, by John Marshall, Vol. V., p. 650 et seq.

2o8 THE EXECUTIVE POWER

The President then reminded them that he had
been a member of the convention ; that it had in-
tended to confer the treaty-making power on the
executive alone, with the advice and consent of two-
thirds of the Senators present ; that every treaty
negotiated and ratified in this manner ought to
Ifecome binding ; and the message adds,- that the
House of Eepresentatives, up to that time, had con-
sented to and accepted this interpretation of the
fundamental law ; so Washington refused to send the
papers asked for. The House, in reply to this mes-
sage, adopted resolutions re-affirming its right.
The debate continued, and was assuming proportions
of greater magnitude, when a member proposed to
vote the measures necessary for the execution of
the treaty! The House finally understanding that
resistance was useless, passed, the 29th of April
following, by a small majority, the law which
put into execution the treaty concluded with Eng-
land.^

Since, then, this same question of constitutional
right has been raised from {ime to time. Quite
recently on the occasion of the cession of Alaska,
the House of Representatives again assumed that
the President and the Senate could not bind the
action of Congress; however, after a somewhat ani-
mated debate, the concession was finally made, and
the necessary sums voted in payment to Russia.

1 Life of Washington, by John Marshall, Vol. V., p. 555 ei seq.

IN THE UNITED STATES. 209

An experience of nearly a century proves that tlie
Senate has generally been ve^y moderate ; that its
policy has been rather timid than bold ; that it has re-
strained more than it has urged forward the Execu-
tive Power. In a word, it has very often exercised
a control, all the more salutary, because in a repub-
lic there is much greater peril in acting on foreign
questions than in keeping on the defensive. Indeed
when we examine the progressive development of
democratic ideas, it will readily be seen that they
cannot harmonize with the combinations of diplo-
matic policy. Secret alliances and .projects, whose
execution can only be slowly matured, are either
unknown, or repugnant, to societies in which those
ideas prevail. They dread entering into engage-
ments, and ought to avoid compromising themselves.
The complicated mechanism of a negotiation that
proceeds through two distinct phases, is not distaste-
ful to them. This mode affords them protection, and
the executive can neither compromise nor pledge
the country. On the other hand we have only to
examine the international alliances concluded by
the United States, to perceive that the intervention
of the Senate has often been most advantageous.
At the same time if it be true, as Americans believe,
that a system of ministerial responsibility is incom-
patible with the very existence of the republic,
legislatures certainly should not be vested with the

power of granting or withholding consent to the
14

2IO THE EXECUTIVE POWER

ratification of treaties. It necessarily follows that
the President must h^ve near him a governmental
council.

The inquiry has been made whether it would be
preferable to disconnect this council from the legis-
lative assemblies ? But why, it is said in reply, add
to the machinery of the Constitution? Again,
without here investigating how far the Senate
gains by this combination, does not the executive
derive from it great advantages, and may not the
country place entire confidence in the control that
this body exercises over the foreign affairs of the
Union ?

In what manner does the Senate intervene in the
nomination of public functionaries ?

The President is the head of the executive
administration ; he gives his orders ; it is his duty
to take care that his agents in their respective
spheres of action fulfill the mission confided to them.
However, if we examine American legislation, it is
to be remarked, that as a. general thing public
officers are not to be political agents; in effect, if
we except the foreign representatives of the United
States, we find in the administration the members
of the magistracy and treasury agents ; the officers
connected with the mail, pension, public land, Indian
and patent service ; those appointed to the territories
and finally the army and the navy officers. The
federal power, then, properly speaking, sends no

IN THE UNITED STATES. 2H

political representatives among the people. Etow-
ever, the force of circumstances has so greatly
changed this provision of the law, that the collectors
of customs have become in fact the depositaries of
the ideas and purposes of the government, and
postmasters give as much attention to the elections
as to the service of the mails.

In this way the administration has become quite
different from what was originally designed by its
framers. Doubtless, we ought not to be surprised
at what has actually taken place. A government
cannot exist without political agents, and propor-
tionably with its development the exigencies of the
situation bear so heavily on it that it requires to be
represented among the people, to be placed in con-
tact with them, and, in a word, to act upon them ;
and the state organizations cannot serve as a me-
dium to eftect this. In the course of this inves-
tigation we shall see how those independent autono-
mies are brought into relations with the Executive
Power, and in what manner and within what limits
it may interpose,; but these intervening relations
are not sufficient to assure to the government the
strength it needs.

Impelled by the urgency of these demands, the
treasury agents and other officials dependent on the
executive departments, have gone beyond the limits
of their appropriate and legitimate sphere of duty.
If, meanwhile, we look into the manner of appoint-

212 THE EXECUTIVE POWER

ing them, it is easier to understand wliy they are
almost irresistibly led to interest themselves in
politics. There is no administrative hierarchy in
the United States. A functionary is for the most
part selected almost at random, and he knows that
he will not remain long in office. The idea of a
strongly organized civil service, such as exists in
Germany, for instance, or in certain branches of
the French financial administration, has not yet
reached the American mind. But we must not,
however, conclude that the President is free to give
public offices to those in whom he has the most
confidence ; on the contrary, the persons from whom
his selections are made, form, in fact, rather a small
circle. He is constrained to resort to the politi-
cians, and among them he recruits the office-
holders. If now what has already been said re-
garding party organization be recalled, it is easy to
see how things are managed. In the primary meet-
ings, heretofore mentioned, some leaders prepare
the success of a candidate, and it would be difficult
for him to refuse to reward their services. In the
national convention it usually happens that a small
number of politicians will control the nomination
of the candidate for President, which the electors
will ratify at a later day. When he is elected, those
who have so greatly contributed to his success will
naturally have a right to his grateful recognition,
and even if we admit that no previous agreement

IN THE UNITED STATES. 213

existed, how can lie overlook sucb. assistance ? In
this way he will have, in most cases, made his
selections in advance.

In the United States politicians^ as a class, are
much maligned, but it is impossible to govern
without their aid; if amongst them are corrupt
men, there are also others, who render eminent
service to their country. Good and evil are there-
fore so blended that it is difficult to foresee the
effect on American politics of a radical reform of
existing customs. However that may be, in the
first stage of party organization, as in national con-
ventions, the same system is found ; the same ideas
of patronage prevail. Hence arises the maxim, al-
most savage in its brutality — " to the victors belong
the spoils."

On account * of the influence which it gives,
patronage is in general sought for with avidity by
Senators and Representatives in Congress. This
renders the position of the President difficult. He
nominates for public offices, but he can scarcely be
said to have freedom of choice, for he has not only
to reward those who have served him, but also to
regard the wishes expressed by members of Con-
gress and the necessities of their position. Mr.
Lincoln was one day asked by one of his sincere
and devoted friends — "Who is President, you or
A ? " This is what led to this strange question :
A had, as a strict Republican, energetically sus-

214 THE EXECUTIVE POWER

tained ttie policy of the administration in the House
of Representatives, and at the commencement of the
presidency of Mr. Lincoln had pressed the appoint-
ment of B as postmaster of the most important
place of his district. B was an honest man and a
good citizen, and the choice was therefore a for-
tunate one. He became an excellent employe. His
politics remained unchanged, and he spared no
effort to aid the prosecution of the war. He was
popular with the people of the town, the Postmas-
ter-general approved his conduct, and even his
political adversaries did not complain of him. But
he made one fatal mistake ; he did not pay sufficient
deference to A; he even went so far as to criticise
one or two of his speeches, disapprove two of his
votes, and state that be would no longer 'support
him. So soon as A was apprised of these facts, he
went immediately to the President and asked B's
dismissal.* "I must do it/' said Mr. Lincoln to the
friend to whom he confided his embarrassment. " I
regret it exceedingly, but it cannot be helped."
His friend then inquired, ^' Who is President, you
or A ? " " A is President," answered Mr. Lincoln.
This great patriot then explained to his friend
that everything must be made to yield to the neces-
sities of the war ; that he must not weaken his
administration ; that it was better that he should
be accused of weakness than alienate members of
Congress ; that he must at every cost avoid a divi-

IN THE UNITED STATES. 215

sion of those forces which the government so
greatly needed. Unfortunately the situation re-
mains unchanged, although the urgent necessities
of that period no longer exist. The system now
in force may thus be described : Those districts
represented in Congress bj faithful Eepublicans —
that is to say, by Eepublicans who sustain the
administration, so long as it does their bidding —
belong to them, and they dispose of its patronage.
The districts that send Democrats, or opponents of
the administration, are controlled by the Senators
of the State, if they support the administration.
When it occurs that the Representatives of a dis-
trict and the Senators from the State are both of
the opposition, the patronage reverts to the Presi-
dent and his Cabinet. Such is the custom, and if
the executive is not disposed to comply with it, he
excites the most violent discontent.

When General Grant entered upon the office of
President he had made no engagements with the
party leaders^ who had elected him. It might
have been supposed that he would seek to restore
to the executive authority its ancient and unfettered
right to nominate for public offices. But the prac-
tice of bestowing patronage had taken such deep
root that he soon perceived that such an attempt
would be unavailing. He was then obliged to yield
to the usage and follow the example of his prede-

1 See " The Nation," No. 370, August 1, 1872.

2i6 THE EXECUTIVE POWER

cessors. Abuses necessarily became more alarming
as the necessities of the war had developed in the
country an administrative force of greater numbers
and strength. An evil which might be tolerated
when there were but few office-holders, became in-
supportable when their number reached nearly sixty
thousand.

How far would the adoption by the United States
of the administrative rules enforced in other coun-
tries modify the situation? Would the formation of
a civil hierarchy be compatible with a free democ-
racy? It would be impossible as yet to say.
There is an evident and pressing necessity for an
entire change in the present state of things ; but
up to the present time no one has discovered an ef-
ficacious means of suppressing this disorder. How-
ever that may be, Congress should first be forced to
return to its allotted sphere of duty, and to renounce
the patronage which exercises over it so corrupt-
ing an influence, and the President especially
should regain the exercise of one of his essential
prerogatives. As the "Federalist" said, "the true
test of a good government is its aptitude and ten-
dency to produce a good administration." Now
how can this be attained when the executive
agents are not really the men of his choice, and he
is forced to submit to the wishes and caprices of
members of Congress ?

The framers of the Constitution intended to

IN THE UNITED STATES. 217

reserve to the executive the power to choose the
functionaries of the governraent ; the intervention
of the Senate was expected to give greater stability
to the administration. Thus the constitutional
provision was intended not so much to guard against
any possibly bad selections by the President, as
to build up a certain order of things.^

However, at that period grave objections were
made against the co-operation of the Senate with
the President. Some asserted that it would lead
him to exercise an undue influence over the Sen-
ate; others, that the Senate would intrench upon
his functions. Hamilton met these strictures
by a well-known process of reasoning. He said
that these two arguments destroyed each other.
But he was for once mistaken, for both are equally
well founded. The history of the relations between
the President and the Senate actually shows that
he almost always uses his patronage to secure a
majority in that body, and that it invades his do-
main by forcing upon him its applicants for public
offices. Lamentable disorder is the result, and al-
though the Constitution wisely surrounded him
with an executive council, it is none the less cer-
tain that hitherto it has been impossible to separate
exactly his personal privileges from those ' of his
council. In ordinary practice, as the opposition
is not considered, the Senators who belong to the

iThe " FederaUst," p. 529 et seq.

2i8 THE EXECUTIVE POWER

majority may, in regard to the question of offices,
be classed in two divisions. There are some whose
secure personal position renders them indifferent
to patronage ; but there are others who can only
succeed in sustaining themselves by a skillful dis-
tribution of it. The latter are usually ready to
support all the measures of the administration,
less from conviction than a desire to propitiate
the favoiyof the President. Hence a continual
exchange of good offices between him and them.
They give their votes and dispose of appointments,
so that, by an abuse arising from an easily recognized
cause, an unscrupuloas Senator imposes humiliating
conditions on a President, who cannot readily dis-
pense with his support. In this way constitutional
provisions regarding a choice of functionaries are in
part evaded; the executive loses the strength and
freedom of the initiative which the fundamental law
designed to give him. The Senate, on the other
hand, loses its independence ; the duties enjoined
upon it as his council are measurably shorn of
their importance, and it at the same time forgets
or disregards its legislative functions.

This difficult subject has engaged the atten-
tion of the best minds of the country for some
years past, and they have found, as they suppose,
the solution of the problem. The method which
they recommend is :

1. To create a civil hierarchy.

IN THE UNITED STATES. 219

2. To forbid office-holders attending to politics^
and especially taking an active part in electoral
campaigns.

It is certain that when an administration could
be recruited from its own ranks there would be no
longer any reason for " dividing the spoils " after
each election ; a body of officials would be formed
animated by the proper spirit and interested in their
duties. The President would select from them
those who best merit advancement, and would be
guided by fixed rules in so doing. Then it would
only remain for the Senate to exercise a kind of
general supervision.

Such a reform would doubtless put an end to the
most crying abuses of the system noAV in force.
These changes seem to be very desirable, with
reference to the upright and efficient management
of public affairs and to the political morality of the
country, and yet they can not be advocated without
some uneasiness. It is easy to tell how a good
administration may be formed, but it is not so
easy to foresee how far a permanent hierarchy
would be compatible with the existence of great
political parties.

No matter .how free a democracy may be sup-
posed, there is always among certain classes of the
people a feeling of indifference to public affairs, and
political absenteeism has to be incessantly com-
batted.

220 THE EXECUTIVE POWER

Now the great skill of parties is shown in keep-
ing the interest of the masses constantly aroused,
and when election day arrives to induce them to
go to the polls. What will be the effect of remov-
ing the powerful motive that contributes so much
to excite their action, by destroying the interests
which a hope of office keeps alive? Is it not
to be feared that a contest for principles alone will
not suffice to hold together all the elements of a
political organization ? If, then, the creation of an
administrative hierarchy would, as there is reason to
fear, result in a diminution of the public life, it is
evident that the meditated reform, however impor-
tant from other stand-points, might tend to produce
an irreparable evil. And in this connection, one of
the most complicated problems involved in the organ-
ization of free democracies is presented. How is a
nation of forty millions of men to be induced to
give constant attention to public affairs? The
American people have considered these difficulties,
but not solved them. They have instructed their
politicians to form and maintain parties, and con-
fided to them the task of explaining, periodically,
political issues. In fact they have simply reserved
to themselves the sovereign right of deciding be-
tween these different organizations thus formed.
Moreover, they have resigned to those active mana-
gers, who have secured a favorable popular verdict
for their party, the right of dividing the public

IN THE UNITED STATES. 221

offices between them. . If it be now withdrawn
there is reason for apprehending that so radical a
change will disorganize the whole political machine ;
so that in applauding the motives of American re-
formers it is important to know if thej have ex-
actly measured the question in its fullest extent,
and if their remedy for existing evils would not,
if applied, result in impairing the public spirit of
the country. These are serious inquiries, to which
it would be as yet impossible to give a satisfactory
answer.^

While we indicate these perplexities, we pro-
pose to limit ourselves to the remark, that, ac-
cording to the Constitution, the executive has the
exclusive right of nominating all the functionaries
of the United States. Doubtless he could impose
such administrative regulations as would organize
the civil service upon a plan somewhat analagous
to that adopted for the army and navy, but this
should only be attempted with great caution — by
feeling, as it were, the way at every step — and in
such manner as not to destroy the great political
parties Avhose existeoce may perchance be indis-
pensable to the maintenance of liberty.

And yet, again, the convention acted wisely in
placing near the President an executive council
authorized to revise and, if necessary, defeat his

1 We would here particularly recommend to the reader a speech
that Senator Schurz delivered In the Senate, Jan. 27, 1871, and
which was published under the title of " Civil Service Reform."

222 THE EXECUTIVE POWER

nominations ; but its functions can be usefully exer-
cised only on condition of remaining within the
limits assigned to it by the Constitution. It is in
fact indispensable that the administrative patronage
should no longer be controlled by the legislative
bodies, and in particular by the Sensite.

In this matter there can be but little doubt ;
these changes will be made ; the most distinguished
minds demand them, and sooner or later the popu-
lar voice will insist on them. We may then look
forward to legislation forbidding, under severe pen-
alties, any member of either house presenting to
the President candidates for public offices. As may
be seen, this reform would not necessarily imply
the creation of an administrative hierarchy ; but it
would have the double effect of confining Congress
to the exercise of its appropriate functions, and. of
assuring its independence of the executive. At.
the same time the Senate would freely exercise the
control over executive nominations, confided to it
by the Constitution.

CHAPTER IX.

RELATIONS OF THE PRESIDENT TO THE STATES.

IT has been shown, in the preceding chapters,
that the framers of the Constitution were in
favor of creating a vigorous Executive Power,
and making it, as far as possible, independent of
the legislative branch of the government. There
is no longer any doubt that their conception was
just, and that they understood the true nature of
republican institutions.

However, the Executive Power, such as they
conceived it, would ere long have exceeded its pre-
scribed limits if the independence of the States had
been wholly destroyed. It is owing to the consti-
.tutional recognition of their existence and author-
ity that a free republic has been upheld in the
United States. After an experience of nearly a
century, and an expression of concurring opinions
by the most distinguished statesmen in favor of
maintaining these local governments, it would seem
superfluous to an American to insist on this point,
or to prove their necessity. Nevertheless, as these
ideas are not so fully accepted elsewhere, it may
(223)

224 THE EXECUTIVE POWER

be useful to explain why in the United States the
existence of the States is an indispensable safe-
guard of republican liberty.

"The federal government," says the Supreme
Court in a leading case, ''proceeds directly from
the people; is ordained and established in the.
name of the people, and is declared to be ordained
in order to form a more perfect union, establish
justice, ensure domestic tranquillity, and secure the
blessings of liberty to themselves and to their pos-
terity. The assent of the States, in their sover-
eign capacity, is implied in calling a convention,
and thus submitting that instrument to the people.
But the people were at perfect liberty to accept
or reject it, and their act was final. It required not
the afl&rmance and could not be negotiated by the
State governments. The Constitution, when thus
adopted, was a complete obligation, and bound the
State sovereignties.

"The government of the Union, then, is em-
phatically and truly a government of the people.*
In form and in substance it emanates from them.
Its powers are granted by them, and are to be
exercised directly on them, and for their benefit.
This government is acknowledged by all to be one
of enumerated powers. The principle that it can
only exercise the powers granted to it is apparent.

The Government of the Union, tbough

limited in its powers, is supreme within its sphere

IN THE UNITED STATES. 225

of action It is the governmeat of all ; its

powers are delegated bj all ; it represents all, and

acts for all But this question is not left to

mere reason ; the people have, in express terms,
decided it by saying, this Constitution and the laws
of the United States, which shall be made in pur-
suance thereof, shall be the supreme law of

the land, and the judges in every State shall be
bound thereby, anything in the Constitution or laws
of any State to the contrary notwithstanding." ^

Thus the people of the United States constitute

a nation placed under one government, but "

on the other hand the people of each State com-
pose a State, having its own government and
endowed with all the functions essentifetl to separate
and independent existence. The States disunited
might continue to exist. Without the States in
union there could be^ no such political body as the
United States "

" But in many articles of the Constitution

the necessary existence of the States, and within
their proper spheres the independent authority of
the States, is distinctly recognized. To them nearly
the whole charge of interior regulation is committed
or left ; to them and to the people all powers not
expressly delegated to the national government are
reserved. The general condition was well stated

1 McCullough vs State of Maryland, 4 Wheaton, p. 316 et seq.
Decision of Mr. Chief Justice Marshall.
15

226 THE EXECUTIVE POWER

by Miv Madison, in the "Federalist," thus: 'The
Federal and State governments are, in fact, but
different agents and trustees of the people, consti-
tuted with different powers and designated for differ-
ent purposes.'.." "^

The State, on her admission into the Union, sur-
renders a portion of her sovereignty to the federal
government, and in "this regard there is no distinc-
tion between the original States and those subse-
quently formed. However, it is important to notice,
that this surrender or delegation of power is not
made by the State, but really and in fact by the peo-
ple thereof. It is they who actually decide to enter
the Union. They then ratify the division of powers
between the federal and the State governments,
reserving to themselves all the prerogatives of sov-
ereignty not conferred on either.

It happens in this way that, in their respective
spheres, these two organizations have scarcely any-
thing in common. The one is invested with various
prerogatives, the exercise of which has been confi-
ded to it by the Constitution ; each State, considered
as an autonomy, exerts, on the contrary, those
powers bestowed upon her by her people. This
doctrine suggested to President Jackson the follow-
ing reflections: "The destruction of our State
governments, or the annihilation of their control

1 See the decision of the Supreme Court, given by Mr. Chief
Justice Chase, in the case of Lane County vs. Oregon. See 7 Wal-
lace : and McPherson's Manual for 1869, p. 440 et seq.

IN THE UNITED STATES. 227

over the local concerns of the people, would lead
directly to revolution and anarchy, and finally to
despotism and military domination. In proportion,
therefore, as the general government encroaches
upon the rights of the States, in the same propor-
tion does it impair its own power."^

However, the Constitution declares that "the
United States shall guarantee *fco every State in this
Union a republican form of government, and shall
protect each of them against invasion ; and on
application of the Legislature, or of the executive
(when the Legislature cannot be convened), against
domestic violence." ^

^ This article has given rise to long and animated
discussions, and the opposing parties are evidently
far from agreeing as to its true construction.

The framers of the Constitution thought that a
faction might triumph in some one of the States,
overthrow its republican institutions, and establish
in their stead a monarchy or a despotism ; they
then foresaw that circumstances might thus occur
when the federal government would be rendered
powerless. The " Federalist " expressed this appre-
hension in the following terms : " In a confederacy
founded on republican principles and composed of
republican members, the superintending govern-
ment ought clearly to possess authority to defend

1 Inaugural Address, March 4, ItSS.. Presidents' Messages, p. 477.

2 Constitution, Article IV., Section 4.

228 THE EXECUTIVE POWER

the system against aristocratic or monarcliical inno-
vations. The more intimate the nature of such a
Union may be, the greater interest have the mem-
bers in the political institutions of each other, and
the greater right to insist that the forms of govern-
ment, under which the compact was entered into,
should be substantially maintained." ^

This clause, then, leaves to the people of each State
the absolute right to modify the forms of their
republican institutions, but forbids them to sub-
stitute in their stead such as are monarchical or aris-
tocratic. If this prohibition is violated, the federal
government should at once intervene. However,
this rule of action, which in the abstract seems so
clear, has not always been of easy application. For
instance, at the period preceding the civil war
certain States of the south had modified their
" republican institutions " to such an extent as to
render them true aristocracies; neyertheless, the
federal government never thought of interposing
its authority. If it subsequently did so in a very
energetic manner, it was only because exceptional
circumstances gave it the opportunity. ISTor was
it, then, in virtue of this clause of the Constitu-
tion. It determined to resist by force the secession
movement, because the life of the nation was in-
volved in the issue. The importance of this guar-
antee was only revealed at a later period, when the

1 The " Federalist," p. 132 et seq.

IN THE UNITED STATES. 229

re-establishment of the insurrectionary States in
the Union was considered ; but this is not the place
to present the arguments advanced on either side
after the triumph of the federal arms.

In case an insurrection bursts forth in any one of
the States, and overthrows a republican form of
government, the President should act without delay,
as on him would first devolve the task of meeting
the danger and re-establishing order. All the
forces of the United States are placed at his dispo-
sition, and it is his duty to determine the employ-
ment that shall be made of them.

Besides, it is difficult to understand the bearing
of this guarantee clause without examining the
latter part of the section containing it, and consult-
ing the adjudication of the Supreme Court to
which it gave rise, under the following circum-
stances: The abettors of a revolutionary organiza-
tion in Ehode Island proclaimed it to be the lawfully
constituted government of the State, and resorted
to force to maintain it against the pre-existing gov-
ernment. Both were in form republican, but the
latter continued in the exercise of its functions,
suppressed the armed opposition to it, and enforced
the due execution of its laws. A suit grew out of
some of the proceedings connected with this un-
fortunate affair, and one of the questions raised
was evidently designed to elicit from the court
an expression as to which was the rightful gov-

230 THE EXECUTIVE POWER

ermnent. Mr. Chief Justice Taney delivered the
opinion :

" Moreover, the Constitution of the United

States, as far as it has provided for an emergency
of this kind, and authorized the general govern-
ment to interfere in the domestic concerns of a
State, has treated the subject as political in its
nature, and placed the power in the hands of that
department."

" Under this article of the Constitution it rests
with Congress to decide what government is the
established one in the State. For as the United
States guarantees to each State a republican govern-
ment, Congress must necessarily decide what gov-
ernment is established in the State before it can
determine whether it is republican or not. And
when the Senators and Kepresentatives of a State
are admitted into the councils of the Union, the
authority of the government under which they are
appointed, as well as its republican character, is
recognized by the proper constitutional authority.

Yet the right to decide is placed there and

not in the courts ..."

" So, too, as relates to the clause in the above-
mentioned article of the Constitution, providing for
cases of domestic violence. It rested with Con-
gress to determine upon the means proper to be

adopted to fulfill this guarantee The act of

February 28, 1795, provided that 'in case of an in-

IN THE UNITED STATES. 231

surrection in any State against the government
thereof, it shall be lawful for the President of the
United States, on application of the Legislature of
such State, or the executive (when the Legislature
cannot be convened), to call forth such number of
the militia of any other State or States as may be
applied for, as he may judge sufficient to suppress
such insurrection.'

" By this act the power of deciding whether the
exigency had arisen upon which the government
of the United States is bound to interfere is given
to the President. He is to act upon the application
of the Legislature, or of the executive, and conse-
quently he must determine what body of men
constitute the Legislature, and who is the Governor,
before he can act. The fact that both parties claim
the right to the government cannot alter the case,
for both cannot be entitled to it. If there is an
armed conflict like the one we are speaking of, it
is a case of domestic violence, and one of the parties
must be in insurrection against the lawful govern-
ment. And the President must of necessity decide
which is the goverment, and which party is unlaw-
fully arrayed against it, before he can perform the
duty imposed upon him by the act of Congress." ^

So that, in affairs of such delicacy, it devolves
upon the head of the Executive Power to decide.

The explanations heretofore given of the powers

1 Lutlier vs. Barden, 7 Howard, p. 1 et seq.

233 THE EXECUTIVE POWER

of peace and war, and the obligations that the de-
fense of the country imposes on the President, suf-
fice to show in what manner the practice under the
CoDstitution has determined the meaning of the
second clause of the section.

However, the calling out the militia at the begin-
ning of the civil war raised a very serious question.
When President Lincoln issued a proclamation
inviting the Governors of the States to furnish their
respective portions of the contingent, several among
them refused to comply, on the pretense that his
call was unconstitutional. But Congress soon put
an end to this disorder. The government, having
derived its powers, not from the States, but from
the people, it appealed directly to the latter, and
not to any intervening agency, and provided that,
if need be, federal officers in the several States
should be appointed with full authority to proceed
to a direct recruitment.

Thus, if we do not include the exceptional cases
just mentioned, the Union and the States act, if we
may say so, in distinct and independent spheres.
The President and Congress should abstain from
asserting the powers delegated by the people to .the
local governments. The latter cannot rightfully
suspend the national authority or interfere with
its exercise. If, then, the government of the United
States is not a league or confederacy of States, as
separate and sovereign communities united by a

IN THE UNITED STATES. 233

compact, neither is it a consolidated government,
without limitation of powers, representing the
entire sovereignty. It was designed to maintain
not only the supremacy of the national authority,
but also the reserved rights of the States. Federal
encroachments on those rights would be fatal to
republican institutions on this continent.

We may readily see that, should the autonomy
of the States disappear, the Executive Power would
at once essentially change and assume inordinate
proportions. It is to a great extent confined by
the State governments to that sphere of action pre-
scribed for it by the Constitution. In fact, inces-
sant conflicts would take place between the execu-
tive, which is independent within the scope of its
constitutional authority, and the Legislature, with
the increased powers that would almost necessarily
attach to it on the destruction of the governments
of the separate States. From that time one might
foresee that the President, although a person of lim-
ited ability, would succeed in gaining the sympathy
and influence of a majority of the people. Doubt-
less the latter might at times declare in favor of a
deliberative assembly, but it would not be safe to
depend on their permanent support. Called upon to
choose between an abstract sovereignty and the con-
crete idea of power centered in one man, they would
in the end almost always prefer the living person-
ality, and recognize him as the elect of the nation,

234 THE EXECUTIVE POWER

without scaroely remembering that they had also
chosen their representatives.

The government of the United States is as vigor-
ous as circumstances may require. The executive
authority is so constituted that it may act- with
perfect Hberty within its authorized Hmits, and
these are hedged in by barriers which cannot be
readily surmounted. On one side it is confronted
by the Legislature and by a firmly established judi-
cial power, which is almost always able to expound
and enforce the rights of citizens, and on the other
are these thirty-seven independent bodies, which
are scarcely amenable to its action. Thanks to
this combination, the presidential power is exerted
with vigor, and it proves equal to all the require-
ments of the most varied situations ; and nevertheless
he to whom it is confided may be, from time to time,
changed, because no man is an indispensable neces-
sity. But let the organization of the States disap-
pear, and the condition of things will at once
become modified. This was clearly seen in the
interval between the overthrow of the Confederate
government and the present moment. As is
known. Congress decided that the inhabitants of
the insurrectionary States had renounced their
privileges and power in the Union. ^

This is not the place to examine the bearing or
the character of the measures then adopted, but it

1 Report of the Committee on Reconstruction, p. 11 eL seq.

IN THE UNITED STATES. 235

is impossible to deny that, by reason of tbe de-
struction of these ten States, the federal authority
was largely extended beyond its constitutional
limits. In fact an immense power was assumed and
exercised. If this anomalous state of things had
been greatly prolonged, and the dominant party had
not labored to efface even the last traces of it, we
may be allowed to express the opinion, that there
might have resulted a centralized republic, which
would with great difficulty have been maintained.
These eventful times also brought about a conflict
between the President and Congress. "Was the power
to reconstruct the Union vested in him or in them ?
Their respective partisans discussed this prelimi-
nary inquiry with equal violence, and the; struggle
was renewed, when the question arose as .to what
plan of reconstruction should be adopted. At last
matters reached a most critical point. The Presi-
dent w*as impeached, and narrowly escaped convic-
tion. The momentary disorganization of ten
States was enough to endanger the life of the
federal government. The equipoise and divi-
sion of powers so carefully adjusted by the Consti-
tution were deranged, and it seemed that they
would be entirely broken up. If the friends of
freedom in America did not despair of the repub-
lic, it was because of their trust and belief that
the conflict would be short, and that the normal
and benignant sway of their institutions would be

236 THE EXECUTIVE POWER

gradually restored. Let us then hope that the reg-
ular action of life will by degrees be resumed
and felt in each of the Southern States. The
natural order of things will then be re-established
throughout the Union; but until this propitious
event occurs, there will be eccentric movements in
the working of the federal government, and from
time to time threatening attempts at centralization.

CHAPTER X.

WHAT THE EXECUTIVE POWER BECAME UNDER MR.
LINCOLN.

THE observations made in the preceding chap-
ters with regard to the prerogatives of the
executive would be incomplete without an
attempt to explain the transformation they under-
went during the civil war. We must remark
their sudden expansion, and in what manner
those who sustained the executive found means
to supply him with all the required resources to
resist the attacks which imperiled the existence of
the United States.

On the -ith of March, 1861, when Mr. Lincoln de-
livered his inaugural address, it might have seemed
as if the federal government was destroyed. Al-
though the President said, "I consider that the
Union is unbroken, and to the extent of my ability
I shall take care, as the Constitution itself expressly
enjoins upon me, that the laws of the Union be
faithfully executed in all the States," he, how-
ever, added that he would take no steps that
would have the effect to bring on a war ; so he
(237)

238 THE EXECUTIVE POWER

confined himself to an appeal to misguided citizens,
and to a masterly argument to prove that the Con-
stitution interdicted their going out of the Union.
Under circumstances of such gravity, never had
the head of a government expressed himself with
greater reserve nor taken a more modest attitude.
He seemed to feel that all the constitutional or-
ganization of the United States was on the point
of dissolution.

Six weeks later the secessionists fired the first
gun at Fort Sumter. The President met this pro-
vocation by measures of defense. He immediately
called forth 75,000 men under arms, convoked Con-
gress, and declared the blockade of the ports of the
South. War was commenced. In reality, in this,
the most trying period in the history of the
United States, in deciding that the Union should
be defended by force of arms, he simply carried
.into effect the will of the people. Already, for
several months, in the midst of the confusion at-
tending the last months of Mr. Buchanan's admin-
istration, the Northern States appeared to realize
that war was inevitable, and in many respects com-
menced preparing for it. The politicians, alarmed
at impending events, met and tried to effect a com-
promise. During this time, when the Southern
States were pr.eparing to act, contemporary docu-
ments prove that the citizens of the North were
learning .to handle arms, assembling by companies

■ IN THE UNITED STATES. 239

and regiments, and seeking in advance for men to
lead them. This, so to speak, preliminary work
accounts for what took place in the country from the
moment that Mr. Lincoln decided the question and
resolved to resist force by force, and explains why
the people of the North showed themselves ready to
face the crisis.

From the beginning of hostilities, and as a logical
sequence of them, all the powers which attach to
belligerence inured to the government and were at
once called into exercise. A former President of
the United States once said in the House of Eepre-
sentatives: "There are, then, in the authority of
Congress and of the executive, two classes of pow-
ers, altogether different in their nature and often
incompatible with each other — the war power and
the peace power. The peace power is limited by
regulations and restricted by provisions prescribed
within the Constitution itself. The war power is
limited only by the laws and usages of nations.
This power is tremendous ; it is strictly constitu-
tional, but it breaks down every barrier so anx-
iously erected for the protection of liberty, of
property and of life."

There are, indeed, adds the speaker, powers of
peace conferred upon Congress which also come
within the scope amd jurisdiction of the laws of
nations, such as the- negotiation of treaties of amity
and commerce, the interchange of public ministers

240 THE EXECUTIVE POWER

and consuls, and all the personal and social inter-
course between the individual inhabitants of the
United States and foreign nations, and the Indian
tribes, which require the interposition of any law.
But \}[\Q 'powers of war are all regulated by the laws
of nations, and are subject to no other limitation."^

Thus, at the breaking forth of hostilites Mr.
Lincoln was thereby invested with extraordi-
nary powers ; and here a constitutional provision
will enable us still better to define his novel situa-
tion. Section II. of article 2 says : " The President
shall be commander-in-chief of the army and navy
of the United States, and of the militia of the sev-
eral States when called into the actual service of
the United States." However, these powers were
not exerted without giving rise to violent discus-
sions: Even among those who scarcely questioned
Mr. Lincoln's right to take all the necessary meas-
ures for the reconstruction of the Union and the
provisional administration of the conquered terri-
tory many disagreed with him as to whether the
loyal States should be subjected during the contin-
uance of the war to an exceptional regime^ and as to
his authority to suspend the privilege of the writ
of habeas corpus^ and try, by military commissions,
citizens accused of political crimes.

And on these points the best minds may read-
ily differ. The Constitution- had foreseen that

1 Speech delivered by Mr. John Quincy Adams in the House of
Representatives, 26th May, 1836.

IN THE UNITED STATES. 241

the public necessities miglit require a suspension
of tlie writ of habeas corpus^ but does not declare
whether in that event Congress alone has the power
to authorize it. However, without regarding the
precedents which seemed to decide that the whole
matter was within the exclusive province of that
body, the President, after having consulted the At-
torney-general, took the initiative, and issued a
proclamation suspending the writ in certain States.
A serious contest then arose between him and the
judiciary, represented by the Chief Justice of the
United States. The latter, in a case pending before
him, decided that the measure was illegal, but ac-
knowledged his inability to cause his opinion and
judgment to be carried into effect.

In fact, the executive triumphed over the judici-
ary; but the question regarding the power thus
exercised remained in abeyance until March 3, 1863.
It was only then that Congress passed an act which
sanctioned the then existing state of things. It
legalized any arrest or imprisonment during the
rebellion which had been made or committed under
the authority of the President, and authorized him,
whenever in his judgment the public safe 1 7 might
require it, to suspend the privilege of the writ in
any case throughout the United States. . Reasons
in support of this stringent policy were certainly
not wanting. Disloyal movements in several of the

Northern States urgently required vigilant super-
16

242 THE EXECUTIVE POWER

vision, and it was vitally important to check tli-e
growth of conspiracies and enforce the executian
of the laws.

Considerations of this character led to the organi-
zation of military commissions in Indiana and at
several other points. However, it is proper to
remark that when the question of their validity
was brought before the Supreme Court, a majority of
the judges held that these extraordinary tribunals
had not been, and could not be, legally formed in a
State not occupied by the insurgents.^ But this
judgment was not rendered until 1866 ; so that if
it afforded instruction for the future, it could have
no retroactive effect.

As regards the States in insurrection, few persons
seriously contested the authority of the President.
Here then the doctrine relating to the war 'power
was applied in its fullest extent ; the rights of the
conquerors were only limited by international laws
and usages. In this way he was able to take de-
cisive steps to abolish slavery.

In his speech of 26th of May, 1836, John Quincy
Adams had already shown how abolition measures
could be brought about by the theory that he

explained, " but in time of war," he said,

"there'are many ways by which Congress not only
has the authority, but is bound to interfere with
the institution of slavery, in the States "

1 See ex parte Milligan, 4 Wallace, Supreme Court Reports 106.
McPherson's Manual for 1867, p. 83 et seq.

IN THE UNITED STATES. 243

And OR tlie 14th and 15tli of April, 1842, he
again reverts to this subject : "I say that military
authority takes for the time the place of all muni-
cipal institutions, and slavery among the rest, and
that, under that state of things, so far from its being
true that the States where slavery exists have the
exclusive management of the subject, not only the
President of the United States, but the commander
of the army, has power to order the universal eman-
cipation of the slaves "

Such was the doctrine recognized and carried
into practical effect by the memorable proclamations
of September 22, 1862, and of January 1, 1863.

" I, Abraham Lincoln, President of the United
States of America, and commander-in-chief of the
army and navy thereof, do hereby proclaim and

declare That on the first day of January, in

the year of our Lord one thousand eight hundred
and sixty-three, all persons held as slaves within
any State or designated part of a State, the people
whereof shall then be in rebellion against the United
States, shall be then, thenceforward, and forever
free "

He then promised to acknowledge and maintain
the freedom of the slaves thus emancipated. And
on the first of January, 1863, he published a second
proclamation, announcing that from that date-
slavery was abolished in. the States and districts in
insurrection.

244 ^-^-^ EXECUTIVE POWER

This was a most striking application of the
principles announced twenty years before by John.
Quincy Adams. Congress, in the spring of 1862,
had doubtless taken some action looking to the
abolition of slavery, but that nefarious institution
received the fatal blow from the war power^ which,
as some contend, the Constitution holds in reserve
for a national crisis. Thus, in somewhat less than
eighteen months after the first gun of the rebellion
had been fired, he, who March 4:th, 1861, scarcely
dared to affirm the right of the Union to take
measures of defense, was in possession of almost
unlimited authority.^

But the President did not stop there ; he deduced
other consequences from the doctrine relative to
the war power. Adopting that principle of inter -
n-ational law which authorizes the commander-in-
chief of an army to set up a provisional administra-
tion in conquered districts, he concluded that it de-
volved upon him to reorganize the seceded States.
In his message of December 8th, 1863, he conimu-
nicated to Congress a copy of a proclamation de-
signed to bring about the return of the Southern
States into the Union, and which, after excepting

1 The reader who may desire to understand how the doctrine
relating to the war power was developed and carried out, ought to
read the speech of Mr. Charles Sumner, delivered in the Senate,
May 19, 1862; it was published in pamphlet form, and entitled
" Rights of Sovereignty and Rights of War" ; and we also recom-
mended the learned work of Mr. William Whiting, called " The
War Powers under the Constitution of the United States."

IN THE UNITED STATES. 245

from its benefits certain classes of insurgents, grant-
ed a full pardon to every person wlio had partici-
pated in the rebellion, with a restoration of all
rights of property, except as to slaves, upon condi-
tion that such person should take and thereafter
keep inviolate an oath to support and defend the
Constitution of the United States, and to abide by
all the legislation of Congress and the proclama-
tions of the President having reference to slaves.

The proclamation added : "If a number of per-
sons, not less than one- tenth ia number of the votes
cast in such State at the presidential election of the
year of our Lord one thousand eight hundred and

sixty, each having taken the oath aforesaid

shall re-establish a State government which shall

be republican .it shall be recognized." It

also recommended to the States which should
adopt this mode of organization, to take the neces-
sary measures to improve the condition of the
freed men.

Mr. Lincoln's message explained the proposition.
Speaking of the clause that related to the freed-
men, he said : " But if it be proper to require, as
a test of admission to the political body, an oath of
allegiance to the Constitution of the United States,
and to the Union under it, why not also to the
laws and proclamations in regard to slavery?
Those laws and proclamations were enacted and
put forth for the purpose of aiding in the suppres-

246 THE EXECUTIVE POWER

sion of the rebellion. To now abandon tbem
would be not only to relinquish a lever of power,
but would also be a cruel and an astounding breach
of faith." And this was followed by the pointed
declaration, " While I remain in my present position
I shall not attempt to retract or modify the emanci-
pation proclamation ; nor shall I return to slavery
any person who is free by the terms of that procla-
mation or by any of the acts of Congress." This is
not the occasion to inquire into the intrinsic merits
of his plan of reconstruction. It is important, how-
ever, to remark that neither the message nor accom-
panying proclamation evinces the least doubt of
his right to exercise the vast power which he
assumed. Until then, his attempts at reconstruc-
tion had been confined to the States or parts of
States which, in his capacity of commander-in-chief,
he administered provisionally as soon as they were
conquered and occupied by the federal troops.
Moreover, at the time when he proposed the gen-
eral question of reconstruction and communicated
his own views to Congress, it had not as yet re-
solved upon any definite policy in this respect ; bills
had been introduced, but not discussed ; he had not
then before him any legislative action to serve as a
guide. However, it is evident that he believed
himself authorized to undertake alone this great
work. He held that it belonged, to the executive
to proceed to the reorganization of the States, and

IN THE UNITED STATES. 247

that each House of Congress ought to confine itself
to respectively examining, at the proper time, the
credentials of the Senators and Eepresentati ves who
might be chosen by the reconstructed States.

Nevertheless Congress at once made known to
Mr. Lincoln that they did not concur in his opin-
ion on the division of constitutional powers.^ The
House appointed a special committee, whose duty
it was to examine the whole subject of the re-
organization of the States, and to report a bill. This
step was significant ; and the choice of the chair-
man was particularly so.^

The 15th February the committee proposed a bill.
An almost interminable debate then followed, so
that it was only in the last moments of the session
that the two Houses agreed upon its provisions.
It was therefore after the adjournment of Congress
that the time accorded by the Constitution to the
President to enable him to examine all legislative
measures presented to him, expired. He availed
himself of this circumstance, and did not sign the
bill. But he went much further; he addressed a

iThe proclamation of the President contained this significant
sentence: " And for the same reason it may be proper to further
say, that whether members sent to Congress from any State shall
be admitted to seats constitutionally, rests exclusively with the

respective Houses and not to any extent with the executive "

See the message and proclamatiori in McPherson's '♦ History of the
Kebellion," p. 140 et seq,

2 Mr. Henry Winter IJavis Was at that time one of the deter-
mined opponents of Mr. Lincoln.

248 IN THE UNITED STATES.

proclamation to the people on this subject. After
having expressed his opinion on the measure, he
said that he did not renounce his own plan of re-
construction. This was a grave declaration ; it
clearly denoted that he did not limit himself to a
disapproval of any specific portion or portions of
the bill passed by Congress, but that he still claimed
the right to reorganize the conquered States. This
brought upon him a violent opposition; leading
members of Congress protested, in a public address,
against what they called "a usurpation of power."
The President, said they, attaches no importance to
a decision of Congress in the exercise of its constitu-
tional rights ; • he should, nevertheless, understand
that its authority is paramount and must he re-
spected}

This occurred in the midst of the presidential
campaign. The address had the effect of bringing
his decision prominently before the people ; they
gave him their emphatic approval.

When Congress re-assembled in the following De-
cember, Mr. Lincoln insisted upon the immediate ad-
mission of the Representatives and Senators chosen
by Louisiana. He affirmed that New Orleans and
the neighboring parishes had reorganized a republi-
can government in accordance with his plan, and
that it only remained for Congress to decide

I" The History of the Rebellion," by McPherson, p. 317 eL seq. A
complete account of this important matter will be found there.

IN THE UNITED STATES. 249

whetlier the Kepresentatives of this State, so re-
organized, were entitled to their seats.

The question thus put was debated during the
entire session of Congress. However, the tactics
of the opposition prevaijed; they succeeded in
postponing from time to time a final vote, and
reaching the 4th of March without any action.

Thus, at the very time that the civil war was on
the eve of its termination, Mr. Lincoln energeti-
cally maintained his right to dictate to the Southern
States the conditions of their return to the Union ;
while the two Houses of Congress hesitated, and
finally adjourned without coming to any deci-
sion. The Confederacy collapsed shortly afterward.
Some days later he was assassinated, at the very
moment when all resistance to the authority of the
federal government had ceased. Vice-president
Johnson immediately entered upon the ofiice.

History will never know exactly what, during
his second term, would have been Mr. Lincoln's
policy with regard to the conquered States. Would
he have claimed the absolute right to solve, without
the aid or concurrence of Congress, the difficulties
attending the re-organization of the South, or would
he, on the contrary, have compromised with that
body? No one can positively say. However
that may be, nearly two years later the acknowl-
edged leader of the .House of Eepresentatives thus
treated this much controverted subject : " That

250 THE EXECUTIVE POWER '

good man," said Mr. Thaddeus Stevens, speaking
of Mr. Lincoln, " who never willingly infringed
upon the rights of any other department of govern-
ment, expressl}^ accorded to Congress alone the
power to declare * when or whether members should
be admitted to their seats in Congress from such
States.' It is not to be denied that his anxiety for
the admission of members from Louisiana — or
rather from New Orleans and adjoining parishes —
gave uneasiness to the country. The people had
begun to fear that he was misled, and was about to
fall into error. If he would have fallen into that
course, it is well for his reputation that he did not
live to execute it. From being the most popular,
he would have left office the most unpopular man
that ever occupied the executive chair. But that
over-ruling Providence that so well guided him did
not permit such a calamity to befall him. He
allowed him to acquire a most enviable reputation,
and then, before there was a single spot upon it, ' he
sailed into the fiery sunset.' Here, if there were
anything in common but their station [Mr. Lincoln
and Mr. Johnson], what a temptation to draw a
parallel. But it would be unprofitable ; especially
in this debate. For what we say at the graves of
admired friends, or statesmen, or heroes, is not
biography. The stern pen of history will strip
such eulogies of their meretricious ornaments. But
there is no danger that (he highest praise that the

IN THE UNITED STATES. 251

most devoted friends could bestow on him would
ever be reversed bj posterity. So solid was the
material of which his whole character was formed,
that the more it is rubbed the brighter it will shine.
Mr. Lincoln also was of humble origin (and who is
not that is formed of the coarse ' clay of humani-
ty ?') and earned his living by manual labor. But
he had too good taste ever to boast of the accident

of his birth He rose to the Chief Magis-

tracy.of the great republic by his sterling patriot-
ism, sober habits and modest worth. He was not
thrown into power by any moral or political
convulsion. His elevation was no accident, but
the result of the cool judgment of a nation of
freemen. No man ever assumed such vast respon-
sibilities under such difficult circumstances, except,
perhaps, "William the Silent. How similar in their
lives ; how alike in death !

" If there was danger, and I admit there was some
apprehension that Mr. Lincoln would be beguiled
by his chief adviser into a course which would
have tarnished his well-earned fame, that good
Guardian who had guided him so well, preserved
him from that calamity. Death is terrible. Death
in high places is still more lamentable ; but every
day is showing that there are things more terrible
than death. It was better that his posthumous
fame should be unspotted, than that he should
endure a few more years of trouble on earth. All

252 THE EXECUTIVE POWER

must regret the manner of his death ; yet, looking
to futurity and to his own personal position, it
may be considered happy. From the height of
his glory he beheld the promised land, and was

withdrawn from our sight Like the prophet

of the Lord, who knew not death, he was wrapt
from earth to heaven along a track no less lumi-
nous than his who ascended in a chariot of fire
with horses of fire. Would to God that some
small portion of the mantle of our Elijah had
fallen on his Elisha." ^

It is certain, from the most positive information,
that neither Mr. Johnson nor the members of Mr.
Lincoln's cabinet, by whom he was surrounded,
had any doubt as to the constitutional power of
the President, over the re-organization of the
Southern States. Mr. Johnson and his advisers
did not then appear to suppose that Congress should
intervene in any manner. So he decided not to
call an extra session, and entered upon this ques-
tion at once, and with vigor. The preamble of his
proclamation of May 29th, 1865, affirms his full
and complete authority in the matter.

" Whereas," says this paper, " the fourth section
of the fourth article of the Constitution of the
United States declares that the United States shall
guarantee to every State in the Union a republican

1 Speech delivered in the House of Representatives, March 19th,
1867, by Mr. Thaddeus Stevens.

IN THE UNITED STATES. 253

form of government, and shall" protect each of
them against invasion and domestic violence ; and
whereas, the President of the United States is, by
the Constitution, made commander-in-chief of the
army and navy, as well as chief civil executive
officer of the United States, and is bound by solemn
oath to faithfully execute the office of President of
the United States, and to take care that the laws
be faithfully executed ; and whereas, the rebellion

deprived the people of the State of North

Carolina of all civil government ; and whereas, it
becomes necessary and proper to carry out and en-
force the obligations of the United States to the
people of North Carolina, in securing them in the
enjoyment of a republican form of government."
The President consequently appointed a provi-
sional Governor, and charged him to proceed to
re-organize the State conformably to the plan traced
in that paper. The same system of reconstruction
was at once applied to the other States. Thus the
Executive Power actually undertook to make a
definite disposition of the fate of ten States of the
Union.

If the President had accepted the ideas and adopt-
ed the policy of the party to whom he owed his
position, it is, to say the least, doubtful whether
Congress would ever have raised the question as to
his constitutional power in the premises. How-
ever, he evidently wished to please the Democrats ;

254 THE EXECUTIVE POWER

not only therefore did he arrogate such power, but
some of the leading features of his plan were in .con-
flict with the cherished principles of the Eepublican
party.

It was then chiefly the politics of Mr. Johnson
that provoked the resistance of Congress and led
them to assert their exclusive right to decide upon
measures of reconstruction. In the month of De-
cember, 1865, the reaction commenced ; the two
Houses were scarcely assembled when they adopted
a resolution, which, without expressly contesting
his jurisdiction, nevertheless directed a special
committee to inquire "Upon the condi^on of
the States that composed the so-called Confederate
States of America, and to make a report upon the
question as to their right to be represented in the
two Houses." Thus Congress was still upon the
defensive ; it did not declare that he had usurped
an authority which exclusively belonged to it. Sev-
eral months later the committee on reconstruction
went further, and affirmed in its report that he had
exceeded the limit of his powers. This memor-
able paper, drawn up by a Senator whose recent
death has left a wide void in the upper House,
maintained that at the time the rebellion ceased
the inhabitants of the rebel States were destitute
of all civil government. In such a situation it was
the duty of the President to cause to be executed all
the national laws in those States, and to organize, as

IN THE UNITED STATES. 255

far as possible, a provisional administration adapted
to their condition. As commander-in-cliief of a
victorious army, and without departing from the
principles of international law, he ought to restore
order, defend property, and protect the people
against all violence, foreign or domestic ; besides,
he was at liberty either to convene Congress or to
maintain the existing condition of things until the
annual meeting of that body.

The President, in prescribing a mode for the or-
ganization of North Carolina, and afterward of the
remaining Southern States, palpably transcended
his prerogatives. He could not interpose as to the
system of government that the citizens of these
States might adopt ; for according to the Constitu-
tion of the United States this power belonged ex-
clusively to Congress, so that his plans of recon-
struction could only be considered as provisional.*

Congress entirely accepted the conclusions of
this report. In this situation the President was
obliged to appeal to the people to settle the ques-
tion pending between the legislative branch of
the government and himself. Under the influence
of very diverse causes they arrayed themselves on
the side of Congress. The electoral campaign of
1866 presents in this respect a nqtj peculiar char-
acter. In the history of the dissensions between

1 Report of the Joint Committee on Reconstruction, p. 8 et. seq.
It was drawn up by Senator W. P. Fessenden.

256 THE EXECUTIVE POWER

the executive and the Houses, these elections fur-
nish the instances in which the people have to the
greatest extent decided in favor of the legislative
power. Nevertheless we must not consider their
decision as a proof that their opinion had under-
gone .an entire change, and that henceforth they
would withdraw their special confidence from the
Executive Power. Mr. Johnson had personally
compromised the position of President of the United
States, and the popular distrust of him was the
real and only cause of this momentary success of
Congress. Thenceforward that body, by its enact-
ments following each other in rapid succession,
divested him of the privileges and prerogatives
which his predecessor had exercised. The reaction
went so far, that before his impeachment he found
himself almost ppwerless, notwithstanding some of
th^se prerogatives were conferred on the executive
in express terms by the Constitution.

Thus, within a period of four years, a vigorous
executive, wielding formidable powers, came forth
from the confusion and anarchy into which the
country h^d been thrown in the beginning of 1861.
Under the control of unprecedented circumstances
these powers, step by step, attained such propor-
tions that President Lincoln, with a stroke of the
pen, broke the fetters of 4,000,000 slaves. Nothing
could then longer resist his will;, he commands
hundreds of thousands of soldiers,, and a constantly

IN THE UNITED STATES. 257

increasing navy ; he holds in his hands a complete
system of recruiting, and the people pour without
stint their money into the federal treasury. The
war continues ; the Confederacy begins to give way
in the struggle. States one after another are
snatched from its grasp, and then he alone under-
takes to govern and organize them. Soon after, the
entire building put up by the insurgents totters
and falls to pieces, and one-third of the Union is
subject to his sole control. But power changes
hands. His successor is unequal to the task before
him. A reaction then speedily begins. At this
moment both Houses of Congress enter on the
stage ; little by little they strip him, not only of
all the extraordinary powers received from his pre-
decessor, but proceed so far that Andrew Johnson,
President of the United States, is finally impeached
by the House and tried by the Senate.
17 ,

CHAPTER XI.

IMPEACHMENT AND ACQUITTAL OF PKESIDENT
JOHNSON.

THE 7th January, 1867, the House of Repre-
sentatives of the 39th Congress adopted a
resolution instructing the Judiciary Commit-
tee to proceed to inquire into the political conduct
of the President of the United States. The 7th
of March following, the House of Representatives
of the 40th Congress again passed this same reso-
lution, so that the investigation was continued with-
out interruption, notwithstanding the renewal of
the House.

The Judiciary Committee heard a considerable
number of witnesses, and collected an enormous
mass of written testimony, and finally, the succeed-
ing 25th November, made three reports to the
House. The first, signed by five Republicans,
recommended the impeachment of President, John-
son ; the second, signed by two Republicans, pro-
nounced against the measure, while the third was
intended to make known to the House and the
country the protest of two Democrats, members
(258)

IN THE UNITED STATES. 259

of the coinmittee. The first two reports merit
special attention. The majority report contained
seventeen articles of impeachment, all, in their
opinion, proved by the testimony before them,
and incriminating the whole political conduct of
Mr. Johnson. The majority reproached him with
grave excesses of power, and believed themselves
capable of establishing his repeated violation of
several laws. It remained to be shown that these
imputed malfeasances constituted an impeachable
offense. And at this point the first question to
determine was the nature and extent of the crimi-
nal proceeding known under the name of impeach-
ment.

The report of the two dissenting Republicans
said that the Constitution of the United States de-
clares that " the House of Representatives shall
have the sole power of impeachment^'' "What is,
then, the character and scope of this power ? May
it be legally exercised at any time that the majority
of the House sees fit to get rid of an obnoxious
functionary? Happily, observes the report, 'this is
not the case. According to the Constitution, • ' The
President, Vice-president, and all civil officers of
the United States, shall be removed from office on
impeachment for and conviction of treason, bribery,
or other high crimes and misdemeanors."^ The
words treason and bribery are easy to interpret.

1 Constitution, Article II. Section 4.

26o THE EXECUTIVE POWER

They describe acts which may be the subject-mat-
ter of an indictment before the ordyiary criminal
tribunals. The law defines them and determines
the punishment which may be inflicted on the con-
victed party. But what is the meaning of the ex-
pression, "other high crimes and misdemeanors,"
employed in the same connection ? Do they au-
thorize the House to impeach a functionary in case
that his alleged ofifense would not render him amena-
ble to the courts of criminal jurisdiction?

In inserting the words " treason and bribery,"
the framers of the Constitution manifested their
intention to limit the cases in which the House
could exert its power of impeachment. Thus the
article referred to has in view only criminal acts,
in the ordinary sense of the penal law. And the
proof that this interpretation should be given to
the Constitution is found in the concluding words,
"the party convicted shall nevertheless be liable
and subject to indictment, trial, judgment and pun-
ishment according to law." Thus the trial by im-
peachment may terminate by a judgment removing
from office and disqualifying the party convicted,
but, after such judgment, he is also liable to crimi-
nal prosecution in the courts; so that the 'House
caniiot proceed by way of impeachment unless the
ajccused functionary is charged with a crime or
misdemeanor which subjects him to such prosecu-
tion. This same report then took up another line

IN THE UNITED STATES. 261

of argument, and contended in substance that an
impeachment could not be rightfully ordered, un-
less the alleged act had been made the subject of
legislation by the United States. Thus the indis-
pensable conditions to the impeachment of a func-
tionary by the House are

1st. That the act charged should be of a nature
to give rise to ulterior criminal proceedings, under
the jurisdiction of the courts.

2d. That the crime or misdemeanor is punish-
able by a law of the United States.

This last point is of great importance, for in
a country governed in part by the English common
law, and in part by laws enacted by the several
States, an offense, provided for only by the common
law or a State statute, would not authorize an im-
peachment. Federal legislation must define the
crime or misdemeanor and prescribe the punish-
ment. According to this doctrine, a functionary
might be guilty of an offense punishable at common
law, but not by act of Congress ; but in such a case
the House could' not impeach him.

These views on the clauses of the Constitution
applicable to impeachment were, doubtless, not
accepted by a majority of the committee ; but the
House understood that the minority had received
them from an eminent jurist; and it was, more-
over, not greatly inclined to push matters to an
extremity. So, after a somewhat brief debate, 108

262 THE EXECUTIVE POWER

votes were cast against, and 57 in favor of the
impeachment.^

It thus appears that the House was unwilling to
initiate an impeachment solely upon political
grounds. The majority thought that the people,
as the only judge competent to determine such
questions, would, at the following election, decide
between the Eepublican policy of Congress and
Mr. Johnson's Democratic tendencies. However,
he was soon to change the views of the House on
the subject.

As has . already been seen. Congress, the 2d
March, 1867, passed, over the presidential veto, a
law regulating the tenure of civil offices. Section
1st said : " That every person holding any civil
office to which he has been appointed by and with
the advice and consent of the Senate, or who shall
be hereafter appointed to any such office, and shall
become duly qualified to act therein, is and shall
be entitled to hold such office until his successor
shall have been in like manner appointed and duly
qualified." This provision signified that any func-
tionary nominated by the President and confirmed
by the Senate could not be removed, except in
case the Senate should authorize the change by
confirming the nomination of a successor. The
same section contained a special clause relating to

1 Impeachment of the President. House of Representatives,
40th Congress, Ist session, Rep. Com, No. 7. See also MePherson's
Political Manual for 1868, p. 264 el seq.

IN THE UNITED STATES. 263

members of the Cabinet. These latter were to hold
their offices respectively for and during the term
of the President by whom they might have been
appointed, and they were only subject to removal
by and with the advice and consent of the Senate.

The second section embraced the cases where,
during the recess of the Senate, an officer should
be shown, by evidence satisfactory to the President,
guilty of misconduct in office, or crime, or should
become incapable or legally disqualified to dis-
charge its duties. The President could then suspend
him and designate a person to perform, tempora-
rily, his duties, but should report to the Senate,
within twenty days after the first day of the next
session, such suspension, with the reasons therefor.
The Senate would proceed to examine them, and
if it decided that they were not well founded, the
suspended officer was to be reinstated in his func-
tions.

At the time that the law was debated and passed,
the Eepublican party scarcely concealed their inten-
tion of retaining in the War Department Mr. Stan-
ton, who possessed and deserved their entire confi-
dence.

In the course of the summer of 1867, Congress
not being in session, the President availed himself
of the occasion to ask for the resignation of Mr.
Stanton, who answered by a refusal. Mr. Johnson
then suspended him, and confided the temporary

264 THE EXECUTIVE POWER

administration of the War Department to General
Grant. Things remained in this condition until the
Senate met again in December, 1867. Mr. Johnson
then hastened to send a message to that body, setting
forth the reasons that had decided him to suspend Mr.
Stanton. The 13th January, 1868, the Senate de-
clared that it did not approve them. Consequently,
by the terms of the law, Mr. Stanton was to be
reinstated in office. Mr. Johnson appeared at first
to yield, and accept the situation ; but about a
month later (the 21st February) he addressed the
following letter to the Secretary of War :

" Sir : By virtue of the power and authority vested in me,
as President, by the Constitution and laws of the United
States, you are hereby removed from office as Secretary for
the Department of War, and your functions as such will ter-
minate upon the receipt of this communication.

"You will transfer to Brevet Major-General Lorenzo
Thomas, Adjutant-general of the army, who has this day been
authorized and empowered to act as Secretary of War ad
interim, all records, *!Ooks, papers and other property
belonging to the government, and now in your custody and
charge."

As soon as Mr. Stanton received this letter he
transmitted it to the House of Eepresentatives.
That body referred it immediately to the committee
on reconstruction. The selection of this com-
mittee foreshadowed coming events ; it was almost
entirely composed of determined adversaries of the
President, and Mr. Thaddeus Stevens, one of the
leaders of the Republican party, was its chairman.

IN THE UNITED STATES. 26.^

The House was not kept long in suspense by
this committee. The ninth section of the tenure
of office act declared that every violation of its
provisions should be considered a misdemeanor,
and it prescribed the penalty of the party guilty
thereof. The opponents of Mr. Johnson thought
that they had found all the conditions required
by the most scrupulous legists for the impeach-
ment of a functionary. The day after the letter
was referred to the committee, Mr. Stevens, on their
behalf, submitted a report, accompanied by the fol-
lowing resolution : " That Andrew Johnson, Presi-
dent of the United States, be impeached of high
crimes and misdemeanors in office." Three days
threafter the House adopted this resolution by a
vote of 126 to 47, and immediately appointed a com-
mittee to prepare and report articles of impeach-
ment. It thus acted because, in its opinion, the
President had willfully violated an act of Congress
containing a penal provision.

However, when the lawyers composing a portion
of the committee examined the question calmly,
they pel-ceived how difficult of execution was the
work that they had undertaken. So Mr. Thaddeus
Stevens, the most discerning and skillful amongst
them, suggested the addition of two articles, with
a view of bringing the charges, as far as possi-
ble, within the limits of a political question. As
the House had already voted for the impeachment,

266 THE EXECUTIVE POWER

it readily consented to accept articles whicli it had
rejected nearly two months -before. It then ap-
pointed managers to present and defend the articles
of impeachment at the bar of the Senate.

In the meantime the Senate had formed itself
into a high court of justice. Conformably to the
Constitution, the Chief Justice of the Supreme
Court presided.

Mr. Johnson called upon some of the most emi-
nent jurisconsults of the Union, and they undertook
his defense.

The United States then presented an unexampled
spectacle in the history of the world : that of a
President continuing the administration of affairs,
whilst a high court of justice deliberated on his
fate. Those who ordered his impeachment, did not
dare to suspend him from the exercise of his func-
tions during the trial. And how was the court con-
stituted ? Did it not consist of the same Senators
who had decided, by a majority of 35 to 6, that
Mr, Stanton ought to resume his functions, and who
again still more recently had given votes quite as
significant? So that the proceedings opened under
influences the most unfavorable to the accused.

However, the benignant spirit of the Anglo-
Saxon criminal procedure, when conducted even
under the most adverse circumstances, was soon
felt and recognized. Above all declarations of the
rights of man and of the citizen, it guarantees

IN THE UNITED STATES. 267

individual liberty ; it does not permit the prosecu-
tor to exhume the entire past of the accused; it
excludes hearsay evidence ; it confines the proofs
to the specific charge ; it orders, that the witnesses
shall be heard in person, and undergo the ordeal of
a , cross-examination conducted pursuant to rales
well fitted to elicit the truth ; it compels the attend-
ance of witnesses for the defense, and, by the most
solemn sanctions enjoins upon the judges absolute
impartiality. Finally, it forbids the barbarous prac-
tice of interrogating the accused, which prevails in
countries where justice is not administered accord-
ing to the forms of the English common law. Under
such circumstances, there is an equal contest be-
tween him and his accusers.

Thanks to the power of that spirit which ani-
mates the Anglo-Saxon race, the Senate of the
United States, however hostile to Mr. Johnson, was
governed by these beneficent rules of procedure,
which alone are suited to a free people.

It is impossible to sum up in a few pages the
memorable discussions that commenced the 23d
March, 1868, and terminated the following 31st of
May, by the complete acquittal of Mr. Johnson ; the
special study they deserve would far exceed the
space at our command. It will then saffice to show
on what ground this august tribunal decided that it
could not depose him for political reasons.

Among the arguments urged in behalf of the

268 THE EXECUTIVE POWER

House, that of Mr. Thaddeus Stevens particularly
claims attention. Although in his declining years,
and so. physically exhausted that he could scarcely
take part in the trial, he submitted a paper present-
ing his views with perfect clearness and precision.
Appreciating the difficulty of proving beyond a
reasonable doubt that the President had been guilty
of a misdemeanor in the dismissal of Mr. Stanton,
the manager on the part of the House reasoned as
follows : " When Andrew Johnson took upon him-
self the duties of his high office, he swore to obey
the Constitution and take care that the laws be
faithfully executed. That, indeed, is and has always
been the chief duty of the President of the United

States to obey the commands of the sovereign

power of the nation and to see that others should

obey them a duty which he could not escape,

and any attempt to do so would be in direct viola-
tion of his official oath ; in other words, a misprision
of perjury. I accuse him, in the name of the House
of Kepresentatives, of having perpetrated that
foul offense against the laws and interests of his
country."

Mr. Stevens also accused the President of having
willfully usurped the legislative power of the nation
in his attempted reorganization of the Southern
States, and of having advised them not to submit to
the action of Congress. This guilty animus was
manifest in all his official acts. So the Senate should

IN THE UNITED STATES. 269

find in them proof of criminal intention in the re-
moval of Mr. Stanton.^ He then asked for the con-
viction of the President, not merely because he
had committed a specified misdemeanor, but chiefly
because he had resisted the policy of Congress.

But the advocates for the defendant insisted
that the Senate was then organized as a distinct
body from the Senate acting in its legislative or
executive capacity, and was sitting as a court- bound
by the rules governing criminal prosecutions and
securing the rights of the accused. The question
at issue was not whether the President had opposed
the policy of Congress, and sought to secure the
prevalence of his own views in conflict with it, but
whether he had committed a crime subjecting him
to a subsequent prosecution in a court of the
United States. Party considerations should be dis-
carded, and the Senate must confine itself to the
judicial determination of the matters involved.

Assuming these positions, which they led the
Senate by degrees to accept, the counsel of Mr.
Johnson were able to resist successfully the attacks
of the managers on the part of the House against
the President. At the same time public passions
were allaying, and opinions, formed under the in-
fluence of violent excitement, gave way to a sober
second thought, which commenced considering the
question on its intrinsic merits. Finally the court

1 Proceedings in the trial of Andrew Johnson, p. 665 et. seq.

270

THE EXECUTIVE POWER

retired to deliberate. During this solemn session
it examined, in its turn, the doctrine of the politi-
cal deposition of the President.

Mr. Sumner gave his unqualified assent to the
principles laid down by Mr. Stevens. According
to him, the impeachment constituted a political,
and not a judicial, procedure. The Senate was not
a high court of justice, but it judged as a Senate.
He therefore concluded that political offenses might
authorize the impeachment and conviction of the
party who had committed them. He then retraced
the entire public course of Mr. Johnson since his
accession to office, and expressed the opinion that
it was such as to justify his removal. From this
stand-point, the pending proceedings furnished, so
to speak, only an occasion for pronouncing his con-
viction.

He said, in conclusion : " In the judgment which
I now deliver I cannot hesitate. To my vision
the path is clear as day. Never in history was
there a great case more free from all just doubt.
If Andrew Johnson is not guilty, then never was a
political offender guilty before ; and if his acquit-
tal is taken as a precedent, never can a political
offender be found guilty again. The proofs are
mountainous. Therefore you are now determining
whether impeachment shall continue a beneficent
remedy in the Constitution, or be blotted out for-
ever, and the country handed over to the terrible

IN THE UNITED STATES. 271

process of revolution as its sole protection. If
this milder process cannot be made effective now,
when will it ever be ? Under wbat influences ?
On what proofs ? You wait for something. What?
Is it usurpation ? You have it before you, open,
plain, insolent. Is it the abuse of delegated pow-
er ? That, too, you have in this offender, hardly
less broad than the powers he has exercised. Is it
the violation of the law? For more than two
years he has set your laws at defiance, and when
Congress, by a special enactment, strove to restrain
him, he broke forth in rebellion against this con-
stitutional authority. Perhaps you ask still for
something more. Is it a long catalogue of crimes,
where violence and corruption alternate^ while loyal
men are sacrificed and the rebellion is lifted to its
feet ? That also is here. The apologists," added
the speaker, " are prone to remind the Senate that
they are acting under the obligation of an oath.
So are the rest of us, even if we do not ostenta-
tiously declare it. By this oath, which is the same
for us all, we are sworn to do ' impartial justice.'

Therefore I cannot allow the quibbles of

lawyers on mere questions of form to sway this
judgment against justice. Nor can I consent to
shut out from view that long list of transgressions
explaining and coloring the final act of defiance.

Something also has been said of the people

now watching our proceedings with patriotic solici-

272 THE EXECUTIVE POWER

tude, and it has been proclaimed that they are
wrong to intrude their judgment. I do not think
so. This is a pohtical proceeding which the people
at this moment are as competent to decide as the
Senate." ^

But this opinion, expressed with such force and
eloquence, was resisted by another entirely at vari-
ance with it. ''• The power of impeachment," argued
one of the most distinguished lawyers in the Senate.
" is conferred by the Constitution in terms so
general as to occasion great diversity of opinion
with regard to the nature of offenses w^hich may
be held to constitute crimes or misdemeanors
within its intent and meaning. Some contend, and
with great force of argument, both upon principle
and authority, that only such crimes or misde-
meanors are intended as are subject to indictment
and punishment as a violation of some known law.
Others contend that anything is a crime or misde-
meanor, within the meaning of the Constitution,
which the appointed judges choose to consider so ;
and they argue that the provision was left indefi-
nite from the necessity of the case, as offenses of
public officers, injurious to the public interest, and
for which the offender ought to be removed, cannot
be accurately defined beforehand ; that the remedy
provided is of a political character, and designed
for the protection of the public against unfaithful

1 Trial of Andrew Johnson, p. 958 el seq.

IN THE UNITED STATES. 273

and corrupt officials. Granting, for the sake of the
argument, that this latter construction is the true
one, it must be conceded that the power thus con-
ferred might be liable to very great abuse, especi-
ally in time of great part}^ excitement, when the
passions of the people are inflamed against a per-
verse and obnoxious public officer. If so, it is a
power to be exercised with extreme caution when
you once get beyond the line of specific criminal
offenses. The tenure of public offices, except those
of judges, is so limited in this country, and the
ability to change them by popular suffrage so
great, that it would seem scarcely worth while to
resort to so harsh a remedy, except in extreme
cases, and then upon clear and unquestionable
grounds.

" In the case of an elective chief magistrate
of a great and powerful people, living under a
written constitution, there is much more at stake
in such a proceeding than the fate of the individual.
The office of President is one of the great co-ordi-
nate branches of the governnaent, having its defined
powers, branches and duties, as essential to the very
framework of the government as any other, and to
be touched with as careful a hand. Anything
which conduces to weaken its hold upon the
respect of the people, to break down the barriers
which surround it, to make it the mere sport of
temporary majorities, tends to the great injury of
18

274 '^^^ EXECUTIVE POWER

our government, and inflicts a wound upon constitu-
tional liberties The removal from office of

the chief magistrate shoul(^ be free from the taint
of party ; leave no reasonable ground of suspicion
upon the motives of those who inflict the penalty,
and address itself to the country and the civilized
world as a measure justlj^ called for by the gravity
of the crime and the necessity of its punishment.
Anything less than this, especially when the offense
is not defined by any law, would in my judgment
not be justified, by a calm and considerate opinion,
as a cause for removal of a President of the United
States."

He then proceeded to show that the Senate ought
to confine itself to the specific charges preferred
against the accused in the articles of impeachment,
and to the proofs ■ offered to establish them. He
added these memorable words :

" To the suggestion that popular opinion demands
the conviction of the President on these charges,
I reply that he is not now on trial before the peo-
ple, but before the Senate, f n the words of Lord
Eldon, upon the trial of the Queen, 'I take no
notice of what is passing out of doors, because I
am supposed constitutionally not to be acquainted
with it.' And again, ' it is the duty of those on
whom a judicial task is imposed to meet reproach
and not court popularity.' The people have not
heard the evidence as we have heard it. The

IN THE UNITED STATES, 275

responsibility is not on them but upon us. Tbey
have not taken an oath to 'do impartial justice
according to the Constitution and the laws.' I have
taken that oath. I cannot render judgment upon
their convictions, nor can they transfer to them-
selves my punishment if I violate my own. And
I should consider myself undeserving the confidence
of that just and intelligent people who imposed
upon me this great responsibility, and unworthy a
place among honorable men, if, for any fear of pub-
lic repl-obation, and for the sake of securing popular
favor, I should disregard the conviction of my
judgment and my conscience.

" The consequences which may follow either from
conviction or acquittal are not for me, with my
convictions, to consider. The future is in the
hands of Him who made and governs the universe,
and the fear that He will not govern it wisely and
well would not excuse me for a violation of His
law."^

The Senator who uttered these noble words is no
more. May they be meditated on and understood
by all those who desire to establish in other coun-
tries a free republican government.

These opposing views were presented with equal
clearness and ability. The time for a decision had
now come. According to the terrns of the Consti-

1 Opinion of William V. Fessenden. Trial of Andrew Johiusont
937 et seq.

276 THE EXECUTIVE POWER

tution tlie conviction of the President required a
vote of two-tliirds of the Senators present ; and it
is due to this protecting clause that Mr. Johnson
was acquitted. ^

In this way the procedure by way of impeach-
ment, which had been until then undefined, and
which under certain exceptional circumstances
might have menaced the President, was explained,
and a precedent solemnly established which in all
probability will be accepted as binding in all subse-
quent similar cases. *

The result proves how difficult in the future will
be such a proceeding. Unless the evidence adduced
clearly shows that the President has committed a
crime or a misdemeanor, subjecting him to indict-
ment and punishment as for a violation of a fed-
eral law, it will be almost impossible to convict
him. He is then independent. Congress ought not
to rely upon an impeachment as a means of con-
trolling him.

It may, without doubt, be said that practically
the President is not liable to any jurisdiction ; that
during the exercise of his power he is freed from
the dictation of the people as well as of the legis-
lative authority. But if the people could depose
him, a much more serious inconvenience would
ensue, for he would then cease to be independent.

1 As will be seen, we do not here express an opinion on the suflfl-
ciency of the proofs to sustain the articles of impeachment.

IN THE UNITED STATES. 277

This would bring about an anarcby fatal to tlie
country, and still more fatal to liberty.

If, on the other hand, the Senate had the power
to remove a President who did not concur in their
opinions, the legislative branch of the govern-
ment would become supreme, and he be wholly
subordinated to it. Then the adjustment of equal
powers counter-balancing each other, framed by
the convention of 1787, would instantly be de-
stroyed. The United States- would be governed
by all-powerful assemblies. Would they profit by
such a change? Certainly not. In democracies
an assembly is generally incapable of directing the
government. It may make laws and be peculiarly
fitted to restrain power, but is nearly always
unsuited for its prolonged exercise.

Thus the fathers of the American republic,
having to choose between an imperfect presidential
responsibility, and the much greater evils growing
out of popular or legislative intervention, evinced
great wisdom in assuring the independence of the
Executive Power !

CHAPTER XII.

CAUSES WHICH MIGHT MODIFY THE CONSTITUTION
OF THE UNITED STATES.

COTEMPOEARY documents prove that the
framers of the Constitution were not at all as-
sured of its duration ; for we seldom find in
the journals and writings of the day, aq expression
of unalloyed satisfaction. The convention limited
itself "to proposing to the people to make an ex-
periment.

A feeling of doubt and uncertainty continued
up to the close of that century. Even after the
presidency of Washington many Americans had
serious misgivings about the future of the republic.
When a new party came into power under Presi-
dent Jefferson* prominent Federalists believed that
the experiment of a republic had failed. ^ How-^
ever, Jefferson took a juster view of things. If,
as he said in 1796, "an anglican, monarchical, aris-
tocratical party has sprung up, whose avowed

1 March 4, 1801.

2 Letter of JefTerson to PhiUp Mazzeio, 24th April, 1796. See Jef-
ferson's Writings, Vol. IV. p. 193.

(278)

IN THE UNITED STATES, 279

object is to draw over us the substance as they
have already done the forms of the British gov-
ernment ; the main body of our citizens, however,
remain true to their republican principles; the
whole landed interest is republican, and so is a
great mass of talents." ^ After 1801 the republic
became consolidated, and assumed those strongly
marked features which it has ever since retained.
The people have no longer any doubt of its stabil-
ity, and even begin to think that it is destined to
immortality.

It is not our province to contradict them. How-
ever, it is proper to note lurking in these institu-
tions the causes of ruin, whose development and
growth statesmen should labor to arrest.

The American republic is founded upon univer-
sal suffrage. The constituted authorities depend
upon the people, the supreme arbiters, who are
called upon from time to time to pronounce deci-
sions from which there is no appeal. Hitherto
they have performed this duty with remarkable
intelligence. It is not then surprising that the
great political school, founded by Jefferson, has
placed absolute confidence in their wisdom, and, it
might almost be said, their infallibility. However,
why refrain from here recalling the very different
opinion that Hamilton had the courage to express?
He says : "It is an unquestionable truth, that the

Jefferson's Writings, Vol. IV. p. 347.

28o THE EXECUTIVE POWER

body of the people in every country desire sincerely
its prosperity, bat it is equally unquestionable that
they do not possess the discernment and stability
necessary for systeniatic government." ^

So far Jefierson, rather than Hamilton, appears
to have been right.

However, it must be remarked, that a govern-
ment was never established upon a principle more
logical and at the same time more easy to be per-
verted. What constant efforts are required to ren-
der an entire people capable of mastering the most
complex questions of policy and government !
^hat a degree of virtue and wisdom in the
masses do such institutions pre-suppose? And,
nevertheless, the very day when they lose these rare
qualities, the main spring of a republican govern-
ment will be broken.

If the capacity of the citizens of the Union for
self-government, their sense of right and love of
public j ustice deteriorate, the first, symptoms of the
change will probably be noticed in the organi-zation
of the States. It may happen that first at one point,
and soon after at another, unrebuked corruption will
commence in the local governments. They will
then be subject to rapid decay. From the day when
they can no longer be maintained in all their origi-
nal vigor and purity, or become incapable of an-
swering the great ends for which they were created,

1 See EUiott's Debates on the Federal Constitution, Vol. II., p. 302.

JN 7 HE UNITED STATES. 281

the people will naturally look to the federal author-
ity and ask that it may be substituted for them.

The opinions of Hamilton confirm this view.
This determined partisan of a strong central power
strenuously labored to increase the prerogatives
of the President, and to diminish, to the great-
est practicable extent, those of the States. His
speech in the convention and the draft which he
submitted furnish conclusive proof of this. ^ He
favored the appointment by the general government
of the executive of each State, who was to be in-
vested with a negative upon its legislation. He
would thus have destroyed in part these local auto-
nomies, and this proposition was in harmony with
the general features of his plan.

Now the continued existence of the American
republic may be largely ascribed to the refusal of
the convention to adopt the views of Hamilton.
Whenever the American people shall reverse that
decision and modify the Executive Power as he
desired to organize it, the inauguration of a new
republic might, perhaps, be possible ; but the insti-
tutions founded by the convention of 1787 will
have ceased to exist.

And yet, if there were a publicist so bold as to
affirm that the future existence of the States is
beyond the reach of danger, it would only be
necessary to call his attention to very recent events

1 The Madison Papers, Vol. II., p. 890 et seq.

282 THE EXECUTIVE POWER

in the South. The doctrine of State rights and
State sovereignty, with all its extreme practical
consequences, was never in any part of the Union
so widely spread as in Yirginia, the Carolinas and
Georgia. It was the corner-stone of the political
faith of the masses. They clung to it with the
fervor and unshaken constancy of true believers,
and in the late civil war sealed their devotion with
their blood. These commonwealths, during the
whole struggle, gave proofs of their endurance and
tenacity; yet in 1866 it was held in Washington
that they had no longer a government, and that the
federal authority might engage in the temporary
administration of their affairs without having its
will resisted or questioned. Who would have said,
fifteen years ago, that such things could come to
pass? In view of such significant facts, very rash
must he be who should venture to afl&rm that
nothing of the sort could take place elsewhere.
But without dwelling upon this longer, it is enough
to observe that if the vitality of the local govern-
ments should diminish, the central power would
be thereby proportionately augmented.

Then the question would at once arise whether
the legislative or executive branch of the govern-
ment would take the ascendancy. Now, whatever
may be the apparent strength of the first, it does
not require a prophet's eye to foresee the ultimate
triumph of the second. It may assuredly happen

IN THE UNITED STATES. 283

that the legislative assemblies might at first make
everything yield to them, but let no one believe in
their enduring success; they would soon become
powerless, and perish by their own blunders. Tbey
would believe themselves sustained, long after they
had been abandoned by the people, and a day would
come when they would be in danger of annihilation
without even understanding the reason.

At the time when the American Constitution
was formed, political science did not possess that
information on the nature of legislative assemblies
which experience has since furnished. As we
have seen, the convention took every precaution
against what was called " the usurping instincts of
legislative bodies." It did not calculate the effect
of democratic institutions upon public habits and
modes of thought, nor, in a society where all are
equal, the predilection of the masses for the Execu-
tive Power. No one at that time appeared to
suspect that the President might one day become
the favorite representative of the people. ^

1 Jefferson, in his autobiography, has made a remark upon the
assemblies of his day which deserves to be quoted. He says : " I
served with General Washington in the Legislature of Virginia
before the Revolution, and during it with Dr. Franklin in Congress,
and I have never heard either of them speak ten minutes at a time,
nor to any but the main point, which was to decide the question."
Jefferson wrote these lines in 1S21, and added: "If the present
Congress errs in too much talking, how can it be otherwise in a
body to which the people send one hundred and fifty lawyers,
whose trade it is to question everything, yield nothing, and talk
by the hour? That one hundred and fifty lawyers should do
business together, ought not to be expected."— Je^erson's Works,
Vol. i., pp. 58-59.

284 ^-^-^ EXECUTIVE POWER

However that may be, so long as political activity
in the States remains undiminished, and the exist-
ing division of sovereignty between them and the
national government continues, the equilibrium be-
tween the legislative and the executive authority
will not be deranged. The latter can not imperil
the Constitution, unless the local autonomies first
disappear or become sensibly weakened.

But these are not the only dangers to which the
Constitution may eventually be exposed. We
have elsewhere seen in what manner President
Washington became the faithful interpreter of the
thoughts of the Philadelphia Convention. The Ad-
ministration he organized proposed to avoid as far
as possible foreign complications. As shown in an-
other chapter of this book, he, on retiring from
ofl&ce, insisted upon the continuance of his policy of
neutrality. The faithful adherence of his successors
to it has essentially contributed to maintain the
republic. An active and energetic foreign policy
necessarily implies that the executive who directs
it is permanent and clothed with powers in propor-
tion to his vigor of action. At the same time, com-
binations with other governments can be of value
only so far as they are upheld by an exhibition of
adequate strength, or in other words, they cannot
be formed without strongly organized land and sea
forces.

If, then, a passion for conquest and territorial

IN THE UNITED STATES. 285

acquisitions should take root and spread in the
United States, it would soon and inevitably lead to
an increase of the powers of the President. A
glance at the map of North America will show that
the United States may be extended, either by the
annexation of Canada, the conquest of Mexico or
the acquisition of the Larger and Smaller Antilles.
In their essential characteristics the people of Cana-
da are not unlike those of the republic ; almost all
speak English, and are accustomed to the working
of a free government. Were they to be incorpo-
rated into the Union, they would readily conform
to its customs and institutions. But such assuredly
would not be the case with the Mexicans *or the
mixed population of different races in the Antilles.
Whenever the government acquires these countries,
it will be obliged to exercise direct authority over
them and provide for their wants ; in a word, to
establish and maintain, in their midst, a complete
organization of the public service. Then it would
itself enter upon a new departure, and assume a
preponderating importance. The executive would
be led to a constant and vigorous intervention in
the affairs of the annexed territories. Whenever
his sphere of duty becomes thus enlarged, the Con-
stitution will have undergone such vital changes
that it will be scarcely recognized. A very strong
government will then be developed, much more re-
sembling the favorite plan of Hamilton than that

286 THE EXECUTIVE POWER

whicli sprung from the deliberations at Phila-
delphia.

If, then, the exercise of popular sovereignty such,
as has been witnessed for more than eighty years,
should cease, and the organization of the States lose
its present strength, the powers of the central gov-
ernment, and especially the executive -branch, would
in a corresponding degree be enlarged. It is also
quite true that a change of foreign policy and an
undue territorial extension would, for different
reasons, bring about an analogous transformation.
In a word, the political machinery of the United
States is so constructed that if any one of its prin-
cipal pivots or springs be displaced or injured, the
whole system would cease to work.

In case the national government, by reason of
some one of the causes just indicated, should be-
come greatly extended, would it be possible to
establish a responsible ministry to represent the
President in the two Houses, and the majority of
the two Houses in his council ? In other words,
could the forms pi the constitutional monarchy
of England be eventually applied to the repub-
lic ? An insurmountable objection is at once pre-
sented. The President is elected by the people,
represents the people, and is only responsible to
the people. Were he forced to select a Cabinet
subject to parliamentary influences, and virtually
constituting the executive government, he would

* IN THE UNITED STATES. 287

be placed in an anomalous and trying situation. He
would cease to be the personal chief whom the
American Democracy has been accustomed to re-
spect and the greater part of the time to follow.
The reason for his responsibihty would no longer
exist. The power would then in fact pass into the
hands of Congress. Now it is, to say the least,
very doubtful if Americans would consent to be
governed by a ministry representing the sense of
that body and liable to be displaced at its will.
They could then no longer recognize, in the direc-
tion of public affairs, the individual action of their
own elected chief magistrate.

The convention understood thoroughly all the
machinery of the British constitution, and generally
admired it. Almost all the members did justice to
the political institutions of the mother-country ; and
yet they rejected the idea of a responsible ministry,
considering it as incompatible with the republic they
wished to found. They thought that the ministry
in England was designed to reconcile monarchy and
popular representation ; that a council having charge
of the public interests should be placed between the
crown and parliament. But when the United States
substituted the elective principle for hereditary roy-
alty, the President was chosen by the people to gov-
ern in their name, and he should therefore be respon-
sible only to those from whom he derived his power.

This is so true, that even Hamilton, who pre-

288 THE EXECUTIVE POWER -

ferred a presidency for life, and would have en-
dowed tlie incumbent with large prerogatives,
refused to subject him to ministerial control.

But even supposing that the jurisdiction of the
national government should be enlarged, and the
presidential power greatly augmented, it would still
be impossible to organize a parliamentary ministry
without producing confusion and anarchy. This
innovation would speedily displace the center of
the government, and Congress would, for a season,
absorb almost the entire sovereignty ; but soon the
democracy, recalled by its instincts, would earnestly
insist for a personal, acting and responsible chief
magistrate.

OPINIONS OF THE PRESS.

[The Nation.— August 28th, 1873, page 147.]
A FRENCH STUDY OF AMERICAN POLITICS. 1

Having been in this country for several years, dur-
ing a period of great political activity and excitement,
M. de Chambrun has had ample opportunities for obser-
vation and enquiry. The spirit of his work is philosoph-
ical, and its scope coextensive with an examination of the
history, progress and tendencies of American constitu-
tional government. The present volume on the Executive
Power is to be followed by three others, one of which is to
be devoted to the discussion of the national sovereignty,
and what is called in France the " pouvoir constituant,"
another to the legislative, and another to the judicial
power. The present volume will thus apparently be the
second of the series.

M. de Chambrun has done his work with care and
sense. Taking the "Federalist" for his guide, and sup-
plying himself with current information, both out of his
own experience and that of Mr. Sumner, Mr. Schurz and
Mr. Caleb Cushing, he has produced a treatise on the
executive power of considerable ability. * * *

M. de Chambrun is of the old school, though not entirely
of the old school. Indeed, we may say that his study of
American politics has brought him to conclusions with

(1) Le Pouvoir Ex6cutif aux Etata-Unls ; Etude de Droit Constitutionnel
Par M. Adolphe de Chambrun. House's Point, N. Y. Imprimg fit public
par John Lovell, 1873.

19

2 OPINIONS OP THE PRESS.

regard to practical questions which are in the main dic-
tated by considerations such as would suggest themselves
to an American ; but there is in the speculative part of his
work sometimes a tendency to treat politics as if it were
an exact science, in the mathematical or perhaps rather
mechanical way which would be pursued through a study
of the resultant forces of human-action — each citizen being
considered as a mechanical unit, governed by political
laws corresponding to those of matter. For example, in
discussing centralization, after referring to Hamilton's
plan of a highly centralized government, and comparing
his views on the subject of popular sovereignty with those
of Jeflferson, the author says, evidently having in mind
existing political facts, that if the country were moving
toward the pit of centralization, it would probably be in
the local state organization that we 'should see the first
indications of it : " It might be that, first at one point, and
then at another, that corruption would insinuate itself in
the local governments; then institutions now vigorous
would be exposed to rapid decay. The day when the peo-
ple were no longer capable of maintaining them in the
plenitude of their force, they would naturally turn their
eyes to the Federal government ; the local governments
having become inadequate to their own needs, would be
driven into demanding of the central power the substitu-
tion of itself for them." In this way the ideas of Hamilton
would jusMfy themselves, (p. 349.) * * *

All discussions about such matters as centralization, " co-
ordinate and independent" powers, or the machinery of
representation, lead to little unless they are preceded by
and based upon a study of the actual condition and history
of the society with reference to which they are carried on.
The truth of this proposition M. de Chambrun thoroughly
recognizes, though he at times lapses from its application.
As an illustration of his perception of this fundamental
truth, we may refer to the wise warning he gives French

OPINIONS OF THE PRESS. 3

readers not to be led away into the belief that because a
Republic has worked well in America, therefore, it is suited
to all other countries. He insists on the unquestionable
fact that the men who founded the government were not
aiming at establishing what now goes by the name of " The
Republic." They had the Republic as little in their minds
as they had the Revolution or the Commune, They
desired to arrange a government which would replace the
government they had overthrown, and they based their
new plan on a lifelong empirical study of the country they
meant to govern. * * * * -s*- *

The truth was that most of the leading men of the time
were sentimentally attached to the English monarchy, and
with regard to forms of government were probably inclined,
like most veteran politicians and statesmen, to look upon
them with a skeptical eye, and to doubt whether Pope had
not after all been right in allotting to fools discussions
about political forms, and to wise men discussions of prac-
tical remedies for evils of administration. It had been the
corrupt and oppressive administration of England, not the
monarchy, for which they had sadly broken with the past.
Another illustration of the same good sense may be found
in M. de Chambrun's mode of treating the proposition to
engraft upon the American system a responsible ministry,
after the English fashion. He points out, as we have often
done in these columns, that a responsible ministry would,
in our system, be utterly incongruous. The English min-
istry is a Parliamentary Committee which has really
absolute administrative power, though it governs in the
name of the crown. In America, the Executive power
being in the hands of an elective and responsible President,
the circumstances are totally different. The erection of a
responsible ministry would increase the power of Congress,
and at the same time diminish that of the President, and
it would completely upset the balance of power estabUshed
by the Constitution. The English system is a gradual

4 OPIMONS OF THE PRESS.

growth of the English constitution, and has no more fitness
for the American Government than the substitution of
French prefects for the governors of States would have.

It is impossible for us to examine in detail all the prac-
tical conclusions at which M. de Chambrun arrives in the
course of his examination of the Executive power. His
discussions include such subjects as the election of the
President and Vice President, the constitution of the exe-
cutive power, the organization of the departments, and the
subordinate official system ; the relations of the President
with Congress ; the right of declaring war (a valuable
chapter) ; the relations of the President with the judiciary ;
the Senate considered as an executive council ; the rela-
tions of the President with the State ; the condition of the
Executive Power under Mr. Lincoln ; and the impeach-
ment of Mr. Johnson.

iliYom the Philadelphia Press— Extracts.']
CHAMBRUN ON EXECUTIVE POWER IN THE UNITED STATES.

Observant Americans have had frequent occasion to
note the difierence in character and style between the
writings of Frenchmen on the United States and those of
Englishmen. Examples exist of some few trivial and ill-
tempered French writers concerning us, like Assollant, for
instance, not possessed of wit enough to impart vitality to
their malice. Meanwhile it is difficult to find, among
English travelers here or English writers at home, any
solid and substantial work on the United States.

* * * * * *4f -x-

We repeat, the works written by Frenchmen on the
United States are of a higher order, and dedicated to the
careful study and candid exhibition of the true character
of society and of government in America. Such is the
spirit of the earliest among the French travelers in the

OPINIONS OP THE PRESS. 5

United States ; for instance, the Due de la Rochefoucald-
Liancourt and M. Brissot de Warville, and it is conspic-
uously apparent in all those of a recent date, such as M.
Ampere, M. Duvergier de Hauranne, and above all, M. de
Tocqueville, whose great work is indeed a classic essay on
the philosophy of government as illustrated in the political
history of the United States. And the same spirit animates
the writings of Frenchmen at home ; as, for instance, the
political and historical writings regarding us from the pen
of M. Edouard Laboulaye, and of Madame Cornelis de
Witt, daughter of M. Guizot, and of M. Guizot himself, the
patriarch of the literature and statesmanship of France.

We now have before us another remarkable work on the
United States, by a Frenchman, lately published, entitled
" Le Pouvoir Ex6cutif aux Etats Unis, Etude de droit Con-
stitutionnel, par M. Adolphe de Chambrun." M. de Cham-
brun has resided many years in Washington, with ample
opportunity to study the institutions of the United States,
not only as they appear on paper, but also in their practical
workings as a living fact, and in this work he has discussed
those institutions in a spirit worthy of his great predeces-r
sor, M. de Tocqueville. * ^ * ^

The work, it is thus perceived, is but the part of a larger
design ; that is to say, the exposition of the political insti-
tutions of the United States as a whole, the present publi-
cation disposing only of so much as relates to the Execu-
tive Power. The introductory chapter tends to show that
the author may also have had in view the special purpose
of enlightening his countrymen on the particular question
of how far the republican institutions of the United States
are capable of adaptation to France.

All these important and interesting subjects are discussed
by M. de Chambrun on careful consideration of the perti-
nent political and juridical literature, and with the same
acute and discriminating comprehension of the actualUiea

6 OPINIONS OF THE PRESS

of the subject which distinguish tlie great wor-k of M, de
Tocqueville, and which are also perceptible in the instruc-
tive work of M. Bagehot on the British constitution.

M. de Chambrun's book is one which every American
may read with pleasure, because of the candor and good
faith with which it is written, and with profit, because of
its complete and acute analysis of our institutions, notwith-
standing its more particular application to the great ques-
tions of public policy which are now undergoing discussion
in France.

[Extracts from notice of the Baltimore Oazette.]

WHAT A STRANGER THINKS.

We have had an opportunity of examining a very curious
and interesting publication. It is a tract, as it were, a
"study" of a single constitutional theme — "Executive
power in the United States." It is written in French, the
author being M. de Chambrun, an attach^ or counselor of
the French Legation at Washington. As the produc-
tion of an observant and intelligent foreigner, it is very
curious indeed. It purports to be one of a series of essays
on the Federal Constitution, but is, in itself, perfect and
complete, and, beginning literally at the beginning, it shows
us what, in the judgment of a stranger. Executive prerog-
ative has grown to be. It is strictly seeing ourselves as
others see us. The theory of the book may be easily stated.
Assuming the ground that the secret of the decay or deca-
dence of written Constitutions has been in the effort to
provide with logical precision for all conceivable contin-
gencies, M. DE Chambrun asserts that the vitality of ours
is due to its looseness, its accommodating capacity ; and of
this he finds a notable illustration in the provisions as to
the Executive. Years ago Judge Upshur, in his admirable
essay in reply to Story's latitudinarianism, detected this
looseness of phrase, but, being a strict constructionist,

OPINIONS OF THE PRESS. 7

denounced it as a defect, opening the door to great abuse.
The French writer, naturally enough, regards it as a merit
and tracing our story from Washington's Neutrality Pro-
clamation— which was not authorized by any letter of the
Constitution — down to Mr. Lincoln's re-construction
experiment, endeavors to show, and in some instances
does show, the conservative effect of this very exorbitance.
The chapter on the Washington foreign policy, and espec-
ially the difficulty with Genet and revolutionary France,
is one of the most interesting portions of this pleasing
volume. Reading it, one cannot fail to be impressed by the
contrast between the French student's almost reverential
tone with reference to our past, and the flippant, icono-
clastic style of the Englishman, who periodically "does"
our history for New England's leading magazine. The
portion of M. de Chambrun's volume which one reads
with most interest is that which relates to Executive power
as exercised without resistance by Mr. Lincoln, and
attempted unsuccessfully by his immediate successor.

The story of the Lincoln and Johnson reconstruction
experiments is very cleverly told. Much more is implied
than is distinctly stated, as, for instance, when, without the
expression of an opinion of his own, M.deChambrun quotes
at length Thaddeus Stevens' venomous speech in 1867.

There is on all these questions and subjects a dispassion-
ate and meditative air in this book that is at once winning
and impressive. It is a valuable contribution to the politi-
cal literature of the times, and, as such, from a stranger's
open, we are glad to be among the first to welcome it.

[Appleton^s Journal.]

An opportune work at this time of the formation of re-
publican governments in Europe, is that just published by
the Marquis Adolphe de Chambrun, " On the Executive

8 OPINIONS OF THE PRESS.

Power in the United States" {Le Pouvoir Executif aux Etats-
Unis, Etude de Droit Constltutionnel) . So many changes have
taken place in American politics since the publication of
M. de Tocqueville's celebrated work, that a supplement to
it has become indispensable for the proper understanding
of the present status of our constitutional law ; and M. de
Chambrun, having made American institutions the special
object of careful investigation, has acquired admirable
^qualifications for undertaking this task, and acquits him-
self of it in a very creditable manner, bringing to bear upon
his labors a dispassionate and dignified spirit of inquiry,
statesmanlike and judicial views, and the ^most friendly
disposition toward the American people. M. de Chambrun
abstains from a discussion of the vast ethnological and
psychological changes which have revolutionized the so-
cial fabric of this country, since from a few million of
European settlers, chiefly of the Anglo-Saxon stock, in
whom a vigorous moral mettle predominates to a favora-
ble extent over merely personal aims of life, the popula-
tion has reached nearly forty million, chiefly recruited
from Europeans, who abruptly pass here from pauperism
to a life of affluence and luxury, and hence are more de-
voted than the early settlers to exclusively individual in-
terests. To this social revolution, which may account for
many of the present phenomena in public life, M. de Cham-
brun could not possibly advert as within the scope of his
researches, which, as the title of the book modestly avers,
is confined to an essay on constitutional law, and deals ex-
clusively with political formulae, laws, and practices. Yet
in the narrower scope which he has himself assigned to his
researches, he has achieved a great success by throwing
light upon many political and constitutional indications
and episodes which heretofore were obscure, especially to
the European mind, and by examining, with nice discrimi-
nation and a religious regard for standard American au-
thorities, the new complexion of public affairs as created

OPINIONS OP THE PRESS. 9

by the civil war; the abolition of slavery ; the reconstruc-
tion of the Southern States ; the greater tendency toward
centralization ; and the proposed substitution of a direct
popular vote for electoral colleges in presidential elections;
the proposition to extend the presidential term to six
years, and to confine each president to one term instead
of making him reeligible after four years' tenure of office ;
the doctrine of neutrality in foreign affairs ; the influence
of conventions or packed partisan assemblies upon the ex-
pression of the popular will, and by many other peculiar
circumstances. M. de Chambrun has arranged his work
with great tact, so as to make it useful as a book of refer-
ence, and as such it cannot but prove of the highest value
to statesmen and constitutional lawyers, as well as to stu-
dents of American institutions, and especially to those
embryo republicans in France and Spain who begin to make
experiments in that peculiar political structure which, in
this country, though only one hundred years old, seems
to possess already all the characteristics of advanced age.
The work opens with an introduction, and consists of
twelve chapters. It is written in a concise and clear style,
making it very readable even to those who would perhaps
not enjo}'-, to the same extent, more intricate specimens of
the French language. (Published by John Lovell, Eouse's
Point, New York, 1873.)

ilTie World.— Extracts.']
EXECUTIVE POWER.

Le Pouvoik Exkcutib' aux Etats-Unis— Etude de Droit Constitu-
TiONNKL. Par M. Adolphe De Chambrun. Rouse's Point, N. Y. :
Imprimg et Public par Jolin Lovell. 1873. 8vo pp,. 359.

There are two prominent thoughts the reading of this
exceedingly clever volume suggest which we cannot, on
the threshold of criticism, refrain from expressing. How
utterly unsound and illusory is the notion — a sort of inher-

10 OPINIONS OF THE PRESS.

itance from our ancestors — that no one can write a scientific
treatise upon constitutions and laws expressed in English
but one who speaks and writes the English language. We
.are apt to forget that De Lolme was a Frenchman or Swiss.
Here, too, in M. de Chambrun's volume we have a perfectly
scientific " study" of a single constitutional function of our
government, expressed in the most precise language,
founded on a careful examination of authorities which are
exactly given, and evolving with distinctness the results to
which attentive study has led. It is indeed purely a polit-
ico-philosophical evolution, in which, without effort, the
reader accompanies the writer to his conclusion. The other
suggestion prompted is this : How immeasurably inferior
is what may be termed our subordinate diplomacy — our
secretaries of legation and attach6s — to those of other
nations. * * -x- •«• -s^- * *

The author has gone laboriously to study the philoso-
phy, theoretical and practical, of this government, seeking
information everywhere: and the ripened fruit is the be-
ginning and a promise of the best and most scientific essay
on the Constitution that has yet appeared. This, too,
under circumstances of embarrassment and diflficulty with
reference to matters at home which were quite sufficient
to disarm any less resolute student. * * *

He tells us in his " advertisement" that this modest
"monograph" on executive power is but one of a series
yet in progress, which will only be complete when it shall
have treated of " national sovereignty" (we quote his exact
words) " and constituent power of the legislative function
and of the judiciary." This, then, is strictly a tentative
publication. * * ^f ^t * *

It is by no means easy, within our narrow newspaper
limit, to do justice to M. de Chambrun's " evolution." His
preliminary chapter describes the origin of the growth, one
branch of which he strives to illustrate. He feels the per-
plexity as every one must, in detecting in revolutionary

OPINIONS OF THE PRESS. 11

revelations the germ of " a republic." " It is," nays he,
" singularly difficult to find in the writings of the time a
satisfactory explanation of the manner in which ' a repub-
lican form of government' was first adopted in the United
States. A few years before his death, Mr. Jefferson took
pains to prepare a memoir, in which he told the part he
had in the struggle of the thirteen colonies— in the Decla-
ration of Independence, and the events which followed it.
The word ' republic^ is not once mentioned in this work." M. de
Chambrun dwells largely on the modes of Presidential
election and its obvious deficiencies, taking what we may
now assume to be the popular view of the failure of the
Electoral College machinery and the misery of party dom-
ination through the enginery of national conventions. We
have not room to notice further M. de Chambrun's initiate
chapters, hastening to one (seventh) on what is termed
"Federal Administration," which is capital. He dissents
from Judge Upshur's view, who thought, as with prescience
of to-day, the Constitution defective in that it used terms
with reference to the President which left him at liberty (we
quote exactly) "to neglect his duties and enlarge his
powers." M. de Chambrun sees a merit in this, and reason-
ing, as he evidently does, from the case of our civil war
experience, perhaps he is right. "Why," says he (184),
" have so many written constitutions, monarchical and
republican, been shipwrecked? Simply because they have
been framed with such logical accuracy that their authors
thought they had provided for all contingencies." We
still doubt over this latitudinarianism, and pass on. The
section of this chapter on Washington's policy of neutrality,
which M. de Chambrun regards as an illustration of the
necessity and advantage of an executive stepping beyond
the lines of prescribed power, is really admirable. We can
but allude to it in passing. Of the same merit is that on
" The Senate considered as an Executive Council," especi-
ally with reference to treaties. * * * *

12 OPINIONS OF THE PRESS.

" The Committee of Foreign Relations," says M. de Cham-
brun, " has always been composed of eminent Senators,
and generally has been presided over by statesmen of the
first rank. It is enough to mention the names of John
Forsyth and Charles Sumner to show with what jealous
care the Senate at critical periods has chosen those to
whom functions so important and delicate were to be
intrusted. It is under them, and thanks to them, thanks
during late years to Charles Sumner, that the Committee
has played the first part in the history of the foreign afiairs
of the Union. In the midst of the crises which the United
States have encountered he has contributed to maintain
the policy founded by Washington; and if occasionally the
executive power has seemed to go too far, the Committee
has known how to restrain and check it." (p. 249.)

In his chapter on the " Relations of the President to the
States" we recognize M. de Chambrun, with very slight
exceptions, such as in his remarks on conscription, holding
to sound inter-Federal-Democratic doctrine. Conscious
that we have drifted to the very edge of the limits which
confine us, we can do little more than direct the reader's
attention to one of the closing chapters — that on " What
Executive Power Became Under Mr. Lincoln." It is very
well done and full of interest. ^t * * *

M. de Chambrun's volume, either in the original or in
'the translation which we learn is projected, deserves the
considerate judgment of all American readers.

[From The Capilcd— Extracts.]

Lb PouvoiR ExECUTiF Aux Etats Unis— Utude de Droit Constitu-

TiONNKi/. Par M. Adolphb db Chambrun.

M. de Chambrun has given us a book on constitutional
law, as applied to the Executive Power as' administered in
the, United States, which will doubtless be carefully studied
and well received in France at this moment, where all

OPINIONS OF THE PRESS. 13

questions relative to the organization of the Executive
authority are of great import.

Since the remarkable political and philosophical work of
M. de Tocqueville, no book has appeared written by a for-
eigner which so ably treats of the peculiar features of our
government, which so clearly discerns w^here danger im-
pends, or so candidly appreciates the far-reaching states-
manship that laid a foundation broad and deep enough to
survive the shocks of nearly a century, and yet at this mo-
ment presents to the world an almost unparalleled great-
ness. It is said that M. de Tocqueville was guided and
enlightened in his observations when amongst us by the
masterly minds of Judge Story and John Quincy Adams ;
and in like manner, the Marquis de Chambrun has been
assisted in arriving at his very just conclusions by the eru-
dition and the vast attainments of those eminent men, Mr.
Caleb Gushing and Mr. Senator Sumner. But the guidance
of a mentor does not of itself produce wisdom ; and, after
all due acknowledgments are made, we must continue to
admire the philosophical conclusions of a de Tocqueville and
thejust perceptions of M. de Chambrun. It is greatly to
be regretted that a translation of the work has not
appeared simultaneously with the original. Our reading and
thinking public would appreciate some remarks evincing
surprising penetration, a careful study of the philos"ophy
of history, and the acumen of a legal mind applied to the
close study of our form of government.

The author very justly observes that in the creation of
the republic those institutions were chosen by its founders
which best adapted themselves to the national traditions
and the public sentiment of the country ; that had it been
othervnse success could not have crowned the eflfort. This
observation seems sim.ple enough, yet it is really very pro-
found. For we Constantly fail to appreciate this very fact
when we ask to have our institutions indiscriminately ap-
plied to other countries. Our politicians often raise a great

14 OPINIONS OF THE PRESS.

hue and cry to have a republic declared, the moment any
explosion occurs from out the seething volcano of any one
of the governments of the old world. How inconsequent!
We carry our constitution about the world like a bed of
Procrustes, and attempt to fit to it the eflete limbs of all
other nations ! This is a sort of Sangrado treatment, which
would doubtless prove fatal to as many legal constitutions
and bring about as copious blood-letting as the old quack
ever indulged in. Have we ceased to be a political experi-
ment ourselves? Can we boast of an autonomy so perfect
that we can without empiricism prescribe for all others who
are sick or ill at ease ?

Our author very clearly and gravely explains the various
manipulations of political parties, the modus by which they
make great m.en, nominate the leaders, and carry on presi-
dential campaigns. All this is decidedly more instructive
than agreeable for a loyal republican, a lover of " equal
rights," to contemplate. Viewed in this -nirror, we behold
our " dear public" dancing like a merry scl of manikins to
the skillful wire-pulling of a few daring men.

The remarks of our author are instructive as regards the
position held by the Vice-President, and the various causes
which would be likely always to produce a change of the
policy of the administration on his accession as first mag-
istrate.

We have also presented a careful analysis of the com-
plex powers confided to the Executive, of the inherent
powers vested as a whole, a synthetic view of the Execu-
tive relations toward Congress, as well as toward the Judi-
ciary and the Senate, as co-ordinate ; also relatively to the
States, in which the not infrequent struggles between the
executive and the legislative power are explained. He
shows that in these contests the Executivevhas invariably
triumphed. Even when Andrew Johnson was impeached
there was failure of conviction ; and although it seemed for

^ OPINIONS OF THE PRESS. 15

th€ moment that the power of the Executive had been
lessened, yet it soon became stronger than ever in the suc-
ceeding administration of General Grant.

In view of all the facts he considers " the Executive Power
w independent." As to the duration of our institutions, this
must depend, of course, upon the virtue of the masses.
Whenever demoralization reaches the primal source, we
must experience either such an increase of centralized
power as to cease to be a republic, or we will be subjected
to an irresponsible mob law. According to the exposition
of M. de Chambrun the people will rather, in such a de-
plorable eventuality, incline to support an increase of Ex-
ecutive authority, so as to avoid the greater evil.

There are other nice points which have not escaped the'
critical investigations of this able jurist, but which want
of space forbids us to indicate.

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