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Full text of "Our chief magistrate and his powers"

Columbia &nifcer*itjj lectures 



OUR CHIEF MAGISTRATE AND HIS 
POWERS 

GEORGE BLUMENTHAL FOUNDATION 
1915 






COLUMBIA UNIVERSITY PRESS 
SALES AGENTS 

NEW YORK: 

LEMCKE & BUECHNER 
80-82 "WEST 27ra STEKBT 



HUMPHREY MIO-ORD 
AMEN CORNER, E.G. 



COLUMBIA UNIVERSITY LECTURES 



OUR CHIEF MAGISTRATE 
AND HIS POWERS 



BY 
WILLIAM HOWARD TAFT 

TWENTY-SEVENTH PRESIDENT OF THE UNITED STATES 





COLUMBIA UNIVERSITY PRESS 

1916 

All rights reserved 



COPYRIGHT, 1916, 

BY COLUMBIA UNIVERSITY PEE88. 



Set up and electrotyped. Published May, 1916. 



J. 8. Cashing Co. Berwick & Smith Co. 
Norwood, Mass., U.S.A. 



PREFACE 

THE six chapters included in this book were originally 
delivered by Mr. Taft at Columbia University, during the 
winter session of 1915-16, as the Blumenthal Lectures, 
under the general title : " The Presidency, Its Powers, 
Duties, Responsibilities and Limitations." With this 
title, in accordance with the usual custom, they were also 
presently announced by the Columbia University Press 
as a forthcoming publication. 

Since a similar title had already been given to a course 
of three lectures delivered by Mr. Taft at the University 
of Virginia, in the academic year 1914-15, the publication 
of which had been undertaken by Charles Scribner's Sons, 
the title of this volume has been changed, at the author's 
suggestion, to its present form. 



CONTENTS 

CHAPTER I 

PAG* 

DISTRIBUTION OF GOVERNMENTAL POWERS .... 1 
THE VETO POWER 14 

CHAPTER II 
THE MINOR POWERS OF THE PRESIDENT 29 

CHAPTER m 
THE POWER OF APPOINTMENT 55 

CHAPTER IV 

THE DUTY OF THE PRESIDENT TO TAKE CARE THAT THE LAWS 

ARE EXECUTED 78 

THE POWER AND DUTIES OF THE PRESIDENT AS COMMANDER- 
IN-CHIEF 94 

CHAPTER V 

THE FOREIGN POWER 104 

THE PARDONING POWER 118 

CHAPTER VI 
THE LIMITATIONS OF THE PRESIDENT'S POWERS . . . 125 

INDEX. 159 



vii 



CHAPTER I 

DISTRIBUTION OF GOVERNMENTAL POWERS. THE 
VETO POWER 

THE framers of our Constitution were much affected 
by Montesquieu's appreciation of the English Con- 
stitution and his insistence upon a division of the 
government into Legislative, Executive and Judicial 
branches and a separation of one from the other, 
as the best security for civil liberty. They, thus, 
made this division and separation more clearly marked 
and rigid than in the British Constitution. In a way 
that I shall attempt to describe later, there was es- 
tablished the power of the Judicial branch, by its 
decisions in litigated cases, to construe the limitations 
on the Executive and Legislative powers contained 
in the Constitution and thereby through the moral 
influence and force of its judgments to affect the 
future action of the Executive and the Congress, and 
restrain them within the limits of the fundamental 
law as declared by it. But these judgments of the 
Supreme Court can only be rendered in actual and 
litigated cases, in which one individual has sued 
another and in which generally some constitutional 
right of an individual is infringed by Legislative or 
Executive action. There is in the scope of the juris- 
diction of both the Executive and Congress a wide 
field of action in which individual rights are not af- 
fected in such a way that they can be asserted and 

l 



2 OUR CHIEF MAGISTRATE 

vindicated in a court. In this field, the construction 
of the power of each branch and its limitations must 
be left to itself and the political determination of the 
people who are the ultimate sovereign asserting them- 
selves at the polls. Precedents from previous ad- 
ministrations and from previous Congresses create 
an historical construction of the extent and limitations 
of their respective powers, aided by the discussions 
arising in a conflict of jurisdictions between them. 
The field of action by the Executive is perhaps less 
subject to judicial interpretation than that of Con- 
gress. Most legislation of doubtful validity in one 
way or another ultimately comes before the Court. 
And so the limitations of Congress may be much 
more fully studied in the Supreme Court Reports 
than those of Executive action. This makes the 
definition of Executive power somewhat more diffi- 
cult, and somewhat less within the usually trodden 
path of students of constitutional law, than that of 
Congress. By actual experience in the exercise of 
Executive power, one must acquire some familiarity 
with precedents not set forth in treatises and not 
elaborately and carefully discussed in judicial deci- 
sions. In the necessary paucity of living ex-Presi- 
dents, therefore, my empirical knowledge of the extent 
and limits of our national Executive power makes 
me venture to ask your attention to the subject of 
these chapters. 

The question of the Presidency, its duties, its re- 
sponsibilities and its limitations, ought perhaps to 
be settled not in the heat of the issues that constantly 
arise for the decision of the incumbent, but rather in 



DISTRIBUTION OF POWERS 3 

the careful study from an unbiased standpoint of the 
historian and the jurist. Still no such determination 
will be a fair one that does not give some weight to 
the practical considerations that crowd upon one 
charged with executive responsibility. I may add, 
on the other hand, that retirement from office to a 
place of study and contemplation, rather than of 
action, modifies somewhat the views formed, dum fervet 
opus. This, I think, is significant of the value of hav- 
ing, from tune to time, the constitutional limitations 
upon the Executive power interpreted by another 
branch of the government than that to whose action 
they apply. 

The inefficient performance of their executive func- 
tions by the Continental Congress and the ad interim 
committee of that Congress, no one can doubt who 
will read the correspondence of Washington during 
the Revolution, or observe the stagnant chaos there 
was after independence was won. The example of 
the one-man power under George III, which he main- 
tained by his corrupt control of Parliament, made 
the Convention doubtful as to the methods by which, 
and the persons through whom, the Executive power 
should be exercised. Roger Sherman, representing 
a minority, thought that the Executive should be the 
mere agent of the Legislature to carry out their will, 
and others thought that the Executive should not 
only thus be controlled, but in order to protect against 
abuse of powers, it should be vested in a number of 
persons. Randolph of Virginia is understood to have 
supported this view. Hamilton, at the other extreme, 
thought that the Executive should be single, should 



4 OUR CHIEF MAGISTRATE 

be elected for life, and should be given ample powers 
independent of the Legislative branch and absolute 
power to veto its enactments. The happy result 
which was reached between the two extremes is only 
one of the many instances of the triumph of clear- 
headed common sense, wise patriotism and the personal 
sacrifice of cherished notions, which we find in the 
compromises embodied in our wonderful Constitution, 

The result in respect of the Executive, as you know, 
was that the President was to be elected for a term of 
four years, by an electoral college elected by the people 
of the states, or in such manner as the legislature of 
each state might provide, and was given wide powers, 
not rigidly limited, including the power of qualified 
veto, under which he could prevent any bill from 
becoming law unless it could subsequently be passed 
over his veto by a two-thirds vote in each House of 
Congress. 

I am strongly inclined to the view that it would 
have been a wiser provision, as it was at one tune 
voted in the Convention, to make the term of the 
President six or seven years, and render him ineligible 
thereafter. Such a change would give to the Executive 
greater courage and independence in the discharge of 
his duties. The absorbing and diverting interest in 
the reelection of the incumbent, taken by those Federal 
civil servants who regard their own tenure as dependent 
upon his, would disappear and the efficiency of ad- 
ministration in the last eighteen months of a term 
would be maintained. 

I think, too, it would have been better to bring the 
Executive a little closer in touch with Congress in 



DISTRIBUTION OF POWERS 5 

the initiation of legislation and its discussion, notably 
in the matter of budgets and the economical adminis- 
tration of governmental affairs. The great problem 
that is forcing itself upon the attention of the American 
people is the method of restraining the extravagance 
of legislatures and of Congresses. The people them- 
selves are largely to blame for this, not the people 
as the whole, but the people divided into districts, 
because the constituencies of members of Congress 
and of Senators stimulate their representatives in a 
competitive effort to get as much money out of the 
public treasury for their respective districts as possible, 
and are prone to decline reelecting representatives who 
fail in this contest. I have not time to dwell on the 
enormous burden that this selfishness of the people 
of each district and of their representative imposes 
upon the government and upon all the people. The 
waste of money in river and harbor bills, in public 
building bills, in the establishment of army posts and 
of navy yards at places selected, not because they 
are most useful to the army and navy in the economic 
administration of military and naval defenses, but 
because they are in favored districts, have had much 
to do with the increase by leaps and bounds of our 
actual governmental expenditure. Every other gov- 
ernment but ours has what is called a budget system. 
It was best developed perhaps in the English system 
of government, and its historical growth is interesting 
to trace and is useful in order to point the way to the 
curbing of legislative extravagance. I do not mean 
to say that the heads of bureaus and even the heads 
of departments in the Executive branch may not be 



6 OUR CHIEF MAGISTRATE 

prone to extravagance, but the result of my experience, 
which I am sure is borne out by the conclusion of 
others, is that the Chief Executive, because he is the 
one whose method of choice and whose range of 
duties have direct relation to the people as a whole 
and the government as a whole, is most likely to feel 
the necessity for economy in total expenditures. It 
is true of the governor of a state, as it is of the Presi- 
dent of the United States. Those who are least 
moved by anxiety as to the totals are the members of 
the Legislative branch who are struggling to get as 
much money as they can out of the general treasury 
for their respective local constituencies. 

In English history, the King and his Ministers ran 
the government, and the early struggle of Parliament 
was to restrain the King. The Commons of England 
by hard effort finally confirmed to themselves the power 
to refuse to the King money which he asked to carry 
on the government of the Kingdom. He came before 
them and said, "I need and request this much money 
to discharge the duties of the Crown," and the Com- 
mons scrutinized his demands, and frequently in the 
giving exacted from him conditions and limitations. 
More than two centuries ago, in the government that 
thus grew up, there was adopted a rule in Parliament 
that no member could be heard to move for an increase 
in the supplies and none would be granted unless asked 
by the Crown. In other words, the Crown was ask- 
ing the Commons for money, and the function of the 
Commons was to examine the merit of the request 
and to cut down from the supplies asked, without 
power to increase them. The due course at the present 



DISTRIBUTION OF POWERS 7 

day is for the Crown through its Ministers and Parlia- 
ment to submit for discussion the supplies that each 
department of the government needs, to have such 
supplies voted by Parliament, without any increase. 
After the supplies have been voted, it becomes the 
duty of the Ministers of the Crown to propose to 
Parliament through the Chancellor of the Exchequer the 
budget, that is, a statement of the total proposed ex- 
penditure and of the means by which the revenue is to 
be raised with which to meet the cost. In this way the 
extravagance on the part of Parliament is avoided, and 
the government takes over the responsibility for econ- 
omy and efficiency in government. Of course Parlia- 
ment has the general legislative power, and it may pass 
laws imposing upon the Crown new duties of adminis- 
tration requiring the appropriation of additional funds 
to discharge these new duties. The Crown must sub- 
mit an estimate for this increase. I have been perhaps 
more detailed in this statement than I ought to have 
been in this connection, for the reason that your 
late Constitutional Convention has grappled with the 
question and attempted to solve it in the proposed 
amendments to your Constitution upon this head. 
It is one of the most important steps of progress that 
has been taken in constitutional law in this country. 
In all the wild fads and nostrums that we find set 
forth in recent constitutional amendments adopted 
in various states, this stands out as a shining light of 
hope and a vindication of optimism. If New York 
succeeds in adopting this system, by which the governor 
submits estimates and a budget of expenditures and 
proposed revenues, and the legislature of New York 



8 OUR CHIEF MAGISTRATE 

is forbidden to increase the estimates by him sub- 
mitted, the alarming expenditure and extravagance 
of government expenses will be halted, and this with- 
out in any degree reducing the proper legislative 
control of the general scope and extent of governmental 
action and expenditure. Upon the governor and 
those associated with him will be placed the responsi- 
bility for running that government which the legis- 
lature has provided by law, as efficiently and economi- 
cally as it can be done, and the inconsiderate selfishness 
of local constituencies will be defeated. Success of 
this system in New York will, I doubt not, lead to a 
similar reform in the government at Washington. 
Now not only is Congress unlimited in its extravagance, 
due to the selfishness of the different congressional 
constituencies, but Congress as a whole and each 
House as a unit have by committee government de- 
liberately parted with any actual efficient control of 
the total annual expenditures from the public treasury. 
Nor has Congress earnestly cooperated in the past 
with the Executive in efforts to secure a more economical 
organization of the government and the elimination of 
duplication of functions and greater saving and effi- 
ciency in the departments. I think, therefore, that 
our Federal Constitution might be improved in im- 
posing the duty of framing a budget on the Executive 
and limiting the power of Congress in the voting of 
appropriations, so that it may give all that the Executive 
asks to run the government as organized by Congress 
through general laws, and may not have the specific 
power to increase the appropriations which the Execu- 
tive says on his oath and his responsibility are enough 



DISTRIBUTION OF POWERS 9 

to carry on the government duly established by 
Congress. 

As every President has to do, I made many addresses, 
and the gentleman who introduced me, by way of 
exalting the occasion rather than the guest, not 
infrequently said that he was about to introduce one 
who exercised greater governmental power than any 
monarch in Europe. I need hardly point out the 
inaccuracies of this remark, by comparing the powers 
of the President of the United States with those of 
the rulers of countries in which there is not real popu- 
lar legislative control. The powers of the German 
Emperor, of the Emperor of Austria, and the Emperor 
of Russia are far wider than those of the President of 
the United States, although there are in each of those 
countries legislative bodies with members more or 
less representative of the people, with some power of 
governmental control. On the other hand, in really 
parliamentary governments, the head of the state is 
less powerful than our President. In England, as it 
is, the King reigns, but does not govern, and the same 
thing is true in the Dominion of Canada, of the Gov- 
ernor-General. In France, the President presides, but 
does not govern. In such parliamentary governments, 
however, there is a real ruler who exercises in some 
important respects a greater power than the President 
of the United States. He is the leader of the majority 
in the popular house and remains in office only as 
long as he has that majority behind him. He is the 
premier, and exercises both executive and legislative 
functions. The executive head of the state, whether 
King or President or Governor-General, follows his 



10 OUR CHIEF MAGISTRATE 

recommendation in executive work, and he with his 
colleagues in the Cabinet, as responsible Ministers 
so-called, controls the legislation. 

It would be idle to discuss which is the better form 
of government. It may be generally said that those 
who have a parliamentary or responsible government, 
as it is called, like that form, and that we like our form. 
Ours is more rigid, in that it divides the Executive 
from the Legislative, but is like parliamentary govern- 
ment in that in both the Judicial branch is independent 
of the other two. It is often said that parliamentary 
government is more responsive to the will of the people 
than ours in which we have the rigid system of an 
election of the President every four years and of a 
Congress every two years; whereas whenever public" 
opinion changes in a parliamentary or responsible 
form of government, the government changes accord- 
ingly. This is hardly accurate. The parliamentary 
government is responsive to the views of the majority 
of the members of the more popular house, and if 
those views do not change, and that majority con- 
tinues to support the existing Ministers of the Crown 
who have been selected from its members, the govern- 
ment will last as long as the law permits it to last. 
Until recently the period was seven years in England 
and is now five years. This majority in the popular 
house, the House of Commons, is always elected in a 
bitter political controversy and the members of the 
majority are always elected as political partisans. 
They and not the people must change their views if 
the political character of the government is to change. 

It is true, that when a government in England gets 



DISTRIBUTION OF POWERS 11 

its power from a majority in the House of Commons, 
made up not of all the members of one party, but of 
the members of one party, united with those of smaller 
groups of members representing a class or special in- 
terest, then changes in the parliamentary management 
are likely to be more frequent. In the present Parlia- 
ment, there is the Liberal Party, the Irish Party and 
the Labor Party. The two latter are groups, small in 
number as compared with the Liberal Party, but 
needed in making up the Ministers' majority. This 
gives the groups holding the balance of power an 
opportunity to force measures in their special interest, 
that as separate issues might not be approved by a 
majority of Parliament or of the voters of the King- 
dom, a condition which is not conducive to the best 
considered legislation. 

It is true that a parliamentary government offers an 
opportunity for greater effectiveness in that the same 
mind or minds control the executive and the legislative 
action, and the one can be closely suited to the other ; 
whereas our President has no initiative in respect to 
legislation given him by law except that of mere recom- 
mendation, and no method of entering into the argument 
and discussion of the proposed legislation while pending 
in Congress, except that of a formal message or address. 
To one charged with the responsibilities of the Presi- 
dent, especially where he has party pledges to perform, 
this seems a defect, but whatever I thought while 
in office, I am inclined now to think that the defect 
is more theoretical than actual. It usually happens 
that the party which is successful in electing a Presi- 
dent is also successful in electing a Congress to sustain 



12 OUR CHIEF MAGISTRATE 

him. The natural party cohesion and loyalty, and a 
certain power and prestige which the President has 
when he enters office, make his first Congress one in 
which he can exercise much influence in the framing 
and passage of legislation to fulfil party promises. 
The history of the present administration and that 
of many administrations bear me out in this. But it 
is said that not infrequently the second Congress of an 
administration contains a majority politically adverse 
to the President in either one or both of its Houses which 
makes affirmative legislation impossible and limits con- 
gressional action to appropriation bills and non-political 
measures, if there are any such. The President in such a 
case naturally chafes under his inability to put through 
important bills, which he deems of the highest value. 
On the whole, however, I do not think the country 
suffers from this in an age and generation when the 
bane of political methods, and the danger to the best 
interests of the country, is in the overwhelming mass 
of ill-digested legislation. We live in a stage of politics, 
where legislators seem to regard the passage of laws 
/as much more important than the results of their 
'enforcement. The value of the legislation seems not 
to be in the good of its operation, but in its vote- 
getting quality, and its use as molasses for the catch- 
ing of political flies. Therefore, a system in which 
we may have an enforced rest from legislation for 
two years is not bad. It affords an opportunity for 
proper digestion of recent legislation and for the 
detection of its defects. 

Real progress in government must be by slow stages. 
Radical and revolutionary changes, arbitrarily put 



DISTRIBUTION OF POWERS 13 

into operation, are not likely to be permanent or to 
accomplish the good which is prophesied of them. 
My observation of new reform legislation of a merito- 
rious character is that Congress and its members must 
be educated up to its value by those who have studied 
it and become convinced of its wisdom. It will be 
found that much of the good legislation that has gone 
on to the statute book has been pending before suc- 
cessive sessions of Congress and successive Congresses 
until Congress and the public have become familiar 
with the reasons for its adoption, until discussions 
lasting over from one Congress to another have sub- 
jected the proposals to useful scrutiny and amend- 
ment, and until it thus acquires a form that Congress 
is willing to adopt. Sessions therefore at which legis- 
lation is not finally adopted, in which there is much 
discussion of proposed legislation, may often be most 
useful to the public, both in defeating legislation which 
ought not to be enacted and in framing for future 
adoption legislation which will be useful. The pro- 
vision in some legislatures, Massachusetts especially, 
that every bill which is introduced must be considered 
or defeated or passed is not in my judgment a useful 
provision. It is apt to give unripe laws by forcing 
undigested and premature expression of opinion in 
the votes of legislators. Bars in music are used in 
the maintenance of harmony, and contribute to the 
comfort of the auditor. The world is not going to be 
saved by legislation, and is really benefited by an 
occasional two years of respite from the panacea and 
magic that many modern schools of politicians seem to 
think are to be found in the words, "Be it enacted." 



14 OUR CHIEF MAGISTRATE 

The President has both legislative and executive 
power. Among his executive functions we shall find 
those which are purely executive and those which are 
quasi-legislative and are quasi-judicial. 

The character of the veto power is purely legislative. 
The Constitution provides that after both Houses 
shall have passed a bill, it shall be presented to the 
President ; that if he approve it, he shall sign it, but, 
if not, that he shall return it, with his objection, to 
the House in which it originated, which shall proceed 
to reconsider it ; and that if two-thirds of the House 
agree to pass the bill, it shall be sent with the objec- 
tions of the President to the other House, where it 
shall be reconsidered, and if approved by two-thirds 
of that House, it shall become a law. 

It has been suggested by some that the veto power 
is executive. I do not quite see how. Of course the 
President has no power to introduce a bill into either 
House. He has the power of recommending such 
measures as he shall judge necessary and expedient 
to the consideration of Congress. But he takes no 
part in the running discussion of the bill after it is 
introduced or in its amendments. He has no power 
to veto parts of the bill and allow the rest to become a 
law. He must accept it or reject it, and his rejection 
of it is not final unless he can find one more than 
one-third of one of the Houses to sustain him in his 
veto. But even with these qualifications, he is still 
a participant in the legislation. Except for his natural 
and proper anxiety not to oppose the will of the two 
great legislative bodies, and to have harmony in the 
government, the reasons which control his action 



THE VETO POWER 15 

must be much like those which affect the action of 
the members of Congress. 

A discussion of the veto power by Mr. Edward Camp- 
bell Mason, in a Harvard publication, gives an inter- 
esting view of its origin. The author expresses the 
opinion that the veto is the result of the shrinking of 
what was once a broad affirmative legislative function 
of the King. He says that in early days laws were 
enacted on a petition of Parliament to the King, asking 
for legislation, and that the law became effective by 
the King's proclamation declaring the law as he wished 
it to be. For a long period the King did not confine 
himself to the request of Parliament in their petition ; 
but on the occasion of each request through his proc- 
lamation exercised the affirmative power of formu- 
lating laws. As Parliament acquired greater influence 
they resented the King's proclaiming something differ- 
ent from that which they requested. They therefore 
presented to the King the proposed statute drawn in 
proper and exact terms and successfully resisted his 
giving it new form and substance. He was thereafter 
required to proclaim the legislation as requested or 
veto it. His function in legislation thus became one 
of negation only. It has been contended that the 
President may not exercise the veto power except 
when the bill presented to him is unconstitutional. 
Such a view of his duty is supposed to find color of 
support in a proposal made and strongly advocated in 
the Constitutional Convention. It provided for the 
revision of bills which had passed both Houses by a 
Council, to include the President and the Supreme 
Judges, with the power to reject bills which had passed 



16 OUR CHIEF MAGISTRATE 

both Houses when they transgressed the constitutional 
limits of Congressional discretion. It cannot be said, 
however, that the provision for the Executive veto 
as adopted in the Constitution implies any such limi- 
tation. It is true that the power is one of negation 
only, but the history of its origin shows that even in 
its qualified form, it is legislative in its nature, a brake 
rather than a steam chest, but nevertheless a very 
important part of the machinery for making laws. 
The Constitution makes the President's veto turn on 
the question whether he approves the bill or not. 
The term "approve" is much too broad to be given 
the narrow construction by which it shall only author- 
ize the President to withhold his signature when the 
reason for his disapproval of the bill is its invalidity. 
No better word could be found in the language to 
embrace the idea of passing on the merits of the bill. 
If anything has been established by actual precedents, 
it is that a President in signing or withholding signa- 
ture, must consider the wisdom of the bill as one of 
those responsible for its character and effect. Mr. 
Mason says there were only four Presidents who did 
not veto bills on their merits. They were Washington, 
the Adamses and Jefferson. All the others have done 
so, and as to the four named, it is possible that through 
the agency of friendly Congresses they were able to 
kill bills without resorting to the veto. There are 
other ways of killing a cat than by choking it : with 
butter. It is often a good deal easier for the Presi- 
dent to prevent the passage of a bill by conference with 
friendly committees. It does not "rock the boat" 
so much. 



THE VETO POWER 17 

Of course vetoes are more frequent when the Presi- 
dent and Congress differ politically. They were very 
frequent in Mr. Johnson's administration when there 
was bitterly opposed to him a two-thirds majority of 
Republicans in each House. Again in the tune of 
Mr. Hayes, the lower House of Congress was Demo- 
cratic during his whole four years. Both Houses 
were Democratic in his last two years. This led to a 
number of vetoes by Mr. Hayes of bills enacted to 
paralyze the enforcement of Congressional election 
laws, and also of measures concerning the exclusion of 
Chinese, and the monetary policy of the United States. 
In Mr. Cleveland's first term, he had an adverse 
Congress, which resulted in many vetoes of special 
pension bills. President Grant, President Harrison 
and I had to face politically hostile Congresses, which 
naturally led to an expressed difference of opinion 
between the Executive and Congress as to the wisdom 
of proposed legislation. It is at such a time that one 
hears from the opposition Congressmen eloquent and 
emphatic denunciation of "the exercise of royal prerog- 
ative by the incumbent of the White House to defeat 
the will of the people." When one new in the Presi- 
dential office first hears a philippic of this kind, visions 
of the fate of Charles I may trouble him somewhat, 
but after a time, especially if he has indulged the 
habit of reading past Congressional Records, he be- 
comes accustomed to the well-worn expressions of 
legislators whom the veto of a favorite bill has dis- 
appointed. There is a well-known aphorism that 
men are different, but husbands are all alike. The 
same idea may be paraphrased with respect to Con- 



18 OUR CHIEF MAGISTRATE 

gressmen. Congressmen are different, but when in 
opposition to an administration they are very much 
alike in their attitude and in their speeches. In look- 
ing back through the Congressional debates, and in 
attempting to run down the history of the improve- 
ment of the White House grounds, I was much amused 
to read the speech of an opposition Congressman 
in the severest condemnation of the expenditure by 
President Van Buren of a comparatively small sum 
appropriated by Congress to improve the appearance 
of the grounds of the White House by some landscape 
gardening and tree planting. He said in effect that 
the President was aping the royalties of Europe in 
attempting to create an orangery in the rear of his 
palace, in which in majestic seclusion he might stretch 
his royal legs. As I read this speech, I could not but 
think that the genus of opposition Congressmen had 
not lost its distinctive qualities. 

In the exercise of the veto power, the truth is that 
it often happens that the President more truly repre- 
sents the entire country than does the majority vote 
of the two Houses. His constituency is the electorate 
of the United States, and by reason of that he is much 
freer from the influence of local prejudices and of the 
play of those special territorial and state interests, 
which, brought together by log-rolling methods, some- 
times constitute a majority in both Houses for extrav- 
agant or unwise legislation. To hold up the use of the 
Presidential veto as an exercise of royal prerogative 
is of course utterly absurd. It is true that the func- 
tion finds its prototype in the royal veto of the British 
Constitution, but no King of England has dared to 



THE VETO POWER 

exercise it for two-hundred years. He would lose 
throne if he did. Under our Constitution the veto is not 
the act of an hereditary monarch, but of one elected 
by all the people to represent all the people and charged 
by the fundamental law with the responsibility and 
duty of its exercise in proper cases. 

In considering a bill presented to him for signature, , 
it is the duty of the President of course to veto a bill 
no matter how much he approves its expediency, if 
he believes that it is contrary to the constitutional 
limitations upon the power of Congress. He has" 
taken an oath to the best of his ability "to preserve, 
protect and defend the Constitution of the United 
States," and he cannot escape his obligation to do so 
when the question before him is whether he shall 
approve the bill passed by both Houses which violates 
the Constitution he has given his plighted faith to 
maintain and enforce. His duty is as high and ex- 
acting in this matter as is the duty of the Supreme 
Court of the United States. Indeed, his function in 
this regard is somewhat broader than that of the 
Court. The question with him is whether, in his 
judgment, the bill is inconsistent with the Constitu- 
tion. The question which the Court has to con- 
sider when an act of Congress is before it and its 
validity is questioned, is not whether the Court as an 
original question thinks the act to be a violation of 
the Constitution. The fact that Congress, a co- 
ordinate branch of the government, has enacted the 
law, and presumably has decided it to be within its 
legislative power, raises a very strong presumption 
that the act is valid. The Court, before holding 




20 OUR CHIEF MAGISTRATE 

otherwise, is bound to find that beyond reasonable 
doubt the act is not within the limit of the discretion 
of the legislature in construing its own powers to 
decide that the act in question is within those powers. 
When a branch of the government is vested with a 
power, defined and limited, it must first construe 
the limitations upon its own powers in exercising 
them ; and what the Supreme Court has to say is 
that it has abused that discretion and beyond a reason- 
able doubt has transgressed its limits. It may seem 
that this is not a broad distinction, but practically 
it may be made a real one by a conscientious court. If 
the Court has any doubt about the validity of a law, it 
is bound to sustain it, and it has no right to set aside 
a law merely because of a difference of opinion between 
it and the legislature as to the legislative powers. 

This difference has been emphasized by the elder 
Professor Thayer of Harvard in his comments on the 
Constitution. He has wisely and ably explained and 
emphasized the necessity for maintaining the distinc- 
tion. A serious doubt of the validity of a proposed bill 
may well lead a member of Congress to vote against it, 
or the President to veto it ; but such a doubt would not 
justify the Court in treating the act as a nullity, unless 
it reaches an indisputable conviction that Congress 
has exceeded its powers, after indulging the properly 
strong presumption in favor of the act's validity. It 
may very well happen, therefore, that a President 
may veto a bill, Congress may pass it over his veto, 
the Supreme Court may sustain the law, and yet the 
President and the Court have the same serious doubt 
as to its validity which would properly lead to the 



THE VETO POWER 21 

President's veto but not to the Court's annulment of 
it after it has been passed by Congress. I can illus- 
trate what I say by referring to a bill which I vetoed 
and which was passed over my veto. It was the so- 
called Webb bill, which declared the shipping of liquor 
from one state to another, where its sale was unlawful 
by the law of the state, to be Federally unlawful. It 
seemed to me that this was in effect a delegation of 
power to the states to make differing rules with respect 
to interstate commerce in something which up to this 
tune has been regarded as a lawful subject of such 
commerce. If Congress wished to declare liquor an 
unlawful subject of commerce from one state to 
another, Congress would have the power; but to 
attribute to Congress the power to say that one state 
might declare something unlawful commerce among 
the states, while another might declare it lawful, 
seemed to me to be a serious interference with the 
proper uniform and beneficent operation of the inter- 
state commerce clause. I properly had much less 
hesitation in vetoing the bill than the Supreme Court 
should have in declaring it to be beyond the permis- 
sible limits of Congressional discretion. In other 
words, the Court may entertain the same serious doubt 
of the validity of the bill that led to my veto of it, and 
still not find the question so clear as to overcome the 
presumption in favor of the validity of the law because 
Congress has enacted it. I emphasize this point be- 
cause I think it is of the highest importance that the 
constitutional validity of a measure should be fairly 
considered in the legislature and by him who exercises 
the veto power. 



22 OUR CHIEF MAGISTRATE 

English publicists have criticized the course of dis- 
cussion under a written Constitution by our legis- 
latures. They maintain that it leads to a consideration 
of questions of the validity of proposed legislation 
rather than of its expediency. I do not think that 
this criticism is either weighty or correct. We do 
not discuss the validity of the bills in the legislatures 
enough. The governors of the states do not consider 
the constitutionality of bills presented them for sig- 
nature as they ought. A measure proposed is popular 
with the constituents of a legislator, and if a question 
is raised as to its constitutional validity, he is prone 
to say, "Well, my people wish it. If it is invalid, the 
court will declare it to be invalid. Therefore, why 
should I run the risk of incurring unpopularity when it 
is not my function to enforce the Constitution ? " Laws 
are thus passed through legislatures which palpably 
violate the Constitution just because constituents of 
legislators think that the law would be a good thing. 
The governor signs it with the same view. The burden 
is thus transferred to the Court. The Court holds the 
law to be invalid and the popular odium arising from 
a defeat of the measure is visited upon the Court, which 
alone of the three branches of the government has 
respected its oath of office in the preservation of the 
Constitution. \This is one of the fruitful sources of 
the unjust attacks upon the courts of the country of 
which we have had so many in the last ten years. You 
well remember the story which Mr. Roosevelt tells 
of a conversation which he had with the Tammany 
politician, Tim Campbell, when they were both mem- 
bers of the legislature, in which Tim appealed to him 



THE VETO POWER 23 

to vote for a particular bill of his and Mr. Roosevelt 
replied, "I cannot do it, Tim, because it is plainly 
unconstitutional." This called forth from Tim the 
well-known expression, "What the divil is the Con- 
stitution between f rinds?" That is the exact spirit 
which has led to the neglect of their constitutional 
obligation by legislators, and their enactment of so 
many invalid measures. I have sometimes been in- 
clined to think that after his invention and recommen- 
dation of the recall of judicial decisions, Mr. Roosevelt 
was leaning a little more to Tim's view of the Con- 
stitution than at the time when this conversation was 
held. 

The Constitution provides that if the President does 
not return the bill presented to him within ten days 
(Sundays excepted) after its presentation, it is to 
become law just as if he had signed it, unless Congress 
by adjourning prevents its return, in whiclj case it is 
not to become a law. This enables the President, at 
the close of a session, when bills are presented to him 
in great number, and when he usually goes to the 
Capitol for the purpose of signing them, just before 
the adjournment of Congress, to defeat a bill by what 
is called a pocket veto, that is by failing to sign it. 
If he does not return it to Congress with his objections, y 
there is no opportunity for Congress to pass it over 
his veto, and therefore his failure to sign is final. 

It has never been decided by the Supreme Court > 
whether a President by signing a bill within ten days 
after its passage may give it validity as a law if Con- 
gress adjourns within that ten days, and before his 
signature. The Supreme Court has said that he may 



24 OUR CHIEF MAGISTRATE 

sign a bill during a recess of Congress. Practice makes 
it clear, however, that he may not do this after adjourn- 
ment. There is only one instance of such a signature. 
President Monroe failed to sign a bill which he had 
intended to sign. After conferring with his Cabinet, 
he decided it was wiser to ask Congress to reenact it. 
President Lincoln did sign a bill after an adjournment 
and the bill was filed with the Secretary of State 
and printed among the statutes. When the matter 
was brought to the attention of the Senate, however, 
the power of the President to do so was questioned and 
denied, and a new bill of substantially the same purport 
passed both Houses and was signed by the President. 

The language of the Constitution with reference to 
what the President shall do with a bill leaves only two 
alternatives, one that if he approve it, he shall sign it, 
the other that if he does not approve it, he shall return it 
with his objections to Congress. It does provide that if 
he fails to return it within ten days, it shall become a 
law, but this would seem to be only a provision for his 
neglect. In practice, however, some Presidents have 
allowed bills to become law without their signature, 
with the idea, I presume, that their objections to the bill 
do not justify a veto. Mr. Cleveland looked at the 
matter in this way when he allowed the Gorman- 
Wilson Tariff bill to become a law without his signa- 
ture, though he denounced it in most emphatic terms 
in a letter to Mr. Catchings of the House as "an act 
of perfidy and dishonor." My own judgment is that 
the wiser course in such a case is for the President to 
sign the bill, with a memorandum of his reasons for 
doing so, in spite of his objections. 



THE VETO POWER 25 

The Federal Executive veto does not include the 
power to veto a part of a bill. The lack of such a 
power in the President has enabled Congress at times 
to bring to bear a pressure on him to permit legislation 
to go through that otherwise he would veto. Ap- 
propriation bills are necessary for the life of the gov- 
ernment, and if Congress by putting what is called a 
"rider" of general legislation on one of these says,, 
" We'll hamstring the government in respect to the 
departments that these appropriation bills support, 
unless you consent to this," it puts the President in 
an embarrassing situation. 

In President Hayes' Administration, one of the 
issues that he had with the Democratic Congress was 
in respect to the enforcement of the Federal Con- 
gressional election laws. The Democratic Congress 
insisted first in imposing a rider on the Military Ap- 
propriation bill for the support of the army, providing 
that the President should not be able to use his civil 
officers to maintain peace at the polls. This really 
had no relation to the use of the army to interfere 
with elections. President Hayes vetoed the bill. 
Congress finally passed the Army Appropriation 
bill without the rider, but thereupon passed the Legis- 
lative, Executive and Judicial Appropriation bill, 
with a similar rider, which the President again vetoed. 
Then Congress passed this latter appropriation bill, 
but in order to prevent the use of marshals to preserve 
peace at the polls, left out any provision for the mar- 
shals and the executive officers of the courts of the 
United States. That state of affairs continued for 
two years, to the great embarrassment of the courts. 



26 OUR CHIEF MAGISTRATE 

Finally, Congress surrendered after the election of 
President Garfield, and paid the salaries, fees and 
expenses of the marshals and of the executive officers 
of the courts which had been withheld from them for 
two years. In the course of the controversy, Presi- 
dent Hayes used this language : 

The enactment of this bill into a law will establish a precedent 
which will tend to destroy the equal independence of the several 
branches of the Government. Its principle places not merely 
the Senate and the Executive, but the Judiciary also, under the 
coercive dictation of the House. .The House alone will be the 
judge of what constitutes a grievance, and also of the means and 
measure of redress. An act of Congress to protect elections is 
now the grievance complained of; but the House may on the 
same principle determine that any other act of Congress, a treaty 
made by the President with the advice and consent of the Senate, 
a nomination or appointment to office, or that a decision or opinion 
of the Supreme Court is a grievance, and that the measure of re- 
dress is to withhold the appropriations required for the support of 
the offending branch of the Government. 

Believing that this bill is a dangerous violation of the spirit 
and meaning of the Constitution, I am compelled to return it to 
the House in which it originated without my approval. The 
qualified negative with which the Constitution invests the Presi- 
dent is a trust that involves a duty which he can not decline to 
perform. With a firm and conscientious purpose to do what I 
can to preserve unimpaired the constitutional powers and equal 
independence, not merely of the Executive, but of every branch 
of the Government, which will be imperiled by the adoption of 
the principle of this bill, I desire earnestly to urge upon the House 
of Representatives a return to the wise and wholesome usage of 
the early days of the Republic, which excluded from appropriation 
bills all irrelevant legislation. 

Congress attempted the same method in my own 
administration, when a rider was placed upon the 



THE VETO POWER 27 

great Sundry Civil Appropriation bill forbidding the 
use of a special appropriation to enforce the anti-trust 
law act in prosecuting farmers and trades-unions who 
were found violating that act. This introduced, it 
seemed to me, a most pernicious discrimination and 
was calculated and intended to produce a lack of uni- 
formity in the application of what should be a general 
law. It created a privileged class and was insisted on 
merely for political purposes. I vetoed the bill. A 
similar bill with a similar rider was subsequently 
signed by President Wilson, but under protest against 
the principle of such discrimination. 

It has been suggested that such an abuse of power 
by Congress, for that it certainly is, could be avoided 
by giving to the President the power to veto special 
items and clauses of an appropriation bill. This 
power is exercised by some governors in states, notably 
the governor of New York. While for some pur- 
poses, it would be useful for the Executive to have 
the power of partial veto, if we could always be sure 
of its wise and conscientious exercise, I am not entirely 
sure that it would be a safe provision. It would 
greatly enlarge the influence of the President, already 
large enough from patronage and party loyalty and 
other causes. I am inclined to think that it is better 
to trust to the action of the people in condemning the 
party which becomes responsible for such riders, than 
to give, in such a powerful instrument like this, a 
temptation to its sinister use by a President eager for 
continued political success. This use by Congress of 
riders upon appropriation bills to force a President to 
consent to legislation which he disapproves shows a spirit 



28 OUR CHIEF MAGISTRATE 

of destructive factionalism and a lack of a sense of 
responsibility for the maintenance of the government. 
If such a sense of responsibility does not pervade all 
branches of the government, Executive, Legislative and 
Judicial, the government cannot remain a going con- 
cern. Instances of abuses of this sort by Congress, 
therefore, must be regarded as exceptional, as indeed 
they are, and an effort to remedy them by a change 
in constitutional provision would be legislation in- 
tended to pump patriotism into public officers by 
force. This method will certainly be found futile if 
such patriotism and sense of responsibility do not exist 
without it. If it is urged that the President should 
have the power to veto items in an appropriation 
bill to restrain Legislative extravagance, the answer 
is that this is not the best way. The proper remedy 
for that evil is the budget amendment proposed by 
the Constitutional Convention of New York, which I 
have already discussed. 



CHAPTER II 
THE MINOR POWERS OF THE PRESIDENT 

IN the first chapter, I considered the general dis- 
tribution of governmental powers and the veto power 
of the President, his only Legislative function. I now 
begin a consideration of his Executive functions, in 
some of which he or his subordinates exercise what I 
shall hope to show are quasi-legislative and quasi- 
judicial powers. In this chapter, I propose to discuss 
what may perhaps be called the minor functions of 
the President, and shall devote some of the time also 
to the personal aspects of the great office. I class 
among the President's minor functions, the powers to 
consult the heads of Executive departments as to the 
questions arising in their respective departments, to 
inform Congress of the state of the Union, to recom- 
mend measures to it which he may deem wise, ex- 
pedient and necessary ; to issue commissions to officers 
of the United States, and to convene Congress in extra 
session, and adjourn it in case of disagreement between 
the Houses. 

The Constitution does not use the term "Cabinet," 
and does not recognize a Presidential Council as a legal 
body. There has crept into some statutes, loosely 
drawn, the phrase "Cabinet Officer," and the Supreme 
Court Judges in their discussions of cases sometimes 
use it. It will be observed, however, that while the 
Constitution refers to the head of a department and 

29 



30 OUR CHIEF MAGISTRATE 

authorizes the President to make him an adviser as to 
matters in his own department, it contains no sugges- 
tion of a meeting of all the department heads, in con- 
sultation over general governmental matters. The 
Cabinet is a mere creation of the President's will. It 
is an extra-statutory and extra-constitutional body. 
It exists only by custom. If the President desired to 
dispense with it, he could do so. As it is, the custom 
is for the Cabinet to meet twice a week, and for the 
President to submit to its members questions upon 
which he thinks he needs their advice, and for the 
members to bring up such matters in their respective 
departments as they deem appropriate for Cabinet 
conference and general discussion. 

In the British government, the Cabinet is not a 
statutory body. It exists there, as with us, only by 
custom. But this fact does not derogate from the 
permanence and importance of the English Cabinet, 
because, unlike ours, the constitution of government 
in Great Britain is largely by custom. The distinctive 
feature in the present British political structure is that a 
vote in the House of Commons, indicating a want of con- 
fidence in the Premier and his associates, requires their 
resignation ; yet this only abides in custom. The Eng- 
lish Premier in selecting his associates in his Cabinet 
takes those members of Parliament who will effectively 
cooperate with him in retaining the indispensable back- 
ing of the House of Commons majority. It is needful 
for a ministry, therefore, that the members of the 
Cabinet in such a government shall be of independent 
strength and influence with parliamentary members. 
They are partners of the Premier and not merely his 



THE MINOR POWERS OF THE PRESIDENT 31 

appointees and advisers, and have an importance which 
Cabinet officers do not have with us. As a member of 
the government, each English Cabinet officer must be 
prepared on the floor of one House or the other to answer 
questions, defend the government, and advocate the 
legislation which the government urges, and for which 
it becomes responsible. It follows that an English 
Cabinet officer must have qualifications not now re- 
quired of a member of a Presidential Cabinet. 

I am strongly in favor of a change in our existing 
system, by which the importance and influence of 
Cabinet officers shall be increased. Without any 
change in the Constitution, Congress might well pro- 
vide that heads of departments, members of the Presi- 
dent's Cabinet, should be given access to the floor of 
each House to introduce measures, to advocate their 
passage, to answer questions, and to enter into the de- 
bate as if they were members, without of course the 
right to vote. Without any express constitutional 
authority, Congress has done this in the case of dele- 
gates from the territories. Why may it not therefore 
do it with respect to the heads of departments? 

This would impose on the President greater difficulty 
in selecting his Cabinet, and would lead him to prefer 
men of legislative experience who have shown their 
power to take care of themselves in legislative debate, 
It would stimulate the head of each department by the 
fear of public and direct inquiry into a more thorough 
familiarity with the actual operations of his department 
and into a closer supervision of its business. On the 
other hand, it would give the President what he ought 
to have, some direct initiative in legislation and an 



32 OUR CHIEF MAGISTRATE 

opportunity through the presence of his competent 
representatives in Congress to keep each House advised 
of the facts in the actual operation of the government. 
The time lost in Congress over useless discussion of 
issues that might be disposed of by a single statement 
from the head of a department, no one can appreciate 
unless he has filled such a place. In my annual 
message, December 19, 1912, I urged this proposal 
upon Congress, as follows : 

This is not a new proposition. In the House of Representatives, 
in the Thirty-eighth Congress, the proposition was referred to a 
select committee of seven Members. The committee made an 
extensive report, and urged the adoption of the reform. The 
report showed that our history had not been without illustration 
of the necessity and the examples of the practice by pointing out 
that in early days Secretaries were repeatedly called to the presence 
of either House for consultation, advice, and information. It 
also referred to remarks of Mr. Justice Story in his Commentaries 
on the Constitution, in which he urgently presented the wisdom 
of such a change. This report is to be found in Volume I of the 
Reports of Committees of the First Session of the Thirty-eighth 
Congress, April 6, 1864. 

Again, on February 4, 1881, a select Committee of the Senate 
recommended the passage of a similar bill, and made a report in 
which, while approving the separation of the three branches, the 
executive, legislative, and judicial, they point out as reason for 
the proposed change that, although having a separate existence, 
the branches are "to cooperate, each with the other, as the differ- 
ent members of the human body must cooperate, with each other, 
in order to form the figure and perform the duties of a perfect man. 

The report is as follows : 

This system will require the selection of the strongest men to 
be heads of departments and will require them to be well equipped 
with the knowledge of their offices. It will also require the strong- 



THE MINOR POWERS OF THE PRESIDENT 33 

est men to be the leaders of Congress and participate in debate. 
It will bring these strong men in contact, perhaps into conflict, 
to advance the public weal, and thus stimulate their abilities and 
their efforts, and will thus assuredly result to the good of the country. 
If it should appear by actual experience that the heads of depart- 
ments in fact have not time to perform the additional duty imposed 
on them by this bill, the force of their offices should be increased 
or the duties devolving on them personally should be diminished. 
An under-secretary- should be appointed to whom could be con- 
fided that routine of administration which requires only order and 
accuracy. The principal officers could then confine their attention 
to those duties which require wise discretion and intellectual 
activity. Thus they would have abundance of time for their 
duties under this bill. Indeed, your committee believes that the 
public interest would be subserved if the Secretaries were relieved 
of the harassing cares of distributing clerkships and closely super- 
vising the mere machinery of the departments. Your committee 
believes that the adoption of this bill and the effective execution 
of its provisions will be the first step toward a sound civil-service 
reform which will secure a larger wisdom in the adoption of policies 
and a better system in their execution. 

(Signed) 

GEO. H. PENDLETON. 

W. B. ALLISON. 

D. W. VOORHEES. 

J. G. ELAINE. 

M. C. BUTLER. 

JOHN J. INGALLS. 

O. H. PLATT. 

J. T. FARLEY. 

It would be difficult to mention the names of higher authority 
in the practical knowledge of our government than those which 
are appended to this report. 

Official minutes are not kept of the Cabinet meetings. 
Everything is informal, except that the President sits 
at the head of the table, and the seats of the Cabinet 



34 OUR CHIEF MAGISTRATE 

members are assigned around the table according to 
official precedence, that is according to the order in 
which under the law the Cabinet officers succeed to 
the Presidency on the death of the President and the 
Vice-President, which is nearly in accordance with the 
order of the establishment of the various departments. 

The Executive office of the President is not a record- 
ing office. The vast amount of correspondence that 
goes through it, signed either by the President or his 
Secretaries, does not become the property or a record 
of the government, unless it goes on to the official files 
of the department to which it may be addressed. 
The retiring President takes with him all of the 
correspondence, original and copies, which he carried 
on during his administration. Thus there is lost 
to public record some of the most interesting docu- 
ments of governmental origin bearing on the history 
of an administration. It is a little like what Mr. 
Charles Francis Adams told me of the diplomatic 
records of the British Foreign Office. It has long been 
the custom for the important Ambassadors of Great 
Britain to carry on a personal correspondence with the 
Secretary of State for Foreign Affairs, which is not put 
upon the files of the department, but which gives a 
much more accurate and detailed account of the dip- 
lomatic relations of Great Britain than the official files. 
The only way in which historians can get at this, is 
through the good offices of the families of the deceased 
Ambassadors and Foreign Secretaries in whose private 
files they may be preserved. 

Originally the State Department was supposed to 
be the department through which Executive acts were 



THE MINOR POWERS OF THE PRESIDENT 35 

made public, and in which they were recorded. The 
Secretary of State is the custodian of the great seal of 
the government, and now when the President acts in 
general matters not affecting a particular department, 
and his act needs attestation by seal, the Secretary of 
State witnesses the signature of the President and 
attaches the seal. In departmental matters, however, 
where the President has to act, as in issuing commis- 
sions for officers in particular departments, the com- 
missions are signed by the President, attested by the 
Secretary of the particular department, and a seal of 
that department attached. Thus the commissions of 
Federal Judges bear the signatures of the President 
and the Attorney-General, those of army officers the 
signatures of the President and the Secretary of War, 
and those of naval officers the signatures of the Presi- 
dent and the Secretary of the Navy. 

Referring again to the Cabinet meetings, Mr. Lin- 
coln is said to have remarked that in the Cabinet after 
discussion and intimation of opinions, there was only 
one vote and that unanimous it was the vote of 
the President. It is interesting and instructive to 
note Mr. Jefferson's comment on the operation of the 
Cabinet in Washington's day. A French publicist 
wrote him a letter advocating a plural executive for a 
free government, and asked his comment upon it. He 
answered, dissenting from the publicist's view, and 
approving the plan of our Constitution as follows : 

The failure of the French Directory seems to have authorized a 
belief that the form of a plurality, however promising in theory, is 
impracticable with men constituted with the ordinary passions, 
while the tranquil and steady tenor of our single executive, during 



36 OUR CHIEF MAGISTRATE 

a course of twenty-two years of the most tempestuous times the 
history of the world has ever presented, gives a rational hope that 
this important problem is at length solved. Aided by the counsels 
of a Cabinet of heads of departments originally four, but now five, 
with whom the President consults, either singly or all together, 
he has the benefit of their wisdom and information, brings their 
views to one center, and produces an unity of action and direction 
in all the branches of the government. The excellence of this con- 
struction of the executive power has already manifested itself 
here under very opposite circumstances. During the administra- 
tion of our first President, his Cabinet of four members were equally 
divided by as marked an opposition of principle as monarchism 
and republicanism could bring into conflict. Had that Cabinet 
been a directory, like positive and negative quantities in algebra, 
the opposing wills would have balanced each other and produced 
a state of absolute inaction. But the President heard with calm- 
ness the opinions and reasons of each, decided the course to be 
pursued, and kept the government steadily in it, unaffected by the 
agitation. The public knew well the dissensions of the Cabinet, 
but never had an uneasy thought on their account, because they 
knew also they had provided a regulating power which would keep 
the machine in steady movement. 

The picture of the Cabinet of Washington's day, 
with Jefferson sitting on one side of the table and 
Hamilton on the other, at sword's point on most 
political and governmental issues, is very interesting. 
The admirable poise of the Father of his Country was 
never more clearly proven than by the fact that he was 
able to carry on an administration as long as he did, 
with such a division in his Cabinet. All Cabinets are 
not like this. Many of them are most harmonious, 
and to many of the participants such meetings bring 
back the pleasantest memories. Mr. Jefferson him- 
self, in commenting on his own Cabinet, gives a very 
different picture from that of the Cabinet of Washing- 



THE MINOR POWERS OF THE PRESIDENT 37 

ton, for he says of his own Cabinet to the same corre- 
spondent, in the letter I have already referred to : 

There never arose, during the whole time, an instance of an 
unpleasant thought or word between the members. We some- 
times met under differences of opinion, but scarcely ever failed, 
by conversing and reasoning, so to modify each other's ideas as 
to produce an unanimous result. Yet, able and amicable as the 
members were, I am not certain this would have been the case, 
had each possessed equal and independent powers. Ill-defined 
limits of their respective departments, jealousies, trifling at first, 
but nourished and strengthened by repetition of occasions, intrigues 
without doors of designing persons to build an importance to them- 
selves on the divisions of others, might, from small beginnings, 
have produced persevering oppositions. But the power of decision 
in the President left no object for internal dissension, and external 
intrigue was stifled in embryo by the knowledge which incendiaries 
possessed, that no division they could foment, would change the 
course of the, executive power. 

It is noteworthy that the Cabinet in which there was 
more of rivalry and intrigue and bitterness than in any, 
except that of Washington, was Lincoln's. Thus the 
division of their Cabinets into cliques, the disloyalty of 
some of them and their conflicting ambitions greatly in- 
creased the heavy burdens of our two greatest Presidents. 

The power and duty of the President to inform Con- 
gress on the state of the Union, and to recommend 
measures for its adoption, need very little comment, 
except to say that President Washington and Presi- 
dent Adams treated the discharge of this duty as the 
occasion for visiting Congress in person and delivering 
their communications orally. The Senate in Wash- 
ington's day was a small body of twenty-eight or 
thirty, and when the President had made a treaty, 
or was about to make one, and wished advice and 



38 OUR CHIEF MAGISTRATE 

consent of the Senate, he repaired in person to the 
Senate Chamber. President Washington had one 
annoying experience, of which Senator Maclay speaks 
in his diary : Through the assistance of General 
Knox, Secretary of War, who had dealt much with 
the Indians, he had made treaties with certain tribes. 
He went with the treaties to the Senate to ask its 
consent, and Knox accompanied him. Washington 
explained the treaties and asked their confirmation. 
The Senate wished to delay and put the matter over. 
Maclay says that he made the motion to postpone 
because he saw no chance of a fair investigation of a 
subject while the President sat there with his Secre- 
tary of War, to support his opinions and overawe the 
timid and neutral part of the Senate. It was suggested 
that the matter be referred to a committee. "As I 
sat down," Maclay says, "the President of the United 
States started up in a violent fret. ' This defeats every 
purpose of my coming here,' were the first words that 
he said. He then went on that he had brought his 
Secretary of War with him to give every necessary in- 
formation ; that the Secretary of War knew all about 
the business, and yet he was delayed and could not 
go on with the matter. However, he said he did not 
object to postponement until a later day." Maclay 
continues : "We waited for him to withdraw. He did 
so with a discontented air. Had he been any other 
man than the man whom I wish to regard as the first 
character in the world, I would have said, with sullen 
dignity. On the day appointed, the President came 
again, and then there was a great discussion in his 
presence, and a tedious discussion." 



THE MINOR POWERS OF THE PRESIDENT 39 

My. impression is that Washington succeeded in 
securing the confirmation of the treaties, although 
Maclay does not make it clear. Another account of 
this, from a different source, and perhaps untrust- 
worthy, says that Washington was heard by one who 
was near to utter an oath to Knox as he left the Senate. 
I am not in favor of profanity and do not wish to up- 
hold it even in so eminent a person as the Father of our 
Country, but ,1 had such a similar experience in attempt- 
ing to secure the advice and consent of the Senate to 
my General Arbitration Treaties, which another Knox 
presented to them, that J confess to having a warm 
fellow feeling for President Washington in this unlovely 
expression, if he uttered it. I have read much of 
George Washington and have always had the pro- 
foundest admiration for the qualities which he had in 
such a high degree, of poise, courage, self-restraint and 
judgment, which without the brilliant intellectual 
faculties and acquirements of his contemporaries, en- 
abled him to influence and control them all by inspiring 
in them a profound respect for his sense of justice, his 
disinterested patriotism, his high ideals, his personal 
force and courage and his common sense. It is diffi- 
cult to get close to him as a man, however, or to feel 
in reading of him that personal affection that is con- 
stantly being stimulated in reminiscences of Lincoln. 
Such an incident as this I have related, however, of 
Washington shows the human side of him as a man of 
good red blood and makes me, because of my personal 
experience, come closer to him than ever before. 

Jefferson had no pleasure or facility in public speak- 
ing. When he came into the office of President, there- 



40 OUR CHIEF MAGISTRATE 

fore, he preferred to send to Congress written messages, 
and his practice was so formidable a precedent that 
this has been the custom of the Presidents down to the 
present administration, when President Wilson has 
introduced again the old practice of a personal address 
to both Houses. I think the change is a good one. 
Oral addresses fix the attention of the country on 
Congress more than written communications, and by 
fixing the attention of the country on Congress, they 
fix the attention of Congress on the recommendations 
of the President. I cannot refrain from a smile, how- 
ever, when I think of the Democratic oratory which 
was lost because Mr. Roosevelt or I did not inaugurate 
such a change. The eloquent sentences that would 
have resounded from the lips of Senator Ollie James or 
Senator John Sharp Williams, those faithful followers 
of Jefferson, in denunciation of the introduction of 
"such a royal ceremony in a speech from the Throne," 
I could supply with little effort of the imagination. 
Surely a member of the Jeffersonian Party has some 
advantages hi the Presidential chair. 

It is the constitutional duty of the President to issue 
commissions to all officers of the United States. This, 
I think, is the greatest manual duty the President has 
to perform. When you consider all the officers in the 
government who are entitled to commissions, and in 
addition to this, the number of letters in the President's 
correspondence, you can understand that a substantial 
part of each business day is occupied with signatures. 
Of course the shorter the President's name, the easier 
his work. As I was able to sign with only seven letters, 
I had an advantage over my predecessor and my sue- 



THE MINOR POWERS OF THE PRESIDENT 41 

cessor. In Washington's day, and later, all the letters 
patent for land and inventions had to be signed by the 
President, but fortunately for his more recent succes- 
sors, Congress has authorized the President to desig- 
nate some one else to perform this duty. I do not 
suppose Congress could relieve him of the burden of 
signing commissions, in view of the mandatory language 
of the Constitution. 

The question of commissions seems a simple and 
formal one, and yet out of it came one of the greatest 
cases that was ever decided in this country, a case that 
had more direct bearing on the organic structure of 
this government than any in the history of the great 
cases decided by the Supreme Court. I refer to the 
case of Marbury vs. Madison. That case was not only 
of capital importance from a governmental standpoint, 
but it was part of the interesting personal and political 
history of the struggle of two giants among our states- 
men and jurists. Thomas Jefferson was not in the 
convention that framed the Constitution. He was 
induced to refrain from open opposition to its ratifica- 
tion on a promise that a bill of rights would be added 
to it by amendment. In his view of government he 
took the democratic extreme. He was profoundly sus- 
picious of the monarchical tendencies of the Federalist 
group, especially of Hamilton. As soon as the Con- 
stitution was adopted, two parties formed themselves, 
the Republicans and the Federalists, with Jefferson at 
the head of one and Hamilton at the head of the other. 
The Federalist Party remained in power under Wash- 
ington and Adams, and then in the election of 1801, 
Adams was defeated by Jefferson. John Marshall, 



42 OUR CHIEF MAGISTRATE 

who had been a young man during the Revolution and 
a private soldier in the Continental Army, had taken 
part in the ratification of the Constitution in the Vir- 
ginia Constitutional Convention, was a Federalist 
member of Congress in Adams' administration, and 
became Adams' last Secretary of State. After Adams 
was defeated and before Jefferson was elected and took 
his seat, Adams appointed Marshall to be Chief Justice, 
and he was confirmed in the interval by a Federalist 
majority in the Senate. When the Federalists saw 
they were going out of power, they took advantage of 
the fact that they controlled the Presidency and the 
Congress in the interval between the election and the 
succession of the new administration, and passed a law 
creating a new Circuit Court which was to be an inter- 
mediate court between the District Court and the 
Supreme Court, and provision was made for the ap- 
pointment of sixteen judges. President Adams ap- 
pointed these judges and most of them were Federalists. 
They were confirmed upon the night of March 3d, 
preceding the 4th of March when Jefferson was to take 
his oath. They were known as the Midnight Judges. 
This action by a defeated party roused the indignation 
of Jefferson and the Republicans. Madison, whom 
Jefferson designated to act as Secretary of State, was 
very prompt and insistent, so tradition has it, in 
taking over from Marshall, who continued to act as 
Secretary till the close of Adams' term, the Depart- 
ment of State. It is said that Marshall in commenting 
on Madison's urgency felicitated himself that he got 
away from the office with his own hat. The Republi- 
can Party was determined to abolish the Midnight 



THE MINOR POWERS OF THE PRESIDENT 43 

Judges, and they promptly passed a law for this pur- 
pose. When the law was on its passage, it was argued 
by the Federalists that it was unconstitutional because 
United States Judges must hold their offices for life. 
Fearing that John Marshall, who had then taken his 
seat as Chief Justice, and his Federalist colleagues in 
the Supreme Court might reach this conclusion, Con- 
gress postponed the time for the meeting of the Court 
for more than a year. When the Court met, no effort 
was made to test the validity of the repeal of the Cir- 
cuit Court Act, but a cause was presented involving 
an issue quite as personal to Jefferson and Madison. 
Adams had appointed one Marbury to be Justice of 
the Peace in the District of Columbia for five years. 
The Senate confirmed him. Adams signed the Com- 
mission and sent it to Marshall as Secretary of State, 
who signed it and attached the seal. By some over- 
sight, it was not delivered to the appointee, and Adams 
and Marshall went out of office. Marbury thereupon 
applied to Madison for it, and Madison declined to 
deliver it. Marbury filed a petition in the Supreme 
Court of the United States for a mandamus to 
compel Madison to deliver him the Commission. An 
Act of Congress authorized a proceeding in man- 
damus in the Supreme Court, but the restrictions 
upon the jurisdiction of the Court in the Constitu- 
tion forbade it. For the first time there was flatly 
presented the question whether the Supreme Court was 
bound to take an act of Congress duly passed by that 
body as conclusively valid, or, if the Court found the 
act to be in violation of the Constitution, it could hold 
the law invalid and proceed as if the law had never been 



44 OUR CHIEF MAGISTRATE 

passed. This was the great issue in the case, and it is 
this which constitutes its transcendent importance. 

The Chief Justice, speaking for the Court, held that 
in any case coming before it in which the rights of the 
parties were affected by what purported to be a stat- 
ute of Congress, the Court could not avoid deciding 
whether it was the law or not ; that when there was 
an inevitable inconsistency between the statutory law 
and the fundamental law, the statutory law must yield 
to fundamental law and be held void. 

The Chief Justice in his opinion sustained this con- 
clusion not only on general principles controlling the 
action of a court under a written Constitution limiting 
legislative powers, but he enforced it by reference to 
the express language of the Constitution itself in respect 
to the Court's jurisdiction and the supremacy of the 
Constitution. This decision thus made the Judicial 
branch of the government the branch which could 
effectively determine the limits of power of the other 
two branches. It became a precedent for similar 
action by courts in all the states, and for more than one 
hundred years it has been accepted as authoritative. 
Jefferson denounced it as usurpation of Judicial power. 
Every once in a while we have a recurrence of this 
criticism. Such an attack figured very prominently 
in the general onslaught on courts that was made by 
the Progressive Party in agitating recall of judges and 
recall of judicial decisions. 

The conclusion as to the invalidity of the law 
under which the petition for mandamus in Marbury 
vs. Madison was filed disposed of the case. The Chief 
Justice, however, was not content to allow the case 



THE MINOR POWERS OF THE PRESIDENT 45 

to go off in this way. Before deciding the question of 
jurisdiction, he seized the opportunity to pass upon 
the merits of the issue by deciding that if the Court 
had jurisdiction, it must issue the writ and compel Mr. 
Madison to deliver the Commission. He said that this 
was a duty of the Secretary which did not involve any 
discretion after the appointment had been made and 
the Commission had been signed and sent him for 
delivery. Such an expression of opinion was what the 
lawyers call obiter dictum. It was not necessary to 
the decision of the case before the Court. It was 
prompted by the political feelings of the Chief Justice 
and his colleagues and a willingness to criticize Madison 
and Jefferson. Here was the beginning of that long 
duel between Marshall and Jefferson. Marshall stood 
for the broad, liberal Federalistic construction of the 
Constitution, treating it as the expression of the whole 
people of the United States in founding a nation, while 
Jefferson insisted that it was nothing but a league of 
the independent states granting limited and delegated 
powers to a weak central government. Jefferson's 
term of office continued for eight years. He was fol- 
lowed by Madison and then by Monroe, over both of 
whom he seems to have exercised influence. Meantime 
Marshall continued on the Supreme Bench and lived ten 
years after Jefferson. Jefferson was the father, and until 
he died in 1825, the real head, of a great party which, with 
but a few short intervals, continued in power until the 
Civil War. Yet Marshall, a Federalist, in his service 
of more than a third of a century at the head of the 
Court, was able to breathe into the Constitution the 
spirit of nationality and of Federal supremacy so 



46 OUR CHIEF MAGISTRATE 

effectively that a court of Democrats succeeding him 
did not destroy his work. Marshall's construction of 
the Constitution is the fundamental law to-day, ac- 
quiesced in by all. 

Both Marshall and Jefferson were great men. Mar- 
shall was probably the greatest judge that ever lived, 
when one considers the wonderful cogency and beauty 
of his judicial style, his statesman's foresight, the 
accuracy of his legal learning, the power of his 
reasoning, his soundness of judgment, his wonderful 
personal influence over his colleagues and the fate- 
ful influence of his work upon the structure of 
our great government. Jefferson had profound confi- 
dence in the people, and was the embodiment of the 
democratic principle. He was a genius in many ways. 
He was a voluminous and enormously industrious 
correspondent. He was a student of government and 
a statesman, a lawyer, an architect, a politician, a man 
of widest interests and information, the champion of 
all freedom and especially of religious tolerance, the 
founder of the University of Virginia, and a great pro- 
moter of education in that early day. 

Though unnecessary to the decision, the principle of 
law laid down by Marshall in Marbury vs. Madison as 
to the right of a court to command the head of a de- 
partment to do a ministerial duty, involving the exer- 
cise of no discretion, has been followed by the Supreme 
Court in several cases. In one case Congress directed 
that the Postmaster General credit certain contractors 
with the government with amounts to be ascertained 
by accounting officers. The Postmaster General re- 
fused to do this, and the Supreme Court held that a 



THE MINOR POWERS OF THE PRESIDENT 47 

mandamus would lie to compel him to do it. In an- 
other case, the case of Decatur vs. Paulding, Congress 
had provided a pension for men and officers in the 
navy, to be granted by the Secretary of the Navy. 
Decatur's widow claimed that she was entitled to 
the pension under the law, and asked the Court to rule 
that she was thus entitled and to direct the Secretary 
of the Navy to allow her the pension. The Court 
held that in this case under the law Congress intended 
to entrust the granting of the pension to the official 
judgment of the Secretary of the Navy and that the 
Court would not control such Executive discretion. 
The distinction is to be found in the purpose of Con- 
gress. If that which remains to be done by the Execu- 
tive officer does not involve and was not intended by 
Congress to involve discretion in doing it on the part of 
the Executive, then the courts can compel the Executive 
to do the act, but if any discretion is entrusted to the 
Executive, then the court is powerless. In the recon- 
struction period, after the Civil War, when Congress 
passed an act enabling the President to institute a mili- 
tary government in each of the conquered seceding 
states, suits were brought to enjoin the President from 
carrying out the law, on the ground that the law was in- 
valid. The Court refused to enjoin the President, on 
the ground that even if the law was unconstitutional, the 
function of the President under the law was a political 
one with which the Court could not interfere, and this 
view was further enforced by the admitted impotency 
of the Court to restrain the President from carrying 
out the law if he believed it to be constitutional. This 
field of Judicial control over Executive action and the 



48 OUR CHIEF MAGISTRATE 

line between it and that in which there is no such con- 
trol, offers an opportunity for the study of nice distinc- 
tions which I shall not, for lack of space, further pursue. 

The President has power to convene Congress in 
extraordinary session, and to adjourn Congress when 
the Houses disagree as to adjournment, to such time 
as he may think proper. 

When I convened Congress in extraordinary session 
to pass the Reciprocity bill, the leaders of the Demo- 
cratic majority in the House were fearful that the 
Senate might attempt to adjourn after the bill was 
passed, and that the House might not have the oppor- 
tunity of enacting some tariff bills for political use in 
the next election. The Democratic leaders therefore 
came to me to know whether I intended to exercise 
the power of adjourning the House in case of a dis- 
agreement. It had been reported that that was my 
plan. I had never thought of it and was able to 
assure them of this. 

In a recent controversy between the Houses as to 
adjournment, an appeal was made to President Wilson 
to adjourn them. This power of prorogation, I was 
inclined to think when I was in the White House, was 
limited to the adjournment of an extra session of Con- 
gress, but I did not give the question full consideration. 
As I read it now, I think that the power of adjourn- 
ment where the Houses differ over the question of 
adjournment can be exercised by the President at any 
session of Congress. No President has ever attempted 
to use this power. 

The constitutional functions of the President seem 
very broad, and they are. When many speak of his 



THE MINOR POWERS OF THE PRESIDENT 49 

great power, they have in mind that what the Presi- 
dent does, goes, like kissing, by favor. I beg of you 
to believe that the Presidency offers but few oppor- 
tunities for showing power of this sort. The respon- 
sibility of the office is so heavy, the earnest desire that 
every man who fills the place has to deserve the approval 
of his countrymen by doing the thing that is best for 
the country is so strong, and the fear of just popular 
criticism is so controlling, that it is difficult for 
one who has borne the burden of the office for four 
years to remember more than a few favors that he 
was able to confer. There are certain political obli- 
gations that the custom of a party requires the 
President to discharge on the recommendation of 
Senators and Congressmen. I hope to point out 
in the next chapter how that kind of obligation 
should be reduced to a minimum by a change of law. 
I refer now, however, to a different kind of power with 
which popular imagination clothes the President, that 
of gratifying one man, humiliating another, or punish- 
ing a third, in order to satisfy the pleasure, the whim 
or vengeance of a ruler. That does not exist. The 
truth is that great as his powers are, when a President 
comes to exercise them, he is much more concerned 
with the limitations upon them than he is affected, 
like little Jack Horner, by a personal joy over the big 
personal things he can do. 

The President is given the White House to live in, 
a very comfortable, homelike house. In all the world, 
I venture to say, there is no more appropriate official 
residence for a chief executive, or one better adapted 
to the simple democratic taste of the American people, 



50 OUR CHIEF MAGISTRATE 

than the White House. It is dignified, it is beautiful, 
it is commodious. It offers an opportunity for proper 
entertainment of the President's guests. It is much 
less extensive and much less ornate than the royal 
palaces of Europe, yet it is quite ample to surround 
the occupant with that dignified freedom from intru- 
sion which the President ought to have. 

There is an impression that the President cannot 
leave the country and that the law forbids. This is 
not true. The only law which bears on the subject at 
all is the constitutional provision that the Vice-Presi- 
dent shall take his place when the President is disabled 
from performing his duties. Now if he is out of the 
country at a point where he cannot discharge the 
necessary functions that are imposed upon him, such 
disability may arise, but the communication by tele- 
graph, wireless and by telephone are now so good that 
it would be difficult for a President to go anywhere out 
of the country and not be able to keep his subordinates 
in constant information as to his whereabouts and his 
wishes. As a custom, Presidents do not leave the 
country. Occasionally it seems in the public interest 
that he should. President Roosevelt visited the Canal 
Zone for the purpose of seeing what work was being 
done there and giving zest to it by personal contact 
with those who were engaged in it. I did the same 
thing later on, traveling, as he did, on the deck of a 
government vessel, which is technically the soil of 
the United States, from Hampton Roads to the Canal 
Zone under the dominion of the United States. 
We were not out of the jurisdiction except for 
a few hours. He went into the City of Panama, as I 



THE MINOR POWERS OF THE PRESIDENT 51 

did, and dined with the President of the Panamanian 
Republic. So, too, I dined with President Diaz at 
Juarez in Mexico, just across the border from El Paso. 
Nobody was heard to say that in any of these 
visits we had disabled ourselves from performing our 
constitutional and statutory functions. 

The assassination of three Presidents led Congress 
to provide that the Chief of the Secret Service should 
furnish protection to the President as he moves about 
either in Washington or in the country at large. While 
President, I never was conscious of any personal 
anxiety in large crowds, and I have been in many of 
them. Yet the record is such that Congress would 
be quite derelict if it disregarded it. These guards are 
a great burden to the President. He never can go 
anywhere that he does not have to inflict upon those 
whom he wishes to visit the burden of their presence. 
It is a little difficult for him to avoid the feeling after 
a while that he is under surveillance rather than under 
protection. The Secret Service men are level-headed, 
experienced and of good manners, and they are wise 
in their methods. If a person is determined to kill a 
President and is willing to give up his life to do it, no 
such protection will save him. But desperate persons 
of this kind are very rare. The worst danger is from 
those who have lost part or all of their reason and 
whom the presence of the President in the immediate 
neighborhood excites. I may be mistaken, but it 
seems to me that with such experts as we now have, 
the assassination of President McKinley in Buffalo 
might possibly have been avoided. Under the prac- 
tice that the secret service men now pursue in a public 



52 OUR CHIEF MAGISTRATE 

reception, a man with a hand in his pocket would not 
be permitted to approach within striking or shooting 
distance of the President. His holding a revolver 
under his handkerchief in his pocket would now be 
detected long before he could get within reach of the 
object of his perverted purpose. He would find the 
hand of the Secret Service man thrust into the pocket 
to find what his own was doing there. Had this been 
done in the case of the assassin at Buffalo, that 
tragedy would probably not have occurred. 

The President so fully represents his party, which 
secures political power by its promises to the people, 
and the whole government is so identified in the minds 
of the people with his personality that they are in- 
clined to make him responsible for all the sins of omis- 
sion and of commission of society at large. This 
would be ludicrous if it did not have sometimes serious 
results. The President cannot make clouds to rain 
and cannot make the corn to grow, he cannot make 
business good ; although when these things occur, politi- 
cal parties do claim some credit for the good things that 
have happened in this way. He has no power over 
state legislation, which covers a very wide field and 
which comes in many respects much closer to the hap- 
piness of the people than the Federal government. 

Some urge, because the states have not shown 
themselves as active as they ought to be in suppress- 
ing evils and accomplishing good, that the United 
States government should thereby acquire additional 
authority, and the President and Congress should 
assume new functions. This would break up our whole 
Federal System. The importance of that system is 



THE MINOR POWERS OF THE PRESIDENT 53 

frequently misunderstood. Its essence is in the giving 
through the states local control to the people over 
local affairs and confining national and general sub- 
jects to the direction of the central government. Our 
experience with the administration of the public lands, 
with the control of our national mineral wealth, with 
the irrigation system of arid lands which we have 
undertaken, and with the disposition of the many 
sources of water power owned by the United States, 
all show that it is exceedingly difficult for the central 
government to administer what in their nature are local 
matters and put in force a uniform national policy as 
to these subjects that may often be at variance with 
the local view. A centralized system of government, 
in which the President and Congress regulated the door- 
steps of the people of this country, would break up 
the Union in a short time. Those who lightly call 
for this extension really do not understand the danger- 
ous proposition they are urging. 

While the President's powers are broad, the lines of 
his jurisdiction are as fixed as a written constitution 
can properly make them. He has tremendous respon- 
sibilities. Every President does the best he can, and 
while we may differ with him in judgment, while we 
may think he does not bring the greatest foresight to 
his task, while we may think that he selects poor in- 
struments for his assistants and therefore we may 
properly vote against his reelection to the office, we 
must remember that while he is in office, he is the head 
of our government. We should indulge in his favor 
the presumption that he acts under a high sense of 
duty. Correct ideals and disciplined intelligence should 



54 OUR CHIEF MAGISTRATE 

impose a special responsibility on men and women 
as law-abiding American citizens to be respectful to 
constituted authority and to the President, because it 
was the American people who chose him, and for the 
time being he is the personal embodiment and repre- 
sentative of their dignity and majesty. 



CHAPTER III 
THE POWER OF APPOINTMENT 

ONE of the functions which in a practical way gives the 
President more personal influence than any other is 
that of appointments. The prestige that a President 
has in the outset of his administration is in part due 
to this power. Even in the case of the most popular 
President, his prestige wanes with Congress as the term 
wears on and the offices are distributed. Mr. Evarts, 
in referring to filling consular places, said, " Some we 
appointed and more we disappointed." "'Tis true, 'tis 
pity, and pity 'tis, 'tis true." 

Under the Constitution, Ambassadors, Public Minis- 
ters, Consuls, Judges of the Supreme Court and other 
officers of the United States, whose appointment is not 
otherwise provided for, are to be appointed by the 
President, with the advice and consent of the Senate. 
Congress is permitted to vest the appointment of in- 
ferior officers in the President alone, in the courts of 
law or in the heads of departments. Heads of de- 
partments could hardly be called inferior officers 
at least they would object to such an interpretation 
though Senators and Congressmen sometimes call 
them so. The language of the Constitution thus 
leaves it doubtful whether Congress could give the 
selection of his Cabinet to the President without con- 
firmation by the Senate. The question will not trouble 

55 



56 OUR CHIEF MAGISTRATE 

us, however, for the Senate is never likely to consent 
to waive the right it now has, to pass upon the Presi- 
dent's choice of his official family. 

As a matter of fact, all the important offices, and a 
great many offices that are not important, in addition 
to the ones especially mentioned in the Constitution, 
are filled by the President, by and with the advice 
and consent of the Senate. The President alone is 
authorized by Congress to appoint comparatively few 
officers. There are minor officers in great number, 
notably the fourth-class postmasters, that are appointed 
by the head of a department. The Clerks of the courts 
and the United States Commissioners are appointed by 
the judges of the respective courts. 

It was settled, as long ago as the first Congress, at 
the instance of Madison, then in the Senate, and by the 
deciding vote of John Adams, then Vice-President, 
that even where the advice and consent of the Senate 
was necessary to the appointment of an officer, the 
President had the absolute power to remove him with- 
out consulting the Senate. This was on the principle 
that the power of removal was incident to the Executive 
power and must be untrammeled. In the administra- 
tion of Andrew Johnson, the Republican Congress 
regarded the President as an apostate and a traitor 
to Republican principles. With a two-thirds majority 
in each House, it sought to reverse this principle as to 
the power of removal by the tenure of office act. Its 
first section continued a person in an office in which he 
had been confirmed by the Senate, until the appoint- 
ment and qualification of his successor. This of course 
made his removal dependent upon the advice and con- 



THE POWER OF APPOINTMENT 57 

sent of the Senate to the appointment of a successor, 
and put the question of removal, therefore, completely 
within the control of the Senate. The act further es- 
pecially provided that the head of a department should 
hold his office during the term of the President who 
appointed him, and should be subject to removal only 
by consent of the Senate. This grew out of Mr. John- 
son's removal of Mr. Stanton from the War Office. 
When President Grant came into office, much of the 
act was repealed at his instance. It never came before 
the courts directly in such a way as to invite a decision 
on its validity, but there are intimations in the opinions 
of the Supreme Court that in the tenure of office act 
Congress exceeded its legislative discretion. 

As we look back upon the history of Johnson's ad- 
ministration, and can remember the extreme and 
passionate feeling entertained by good, moral, patriotic 
men toward Mr. Johnson, and the measures to which 
they were willing to resort in order to deprive him of 
his official power, and indeed of his office, we have a 
most significant illustration of the wisdom of limita- 
tions in a written Constitution, imposed by a highly 
intelligent people in their calm and deliberative mo- 
ments upon action which may be taken by themselves 
under the influence of passion and prejudice. Now 
that the period has become history, and a half century 
passed, we realize that it would have been a blot upon 
the fairness of the American people to have removed 
Mr. Johnson, with all his temperamental defects, on 
the grounds charged in the impeachment articles, and 
we rejoice that there were dissentient Republicans 
enough to prevent the majority of votes in favor of the 



58 OUR CHIEF MAGISTRATE 

impeachment from reaching the necessary two-thirds. 
It was a great deal better to put up with the gross mis- 
takes involved in Mr. Johnson's policies from a Republi- 
can point of view, than it was by a strained and unfair 
construction of the Constitution and of the evidence 
advanced, to remove him from his office on the ground 
that he had committed high crimes and misdemeanors 
in its administration. It is useful to dwell on this one 
of many notable instances in the history of every popular 
government, to refute the proposition upon which the 
recall of judges, the recall of judicial decisions, the 
attack upon written Constitutions and upon the sys- 
tem of their judicial interpretation and enforcement is 
based. That proposition is that because the people 
have and ought to have the power to adopt the written 
Constitution and to amend it, therefore they are fitted 
to interpret and apply the Constitution, and in effect 
amend it, in a particular case between particular indi- 
viduals. This is an egregious fallacy. The best and 
most intelligent men, well able wisely to frame and 
adopt a written Constitution laying down general limi- 
tations, in accordance with general principle, neverthe- 
less may, and often do, lose their fairness and clearness 
of vision over a special case between special individuals 
arousing personal or party passion. 

According to the last report of the United States 
Civil Service Commission, the number of officers and 
employees in the executive civil service, on the 30th 
of June, 1913, was 469,879. With the increase in the 
offices which occurred in the last Congress, and with 
the actual increase that follows the growth of the pop- 
ulation, it will soon be half a million. By the activi- 



THE POWER OF APPOINTMENT 59 

ties of these civil servants, the Federal government 
maintains its personal presence, so to speak, in every 
local community throughout the vast stretch of national 
jurisdiction. In the days before the present civil ser- 
vice law, a sense of obligation to the President for the 
places held, made practically all the civil employees 
his political henchmen. In those halcyon times, even 
the humblest charwoman or the most poorly paid 
janitor felt a throb of deep personal interest in the 
political health of the President. 

Machine politics and the spoils system are as much 
an enemy of a proper and efficient government system 
of civil service as the boll weevil is of the cotton crop, 
or the various forms of insects and blight are of the 
farmer and the horticulturist in then* pursuits. The 
strength of these pernicious influences has not been 
entirely destroyed by the present Federal civil service 
law. I think, however, their evil has been more miti- 
gated in the Federal civil service system than in the 
states where there is a merit system. In the rush of 
reform in the last decade, I believe nine of the states 
have adopted the competitive civil service system and a 
requirement for its adoption has been incorporated in 
the charters of 250 cities. The Federal system, is older 
and much better enforced. The difficulty, however, that 
we encounter is the same as in the carrying out of many 
reforms. The securing of the necessary legislation 
proves to be only a necessary initial step, but perhaps 
not the most important and difficult one. The law will 
not enforce itself. It has accomplished one purpose in 
enabling those who voted for it in the legislature to claim 
credit for it on the stump. But such a law cannot be 



60 OUR CHIEF MAGISTRATE 

drawn, which will be practical, and at the same time will 
not permit evasion of its purpose by a politician in the 
executive chair who devotes his time to it. We often 
therefore find the law more honored in the breach 
than in the observance. The life of a civil service 
system on the merit principle is in its executive en- 
forcement, and that only comes with a gradual im- 
provement in the public scrutiny and the official con- 
science in respect to the law. If a party remains 
in power for a number of successive terms, the 
merit system acquires a stronger hold than where 
frequent changes from one party to another in the execu- 
tive administration tempt the seizure of patronage for 
party purposes by hook or crook. Still we should not 
be disheartened. Defective as the Federal system law 
has proved to be in certain ways, the principle has 
made great headway since it was adopted in 1883. 
The positions then affected by it numbered about 
14,000. On June 30th, 1913, the positions affected 
were more than 282,000, and of these 172,000 were 
brought under the law by executive orders extending the 
system, while 110,000 were included by the natural ex- 
pansion of the service after the orders had become 
effective. About 190,000 positions under the govern- 
ment are not subject to competitive examination. Of 
these 10,000 are Presidential appointees. The re- 
mainder are laborers or contracting employees whose 
exclusion from the classified service is doubtless justi- 
fied by the conditions. It is with respect to the 10,000 
Presidential employees that a real improvement can be 
brought about. They are most of them local Federal 
officers distributed throughout the United States, first, 



THE POWER OF APPOINTMENT 61 

second and 'third class postmasters, collectors of cus- 
toms, collectors of internal revenue and public land 
officers. They must be confirmed by the Senate. Where 
an appointment is subject to confirmation by the Senate, 
it cannot by executive order be put in the classified 
civil service. Congress might, however, repeal the ne- 
cessity for confirmation and give the appointments to the 
President alone. He then could classify them all and 
incorporate them in the merit system, and the appoint- 
ments to such places would be filled by promotions from 
subordinate positions of assistants. Thus all the local 
offices throughout the country, the postmasters, the 
collectors of internal revenue, the collectors of customs, 
and all other subordinates, would be given permanent 
tenure and appointed and promoted after examination 
and upon proved efficiency. The retention by Congress 
of the necessity for confirmation by the Senate enables 
members to keep these local offices out of the classified 
service, and to make them the football of politics. In 
effect, it enables them to administer these offices as 
personal patronage, under a custom which is established 
through the so-called courtesy of the Senate. Under it, 
the partisan majority in the Senate will usually decline 
to confirm an appointment made by the President to a 
postmastership or a collectorship, which is not recom- 
mended by the Senators or Congressmen from the dis- 
trict in which the appointee lives and is to discharge 
his duties. There is a clear understanding between 
Senators and Congressmen as to how this patronage is 
to be divided between them in each state, and the 
President attempting to break up the custom has here- 
tofore found himself unable to do so. 



62 OUR CHIEF MAGISTRATE 

There have been notable instances, as in the case of 
President Garfield and Senators Conkling and Platt, 
where the President asserted his right to act without 
the recommendation of the New York Senators in a 
New York appointment. Public sympathy ran with 
the President in this controversy, as it generally does, 
but tradition and the advantage of cohesion in the 
Senate make it difficult to overcome the custom. 
More than this, in the Garfield-Conkling controversy, 
it was not a question of civil service reform. The 
issue was political. It was only a question whether a 
Conkling man should be replaced by a Blaine man, 
and it was a question whether Mr. Garfield should be 
permitted to pay a political debt of Mr. Blaine by the 
appointment of Mr. Elaine's friend, Judge Robertson, 
and the removal of a friend of Senator Conkling. Nor 
did Mr. Garfield seek to change the custom except in 
this case. In one of his state papers he expressly ad- 
vocated the system of recommendations for such ap- 
pointments by Congressmen and Senators. From time 
to tune in the present administration, there have been 
threatened issues over confirmations between the 
President and the Senate, growing out of party factional 
differences, but they have been smoothed over, and I 
think it will be found generally that the Senate has 
maintained the custom of which I have spoken. An 
attempt on the President's part to break up the custom 
would create a factional opposition which would inter- 
fere with the passing of the bills he recommends, and 
endanger the successful carrying out of the policies 
to which he is pledged. 

Any discussion of the subject is lacking which does 



THE POWER OF APPOINTMENT 63 

not make some reference to the solemn argument of 
solemn Senators in the effort to enlarge the meaning 
of the words "advice and consent of the Senate", used 
by the Constitution in describing the part the Senate 
should play in the matter of appointments. The 
usual contention is that these words require that 
the President, before making a nomination, consult 
the Senate. To use Skipper Jack Bunsby's language, 
as reported in Dombey and Son, "The bearings of 
this observation is in the application on it." Such a 
construction of the term "advice and consent" easily 
leads one imbued with the sacred awfulness of the 
Senate's function in the government to the conclusion 
that a Republican President under the Constitution 
and the courtesy of the Senate must consult the 
Republican Senators from a state before making an 
appointment in that state, although no such constitu- 
tional or statutory obligation is upon him in respect of 
Democratic Senators. The Constitution thus varies 
in its application to the power of Senators of one politi- 
cal party and to the Senators of another. This is not 
entirely humorous, much as it may seem to be. A Sen- 
ator asked me to appoint two men, (one to be District 
Attorney, and the other his assistant, and requested that 
they be allowed to divide the aggregate salary of the two 
offices equally. When I declined to do so, he requested 
the appointment of one of them to the chief office. 
Upon investigation, I did not think his standing at the 
bar was such as to justify the appointment, and was 
confirmed in this opinion by his willingness to accept the 
office under the arrangement as suggested. I nomi- 
nated another lawyer of much higher capacity and 



64 OUR CHIEF MAGISTRATE 

greater fitness, who was also a political supporter of the 
Senator. He fought the nomination on the ground 
that with devilish ingenuity I had sought to embarrass 
him. While he admitted the competency and high 
character of my nominee and his proper political views, 
he argued that as his advice to me had been different, 
and as he in such local matters represented the Senate, 
and had not advised and consented to the nomination, 
the appointment should not be confirmed, in his view 
of the constitutional function of the Senate in appoint- 
ments. I should, in fairness, say that the Senate did 
not sanction his view. 

As long as these important local offices remain polit- 
ical, and are the patronage of Senators and Congress- 
men, the expense of the administration of the offices 
will be largely more than it need be. I was much inter- 
ested during my term of office in devising a system for 
the permanent promotion of efficiency and economy in 
the government service. I induced Congress to give 
me $ 100,000 a year for two years, to pay the expenses 
of an expert Commission, to examine the governmental 
business and make reports upon the changes needed 
by the introduction of modern business methods and 
economy, to enable the people to get more for their 
money. The reports that they made, by which they 
pointed out needed changes in our present system, in- 
cluding the budget, which I described in my first 
chapter, were not popular with Congress, especially 
not with the last Congress of my term. The necessary 
appropriation was withdrawn. The Commission, how- 
ever, did a great deal of most useful work, and while 
the dust is accumulating on their reports at present, 



THE POWER OF APPOINTMENT 65 

their investigations and conclusions were of permanent 
value, and some day they will be made the basis for 
further investigation and for definite measures of re- 
form. Among other conclusions which they reached, 
and which makes a reference to their work relevant 
here, was that the requirement for confirmation by the 
Senate of these local Federal offices, numbering about 
10,000, should be repealed, and that the force in all the 
offices should be reclassified, and all, including the chief 
officers, should be put in the classified service. They 
reported that if this was done, the chief offices might be 
abolished and the work be done by the present assist- 
ants, whose salaries could be increased 20 per cent. In 
this way the work of the government would be more 
effectively done by the assistants who are usually ex- 
perts, and there would be a saving of $4,500,000 a year. 
Not only would the government's business be better 
done, but there would be eliminated opportunity for 
the use of Federal appointments to influence or control 
political nominations and elections, an abuse which has 
greatly helped the maintenance of machine politics 
and the success of professional political positions. I rec- 
ommended such a change in my four annual messages, 
but Congress took no notice of the suggestion. Con- 
gressmen and Senators have an impression that to 
lose this patronage would very seriously interfere with 
their political future and power. I do not mean to say 
that some Congressmen and some Senators do not make 
such patronage politically useful for themselves, but I 
venture to think, and the judgment of men of much 
greater political experience and observation than I 
have had will sustain me, that the having, and use of, 



66 OUR CHIEF MAGISTRATE 

such patronage more often injures than helps the user 
in securing his renomination and reelection. It is a 
saying in Washington, justified by the fact, that an 
appointment of a first, second, third or fourth class 
postmaster not infrequently creates for the Congress- 
man who secures it one ingrate and ten enemies. 

Candor compels me to refer to some dangers in our 
extension of the classified service and permanent ten- 
ure of employees. Substantial progress toward better 
things can rarely be taken without developing new 
evils requiring new remedies. In the classified sys- 
tem, there are large bodies of mail carriers, postal mail 
clerks, and of other subordinate civil servants, who 
have a common interest in an increase in their salary 
or other terms of their employment. They form asso- 
ciations or in effect trades-unions. They perfect their 
organizations. They publish a newspaper. Their gov- 
ernment duties carry them into close contact with the 
people and voters of the various Congressional districts, 
and in indirect ways they seek to bring undue political 
pressure upon the members of Congress and the Senate 
to accomplish their personal desires. They are often 
successful in this. It is a pernicious use of the oppor- 
tunities given by their official duties to secure an ad- 
vance of their pay or other more favorable terms of 
service, on other grounds than the merit of the ques- 
tion. Executive orders have been issued to prevent 
such activities, but the demagogues of both Houses 
and both parties rush forward to hamper Executive 
authority in this respect, and the evil thus far has 
continued. It has been used as an argument against 
the classified competitive system. It seems to me the 



THE POWER OF APPOINTMENT 67 

proper view to take of this is that we must find some 
means to prevent such an abuse, but that it should 
not be a reason for losing the great advantage of the 
merit system. 

I cannot exaggerate the waste of the President's 
time and the consumption of his nervous vitality in- 
volved in listening to Congressmen's intercession as to 
local appointments. Why should the President have 
his time taken up in a discussion over the question who 
shall be postmistress at the town of Devil's Lake in 
North Dakota ? How should he be able to know, with 
confidence, who is best fitted to fill such a place ? If we 
were to follow ordinary business methods in a matter 
which concerns business only and does not concern gen- 
eral political policies, as we ought to do, would we not 
leave such appointments to the natural system of pro- 
motion for efficiency ? If the persons and parties con- 
tending for the abolition of bosses and the suppression 
of machines would show the faith and sincerity that 
ought to be in them, they could promote the cause which 
they so loudly proclaim, most effectively, by passing the 
law which I recommended to Congress. Totes upon such 
a measure would be a test of their sincerity in this matter. 
I regret to say that up to this time, few members of any 
party, whether Republican, Democratic or Progressive, 
however drastic reformers, have stood this test. Of 
course there were machines that were corrupt and there 
were bosses that made a profession of politics and held 
themselves out as political attorneys to be retained. 
There are not so many now. A great reform in this 
respect has been effected. But parties are essential to 
the success of popular government, and parties mean 



68 OUR CHIEF MAGISTRATE 

organization. It is not without humor to note the 
effect upon the enthusiastic purist and reformer in poli- 
tics when a consciousness of this steals over him, and he 
begins to look with tenderness upon the use of patron- 
age to help the organization of the party which was 
founded in the interest of pure reform. We find that 
often the difference between political machines and a 
party organization for reform is only determined by the 
question, " Is it for you or against you ? " If it is for you 
and your ideas, it is a justifiable organization, and the 
more effective you can make it, the better. If it is 
against you, it is a low political machine and ought to 
be condemned out of the mouths of all decent people. 
If the leader of the organization is with you, he is a polit- 
ical leader with a statesmanlike view. If he is against 
you, he is a boss, and the typical head of a dangerous 
machine. This personal element and this distinction 
between the evil use of patronage and the good use of 
patronage are the two obstructions to a betterment 
of our civil service system. Everything that tends to 
arbitrary and complete power in any officer in the distri- 
bution of offices, whose duties do not affect the determi- 
nation of political policies, is demoralizing. It gives 
sanction to favoritism, and favoritism develops abuses 
even where its exercise is entrusted to the best men. 

/The law put_thfi^ppointment of clerks of courts Jn 
the judges. Judges are men of high character, great 
ability and wide learning generally, but when they are 
given executive or quasi-political functions, that is, 
when they exercise patronage, they have proven to be 
quite like other men. Clerks appointed in the Federal 
district courts become part of the family of the judge. 



THE POWER OF APPOINTMENT 69 

Their appointments are practically for life. They feel 
secure. They are close to the judge. Their associa- 
tions are intimate. They naturally seek to increase 
the earnings of their offices, especially when their 
salaries are more or less dependent on the amount 
of their official earnings, and they are prone to over- 
charges. The favor they enjoy with the judge as part 
of his family has, I am sorry to say, permitted such 
abuses.. The reluctance that some judges have to call 
their clerks to strict account in the management of 
their offices is too well known to the head of the De- 
partment of Justice, and to his inspectors, whose duty 
it is to examine their accounts. When in office, I rec- 
ommended that the President have the power of 
removal of such clerks for cause, upon the report of the 
Attorney-General, but no such action was taken, al- 
though there were a number of cases presented justify- 
ing such a change in the law. With nearly one hundred 
clerks of courts, and with a larger number of deputies 
spread all over the United States, the influence that can 
be used with members of Congress in a matter like this, 
not acutely political, only those who have had occasion 
to meet it can fully understand. 

In order to protect the judges against their unjudicial 
selves in extra judicial matters, I would remove all pat- 
ronage from the courts. The patronage of the Lord 
Chancellor in England is very large indeed, and it 
does not tend to the higher standing of that great judi- 
cial officer. Lord Westbury, one of the ablest Chan- 
cellors England ever had, was compelled to resign be- 
cause of a difficulty growing out of the patronage which 
he had exercised in behalf of a member of his family 



70 OUR CHIEF MAGISTRATE 

who had abused his office. I would vest the appoint- 
ment of receivers in equity to take charge of railroads 
by the Federal courts in the Interstate Commerce 
Commission. They could be made of course quite as 
subject to the direction of the court, though appointed 
by another authority, as if appointed by the court 
itself. I know whereof I speak as to the wisdom of such 
a change. For eight years I acted as a circuit judge, 
and during much of that time, I was engaged through 
receivers in operating many thousands >of railroads 
within my circuit. The executive power of appoint- 
ment the court is thus called upon to exercise is not 
good for the court, creates antagonisms that ought 
to be avoided, and interferes with the proper dis- 
charge of normal judicial functions. The vesting in 
courts of the appointment of supervisors of elec- 
tion under the Federal election laws before their 
repeal was greatly detrimental to the standing of 
the Federal courts and necessarily had the effect to 
drag them into partisan controversy. In the South, 
because the judges were generally of the opposite 
political complexion from that of the great body of 
the voters, it made the courts for the time being 
alien courts. Since the abolition of the Federal election 
laws and the appointments of a number of Democratic 
judges in the South, I think the standing of the Fed- 
eral courts with the people of that section has become 
changed for the better. 

In my judgment, the President should not be required 
to exercise his judgment to make appointments except 
to fill the most important offices. In the Executive 
department, he should be limited to the selection of 



THE POWER OF APPOINTMENT 71 

those officers, the discharge of whose duties involves 
discretion in the carrying out of the political and 
governmental policy of his administration. He there- 
fore ought to have the appointment of his Cabinet 
officers, and he ought also to have the appointment of 
a political under-secretary in each department to take 
the place of the head of the department when for any 
reason the head of the department is not able to dis- 
charge his usual duties. All other officers in the de- 
partments, including the Assistant Secretaries and the 
Chiefs of Bureaus, should have a permanent tenure 
and not change with each administration. This would 
greatly facilitate the continuity of the government and 
prevent the halt and lack of efficiency that necessarily 
attend a change hi the Assistant Secretaries in each 
department and in the Chiefs of all Bureaus. For a 
year or a year and a half, at least, sometimes for a longer 
period, it throws the administration of the depart- 
ment into the complete control of minor subordinates, 
the Chiefs of Divisions and Chief Clerks, and makes 
the inexperienced heads of departments, Assistant 
Secretaries and Chiefs of Bureaus entirely dependent 
on such subordinates. 

Consider the entirely unnecessary helplessness of our 
government in the administration of our foreign rela- 
tions, in which there is a greater necessity for continuity 
of policy than in any other department, when men 
having no practical knowledge of the previous foreign 
policy of the government, its safe traditions or of diplo- 
matic custom, are substituted for competent officials. 
When such changes are possible, we put ourselves at a 
great disadvantage in dealing with the departments of 



72 OUR CHIEF MAGISTRATE 

foreign affairs of other countries, and this disadvantage 
is accentuated and increased when competent repre- 
sentatives abroad in our diplomatic service are removed 
and men of no experience replace them. The Presi- 
dent of course should appoint the Supreme Judges, as 
the Constitution requires, and the inferior judges of 
the Federal judiciary. He ought, too, to appoint the 
general officers of the army and the flag officers of the 
navy, and he ought also to appoint the leading Ambas- 
sadors and Ministers. Other appointments, it seems 
to me, might well be left to a system of promotion, to be 
carried on under civil service rules as interpreted and 
enforced by a Commission and the heads of depart- 
ments. In this way, the attention of the President 
would be taken up in matters of appointment with 
those offices in which he would have a full opportunity 
to learn of the qualifications of proper candidates, and in 
the appointment of which, because of the conspicuous 
importance of the duties to be discharged, he would be 
held to a proper responsibility by a much more dis- 
criminating public scrutiny than can possibly be exer- 
cised in respect to the less important and subordinate 
offices. 

I have spoken of the drain upon the nervous vitality 
of the President in the consideration of the many sub- 
ordinate offices that he has to fill and the constant in- 
terviews that he is bound to have with Congressmen 
and with Senators over such appointments, and the 
disputes and friction incident to the decision in such 
cases. One cannot go through the strain of the 
Presidential office, especially in such cases, unless he 
has a sense of humor. That takes up the jolts, and 



THE POWER OF APPOINTMENT 73 

it lightens the monotonous and annoying routine and 
gives an opportunity for a study of the play of motives 
in human nature. No one has as good opportunity 
to know Senators and Congressmen as the President, 
because in asking the Presidential favor, the Senator or 
Congressman frequently bares his motives and dis- 
closes his inmost traits of character in the confidence 
and secrecy of the Executive office. It is more or less 
an unconscious confessional. It enables the President 
to measure the characters of men in public life. He 
finds that some popular idols have feet of clay, and that 
others not held in great public esteem have sturdier 
virtues and more disinterested anxiety for the public 
weal than their press-made reputations would indicate. 
Sometimes the incidents are farcical and mirth- 
making. I remember one case of the wife of a politi- 
cian of influence, who was anxious to sscure an appoint- 
ment for her son. She procured the recommendation 
of Congressmen and Senators in both parties, and to see 
that they said what she wished them to say, she accom- 
panied them to the Executive office. When the appoint- 
ment, which was for a technical place, was given to 
another, she wrote me a letter, most severe, in which 
she arraigned me for ingratitude in not giving her per- 
manent happiness, as I might, by the turn of my hand, 
when she had secured a number of votes for a bill in 
the passage of which I was much interested as an 
administration measure. I wrote to her in as gentle a 
way as possible to break the blow to a mother's heart 
and supposed that the incident was closed ; but an acci- 
dental delay in the confirmation led to the writing of a 
letter in the name of her husband, but in her handwrit- 



74 OUR CHIEF MAGISTRATE 

ing, in which I was advised that she was seriously ill 
in bed with a disease usually fatal and which was in- 
juriously affected by the mental worry which I had 
given her by a failure to make the appointment which 
she sought. The letter requested that I withdraw the 
name which had been sent in and appoint her son in 
order that she might rise again from what otherwise 
would be her last illness. I wrote another sympathetic 
letter explaining why this could not be done. The 
appointment I had made was confirmed immediately 
after, and within two days this lady and her husband 
were the first guests to greet Mrs. Taft and me at a 
White House musicale, without the slightest evidence 
of any illness at all, and with an attractive smile which 
seemed to say, "That episode is ended and we are on 
good terms still." 

A lady of charming appearance and manner, elegantly 
gowned, came to me when I was Secretary of War, 
and asked that her son be admitted to West Point. 
The son had been appointed, but had failed to pass the 
entrance examinations. I explained to her why we had 
to be very careful in making our examinations as stiff 
as we dared to make them because the benefit and ad- 
vantage of an appointment to West Point, which gave 
a fine education, and during which the cadets received 
a salary from the government, justified a test elim- 
inating the unworthy. She rather impatiently asked 
me to examine the papers, which I did, and found to my 
surprise that her son had passed an examination in 
which he had obtained a mark of 95 out of 100. This 
was unusual and commended him strongly to me. I 
found that his rejection had been on the ground that his 



THE POWER OF APPOINTMENT 75 

chest measurement did not bear such a ratio to his 
height, which was great, as the medical board had 
thought to be proper and necessary. I explained to 
the lady the necessity that we were under of having 
strong and healthy boys educated at West Point, be- 
cause if there was anything organically the trouble with 
them which might develop later, the government ran 
the risk of being obliged to retire such men for disabil- 
ity and to pay them three-fourths pay all their lives 
without receiving any compensatory service. She 
listened to this explanation with a lack of attention and 
a nervous restlessness which husbands will understand. 
An examination of the papers, however, made me feel 
that, as we needed men of brains as well as brawn in the 
army, the unusual mental capacity would justify my 
running the risk of the boy's filling out his chest meas- 
urements to the required extent. I said to the mother 
therefore that as I had no difficulty in filling out my 
chest measurement, I thought it would be possible for 
her son, with his intellectual capacity, to follow a regi- 
men to give his lungs the proper room, and that I was 
inclined to waive the objections. She did not quite 
follow me in my statement and she inquired eagerly, 
"Are you going to let him in?" I said I was, and 
then there spread over her comely face a rosy smile, and 
she hesitated a moment to think what she could say to 
express her gratitude and her satisfaction with me, and 
then she said, "Mr. Secretary, you are not nearly so fat 
as they say you are." A recollection of that remark 
has enabled me to get through a good many scenes 
that were much more annoying and had a much less 
satisfactory issue. 



76 OUR CHIEF MAGISTRATE 

The framers of our Constitution had one essential 
feature of efficient government clearly in mind. They 
gave to the Executive officer charged in law with the 
responsibility and actually charged by the people with 
the responsibility of carrying on the Executive depart- 
ment of the government, the power and means of meet- 
ing that responsibility. They vested in him complete 
power to appoint all the officers of the government who 
were subordinate to him, and upon whose political capac- 
ity and governmental discretion would depend the wise 
carrying out of his policies. They gave him the power 
of absolute removal, and they placed in his hands the 
control of the action of all those who took part in the 
discharge of the political duties of the executive de- 
partment. They acted on a sound political princi- 
ple, and it ought to be introduced into every field 
of governmental activity, into the states and into the 
cities. The plan under which a dozen state officers 
engaged in executing the laws are elected on one ticket 
and have no relation of subordination to the normal 
executive head, the governor, is as absurd as it can be. 
It is one of those anomalies in our political history, of 
which there are a number, which seem to refute the 
idea that we are an intelligent and clear-sighted people, 
because the system adopted is so utterly at variance 
with the teachings of experience. But we have had 
such governments indeed most of our state govern- 
ments are of this kind. They have not been as good 
governments as they might have been or as they ought 
to have been, and yet they have worked. The fact 
that they have worked, may properly be taken as the 
most conclusive evidence of the political capacity of the 



THE POWER OF APPOINTMENT 77 

American people through public opinion to main- 
tain a fairly good government and to get along some- 
how, with what seems a priori to be an impossible 
system. The Constitutional Convention has recom- 
mended a change in the present form of the government 
of New York, which is a most flagrant example in its 
plan of what a state government ought not to be. They 
have reduced the number of elective officers to four, 
on the principle of what is called the short ballot, and 
they have put the seventeeen departments of the state 
under the executive control of the governor. This is as it 
should be, and is a step forward of such notable and radi- 
cal character that the change that it would make alone 
is enough to justify the adoption of the proposed Con- 
stitution. 



CHAPTER IV 

THE DUTY OF THE PRESIDENT TO TAKE CARE THAT 
THE LAWS ARE EXECUTED. THE POWER AND DUTIES 
OF THE PRESIDENT AS COMMANDER-IN-CHIEF 

THE widest power and the broadest duty which the 
President has is conferred and imposed by a clause in 
section three of article two, providing that "he shall 
take care that the laws be faithfully executed." This 
same duty is enforced by the provision that before he 
enter on the execution of his office, he shall take the 
following oath or affirmation : 

I do solemnly swear or affirm 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. 

In executing a statute of Congress, through the proper 
department and the proper subordinate officers, the 
President's course is as clear, or as doubtful, as the 
statute. In order that he or his subordinates shall 
enforce the statute, they must necessarily find out 
what it means, and on their interpretation of it enforce 
the law. Statutory construction is practically one of 
the greatest of executive powers. Some one has said, 
"Let me make the ballads of the country, and I care 
not who makes the laws." One might also say, para- 
phrasing this, "Let any one make the laws of the coun- 
try, if I can construe them." Of course ultimately 

78 



FAITHFUL EXECUTION OF THE LAWS 79 

where a statute affects private right, it is likely to come 
before the courts in actual litigation and to put upon 
the courts the duty of its construction. But there 
are many statutes that do not affect private right in 
such a way that they come under the court's interpre- 
tation; and in such cases Executive interpretation 
is final. Even where it is not, it is very persuasive 
with courts who subsequently are obliged to adjudge 
the meaning of the statute. 

In the practical provision for the enforcement of 
law by Congress, that body has found it necessary to 
impose upon the President or his subordinates not only 
a purely Executive function, but to enlarge this into 
what are really quasi-legislative and quasi-judicial 
duties. Frequently in statutes covering a wide field, 
Congress confers upon the particular subordinate of 
the President, who is to execute this law, the power 
to make rules and regulations under it which are legis- 
lative in their nature. This is for the purpose of ena- 
bling those who are affected by the terms of the law, 
both government officers and the public, to learn how 
it is to be enforced, and how it is to be complied with. 
If you would know the importance, difficulty and wide 
discretion involved in such a task, I commend you to 
the present income tax, and beg you to note "the main 
strength" that had to be used in formulating work- 
able regulations for its operation and enforcement, 
and which were really a reconciliation of the parts of 
the law that seemed inconsistent and almost irrec- 
oncilable. 

The Commissioner of Internal Revenue, with the 
approval of the Secretary of the Treasury, issues regu- 



80 OUR CHIEF MAGISTRATE 

lations for the collection of the internal revenue taxes 
generally. The customs laws are interpreted and sup- 
plemented by regulations of the Secretary of the Treas- 
ury. The Department of the Interior, in the adminis- 
tration of the land laws, has a book of regulations that 
are of a minor legislative character, and this is true of 
other bureaus and departments of the government in 
respect to laws to be enforced by them. 

Congressional legislation often confers on those who 
comply with its conditions property rights or valu- 
able privileges. Now Congress may exercise a choice 
as to whether it shall give jurisdiction to pass upon the 
claims of those seeking these rights to an Executive 
tribunal or a Judicial tribunal. The application for 
a patent for an invention is made to the Commissioner 
of Patents or a subordinate, but provision is made for 
an appeal from his decision to the Secretary of the 
Interior and thence to a court. Soldiers' pensions, 
however, and patents under the homestead and other 
general land laws for government lands, are granted 
upon application, after a hearing before an Executive 
tribunal, to determine whether the applicants come 
within the conditions of the act granting the pension 
or the land. Under the immigration acts are officers 
exercising similar quasi- judicial powers subject to 
review by the head of the department only, for the 
purpose of determining whether immigrants who come 
to this country are eligible under its laws to enter. 
The laws have now gone to the extent of providing 
that such tribunals may direct the deportation of 
those who have illegally entered, and that they may 
finally decide, after a fair hearing, whether a man claim- 



FAITHFUL EXECUTION OF THE LAWS 81 

ing to be a citizen of the United States, and thus en- 
titled to enter, is really such a citizen. This shows 
how judicial in its nature the function of the subordi- 
nates of the President in the execution of laws may 
become. 

Then consider the drawing of money from the Treas- 
ury Department under an appropriation act. The 
drawing of the warrant must be approved by the Comp- 
troller of the Treasury. It is for him to say how the 
appropriation act shall be construed and whether the 
warrant is lawful and whether the money can be drawn. 
The Comptroller of the Treasury is an appointee of 
the President, and in a general sense is his subordinate. 
If the President does not like him as a Comptroller, he 
can remove him and with the consent of the Senate put 
in another one, but under the act of Congress creating 
the office, the President cannot control or revise the de- 
cisions of this officer. His work is like the work I have 
referred to, quasi-judicial. If the claim is rejected by 
him, the claimant may in some cases carry his case into 
the Court of Claims, but if he decides for the claimant, 
the public and those interested in maintaining the side 
of the government have no appeal, and his decision is 
final. 

Originally claims against the government could not 
be heard in court. The government did not permit 
itself to be sued, the claims were passed upon by Execu- 
tive officers and were referred to Congress for its con- 
sideration and action by appropriation. Now a Court 
of Claims has been established with jurisdiction to 
hear and adjudge suits against the United States, based 
on contracts, express or implied, and in a narrow class 



82 OUR CHIEF MAGISTRATE 

of torts. Judgments in the Court of Claims are certified 
to Congress for payment and are subject to review by 
the Supreme Court of the United States. This develop- 
ment from the decision of executive officers from claims 
depending upon government concession or grants, 
into executive tribunals and finally into a real judicial 
hearing before a court, is one of numerous instances 
of the tendencies of the Anglo-Saxon to give a hear- 
ing as fair and equitable as is consistent with the 
effective operation of the government purpose. It was 
seen originally in the growth and development of the 
court of chancery out of the arbitrary decisions of the 
Lord Keeper in dealing with the litigants at common 
law, and ameliorating its rigidity. The creation of 
many executive Commissions has given rise to qualms 
in the minds of some, lest we are departing from those 
forms of proceeding intended to protect individual 
right. It may well be pointed out that the trend in 
all such executive tribunals is toward due judicial hear- 
ing and procedure. 

The instances that I have been considering are cases 
of government concession. Of course in such cases 
it is entirely within the power of Congress to prescribe 
the conditions of granting the concession. When 
individuals are affected by act of Congress in their 
vested rights of life, liberty and property, then Con- 
gress is limited in conferring its method. One gen- 
eral limitation is that Congress may not deprive a 
person of his life, liberty or property except by due 
process of law. Therefore Congress may not confer 
on the Executive, judicial power, that is, power to 
decide cases that according to the due course of law 



FAITHFUL EXECUTION OF THE LAWS 83 

should be heard by courts. Such are controversies 
of private right between individuals. Such are the 
trials of individuals for crimes. An executive may not 
be vested with the authority to decide such issues. 
This is the general rule, and yet custom and the due 
course at common law have created exceptions to this 
general rule, exceptions growing out of the inherent 
necessities of government. The collection of taxes 
deprives a man of his property by taking a part of it, 
but there is no limitation upon the legislative power 
requiring it to afford judicial settlement of the amount 
of taxes to be collected from an individual under uni- 
form rules laid down by the legislature. The method 
must be summary. Congress may vest final decision 
as to their construction in any executive officer or 
board. Of course if the tax law violates the Constitu- 
tion, then it is void and gives no officer any authority 
to act under it. But where the question is only one 
of construction, Congress may, in tax cases, keep it out 
of the courts entirely and vest final interpretation and 
execution in the taxing officer. Congress has not gen- 
erally done this, but has ultimately given an oppor- 
tunity for the taxpayer to appeal to the Federal courts. 
However, the United States always takes the money 
first. No injunction is permitted to suspend the agony 
of an unwilling taxpayer and permit him to withhold 
the money pending the deliberation of a court. 

The express duties defined in the statute, and dis- 
tributed to the departments and to the various 
appointees of the President, create a great permanent 
organization over which he can exercise only a very 
general supervision. Under the civil service laws, 



84 OUR CHIEF MAGISTRATE 

inadequate as they are in some respects, the continuity 
of the government in the departments at Washington 
in routine matters is fairly well settled and is little 
changed from administration to administration. It 
would be difficult, if the President chose to exercise 
the power he has, to impose his personality minutely 
on the going government. He can insist upon greater 
economy. He can infuse a new spirit in the service by 
making plain his earnest desire for greater efficiency, 
and yet while he is, of course, the real head of the gov- 
ernment, there seems to be an impersonal entity in the 
permanent governmental structure, independent of 
him, which in some degree modifies his responsibility 
for its operation. Chiefs of Divisions and clerks of 
Bureaus in the civil service in Washington have been 
there for decades. They are loyal to the government, 
and not especially beholden to any one President. 
They are as important in the army of civil servants 
as the old non-commissioned officers are in a military 
force. They have far greater experience than the heads 
of their departments and bureaus who change every 
Presidential term. Their life-long fidelity and effi- 
ciency are not rewarded by notices in headlines. They 
have true philosophy, and are content with small 
salaries, permanent tenure, a conscience of duty well 
done and the flattering dependence upon them that 
their immediate superiors manifest. This permanent 
structure of government works on. Presidents may 
go to the seashore or to the mountains, Cabinet Officers 
may go about the country explaining how fortunate 
the country is in having such an administration, but 
the machinery at Washington continues to operate 



FAITHFUL EXECUTION OF THE LAWS 85 

under this army of faithful non-commissioned officers, 
and the great mass of governmental business is un- 
interrupted. The President notes little of this normal 
operation of the regular vast machine of government, 
which in many respects is automatic, unless its work- 
ings result in a break or there is a palpable need of 
repair. The chief concern of the President is in 
following a path that is not so clearly beaten as 
the routine work done by this inconspicuous but 
necessary governmental machine which I have de- 
scribed. 

The laws that the President must take care shall be 
faithfully executed are not confined to acts of Con- 
gress. The treaties of the United States with other 
countries are under the Constitution laws of the United 
States having the same effect as Congressional enact- 
ments, in so far as they are intended to operate in this 
way and are in form appropriate. Sometimes, how- 
ever, Congress does not like a treaty and refuses to 
pass a law to make compliance with it by the Execu- 
tive as easy at it ought to be. This was the case 
with the treaty which John Jay made with Great 
Britain. Jay was hung in effigy, and his work though 
ratified by the Senate and Washington was nearly 
as unpopular as the alien and sedition laws of a little 
later period. 

Jay's Treaty provided that England and the United 
States on proper requisition from each to the other 
should deliver up all persons charged with murder or 
forgery, within the jurisdiction of one and seeking 
an asylum in the jurisdiction of the other. Congress 
during John Adams' administration passed no law 



86 OUR CHIEF MAGISTRATE 

to carry out this article and made no provision, as it 
has done since in all such cases, for any examination 
of the accused before a court as the basis for granting 
a warrant of extradition. No express power was given 
to the President to issue such a warrant. The matter 
stood on the naked words of the treaty. A subject 
of Great Britain committed a murder on the high seas 
on a British ship, and then escaped to South Carolina. 
He was there apprehended and brought before the 
Federal court for commitment on the charge of piracy 
in alleged violation of statutes of the United States. 
President Adams wrote to the examining judge that 
it did not seem to him that this was piracy and that 
the Federal court had no jurisdiction over the act as 
such ; that the crime was murder and was committed 
within the jurisdiction of Great Britain and therefore 
was within the treaty; that the English government 
had requested the delivery of the accused under the 
treaty to their agent, and that if the judge found the 
evidence of the probable guilt of the prisoner sufficient, 
he, the President, would order him to be turned over 
to England. The judge agreed that there was no juris- 
diction in the Federal court, but said that the evidence 
was sufficient for commitment on the charge of homicide. 
The President issued his warrant, the man was de- 
livered to the English authorities and was tried and 
executed for his offense. Edward Livingston, one of 
the greatest jurists that ever lived in the United States, 
was then a Republican member of Congress and a fol- 
lower of Jefferson, and a very strenuous political oppo- 
nent of President Adams. He introduced resolutions 
which recited that the action of the President was an 



FAITHFUL EXECUTION OF THE LAWS 87 

unjustifiable interference with the court's jurisdiction, 
that there was no statute authorizing an order of ex- 
tradition by the President, and therefore that his act 
was a usurpation and a violation of the personal rights 
of the man who had been extradited and executed. 
John Marshall, afterwards Chief Justice, was then a 
member of the House of Representatives and a sup- 
porter of the administration. He made an argument 
to sustain the validity of President Adams' warrant. 
It is reported in the first appendix of the Fifth Wheaton. 
Mr. Justice Gray, speaking for the Supreme Court, 
nearly one hundred years later, pronounced the argu- 
ment to be masterly and conclusive, and to establish that 
within the President's constitutional obligation to take 
care that the laws be faithfully executed, the treaty ob- 
ligation of the United States was such a law. If you 
will read the argument of then Congressman Marshall, 
you will agree with the Court and Mr. Justice Gray. 
It is as convincing and as judicial in its tone as one of 
Chief Justice Marshall's great judgments. 

A similar instance came within my own official 
cognizance when I was Secretary of War. In the 
absence of Mr. Root, Secretary of State, President 
Roosevelt sent me to Cuba to see if we could compose 
a revolution against President Palma's government 
in that Republic. We found a revolution flagrant, 
and we felt that intervention was necessary, and the 
question was whether the President, without action 
of Congress, could use the army and navy and inter- 
vene under the so-called Platt Amendment of the Treaty 
between Cuba and the United States. That Amend- 
ment was in part as follows : 



88 OUR CHIEF MAGISTRATE 

The Government of Cuba consents that the United States 
may exercise the right to intervene for the preservation of Cuban 
independence, and the maintenance of a government adequate for 
the protection of life, property, and individual liberty. 

I advised the President that this treaty, pro tanto, 
extended the jurisdiction of the United States to main- 
tain law and order over Cuba in case of threatened 
insurrection, and of danger of life, property and in- 
dividual liberty, and that under his duty to take care 
that the laws be executed this was "a law" and his 
power to see that it was executed was clear. Events 
followed quickly our investigation and recommenda- 
tions, and I was obliged to ask for the army and navy 
and by authority of President Roosevelt to institute a 
provisional government, which lasted nearly two years. 
It restored order and provided a fair election law, 
conducted a fair election, and turned that government 
over to the officers elected under the Constitution of 
Cuba. There were some mutterings by Senators that 
under the Platt Amendment, Congress only could 
decide to take action. However, the matter never 
reached the adoption of a resolution. Congress appro- 
priated the money needed to meet the extraordinary 
military and naval expenditures required, and recog- 
nized the provisional government in Cuba in such a 
way as to make the course taken a precedent. 

Nor are the laws of the execution of which the Presi- 
dent is to take care, confined to express Congressional 
statutes and provisions having force of law in treaties. 
The Supreme Court has declared that any obligation 
inferable from the Constitution, or any duty of the 
President or the Attorney-General to be derived 



FAITHFUL EXECUTION OF THE LAWS 89 

from the general code of his duties under the laws 
of the United States is a law within the meaning of 
this phrase. This was decided in an interesting case 
from California. Sarah Althea Hill, a resident in 
California, said she was married to Ex-Senator Sharon 
of Nevada, and Senator Sharon said she was not. 
She brought suit in the courts of California to secure 
a divorce, with alimony, to be satisfied out of his very 
large estate, and made proof of the marriage by intro- 
ducing a letter purporting to be written by Senator 
Sharon admitting the marriage. Senator Sharon then 
went into the Federal Court as a citizen of Nevada, 
and sued Miss Hill of Calif ornia to compel her to deliver 
up this paper purporting to be a letter of his, on the 
ground that it was false and forged, and that she was 
using it to his detriment, as she certainly was. In 
the Federal Court, Mr. Justice Field rendered several 
decisions adverse to Miss Hill's claims. Meantime, 
Senator Sharon had died and Miss Hill had married her 
counsel, Judge Terry. When Justice Field was deliv- 
ering one of his judgments, adverse to Mrs. Terry, 
Judge and Mrs. Terry were in the court-room, and 
Mrs. Terry rose and denounced Judge Field and at- 
tempted to assault him. He sent her to jail for thirty 
days. He also sent Judge Terry to jail for assault made 
by him upon the court bailiffs after Mrs. Terry's 
arrest. Judge and Mrs. Terry then and frequently 
thereafter threatened that when the opportunity 
came they would kill Judge Field. The Justice re- 
turned to Washington to sit upon the Supreme Court 
and notice of the threats was brought to the attention 
of Attorney-General Miller. He deemed them seri- 



90 OUR CHIEF MAGISTRATE 

ous enough to direct the United States Marshal of 
California to assign a deputy to accompany Justice 
Field when he was traveling upon the circuit the 
next year in California. This was done. After having 
held court at Los Angeles, Mr. Justice Field was 
traveling to San Francisco to hold court there. He got 
out of the train at Lathrop, a station near Fresno, to 
breakfast. At the same time a train arrived from San 
Francisco upon which were Judge and Mrs. Terry. 
Justice Field had entered the restaurant when the 
Terrys came in and saw him. Mrs. Terry at once 
returned to her sleeping car to secure a revolver which 
she had left in her satchel. Judge Terry advanced 
toward Judge Field, and as the court found, attacked 
him from behind. Neagle, the Deputy United States 
Marshal, who was protecting Judge Field, rose, called 
to Terry that he was an officer, and demanded that he 
cease his attack. Terry, as Neagle testified, made 
a movement as if to draw a weapon, and in defense of 
Justice Field Neagle shot twice and killed Terry. 
Neagle was indicted in the state court of California 
for murder for killing Terry. He applied to the Circuit 
Court of the United States for a writ of habeas corpus 
to discharge him from the custody of the state court, 
on the ground that the act for which he had been in- 
dicted he had' committed in pursuance of a law of the 
United States, and that under the Federal statute 
giving in such case the right of release by habeas corpus 
by the Federal Courts he was entitled to his discharge. 
Judge Sawyer, of the Circuit Court, granted Neagle's 
application and released him. The state of Cali- 
fornia carried the case to the Supreme Court of the 



FAITHFUL EXECUTION OF THE LAWS 91 

United States. The question was whether in the 
absence of an express statute giving the President or 
the Attorney-General of the United States or the United 
States Marshal the duty and power to protect a United 
States Judge in the discharge of his duties such pro- 
tection was an act in pursuance of a law of the United 
States. The Court likened the word "law" to the 
term "laws" in the constitutional obligation of the 
President to take care that the laws of the United States 
be faithfully executed, and Mr. Justice Miller, speak- 
ing for the Court, held that the government of the 
United States, in view of the constitutional provision 
for the appointment of Judges and the establishment 
of a system of courts, was under an obligation to pro- 
tect its Judges from assault by disappointed litigants 
when those Judges were in the discharge of their official 
duties, and that such an obligation constituted a law 
which it was the duty of the President to take care 
should be faithfully executed. He said, "It would be 
a great reproach to the system of government of the 
United States, declared to be within its sphere, sover- 
eign and supreme, if there is to be found within the 
domain of its powers no means of protecting its Judges 
in the conscientious and faithful discharge of their 
duties from malice and hatred of those upon whom 
their judgments may operate unfavorably." 

Speaking of the injunction upon the President to 
take care that the laws be faithfully executed, he said, 
"Is this duty limited to the enforcement of acts of 
Congress or of treaties of the United States according 
to their express terms, or does it include the rights, 
duties and obligation growing out of the Constitution 



92 OUR CHIEF MAGISTRATE 

itself, our international relations and all the protection 
implied by the nature of the government under the 
Constitution?" He affirms the latter alternative. 

He then cites the action of a captain of a United 
States naval vessel in compelling the surrender in the 
harbor of Smyrna, by an Austrian vessel, of Kotza, 
a Hungarian, who had made his declaration of inten- 
tion to become a citizen of the United States, as an 
instance in which the Executive enforced "a law" of 
the United States, not on the statute book, in protect- 
ing an "embryo" American citizen against foreign 
aggression. He instances as analogous cases the action 
of the President in ordering the army and marshals of 
the United States to maintain the safety of the mails, 
and to protect public land from trespassers, all in the 
interest of the government, and all without express 
statutory authority so to do. 

The same principle seems to be exemplified in Logan 
against the United States, 144 U. S. 263-284. 
There a band conspired to kill certain prisoners in 
the custody of a United States Marshal, and being 
carried from court to a jail. The prisoners were 
handcuffed and shackled, and several of them as 
well as their assailants were killed in the attack. 
The surviving conspirators were indicted under a 
statute of the United States punishing a conspiracy to 
injure or oppress any citizen in the free exercise or 
enjoyment of "a right then and there secured to him 
by the Constitution of the United States." Neither 
the Constitution nor any statute expressly provides 
for protection of a United States prisoner from 
assault or conspiracy. But the Court held that he 



FAITHFUL EXECUTION OF THE LAWS 93 

does have a right under the Constitution to be pro- 
tected from assault. Mr. Justice Gray, speaking for 
the Court, said, "In this case the United States having 
the absolute right to hold prisoners, have an equal 
duty to protect them while so held against assault 
or injury from any quarter. The existence of that 
duty on the part of the government necessarily im- 
plied a corresponding right of the prisoner to be so 
protected and this right of the prisoners is a right 
secured to them by the Constitution and laws of the 
United States." 

Let me give another example of a law not embodied 
in a statute or treaty, which, due to Congressional 
neglect to act, the President has had to see executed. 

By an act approved April 28th, 1904, the President 
was directed to take possession and occupy on behalf 
of the United States the Canal Zone, the dominion 
over which had been acquired under the Hay-Varilla 
Treaty, just then ratified. The seventh section of 
the act provided "that all the military, civil and judi- 
cial powers, as well as the power to make the rules 
and regulations necessary for the government of the 
Canal Zone, should be vested in such a person and 
should be exercised in such a manner as the President 
should direct until the expiration of the 58th Congress." 

When the 58th Congress expired no further provision 
had been made for the government of the Zone. I was 
Secretary of War from 1904 to 1908, and in charge of 
the Canal work. The question arose as to what was 
to be done in this legislative lapse of government after 
the death of the 58th Congress. I had no hesitation 
in advising the President, and I may add he had no 



94 OUR CHIEF MAGISTRATE 

hesitation in accepting the advice, that his statutory 
duty was to build the Canal, and his constitutional 
duty to take care that the laws be faithfully executed 
required him to maintain the existing government and 
continue the status quo which was necessary to the 
construction of the Canal. Congress made no further 
provision for the government of the Zone for seven 
years, and by its acquiescence vindicated this view 
of the President's duty. It is true that one Congress- 
man, now the Governor General of the Philippines, 
rose in his place in Congress to denounce our usurpa- 
tion, but except for his lucubration on the subject, 
no objection was made in Congress and no action was 
taken. The truth was that Congress did not know 
exactly what to do and so left it to the President to 
assume the responsibility. 

The President is the Commander-in-Chief of the 
army and navy, and the militia when called into the 
service of the United States. Under this, he can order 
the army and navy anywhere he will, if the appropria- 
tions furnish the means of transportation. Of course the 
instrumentality which this power furnishes, gives the 
President an opportunity to do things which involve 
consequences that it would be quite beyond his power 
under the Constitution directly to effect. Under the 
Constitution, only Congress has the power to declare 
war, but with the army and the navy, the President can 
take action such as to involve the country in war and 
to leave Congress no option but to declare it or to recog- 
nize its existence. This was the charge made against 
President Polk in beginning the Mexican War. War 
as a legal fact, it was decided by the Supreme Court 



COMMANDER-IN-CHIEF 95 

in Prize cases, can exist by invasion of this country 
by a foreign enemy or by such an insurrection as oc- 
curred during the Civil War, without any declaration 
of war by Congress at all, and it is only in the case of 
a war of our aggression against a foreign country that 
the power of Congress must be affirmatively asserted to 
establish its legal existence. 

What constitutes an act of war by the land or naval 
forces of the United States is sometimes a nice question 
of law and fact. It really seems to differ with the char- 
acter of the nation whose relations with the United 
States are affected. The unstable condition as to 
law and order of some of the Central American Re- 
publics seems to create different rules of international 
law from those that obtain in governments that can 
be depended upon to maintain their own peace and 
order. It has been frequently necessary for the Presi- 
dent to direct the landing of naval marines from 
United States vessels in Central America to protect 
the American consulate and American citizens and 
their property. He has done this under his general 
power as Commander-in-Chief. It grows not out 
of any specific act of Congress, but out of that 
obligation, inferable from the Constitution, of the gov- 
ernment to protect the rights of an American citizen 
against foreign aggression, as in the Kotza incident, 
cited by Mr. Justice Miller in the Neagle case. In 
practice the use of the naval marines for such a purpose 
has become so common that their landing is treated 
as a mere local police measure, whereas if troops of the 
regular army are used for such a purpose, it seems 
to take on the color of an act of war. 



96 OUR CHIEF MAGISTRATE 

Thus it would be difficult to explain the landing 
of our army in Vera Cruz by force, as anything but 
an act of war to punish the government of Huerta 
in Mexico for its refusal to render what was deemed by 
President Wilson as a proper apology for a violation 
of our international rights in the arrest of some of our 
sailors. This act was committed before authority was 
given by Congress, but the necessary authority for it 
had passed one House and was passing another at the 
time, and the question as to the right of the Executive 
to take the action without Congressional authority was 
avoided by full and immediate ratification. 

In Nicaragua in my administration, an insurrection 
had led to the immurement of American citizens by 
insurrectos and the threatened destruction of Ameri- 
can property. The President of Nicaragua, whom we 
had recognized and whose Minister we had received, 
called upon us to protect our own citizens and their 
property because he was unable to render them the 
protection which their treaty rights gave them. This 
led to the landing of marines and quite a campaign, 
which resulted in the maintenance of law and order and 
the elimination of the insurrectos. This was not an act 
of war, because it was done at the request and with 
the consent of the lawful authorities of the territory 
where it took place. 

As Commander-in-Chief and in taking care that 
the laws be faithfully executed, President Cleveland 
sent General Miles to Chicago to remove the- ob- 
struction to the passage of the mails and of inter- 
state commerce which Debs at the head of the 
American Railway Union was effecting by violence 



COMMANDER-IN-CHIEF 97 

and other unlawful means. This was the case where 
Governor Altgelt sought by protest to keep the army out 
of Illinois, on the ground that until he or the legislature 
requested it, the President had no right to send it into 
the state for the purpose of suppressing disorder. 
President Cleveland and Attorney-General Olney 
earned the gratitude of all lovers of peace and good 
order by the firm stand which they took in this matter 
and in maintaining what the Supreme Court had so 
often decided, that every foot of land within the "juris- 
diction of the United States, whether in a state or 
territory, or in the District of Columbia, is territory of 
the United States upon which the laws of the United 
States can be executed by the President with all the 
forces which he has at his Jqwful command ; that there is 
a peace of the United States, a violation of which con- 
sists in forcible resistance to Federal laws. Mr. Cleve^ 
land did not have to consult Governor Altgelt as to 
whether he should send an army to Illinois to see that 
the peace of the United States was preserved and that 
the Federal laws were faithfully executed there. The 
full legality of President Cleveland's action in this 
regard was sustained by the unanimous judgment of 
the Supreme Court in the Debs case. 

The Constitution provides that the United States 
shall protect each state against invasion and on the 
application of the Legislature, or of the Executive when 
the Legislature cannot be convened, against domestic 
violence ; and an early statute of the United States, 
still in force, provides that on such an application the 
President may use the militia of any state or the regu- 
lar army to suppress such insurrection. In the case 



98 OUR CHIEF MAGISTRATE 

of Rhode Island as between claimants for the governor- 
ship, the court held that it was within the power of 
the Federal Executive conclusively to determine so far 
as that court was concerned who was the governor of 
the state, a result quite analogous to that which enables 
the President to recognize foreign governments and 
to bind all other departments of the government by 
his recognition. 

There is, however, a far wider exercise of the authority 
by the Executive in his capacity as Commander-in-Chief. 
It was exemplified in and after the Spanish War. 
Before and after the Treaty of Paris was made with 
Spain, by which there were left in our possession, 
as owners, the Philippines and Porto Rico, and in 
our custody, as trustees for the people of Cuba, the 
Island of Cuba, we acquired responsibilities which 
were met by occupation of those islands and their 
government by our army and navy. In the case of 
Cuba, this continued from 1898 until 1903, when the 
island was turned over to the Cuban Republic. In 
the case of Porto Rico this continued from 1898 until 
the taking effect of the Foraker Act in April, 1900, 
and in the Philippines from August 13th, 1898, when 
we took Manila, until March, 1902, when the Presi- 
dent was expressly given power to establish a civil 
government there. During all this interval of Con- 
gressional silence, and acquiescence in the action of 
the President as Commander-in-Chief, he directly, 
or through his appointed agents, exercised all the 
executive power and all the legislative power of 
government in those territories. After suppressing 
actual disorder, he created a quasi-civil government 



GOMMANDER-IN-CHIEF 99 

and appointed an executive, a civil legislature and 
civil judges, and became the lawgiver of ten millions 
of people for a period ranging from two years to four. 
There was nothing new or startling in the principle 
of this temporary enlargement of his executive functions. 
Its novelty was in the great volume of power which 
the circumstances thrust on him and the extent of the 
responsibilities and the wide discretion which he had to 
exercise. The validity of such action had been recog- 
nized by the Supreme Court in similar cases arising after 
the Mexican War, when we took over California and New 
Mexico. The delay of Congress was useful in all these 
cases. In respect to Porto Rico, Congress probably 
acted too quickly, for the Foraker Act, which provided 
for its government, was made like the usual territorial 
acts in the United States, and it did not fit quite the 
civilization to which it was applied in this community 
of Spanish laws and customs. In the Philippines, 
under the wise and statesmanlike foresight of Secretary 
Root the civil government was framed gradually in 
that country to suit the exigencies. Congress was quite 
willing to let President McKinley handle the difficult 
problems until experience should throw light on the 
situation. When it did act, it ratified everything the 
President had done and continued under its authority 
the government which had been initiated and created 
by the Commander-in-Chief. 

There is an instance of Congressional ratification in 
which I took part that has some humorous features 
that perhaps would make it of interest to repeat it. 

In 1902, while I was Governor of the Philippines, I 
returned to this country and visited Washington, and 



100 OUR CHIEF MAGISTRATE 

had the pleasure of spending thirty days with Mr. 
Root as his guest. One Sunday afternoon, while we 
were talking over Philippine matters, he called my 
attention to the fact that a question had been raised 
as to the right of the then Philippine Government, 
without express Congressional authority, to impose 
duties on goods imported into the Philippines from the 
United States. These duties had been a source of a 
large part of the revenues which we used in carrying on 
the government in the Islands. He said to me, "Now, 
Taft, we have collected this money, and we have dis- 
bursed it, and if there is any doubt about it, we ought to 
remove that doubt and not be put in the attitude of 
unlawfully extorting money and expending it for gov- 
ernmental purposes. Therefore, let's draw up a section 
for the pending Philippine bill, which shall ratify the 
collection of these duties." Accordingly, we sat down 
and jointly drafted such a section which was made a 
part of the Philippine Act, passed in July, 1902, for 
the government of the Islands. Thereafter a series of 
suits were brought to recover back the duties collected 
by the Philippine Government on goods imported from 
the United States. The total amount sought to be 
recovered in these suits was about $3,000,000. One 
of the suits seeking to recover from the United States 
$100,000, by Warner, Barnes & Company, was brought 
to a hearing in the Court of Claims and there defeated, 
on the ground that there was war in the Philippines and 
the general commanding had the right to levy duties 
as he chose. The matter of ratification by Congress 
was* not very much considered. The case was carried 
to the Supreme Court. The Supreme Court reversed 



GOMMANDER-IN- CHIEF 101 

the decision and gave judgment for Warner, Barnes & 
Company for the full $100,000. The question of rati- 
fication was summarily considered by the Court, and 
to the disgust of Mr. Root and myself, the Court held 
that the clause which we had drafted for the purpose 
of ratifying the action of the Philippine Government in 
collecting these duties, was not intended by Congress to 
effect the very ratification which we sought. The joke 
was certainly on us. After the opinion of the Court 
was announced, the counsel for all these claims, who I 
am advised was very largely interested in their recovery, 
because his fee was to be a percentage, came to ask me, 
then Secretary of War, to consent to an entry of the 
same judgment in all the other suits, which would have 
amounted to a judgment for $3,000,000 against the 
government. I felt very indignant over what I re- 
garded as the injustice and inequity of the decision. 
These claimants had been able to collect the amount 
of the duties in the prices at which they sold the goods 
in the Philippines, and now they were seeking to make 
the government pay twice to them after it had used the 
money collected to give them a good government. In 
a somewhat heated conversation with counsel, I 
expressed my feelings in regard to the judgment of the 
Court in such a way as to lead him to denounce me as 
an anarchist and not properly respectful to the judg- 
ment of the highest tribunal in the world. I declined 
utterly to consent to any judgment and notified him of 
an intention to file an application for a rehearing. Such 
an application was filed, and to the surprise of counsel, 
was granted, because the judgment had been a unani- 
mous judgment and it was supposed that a rehearing 



102 OUR CHIEF MAGISTRATE 

would never be granted in such a case. The case was 
then reargued, and in that hearing the importance of 
the ratification by Congress was emphasized. We did 
not succeed in inducing the Court to reverse itself, 
though we did elicit from the member of the Court writ- 
ing the opinion that there were some parts of the record 
that had escaped his attention. Two of the judges 
dissented from the judgment of the Court. It then 
occurred to me that if the question turned on ratification, 
it was not too late to ratify the collections as to all the 
claims except that one which had passed into judgment. 
So I went to Mr. Joseph Cannon, the Chairman of the 
Appropriations Committee of the House, and presented 
the case to him. I don't think Mr. Cannon has ever 
done any work more valuable for the government than 
he did as the watchdog of the Treasury, even though 
he sometimes had a profane bark. He at once fell in 
with my suggestion that we have a second clause of 
ratification which would leave no doubt in the mind 
of the Court that Congress intended to ratify the 
collection of the duties in question. I also consulted 
Mr. Hale, of Maine, who was Chairman of the Com- 
mittee on Appropriations in the Senate, and enlisted 
his active cooperation. We had a fight on the floor of 
the House and the Senate before we succeeded in putting 
the ratification through. The question then came up 
again on the second ratification and in that case we 
secured a majority of the court, Mr. Justice White 
pronouncing the judgment in favor of the effective- 
ness of the ratification, and in this way we defeated 
what I have always regarded as an inequitable claim. 
Of course those of us who were interested thought 



COMMANDER-IN-CHIEF 103 

that the last judgment was a deliverance of a Daniel 
come to judgment. I do not say that there is any 
association between that judgment and the fact 
that the Judge who pronounced the majority opinion 
is now. the Chief Justice of the United States; but 
so he is. 



CHAPTER V 
FOREIGN RELATIONS. THE PARDONING POWER 

ONE of the President's most important powers is 
that which he exercises over our foreign relations. 
We are just now very much interested in the issues 
between us and foreign countries. They seem to be 
dwarfing domestic questions. The greatest war the 
world ever saw comes close to us. Our attitude as a 
neutral, and the necessary interference with the com- 
merce between us and belligerents, raises controversies 
which call for the utmost care in their negotiation and 
settlement. 

It is well to premise what I have to say about the 
Executive power in such matters by pointing out the 
exclusive jurisdiction that the Federal government 
has in dealing with foreign nations. In our domestic 
matters, the Executive power is divided between the 
President, the governors of the states, the Legislative 
power between Congress and the Legislatures of the 
states, and the Judicial power between the Federal 
Judiciary and the state courts ; but when we come to 
governmental action with respect to foreign countries, 
we find that the framers of the Constitution were most 
careful to vest in the national government complete 
jurisdiction, and industriously excluded by express pro- 
hibition the interference of the states therein. Thus 
the President and the Senate were given power to make 

104 



FOREIGN RELATIONS 105 

treaties with foreign nations, while all states are ex- 
pressly forbidden to make them. Congress is given 
power to regulate foreign commerce, to levy import and 
tonnage duties, to declare war and to maintain armies 
and navies for the purpose of carrying on war, to 
authorize privateers to prey upon the enemy's commerce, 
to make rules concerning captures on land and water, 
to make a uniform rule of naturalization, and to de- 
nounce and punish offenses against the law of nations, 
while the states are expressly forbidden to declare war, 
to grant letters of marque and reprisal, or indeed to 
maintain a navy or a standing army, or to levy import 
or tonnage duties. The Federal Courts are given juris- 
diction in all cases affecting Ambassadors and other 
public Ministers and Consuls, and in cases arising be- 
tween a state or the citizens thereof and foreign states, 
citizens and subjects ; while the President is given the 
power to appoint Ambassadors, with the advice and 
consent of the Senate, and to receive Ambassadors from 
foreign countries, and as Commander-in-Chief of the 
army and navy to repel invasions and to carry on the 
war declared by Congress. 

The first and most important duty connected with 
foreign relations that the President has is that of initiat- 
ing and drafting treaties with foreign nations and sub- 
mitting them to the Senate for the Senate's advice and 
consent, and a two-thirds vote of those present is re- 
quired in the Senate lawfully to advise and consent to a 
treaty. Originally in the Constitutional Convention, it 
was proposed that the Senate should appoint Ambassa- 
dors and should make treaties ; but toward the latter 
part of the Convention a change was made in this regard, 



106 OUR CHIEF MAGISTRATE 

and the power of the President was very much amplified ; 
and in the matter of treaties it was given to him to nego- 
tiate them and to ratify and proclaim them. Neither 
the Senate nor the House, nor both of them together, 
can compel the President to make a treaty. He has the 
sole initiative in this regard. Nor is he bound, after 
he has made a treaty, and the Senate has advised 
/ and consented to it, to ratify it and proclaim it, 
and the treaty does not go into effect until its ratifi- 
cation. There have been many discussions in the 
Senate over this treaty-making power, and Senators 
have assumed that the Senate was the more important 
factor in the making of treaties than the Executive. 
They have usually in their arguments referred to the 
fact that Madison moved in the Convention that the 
Senate should make the treaties without the inter- 
vention of the Executive, and that it was at first 
adopted. But I am not able to discover why 
this history of the present constitutional provision 
should exalt the Senate or make more important its 
existing power. It is the present text of the funda- 
mental law that determines who shall exercise the 
powers which it confers, and I do not understand why 
the function that the Senate performs is any more 
important or any more sacred than that of the Execu- 
tive in the making of treaties. 

This leads me to refer to the ground upon which two- 
thirds of the Senate refused to advise and consent to 
the general arbitration treaties negotiated by Secretary 
Knox during my administration with England and 
France. The treaties in effect provided that the 
countries concerned should submit all questions capable 



FOREIGN RELATIONS 107 

of judicial solution arising between them, which could not 
be settled by negotiation, to the decision of an arbitral 
tribunal, and in case of a difference, to submit to a 
preliminary tribunal the question whether an issue 
arising was capable of judicial solution and therefore 
must be arbitrated under the treaty. A number of 
Senators objected to the effect of these treaties in that 
they took away from the Senate the power to withhold 
consent to an arbitration of a future issue and thus pre- 
vented the Senate from exercising the constitutional 
function with which it is charged, of dealing with foreign 
relations as they arise. It was argued that such a treaty 
would be delegating to the permanent arbitral court a de- 
cision as to our foreign relations which was vested in the 
Senate, and that it was unconstitutional for the Senate to 
consent to make such a delegation. This view it seems 
to me is radically wrong, or else it proves too much. 
There is no difference in principle between the consent 
of the Senate that an existing issue between us and a 
foreign nation shall be settled by arbitration and an 
agreement that future questions of a defined class shall 
be so settled. If the submission of a question to arbi- 
tration is a delegation to the arbitration tribunal of the 
power vested in the Senate over our foreign relations, 
then the Senate has no power to consent to arbitration 
at all ; and yet this it has done since the foundation of 
the government. But it is said that by delegating to a 
preliminary tribunal the question whether the issue 
arising is within the terms of the treaty or not, the 
Senate is delegating its power. This view is as faulty 
as the other one. The question whether an issue is 
arbitrable within the classification of the treaty is a 



108 OUR CHIEF MAGISTRATE 

question of the construction of a treaty ; and one of the 
commonest subjects of arbitration is the proper con- 
struction of a treaty. Therefore, if the Senate were 
to consent to abide the judgment of a tribunal in the 
future as to whether an issue arising between us and a 
foreign nation is within a class of arbitrable questions 
described in a treaty, it is only consenting to arbitrate 
the construction of the treaty when the event occurs 
which requires construction. This it has done in 
numerous treaties already. 

The Senate is therefore wrong in its view of this 
matter, if its view is to rest on the limitations of its con- 
stitutional powers. If its view rests merely on the 
question of expediency, that is a different thing, and I 
do not need to argue that. But I think it is of the ut- 
most importance that every one interested in the estab- 
lishment of a League of Nations, for the settlement of 
differences between them by an international court, 
should realize that the attitude of the Senate upon the 
point I have been discussing would make it impossible 
for the United States to become a member of such a 
League. I am anxious, therefore, in season and out of 
season, to argue as forcibly as I may the error of the 
Senate in this regard. 

The treaty-making power is a very broad one. In- 
deed, it is much more important under our Con- 
stitution than in any other country that I know. 
According to our Constitution, a treaty of the United 
States, in so far as its provisions are in an ap- 
propriate form to operate as such, is a law in the 
United States, exactly as a statute of Congress is 
a law in the United States. I think I have already 



FOREIGN RELATIONS 109 

invited your attention to the fact that a treaty may 
repeal a law of Congress if it is inconsistent with it, and 
that a law of Congress may repeal a treaty. A treaty 
operates both as a binding contract with a foreign 
nation and as municipal law. As a contract binding 
upon both parties, it cannot be made to lose its obliga- 
tion by a refusal of either country to perform it. It is 
thus broken, but the party injured by the breach has 
in international law a right to damages from the 
party breaking it. If Congress passes a statute in- 
consistent with the treaty, while it breaks the treaty 
it repeals it as municipal law. It does not relieve 
the nation from its moral and international obliga- 
tion to make good the breach by damages or other- 
wise, but it does change the law which binds the 
officers, citizens and others within the governmental 
jurisdiction of the United States, to comply not with 
the treaty, but with the law which abrogated it. 
This was the effect of the decision of the Supreme 
Court in the Chinese cases. Under our treaty with 
China certain classes of Chinese were entitled to 
come into the country. Congress desired to exclude 
many of the classes thus entitled, and passed a law 
doing so. The law broke the treaty, but the immi- 
gration officers, the courts and all persons within the 
territorial jurisdiction of the United States were obliged 
to conform to the act of Congress, and to exclude those 
Chinese who had the right to come in under the treaty 
but were forbidden to do so by the subsequent law. 

The treaty-making power is in some respects wider 
than the power of Congress in the enactment of statutes, 
in this : As between the states and the Federal gov- 



110 OUR CHIEF MAGISTRATE 

eminent, Congressional legislation m limited to a 
Federal field marked by the powers expressly granted to 
Congress within the Constitution and those which may 
be reasonably implied as necessary and proper to the 
exercise of the express powers. All other powers are 
exercised by the legislatures of the state within the 
restrictions of their respective Constitutions. The 
treaty-making power, however, is dealing with our 
foreign relations, and when we deal with our foreign 
relations, we are a nation undivided and presenting a 
united front. Everything, therefore, that is natural or 
customarily involved in such foreign relations, a treaty 
may cover, whether beyond the law-making power of 
Congress and within the control of state legislatures, 
or not. Now one of the usual subjects for con- 
sideration of a treaty is the rights of the citizens or 
subjects of one country while resident in, or passing 
through, the country of the other, to security of life and 
limb, to the carrying on of business, or to the inheriting 
of property or its transmission. The subjects of regulat- 
ing business in a state, the inheritance of property and 
its transmission are ordinarily within the cognizance of 
state legislatures and are not within the power of 
Congress. Yet by a treaty, aliens may be given rights 
in a state in respect to such matters even though this is 
at variance with the laws of the state, and to that 
extent the treaty-making power controls the statute of 
the state. It makes an exception to the state statute, 
in favor of the aliens whose rights are defined in the 
treaty. This has been decided so many times that there 
is no doubt about the correctness of the view. The 
Supreme Court has declined to imply the same limita- 



FOREIGN RELATIONS 111 

tions upon the treaty-making power as the Constitution 
imposes upon Congressional law-making. It has said 
that the treaty-making power would not of course reach 
to changing a form of state government or perhaps 
parting with state territory, but it has left quite general 
and undefined the field that it may occupy. 

Sometimes the Executive has not made a treaty with 
a foreign government, but has recommended to Con- 
gress the passage of a law, which, with similar action by 
the other country, constitutes an agreement between 
them. Thus the statute authorizing reciprocity with 
Canada, which passed Congress during my admin- 
istration, relating to the imposition of duties in this 
country, which was to take effect upon the enactment 
of a corresponding law in Canada, would, if Canada 
had passed a similar statute, have constituted an agree- 
ment from which each government could withdraw at 
will. It was not in form a contract or a treaty. 
So, too, when I was Secretary of War, President Roose- 
velt sent me to Panama to adjust the relations between 
the United States and Panama under the Hay-Varilla 
Treaty. That treaty was very hastily drawn, and 
many things were left most indefinite, as for instance 
the boundaries of the Zone at the termini of the Zone. 
The Zone was not to include the town of Colon or the 
town of Panama and yet there was no official delimita- 
tion in the records of Panama or Colombia of either 
town. We were to occupy the same bed with the Pana- 
manians, but our half was in the middle. This created 
in many ways an embarrassing situation, and in some 
way or other a modus vivendi had to be established. 
The absence of it had caused great irritation and 



112 OUR CHIEF MAGISTRATE 

threatened to obstruct the carrying on of the con- 
struction of the Canal. I agreed with the President 
of the Republic upon a plan by which we might 
comfortably and peaceably take and occupy our 
half and the people and government of Panama 
might keep on either side. The plan contained a great 
many different provisions. I had no power to make a 
treaty with Panama, but I did have, with the authority 
of the President, the right to make rules equivalent to 
law in the Zone. I therefore issued an order directing 
the carrying out of the plan agreed upon in so far as it 
was necessary to carry it out on our side of the line, on 
condition that, and as long as, the regulations to be 
made by Panama were enforced by that government. 
This was approved by Secretary Hay and the President 
and has constituted down until the present day, I 
believe, the basis upon which the two governments are 
carried on in this close proximity. It was attacked 
vigorously in the Senate as a usurpation of the treaty- 
making power, and I was summoned before a committee 
in the Senate to justify what had been done. There 
was a great deal of eloquence over this usurpation of the 
Senate's prerogative by Mr. Morgan and other Senators, 
but the modus vivendi continued as the practical agree- 
ment between the nations for certainly more than seven 
years, and my impression is that it is still in force in 
most of its provisions. 

The President has a very large authority outside of 
treaty-making in our foreign relations. He appoints 
our Ambassadors to other countries, and he receives 
Ambassadors from them. This gives him necessarily 
the duty of carrying on foreign negotiations be- 



FOREIGN RELATIONS 113 

tween ourselves and foreign countries. He and he 
alone is the representative of our nation in dealing 
with foreign nations. When I say he alone, I mean 
that it is he to whom the foreign nations look. 
He has Ambassadors and Ministers and Consuls in 
other countries, but they only represent him. In 
receiving foreign Ambassadors and in sending them, he 
is bound to determine, when there is any dispute, who 
the lawful government is, to whom he wishes to accredit 
his Ambassador and from whom he wishes to receive 
an Ambassador. Therefore in him is necessarily vested 
the power and duty of recognizing the lawful govern- 
ment of any country. The influence that he can exert 
in his recognition of a foreign government we have seen 
illustrated in President Wilson's refusal to recognize 
Huerta and his announcement that he never would 
recognize him. We can see the same influence at work 
at present in behalf of Carranza, whom he has recog- 
nized as the de facto President against Villa. 

The President carries on the correspondence through 
the State Department with all foreign countries. He is 
bound in such correspondence to discuss the proper 
construction of treaties. He must formulate the for- 
eign policies of our government. He must state our 
attitude upon questions constantly arising. While 
strictly he may not bind our government as a treaty 
would bind it, to a definition of its rights, still in future 
discussions foreign Secretaries of other countries are 
wont to look for support of their contentions to the 
declarations and admissions of our Secretaries of State 
in other controversies as in a sense binding upon us. 
There is thus much practical framing of our foreign 



114 OUR CHIEF MAGISTRATE 

policies in the executive conduct of our foreign rela- 
tions. 

One of the most important strokes in our international 
history was the correspondence carried on by Secretary 
Hay under President McKinley in the establishment of 
the policy of the open door in China and equal facilities 
for all nations in dealing with that important empire. 
That policy was stated in a note by Secretary Hay and 
acquiesced in by all the nations concerned, and that 
without any advice and consent of the Senate. 

Whenever our American citizens have claims to pre- 
sent against a foreign nation, they do it through the 
President by the State Department ; and when foreign 
citizens have claims to present against us, they present 
them through their diplomatic representatives to our 
State Department, and the formulation and the dis- 
cussion of the merits of those claims create an important 
body of precedents in our foreign policy. 

The importance of the President in our foreign rela- 
tions, when his power in that regard is considered in 
connection with his duty to take care that the laws 
are faithfully executed, and with his duty as Com- 
mander-in-Chief to direct the movements of the Army 
and Navy, may be noted in the authority which 
President McKinley exercised to take part in the so- 
called " Boxer War," in China. The lawless uprising 
in that ancient Empire against foreigners, which for 
the time being overthrew the power of the Imperial 
Government, exposed to danger the lives of the diplo- 
matic representatives of foreign nations at Pekin, and 
brought about the murder of one of them. Uniting 
with other governments, President McKinley, without 



FOREIGN RELATIONS 115 

express Congressional authority, ordered the land and 
naval forces of the United States into a campaign to 
rescue the foreign legations which were besieged in 
Pekin. 

There has always been a dispute as to whether the 
treaty-making power can bind Congress to the obliga- 
tion of a treaty, so that if a treaty provides for the 
payment of money, Congress is under an obligation 
to appropriate the money. Of course a treaty may not 
take money out of the Treasury of the United States, 
because under the Constitution that can only be taken 
out by Congress, but it has always seemed to me that 
while Congress in appropriating money for any purpose 
exercises its discretion, in that it has the actual power 
to pay or not to pay, it is bound in honor to perform 
the contract which the government of the United States 
has made through that agency appointed by the Con- 
stitution to make the contract. When Congress in its 
discretion, as the appropriating branch of the govern- 
ment, refuses to appropriate the money which the 
treaty-making power has agreed shall be paid it is 
merely violating the plighted faith of the government. 
Just so, it may abrogate a treaty obligation by statute, 
but it does not annul the obligation. It is exercising 
the same power that a man has to refuse to pay his 
note after he has made it through an authorized agent. 
The man can be compelled to pay his note. Congress 
may not be compelled because of its exercising the 
functions of sovereignty, but its failure to act does not 
destroy its obligation. 

The President may not annul or abrogate a treaty 
without the consent of the Senate unless he is given 



116 OUR CHIEF MAGISTRATE 

that specific authority by the terms of the treaty. The 
ending of a treaty is to be effected by the same power 
which made the treaty. An instance in my own experi- 
ence of annulling a treaty comes to me. We had a 
treaty with Russia proclaimed in 1832. It was a treaty 
of commerce and friendship. It gave to our merchants 
certain rights in Russia in carrying on business. Russia 
refused to extend the rights assured to our merchants to 
Jews, on the ground that Jews in Russia were limited 
in their commercial activities and were obliged to carry 
them on within a pale in that country, and that when 
our merchants being Jews sought to avail themselves of 
the privileges of the treaty, they were either denied 
admission or were subjected to the local laws of Russia 
and were limited as their coreligionists were limited in 
Russia. From the time that the question was mooted 
the two countries had differed as to construction. A 
similar question had arisen between France and Russia 
and between England and Russia, but Russia had 
always insisted upon maintaining the position I have 
described. The attitude so contrary to our notions of 
equity and tolerance to all religions naturally irritated 
our people and led to the introduction of a resolution 
in the House of Representatives, during my adminis- 
tration, calling upon the President to annul the treaty 
in accordance with its terms by a year's notice, on the 
ground that Russia had flagrantly violated its obliga- 
tions. The resolution was drawn in language which 
would have given diplomatic offense to Russia, as 
doubtless its framers intended to do. With the re- 
sponsibility of maintaining as friendly relations as pos- 
sible with all the world, it seemed to me that if the 



FOREIGN RELATIONS 117 

treaty had to be abrogated, it ought to be done as 
politely as possible, with the hope of negotiating a 
treaty less subject to dispute, and giving more satis- 
factory result. With the knowledge that the resolution 
was sure to pass the Senate, I took the step of annulling 
the treaty myself and giving a year's notice to Russia of 
the annulment in proper and courteous expressions, on 
the ground that we had differed so radically as to its 
construction and the treaty was so old that it would be 
wiser to make a new treaty more definite and satis- 
factory. I sent notice of this annulment at once to the 
Senate, and in this way succeeded in having the Senate 
substitute a resolution approving my action for the 
resolution which came over from the House. The 
House was thus induced to approve my action and 
the incident was closed for the time. I regret to say 
that no new treaty has yet been made and our relations 
with Russia in many regards are defined only by the 
rules of international law. 

The Supreme Court recognizes the power of the 
President to decide the question of our foreign relations 
which it calls political, and holds itself bound by the 
President's action. Early in our history the question 
arose whether the Falkland Islands belonged to Buenos 
Aires, so that Buenos Aires might pass a law punishing 
the killing of seals in those Islands. Our State Depart- 
ment, in correspondence with the government of Buenos 
Aires, had refused to recognize its lawful jurisdiction 
there. In a maritime insurance case, the issue was 
whether a vessel lost through seizure by the authorities 
of Buenos Aires for violation of its sealing laws was a 
loss within a marine insurance policy, or was excepted 



118 OUR CHIEF MAGISTRATE 

because the master had violated the statutes of a 
lawful government. The Supreme Court held that it 
would follow the decision of the President as the political 
department having the authority to decide such an 
issue. The Court reached a similar conclusion in 
another seal case where we were on the other side. Mr. 
Elaine, as Secretary of State for Mr. Harrison, had 
claimed in a correspondence with Lord Salisbury that 
through the grant of Alaska and the adjoining waters 
we were given jurisdiction over the open Bering Sea 
to arrest Canadian sealers engaged in pelagic sealing 
contrary to the laws of the United States. Mr. Elaine's 
claim was that Russia had asserted territorial juris- 
diction over these waters, and that this jurisdiction had 
been acquiesced in by the world. The Supreme Court 
intimated in its opinion that this was a political ques- 
tion, and that it would not undertake to discuss the 
merits of Mr. Elaine's contentions, because it was 
bound to follow and respect the attitude of the Presi- 
dent and Secretary of State in deciding such a question. 
Of course the decision of Congress or the treaty mak- 
ing power upon such an issue would be binding upon 
the Courts, but in the absence of the decision of either 
the action of the President is conclusive with the Courts. 
The last power of the President which I shall consider 
is the power of pardon. This is a wide power, and 
. enables the President to pardon any one guilty of an 
offense against the United States before indictment, 
after indictment and before conviction, or after con- 
viction. He need not name the persons to be pardoned 
if he pardons a class and makes provision by which the 
persons affected shall establish their membership in that 



THE PARDONING POWER 119 

class. The pardon under such circumstances is called 
an amnesty. He is expressly given power to grant 
reprieves, which means only a suspension of the execu- 
tion of a sentence for one purpose or another. The 
Supreme Court said in one case that a pardon reaches 
both the punishment prescribed for the offense and the 
guilt of the offender, and when the pardon is full, it 
relieves the punishment and blots out of existence the 
guilt, so that in the eye of the law the offender is as 
innocent as if he never had committed the offense. 
This is rather a strong statement as some later cases 
show. It is difficult to clothe Omnipotence with such 
a power. 

Congress may not restrict the President in the exercise 
of his power of pardon. There was a good deal of 
conflict between the Executive and Congress in respect 
to amnesty proclamations issued by President Johnson. 
Congress was loath to allow the full constitutional effect 
which such pardons required in respect to the status 
of those who had been guilty of treason against the 
government and who were restored to the enjoyment of 
their full civil rights, as if the treason had never been 
committed. In the case of Mr. Garland, who was 
afterwards a Senator from Arkansas, and Attorney- 
General of the United States, the Supreme Court had 
to examine the validity of a statute, which required 
that every attorney practising law in the Federal court 
must take an oath that he never had borne arms against 
the United States. This act practically excluded all 
lawyers who had served the Confederacy from the 
pursuit of their profession. The Court held the act 
invalid because it was in effect a bill of attainder, 



120 OUR CHIEF MAGISTRATE 

and also because it defeated the President's amnesty 
of which Mr. Garland had taken advantage. A very 
nice line of distinction is presented by another de- 
cision of the Supreme Court, in which the validity of 
a law of the state of New York was in question. 
The law prevented men who had been convicted of 
felonies from receiving certificates permitting them to 
practise medicine. In that case, the Court held that 
the question of fitness was one of fact and that the 
legislature had the right to make rules of eligibility to 
protect the public against immorality in the practice 
of the profession, and that it could not say that such 
a rule of ineligibility was not reasonable in preserving 
a proper moral standard in physicians. It could not 
regard it as additional punishment. 

There is a question whether the President's power of 
pardons extends to the case of one sentenced to imprison- 
ment for contempt by a Federal Court. It is objected 
that this power of contempt is used by the court to enforce 
its judgments, and that if the President could intervene 
and paralyze the instrument in the hands of the Court 
to enforce its judgment, he would not be pardoning 
a crime but would be obstructing the Court in its 
administration of justice. I think it is possible to 
smooth out this difficulty by pointing out a distinction 
between the two ways in which a court exercises its 
power of contempt. Where a court is seeking to 
enforce a decree or a judgment against a contumacious 
party and puts him in prison for the purpose of compel- 
ling him to comply with the judgment or decree, then I 
do not think the President could pardon a man or relieve 
him from the effect of such an order because he would 



THE PARDONING POWER 121 

really be obstructing the cause of justice. But where the 
court is merely vindicating its own authority by punishing 
a man for a past contempt, and where an imprisonment 
is not a continuing duress for the purpose of compelling 
obedience, it seems to me that the punishment inflicted 
is for an offense against the United States, to wit, a 
defiance of its judicial authority, and therefore that it 
does come within the range of the power of pardon by 
the President. 

The duty involved in the pardoning power is a most 
difficult one to perform, because it is so completely 
within the discretion of the Executive and is lacking so 
in rules or limitations of its exercise. The only rule 
he can follow is that he shall not exercise it against the 
public interest. The guilt of the man with whose case 
he is dealing is usually admitted, and even if it is not, the 
judgment of the court settles that fact in all but few 
cases. The question which the President has to decide 
is whether under peculiar circumstances of hardship 
he can exercise clemency without destroying the useful 
effect of punishment in deterring others from committing 
crimes. The frequent result of human punishment is 
that those near to the criminal or dependent upon him 
suffer more than he does, and their pitiable condition 
often furnishes a plea for mitigation of the penalty to the 
offender. Those who plead for pardon are generally 
entirely blind to the right of society to be protected 
from criminals and to have those of criminal tendencies 
deterred from yielding to them by fear of punishment. 
If the fear of punishment is lessened by Executive 
clemency to those convicted, the benefit of punishment 
will be largely lost. It is a case where organized emo- 



122 OUR CHIEF MAGISTRATE 

tion and sentiment are likely to mislead, to the public 
detriment. It seems to me that the people of Nuiv 



and of the country generally are in danger of being led 
by an unwise sentiment into a treatment of convicted 
criminals that will neither impart to the criminals the 
proper lesson from punishment, nor will keep before 
those likely to become criminals the fear of the law as a 
deterrent. It is of course wise and humane that state 
prisons and penitentiaries should be made as health- 
ful as possible for the confinement of those sentenced 
to spend a term within their walls, and it is wise to 
provide healthful labor and primary and industrial 
education. The impulse of many prison reformers, 
however, to treat the prisoners as victims and to make 
society the scapegoat for all their sins and vicious pro- 
pensities and crimes is a wrong one, which if yielded to 
will certainly lead to bad results and ultimately to a 
retracing of steps toward greater rigidity and severity. 
The theory that by treating criminals as if they had no 
criminal tendencies you can eliminate such tendencies is 
one that may work in some cases, but the exceptions will 
be so many as to make the policy ultimately ridiculous, 
and, worse than ridiculous, most harmful. A man who 
violates the law in such a way as to call for a sentence 
and imprisonment is punished for his violation, and he 
ought to be punished. He need not be, and ought not 
to be, subjected to cruel or unwholesome surroundings, 
but he should be made to feel that he is suffering punish- 
ment for that which he has done. He may be given an 
opportunity to reform, and, so far as it is possible, be 
encouraged to change his ways, but if he is to be coddled 
and to receive the impression that he is a victim instead 



THE PAKDONING POWER 123 

of being a criminal, the enforcement of our criminal law 
will be a failure. 

The President has to keep these distinctions in mind 
in the exercise of Executive clemency, and must stifle 
his emotions of pity for the family and dependents of 
the criminal in the consideration of the character of 
the offense and the necessity for having it plainly 
understood that such an offender is not to escape with 
immunity. 

There has been a custom in the Presidential office of 
pardoning men who are supposed to be near their death 
to enable them to go home and die with their families. 
The difficulty in such cases is in being certain that death 
is near. I had two notable cases in which I was assured 
by the prison authorities that death was imminent, and 
that if they were to be released at all, to die, they ought 
to be released at once. I instituted as thorough an in- 
vestigation as I could through the army and navy sur- 
geons in the employ of the government and reached the 
conclusion from the evidence submitted that death 
was certain. I pardoned them both. One man died 
and kept his contract. The other recovered at once, and 
seems to be as healthy and active as any one I know. I 
had a suspicion of fraud in the latter case and instituted 
an investigation to see whether I had been deceived 
by the friends of the prisoner or the prisoner himself. 
I was not able to find the evidence of such fraud. 

It has been suggested to me that if the man had been 
guilty of fraud in inducing me to pardon him, I might 
have set aside the pardon as void and directed the 
arrest of the former convict. I do not think that in 
such a case a pardon could be set aside. I do not 



124 OUR CHIEF MAGISTRATE 

think either I or a court would have had the authority 
to issue a warrant for the arrest of the man and to 
restore him to prison. It seems to me it would be like 
a case of a man acquitted by a jury which was bribed 
by him. He might be thereafter convicted of bribery, 
but he could not be convicted of the crime of which 
the verdict of the jury acquitted him. 

There are curious notions about pardons in the minds 
of some people. When Mr. Knox was Attorney-Gen- 
eral, a Congressman came to him and said that he 
would like to have a man pardoned who had been sent 
to the penitentiary for robbing a post office. He said 
that the convict had been a great supporter of his and 
he would like to get him out. Mr. Knox asked him 
what the ground for pardon was, and he said he was a 
good fellow and had been his friend. Knox said that 
was no reason. "But, "said the Congressman, "I un- 
derstand that each Congressman has a right to two par- 
dons during his term and I want this to be one of mine." 



CHAPTER VI 

THE LIMITATIONS OF THE PRESIDENT'S POWERS 

I HAVE considered, at possibly too great length, the 
chief powers of the Executive under the Federal Con- 
stitution. In theory, the Executive power and the 
Legislative power are independent and separate, but it 
is not always easy to draw the line and to say where 
Legislative control and direction to the Executive must 
cease, and where his independent discretion begins. 
In theory, all the Executive officers appointed by the 
President directly or indirectly are his subordinates, 
and yet Congress can undoubtedly pass laws definitely 
limiting their discretion and commanding a certain 
course by them which it is not within the power of the 
Executive to vary. Fixing the method in which Execu- 
tive power shall be exercised is perhaps one of the chief 
functions of Congress. Indeed, by its legislation, it 
often creates a duty in the Executive which did not 
before exist. Then in prescribing how that duty is to 
be carried out, it imposes restrictions that the Executive 
is bound to observe. 

Congress may repose discretion in appointees of the 
President, which the President may not himself control. 
The instance I have already given is one of these, in 
which the Comptroller of the Treasury has independent 
quasi- judicial authority to pass on the question of 
what warrants are authorized by appropriation acts 
to be drawn by him on the funds of the Treasury. 

125 



126 OUR CHIEF MAGISTRATE 

The President can appoint him and remove him, but 
he may not control him in his construction of appro- 
priation acts and his signing, or withholding his signa- 
ture from warrants in accordance with that construc- 
tion. 

So, too, as between a court directing the action of a 
marshal and a contrary order of the President, the 
marshal is bound by law to follow the court's direction. 
Indeed, the court may compel him to do so by punishing 
him for contempt if he refuses to obey the order. If 
the marshal is obstructed in the performance of his 
duty, however, and he or the court calls Upon the 
President to send the army to overcome the obstruc- 
tion, the President cannot be compelled to act. 

Two principles, limiting Congressional interference 
with the Executive powers, are clear. First, Congress 
may not exercise any of the powers vested in the Presi- 
dent, and second, it may not prevent or obstruct the 
use of means given him by the Constitution for the 
exercise of those powers. 

In the matter of appointments, Presidents have been 
quick to resent encroachments by Congress. The power 
of appointment is not in Congress. In the case of Fitz 
John Porter, President Arthur made a precedent which 
prevails. Porter had been sentenced by court-martial 
for his alleged misconduct in failing to support Pope in 
the second battle of Bull Run. Twenty years after the 
court-martial, when Porter's friends were in the major- 
ity of Congress, they passed an act authorizing the 
President to appoint Porter a colonel in the regular 
army, and to place him on the retired list. President 
Arthur vetoed the bill, and one of the grounds he gave 



LIMITATIONS OF THE PRESIDENT'S POWERS 127 

was that it was an encroachment on the Executive 
power to make the creation of an office conditioned on 
the appointment of a named individual. When General 
Grant was dying at Mt. McGregor, Congress, in re- 
sponse to a throb of sympathy and gratitude through- 
out the nation, wished to have him put on the retired 
list as a full general, but when the act was drafted and 
passed, it did not mention General Grant's name. It 
merely provided that from among the living Command- 
ing Generals, the President might nominate one, and 
with the consent of the Senate appoint him to be a 
general on the retired list, with full pay. The act was 
passed, General Grant was appointed and confirmed 
to be a general, with full salary, and the last three 
months of his life were cheered by this evidence of the 
continued gratitude of his countrymen. 

While Congress may not exercise the power of 
appointment, it may certainly impose rules of eligibility 
within which appointees are to be selected. The extent 
of the right of the President to make appointments, 
without Congressional control or limitation, has been 
very recently mooted. An army officer, who was under 
the statute regulating promotion in the army entitled 
to a promotion to a vacancy, was not a man whom 
the President thought ought to be promoted, although 
he was not subject to removal by a court-martial. He 
therefore passed him over and nominated the next offi- 
cer hi rank to the vacancy. The then Attorney-General 
rendered an opinion that the President could not be 
limited in his appointment of army officers by rules as 
to promotion in the army contained in the army organi- 
zation act. I am not aware of what action the Senate 



128 OUR CHIEF MAGISTRATE 

has taken. Attempt was made by some proceeding in 
court to prevent the passing over the officer first 
entitled, but the jurisdiction of the court to control 
the Executive evidently could not be maintained. If 
Congress may not provide by law a rule of eligibility 
for promotion in the army or navy, or if the President 
may refuse to conform to such a law, it is difficult to see 
how Congress can exercise the power which it is given 
by the Constitution to raise and support armies and 
make rules for the government and regulation of the 
land and naval forces. Rules of eligibility for promo- 
tion would seem to be rules for the regulation of army 
forces. No court and no other authority, however, can 
compel the President to make a nomination, and the 
only method of preventing his appointing someone other 
than the one specified by law is for the Senate to refuse 
to confirm him, or for Congress to withhold an appro- 
priation of his salary, or for the Comptroller of the 
Treasury to decline to draw a warrant for his salary on 
the ground of his ineligibility under the law. The ques- 
tion of his salary then might be referred to the Court of 
Claims through a suit by him, and in that way the 
judgment of the Court might be invoked upon the 
validity of the appointment. This, however, is one of 
the numerous instances in which for practical purposes 
the Constitution is finally construed by the President 
and the Senate. 

The President is made Commander-in-Chief of the 
army and navy by the Constitution evidently for the 
purpose of enabling him to defend the country against 
invasion, to suppress insurrection and to take care 
that the laws be faithfully executed. If Congress 



LIMITATIONS OF THE PRESIDENT'S POWERS 129 

were to attempt to prevent his use of the army 
for any of these purposes, the action would be void. 
During the existence of the Federal election laws, there 
was a provision enacted by Congress forbidding marshals 
to call upon the army as a posse comitatus to assist them 
in the enforcement of the election laws, but that was 
not interfering with the President's power as Com- 
mander-in-Chief . Under another section of the statute, 
the President has the power to call upon the army, after 
proclamation, to resist forcible obstruction of any 
Federal laws. In other words, he is to maintain the 
peace of the United States. I think he would have this 
power under the Constitution even if Congress had not 
given him express authority to this end. Again, in the 
carrying on of war as Commander-in-Chief, it is he 
who is to determine the movements of the army and of 
the navy. Congress could not take away from him that 
discretion and place it beyond his control in any of his 
subordinates, nor could they themselves, as the people 
of Athens attempted to, carry on campaigns by votes 
in the market-place. 

The President is required by the Constitution from 
time to time to give to Congress information on the 
state of the Union, and to recommend for its con- 
sideration such measures as he shall judge necessary 
and expedient, but this does not enable Congress or 
either House of Congress to elicit from him confidential 
information which he has acquired for the purpose of 
enabling him to discharge his constitutional duties, 
if he does not deem the disclosure of such information 
prudent or in the public interest. In the controversy 
between Washington and Congress, over the perform- 



130 . OUR CHIEF MAGISTRATE 

ance of the Jay Treaty by payment of money, Congress 
attempted to secure from Washington the correspon- 
dence had between him and Chief Justice Jay, and other 
correspondence about the treaty on the files of the State 
Department. Washington maintained that the House 
of Representatives, which was seeking the informa- 
tion, was not part of the treaty-making power and 
therefore had no right to secure from him confiden- 
tial information in respect to the making of the 
treaty which he did not deem wise to make public. 
He therefore declined to furnish the correspondence, 
although the House of Representatives adopted reso- 
lutions to protest against his action. The House did, 
however, appropriate the money stipulated for in the 
treaty. 

In the last days of Grant's administration, when 
the House was Democratic, and when President Grant 
was being criticized for spending some of the hot months 
at Long Branch, the House of Representatives sent 
him a resolution asking for information as to how many 
Executive acts were performed at other places than 
the seat of government. The inquiry evidently aroused 
the General, for his declination to furnish the infor- 
mation is quite spirited. He declined to admit that 
under the Constitution he was obliged to perform 
official acts at the seat of government, and proceeded to 
show by historical reference that many such acts by 
former Presidents had been performed at other places in 
the United States. He filed a statement of the time 
spent at the seat of government by each President, from 
which it appeared that the President who was most 
often absent from Washington and the seat of govern- 



LIMITATIONS OF THE PRESIDENT'S POWERS 131 

ment was Thomas Jefferson, a full quarter of whose time 
was spent at Monticello. This seemed a very complete 
answer to the Democratic majority of the House which 
in passing the resolution were seeking to make political 
capital, for they could hardly criticize General Grant 
for doing that which Mr. Jefferson, the founder of 
the Democratic Party, had done with even more free- 
dom. A visit to his beautiful country seat at Monti- 
cello and a knowledge of the very uncomfortable 
quarters that he had at the White House in the be- 
ginnings of our national capital, may explain why 
Jefferson went to Monticello whenever he could get 
away from Washington. More than this, he was a 
great letter writer, and he could write letters as well 
from Monticello as he could from the White House. 
I am glad to say that a more reasonable view is now 
taken of the right of the President to enjoy a vacation 
at the seashore or in the mountains, whenever he can 
be spared from Washington, and it is most satisfactory 
to those of us who have enjoyed some relief of this 
kind to know that we have Jefferson's conduct to 
justify us. 

Mr. Jefferson set another example which has con- 
stituted a precedent never departed from. In the trial 
of Aaron Burr for treason, Chief Justice Marshall pre- 
sided in Richmond, and at the instance of the parties 
to the suit, he directed a subpoena duces tecum to be 
served on President Jefferson, requiring him to bring 
with him papers supposed to bear on the issue. Mr. 
Jefferson wrote a letter to the District Attorney declin- 
ing to respond to the subpoena, and gave as his reason 
for doing so that he could not be detained as a witness 



132 OUR CHIEF MAGISTRATE 

in a case, because it would interfere with his public 
duties. To this Chief Justice Marshall responded that 
apparently all his tune was not taken up with govern- 
mental duties, which Mr. Jefferson construed to mean 
a reference to the fact that he spent a great deal of his 
time at Monticello, and an intimation that he might 
just as well come to Richmond and testify as to go to 
Monticello and enjoy his leisure. Mr. Jefferson re- 
sented the intimation with all the emphasis and ve- 
hemence that Chief Justice Marshall's rulings in politi- 
cal and personal matters usually evoked. No other 
President, so far as I know, has been subpoenaed to 
appear in court during his term. General Grant did 
testify in the criminal case brought against Mr. Bab- 
cock, his Secretary, in behalf of the defendant. The 
deposition was given in the White House and was 
taken before Chief Justice Waite, and in the presence of 
the Attorney-General. 

The Supreme Court seems to make a broad distinc- 
tion between issuing process against the President and 
against his subordinates under laws requiring the spe- 
cific performance of a definite act. I cannot think that 
the Court would ever issue a mandamus to compel the 
President to perform even an act purely ministerial, 
though it has often issued such a writ against one of 
his subordinates. The Supreme Court has a number 
of tunes intimated that the President's office is of such 
a high character, that officially he is beyond the com- 
pulsory processes of the Court. Thus in the case of 
Mississippi against Johnson, where it was sought by 
the state of Mississippi to enjoin President Johnson 
from carrying out the reconstruction acts, on the 



LIMITATIONS OF THE PRESIDENT'S POWERS 133 

ground that they were unconstitutional, the Court 
refused to issue the writ on two grounds, first that it 
did not have the power to enforce a writ of injunction 
against the President, who might decline to obey its 
writ, and second on the ground that the unconstitu- 
tionally of such an act directing an executive officer 
with respect to the government of a state was a political 
question which it could not control, but which must 
be decided by the executive to whose discretion the 
enforcement of the act was entrusted. 

As already said, the court has always fully conceded its 
duty to recognize, as binding upon it, the political powers 
exercised by the Executive and Legislative departments 
of the government under the Constitution. It is not 
always easy to say what is a political issue. Possibly 
the latest case of this kind is the one in which a cor- 
poration sought to evade the payment of taxes in 
Oregon, on the ground that the law under which they 
were exacted had been passed by an initiative and a 
referendum. It was contended that an initiative and 
referendum were inconsistent with a republican form 
of government as understood by the framers of the Con- 
stitution, and as the United States guaranteed to each 
state a republican form of government, such a method 
of legislation must be invalid and no taxes could be col- 
lected under it. The Supreme Court answered that the 
question whether a state had a republican form of gov- 
ernment was a political question for Congress to settle, 
and that as long as Congress continued to recognize 
Oregon as a state, it was not for the Court to investi- 
gate the question. I think myself that there is no doubt 
that the term "republican" in that clause in the Consti- 



134 OUR CHIEF MAGISTRATE 

tution was intended to distinguish our kind of govern- 
ment from a monarchical form, and that it was not 
intended to make a distinction between what is called 
a republican form of government and a purely demo- 
cratic or direct form of popular government. Congress 
is the authority to decide this question, and it 
has already so decided it in the cases of Oklahoma, 
of Arizona, and of New Mexico, because the consti- 
tutions of those states containing provisions for the 
initiative and the referendum were before it and were 
approved. 

An instance of how the Legislative and Executive 
departments can decide a constitutional question with- 
out the intervention of Congress may be seen in the 
appropriation made by one Congress during the 
Spanish- American War of $3,000,000, to be expended 
through the War Department with the approval of 
the President for contingencies that could not be fore- 
seen. This fund was not completely expended for some 
four or five years after the appropriation. It was a 
very useful fund, as I can testify, because it enabled 
us in the administration of the Philippines to meet 
extraordinary expenses which had to be incurred in the 
suppression of the insurrection, in the detection of 
sedition, in the encouragement of friendly relations 
with the people and in many other ways. The point 
was made by one member of the appropriation com- 
mittee that this was an appropriation in support of the 
army, and therefore must be limited by the Constitu- 
tion to two years, but the view of the department and 
of the Comptroller of the Treasury was that this appro- 
priation was not included within the limitation because 



LIMITATIONS OF THE PRESIDENT'S POWERS 135 

it was not for the support of the army and was not 
used therefor, although included in the Army Appro- 
priation Bill expended by the War Department in the 
suppression of the disorders in the Philippines and in 
Cuba. 

Executive power is sometimes created by custom, 
and so strong is the influence of custom that it seems 
almost to amend the Constitution. Take the case of 
Postal Treaties. The Constitution says that treaties 
with foreign governments shall be made by the Presi- 
dent, by and with the advice of a two-thirds vote of 
the Senate ; and yet postal arrangements in the nature 
of treaties had been made between this country and 
the European countries before the Constitution was 
adopted, and continued to be made after its adoption, 
without Senate action, until 1844 when the one postal 
treaty that was ever made in that way was signed by 
the President and consented to by the Senate. Almost 
immediately thereafter Congress passed an act which 
authorized the Postmaster-General to make treaties 
affecting postal matters, with postal authorities of 
other countries, subject to the consent of the President, 
and this is an exception grafted on to the Constitution 
merely through Executive practice. A similar case is 
that of the remission of penalties incurred by steamers 
violating the navigation laws. Since the beginning of 
the government, the Secretary of the Treasury has 
exercised the power to remit these penalties in proper 
cases. The pardoning power is given by the Constitu- 
tion to the President, yet the practice of one hundred 
years was recognized by the Supreme Court and it 
held to be valid. 



136 OUR CHIEF MAGISTRATE 

In a very recent case, in which President Roosevelt 
had exercised the power to withdraw lands, which were 
open for settlement under an act of Congress, from the 
operation of the act, and in which course I had followed 
him with very considerable doubt as to my power, the 
validity of our action was brought before the Supreme 
Court and sustained, on the ground that the practice 
of the Executive for a great many years, with the 
acquiescence of Congress in such withdrawals, justified 
the exercise of the power and made it legal as if there 
had been an express act of Congress authorizing it. 

One of the great questions that the Executive has 
had to meet in the past has been how far he might 
properly differ from the Supreme Court in the con- 
struction of the Constitution in the discharge of his 
duties. Jefferson, in a letter to Mrs. John Adams, 
laid it down with emphasis with reference to the Sedi- 
tion Law, in which he said : 

The Judges, believing the law constitutional, had a right to 
pass a sentence of fine and imprisonment, because the power was 
placed in their hands by the Constitution. But the executive, 
believing the law to be unconstitutional, might remit the execution 
of it, because that power has been confided to them by the Con- 
stitution. That instrument meant that its coordinate branches 
should be checks on each other. But the opinion which gives to 
the Judges the right to decide what laws are constitutional, and 
what not, not only for themselves in their own sphere of action, 
but for the legislature and executive also, in their spheres, would 
make the judiciary a despotic branch. 

And so Jackson in his message vetoing the renewal of 
the charter to the bank of the United States in respect 
to the opinion of the Supreme Court confirming the 
constitutionality of the previous charter, said : 



LIMITATIONS OF THE PRESIDENT'S POWERS 137 

If the opinion of the Supreme Court covered the whole ground 
of this act, it ought not to control the coordinate authorities of 
this Government. 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 Con- 
stitution 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 Representatives, of the Senate, and of the President to 
decide upon the Constitutionality of any bill or resolution which 
may be presented to them for passage or approval as it is of the 
Supreme judges when it may be brought before them for judicial 
decision. The opinion of the judges has no more authority over 
Congress than the opinion of Congress has over the judges, and on 
that point the President is independent of both. The authority 
of the Supreme Court must not, therefore, be permitted to control 
the Congress or the Executive when acting in their legislative 
capacities, but to have only such influence as the force of their 
reasoning may deserve. 

Mr. Lincoln in his reference to the Dred Scott case 
said: 

I do not forget the position assumed by some that constitutional 
questions are to be decided by the Supreme Court, nor do I deny 
that such decisions must be binding in any case upon the parties 
to 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. And while it is obviously 
possible that such decision may be erroneous in any given case, 
still the evil effect following it, being limited to that particular case, 
with the chance that it may be overruled and never become a 
precedent for other cases, can better be borne than could the evils 
of a different practice. At the same time, the candid citizen must 
confess that if the policy of the Government 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 litiga- 
tion between parties in personal actions the people will have ceased 
to be their own rulers, having to that extent practically resigned 



138 OUR CHIEF MAGISTRATE 

their government into hands of that eminent tribunal. Nor is 
there in this view any assault upon the court or the judges. It is a 
duty from which they may not shrink to decide cases properly 
brought before them, and it is no fault of theirs if others seek to 
turn their decisions to political purposes. 

I do not intend to dispute the attitude of these dis- 
tinguished men. Nor is it necessary to do so. It is 
sufficient to say that the Court is a permanent body, 
respecting precedent and seeking consistency in its 
decisions, and that therefore its view of the Constitu- 
tion, whether binding on the Executive and the legis- 
lature or not, is likely ultimately to prevail as accepted 
law. 

While it is important to mark out the exclusive field 
of jurisdiction of each branch of the government, 
Legislative, Executive and Judicial, it should be said 
that in the proper working of the government there must 
be cooperation of all branches, and without a willing- 
ness of each branch to perform its function, there will fol- 
low a hopeless obstruction to the progress of the whole 
government. Neither branch can compel the other to 
affirmative action, and each branch can greatly hinder 
the other in the attainment of the object of its activi- 
ties and the exercise of its discretion. The judicial 
branch has sometimes been said to be the most power- 
ful branch of the government because in its decision 
of litigated cases it is frequently called upon to mark 
the limits of the jurisdiction of the other two branches. 
As already noted, by its continuity and the consistency 
of its decisions, the Court exercises much greater 
power in this regard than the other two branches. 
But it has no instruments to enforce its judgments, and 



LIMITATIONS OF THE PRESIDENT'S POWERS 139 

if the Executive fails to remove the obstructions that 
may be offered to the execution of its decrees and 
orders, when its authority is defied, then the Court is 
helpless. It may not directly summon the army or the 
navy to maintain the supremacy of the law and order. 
So if the judges of the Court were to refuse to perform 
the judicial duties imposed by Congress, the object of 
Congress in much of its legislation might be defeated. 
And if Congress were to refuse to levy the taxes and 
make the appropriations which are necessary to pay 
the salaries of government officials, and to furnish the 
equipment essential in the performance of their duties, 
it could paralyze all branches of the government. The 
life of the government, therefore, depends on the sense 
of responsibility of each branch in doing the part as- 
signed to it in the carrying on of the business of the 
people in the government, and ultimately as the last 
resource, we must look to public opinion as the moving 
force to induce affirmative action and proper team 
work. The power over the purse is, however, prac- 
tically the greatest power, and that Congress exer- 
cises without control by either of the other branches. 
Therefore when fear is expressed of the usurpation by 
other branches and the thieving of jurisdiction by either, 
we must keep in mind that the legislative power to 
withhold appropriations is that which in the history 
of constitutional government has always been the 
most powerful agency in the defense of the people's 
rights. 

The true view of the Executive functions is, as I con- 
ceive it, that the President can exercise no power which 
cannot be fairly and reasonably traced to some specific 



140 OUR CHIEF MAGISTRATE 

grant of power or justly implied and included within such 
express grant as proper and necessary to its exercise. 
Such specific grant must be either in the Federal Con- 
stitution or in an act of Congress passed in pursuance 
thereof. There is no undefined residuum of power 
which he can exercise because it seems to him to be in 
the public interest, and there is nothing in the Neagle 
case and its definition of a law of the United States, 
or in other precedents, warranting such an inference. 
The grants of Executive power are necessarily in general 
terms in order not to embarrass the Executive within 
the field of action plainly marked for him, but his 
jurisdiction must be justified and vindicated by affir- 
mative constitutional or statutory provision, or it does 
not exist. There have not been wanting, however, emi- 
nent men in high public office holding a different 
view and who have insisted upon the necessity for an 
undefined residuum of Executive power in the public 
interest. They have not been confined to the present 
generation. We may learn this from the complaint of 
a Virginia statesman, Abel P. Upshur, a strict construc- 
tionist of the old school, who succeeded Daniel Webster 
as Secretary of State under President Tyler. He was 
aroused by Story's commentaries on the Constitution 
to write a monograph answering and criticizing them, 
and in the course of this he comments as follows on 
the Executive power under the Constitution : 

The most defective part of the Constitution beyond all ques- 
tion, is that which related to the Executive Department. It is 
impossible to read that instrument, without being struck with the 
loose and unguarded terms in which the powers and duties of the 
President are pointed out. So far as the legislature is concerned, 



LIMITATIONS OF THE PRESIDENT'S POWERS 141 

the limitations of the Constitution, are, perhaps, as precise and 
strict as they could safely have been made ; but in regard to the 
Executive, the Convention 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. We have heard it gravely asserted in Congress 
that whatever power is neither legislative nor judiciary, is of course 
executive, and, as such, belongs to the President under the Constitution. 
How far a majority of that body would have sustained a doctrine 
so monstrous, and so utterly at war with the whole genius of our 
government, it is impossible to say, but this, at least, we know, 
that it met with no rebuke from those who supported the particular' 
act of Executive power, in defense of which it was urged. Be this 
as it may, it is a reproach to the Constitution that the Executive 
trust is so ill-defined, as to leave any plausible pretense even to the 
insane zeal of party devotion, for attributing to the President of 
the United States the powers of a despot ; powers which are wholly 
unknown in any limited monarchy in the world. 

The view that he takes as a result of the loose lan- 
guage defining the Executive powers seems exaggerated. 
But one must agree with him in his condemnation of the 
view of the Executive power which he says was ad- 
vanced in Congress. In recent years there has been 
put forward a similar view by executive officials and 
to some extent acted on. Men who are not such strict 
constructionists of the Constitution as Mr. Upshur 
may well feel real concern if such views are to receive 
the general acquiescence. Mr. Garfield, when Secre- 
tary of the Interior, under Mr. Roosevelt, in his final 
report to Congress in reference to the power of the 
Executive over the public domain, said : 

Full power under the Constitution was vested in the Executive 
Branch of the Government and the extent to which that power 
may be exercised is governed wholly by the discretion of the Execu- 



142 OUR CHIEF MAGISTRATE 

tive unless any specific act has been prohibited either by the Con- 
stitution or by legislation. 

In pursuance of this principle, Mr. Garfield, under 
an act for the reclamation of arid land by irrigation, 
which authorized him to make contracts for irrigation 
works and incur liability equal to the amount on de- 
posit in the Reclamation Fund, made contracts with 
associations of settlers by which it was agreed that if 
these settlers would advance money and work, they 
might receive certificates from the government engi- 
neers of the labor and money furnished by them, and 
that such certificates might be received in the future 
in the discharge of their legal obligations to the govern- 
ment for water rent and other things under the statute. 
It became necessary for the succeeding administration 
to pass on the validity of these government certificates. 
They were held by Attorney-General Wickersham to 
be illegal, on the ground that no authority existed for 
their issuance. He relied on the Floyd acceptances in 
7th Wallace, in which recovery was sought in the 
Court of Claims on commercial paper in the form of 
acceptances signed by Mr. Floyd when Secretary of 
War and delivered to certain contractors. The Court 
held that they were void because the Secretary of War 
had no statutory authority to issue them. Mr. Justice 
Miller, in deciding the case, said : 

The answer which at once suggests itself to one familiar with the 
structure of our government, in which all power is delegated, and 
is defined by law, constitutional or statutory, is, that to one or both 
of these sources we must resort in every instance. We have no 
officers in this government, from the President down to the most 
subordinate agent, who does not hold office under the law, with 



LIMITATIONS OF THE PRESIDENT'S POWERS 143 

prescribed duties and limited authority. And while some of these, 
as the President, the Legislature, and the Judiciary, exercise powers 
in some sense left to the more general definitions necessarily incident 
to fundamental law found in the Constitution, the larger portion 
of them are the creation of statutory law, with duties and powers 
prescribed and limited by that law. 

In the light of this view of the Supreme Court it is 
interesting to compare the language of Mr. Roosevelt 
in his "Notes for a Possible Autobiography" on the 
subject of " Executive Powers, " in which he says : 

The most important factor in getting the right spirit in my 
Administration, next to insistence upon courage, honesty, and a 
genuine democracy of desire to serve the plain people, was my 
insistence upon the theory that the executive power was limited 
only by specific restrictions and prohibitions appearing in the 
Constitution or imposed by Congress under its constitutional 
powers. My view was that every Executive officer and above 
all every Executive officer in high position was a steward of the 
people bound actively and affirmatively to do all he could for the 
people and not to content himself with the negative merit of keep- 
ing his talents undamaged in a napkin. I declined to adopt this 
view that what was imperatively necessary for the Nation could 
not be done by the President, unless he could find some specific 
authorization to do it. My belief was that it was not only his 
right but his duty to do anything that the needs of the Nation 
demanded unless such action was forbidden by the Constitution 
or by the laws. Under this interpretation of executive power I 
did and caused to be done many things not previously done by 
the President and the heads of the departments. I did not usurp 
power but I did greatly broaden the use of executive power. In 
other words, I acted for the common well being of all our people 
whenever and in whatever measure was necessary, unless prevented 
by direct constitutional or legislative prohibition. 

I may add that Mr. Roosevelt, by way of illustrating 
his meaning as to the differing usefulness of Presidents, 



144 OUR CHIEF MAGISTRATE 

divides the Presidents into two classes, and designates 
them as "Lincoln Presidents" and " Buchanan Presi- 
dents/' In order more fully to illustrate his division 
of Presidents on their merits, he places himself in the 
Lincoln class of Presidents, and me in the Buchanan 
class. The identification of Mr. Roosevelt with Mr. 
Lincoln might otherwise have escaped notice, because 
there are many differences between the two, presumably 
superficial, which would give the impartial student of 
history a different impression. It suggests a story 
which a friend of mine told of his little daughter Mary. 
As he came walking home after a business day, she ran 
out from the house to greet him, all aglow with the 
importance of what she wished to tell him. She said, 
"Papa, I am the best scholar in the class." The 
father's heart throbbed with pleasure as he inquired, 
"Why, Mary, you surprise me. When did the teacher 
tell you ? This afternoon ? " "Oh, no," Mary's reply 
was, "the teacher didn't tell me I just noticed it 
myself." 

My judgment is that the view of Mr. Garfield 
and Mr. Roosevelt, ascribing an undefined residuum 
of power to the President is an unsafe doctrine and 
that it might lead under emergencies to results of 
an arbitrary character, doing irremediable injustice 
to private right. The mainspring of such a view is 
that the Executive is charged with responsibility for 
the welfare of all the people in a general way, that 
he is to play the part of a Universal Providence and 
set all things right, and that anything that in his judg- 
ment will help the people he ought to do, unless he is 
expressly forbidden not to do it. The wide field of 



LIMITATIONS OF THE PRESIDENT'S POWERS 145 

action that this would give to the Executive one can 
hardly limit. It is enough to say that Mr. Roosevelt 
has expressly stated how far he thought this principle 
would justify him in going in respect to the coal 
famine and the Pennsylvania anthracite strike which 
he did so much useful work in settling. What was 
actually done was the result of his activity, his power 
to influence public opinion and the effect of the pres- 
tige of his great office in bringing the parties to the 
controversy, the mine owners and the strikers, to a 
legal settlement by arbitration. No one has a higher 
admiration for the value of what he did there than I 
have. But if he had failed in this, he says he intended 
to take action on his theory of the extent of the execu- 
tive power already stated. I quote from the same 
book from which his other words are taken. Mr. 
Roosevelt says : 

In my own mind, I was already planning effective action, but 
it was of a very drastic character, and I did not wish to take it 
until the failure of all other expedients had rendered it neces- 
sary. ... I had definitely determined that somehow or other, 
act I would, that somehow or other the coal famine should be 
broken. To accomplish this end it was necessary that the mines 
should be run, and if I could get no voluntary agreement between 
the contending sides, that an arbitration commission should be 
appointed which would command such public confidence as to 
enable me without too much difficulty, to enforce its terms on 
the parties. . . . 

******** 

Meanwhile the Governor of Pennsylvania had all the Pennsyl- 
vania militia in the anthracite region although without any effect 
upon the resumption of mining. The method of action upon which 
I had determined was to get the Governor of Pennsylvania to 
ask me to keep order. Then I would put in the army under the 



146 OUR CHIEF MAGISTRATE 

-command of some first rate general. I would instruct this general 
to keep absolute order, taking any steps whatever that were neces- 
sary to prevent interference by the strikers or their sympathizers 
with men who wanted to work. I would also instruct him to dis- 
possess the operators and run the mines as a receiver until such 
time as the commission might make its report, and until I as Presi- 
dent might issue further orders in view of this report." 

Now it is perfectly evident that Mr. Roosevelt 
thinks he was charged with the duty, not only to sup- 
press disorder in Pennsylvania, but to furnish coal to 
avoid the coal famine in New York and New England, 
and therefore he proposed to use the army of the United 
States to mine the coal which should prevent or relieve 
the famine. It was his avowed intention to take the 
coal mines out of the hands of their lawful owners and to 
mine the coal which belonged to them and sell it in the 
eastern market, against their objection, without any 
court proceeding of any kind and without any legal 
obligation on their part to work the mines at all. It 
was an advocacy of the higher law and his obligation 
to execute it which is a little startling in a constitu- 
tional republic. It is perfectly evident from his state- 
ment that it was not the maintenance of law and order 
in Pennsylvania and the suppression of insurrection, 
the only ground upon which he could intervene at all, 
that actuated him in what he proposed to do. He used 
the expression that he would "get" the Governor of 
Pennsylvania to call for troops from him, and then 
having secured a formal authority for the use of the 
army to suppress disorder, he proposed to use it for 
the seizure of private property and its appropriation 
for the benefit of the people of other states. The 



LIMITATIONS OF THE PRESIDENT'S POWERS 147 

benevolence of his purpose no one can deny, but no 
one who looks at it from the standpoint of a govern- 
ment of law could regard it as anything but law- 
less. I venture to think, however, that Mr. Roosevelt 
is mistaken in what he thinks he would have done. 
Mr. Roosevelt in office was properly amenable to the 
earnest advice of those whom he trusted, and there were 
men about him who would probably have dissuaded 
him from such a course. 

I am aware that there are many who believe in 
government ownership of the sources of public comfort 
in the interest of the community at large; but it is 
certainly only the extremes of that school that favor the 
use of the army under the President to seize the needed 
mines without constitutional amendment or legislative 
and judicial action and without compensation. Mr. 
Roosevelt in his subsequent remarks seems to find a 
justification for his general view of the limitations of 
Executive power in what Mr. Lincoln did during the 
Civil War. That Mr. Lincoln with the stress of the 
greatest civil war in modern times felt called upon to 
do things, the constitutionality of which was seriously 
questioned, is undoubtedly true. But Mr. Lincoln al- 
ways pointed out the source of the authority which in 
his opinion justified his acts, and there was always a 
strong ground for maintaining the view which he took. 
His claim of right to suspend the writ of habeas corpus I 
venture to think was well founded. Congress subse- 
quently expressly gave him this right and the Supreme 
Court sustained his exercise of it under the act of Con- 
gress. His Emancipation Proclamation was attacked as 
an unconstitutional exercise of authority, but he de- 



148 OUR CHIEF MAGISTRATE 

fended it as an act of the Commander-in-Chief justified 
by military necessity to weaken the enemies of the 
Nation and suppress their rebellion. Certainly the argu- 
ments that he and those who supported his action 
brought to sustain it have great weight. But Mr. Lincoln 
never claimed that whatever authority in government 
was not expressly denied to him he could exercise. 

In my reading recently I ran across a case which 
attracted great attention at the time, now more than 
one hundred years ago. It concerned the action of 
another President of great popularity, great power, 
great mental activity, and great and equally genuine 
sympathy with the people and with popular govern- 
ment Thomas Jefferson. Mr. Jefferson was a strict 
constructionist of the Constitution in theory and in prac- 
tice, but as in the case of all of us, when he had power 
things looked differently to him and acts were justified 
in his mind and conscience on the theory that he was 
doing good and working for the public welfare. But in 
his wide view of what he himself as President could do 
to preserve the public welfare, he did something that 
troubled him, even after he left the Presidency. 

The owner of a large tract of land reaching to the 
Mississippi River, just outside of New Orleans, and a 
part of its suburbs, claimed title to an alluvial exten- 
sion of that land deposited by the river, as lawful 
accretion to his property. Such an accretion was 
known in French legal nomenclature as a "Batture." 
The owner sought by suit in the Territorial Court 
to exclude from the Batture people of the city who took 
sand therefrom. The Territorial Court sustained the 
title of the riparian owner to the Batture. In this liti- 



LIMITATIONS OF THE PRESIDENT'S POWERS 149 

gallon Edward Livingston, who had gone from New 
York to New Orleans, just after the acquisition of the 
Territory, appeared as counsel for the owner and as part 
of his compensation received some of the land. He 
attempted to improve it, to protect it against the 
wearing of the river and to build a canal through 
it. The territorial governor was Claiborn, and the 
people of the town who had been shut out by the 
action of the local court appealed to him. He submitted 
the matter to Mr. Jefferson, who consulted his Attorney- 
General, Mr. Rodney, and thereupon issued a warrant 
directing the United States Marshal to take possession 
of the land in question and hold it for the benefit of 
the people of New Orleans, under a Statute of Congress 
authorizing the President to exclude squatters from the 
public domain. The local court issued an injunction 
against the marshal's complying with this order of the 
President. The marshal refused to obey the inj unc- 
tion, and using Federal troops opened the land to the 
use of the people of the city, who continued to take 
sand. This exposed the land to the danger which it 
was being unproved to prevent. The river rose and 
swept away the works. Livingston lost a very large 
sum of money by reason of this invasion. He went 
to Washington twice, to be heard, and was refused an 
opportunity to argue the case, or to know the grounds 
upon which action of the President had been taken, or 
to see the opinion of the Attorney-General upon which 
it was based. He petitioned Congress for relief with- 
out avail. Finally he brought suit against Jefferson 
personally for trespass in the Federal Court of Virginia. 
The suit was dismissed by Chief Justice Marshall of 



150 OUR CHIEF MAGISTRATE 

the Federal Court on the ground that the court in 
Virginia had no jurisdiction of a trespass committed 
on land in Louisiana. 

Thereafter Mr. Jefferson published a defense of his 
action which brought out an answer from Livingston, 
which was so convincing on the issues made by Mr. 
Jefferson and was so replete with wit and humor and 
satire that even the British Encyclopedia describes it as 
crushing. In the course of this answer Livingston used 
some language that it seems to me would have been prop- 
erly applicable to the proceeding which Mr. Roosevelt 
proposed to take, and which he frankly calls drastic. 
Mr. Roosevelt says there would doubtless have been an 
outcry against his proceeding. It would have been de- 
nounced as a usurpation ; but he thinks that the good he 
would have done would have rallied to his support the 
great body of the people in whose interest he would have 
acted and thus his plan would have vindicated itself. 
Mr. Livingston opened his answer to Jefferson as follows: 

When a public functionary abuses his power by an act which 
bears on the community, his conduct excites attention, provokes 
popular resentment, and seldom fails to receive the punishment 
it merits. Should an individual be chosen for the victim, little 
sympathy is created for his sufferings, if the interest of all is supposed 
to be promoted by the rum of one. The gloss of zeal for the public 
is therefore always spread over acts of oppression, and as a brilliant 
exertion of energy in their favor, which, when viewed in its true 
light, would be found a fatal blow to their rights. 

In no government is this effect so easily produced as in a free 
republic; party spirit, inseparable from its existence, there aids 
the illusion, and a popular leader is allowed in many instances 
impunity, and sometimes rewarded with applause for acts that 
would make a tyrant tremble on his throne. This evil must exist 
in a degree it is founded in the natural course of human pas- 



LIMITATIONS OF THE PRESIDENT'S POWERS 151 

sions ; but in a wise and enlightened nation it will be restrained ; 
and the consciousness that it must exist will make such a people 
more watchful to prevent its abuse. These reflections occur to 
one, whose property, without trial or any of the forms of law, has 
been violently seized by the first magistrate of the Union, who 
has hitherto vainly solicited an inquiry into his title, who has 
seen the conduct of his oppressor excused or applauded, and 
who, in the book he is now about to examine, finds an attempt 
openly to justify that conduct upon principles as dangerous as 
the act was illegal and unjust. 

Mr. Livingston ended his answer to Mr. Jefferson as 
follows : 

My future conduct will depend much on that of my adversary. 
I shall continue to reply to every argument that may be addressed 
to the public on this subject. Knowing that my cause is good, I 
do not despair, even with humble pretensions, to make its justice 
appear. For this purpose, I have always courted investigation: 
I should have preferred it in a court of justice, but do not decline 
it before the public. 

Though some may condemn me only on hearing the name 
of my opponent, there are many, very many, in the nation who 
have independence enough to judge for themselves, and the ability 
to decide with correctness ; to such I submit the merits of a con- 
troversy which has been rendered interesting as well from the 
constitutional as the legal questions it involves, and on which Mr. 
Jefferson has, by his management of it, staked his legal, his political, 
and almost his moral reputation. That he should not have under- 
stood the nature of my title and the different foreign codes on 
which it depends, is no reproach ; that he should have acted at all 
without this knowledge must surprise, that he should have acted 
forcibly, must astonish us; but that he should persevere in the 
same pretence of understanding the law of France better than 
gentlemen bred to it from their childhood, and who, engaged in 
the same side of the controversy with himself, have abandoned the 
ground he has taken that he should obstinately justify an in- 
vasion of private property, in a manner that puts it in the power 



152 OUR CHIEF MAGISTRATE 

of a President with impunity to commit acts of oppression at which 
a King would tremble that he should do all this, and still talk 
of conscious rectitude, must amaze all those who look only to the 
reputation he has enjoyed, and who do not consider the inconsis- 
tency of human nature, and the deplorable effects of an inordinate 
passion for popularity. 

The life of Edward Livingston is one of the most 
romantic and checkered that I know. He was a brother 
of Chancellor Livingston, and a son of an earlier Judge 
Livingston. He was born in the Colony of New York, 
and was given a thorough education in languages and 
in both the common and the civil law. He was a gifted 
speaker and had a style both pleasant and trenchant, 
which he illuminated with wit, humor and satire and 
with the most graceful literary references. He was a 
very earnest Republican and a follower of Jefferson. He 
was elected to Congress as a Republican in the days of 
the first Adams, and introduced the resolutions, already 
noted, denouncing Adams as a usurper of individ- 
ual right in granting the extradition of the British 
murderer who was arrested in South Carolina. These 
resolutions were the occasion for the wonderful argu- 
ment of John Marshall, also a member of Congress, to 
which I have referred. After Mr. Livingston had served 
in Congress for two terms, he was appointed by Mr. 
Jefferson to be United States District Attorney for New 
York. He was also at the same time (for they allowed 
plurality of offices in those days), appointed to be Mayor 
of New York by Governor Clinton. Mr. Livingston was 
a free liver and most hospitable. The yellow fever came 
to New York. As Mayor, Mr. Livingston was active in 
dealing with the epidemic and endeared himself to the 



LIMITATIONS OF THE PRESIDENT'S POWERS 153 

people by his efforts to save them. During the epidemic, 
an agent of the government visited New York, examined 
Mr. Livingston's accounts and found that in his collec- 
tions for the government he was short a large sum. It 
at first was thought to be one hundred thousand dollars, 
but was subsequently found to be not more than forty 
thousand. It turned out that a good deal of this was 
due to the dishonesty of a subordinate, but Livingston 
could not relieve himself entirely from the charge of 
defalcation which was probably due to his lack of care 
in his accounts. When the matter was brought to 
his attention, he resigned both offices, turned all his 
property over to the government, and left for New 
Orleans, a territory which in the year before, in 1803, 
had been taken over by the United States under a 
treaty negotiated by his brother, Chancellor Robert 
Livingston. By his defalcation he passed out of the 
good graces of Mr. Jefferson, and Mr. Jefferson's 
attitude in respect to the litigation in which Mr. 
Livingston took part is possibly explained by his irrita- 
tion at the disgrace which he felt that Livingston had 
put upon his administration. Though ruined by the 
action of Mr. Jefferson in respect to the Batture, Mr. 
Livingston continued the practice of the law and 
paid the Government in full. He was in New Orleans 
at the time of the famous battle fought there by 
Old Hickory. General Jackson came to know Mr. 
Livingston and to value him highly, and used him for 
legal advice before and after the battle. Mr. Liv- 
ingston appeared for General Jackson in responding to 
a summons issued by Judge Hall for contempt on the 
part of the General in ignoring a writ of habeas corpus 



154 OUR CHIEF MAGISTRATE 

which he had issued, and in otherwise treating the Judge 
contemptuously. After the battle, General Jackson 
recognized the jurisdiction of the court, and submitted 
to its authority, upon Mr. Livingston's advice. The 
friendship made with General Jackson, Mr. Livingston 
continued to enjoy during his life. He subsequently 
became a member of Congress from Louisiana, a United 
States Senator from the state, and was finally appointed 
Secretary of State under General Jackson. Mr. Liv- 
ingston wrote a code of procedure for the Territory of 
Louisiana to reconcile the civil law practice to the anom- 
alies which the adoption of the state into a Union with 
so many common law jurisdictions presented. This code 
was adopted. The great reputation which Mr. Living- 
ston obtained, however, was from a criminal code which 
he wrote for the state of Louisiana, but which that 
state did not adopt. In its humanity and its provisions 
for prison reform, it was fifty years ahead of his time. 
I venture to say that no American jurist among 
the jurists of continental Europe made a deeper im- 
pression than did Mr. Livingston by his Criminal Code. 
It is of the utmost interest to note the fact that after 
he had published his code and had received from it 
the highest commendations from Chief Justice Marshall, 
Chancellor Kent and Mr. Justice Story, and all the 
great jurists of the country, Mr. Jefferson wrote him 
a letter congratulating him upon it and assuring him 
of his respect and friendship. After Mr. Jefferson's 
death, Mr. Livingston was arguing a case in the Su- 
preme Court of the United States when the other side 
quoted from his answer to Jefferson as to the Batture. In 
the course of his argument he referred to the answer and 



LIMITATIONS OF THE PRESIDENT'S POWERS 155 

said that it was written under a sense of having a great 
wrong done him by Mr. Jefferson, and that he had not 
changed his view since writing it . But he said he thought 
he owed it to the memory of Mr. Jefferson to say that 
in after years Mr. Jefferson renewed his friendly rela- 
tions with him, and showed by his conduct the greatness 
which a French writer recognizes in a man who having 
done an injury to another is able to forgive that other. 
Recurring now to the plan of Mr. Roosevelt as to 
the coal mines of Pennsylvania, I think that if we sub- 
stitute for the individual Livingston, in the Batture 
controversy, the anthracite mine owners, the language 
of Mr. Livingston which I have quoted would be 
germane in such a discussion. I would not dwell 
upon this subject were it not of great importance with 
reference to the course urged upon President Wilson 
when he had sent Federal troops for the maintenance of 
order in Colorado. He was advised to use the troops to 
close the mines which were then running and producing 
a substantial part of their normal product. The closing 
of mines might have been a sop to those who threatened 
violence in case the troops were withdrawn and so miti- 
gate lawlessness for a time. But was it a proper method 
of maintaining order to deprive men of the right of 
property that it was the very object of the constitutional 
provision for Federal intervention to protect ? No one 
claimed the operation of the mines was unlawful. It 
was only said that their continued operation after the 
withdrawal of the Federal troops would lead to disturb- 
ance. By whom? By the strikers. Was this not a 
proposition to compel an owner of property to cease 
its lawful use because his former employees would other- 



156 OUR CHIEF MAGISTRATE 

wise attempt unlawfully and violently to prevent such 
use? 

I have now concluded a review of the Executive 
power, and hope that I have shown that it is limited, 
so far as it is possible to limit such a power consistent 
with that discretion and promptness of action that are 
essential to preserve the interests of the public in tunes 
of emergency, or legislative neglect or inaction. 

There is little danger to the public weal from the tyr- 
anny or reckless character of a President who is not sus- 
tained by the people. The absence of popular support 
will certainly in the course of two years withdraw from 
him the sympathetic action of at least one House of Con- 
gress, and by the control that that House has over 
appropriations, the Executive arm can be paralyzed, 
unless he resorts to a coup d'etat, which means im- 
peachment, conviction and deposition. The only dan- 
ger in the action of the Executive under the present 
limitations and lack of limitation of his powers is when 
his popularity is such that he can be sure of the sup- 
port of the electorate and therefore of Congress, and 
when the majority in the legislative halls respond with 
alacrity and sycophancy to his will. This condition 
cannot probably be long continued. We have had 
Presidents who felt the public pulse with accuracy, who 
played their parts upon the political stage with his- 
trionic genius and commanded the people almost as if 
they were an army and the President their Comman- 
der-in-Chief. Yet in all these cases, the good sense of 
the people has ultimately prevailed and no danger has 
been done to our political structure and the reign of 
law has continued. In such times when the Executive 



LIMITATIONS OF THE PRESIDENT'S POWERS 157 

power seems to be all prevailing, there have always 
been men in this free and intelligent people of ours, 
who apparently courting political humiliation and dis- 
aster have registered protest against this undue Execu- 
tive domination and this use of the Executive power 
and popular support to perpetuate itself. 

The cry of Executive domination is often entirely 
unjustified, as when the President's commanding in- 
fluence only grows out of a proper cohesion of a party 
and its recognition of the necessity for political leader- 
ship ; but the fact that Executive domination is re- 
garded as a useful ground for attack upon a successful 
administration, even when there is no ground for it, 
is itself proof of the dependence we may properly 
place upon the sanity and clear perceptions of the 
people in avoiding its baneful effects when there is real 
danger. Even if a vicious precedent is set by the Execu- 
tive, and injustice done, it does not have the same bad 
effect that an improper precedent of a court may have, 
for one President does not consider himself bound by 
the policies or constitutional views of his predecessors. 

The Constitution does give the President wide dis- 
cretion and great power, and it ought to do so. It 
calls from him activity and energy to see that within 
his proper sphere he does what his great responsibilities 
and opportunities require. He is no figurehead, and 
it is entirely proper that an energetic and active clear- 
sighted people, who, when they have work to do, wish 
it done well, should be willing to rely upon their judg- 
ment in selecting their Chief Agent, and having selected 
him, should entrust to him all the power needed to 
carry out their governmental purpose, great as it may be. 



INDEX 



Act of War, What constitutes an, 
95-96 

Adams, President, did not veto bills 
on merits, 16; opposed by Liv- 
ingston, 86; warrant by, upheld 
by Court, 87; appointed "Mid- 
night Judges," 42. See Jay's 
Treaty 

Amnesty, granted by the President, 
119; effect of, 119-120 

Appointment Power, to whom ap- 
plies, 55-56 ; how exercised, 61- 
64 ; dangers of, 68 ; is a tax 
upon the President, 67-71 ; is 
not good for the Court, 70; in 
what officers advantageous, 72; 
of the President, is limited by 
Congress, 125; may be exercised 
free of encroachment, 126-128 

Appropriation Bills, may include 
irrelevant legislation of a hostile 
Congress, 25-27 ; may arise from 
a treaty obligation, 115. See 
Budget 

Appropriation Act, Construction of, 
and procedure, 81 

Arthur, President, vetoed bill en- 
croaching upon appointment 
power, 126 

Bank of the United States, Renewal 
of charter of the, vetoed, 136. 
See Veto 

Bills, must be signed by the Presi- 
dent or returned, 23-24 ; vetoed, 
25-27 ; passed over veto, 25. See 
Veto 

Elaine, Mr., Secretary of State, 118 
Branches of Government, Origin 

and powers of the, 1-2 
"Buchanan Presidents," 144 
Budget, Lack of, in the United 
States, a mistake, 4-5; English 



system, 5-7; appearance in pro- 
posed New York constitution 
shows progress, 7-8, 28; would 
check extravagance, 8, 28 ; recom- 
mended by a Commission, but 
not popular with Congress, 64- 
65 

Buenos Aires, Violation of sealing 
laws of, decided by President as 
a political issue, 117-118 

Cabinet, The term does not occur in 
the Constitution, but in statutes 
and judicial opinions, 29; origin 
and purpose of, 30; compared 
with that of England, 30-31; 
officers should have more influence 
and access to Congress, 31-32; 
meetings are informal, 33 ; is 
better than a directory, 35-37; 
dissension in Washington's, 36; 
in Lincoln's, 35, 37 

Canal Zone, Government of, 93 
94; boundaries of, 111-112 

China, Boxer uprising in, 114 

Chinese, Bill for exclusion of, vetoed, 
17 ; entitled to immigrate by 
treaty, excluded by Congress, 109 

Circuit Court Acts, 43 

Civil Service, Number of employees 
under the, 58 ; effect of, 59 ; 
growth of, 58-59 ; preserves the 
continuity of government, 84 ; 
relation of President to, 84-85 

Classified Service, Unpopular with 
Congress, 65; not without dan- 
gers, 66 

Cleveland, President, Vetoes by, 
were frequent, 17 ; upheld as 
Commander-in-Chief of the Army, 
97 

Commander-in-Chief of the Army 
and Navy, 94-99, 114, 128-129 



159 



160 



INDEX 



Commissions must be signed by the 
President, 41 ; and by the Secre- 
tary of the Department, 35 

Comptroller of the Treasury, 81, 
125-126 

Congress, The relation of, to the 
President, 4 ; extravagance of, 
5, 8, 28 ; should be limited in 
appropriations, 8 ; of same party 
when elected with the President, 
12 ; second often adverse, 12 ; 
must be educated to reforms, 13 ; 
may pass bill over President's 
veto, 14 ; abuse of power by 
"riders," 27; "riders" not cur- 
able by partial veto, 28 ; should 
hear Cabinet officers on floor, 
31-33 ; may direct by mandamus 
performance of duty, 47 ; but 
not when act is discretionary, 47 ; 
patronage of, 61-65; delegates 
making of rules to enforce legis- 
lation, 79-81 ; may vest construc- 
tion of law in Executive, 83 ; 
but not judicial power, 82-83 ; 
declares war of aggression only, 
95 ; acts of, interpreted by Su- 
preme .Court, 100-102; ratifica- 
tion by, 102 ; foreign powers of, 
104-105 ; fixes method of exer- 
cise of Executive's power, 125; 
may not exercise powers vested 
in the President, 126; may not 
obstruct exercise of powers of 
the President, 126 ; may impose 
rules of eligibility for appointees, 
127-128 ; may not seek confiden- 
tial information from the Presi- 
dent, 130; decides political ques- 
tion of the form of government of 
a State, 133. See Treaties, Legis- 
lature, Senate, Veto 

Constitution, The, Influence of Mon- 
tesquieu on, 1 ; compared with 
English constitution, 1 ; does not 
unduly encourage discussion of 
validity of legislation, 22 ; strict 
construction of, by Mr. Upshur, 
140-141 

Constitutional Convention, The, de- 
bated veto of the President, 4-5, 
15; debated term of same, 4-5; 



debated finances, 7; debated 
making of treaties by the Senate, 
106 

Constitutionality of Act of Con- 
gress, issue in Marbury vs. Madison, 
41-45 

Continental Congress, The, Ineffi- 
cient executive ability of, 3 

Court, A, has jurisdiction over a 
marshal to the exclusion of the 
President, 126 

Courts of the United States, The, 
left without marshals by Congress, 
25; same reinstated, 26. See 
Supreme Court 

Court of Claims, Jurisdiction of the, 
81-82 ; might pass on appoint- 
ment power if appointee sued for 
salary, 128 ; holds commercial 
paper of Secretary of War void 
as outside his authority, 142-143 

Cuba, Treaty with the United States, 
87-88 ; government of, 98-99 

Criminals, Public attitude toward, 
121-122 

Crown, The. See Parliamentary 
Government 

Debs Case, The, upholds the Presi- 
dent as Comander-in-Chief of the 
Army, 97 

Decatur vs. Pauling, holds that Court 
may not compel act of discretion 
in the Executive, 47 

Dred Scott Case, View of, by Presi- 
dent Lincoln, 137-138 

Economy. See Budget 

Election, of the President, 4, 10; 
of Congress, 10 

Emancipation Proclamation, The 
authority for, 147 

England. See Parliamentary Gov- 
ernment 

English Cabinet, 30 

English Constitution, 1 

Executive Branch of Government, 
The, 1 ; less subject to judicial 
interpretation than Congress, 2 ; 
variously planned by Continental 
Congress, 3 ; control by, 76-77 

Executive Office, is not a recording 



INDEX 



161 



office, 34 ; compared with office 
for foreign affairs of Great Britain, 
34 

Executive Officer, not controlled by 
Congress in matters of discretion, 
45 

Executive Power, is often quasi- 
legislative and quasi-judicial, 29 ; 
interpreted broadly by President 
Lincoln, 137 ; by President Roose- 
velt, 143-147 ; no undefined re- 
siduum of, 140-141 ; viewed as 
broad and discretionary, 141-142 ; 
checked by the Court, 142-143; 
a means of preserving public 
welfare, 145-148 ; drastic use of, 
by President Jefferson, 148-151 ; 
properly used in Colorado mines 
trouble, 155; is affected by co- 
operation with branches of govern- 
ment and the public pulse, 156 

Expenditures. See Budget 

Falkland Islands, Violation of seal- 
ing laws of, decided by President 
as a political issue, 117-118 

Federal Courts, Appointment of 
clerks in, is big political patron- 
age, 68-69 ; appointment of 
receivers should be removed from, 
69-70; authority to construe 
legislation, 83 ; jurisdiction of, 
86. See Court, Courts of the 
United States 

Federal Election Laws, 70 

Federal Government, The powers of, 
over local matters should not be 
increased, 53 

Federalist Party, 41-42 ; construc- 
tion of the Constitution by, 45 

Floyd Acceptances, held void, 142- 
143 

Foraker Act, 98-99 

Foreign Relations, Jurisdiction of, 
is in national government only, 
104-105. See Treaties, President 

Garfield, President, Attitude of, 
toward Civil Service, 62 ; con- 
tracts with settlers made by, 142 

Garland, Mr., Effect of pardon of, 
on ability to take oath as an attor- 



ney, lost by service in Confederacy, 
119-120 

Grant, General, Appointment of, on 
retired list by Act, not an en- 
croachment on appointing power 
of the President, 127 

Grant, President, had hostile Con- 
gress, 17 ; justified acts done away 
from the seat of government, 130- 
131 

Gorman-Wilson Tariff Bill, 24 

Habeas Corpus, Suspension of, by 
President Lincoln is sound, 147 

Hamilton, Alexander, Cabinet mem- 
ber, 36 ; hostile to Jefferson, 41 

Harrison, President, had hostile 
Congress, 17 ; upheld on political 
issue of treaty, 118 

Hay-Varilla Treaty, 93-111 

Hayes, President, Vetoes by, were 
frequent, 17 ; had hostile Congress, 
17, 25-26 

Heads of Departments. See Cabinet 

House of Commons, Influence of the, 
compared with government in the 
United States, 10-11 

Immigration, Regulation of, quasi- 
judicial, 80-81; Chinese, 17, 109 

Impeachment of Johnson, 57 

Income Tax, 79 

Initiative and Referendum, Validity 
of, under the Constitution, 133- 
134 

Interstate Commerce Commission, 
The, should have power to appoint 
receivers, 70 

Jackson, President, Vetoes renewal 
of bank charter as unconstitutional, 
136-137 

Jay's Treaty, 85-87, 130 

Jefferson, President, vetoed bills 
not on merits, 16 ; his opinion of 
Washington's Cabinet, 35 ; as a 
cabinet member, 36 ; set the prec- 
edent for written message to 
Congress, 40 ; his view of govern- 
ment, 41 ; his view of the Consti- 
tution and the Union, 45; char- 
acter of, compared with Marshall, 



162 



INDEX 



46; spent much time at Monti- 
cello, 131 ; set precedent ignoring 
subpoena duces tecum, 131 ; re- 
fused to execute Sedition Laws as 
unconstitutional, 136; drastic use 
of executive power by, 148-151 

Johnson, President, Vetoes by, were 
frequent, 17 ; removal of appointee 
by, 56-57; conflict in Congress 
over amnesty of , 1 19 ; not enjoined 
by Court from carrying out recon- 
struction acts, 133 

Judges, Appointed by the President, 
72 ; protection of life of, is an 
implied power of the Executive, 
88-91 

Judicial Branch of Government, 
The origin of , 1 ; is checked by 
the Executive, 136; most power- 
ful branch of government, 138- 
139 ; must have cooperation of 
other branches, 139. See Court, 
Federal Court, Judges 

King, The legislative powers and 
veto of, 15 

Lands, made open for settlement by 
Congress, may be withdrawn by 
the President, 136 

League of Nations, 108 

Legislation, President cannot initiate, 
11 ; may have too much of, 12-13 ; 
reform in, moves slowly, 13 

Legislative Branch of Government, 
The, origin of, 1. See Congress 

Legislative, Executive and Judicial 
Appropriation Bill, 25-26 

Lincoln, President, Cabinet of, 35- 
37 ; views on check of judicial 
power, 137-138 ; exercised broad 
executive power, 145-148 

"Lincoln Presidents," 144 

Livingston, Edward, 86; views of, 
on broad executive powers exer- 
cised by President Jefferson, 150- 
152 ; sketch of career of, 152-155 

Logan vs. the United States, 92-93 

McKinley, President, Exercised 

power against Boxer uprising, 114 

Marbury vs. Madison, Issue of con- 



stitutionality of act of Congress 
to compel executive action, 41- 
51 ; dicta in, followed, 46 

Marshal, A, is responsible to the 
Court, 126 ; may not call upon the 
army, 129 

Marshall, John, Chief Justice, ap- 
pointed, 41-42; opposed Presi- 
dent Jefferson, 45 ; made perma- 
nent construction of the Con- 
stitution, 46; character of, com- 
pared with Jefferson, 46; upholds 
warrant of President Adams to 
enforce Jay's Treaty, 87 

Mason, Edward Campbell, Views 
of, on the veto, 15-16 

Massachusetts provides for vote on 
all bills, 13 

Merit System. See Civil Service, 
Classified Service 

Mexican War, 95 

Mexico, Landing of troops in, may 
be an act of war, 96 

"Midnight Judges," 42 

Military Appropriation Bill, 25 

Monetary Policy, Bill vetoed, 17 

Montesquieu, influenced the Con- 
stitution, 1 

Neagle Case, 89, 95 ; does not infer 
undefined powers in the President 
140 

New York, Executive of, has partial 
veto, 27; proposed constitution 
for, provides for a budget, 28 

Oath of President, The, 78 

Panama, Relations of, with the 
United States, 111. See Canal 
Zone 

Panama Canal, 93-94 

Pardon, by the President, 118-124; 
nature and effect of, 119-120; 
may not be restricted by Congress, 
120; difficult to perform rightly, 
121-123 ; probably not voidable 
for fraud, 123-134; mistaken 
idea that Congressman has a 
right to, 124 

Parliamentary Government, Example 
of, 3 ; finances and power of Crown 



INDEX 



163 



in England under, 6 ; compared 
with power of the President, 9 ; 
is less rigid in division into 
branches, 10; history of veto 
power under, 15; cabinet under, 
30-31 

Party, Political, helps the President, 
12 ; may block the President and 
increase vetoes, 17 ; patronage 
favored by Congress, 65, 67; by 
reformers, 67-68 

Patents, 80 

Patronage, of Congress cannot be 
broken up, 61-62, 65-68 ; wrong in 
the Federal Courts, 69-70 

Pension Bills, vetoed when Congress 
is hostile to the President, 17, 80 

Philippine Act, Interpretation of, 
by the Supreme Court, a joke on 
the framers, 101 

Philippines, The, governed by the 
President as Commander-in-Chief 
of the Army and Navy, 98-102; 
appropriation bill for, 134 

Platt Amendment, 87-88 

Pocket Veto, 23 

Political Parties. See Party 

Polk, President, 95 

Porto Rico, 98-99 

Postmasters, appointed by the Presi- 
dent, 60-61 

Postmaster-General, The, may make 
treaties, 135 

President, Favors by the, are few, 
49 ; is not forbidden to leave the 
country, 50; is protected by the 
Secret Service, 51 ; stands for 
the government to the people, 52 ; 
is often unjustly criticized for 
policy and acts, 52-53 ; tax on, 
of appointments to office, 67-74 ; 
how a sense of humor in, lightens 
the routine, 73-75; centering of 
responsibility in, is wise, 76 ; 
oath of, 78; has little effect upon 
the machinery of government, 
84-85; not obliged to perform 
all acts at the seat of government, 
130; is regarded as beyond the 
compulsory process of the Court, 
132-133 ; may withdraw lands 
open for settlement, 136. See 



Appointment, Cuban Treaty, Ex- 
ecutive Power, Pardon, Patronage, 
Treaties, Veto 
-, Commander-in-Chief of the 



Army and Navy, 94-99; 114, 
128-129 

, The Duties of, should in- 
clude framing a budget, 8; to 
preserve the Constitution, 19; 
to execute the laws, 78 ; which 
includes protecting life of judges, 
88-92, protecting citizens against 
foreign aggression, 92, protecting 
a person arrested, 92-93 
-, The Judicial Powers of, in- 



terpretations under, are final, 79 ; 
no general, 83 
-, The Limitations on, by the 



Court, 47-48. See Supreme Court, 
Congress 
-, The Office of, is not one of 



record, 34 
-, The Political Powers of, 



enable him to recognize a foreign 
government, 96 ; a state governor, 
98; foreign ambassadors, 113; 
to regulate foreign relations, ap- 
point ambassadors, 104-105; to 
make treaties, 105-106 ; to frame 
a foreign policy through the Secre- 
tary of State, 113; to annul a 
treaty, 115-116; to decide viola- 
tions of sealing laws of a foreign 
jurisdiction, 118 
-, The Powers of, are hard to 



define, 2-3 ; centralization of, 3 ; 
compared with rulers of Europe, 
9; are limited by Congress, 125; 
some created by custom, 135-136 
Relations of, with Con- 



gress, should be closer, 4-5; 
often produce friction and vetoes, 
12-14; no initiative, but recom- 
mendations for legislation lies 
in the President, 11-14; should 
not allow a bill to become law 
without his signature, 24 ; should 
allow initiative with the Presi- 
dent, 31 ; may seek advice and 
consent of the Senate in person, 
37-39 ; or by written message, 
40; oral addresses are preferable, 



164 



INDEX 



40 ; convening and adjourning 

Congress, 48. See Congress 

-, The Signature of, is neces- 



sary in general matters, with the 
Secretary of State, 35 ; on com- 
missions, with the Secretary of 
the Department, 35 ; must appear 
on commissions, 41 
, The Term of, origin of, 4 



Quasi-judicial Powers, of the Presi- 
dent, 79 ; of a subordinate, 79-81 
Quasi-legislative Powers, 79-80 

Ratification by Congress, 102 

Recall, Shown unwise principle in 
President Johnson's impeachment, 
58 

Reciprocity Bill, The, 48 

Removal, The Power of, in the 
President without the consent of 
the Senate, 56-57 

Reprieves, of the President, 119 

Republican Form of Government, 
Meaning of, in the Constitution, 
134 

Rhode Island, Disputed governor- 
ship of, determined by the Presi- 
dent, 97-98 

"Rider," A, imposed in bills, 25-27 

Roosevelt, President, Broad con- 
struction of Executive power by, 
136, 143-146 

Russia, Treaty with, annulled, 116- 
117 

Secretary of State, The, is custodian 
of the seal and acts for the Presi- 
dent, 35; frames foreign policies, 
113 

Secretary of the Treasury, The, 
may remit navigation law penal- 
ties, 135 

Secret Service, The, 51-52 

Sedition Laws, The, held uncon- 
stitutional by President Jefferson, 
136 

Senate, The, consulted personally 
by President Washington, 37-39 ; 
appointment power of, 55-56 ; 
no removal power, 56-57 ; patron- 
age of, 61, 62 ; construction of 



advice and consent of, 63-64 ; 
repeal of confirmation power rec- 
ommended, 65 ; treaty-making 
power of, 105-108, 112 

State Department, The, 113-114, 
117 

Story, Mr. Justice, favors presence 
of Cabinet in Congress, 32 

Sundry Civil Appropriation Bill, 27 

Supreme Court, Jurisdiction of the, 
1-2 ; annulment of legislation 
distinguished from veto, 19-21 ; 
burdened with annulment of popu- 
lar legislation, 22 ; Marbury vs. 
Madison decided by, 4145 ; Mar- 
shall, Chief Justice of, 41 ; inter- 
prets Philippine Bill, 100-102; 
is bound to uphold the President 
on political questions and acts, 
118-133; interprets power and 
effect of the President's pardons, 
119-120; regards the President 
beyond compulsory process of, 
132 ; cannot control interpreta- 
tions of the Constitution by Con- 
gress or the President, 136-137 ; 
is checked by Executive power 
of the President, 136-138 

Tenure of Office, should be perma- 
nent in most cases, 71-72 

Tenure of Office Act, The, 56-57 

Thayer, Professor, Views of, on the 
Constitution, 20 

Treason, is blotted out by amnesty, 
119-120 

Treasury, The, affected by appro- 
priations, 125; Comptroller of 
has discretionary power not re- 
stricted by the President, 125- 
126. See Appropriations 

Treaties, with the Indians, 38; rati- 
fication sought by President Wash- 
ington, 38-39 ; to be executed by 
the President, 85-87; effect of, 
106-113; may repeal a law of 
Congress, 109 ; may be repealed 
as municipal law by Congress, 
109; control State laws affecting 
foreigners, 110-111 ; obligate Con- 
gress, 115. See Senate 

Treaty of Paris, 98 



INDEX 



165 



Upshur, Mr. Abel P., believed 
Executive power too broad, 140- 
141 

Van Buren, President, Expenditures 
by," criticized by hostile Congress, 
18 ' 

Veto, The, Debated in the Con- 
tinental Congress, 3-4 ; is a legis- 
lative act, 14 ; how power of, is 
exercised, 14 ; must apply to 
the whole of a bill, 14, 25, 27; 
origin of, 15 ; does not depend 
on constitutionality but on ap- 
proval, 15-16; frequency of, in 
President Johnson's administra- 
tion and others, 17 ; brings well- 
worn criticisms upon the President, 
18; should be exercised when bill 
seems unconstitutional, 19 ; has 
not been exercised by King of 
England for 200 years, 18-19; 
gives broader legislative function 
than has the Supreme Court, 19- 
21 ; governors fail to exercise, 
when bill is popular, 22 ; must 
be exercised within ten days, 24 ; 



of part of a bill might cure the 
"rider" evil, 27; is the only legis- 
lative function of the President, 
29. See Congress 

War, is declared by Congress, 95- 
96; in effect may be declared by 
the President, 95; act of, distin- 
guished from police duty, 95-96 ; 
what constitutes an act of, 96 

Warner, Barnes & Co., suit of, 
against the United States, 99-102 

Washington, President, and the 
Continental Congress, 3 ; vetoes 
by, were not on the merits, 16 ; 
Cabinet of, 35-37 ; personal visits 
of, to the Senate, 37-39 ; charac- 
ter of, 39 ; controversy with Con- 
gress over Jay's Treaty, 130 

Webb Bill, The, vetoed by President 
Taft, 21 

White House, The, is a very appro- 
priate residence, 49-50 

White, Mr. Justice, 102-103 

Wilson, President, revives the cus- 
tom of oral address to Congress, 
40 



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THOMAS JEFFERSON: HIS PERMANENT INFLUENCE ON 
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