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, 41—45 ; 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

Columbia University in the City of New York
COLUMBIA UNIVERSITY LECTURES

CARPENTIER LECTURES

THE NATURE AND SOURCES OF THE LAW. By JOHN CHIP-
MAN GRAY, LL.D., Royall Professor of Law in Harvard Univer-
sity. 12mo, cloth, pp. xii + 332. Price, $1.50 net.

WORLD ORGANIZATION AS AFFECTED BY THE NATURE OF
THE MODERN STATE. By HON. DAVID JAYNE HILL, some-
time American Ambassador to Germany. 12mo, cloth, pp. ix -f
214. Price, §1.50 net.

THE GENIUS OF THE COMMON LAW. By the RT. HON. SIR
FREDERICK POLLOCK, Bart., D.C.L., LL.D., Bencher of Lincoln's
Inn. 12mo, cloth, pp. vii + 141. Price, $1.60 net.

THE MECHANICS OF LAW MAKING. By COURTENAY ILBERT,
G.C.B., Clerk of the House of Commons. 12mo, cloth, pp. viii+
209. Price, $1.60 net.

HEWITT LECTURES

THE PROBLEM OF MONOPOLY. By JOHN BATES CLARK, LL.D.,

Professor of Political Economy, Columbia University. 12mo,
cloth, pp. vi + 128. Price, $1.60 net.

POWER. By CHARLES EDWARD LOCKE, Ph.D., Professor of Me-
chanical Engineering, Columbia University. 12mo, cloth, pp.
vii + 316. Illustrated. Price, §2.00 net.

THE DOCTRINE OF EVOLUTION. Its Basis and its Scope. By
HENRY EDWARD CRAMPTON, Ph.D., Professor of Zoology, Colum-
bia University. 12mo, cloth, pp. ix + 311. Price, $1.50 net.

MEDIEVAL STORY AND THE BEGINNINGS OF THE SOCIAL
IDEALS OF ENGLISH-SPEAKING PEOPLE. By WILLIAM
WITHERLE LAWRENCE, Ph.D., Associate Professor of English, Co-
lumbia University. 12mo, cloth, pp. xiv + 236. Price, $1.50 net.

LAW AND ITS ADMINISTRATION. By HARLAN F. STONB,
LL.D., Dean of the School of Law, Columbia University. 12mo,
cloth, pp. vii + 232. Price, $1.50 net.

JESUP LECTURES

LIGHT. By RICHARD C. MACLAURIN, LL.D., Sc.D., President of the
Massachusetts Institute of Technology. 12ino, cloth, pp. ix + 251.
Portrait and figures. Price, §1.50 net.

SCIENTIFIC FEATURES OF MODERN MEDICINE. By FREDERIC
S. LEE, Ph.D., Dalton Professor of Physiology, Columbia Univer-
sity. 12mo. cloth, pp. vii + 183. Price, $1.60 net.

HEREDITY AND SEX. By THOMAS HUNT MORGAN, Ph.D., Pro-
fessor of Experimental Zoology in Columbia University. 12mo,
cloth, pp. vii 4- 284. Illustrated. Price, $1.76 net.

LEMCKE & BUECHNER, AGENTS

30-32 WEST 27th ST., NEW YORK

COLUMBIA UNIVERSITY PRESS

Columbia University in the City of New York
COLUnBIA UNIVERSITY LECTURES

ADAMS LECTURES

GRAPHICAL METHODS. By CARL RUNGE, Ph.D., Professor of
Applied Mathematics in the University of Gottingen ; Kaiser
Wilhelm Professor of German History and Institutions for the
year 1909-1910. 8vo, cloth, pp. ix + 148. Price, $1.60 net.

JULIUS BEER LECTURES

SOCIAL EVOLUTION AND POLITICAL THEORY. By LEONARD
T. HOBHOUSE, Professor of Sociology in the University of Lon-
don. 12mo, cloth, pp. ix + 218. Price, $1.50 net.

BLUMENTHAL LECTURES

POLITICAL PROBLEMS OF AMERICAN DEVELOPMENT. By

ALBERT SHAW, LL.D., Editor of the Review of Reviews. 12mo,
cloth, pp. vii + 268. Price, $ 1.50 net.

CONSTITUTIONAL GOVERNMENT IN THE UNITED STATES.

By WOODROW WILSON, LL.D., sometime President of Princeton
University. 12mo, cloth, pp. vii + 236. Price, $1.50 net.

THE PRINCIPLES OF POLITICS FROM THE VIEWPOINT OF
THE AMERICAN CITIZEN. By JEREMIAH W. JENKS, LL.D.,
Professor of Government and Public Administration in New York
University. 12mo, cloth, pp. xviii + 187. Price, $1.50 net.

THE COST OF OUR NATIONAL GOVERNMENT. By HENRY
JONES FORD, Professor of Politics in Princeton University. 12mo,
cloth, pp. xv + 147. Price, $ 1.60 net.

THE BUSINESS OF CONGRESS. By HON. SAMUEL W. McCALL,
Member of Congress for Massachusetts. 12mo, cloth, pp. vii +
215. Price, $1.60 net.

THOMAS JEFFERSON: HIS PERMANENT INFLUENCE ON
AMERICAN INSTITUTIONS. By HON. JOHN SHARP WIL-
LIAMS, United States Senator from Mississippi. 12mo, cloth,
pp. ix + 330. Price, $1.60 net.

LEMCKE & BUECHNER, AGENTS

30-32 WEST 27th ST., NEW YORK

UNIVERSITY OF TORONTO
LIBRARY

Acme Library Card Pocket

Under Pat. " Kef. Index Kile."
Made by LIBRARY BUREAU