CHAPTER VI.

THE AMERICAN EXECUTIVE.

THE derivation of the presidency from the old kingship took place at a time and under conditions which assured the qualities of a personal executive, free from cabinet control. In our day, through the influence of political theory, an idea is very common that the English cabinet system, in the shape of parliamentary domination over the sovereign, has had continuous existence since the reign of William of Orange, except as momentarily interrupted by the aggression of George III. But contemporaries of the latter king had reason to entertain a very different idea. The continuity of the cabinet system from early germs was not apparent in the days of a monarch who, more or less successfully, set it at defiance. As the first really English sovereign of the House of Hanover, he undertook to exercise, as far as he was able, the powers of personal government, belonging from of old to English royalty. And he himself looked upon those powers as having been exercised by the kings continuously, except for a brief interval. That exception did not date from the reign of William III., or of Queen Anne — who, though possessing cabinets, had undoubtedly been personal executives — but from the reigns of the first Georges; and it was easily explained by the non-English singularities of those two monarchs. Nor was the cabinet system, even in their reigns, all that has been claimed. For the plain truth is, that the present parliamentary control through the cabinet rests upon no written law, but merely upon usage; and the usage upon which it rests became recognized and settled within living memory, and has had a duration of scarcely more than sixty years.

Mr. Bryce very fairly says of this modern English system: "We are prone to forget how recent it is. People commonly date it from the reign of William III., but it worked very irregularly till the Hanoverian kings came to the throne, and even then it at first worked by means of a monstrous system of bribery and place-mongering. In the days of George III., the personal power of the crown for awhile revived, and corruption declined. The executive head of the state was, during the latter decades of the century, a factor apart from its ministers. They were not then, as now, a mere committee of Parliament, but rather a compromise between the king's will and the will of the parliamentary majority. They deemed and declared themselves to owe a duty to the king, conflicting with, sometimes overriding, their duty to Parliament. Those phrases of abasement before the crown, which, when now employed by prime ministers, amuse us by their remoteness from the realities of the case, then expressed realities. In 1787, when the Constitutional

Convention met at Philadelphia, the cabinet system of government was in England still immature. It was so immature that its true nature had not been perceived."[l ]Popular feeling among Americans at the close of the Revolution was opposed to kingship, — an opposition largely due to the fact that the struggle had been forced upon them by their sovereign in person. The sense of loyalty which previously had so real an existence was forgotten in this new antipathy.[2] One of the gravest difficulties, therefore, which confronted the framers of the Constitution, was the question of how to fill the vacant place in the fabric of government occupied in colonial times by the sovereign, and in such a way as to secure headship for the nation and efficiency in executive functions. It was admitted in debate during the Convention, that the people would not endure the setting up of a king. Yet, as by irresistible instinct, they put much of the royal power back again in its place at the apex of government, in the form of a colonial governor or president made national And as the people were locally accustomed to this substitute for royalty, they accepted the arrangement without resistance.[3]

While it may be strange to contemplate the fact that thus, after all, the republican presidency is developed from a kingship, it will become apparent upon the slightest examination, that the President of to-day governs, in the main, with powers exercised before him by the colonial governors as the king's deputies, precisely because they were the very powers exercised at home by the king himself, — or, in other words, that identical powers of the historic executive of the English race are still put in operation by the American executive.[4] And as the presidential office comes from the ancient kingship indirectly, through the governorship, and also directly, it is hardly strange, considering contemporaneous circumstances in England and America, that the office is that of an executive independent of the legislature, the director of his own cabinet, and the veritable administrator of the nation, — an office more nearly like the old type of the kingship than is, save in outward form and pageantry, the modern weakened royalty of England.

For Americans of a hundred years ago, when they thought of an executive at all, very naturally held to the old conception of the nature and powers of English royalty. During their colonial experience, the sovereign's relation to affairs had been distinctly felt, and was the chief political tie that bound them to the empire. In that time no one was permitted to question, nor seems to have desired to question, that the king was king in America. And notwithstanding the tendency to democratic opinion occasionally manifesting itself, his supremacy was never lost sight of until independence came. If it be remembered that among the monarchs of the period were James I., Charles I., Charles II., James II., and George III., it will be easy to understand how a strong sense of executive authority must have been familiar to the American mind. William and Mary, and Queen Anne, though not despotic, were, as just noted, personal rulers. And the only exception to the uniformity of this experience was, as already pointed out, the contemptible one of the first two Georges, — more than offset by the royal vigour of George III.

The colonial governorship itself was of a personally executive character. For though the cabinet system is generally found in the present colonies of England, not one of the older colonies possessed it; their local institutions having been copied from hers before its invention.[5] The governor's functions are thus described by Mr. Justice Story: "The king had power to vest in the royal governors in the colonies, from time to time, such of his prerogatives as he should please; such as the power to prorogue, adjourn, and dissolve the colonial assemblies; to confirm acts and laws, to pardon offences, to act as captain general of the public forces, to appoint public officers, to act as chancellor and supreme ordinary, to sit in the highest court of appeals and errors, to exercise the duties of vice-admiral, and to grant commissions to privateers. These and some other prerogatives of the king were commonly exercised by the royal governors without objection."[6]

To understand how the functions of the presidency are derived from those of the kingship, it is only necessary to compare the actual provisions of the Constitution with the royal powers as exercised in fact or in theory at the time, or just prior to the time, of the Philadelphia Convention.[7]

The members of the Convention seem to have regarded the Commentaries of Sir William Blackstone as trustworthy authority on the subject of royal prerogative, and to have taken the book as, in some sense, a guide in their task of executive construction For this they have been criticised. And the grounds of the criticism are thus stated by Mr Bryce. "Their view was tinged not only by recollections of the influence exercised by King George III, an influence due to transitory causes, but which made them overrate its monarchical element, but also by the presentation of it which they found in the work of Mr. Justice Blackstone. He, as was natural in a lawyer and a man of letters, described rather its theory than its practice, and its theory was many years behind its practice."[8] Nevertheless, if Blackstone represents the monarchical powers as greater than they were in actual practice at the moment of his writing, he yet represents what at one time had been the powers of English kings In trusting to him as a guide, the members of the Convention seem to have committed, at worst, no greater fault than that of modelling after an older and stronger form of the English executive rather than a strictly contemporaneous one. The fact itself of the derivation of the powers of the presidency from those of the kingship is not affected, whether the point of touch between the two be at an earlier or at a later period of the royal office. The justice of the criticism, therefore, does not essentially concern the present inquiry. And since, whether wisely or unwisely, the members of the Convention did give the Commentaries the consideration due to a standard, the great law-book must be accorded a somewhat similar place in comparing the results of their labour in the Constitution.

Following Blackstone's division, therefore, let us proceed to examine the threefold relation of the royal powers (I.) to legislation, (II.) to foreign affairs, and (III.) to internal administration, — considering at the same time the presidential functions.[9]

I. As regards legislative relations, the sovereign of that period was, according to Blackstone, a constituent part of Parliament. As such, all bills required his approval, and he possessed, in theory at least, the right of veto.[10] He might address communications from time to time to Parliament, and he had the prerogative of convening, proroguing, adjourning, and dissolving that body.

Turning to the Constitution of the United States, we read: "Every bill which shall have passed the House of Representatives and the Senate shall, before it becomes a law, be presented to the President of the United States; if he approve he shall sign it, but if not, he shall return it with his objections to that house in which it originated, who shall enter the objections at large on their journal and proceed to reconsider it."[11] The President's veto may be overridden by a sufficient majority in Congress, but that is rarely attempted, and when attempted seldom accomplished; and therefore the veto is potential in ordinary practice. While some political writers at the present day have contended that the veto power of the English sovereign has lapsed, as not having been used since the reign of Queen Anne,[12] such lapse was certainly not recognized in the days of George III., who expressly affirmed the right, though he did not exercise it. And whatever the case in England, the practice of the veto power by the governors, and by the king in matters of colonial legislation in America, was a fully recognized legal right down to the outbreak of the American Revolution, and naturally passed into the constitutional law of the States and of the American nation.

In Article I. Section 3 of the Constitution it is provided: "He [the President] shall from time to time give to Congress information of the state of the Union, and recommend to their consideration such measures as he shall judge necessary and expedient; he may on extraordinary occasions convene both houses, or either of them, and in case of disagreement between them, with respect to the time of adjournment, he may adjourn them to such time as he shall think proper."

The President's message is derived from the royal act of communicating with Parliament. The message is not a production of the Cabinet, like the modern speech from the throne, but a veritable communication of the executive in person. Washington was accustomed to deliver an oral address "like an English king, and drove in a coach and six to open Congress, with something of an English king's state."[13] Jefferson, however, filled with theories of democracy imbibed from France, introduced the practice of sending written messages, which has since been continued.[14]

By royal theory, all laws proceed from the crown's authority. However they may be discussed and passed by Parliament, the sovereign gives them their force; bills are turned into statutes by him. And although the theory has not been followed in the United States, the practice under it has. With rare exceptions, bills are turned into statutes by the President, and go forth directly from his hand to the statute book.

II. In external relations of the nation the king was regarded, by Blackstone, the representative of his people, according to the idea of the Cyning dating from the earliest times. It was in that capacity that he dealt with other nationalities, sending ambassadors and ministers to foreign states, and receiving ambassadors and ministers from them; making treaties, leagues, and alliances. He was commander-in-chief of the army and navy, with the executive powers of war, and the power to issue letters of marque and reprisal, and to grant safe-conducts and passports. He appointed and commissioned all military and naval officers.

Turning to the American Constitution, Article II., we find the President acting as the representative of the nation in relation to foreign affairs, on the same lines. "He shall receive ambassadors and other ministers."[15] "He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the senators present concur;[16] and he shall nominate, and by and with the consent of the Senate shall appoint, ambassadors, other public ministers, and consuls."[17]

"The President shall be commander-in-chief of the army and navy of the United States, and of the militia of the several States when called into the actual service of the United States."[18] The President appoints, with the consent of the Senate, and commissions military and naval officers. In time of war, he has all the powers recognized by the laws and usages of war. The right to declare war being confined to Congress, he can only proclaim it when Congress has acted. But in advance of any congressional enactment he may employ the army and navy to put down insurrection and repel invasion.

III. In internal affairs the king had, according to Blackstone, undefined powers in the execution of the laws. By his prerogative as Fountain of Honour he appointed officials and conferred honours. As Fountain of Justice, he was assumed to possess rights derived from the old judicial functions of the crown, — but exercised them by proxy, through judges of the law courts whom he appointed and commissioned.[19] As supreme conservator of the peace, he was in theory held to be the prosecutor of crimes; and in this capacity he granted reprieves and pardons.

Comparing the Constitution of the United States, Section 1 of Article II. is noted for its great width and flexibility, — "The executive power shall be vested in a President of the United States of America." And so is Section 2 of the same article, — "He shall take care that the laws be faithfully executed, and shall commission all officers of the United States."[20] The President appoints, with the consent of the Senate, all chief civil officers of the nation, and commissions all national officials. And though the English theory of relation to judicial matters is ignored, he has the royal power of appointing judges; and the Chief Justice and Justices of the Supreme Court, and all judges of the national courts are commissioned by him. As preserver of the peace, he grants reprieves and pardons to breakers of the peace.[21]

The relation of the President to his Cabinet has already been referred to When Article II Section 2 of the Constitution was in formation at Philadelphia, a proposition was made to give the executive a Privy Council similar to that of the English king, and a draft was offered to the effect, that "the President may from time to time submit any matter to the discussion of the council of state, and he may require the written opinions of any one or more of the members. But he shall in all cases exercise his own judgment, and either conform to such opinions or not, as he may think proper."[22] This draft was referred to a committee, which reported it in the somewhat altered form, that "the President shall have a Privy Council . whose duty it shall be to advise in matters respecting the execution of his office, which he shall think proper to lay before them, but their advice shall not conclude him, nor affect his responsibility for the measures which he shall adopt."[23] This was again referred to committee, and finally was adopted in the shape in which it appears in the Constitution, — providing simply that the President "may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices."[24]

Thus, a Privy Council was not established, and the President was left to advise with his own heads of departments, if he desired and in so far as he desired, or to act entirely without their advice and in accordance with his own will.[25]

This intention to make the President a personal executive, free from cabinet or council control, receives further light from the law of 1789, which created cabinet ministers or heads of executive departments. The law enacts that the Secretary of State "shall conduct the business of the said department [foreign affairs] in such manner as the President of the United States shall, from time to time, order and instruct "[26] And the same principle was applied to the heads of other departments.[27] The ministers were thus designed, in their very creation, to be merely the agents of the executive, and to carry out his will, rather than their own, having precisely the relation that Lord North bore to George III.[28] Washington originated the practice of consulting; all the heads of departments on important measures But although "cabinet meetings." eventually became customary, the Presidents have never hesitated to act independently of advice when they thought fit, and it is said that Abraham Lincoln, wielding greater power than any of his predecessors, seldom held such meetings at all.

"The Cabinet, as a body of councillors," remarks Judge Cooley, "has no necessary place in our constitutional system, and each President will accord to it such weight and influence in his administration as he shall see fit The President — not the Cabinet — is responsible for all the measures of the administration, and whatever is done by one of the heads of department is considered as done by the President, through the proper executive agent In this fact consists one important difference between the executive of Great Britain and of the United States, the acts of the former being considered as those of his advisers, who alone are responsible therefor, while the acts of the advisers of the American executive are considered as directed and controlled by him."[29] The President appoints as members of his Cabinet persons who agree in his own political views, and they are not expected to resign merely because the opposition party is in majority in Congress. It has frequently occurred that the President's "friends" in one or both houses of Congress have been in a minority for a considerable period.

It is noteworthy that while the English sovereign has lost influence in consequence of cabinet control, the President of the United States has not only maintained his power in time of peace, but demonstrated in time of war that it can rise, as it did in the administration of Lincoln, to a height approaching dictatorship.

Some English writers, notably Mr. Walter Bagehot, have criticised this want of a true cabinet system in the Constitution of the United States. Mr. Bagehot remarks: "The ancient theory holds, that the queen is the executive. The American Constitution was made upon a most careful argument, and most of that argument assumes the king to be the administrator of the English Constitution, and an unhereditary substitute for him, viz. a President, to be peremptorily necessary. Living across the Atlantic and misled by accepted doctrines, the acute framers of the Federal Constitution, even after the keenest attention, did not perceive the prime minister to be the principal executive of the British Constitution, and the sovereign a cog in the mechanism. There is, indeed, much excuse for the American legislators in the history of the time. They took their idea of our Constitution from the time they encountered it. But in the so-called government of Lord North, George III. was the government. Lord North was not only his appointee and his agent; the minister carried on a war which he disapproved and hated, because it was a war which his sovereign approved and liked. Inevitably, therefore, the American Convention believed the king, from whom they had suffered, to be the real executive, and not the minister, from whom they had not suffered."[30]

There are undoubted evils in the American system, with its possibility — which more than once has become fact — of detriment to public interests through conflict between the executive and the legislature. But on the whole, Americans, with their democratic tendencies, owe very much of the stability of their government to the weakness of their legislature and the strength of their executive. Had Congress possessed the power of Parliament to alter constitutional principle itself, by a majority vote at any session, and had the Cabinet controlled the President as the English Cabinet does the sovereign, the American commonwealth very probably might have been wrecked in its constructive period, or in passing through the storms of later time. The presidency is justly regarded by Americans as one of the most valuable creations of the Constitution of 1787. And the fact that the office is rooted in the past institutions of the race is not only the explanation of its existence, but a real, even though unrecognized, cause of its hold on the national heart.

The observations of Sir Henry Maine in this connection form too fitting a conclusion of the consideration of the subject to be omitted. "On the face of the Constitution of the United States the resemblance of the President of the United States to the European king, and especially to the King of Great Britain, is too obvious for mistake. The President has, in various degrees, a number of powers which those who know something of kingship in its general history recognize at once as peculiarly associated with it, and with no other institution. The whole executive power is vested in him. He is commander of the army and navy. He makes treaties with the advice and consent of the Senate, and with the same advice and consent, he appoints ambassadors, ministers, judges, and all high functionaries. He has a qualified veto on legislation. He convenes Congress when no special time of meeting has been fixed. It is conceded in the Federalist that the similarity of the new presidential office to the functions of the British king was one of the points on which the opponents of the Constitution fastened. Hamilton replies to their arguments sometimes with cogency, sometimes, it must be avowed, a little captiously ... But he mainly relies on the points in which the President differs from the king on the terminabihty of the office,[31] on the participation of the Senate in the exercise of several of his powers, on the limited nature of his veto of bills passed by Congress. It is, however, tolerably clear that the mental operation through which the framers of the American Constitution passed was this they took the King of Great Britain, went through his powers, and restrained them whenever they appeared to be excessive, or unsuited to the circumstances of the United States. It is remarkable that the figure they had before them was not a generalized English king, nor an abstract constitutional monarch, it was no anticipation of Queen Victoria, but George III. himself, whom they took for their model. Fifty years earlier, or a hundred years later, the English king would have struck them as in quite a different light. ... Now the original of the President of the United States is manifestly a treaty-making king actively influencing the executive government. Mr. Bagehot insisted that the great neglected fact in the English political system was the government of England by a committee of the legislature, calling themselves the Cabinet. This is exactly the method of government to which George III. refused to submit, and the framers of the American Constitution take George III.'s view of the kingly office for granted. They give the whole of the executive government to the President, and they do not permit his ministers to have a seat or speech in either branch of the legislature. They limit his power, and this not, however, by any contrivance known to modern constitutionalism, but by making the office of President terminable at intervals of four years. If Hamilton had lived a hundred years later, his comparison of the President with the king would have turned on very different points. He must have conceded that the republican functionary was the more powerful of the two."[32]

The foregoing may appear strong language. But the essential truth must be admitted. It will not do to contend in opposition to this truth, that certain powers of the American executive are common to the executives of many nationalities, for the American has developed from its original through distinctly traceable channels. Nor will it be sufficient to insist upon the many differences between the English and American executives, for the points of agreement are none the less real. Though the President lacks the distinguishing heredity and pageantry of royalty, yet the characteristic powers he holds were held before him by the executive of the colonies, and of the home land. "Assuming that there was to be such a magistrate, the statesmen of the Convention, like the solid, practical men they were, did not try to construct him out of their own brains, but looked to some existing models. They therefore made an enlarged copy of the State governor, or, to put the same thing differently, a reduced and improved copy of the English king."[33]


[1]American Commonwealth, I. 272, 273. "It is not easy to say when the principle of the absolute dependence of ministers on a parliamentary majority, without regard to the wishes of the crown, passed into a settled doctrine. Needless to say, that it has received no formally legal recognition, but is merely usage. The long coincidence, during the dominance of Pitt and his Tory successors, down till 1827, of the wishes and interests of the crown with those of the parliamentary majority, prevented the question from arising in a practical shape." — Ibid. I. 273, n. 4. He quotes Mr. Canning, who, even in 1827, writes to J. W. Croker: "Am I to understand, then, that you consider the king [George IV.] as completely in the hands of the Tory aristocracy as his father, or rather as George II. was in the hands of the Whigs? If so, George III. reigned, and Mr. Pitt — both father and son — administered the government in vain. I have a better opinion of the real vigour of the crown when it chooses to put forth its own strength, and I am not without some reliance on the body of the people!" — Croker Correspondence, I. 368.

[2] Yet there was a considerable monarchical party in America. "The machinery of government under the Articles of Confederation was so defective, weak, and ineffectual that men, wise men, true and loyal Americans ... demanded a government that would revive from prostration the public credit and faith of the nation, that would provide for the payment of interest on the public debt; they felt the need of a government with a strong arm, an elective monarchy." — Straus, Republican Form of Government, 132. The movement of the troops at Newburg, at the close of the war, to make Washington a king, is in point. The words of the document presented by Colonel Nicola showed the need of settling a strong form of government, and summed up by declaring that a republican government was the most unstable and insecure, and a constitutional monarchy like that of England, the strongest and safest It concluded by saying "Owing to the prejudices of the people it might not at first be prudent to assume the title of royalty, but if all other things were adjusted, we believe strong arguments might be produced for admitting the title of king." Straus remarks "This monarchical party spirit was so strong, that it survived even after the adoption of the Constitution until the election of Jefferson as President, who refers to it in his inaugural address." — Ibid 134. Jefferson writes in the introduction of "Anas" "The contests of that day were contests of principle between the advocates of republican and those of kingly government." See also the letter of James Monroe to Andrew Jackson, December, 1816, giving his recollections of the monarchical tendencies which were shown by certain leaders of the Federal party both before and after the Constitutional Convention He says "Many of the circumstances on which my opinion is founded, took place in debate and in society, and therefore find no place in any public document I am satisfied, however, that sufficient proof exists, founded on facts and opinions of distinguished individuals, which became public, to justify that which I had formed."

[3]"When the subject was first considered in the Convention, Wilson moved that a 'national executive, to consist of a single person, be instituted' But in so doing, he was not, he expressly said, 'governed by the British model, which was inapplicable to the situation in this country.' Later, in answer, probably, to those who saw in the single executive too close an approximation to the King of England, he urged, that 'all the thirteen States, though agreeing in scarcely any other instance, agree in placing a single magistrate at the head of the government ' The fear was expressed that the people also would immediately see the resemblance be tween a single executive and a king, — a person then in little favour, and that such a feature might cause a summary rejection of the whole proposed plan of union The careful attempt in the Federalist [Nos. 67 and 69] to prove that no very close analogy did in reality exist, shows that the fear was not without foundation Nevertheless, in spite of this and other objections, the question whether or not the executive power should be intrusted to a single person, was, after one postponement, settled in the affirmative by a vote of seven to three The question was never again seriously opened The unanimity on this important point is very striking, in view of the prolonged discussion of many comparatively unimportant clauses The reason for this exceptionally speedy agreement is to be found partly in the obvious inconveniences of a plural executive, the evil results of which had so palpably shown themselves in the history of Holland A more efficient cause, however, than the experience of European states, is to be found in the familiarity of the members with the single executive, not so much of England as of the colonies, and more particularly of the States." "The experience of Holland, which was cited in the Convention, probably had its influence in preventing the adoption of a similar expedient in our case." — American Academy Publications, No 9, pp. 221, 222, and n. 4.

[4] "The governor of the independent State succeeded the governor of the dependent colony; and he, whether elected, or nominated, was essentially a reflected image of the kingship. The governor of the State retained the position of governor of the colony, with such changes as a republican system necessarily required." — Freeman, History of the Federal Government, I. 314, n. 1. Speaking of the President's office, Professor Johnson says: "The name itself had been familiar; Delaware, New Hampshire, Pennsylvania, and South Carolina had used the title of 'president' instead of 'governor.'" — New Princeton Review, September, 1887, p. 180.

[5] Dr. W. E. Griffis, in a pamphlet — Influence of the Netherlands in the Making of the English Commonwealth and the American Republic, 40 — ventures, among many similar statements, the assertion that the State governors and the national President are the statholders of the States and the United States. As the governors were officials created by the charters granted to English colonies by English sovereigns, the calling them statholders, and implying that they had a Dutch beginning, is somewhat ludicrous. It is, however, a fair example of the excess to which writers go, who try too hard to discover a Dutch origin for American institutions.

[6]On the Constitution, I. 138. "In all the States the governor was commander-in-chief.... The President's pardoning power was drawn from the example of the States; they had granted it to the governors — in some cases with the advice of a council — in all the States except Connecticut, Rhode Island, and Georgia, where it was retained to the legislature, and in South Carolina, where it seems to have been forgotten in the constitution of 1778, but was given to the governor in 1790. The governor was elected directly by the people in Connecticut, Massachusetts, New Hampshire, New York, and Rhode Island, and indirectly, by the two houses in the other eight States; and in this nearly equal division we may, perhaps, find a reason for the Convention's hesitation to adopt either system, and for its futile attempt to introduce an electoral system as a compromise.... Almost every State prescribed a form of oath for its officers; the simple and impressive oath of the President seems to have been taken from that of Pennsylvania, with a suggestion, much improved in language, from the oath of allegiance of the same State." — Johnson, "First Century of the Constitution," New Princeton Review, September, 1887, pp. 180, 181.

Referring to the presidential electors, Robinson remarks: "The fact that the election of the President is left to a body of men chosen 'for the special purpose,' and 'at a particular conjuncture ' is the striking characteristic of the system. Two European potentates, the German Emperor and the Pope, were at the time of the Convention elected by small bodies of men, in one case even called 'electors' [principes electores; Ger. Kurfürsten]. Sir Henry Maine thinks that the members of the Convention 'were to a considerable extent guided' by the example of the Holy Roman Empire. 'The American republican Electors,' he goes so far as to say, 'are the German imperial Electors, except they are chosen by the several States.' A glance at this feature of the Imperial Constitution will, however, show that there is in reality almost no similarity between it and our electoral colleges. The latter form a numerous, ever-changing body, the members of which are chosen for a single election only, whereas the imperial college was not only small and elastic, but permanent. Further, the choice of the Emperor was direct; that of the President, constitutionally at least, is indirect. Had the choice of the President been left to the governors of the States, as was suggested by Gerry, they would have formed an electoral body somewhat resembling that of the Empire. Although the plan of electing the President finds no precedent in the Old World, we have already seen too much of the variety of constitutional development on this side of the Atlantic, hastily to declare it new. In the constitution of Maryland (1776)

we find an almost exact counterpart of the electoral college chosen in each of the States on the occasion of a presidential election The senators were selected by a body of electors, chosen every five years by the inhabitants of the State for this particular purpose and occasion" — Publications American Academy, No. 9, pp. 228, 229 The correctness of Robinson's opinion as to this origin of the electoral system receives important confirmation from contemporaneous opinion of the constitutional period. In the Massachusetts Convention, Bowdoin expressed the view. "This method of choosing [the President] was probably taken from the manner of choosing senators under the constitution of Maryland." — Elliot's Debates, II 128.

[7] Franklin's plan of union of the colonies submitted to the Congress at Albany, 1754, provided for a President General to govern the united colonies, who should be appointed and supported by the crown. This executive was to nominate military officers, commission all officers, manage, with the advice of a Grand Council, Indian affairs, have a veto upon all the acts of the Grand Council, and carry their acts into execution See Frothingham, Rise of the Republic of the United States, 142, 143. Also Sparks, Works of Franklin, III 51, Pownall, Administration of the Colonies, ed. 1768, App. IV

[8]American Commonwealth, I 26.

[9] On this general theme, see Blackstone, Commentaries, Book I. Chap. VII.

[10] "Since the accession of the House of Hanover no sovereign [of England] has exercised the prerogative of refusing the royal assent to a bill which has passed both houses, but it is not surprising to find that George III. was prepared to do so. 'I hope,' he wrote to Lord North in 1774, 'the crown will always be able, in either house of Parliament, to throw out a bill; but I shall never consent to use any expression which tends to establish that at no time the right of the crown to dissent is to be used.'" — Taswell-Langmead, English Constitutional History, 706. See also Lord Brougham, Works, III. 85. It must be remembered, however, that in addition to the veto of parliamentary legislation, the sovereign, as also the governors, had the acknowledged right to veto colonial legislation. Thus, to Americans, veto power in the executive has ever been a reality.

[11]Constitution of the United States, Art. I. Sec. 7. Robinson thus refers to the action of the Constitutional Convention on the veto power: "The suggestion that the executive should have an absolute veto on all legislation naturally met with little favour in the Convention, in spite of the influence of Wilson and Hamilton, who favoured it on the ground that, like the veto of the English sovereign, although seldom or never used, it would serve to prevent rash legislation. A motion to give the executive a suspensive veto was negatived by all the States. A motion of Gerry of Massachusetts, June 4th, giving the executive the power to negative any legislative act which should not afterwards be passed by two-thirds of each branch of the national legislature, was passed by a vote of eight to two, and this important point was once for all settled. Not only was this idea of a qualified veto taken directly from the constitution of Massachusetts (1780) and New York (1777), but in the final draft the very words of the Massachusetts constitution frequently occur." — Publications American Academy, No. 9, pp. 230, 231. See also Elliot, Debates, V. 151, 155, and Massachusetts Constitution of 1780, Pt. II. Ch. I. Sec. I. Art. II.

[12] The last occasions on which the royal veto power was exercised in England were in 1692 and 1694, when William III. refused the royal assent to the Bill for Triennial Parliaments and the Place Bill, and in 1707, when Queen Anne refused assent to a Scotch militia bill.

[13] Bryce, American Commonwealth, I. 55.

[14] Burgess says: "The Constitution apparently vests in the President the power to initiate legislation, in the provision requiring him to give information to the Congress of the 'state of the Union,' and to recommend such measures as he shall judge necessary and expedient. It does not appear to me that any further constitutional warrant is necessary to authorize the President to construct and present regular bills and projects of law to the Congress. The Constitution does not prescribe the form in which the President shall present the measures which he may recommend; nor does it vest the Congress with the power to do it, either by an express provision or by any reasonable implication. It leaves the determination of the form, therefore, to the President himself. We must look elsewhere for the explanation of the fact that the President does not present his recommendations to Congress in the form of regular bills or projects. It is to be found in the lack of any executive organs for presenting, explaining, defending, and, in general, managing such government bills in Congress. It cannot be predicted with certainty that the existence of such organs would strengthen the power of the executive in legislation. It might lessen his real influence." — Political Science and Comparative Constitutional Law, II. 254. It remains true, however, that though not having cabinet ministers with a seat in Congress, the President does initiate much legislation through contact informally with Congress. And at times these measures are discussed as carefully in Cabinet as if they were to be presented in the form of bills, and indeed are practically so presented. See notes of conversation with President Hayes, in present chapter.

[15]Constitution of the United States, Art. II. Sec. 3.

[16] The President in practice first agrees with a foreign nation upon the terms of a treaty, and then submits the draft to the Senate for ratification. The Senate may ratify the treaty as it is presented, or may reject it, or may amend it. In the last case the amended treaty must be presented, of course, to the foreign power for agreement to its altered provisions.

[17]Constitution of the United States, Art. II. Sec. 2.

"The failure to establish an efficient council led the Convention to limit the President's power by giving the Senate control over some of his acts. The association of the Senate with the President in the exercise of the appointing power is strikingly similar to the system pursued in New York under the constitution of 1777. There the executive, free to act alone in all other respects, was bound to make appointments 'by and with the consent of a select committee of the Senate.'" — Publications of the American Academy, No, 9, p. 225. See New York Constitution (1777), Art. XXIII. For a different view of the origin of this relation of the Senate to the appointing power, see Campbell, Puritan in Holland, England, and America, II. 424.

The President's power of filling vacancies by commissions to expire at the end of the next session of the Senate, is taken in terms from the constitution of South Carolina.

[18]Ibid. "The power to declare war has not been confided to the President of the United States, but is conferred on Congress. The President, however, is by the same instrument made commander-in-chief of the army and navy, and it is possible for him, in the recess of Congress, if sufficiently reckless of consequences, to bring on a war with a foreign nation, by employing armed forces against it in a hostile manner. Those who opposed the action of the government in the case of the war with Mexico insisted that that war was brought on by the President wrongfully taking forcible possession of the territory in dispute; but Congress justified the President, and declared that war existed 'by the act of Mexico.'" — Cooley's Blackstone, Commentaries, Bk. I. 257, n. 14.

The "war powers" of the President are far beyond powers ordinarily exercised by constitutional monarchs. Lawrence says of them: "It was during the War of Secession that the powers of the President were exercised to an extent unprecedented in English history. Based on an insurrection in the several States therein enumerated, and without awaiting a meeting of Congress convened for the 4th of July, 1861, the President proclaimed, on the 19th and 27th of April, the blockade of the ports of these States. By his proclamation of May 3, 1861, he called into service upward of 42,000 volunteers to serve for three years, increased the regular army by 22,000 men, and added 18,000 seamen to the naval service.. These acts were sustained by the Supreme Court on the first occasion on which the question came regularly before it, in the case of the validity of the prizes made for violation of the President's blockade .. President Lincoln's attorney-general had advised him, in 1861, that it was for the President alone to pronounce upon the political considerations which determine in what cases a suspension of the privilege of habeas corpus might take place, and that the authority conferred on him by the Constitution was in nowise affected by the powers with which the act of 1789 had invested the judges with regard to the writ of habeas corpus

"Immediately after the secession of the South, a direct conflict arose between the executive and judicial power in consequence of the refusal, by order of the President, of a military commander to obey a writ of habeas corpus issued by the Chief Justice of the United States Chief Justice Taney, after declaring that a military government had been substituted for the government of the Constitution, says that nothing remains for him to do but to order all the proceedings in the case, with his opinion, to be filed and recorded in the appropriate court, and direct the clerk to transmit a copy under seal to the President of the United States. 'It will then remain for that high officer, in fulfilment of his constitutional obligations to take care that the laws be faithfully executed, to determine what course he will take to cause the civil process of the United States to be respected and enforced' Perhaps a summary of what were the pretensions of the executive as regards personal liberty may be best found in a note addressed by Mr. Seward to Lord Lyons in October, 1861 'It seems necessary to state, for the information of that government, that Congress is by the Constitution

invested with no executive power or responsibility whatever, but on the contrary, that the President of the United States is, by the Constitution and laws, invested with the whole executive power of the government, and charged with the supreme direction of all municipal and ministerial civil agents, as well as of the whole land and naval forces of the United States, and that, invested with these ample powers, he is charged by the Constitution and laws with the absolute duty of suppressing insurrection, as well as of preventing and repelling invasion, and that for these purposes he constitution-all) exercises the right of suspending the writ of habeas corpus whenever and wheresoever and in whatsoever extent the public safety, endangered by treason or invasion in arms, in his judgment requires.'

"At the date of Mr Seward's note no proclamation, in the sense of his communication, had been issued, and no intimation of any such intention had been in any way given On the 24th of September a proclamation establishing martial law was issued, and by an order of the Department of War, of September 26, 1862, a national police was established in all the States to watch over the execution of the proclamation." — North American Review, November, 1880, pp. 395, 396.

Mr. Bryce, in speaking of the presidential power, says that in war time "it expands with portentous speed Both as commander-in-chief of the army and navy and as charged with the 'faithful execution of the laws,' the President is likely to be led to assume all the powers which the emergency requires How much he can legally do without the aid of statutes is disputed, for the acts of President Lincoln during the earlier part of the War of Secession, including his proclamation suspending the writ of habeas corpus, were subsequently legalized by Congress, but it is at least clear that Congress can make him, as it did make Lincoln, almost a dictator. And how much the war power may include appears in this, that, by virtue of it and without any previous legislative sanction, President Lincoln issued his emancipation proclamations of 1862 and 1863." — American Commonwealth, I. 50, 51.

[19] Blackstone says: "From the same original, of the king's being the Fountain of Justice, we may also deduce the prerogative of issuing proclamations, which is vested in the king alone. The proclamations have then a binding force, when (as Sir Edward Coke observes) they are grounded upon or enforce the laws of the realm." — Commentaries, Bk. I. 269. The proclamations of the President follow this usage. But a proclamation may introduce a practically new condition of affairs, as did the celebrated Emancipation Proclamation of President Lincoln. Landon remarks: "There were many who regarded this proclamation as a violation of the Constitution, but the loyal answer was, that while the war lasted it was disloyalty to stickle over the Constitution, since unless the war could be victoriously ended, the Constitution itself would be of no value. But the true answer is, that as commander-in-chief of the army and navy, the President has the constitutional power to employ the means recognized by the laws of war as necessary to conquer the enemy. Congress can pass no law which can deprive the President of the power which the Constitution confers, in creating him commander-in-chief." — Constitutional History and Government of the United States, 205.

[20] In his discourse on The Jubilee of the Constitution, John Quincy Adams says: "It has perhaps never been duly remarked that, under the Constitution of the United States, the powers of the executive department, explicitly and emphatically concentrated in one person, are vastly more extensive and complicated than those of the legislative. The language of the instrument in conferring legislative authority is, 'All legislative power, herein granted, shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.' But the executive authority is unreserved in terms, — 'The executive power shall be vested in a President of the United States of America.'"

Upshur says: "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." — Nature and Character of our Federal Government.

[21] "One of the powers intrusted to the President ... is that of granting reprieves and pardons. It is derived from the history of our British ancestors, and in the absence of any more particular definition of it than is found in this short sentence of the Constitution, so far as it has become the subject of public discussion, or of judicial decision, reliance has been had mainly upon the nature and character of the power as exercised by the crown of Great Britain." — Mr Justice Miller, of the Supreme Court, Lectures on Constitution of the United States, 164, 165.

[22] Elliot, Debates, V. 446.

[23]Ibid. V. 462.

[24]Constitution of the United States, Art. II Sec. 2

[25] "Jefferson, who certainly had as much confidence in his official advisers, among whom were Madison and Gallatin, as any other President, did not ask, I was assured by one of its most trusted members, the advice of his Cabinet on, perhaps, the two most important measures of his administration, — the purchase of Louisiana and the rejection of the treaty concluded by Monroe and Pinckney in 1806. The former of these measures, as involving the acquisition of foreign territory, was ever regarded as the great constitutional question of the day President Lincoln, it is under stood, seldom or never had any cabinet meetings.' — W. B. Law rence, LL. D., North American Review, November, 1880, p. 394.

The author once had a conversation with President Rutherford B. Hayes regarding the practical operation of the presidency. By his permission I made notes of the conversation at the time, for publication in this book. Referring to the action of a President independently of the advice of his Cabinet, "he told me that he himself and other Presidents had so acted occasionally. As to the general relations of the Cabinet, he said that Presidents were masters of the situation, not only by law, but by the fact that Cabinet officers were appointed by and dependent upon the executive. He said the custom of the past had varied, that some Presidents had been more influenced by their cabinets than others, that President Buchanan was much worried by his Cabinet, because not strong enough to insist on his own will. On the other hand, President Lincoln had decided on his emancipation proclamation without consulting his Cabinet, to whom he read it over merely for suggestion and amendment. He (President Hayes) had once decided a measure, overruling his Cabinet. He knew them to be opposed to it and did not ask their views but announced his own policy, and carried it out. In matters of a department, he gave greater weight to the opinion of the secretary of that department, if the secretary opposed his own views, but on two occasions, at least, he had decided and carried out matters against the wishes of the secretary of the department affected. He had done so in the case of his Secretary of the Treasury, whose opinion he usually valued. In each case, knowing the certainty of diverse views from the secretary, he had not asked those views, but had announced to the secretary his own policy and decision. In answer to a question of mine, as to whether the President or the secretaries usually initiated business at meetings of the Cabinet, he said that there was no uniform practice, but that every secretary was full of ideas as to his own department. When wishing to introduce a measure, the secretary usually consulted the President privately. If the President disfavoured the proposed measure, it was, of course, dropped. In fact, no measures could succeed except by the President's own act in either introducing them or approving them.

"He remarked, that few writers or public persons understood the real power of the American executive. Practically, the President had the nation in his hand. He was commander in chief of the army and navy, and had control of foreign affairs. He could at any time force Congress into war with foreign powers. The complicate relations with foreign powers rendered this always easy. By law, Congress had the power to declare war, but the real power was with the executive. He detailed some of his own experience with foreign affairs in proof of the constant delicacy of such matters. But, said he, if once war exists, the President has the 'war powers', and no man has defined what those are, or placed a limit on them. The executive power is large because not defined in the Constitution. The real test has never come, because the Presidents have, down to the present, been conservative, or what might be called conscientious, men, and have kept within limited range. And there is an unwritten law of usage that has come to regulate an average administration. But if a Napoleon ever became President, he could make the executive almost what he wished to make it. The war power of President Lincoln went to lengths which could scarcely be surpassed in despotic principle.

"I reminded him that Mr Bryce characterized this power of Lincoln as practically that of a dictator. President Hayes agreed with the description. He said the scope of this executive power had never been really realized, and that the practical use of power even by an ordinarily strong President, was greater than the books ever described

"He said that much of the legislation of Congress was ordinarily initiated by the President. The Constitution did not provide for this, but in practice it was done. A large part of legislation was first considered in Cabinet, and then started in Congress by contact privately between the secretaries and the committees of Congress. I remarked that Mr Bryce had enlarged on the weakness of the contact between the President and Congress in the initiation of legislation, and had especially pointed out that the presidential message had no necessary influence. He replied that the message was without legal force, and that Congress could be influenced by it or not as it saw fit, but that if one were to compare the messages with legislation, it would be found that legislation largely resulted from the suggestions of messages. Really, the message made a public statement of matters, which, less officially, were pressed upon Congress by cabinet ministers as already mentioned. While it was a fact that no regular channel of necessary legislative initiative was possessed by the President, he, nevertheless, did initiate a large proportion of, sometimes the leading, legislation of his administration. He had also a certain amount of influence in preventing in advance legislation that was distasteful to him, or even in shaping and amending bills in Congress, by intimating unofficially his disapproval and possible veto." — Notes of Conversation of the Author with President Hayes, September 30, 1889.

[26]Act of July 27, 1789.

[27] See 1 Statutes at Large, 49. In addition to the words above, the law requires the Secretary of State or the Secretary of War to "perform and execute such duties as shall, from time to time, be enjoined on, or intrusted to him by the President of the United States, agreeably to the Constitution." In like manner, the duty of the Secretary of the Navy "shall be to execute such orders as he shall receive from the President of the United States." relative to his department. — 1 Statutes at Large, 553. These laws, with immaterial changes, are in force at the present day. See Revised Statutes of the United States, passed by 1st session of 43d Congress, 1873-1874, etc., 2d ed., p. 32, Sec. 202, p. 35, Sec 216, p. 71, Sec. 417.

[28] "There can be no doubt that the President, in the exercise of his executive power under the Constitution, may act through the head of the appropriate department The heads of departments are his assistants in the performance of his executive duties, and their official acts, promulgated in the regular course of business, are presumptively his acts. That has been many times decided by this [the Supreme] Court ' — Runkle v. United States, 122 U.S. 543, 557.

[29] Cooley's Blackstone, Commentaries, Bk I 231, n. 6.

[30]English Constitution, 126.

[31] The Duc de la Rochefoucauld in a letter to Franklin, in 1789, expresses surprise that, having in mind the efforts to restrain the powers of the French monarch, Americans should have given such great scope to the functions of the President, especially to one whose re-election for life was possible. It is true that the unwritten constitution has now come to limit the President to a single re-election. But as the unwritten constitution is the result of custom merely, custom can change it. In fact, the custom was questioned so recently as the time of Grant, when a strong effort was made to give him a "third term." The only real limit to the continuation of a given President in power is the will of the people. And history shows that nations undergo changes in fundamental opinion in the course of ages. Already a most intelligent portion of the community advocate a constitutional amendment to make the presidential term of office longer than four years. Length of term has so many arguments in its favour that, if the danger of it is not keenly feared, public opinion is likely, sooner or later, to move in such a direction. The Americans are a practical people, and mere fear of danger will not be sufficient to keep them from whatever they come to regard as a practical good. They apparently feel that they are able to cope with dangers, when dangers really come. There can be small doubt that had Washington not declined, his "re-election for life," to which Rochefoucauld refers, would have been "possible " And should another arise like him — some great hero such as history occasionally gives to nations — there is nothing to prevent his "re-election for life," so far as the Constitution is concerned.

[32] Maine, Popular Government, 211-214.

"The President is, beyond doubt, the English king, modified by the necessities of a state of things in which hereditary succession was out of the question, and in which even a life term of office would have awakened the greatest jealousy." — Freeman, The English People in its Three Homes, 375.

"The organization of the executive department of the new government was attended with great difficulty. In the teeth of the prevailing prejudice against monarchy, it was no easy task to devise an acceptable scheme through which the federal chief magistrate could be clothed with the constitutional attributes of an English king. And yet that result was substantially accomplished. Although the President was simply a magistrate to be obeyed within the range of his powers, and personally liable to impeachment if he overstepped them, still he was endowed with as much, if not more, real power than was possessed even then by that dreaded original. The elective principle, it is true, was substituted for hereditary right, a definite term of office was prescribed, and all the pomp and pageantry of power was sternly cut off, and yet the real resemblance which remained between the two national chiefs was too close to escape the enemies of the Constitution, who bitterly assailed it on that ground." — Taylor, Origin and Growth of English Constitution, 69.

[33] Bryce, American Commonwealth, I. 36.


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