by a commission of three, composed of two commissioners appointed by the President-with the confirmation of the Senate-and the head of the Executive Department to which the business of the appointees belonged. Such appointments were to be temporary until confirmed by the Senate. The other resolution proposed the creation of a house of electors, to be composed of one member from each State, elected by the people of the respective States, for the term of six years. Congress was to designate "what officers shall be elected, examined, or confirmed by the house of electors, and who shall make appointments for minor officers."2

Others have proposed as a remedy for the evils of the "spoils system" the making of many of the civil offices elective, thus rendering them in a large measure independent of the coercion of the Administration in power at Washington.3

62. MILITARY POWERS OF THE PRESIDENT.

Among the amendments proposed by the ratifying convention of the State of New York was one forbidding the Presi'dent to command an army in the field in person, without the previous desire of the Congress. In the First Congress Mr. Tucker, doubtless influenced by this proposal, attempted to have the words "Commander in Chief" struck out of the Constitution, and the phrase "have power to direct the operations" inserted in their place. No similar proposition has been presented in either of the four wars of the United States.

63. THE PARDONING POWER OF THE PRESIDENT.

The New York convention which ratified the Constitution also proposed an amendment prohibiting the President granting pardon for treason without the consent of Congress, but

App., No. 1547. The commission also had power of removal, subject to approval of the Senate. Their term was to be four years, subject to removal by the President with consent of the Senate.

2

* App., No. 1566. This resolution also provided for the election of postmasters by the people of the respective postal districts, subject to the confirmation of the house of electors or Postinaster-General, as Congress shall designate. The President was still to have the power of removal of any officer in the civil service for any reason except political.

* See post, par. 64. The preamble of No. 1427 recites the evils and degradation of the system whereby one hundred thousand officers of the United States are subject to the coercion of the Administration in power, required to act, vote, and contribute money in accordance with the central will, by means of which caucuses and elections are controlled. 4App., No. 67.

5 Art. II, Sect. 2.

"App., No. 206.

* See comment on the power of the President to force a war upon the country, written at the time of the Mexican war. Niles' Register, vol. LXXII, pp. 165, 166.

permitting him to grant reprieves until the case was laid before Congress.

Only one other amendment has been proposed on this subject. This was suggested in 1869 by Mr. Ashley, who arraigned President Johnson for the wholesale use of the pardoning power. He suggested that the approval in writing of a majority of the Cabinet should be required before the President could grant reprieves or pardons, and that no general amnesty or pardon to persons who may have been engaged in rebellion against the Government should be declared until the Congress had given its consent."

64. ELECTION OF EXECUTIVE OFFICIALS.

There have been twenty-eight propositions presented to Congress to amend the Constitution relative to permitting the election of postmasters and other local officers by the people. All of these have been introduced since 1848, and fifteen since 1881. The first time such a practice was sug gested was in 1848, when Mr. Wentworth of Illinois offered a resolution to require the Committee on the Judiciary to inquire whether any alteration of the Constitution was neces. sary in order to refer the election of either postmasters, or land officers, or revenue officers, or officers of any other kind, now appointed by the President, by and with the advice of the Senate, directly to the people. The resolution was agreed to, but the committee does not appear to have ever reported. Two other amendments were submitted previous to the civil war-one upon the election of deputy postmasters, the other upon the election of postmasters and collectors.

The first amendment on this subject after the war was introduced in 1866 by Mr. Broomall. It proposed that assessors and internal-revenue collectors should be elected by the people. A proposition for a popular election of some one or more classes of Federal officials has been presented in every Congress since 1871 down to the Forty-ninth Congress. Many of these, in addition to postmasters and revenue collectors, even provided that marshals, district attorneys and all other United States officials whose duties require them to live in the State,

App., No. 66.

2 App., No. 1315c.

3 App., Nos. 751, 768, 776, 1193, 1331, 1334, 1344, 1376, 1379, 1405, 1417, 1427, 1444, 1517, 1526, 1527, 1532, 1546, 1554, 1556, 1558, 1566, 1582, 1598, 1618, 1646, 1658, 1664.

4 App., No. 1193.

except judges, should be elected by the people of the State, district, or locality where they perform their duties.1

In harmony with the expedient which has been made use of in recent years by some of the Representatives as a means of settling the vexed question of patronage, Mr. Grout of Vermont introduced, in 1886, an amendment requiring the recommendation of a majority of voters for the appointment of postmasters.2

The efficiency of the present postal system would probably be impaired by conferring the election of postmasters upon the people. Not only would popular elections be likely to destroy the uniformity of the system, but it would tend to cause the officials to feel more responsibility to the local electors than to the central office at Washington, even though they were subject to removal by the head of the Department.

65. PUNISHMENT OF OFFICIAL MISCONDUCT.

Two amendments only have been introduced on this subject. The first of these-presented in 1838 by Mr. Southgate of Kentucky-provided that any officer convicted of embezzling public money should be declared forever thereafter incapable of holding any office of honor, trust, or profit under the Government, or of exercising the right of suffrage."

The second was submitted in 1876 by Mr. Lord of New York. It declared that "the Congress shall enact suitable laws for the prevention and punishment of official misconduct and to insure official accountability," and further stipulated that any person convicted of bribery or converting the public money should not be pardoned, and should be disqualified from holding any office under the United States.

66. STATUS OF THE EXECUTIVE.

In concluding this very important subject, it may be well to see what effect these proposed amendments have had on the position of the Executive. It is remarkable that among the multiplicity of propositions there has been no important movement to change the form of the Executive. With one exception, the only ones remarked were the attempts made in the

1App., Nos. 1331, 1334, 1376, 1379, 1405, 1417, 1427, 1526, 1532, 1546, 1554, 1558, 1598, 1618. Some included even judges. Post, par. 69. Most made provision for removals for cause either by the President or as Congrsss may by law direct.

2App., No. 1664. See also No. 1566, ante, par. 61.

App., No. 688.

App., No. 1426.

critical days just before the civil war by Southern men who, for the purpose of retaining their influence in this department of the Government, proposed that a dual Executive or a council should be substituted for the single Executive.

The question of the method of electing the President has already been discussed. The plans have been so various as to preclude the probability of any change, although it has long been recognized that reform is desirable. There is a growing conviction that the present system should give way to one which should more readily express the will of the majority of the people. The difficulty has been to find a plan free from flaws and then to unite the country in its support. In recent years more attention has been given to attempts to secure an amendment fixing the term of President at six years and making him ineligible to reelection than to changing the method of election.`

Although there have been several attempts to deprive the President of certain of the powers conferred upon him by the Constitution, they bave all, fortunately, failed. On the other hand, the recent movement to give the Executive power to veto items in appropriation bills is deserving of success, inasmuch as it would tend to check extravagant legislation.

There seems to be no need of an amendment contemplating reform in the civil service. Already it is sufficiently within the power of Congress to protect the service, and no amendment is likely to add force.

Of the five hundred amendments relative to the executive department which have been submitted, eleven have passed one House and one both Houses of Congress, being immediately ratified by the States.

In a word, then, it may be said that the status of the Executive is at the present time stable and strong. The tendency to-day is to increase rather than to diminish his power, and to make the office more independent of Congress.'

1 Foster Com. on the Const., 1, 305.

CHAPTER IV.

AMENDMENTS AFFECTING THE FORM OF THE JUDICIARY DEPARTMENT.

67. STATUS OF THE JUDICIARY.

Inasmuch as the Constitution contains less detail in regard to the judiciary department than upon either of the other departments of the Government, the opportunity for change has been slight, and hence comparatively few attempts have been made to alter the provisions of the Constitution. The judiciary has been also the most conservative branch of the Government, and has almost entirely refrained from encroaching upon the prerogatives of either of the other departments, hence it has been the object of attack only in exceptional cases. Most of the attempts to change the judiciary, as in the case of the legislative department, were made in the earlier years of our history under the Constitution. First appeared the movement to limit the jurisdiction of the Federal courts, which finally culminated in the eleventh amendment, forbidding the United States courts entertaining a suit instituted by a citizen of a State against a State. Next came the only considerable attack on the judiciary, in the propositions for the removal and impeachment of judges. Various suggestions have been made to render judges ineligible to other offices and thus keep the court free from political entanglements. Attempts have been likewise made from time to time to secure the appointment of the judges for a term of years, and hence to enable the popular will more readily to control their action.2 The friction caused by the disputes between the States and the General Government called out several propositions for the creation of some tribunal other than the Supreme Court to decide such cases. Each of these subjects will be considered more in detail in the present chapter.

68. COMPOSITION AND NUMBER OF JUDGES.

The Constitution made provision in broad terms for the establishment of the judicial power and left Congress to create by

Bryce, 1, 267–271.

2 These were doubtless suggested by the growing practice in the States.

3 Art. III, sec. 1.