Madison contended for the other view,- that the executive was a representative of the people rather than of their legislators.

During the century that has passed since then, England, following the principle preferred by Sherman, has reduced her sovereign to a mere representative of the legislative will; and we, following the principle preferred by Madison, have raised our executive to the position of an elective king, chosen by the people, and responsible only to them,- a king who for a four years' term rules in his own right.

One of the most significant debates in the convention of 1787 was that over the proposition to surround the President with an executive council. Had it been carried, and his will thus subjected in any measure to cabinet control, the very foundation of our government would have been changed. It is the absolute supremacy of the President within his sphere of executive action, responsible to his own judgment and to no other man's, that has been the mainspring of our political system. Custom and convenience have brought the heads of departments together, in the presence of the President, at stated meetings for consultation, and, when he asks it, for advice. We call them members of the cabinet, but they have as such no standing before the law. No sultan in the presence of his divan is as uncontrolled and absolute as the President of the United States at a cabinet meeting. Others may talk: he, only, acts.

It was an observation of Sir Henry Maine that the success of the United States "has been so great that men have almost forgotten that, if the whole of the known experiments of mankind in government be looked at together, there has been no form of government so unsuccessful as the republican."* And why unsuccessful? Because it was always inefficient in emergencies. Because it had no political centre. Because no free people had been intelligent enough to know that a strong and stable government is the best government, provided it is first kept within narrow bounds, and then administered in the public interest.

The first step toward strengthening the executive power was taken by the First Congress in its decision in favor of the right of the President to dismiss his subordinates at will. The Federalist

* Popular Government, p. 202.

had adopted the other view. The argument that, if confirmation by the Senate were necessary to appointment, it must also be necessary to removal, was logical; but in politics practical considerations are often stronger than logical ones. If the President was invested with the whole executive power of the United States (and so the Constitution reads); if he is to be held responsible to the people for his executive action (and certainly he must be),- he ought to have no agent in his service who has lost his confidence, no man on whose judgment he must rely, whose judgment he distrusts.

In the form of constitution adopted by the Southern Confederacy in March, 1861, the President's power of removal was essentially restricted. It should have been; for the guiding principle of that short-lived government was to secure at every point where it was practicable the sovereignty of each State, and to yield as little as possible to the Confederate authority.

During the administration of Washington came another step in the development of the Constitution, in the act on his part which nearly precipitated us into a war with France. The President, says the Constitution, is to receive public ministers. It follows, said the first President, that I can refuse to receive them, or, if I find reason to be dissatisfied with them, can request their recall. Genet was recalled, at his request, and the beginning thus established of a long line of diplomatic precedent, which has made the voice of the President, as to foreign nations, the only recognized expression of the sovereign will of the United States.

Federal taxation was no more popular under Washington than it is under McKinley. It became necessary for the government to show its teeth, and in 1792 was passed the first national militia law. In case the execution of the laws of the United States should be opposed in any State by combinations too powerful to be suppressed by the courts or marshals, it was made lawful for the President to call out the militia of the State; and, should they refuse to act and Congress not be in session, the militia of other States, in such numbers as he might think necessary. It was also provided that every able-bodied white male citizen between. eighteen and forty-five, with few exemptions, should be enrolled in the militia, and that the President should appoint an adjutantgeneral in each State to act as such, subject to the orders of the

governor. It was by virtue of these acts that Washington found the means to put down the Whiskey Rebellion in Pennsylvania; and, while the general policy of Congress has since been to trench less on the military powers of the States, the militia of the United States, such as it is, has necessarily and always, when in actual service, been under the command of the President, by constitutional right, and, as the Supreme Court decided in Martin v. Mott, it is for him alone to determine when it is fit to call them out.

So, in regard to our standing military and naval establishment, the orders of the President are always absolute.

They may involve the pulling down or setting up the government of a State. Such was the effect of Presidential interposition in Dorr's Rebellion in Rhode Island, when the courts declared that whichever government he recognized as the true and lawful one they must respect.

They may bring a sudden stop to combinations of labor, which have put great railroads at their feet and the commerce of the country in peril.

They may compromise our relations with foreign powers, and even authorize an invasion of foreign territory or the blockade of ports before Congress has declared the existence of war.

And, when a state of war is fully recognized, what shall we say then of the limits of Presidential power? As it was practically administered during the Civil War, it extended, in States that were not the seat of active hostilities, to domiciliary visits; to arrests by military warrant; to trials by military courts, ending in decrees sometimes of exile and sometimes of death. The courts and the bar, as you well know, were at the time divided in opinion as to the question of right. The Chief Justice of the United States denied that the President could suspend the privilege of the writ of habeas corpus where there had been no proclamation of martial law; but even he did not venture to enforce his decision by process of contempt. At this point Taney yielded before Lincoln, as Marshall had yielded before Jefferson as to the subpœna issued and disobeyed on the trial of Aaron Burr. Finally, after the close of the war came the decision in Milligan's case, annulling a sentence of death passed by a military commission, sitting in Indiana, for a political offence; but a decision rendered. by a divided court, four of the nine judges, with the then Chief The Prize Cases, 2 Black. 635.

12 Wheat. 19.

Luther v. Borden, 7 How. 1.

Justice at their head, holding that, in time of insurrection or invasion, the President might rule by martial law, when public danger required it, and there was no opportunity for Congress to act, in any part of the United States, though not the actual seat of war, if he found the ordinary law inadequate for public protection.*

It was Macaulay's criticism of the Constitution and government of the United States that we were "all sail, and no rudder." He uttered it in the first half of the century, that half divided for us by so wide a chasm from that now closing,- the chasm of the Civil War.

No one who watched the progress of that great contest would have failed to see that there was rudder no less than sail.

There was a rudder, and there was but one man at the helm. Lincoln's course may be commended or condemned; but this, at least, all must agree, that his personality dominated the course of political events during those stirring years from 1861 to 1865. It was far from being a consistent course. The Constitution, on his accession to the Presidency, did not seem to him the same thing that it grew in his mind to be, as the long struggle wore on. He came to feel, as he wrote in 1864, "that measures otherwise unconstitutional might become lawful by becoming indispensable to the preservation of the nation." This is a doctrine without limits, in the mouth of a military commander in time of war. It led him to the proclamation of emancipation, as imperial a decree as that by which the Czar of Russia, in the same year, abolished serfdom in his dominions. We need not stop to ask whether this proclamation was a legal act. It is one of the great facts of human history. Its practical consequences were immeasurable; and, whatever else it accomplished, it demonstrated the absolute power of an American President, whether it be rightfully or wrongfully exercised.

But it is not to times of war that one should look for authoritative definitions of political powers. Those of every department of government are then commonly strained to the utmost, and all tend to support the military arm.

When Lincoln assumed to suspend the privilege of habeas corpus, Congress came to his aid by an Act† formally investing him with such a power, to be exercised anywhere and at any time at his discretion, and granting immunity for any acts in restraint of

Ex parte Milligan, 4 Wall. 2, 142.

† Of March 3, 1863.

liberty done at his command. Similar action was taken in the Confederate Congress to strengthen the hands of President Davis; and his influence in shaping legislation was even more evident and effective, throughout the war, than that of President Lincoln at Washington.

Let us go back to times of peace, and ask which President was the first to startle the country by the exercise of powers not before generally thought to appertain to the Executive Department.

It was Jefferson, when in 1803 he bought the Louisiana territory from Napoleon, and by a stroke of his pen doubled the area of the United States. It inevitably moved the centre of political rule to the valley of the Mississippi. It destroyed the existing balance of power between the States. But it was fortunate that under our political system there was one man able thus to commit the country, without consulting it, to so great a departure from its earlier traditions.

A generation later, another executive act proved that the President was stronger than any combination capital could form, though supported by far-reaching political influences. The United States Bank was the greatest financial institution which the United States have ever seen. It had paid a million and a half to the government for its charter. It was made by act of Congress the standing depository of the cash funds of the United States, unless at any time the Secretary of the Treasury should order their withdrawal. President Jackson believed that the affairs of the bank were being improperly conducted, and requested the Secretary of the Treasury to remove the deposits. The Secretary declined, stating that he saw no reason for it, and that the authority to decide had been lodged with him. His removal followed, and a successor was appointed who promptly complied with the President's wishes. The Senate denounced Jackson's action as unwarranted by the Constitution. He sent in a protest against this resolution, which they voted to be a breach of privilege. A commercial crisis followed, which shook the country to its foundation, and by one of the great parties of the day was attributed to Jackson's act. Whether the cause of it or not, the removal of the deposits was certainly the occasion; and it came by the absolute will of the President alone.

It was Jackson, also, who first showed the people how almost irresistible, in strong hands and on great occasions, is the force of the executive veto. It is the common prerogative of royalty, but one to which modern royalty seldom dares to resort.