Act of Congress. In English law and history it had always been a legislative act and not an executive act. This was also the opinion of Chief Justice Marshall as to the law in America.' "When the conspiracy of which Aaron Burr was the head became so formidable, and was so extensively ramified as to justify, in Mr. Jefferson's opinion, the suspension of the writ, he claimed, on his part, no power to suspend it, but communicated his opinion to Congress, with all the proofs in his possession, in order that Congress might exercise its discretion upon the subject, and determine whether the public safety required it. And in the debate which took place upon the subject no one suggested that Mr. Jefferson might exercise the power himself, if, in his opinion, the public safety demanded After giving an argument in support of his view, the Chief Justice declared that a military government had been substituted for the government of the Constitution, ordered his opinion filed, and a copy sent to the President, with a call upon him "to perform his constitutional duty to enforce the laws; in other words, to enforce the process of this court." The dictum of Chief Justice Marshall was thus reasserted as a positive ruling, and this ruling has been concurred in by a series of decisions in the United States and State courts, and by other recognized authorities. 3 President Lincoln's Attorney-General advised him that 1 Bollman case. . Opinion of Chief Justice Taney in ex parte Merryman, McPherson's History of the Rebellion, p. 155. See ex parte Bollman and Swartwout, 4 Cranch, 100, per Marshall, C. J.; Thayer's Cases in Constitutional Law, vol. ii., pp. 2374-2375. 'Taney quotes Story and Marshall in support of his view. For reply, see the argument of Hon. Reverdy Johnson in Moore's Rebellion Records, vol. ii., p. 185, and the argument of Attorney-General Bates in McPher son's History of the Rebellion, p. 158. Attorney General Bates's View on Suspension of Habeas it was for the President alone to pronounce upon the political considerations which determine in what cases a suspension of the writ of habeas corpus might take place, and that the authority conferred upon him by the Constitution was in no wise affected by the powers with which the act of 1789 had invested the judges with regard to the writ of habeas corpus. A note of Secretary Seward to Lord Lyons, in October, 1861, contains a good summary statement of the claims of executive power in this respect. Corpus. "It seems necessary to state that Congress is by the Constitution invested with no executive power or responsibility whatever, but, on the contrary, the Presi- Secretary dent of the United States is, by the Constitution Seward. and laws, invested with the whole executive power of the Government, and charged with the supreme direction of all ministerial 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 constitutionally 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."'1 "If it be said that these acts of the President in time of war are unconstitutional, the 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 conferred in creating him commander-in-chief." " 1 Cited in Stevens's Sources of the Constitution of the United States, pp. 162, 163. See also North American Review, November, 1880. 'Landon, Constitutional History and Government of the United States, p. 205. In his conduct of a war the President must have all the powers recognized by the laws and usages of war. President Hayes is represented as speaking of the war powers of the President as follows: President "The President may at any time force Congress into war. The complicate relations with foreign powers renders this always easy. No man has yet defined the war powers or placed a limit on them. The executive power is large because not defined by the Constitution. The real test has never come, because the Presidents have, down to the present time, been conservative men, and have kept within limited range. The law of usage regulates the 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. This power has been described by Mr. Bryce as the power of a dictator."1 The The appointing power is one of the chief functions of the President, and it probably gives him more real political influence than any other function conAppointing ferred upon him. He is charged "to see that Power. the laws be faithfully executed"; and, consequently, he must be allowed to select and control the persons by whom the laws are to be executed. It will be seen from the language of the Constitution' that Congress can greatly reduce the power of the President over appointments. Congress may by law specify certain 'Stevens's Sources of the Constitution of the United States, p. 169. 266 With the advice and consent of the Senate, he shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States whose appointments are not herein otherwise provided for and which shall be established by law; but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, and in the courts of law, or in the heads of departments."-Constitution, Art. II., Sec. 2, Cl. 2. qualifications for appointees, determine the time and condition of their tenure, and provisions for their promotion. It was of course not supposed at the origin of the Constitution that the President would ever make appointments or removals from political motives, or that the Senators would take from him the initiative and control in appointments. From the wonderful growth of the country and the resulting great army of appointive offices, it will be obvious what a tremendous political power the President might exercise if he chose to use his executive power to erect into a great machine, into an organized and disciplined corps, all his subordinates for the promotion of his ends. With one hundred and fifty thousand subordinates, commanding a hundred millions in salaries, it would be difficult to estimate the tremendous power the President could wield if he chose to use the powers of his office corruptly. In 1789, during the first session of Congress a debate occurred in that body involving the power of the President to remove an officer appointed by him The Power with the advice of the Senate. The Senate's of Removal. consent being necessary to appoint, should it also be necessary to removal? This debate arose on a bill providing for the organization of the State Department. The bill originally contained a provision conferring the power of removal upon the President, but this was finally struck out as being superfluous, and a clause was substituted which took it for granted, or as clearly implied, that this power belonged to the President. In the debate on this subject it was recognized by all' that, while the Constitution did not declare by whom the 'For the abuses in these directions see the subjects, "Senatorial Courtesy," pp. 225 et seq., and the "Spoils System," in the author's Political Parties and Party Problems. Except Mr. Smith of South Carolina, who held that all administrative offices should be held by the tenure of good behavior and that removals be effected only by impeachment. power of removal should be exercised, there must exist somewhere a prompt and summary power of removing an incompetent, unfit, or corrupt officer for offences short of violations of the law. Two principal views were held: I. The President and the Senate should be combined in removals, as in appointments. Otherwise, it was thought, the influence of the Senate would be Views as to entirely nugatory in restraining the President. Congress cannot confer on the President what the Constitution has not conferred, and it would be better to leave the courts to determine where the power rests. Opposing Power of 2. The other view asserted that the power of removal should rest with the President alone. View. In his defence of the Constitution, Hamilton had held that the consent of the Senate would be necessary to disHamilton's place as well as to appoint. It was upon this check he relied to prevent a sweeping revolution in the offices upon a change of administration,-if an unscrupulous President were to be the sole dispenser of the offices and should attempt a change for the sake of bringing in personal or party favorites.' Madison, Hamilton's colaborer in the Federalist, took a different view. As to the danger that a President might abuse the power of removal by using it for personal and party purposes, Madison asserted that the wanton removal of meritorious officers would subject the President to impeachment and removal from his own high trust. Madison's View. Believing that no President would so abuse the powers of his office, and that he would be impeached if he did, Madison insisted that the power of removal should rest solely with the President. He and others in Congress urged that legislative action should remove all doubt on this subject; that what was omitted in the Constitution should be supplied by legislation; 1 See Federalist, No. 77, and note in Ford's Federalist, pp. 511, 512. |