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They set the key, also, by this act, for our State governments and municipal governments.
The royal prerogative of pardon, which belongs to the President without limits, except in cases of impeachment, has been given to one after another of the Governors of our States. Their appointing power is like his; their veto power is like his. Of the statutes passed this year by the legislature of the State in which we are convened, nearly one-third-in all, over five hundred-failed of effect for want of the Governor's approval.
In city governments the authority of the Mayor has been continually increased. He is held personally responsible for a fair and honest administration of municipal affairs, and each department under him is coming to be under the direction, not of some non-partisan board, but of one man, removable at the Mayor's will, and taking his instructions from him.
But the hour which is allotted to this address will only suffice for a brief and partial consideration of the centralization of power in the Federal Government.
In form, at least, there is less of national character in our executive than in our judicial department. The Judges of the United States have no relation to the States, except that the Senate of the States must confirm their nominations. The President, on the other hand, is chosen by the votes of local electors, appointed by each State for itself, and meeting separately in distant capitals. Three of these electoral votes are forever secured to the smallest State, so that a President may be—as, in the case of Hayes, a President was-elected by a majority in the electoral colleges, when the opposing candidate received the approval of a majority of the whole people. So, again, should the electoral colleges fail to make a choice, the States come together to take their place, like so many sovereign powers in an imperial diet; each casting in the House of Representatives an equal vote.
But, once elected, the President, during half the year is the United States more truly than ever Louis XIV was France.
Our people nad tried, during the Revolution and after the Revolution, the experiment of a confederacy without an executive head. They knew the evils of a weak administration, and they were determined to have an energetic one. They were ready to pay the price by submitting to a system of personal government.
1 New York,
Had there not been, in 1787, a person at hand, to whom all eyes were turned with unfaltering trust, it is more than doubtful whether the Constitution, as thus framed, could have been ratified. Had they fully understood the great powers with which it invested the President, it is certain that it never would have been.
Hamilton and Madison in the Federalist, minimized these powers, to conciliate popular support. It was, in truth, impossible to predict beforehand what they were to prove. Pinckney, at the close of the convention, spoke of the new President as an officer of "contemptible weakness and dependence." Jefferson, , on the other hand, wrote from Paris that he seemed “a bad edi. tion of a Polish King," and would contrive to hold his power by successive reëlections for life. Between these views time was to decide.
A constitutional government is not constructed in a day. A constitution may be; but it is born into the world a helpless babe, to be nurtured and re-created by its environment and associations. Constitutions do not make history. History makes them. They may, indeed, be constructed in a day, but they cannot be construed in a day. The men who put such a document together do not know, cannot know, the meaning of their own work. It is what it comes to be. It is what later generations inake it.
Plato tells us in his Republic that governments must change with every change in the character of those who constitute the political society, and in their relative conditions of life.
Think of the United States as they were in 1787, occupying a narrow strip of the Atlantic sea-coast; engaged only in agriculture; with no city larger than Utica or Savannah now is; with capital still so far in the hands of individuals that there were probably not a hundred business corporations in the whole country; with mails carried through half the States on horse. back and at irregular intervals, if at all; and tell me if the President of such a people could, except in name, be the same as the President of the United States of to-day?
There were two theories of the executive before the convention of 1787.
Sherman insisted that the executive magistracy was really nothing more than an institution for carrying the will of the leg. islature into effect, and therefore that it should be confided to one or more officials, as experience might dictate, appointed by that body and removable by that body.
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, fol. lowing 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." 2 And why unsuccessful? Because it was always inefficient in emergencies. Because it had no political center. 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 towards 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 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
2 " Popular Government,” p. 202.
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 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 inilitia of other States, in such numbers as he might think nec. essary. It was also provided that every able bodied white male citizen, between eighteen and forty.five, with few exemptions, should be enrolled in the inilitia, and that the President should appoint an adjutant-general 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 Con. gress has since been to trench less on the military powers of the States, the militia of the United States, such as it is, has neces. sarily and always, when in actual service, been under the coinmand of the President by constitutional right, and as the Supreme Court decided in Martin v. Mott,3 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 4 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 5 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 subpæna 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 offense; but a decision rendered by a divided court, four of the nine judges, with the then Chief 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.6
3 12 Wheat. 19 4 Luther v. Borden, 7 How. I. 5 The Prize Cases, 2 Black. 635. 6 Ex parte Milligan, 4 Wall. 2, 142.