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It was Macaulay's criticism of the Constitution and government of the United States that we were “all sail and no rud. der." 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 ineasures, 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 immeasureable, and whatever else it accomplished, it demonstrated the absolute power of 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 caine 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 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.
7 Of March 3, 1863.
It was Jefferson, when in 1803 he bought the Louisiana terri. tory from Napoleon, and by a stroke of his pen doubled the area of the United States. It inevitably moved the center 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.
Queen Victoria has, in law, the same absolute veto power as to every bill which Parliament presents to her for the royal assent, which Queen Elizabeth or William the Conqueror had. But does she use it? No English sovereign since the Hanoverian dynasty came in has ever used it, and none ever will. And why? Because it is an absolute power, and because no men of Anglo-Saxon stock will ever again stoop to absolute power, exercised by hereditary right.
The disuse of the royal veto has brought on a silent but fundamental change in the whole system of British government. The ministry, unwilling to ask the sovereign to approve a bill that they do not, if such a measure is forced upon them, resign their offices or dissolve the Parliament. As the Crown cannot be held responsible to the people the ministry must be-a vicarious sacrifice at the altar of liberty.
In every form of government that stops short of despotism, the people must have some share or some semblance of a share in legislation, either by way of origination or approval.
In the palmiest days of monarchy in France the edicts of the King were submitted for registration to the parliaments of justice; and the convocation of the States General was always in reserve, Under the reign of the Cæsars the absolutism of the Emperor was rested on the assumption that the people had delegated to him their powers and the functions of their tribunes to intervene for them to defeat an unjust law.
But the American veto is supported by no legal fiction, and impeded by no fear of popular discontent. During his short term of office, and because of his short term of office, the President of the United States may set down his foot at any point and oppose his individual will to the judgment of the whole people speaking by their representatives, and of all the States, speaking by their ambassadors in the Senate. If such a veto is sent in during the closing days of the session, as Congress is now constituted, with so great a number of members in each of the houses, and the opportunity for unlimited discussion in one, it is almost certain to be fatal to the bill; and under any circumstances it is fatal, if the President and Congress are in general political accord.
But if they are not, what then? He has a greater prerogative in reserve.
The executive power of the United States, and the whole of it, is vested in this one man. What are laws, if they are rot executed? And who is to judge, except the President, or above the President, whether an Act of Congress, which he is called upon to execute, is or is not such an Act as Congress had power to pass?
We have, indeed, now passed from questions of expediency to questions of jurisdiction.
The President can veto a bill because he deems it inexpedient, or because he deems it unconstitutional. He can only decline to execute a statute which has become such without his
approval, because he believes it to be no law at all. But the absolute power of decision, and of action or inaction, in either case, is equally in him.
This was the position of Jefferson and of Jackson, but it required the civil war to make it an unquestioned principle. You recollect the occasion. In every one of the States South of Kentucky society was confused and disorganized. The status of almost half the population had been revolutionized. The natural political leaders had been set aside. A general re-adjustment of civil government to meet all these new social conditions was necessary.
President Lincoln and after him President Johnson proposed to accomplish it by the exercise of the executive power. Temporary governments were set up under mili. tary authority. Executive orders were issued, authorizing popular elections, under certain conditions, to replace military by civil rule, and home rule. Congress interposed to prevent it. The “Reconstruction Laws" were enacted, and others, intended to subordinate the President of the United States, as to military affairs to the General then in command, and, as to civil adminis. tration, to the will of Congress. These Acts were vetoed. They were passed over the veto. They were disobeyed.
They were disobeyed. The President was impeached, and the one vote that saved him from conviction, I might almost say, re-made the Constitution of the United States. If such a President as Andrew Johnson, so defiant of opposition, so abusive to his opponents, so distrusted by the party that had elected him, on the one side, and by the party which had rejected him, on the other, could not be successfully impeached for following out, in matters so all-important to the people and the States, his view of the Constitution against that of Congress, no President ever could be.
The same thing is true of a difference of opinion as to his constitutional duty, between the President and the courts. You recollect Jackson's declaration, when he vetoed the re-charter of the United States Bank, that he had sworn to support the Constitution as he, not others, understood it, and that the authority of the Supreme Court must not be permitted to control either Congress or the Executive when acting in their legislative capaci. ties. It was left for another Tennessean, in another generation, to vindicate the doctrine that the President was equally independent of the courts, when acting in his executive capacity.
Can the President be prevented from executing an Act of Congress which the Supreme Court considers to be unconstitutional and void?
This was the great question which Mississippi brought to the bar of the Supreme Court of the United States in 1866.
The Reconstruction Acts, to which I have alluded, purported to set aside the existing governments of certain States-governments existing by the authority or sanction of the President as Commander in-chief of the military power of the United States. Mississippi was one of these. She asserted that these statutes were unconstitutional and void, and sought leave to file a bill for an injunction to prevent President Johnson from undertaking to enfore them. No one would have been better pleased than he, to see them fail. But he knew that it was his duty to defend the dignity of his great office. By his direction the Attorney. General opposed the motion of the State of Mississippi. It was denied, and the cause of Mississippi v. Johnson 8 established by judicial decision what had been only feebly and sporadically claimed by Johnson's predecessors, that the President was the absolute judge of his duty in the execution of a statute, subject only to the power of the courts to pass upon the legal effects of his action, should they afterwards become proper matters of judicial controversy.
We have seen how far the military powers of the Executive may serve as a warrant to interfere with the administration of justice in State courts. In time of war and in the presence of war, it extends to their temporary abolition. When enemies' territory is occupied, or territory to which the rules of public law assign that name, though it be that of a State of the Union, the President can replace its courts by courts of his own, exercising both civil and criminal jurisdiction, and disposing of life, liberty and property, not as instruments of the judicial authority of the United States, but as instruments of the executive authority. Such was President Lincoln's Provisional Court, established by a mere military order in Louisiana in 1862. Four years later Congress ordered its records transferred to the Cir. cuit Court for the Eastern District of the State, and made its judgment in legal effect the judgments of that court.
The validity of this legislation was attacked, but it was finally supported by the Supreme Court of the United States, and under this decision, in the case of the Grapeshot, what were really decrees of the President, speaking by his military deputy, the judge of the Provisional Court, were made to stand for and