THE LIBRARY 
 
 OF 
 
 THE UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES
 
 CONK^LINdr, Alfred, iurist, b. in Ainagansett, 
 SnlTolk fo., N. Y., 12 Oct., 17H0 ; d. in Utica, 
 N. Y., 5 Fel)., 1874. lie was gradiialed at Union 
 in 1810, studied law, and was admitted to Ihe bar 
 in 1812, He was district attorney for JMontgoniery 
 county three years, and was elected to congress 
 as an anti-Jackson democrat, serving from 1821 
 till 182;}. He then removed to Ali)any, and in 
 1825 was appointed by President John Quincy 
 Adams judge of the U. S. district court ior the 
 northern district of New YorI<, which ofhce he 
 hohl till 1852, wlien President Fillmore appointed 
 him minister to Mexico. On his return from that 
 mission, in 1853, he settled at Genesee, N. Y., de- 
 voting himself mainly to literary pursuits. Union 
 college gave him the degree of LL. D. in 1847. He 
 published " Treatise on the Organization and 
 Jurisdiction of the Supreme, Circuit, and District 
 Courts of the United States " (2d ed., 1842) ; " Ad- 
 miralty Jurisdiction " (2 vols., 1848) ; "' The Pow- 
 ers of the Executive Department of the United 
 States" (Albany, 1866); and the "Young Citizen's 
 Manual." — His son, Frederick Augustus, b. in 
 Canajoharie, N. Y., 22 Aug., 1816, received a classi- 
 cal education, and became a merchant. He was 
 for thi'ee years a member of the New York legisla- 
 ture. In June, 1861, he organized, at his own ex- 
 pense, the 84th New York regiment, serving as its 
 colonel. During July, 1863, the regiment did 
 duty as provost-guard at Baltimore, Md., and in 
 1864 it saw several months' service in Virginia. 
 Col. Conkling served one term in congress, from 
 1861 till 1863, and in 1868 was the Republican can- 
 didate for mayor of New York. He changed his 
 politics, however, and spoke in various parts of 
 the Union in favor of Mr. Tilden's election to the 
 presidency in 1876, and of Gen. Hancock's in 1880. 
 He is a trustee of the College of physicians and 
 surgeons, a member of the geographical and his- 
 torical societies, and the author of various reports 
 to the New York legislature, and numerous pam- 
 phlets on political, commercial, and scientific sub- 
 jects. — Another son, Roscoe, senator, b. in Albany, 
 N. Y., 30 Oct., 1829, 
 received an academic 
 education, and stud- 
 ied law three years 
 under his father's 
 tuition. In 1846 he 
 entered the law-of- 
 fice of Francis Ker- 
 nan, afterward his 
 colleague in the sen- 
 ate, and in 1850 be- 
 came district attor- 
 ney for Oneida coun- 
 ty. He was admit- 
 ted to the bar in that 
 year, and soon be- 
 came prominent both 
 in law and in poli- /) /^ 
 
 tics. He was elected /%£^qJ^'Muc. 
 
 mavor of Utica in 1\ 
 
 1858, and at the ex- Vj 
 
 piration of his first 
 
 term a tie vote between the two candidates for the 
 office caused him to hold over for another terra. 
 In November, 1858, he was chosen as a Republican 
 to congress, and took i^us seat in that body at the
 
 beginning of its first, session, in December, 1859 — 
 a session noted for its long and bitter contest over 
 the speakership. lie was re-elected in 1860, but in 
 1862 was defeated by Francis Kernan. over wiioin, 
 however, he was elected in 18G4. His first com- 
 mittee was that on the District of Columbia, of 
 wiiich ho was afterward chairnum. He was also a 
 member of the committee of ways and means and 
 of the special reconstruction committee of fifteen. 
 Mr. Coid<ling's first important speech was in sup- 
 port of the fourteenth amendment to the constitu- 
 tion. He vigorously attacked the generalship of 
 McClellan, opposed Spaulding's legal-tender act, 
 and firiiUy upheld the government in the prosecu- 
 tion of the war. Mr. Conkling was re-elected in 
 the autumn of 1866, but in January, 1867, be- 
 fore he took his .seat, was chosen U. 8. senator to 
 succeed Ira Harris, and re-elected in 1873 and 
 1879. In the senate he was from the first a mem- 
 ber of the judiciary committee, and connected 
 with nearly all the leading committees, holding 
 the chairs of those on commerce and revision of 
 the laws. Senator Conkling was a zealous sup- 
 porter of President Grant's administratioii and 
 largely directed its general ))o]icy toward the 
 soutii, advocating it in public and by his personal 
 influence. He was also instrumental in the pas- 
 sage of the civil-rights bill, and favored the re- 
 sumption of specie payments. He took a promi- 
 nent part in framing the electoral-commission bill 
 in 1877, and sup|)orted it by an able speech, argu- 
 ing that the question of the commission's jurisdic- 
 tion should be left to that l)ody itself. I\Ir. Conk- 
 ling received 9;{ votes for the Republican nomina- 
 tion for president in the Cincinnati convention of 
 1876. In the Chicago convention of 1880 he advo- 
 cated the nomination of Gen. Grant for a third 
 term. In 1881 ho became hostile to President 
 Garfield's administration on a fiuostion of patron- 
 age, claiming, with his colleague, 'i'liomas C. Piatt, 
 the right to control federal appointments in his 
 state. The president having appointed a political 
 opponent of Mr. Conkling's to the collectorship of 
 the juirt of New York, the latter opposed his con- 
 firmation, claiming that he should have been con- 
 sulted in the matter, and that the nomination was 
 a violation of the pledges given to him l)y the 
 •resident. Mr. (Jariiold, as soon as JNIr. Conkling 
 lad ileclared his opixisition, withdrew all other 
 iinminalions to New York offices, leaving the ob- 
 jrctionablo one to be acted on by itself. Finding 
 that he could not prevent the confirmation, Jlr. 
 Cdtikling, on l(i May, resigned his senatorship. as 
 iiil also his colleaguo, and returned home to seek 
 I vindication in the form of a re-election. In 
 fliis, however, after an exciting canvass, they 
 liiiled; two other republicans were chosen to fill 
 in; vacjint places, and Mr. Conkling returned to 
 Ins law practice in New York city. In 188r)-'6 he 
 ^^..s counsel of the Slate senate investigating com- 
 Uiitlee, appointed for the purpose of disclosing the 
 fraud and bribery in the grant of tiie Broadway 
 orse-railroad franchise by the board of aldermen 
 n 1884. After the takiiig of testimony, lasting 
 ibout three months, Mr. Conkling, together with 
 ^liirenc(» A. Seward, made an argument which 
 'suited in the repeal of the Broadway railroad
 
 cliarlcr.— Alfred's daughter, Margaret Cockbiirn 
 
 (Mrs. Steele), b. 27 Jan., 1814, has publislied "iMe- 
 njoirs of tlie Mother and Wife of Washington " 
 (Auburn, N. Y., 1851-';]); "Isabel; or. Trials of 
 the Heart"; a translation of Florian's "History of 
 the Moors of Spain," and has contributed to current 
 literature.— Alfred Conkling's j^randson, Alfred 
 Ronald, b. in New York city, 28 Sept., 1850, was 
 
 graduated at Yale in 1870, pursued his studies at 
 Harvard and in Berlin, Germany, and on his return 
 (o this country was employed on the U. S. geologi- 
 cal survey. He then studied law, was admitted 
 to the bar in 1879, and became assistant U. S. at- 
 torney in 1881-2. He was an unsuccessful Repub- 
 lican 'candidate for congress in 1884, and made j 
 many addresses in favor of the election of Jamos 
 G. Blaine during the presidential campaign of that 
 year. He is the author of "Appletons' Guide to 
 Mexico "_ (New Yo rk, 1884) . 1
 
 THE POWERS 
 
 THE EXECOTIYE DEPARTMENT 
 
 GOVERNMENT OF THE UNITED STATES. 
 
 By ALFRED CONKLING. 
 
 'Better to be awakened by the alarm-bell than to perish in the 
 flames." — Burke. 
 \ 
 
 ALBANY: 
 
 PUBLISHED BY WEARE C. LITTLE. 
 1866.
 
 Entered according to act of Congress, in the year eighteen hundred 
 and Bixt3--six, 
 
 By ALFRED CONKLING, 
 
 in the Clerk's ofllce of the District Court of the United States for 
 tlie Northern District of New York. 
 
 ■WEED, PAES0N8 Jt COMPANY, PRINTEES.
 
 EXECUTIVE POWER. 
 
 The unparalleled struggle, for the uiaiu- 
 teuauce of the Union, from which we have 
 so lately emerged, is rightl}^ regarded as 
 one of those great historic events which 
 shape the destinies of nations. Some of 
 its fruits are already' palpable to the gross- 
 est sense. It has freed us from the curse 
 and opprobrium of legalized human bond- 
 age; it has demonstrated our capacity for 
 successful warfare, upon a grand scale, on 
 land and sea ; and in proving to us, as it 
 has incontestably done, that we have noth- 
 ing to expect from the good-will, little 
 from the honesty, and still less from the 
 magnanimity of two, at least, of the most
 
 powerful nations of the old world; it Las 
 also taught both them and ns that, so long 
 as we are true to ourselves, we have little 
 to fear from their enmity. It has aroused 
 into unwonted activity all the intellectual, 
 moral, and impulsive energies of the Ameri-. 
 can mind ; and if it has brought out, in 
 bold and revolting relief, all that is most 
 odious and humiliatiug in man, it has 
 expanded and invigorated all that inspires 
 him with noble thoughts and high aspira- 
 tions, and all else that exalts him to a rank 
 in the scale of beiug, "but a little lower 
 than the angels;" and whatever else may 
 befall us, we may confidently hope that the 
 grand imimlse it has thus imparted to our 
 career of intellectual and moral civilization, 
 is destined to endure. Let this great boon 
 be our consolation for the terrible sacrifices 
 it has cost us. But it is not upon these 
 topics that I design to dwell, and I address
 
 3 
 
 myself at ouce to the task I Iiave imder- 
 takcu. 
 
 One of the consequences of the liebellion 
 has been to awaken public attention more 
 strongly than it bad yet been, to a great 
 problem of constitutional law ; a problem 
 of transcendent imiiortance, and demand- 
 ing the earnest and dispassionate consider- 
 ation of the American people. It was 
 discussed in the constitutional convention ; 
 by the cotemporaneous public press; by the 
 writers of the "Federalist," two of whom 
 were among the most distinguished mem- 
 bers of the convention, after it had been 
 submitted to the people for ratification ; 
 and in the conventions of the several 
 States ; and it has, to a greater or less 
 extent, incidentally provoked discussion 
 under nearly every administration of the 
 national government, from that of AVasli- 
 ington inclusive, down to the present day.
 
 It lias also been briefly treated by our 
 writers ou constitutional jurisprudence ; 
 and, with regard to some of its elements, 
 subjected also to judicial scrutiny. And 
 yet, now, imder all the lights thus shed 
 upon it, after the lapse of three-quarters of 
 a century, it not only remains practically 
 unsolved, but presents itself under new and 
 alarming phases. I hardly need to say that 
 I refer to the scope of Executive Power 
 in our national system of government, and, 
 incidentally, to the line which separates it 
 from the legislative power. The subject 
 already occupies no inconsiderable share of 
 the public attention, and has awakened, in 
 no slight degree, the solicitude of thought- 
 ful men. It would have been strange, and, 
 to the enlightened patriot, disheartening, 
 had it been otherwise. Unfortunately, it 
 has now become complicated with party 
 politics, and consequently obscured in the
 
 5 
 
 popular iiiiiul, by the blind passions of 
 party zeal. A basty glance over the recent 
 past will suffice to show hoAv all tbis lias 
 happened, and is essential to ni}^ design. 
 The sudden surrender of the rebel armies 
 placed the country in a predicament de- 
 manding, on the part of the government, 
 the utmost circumspection, the most upright 
 intentions, and the most consummate skill. 
 The simultaneous assassination of the Pres- 
 ident added to the perplexity inseparable 
 from the emergency. That, in anticipation 
 of its occurrence. President LI^X'OLX had 
 profoundly meditated its exigencies, is 
 not to be doubted. During four event- 
 ful and harassing years, in the loyal as 
 well as in the rebellious States, and in 
 both houses of Congress, ho had con- 
 stantly been the object of wanton ol)lo(iuy 
 and insulting vituperation ; but he was 
 too profoundly sensible of the momentous
 
 6 
 
 respousibilitics of his office, to allow his 
 equanimity to be disturbed by these asper- 
 sions; and calmly pursuing the even 
 tenor of his way, in the conscientious 
 and faithful discharge of his duty, he 
 suffered them to pass by him as the idle 
 wind. Conscious of his own rectitude, 
 and not wanting in a just confidence in 
 his own judgment, he was no egotist, 
 and did not imagine that he was wiser 
 than all other men. He had read the 
 Constitution too carefully, and understood 
 it too well, not to see that the august 
 political fabric, shaken to its foundation, 
 and which he had sworn, to the best of 
 his ability, to j^reserve, protect and defend, 
 could be constitutionally restored and reno- 
 vated only by the joint agency of the 
 legislature i)rescribing the means, and of 
 the executive faithfully carrying them 
 into effect; and neither flatterv, nor
 
 7 
 
 evil counsel, nor ambition could have 
 seduced him to attempt the herculean 
 task of reconstruction alone, by the 
 assumption of powers that did not belong 
 to him. Ilad he lived, therefore, but a few 
 weeks longer, it may safely be presumed 
 that he would have gladly availed himself, 
 as he had done at the outbreak of the 
 rebellion, of his constitutional right to 
 convene the legislative council of the 
 nation, to deliberate and decide upon 
 the momentous questions to be determined. 
 His untimely death was inevitably followed 
 by the instantaneous substitution of a suc- 
 cessor, in nearly every element of character 
 his opposite. Whether, and to what extent, 
 his foul assassination — a deed destined, by 
 its atrocity, to eternal infamy and execration 
 — is attributable to a deliberately formed 
 hope that the change would be a boon to 
 the already prostrate foes of the Union, or
 
 is to be ascribed to the uucalculating 
 impulses of hatred and rage, must as yet be 
 left to conjecture. But one of its fruits 
 has been to force upon the anxious atteu- 
 tion of all those who justly estimate the 
 value of our j)olitical institutions, and feel 
 the importance of preserving them as they 
 were framed and handed down to us by the 
 fathers of the Eepublic, the interesting 
 problem I have mentioned. How it has 
 happened to be drawn into the vortex of 
 party warfare remains to be briefly narrated. 
 When the framers of the Constitution, 
 and the American people in adoi)ting it, 
 deemed it wise, for greater safety, to invest 
 the president Avith power, " on extraordi- 
 nary occasions," to convene Congress, the 
 wildest imagination could not have pre- 
 figured an occasion more extraordinary 
 than that of the condition of the country 
 at the accession of Mr. Johxsox. But, for
 
 9 
 
 reasons which I abstain from any attempt 
 to unfold, ho saw fit, like a daring mariner, 
 sailing' forth, without chart or compass, 
 upon an unknown sea, to assume the high 
 and perilous responsibility of dealing with 
 it alone ! The couutrj-, wearied with the 
 w^ar and rejoiced at its termination ; 
 already grown familiar, during its continu- 
 ance, with the unavoidable exercise by the 
 executive of unusual powers; sensible of 
 the novelty and i^erplexity of its situation ; 
 and half confounded by the audacity of the 
 undertaking, looked on in apprehensive 
 silence. Some alarm was created, at the 
 outset, by the frequency and vehemence 
 of the president's threats of punishment 
 against the now prostrate rebels; but all 
 fears on this score soon gave way to oth- 
 ers still more alarming, awakened by the 
 sudden and almost boundless display of 
 clemency on his part, and by the new-born
 
 10 
 
 and growing fav^or and confidence with 
 wbicli lie began to be nuiversally regarded 
 throughout the South, and by its friends 
 and advocates elsewhere. What has 
 since come to be familiarly called " The 
 President's Policy," was soon developed. 
 Throughout the loyal States there was an 
 earnest and universal desire to see the 
 insurgent States restored to their original 
 place in the glorious Union thej' had, 
 through four years of bloody strife, done 
 their utmost to destroy, as soon as it could 
 be done with safety. This was due to the 
 deluded millions of the South, and espe- 
 cially to those who, at the peril of life, had 
 remained loyal to the Union ; it was for 
 this that the war had been prosecuted at 
 a cost which baffles calculation, and tasks 
 Imagination. How, with a just regard to 
 the impressive lessons of the past, this 
 could be accomplished, was the great prob-
 
 11 
 
 lem to be solved. A more perplexing, a 
 more pregnant, a more momentous ques- 
 tion never taxed tlie ingenuity of man. It 
 was not a question to be decided by men 
 who were impatient for the restoration of 
 the seceded states, as a means, by their 
 cooperation, of regaining political ascend- 
 ency, regardless of all other consequences ; 
 nor by men who had devoted their worth- 
 less lives to partisan warfare, however 
 notorious they might have become for their 
 skill in devices to carry an election ; nor 
 by a man of undisciplined and ill-balanced 
 mind, constantly liable to be swayed by 
 passions strong by nature, and rendered 
 stronger by habitual indulgence, however 
 intelligent and patriotic. Involving the 
 peace, prosperity and happiness of count- 
 less millions of our race on this continent, 
 to say nothing of the inlluence of our 
 example in other countries, it demanded
 
 12 
 
 the deliberate exercise of all the intellect- 
 ual and moral faculties of the human 
 mind, enlightened by culture and reflec- 
 tion. To the mind of the president the 
 subject naturally presented itself under an 
 aspect far less imposing. Animated by 
 the prevailing desire for reconstruction ; 
 favored by the long recess of Congress; 
 coveting, perhaps, the glory of the achieve- 
 ment, and possibly not insensible to the 
 allurements of a less elevated ambition, he 
 resolved, like Alexander, to cut the Gor- 
 dian knot, and overlooking or disregarding 
 the lurking dangers of the enteri)rise, to 
 advance at once, by the shortest and 
 easiest road, to its accomplishment. He 
 accordingly proceeded without delay to 
 issue an order, bearing date the 29th of 
 April, for the restoration of commercial 
 intercourse with the people of the insurrec- 
 tionary States; and also, under the same
 
 13 
 
 (late, a proclamation of amnesty and par- 
 don to all ^vho Lad participated in tlie 
 rebellion, with tbe exception of certain 
 classes of persons, who, it was provided, 
 might nevertheless make special api)lica- 
 tion for i)ardon. 
 
 But the most significant and important of 
 the series of acts following each other, in 
 rapid succession, from the executive depart- 
 ment, were the measures resorted to for the 
 reestablishment of State governments in 
 subordination to the Constitution, in place 
 of the pseudo State organizations under 
 the Constitution of the Confederate States. 
 Assuming that this could not be done 
 without the aid and sanction of the national 
 government, the president seems to have had 
 as little doubt of his authority to do m hat- 
 ever the exigency of the case recpiired. lie 
 commenced the work by an order dated 
 May 9tli, "to reestablish the authority of
 
 14 
 
 the United States, and execute the laws 
 within the geographical limits known as the 
 State of Virginia." This order declares 
 void all acts of the insurrectionary govern- 
 ment within the designated limits, and 
 cautions all persons against acknowledging 
 its authority, under pain of being held to be 
 in rebellion against the United States ; and 
 after various directions to the heads of the 
 exective departments, and to the judge of 
 the district court, for the purpose of putting 
 into execution the laws of the United States, 
 it concludes as follows : "that to carry into 
 effect the guaranty of the Federal Constitu- 
 tion of a rei)ublicau form of State govern- 
 ment, and afford the advantage and security 
 of domestic laws, as well as to complete the 
 reestablishment of the authority of the laws 
 of the United States, and the full and com- 
 plete restoration of peace within the limits 
 aforesaid, Fkancis H. Pieepo^'t, Governor
 
 15 
 
 of the State of Yirgiuia, Mill be aided by 
 the Federal Government so far as maj' be 
 necessary in the lawful measures he may 
 take for the extension and administration 
 of the State government throughout the 
 geographical limits of said State." It will 
 be seen that, in relation to Virginia, the 
 President availed himself of a State organ- 
 ization alread}' in existence. It was the 
 work of a convention composed of loyalists 
 that assembled at Alexandria the year 
 before, April, 18G4. Its history, into which, 
 however, it is unnecessary to enter, would 
 show it to be entitled to little confidence ; 
 but it served, nevertheless, as a pretext 
 under presidential patronage for the elec- 
 tion of representatives and senators in the 
 thirty-ninth Congress, and thus unequivo- 
 cally to develop " the President's Policy." 
 
 In most of the other insurgent States no 
 such organizations existed, and the presi-
 
 16 
 
 dent lost no time in supplying the defi- 
 ciency. And, for this purpose, he resorted 
 to the expedient of appointing in each of 
 them an oflScer under the title of Provi- 
 sional Governor, charged with the duty of 
 immediately calling a convention composed 
 of delegates to be chosen by the loyal in- 
 habitants, for the i3urpose of altering or 
 amending the Constitution of the States. 
 These appointments were made by a series 
 of successive proclamations following each 
 other at short intervals, and are understood 
 to have been, mutatis mutandis, in the same 
 words. The first of the series was that re- 
 lating to North Carolina, bearing date the 
 29th of May, 1865, which, it will be remem- 
 bered, is also the date of the proclamation 
 of amnesty and pardon. It commences 
 with a i^reamble setting forth the views of 
 executive authority and duty entertained by 
 the President, and by which he professed to
 
 17 
 
 be governed in resorting to the step be was 
 taking. The preamble and part of the 
 first paragraph of the proclamation are in 
 the following words : 
 
 " WiiKiiKAs, The fourth section of the fourth 
 article of the Constitution of the United States 
 declares that the United States shall guarantee 
 to every State in the Union a republican form of 
 government, and shall protect each of tliem 
 against invasion and domestic violence; and 
 whereas the President of the United States is, by 
 tlie Constitution, made Commander-in-Chief of 
 the army and navy, as Avell as chief civil execu- 
 tive officer of the United States, and is bound by 
 solemn oath faithfully to execute the office of 
 President of the United States, and to take care 
 that the lues be faithfully execaied ;^ and Avhercas 
 the rebellion which has been waged by a ]>ortion 
 of the people of the United States against the 
 properly constituted authorities of the govern- 
 ment thereof, in the most violent and revolting 
 
 ' The words in italics are not in the oatb. They are used 
 clscwliore in the Constitution to dL-si^nate one of the duties 
 it enjoins upon the President. The italics here, and in all 
 8ubsc(iuent quotations from the jjresideut, are niv own.
 
 18 
 
 form, but whose organized and armed forces have 
 now been abnost entn-cly overcome, has, in its 
 revohitionary i)rogress, deprived the people of 
 the State of Nortli Carolina of all civil govern- 
 ment ; and Avhereas it becomes necessary and 
 proper to cany out and enforce the obligations 
 of the United States to the people of Xorth 
 Carolina, in securing them in the enjoyment of a 
 republican form of government : 
 
 " Now, therefore, in obedience to the high and 
 solemn duties imposed upon me by the Constitu- 
 tion of the United States, and for the purpose of 
 enabling tlie loyal people of said State to organize 
 a State government, Avhercby justice may be 
 established, domestic tranquillity insured, and 
 loyal citizens protected in all their rights of life, 
 liberty and property, I, Andrew Johnson, Presi- 
 dent of the United States, and Commander-in- 
 Chief of the army and navy of the United States, 
 do hereby appoint "Willia:m W. Holden Provi- 
 sional Governor of the State of North Carolina, 
 whose duty it shall be, at the earliest practicable 
 period, to prescribe such rules and regulations as 
 may be necessary and proper for convening a 
 convention, composed of delegates to be chosen 
 by that portion of the people of said State who
 
 19 
 
 arc loyal to the United States, ami no others, for 
 tIie'i)urpose of altering or amending the Constitu- 
 tion thereof; and witli authority to exercise, 
 within the limits of said State, all the powers 
 necessary and ])roper to enable such loyal people 
 of the State of Xorth Carolina to restore said 
 State to its constitutional relations to the Federal 
 Government, and to present such a repuhlican 
 form of State government as will entitle the 
 State to the guarantee of the United States 
 therefor, ami its peo})lc to protection Ijy the 
 United States against invasion, insurrection and 
 domestic violence : JProvided,''^ &c., designating 
 the qualifications of voters, and of the delegates 
 to be chosen to form a convention. Then follows 
 a direction to " the military commander of the 
 department, and all ollicers and persons in the 
 military and naval service," to "aid and assist 
 the said Provisional Governor in carrying into 
 effect this proclamation." 
 
 Like proclamatious. were issued for the 
 States of Mississippi, Georgia, Texas, Ala- 
 bama, South Carolina, and Florida. Ten- 
 nessee, Arkansas and Louisiana were omit-
 
 20 
 
 ted ; political organizations spontaneously 
 instituted, deemed by the President suffi- 
 cient for his purpose, already existing in 
 these States. In pursuance of the duty 
 enjoined upon the Provisional Governors, 
 conventions were held and Constitutions 
 framed, which, however, were in no one of 
 the States suhmitted for apiyroval to the peo- 
 2)le. In North Carolina the convention as- 
 sumed legislative functions, and among 
 other acts divided the State into congres- 
 sional districts and i^rovided for the elec- 
 tion of members of Congress, which result- 
 ed in the choice of persons who had acted 
 a conspicuous part in the civil or military 
 service of the conspirators against the re- 
 public. Two persons of the like stamp 
 were also appointed senators. A like re- 
 sult followed in the other vStates. 
 
 The Georgia convention was found to be 
 comx)osed exclusively of unpardoned rebels.
 
 21 
 
 but the untoward emergency was promptly 
 met by an executive telegram to " send 
 hither the list of members elected to the 
 convention, in order that pardons may be 
 issued." 
 
 These conventions, availing themselves of 
 the predicament in which the President had 
 so adventurously placed, and from which 
 they saw how difficult it must be to extri- 
 cate, himself, did not scruple to disregard 
 and thwart his known wishes and requests. 
 He had urged not only the repeal, but 
 the utter repudiation, ah initio, of the 
 ordinances of secession, and the formal 
 rejiudiation of the debts incurred in i^rose- 
 cuting the rebellion. The South Carolina 
 convention refused to comply with either 
 of these demands. The North Carolina 
 convention demanded the abrogation of 
 the oath prescribed l)y the proclamation 
 of amnesty and pardon. The Mississippi
 
 22 
 
 convention took it upon themselves to 
 reject the pending- amendment to the Con- 
 stitution proposed to the States at the last 
 preceding session of congress, to complete 
 and perfect the great work of emanci- 
 pation, commenced by the memorable 
 military proclamation of the murdered 
 President, by the final abolition of human 
 bondage throughout the Union. In all of 
 the conventions, except that of Xorth 
 Carolina, for the ill-concealed i)urpose of 
 securing a pretext for a claim upon the 
 nation to compensate ffiem for their eman- 
 cipated slaves, slavery was declared to 
 have been '•^destroyed l)i/ militanj ])ower." 
 Had the President been far less self-confi- 
 dent and sanguine, he must have seen in 
 these discouraging and grotesque results 
 the signal failure of his scheme; and had 
 he been an impartial observer of their 
 concomitant incidents, he could not have
 
 23 
 
 failed to see that it had proved worse than 
 a failure. 
 
 The final extinction of the rebellion, and 
 the terrible calamities it had brought upon 
 its votaries, had served to repress the arro- 
 gant and presumptuous spirit in which it 
 had its origin, and had found its main 
 aliment, and to inspire a hope in the minds 
 of all hunjane and patriotic men in the 
 loyal States of a sincere, if not cheerful, 
 acquiescence on the part of the late 
 insurgents, in such reasonable terms of 
 restoration as the outraged nation, through 
 its proper representatives, might see fit to 
 require. But emboldened by the encour- 
 agement held out by the "President's 
 Policy," and its eager and ostentatious 
 approval b}" their numerous partisans in 
 the loyal States, they soon began to dis- 
 play a spirit of insubordination and hos- 
 tility to the Union, which, unhappily, seem
 
 24 
 
 ever since to have been on the increase, 
 and which, extending to the lowest grades 
 of humanity, has naturally led to the per- 
 petration of many revolting atrocities. 
 
 After a constrained recess of nine 
 months, but before these incidental con- 
 sequences of the presidential policy were 
 fully developed, and while the country 
 was still but imperfectly informed con- 
 cerning its details, congress assembled in 
 obedience to the Constitution. 
 
 As the president, to the amazement of 
 the whole civilized world, yielding himself 
 np to the dominion of passion, has seen 
 fit, in a long series of violent and most 
 unseemly i)ublic harangues, commencing 
 with that addressed to a mob assembled 
 in front of the presidential mansion, on 
 the birthday of Washington, to denounce 
 this Congress as usurpers and imblic 
 enemies, to deny their authority and
 
 25 
 
 encourage disobedience to tlieir enact- 
 ments, it may not l)e amiss to pause 
 liere a moment, for the purpose of 
 exhibiting tliis unprecedented conduct 
 of the chief magistrate of the nation 
 in its true light. It ^vas against the 
 large rei)ublican majorities of the two 
 houses that his denunciations were exclu- 
 sivel}^ hurled. These gentlemen were 
 elected by the votes of the same great 
 patriotic party to which Mr. Joiixsox 
 owed his own elevation. There had been 
 no manifestation of want of confidence 
 or dissatisfaction on its part toward its 
 chosen representatives, while there Mere 
 abundant indications to the contrary. The 
 vituperations heaped upon their heads fell, 
 therefore, also upon the heads of those 
 citizens by whose votes both they and 
 the president himself had been clothed 
 
 with power. No congress, composed of 
 3
 
 26 
 
 men more distingiiislied for ability, prob- 
 ity, and noble and generous sentiments, 
 and patriotic devotion to the present and 
 future welfare of the country, had ever 
 assembled within the walls of the capitol. 
 That it comprised many men who, in all 
 the attributes of character that confer a 
 title to x>ublic confidence and respect, 
 were Mr. Johnson's superiors, no intelli- 
 gent and candid man will deny. Such 
 were the men whom he has not scrupled 
 thus publicl}^ and wantonly to arraign, 
 insult and vilify. 
 
 Eeverting now, from this brief digression, 
 to the meeting of Congress, I may safely 
 assume that the republican members, dur- 
 ing the long recess, i)rofoundly sensible 
 of the weighty responsibility which must 
 eventually rest upon their shoulders, were 
 watching the proceedings of the President 
 with lively interest and anxious concern.
 
 27 
 
 It was impossible to approve, but they 
 "were inclined to be hopeful, and were ex- 
 tremely averse to any controversy with 
 him, and they were determined, if possible, 
 to win him over to cooperation with them- 
 selves, in a safer and wiser policy. But, 
 on the other hand, the}' were alive to the 
 importance of the trust reposed in them, 
 and cherished no thought of shirking- the 
 l)erplexing duties it imposed. Supinely to 
 fold their arms and leave the president 
 to work on, without scrutiny or show of 
 supervision, would have been not only 
 to sleep upon their post in the hour of 
 danger, but to abdicate their place in the 
 government, and to convert it into an 
 autocracy. Such was the temper in which 
 congress assembled. It was the duty of 
 the president, enjoined by the Constitu- 
 tion, to inform them of the condition of 
 the country, and to recommend to their
 
 28 
 
 consideration such measures as lie deemed 
 necessary and expedient. His annual mes- 
 sage was accordingly listened to with lively 
 interest. Touching the great i)roblem of 
 reconstruction, he informed congress that, 
 upon his accession to the presidency, the 
 rebellion having already been effectually 
 suppressed in all the States where it had 
 raged, the first question that presented 
 itself for decision was, whether the territory 
 within the limits of those States " should 
 be held as conquered territory, under 
 authoriUj emanating from the President as 
 the head of the armij ;^^ and after assigning 
 the reasons which constrained him to reject 
 that alternative, he had, "gradually and 
 quietly, and by almost imperceptible steps, 
 sought to restore the rightful energj- of the 
 general government and of the States." 
 " To that end," he adds, " Provisional Gov- 
 ernors have been appointed for the States,
 
 29 
 
 conventious called, governors elected, legis- 
 latures assembled, and senators and repre- 
 sentatives chosen to the Congress of the 
 United States. At the same time the courts 
 of the United States, as far as could be 
 done, have been reopened, so that the laws 
 of the United States may be enforced 
 through their agency." ***** uj 
 know very well," he observes, " that this 
 policy is attended with some risk ; that for 
 its success it requires at least the acqui- 
 escence of the States which it concerns; 
 that it implies an invitation to these States, 
 by renewing their allegiance to the United 
 States, to resume their functions as States 
 in tlic Union. But it is a risk that must bo 
 taken ; in the choice of dilTiculties it is the 
 smallest risk ; and to diminish, and, if 
 possil)lc, to remove all danger, I have 
 felt it incumbent on nie to assert ono 
 
 other power of the general government — 
 3*
 
 30 
 
 the power of pardon." He further informed 
 Congress, that " in order to restore the 
 constitutional relations of States, he had 
 invited them to particii^ate in the high 
 office of amending the Constitution, by rati- 
 fying the amendment to abolish slavery;" 
 and he adds, that "it is not too much 
 to ask of the States which are now re- 
 suming their ]ilaces in the family of the 
 Union, to give this i)ledge of perpetual 
 loyalty and peace." Then follows this pas- 
 sage : 
 
 "The amendment to the Constitution 
 being adopted, it would remain for the States 
 whose powers have long been in abeyance, 
 to resume their places in the two branches 
 of the national legislature, and thereby 
 complete the work of restoration." And 
 then, with what may appear to the reader 
 a lofty consciousness of courtly condescen- 
 sion, he adds: " Here it is for you, fellow-
 
 31 
 
 citizens of the Senate, and for ijou, fel- 
 low-citizens of the House of llepresenta- 
 tives, to judge, each for yourselves, of the 
 elections, returns, and qualifications of your 
 own members." The i)Ower, thus conceded 
 to the tAvo houses, the reader will observe, 
 is, in the same terms, expressly conferred 
 upon them by the Constitution. This refer- 
 ence to it was doubtless designed to smooth 
 the way to the speedy admission of the 
 worthy persons who, as we have seen, had 
 been chosen to represent the people of the 
 States which, in the language of the mes- 
 sage, were then " resuming their place in 
 the family of the Union;" and, witli the 
 exception of the removal of a formal impedi- 
 ment to the holding of a circuit court in 
 Virginia, in order, among other things, that 
 " the truth " might be " clearly established 
 and aflirmed that treason is a crime," and 
 " that traitors should be punished and the
 
 32 
 
 offense made infamous," this is the only 
 legislative power which, in this unprece- 
 dented and most momentous emergency, 
 the president saw fit to invoke ! And even 
 this power, when it came to be exercised by 
 congress, he insisted, ought to be confined 
 to limits so narrow as to render it virtually 
 nugatory, for he denied that it afforded any 
 warrant for inquiry into the political condi- 
 tion of the insurgent States, for the purpose 
 of ascertaining whether they were entitled 
 to be represented in Congress, or even 
 whether the elections that had taken place 
 in them were valid. 
 
 It soon became evident that a great 
 majority of the two houses were irrecon 
 cilably averse to the President's scheme. 
 Their objections to it were numerous and 
 insurmountable. They believed that in 
 concocting and adopting it, he had assum- 
 ed to play a part that did not pertain to
 
 33 
 
 liis office, that his iutcrmcddliiig had been 
 without authority, and that the anomalous 
 proceedings he had set on foot in the States 
 were liot binding on tlieir inhabitants ; 
 that even if they were at liberty to over- 
 look these grave objections, it would bo 
 premature, and to the last degree hazard- 
 ous and unwise, at once to admit the per- 
 sons who had been chosen in the States so 
 lately in oiien insurrection against the gov- 
 ernment, to seats in congress; that to allow 
 these States to resume their original i)lace 
 in the Union, without additional safeguards 
 against intolerable evils likely otherwise to 
 ensue, would be heedlessly and unnecessa- 
 rily to jeopard all that had been gained 
 by the suppression of the rebellion ; to in- 
 vite new disasters ; and, in short, wantonly 
 and wickedly to sport with the destinies of 
 the nation. Congress according!}' determ- 
 ined to institute an original and search-
 
 34 
 
 ing investigation comprising all the ele- 
 ments of the new and perplexing problem, 
 which it was their unavoidable duty to 
 grapple with and to solve. A joint com- 
 mittee was therefore appointed " to inquire 
 into the condition of the States which 
 formed the so-called confederate States of 
 America, and report whether they, or any 
 of them, are entitled to be represented in 
 either house of congress." With unsur- 
 passed industry and impartiality this com- 
 mittee collected a vast mass of information 
 drawn from numberless witnesses, among 
 whom were several who had played a very 
 cons]3icuous x)art among the chief actors in 
 the late rebellion. 
 
 "The policy of congress" was gradually 
 matured and developed. A bill was passed 
 by the two houses extending, and other- 
 wise modifying, the act passed at the last 
 preceding session for the relief of freed-
 
 35 
 
 men and refugees. It was returued by 
 tlic ppesideut on the IDth of February, 
 without his approval, accompanied by a 
 message, in Avhich he availed himself of 
 the opportunity to maintain and fortify 
 his scheme of reconstruction, and in which, 
 referring to the termination of the civil 
 war, he peremptorily denied the right of 
 congress " to shut out, in time of peace, 
 any State from the representation to which 
 it is entitled by the constitution." The 
 bill was again passed by the House of 
 Representatives, notwithstanding the Presi- 
 dent's objections, by the votes of more 
 than three-fourths of the members present ; 
 but failing to receive the requisite vote in 
 the Senate, it failed to become a law. 
 Another bill was passd, entitled " An act 
 to protect all persons in the United States 
 in their civil rights, and to furnish the 
 means of their vindication." This bill met
 
 36 
 
 •\Yitli a like reception at tlie hands of the 
 president, but became a law by the votes 
 of two-thirds of the members of each house, 
 notwithstanding- his objections. The joint 
 committee at length made an elaborate and 
 very able report, in which, without imiiugn- 
 ing the president's motives, they point- 
 edly condemned his proceedings as unwise, 
 and as unwarranted by the constitution 
 or the laws of the Union. The report 
 was accompanied by a proposed amend- 
 ment to the constitution, which, after an 
 exhausting discussion in both houses, w\as 
 adopted, and submitted to the States for 
 ratification. It embodies the mildest terms 
 and conditions on which, in the opin- 
 ion of congress, it was either just or 
 safe to reinvest the seceding States with 
 their lost rights and privileges, as consti- 
 tuent members of the Union. It declares, 
 in substance, that the duskj' millions
 
 37 
 
 who bad been our allies in tbe war, 
 wbo bad by our act been liberated from 
 bondage, and to wbom tbe foitb of tbe 
 nation stood pledged for tbe full enjoyment 
 of tbeir freedom, bad a just claim to tbe 
 formal and autboritative acknowledgment 
 of tbeir citizensbip, and to security against 
 bostile and oppressive State legislation ; 
 tbat in tbose States in wbicb tbeir rigbt to 
 vote, in common witli men of tbe wbite 
 races, sbould be witbbeld from tliem, tbey 
 sball not be counted in tbe apportionment 
 of representatives in congress : tbat no 
 person wbo, as a member of congress, or of 
 a State legislature, or as an officer of tbe 
 United States, or as an executive or judicial 
 officer of a State, after baving taken tbe 
 oatb to support tbe constitution of tbe 
 United States, sball bave engaged in insur- 
 rection or rebellion against tbe same, sball 
 
 be a senator, or representative in congress, 
 4
 
 38 
 
 or elector of President and Vice-President, 
 or hold any office, civil or military, under 
 the United States, or any State : that the 
 validity of the public debt of the United 
 States shall not be questioned : that neither 
 the United States nor any State shall as- 
 sume or pay any debt or obligation incurred 
 in aid of insurrection or rebellion against 
 the United States, or any claim for the loss 
 or emancipation of slaves ; but that all such 
 debts and obligations shall be held illegal 
 and void: and lastly, that congress shall 
 have power to enforce these provisions by 
 appropriate legislation. 
 
 Three of the members of the committee 
 withheld their assent from the report, and 
 made a report declaring their approbation 
 of the President's iiroceedings, and citing 
 two judicial decisions : one by the district 
 judge of Massachusetts, and the other by 
 one of the justices of the supreme coiu^t.
 
 39 
 
 in support of tliem. The first of these de- 
 cisious appears to me entirely sound, ^vitli 
 the exception of one of its propositions, 
 Avhich seems, at least, to require qualifica- 
 tion. The observation to which I refer is 
 this : " AVhen the United States take pos- 
 session of a rebel district, they merely 
 vindicate their preexisting title. Under 
 despotic governments, confiscation may be 
 unlimited, but under our government the 
 right of sovereignty over any portion of a 
 State is given and limited by the Constitu- 
 tion, and icill he the same after the war as it 
 was 'before.'''' It is to this last clause that I 
 take exception. That the right of sov- 
 ereignty' will eventually, upon final adjust- 
 ment, become the same as it was before, is 
 indisputable ; and this, I suspect, is all that 
 this learned and able judge designed to be 
 understood to say : l)ut if the i)roposition is 
 to be considered as implying a denial to the
 
 40 
 
 government of the right to prescribe terms, 
 as conditions precedent to its recognition of 
 this change — tliis return to the status ante 
 'bellum — I cannot assent to it. The other 
 opinion, which seems to the dissentients 
 " evidently carefully prepared," though 
 sadly wanting in perspicuity^ appears, 
 however, to be explicit upon this j)oiut, 
 and upon some others also, concerning 
 which the majority of the committee 
 arrived at opposite conclusions. 
 
 Eeferring to " the provisional govern- 
 ment " that had been " appointed " by the 
 President in South Carolina, his honor is 
 represented to have said: "In operation 
 [virtue?] of this appointment, a new Con- 
 stitution had been formed, a governor and 
 legislature elected under it, and the State 
 ])lace(l in the full enjoyment, or entitled to the 
 full enjoyment, of all her constitutional rights 
 and 2)rivileges. The constitutional laws of
 
 41 
 
 the Union were thereby enjoyed and obeyed, 
 .and were as authoritative and binding over 
 the people of the State as in any other 
 portion of the country. Indeed, the moment 
 the rebellion was suppressed, and the govern- 
 ment growing out of it subverted, the 
 ancient laivs resumed their accustomed sway, 
 subject only to the new reorganization hy the 
 appointment of the proper officer to give them 
 operation and effect P^ 
 
 Considering that tlie " ancient " constitu- 
 tion of South Carolina, and all its laws 
 having any reference to the ancient Union, 
 had been consigned to the flames, and that 
 the provisional government was not insti- 
 tuted until many months after the rebellion 
 was suppressed, the " operation " ascribed 
 to it by his Honor, in this pheuix-like 
 resurrection, must, to ordinary minds, seem 
 magical ; but hardly more so than the 
 
 authority ho ascribes to the President, in 
 4*
 
 42 
 
 anotlicr part of his opiiiioD, as Com- 
 mander-in-Chief of the army and navy in 
 time of peace. 
 
 The amendments proposed by the com- 
 mittee meeting with open and determined 
 hostility from the President and his parti- 
 sans, who still adhered, with unyielding 
 pertinacity, to his plan of immediate and 
 unconditional admission, it became the 
 rallying-point of the republican party at 
 the late elections, and has thus received the 
 emphatic approval of the people. 
 
 But the supporters of the president, 
 comprising the whole democratic party, 
 which, with great unanimity, had gone 
 over to his support, and a comparatively 
 small number of deserters from the Eepub- 
 lican ranks, constituted a very large mi- 
 nority, who not only condemned the pro- 
 posed amendment, but unanimously and
 
 43 
 
 strennousl}^ defended the president, and 
 applauded all that he had done. 
 
 Thus it was that the momentous question 
 of executive power became involved in the 
 mazes of party strife; and here I gladly 
 terminate this introductory narrative, which, 
 summary as it is, I fear may prove tedious 
 to the reader. 
 
 The Constitution of the United States is 
 obviously, and doubtless was intentionally, 
 modeled after that of our English ances- 
 tors. It accordingly distributes the iiowers 
 of government among three distinct de- 
 partments. Upon this vital i)oint there 
 does not appear to have been any divers- 
 ity of opinion in the convention by which 
 ,it was framed. Everything else elicited 
 coutroversv and earnest discussion ; and
 
 44 
 
 among the numerous grave questions which 
 presented themselves for decision, none 
 was found more perplexing than the 
 organization and powers of the executive 
 department. The lessons of history, col- 
 lectivel}^ were discouraging; and except 
 by the impressive evidence they afforded 
 of the extreme delicacy and difficulty 
 of the task, and of the necessity of a 
 correspondent degree of circumspection, the 
 light they shed upon the subject was dim. 
 It was finally decided that " the executive 
 power" should be "vested in a President 
 of the United States of America," who 
 should " hold his office during the term of 
 four years." This is declared by the first 
 section of the second article of the consti- 
 tution, and after prescribing the mode of 
 election, the qualifications as to citizenship, 
 age, and length of residence, requisite to 
 eligibility, and regulating the succession
 
 45 
 
 ill case of the removal, deatli, resignation 
 or iuabilty; and the compensation of the 
 I)resident; tlie section concludes hy pre- 
 scribing the form of an oath or affirmation 
 which he shall be required to take before 
 he enters upon the execution of his office, 
 in the following words: "I do solemnly 
 swear (or affirm) that I will faithfully exe- 
 cute the office of president of the United 
 States, and will, to the best of mj' ability, 
 preserve, protect and defend the Constitu- 
 tion of the United States." 
 
 It was decided, also, that the president 
 should " be_jDommander-iii-Chief of the 
 army and navy of the United States, and 
 of the militia of the several States, when 
 called into the actual service of the United 
 States." This is declared l)y the first sub- 
 division of the second section of the same 
 article, which then proceeds specifically to 
 invest the president with certain powers,
 
 4G 
 
 and to charge liim with certain duties, as 
 follows: "He may require the opinion, in 
 writing, of the principal oflScer in each of 
 the executive departments, upon any sub- 
 Sz ject relating to the duties of their respect- 
 ^^ ive offices ; and he shall have_ power to 
 grant reprieves and iDardons for offenses 
 against the United States, except in^cases 
 of impeachment. 
 
 "2. He shall have power, by and with the 
 advice and consent of the senate, to make 
 n^ treaties, provided two-thirds of the senators 
 present concur; and he shall nominate, and 
 by and with the advice and consent of the 
 senate, shall appoint embassadors, other 
 j)ublic ministers and consuls, judges of_the_ 
 Supreme Court, and all other oflScers of 
 the United States whose appointment is not 
 otherwise herein provided for, and which 
 shall be established by law. But congress 
 may, by law, vest the appointment of such
 
 47 
 
 inferior ofBcers as they think proper in the 
 president alone, in the courts of kiw or in 
 the heads of departments. 
 
 *' 3. The president shall have power to fill 
 ui) all vacancies that may happen dm'ing- 
 the recess of the senate, by grantin<»- com- 
 missions, which shall expire at the end of 
 their next session." 
 
 The third section contains and concludes 
 this enumeration as follows: "He shall from 
 time to time give to the congress such 
 information of the state of the Union, and 
 recommend to their consideration such 
 measures as he shall judge necessary and 
 expedient. He may, on extraordinary 
 occasions, convene both houses, or either 
 of them ; and in case of disagreement 
 between them, Mith respect to the time 
 of adjournment, he may adjourn them to 
 such time as he shall tliink proper. lie 
 shall take care that the laws be faithfully
 
 48 
 
 executed, and shall commission all the 
 officers of the United States." 
 
 The fourth section ordains that " the 
 president, vice-president, and all civil offi- 
 cers of the United States, shall be removed 
 from office on impeachment for or on con- 
 viction of treason, bribery, or other high 
 crimes and misdemeanors." 
 
 By the first article, organizing the legis- 
 lative department, the ijresident is vested 
 with a qualified negative upon all bills, and 
 all orders, resolutions or votes (except on 
 a question of adjournment) requiring the 
 concurrence of the two houses. The nature 
 and limits of this power are too well 
 known, under the name of the veto power, 
 to require further definition. 
 
 Such is the organization of the executive 
 department of the government as estab- 
 lished by the organic law. I trust the 
 reader will discern in the sequel, a suffi-
 
 49 
 
 cieiit apology for my literal transcription 
 of tlie whole of this part of it, however 
 familiar to him it may have already been. 
 
 And now, what I desire in the first 
 place to bring- to his attention, is the 
 discrimination made in terms, and so studi- 
 ously adhered to throughout, as altogether 
 to exclude the supposition of accident 
 between the Powers and the Duties of the 
 president. I am not, I frankly acknowl- 
 edge, aware that this distinction has been 
 noticed by any other commentator upon 
 the constitution, Avhether in writing or in 
 oral debate ; but I deem it so important 
 that, at the expense of some repetition, 
 and at the hazard of the imputation of 
 arrogance, I will endeavor, not only to 
 
 establish the truth of my assertion that it is 
 5
 
 50 
 
 distinctly recognized and unequivocally ex- 
 I)ressed in the constitution, but to demon- 
 strate its propriety. Let us revert, then, to 
 the article in question, as given above. It 
 is unnecessary to observe the order of the 
 rather illogical arrangement of the several 
 clauses, and it will be conducive to perspi- 
 cuity to begin with the second subdivision 
 of the second section : " He sliaTl have power , 
 by and with the advice and consent of the 
 senate, to make treaties, provided," «S:c. ; 
 and then, separated only by a semicolon, 
 follows this clause : " and he sliall nomi- 
 nate, and by and with the advice and 
 consent of the senate, sludl appoint," &c. 
 Why this change of phraseology in one 
 and the same sentence ? Evidently, because 
 the negotiation of treaties was to be fortui- 
 tous and discretionary ; while api)ointments 
 to office were matter of certain and absolute 
 necessity. While, therefore, the language
 
 51 
 
 of the lirst clause is, so to speak, merely 
 imUntial, that of the second was, unavoid- 
 ably, mandatory ; for so it must, of necessity, 
 have been interpreted, even if, like that of 
 the preceding clause, it had, in form, been 
 permissive, for it is only by means of its 
 official organs that a government can be 
 maintained. Let us now attend to the 
 language of the provision for the filling of 
 vacancies. It is the 3d subdivision of the 
 same section. Here we find a repetition of 
 the words employed in conferring the power 
 to make treaties : " The president shall 
 have i)ower to fill up all vacancies," &c. 
 
 The language is permissive, because it 
 was foreseen that vacancies were likely, 
 from time to time, to occur, which it would 
 be more discreet to leave unfilled until the 
 next session of the senate. The session 
 might be very near at hand ; the office might 
 be one of great importance, and might, nev-
 
 52 
 
 ertheless, be temporarily left vacant without 
 serious detriment to the public interests ; 
 or, it might arise from the death of a minis- 
 ter in a distant country, to which it would 
 be unwise immediately to dispatch a suc- 
 cessor, who might prove unacceptable to 
 the senate. But in addition to the nomi- 
 nation by the president, and the consent 
 of the senate, another act is requisite to 
 render the appointment of officers com- 
 plete. They could not safely enter upon 
 the execution of their official duties with- 
 out evidence of their authority, and it was 
 necessary, therefore, to provide for the 
 issuing of commissions ; and, this being 
 matter of necessity, the language of com- 
 mand is accordingly again resorted to. 
 The i^resident '* shall commission all offi- 
 cers of the United States," is the phrase- 
 ology emi^loyed. As with respect to nomi- 
 nations to the senate, so here, it was
 
 53 
 
 not suflQcieut to empoiver the president 
 to commission his appointees, it was neces- 
 sary to require this of him as a duty, 
 for the fulfillment of which he would 
 be responsible. Again, it is ordained that 
 " the president may require the opinion, in 
 writing, of the principal officer," &c. ; that 
 "he shal l have potccr to ^rant repriev es 
 a jid pardo jxsj and that he may, on extra- 
 ordinary occasions, convene both houses 
 or either of them ; and that, in a certain 
 improbable contingency, he " may adjourn 
 them." In each of these instances the 
 reason for using the phraseology adopted, 
 is too evident to require elucidation. But 
 then, upon the other hand, it is ordained 
 that the president " shall, from time to 
 time, give to congress information of the 
 state of the Union, and sliall recommend 
 to their consideration such measures as 
 he shall judge necessary and expedient;"
 
 54 
 
 that "he shall receive embassadors and 
 other public ministers ;" (tliat is to say, 
 unless he shall, for some special reason, 
 be of opinion that the minister sent 
 ought not to be received at all ;) and 
 lastly, *' that he shall take care that the 
 laws be faithfully executed." The reason, 
 in all these cases, for emjjloying this 
 mandatory form of expression, is no less 
 obvious. These were, in their nature, 
 absolute duties, depending upon no con- 
 tingencies, and, as to their performance or 
 omission, subject to no discretion. 
 
 Assuming, as the result of this analysis, 
 as I hope I may do, that I have established 
 the fact, and shown the propriety of the 
 distinction on which I insist, I have, in the 
 next place, to observe that, with the excep- 
 tion of the military authority conferred 
 upon the president by constituting him
 
 55 
 
 cominauder-iu-cliief, not one of the dcsig 
 nated powers, unless, perbaps, the power 
 of appointment, is in its nature executive; 
 and that, with tbe exception of the power 
 of convening congress, the comparatively 
 unimportant one of requiring the opinions 
 in writing, of the heads of departments, 
 and the veto, all of them might, without 
 inconsistency, have been lodged elsewhere. 
 And hence arises the important question 
 whether the designation of the president 
 as the depository of " the executive power " 
 is to be regarded as, in itself, a source of 
 power. 
 
 I have a vague recollection of a disserta- 
 tion in some form, which I cannot recall, on 
 the powers of the executive, during the ad- 
 ministration of iiresident Jackson, in which 
 powers were claimed for him as deriv- 
 able from this source. But I have wholly 
 forgotten the argument in support of this
 
 5G 
 
 claim. And, with this exception, if it be 
 one, I have met with no direct discussion on 
 the subject, except in a speech of Mr. Web- 
 ster in the senate, to which I design more 
 particularly to refer, in the sequel, in treat- 
 ing of the power of removal. He denied 
 to the president, without qualification, any- 
 other powers except those specified in the 
 constitution. His designation as the depos- 
 itary of the executive power, he insisted, is 
 only equivalent, in import, to the designa- 
 tion of congress as the depository of the 
 legislative power, and confers no power at 
 all. It is abundantly noteworthy also, that, 
 as far as I recollect, these specified powers 
 are the only ones asserted and expounded 
 as belonging to the executive department, 
 by the writers of the Federalist, whose well- 
 known object it was to induce the people of 
 the several States to accept the constitution 
 as it came from the hands of its framers,
 
 57 
 
 and, to that end, to make it well under- 
 stood. On the other hand, in the animated 
 and elaborate discussion which took place 
 in the first congress, in 1789, on the subject 
 of the power of removal from office, to 
 which I shall have occasion also again 
 to advert, it was argued that the power 
 of removal was vested, by implication, in 
 the i)resident, as a part of the executive 
 power; and a majority of the house of 
 representatives, including Mr. Madisox, 
 appear to have concurred in that construc- 
 tion. This construction has, moreover, the 
 weighty support of that learned and able 
 jurist, the late Chancellor Kent, in treating 
 of the power of removal in his Commenta- 
 ries. With this exception, however, both 
 he and the late Mr. Justice Story follow the 
 example of the Fedo-alist, in limiting their 
 exposition of the powers of the executive to 
 those specified in the Constitution, as above
 
 58 
 
 enumerated. And in this predicament, as 
 far as 1 am aware, this great question 
 now stands, and is accordingly open to the 
 freest discussion. 
 
 I have already said that the distinction 
 so clearly recognized, and so carefully 
 adhered to, in the Constitution, between 
 the powers and duties of the president, is 
 left unnoticed by all these writers : but it is 
 hardly necessary to add, that in treating 
 of the powers of the executive, they have 
 by no means limited themselves to those 
 which I have classified as such, to the ex- 
 clusion of the powers implied in the duties I 
 have designated under that name. On the 
 contrary, they treat of them indiscriminate- 
 ly, and thus, illogically and erroneously, as 
 I think, confound them. It cannot be rea- 
 sonably supposed that the primary object of 
 the founders of the government, in specifi- 
 cally and peremptorily enjoining duties
 
 59 
 
 upon tlie president, was to confer tbo 
 powers requisite to tlieir performance; nor 
 is it probable tbat tbey designed to leave 
 these powers to rest upon the ground of in- 
 ference alone. If not, then we are to look 
 elsewhere for their source. And where else 
 can it be found except in the declaration 
 at the outset, that the executive power 
 should be vested in the president ? The 
 theory that this was, in fact, regarded as 
 the source of his executive authority, serves 
 at once to explain the patent and exact 
 discrimination between powers and duties, 
 and to vindicate its propriety and logical 
 necessitj" ; and, as far as I am able to 
 discern, this is the only explanation it 
 admits of. It serves also, I think, to sim- 
 plify and facilitate the interpretation of 
 this part of the constitution. 
 
 The most comprehensive and important 
 of all the duties enjoined upon the i)resi-
 
 GO 
 
 dent is that of seeiug that the laws be 
 faitlifully executed. It strictly i)ertains to 
 the executive department, and constitutes 
 its paramount if not sole distinctive civil 
 function. But is the president to look to 
 this injunction as the source of his author- 
 ity to perform the dutj^ ? Let us see 
 whether it may not more reasonably be 
 deduced from the allotment to him of 
 the executive power. There certainl}' is 
 nothing in the words of the injunction in- 
 consistent with this interi)retation ; but, on 
 the contrary, they appear to me to favor it. 
 The president "is to take care that the 
 laws be faithfully executed." I see nothing 
 fanciful in the supposition that this lan- 
 guage has reference to the power of ap- 
 pointment, and that it was suggested by the 
 disposition of that power, which, as we 
 have seen, is in effect confided to the pres- 
 ident. Seeing that, in exercising his exec-
 
 Gl 
 
 utive functions, be must of necessity act 
 chiefly tbrougli the instrumentality of sub- 
 ordinate ofRcers of bis own appointment, it 
 was deemed fit express!}' to enjoin it upon 
 him to be careful in the selection of these 
 oflicers, and to see that they were faithful 
 in the discbarge of their duties. The oath, 
 couched in imposing language, chosen, 
 doubtless, for the purpose of rendering it 
 the more solemn and impressive, requires 
 a similar interpretation. 
 
 In support of this construction, I think I 
 may fairly invoke the authority of the first 
 congress, and of Kent, in virtue of the 
 decision of the former, concurred in by the 
 latter, that the power of removal from oflice, 
 concerning which, as we have seen, the 
 constitution is silent, being, in its na^n'O, 
 an executive power, is to be considered as 
 one of the powers confided to the president 
 
 as the depository of the executive i)ower — 
 6
 
 62 
 
 the question now being, not as to the extent, 
 but as to tlie existence of such i)owers. But 
 if one power be traceable to that source, it 
 must comprehend all kindred i^owers. The 
 omission of any formal discussion of it by 
 the Federalist, and by succeeding comment- 
 ators, is not inconsistent with the supposi- 
 tion of their belief in it. It is not to be 
 supposed that the subject never occupied 
 their thoughts, and it may reasonably be 
 concluded that if they had been of opinion 
 that the president was possessed of no such 
 powers, they would have denied their exist- 
 ence. But other reasons may be assigned 
 for their silence. The American people, by 
 their acquaintance with the English consti- 
 tution, and with the organization and 
 operation of the State governments, all of 
 which comprised distinct executive as well 
 as legislative departments, had, before the 
 formation of the constitution, already be-
 
 63 
 
 come familiar uitli the distinctive nature of 
 executive power. It was not legislative, 
 nor was it judicial. Its function was, not 
 to make or expound the laws, but to execute 
 them. 
 
 " The executive," wrote Eogek Sherman, 
 from the convention of which he was a 
 member, in answer to a friendly letter from 
 the elder Adams objecting to the participa- 
 tion of the senate in the power of appoint- 
 ment to office, " the executive is not to 
 execute its own will, but the Avill of the 
 legislature declared by the laws." ' 
 
 This was a fundamental principle of 
 the English constitution, as well as of the 
 American constitution. It was by the 
 persistent assumption of powers without 
 warrant of law that Charles I. lost his 
 head, and James II. Mas driven from his 
 
 ' Pitkin's History, vol. 2, p. 289.
 
 64 
 
 throne. " The prhicipal duty of the king," 
 says Sir William Blackstone, "is to 
 govern his people according to law." "The 
 king," said Bracton (who wrote under the 
 reign of Henry III.), " hath also a superior, 
 namely, God, and also the law ;" and in his 
 coronation oath, the King of Great Britain 
 solemnly promises to govern the people of 
 his kingdom " according to the statutes in 
 parliament agreed on, and the laws and 
 customs of the same." 
 
 The subordination of the executive to 
 the legislative department of the govern- 
 ment, then, is a fundamental and indis- 
 putable principle. A systematic and x)er- 
 sistent disregard of it by the executive 
 would inevitably lead to intolerable confu- 
 sion and anarchy, and, if patiently sub- 
 mitted to, must soon end in despotism. 
 What, at anj time, the president is bound 
 or permitted to do, in execution of his
 
 65 
 
 executive powers, depends upon the exist- 
 ing laws. To liini, not less than to tlie 
 private citizen, the law is "a rule of con-' 
 duct prescribed by the sui)reme powcir of 
 the state," to which it is his duty to con- 
 form. He is not to take it upon himself to 
 supersede the law, or to sui)ply its delicien- 
 cies by devices of his own invention, even 
 for the accomplishment of legitimate ob- 
 jects of a nature requiring the agency of 
 the executive ; and still more censurable 
 would it be for him to enter upon the i)ur- 
 suit of objects not committed to his charge 
 by the Constitution or the laws. If, in his 
 opinion, existing laws require amendment, 
 or new laws are needed, he is bound to 
 invoke the interposition of the legislature, 
 instead of usurping its powers. 
 
 Ul)on this theory congress have acted 
 ever since the organization of the govern- 
 ment. Among the almost innumerable
 
 C6 
 
 statutes that, during tbe seventy-seven 
 intervening years, have been enacted, there 
 are many which, in phraseology, sometimes 
 permissive, and sometimes mandatory, call 
 for executive agency. Sometimes the lan- 
 guage is, " the president ?««?/," or, " it shall 
 he Imvfiil for the president ;" and sometimes 
 it is, " it shall he the duty of the president," 
 or " the president shall.'' These statutes, 
 it will be noticed, also, severally clothe the 
 president with new powers, and impose 
 upon him new duties; and this, of itself, 
 moreover, serves to show how vain, as well 
 as useless, it would have been to attempt 
 any enumeration of the acts which, as the 
 chief executive magistrate, the president 
 has authority, or is required, to perform : 
 and this may reasonably be supposed to be 
 another reason why commentators have 
 abstained from any attempt at the exposi- 
 tion of this undefined mass of executive
 
 67 
 
 power. When the president has done all 
 that the laws require of him, he has done, 
 not only all that he ought to do, but all 
 that he can do, as the depository of the 
 executive power, without transcending the 
 bounds of his lawful authority. If he does 
 this, though unintentionally, his orders 
 afford no protection even to the subordinate 
 agent he employs. It was so adjudged, in 
 an early case, by the unanimous decision 
 of the Supreme Court of the United States. 
 I refer to the case of Little v. Barreme, 
 reported in 2 Cranch, 170. As it may bo 
 briefly stated, and in a manner perfectly 
 intelligible, even to the unprofessional 
 reader, I do not hesitate to describe it. 
 
 The case arose under an act of congress, 
 approved March 12, 1709, entitled "An 
 act further to suspend the commercial 
 intercourse between the United States 
 and France, and the dependencies thereof."
 
 G8 
 
 By the 5tli section of the act it was 
 enacted, "That it shall be lawful for the 
 President of the United States to give 
 instructions to the commanders of i)ublic 
 armed ships of the United States, to stop 
 and examine any ship or vessel of the 
 United States on the high seas, which 
 there may he reason to suspect to be 
 engaged in ixny traffic or commerce con- 
 trary to the true tenor hereof; and if, 
 upon examination, it shall appear that 
 such ship or vessel is bound or sailing to 
 any port or j)lace within the territory of 
 the French rei)ublic, or her dependencies, 
 contrary to the intent of this act, it shall 
 be the duty of the commander of such 
 public armed vessel to seize every such shix^ 
 or vessel engaged in such illicit commerce, 
 and send the same to the nearest port in 
 the United States." Instructions were 
 accordingly immediately issued by the
 
 69 
 
 secretary of the navy, imder the direc- 
 tions of the president, to the commanders 
 of the public armed vessels of the United 
 States, and, amon^' others, to the defend- 
 ant. Captain Barreme. A i^art of these 
 instructions were in the following words: 
 "You are not only to do all that in you 
 lies to prevent all intercourse, whether 
 direct or circuitous, between the ports of 
 the United States and those of Franco 
 and her dependencies, in cases where the 
 vessels or cargoes are apparently, as well 
 as really, American, and protected by 
 American papers only ; but you are to 
 be vigilant that vessels or cargoes really 
 American, but covered by Danish or other 
 foreign papers, bound to or from French 
 ports, do not escape you." 
 
 It will be observed, therefore, that while 
 the act of congress empowered the presi- 
 dent to give instructions to naval com-
 
 70 
 
 maiiders to seize ships or vessels bound or 
 sailing to any French ports, the instructions 
 actually given to Captain Barreme directed 
 the seizure also of vessels bound from 
 French ports. Under these instructions he 
 captured and brought into port a vessel 
 bound or sailing from a French port ; and 
 the question before the court was whether 
 he was answerable in damages to the per- 
 sons who had been subjected to losses by the 
 capture and detention of the vessel. The 
 Circuit Court of the United States for the 
 district of Massachusetts decided that he 
 tvas so answerable ; and an appeal from this 
 decision having been taken to the Supreme 
 Court of the United States, the judgment of 
 the Circuit Court was unanimously aflQrmed. 
 The opinion of the court was pronounced 
 by Chief-Justice JMAESHAiiL, who, in con- 
 clusion, said :
 
 71 
 
 "I confess tlie first bias of my mind was very 
 strong in favor of tlie opinion, that tliougli tlie 
 instructions of the executive couM not give a riglit, 
 they might yet excuse from damages. I was 
 much inclined to think that a distinction ouglit 
 to be taken between acts of civil and those of 
 military officers ; and between proceedings within 
 the body of tlie country and those on the high 
 seas. That implicit obedience which military men 
 usually pay to the orders of their superiors, which, 
 indeed, is indispensable to every military system, 
 appeared to me strongly to imply that the princi- 
 ple that those orders, if not to perform a prohibited 
 act, ought to justify the person whose general 
 duty it is to obey them, and who is })laced by the 
 laws of his country in a situation wliicli in gen- 
 eral requires tliat he should obey them. I was 
 strongly inclined to think that where, in conse- 
 quence of orders from the legitimate authority, a 
 vessel is seized with pure intention, the claim of 
 the injured party for damages would be a proper 
 subject of negotiation, l>ut I liave been con- 
 vinced that I was mistaken, aiul I have receded 
 from this first opinion, I acquiesce in that of my 
 brethren, which is, that the instructions cannot 
 change the nature of the transaction, or legalize
 
 an act whicli, without those instructions, would 
 have been a plain trespass." 
 
 This decision was made soon after tbe 
 organization of the government, and its 
 sonndness has never been questioned. On 
 the contrary, the principle on which it is 
 founded has since been repeatedly applied, 
 in this country, as it before had been in 
 England. Its significancy is too obvious to 
 require comment. 
 
 The result of this summary view of the 
 executive department, it will be seen, is 
 this : that whjrte, in the distribution of the 
 powers deemed requisite to good govern- 
 ment, it was, under various motives of 
 convenience or expediency, and in imitation 
 of the constitution of England, decided to 
 allot to the i^resident certain specified 
 powers which he would not otherwise have 
 possessed, merely as the depositary of the 
 executive power ; and to enjoin upon him
 
 73 
 
 some duties whieli might consistently Lave 
 been otherwise disposed of; and, fou greater 
 safety, some others which properly belong- 
 ed to the executive department, — the true 
 source of the president's civil executive 
 authority is his designation as its depos- 
 itary. I am no advocate of the amplifica- 
 tion of executive power. On the contrary, 
 I fully participate in the general alarm 
 at the recent assumptions of authority 
 claimed nnder that name. But I can see 
 no reason to apprehend danger from the 
 construction I have ventured to give to 
 the second article of the constitution. It 
 may, at first view, present itself in a difter- 
 ent light to others, a light which may 
 even impart a latitudinarian hue to the 
 executive power ; but I am of opinion, 
 on the contrary, that if ' established and 
 enforced, it would prove a safeguard 
 
 against the unwarrantable assumption of 
 
 7
 
 74 
 
 authority under that name, by furnish- 
 ing a definite rule by which to determine 
 its true scope. No one can be insen- 
 sible to the evident importance of such 
 a rule, nor can it be denied that we 
 are as yet without one. The people of 
 Great Britain, as I have already shown, 
 have such a rule, well settled, well under- 
 stood, and easily applied ; and it is pre- 
 cisely that I propose. The king is invested 
 with certain limited and well-defined pre- 
 rogatives, which he is at liberty to exercise 
 according to his own will and pleasure, 
 subject only to the constitution, laws and 
 customs of his kingdom. Beyond this, his 
 powers and duties are precisely, those I 
 have ascribed to the i)resident as the 
 depositary of the executive power charged 
 with the duty of taking care that the laws 
 be faithfully executed. But in this country 
 the notions universally prevalent concern-
 
 75 
 
 iug botk the sources and the scope of 
 executive power are either too vague to 
 admit of definition, or so contradictory 
 as to be wholly irreconcilable. Theories, 
 moreover, have lately, without scruple, 
 been made to conform to the exigencies 
 of party strife ; and the president, on 
 account of his line of conduct with 
 respect to the States lately in rebellion, is 
 denounced as an usurper, and applauded 
 as a wise and patriotic statesman. 
 
 Let us revert for a moment to the nar- 
 rative I have given of his pretensions and 
 his acts, and bring them to the test of the 
 principles I have endeavored to establish. 
 lie undertook, alone, to bring back the 
 rebel States into the Union, reinvested with 
 all their original rights and privileges as 
 constituent members of it, leaving nothing 
 to congress except what, under the cir- 
 cumstances, was, as he understood it, but
 
 7G 
 
 a nominal power, to be exercised by the 
 two bouses separately. But the oflice of 
 the president is to execute the laws 
 " enacted by the Senate and House of 
 Eepresentatives of the United States of 
 America in congress assembled." Had 
 any law been thus enacted directing or 
 empowering Mr. JohI!sSon to take nj)on 
 himself a task so difficult and moment- 
 ous ? So far from it, in consequence of 
 his most reprehensible omission to con- 
 vene congress, no opportunity had been 
 afforded to it of considering the sub- 
 ject at all. In the prosecution of the 
 work he had thus undertaken, he assumed 
 authority, by proclamation, to appoint and 
 invest with large powers oflScers unknown 
 to the constitution or laws, under the title 
 of Provisional Governor ; and to prescribe, 
 and peremptorily dictate, the steps to be 
 taken by the people of the States with
 
 77 
 
 wliicli lie lias tlius imwarrantably uiicler- 
 takeii to (leal. To say nothiug of bis want 
 of authority to act at all, what right had 
 he to act thus without legislative sanction ? 
 But he is entitled to be heard iu his own 
 vindication ; and we are not, therefore, to 
 overlook his exposition of the views of ex- 
 ecutive authority and duty, by which he 
 professed to have been guided, as given in 
 the preamble to his in'oclamations. The 
 reader is not likely, I think, to have forgot- 
 ten that he deduces his power and duty to 
 act, not from the 2d article of the constitu- 
 tion, relating, as we have seen, to the 
 executive department of the government, 
 but from the 4th section of the fourth arti- 
 cle, which ordains that " The United 
 States shall guarantee to every State in 
 the Union a republican form of govern- 
 ment !" Did he suppose himself to be the 
 
 United States ? We are not at liberty to 
 
 7*
 
 78 
 
 questiou his sincerity, but a delusion more 
 thorough and complete never swayed the 
 mind of any man since the fall. If the 
 people of a State should see fit to aban- 
 don its republican form of government and 
 establish in the i)lace of it one clearly 
 unentitled to that name, congress would 
 be bound to refuse admission to its sena- 
 tors and representatives; and if it should 
 persist in adhering to its new form of 
 government, it would doubtless become 
 the duty of congress to endeavor to de- 
 vise some scheme for the i)urpose of re- 
 storing the harmony of the Union : and so, 
 if the people of a State should abolish its 
 political organization and thus introduce 
 the reign of anarchy, it would be the 
 duty of congress to interpose and abate 
 the nuisance. But what would the execu- 
 tive have to do in such improbable and 
 " extraordinary " emergencies, except to
 
 79 
 
 aid, in the tlie iiiaiiuer prescribed by tlie 
 legisUiture, in executing its declared will ? 
 
 A few months after his accession to the 
 presidencj^ Mr. Jonxsox saw fit to order 
 a quantity of cotton which had belonged 
 to the State of Korth Carolina, but had 
 been captured l)y the forces of the Union, 
 in obedience to an act of congress, passed 
 during the first year of the war, to be 
 restored, and the proceeds of other captured 
 cotton of the same State, that had been 
 captured and sold, in pursuance of the 
 same act, to be i)aid over to the State. 
 And it is stated that he has not scrupled 
 to direct a like disposition of other property 
 to a very large amount, under like circum- 
 stances. Whence he supposed himself to 
 have derived his authority to do all this, I 
 am not informed. It seems clear that his 
 l)owcr of pardoning offenses against the 
 United States does not warrant it. Tos-
 
 80 
 
 sibly lie may liave imagined that ho 
 possessed it in virtue of his military power, 
 the only other source of authority men- 
 tioned in his preambles ; and we have seen 
 that his proclamation for the regeneration 
 of l^orth Carolina contained an order to 
 the troops in that department to aid the 
 provisional governor in executing the 
 duties required of him. 
 
 Bearing in memory that these and all 
 the other acts I have enumerated, were 
 done in time of peace, let us, then, in the 
 next i)lace, take a summary survey of 
 the powers of the president as commander- 
 in-chief of the army and navy, and see 
 whether they afford any warrant for those 
 acts. 
 
 This branch of the executive authority 
 is treated with great brevity by the
 
 81 
 
 Federalist. It is one of the subjects 
 of comment in two of the numbers 
 TTi-itten by General Hamilton, one of tlie 
 least likely of all men to misai)prelien(l 
 it. In number 09, where lie refers to it 
 incidentally, he says, " It amounts to 
 nothing more than the supreme com- 
 mand of the military and naval forces, 
 as first general and admiral of the con- 
 federacy ; while that of the British king 
 extends to the declaring of war, and to 
 the raising and regulating of fleets and 
 armies; all which, by the Constitution 
 under consideration, would appertain to 
 the legislature.'' 
 
 In luimber 74, where the subject is more 
 formally introduced, he devotes to it but 
 a single paragraph, which, as it is short, 
 I shall need no apology for copying: " The 
 President of the United States," he ob- 
 serves, "is to be commander-in-chief of
 
 82 
 
 the army and navy of the United States, 
 and of the militia of the several States, 
 when called into actual service of the 
 United States." The propriety of this pro- 
 vision is so evident, and it is, at the same 
 time, so consonant to the i)recedents of 
 the state constitutions in general, that 
 little need be said to exx^lain or enforce 
 it. Even those of them which have, in 
 other respects, coupled the chief magistrate 
 with a council, have for the most part 
 concentrated the military authority in him 
 alone. Of all the cares and concerns of 
 government, the direction of war pecu- 
 liarly demands those qualities which dis- 
 tinguish the exercise of power by a single 
 hand. The direction of war implies the 
 direction of the common strength ; and 
 the power of directing and employing the 
 common strength forms a usual and 
 essential part in the definition of the
 
 83 
 
 executive authority. This brevity is imi- 
 tated by Justice Story and Chancellor 
 Kent in their Commentaries. The main 
 object of all these writers was to show 
 the propriety of having the chief military 
 command committed to the hands of a 
 single person ; and that the president, 
 the highest civil magistrate, charged with 
 the duty of maintaining the supremacy 
 of the civil power, was its safest and 
 fittest depository. And it is abundantly 
 worthy of remark, that these three able 
 writers, distinguished for their compre- 
 hension and perspicacity, concur in treating 
 the authority of the president derived from 
 the military position assigned to him, as 
 important, or even eifective, as far, at 
 least, as the HTmy and navy are con- 
 cerned, only i)i war. Nor is this at all 
 surprising. The American people have, at 
 all times, been irreconcilably averse to
 
 84 
 
 the miiiutcDancc of large standiug armies 
 aud navies in time of i)eace. Except a 
 few troops to garrison our widely separ- 
 ated forts, aud to protect the frontier 
 settlements against Indian depredations, 
 aud the Indians against fraud, encroach- 
 ment aud violence from the natives, in 
 pursuance of laws authorizing the emi)loy- 
 ment of troops for these i^urposes; aud 
 a few shi^js to guard our coasts and en- 
 force respect for our flag in distant seas, 
 we were to have, and, until now, have had, 
 no army or navy when at peace. The i)ower 
 " to make rules for the government aud 
 regulation of the land and naval forces" 
 was expressly confided to congress, who 
 alone had also the power " to declare war," 
 " to raise and support armies," aud " pro- 
 vide aud maintain a navy." It is true that 
 there are emergencies possible in time of 
 peace, to be effectually met only by the em-
 
 85 
 
 ployinent of military force. But they were 
 provided for by the power giveu to congress 
 " to provide for calling forth the militia to 
 execute the laws of the Union, suppress 
 insurrections and repel invasions;" a power 
 exercised by the passage of an act for this 
 purpose in 1792, superseded and repealed 
 by another, passed in 1795, still in force, 
 and fortified by recent amendments. It 
 provides, cautiously and wisely, for each of 
 the contingencies specified in the constitu- 
 tional grant. The call is to be made by the 
 president. When its purpose is to suppress 
 insurrection against the government of a 
 State, he can act only on the application of 
 its legislature, or, when it cannot be con- 
 vened, of its executive. When the object 
 is to repel invasion or to suppress resistance 
 to the laws of the United States, by com- 
 binations too powerful to l)e overcome by 
 
 the civil power, the president is to be gov- 
 
 8
 
 8G 
 
 erned by his owu discretion. Of the militia 
 so called forth, the i)resideut, as we have 
 said, is also the commander-in-chief. They 
 can be kept in the public service only until 
 the expiration of thirty days after the com- 
 mencement of the next ensuing session of 
 congress. It was in virtue of the first 
 of the above mentioned acts, that General 
 Washington, in 1794, called forth 15,000 
 militiamen from New Jersey, Pennsylvania, 
 Maryland and Virginia, for the suppression 
 of a formidable insurrection in the western 
 counties of Pennsylvania, to prevent the 
 execution of the law imposing duties on do- 
 mestic spirits.^ What independent powers, 
 then, in time of peace, remain to the presi- 
 
 * The immediate command of these troops was confided 
 by Washington to the Governor of Virginia. It does not 
 appear that his right thus to delegate his authority as 
 commander-in-chief of the militia in actual service was 
 then doubted ; and, though this power was questioned 
 during the war with Great Britain, it seems undeniable, 
 and not likely to be disputed. (2 Pitkin's History, 421.)
 
 87 
 
 dent as commander-iu-cliief? I leave the 
 reader to answer the question for himself, 
 and to consider whether these powers ex- 
 tend to the political reorganization and 
 restoration to the Union of truant States, 
 or to the squandering of the property of 
 the nation. It is true he may find, in the 
 annals of our brief national existence, a 
 precedent for a virtual assumption by the 
 president of the power to declare war, by 
 means of an order to a military com- 
 mander to invade the territories of a 
 neighboring nation with whom we are at 
 peace; and another i)reccdeut for orders 
 to a commander to pause, notwithstand- 
 ing the near approach of winter, upon his 
 march, over snowy mountains to a distant 
 region, and to employ his troops in ruth- 
 lessly forcing upon the people of a territory, 
 a constitution which they have had no 
 voice in making, and which they abhor;
 
 88 
 
 but he will not fail to discern that these 
 were shameful examples of wanton and 
 wicked usurpation ; nor, I trust, will he 
 lack the virtue to blush at their atrocity. 
 As to the ample powers with which the 
 president is armed as generalissimo, in 
 time of war, they are to be sought for in 
 authentic treatises upon the laws of war. 
 They are altogether exceptional and sui 
 generis; they are neither increased nor 
 diminished by their association with the 
 civil i^owers of the executive. Any 
 attempt, by the framers of the Constitu- 
 tion, to define them, would have been 
 preposterous; and no such attempt was 
 accordingly made. The war-making power 
 was confided to congress, and the presi- 
 dent was declared commander-in-chief; and 
 there the subject was, of necessity, left.
 
 89 
 
 I propose now briefly to consider some 
 of those powers aud duties of the presi- 
 dent which are specifically allotted to him 
 by the Constitution; and, Jirst, of the 
 
 POWER TO GRANT REPRIEVES AXD PAR- 
 DONS. This power has been supposed to 
 comi)rehend every species of legal penalty, 
 from the forfeiture of life to the smallest 
 fine ; aud to extend as well to fines im- 
 posed by courts for contempt, including 
 those inflicted on defaulting jurors, as to 
 those imposed by penal laws.^ It has 
 also been held that it may be exercised 
 before as well as after conviction ; aud 
 even before indictment, upon an appli- 
 cation accompanied by a confession of 
 guilt. It has been supposed, moreover, to 
 warrant, by implication, the commutation 
 of punishment, and the grant of condi- 
 
 ' Opinions of Attorney-General, pamm. 
 
 8*
 
 90 
 
 tional i)ardons, provided the condition be 
 such that its observance may be enforced, 
 as, for example, enlistment in the navy.* 
 No argument can be necessary to prove the 
 high importance of such a power as this, 
 nor to show the weighty responsibility its 
 possession imposes. The inherent diflBculty 
 of executing it wisely, and its peculiar 
 liability to pernicious misuse, may be less 
 evident, and certainly have failed to 
 awaken the degree of attention and jeal- 
 ousy they imperatively demand. It would, 
 in reality, be diflScult to name a power, to 
 the proper exercise of which a sound and 
 enlightened judgment, honestly and pa- 
 tiently applied, is more indispensable. 
 Consider for a moment its nature. Lord 
 Coke, in treating of "this high prerogative," 
 as he justly calls it, of the king, observes 
 
 ' Opinions of Attorney- General, passim.
 
 91 
 
 that " lie is intrusted witli it upon especial 
 confidence that Le will sjjare those only 
 whose case, could it have heeii foreseen, the 
 law itself may he liresumed ivilling to have 
 excej)ted out of its general rules, wbicli the 
 wisdom of man cannot i^ossibly make so 
 perfect as to suit every case." AVitb this 
 assistance from the analytic mind of Lord 
 Coke, I leave the reader to analyze the 
 problem presented for solution, upon an 
 application for pardon ; to note its com- 
 plexity, and to comj)ute the danger of 
 unavoidable error. AVhat, then, is to be 
 expected from the heedless exercise of 
 "this high prerogative?" Unhappily, wo 
 are not without experience upon this point. 
 During the presidency of General Tay- 
 LOE, a man convicted of coining, system- 
 atically prosecuted during many months, 
 upon the clearest evidence, obtained by 
 great exertions on the part of the officers
 
 92 
 
 of justice; who, moreover, was shown, 
 upon his trial, to liave incurred the guilt 
 of subornation of perjury, in the hope, by 
 that means, to escape punishment, and 
 who, withal, had, for greater safety, assumed 
 the character of a religious zealot, was 
 unconditionally pardoned without inquiry, 
 within a month after his conviction ! I 
 cite this instance from personal knowledge. 
 I cite another from a very cautiously, as 
 well as very ably conducted newspaper. 
 Eeferring to the annunciation, from time 
 to time, of i)ardons granted by President 
 Johnson, on convictions for forgeries of 
 the national currency, it was stated in 
 the New York Tribune, that these pardons 
 already numbered more than ttoenty! This 
 was several months ago. Whether the 
 practice was thenceforth continued, or 
 whether the severe and well-merited cen- 
 sures of the editor, of an abuse so enormous
 
 93 
 
 and miscliievous, served to arrest or check 
 it, I am not informed. These were among 
 the highest and most dangerous crimes 
 known to our laws, crimes which, until 
 lately, in England, subjected the offender 
 to capital punishment. The dullest appre- 
 hension can require no prompting to per- 
 ceive that these presidential acts, instead 
 of being in harmony with the spirit of the 
 laws, were in flagrant conflict, not less with 
 their spirit than their letter. Of the recent 
 prodigal and almost boundless, yet appar- 
 ently capricious exercise of this power in 
 the grant of pardons for treason, I leave 
 my readers to form their own opinions. 
 
 That the power to pardon offenses ought 
 to find a place in our government, few, 
 if any, probablj', are disposed to deny. 
 
 At the adoiition of the Constitution, 
 neither the necessity of the power, nor, 
 with one exception, the expediency of vest-
 
 94 
 
 ing it in the president, appears to have 
 been questioned. But it was strenuously 
 insisted that, in relation to the crime 
 of treason, " the assent of one or both 
 branches of the legislative bodj^" ought 
 to have been required. General Hamil- 
 TOif, in the 74th number of the Federalist, 
 undertook the task of answering this ob- 
 jection. He candidly admits that there 
 are strong reasons for the exception. " As 
 treason," he observes, "is a crime leveled 
 at the immediate being of society, where 
 the laws have once ascertained the guilt 
 of the offender, there seems a fitness in 
 referring the expediency of an act of 
 mercy toward him to the judgment of the 
 legislature. And this ought the rather to 
 be the case, as the supposition of con- 
 nivance of the chief magistrate ought not 
 to be entirely excluded." But he had 
 undertaken to defend the Constitution as
 
 95 
 
 it came from the bands of its framers, and 
 he accordingly proceeded, with his wonted 
 ability, to combat the objection. "\Miether, 
 had he lived to the present day, with 
 faculties unimpaired, the conclusion at 
 which he arrived would have withstood 
 the light of our last six years' experience, 
 may well be doubced. 
 
 I PROCEED, in the next place, to consider 
 the President's power or appointment 
 TO OFFICE. He is, as we have seen, to 
 nominate, and by and with the advice and 
 consent of the senate, appoint all oflicers 
 of the United States (with a reservation, 
 however, to congress of power to provide 
 otherwise for the appointment of inferior 
 oflScers); and, 2, when vacancies "happen" 
 during the recess of the senate, he is
 
 9G 
 
 empowered to fill them, by grunting com- 
 missions to expire at the end of the next 
 session. It will he remembered that in 
 enumerating the powers and duties of the 
 president, I classed the nomination, and, 
 with the approbation of the senate, the 
 appointment of officers among his duties, 
 and the filling of vacancies during the 
 recess of the senate among his iwwers, 
 and that I assigned the reason for so 
 doing. But inasmuch as it must be con- 
 ceded that the duty implies the authority 
 to execute it, and the power implies the 
 duty of its exercise when the public in- 
 terest requires it, it may be asked, Is not 
 this distinction rather nominal than real? 
 It would, I think, be a sufficient answer 
 to say that having been recognized, and 
 studiously carried out by the founders of 
 the government, we are bound, in analyz- 
 ing their work, to regard it as one of its
 
 97 
 
 essential elements not to be overlooked. 
 But if I do not greatly err, the distinction 
 is, by no means, devoid of practical import- 
 ance. On the contrary, I think that inat- 
 tention to it has contributed in no slight 
 degree to the introduction of the enormous 
 abuses which have grown out of the power 
 of appointment. By habitually contem- 
 plating this faculty as a power granted to 
 the president, instead of a stern duty 
 impcrativehj required, the American people, 
 from their presidents downward, came at 
 length to regard it in the light of a roj-al 
 prerogative, which he was at liberty to 
 exercise for his own gratification, with little 
 or no resi)ect to the public welfare. But 
 contemplating it in the light in which it 
 was so carefully placed by our fathers, we 
 are at once freed from a delusion so base- 
 less and pernicious. Looking at it under 
 
 its true aspect, we discern its true nature. 
 9
 
 98 
 
 Its obvious purpose serves to define tlic 
 limits of the power it implies. We see in 
 it only au obligation imi)Osed on the i)resi- 
 dent by the organic law, to seek out and 
 appoint the most suitable persons to fill the 
 offices therein designated, and to be created 
 by the legislative power ; we see and feel 
 that it invests its possessor with no right, 
 in exercising it, to look an inch beyond 
 the public weal ; and we instinctively 
 revolt at the thought of its prostitution 
 to personal objects. Such, beyond ques- 
 tion, were the views, and the only views, 
 entertained of it by the convention, and by 
 our ancestors in accepting the constitution 
 at their hands. If some vague apprehen- 
 sions of usurpation or abuse found access to 
 the minds of the more wary, they were dis- 
 missed as unworthy suspicions. Among 
 all the great patriots of that day who had 
 been thought of as likely to be called to
 
 99 
 
 fill the presidential ofllce, there was not 
 one of Avhom such a suspicion could bo 
 harbored for a moment; and the present 
 imparted its hue to the future. Nor 
 should we be in haste to impute want of 
 forecast or blind confidence to our pro- 
 genitors. It required the lapse of more 
 than forty years to demonstrate the error 
 into which they fell. Until after the close 
 of the administration of the younger 
 Adams, no president had lacked the vir- 
 tue to take the Constitution for his guide, 
 and steadfastly to adhere to it ; and if 
 honesty can properly be said to be praise- 
 worthy, the conduct, in this respect, of 
 the first six presidents, was the more so 
 on account of the superaddition to their 
 constitutional powers, by legislative con- 
 struction, of an almost unlimited power of 
 removal from office — a subject to which I 
 propose presently to advert. Eecurring,
 
 100 
 
 for a moment, to what I have said of the 
 consequences resulting from want of atten- 
 tion to the distinction I have endeavored 
 to establish, I Avill only add, that the 
 bewildering influence of the false light 
 emanating from this error is clearly trace- 
 able in the discussions to which this last- 
 mentioned power has given rise. 
 
 But let us now take an observation, 
 and see whither we have drifted during 
 the remaining thirty-seven years of our 
 national existence. In the prosecution of 
 this task I shall have little further occa- 
 sion to cite the language of the constitu- 
 tion. In narrating the conduct of the 
 successors of Mr. Adams with respect to 
 those parts of it with which we are at 
 present concerned, we shall find them to 
 have been so comi)letely ignored that, in 
 our passage along the rugged i:>ath we are 
 to tread, the venerable parchment can
 
 101 
 
 serve no other purpose except, iu the end, 
 to mark the fearful extent of our depart- 
 ure from the principles it inculcates and 
 enjoins; and that it might, at the outset, 
 as well have been sorrowfully rolled up 
 and reverently laid aside. 
 
 As we have seen, the constitution pro- 
 vides for the filling of vacancies that 
 may happen during* the recess of the 
 senate. It is silent as to the power of 
 removal from office. One of the objec- 
 tions urged against it while i)ending for 
 ratification by the people of the several 
 States, was the participation of the senate 
 in appointments. The objection was an- 
 swered in two of the papers of the Fed- 
 9*
 
 102 
 
 eralist. They were written by General 
 Hamilton, who, as well as Mr. Madison 
 another of its writers, it is well known, was 
 a member of the constitutional conven- 
 tion. In the seventy-seventh number, 
 assuming the necessity of the existence in 
 the government of a power of removal 
 for notorious incompetency or infidelity, 
 the writer also assumes, without argument 
 or ai)parent doubt, that "the consent of" 
 the senate " would be necessary to dis- 
 place as well as to appoint." He doubtless 
 regarded it, as many others have done in 
 the subsequent discussions to which the 
 subject has since given rise, as incident to 
 the power of appointment, and, conse- 
 quently, as belonging conjointly to the 
 president and senate. And as one of the 
 advantages which might be expected to 
 flow from the cooperation of the senate 
 in the removal as well as in the appoint-
 
 103 
 
 ment of officers, he meutions the greater 
 stability it would imjiart to the administra- 
 tion of the government. And he observes, 
 that " where a man, in any station, had 
 given satisfactory evidence of his fitness for 
 it, a new president would be restrained 
 from attempting a change in favor of a 
 person more agreeable to him, by the ap- 
 prehension that the discountenance of the 
 senate might frustrate the attempt, and 
 bring some degree of discredit upon him- 
 self." Such, it may be safely assumed, 
 was the view entertained of the subject 
 in the convention, and by the people; 
 and it is said l)y Judge Story to have 
 " had a most material tendency to quiet 
 the just alarms of the overwhelming in- 
 fluence and arbitrary exercise of this 
 prerogative of the executive, which might 
 prove fatal to the independence and free- 
 dom of opinion of pu1)lic officers, as well
 
 104 
 
 as to the public liberties of the country.'" 
 This interpretation does not ai)pear to have 
 been questioned by any one, except the 
 opponents of the Constitution, by whom 
 the converse was asserted as a reason for 
 rejecting it.^ But during the first session 
 of congress, in 1789, a bill was brought 
 into the House of Eepresentatives "to 
 establish an Executive Department, to be 
 denominated the Department of Foreign 
 Affairs " (soon afterward changed to the 
 Department of State), which contained a 
 provision "That whenever" the Secretary 
 " shall be removed from oflQce by the 
 President of the United States, or in any 
 other case of vacancy," &c., designating 
 the person who, during such vacancy, 
 should have the charge and custody of the 
 
 » 3 Story's Com. on the Const., 390. 
 - 3 Story's Com. on the Const., 393.
 
 105 
 
 records, &c.^ This indirect ascription to 
 the president, of a constitutional power of 
 removal, met with determined opposition, 
 and led to an elaborate discussion. It was 
 argued by its advocates, that this power 
 " belonged to the president ; that it 
 resulted from the nature of the power, and 
 the convenience and even necessity of its 
 exercise. It was clearly, in its nature, a 
 part of the executive power, and was indis- 
 pensable for a due execution of the laws, 
 and a regular administration of i^ublic 
 affairs.'" And they expatiated on the evils 
 
 ' 3 Marshall's Life of Washington, Phila. cil., IGO ; 1 
 Statutes at Large, 28. This act was approved July 27; 
 and a few days after, an act to establish the Treasury 
 Department was approved, containing a like provision. 
 Chancellor Kent refers to the latter, as that by which tho 
 legislative construction was given. (1 Kent's Com., 310.) 
 Judge Stouy's account is indistinct, and in regard to 
 particulars, unintelligible. (3 Story's Com. on tho Const., 
 393, 394.) 
 
 ' Story's Com. on tlic Const., 393.
 
 lOG 
 
 likely to arise from the denial of it to the 
 j)resideiit. 
 
 Ecpelling the insinuation that they were 
 deluded by the splendor of the virtues 
 which adorned the character of President 
 Washington, they asserted that their opin- 
 ion "was founded on the structure of the 
 office. The man in whose favor a majority 
 of the people would unite, to elect him to 
 such an oflSce, had every probability, at 
 least, in favor of his principles. He must 
 be presumed to possess integrity, inde- 
 pendence, and high talents. It would be 
 X impossible that he should abuse the pat- 
 ronage of the government, or his power of 
 removal, to the base purpose of gratifying 
 a party, or of ministering to his own resent- 
 ments, or of displacing upright and excel- 
 lent officers for a mere difference of opin- 
 ion. The i)ublic odium which would attach 
 to such conduct would be a perfect secur-
 
 107 • 
 
 ity agaiust it. And, in truth, removals 
 made from such motives, or with a view to 
 bestow the offices upon dependents or fa- 
 vorites, would be an impeachable offense." ^ 
 And these were patriotic and sagacious 
 men ! If any new evidence were wanting* 
 of the impotency of our struggle to raise 
 or rend the veil that shrouds the future 
 from our view, or that, of all sciences, that 
 of government is the most abstruse, may 
 we not, by the light of experience, find it 
 here ? Of this house JVIr. Madison was a 
 member ; and under bis strong sense of the 
 inconveniences which would almost cer- 
 tainly ensue from the want of any power 
 in the government during the recess of the 
 senate, to get rid of an unfaithful or a cor- 
 rupt officer, he gave his deservedly weighty 
 countenance to the proposed enactment; 
 
 ' 3 Story's Com. on the Const., 393.
 
 108 
 
 and, after expressing his concurrence in the 
 opinion that no serious danger was to be 
 api)rehended of the abuse of the power by 
 the president, he added : " In the first place 
 he will be impeachable by this house before 
 the senate, for such an act of mal-adniin- 
 istration ; for I contend that the wanton 
 removal of meritorious officers would sub- 
 ject him to impeachment, and removal from 
 his high trust." The clause affirming the 
 power of removal in the i^resident was 
 retained by a vote qf thirty-four members 
 against twenty. In the senate it passed 
 by the casting vote of the vice-president.^ 
 This enactment, says Chancellor Kent, 
 "amounted to a legislative construction of 
 the Constitution, and it has ever since been 
 acquiesced in and acted uiDon as of deci- 
 
 ' 3 Story's Com. on tlie Const., 394 (citing 1 Lloyd's De- 
 bates, 503) ; 2 Marshall's Life of Washington, Phila. ed., 
 160-163.
 
 109 
 
 sive authority in the case. It applies 
 equally to every other officer of govern- 
 ment appointed by the president and 
 senate whose term of duration is not 
 specially declared." The Chancellor pro- 
 ceeds to justify it on the ground that this 
 power ought to be regarded as a i)art of 
 the executive authority wlioUy vested in the 
 2)resident, and in which, therefore, the 
 senate has no right to participate. "The 
 president," he observes, "is the great 
 responsible oflQcer for the faithful execution 
 of the law, and the i)ower of removal was 
 incidental to that duty, and might often be 
 required to fulfill it." " This question," he ' 
 adds, " has never been made the subject of 
 judicial discussion ; and the construction 
 given to the Constitution in 1789 has con- 
 tinued to rest on this incidental declaratory 
 opinion of congress, and the sense and 
 
 practice of government since that time. 
 10
 
 110 
 
 It may now be considered as firmly and 
 definitely settled, and there is good sense 
 and practical utility in the construction. 
 It is, however, a striking fact in the con- 
 stitutional history of our government, that 
 a power so transcendent as that is, which 
 places at the disposal of the president 
 alone the tenure of every executive officer 
 appointed by the president and senate, 
 
 ^ \ should depend upon inference merelj', and 
 
 should have been gratuitously declared 
 by the first congress in opposition to 
 the high authority of the Federalist; and 
 should have been supported or acquiesced 
 in by some of those distinguished men 
 who questioned or denied the power of 
 congress even to incorporate a national 
 bank."^ There is great force in the argu- 
 ment of this distinguished jurist, in sup- 
 
 ^ 1 Kent's Com., 310.
 
 Ill 
 
 port of the power in question, as, in its 
 uature, aj^pertaiuiug to tlie executive de- 
 l)artiuent, as well as truth iu liis reflectious 
 upon it. They were written in 1825, dur- 
 ing the presidency of Mr. Adams. The 
 Constitution had then been in operation 
 thirty-seven years, during which the power 
 had been exercised only for beneficial pur- 
 l)oses, unless, as was alleged in a few in- 
 stances, by Mr. Jeffeksox. It is not at 
 all surprising, therefore, that he should 
 have admitted its existence and main- 
 tained its utility. Had his immortal Com- 
 mentaries been deferred until after the 
 lapse of onl}' four years, with what reluct- 
 ance he would have yielded to the force 
 of his own argument, may be partially 
 inferred from a brief note in a subse- 
 quent edition. He concurs, it will be ob- 
 served, in the opinion of the first con- 
 gress, that the consignment by the con-
 
 112 
 
 stitutiou of tlie executive power to the 
 president, is, of itself, a source of power, 
 and that the power of removal is deriv- 
 able from this source, to which I shall 
 have occasion in the sequel more par- 
 ticularly to refer. Mr. Webstee, in his 
 speech in the senate, expressed his dissent 
 from the decision of the congress of 1789 ; 
 and his conclusion was but a corollary from 
 his denial to the president of all other 
 than the specified powers ; for while he was 
 constrained to admit the necessity of a 
 power of removal from office, his theory 
 left him no other source from which it 
 could be inferentially deduced, except the 
 power of appointment; and as this was 
 vested in the president and senate, the power 
 of removal could not reside in the president 
 alone, but must belong to him and to the 
 senate conjointly. But, entangled as 
 the question is, with the still unsettled
 
 113 
 
 broader one, whether or not the president 
 derives authority from his designation as 
 the depositary of the executive power, it 
 must be admitted to be involved in no 
 inconsiderable degree of perplexity. Con- 
 sidering the vast importance of the power 
 of removal, it is scarcely conceivable that 
 it was altogether overlooked by the con- 
 vention, when engaged in regulating the 
 exercise of the cognate power of appoint- 
 ment; and, supposing it to have been 
 thought of, however strange it may seem 
 that it was passed over in silence, we are 
 under the necessity of endeavoring to 
 account for the omission, as the only 
 means of determining to whose hands 
 it was intended to be confided. If we 
 concur with Mr. Webster in his inter- 
 pretation of the declaration of the con- 
 stitution, that the executive power should 
 
 be vested in the president, the conclusion, 
 10*
 
 114 
 
 as I have already observed, seems almost 
 inevitable, that this delicate and dangerous 
 power was considered to belong to the 
 president and senate conjointly, as an 
 incident of the power of appointment. If, 
 on the other hand, we reject this interpre- 
 tation, we may then consistently award 
 the power to the president, as one of the 
 constituent elements of the executive 
 power. But this construction would still 
 be open to denial, on the ground, so 
 strenuously insisted on by Mr. Webster, 
 that the power of removal naturally be- 
 longs to the power of appointment, and 
 ought, therefore, by implication, in the 
 absence of any constitutional declaration 
 to the contrary, to be held to accompany 
 it. Mr. Webster gave utterance to these 
 opinions in 1835, and he frankly acknowl- 
 edged that, confident as he then felt of their 
 soundness, he could not venture to assure
 
 115 
 
 the senate that they might not possibly 
 have been biased by the nnwarrantable 
 and unforeseen uses to which the power 
 of removal had recently been perverted. 
 What his opinion would have been, had it, 
 like that of- the great commentator, been 
 formed during the golden age of the Eo- 
 public, he has permitted us to conjecture. 
 We had then reached the sixth year 
 of a new, and, on many accounts, 
 memorable era in our national history, 
 commenciug with the elevation to the 
 presidency of an unlettered, passionate and 
 vindictive soldier, little, if at all, accus- 
 tomed to self-control. For my present \^^ 
 purpose it is sufficient to saj' that it 
 was then, for the first time, unblushingly 
 proclaimed that oflSces were to be regarded 
 as " spoils," which •' hclouycd to the victor " 
 in the conflicts of party. Ilad it been 
 designed to limit this dogma in practice to
 
 IIG 
 
 the filling of vacancies accidentally occur- 
 ring, and offices newly created by law, its 
 annunciation would, notwithstanding, have 
 been in direct conflict with the obvious and 
 indisputable theory of our government — 
 \^ that offices are trusts created,, not for the 
 benefit of those who are to hold them, 
 or of their party, but for the public 
 good; and are accordingly to be conferred 
 only on those who, upon impartial inquiry, 
 appear to be best fitted, by their intelli- 
 gence and honesty, for the proper dis- 
 charge of the duties they impose. But 
 the practice, thus restricted, would have 
 been too limited to be productive of serious 
 detriment to the public welfare, and espe- 
 cially as it was not wholly novel, would 
 probably have been submitted to without 
 general complaint. But it was but too 
 evident that no such limits were to 
 be observed. Offices were no longer to
 
 117 
 
 be regarded as agencies created and to be 
 exercised for the benefit of the public, but 
 were to be literally treated as " spoils," to 
 which the title of the victor was to be ruth- 
 lessly enforced, not by the legitimate exer- 
 cise of executive powers, in the manner and 
 for the purposes contemplated by the found- 
 ers of the government, but by the wanton 
 and absolute perversion of these powers to 
 this new, base and unlawful end. Tlio 
 impatient victors were not to be constrained 
 to wait for vacancies to "happen," and then 
 filled by nomination when the senate was in 
 session, or by appointment when it was not. 
 The tremendous power of removal was no 
 longer to be held in reserve as a safeguard 
 against official dishonesty or incapacity, 
 but was to be audaciously prostituted 
 to the purpose of creating vacancies to bo 
 filled by the partisans of the president. 
 The process was very simple. No sepa-
 
 118 
 
 rate act of removal was required; it was' 
 only necessary to a2)point; the removal 
 was accomplished by operation of law.^ 
 
 No time was lost in carrying out these 
 false i)rinciples to their utmost extent. 
 Spies and informers lent their assistance 
 to the work. The old questions — "Is he 
 honest? Is he capable?" were no longer 
 the tests of the propriety of removal, and 
 were scouted as inapplicable to the new 
 system. The inquiry now was, Is he a 
 zealous, devoted and efficient partisan of 
 the president? Many hundreds of faithful 
 and meritorious officers were accordingly 
 displaced during the first year of General 
 
 ' It was said by Mr. Webster, in liis speech in the senate 
 already mentioned, on the subject of the power of removal, 
 that an office is held to be vacated by the mere nomination 
 of another person to fill it, althovigh not acted on or rejected 
 by the senate, and I am not aware that the assertion was 
 controverted. It seems strange that this should have been 
 considered other than an inchoate step, in itself ineflfectual 
 iintil concurred in by the senate.
 
 119 
 
 Jackson's administration, to make room 
 for successors distiuguislied for their blind 
 devotion and unscrupulous subserviency to 
 his party. This i)olicy was actively perse- 
 vered in until the spoils were all distrib- 
 uted ; and its spirit was rigidly adhered 
 to in the choice of persons to fill casual 
 vacancies throughout his presidency. For- 
 tunate for the country would it have been 
 had it then been discarded forever. But, 
 unhappily, it was one of those evils 
 which, left to themselves, are sure to be 
 perpetuated, and to increase in vitality as 
 they become more and more inveterate. 
 Such, accordingly^ has been the result in 
 this instance. Had General Jackson, at 
 the outset, been impeached and deposed, 
 as he undeniably deserved to be, for 
 this monstrous abuse of his authoritjs his 
 election would have proved a boon of 
 incalculable value to his country. That
 
 120 
 
 "^ it has, in fact, proved an ineffable curse, is, 
 unhappily, no less true. It was the first 
 
 ^, great downward step in our national career. 
 By the tenfold increase to which it has led, 
 of all the pernicious elements of our party 
 conflicts ; by the ascendency it has given to 
 motives of personal interest, over the dic- 
 tates of public duty, in all political discus- 
 sions and in the selection of candidates for 
 office ; by the nefarious means mainly 
 traceable to it, resorted to for the attain- 
 ment of success in elections, which have 
 thus, at length, come to be regarded as 
 mere scrambles for office ; by the terrible 
 inroads it has made upon the manly inde- 
 pendence and patriotic aspirations charac- 
 teristic of our Saxon blood ; it has, for 
 thirty-six years, been warriug upon that 
 public virtue which constitutes the dis- 
 tinctive and most essential principle of 
 republican governments; and, unless it be
 
 121 
 
 speedily arrested, must end in the over- <- 
 throw of our own. In corroboration of 
 what I liave said I beg* leave to refer the 
 reader to a very able and impressive report 
 on "Executive Patronage," made on tlie 
 9th of February, 1835, by a committee of ^ 
 the senate ; and I shall need no apology for 
 availing myself sparingly of its contents. 
 After pointing out and dwelling upon the 
 large and increasing revenue and expendi- 
 tures of the government, and showing 
 that the number of public oflScers hold- 
 ing their i)laces directly or indirectly 
 from the president, and liable to be dis- \ 
 missed at his i^leasure, exceeded G0,000, 
 the committee proceed to speak of " the 
 practice so greatly extended, if not for 
 the first time introduced, of removing from 
 office persons well qualified, and who have 
 faithfully performed their duty, in order to 
 
 fill their i)laces with those who are recom- 
 11
 
 122 
 
 meudcd on the ground that they belong to 
 the party in power;" and they conchide 
 their observations upon this subject as fol- 
 lows : " It is easy to see that the certain, 
 direct and inevitable tendency [of this 
 practice] is to convert the entire body of 
 those in oflSce into corrupt and supple instru- 
 ments of power, and to raise uj) a host of 
 hungry, greedy and subservient partisans, 
 ready for every service, however base and 
 corrupt. Were a premium offered for the 
 best means of extending to the utmost 
 the power of patronage ; to destroy the love 
 of country, and substitute a spirit of sub- 
 serviency and man-worship; to encourage 
 vice and discourage virtue ; and, in a word, 
 to prepare for the subversion of liberty and 
 the establishment of despotism, no scheme 
 more perfect could be devised." The report 
 concludes in these words : " The disease is 
 daily becoming more aggravated and dan-
 
 123 
 
 gerons, and if it be permitted to progress 
 for a few years loDger, with the rapidity 
 with which it has of late advanced, it will 
 soon i)ass beyond the reach of remedy. 
 This is no party question. Everj" lover of 
 his country and its institutions, be his party 
 what it may, must see and deplore the rapid 
 growth of patronage, with all its attending 
 evils, and the certain catastrophe which 
 awaits its further progress, if not timely 
 arrested. The question now is, not how, or 
 where, or with whom the danger originated, 
 but how it is to be arrested ; not the cause, 
 but the remedy ; not how our institutions 
 and liberty have been endangered, but how 
 they are to be restored." 
 
 This report gave rise to an animated 
 debate in the senate, and an elaborate 
 speech from Mr. Webster, in which, refer- 
 ring to this abuse, he said : " Sir, we can- 
 not disregard our experience. AVe cannot
 
 124 
 
 sbut our eyes upon what is around and 
 upon us. No candid man can deny that a 
 great, a very great change has taken i)lace 
 within a few years, in the practice of the 
 executive government, which has produced 
 a correspondent change in our political 
 condition. No one can deny that oflBce of 
 every kind is now sought with extraor- 
 dinary avidity, and that the condition, well 
 understood to be attached to every office, 
 high or low, is indiscriminate support of 
 executive measures, and imi)licit obedience 
 to executive will." 
 
 May it not — borrowing the language of 
 the report of the committee — with truth 
 be said, that if a premium were offered for 
 the best description of the present con- 
 dition of things, no more perfect one could 
 be devised than that given in this brief 
 extract of the political asi^ect of the coun- 
 try, as it ijresented itself to the clear and
 
 125 
 
 penetrating vision of this distinguished 
 statesman, in the sixth year of President 
 Jackson's administration? It requires, 
 however, one additional feature to render 
 it complete. General Jacksox removed 
 only those who opposed his election, and 
 appointed only those who belonged to his 
 party. The last of his successors has re- 
 versed this rule: he proscribes the party 
 which elevated him to power, and bestows 
 his patronage on those who labored, to the 
 utmost extent of their ability, for his defeat ! 
 But while, on the one hand, it must be con- 
 ceded that, upon a superficial view, this 
 additional feature appears to add ugliness 
 to the portrait, on the other hand, it must 
 be acknowledged that it not only detracts 
 from its force in impelling us onward to 
 destruction, but affords a i)romise of future 
 good ; for Avhile it tends to temper the 
 reckless eagerness of office-seeking x)oliti-
 
 12G 
 
 cians, by teacliing them that they are liable 
 to be disappoiuted in their expectations of 
 reward by the tergiversation of their can- 
 didate, it adds another incentive to greater 
 caution in the nomination of men to fill 
 the two highest offices in the republic. 
 But the subject is too grave for irony. 
 
 What line of conduct, then, with these 
 momentous and alarming truths staring 
 us in the face, does it behoove us to 
 adopt? Shall we ignobly yield ourselves 
 up to the current, and flounder on to the 
 dark and oblivious gulf into which, if we 
 do, it must inevitably and irretrievably 
 plunge us? Or shall we, by one bold 
 and decisive effort, while it is yet in our 
 power, extricate ourselves from this per- 
 ilous dilemma, and escape a doom so 
 iippalling? Surely there ought to be no 
 doubt or hesitation upon a point so vital. 
 But how is the work to be accomplished?
 
 127 
 
 One tbiug, at least, is clear. Xo effort, 
 however determined, to turn and patiently 
 stem the current, will suffice. We must 
 get out of it ; plant our feet once more 
 firmly upon terra firma, and exterminate 
 the stream by exterminating the fountain 
 whence its foul waters are supplied. Here, 
 dismissing the metaphor, I return to the 
 stern realities of the case before us. I 
 have already intimated that the impeach- 
 ment and deposition of President Jackson 
 would not only liave proved an antidote to 
 the pernicious influence of his example, 
 but an effectual warning to his successors. 
 Why this measure of justice and expedi- 
 ency was not resorted to, it may well be 
 supposed, can hardly fail to become a sub- 
 ject of historic inquiry to posterity ; but it 
 is unnecessary now to detain the reader 
 by any explanation. lie will at once con- 
 cur in the statement that such a step was
 
 128 
 
 rendered impossible by tlie extraordinary 
 circumstances amid which the high offender 
 happened to stand. Xo such step was 
 accordingly attempted; and the power of 
 impeachment, on which so much reliance 
 was placed by the founders of the govern- 
 ment, still remains an untried remedy for 
 executive usurpation and misrule. But the 
 report of the committee of the senate, to 
 which I have referred, was accompanied 
 by a bill, the third section of which was 
 in these words: "That in all nominations 
 made by the i)resident to the senate to 
 fill vacancies occasioned by removal from 
 office, the fact of the removal shall be 
 stated to the senate at the same time that 
 the nomination is made, with a statement 
 of the reasons for such removal." 
 
 In the speech of Mr. Webster, to which 
 I have referred, he gave his cordial sup- 
 port to the measures recommended by the
 
 129 
 
 committee, iueluding the section I Lave 
 copied ; and he took occasion to express, 
 at length, his oi)inions, which he said were 
 the result of long and careful reflection, 
 concerning the i)owers of appointment and 
 removal. He dissented from the construc- 
 tion given to the Constitution bj' the first 
 congress, the power of removal being, in 
 his opinion, naturally and necessarily- 
 included in that of appointment ; and the 
 latter being conferred on the president and 
 senate, he thought the power of removal 
 went along with it, and should have been 
 regarded as a part of it, and exercised by 
 the same hands. And while he admitted 
 that the decision of 1789, acquiesced in and 
 recognized by subsequent laws, ought not 
 to be indirectly questioned, he thought that 
 congress might, if necessity should require 
 it, reverse that decision. But however this 
 might be, he was clearly and decidedly of
 
 130 
 
 opinion that congress possessed ample 
 power to regulate the tenure of office. It 
 was a common exercise of legislative 
 power, and it was not, in this i)articular, 
 at all restrained or limited by anything in 
 4 the Constitution, except with regard to 
 judicial officers ; " all the rest is left to the 
 discretion of the legislature. Congress may 
 give to offices, which it creates, not judi- 
 cial, what duration it pleases. When the 
 office is created, and is to be filled, the 
 president is to nominate a person to fill 
 it ; but, when he comes into office, he comes 
 into it upon the conditions and restrictions 
 ■which the legislature may have attached to 
 it." Congress might, for example, he said, 
 declare that other offices, besides judicial 
 offices, should be held during good beha- 
 vior; and if the Constitution had been 
 silent with respect to the tenure of the 
 judicial office, congress might have made it
 
 131 
 
 wliat it is. And is a reasonable check upon 
 the power of removal anything more than 
 a regulation of the tenure of office ? 
 
 As to the regulation prescribed in the 
 section above quoted, it was " of the gent- 
 lest kind." It only required the president 
 to make known to the senate his reasons 
 for the removals. It might, he thought, 
 very reasonably have gone farther. It 
 might, and perhaps it ought, to have pre- 
 scribed the form of removal ; and it might 
 also, he was of opinion, have declared that 
 the president should only suspend ofiicers, 
 at pleasure, only until the next meeting of 
 congress. But he was content with the 
 slightest degree of restraint sutlicient " to 
 arrest the totally unnecessary, unreason- 
 able, and dangerous exercise of the power 
 of removal." The degree of regulation 
 proposed by the bill, at least, he deemed 
 necessary; "unless," he added, "wo are
 
 132 
 
 willing to submit all these oflSces to an 
 absolute and perfectly irrespousible remov- 
 ing power; a jiower which, as recently ex- 
 ercised, tends to turn the whole body of 
 public officers into partisans, dependents, 
 favorites, sycophants and man -worshipers." 
 Being of opinion that the proposed quali- 
 fication, "mild and gentle" as it was, 
 " would have some effect in arresting the 
 evils" against which it was aimed, he 
 therefore gave it his support. 
 
 Such an act might now be passed, and 
 would serve the purpose of a palliative. 
 But it would not eradicate the disease, and, 
 with a majority of the senate composed of 
 the partisans of the president, would proba- 
 bly do but little good. The other expe- 
 dient suggested by Mr. AYebster, of pass- 
 ing a new declaratory act asserting the 
 power of removal in the president and 
 senate, is obnoxious to strong objections.
 
 133 
 
 One of the lamentable consequences of the 
 prostitution of this power lias been, not 
 only, by familiarity, to reconcile the public 
 mind to its abuse, but to enlist a numerous 
 and powerful army of place-liunters and 
 demagogues to regard it Avith favor, as 
 their main reliance for success in their 
 vocation. From them, therefore, such a 
 law would probably meet only with clamor 
 and denunciation, as an act of legislative 
 usurpation, while by the public at large 
 it would be regarded with comparative 
 indifference. It must be conceded also 
 that, to reflecting and impartial men, it 
 could not fail to appear to be an experi- 
 ment of very questionable i)ropriety. The 
 declaratory law would itself, at all times, 
 be subject to repeal, and many years of 
 acquiescence would be required to give it 
 indisputable authority. There are, more- 
 over, serious objections, on the score of 
 12
 
 134 
 
 convenience, to the participation of the 
 senate in tlie exercise of the power of 
 removal ; and if it could be effectually 
 guarded against abuse by the president, he 
 would indubitably be its fittest depositary. 
 It may be worthy of consideration, there- 
 fore, whether it would not be expedient to 
 endeavor to attain this object by means of 
 a constitutional amendment. 
 
 The long continuance of the tisurjmtion, 
 upon which I have dwelt at so much length, 
 for such it is, uncountenanced by the letter 
 of the Constitution, and sternly forbidden 
 by its spirit, may seem to palliate the 
 offense ; but it affords no justification, and 
 can by no means be held to neutralize its 
 criminality. It is not like the assumption 
 of a questionable power from good mo- 
 tives and for beneficent ends ; the incorpo- 
 ration of the Bank of the United States, or 
 the law declaring government paper a
 
 135 
 
 lawful tender, for examj)le, where the 
 acquiesceuce of the nation may rightly 
 be held a practical sanction and aflRrma- 
 tion of the power. Here, to say the least, 
 is a palpable misapplication and wanton 
 abuse of a power, prompted b}- no justi- 
 fiable motive, and productive of the most 
 injurious consequences. K^or has it ever 
 received the sanction of the impartial 
 judgment or moral sense of the American 
 people. On the contrary, it has at all 
 times been condemned by enlightened pub- 
 lic sentiment. Those who have practiced 
 it have acted with a full knowledge that 
 a day of reckoning might come, and have, 
 therefore, acted at their peril. The first 
 great transgressor — who escaped punish- 
 ment only because he was more powerful 
 than the law — it is but reasonable to con- 
 clude, had but a feeble forecast of the 
 magnitude of the injury he was inllicting
 
 13G 
 
 on bis country : liis successors bad tbe ligbt 
 of experience to guide tbem, and bave 
 incurred tbe superadded guilt of setting its 
 admonitions at naugbt. 
 
 Tbere are otber acts of tbe present 
 executive on wbicb I bave abstained from 
 commenting, not because tbey would bear 
 tbe test of tbe principles I bave laid down 
 witb respect to tbe scope of executive 
 power, but because tbeir conflict witb tbose 
 princii)les is too glaring to require elucida- 
 tion. 
 
 It is not to be denied tbat tbe confusion 
 of tbe public mind concerning tbe nature 
 and limits of tbe executive power, civil and 
 military, has been increased by tbe exbibi- 
 tions of it during tbe continuance of tbe 
 civil war, and, were it not tbat tbe presi- 
 dent is bound, and is to be presumed, to 
 understand bis powers and duties, at all 
 times, tbe present executive migbt be beld
 
 137 
 
 excusable for having, to some extent, par- 
 ticipated in this popiiLar delusion. But it 
 is to be remembered that congress, at its 
 extra session called by President Lincoln 
 immediately after the breaking out of the 
 rebellion, took upon itself the general 
 direction of the war, and exercised it 
 throughout, by enacting laws empowering 
 the president to do whatever they deemed 
 to be necessary to suppress the insurrec- 
 tion, and authorizing the measures to which 
 he, in fact, resorted. xVn examination of 
 these acts will show that most of them, by 
 their very terms, ceased to be operative as 
 soon as the insurgeuts laid down their 
 arms ; and as these laws afforded no war- 
 rant for any acts on the part of the execu- 
 tive which they did not authorize, so, upon 
 the return of peace, they can furnish none 
 for acts which would have been unwarrant- 
 able if they had never been enacted. It is
 
 138 
 
 true, also, that in the unprecedented situa- 
 tion in whicli the country was placed by 
 the sudden outbreak of an insurrection so 
 formidable, the American people ought to 
 have been, as they showed themselves in 
 fact to be, at all times disposed and willing 
 to overlook the occasional errors of judg- 
 ment, and assumptions of questionable 
 powers, by the conscientious and patriotic 
 man who then occupied the executive chair; 
 but, however difficult and embarrassing the 
 task that, upon the suppression of the insur- 
 rection, was undertaken by his successor, he 
 forfeited all claim to forbearance or impu- 
 nity by unnecessarily and most reprehensi- 
 bly taking it upon himself without legis- 
 lative aid and direction. 
 
 If an intelligent subject of a despotic 
 government had come among us immedi- 
 ately after his accession to the presidency, 
 ignorant of the organic structure of our
 
 139 
 
 political iustitutioiis, would be have been 
 likely, diiriug tbe recess of congress, to 
 discover, from passing events, tbat our gov- 
 ernment was less despotic tban bis own? 
 And if be bad remained bere long enougb 
 to read tbe message of tbe president at tbe 
 opening of tbe next session of congress, 
 would be not bave sougbt in it, in vain, for 
 tbe recognition of any riglit in congress 
 to exercise an effective control over bis will 
 in prosecuting bis scbeme of construction ? 
 Tbese are momentous questions; and if 
 tbey admit of no otlier tban negative 
 answers, it can require no argument to 
 prove tbat it is bigb time for a strenuous 
 effort to restore tbe government, at once 
 and forever, to its constitutional equilib- 
 rium.
 
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