§ 1483. Congress, however, have undertaken to provide for every case of a vacancy both of the offices of President and VicePresident; and have declared that, in such an event, there shall immediately be a new election made, in the manner prescribed by the act.1 How far such an exercise of power is constitutional has never yet been solemnly presented for decision. The point was hinted at in some of the debates, when the Constitution was adopted; and it was then thought to be susceptible of some doubt Every sincere friend of the Constitution will naturally feel desirous of upholding the power, as far as he constitutionally may. But it would be more satisfactory to provide for the case by some suitable amendment, which should clear away every doubt, and thus prevent a crisis dangerous to our future peace, if not to the existence of the government. 3 § 1484. What shall be the proper proof of the resignation of the President or Vice-President, or of their refusal to accept the office, is left open by the Constitution. But Congress, with great wisdom and forecast, have provided that it shall be by some instrument in writing, declaring the same, subscribed by the party, and delivered into the office of the Secretary of State.1 § 1485. The next clause is, "the President shall, at stated times, receive for his services a compensation, which shall neither be increased nor diminished during the period for which he shall have been elected; and he shall not receive within that period any other emolument from the United States or any of them." § 1486. It is obvious that, without due attention to the proper support of the President, the separation of the executive from the legislative department would be merely nominal and nugatory. The legislature, with a discretionary power over his salary and emolument, would soon render him obsequious to their will. A control over a man's living is in most cases a control over his actions. To act upon any other view of the subject would be to disregard the voice of experience, and the operation of the invariable principles which regulate human conduct. There are, 1 Act of 1st March, 1792, ch. 8, § 11. 2 2 Elliot's Debates, 359, 360. 3 In the revised draft of the Constitution, the clause stood: "And such officer shall act accordingly, until the disability be removed, or the period for choosing another President arrive;" and the latter words were then altered, so as to read, " until a President shall be elected." Journ. of Convention, 361, 382. 4 Act of 1st March, 1792, ch. 8, § 11. indeed, men who could neither be distressed nor won into a sacrifice of their duty. But this stern virtue is the growth of few soils; and it will be found that the general lesson of human life is, that men obey their interests; that they may be driven by poverty into base compliances, or tempted by largesses to a desertion of duty.1 Nor have there been wanting examples in our own country of the intimidation or seduction of the executive by the terrors or allurements of the pecuniary arrangements of the legislative body.2 The wisdom of this clause can scarcely be too highly commended. The legislature, on the appointment of a President, is once for all to declare what shall be the compensation for his services during the time for which he shall have been elected. This done, they will have no power to alter it, either by increase or diminution, till a new period of service by a new election commences. They can neither weaken his fortitude by operating upon his necessities, nor corrupt his integrity by appealing to his avarice. Neither the Union, nor any of its members, will be at liberty to give, nor will he be at liberty to receive, any other emolument. He can, of course, have no pecuniary inducement to renounce or desert the independence intended for him by the Constitution. The salary of the first President was fixed by Congress at the sum of twenty-five thousand dollars per annum, and of the Vice-President at five thousand dollars. And, to prevent any difficulty as to future Presidents, Congress, by a permanent act, a few years afterwards established the same compensation for all future Presidents and Vice-Presidents.5 So that, unless some great changes should intervene, the independence of the executive is permanently secured by an adequate maintenance; and it can scarcely be diminished, unless some future executive shall basely betray his duty to his successor. 4 § 1487. The next clause is," Before he enters on the execution of his office, he shall take the following oath or affirmation: I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will, to the best of my ability, preserve, protect, and defend the Constitution of the United States." 1 The Federalist, No. 73; 1 Kent's Comm. Lect. 13, p. 263. 2 The Federalist, No. 73; 1 Kent's Comm. Lect. 13, p. 263; 1 Tuck. Black. Comm. App. 323, 324. 3 The Federalist, No. 73. 5 Act of 18th of February, 1793, ch. 9. 4 Act of 24th September, 1789, ch. 19. § 1488. There is little need of commentary upon this clause. No man can well doubt the propriety of placing a President of the United States under the most solemn obligations to preserve, protect, and defend the Constitution. It is a suitable pledge of his fidelity and responsibility to his country; and creates upon his conscience a deep sense of duty, by an appeal, at once in the presence of God and man, to the most sacred and solemn sanctions which can operate upon the human mind.1 1 See Journal of Convention, 225, 296, 361, 383. CHAPTER XXXVII. EXECUTIVE POWERS AND DUTIES. § 1489. HAVING thus considered the manner in which the executive department is organized, the next inquiry is as to the powers with which it is entrusted. These, and the corresponding duties, are enumerated in the second and third sections of the second article of the Constitution. § 1490. The first clause of the second section is, "The President shall be commander-in-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.1 He may require the opinion in writing of the principal officer in each of the executive departments upon any subject relating to the duties of their respective offices. And he shall have power to grant reprieves and pardons for offences against the United States, except in cases of impeachment." § 1491. The command and application of the public force, to execute the laws, to maintain peace, and to resist foreign invasion, are powers so obviously of an executive nature, and require the exercise of qualities so peculiarly adapted to this department, that a well-organized government can scarcely exist when they are taken away from it.2 Of all the cases and concerns of government, the direction of war most peculiarly demands those qualities which distinguish the exercise of power by a single hand. Unity of plan, promptitude, activity, and decision, are indispensable to success; and these can scarcely exist, except when a single magistrate is entrusted exclusively with the power. Even the coupling of the authority of an executive council with him, in the exercise of such powers, enfeebles the system, divides the responsibility, 1 See Journal of Convention, 225, 295, 362, 383. [As commander-in-chief of 2 1 Kent's Comm. Lect. 13, p. 264; 3 Elliot's Deb. 103. 3 The Federalist, No. 74; 3 Elliot's Debates, 108. the army and navy, the President may establish rules and regulations for their government; and the rules and orders made and issued by the Secretary of War and of the Navy are to be considered as emanating from him. United States v. Eliason, 16 Pet. 291; United States v. Freeman, 3 How. 556.] and not unfrequently defeats every energetic measure. Timidity, indecision, obstinacy, and pride of opinion, must mingle in all such councils, and infuse a torpor and sluggishness, destructive of all military operations. Indeed, there would seem to be little reason to enforce the propriety of giving this power to the executive department (whatever may be its actual organization), since it is in exact coincidence with the provisions of our State constitutions; and therefore seems to be universally deemed safe, if not vital to the system. § 1492. Yet the clause did not wholly escape animadversion in the State conventions. The propriety of admitting the President to be commander-in-chief, so far as to give orders, and have a general superintendency, was admitted. But it was urged, that it would be dangerous to let him command in person, without any restraint, as he might make a bad use of it. The consent of both houses of Congress ought, therefore, to be required, before he should take the actual command. The answer then given was, that though the President might, there was no necessity that he should, take the command in person; and there was no probability that he would do so, except in extraordinary emergencies, and when he was possessed of superior military talents.2 But if his assuming the actual command depended upon the assent of Congress, what was to be done when an invasion or insurrection took place during the recess of Congress? Besides, the very power of restraint might be so employed as to cripple the executive department, when filled by a man of extraordinary military genius. The power of the President, too, might well be deemed safe; since he could not, of himself, declare war, raise armies, or call forth the militia, or appropriate money for the purpose; for these powers all belonged to Congress. In Great Britain, the king is not only commander-in-chief of the army and navy and militia, but he can declare war; and, in time of war, can raise armies and navies, and call forth the militia of his own mere will.4 So that (to use the words of Mr. Justice Blackstone) the sole. supreme government and command of the militia within all his majesty's realms and dominions, and of all forces by sea and land, and of all forts and places of strength, ever was and is the 3 1 2 Elliot's Debates, 365. See also 3 Elliot's Deb. 108. 3 Elliot's Debates, 103. |