diplomatic representatives is also left largely to the President's discretion, as far as the Senate is concerned; although he often has many party obligations to consider in this connection. Military and naval appointments, especially in times of crisis, are principally subject to presidential control, but political influences are by no means wanting here. It is not often that the Senate interferes with appointments to the Supreme Court. 2. A second group of offices, filled by the President and Senate, is largely subject to the control of the Senators, as a result of the practice known as "senatorial courtesy."1 Under its power to advise and consent, the Senate does not officially attempt to suggest nominations to the President, but by a custom which has grown up, it will only ratify appointments which are approved by the Senators (of the President's party) from the state in which the offices in question are located. If, however, they are located in a state not represented by a Senator of the same party, the President is freer to act.2 Thus it happens that appointments to federal offices within a state represented by members of the President's party are generally made by the Senators, or by the senior Senator, if he is the stronger of the two. This is not always the case, however. For example, President Garfield refused to place before the Senate certain candidates for federal offices in New York suggested by Senators Platt and Conkling of that state. The Senators, feeling that their rights had been infringed by this executive action, thereupon tendered their resignations, but on asking for vindication by the New York legislature failed to be reëlected. Here again, it is not a matter of formal rule, but of time and circumstance - of the character of the President, Senators, and appointees in question.3

3. A third group of offices filled on presidential nomination is composed of minor positions within congressional districts, such as postmasterships in the smaller cities and towns. It has become a settled custom to allow the Representative, if he is of the President's party, to name the appointees of his district; but if

1 Readings, p. 212. These officers include revenue collectors, postmasters in large cities, customs officers, judges of inferior courts, district attorneys,

etc.

If there is no Senator or Representative from a state, belonging to his party, the President consults party leaders in the state in question.

'On this see Reinsch, American Legislatures, pp. 87 ff.

he is not of the President's party the patronage goes to the Senator or Senators, as in the case of offices within the second group. Mr. Bristow, the Fourth Assistant Postmaster-General, recently testified that when there was a vacancy in a post-office, the administration in power would send a request, upon a printed blank, to the member representing the district, if he was in political sympathy with the President's party, asking for the recommendation of some one to fill the place. The advice of the member is not binding, however, if the character or fitness of his nominee is not satisfactory to the government. This patronage is of considerable political importance, and in most states it is used in connection with the local party organization. Thus local

1 H. R. Reports, 58th Cong., 2d Sess., No. 2372, p. 7. Speaking of this necessity of the President's reliance on the recommendations of members of Congress, President Taft said: "A member of a community remote from the capital. . . wonders that a President, with high ideals and professions of a desire to keep the government pure and have efficient public servants, can appoint to an important local office a man of mediocre talent and of no particular prominence or standing or character in the community. Of course the President cannot make himself aware of just what standing the official appointed has. He cannot visit the district; he cannot determine by personal examination the fitness of the appointee. He must depend upon the recommendations of others; and in matters of recommendations, as indeed of obtaining office, it is leg muscle and lack of modesty which win, rather than fitness and character. The President has assistance in making his selection, furnished by the Congressmen and Senators from the locality in which the office is to be filled; and he is naturally quite dependent on such advice and recommendation. He is made more dependent on this because the Senate, by the Constitution, shares with him the appointing power; practically because of the knowledge of the Senators of the locality, the appointing power is in effect in their hands subject only to a veto by the President." Four Aspects of Civic Duty, p. 98.

2 The way in which this system may work out is finely illustrated by this despatch from Washington, printed in the New York Evening Post, of December 18, 1909: "Senator Albert J. Beveridge of Indiana is one of the busiest men in Congress this winter. In the last Congressional election all but two of the thirteen Congressional districts in Indiana went Democratic, and a Democrat was elected Senator, so that Mr. Beveridge has control of the patronage of eleven Congressional districts, as well as of the general patronage of the entire State. All told, the Senator expects to dispose of about 200 jobs this winter, ranging in importance from postmaster to two collectors of internal revenue.

"Realizing his responsibility, the Senator held conferences in many parts of the state before coming to Washington, with a view of ascertaining the wishes of the people most affected. It has been generally supposed that the Senator

influences make their way upward into the federal administration and give a certain amount of autonomy in a highly centralized system. This task of selecting appointees is usually a very vexatious one for the member, for he finds it difficult to please all of his constituents, and sometimes makes more enemies than friends by his appointments.

The power of removal, so indispensable for the conduct of an efficient administration, has been one of the controverted points of our constitutional law, but it seems now to have been settled with a fair degree of definiteness. The Constitution makes no provision for removal except by way of impeachment, but this is too cumbersome a process to be used often, especially for minor places. It was, therefore, early agreed that the right of removal was constitutionally inherent in the right to appoint,' and that the President, without consulting the Senate, could remove the officers whom he nominated. This principle was accepted until 1867, when Congress, then engaged in a bitter controversy with President Johnson, passed the Tenure of Office Act providing that the President must secure the consent of the Senate in making removals. This law, however, was later modified, and in 1887 repealed altogether, so that the former principle seems to be restored, namely, that the President can remove all officers whom he appoints or nominates in the executive branch of the government. The President can even remove before the expiration of the term for which an officer is appointed, and is not required to assign any causes at all for his action.2

would build up a political machine of his own in making these appointments, but the fact is he is retaining many of the old appointees of the Fairbanks organization in office. His friends are beginning to wonder whether Beveridge is playing into the hands of his enemies in his own party, or has won over the old machine to himself."

1

1 So at least many publicists put it, but in strict accord with this principle the Senate should share in removal inasmuch as it shares in the right to appoint. The principle is vague but the practice is certain: the President may remove his appointees.

2

Readings, p. 197. The federal judges, of course, hold office during good behavior and can be removed only by impeachment.

The War Powers of the President

The President is commander-in-chief of the army and navy and of the state militia when called into the service of the United States. He holds this power in time of peace as well as in time of war. The equipment of the army and navy and the right to declare war, however, belong to Congress, and it is not possible to say just how far into the actual direction of the forces Congress may go under its constitutional authority. Some publicists have even contended that Congress can provide that a particular officer shall be assigned by the commander-in-chief to a particular division, or that in case a regiment or company has been despatched to a certain point by presidential order, Congress can countermand the order. If this is true, it is difficult to see why Congress might not in a slow and cumbersome way practically direct the conduct of a campaign. However, it is contended, on the other side, with more reason, that the power of Congress ends with providing and maintaining the army and navy and declaring war; and that the entire command of the military and naval forces is vested in the President, whose guidance, under the Constitution, is the law of nations and the rules of civilized warfare.2

The President appoints all military and naval officers by and with the advice and consent of the Senate, - except militia officers who are appointed by the respective states, and in time of war he may remove them at will. In time of peace, however, they are removed by court martial.

The President is not limited in the conduct of war to the direction of the armed forces; he may do whatever a commander-in-chief is warranted in doing under the laws of war to weaken and overcome the enemy. It was under this general authority, inherent in his office, that President Lincoln, during the Civil War, suspended the writ of habeas corpus in states that were not within the theatre of the armed conflict.3 It was under this authority that he abolished

2 See below, chap. xvii; and Readings, pp. 184 and 308 ff.

The courts have held that Congress has the power to suspend the writ of habeas corpus, but Congress has conferred it on the President.

slavery in many of the states; arrested and imprisoned arbitrarily those charged with giving aid and comfort to the Confederacy; established a blockade of southern ports; and, in short, brought the whole weight of the North, material and moral, to bear in the contest. Greater military power than was exercised by President Lincoln in the conduct of that war it would be difficult to imagine.'

Under his war power, the President may govern conquered territory, appoint officers there, make laws and ordinances, lay and collect taxes of all kinds, and, in short, exercise practically every sovereign right, until Congress has acted. One limitation has been laid on this power by the Court; it was held that, after the ratification of the treaty with Spain, Porto Rico and the Philippines became a part of the United States within the meaning of the revenue acts, so that duties could not be laid by executive order on goods passing from those islands to the United States or vice versa.

The President may use armed forces in carrying into execution the federal law against resistance that cannot be overcome by ordinary civil process. The United States, under the Constitution, guarantees to each commonwealth a republican form of government, and protects it against invasion, and, on application of the legislature or of the executive (if the legislature is not convened), against domestic violence. By act of Congress, the President is authorized to call forth the militia when aid is asked in due form by the authorities of a state struggling against an insurrection. It is by statutory law also that the President is empowered to use the militia or the army and navy whenever, by reason of obstructions, assemblages, or rebellion, it becomes impracticable, in his judgment, to enforce federal law within any state or territory by the ordinary course of judicial procedure. It was under this authority, and his general obligation to see to the faithful execution of the law, that President Cleveland used federal troops during the Chicago strike.?

1 Readings, p. 69; see below, chap. xvii.

Readings, p. 317.