it is principally due to the Presidents, and it is at least doubtful if Congress would have evinced similar wisdom. However that may be, it is important to remark the interpretation given by the Supreme Court and by Congress itself to the constitutional clause in question. On the President is enjoined the high duty of watching over the maintenance of the Union. He will, therefore, repell foreign invasion and suppress domestic insurrection without awaiting the instructions of Congress. In a word, his remaining on the defensive is all that is required to authorize him to act. Possessing such powers, a President, animated with a war-like spirit, is always able to initiate hostilities. In studying the diplomacy of other nations, it would not be difficult for him. to find numerous precedents, and to learn the art of inviting an attack, when, in reality, he would be the aggressor. The issue once made, the honor of the nation once at stake, patriotic sentiments would be excited in the United States probably sooner than elsewhere, and the constitutional guaranty, which intrusts to the Legislature exclusively the power of declaring war, would thus become an empty phrase, signifying nothing.

We thus perceive that the President has, in most all questions of foreign policy, a very large control. The Constitution attempted, without doubt, to restrict it within narrower limits: but custom

has constrained legislators as well as judges to give to these clauses an interpretation generally favorable to his authority. The latter has been augmented and confirmed by the trials to which it has been subjected. Ought the United States to regret that such is the case? It is impossible to think so. The President really comes from the people. He is their representative, and is more fully sustained by public opinion than by legislative assemblies. Nor must we forget that such bodies are, by the nature of things, more liable than he to be controlled by transitory impressions. The reader who desires to convince himself of this fact, has only to glance at the resolutions relative to foreign policy, adopted by the House of Representatives from time to time. This body, so remarkable from many other stand-points, is liable at certain periods to be carried away in quest of the most unsubstantial popularity. Then all restraints are disregarded. Without going further back than 1864, nothing is hazarded by saying that, if its policy in regard to Mexico had then prevailed, war would probably have ensued between France and the United States. In 1866, with a view of gaining some Irish votes, it passed a bill which, had it become a law, would at one blow have destroyed the whole neutrality policy created by Washington and continued by all his successors. In 1870 it was scarcely more prudent on the subject of Cuban affairs. Clearly,

these criticisms do not apply to the Senate. It has almost always evinced a prudent reserve on such questions. But why has this been so? The answer is obvious. This body is more directly in communication with the President; and forming, as will soon be seen, his executive council, it partakes, to a certain degree, the grave responsibility that he incurs. This important distinction should be carefully considered by those who favor the omnipotence of legislative assemblies. Many theorists hold that, representing the people directly, the legislative power is more favorably situated than any other to decide the weightiest matters growing out of the foreign relations of the country, and that the power of making war and peace should be lodged exclusively with it. Nevertheless, the experience of

the United States attests that the executive has alone evinced in a very marked degree a sense of responsibility, and although public opinion would have nearly always justified it in exercising an influence over Congress to further an aggressive and menacing policy toward other nations, it has continually restrained, by its prudent moderation, the ill effects that might have resulted from the precipitate action of the House of Representatives.

CHAPTER VI.

RELATIONS OF THE PRESIDENT TO THE JUDICIAL

POWER OF THE UNION.

HIS is not the place to investigate the very

TH

interesting questions connected with the judicial power, or the organization of the courts. of the United States. The constitutional relations existing between them and the President will alone be considered.

Although by the Constitution the three powers are "equal, co-ordinate and independent," nevertheless the judicial branch occupies a peculiar position in regard to Congress and the President. It does not, in the first place, emanate from the people. It consists of judges appointed for life, who, by this very circumstance, are gradually raised above the impure and troubled atmosphere of party pas

sions. Hence its relative weakness as compared with the other powers, and its imposing moral weight upon the more intelligent classes of society.

At the same time the federal courts are in many respects dependent. The Constitution declares: "The judicial power of the United States shall be vested in one Supreme Court, and in such inferior

courts as the Congress may, from time to time, ordain and establish."1

.

Congress is, without doubt, bound to respect this constitutional provision; but, in conforming to it, may still maintain a preponderance over the judicial department. If it desires, it may, undoubtedly, restrict the appellate jurisdiction of the Supreme Court. It may also enact, as was proposed in 1868, that this court shall not affirm the unconstitutionality of an act of Congress, unless two-thirds of the judges present concur in the decision.2 It can also increase or diminish the number of judges, so as to modify, almost at discretion, the constitution of the court. On the other hand, the President exercises a considerable influence over the

judicial power. It must not be forgotten, that in fact he appoints all the federal judges. As vacancies happen he can, by the selections he makes to fill them, modify the character of the

court.

Notwithstanding the very peculiar status of the Supreme Court, parties on several occasions endeavored to compel it to play a political part of the highest importance. These various attempts were made under the following circumstances. At the close of the presidency of John Adams, the Federal party retired

1 Constitution, Article III, Sec. 1.

2 The House Representatives adopted this measure the 13th of January, 1868. (See McPherson's Political Manual, 1868, pp. 90-91.)