organ for determining differences of opinion between the legislature and executive touching the nature and tendency of any given project of law. It is at least a simpler solution to make the veto power general; to trust to the wisdom and temperance of the executive not to use it too freely upon subjects not involving executive prerogative and administrative measures, and to trust to the chambers not to override the veto where the project of law does trench upon the sphere of executive independence.

4. The constitution makes no provision at all concerning the promulgation of the laws. This is naturally an executive function. The Congress has by statute imposed this duty upon the Secretary of State.1 This statute requires that the Secretary of State shall receive the law immediately from the President, if approved by him, or if not disapproved within the time prescribed by the constitution; and if disapproved by him but passed over his veto, from the presiding officer of that chamber in which it has been last considered and voted; and that the Secretary shall, so soon as convenient, cause the same to be published in certain newspapers, etc. Publication and promulgation are thus treated as the same thing, and are regarded as merely ministerial functions, conferring no discretionary power upon any body.

It is true that the exact time within which the Secretary of State shall publish the law is not fixed. The phrase, "so soon as convenient," gives him some latitude; but this is a matter of no great importance, since the law takes effect from the date of its approval by the President,2 or the date of its passage over the President's veto by the last chamber which votes thereon, or the tenth day after it shall have been placed before the President for his signature, in case he neither approves nor disapproves it. It is the President's duty, of course, to hold the Secretary to the proper discharge of this

1 United States Revised Statutes, sec. 204.

2 Gardner v. The Collector, U. S. Reports, 6 Wallace, 504.

function. There is no difficulty about that part of the process. But it is hardly within the power of the legislature to command the executive to transmit a law to the Secretary of State or to any other officer or person. The legislature may confer a power upon the President, but it cannot command him. The constitution alone can do that. It is an omission in our constitutional law that no provision is made therein for the promulgation of the laws.

III. The Powers of the President in Civil Administration. The chief power of the President in civil administration is a duty as well as a power, viz; to procure the execution of the laws. This is the chief end for which powers are conferred upon the President. If no express provision of the constitution had vested any body with the power of appointing the necessary officials for the execution of the laws, it might have been inferred that the power belongs to the President as incident to his duty to procure the execution of the laws; and the imposition of this duty certainly means that the President has the power to put the primary interpretation upon the laws, and to use the means placed within his hands for procuring their execution in such order and manner and to such degree as the constitution and the laws of the United States permit.

The constitution, however, regulates the manner of the appointment of the officials. I have already stated the law upon this subject as respects the appointment of the officials of the diplomatic service. It is the same for all other civil officials, except those inferior officers whose appointment is vested by statute law in the President alone, or in the heads of departments, or in the courts.1 The Congress must, of course, determine which are these inferior offices. The way is here open for the legislative department to deprive the executive of his participation in the appointment of a large number of officers, by vesting the power of appoint

1 United States Constitution, Art. II, sec. 2, § 2.

ing the same in the heads of departments, or in the courts This is, however, not much more than a theoretical consideration. The fact that the executive nominates and may dismiss the heads of the departments prevents any practical encroachment upon his prerogative through this avenue of approach.

The law of dismissal, as explained in connection with the tenure of the diplomatic officials, also holds in reference to all other civil officials nominated or appointed by the President.

The primary interpretation placed upon the statute law by the executive in the course of its execution is subject to revision both by the legislative power, in explanatory and modifying enactments, and by the judiciary, when the latter chooses to assume jurisdiction. The Jacksonian doctrine that each department interprets ultimately as well as primarily has not stood the test of our experience. It is an anarchic theory and cannot advance much beyond statement with so politically practical a people as those of Teutonic blood and character. The executive interpretation is, however, the law of the land until it shall have been regularly revised by new legislative acts or judicial decision. The question is not so simple, however, when we come to the interpretation of the constitution. There are parts of the constitution which may be executed by the President without the aid of Congressional enactments; for example, the powers of military commandership. The President may thus interpret the constitution as well as the statutes in the process of executing the laws. If a proper case can be framed, the judiciary may revise the executive interpretation in this respect. If not, and if the two houses of the Congress cannot override the veto which the President may put in the way of their revising his interpretation by a statute, then the President's interpretation becomes, in fact, ultimate. This method of regulating this most important matter is, indeed, subject to the criticism of being complex and shifting, but

It

it contains no legal contradictions. Ultimate interpretation in all cases by the same body would be more simple. would be likely, however, to be also much more arbitrary.

As to the order in which the President may use the means of power confided to him by the constitution and the statutes of Congress for the execution of the laws, there is no question that the ordinary uninterrupted civil administration must be through the civil officials, that the resistance to the same by individuals or small combinations of individuals should be dealt with through prosecution in the courts, and that where such resistance amounts to insurrection or rebellion, the executive is authorized by the constitution to use the military power. The President must determine when such resistance becomes rebellion; and, in the use of the military power, he is left to his own discretion in selecting the particular arm of the military, subject to his command, which he will employ. IV. This last consideration leads us to the question of the military powers of the President.

The constitution vests in him the commandership-in-chief of the army and navy of the United States, and of the militia of the several commonwealths when called into the service of the United States.1 The constitution does not construct either the army or the navy, and does not provide immediately for the bringing of the militia of the commonwealths under the President's command. As we have already seen, the constitution confers these powers upon the Congress. The Congress has created a standing army and navy upon the volunteer enlistment principle,2 a militia upon the principle of the universal military duty of all able-bodied male citizens between the ages of eighteen and forty-five years, and has authorized the President himself to call any part of the militia under his command, whenever, in his judg

1 United States Constitution, Art. II, sec. 2, § I.

2 United States Revised Statutes, p. 202 ff.; Ibid. p. 244 ff.

8 Ibid. p. 285.

ment, danger from invasion or rebellion requires it, by issuing his orders to such officers of the militia as he may think proper;1 and the court has decided that the President alone is the judge as to when the exigency shall have arisen requiring the calling of the militia or any part thereof under his command, and that disobedience to his orders in regard to this matter will subject the person disobeying to the jurisdiction of the court martial.2

The legislature might abolish these statutes and leave the President without any army or navy to command; but so long as they exist, it cannot legally encroach upon his constitutional prerogative of commandership-in-chief. The various powers included in this prerogative are not stated in detail in the constitution. In determining their character and scope, we must therefore resort to implication. Here we can gain little aid from judicial decision. The questions here involved are, for the most part, those of high public policy. The general principles of political science and governmental custom must be our guide.

From this standpoint, we should say, in the first place, that the disposition of the forces, both in time of war and of peace, is a constitutional power of the President. The Congress has no power, in creating the forces, to designate the localities to which they shall be assigned and in which they shall remain. The Congress cannot foresee when and where the forces will be needed in repelling invasion, quelling rebellion, and executing the laws. These questions can be answered only according to the exigencies of the moment, and their answer requires individual discretion and prompt decision. It is a function of commandership-in-chief. The same reasoning would attribute to the commander-in-chief the power of making distribution of the materials of war.

In the second place, the supervision of the execution of

1 United States Revised Statutes, sec. 1642.

2 Martin v. Mott, U. S. Reports, 12 Wheaton, 19.