The indefinite character of the war power. Constitu tional provisions. address had proceeded from no intention in the executive council of France to question the functions of the President, and therefore no difficulty was made in issuing the commission. But in your letter of the 14th instant, you personally question the authority of the President and in consequence of that have not addressed the commissions of Messrs. Pennevert and Chervi, making a point of this formality on your part; it becomes necessary to make a point of it on ours also; and I am therefore charged to return to you those commissions, and to inform you that, bound to enforce respect to the order of things established by our constitution, the President will issue no exequatur to any consul or vice-consul, not directed to him in the usual form, after the party from whom it comes has been apprized that such should be the address. I have the honour to be, &c. TH. JEFFERSON. 74. The War Powers of the President There is an old saying to the effect that in times of war the laws are silent, and from the nature of the case this must be to a great extent true, even in the most democratic governments. The critical problems of conducting a campaign must be met with decision, promptness, and consistent action in which appropriate means are adapted to the end sought the achievement of victory. Clearly the powers of the President as chief magistrate and commander-in-chief cannot be narrowly laid down in definite rules. Accordingly, there will always be differences of opinion as to the validity of acts of the President under his military authority, but the following statement by President Polk, in defense of his policy of levying contributions in Mexico, seems to be a fair interpretation of the power of the President in the conduct of war. By the Constitution the right to "declare war" is vested in Congress, and by the same instrument it is provided that "the President shall be Commander in Chief of the Army and Navy of the United States" and that "he shall take care that the laws be faithfully executed." When Congress have exerted their power by declaring war gainst a foreign nation, it is the duty of the President to prosecute The Constitution has prescribed no particular mode in which e shall perform this duty. The manner of conducting the war not defined by the Constitution. The term war used in that strument has a well-understood meaning among nations. That meaning is derived from the laws of nations, a code which is recogized by all civilized powers as being obligatory in a state of war. The power is derived from the Constitution, and the manner of xercising it is regulated by the laws of nations. The Presi trolled by the law of dent con nations. President may con When Congress have declared war, they in effect make it the How the uty of the President in prosecuting it, by land and sea, to resort o all the modes and to exercise all the powers and rights which duct war. ther nations at war possess. He is invested with the same power a this respect as if he were personally present commanding our leets by sea or our armies by land. He may conduct the war by ssuing orders for fighting battles, besieging and capturing cities, onquering and holding the provinces of the enemy, or by capturng his vessels and other property on the high seas. But these are not the only modes of prosecuting war which are recognized by he laws of nations and to which he is authorized to resort. The evy of contributions on the enemy is a right of war well established nd universally acknowledged among nations, and one which every belligerent possessing the ability may properly exercise. The nost approved writers on public law admit and vindicate this right s consonant with reason, justice and humanity. cannot prescribe the details of campaign Upon the declaration of war against Mexico by Congress the Congress United States were entitled to all the rights which any other nation t war would have possessed. These rights could only be demanded and enforced by the President, whose duty it was, as Commander in Chief of the Army and Navy of the United States," o execute the law of Congress which declared the war. In the act declaring war Congress provided for raising men and money o enable the President "to prosecute it to a speedy and successful ermination." Congress prescribed no mode of conducting it, Many war powers not defined in the Constitution. Large war powers necessary to success. but left the President to prosecute it according to the laws of nations as his guide. Indeed, it would have been impracticable for Congress to have provided for all the details of a campaign. The right to blockade the ports and coasts of the enemy in war is no more provided for or prescribed by the Constitution than the right to levy and collect contributions from him in the form of duties or otherwise, and yet it has not been questioned that the President had the power after war had been declared by Congress to order our Navy to blockade the ports and coasts of Mexico. The right in both cases exists under the laws of nations. If the President cannot order military contributions to be collected without an act of Congress, for the same reason he cannot order a blockade; nor can he direct the enemy's vessels to be captured on the high seas; nor can he order our military and naval officers to invade the enemy's country, conquer, hold, and subject to our military government his cities and provinces; nor can he give to our military and naval commanders orders to perform many other acts essential to success in war. If when the City of Mexico was captured the commander of our forces had found in the Mexican treasury public money which the enemy had provided to support his army, can it be doubted that he possessed the right to seize and appropriate it for the use of our own Army? If the money captured from the enemy could have been thus lawfully seized and appropriated, it would have been by virtue of the laws of war, recognized by all civilized nations; and by the same authority the sources of revenue and of supply of the enemy may be cut off from him, whereby he may be weakened and crippled in his means of continuing or waging the war. If the commanders of our forces, while acting under the orders of the President, in the heart of the enemy's country and surrounded by a hostile population, possess none of these essential and indispensable powers of war, but must halt the Army at every step of its progress and wait for an act of Congress to be passed to authorize them to do that which every other nation has the right to do by virtue of the laws of nations, then, indeed, is the Govern ment of the United States in a condition of imbecility and weakness, which must in all future time render it impossible to prosecute a foreign war in an enemy's country successfully or to vindicate the national rights and the national honor by war. 75. The Political Implications of the Veto Power * of the veto power. According to the theory of the Constitution as expounded by The original Hamilton, it was the intention of the Framers that the veto purpose should be used to protect the executive from encroachment on his powers by the legislature, and also to prevent hasty and improper legislation. In actual practice, however, the veto has often been used for purely political purposes to further the policies of the executive. The methods employed by President Jackson are described and criticised by Mr. Webster in the following speech, in which he calls attention not only to the regular veto, but also to another kind of negative in form of a flat refusal to execute laws duly passed.1 The practice of early Presi Mr. President, among the novelties introduced into the government by the present administration is the frequent use of the President's negative on acts of Congress. Under former Presidents, dents. this power has been deemed an extraordinary one, to be exercised only in peculiar and marked cases. It was vested in the President, doubtless, as a guard against hasty or inconsiderate legislation, and against any act, inadvertently passed, which might seem to encroach on the just authority of other branches of the government. I do not recollect that, by all General Jackson's predecessors, this power was exercised more than four or five times. Not having recurred to the journals, I cannot, of course, be sure that I am numerically accurate in this particular; but such is my belief. I recollect no instance in the time of Mr. John Adams, Mr. Jefferson, or Mr. John Quincy Adams. The only cases which occur to me are two in General Washington's administration, two in Mr. Madison's, and one in Mr. Monroe's. There may be some others; but we all know that it is a power which has been very 1 For the clause conferring the veto power, see below, p. 217. The President decides how far a has been superseded by the law of the State, and therefore he will not carry its provisions into effect. Now we know, Sir, that the Constitution of the United States declares, that that Constitution, and all acts of Congress passed in pursuance of it, shall be the supreme law of the land, anything in any State law to the contrary notwithstanding. This would seem to be a plain case, then, in which the law should be executed. It has been solemnly decided to be in actual force, by the highest judicial authority; its execution is demanded for the relief of free citizens, now suffering the pains of unjust and unlawful imprisonment; yet the President refuses to execute it. In the case of the Chicago Road, some sessions ago, the President approved the bill, but accompanied his approval by a message, law is to be saying how far he deemed it a proper law, and how far, therefore, it ought to be carried into execution. enforced. Jackson's The logical effect of this theory. In the case of the harbor bill of the late session, being applied to by a member of Congress for directions for carrying parts of the law into effect, he declined giving them, and made a distinction between such parts of the law as he should cause to be executed, and such as he should not; and his right to make this distinction has been openly maintained by those who habitually defend his measures. Indeed, Sir, these, and other instances of liberties taken with plain statute laws, flow naturally from the principles expressly avowed by the President, under his own hand. In that important document, Sir, upon which it seems to be his fate to stand or fall before the American people, the veto message, he holds the following language: "Each public officer who takes an oath to support the Constitution, swears that he will support it as he understands it, and not as it is understood by others." Mr. President, the general adoption of the sentiments expressed in this sentence would dissolve our government. It would raise every man's private opinions into a standard for his own conduct; and there certainly is, there can be, no government, where every man is to judge for himself of his own rights and his own obligations. Where every one is his own arbiter, force, and not law, is |