step in the execution of laws, and the American Congress, unlike the British Parliament, has no executive function. It may apportion the punishment; it may make that punishment conditional; but when it has once decided upon the penalty, its authority would seem to be ended. Remission is a proper act of the President and not of the legislature.

SECTION VI.

THE POWER OF THE PRESIDENT TO GIVE INFORMATION AND TO RECOMMEND MEASURES TO CONGRESS.

$697. "He shall from time to time give to the Congress information of the state of the Union, and recommend to their consideration such measures as he shall judge necessary and expedient." The necessity of the first clause is apparent. By virtue of his official position the President becomes acquainted with a vast detail of facts which are most important for Congress to know, but which that body possesses no means of knowing except through the Executive. Thus the items and total amount of the revenue and of the expenditure, upon which so much of the economical legislation is based; the situation of our relations with foreign countries; the number and disposition of the land and naval forces; the character, cost, and condition of the armaments and supplies, — these and a thousand other matters of detail are first known by the Executive Department, and must be communicated by it to Congress, as the basis of the annual or occasional legislation.

§ 698. From the very organization of the present government the practice has been uniform for the President to communicate the greater part of this information in a message sent to Congress at the opening of each session. This message is accompanied by a full and minute detail of the various operations of each department during the year. The President may at other times transmit information; and the Congress, or either House, may request more particular statements respecting any matter deemed by them important. When a demand is made, the President may, and often does, withhold the facts,

if in his opinion their communication at the time would be prejudicial to the public interests. Congress may have requested information concerning matters over which they have no direct legislative power; but the President cannot refuse, on that ground alone, to make the statement. It would be almost, if not quite impossible, to conceive of any facts respecting the condition of the nation, which could not in some manner be made useful by Congress in matters entirely within its jurisdiction. Even if every other possible reason failed, all information must be useful, as it would affect the oversight which the House of Representatives may always have of civil officers, and their power to impeach such officers.

§ 699. Thus, during the late civil war, the two houses appointed a joint committee on the state of the war, which collected a vast amount of evidence respecting the various military operations. Now, Congress has very little to do, in any direct manner, with the conduct of war, and the information obtained could not be used as the basis of any immediate legislation upon military movements. But the knowledge thus acquired was of the highest value as an aid in forming correct conclusions upon the all-important subject of supplies. Congress has very little to do in a direct way with the management of foreign relations; but a knowledge of those relations may be absolutely necessary as bearing upon the question of declaring war, or of raising an army or equipping a navy in preparation for anticipated hostilities. In conclusion, all information on all possible subjects connected with the welfare of the country, may be useful to Congress, and may be demanded by them. The President cannot refuse to respond on the ground that the facts can be of no use to the legislature; Congress, not he, must judge of their value. But the President may decline to communicate at the time, when in his judgment the public welfare requires the facts to be kept private; as soon as the necessity for such concealment is past, he must respond to the legislative call.

§700. The second clause - he shall recommend to the consideration of Congress such measures as he shall judge necessary and expedient seems to have a plain and definite

meaning; and the power, according to that meaning, is reasonable and just. But a signification has been given to it, during a large part of our political history, entirely different from that which must have been contemplated by the framers of the Constitution; and a practice has grown up utterly opposed to the spirit of the organic law. The President, having access to information, and being familiar with the practical working of the laws, will be sure to perceive the occasions for amendments, additions, repeals; in short, for measures which he deems necessary or expedient. These improvements and alterations he may recommend to Congress. I do not think that a fair interpretation of the clause would require him to stop with a simple suggestion; he may, doubtless, state facts and use arguments in support of his views; may endeavor, to the best of his ability, to show why the proposed measure is necessary or expedient. So much is plainly embraced in the word recommend. All this is simple, satisfactory, in strict accordance not only with the letter of the clause, but also with the spirit of the whole instrument. The President uses his prior official knowledge; is convinced from that knowledge that certain measures are demanded; proposes those measures to Congress with whatever of argument he thinks proper, and there leaves the matter. He has discharged his duty, and the responsibility is now with the law-making power.

§ 701. How different is the reality from this picture. How often have Presidents and their cabinets seemed to regard themselves as the great legislative department, and the Congress as a body expected to receive and act upon their views. Not content with recommending measures, they have frequently set themselves at work, with all the appliances at their command, to procure those measures to be adopted, as though the passage of certain statutes was the chief object of their administrations, and the chief work of their official career. The evil is not a recent one; it had its origin immediately after the time of those Presidents who assisted in laying the foundations of the government, but it has developed with rapidity in recent years.

§ 702. While the President should not be interfered with in

the discharge of those functions which are committed to him by the organic law, the legislature should be left no less free to act within their own peculiar sphere and range of duties; the Chief Magistrate should not overstep the line which separates their respective domains. The Constitution evidently contemplates the Congress as the great legislative body, and the President as the great executive officer. This is undoubtedly the essential, the fundamental idea of the general plan. The organic law does, indeed, recognize two exceptions to the universality of this principle, and beyond those exceptions neither Congress nor President should go. One exception has just been stated. The other exists in the fact that the President must pass upon all statutes, and approve or disapprove; and that, if he disapprove, he must give his reasons therefor. This, as I have before shown, makes him in a certain sense a coordinate branch of the legislature; and he may, therefore, and indeed must, have his opinions as to the policy of enactments which have gone through the Congress. But he cannot originate measures, or debate them, or express his views upon them, except when he disapproves of a bill presented to him, or when he recommends them to the consideration of the legislature. The spirit of the Constitution, which separates the legislative and executive functions, is departed from to this extent, and no more. It cannot be denied, however, that the modern practice has departed from that spirit much farther, and has thereby tended to destroy one of the principal safeguards of every free, constitutional government — the independence of the Executive and Legislative Departments. The final and perfected result of this practice would be the accumulation of all governmental power in the hands of the sole executive officer; Congress would be virtually driven from its position as an independent, co-ordinate branch, and made the mere registrar of the President's informal decrees. This gradual change from the letter and spirit of the organic law, and the growing tendency to treat all offices as mere political rewards, and the employment of the appointing power as a means of influencing legislation, have certainly weakened the well-contrived system of checks and balances which ought to have

prevented either branch of the government from usurping the functions of any other.

SECTION VII.

THE POWERS OF THE PRESIDENT AS COMMANDER-IN-CHIEF.

§ 703. "The President shall be Commander-in-Chief of the army and navy of the United States, and of the militia of the United States when called into the active service of the United States." In this connection we may read Article I. Section IX. § 2: "The privilege of the writ of habeas corpus shall not be suspended, unless when, in cases of rebellion or invasion, the public safety may require it."

The President is thus clothed with a most important military function he is to command the forces at all times, Congress never commands them; as such commander, he wages war, Congress never wages war. We must endeavor, however, to ascertain the exact limits of this attribute, and to distinguish it from the ordinary duty of executing the laws. The legisla lature alone furnishes the occasions upon which it can come into play, but cannot interfere with or control the attribute itself. Congress raises and supplies armies and navies, and makes rules for their government, and there its power and duty end; the additional power of the President as supreme commander is independent and absolute. Mr. Chief Justice Chase very clearly and correctly expressed this general principle in Ex parte Milligan.1 He said: "The power to make the necessary laws is in Congress, the power to execute in the President. Both powers imply many subordinate and auxiliary powers. Each includes all authorities essential to its due exercise. But neither can the President in war more than in peace, intrude upon the proper authority of Congress, nor Congress upon the proper authority of the President. Both are servants of the people whose will is expressed in the fundamental law." The legislative powers which relate to the raising, equipping, supplying, and governing the land and naval forces, have nothing in common with the separate and distinct

14 Wallace's R. 2, 139.