The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1854-07-04
THE CUBAN FILiBUsTERs.
The Constitutionality OF tho Presidents Proc
lamalAOns.

The history Of nations teaches one universal truth,
namely, that administrative power in govern
ment has an eternal tendency to augmentation:
nursed into extension, and under pleas of necessity,
the public good or the holder warrant Of undis-
guised usurpation, it's dmenEons are enlarged, till,
like the frog In the fable It's END Is explosion. De
GLANCE and integrity may do much to postpone the
catastrophe, but the cankerous evil is never cured.
One Of the most popular cheats by which power
guises of precedent. One bad precedent readily
gets others, and all standards for mitati0n3
Whether originating in willy craft, blind zeal, o.
honest ignorance, they are equally potent for mis-
ated too readily follow them as examples.
l do much regret that President Pierce has made
bis present demonstration in this line of bad prece-
dents For though he has avoided the nellous
like OCCASION and has perpetrated no such discre-
ditable bunder as to affect to commission the mill
tary with the functions Of the tip staff by virtue OF
discreet, and his object, as expressed, seems to
have been considerably studied, still it is sub
mitted his views, policy and opinions, so published,
are not timely and well advised, and the power
asserted more than questionable t+t'
propose 0 brief inquiry into the authority for
such proclamation, and of its objects, and the
policy and opinions therein expressed.
General Pierce says that it is f" in virtue of the
authority vested by the constitution in the President
of the United States that he issues this proclama-
tion. Now, we have many laws Of Congress which
give the power or make it the duty of the President
10 issue procamations in the particular cases which
these laws have specified. Such is his duty by law,
in cases of domestic instructions. But our neutral
ity laws have enjoned no such duty, and given no
such power. And to all Wig have read the con-
it contains express authority to the President to
issue procamations Of this or any other descrip-
ton; and maintain the authority is not fairly i'm
piled. What ia proclamation-an official procla-
m To M IN mo nf
not previously denoted to the public And must it
NOT carry with it some inherent authority or declare
the establishments of some rule or authority not pre-
viously established2 If less than this, it is
mere brutum faimen, or simple notice, not Of
what the President win do, or will have done,
aB matter of official discretion, but that he ex-
poets that himself and his subordinates will do
their duty as the laws enjoin. If this be all, it
10 not worth the ammunition so pompousy expend-
ed; and if less than this, it is without au-
thOrity. Now, where laws direct the President to
make proclamation, it is for some purpose denoted
by the law, or where the binding force Of laws as
made dependent upon the issuance of official pro-
clsmston, or suspended laws are terminated by
proclamation, we perceive practical use to such
is connected with the law of 1918.
These proclamations," says Justice Blackstone,
have then . binding f0rce-when Gas Sir Edward
Coke obselvesl they are grounded upon and enforce
the laws Of the realm; for though the making of
the laws ia entirely the work of distinct part the
legislative branch Of the sovereign power, yet the
manner, time and circumstances of putting those
laws in execution, must frequently be left to the
discretion Of the executive magistrate, and there
fore his constitutions or edicts concerning these
apon the subject" &c.
Now, who will pretend President Pierce's procla-
nation is an edict' of this description But
further, says the same author:-
From the same original, Of the kings being the foun
tain Of justice we also deduce the prerogave Of issuing
proclamations, which is vested in the king alone.
hOvy <ho G,rp nnr - 80 ~ L..
decided that the government of the United States
has no prerogative. How, then, has our President,
independent Of legislative grant, become invested
with Ms this kin hhinsy prerogstive? .,.,.... -,
issued, independents of law, by President Wash
mgton, in 1898, it was widely and violently de-
Asunced as umrpation by the whole demo-
cratic party. 1t devolved upon that great man
he great Ajax Of executive powereAlexander
Hamilton, to eviscerate from the constitution vim
dication of this act. The principal points Of his
argument were to this effect A proclamation was
"a usual and proper MEASURE on like occasions;
and to issue proclamation was an executive act.
And the constitution of the United States vested
the Executive power" in the President Of the Uni
ted States ergo, it was by constitutional author
tsality.
Mr.. Madison, q much ADLER expositor of the
constitution, in assailing this fimsy sophism,
showed most conclusively that if the powers of
the President were to be ascertained, by show
ing what were executive powers in the abstract,
- known or defined in governments elsewhere,
there was NO difficulty in establishing for the Presi-
The democratic intelligence Of that day was fully
satisfied that President Washington's proclamation
was without constitutional warrant Yet it must
be acknowledged that democrats have not since
hesitated to follow his example. Under these cir
eumstances, it may be admitted the Presidents
transgression in this case is comparatively venial.
Yet who shall say it not better 1t had the clear
sanction of the constitution
u In mad no no. hnvv hot Dro-
sident Pierce refers for his authority to that
Ascile and Astounding source Of executive power,
that the President "shall take care that the
laws be faithfully executed" All remember
how Amos Kendall pressed the omnipotence Of
this source Of executive power. The curt re-
ply, and pointed exposition, of this text by the
Supreme Court of the United States, may be
seen in 18th vol. of Peters Reports, pp 6l2-6l3.
Time not allowed me for the ample exposition
Of this clause of the constitution of which It is sus-
eeptible. But brief analysis will show it gives no
warrant for this proclamation.
Now, in the first place, this proclamation is es-
sentialy preventive, and aims, by it's counsel and
monitor, to dissuade the citizen from committing
breach. OF the law, which is supposed to be medi-
tated. Such counsel may be very good in its way,
private friendship of private citizens; and auch ad
But the best wishes Of the President to prevent
breach Of the laws cannot by any logic connect it.
SELF with his duty to take care that the laws be faith
fully executed. Laws not broken cannot be exc
suted by Observance merely. All know that, in
legal sense, the execution Of the law follows judg-
mont. More literally construed, it is the enforce
ment of the penalty Of the law after its infraction
And in this sense, all the duty of the President
his peint Ia included. As supervisor of all ministe
rial officers subject to his control if they fail in
oaty and violate the law, they incur the penalty Of
removal from Office, and such other penalties as the
law has prescribed to be adjudged by the courts Of
justice.
But the President has no supervising power
ever the judiciary. He has no duty or respon-
sibility for the manner in which the judges per-
formed their duties. But when they have pro-
neunced judgment it 10 then the duty Of the Presi
esnted, a. the court has adjudged. And for this
responsible duty he is armed with all the military
power Of the government. II, therefore, we have
tAs proclamation is not found in the constitution,
end being without law, is unwarranted.