The New York herald., 1868-04-19

daring, Infamous enough 10 advise his sovereign To
diner IN opinion from his Parliament" This
grand action or the Commons and its result dis
closed the submest feature of the British constitu-
ton. II Is made to appear how thoroughly under
that constitution the executive power dependant
the legislative will OF the nation. The doctrine
that the King can do no wrong, while 1t protected
his person, was resolved into an almost perfect
subordination OF the Ministers through whom the
powers OF the crown are exerted TO the acts and
resolutions OF The Parliament-until at last
the roar OF The lion Of England is no more
than the voice of the Commons OF the realm.
50 completely had this principle asserted itself
III the Brlilsh constitution that the veto power
had passed INTO d,suse Tor nearly century, and 1t
has not been exercised since. The last Instance of
its use was in April, 1896, when William Ill. refused
members 10 serve In Parliament. (Iiarsard, vol. s.
p $685. The men who framed our constitution in
1897 were not untaugh of these facts in English his
tory ana they fashioned out the government on the
plan OF the snbordnation Of the executive power to
the written law of the land. They did not deny the
that 1t should be subject to legislative limitation
under the operation OF which 1t might In any
given case case be overrued by the Congress, and
comes law the President must yield the
convictions Of his own judgment individual to
the demands OF the higher duty OF the office and
execute the law His oath binds him to this and he
cannot pursue any other course OF action without
endangering the public veal The constitution re-.
CARDS him in double capacty-as citizen and pub
lie otiicer In the first it leaves him 10 The same ac-
countability to the law in its ordinary process as
would attach to and apply In case he were civilian
>'''"N't
jects him 10 the power OF the House Of Representa-
tives TO impeach and that of the Senate to remove
him from office If he be guilty Of treason bribery
other high crimes and misdemeanors. II the cti-
zen disobey the law and be convicted thereof, he
may be relieved by pardon; but the officer who brings
upon himself conviction or impeachment cannot
receive the Executive clemency; for while it Is
provided that 'the President shall have power to
grant reprieves and pardons for offences against the
United States 1t Is also expressed and declared that
this power shall not extend to cases Of impeacll-
ment. ARTICLE H. section ~ The same person, II
hA civil iv ,l..f ton
OF law and impeached for the same act. II convicted
in both cases he may be pardoned I'm the former; but
IN the latter he Is beyond the reach OF forgiveness.
The relief provided for the dsObedient citizen Is
denied the offending officer. / have already OBJ
served that the constitution of the United States dis
tributes the powers Of the government among three
departments. First in the order Of constitutional
arrangement is the legislative department, and this,
doubtless because the lawmaking power is the su.
prene power 0i the land, through which the VIII OF
the nation is expressed. The legislative pOwer-in
other words the lawmakng power-is 'vested in
the Congress Of the United States" The acts OF
Congress constitute the municipal law OF the repub-
lie. 'Muncipa law is a rule OF action prescribed by
the supreme power Of State, commanding what
ever Is right and prohibiting what Is wrong" IL
Blackstone, page ~ The supreme power OF Il State
is that which is highest in authority and therefore 1t
was proper that the constitution should name first
the legislative department in the distribution Of
power through 1t alone the State can speak. It's
voice is the lawte rule of action to be respected
and Obeyed by all persons subject to It's direction
amenable to its requirements. Next In the order OF
its distribution of powers the constitution
names the executive department.. This is
proper and logical, for the viii, the law of
the nation cannot act except through agents or
instrumentalities charged with It's execution. The
Congress can enact a law, but it cannot execute it,.
1t can express the will OF the nation but other
agents are required TO give it effect. The consitu-
ton resolves these agencies and nstrumentaliiles
into an executive department. AT the head OF this
department. charged imperativcly with the due
execution Of its great powers, appears the President
p he s vnssa be- y II If the Whch
he Is to execute does not invest him with discrc-
tonary power he has no election. He must execute
the will of the nation as expressed by Congress. In
no case can he indulge in the uncertainties and
Responsibilities OF official discretion unless II be
conceded to him by express enactment. In all
other cases he must follow and enforce the
legislative WILL ''lhc Office Of executing law eX-
cudes the right to Judge Of it," and the consttu
tion charges the President with the execution OF tine
laws it declares what is his duty and gives hin no
power beyond" RawIe on the Constitution, page
1917 Undoubtedly lie possesses the right TO recoi-
mend the enactment and to advise the repeal OF
laws. lie may also, as have before remarked,
obstruct the passage Of laws by nterposlng his veO
Beyond these means Of changing, directing or OBJ
structing the national will he may not 20. "When
the law making power has resolved his opposition
must be at an end. That resolution Is u law
70) The Judgment OF the Individual intrusted
for the time being with The executive power vi The
republic may reject rs utterly erroneous the concu
sion arrived at by those invested with the legislative
IS'i law; he I Haa II 10 dsire5n ii {ht Fsnlss except
such as the particular statute conlers on him: and
even this he must exercise in obedience TO the rules
which the act provides high officer OF the govern
ment once gave to President Of the United states
an opinion relative TO this doctrine In these wOrds:
''r0 the Chief Executive Magistrate OF the Union Is
conded the solemn duty OF seeing the law faithfully
executed. That he may be able ~ meet this duty
with power equal to its performance he nomlnates
his own subordinates, and removes them at his
pleasure This opinion was given prior TO the pas
sage of the act OF March 2, 1907, which requires the
concurrence OF the Senate In removals from
Office; which, while denying to the Presl-
dent the power OF absolute removal, comedies
IN nm 10 slSDpul Oftiger, Aid to suDDly
their places temporarily For the same reason The
land and naval forces are under his orders as their
only in the manner prescribed by .he legislative
department. lie cannot accomplish legal purpose
by illegal means, or break the laws himself 10 pre-.
vent them from being violated by Others. The acts
OF Congress sometimes give the President
broad discretion in the use Of the
ted, and sometimes limit the power so that he
can exercise 1t only in certain prescribed manner.
When tile law directs thing 10 bc done without
saying how, that implies the power 10 use such
pslI the end Of the legislature; but where the mode
of performing duty Is pointed out Dy statute tnat
The United States have no common La W To fall back
upon when the written law Is detective. II, there
FORE act OF Congress declares that certain thing
shall be done by u particular Ofilcer, IL cannot be
done by different officer. "rhe agency which the
law furnishes for It's own execution must be used To
the exclusion OF all others.- lOpinlon Of Attorney
General Black, November 20, 1861 This IL very
clear statement OF the doctrine on which the parcu-
lar DriIcn Ol Iiils case now our
tion rests. II we drift away from IT we un.
settle the very foundations OF the government and
endanger its stability to degree which may well
alarm the most peaceful minds and appalthe most
courageous. departure from this view OF the
character Of the Executive power, and from the
nature Of the duty Of the obligations resting upon
the officer charged herewith, would surround this
nation with perlls OF the most fearful proportion and
OF unparalleled magnitude. such departure would
not only justify the respondent In his refusal TO obey
and execute The law, but also approve his usurpa-
ton OF the judicial power when he resolved that he
would not observe the legislative will, because, IN
his Judgment II did not conform TO the prov isions OF
the constitution OF the United states touching the
subject embraced in the articles Of lmpeach-
ment, which he Is now being tried al
your bar. Concede this TO him, and when
and where may we look for the end2 To
what result shall we arrive9 VIII II not naturally
and inevitably lead to consolidation OF the several
powers Of The government in the executive depart
nentY And would this be the ends Would II not
rather be but the Deginningy II tile President may
defy and usurp the powers OF the legislative and judi
cial departments Of the government ~ his caprices
on the advice OF his Cabinet NAV incline him, why