New-York tribune., 1905-01-19
TIE EEErrTTI-E POWER.

Mr. Charles A Gardeners address on THE
Constitutional Powers Of the President" deliv-
cred Yesterday before the State Bar Assocla-
tion. brings some interesting and entirely novel
ideas into the field of constitutional inteTpreta-
ton Whether or not one agrees with his views
of the extent Of the executive function IN our
government il must certainly be admitted mat
he establishes on firm ground a conception OF
much larger independent powers for this Co
ordinate branch of national authority than
lawyers and Congressman have often been In
clined 10 concede He shows clearly that the
President IS no mere executive clerk carrying
ont the orders Of Congress and the courts.
Within his sphere he is supreme, and his sole
will is as much law as legislative enactment or
iudicial decision. The idea that the President
could be robbed of inherent executive powers
CT hampered in their exercise by statute law
which gradually grew up in the middle or the
last century and reached It's climax IN the
struggle Of Congress with Andrew Johnson has
been pretty thoroughly dscredited. Mr.. Gardi-
Der. however. goes further than any other re-
cent commentator and harks back to Jefferson,
who In his jealousy Of Chief Justice Marshall
denied that the Supreme Court rulings on Con-
stitutianEi law were binding on him.
II NAV indeed De said that they are not bind
lng On the President so far as they may attempt
% determine political policy rather than prl-
vate righs but the court itself has scrupulous4y
recognized this ard refused 10 pass on a point
which was one OF executive discretion Mr.
Gardner. however, goes further. and holds that
the discretion Of the President is absolute in
executing = law Of Congress. II he thinks II
7,nvyssa he NAV refuse TO execute It. This seems
an extreme exaggeration Of the executive idea
Believing fully in the complete independence or
4be President within his sphere, we are con-
-tnce6 that his sphere is the execution or law as
made by the legislature and interpreted by the
courts he Is not superior, but coordinate He
is not a desp0t who can set aside laws ana
override courts, and IN effect make all other
powers Of government merely advisory under
the hc+ion Of executing with independent dis
cret1ca
5fr. Gardner apol.es his theory in a most
interesting zaanGe- 20 scue pending questions.
He thinks It useless FOR Congress TO deal with
negro suffrage Tho President, he says, can
suppress peo2age. The President If he finds
negro citizens Disseminated against need not
Wait for penalizlng statutes. He can use the
Executive power out Of hand 10 free the peon, or
70 secure 70 tae citizen his vote. lust how he
would go about II AR. Gardiner does not ex-
plain in detail. VIII be, without t-1al Of the
facts in court. free a negro from labor con-
tract on the complaint that 1t Is peonage? VIII
he send troops Into a State which shuts out
negroes from the ballot box by some quallfca-
ton not ostensibly founded on color; declare
that he can read the hearts of lawmakers, and
lead the negroes 70 the polls, whether they
comply with the State educational and property
qualifications for voters or not?
We fear that Mr. Gardeners mistake is that
IN trying to do full justice to the real greatness
and majesty OF Executive authority he has
pushed TO the extreme the Interpretation Of par
ticular clauses Of the Constitution and failed 10
Lord Brougham did something similar in pro-
claiming the power of the British sovereign,
when IN 1850 he said
The whole executive power is lodged in the
Sovereign: all appointments to offices in the
army and navy. all movements and disposition
OF those forces all negotiation and treaty. the
power 10 break or form alliances, all nOnina-
tiOLs 10 Office, whether held for life or during
pleasure; all superintendent over the admins
tration OF the civil and The criminal law, all
confirmation or remission of sentences. all dis
bursements of the sums voted by Parliament
ali IN the absolute and exclusive possession
OF the crown.
Mr.. Gladstone went about as far in 1878; and
Mr.. Bagehot's view of the royal prerogative as
set forth IN his book on the English Constitu-
ton, is still more startling, Speaking of what
the Queen bad the strict legal right 10 do. he
says:
She could disband the army Cby law she cannot
engage more than certain number OF men, but
she Is not obliged 10 engage any mem; she could
dismiss al the officers. from the general COM
mandIng in chief downward; sne could dismiss
al the sailors, too; she could sell off all
ships OF war and al our naval stores; she could
make a peace by the sacrifice Of Cornwall and
begin war for the conquest Of Brittany. She
could make every citizen in the United King
dom, male or female. a peer; she could make
every parish in the United Kingdom a "univer-
sity'; she could dismiss most Of the civil ser
wants; she could pardon all offenders
It Is apparently In somewhat. the same spirit
that Mr.. Gardiner considers the Presidents
powe--the spirit Of the lawyer engaged IN suiv-
ing 10 carry his Interpretation OF the scope OF
The law 10 its UttermOst possible extension. No
one supposcs we presume. that Lord Brougham
or M Gladstone would ever have advised the
Queen :, claim the fuil powers they ascribed
u her; and it Is not to be supposed that Mr.
Gardiner would hare any more disposition to
turn his academic discussion into a practical
counsel. IN fact it IS highly probable that it
would need 10 such bitterness OF controversy as
attended tie administration Of andrew Johnson
70 start the Impeachment Of any American
President who should seriously undertake TO
live ap 10 Mr.. GARDENERS measure of Executive
power.