New-York tribune., 1905-06-08
PRESIDENT WORLD RULER
GARDINER ON HIS POWER.
.SpeoEcs to n. Y. u. Phi Beta Kappa
on Constitutional Discretion.

on Constitutional Discretion.
rho .,,n,,sl meeting of the Phi Beta Kappa
Society of New-York University, held IN li;e
Auditorium. AT University Heights yesterday
afternon was addressed by Charles A Garoi-
ner, member Of the Bar OF New-Iork CITY anu
Regent OF the University of the State of New
York Ills subject was The Constitutional Dis
cretion Of the President"
a fair sized audience was present. At the
close Of the address, Chancellor MacCracken
moved that the Phi Beta Kappa Society extend
vote of thanks to Mr.. Gardiner" The motion
was passed amid a storm of applause.
Mr. Gardeners address was as follows:
% SOLE Is e6doWed %fh fe Srbnss s.
properties. franchises and powers. of the Presden-
That as constitutional franchise All its proper
skerefore fe in @ disas5ng It. to PUT Before YOU not
theoies but decisons Of the courts If they Lead Lead
law of the land unless We would defy the
and the Constitution as we'll
President? In Importance it ranks next to ms pow
ton to use them Ihey 1oua M pc 9e mere 'hn aGTgi
The exercise of discretion constitutes practical pol
itcs It marks the actual contact between fne ae
ne its territorial jurisdiction analy@ze @ its nature
public service and patriotic duty.
JURISDICTION OF DISCRETION.
F1rst-And first. what is its territorial jurisdic-
sion? Where can the President exercise his dscre-
tlon! II IS eoexistent vi, WIN ms ms Po@ers; ,ant orr
government, said Judge shaTsweod lis aoEs mere
of those powers which reside in them. We assume
composed of Congress- the courts and the Execu-
tive, which alcne administers both 6omestic ana
1t is not in the Constitution. That instrument no
or more organizations or departments.
Such theories originate with commentators and ex-
consists of tripartite orgarizat9n which alope
assertion.
OUR TRIPARTTTE GOVERNMENT.
1sciussVeYy in our domestic domain. THAT the
laws of country have no extra-terIitorial foree Is
Justice waite (os U. s.. $3.50. 1t is. moreover strict
5ndicary interprets them and the President exc
outes them. It is thus solely legislative govern
government is government of law, and the PresII
dents sole function Is to execute me Jaw e s a to
the Legislative government; false In every other re-
Such being the function OF the legislative govern
rnent it requires no argument 70 snow Ls o,iig @
not be executed at all unless exeeureo - py s sole
to grant reprieves and pardons, TO protect United @
states malls, aid the States in suppressing rloIs'
neete nl defeneeNthese and countless other domestic
soveregnties have never been S n the Con-
stitIItion therefore, some other agency, or stand
eonfesTee vast domestic poWsrs but
ernrnental agency TO execute then-
OUR PRESIDENTIAL GOVERNMENT.
But our sovereignty Is not confined TO our domes ones
tic territory Theoretically it extends over recoqnzd tg w
treaty or enforced by arms So With With @ our se eX
erelgnty AS our legislative gevernment has pIaSa a
ean rneee es o eSero no foreign
sovereigpes and hence again say unless m fhe6e ERE
foreign sovereignties of our eighty million people
qsf saTanee e he Proposition that the Constitution
rlicitly provides agency or governn,een1L nae L - -
eSternaI soESereignties That is the President him
& se the etor and the Whole world beyond and
within those far-reaching boundaries ne ruIes nol
sis government is not legislative but solely magls
serial or Presidential &c .h 1-,,tad
states everywhere within its aufis t
President can exercise his constitutional dscreuo
NATURE OF DISCRETION ANALYzED.
second-our next inquiry must be. What 18th, is the
nature OF that discretion? The President is const
subiect 10 this basic limitation. it is synonymou:
With his decsicn Judgment 1t is the liberty OF
own iudgmentT7 40 Wend. 291-) 1.-The word dis
STe0P 9eousv saif used Wbat does it mean?
honest plain language It means. Do as you like
dS II The Presidents powers are all discretionary
One are % to which nong P9Tef IS left or to DIS
-cretion.' Wall 4sS) 1t is s1bseTVlent; SUP
(sfandard Dict)
DISCRETION UNRESTRAINED BY COURTS
Much confusion of public thought exists. admit
on the subject; From the beginning the courts hav
eKecnfive oeeTs Wheher tight or wrong IS her
immsterial The confusion that attaches to thes
cases has been extended in the popular mind to tn
President himself. But there is no instance in ou
jurisprudence where courts have held that they ca
enforce their process against the President or ni
or coerce his discretion in any manner whatever.
THE BURR TRIAL
AS early as 1907 in the Burr trial. Chief Justic
Marshall, on motion Of Colonel Burr. ordered Pres
coe sRg at Rn no g s55eT ]
ttorfly refused. Thereupon Colonel Burr renewe
contempt, and that he had the right to deman
process Of contempt against him" Then Marsha
poena. As Attorney General Stanhery said: q
8 be S%oe nGG e tn5 yegy Of gFsf opbe
wrong
THE MISSISSIPPI CASE
No serious attempt to ooerce the Presidents dis
Then Mississippi tried to enjoin President Johnso
from executing the Reconstruction acts and plaC
ing the State under the military governorshfp {
General Ord. That case has undoubtedly Eettle
's & Re d RG eGsf II the or Ian
vr over h E @ gdG powers % of Of any % nature m wha
said Attorney General stanbery in that case. 'thi
writ to bring him 70 account President There
upon to answer to for any dereIiction Of duty. az
that is not this tribunal but one that sits In a.
called and tried and punished. but not here whi
s e is ds pes6ent s End after ne has been dealt with
and he no longer stands tho representative
to any Individual for any murder or any Crime neh
sny sort which he has committed as Presider
jurisdiction OF the courts. -. as President
SR' sSE. ssi5 sh50Dsn 's '"pe@'nins power q Wal