no pecuniary inducement to renounce, or desert, the independence intended for him by the constitution.' The salary of the first president was fixed by congress at the sum of twenty-five thousand dollars per annum, and of the vice-president, at five thousand dollars. And to prevent any difficulty, as to future presidents, congress, by a permanent act, a few years afterwards established the same compensation for all future presidents and vice-presidents. So that, unless some great changes should intervene, the independence of the executive is permanently secured by an adequate maintenance; and it can scarcely be diminished, unless some future executive shall basely betray his duty to his successor.

§ 1481. The next clause is, "Before he enters on "the execution of his office, he shall take the following "oath or affirmation: I do solemnly swear, (or affirm,) "that I will faithfully execute the office of President of "the United States, and will, to the best of my ability, preserve, protect, and defend the constitution of the "United States."

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§ 1482. There is little need of commentary upon this clause. No man can well doubt the propriety of placing a president of the United States under the most solemn obligations to preserve, protect, and defend the constitution. It is a suitable pledge of his fidelity and responsibility to his country; and creates upon his conscience a deep sense of duty, by an appeal at once in the presence of God and man to the most sacred and solemn sanctions, which can operate upon the human mind.1

1 The Federalist, No. 73.

2 Act of 24th September, 1789, ch. 19.

3 Act of 18th February, 1793, ch. 9.

4 See Journal of Convention, 225, 296, 361, 383.

CHAPTER XXXVII.

EXECUTIVE -POWERS AND DUTIES.

§ 1483. HAVING thus considered the manner, in which the executive department is organized, the next inquiry is, as to the powers, with which it is entrusted. These, and the corresponding duties, are enumerated in the second and third sections of the second article of the constitution.

§ 1484. The first clause of the second section is, "The President shall be commander-in-chief of the "army and navy of the United States, and of the mili"tia of the several states, when called into the actual "service of the United States. He may require the "opinion in writing of the principal officer in each of "the executive departments, upon any subject, relat"ing to the duties of their respective offices. And he "shall have power to grant reprieves and pardons for "offences against the United States, except in cases of "impeachment."

§ 1485. The command and application of the public force, to execute the laws, to maintain peace, and to resist foreign invasion, are powers so obviously of an executive nature, and require the exercise of qualities so peculiarly adapted to this department, that a well-organized government can scarcely exist, when they are taken away from it. Of all the cases and concerns of government, the direction of war most peculiarly demands those qualities, which distinguish

1 See Journal of Convention, 225, 295, 362, 383.

2 1 Kent's Comm. Lect. 13, p. 264; 3 Elliot's Deb. 103.

the exercise of power by a single hand.1 Unity of plan, promptitude, activity, and decision, are indispensable to success; and these can scarcely exist, except when a single magistrate is entrusted exclusively with the power. Even the coupling of the authority of an executive council with him, in the exercise of such powers, enfeebles the system, divides the responsibility, and not unfrequently defeats every energetic measure. Timidity, indecision, obstinacy, and pride of opinion, must mingle in all such councils, and infuse a torpor and sluggishness, destructive of all military operations. Indeed, there would seem to be little reason to enforce the propriety of giving this power to the executive department, (whatever may be its actual organization,) since it is in exact coincidence with the provisions of our state constitutions; and therefore seems to be universally deemed safe, if not vital to the system.

§ 1486. Yet the clause did not wholly escape animadversion in the state conventions. The propriety of admitting the president to be commander-inchief, so far as to give orders, and have a general superintendency, was admitted. But it was urged, that it would be dangerous to let him command in person without any restraint, as he might make a bad use of it. The consent of both houses of congress ought, therefore, to be required, before he should take the actual command. The answer then given was, that though the president might, there was no necessity, that he should, take the command in person; and there was no probability, that he would do so, except in extraordinary emergencies, and when he was possessed

1 The Federalist, No 74; 3 Elliot's Debates, 103.

2 2 Elliot's Debates, 365. See also 3 Elliot's Debates, 108.

of superior military talents.' But if his assuming the actual command depended upon the assent of congress, what was to be done, when an invasion, or insurrection took place during the recess of congress? Besides; the very power of restraint might be so employed, as to cripple the executive department, when filled by a man of extraordinary military genius. The power of the president, too, might well be deemed safe; since he could not, of himself, declare war, raise armies, or call forth the militia, or appropriate money for the purpose; for these powers all belonged to congress. In Great Britain, the king is not only commander-in-chief of the army, and navy, and militia, but he can declare war; and, in time of war, can raise armies and navies, and call forth the militia of his own mere will. So, that (to use the words of Mr. Justice Blackstone) the sole supreme government and command of the militia within all his majesty's realms and dominions, and of all forces by sea and land, and of all forts and places of strength, ever was and is the undoubted right of his majesty; and both houses or either house of parliament cannot, nor ought to pretend to the same. The only power of check by parliament is, the refusal of supplies; and this is found to be abundantly sufficient to protect the nation against any war against the sense of the nation, or any serious abuse of the power in modern times.5

1 2 Elliot's Debates, 366.

2 3 Elliot's Debates, 103.

3 3 Elliot's Debates, 103; 1 Black. Comm. 262, 408 to 421.

4 1 Black. Comm. 262, 263.

5 During the war with Great Britain in 1812, it was questioned, whether the president could delegate his right to command the militia, by authorizing another officer to command them, when they were called into the public service. (8 Mass. Reports, 548, 550.) If he cannot, this extraordinary result would follow, that if different detachments of militia

1487. The next provision is, as to the power of the president, to require the opinions in writing of the heads of the executive departments. It has been remarked, that this is a mere redundancy, and the right would result from the very nature of the office. Still, it is not without use, as it imposes a more strict responsibility, and recognises a public duty of high importance and value in critical times. It has, in the progress of the government, been repeatedly acted upon; but by no president with more wisdom and propriety, than by President Washington.2

§ 1488. The next power is, "to grant reprieves and pardons." It has been said by the marquis Beccaria, that the power of pardon does not exist under a perfect administration of the laws; and that the admission of the power is a tacit acknowledgment of the infirmi

were called out, he could not, except in person, command any of them; and if they were to act together, no officer could be appointed to command them in his absence. In the Pennsylvanian insurrection, in 1794, President Washington called out the militia of the adjacent states of New Jersey, Maryland, and Virginia, as well as of Pennsylvania, and all the troops, so called out, acted under the orders of the governor of Virginia, on whom the president conferred the chief command during his absence. Rawle on the Const. ch. 20, p. 193. It was a practical affirmation of the authority, and was not contested. See also 5 Marshall's Life of Washington, ch. 8, p. 580, 584, 588, 589.

1 The Federalist, No. 74. See Journal of Convention, 225, 326, 342.

2 Mr. Jefferson has informed us, that in Washington's administration, for measures of importance, or difficulty, a consultation was held with the heads of the departments, either assembled, or by taking their opinions separately in conversation, or in writing. In his own administration, he followed the practice of assembling the heads of departments, as a cabinet council. But he has added, that he thinks the course of requiring the separate opinion in writing of each head of department is most strictly in the spirit of the constitution; for the other does, in fact, transform the executive into a directory. 4 Jefferson's Corresp. 143, 144.