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When the President must be consulted.

Verbal directions by the President.

Written directions.

diction of their respective departments. The Postmaster General
is in like communication with the host of deputies, contractors,
and agents engaged in or affected by the mail service of the United
States. Each of these Heads of Departments is continually pass-
ing upon applications for service and accounts of expenditure,
appertaining to his branch of the business of the Government.
Now, all these multifarious acts are under the constitutional
direction of the President. In legal theory, they are his acts.
But a large proportion of them are performed by his general di-
rection, without any special direction. If a Secretary doubt
whether he has any general direction covering a given question,·
if the question be new in principle or application, and he doubts
what the President would choose to have done in the premises,
if he doubts, in his own conscience, what should be done and
therefore needs the guidance of the President, if, in fine, the
act be one of grave public responsibility, and he shrinks from
deciding it of himself, in all these contingencies he will consult
the President.

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On such consultation, in the great majority of cases, the Secretary will take and act upon the verbal direction of the President, because the object of the consultation is, in general, to ascertain the President's will, or at most to determine, by conference and comparison of thought, what the public interest requires, just as in the last relation the President himself consults any one or all of the members of the Cabinet.

But the case may and often does happen, in which the Secretary desires, or the President chooses, to give a written direction. In this contingency the responsibility of the act done continues to be shared in common by the President and the Secretary; but a direct and more individual responsibility, legal and moral, is assumed by the President. Just so it is in principle, but with inversion of responsibility, when the President, in regard to some line of public policy to be adopted by him, or some general or superior direction to be given, demands the written advice of the Heads of Departments.

tion of re

In a word, while there is a general solidarity of responsibility The quesfor public measures, as between the President and the Heads of sponsibility. Department, and while a general responsibility of direction is attributable to the President and of execution to the Heads of Department, yet the weight of historical responsibility, and perhaps of legal, may be shifted partially from one to another, according as the determination is governed or evidenced by the written direction of the President or by the written advice of the Head of Department.

73. The President as National Spokesman in Foreign Affairs

Early in the history of our republic, Thomas Jefferson as Secretary of State laid down in the following letter to M. Genet, the diplomatic representative of France, the proposition that the President was to be regarded as the sole person authorized to speak with authority for the United States on the conduct of foreign affairs.

The will of

the nation is expressed through the

SIR, In my letter of October 2, I took the liberty of noticing to you that the commission of consul to M. Dannery ought to have been addressed to the President of the United States; he being the only channel of communication between this country and foreign President. nations, it is from him alone that foreign nations or their agents are to learn what is or has been the will of the nation, and whatever he communicates as such, they have a right, and are bound to consider as the expression of the nation, and no foreign agent can be allowed to question it, to interpose between him and any other branch of the government, under the pretext of either's transgressing their functions, nor to make himself the umpire and final judge between them.

dent's

I am, therefore, sir, not authorized to enter into any discussions The Presiwith you on the meaning of our constitution in any part of it, or authority to prove to you that it has ascribed to him alone the admission or cannot be interdiction of foreign agents. I inform you of the fact by author-. questioned ity from the President. I had observed to you that we were persuaded that in the case of the consul Dannery, the errour in the

address had proceeded from no intention in the executive council of France to question the functions of the President, and therefore no difficulty was made in issuing the commission. But in your letter of the 14th instant, you personally question the authority of the President and in consequence of that have not addressed the commissions of Messrs. Pennevert and Chervi, making a point of this formality on your part; it becomes necessary to make a point of it on ours also; and I am therefore charged to return to you those commissions, and to inform you that, bound to enforce respect to the order of things established by our constitution, the President will issue no exequatur to any consul or vice-consul, not directed to him in the usual form, after the party from whom it comes has been apprized that such should be the address. I have the honour to be, &c.

TH. JEFFERSON.

The indefinite char

acter of the war power.

Constitu

tional provisions.

74. The War Powers of the President

There is an old saying to the effect that in times of war the laws are silent, and from the nature of the case this must be to a great extent true, even in the most democratic governments. The critical problems of conducting a campaign must be met with decision, promptness, and consistent action in which appropriate means are adapted to the end sought the achievement of victory. Clearly the powers of the President as chief magistrate and commander-in-chief cannot be narrowly laid down in definite rules. Accordingly, there will always be differences of opinion as to the validity of acts of the President under his military authority, but the following statement by President Polk, in defense of his policy of levying contributions in Mexico, seems to be a fair interpretation of the power of the President in the conduct of war.

By the Constitution the right to "declare war" is vested in Congress, and by the same instrument it is provided that "the President shall be Commander in Chief of the Army and Navy of the United States" and that "he shall take care that the laws be faithfully executed."

dent con

nations.

When Congress have exerted their power by declaring war The Presi against a foreign nation, it is the duty of the President to prosecute trolled by it. The Constitution has prescribed no particular mode in which the law of he shall perform this duty. The manner of conducting the war is not defined by the Constitution. The term war used in that instrument has a well-understood meaning among nations. That meaning is derived from the laws of nations, a code which is recognized by all civilized powers as being obligatory in a state of war. The power is derived from the Constitution, and the manner of exercising it is regulated by the laws of nations.

President

may con

When Congress have declared war, they in effect make it the How the duty of the President in prosecuting it, by land and sea, to resort to all the modes and to exercise all the powers and rights which duct war. other nations at war possess. He is invested with the same power in this respect as if he were personally present commanding our fleets by sea or our armies by land. He may conduct the war by issuing orders for fighting battles, besieging and capturing cities, conquering and holding the provinces of the enemy, or by capturing his vessels and other property on the high seas. But these are not the only modes of prosecuting war which are recognized by the laws of nations and to which he is authorized to resort. The levy of contributions on the enemy is a right of war well established and universally acknowledged among nations, and one which every belligerent possessing the ability may properly exercise. The most approved writers on public law admit and vindicate this right as consonant with reason, justice and humanity.

cannot

prescribe
the details
of campaign

Upon the declaration of war against Mexico by Congress the Congress United States were entitled to all the rights which any other nation at war would have possessed. These rights could only be demanded and enforced by the President, whose duty it was, as "Commander in Chief of the Army and Navy of the United States," to execute the law of Congress which declared the war. In the act declaring war Congress provided for raising men and money to enable the President "to prosecute it to a speedy and successful termination." Congress prescribed no mode of conducting it,

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but left the President to prosecute it according to the laws of nations as his guide. Indeed, it would have been impracticable for Congress to have provided for all the details of a campaign. . .

The right to blockade the ports and coasts of the enemy in war is no more provided for or prescribed by the Constitution than the right to levy and collect contributions from him in the form of duties or otherwise, and yet it has not been questioned that the President had the power after war had been declared by Congress to order our Navy to blockade the ports and coasts of Mexico. The right in both cases exists under the laws of nations. If the President cannot order military contributions to be collected without an act of Congress, for the same reason he cannot order a blockade; nor can he direct the enemy's vessels to be captured on the high seas; nor can he order our military and naval officers to invade the enemy's country, conquer, hold, and subject to our military government his cities and provinces; nor can he give to our military and naval commanders orders to perform many other acts essential to success in war.

If when the City of Mexico was captured the commander of our forces had found in the Mexican treasury public money which the enemy had provided to support his army, can it be doubted that he possessed the right to seize and appropriate it for the use of our own Army? If the money captured from the enemy could have been thus lawfully seized and appropriated, it would have been by virtue of the laws of war, recognized by all civilized nations; and by the same authority the sources of revenue and of supply of the enemy may be cut off from him, whereby he may be weakened and crippled in his means of continuing or waging the wat. If the commanders of our forces, while acting under the

ices of the President, in the heart of the enemy's country and sended by a hostile population, possess none of these essential dispensable powers of war, but must halt the Army at every

fits progress and wait for an act of Congress to be passed Aise them to do that which every other nation has the right by vitae of the laws of nations, then, indeed, is the Govern

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