to be perfected. In another set of his powers he is likewise independent of congress to this extent, that it cannot of itself either diminish or increase them. But the opportunity for the exercise of these powers is given the president only by law and the way in which he shall exercise them is defined by law. To a great extent congress can determine how widely or how narrowly it will draw the limits of his independence. It can grant him a fullness of power that under certain circumstances is little inferior to that of a Roman dictator. It can also bring him so sharply under its own control and bind his hands so closely, that his constitutional position as a co-ordinate factor of the government is seriously endangered and the interests of the country are gravely injured by the weakness of the executive power. If congress wishes to abuse its powers, it can easily bring down the president so far as a number of his most important powers of an eminently political character are concerned to the level of the third duty imposed upon him by the constitution, that of acting merely as the executive organ of the legislative will of congress.1

1 It has been boldly asserted that parliamentary government as it is known in Europe was entirely excluded in the United States by the constitutional organization of the federal government. On the contrary the government vests directly in congress to such an extent that in a book just published, which deals incisively with this question, the author says: "I know not how better to describe our government in a single phrase than by calling it a government by the chairmen of the standing committees of congress." (W. Wilson, Congressional Government: a Study in American Politics, Boston, 1885.) This exaggerates, as all statements must exaggerate which seek in one pointed phrase to define great and complicated relations. Not only, however, is there much truth in the assertion, but this truth is so clear, and its pre-eminent significance is so plain, that for some years public attention has been more and more strongly drawn to it. The framers of the constitution did not expect this develop

actual service of the This is all the consti

§ 56. MILITARY POWER. The president is commander. in-chief of the army and navy, and also of the militia, when the latter is called into the United States (art. II., sec. 2, § 1). tution has to say as to the military power of the presi dent. This clause in its blunt simplicity is the best illustration of the maxim of American constitutional law already mentioned, that the constitution enumerates but does not define the powers of the federal government. Congress can appoint no other commander-in-chief, and can withdraw from the president not the slightest part of the powers appertaining to the commander-in-chief. This is without doubt, as the constitution confers that office upon him with a categorical "shall be." But what are the powers appertaining to the office proprio jure? The constitution cannot possibly mean that the expres sion "commander-in-chief" should first be given a concrete meaning by legislation, for the thought underlying ment. It undoubtedly runs directly counter to their intentions. They created a separate executive because their experience led them to reject congressional government on principle. They had recognized the fact that the many-headed legislative power not only could not govern well, but in the long run could not govern at all; and so far as the facts correspond with Wilson's assertion, they have demonstrated this truth anew. He calls his study "Congressional Government;" yet he does not say that congress governs, but that its standing committees or rather their chairmen do; and that, too, not in the sense that they are together actually the government, but that each of them is a particular and isolated part of the government. So far as his assertion is well founded, this "congressional government" is therefore in a great measure a systematic laxity of government, because the organic coherence, the uniform guiding thought and will, and the legal binding of the parts into a comprehensive whole are wanting. Yet, however, matters of constitutional law and of fact may be considered from a political stand-point, this is certain, that in law and in fact America is partly in advance of Europe and partly behind her in parliamentary government.

this provision is manifestly that of ensuring the greatest energy in the application of the military strength of the country by entrusting its direction to one hand. But, as we have seen, all military legislation is entrusted to congress, and the president is simply the commander-in-chief and not at all the lord of peace and war. It is thus very difficult, if not impossible, to draw the line of demarcation with absolute certainty between the authority of congress and that of the president. The general principles of demarcation, however, can be established without difficulty, and their practical application has hitherto led to relatively very few important conflicts. Congress must regulate by law whatever is of general importance and bears a permanent character, but considerations of expediency may demand that even within this, its own domain, it should leave the president free to act at his own discretion, especially in the more technical matters. Of course it is not forbidden to do this. On the other hand, the president alone must determine how the military force shall be employed, and he must make all provisions, temporary and not general in their nature, because, from the nature of things, these must be adapted to special circumstances. Congress to make this relation clear by some illustrations - provides where forts shall be built and what kind of forts they shall be, how many and what kind of arms are to be provided, and how the men are to be distributed among the different branches of the service; but as to what the strength and composition of the garrisons are to be, how the arms and ammunition are to be distributed, how and where the army and navy are to be stationed and moved,- as to all this, congress can give the president no directions whatever. In war the entire technical direction of affairs is thus incumbent upon the president. Congress has only

to decide whether there shall be war and what means it will grant the president with which to conduct the war; but how the war declared by congress shall be conducted by the means granted by it is the exclusive affair of the president. Congress may criticise, may express wishes, may pass resolutions, but it can prescribe absolutely nothing to the president, even though his acts and omissions be fraught with political consequences of the most pre-eminent importance, as, for example, the declaration of a blockade may be under certain circumstances. This principle was extended so far during the civil war that it was acknowledged to be his right to determine whether and how far the rebels were to be regarded as a warmaking power; that is, how far the war should be conducted pursuant to the provisions of the law of nations. Accordingly, this war-power of the president is not limited to matters involved directly in the conduct of war, but extends beyond purely military actions into the domain of the exceptional relations which may result from war. If, for instance, in a war with a foreign power a territory has been conquered, the president can put a military governor over it, and this military government will end only upon the conclusion of peace, and in case of a cession of the territory only upon legislation in the matter by congress. This is also true of rebellious states vanquished in civil war. In both cases the president may establish a provisional civil government, with power to organize courts, so that a well-ordered administration of justice is rendered possible. In the case of a conquered rebel state, the quickest practicable supplanting of military government by a provisional civil government is to be regarded as a duty, in so far as the principle applies that the president is not authorized to use military power 1 The Prize Cases, Black, II., 635.

where the laws can be enforced without such aid. The president has the greatest liberty in the choice of means not only to attain the most immediate purpose of war,the subjugation of the enemy,- but also to meet the further task implied in this, to deprive the enemy of the power of levying war again. But in all this he must steadily keep in mind that the ultimate purpose is the restoration of the normal, the constitutional condition of peace. This maxim leads to the further principle of constitutional law, that the immense power which the president has as commander-in-chief in time of war must be exerted to its full extent only where the authority of the federal government cannot be exerted by peaceful methods; that is, where the actual condition of war exists. It is only when this is the case, and the ordinary courts in consequence of the war cannot exercise their functions, that military courts can sit. Where these premises do not exist, no one, unless he belongs to the army, can be punished by the military authorities.2 Spies are an exception. As this exception must be acknowledged to be a necessity, and as it is not always certain whether the premises already mentioned exist or not, prominent American publicists take the view that it is not possible to bring all cases under a fixed rule, but that the special circumstances of each must be taken into account, even in a decision upon grounds of constitutional law. It is unquestionable that the constitution recognizes the possibility of its being necessary in time of war,

1 Lincoln justified his emancipation proclamation, as is well known, upon the ground that the freeing of the slaves was a means of subjugating the rebels.

2 Ex parte Milligan, Wallace, IV., 127.

3 The difficult chapter of the so-called " war-powers" of the different factors of government has been treated by W. Whiting in a strong volume entitled War Powers under the Constitution of the