Rebellion Record: a Diary of American Events: Documents and Narratives, Volume 2.
Frank Moore, Ed.

[193] the legislative powers of the Government the expressions are, ‘all legislative powers herein granted shall be vested in the Congress of the United States.’ In that which grants the executive power, the expressions are, ‘the executive power shall be vested in a President of the United States.’ The enumeration ought, therefore, to be considered as intended merely to specify the principal articles implied in the definition of executive power; leaving the rest to flow from the general grant of that power, interpreted in conformity with other parts of the Constitution, and with the principles of free government. The general doctrine of our Constitution, then, is that the executive power of the United States is vested in the President; subject only to the exceptions and qualifications which are expressed in the instrument.

These letters were replied to by Mr. Madison, with the ability which ever characterized him, in a series of others under the signature of “Helvidius;” and although he contested almost every other constitutional proposition of Hamilton, he nowhere called into doubt the correctness of his rule of construction. His silence under the circumstances must, therefore, be assumed as his assent to the rule; and the rule, therefore, stands on the highest authority we can have — that of the two ablest and purest statesmen the country has ever possessed, and who were especially conspicuous in giving us the Constitution which, uniting us as one people for all purposes requiring such a union, has so exclusively and greatly promoted our power and prosperity as a nation. The rule, too, was maintained in the strongest terms by President Jackson in his protest of the 15th of April, 1834.

That rule, then, being the true one, the only question in the case is, whether the power which the President is exercising is in its nature an executive one. That it is, has been, it is believed, satisfactorily shown; and under the rule stated by Hamilton, impliedly sanctioned by Madison, and expressly adopted by Jackson, it is in the President by force of the general delegation to him of the Executive power.

Upon the whole, then, the President, it is thought, has had no doubt, and is believed not now to entertain any, as to the authority which he has exercised, and will, it is supposed, continue to exercise. On such a point he would naturally be guided by such general reasoning as is here assigned — the authority of Gen. Jackson's example at New Orleans, (not mentioned by the Chief-Justice,) afterwards impliedly sanctioned by Congress, who indemnified him for its exercise, and the solemn decision of the Supreme Court, before mentioned, pronounced thirteen years since, and never afterwards questioned by that or any other tribunal — rather than by the authorities relied on by the Chief-Justice, that is to say, a clearly extra-judicial observation of Chief-Justice Marshall, a mere doubt of Mr. Justice Story, an alleged doubt of Mr. Jefferson, nowhere, however, proved to have been felt, of the legality of Gen. Wilkinson's conduct at New Orleans in 1807--conduct in fact approved by him, and not disapproved of by any Congressional legislation — a commentary on the English form of government, a Government resting as to nearly all its powers upon usage and precedent, or to the otherwise unsupported authority of the Chief-Justice, and especially when, as in this instance, he seems to have departed from or forgotten the doctrines he maintained in the case in Howard.

If with the opinion the President now is supposed to hold, to use in part the words of President Jackson, in the. protest referred to, he should “be induced to act in a matter of official duty contrary to the honest convictions of his own mind, in compliance with the” (opinion of the Chief-Justice) “the constitutional independence of the Executive department would be as effectually destroyed and its power as effectually transferred to” (the Judiciary department) “as if that end had been accomplished by an amendment to the Constitution.”

This paper has been made the more elaborate because of the justly high character of the Chief-Justice of the United States, and because of a desire to satisfy the judgment of the people of the country upon the point in issue between that functionary and the President; a people whom the President is faithfully serving with all the ability he possesses in this crisis of their Government, and whom he hopes to be able, when he retires from the elevated office in which their confidence has placed him, to leave in the peaceful and happy enjoyment of an unbroken Union, and an undisturbed and faithful execution of the laws.