An Address Delivered by
J. Reuben Clark, Jr.

Grampa Bill has not been able to determine to whom this address was delivered, nor the date thereof. It is, however, considered to be a masterpiece of cogent thought and patriotic oration. Clark's is a voice of waarning. Portions of this talk are extensively cited on the web and elsewhere. I have included the entire talk here. It's that important. This and other talks by President Clark may be found in his book, Stand Fast by our Constitution.

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Your officers have honored me by asking that I talk to you for a little while today on the Constitution of the United States. Our time will let me deal only with a few elemental principles. It is always a pleasure to talk about that greatest of all political documents. I repeat the oft-quoted opinion of Gladstone that: "The American Constitution is the most wonderful work ever struck off at a given time by the brain and purpose of man."

I believe the Constitution was framed under the in­spiration of the Lord God Almighty. Washington's thought seemed not too far away from this. For, as the Constitutional Convention was getting under way, some member suggested that "palliatives and half measures would be far more likely to find favor with the people than any thorough-going" provisions. Answering this sugges­tion, Washington, president of the convention, arose and solemnly declared: "If, to please the people, we offer what we ourselves disapprove, how can we afterward defend our work? Let us raise a standard to which the wise and the honest can repair; the event is in the hand of God." This lofty sentiment thereafter guided the conven­tion.

Moses was no more prepared by the training and experience gained in the Court of Pharaoh for his great service of leading Israel from the bondage of Egypt, than were the Framers of the Constitution prepared by train­ing and experience for their work of providing a form of government that would "secure the Blessings of Liberty to ourselves and our Posterity," as they proclaimed to the world in the classic Preamble to the Constitution.

The Framers of Our Constitution

As nearly as I can learn, of the 39 men who signed the Constitution, 26 had served in the Continental Con­gress, 13 had served both in the Congress and in the Revo­lutionary Army, 19 had served in the Army, of whom 17 were officers, and of these, four served on Washington's staff. Only two of the signers had not served either in the Army or in the Continental Congress.

This was a choice lot of men. Among the great ones were Washington, Franklin, Hamilton, and Madison. There were many others that were of exceptional train­ing and ability. Jefferson was not there. When he read the document, he was not too favorably inclined; he thought the Framers had been too much impressed with the then recent Shays Rebellion in Massachusetts, and that "in the spur of the moment they are setting up a kite to keep the henyard in order."

But Jefferson was wrong. The Framers were not political tyros flying a political kite to keep in order the henyard, that is, the Colonists. They were men wisely ex­perienced in affairs of government. I have named some already; I will name them again, with others. There were Washington, a military genius of high order; Franklin (Pennsylvania), a diplomat of great tact and ability, and a scientist; the two Morrises (Pennsylvania) and Hamil­ton (New York), financiers of the first rank; Wilson (Pennsylvania), a learned and able jurist; Ellsworth (Connecticut), one of the ablest lawyers of his time, and afterwards Chief Justice of the United States; Strong (Massachusetts), an experienced administrator, after­wards ten times governor of Massachusetts; King (Massachusetts), a humanitarian already distinguished for his fight against slavery; Johnson (Connecticut), an edu­cator of reputation and achievement; Madison (Vir­ginia), sometimes called the "Father of the Constitu­tion," a great statesman.

There were others of great ability and experience who helped to produce this historic document. Four men of great ability participated in the deliberations, but re­fused to accept the final document--Martin (Maryland), Mason (Virginia), Randolph (Virginia), and Gerry (Massachusetts) .

"The Federalist"

While the Constitution was under consideration for adoption by the Colonies, Hamilton, Madison, and Jay wrote The Federalist, a series of essays explaining the document. The first essay appeared in October, 1787; and others appeared during that winter and the spring of 1788. These essays have been appraised as "the great­est treatise on government that has ever been written," and its writers have been ranked as of the same order with Aristotle, Montesquieu, and Locke.

The Constitution was not the work of cloistered, fanatical theorists, but of sober, seasoned, distinguished men of affairs, drawn from various walks of life. They included students of wide reading and great learning in all matters of government. They were among those who had successfully guided the Colonists through a long Revo­lutionary War, beset not only with grave problems of military necessity and strategy against one of the most powerful nations of the world, but also burdened with vital local problems of co-ordination and co-operation among and between a loosely knit confederation of thir­teen different political entities, each jealous beyond measure of its own political independence and sovereignty, none with great financial strength, and all hesi­tant, at times to the point of unwillingness, to contribute the necessary funds for the common defense and for waging their war for independence.

Pitts Estimate

I have permitted myself these introductory remarks in order to suggest to you that the Constitution was born, not only of the wisdom and experience of the generation that wrought it, but also out of the wisdom of the long generations that had gone before and which had been transmitted to them through tradition and the pages of history.

We might here appropriately quote what William Pitt said, not of the Constitutional Convention, but of the First Continental Congress, which included some of the men in the Constitutional Convention and others of equal stature. Indeed, at that time they had not yet been seasoned by the problems and crises of the Revolution. Pitt said: "For solidity of reason, force of sagacity, and wisdom of conclusion under a combination of difficult circumstances, no nation or body of men can stand in preference to the General Congress at Philadelphia. The histories of Greece and Rome give us nothing equal to it, and all attempts to impose servitude upon such a mighty continental nation must be in vain."

"Horse and Buggy Days"

These were the horse and buggy days as they have been called in derision; these were the men who traveled in the horsedrawn buggies and on horseback; but these were the men who carried under their hats, as they rode in the buggies and on their horses, a political wisdom garnered from the ages. As giants to pygmies are they when placed alongside our political emigres and their fellow travelers of ·today, who' how' traduce them with slighting word and contemptuous phrase.

Moses, the great Lawgiver, seemingly traveled on foot; so traveled the intellectual giants of Greece and Rome, or by horse or chariot; Christ, on foot or by donkey; and so Peter and Paul, though possibly by chariot some­times; so with all the great ones of early modern times­Napoleon, Peter the Great, the Iron Duke, and scores of others. Intellectual power, wisdom, spiritual greatness, inspiration, vision, have never depended upon nor been proportionate to, speed in transportation.

These Revolutionary patriots were the men who fab­ricated the Constitution, the document which the political emigres amongst us, immigrants from despotism and ignorant of free institutions, hold up to ridicule as the offspring of a rude, almost semibarbarous people, un­taught and untrained in the art of government. Indeed, their scoffing has become so loud and virulent that some among us have come to feel that we must apologize for that divinely inspired charter of liberties and free institu­tions. Some among us seem almost to cringe with shame when they feel the need of naming the Constitution.

But I declare to you, for what it may be worth, that it is what Gladstone said it was, the greatest document "ever struck off at a given time by the brain and purpose of man," a document which, according to my belief, the Lord himself "suffered to be established, and should be maintained for the rights and protection of all flesh, according to just and holy principles," established "by the hands of wise men whom the Lord raised up for that purpose"; and as the Lord said, this land was redeemed by the shedding of blood. I say to you that the price of liberty is and always has been, blood, human blood, and if our liberties are lost, we shall never regain them except at the price of blood. They must not be lost!

The proudest boast of a citizen of ancient Rome was, "I am a Roman." The proudest boast of any patriotic citizen of this free country of ours should be, "I am an American." God grant this boast may ever be ours.

Lincoln's Prophecy

I remind you at this point that Lincoln, speaking before the Young Men's Lyceum of Springfield in 1837 (he was then not yet 28 years old), with far-flung vision and prophecy, declared that our country need not fear all the armies of the world, with a Bonaparte at their head, for such could not, he said, "by force take a drink from the Ohio or make a track on the Blue Ridge in a trial of a thousand years." He affirmed our real danger would come from the hands of some ambitious man who would rise up from amongst ourselves and burning and thirsting for distinction, would gratify his ambition, whether by emancipating slaves or enslaving freemen. Events of the past few years have abundantly shown how this tragic fate of enslaving freemen might be brought to us. Accordingly, I shall discuss briefly certain phases of the executive power under the Constitution, and the present tendency to enhance it.

Two Legal Systems

As of the time of the writing of the Constitution, there were two great systems of law in the world-the Civil Law (the law of continental Europe) and the Com­mon Law (the law of England and her colonies, including the thirteen American Colonies). Briefly, and stated in general terms, the basic con­cept of these two systems was as opposite as the poles-­in the Civil Law the source of all law is the personal ruler; whether prince, king, or emperor-he is sovereign. In the Common Law, certainly as finally developed in America, the source of all law is the people; they, as a whole, are sovereign. During the centuries, these two systems have had an almost deadly rivalry for the control of society, the Civil Law, and its fundamental concepts being the instru­ment through which ambitious men of genius and self­ishness have set up and maintained despotisms; the Common Law, with its basic principles, being the instru­ment through which men of equal genius, but with the love of mankind burning in their souls, have established and preserved liberty and free institutions. The Consti­tution of the United States embodies the loftiest concepts yet framed of this exalted concept. Because of these different concepts and the presence and reaction amongst us today of the Civil Law concepts, I wish in very general terms, to contrast some of the characteristics of these two systems. The Civil Law was developed by Rome, with a high genius not since excelled. Its provisions reached deep into the elemental factors that weld men into nations. Rome was called the Mistress of the World, and in the realm of law she retains, today, among the bulk of civi­lized peoples, that proud position.

The Theodosian Code

Now a little history: Following the pattern of the somewhat earlier private codifications of Gregorius and Hermogenes (of the time of Constantine), the Emperors Theodosius II and Valentinian III (Augustuses) on March 26, 429 A.D., appointed by Imperial Edict (the people were not consulted either directly or through rep­resentatives), a committee of jurists to prepare an offi­cial code. They prescribed what it was to contain. This Code was· prepared and presented to the Roman Senate some nine years and nine months later (Dec. 25, '438r' That Senate, which had long since lost its power and was almost menially subservient to the Emperor, received the Code with shouts of approval: "It is right 1 So be it 1" accompanied by loud exclamations of oriental flattery for the Emperor. There was no debate on the Code by the Senate, no objection, question, or dissent; the Senate did not so much as dot an "i" or cross a "t." The Code was wholly the offspring of the Emperors; the people had no part whatever in it.

We should understand that everything connected with the Emperor was divine or sacred-there was the sacred imperial palace, the sacred imperial bedchamber, the sacred imperial wardrobe, the sacred laws, etc. The government was an absolute autocracy, the state was thoroughly militarized, the Emperor in supreme com­mand. The Emperor was the sole source of law. By the simple issuance of a new law, the Emperor could modify or repeal any previous law. All imperial utterances were considered divine or sacred, the contravention of a given law, as was often proclaimed, was sacrilege, and the pun­ishment for sacrilege was death. The laws issued and codified were designed to keep secure' this absolute, un­challenged power and authority of the Emperor.

It is interesting to note that these laws, proclaimed over 1,500 years ago, had provisions covering such so­called modern: concepts, which our emigres and fellow travelers would have us believe are new inventions, as price fixing, black markets, excessive taxation, socialized medicine, conscription of labor, anti-Semitism, inflation, corruption in government bureaus, the relationship be­tween Church and State-all phrases familiar to our ears. Under these laws, "the entire population was or­ganized as in one vast army. All, including the' highest officials, were strictly classified, and even the least hact a station~ In substance this meant that everyone did what he was told, and did not act without permission." There was a great body of secret police to report disobedience; there was a "special" secret police appointed to watch the ordinary secret police. These laws were framed to provide security. We of today have heard that same kind of security talk. But, in fact, all this bred not security, but scarcity of grain, of materials, of men. The mere making of laws, even in an absolute despotism, does not change the great laws of nature and economics-neither then nor now, for there can be no permanent stability where men are not free. In fewer than forty years from the issuance of the Theodosian Code (Le., 476 A.D.) the Empire of the West fell, notwithstanding the operation, under complete autocratic powers, of economic devices enacted to promote the welfare of the people and to pre­serve the empire; some of these devices were the same ones that we have been told will rebuild our economic structure and preserve our free institutions. These de­vices failed with Rome; they will ultimately fail with us.

The Code of Justinian

Ninety years later, in 528 A.D. Justinian, Emperor of the Roman Empire of the East, struggling to preserve and build his Empire by complete autocratic authority, called a noted jurist named Tribonian to collect about him a group of other jurists (there were nine others) and with them to compile the laws issued since the time of Constantine, nearly 200 years before (306-337 A.D.). The accumulations of laws were said to be so voluminous as to fill 2,000 books and some 3 million verses, estimated to equal 580 volumes of 400 pages to a volume. Tribonian's compilations were in four parts: A Code; containing all the imperial statutes thought worthy of preserving from Hadrian (117-138 A.D.) to Justinian; the Institutes" which contain the great elements of the Civil Law, but none of them embodying the principles of a free govern­ment; the Pandects, declared to be "the greatest reposi­tory of sound legal principles, applied to the private rights and business of mankind, that has ever appeared in any age or nation," (Justinian called it "the temple of human justice") ; the Novels, a collection of new laws passed subsequent to the compilation of the Code, to correct errors and supply omissions in the Code. The new Code was published in 534. All of the sources on which the Justinian compilations were based, except the Theodosian Code, disappeared after the publication of Justinian's Code, Institutes, and Pandects. These works were composed and written in Latin and later translated into Greek.

While the absolute power of the Emperor was im­plicit in the Theodosian Code, it was boldly announced in the Justinian compilations. The Emperor had all legislative, judicial, and executive power in himself. Some affirm this principle had its origin during the reign of Augustus Caesar, some trace it back to Romulus and the founding of Rome, 753 B.C.

The exact words of the Institute containing this declaration read (in translation) : "The constitution of the prince hath also the force of a law; for the people by a law, called lex regia, make a concession to him of their whole power."

This principle seems to have been basic to Roman law in the West, for over 1,200 years, with almost a thousand years more in the East, or until 1453 A.D., when the Turks captured Constantinople. It seems that not always was the principle fully operative, but it seems, also, that there never was a time when the executive power, whoever held it, and howsoever it was secured, was not more or less supreme in all the affairs of state­legislative, executive, and judicial.

Thus it was inevitable that this principle of the autocratic power of the Emperor, the executive, which was basic in the laws of Western and Southern Europe and portions of the Near East for over 2,000 years (some­times the principle lay dormant, but still there, during the period of the Roman Republics; sometimes it was active, as in the days of the Empire, West and East), should be a vital portion of the warp and woof of the law of continental Europe.

Gothic Influence

The Gothic barbarians, swarming over the countries of the Western Empire, brought with them their govern­ments of mixed or limited and elective monarchies, with their "popular assemblies or national councils of the aristocratic class, which gave their assent to laws, and were the basis of all lawful authority," yet when these barbaric eruptions had spent their force and something of normal life was resumed among the indigenous peoples, the customs and traditions of preceding centuries began to reassert themselves, and people began to look back to the provisions of the Civil Law. By the middle of the 12th century, the study of the Civil Law throughout Italy and Western Europe was ardently taken up.

The Eastern Empire was now being pressed with the peoples resident all along their land boundaries; in three centuries it would fall-a relatively short time in the more than 2,200 years of the life of the Roman Empire, West and East.

Moreover, the end of the 15th century and the begin­ning of the 16th saw the opening of the Renaissance. The fall of the Eastern Empire scattered the learned men of the Enipire over the whole country, learning revived, and once more the law of Rome· resumed its sway over the European continental world.

The Code Napoleon

One other code may be mentioned here-a modern one-the Code Napoleon. Having been appointed Consul, Napoleon appointed a Committee to make a codification of laws. Napoleon assisted in the deliberations. Here again the people were not consulted. It was compiled in four months, and is said to be the product of the Roman and customary laws, the ordinances of the kings, and the laws of the Revolution. This Code is firmly entrenched in most of the countries of Europe and prevails among most of the Latin races.

This Code Napoleon, like the Theodosian and J us­tinian Codes, did not originate with the legislative branch of government, nor on the initiative of the people. All these codifications originated with the ruler of the nation; their provisions were dictated by him. The rigors of this system were at times mi tiga ted by a benign sovereign, but only to the extent that he desired; legislative bodies might at times be set up and function as he permitted; but any attempt by those bodies to go contrary to his will was somehow made ineffective; sometimes such efforts were treasonable and so treated.

Rights of People

The people under this system have those rights, powers, and privileges, and those only which the sovereign considers are for their good or for his advantage. He adds or takes away as suits his royal pleasure. All the residuum of power is ih the Emperor. Under this system, the people look into the law to see what they may do. They may only do what the Emperor has declared they may do. It may be noted in passing, that under our common law system, we look into the law to see what we may not do, for we may do everything we are not forbidden to do.

This civil law concept explains why, over the cen­turies, it has been possible for the head of a state, operat­ing under this concept, to establish with comparative ease a dictatorship.

We must always remember that despotism and tyr­anny, with all their attendant tragedies to the people, as in Russia today, come to nations because one man, or a small group of men, seize and exercise by themselves the three great divisions of government-the legislative, the executive, and the judicial. For now a score of centuries, the nations and peoples of Western and Southern Europe -the bulk of the civilized world until less than two cel1­turies ago-have lived under this concept (sometimes more, sometimes less) and, when the concept has been operative, have suffered the resulting tragedies-loss of liberty, oppression, great poverty among the masses, insecurity, wanton disregard of human life, and a host of the relatives of these evil broods.

Concepts of the Founding Fathers

The Framers of our Constitution knew this history, and planned to make sure that these enemies to human welfare, freedom, and happiness did not come to America. They were trained and experienced in the Common Law. They remembered the Barons and King John at Runny~ mede. They were thoroughly indoctrinated in the prin­ciple that the true sovereignty rested in the people.

Near the beginning of our Revolution, the repre­sentatives of the people met in Philadelphia and issued their great proclamation, the Declaration of Independ­ence. They solemnly announced:

"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed .... And for the support of this Declara­tion, with a firm reliance on the protection of Divine Providence, We mutually pledge to each other our Lives, our Fortunes and our sacred Honor."

They made good the pledge to the last great sacrifice, and independence was won. The representatives of the people were then speaking, and they spoke the things that were in their hearts, for which they were ready to die, and did die. No Emperor ever spoke in these terms. To have done so, would have been his suicide.

Twelve years after the Declaration, spurred by dissensions among the colonies which threatened civil disturbances that would have invited reconquest, the representatives of the people again met in Philadelphia in the same hall and framed the Constitution. The Pre­amble to that inspired document laid down the great purposes to accomplish which the new government was set up. It declared:

"WE THE PEOPLE of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this CONSTITUTION for the United States of America." Here the people were speaking as sovereign, not an Emperor, nor a small, self-appointed group assuming to be sovereign. The people declared they were so acting and did so act by adopting the Constitution. They formally declared : "We the people ... do ordain and establish." This is the difference between liberty and despotism.

Deeply read in history, steeped in the lore of the past in human government, and experienced in the approaches of despotism which they had, themselves, suffered at the hands of George the Third, these patriots, assembled in solemn convention, planned for the estab­lishment of a government that would ensure to them the blessings they described in the Preamble. The people were setting up the government. They were bestowing power. They gave to the government the powers they wished to give; they retained what they did not wish to give. The residuum of power was in them. There was no emperor, no lex regia here.

I can, today, deal only with a few simple, elemental matters, and that but briefly.

Separation and Fusion of Governmental Functions

The Framers, in the Government they provided for, separated the three functions of government, and set each of them up as a separate branch-the legislative, the executive, and the judicial. Each was wholly inde­pendent of the other. No one of them might encroach upon the other. No one of them might delegate its power to another.

Yet by the Constitution, the different branches were bound together, unified into an efficient, operating whole. These branches stood together, supported one another. While severally independent, they were at the same time, mutually dependent. It is this union of independence and dependence of these branches-legislative, executive, and judicial-and of the governmental functions possessed by each of them, that constitutes the marvelous genius of this unrivalled document. The Framers had no direct guide in this work, no historical governmental precedent upon which to rely. As I see it, it was here that the divine inspiration came. It was truly a miracle.

The Legislative Department

The people, not an Emperor or a small group, were to make the laws through their representatives chosen by them. To make sure the representatives did not get out of hand, they were elected for short terms of office. The people could, at short intervals, displace unsatis­factory representatives and elect others to take their places. The will of the people, not the will of an Emperor, was to control.

Furthermore, the people specified in the great docu­ment, the matters about which their representatives could make laws. The sovereign power was in the people, and the legislative branch could go only so far as they author­ized. They lodged in the Congress the sole power to make laws about the matters they entrusted to them, and none others. This is basic, elemental. There is a tendency to overlook it.

As already stated, the whole residuum of legislative power rested in the sovereign people, and the Congress could not enter that reserved domain without express authorization from the people. This is the principle that operates to declare a law unconstitutional. We, the people, have all this power in our hands. if we will but exercise it.

The Executive Department

Not only their knowledge of history, but their experi­ence, also, taught them the ills of royalty and kingship. Washington, with a lofty, pure patriotism, unequalled, I think, in the whole history of the world, had set them the lesson, when, at Newburg, he affirmed that he must view with abhorrence, and reprehend with severity the suggestion of certain elements of the army that they make him king, a suggestion, he said, that "seems big with the greatest mischiefs that can befall my country."

(It might not be a bad thing to have an easily read­able, engraved copy of Washington's letter on this mat­ter, hung in several conspicuous places in the White House. )

The Convention (Washington was its president) provided for the election by the people of their chief executive-a President-for a limited term. Under the influence of Washington's lofty patriotism, they failed to think it necessary to provide limitations upon re­election. But, mindful of the lessons of history, the Con­vention, representing the people, bestowed upon their President certain specific powers, only. He had none they did not bestow. They bestowed upon the chief exec­utive all the executive powers they gave to anybody. Here, also, all the residuum executive powers were retained by the sovereign people. If the executive is lawfully to exercise any further powers, these powers must be be­stowed by the people. The President is not a sovereign emperor, yet in the executive department is lodged all the executive power, which, by the Constitution, the people gave up to government.

As a check upon the legislative branch, the people, under the Constitution, gave the chief executive certain limited legislative functions; he reports the needs of the country to Congress, he can recommend legislation, he can veto bills of Congress, but Congress can pass these bills over his veto.

That the President might not acquire too much power in his executing of the laws, the people imposed certain limitations upon his powers of appointment to office by providing that the Senate must advise and con­sent to certain of the more important appointments.

To the same point of further checking the executive power, in legislative matters, the people provided, through their representatives at the Convention, certain restrictions to his conduct of foreign affairs, by providing that treaties must be ratified by the Senate. Moreover, our diplomatic representatives can be properly appointed only by and with the advice and consent of the Senate.

Thus, while the President is given certain powers with respect to the enactment of legislation, the Congress is given certain powers with respect to the administration of the government. These arrangements are sometimes spoken of as checks and balances, and if they are ob­served, they prevent any encroachment by one branch of the government against another, or upon the rights and privileges which the people reserve to themselves.

The Judicial Department

The people, through their representatives at the Convention, provided for a judiciary which was to judge the laws, to determine, first, whether the laws were in agreement with or in derogation of the powers conferred upon the federal government, and, second, to determine the respective rights of litigants under the law. All the judicial powers of the government were to be exercised by the courts.

Here, also, safeguards were provided. The President nominates the various judicial officers, but the Senate must advise and consent to their appointment. The legis­lative branch and the executive branch co-operate in the setting- up of the judiciary, which, however, once created, acts independently of either of the others.

There is no provision in the Constitution giving gen­eral authority to either branch to function in the field of the other, except as specifically provided; nor is either branch (except as specifically provided otherwise) to delegate any of its powers to the other. These two prin­ciples are elemental. So long as these principles are observed, our liberties and our free institutions are secure, and no despotism can be set up amongst us.

I wish now briefly to call attention, in general terms, to some inroads that are making into our constitutional system.

In this connection, I ask you to keep in mind that the despotism made possible and often existing under the Roman Civil Law, resulted from the concept that the head of the state had all governmental powers, in their totality-legislative, executive, and judicial. This is the lex regia concept. I repeat, this makes despotism pos­sible-then and now.

Administrative Tribunals

There is a growing tendency for our Congress to turn over to administrative commissions the power to make laws. This plan carries the innocent description of making regulations for enforcing the laws. But lawyers know that under the guise of issuing regulations, these administrative bodies really legislate, not only in pro­cedural matters, but also in substantive matters. The emperor idea (always alluring to ambitious men) is taking root.

Again, these same administrative bodies that so legislate, also act as judges of their legislation. They are pro tanto the judiciary judging their own laws. This is some more Emperor, more lex regia concept.

Finally, I am told that in certain matters, these administrative bodies exercise executive powers to en­force their decisions. If this be true-I fear it is, this is the final Emperor step,-the lex regia concept of the Roman system,-in one place the legislative, the execu­tive, and the judicial powers.

We the people have accepted all this. The courts have not condemned it. As to the matters affected, we are now a despotism. If it is established and accepted in one field, it is easily extended over others. It is only a matter of time and our complacency. It is not possible to condemn too strongly this growing perversion of our constitutional principles .

Unofficial Diplomacy

Again, and as another check upon the executive, in his conduct of international relations, the diplomatic representatives of the government must be, as we the people provided in the Constitution, nominated by the President and approved by the Senate. But the habit is growing of appointment by the President of personal, quasi-diplomatic representatives, "ambassadors at large" they call them, who "going to and fro in the earth and walking up and down"-to use Job's phrase-bring their harvests to the President. President Wilson was the first to give this device considerable importance when he sent the ubiquitous Colonel House to Europe. Colonel House (not approved by the Senate) with the President's ap­proval, committed us to enter W orId War I on the side of the Allies more than a year before Congress declared War.

There is no such thing as a Presidential Ambassador under the Constitution. This is another Emperor insignia. Our Ambassadors are Ambassadors of the United States, not Ambassadors of the President. We the people have accepted that innovation, too.

Influencing Congress

We the people provided in our Constitution that the President should report the state of the Union to Congress and recommend legislation. But there is growing up the custom for the chief executive not only to recommend legislation, but actually to draft it, and submit it to his favorites in Congress to secure its passage. The adminis­tration support in Congress takes the bill and makes every effort to pass it. The Roman Senate receiving the Theodosian Code, without discussion, not dotting an "i" or crossing a "t," and with shouts of "It is right! So be it I", was hardly more subservient than are some presi­dential congressional supporters. While in Theodosian days men were executed as traitors for refusing to go along with the program, in our days, political vengeance is visited, either by denying patronage, or by social ostra­cism, or by active opposition at the polls against recalci­trant lawmakers. President Theodore Roosevelt was one of the early exponents of these measures of compulsion. This, in effect, is some more Emperor absorption of the legislative powers, the lex regia concept of Rome.

Who Is Misdirecting

One time more, before I close-

And I may as well here as anywhere, tell you that, in my opinion, built from observation over the years, when the true history of our detours from constitutional government is written, it will be found that they were largely conceived and put in motion by European political emigres, who were trained in the Civil Law and thor­oughly converted to the lex regia concept of the Institutes. They have been aided and abetted by certain fellow trav­eling liberals, among them being those who have been trying to destroy the right and tradition of the Supreme Court of the United States to declare laws unconstitu­tional. They are gradually-not too gradually-trying on us all the tricks the Roman Emperors used in order to hold their autocratic power, in an effort to build here a lex regia concept either through a dictator or through a socialized, Sovietized government that will establish the same sort of society.

Presidential War Powers

One of the most relied upon shibboleths of those augmenting the executive power, is the war powers of the President. When, during a war, all else fails to justify some proposed unconstitutional course, the emi­gres and their fellow travelers fall back upon the war powers of the President.

But there is no magic in this phrase. As a matter of fact and of law, there are almost no Presidential war powers in the sense in which these political emigres and their fellow travelers use it, that is, a source of power inherent in the President as President and awakened by the fact of war. A short explanation will make this clear.

As a matter of fact and of law the President of the United States is a dual personality. He is the Chief Executive charged with executing the laws of the country, and he is Commander in Chief of the Army and Navy of the United States. The problem is simplified if you think of the presidential powers as lodged in two persons­one the Chief Executive, and the other the Commander in Chief.

As Chief Executive he enforces the laws of the land, passed by Congress or coming in by treaty, which latter, the making of treaties, seems to be the only law-making participation given to the Chief Executive by the Consti­tution, except the power of veto and the power to recommend legislation just mentioned. The war powers are in Congress which is given the exclusive power under the constitutional provisions:

"To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

"To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

"To provide and maintain a Navy;

"To make Rules for the Government and Regulation of the land and naval Forces;

"To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

"To provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserv­ing to the States respectively, the Appointment of the Officers, and the Authority of training the Militia ac­cording to the discipline prescribed by Congress."

These are the war powers prescribed by the Consti­tution and they are all in Congress. But when that body passes laws to implement these powers, then the execution of these laws becomes the duty and responsibility of the Chief Executive, and the powers granted by such laws, and only those so granted, constitute the war powers of the President as Chief Executive. But none of such powers are inherent in the office of the Chief Executive. Obviously, in addition to these war powers so granted by Congress, the Chief Executive has all the peace-time powers with which either the Constitution or the Con­gress endows him.

But as our laws show, such Chief Executive powers (conferred upon him by Congress in time of war) may be of the widest scope, including provisions derogatory and even largely destructive of the ordinary peace-time civil rights of individuals.

However, to repeat, this authority and these powers are to be measured exclusively by the express statutory enactments of the Congress, passed pursuant to and in virtue of the duty and powers of Congress to provide for the waging of war by the United States as specifically authorized by Constitutional provision. They are not to be considered as growing out of, or in any necessary way, concerned with, related to, or enlarged by his powers as Commander in Chief.

So much for the war powers of the President as Chief Executive.

There is no imperial lex regia concept in all this. It is directly contrary thereto.

As to the duties of the President as Commander in Chief of the Army and Navy of the United States, with­out going into great detail it may be observed that a commander in chief is appointed (as history irrefutably shows) for the conduct of belligerent operations of armies in the field; and to this end the commanders in chief have been given by their sovereigns very large executive, judicial, and legislative powers over occupied enerny territory. But to assume from the existence of these powers in occupied enemy territory that a commander's commission also endows him with like powers in the matter of the local government of his own country, powers which to be operative must supplant the sovereignly established constitutional order, with a new and different concept, is to adopt a politically unsound theory and to . ignore elemental historical facts of all civilized governments, autocratic or democratic, the world over. When the Commander in Chief assumes these latter powers, he becomes a usurper.

There is no imperial lex regia concept in this com­mander in chief-ship of ours, either. It is wholly gov­erned by Constitution provision and limitation. Thus­far-shalt-thou-go-and-no-farther is inherent in the whole situation.

If time permitted we might discuss other devices that were part and parcel of the imperial Roman tech­nique used to maintain the lex regia concept of that government, and to keep the Emperor in power. I will merely name one more:

There was the buying of the support of the Roman people by giving them elaborate banquets, by the distri­bution of foodstuffs free, by providing the people with magnificent amusements, such as gladiatorial fights, fights between wild animals, and between savage beasts and humans (such as throwing Christians to hungry lions), by providing numerous and prolonged holidays, crowded with amusements of various kinds (we talk about recreation), by the triumphs of victorious generals in which the generals, ambitious and bidding for popular support looking towards power and lucrative office, pro­vided all the foregoing. All this was done without cost to the people. Run over in your minds our own present situation, and figure how much government is giving the people, and the results of the policy.

A few words in conclusion:

Having in mind the loudness with which some few cry out against the inadequacy of our system, I may observe that the mere seeming existence of an exigency not apparently covered by our fundamental instrument, or the appearance of an inconvenience of mere administration under it, can not justify any branch of govern­ment in a violation of the Constitution. Nothing but such a necessity in extremis as the compelling force of a conquering foe could justify any branch of government in assuming that the people had willed a violation of their fundamental charter of government. Moreover, it is to be said of the past that no necessity has thus far arisen in our history which could not have been ultimately and adequately met by constitutional methods. And history justifies the further statement that the cry sometimes raised for amendment of our great fundamental charter to meet transitory and pseudo-emergencies, the charge that we are governed by an antiquated instrument em­bodying obsolete principles unsuited and irresponsive to the needs of modern life, this cry and charge almost always come from those who, from want of individual or racial capacity, are incapable of understanding or appre­ciating the fundamentals of, or to think practically and creatively about, the problems of free self-government. There is every reason to believe that those who under­stand the spirit as well as the word of the Constitution will be able in the future as in the past to find a way under it to meet all national emergencies and yet preserve its great principles and the republican form of govern­ment for which it provides.

God grant we may not sell our heritage of liberty and free institutions, our God-given birthright, for a mess of sodden pottage, carrying a poison that will en­slave us and our children for generations yet to come. Let us not sell our children into slavery.