in self-defence, except by a special act of Congress, we are almost disqualified from becoming a great military power.

In fact the United States go into their new world-field hampered at more than one point by having a written constitution, to which every act of the administration must be conformed. The great aim of those who framed it was, as to foreign powers, to provide for "the common defence." It is a coat of armor, capital for resisting sword thrusts, but of no help in giving them. It weighs us down at every step.

The executive authority in most governments determines its foreign policy and acts with little control from courts or legislatures. It acts, therefore, with promptitude, decision and secrecy. Our President is bound to refer many matters in this field to the Senate, and the Senate has become, in course of time, by the addition of new States, too large to fulfill properly the functions of a privy council. It lacks most of the essential qualities of such a body. It is little but a brake, and what is done and said in its executive sessions is too often to be learned from the next day's newspapers.

Nor are some of our constitutional limitations less embarrassing in time of peace, when we come to deal with the results of war.

No one can read the message of the President at the opening of the present session of Congress, without being struck with the space given-and unavoidably given-to the explanation of our foreign relations. The Queen of Great Britain, a few days later, sent in a similar communication to Parliament. It had to do with a costly war, not yet concluded, and as to the mode of concluding which public sentiment was divided. But her speech was one of a single sentence. She asked supplies, and reserved to herself the consideration of all other questions. It was not necessary to take Parliament into her confidence. It was necessary for President McKinley to take Congress into his.

But something more was necessary. Even the assent of Congress to such measures as he might suggest would not make them law. They must square with this same written constitution; and every individual, native or foreigner, had the right to question their conformity to it before the courts, should he claim that they affected his interests injuriously.

When the President's message was sent in, cases were already before the Supreme Court of the United States in which the validity of his action in matters arising in Porto Rico, Hawaii and Cuba had been challenged. Others are sure to follow in long succession. Can a Filipino be tried for crime except by a jury of twelve men? Can he be tried at all for any grave offence without being first indicted by a grand jury of eighteen men? Questions like these involve, at bottom, the power of the United States to hold and govern permanently lands acquired from a foreign power and inhabited by a half-civilized people. We cannot govern such men by Anglo-Saxon methods of administering criminal justice. If our Constitution requires that, we must draw off and leave them to govern themselves or cede the lands to some other Power. We must, that is, if we conform to the original spirit of our constitutional guaranties.

Written constitutions, however, are the subject of a certain growth, and what their framers meant by the words they used is never absolutely controlling upon their construction by posterity. Gouverneur Morris is responsible for much of the language of the Constitution of the United States. But it is more important what the people of the different States understood this language to signify, than what it meant to him. They, in ratifying the work of the Constitutional Convention of 1787, took the words put before them as they stood, without asking particularly what might have been the intention of the members of the Convention in employing them. In the interpretation of any legal document the cardinal rule must be to give its terms their natural meaning, notwithstanding a more restricted or a more unlimited one may have been really intended by the writer.

Chief Justice Marshall applied this doctrine with great force in the Dartmouth College case. If the College charter constituted a contract between the founders and the State, the legislative action which Webster was attacking must be held void. But, urged counsel who opposed him, no one in the Convention of 1787 ever dreamed that a charter was a contract; nor did a single man among those by whose votes the Constitution was ratified and adopted.

"It is more than possible," said the Chief Justice, “that the preservation of rights of this description was not particularly in the view of the framers of the Constitution, when the clause under consideration was introduced into that instrument. It is probable that interferences of more frequent recurrence, to which the temptation was stronger, and of which the mischief was more extensive, constituted the great motive for imposing this restriction on the State legislatures. But although a particular and a rare case may not, in itself, be of sufficient magnitude to induce a rule, yet it must be governed by the rule, when established, unless some plain and strong reason for excluding it can be given. It is not enough to say, that this particular case was not in the mind of the Convention, when the article was framed, nor of the American people, when it was adopted. It is necessary to go farther, and to say that, had this particular case been suggested, the language would have been so varied as to exclude it, or it would have been made a special exception. The case being within the words of the rule, must be within its operation likewise, unless there be something in the literal construction so obviously absurd, or mischievous, or repugnant to the general spirit of the instrument, as to justify those who expound the Constitution in making it an exception."

By emphasizing certain of its terms, and minimizing others, great changes from anything which the framers of that instrument can reasonably be supposed to have contemplated, have, in the past century, been wrought by the people and sanctioned by the judiciary. More of this work, no doubt, is yet to be done in the same way.

The powers of the President of the United States have been steadily growing, ever since that great office was created, at the expense of those of the legislative and judicial departments. They will continue to grow, as new occasions for their exercise arise; first because the yearly multiplication of federal law is constantly enlarging their subject, and second, because he is the only representative in our system of government of the whole American people, and speaks in a certain sense with their authority.

A single instance will suffice to illustrate this tendency. Some ten years ago a man was arrested on a warrant from a proper magistrate of one of our States on a charge of murder. He had, in fact, killed another, but claimed to have done it in the exercise of his duty as a deputy marshal of the United States, in order to save the life of one of the judges of the United States from a felonious attack. If so, he had a perfect defence in the courts of the State, should he be brought to trial there before a jury. Instead, however, of abiding such an issue, he secured a summary discharge from a federal judge upon a writ of habeas corpus. The executive department, it was held, in virtue of the general obligation of the President to "take care that the laws be faithfully executed." had implied power to surround the judiciary with armed guards, whenever and wherever there was just reason to apprehend attack, and no State could hold them to account for what they might do in its defence.1

As the President is invested with the entire "executive power" of the United States, and as it is the executive power of a nation which must maintain its communications with other countries, he has always been the real director of our foreign policy. Having the initiative, it has been easy for him to place us in a certain position, to commit us to a certain line of conduct, from which it was practically impossible to recede. Recognized as having the sole means of authentic intelligence as to the doings of other nations, his recommendations as to legislation affecting our relations to them carry the greatest weight. Irresponsible to Congress, and practically irremovable from office, he can give the fullest force to his own individual ideas of right and duty.

These attributes of the President make us fitter than most republics to play the part of a Great Power in large questions of diplomacy.

The veto of the Senate on the treaty-making power puts, indeed, an obstacle in the way of prompt action, and often of salutary action, which necessarily impairs the consistency of our foreign policy. But this has become of less importance since the constitutional changes, of late years, through which treaties involving important interests are now, in many other countries,

1 In re Neagle, 135 United States Reports, 1.

made subject to ratification by legislative action. The world has become patient of popular opposition to measures of administration.

It is also easy for an administration to forestall any unfavorable reception of a treaty by the Senate, in most cases, by a little management. If the chairman of its Committee on Foreign Relations is consulted in advance by the Secretary of State, and kept informed of the progress of negotiations, he will be very apt to give his support to whatever is brought forward as the outcome; and his voice in such a matter is likely to control.

There would be inconvenience, if not danger, in thus taking a particular senator into the confidence of the President, should it ever come to be practiced as a thing of course. It would raise up a new office in the government. The chairman of this committee would become another Secretary of State, and should he differ in opinion with the rightful holder of that position, collisions might occur which can never arise so long as we adhere to the constitutional theory of the executive power, that it is one and indivisible.

It has been suggested that the absence of any such previous consultation was one of the reasons for the recent action of the Senate on the Hay-Pauncefote treaty respecting the Isthmian canal. If it in fact was thus regarded by Senator Davis or Senator Lodge as the deprivation of a customary privilege, the defeat of the administration was better for the country than anything that could be gained from a vote of ratification. The President cannot be too vigilant in guarding his high prerogatives. Unless kept absolutely intact, the balance of the Constitution is disturbed, and an inroad made upon our scheme of government at the point of least resistance.

Had the Senate always remained the body of twenty-two men which it was originally, the President might have continued the practice of our early administrations, and taken a personal part in their executive sessions. But even then he could not safely have made one or two, as of right, his confidants in advance. His individual responsibility would have been lowered, and cabals would have been a natural result.

The great enlargement of the Senate intensifies these reasons for maintaining at this point the absolute independence of the