hers
turned to Roman history, as they intermittently did, it was borne in
upon them that dictatorship had at one time been a normal feature of
republican institutions.

And what history consecrated, doctrine illumined. In Chapter XI of John
Locke's Second Treatise on Civil Government, from the pages of which
much of the opening paragraphs of the Declaration of Independence comes,
we read: "Absolute arbitrary power, or governing without settled
standing laws, can neither of them consist with the ends of society and
government".[36] In Chapter XIV of the same work we are told,
nevertheless, that "prerogative" is the power "to act according to
discretion without the prescription of the law and sometimes against
it"; and that this power belongs to the executive, it being "impossible
to foresee and so by laws to provide for all accidents and necessities
that may concern the public, or make such laws as will do no harm if
they are executed with inflexible rigor." Nor, continues Locke, is this
"undoubted prerogative" ever questioned, "for the people are very seldom
or never scrupulous or nice in the point" whilst the prerogative "is in
any tolerable degree employed for the use it was meant, that is, for the
good of the people."[37] A parallel ambivalence pervades both practice
and adjudication under the Constitution from the beginning.

The opening clause of Article II of the Constitution reads: "The
executive power shall be vested in a President of the United States of
America". The primary purpose of this clause, which made its appearance
late in the Convention and was never separately passed upon by it, was
to settle the question whether the executive branch should be plural or
single; a secondary purpose was to give the President a title. There is
no hint in the published records that the clause was supposed to add
cubits to the succeeding clauses which recite the President's powers and
duties in detail.

For all that, the "executive power" clause was invoked as a grant of
power in the first Congress to assemble under the Constitution, and
outside Congress in 1793. On the former occasion Madison and others
advanced the contention that the clause empowered the President to
remove without the Senate's consent all executive officers, even those
appointed with that consent, and in effect this view prevailed, to be
ratified by the Supreme Court 137 years later in the famous Oregon
Postmaster Case.[38]

In 1793 the protagon