Their points of view, their temperaments were similar.  Browning shared Lincoln’s magnanimity, his hatred of extremes, his eagerness not to allow the war to degenerate into revolution.  In the early part of 1862 he was Lincoln’s spokesman in the Senate.  Now that the temper of Wade and Chandler, the ruthlessness that dominated the Committee, had drawn unto itself such a cohort of allies; now that all their thinking had been organized by a fearless mind; there was urgent need for a masterly reply.  Did Lincoln feel unequal, at the moment, to this great task?  Very probably he did.  Anyhow, it was Browning who made the reply,(8) a reply so exactly in his friend’s vein, that—­there you are!

His aim was to explain the nature of those war powers of the government “which lie dormant during time of peace,” and therefore he frankly put the question, “Is Congress the government?” Senator Fessenden, echoing Stevens had said, “There is no limit on the powers of Congress; everything must yield to the force of martial law as resolved by Congress.”  “There, sir,” said Browning, “is as broad and deep a foundation for absolute despotism as was ever laid.”  He rang the changes on the need to “protect minorities from the oppression and tyranny of excited majorities.”

He went on to lay the basis of all Lincoln’s subsequent defense of the presidential theory as opposed to the congressional theory, by formulating two propositions which reappear in some of Lincoln’s most famous papers.  Congress is not a safe vessel for extraordinary powers, because in our system we have difficulty in bringing it definitely to an account under any sort of plebiscite.  On the other hand the President, if he abuses the war powers “when peace returns, is answerable to the civil power for that abuse.”

But Browning was not content to reason on generalities.  Asserting that Congress could no more command the army than it could adjudicate a case, he further asserted that the Supreme Court had settled the matter and had lodged the war powers in the President.  He cited a decision called forth by the legal question, “Can a Circuit Court of the United States inquire whether a President had acted rightly in calling out the militia of a State to suppress an insurrection?” “The elevated office of the President,” said the Court, “chosen as he is by the People of the United States, and the high responsibility he could not fail to feel when acting in a case of such moment, appear to furnish as strong safeguards against the wilful abuse of power as human prudence and foresight could well devise.  At all events, it is conferred upon him by the Constitution and the laws of the United States, and therefore, must be respected and enforced in its judicial tribunals."(9)

Whether or not constitutional lawyers would agree with Browning in the conclusion he drew from this decision, it was plainly the bed rock of his thought.  He believed that the President—­whatever your mere historian might have to say—­was in point of fact the exponent of the people as a whole, and therefore the proper vessel for the ultimate rights of a sovereign, rights that only the people possess, that only the people can delegate.  And this was Lincoln’s theory.  Roughly speaking, he-conceived of the presidential office about as if it were the office of Tribune of the People.