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the fact that his negative vote may be overruled by two thirds. of the Congress, or, in other words, that a majority of two thirds practically dispenses with his concurrence; and, secondly, in the fact that the President cannot originate any legislative measure. He may communicate information, and recommend measures to the consideration of Congress (Art. II. Sec. III.), but he cannot directly set in motion any scheme of legislation; he must await the definitive action of the two Houses, and add or refuse his consent to their perfected work.

§ 176. It is evident that our own national legislature is, in respect to the power of the Executive, copied from that of Great Britain, which consists of three orders, King, Lords, and Commons. But here, as in many other important features of the American civil polity, it is dangerous to push the analogy too far. While the resemblance between the power of the Crown and that of the President lies on the very surface and at once arrests attention, the differences, which lie deeper, are far more important both in theory and in practice. These differences inhere in the very constitution of the British Parliament, as compared with that of the American Congress. In pure theory, the Parliament is composed of King, Lords, and Commons. At one time this theory represented an existing and potent fact. Its outward form is preserved to the present day; and not a statute is now passed which does not purport to be "enacted by the Queen's Most Excellent Majesty, by and with the consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same." But, while the form is clung to, the substance has gone; the crown is a mere pageant; the executive department is virtually merged in the legislative; the ministers, who are and must be members of Parliament, possess, as such members, the function of originating measures; but the power to refuse the Executive consent to measures that have passed the two Houses has practically ceased to exist. While, therefore, the words which are generally used to describe the legislative function of the British Crown are far stronger than those which define the similar

capacity of the American President, the substantial power of the latter is by far the greater. It is said that the King has the prerogative of an absolute veto; the exercise of this prerogative would doubtless produce a revolution. As the ministers who constitute the responsible executive are members of Parliament, it follows as a matter of course that the British Legislature has grasped and now wields both the creative and the administrative function, and that the assent of two Houses or branches only is practically necessary to the enactment of law.

§ 177. The President's power of legislation is far more substantial. His independence of the Congress constitutes him an effective check upon the acts of that body. Nothing less than a two-thirds majority of both Houses can reduce him to the level of the British Crown. The doctrine has been advanced and maintained with some earnestness, both in former times and recently, that the President can only refuse his assent to a proposed measure when he deems it to be unconstitutional, to be a step beyond the limits of legislative authority, an usurpation of power by the Congress. There is no ground whatever for this notion. The Constitution places no restraint upon the discretion of the Executive. He may be guided by motives of expediency in granting or withholding his affirmative vote, as well as any Senator or Representative. Art. I. Sec. VII. says: "Every bill which shall have passed the House of Representatives and the Senate, shall, before it become a law, be presented to the President of the United States. If he approve, he shall sign it; but, if not, he shall return it, with his objections, to that House in which it shall have originated, who shall enter the objections at large on their journal, and proceed to reconsider it. If, after such reconsideration, two thirds of that House shall agree to pass the bill, it shall be sent, together with the objections, to the other House, by which it shall likewise be reconsidered; and, if approved by two thirds of that House, it shall become a law. If any bill shall not be returned by the President within ten days (Sundays excepted) after it shall have been presented to him, the same shall be a law in like manner as if

he had signed it, unless the Congress, by their adjournment, prevent its return, in which case it shall not be a law.

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Every order, resolution, or vote, to which the concurrence of the Senate and House of Representatives may be necessary (except on a question of adjournment), shall be presented to the President of the United States, and, before the same shall take effect, shall be approved by him; or, being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the rules and limitations prescribed in the case of a bill.”

Here are no restrictions upon the nature and quality of the objections which the Chief Magistrate may oppose to any statute. That Presidents have seldom exercised their right to stop the passage of any measure because they deemed it to be inexpedient, while they admitted its constitutionality, is no ground for denying the existence of the power. They have generally deferred to the direct representatives of the people on all questions of mere policy.

§ 178. Is the assent of the President necessary to amendments of the Constitution proposed by the Congress? In other words, is such an amendment a bill, order, resolution, or vote, which must be submitted to the Executive for his approval? The uniform practice of the legislative and the executive departments has answered this question in the negative; and the construction thus placed upon the Constitution may be considered as final. Several independent considerations lead to this result. The language of Art. V. is quite different from that used in Art. I. Sec. VII.: "The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose amendments to this Constitution," &c. "Congress" is here used in its technical sense as descriptive of the two Houses. As two thirds of each House are necessary to initiate the process of amendment, it would seem unnecessary to require the assent of the President, when a majority so great may overrule his dissent. Finally, a proposed amendment does not seem to be an 66 order, resolution, or vote intended by the § 3 of Art. I. Sec. VII. Such an act of Congress is in no sense legislative; it is a mere proposal; it has

none of the elements of law; it is a laying before the people certain propositions for their consideration; and the people, through their state legislatures or conventions, are the sole legislators. This subject has received much attention in very recent times, as well as at the earliest period of the present government, and has been settled so far as the joint action of President and legislature can settle a question of construction.

§ 179. The Executive possesses another legislative function of an exalted character. Treaties entered into by the United States are declared by the Constitution to be the supreme law of the land.1 Their quality as law is so high that Congress can only destroy them by a single act of legislation, which is a declaration of war against the nations with whom they are made. Yet the treaty-making power, this authority to pass laws. which shall be supreme even over the ordinary proceedings of Congress, is confided to the President, under the single limitation that his work must be submitted to the Senate and ratified by two thirds of that body. He, however, holds the initiative; the upper House can only accept or reject his decrees, they cannot dictate a treaty.

the

§ 180. I will very briefly mention some further instances in which the peculiar functions of one department are partially shared by another. The appointment of officers is plainly an! executive act, and the power to appoint is conferred upon President, or some of his subordinates. Yet all appointments. made by the President must receive the concurrence of the Senate. The trial of impeachments is peculiarly a judicial act, yet the Senate is the only court for that purpose. In addition to these cases of direct interference, there exist fea-tures in the general organization which afford opportunities for the exertion of a vast influence by one department upon another. The judges are not chosen independently of the President and the Senate, but are placed in office by the concurring assent of both. The House of Representatives may be called upon to elect the Chief Magistrate himself in the event that a

1 Const. Art. VI. § 2.
3 Ibid.

2. Const. Art. II. Sec. II. § 2.
4 Ibid. Art. I. Sec. III. § 6.

majority of electors have failed to unite upon the same person for that office.1

§ 181. While, therefore, the general plan of the government assumes three co-ordinate, independent departments, and while these several departments are, in the main, free from each other's control, they are, from necessity, linked together by many ties, both of function and of influence. One does, at times, perform some of the peculiar duties of another.

I have here purposely refrained from speaking of the vast legislative attributes which inhere in a free judiciary under our own and the English system, because this would lead into an extended discussion foreign from the immediate purposes of the present work.

§ 182. Among these three departments there will always be a tendency in each to encroach upon the special province of the others, or to enlarge the sphere of its own governmental action. The Constitution endeavors to draw the lines of demarcation between them; they are placed as checks upon each other; the whole system was carefully planned so as, if possible, to prevent any and all acts of usurpation, by making one department necessary to the others. But the organic law must, of necessity, use general terms; it cannot descend to any minuteness of detail without becoming a code of special precepts rather than a guide to the government in its work of legislation. The checks and counterpoises of the Constitution, are also, in a great measure, moral; the sanctions are slow in their operation, and may never be put in motion. Admirable, therefore, as is the system, it cannot entirely prevent those results which naturally flow from the possession of power; each department will strive to increase the scope of its own functions, even at the expense of the others.

§ 183. In this inevitable struggle the popular branch — the legislature will always obtain and hold the ascendant. The superiority which thus belongs to Congress results from two causes, the greater power of that body, and its greater inclination to use that power. It is in itself plainly the most powerful in that the function of creating law is higher, and more

1 Const. Art. II. Sec. I. § 3.