which the Constitution leaves to the President. If he (or a minister), alleging them to be unconstitutional, disobeys them, the only means of deciding whether he is right is by getting the point before the Supreme Court as an issue of law in some legal proceeding. This cannot always be done. If it is done, and the court decide against the President, then if he still refuses to obey, nothing remains but to impeach him.

Impeachment is the heaviest piece of artillery in the Congressional arsenal, but because it is so heavy it is unfit for ordinary use. Since 1789 it has been used only once against a President, and then, although that President (Andrew Johnson) had for two years constantly, and with great intemperance of language, so defied and resisted Congress that the whole machinery of government had been severely strained by the collision of the two authorities, yet the Senate did not convict him, because no single offense had been clearly made out. Thus impeachment does not tend to secure, and indeed was never meant to secure, the coöperation of the Executive with Congress.

It accordingly appears that Congress cannot compel the dismissal of any official. It may investigate his conduct by a committee and so try to drive him to resign. It may request the President to dismiss him, but if his master stands by him and he sticks to his place, nothing more can be done. He may of course be impeached, but one does not impeach for mere incompetence or laxity, as one does not use steam hammers to crack nuts. Thus, while Congress may examine the servants of the public to any extent, may censure them, may lay down rules for their guidance, it cannot get rid of them.

There remains the power which in free countries has been long regarded as the citadel of parliamentary supremacy, the power of the purse. Congress has the sole right of raising money and appropriating it to the service of the State. Its management of national finance is significantly illustrative of the plan which separates the legislative from the Executive. When Congress has endeavored to coerce the President by the use of its money powers, the case being one in which it could not attack him by ordinary legislation (either because such

legislation would be unconstitutional, or for want of a twothirds majority), it has proceeded not by refusing appropriations altogether, as the English House of Commons would do in like circumstances, but by attaching what is called a "rider" to an appropriation bill. In 1867 Congress used this device against President Johnson, with whom it was then at open war, by attaching to an army appropriation bill a clause which virtually deprived the President of the command of the army, entrusting its management to the general highest in command (General Grant). The President yielded, knowing that if he refused the bill would be carried over his veto by a two-thirds vote; and a usage already mischievous was confirmed. In 1879, the majority in Congress attempted to overcome, by the same weapon, the resistance of President Hayes to certain measures affecting the South which they desired to pass. They tacked these measures to three appropriation bills, army, legislative, and judiciary. The minority in both Houses fought hard against the riders, but were beaten. The President vetoed all three bills, and Congress was obliged to pass them without the riders. Next session the struggle recommenced in the same form, and the President, by rejecting the money bills, again compelled Congress to drop the tacked provisions. This victory, which was of course due to the fact that the dominant party in Congress could not command a two-thirds majority, was deemed to have settled the question as between the Executive and the legislature, and may have permanently discouraged the latter from recurring to the same tactics.

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CHAPTER XVIII

THE LEGISLATURE AND THE EXECUTIVE

The fundamental characteristic of the American national government is its separation of the legislative, executive, and judicial departments. In Europe, as well as in America, men are accustomed to talk of legislation and administration as distinct. But a consideration of their nature will show that it is not easy to separate these two departments in theory by analysis, and still less easy to keep them apart in practice.

Wherever the will of the people prevails, the legislature, since it either is or represents the people, can make itself omnipotent, unless checked by the action of the people themselves. It can do this in two ways. It may, like the republics of antiquity, issue decrees for particular cases as they arise, giving constant commands to all its agents, who thus become mere servants with no discretion left them. Or it may frame its laws with such particularity as to provide by anticipation for the greatest possible number of imaginable cases, in this way also so binding down its officials as to leave them no volition, no real authority. Every legislature tends so to enlarge its powers as to encroach on the Executive; and it has great advantages for so doing, because a succeeding legislature rarely consents to strike off any fetter its predecessor has imposed.

The founders of the American Constitution were terribly afraid of a strong Executive, and desired to reserve the final and decisive voice to the legislature, as representing the people. It was urged in the Philadelphia Convention of 1787 that the Executive ought to be appointed by and made accountable to the legislature, as being the supreme power in the national government. This was overruled, because the majority of the Convention was fearful of "democratic haste and instability," fearful that the legislature would, in any event, become too powerful, and therefore anxious to build up some counter authority to

check and balance it. By making the President independent, and keeping him and his ministers apart from the legislature, the Convention thought they were strengthening him, as well as protecting it from attempts on his part to corrupt it. They were also weakening him. He lost the initiative in legislation which the English Executive enjoys. He had not the English King's power of dissolving the legislature and throwing himself upon the country. Thus the executive magistrate seemed left at the mercy of the legislature.

Although the Convention may not have realized how helpless such a so-called Executive must be, they felt the danger of encroachments by an ambitious legislature, and resolved to strengthen him against it. This was done by giving the President a veto which it requires a two-thirds vote of Congress to override. In doing this they went back on their previous action. They had separated the President and his ministers from Congress. They now bestowed on him legislative functions, though in a different form. He became a distinct branch of the legislature, but for negative purposes only. He could not propose, but he could refuse. Thus the Executive was strengthened, not as an Executive, but by being made a part of the legislature; and the legislature, already weakened by being divided into two co-equal houses, was further weakened by finding itself liable to be arrested in any new departure on which two thirds of both Houses were not agreed.

When the two Houses are of one mind, and the party hostile to the President has a two-thirds majority in both, the Executive is almost powerless. It may be right that he should be powerless, because such majorities in both Houses presumably indicate a vast preponderance of popular opinion against him. The fact to be emphasized is, that in this case all "balance of powers" is gone. The legislature has swallowed up the Executive, in virtue of the principle from which this discussion started, viz., that the Executive is in free States only an agent who may be limited by such express and minute commands as to have no volition left him.

The strength of Congress consists in the right to pass statutes; the strength of the President in his right to veto

them. But foreign affairs, as we have seen, cannot be brought within the scope of statutes. How, then, was the American legislature to deal with them? The initiative in foreign policy and the conduct of negotiation were left to the President, but the right of declaring war was reserved to Congress, and that of making treaties to one, the smaller and more experienced, branch of the legislature. A measure of authority was thus suffered to fall back to the Executive which would have served to raise materially his position had foreign questions played as large a part in American politics as they have in French or English.

The President is commander-in-chief of the army, but the numbers and organization of the army are fixed by statute. The President makes appointments, but the Senate has the right of rejecting them, and Congress may pass acts specifying the qualifications of appointees, and reducing the salary of any official except the President himself and the judges. The real strength of the Executive therefore, the rampart from behind which it can resist the aggressions of the legislature, is in ordinary times the veto power. In other words, it survives, as an executive, in virtue not of any properly executive function, but of the share in legislative functions which it has received; it holds its ground by force, not of its separation from the legislature, but of its participation in a right properly belonging to the legislature.

An authority which depends on a veto capable of being overruled by a two-thirds majority may seem frail. But the Executive has some independence. He is strong for defense, if not for attack. Congress can, except within that narrow sphere which the Constitution has absolutely reserved to him, baffle the President, can interrogate, check, and worry his ministers. But it can neither drive him the way it wishes him to go, nor dismiss them for disobedience or incompetence.

An individual man has some great advantages in combating an assembly. His counsels are less distracted. His secrets are better kept. He may sow discord among his antagonists. He can strike a more sudden blow. But in a struggle extending over a long course of years an assembly has advantages