cial authority was theoretically and practically lodged in the hands of the august ruler who presided over the destinies of half the world. In France, Austria, Prussia, and especially in Italy, some approach has been made to a constitutional government, and to a separation of legislative and executive powers. In none of these countries, however, except in Italy, does this separation approach in completeness and efficiency that which exists in Great Britain; and in none of them can the judiciary properly be called an independent, co-ordinate department of the government.

§ 169. One fact of history may be considered as established, - that there has been and is the greatest amount of individual and political liberty in those nations whose governments are framed upon this tri-partite model; and that just so far as the civil polity approaches towards a despotism are all species of power centred in one ruler or body of rulers. If the entire governmental force of a nation is wielded by a single person or class of persons, if he or they may at once make, interpret, and execute laws, there is inevitably abuse of power, destruction of private rights, whether the one ruler be monarch, legislature, or the entire mass of the people themselves.

§ 170. A proposition which is thus historically true, must have some firm foundation in the nature of things. The possession of power is one of the most dangerous gifts which can fall to the lot of humanity. The tendency is always to its abuse. Power grows upon itself. In a perfect state, it is not enough that the rulers at any given time should be perfect men. There must be checks so contrived as to resist the encroachments of authority, which are to be apprehended even from the purest and most patriotic rulers. No other check has proved so effectual as the division of functions into legislative, executive, and judicial, and their assignment to classes of officials physically separate. If the legislature were also judges, their decisions would not be based upon the law as it is; but, as it would be impossible for the same men to keep their two characters entirely distinct, their judgments would rather be arbitrary enactments, special measures of legislation. for each particular case. Thus all certainty as to the law

would be lost. If the same person or class of persons were to make and execute the laws, the results would be still more disastrous; for, in applying any particular statute, whatever deficiencies in its provisions had been left by the rulers in their legislative capacity, could be easily supplied by them while acting in their executive capacity. Thus the laws, instead of being general commands enjoining the observance of general rules, would become special commands addressed to individual members of society. This uncertain and special nature of the law is the very essence of an arbitrary and tyrannical government.1

§ 171. Divide these functions, and each is met by resistance from the others; all must conspire to give efficacy to any attempt against personal liberty and private rights. Have the Congress erred, the courts may recall them to their duty. Does the President transgress the limits of his authority, the legislature may force him into his legitimate sphere. Thus the whole government is a nicely-contrived balance, in which the equable poise cannot long be disturbed.

§ 172. The Constitution provides, in Art. I. Sec. I., that All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives; " in Art. II. Sec. I. § 1, that "the executive power shall be vested in a President of the United States;" and, in Art. III. Sec. I., that "the judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish."

§ 173. This language is clear, precise, and apparently without exception or limitation. Yet, when we compare it with other clauses of the Constitution, we shall discover that the separation of functions is not thus perfect; that the several departments are not thus absolutely independent of each other. Indeed, such an ideal independence is impracticable. While the classes of functions committed to the legislature, the executive, and the judiciary may be generally or in the mass distinct, there must be, in the very nature of things, some 1 Montesquieu, Book II chap. vi.

points of contact, some overlapping, some commingling. All this threefold machinery tends towards one object, — the crea tion and protection of legal rights, and the creation and enforcement of legal duties. It is impossible to keep the lines of communication perfectly separate until they meet in the very point at which they are directed. How much of this intermingling shall be permitted will, of course, depend upon the opinions and convictions of those who frame and adopt a form of government. We do not admit as much as is found in the British constitution. It cannot be denied that the government is stronger, more compact and harmonious, from these partial interferences of the various departments. The problem presented to the people was, to frame a constitution which se cured the largest amount of liberty with a sufficient degree of strength and unity in the entire administration to maintain and perpetuate our free institutions. A perfect ideal, therefore, had to give way to some practical necessities.

§ 174. Although the Constitution, in its general language, vests the legislative power in a Congress which is declared to consist of a Senate and a House of Representatives, yet a reference to other portions of the organic law shows that this Congress does not, in fact, possess the sole legislative function. No law can be passed without the consent of the Executive, unless two thirds of both houses shall finally concur therein. The assent of the President is as necessary to the enactment of any measure having the nature of law, as that of a majority of both branches of Congress. In this the President legislates. His affirmative or negative decision is a step in the process of creating, and not of executing, laws. By virtue of the various provisions of the Constitution, the Congress is in fact, though not formally and in terms, composed of three distinct bodies, President, Senate, and House of Representatives; and all must concur, with the single exception just noticed, that a two-thirds vote of both the other branches avails against the dissent of the Executive.

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§ 175. But the legislative function of the President is in every way inferior to that held by the Senate and by the House of Representatives. This inferiority consists, first, in

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