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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.

§ 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.

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§ 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 fea tures 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 origi nating 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 ininisters 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 sub stantial. 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

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

"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 representatiyes 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 "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

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