responsibility is in practice sadly weakened by their want of appropriate methods and organization.

The question follows: How far does the power of the purse enable Congress to control the President? Much less than in European countries. Congress may check any particular scheme which the President favours by refusing supplies for it. If he were to engage in military operations-he cannot under the Constitution "declare war" for that belongs to Congress-the House might paralyse him by declining to vote the requisite army appropriations. If he were to repeat the splendid audacity of Jefferson by purchasing a new territory, they could withhold the purchase money. But if, keeping within the limits of his constitutional functions, he takes a different course from that they recommend, if for instance he should refuse, at their repeated requests, to demand the liberation of American citizens pining in foreign dungeons, or to suppress disorders in a State whose government had requested Federal intervention, they would have to look on. To withhold the ordinary supplies, and thereby stop the machine of government, would injure the country and themselves far more than the President. They would, to use a common expression, be cutting off their nose to spite their face. They could not lawfully refuse to vote his salary, for that is guaranteed to him by the Constitution. They could not, except by a successful impeachment, turn him out of the White House or deprive him of his title to the obedience of all Federal officials.

Accordingly, when Congress has endeavoured 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 two-thirds 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. More than twenty years ago the House had formed the habit of inserting in bills appropriating money to the purposes of the public service, provisions relating to quite different matters, which there was not time to push through in the ordinary way. In 1867 Congress used this device against President Johnson, with whom it was then at open war, by

1 A leading member of the House, Mr. Reagan of Texas, said there that between 1862 and 1875, 375 measures of general legislation had been passed as

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.

President Hayes in his veto messages argued strongly against the whole practice of tacking other matters to money bills. It has certainly caused great abuses, and is now forbidden by the constitutions of many States. Recently the President has urged upon Congress the desirability of so amending the Federal Constitution as to enable him, as a State governor is by some recent State constitutions allowed to do, to veto single items in an appropriation bill without rejecting the whole bill. Such an amendment is generally desired by enlightened men, because it would enable the executive to do its duty by the country in defeating many petty jobs which are now smuggled into these bills, without losing the supplies necessary for the public service which the bills provide. The change seems a small one, but its adoption would cure one of the defects due to the absence of ministers from Congress, and might save the nation millions of dollars a year, by diminishing wasteful expenditure on local purposes. But the process of amending the Constitution is so troublesome that even a change which involves no party issues may remain unadopted long after the best opinion has become unanimous in its favour. provisoes upon appropriation bills. See Mr. Horace Davis's "American Constitutions," p. 30, in Johns Hopkins University Studies, Third Series.

CHAPTER XXI

THE LEGISLATURE AND THE EXECUTIVE

THE fundamental characteristic of the American National Government is its separation of the legislative, executive, and judicial departments. This separation is the merit which the Philadelphia Convention chiefly sought to attain, and which the Americans have been wont to regard as most completely secured by their Constitution. 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. We may begin by examining their relations in the internal affairs of a nation, reserving foreign policy for a later part of the discussion.

People commonly think of the Legislature as the body which lays down general rules of law, which prescribes, for instance, that at a man's death his children shall succeed equally to his property, or that a convicted thief shall be punished with imprisonment, or that a manufacturer may register his trade mark. They think of the Executive as the person or persons who do certain acts under those rules, who lock up convicts, register trade marks, carry letters, raise and pay a police and an army. In finance the Legislature imposes a tax, the Executive gathers it, and places it in the treasury or in a bank, subject to legislative orders; the Legislature votes money by a statute, appropriating it to a specific purpose; the Executive draws it from the treasury or bank, and applies it to that purpose, perhaps in paying the army, perhaps in building a bridge.

The executive is, in civilized countries, itself the creature of the law, deriving therefrom its existence as well as its authority. Sometimes, as in France, it is so palpably and formally. The President of the Republic has been called into existence by the

Constitution. Sometimes, as in England, it is so substantially, though not formally. The English Crown dates from a remote antiquity, when custom and belief had scarcely crystallized into law; and though Parliament has repeatedly determined its devolution upon particular persons or families-it is now held under the Act of Settlement-no statute has ever affected to confer upon it its rights to the obedience of the people. But practically it holds its powers at the pleasure of Parliament, which has in some cases expressly limited them, and in others given them a tacit recognition. We may accordingly say of England and of all constitutional monarchies as well as of republics that the executive in all its acts must obey the law, that is to say, if the law prescribes a particular course of action, the executive must take that course; if the law forbids a particular course, the executive must avoid it.

It is therefore clear that the extent of the power of the executive magistrate depends upon the particularity with which the law is drawn, that is, upon the amount of discretion which the law leaves to him. If the law is general in its terms, the executive has a wide discretion. If, for instance, the law prescribes simply that a duty of ten per cent ad valorem be levied on all manufactured goods imported, it rests with the executive to determine by whom and where that duty shall be collected, and on what principles it shall be calculated. If the law merely creates a post-office, the executive may fix the rate of payment for letters and parcels, and the conditions on which they will be received and delivered. In these cases the executive has a large field within which to exert its free will and choice of means. Power means nothing more than the extent to which a man can make his individual will prevail against the wills of other men, so as to control them. Hence, when the law gives to a magistrate a wide discretion, he is powerful, because the law clothes his will with all the power of the state. On the other hand, if the law goes into very minute details, directing the official to do this and not to do that, it narrows the discretion of the executive magistrate. His personal will and choice are gone. He can no longer be thought of as a co-ordinate power in the state. a mere servant, a hand to carry out the bidding of the legislative brain, or, we may even say, a tool in the legislative hand.

He becomes

As the legislature has been the body through which the people have chiefly asserted their authority, we find that in all free

states law-making assemblies, whether primary or representative, have sought to extend their province and to subject the executive to themselves. They have done this in several ways. In the democracies of ancient Greece the assembly of all citizens not only passed statutes of general application, but made peace or declared war; ordered an expedition to start for Sphacteria, and put Cleon at the head of it; commanded the execution of prisoners or reprieved them; conducted, in fact, most of the public business of the city by a series of direct decrees, all of which were laws, i.e. declarations of its sovereign will. It was virtually the government. The chief executive officers of Athens, called the generals, had little authority except over the military operations in the field. Even the Roman Constitution, a far more highly developed and scientific, though also a complicated and cumbrous system, while it wisely left great discretion to the chief magistrates (requiring them, however, to consult the Senate), yet permitted the passing pro re nata of important laws, which were really executive acts, such as the law by which Pompey received an extraordinary command against Mithridates. The Romans did not draw, any more than the Greek republics, a distinction between general and special legislation.1

This method, in which the people directly govern as a legislature, reducing the executive magistrates to passive instruments, is inapplicable where the country is large, because the mass of citizens cannot come together as an assembly. It is almost equally inapplicable where the legislature, though a representative body, is very numerous. England, accordingly, and the nations which have imitated England,2 have taken a different

1 The distinction between general legislative acts, which we call laws proper or statutes, and special legislative acts, ordering a particular thing to be done, is marked in Greek by the words vóμos and pioua; and in some cities, as in Athens, a vóuos could be passed or changed only by a specially provided method. At Rome everything done by the people was of equal legal force and called lex (though the word privilegium is sometimes applied to special acts). The distinction is apt to be forgotten under a despotic monarch, who is at once the executive and the legislative authority. Nevertheless, even under an autocrat, there are some general rules which his individual volition dares not change, because the universal opinion of the people approves them. The book of Daniel even represents Darius as unable to revoke a general law he has once sanctioned, or to except a particular person from its operation.

2 But during and immediately after the great Civil War the Long Parliament acted as both a legislative and an executive authority, as did the Convention through part of the French Revolution. And Parliament of course still retains its power of giving what are practically executive orders, e.g. it could pass a statute directing an expedition to seize a particular Pacific island.