professional soldiers on the active list and by Civil War officers who had become members of Congress, notably by General Hawley. It was the latter who, as a member of the Senate Military Committee, reported, year after year, that it would be murderous to send our troops into battle with the old formation in the face of modern guns and projectiles, but the Spanish War came and went before the reform was adopted.

Although the President is commanderin-chief, he cannot promote an officer for conspicuous merit. Recent promotions of volunteers to generalships in the regular army have been criticized; but assuming that the officers benefited should have received substantial military reward for their services in Cuba and the Philippines, the President had it only in his power to make them either lieutenants or generals in the line, or to give them staff appointments. Congress had forbidden him, by law, to appoint to any intermediate grade. Captains, majors, and colonels in the line must reach their respective ranks by living.

This may seem a small matter, since, as it is well known, the President takes affairs into his own hands in a serious war, as Mr. Lincoln did in the War of Secession. He then acts precisely as if he were a real commander, so far as the regular establishments are concerned. With the volunteers a different procedure is followed. Here, not Congress, but congressmen make their appearance. Generals, colonels, captains, and lieutenants are appointed at the solicitation of important persons.

There are two reasons why the President feels himself compelled to yield to this sort of pressure. In the first place, the country may be in danger, and he is the one man upon whom rests the responsibility of its defense. He is therefore keenly alive to the necessity of maintaining his influence over that branch of the government which votes the supplies upon which he must depend for troops and for the money for them, and, what is more important still, he must, if possible, tactfully prevent this branch of the government from too much intermeddling if the war is to be conducted to a successful conclusion. In the second place, he must endeavor to keep the politicians in good temper, so that the party in favor of the war may carry the elections. It is true that in his appointment of civil

ians he endangers the country's cause and the lives of the men whom he turns over to the care of ignorance and inexperience, but we invariably trust to our lucky star; at least, notwithstanding this danger, the politicians successfully renew their efforts to secure commissions in the army with each new war, one cause of their hardihood, of their insistence not only on commissions, but on profitable contracts for their constituents, no doubt being the consciousness of their ability to bring the President to terms by the perfectly legal employment of their constitutional powers, although such employment be contradictory to the intention of the Constitution.

It is fair to add, however, that where their own personal or political fortunes are not concerned, they leave the President a free hand. He disobeys their rules of war; he suspends the writ of habeas corpus; he interferes with their longevity scheme of promotion. He tears off his fetters for the general welfare, and when the war is over, he holds out his hands that he may again be put in irons for the pleasure of his masters in Congress. In the end, at the crisis, he becomes a dictator, a commander-inchief of power. He realizes the theory of Mr. Lincoln, who asserted: "As commander-in-chief of the army and navy in time of war, I suppose I have a right to take any measure which may best subdue the enemy."

Until the war opens, however, he is without any of the discretion which is essential to effective generalship; he cannot even authorize his experts to drill their troops in the method which they deem the best, unless Congress agrees, and Congress seldom agrees with expert advice. After the war with Spain had begun, Congress refused to assent to Mr. McKinley's request for an increase of the regular army, compelling him to depend on volunteers.

Here is a proper power which the Constitution bestows upon the President, but which has been qualified and limited by the misuse of its own powers by Congress

powers which were granted to it for the purpose of preventing usurpation by the President, but which have been employed to further usurpation by the legislative branch of the government. The mere fact that, in time of necessity, the President is obliged to break through the restraints imposed upon him, either with or without

the express authority of Congress, in order that he may perform his constitutional functions effectively, shows how far congressional government has traveled beyond the generous boundaries within which it was placed by the Constitution. By the practical working of our system the President is made, in ordinary and peaceful times, the mere ghost of a commander-inchief, and so fully is this recognized that one President, who thought to take an excursion into the field of preparation for war, remarked to his cabinet, after a vain effort to induce Congress to appropriate money for artillery target practice:

"The only power, privilege, or function which can be exercised or enjoyed by the commander-in-chief of the United States in time of peace is the privilege of purchasing his roast beef on the hoof from the Commissary-General."

Let us hasten over the powers which the Constitution has granted to the President, those powers which, like the power already considered, are essentially executive, and, being so, cannot be properly administered unless a certain amount of discretion, or unless at least the choice of methods or instrumentalities, is left to him who is charged with the task. Military command can be effectively exercised only by a single mind; the United States army and navy are organized, or left unorganized, by a multitude of counselors.

The President's second power is that of granting" reprieves and pardons for offenses against the United States, except in cases of impeachment." In the exercise of this power, the President also acts under the limitations and restraints imposed upon him by the political influences which are strengthened by the constitutional grants to Congress of checks. In illustration of the working of this system in the case of an appeal to the President for the exercise of clemency, I shall state a case within my knowledge, concealing, for reasons that will be apparent, the names of all the persons concerned. An officer of the navy had been tried and convicted on a charge of perjury, and having been sentenced, was dismissed from the service. His trial had been fairly conducted by an exceptionally able court martial, and the sentence was deemed just by nearly, if not quite, all the service. No sooner had the trial ended than great pressure was brought to bear upon the Presi

dent, to the end that the offender might be pardoned and restored to his rank. The first President to whom the appeal was made examined the record carefully. The "influence in the officer's behalf was potent and wide-spread; it came from many sources; but the President withstood it. He declared that the officer had been proved guilty, and that the sentence was just. This conclusion was reached regretfully. Year after year the agitation for a pardon was renewed. President after President was appealed to. At last Congress took up the subject. The Navy Committee of both houses agreed in reporting a bill authorizing, almost directing, the President to restore the officer. The Navy Committee of the House is an influential body; it decides on the appropriations that shall be made for the service. Among other things, the building up of the new navy in accordance with the President's desires and plans depends upon the disposition toward the executive of both the House and Senate committees. The members of these committees, in this instance, were so strongly affected by the friends of the officer that, in the report accompanying the bill providing for his restoration, important and essential facts were omitted, so that the report itself seemed to those cognizant of the history of the case to have been composed with intent to deceive the two houses and the executive. The bill was passed. The Secretary of the Navy urged the President not to sign it, but the President, acting under pressure from his party's members of the two committees, did sign the bill. It became a law, and the officer went back into the service from which he had been expelled by his brother officers.

The third power bestowed upon the President is that of negotiating treaties, and the fourth is that of nominating officers to the Senate, and of appointing, without confirmation, such inferior officers as Congress may have authorized him to appoint. In my article on "The Overshadowing Senate" I tried to point out how the powers of ratification and confirmation have been so abused by senators that the President is now entirely dependent on their good will; he cannot name a person for an office, if the nomination requires confirmation, without the assent of some senator of his own party, or of the head of his party's organization when the duties of

the federal office in question are to be performed in a State which is not represented by a senator of the President's political party. In negotiating treaties the President is now forced to consult senators in advance. He may require the opinion in writing of any member of his cabinet; he receives the representatives of foreign countries, incidentally on occasion, thereby recognizing a questioned independence; he may convene Congress, and may adjourn it to such time as he may think proper "in case of disagreement between them [the two houses] with respect to the time of adjournment." He is also to "take care that the laws be faithfully executed." With respect to the recognition of the belligerency of a people engaged in a revolutionary movement, or of their independence, many congressmen have questioned the President's power. This is not a menacing contention, but it indicates the disposition of the legislative branch of the government to interfere and claim executive powers. While he is to take care that the laws be faithfully executed, another provision of the Constitution decrees that "no money shall be drawn from the treasury but in consequence of appropriations made by law." This is interpreted to mean that it is the duty of the lawgivers minutely to itemize their appropriations, and, in the acts furnishing supplies for the government, to direct the precise manner in which each dollar shall be expended by the executive, or to forbid him to expend any part of the sum appropriated for purposes not designated in the law. In appropriation acts, Congress organizes the army, or determines the scheme of promotion for the officers of the navy, or virtually forbids the employment of the troops as a posse comitatus or at the polls. It determines how much money the Secretary of State shall expend for his diplomatic correspondence and how many clerks may be employed in each department, and it virtually fixes the amount of the salary to be paid to each of them. If the services of an expert are needed by an executive officer, or a new wash-bowl is wanted in the White House, or a new harness is to be provided for the Treasury Department, Congress must be consulted. It provides, or neglects to provide, the money for these petty matters. Sometimes it is generous, always so when the occasion absolutely demands liberal

expenditures, but in small and annoying ways it is penurious, and its interference in details, its supervision of the clerical force, and its limitations upon executive discretion, make for administrative inefficiency. As a rule, in ordinary times, the executive is obliged to take care that the laws are faithfully executed as Congress desires them to be executed, just as he is usually compelled to appoint to office those whom senators select for him, and to negotiate treaties to which senators have previously but informally assented.

Having considered the various ways in which the Senate and House have bound the President by employing against him the constitutional checks, let us turn to the President himself. How has he kept his distance from the legislative branch of the government? He has a suspensive veto, and is charged with the duty to give to Congress, from time to time, "information of the state of the Union, and recommend to their consideration such measures as he shall judge necessary and expedient." The exercise of the legal power and the annual message bring the President into direct touch with Congress, make him, as it is often said, part of the legislative branch of the government.

It is evident from the spirit of the debates in the Constitutional Convention that the last result of their careful labors of which the framers could have dreamed was a President who would endeavor to force upon Congress a policy of legislation; and yet it is clear, in the evolution of our constitutional form of government, that the country has come to regard the President as the fountain of lawmaking. It has held more than one President responsible for the failures or for the acts of Congress, even of a hostile Congress. It insisted that to Mr. Cleveland, for example, was due the panic which followed the enactment of the silver-purchasing law known as the Sherman Act, although it was a measure of a previous administration, and notwithstanding the fact that the repeal of the law was effected by him. Mr. Cleveland is also charged with the Gorman-Aldrich Law, falsely called the Wilson Law, of 1894, because his party then controlled both houses of Congress. While the bill was actually the Wilson bill when it came from the House of Representatives, it was so distorted and changed in the Senate that

Mr. Cleveland permitted it to become a law without his signature. Yet, as I have said, the bill is called the Wilson Bill, and is pointed to by his political opponents as a consequence of Mr. Cleveland's administration. Mr. Cleveland was charged with the disastrous results of the silver agitation partly because of that blind passion which leads its victim to strike at the first head that comes in his way, and partly because, by the end of Mr. Cleveland's administration, the Democratic party had allied itself with the movement for the free coinage of silver. In a word, it was really the party that was attacked in this instance, but in the other instance, that of the tariff legislation of 1894, the President was regarded as the party leader, and it is as party leader that the chief executive is coming more and more to be instinctively regarded by the country.

Mr. McKinley always insisted that it is the duty of the President to refrain from interfering with the functions of the legislature. He tried to place upon Congress the responsibility for declaring war against Spain, but the people praised him or criticized him for that war, according as they favored or opposed it. Moreover, notwithstanding his oft-declared principle of noninterference, he could not refrain, for actual conditions were against his theory. Just as the country looked to Mr. Cleveland, and was not disappointed, to compel the repeal of the law commanding silver purchases, so Mr. McKinley was looked to by the protected interests to secure the passage of the Dingley Law, while, at a later time, he himself felt it to be his duty to endeavor to secure free trade for Porto Rico. It is from Mr. Roosevelt now that the opponents of trusts expect a stringent anti-trust law, and although he has ostensibly left the framing of the bill to Congress, it is generally believed that he has taken part in this task, just as he was busy in 1902 in an effort to secure legislation for the benefit of Cuba. Indeed, in respect of the trust legislation, Senator Hoar has complained of the President's activity.

It is evident that the attempt to separate the executive from the legislative department of the government has not succeeded. The first step toward the actual termination of the theoretical separation of the departments of government in England was taken in the Act of Succession, but

the completion of the movement was one of the most important consequences of our own revolution against the crown. Notwithstanding the attractiveness of Montesquieu's philosophy, and its influence upon the framers of our Constitution, the political instinct of the race favors a connection between the legislative and executive departments. There is also firmly implanted in us the feeling that some one should be held responsible for what the government does or for what it fails to accomplish. The constitution and development of Congress have, thus far at least, failed to bring forth a system under which any man or any party can be held thus responsible. On the contrary, irresponsibility has been the outgrowth of the working of our legislative institutions.

For lack of another responsible person, and because, since Washington's day, the President has almost invariably felt compelled to try to influence Congress, the country holds him responsible for legislative failures. This is not only contrary to the intent of the Constitution, but it is unjust and harmful. It is unjust, because the President has no actual power over Congress, as Congress has over him. It may be said that he has the veto power. This is true, but the only executive power which is really effective in bringing to terms an obstructive legislature is the power to dissolve. Sometimes the veto is effective, sometimes it is not. Jackson's veto prevented the rechartering of the United States Bank; Johnson's vetoes only whetted the appetite of Congress for pugnacious opposition. As the government is constituted, Mr. McKinley's theory of the relations that should exist between the two branches is the proper one; as the government is worked, the practice of the Presidents is natural.

Still, although the President will probably always endeavor to induce or to force Congress to adopt his policy, he can accomplish his end with the ordinary Congress only by bargaining, or by means of a sharp contest in which he will be victorious if he can arouse the interest of the country and secure its alliance. He may purchase support by a distribution of patronage, and it is herein that the present condition is harmful; or he may bring public clamor about the ears of congressmen, although in doing so he endangers the continuance

At exceptional times the President may be the leader of his party; Jackson was, and Roosevelt may be: but, as a rule, the President is not really a party leader, and the moment he is elected, that moment he is more than likely to find the party leaders in Congress censorious, critical, obstructive, and occasionally hostile. The effort to make the departments independent of one another has resulted in promoting mutual jealousies. Whatever may be the attitude of Congress toward him, however, the President feels compelled to urge legislation in furtherance of his policy. When he thinks that policy momentous, he trades and lectures. He distributes favors; he calls leaders to the White House; he pleads for himself, for his party, and for the country: and he is more likely to fail than to succeed unless the country is clearly with him; in that event Congress yields to the voters, not to the Chief Magistrate. But whether he succeeds or fails, the country holds him responsible. Notwithstanding the fact that he has no power whatever to compel Congress to take affirmative action, he is charged with its unpopular failures; notwithstanding his impotence to prevent the passage of a bill in favor of which are two thirds of each house, he is charged with its unpopular performance.

The President is denied the right to the free exercise of the powers which are essentially executive, and the power necessary to meet the unjust responsibility which the country places upon him has not been bestowed upon him. His influence in some directions is enormous; he commands the respect of the people; his office is one of great dignity. If he himself is dignified, he shares in the feeling which is manifested for his office; if he has courage and is right, he can command the support of the country against Congress, especially against the Senate, to such an extent that his policy will triumph. Of such courage and its consequences there is no better illustration than that afforded by Mr. Cleveland's determined effort to save the country from the consequences of the latest silver-purchase act. In times of national peril the President becomes a dictator, and may act contrary to the law without serious question; but if a time shall ever come when, in a crisis, the President finds himself with

and legally be prevented from taking measures adequate to the national defense.

It is true, also, that under the law and in ordinary times-that is, most of the time-the President cannot exercise his appropriate executive functions as he will, nor can he meet the expectations of the country. Congress usurps his powers, or limits them, and will not listen to him. Most of the time our government is almost wholly that of Congress. Reforms in details of administration or in matters of seeming importance that ought to be possible. in a day are made the subjects of annual discussions during the lives of several Congresses. Comparatively powerless as the fathers intended the President to be, he is less than the intention. Speaking in the Constitutional Convention on the subject of the proposal to make Congress and the President independent of each other, Madison expressed the opinion that " experience has proved a tendency in our governments to throw all power into the legislative vortex. The executives of the States," he continued, "are little more than ciphers, the legislatures omnipotent." Hamilton, writing in the "Federalist" on the same subject and somewhat betraying his fears for the future, said: "To what purpose separate the executive or the judiciary from the legislative, if both the executive and the judiciary are so constituted as to be at the absolute devotion of the legislative ? . . . It is one thing to be subordinate to the laws, and another to be dependent on the legislative body." The tendency described by the one remained, and the evil foreseen by the other has grown.

There was a time for the making of laws for the defense of human liberty against tyranny; there has come a time for the administration of law that the democracy may be as efficient for good government as it has been beneficent for the protection and advancement of the individual. There is little need for new laws; there is much need for the repeal of hampering and bad laws. The executive should be freed from the irons with which he was bound by the eighteenth century in behalf of rising manhood, and he should be also relieved from the impositions and usurpations which have developed from ancient principles diverted into modern prejudices. We are no longer dependent for our liberties upon the law