appropriation. In practice, however, the House has surrendered this power. A treaty is at no stage "submitted to or referred to the House of Representatives, which has no more right to be informed about it than ordinary citizens. The President and the Senate may, for example, cede or annex territories, and yet nothing of the fact will appear in the discussions of the House of Representatives unless the cession involves expenditure or receipt of money. Besides, I must add that even if the treaty contains clauses imposing a charge on the public revenue, it is the rule, since Washington's time, that the House of Representatives should not discuss the terms of the treaty adopted by the Senate, but accept it in silence as an accomplished fact, and simply vote the necessary funds."

The appointing power was in many respects even more important. It meant the right to select those who were to interpret and enforce the laws, and this really involved the power to mold the spirit and character of the government. That this was fully appreciated by those who framed the Constitution we saw in the preceding chapter.

The statement contained in the Constitution that all legislative authority is vested in Congress is far from accurate, not only for the reason above

1 Boutmy, Studies in Constitutional Law, p. 91 (Eng. Trans.).

See also Ford, The Rise and Growth of American Politics, p. 254.

indicated that a portion of it under the guise of treaty-making power is conferred on the President and Senate, and the further reason that the Supreme Court exercises legislative authority of great importance, but for the additional reason that the President, aside from his control over treaties, possesses legislative power co-extensive and co-equal with that of either house. He has been expressly given by the Constitution only a qualified veto, but it is so difficult for Congress to override it by the necessary two-thirds majority that it is in most cases as effective as an absolute negative.1 Attention has been called to the fact that a two-thirds majority is difficult to secure even under the most favorable circumstances; but here the situation is such as to place practically insurmountable obstacles in the way of its attain

ment.

As an illustration let us suppose that each state is solidly for or against the measure which the President has vetoed and that both Senators and Representatives accurately reflect the sentiment of their respective states. Then taking the population of the forty-five states in 1900 as the basis of our calculation, the smallest

1

1 Previous to Andrew Johnson's administration but six measures were passed over the President's veto. Up to 1889 the veto power of the President had been exercised four hundred and thirty-three times, and in but twenty-nine instances had it been overridden by the required two-thirds majority in both houses of Congress. Fifteen measures vetoed by Andrew Johnson were passed over his veto—more than in the case of all other Presidents combined. Mason, The Veto Power, p. 214.

popular majority which would ensure the required two-thirds vote in both houses would be obtained by taking enough of the smaller states to make the necessary majority in the House. But this would mean a popular majority of over 65 per cent. and an eight-ninths majority in the Senate. To obtain the necessary vote in both houses by taking the larger states would require a popular majority of over 93 per cent. and a nine-tenths majority in the House. This gives us some, but by no means an adequate, idea of the President's control over legislation. He may use in support of his veto all the other powers which the Constitution has placed in his hands; and when we consider the immense influence which he can bring to bear upon Congress, especially through his control over appointments, we can readily see the practical impossibility of enacting any measure which he opposes with all the powers at his command. Moreover, the President and Senate would, it was expected, belong to the same class, represent the same interests, and be equally faithful in guarding the rights of the well-to-do. They were to be, therefore, not so much a check on each other, as a double check on the democratic House; and as against the latter, it was the intention that the qualified negative of the President should, in all important matters concerning which the radical and conservative classes disagreed, be fully equivalent to an absolute veto. This follows from the

fact that the Senate would in such cases sympathize with the action of the President and refuse to co-operate with the House in overriding it.

It was believed by the framers of the Constitution that the veto power of the President would be seldom used. This was true until after the Civil War. Washington used the power only twice; John Adams, Jefferson, J. Q. Adams, Van Buren, Taylor, and Fillmore did not make use of it at all. During the first seventy-six years of our history under the Constitution the power was exercised only fifty-two times. Andrew Johnson was the first President to use it freely, vetoing as many acts as were vetoed by the first eight Presidents. The largest use of the veto power was by President Cleveland who, during his first term, exercised it three hundred and one times.1

In conferring the veto power on the President the members of the Convention were actuated by the desire to strengthen a conservative branch of the government rather than by any desire to copy the English Constitution, or the constitutions of the American states. As a matter of fact, the veto power of the Crown was then obsolete, Hamilton himself remarking in the Convention that it had not been used since the Revolution of 1688,2

1

Mason, The Veto Power, p. 214.

2 Elliot's Debates, Vol. V, p. 151. Hamilton's statement, which was made in support of a motion to give the President an absolute veto on acts of Congress, was not correct. William III vetoed no less than four acts of Parliament, and his successor used the veto power for the last time in 1707. Medley, English Constitutional History, p. 315.

while in all but two states the last vestige of it had been destroyed.1

The position of the President was still further strengthened by discarding the executive council which then existed in every state as a check upon the governor and which was a prominent feature of the English government of that time. In England this council, forming the Ministry or Cabinet, had not, it is true, definitely assumed the form which characterizes it now; but it had deprived the King of all power to act except through ministers who were responsible and could be impeached by Parliament. This, of course, had greatly weakened the executive, a fact which fully explains why the framers of the Constitution rejected it and went back to the earlier English king whose veto power was unimpaired for their model.

As their plan contemplated a strong independent executive who would not hesitate to use the far-reaching powers placed in his hands to defeat measures which he disapproved of, it was necessary to guarantee him against popular removal. In this respect again we see both English and American constitutional practice disregarded, since neither afforded the desired security of tenure. In the various states the governor was liable to be impeached by the lower branch of the legislature and expelled from office when convicted by the senate, which was usually the court 1 Supra, p. 19.