and salutary measure.' "1 Such an opinion was fully warranted by English constitutional history, but it has been falsified by American experience. As a means of coercing the administration, control of supply failed so completely when the test was made that it is not likely that such an use of it will ever be made again. Probably the attempt would not have been made at all had it not been for the extraordinary circumstances of the presidential election of 1876 and the moral weakness of President Hayes' position. The House attempted to reduce federal control of elections by annexing conditions to appropriation bills; but the demands of the House were baffled by a series of vetoes, and in the end Congress had to pass the appropriation bills without the extraneous legislation to which the President objected. It is now a fact recognized by all parties that the idea of stopping the government by withholding supplies cannot even be considered seriously. As a practical expedient, such a check upon executive authority no longer exists. The federal election laws that were attacked in 1876 were repealed in 1894, but that was not until the people had put a President in office who was favorable to the repeal.

Although the power of making appointments to office has been, to a large extent, practically taken over by the Senate, under the exercise of the au

U

1 The Federalist, No. 58.

thority to confirm or reject nominations, yet in this respect also, the executive department possesses abundant power for the protection of its constitutional rights. The President has power "to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session." As he has absolute power of removal, he can select his own time for making vacancies, and the commissions which he shall issue will hold good to the last day of the expiring session, whereupon, in case of a rejection, another commission may be issued of like duration. Precedents for such action go back to the early days of the republic. Robert Smith acted as Secretary of the Navy during the whole period of Jefferson's second administration without his appointment to that office being confirmed by the Senate, or any known authority except the verbal request or permission of the President. The appointment of Taney to be the Secretary of the Treasury, in which office he carried out the financial policy of the administration, was never confirmed by the Senate. Jackson did not send in the nomination. until the last week of the session, when Taney had finished all that he entered the office to do. There are numerous precedents for the appointment and retention of minor officials in the face of senatorial refusal to confirm the nominations. There

1 Adams' History of the United States, Vol. III., p. 12.

were a number of such cases during President Cleveland's term of office.

The strongest and most unqualified statements of the powers of the presidential office come from experienced statesmen who have had the best opportunity of scrutinizing its operation. John Quincy Adams, at a time when presidential authority was less developed than now, said, "It has perhaps never been duly remarked that, under the constitution of the United States, the powers of the executive department, explicitly and emphatically concentrated in one person, are vastly more extensive and complicated than those of the legislature."1 Secretary Seward told a London Times correspondent, who was interrogating him as to the nature of our government, "We elect a king for four years, and give him absolute power within certain limits, which after all he can interpret for himself." 2 Quite as strong were the expressions used by ex-President Hayes to a publicist who applied for information on the subject. "Practically the President holds the nation in his hand.” 3 Hare, the leading legal authority on this subject, sums up the case as follows:

"A chief magistrate who wields the whole military and no inconsiderable share of the civil power of the state, who can incline the scale to war and

1 Discourse on the Jubilee of the Constitution.

2 Jennings' Republican Government in the United States, p. 36. 8 Stevens' Sources of the Constitution, pp. 167–170.

forbid the return of peace, whose veto will stay the force of legislation, who is the source of the enormous patronage which is the main lever in the politics of the United States, exercises functions which are more truly regal than those of an English monarch." 1

It should be carefully noted, however, that this power of the presidential office does not proceed from its strength as an embodiment of royal prerogative as conceived by the framers of the constitution. Their expectation was that in the ordinary working of the machinery of election they had devised, there would be numbers of candidates in various states - "favorite sons," to use the modern phrase. Therefore the electoral college of each state was to vote for two persons, one of whom should not be an inhabitant of that state, so that, at least in one instance, the vote of each state would be likely to "fall on characters eminent and generally known."2 The Federalist speaks of this scheme with a complacency rare in that sombre treatise; but it was a complete failure. It never worked according to the design, except in the election of Washington, when the work of the electoral college was really done for it in advance, and it had simply to register an unanimous con

sent.

The greatness of the presidency is the work

1 American Constitutional Law, p. 173.
2 Madison's Journal, September 5.

of the people, breaking through the constitutional form.

The truth is that in the presidential office, as it has been constituted since Jackson's time, American democracy has revived the oldest political institution of the race, the elective kingship. It is all there the precognition of the notables and the tumultuous choice of the freemen, only conformed to modern conditions. That the people have been able to accomplish this with such defective apparatus, and have been able to make good a principle which no other people have been able to reconcile with the safety of the state, indicates the highest degree of constitutional morality yet attained by any race.