It may be said that there was yet another source whence the executive might draw strength to support itself against the legislature, viz. those functions which the Constitution, deeming them necessarily incident to an executive, has reserved to the President and excluded from the competence of Congress. But examination shows that there is scarcely one of these which the long arm of legislation cannot reach. The President is commander-in-chief of the army, but the numbers and organization of the army are fixed by statute. The President makes appointments, but the Senate has the right of rejecting them, and Congress may pass Acts specifying the qualifications of appointees, and reducing the salary of any official except the President himself and the judges. The real strength of the executive therefore, the rampart from behind which it can resist the aggressions of the legislature, is in ordinary times the veto power. In other words, it survives as an executive in virtue not of any properly executive function, but of the share in legislative functions which it has received; it holds its ground by force, not of its separation from the legislature, but of its participation in a right properly belonging to the legislature.2 An authority which depends on a veto capable of being overruled by a two-thirds majority may seem frail. But the experience of a century has shown that, owing to the almost equal strength of the two grcat parties, the Houses often differ, and there is rarely a two-thirds majority of the same colour in both. Hence the Executive has enjoyed some independence. He is strong for defence, if not for attack. Congress can, except within that narrow sphere which the Constitution has absolutely 1 In moments of public danger, as during the War of Secession, the executive of course springs up into immense power, partly because the command of the army is then of the first importance; partly because the legislature, feeling its unfitness for swift and secret decisions, gives free rein to the Executive, and practically puts its law-making powers at his disposal. 2 What is said here of the national executive and national legislature is a fortiori true of the State executive and State legislatures. The State governor has no power of independent action whatever, being checked at every step by State statutes, and his discretion superseded by the minute directions which those statutes contain. He has not even ministers, because the other chief officials of the State are chosen, not by himself, but by popular vote. He has very little patronage; and he has no foreign policy at all. The State legislature would therefore prevail against him in everything, were it not for his veto and for the fact that the legislature is now generally restrained (by the provisions of the State constitution) from passing laws on many topics. (See post, Chapters XXXVII XLV.) reserved to him, baffle the President, can interrogate, check, and worry his ministers. But it can neither drive him the way it wishes him to go, nor dismiss them for disobedience or incompetence. An individual man has some great advantages in combating an assembly. His counsels are less distracted. His secrets are better kept. He may sow discord among his antagonists. He can strike a more sudden blow. Julius Cæsar was more than a match for the Senate, Cromwell for the Long Parliament, even Louis Napoleon for the French Assembly of 1851. Hence, when the President happens to be a strong man, resolute, prudent, and popular, he may well hope to prevail against a body whom he may divide by the dexterous use of patronage, may weary out by inflexible patience, may overawe by winning the admiration of the masses, always disposed to rally round a striking personality. But in a struggle extending over a long course of years an assembly has advantages over a succession of officers, especially of elected officers. The Roman Senate encroached on the consuls, though it was neither a legislature nor representative; the Carthaginian Councils encroached on the Suffetes; the Venetian Councils encroached on the Doge. Men come and go, but an assembly goes on for ever; it is immortal, because while the members change, the policy, the passion for extending its authority, the tenacity in clinging to what has once been gained, remain persistent. A weak magistrate comes after a strong magistrate, and yields what his predecessor had fought for; but an assembly holds all it has ever won.1 Its pressure is steady and continuous; it is always, by a sort of natural process, expanding its own powers and devising new methods for fettering its rival. Thus Congress, though it is no more respected or loved by the people now than it was seventy years ago, though it has developed no higher capacity for promoting the best interests of the State, has succeeded in occupying nearly all the ground which the Constitution left debatable between the Presi 1 This is still more conspicuously the case when the members of the executive government do not sit in the assembly. When they do, and lead it, their influence tends to restrain legislative encroachments. Even the presence of persons who are likely to be soon called on to form the executive has its influence. In 1886 a resolution moved in the House of Commons declaring that the executive ought to make no treaty without the previous consent of Parliament was resisted by the leaders of the Opposition as well as by the Government, partly because the former, feeling they might at any time be called back to power, had personal as well as public grounds for not desiring to see the executive fettered. VOL. I Q dent and itself;1 and would, did it possess a better internal organization, be even more plainly than it now is the supreme power in the government. In their effort to establish a balance of power, the framers of the Constitution so far succeeded that neither power has subjected the other. But they underrated the inconveniences which arise from the disjunction of the two chief organs of government. They relieved the Administration from a duty which European ministers find exhausting and hard to reconcile with the proper performance of administrative work-the duty of giving attendance in the legislature and taking the lead in its debates. They secured continuity of executive policy for four years at least, instead of leaving government at the mercy of fluctuating majorities in an excitable assembly. But they so narrowed the sphere of the executive as to prevent it from leading the country, or even its own party in the country. They sought to make mem bers of Congress independent, but in doing so they deprived them of some of the means which European legislators enjoy of learning how to administer, of learning even how to legislate in administrative topics. They condemned them to be architects without science, critics without experience, consors without responsibility. 1 The modification (in 1869) and repeal (in 1886) of the Tenure of Office Act (see above, p. 59) are scarcely instances to the contrary, because that Act, even if constitutional, had proved difficult to work. CHAPTER XXII THE FEDERAL COURTS WHEN in 1788 the loosely confederated States of North America united themselves into a nation, national tribunals were felt to be a necessary part of the national government. Under the Confederation there had existed no means of enforcing the treaties made or orders issued by the Congress, because the courts of the several States owed no duty to that feeble body, and had little will to aid it. Now that a Federal legislature had been established, whose laws were to bind directly the individual citizen, a Federal judicature was evidently needed to interpret and apply these laws, and to compel obedience to them. The alternative would have been to entrust the enforcement of the laws to State courts. But State courts were not fitted to deal with matters of a quasi-international character, such as admiralty jurisdiction and rights arising under treaties. They supplied no means for deciding questions between different States. They could not be trusted to do complete justice between their own citizens and those of another State. Being under the control of their own State governments, they might be forced to disregard any Federal law which the State disapproved; or even if they admitted its authority, might fail in the zeal or the power to give due effect to it. And being authorities co-ordinate with and independent of one another, with no common court of appeal placed over them to correct their errors or harmonize their views, they would be likely to interpret the Federal Constitution and statutes in different senses, and make the law uncertain by the variety of their decisions. These reasons pointed imperatively to the establishment of a new tribunal or set of tribunals, altogether detached from the States, as part of the machinery of the new government. Side by side of the thirteen (now forty-two) different sets of State courts, whose jurisdiction under State laws and between their own citizens was left untouched, there arose a new and complex system of Federal courts. The Constitution drew the outlines of the system. Congress perfected it by statutes; and as the details rest upon these statutes, Congress retains the power of altering them. Few American institutions are better worth studying than this intricate judicial machinery: few deserve more admiration for the smoothness of their working: few have more contributed to the peace and well-being of the country. : The Federal courts fall into three classes :- The District courts. The Supreme court is directly created by Art. iii. § 1 of the Constitution, but with no provision as to the number of its judges. Originally there were six; at present there are nine, a chief justice, with a salary of $10,500 (£2100), and eight associate justices (salary $10,000). The justices are nominated by the President and confirmed by the Senate. They hold office during good behaviour, i.e. they are removable only by impeachment. They have thus a tenure even more secure than that of English judges, for the latter may be removed by the Crown on an address from both Houses of Parliament.1 Moreover, the English statutes secure the permanence only of the judges of the Supreme court of judicature, not also of judges of county or other local courts, while the provisions of the American Constitution are held to apply to the inferior as well as the superior Federal judges. The Fathers of the Constitution were extremely anxious to secure the independence of their judiciary, regarding it as a bulwark both for the people and for the States against aggressions of either Congress or the President. They affirmed the life tenure by an unanimous vote in the Convention of 1787, because they deemed the risk of the continuance in office of an incompetent judge a less evil than the subserviency of all judges. 2 1 12 and 13 William III., cap. 2.; cf. 1 George III., cap. 23. The occasional resistance of the parliament of Paris, whose members held office for life, to the French Crown may probably have confirmed the Convention of 1787 in its attachment to this English principle. 2 See Hamilton in Federalist, No. lxxviii. : "The standard of good behaviour for the continuance in office of the judicial magistracy is certainly one of the most valuable of the modern improvements in the practice of government. In a monarchy it is an excellent barrier to the despotism of the prince; in a republic it is a no less excellent barrier to the encroachments and oppressions of the legislative body." |