bench of England the same tendencies may be discerned. There are constitutional questions, and questions touching what may be called the policy of the law, which would be decided differently by one English judge or by another, not from any conscious wish to favour a party or a class, but because the views which a man holds as a citizen cannot fail to colour his judgment even on legal points.

The Fathers of the Constitution studied nothing more than to secure the complete independence of the judiciary. The President was not permitted to remove the judges, nor Congress to diminish their salaries. One thing only was either forgotten or deemed undesirable, because highly inconvenient, to determine, the number of judges in the Supreme court. Here was a weak point, a joint in the court's armour through which a weapon might some day penetrate. Congress having in 1801, pursuant to a power contained in the Constitution, established sixteen Circuit courts, President Adams, immediately before he quitted office, appointed members of his own party to the justiceships thus created. When President Jefferson came in, he refused to admit the validity of the appointments; and the newly elected Congress, which was in sympathy with him, abolished the Circuit courts themselves, since it could find no other means of ousting the new justices. This method of attack, whose constitutionality has been much doubted, cannot be used against the Supreme court, because that tribunal is directly created by the Constitution. But as the Constitution does not prescribe the number of justices, a statute may increase or diminish the number as Congress thinks fit. In 1866, when Congress was in fierce antagonism to President Johnson, and desired to prevent him from appointing any judges, it reduced the number, which was then ten, by a statute providing that no vacancy should be filled up till the number was reduced to seven. In 1869, when Johnson had been succeeded by Grant, the number was raised to nine, and presently the altered court allowed the question of the validity of the Legal Tender Act, just before determined, to be reopened. This method is plainly susceptible of further and possibly dangerous application. Suppose a Congress and President bent on doing something which the Supreme court deems contrary to the Constitution. They pass a statute. A case arises under it. The court on the hearing of the case unanimously declares the statute to be null, as being beyond

the powers of Congress. Congress forthwith passes and the President signs another statute more than doubling the number of justices. The President appoints to the new justiceships men who are pledged to hold the former statute constitutional. The Senate confirms his appointments. Another case raising the validity of the disputed statute is brought up to the court. The new justices outvote the old ones: the statute is held valid the security provided for the protection of the Constitution is gone like a morning mist.

What prevents such assaults on the fundamental law assaults which, however immoral in substance, would be perfectly legal in form? Not the mechanism of government, for all its checks have been evaded. Not the conscience of the legislature and the President, for heated combatants seldom shrink from justifying the means by the end. Nothing but the fear of the people, whose broad good sense and attachment to the great principles of the Constitution may generally be relied on to condemn such a perversion of its forms. Yet if excitement has risen high over the country, a majority of the people may acquiesce; and then it matters little whether what is really a revolution be accomplished by openly violating or by merely distorting the forms of law. To the people we come sooner or later it is upon their wisdom and self-restraint that the stability of the most cunningly devised scheme of government will in the last resort depend.

CHAPTER XXV

COMPARISON OF THE AMERICAN AND EUROPEAN SYSTEMS

THE relations to one another of the different branches of the government in the United States are so remarkable and so full of instruction for other countries, that it seems desirable, even at the risk of a little repetition, to show by a comparison with the Cabinet or parliamentary system of European countries how this complex American machinery actually works.

The English system on which have been modelled, of course with many variations, the systems of France, Belgium, Holland, Italy, Germany, Hungary (where, however, the English scheme has been compounded with an ancient and very interesting native-born constitution), Sweden, Norway, Denmark, Spain, and Portugal, as well as the constitutions of the great self-governing English colonies in North America, the Cape, and Australasia - this English system places at the head of the state a person in whose name all executive acts are done, and who is (except in France) irresponsible and irremovable.1 His acts are done by the advice and on the responsibility of ministers chosen nominally by him, but really by the representatives of the people usually, but not necessarily, from among the members of the legislature. The representatives are, therefore, through the agents whom they select, the true government of the country. When the representative assembly ceases to trust these agents, the latter (unless they dissolve the legislature) resign, and a new set are appointed. Thus the executive as well as the legislative power really belongs to the majority of the representative chamber, though in appointing agents, an expedient which its size makes needful, it is forced to leave in the hands of these agents a measure of discretion

1 In the German Empire the Ministers are comparatively independent of the Reichstag, i.e. it cannot displace them by a hostile vote as the British House of Commons practically can. In the British colonies the governor is irremovable by the colony, and irresponsible to its legislature, though responsible to and removable by the home government.

sufficient to make them appear distinct from it, and sometimes to tempt them to acts which their masters disapprove. As the legislature is thus in a sense executive, so the executive government, the council of ministers or cabinet, is in so far legislative that the initiation of measures rests very largely with them, and the carrying of measures through the Chamber demands their advocacy and counter pressure upon the majority of the representatives. They are not merely executive agents but also legislative leaders. One may say, indeed, that the legislative and executive functions are interwoven as closely under this system as under absolute monarchies, such as Imperial Rome or modern Russia; and the fact that taxation, while effected by means of legislation, is the indispensable engine of administration, shows how inseparable are these two apparently distinct powers.

Under this system the sovereignty of the legislature may be more or less complete. It is most complete in France; least complete in Germany and Prussia, where the power of the Emperor and King has remained great. But in all these countries not only are the legislature and executive in close touch with one another, but they settle their disputes without reference to the judiciary. The courts of law cannot be invoked by the executive against the legislature, because questions involving the validity of a legislative act do not come before it, since the legislature is either completely sovereign, as in England, or the judge of its own competence, as in Belgium. The judiciary, in other words, does not enter into the consideration of the political part of the machinery of government.

This system of so-called cabinet government seems to Europeans now, who observe it at work over a large part of the world, an obvious and simple system. We are apt to forget that it was never seen anywhere till the English developed it by slow degrees, and that it is a very delicate system, depending on habits, traditions, and understandings which are not easily set forth in words, much less transplanted to a new soil.

We are also prone to forget how very recent it is. People commonly date it from the reign of King William the Third; but it worked very irregularly till the Hanoverian kings came to the throne, and even then it at first worked by means of a monstrous system of bribery and place-mongering. In the days of George the Third the personal power of the Crown for a

while revived and corruption declined. The executive head of the state was, during the later decades of the century, a factor apart from his ministers. They were not then, as now, a mere committee of Parliament dependent upon Parliament, but rather a compromise between the king's will and the will of the parliamentary majority. They deemed and declared themselves to owe a duty to the king conflicting with, sometimes overriding, their duty to Parliament. Those phrases of abasement before the Crown which when now employed by prime ministers amuse us by their remoteness from the realities of the case, then expressed realities. In 1787, when the Constitutional Convention met at Philadelphia, the Cabinet system of government was in England still immature. It was so immature that its true nature had not been perceived.2 And although we now can see that the tendency was really towards the depression of the Crown and the exaltation of Parliament, men might well, when they compared the influence of George III. with that exercised by George I.,3 argue in the terms of

1 Corruption was possible, because the House of Commons did not look for support to the nation, its debates were scantily reported, it had little sense of responsibility. An active king was therefore able to assert himself against it, and to form a party in it, as well as outside of it, which regarded him as its head. This forced the Whigs to throw themselves upon the nation at large; the Tories did the same; corruption withered away; and as Parliament came more and more under the watchful eye of the people, and responsible to it, the influence of the king declined and vanished.

2 Gouverneur Morris, however, one of the acutest minds in the Convention of 1787, remarked there, "Our President will be the British (Prime) Minister. If Mr. Fox had carried his India Bill, he would have made the Minister the King in form almost as well as in substance." Elliot's Debates, i. 361. Roger Sherman, though he saw the importance of the Cabinet, looked on it as a mere engine in the Crown's hands. "The nation," he observed, in the Convention of 1787, "is in fact governed by the Cabinet council, who are the creatures of the Crown. The consent of Parliament is necessary to give sanction to their measures, and this they easily obtain by the influence of the Crown in appointing to all offices of honour and profit." It must be remembered that the House of Lords was far more powerful in 1787 than it now is, not only as a branch of the legislature, but in respect of the boroughs owned by the leading peers and therefore the dependence of the ministry on the House of Commons was a less prominent feature of the Constitution than it is now.

George III. had the advantage of being a national king, whereas his two predecessors had been Germans by language and habits as well as by blood. His popularity contributed to his influence in politics. Mrs. Papendiek's Diary contains some amusing illustrations of the exuberant demonstrations of "loyalty" which he excited. When he went to Weymouth for sea-bathing after his recovery from the first serious attack of lunacy, crowds gathered along the shore, and bands of music struck up "God save the King" when he ducked his head beneath the brine.