Constitution provided for the attainment of a peaceful solution had irretrievably failed.

Not wholly dissimilar was the course of events in the first years of the French Revolution. The Constitution framed by the National Assembly in 1791 so limited the functions and authority of each power in the state that no one person, no one body, was capable of leading either the nation or the legislature, or of framing and maintaining a constructive policy. Things were left to take their own course. The boat drifted to the rapids, and the rapids hurried her over the precipice.1

This want of unity is painfully felt in a crisis. When a sudden crisis comes upon a free state, the executive needs two things, a large command of money and powers in excess of those allowed at ordinary times. Under the European system the duty of meeting such a crisis is felt to devolve as much on the representative Chamber as on the ministers who are its agents. The Chamber is therefore at once appealed to for supplies, and for such legislation as the occasion demands. When these have been given, the ministry moves on with the weight of the people behind it; and as it is accustomed to work at all times with the Chamber, and the Chamber with it, the piston plays smoothly and quickly in the cylinder. In America the President has at ordinary times little to do with Congress, while Congress is unaccustomed to deal with executive questions. Its machinery, and especially the absence of ministerial leaders and consequent want of organization, unfit it for promptly confronting practical troubles. It is apt to be sparing of supplies, and of that confidence which doubles the value of supplies. Jealousies of the executive, which are proper in quiet times and natural towards those with whom Congress has little direct. intercourse, may now be perilous, yet how is Congress to trust persons not members of its own body nor directly amenable to its control? When dangers thicken the only device may be the Roman one of a temporary dictatorship. Something like this happened in the War of Secession, for the powers then conferred upon President Lincoln, or exercised without Congressional censure by him, were almost as much in excess of those enjoyed

1 This Constitution of 1791 was framed under the same idea of the need for separating the executive and legislative departments which prevailed at Philadelphia in 1787. For want of a legitimate supreme power, power at last fell into the hands of the Committee of Public Safety, and afterwards of the Directory.

under the ordinary law as the authority of a Roman dictator exceeded that of a Roman consul. Fortunately the habits of legality, which lie deep in the American as they did in the Roman people, reasserted themselves after the war was over, as they were wont to do at Rome in her earlier and better days. When the squall had passed the ship righted, and she has pursued her subsequent course on as even a keel as before.

The defects of the tools are the glory of the workman. The more completely self-acting is the machine, the smaller is the intelligence needed to work it; the more liable it is to derangement, so much greater must be the skill and care applied by one who tends it. The English Constitution, which we admire as a masterpiece of delicate equipoises and complicated mechanism, would anywhere but in England be full of difficulties and dangers. It stands and prospers in virtue of the traditions that still live among English statesmen and the reverence that has ruled English citizens. It works by a body of understandings which no writer can formulate, and of habits which centuries have been needed to instil. So the American people have a practical aptitude for politics, a clearness of vision and capacity for self-control never equalled by any other nation. In 1861 they brushed aside their darling legalities, allowed the executive to exert novel powers, passed lightly laws whose constitutionality remains doubtful, raised an enormous army, and contracted a prodigious debt. Romans could not have been more energetic in their sense of civic duty, nor more trustful to their magistrates. When the emergency had passed away the torrent which had overspread the plain fell back at once into its safe and well-worn channel. The reign of legality returned; and only four years after the power of the executive had reached its highest point in the hands of President Lincoln, it was reduced to its lowest point in those of President Johnson. Such a people can work any Constitution. The danger for them is that this reliance on their skill and their star may make them heedless of the faults of their political machinery, slow to devise improvements which are best applied in quiet times.

1 For Lincoln's argument respecting his use of extraordinary powers, see note to Chapter XXXIV. post.

CHAPTER XXVI

GENERAL OBSERVATIONS ON THE FRAME OF NATIONAL

GOVERNMENT

THE account which has been so far given of the working of the American Government has been necessarily an account rather of its mechanism than of its spirit. Its practical character, its temper and colour, so to speak, largely depend on the party system by which it is worked, and on what may be called the political habits of the people. These will be described in later chapters. Here, however, before quitting the study of the constitutional organs of government, it is well to sum up the criticisms we have been led to make, and to add a few remarks, for which no fitting place could be found in preceding chapters, on the general features of the national government.

I. No part of the Constitution cost its framers so much time and trouble as the method of choosing the President. They saw the evils of a popular vote. They saw also the objections to placing in the hands of Congress the election of a person whose chief duty it was to hold Congress in check. The plan of having him selected by judicious persons, especially chosen by the people for that purpose, seemed to meet both difficulties, and was therefore recommended with confidence. The presidential electors have, however, turned out mere cyphers, and the President is practically chosen by the people at large. The only importance which the elaborate machinery provided in the Constitution retains, is that it prevents a simple popular vote in which the majority of the nation should prevail, and makes the issue of the election turn on the voting in certain "pivotal" States.

II. The choice of the President, by what is now practically a simultaneous popular vote, not only involves once in every four years a tremendous expenditure of energy, time, and money, but induces a sort of crisis which, if it happens to coincide with any passion powerfully agitating the people, may be dangerous to the commonwealth.

III. There is a risk that the result of a presidential election may be doubtful or disputed on the ground of error, fraud, or violence. When such a case arises, the difficulty of finding an authority competent to deal with it, and likely to be trusted, is extreme. Moreover, the question may not be settled until the pre-existing executive has, by effluxion of time, ceased to have a right to the obedience of the citizens. The experience of the election of 1876 illustrates these dangers. Such a risk of interregna is incidental to all systems, monarchic or republican, which make the executive head elective, as witness the Romano-Germanic Empire of the Middle Ages, and the Papacy. But it is more serious where he is elected by the people than where, as in France or Switzerland, he is chosen by the Chambers.1

IV. The change of the higher executive officers, and of many of the lower executive officers also, which usually takes place once in four years, gives a jerk to the machinery, and causes a discontinuity of policy, unless, of course, the President has served only one term, and is re-elected. Moreover, there is generally a loss either of responsibility or of efficiency in the executive chief magistrate during the last part of his term. An outgoing President may possibly be a reckless President, because he has little to lose by misconduct, little to hope from good conduct. He may therefore abuse his patronage, or gratify his whims with impunity. But more often he is a weak President. He has little influence with Congress, because his patronage will soon come to an end, little hold on the people, who are already speculating on the policy of his successor. secretary of state may be unable to treat boldly with foreign powers, who perceive that he has a diminished influence in the Senate, and know that the next secretary may have different views.

His

The question whether the United States, which no doubt needed a President in 1789 to typify the then created political

1 In Switzerland the Federal Council of seven are elected by the two Chambers, and then elect one of their own number to be their President, and therewith also President of the Confederation (Constit. of 1874, art. 98). In some British colonies it has been provided that, in case of the absence or death or incapacity of the Governor, the Chief Justice shall act as Governor. In India the senior member of Council acts in similar cases for the Viceroy.

2 A British House of Commons in the last few months before its impending dissolution usually presents the same alternations of reckless electioneering and of a feebleness which recoils from any momentous decision.

unity of the nation, might not now dispense with one, has never been raised in America, where the people, though dissatisfied with the method of choice, value the office because it is independent of Congress and directly responsible to the people Americans condemn any plan under which, as once befell in France, the legislature can drive a President from power and itself proceed to choose a new one.1

V. The Vice-President's office is ill-conceived. His only ordinary function is to act as Chairman of the Senate, but as he does not appoint the Committees of that House, and has not even a vote (except a casting vote in it), this function is of little moment. If, however, the President dies, or becomes incapable of acting, or is removed from office, the Vice-President succeeds to the Presidency. What is the result? The place being in itself unimportant, the choice of a candidate for it excites little interest, and is chiefly used by the party managers as a means of conciliating a section of their party. It becomes what is called "a complimentary nomination." The man elected Vice-President is therefore rarely if ever, when selected, a man in the front rank. But when the President dies during his term of office, which has happened to five out of the twenty Presidents, this possibly second-class man steps into a great place for which he was never intended. Sometimes, as in the case of Mr. Arthur, he fills the place respectably. Sometimes, as in that of Andrew Johnson, he throws the country into confusion. He is aut nullus aut Cæsar.

VI. The defects in the structure and working of Congress, and in its relations to the executive, have been so fully dwelt on already that it is enough to refer summarily to them. They

are

The discontinuity of Congressional policy.

The want of adequate control over officials.

The want of opportunities for the executive to influence the legislature.

The want of any authority charged to secure the passing of such legislation as the country needs.

The frequency of disputes between three co-ordinate powers, the President, the Senate, and the House.

The maintenance of a continuous policy is a difficulty in all

1 The question of replacing the President by a ministerial council is very rarely discussed in America. It has been mooted in France.