Cabinet, the overmastering force of the House of Commons, the intimate connection between legislation and administration, these which are to us now the main characteristics of the English Constitution were still far from fully developed. But in other points of fundamental importance the Americans appreciated and turned to excellent account its spirit and methods.

Further, they had the experience of their colonial and state governments, and especially, for this was freshest and most in point, the experience of the working of the state constitutions, framed at or since the date when the colonies threw off their English allegiance. This experience taught them how much might safely be included in such a document and how far room must be left under it for unpredictable emergencies and unavoidable development.

Lastly, they had one principle of the English common law whose importance deserves special mention, the principle that an act done by any official person or law-making body in excess of his or its legal competence is simply void. Here lay the key to the difficulties which the establishment of a variety of authorities not subordinate to one another, but each supreme in its own defined sphere, necessarily involved. The application of this principle made it possible not only to create a national government which should leave free scope for the working of the State governments, but also so to divide the powers of the national government among various persons and bodies as that none should absorb or overbear the others.

CHAPTER III

NATURE OF THE FEDERAL GOVERNMENT

The acceptance of the Constitution of 1789 made the American people a nation. It turned what had been a League of States into a Federal State, by giving it a national government with a direct authority over all citizens. But as this national government was not to supersede the governments of the States, the problem which the Constitution-makers had to solve was two-fold. They had to create a central government. They had also to determine the relations of this central government to the States as well as to the individual citizen.

It must, however, be remembered that the Constitution does not profess to be a complete scheme of government, creating organs for the discharge of all the functions and duties which a civilized community undertakes. It presupposes the state governments. It assumes their existence, their wide and constant activity. It is a scheme designed to provide for the discharge of such and so many functions of government as the States do not already possess and discharge. It is, therefore, so to speak, the complement and crown of the State constitu

tions.

The administrative, legislative, and judicial functions for which the Federal Constitution provides are those relating to matters which must be deemed common to the whole nation, either because all the parts of the nation are alike interested in them, or because it is only by the nation as a whole that they can be satisfactorily undertaken. The chief of these co or national matters are:

War and peace: treaties and foreign relation

Army and navy.

Federal courts of justice.

Commerce, foreign and domestic.

Currency.

Copyright and patents.

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The post-office and post roads.

Taxation for the foregoing purposes, and for the general support of the Government.

The protection of citizens against unjust or discriminating legislation by any State.

This list includes the subjects upon which the national legislature has the right to legislate, the national executive to enforce the Federal laws and generally to act in defense of national interests, the national judiciary to adjudicate. All other legislation and administration is left to the several States, without power of interference by the Federal Legislature or Federal Executive.

The framers of this government set before themselves four objects as essential to its excellence, viz.,

Its vigor and efficiency.

The independence of each of its departments (as being essential to the permanency of its form).

Its dependence on the people.

The security under it of the freedom of the individual. The first of these objects they sought by creating a strong executive; the second by separating the legislative, executive, and judicial powers from one another, and by the contrivance of various checks and balances; the third by making all authorities elective and elections frequent; the fourth both by the checks and balances aforesaid, so arranged as to restrain any one department from tyranny, and by placing certain rights of the citizen under the protection of the written Constitution

These men, practical politicians who knew how infinitely difficult a business government is, desired no bold experiments. They preferred, so far as circumstances permitted, to walk in the old paths, to follow methods which experience had tested. Accordingly they started from the system on which their own colonial governments, and afterward their State governments, had been conducted. They created an executive magistrate, the President, on the model of the State governor, and of the British Crown. They created a legislature of two Houses, Congress, on the model of the two Houses of their State legislatures, and of the British Parliament. And following the

precedent of the British judges, irremovable except by the Crown and Parliament combined, they created a judiciary appointed for life, and irremovable save by impeachment. In these great matters, however, as well as in many lesser matters, they copied not so much the Constitution of England as the Constitutions of their several States, in which, as was natural. many features of the English Constitution had been embodied, It has been truly said that nearly every provision of the Federal Constitution that has worked well is one borrowed from or suggested by some State constitution.

The British Parliament had always been, was then, and remains now, a sovereign and constituent assembly. It can make and unmake any and every law, change the form of government or the succession to the Crown, interfere with the course of justice, extinguish the most sacred private rights of the citizen. Both practically and legally, it is to-day the only and the sufficient depository of the authority of the nation; and is therefore, within the sphere of law, irresponsible and omnipotent. In the American system there exists no such body. Not merely Congress alone, but also Congress and the President conjoined, are subject to the Constitution, and cannot move a step outside the circle which the Constitution has drawn around them. If they do, they transgress the law and exceed their powers. Such acts as they may do in excess of their powers are void, and may be, indeed ought to be, treated as void by the meanest citizen. The only power which is ultimately sovereign, as the British Parliament is always and directly sovereign, is the people of the States, acting in the manner prescribed by the Constitution, and capable in that manner of passing any law whatever in the form of a constitutional amendment.

The subjection of all the ordinary authorities and organs of government to a supreme instrument expressing the will of the sovereign people, and capable of being altered by them only, has been usually deemed the most remarkable novelty of the American system. But it is merely an application to the wider sphere of the nation, of a plan approved by the experience of the several States. And the plan had, in these States, been

the outcome rather of a slow course of historical development than of conscious determination taken at any one point of their progress from petty settlements to powerful commonwealths.

CHAPTER IV

THE PRESIDENT

Every one who undertakes to describe the American system of government is obliged to follow the American division of it into the three departments-Executive, Legislative, Judicial.

The President is the creation of the Constitution of 1789. Under the Confederation there was only a presiding officer of Congress, but no head of the nation.

Why was it thought necessary to have a President at all? The fear of monarchy, of a strong government, of a centralized government, prevailed widely in 1787. The convention found it extremely hard to devise a satisfactory method of choosing the President. Yet it was settled very early in the debates of 1787 that the central executive authority must be vested in one person; and the opponents of the draft Constitution, while quarreling with his powers, did not accuse his existence.

The explanation is to be found not so much in the wish to reproduce the British Constitution as in the familiarity of the Americans, as citizens of the several States, with the office of State governor (in some States then called President) and in their disgust with the feebleness which Congress had shown. Opinion called for a man, because an assembly had been found to lack promptitude and vigor. And it may be conjectured that the alarms felt as to the danger from one man's predominance were largely allayed by the presence of George Washington. Even while the debates were proceeding, every one must have thought of him as the proper person to preside over the Union as he was then presiding over the convention. The creation of the office would seem justified by the existence of a person exactly fitted to fill it. Hamilton proposed that the head of the State should be appointed for good behavior, i.e.,