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129

No. VII.

ITS SUPPOSED CHECKS AND BALANCES.

In a former essay I devoted an elaborate discussion to the comparison of the royal and unroyal form of Parliamentary Government. I showed that at the formation of a ministry, and during the continuance of a ministry, a really sagacious monarch might be of rare use. I ascertained that it was a mistake to fancy that at such times a constitutional monarch had no rdle and no duties. But I proved likewise that the temper, the disposition, and the faculties then needful to fit a constitutional monarch for usefulness were very rare, at least as rare as the faculties of a great absolute monarch, and that a common man in that place is apt to do at least as much harm as good—perhaps more harm. But in that essay I could not discuss fully the functions of a king at the conclusion of an administration, for then the most peculiar parts of the English government—the power to dissolve the House of Commons, and the power to create new peers—come into play, and until the nature of the House of Lords and the nature of the House of Commons had been explained, I had no premises for an argument as to the characteristic action of the king upon them. We have since considered the functions of the two houses, and also the effects of changes of ministry on our administrative system; we are now, therefore, in a position to discuss the functions of a king at the end of an administration.

I may seem over formal in this matter, but I am very formal on purpose. It appears to me that the functions of our executive in dissolving the Commons and augmenting the Peers are among the most important, and the least appreciated, parts of our whole government, and that hundreds of errors have been made in copying the English constitution from not comprehending them.

Hobbes told us long ago, and everybody now understands that there must be a supreme authority, a conclusive power, in every state on every point somewhere. The idea of government involves it—when that idea is properly understood. But there are two classes of governments. In one the supreme determining power is upon all points the same; in the other, that ultimate power is different upon different points—now resides in one part of the constitution, and now in another. The Americans thought that they were imitating the English in making their constitution upon the last principle—in having one ultimate authority for one sort of matter, and another for another sort. But in truth, the English constitution is the type of the opposite species; it has only one authority for all sorts of matters. To gain a living conception of the difference let us see what the Americans did.

First, they altogether retained what, in part, they could not help, the sovereignty of the separate states. A fundamental article of the Federal constitution says that the powers not "delegated" to the central government are "reserved to the states respectively." And the whole recent history of the Union—perhaps all its history—has been more determined by that enactment than by any other single cause. The sovereignty of the principal matters of state has rested not with the highest government, but with the subordinate government. The Federal government could not touch slavery—the " domestic institution " which divided the Union into two halves, unlike one another in morals, politics, and social condition, and at last set them to fight. This determining political fact was not in the jurisdiction of the highest government in the country, where you might expect its highest wisdom, nor in the central government, where you might look for impartiality, but in local governments, where petty interests were sure to be considered, and where only inferior abilities were likely to be employed. The capital fact was reserved for the minor jurisdictions. Again there has been only one matter comparable to slavery in the United States, and that has been vitally affected by the State governments also. Their ultra-democracy is not a result of Federal legislation, but of State legislation. The Federal constitution deputed one of the main items of its structure to the subordinate governments. One of its clauses provides that the suffrages for the Federal House of Eepresentative shall be, in each State, the same as for the most numerous branch of the legislature of that State; and as each State fixes the suffrage for its own legislatures, the States altogether fix the suffrage for the Federal Lower Chamber. By another clause of the Federal constitution the States fix the electoral qualification for voting at a Presidential election. The primary element in a free government—the determination how many people shall have a share in it—in America depends not on the government but on certain subordinate local, and sometimes, as in the South now, hostile bodies.

Doubtless the framers of the constitution had not much choice in the matter. The wisest of them were anxious to get as much power for the central government, and to leave as little to the local governments as they could. But a cry was got up that this wisdom would create a tyranny and impair freedom, and with that help, local jealousy triumphed easily. All Federal government is, in truth, a case in which what I have called the dignified elements of government do not coincide with the serviceable elements. At the beginning of every league the separate States are the old governments which attract and keep the love and loyalty of the people; the Federal government is a useful thing, but new and unattractive. It must concede much to the State governments, for it is indebted to them for motive power: they are the governments which the people voluntarily obey. When the State governments are not thus loved, they vanish as the little Italian and the little German potentates vanished; no federation is needed; a single central government rules all.

But the division of the sovereign authority in the American constitution is far more complex than this. The part of that authority left to the Federal government is itself divided and subdivided. The greatest instance is the most obvious. The Congress rules the law, but the President rules the administration. One means of unity the constitution does give; the President can veto laws he does not like. But when two-thirds of both houses are unanimous (as has lately happened), they can overrule the President and make the laws without him; so here there are three separate repositories of the legislative power in different cases: first, Congress and the President when they agree; next, the President when he effectually exerts his power; then the requisite two-thirds of Congress when they overrule the President. And the President need not be over-active in carrying out a law he does not approve of. He may indeed be impeached for gross neglect; but between criminal non-feasance and zealous activity there are infinite degrees. Mr. Johnson does not carry out the Freedman's Bureau Bill as Mr. Lincoln, who approved of it, would have carried it out. The American constitution has a special contrivance for varying' the supreme legislative authority in different cases, and dividing the administrative authority from it in all cases.

But the administrative power itself is not left thus simple and undivided. One most important part of administration is international policy, and the supreme authority here is not in the President, still less in the House of Eepresentatives, but in the Senate. The President can only make treaties, "provided two-thirds of Senators present" concur. The sovereignty therefore for the greatest international questions is in a different

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