Chapter VI · (continued 2)

Influence of Montesquieu and Blackstone.

Now in the earlier part of the work of the Federal Convention, in dealing with the legislative department, the delegates were on firm ground, because they were dealing with things of which they knew something by experience; but in all this careful separation of the executive power from the legislative they went wide of the mark, because they were following a theory which did not truly describe things as they really existed. And that was because the English Constitution was, and still is, covered up with a thick husk of legal fictions which long ago ceased to have any vitality. Blackstone, the great authority of the eighteenth century, set forth this theory of the division of power between King, Lords, and Commons with clearness and force, and nobody then understood English history minutely or thoroughly enough to see its fallaciousness. Montesquieu also, the ablest and most elegant political writer of the age, with whose works most of the statesmen in the Federal Convention were familiar, gave a similar description of the English Constitution, and generalized from it as the ideal constitution for a free people. But Montesquieu and Blackstone, in their treatment of this point, had their eyes upon the legal fictions, and were blind to the real machinery which was working under them. They gave elegant expression to what the late Mr. Bagehot called the "literary theory" of the English Constitution. But the real thing differed essentially from the "literary theory" even in their day. In our own time the divergence has become so conspicuous that it would not now be possible for well-informed writers to make the mistake of Montesquieu and Blackstone. In our time it has come to be perfectly obvious that so far from the English Constitution separating the executive power from the legislative, this is precisely what it does not do. In Great Britain the supreme power is all lodged in a single body, the House of Commons. The sovereign has come to be purely a legal fiction, and the House of Lords maintains itself only by submitting to the Commons. The House of Commons is absolutely supreme, and, as we shall presently see, it really both appoints and dismisses the executive. The English executive, or chief magistrate, is ordinarily the first lord of the treasury, and is commonly styled the prime minister. He is chairman of the most important committee of the House of Commons, and his cabinet consists of the chairmen of other committees.

What our government would be if it were really like that of Great Britain.

To make this perfectly clear, let us see what our machinery of government would be, if it were really like the English. The presence or absence of the crowned head makes no essential difference; it is only a kind of ornamental cupola. Suppose for a moment the presidency abolished, or reduced to the political nullity of the crown in England; and postpone for a moment the consideration of the Senate. Suppose that in our House of Representatives the committee of ways and means had two chairmen,—an upper chairman who looks after all sorts of business, and a lower chairman who attends especially to the finances. This upper chairman, we will say, corresponds to the first lord of the treasury, while the lower one corresponds to the chancellor of the exchequer. Sometimes, when the upper chairman is a great financier, and capable of enormous labour, he will fill both places at once, as Mr. Gladstone was lately first lord of the treasury and chancellor of the exchequer. The chairmen of the other committees on foreign, military, and naval affairs will answer to the English secretaries of state for foreign affairs and for war, the first lord of the admiralty, and so on. This group of chairmen, headed by the upper chairman of the ways and means, will then answer to the English cabinet, with its prime minister. To complete the parallel, let us suppose that, after a new House of Representatives is elected, it chooses this prime minister, and he appoints the other chairmen who are to make up his cabinet. Suppose, too, that he initiates all legislation, and executes all laws, and stays in office three weeks or thirty years, or as long as he can get a majority of the house to vote for his measures. If he loses his majority, he can either resign or dissolve the house, and order a new election, thus appealing directly to the people. If the new house gives him a majority, he stays in office; if it shows a majority against him, he steps down into the house, and becomes, perhaps, the leader of the opposition.

Now if this were the form of our government, it would correspond in all essential features to that of England. The likeness is liable to be obscured by the fact that in England it is the queen who is supposed to appoint the prime minister; but that is simply a part of the antiquated "literary theory" of the English Constitution. In reality the queen only acts as mistress of the ceremonies. Whatever she may wish, the prime minister must be the man who can command the best working majority in the house. This is not only tested by the first vote that is taken, but it is almost invariably known beforehand so well that if the queen offers the place to the wrong man he refuses to take it. Should he be so foolish as to take it, he is sure to be overthrown at the first test vote, and then the right man comes in. Thus in 1880 the queen's manifest preference for Lord Granville or Lord Hartington made no sort of difference. Mr. Gladstone was as much chosen by the House of Commons as if the members had sat in their seats and balloted for him. If the crown were to be abolished to-morrow, and the house were henceforth, on the resignation of a prime minister, to elect a new one to serve as long as he could command a majority, it would not be doing essentially otherwise than it does now. The house then dismisses its minister when it rejects one of his important measures. But while thus appointed and dismissed by the house, he is in no wise its slave; for by the power of dissolution he has the right to appeal to the country, and let the general election decide the issue. The obvious advantages of this system are that it makes anything like a deadlock between the legislature and the executive impossible; and it insures a concentration of responsibility. The prime minister's bills cannot be disregarded, like the president's messages; and thus, too, the house is kept in hand, and cannot degenerate into a debating club.[9]

In the British government, the executive department is not separated from the legislative.

A system so delicate and subtle, yet so strong and efficient, as this could no more have been invented by the wisest of statesmen than a chemist could make albumen by taking its elements and mixing them together. In its practical working it is a much simpler system than ours, and still its principal features are not such as would be likely to occur to men who had not had some actual experience of them. It is the peculiar outgrowth of English history. As we can now see, its chief characteristic is its not separating the executive power from the legislative. As a member of Parliament, the prime minister introduces the legislation which he is himself expected to carry into effect. Nor does the English system even keep the judiciary entirely separate, for the lord chancellor not only presides over the House of Lords, but sits in the cabinet as the prime minister's legal adviser. It is somewhat as if the chief justice of the United States were ex officio president of the Senate and attorney-general; though here the resemblance is somewhat superficial. Our Senate, although it does not represent landed aristocracy or the church, but the federal character of our government, has still a superficial resemblance to the House of Lords. It passes on all bills that come up from the lower house, and can originate bills on most matters, but not for raising revenue. Its function as a high court of impeachment, with the chief justice for its presiding officer, was directly copied from the House of Lords. But here the resemblance ends. The House of Lords has no such veto upon the House of Commons as our Senate has upon the House of Representatives. Between our upper and lower houses a serious deadlock is possible; but the House of Lords can only reject a bill until it sees that the House of Commons is determined to have it carried. It can only enter a protest. If it is obstinate and tries to do more, the House of Commons, through its prime minister, can create enough new peers to change the vote,—a power so formidable in its effects upon the social position of the peerage that it does not need to be used. The knowledge that it exists is enough to bring the House of Lords to terms.

Circumstances which obscured the true aspect of the case a century ago.

These features of the English Constitution are so prominent since the reform of Parliament in 1832 as to be generally recognized. They have been gradually becoming its essential features ever since the Revolution of 1688. Before that time the crown had really been the executive, and there had really been a separation between the executive and legislative branches of the government, which on several occasions, and notably in the middle of the seventeenth century, had led to armed strife. What the Revolution of 1688 really decided was that henceforth in England the executive was to be the mighty arm of the legislature, and not a separate and rival power. It ended whatever of reality there was in the old system of King, Lords, and Commons, and by the time of Sir Robert Walpole the system of cabinet government had become fairly established; but men still continued to use the phrases and formulas bequeathed from former ages, so that the meaning of the changes going on under their very eyes was obscured. There was also a great historical incident, after Walpole's time, which served further to obscure the meaning of these changes, especially to Americans. From 1760 to 1784, by means of the rotten borough system of elections and the peculiar attitude of political parties, the king contrived to make his will felt in the House of Commons to such an extent that it became possible to speak of the personal government of George III. The work of the Revolution of 1688 was not really completed till the election of 1784 which made Pitt the ruler of England, and its fruits cannot be said to have been fully secured till 1832. Now as our Revolutionary War was brought on by the attempts of George III. to establish his personal government, and as it was actually he rather than Lord North who ruled England during that war, it was not strange that Americans, even of the highest education, should have failed to discover the transformation which the past century had wrought in the framework of the English government. Nay, more, during this century the king had seemed even more of a real institution to the Americans than to the British. He had seemed to them the only link which bound the different parts of the empire together. Throughout the struggles which culminated in the War of Independence, it had been the favourite American theory that while the colonial assemblies and the British Parliament were sovereign each in its own sphere, all alike owed allegiance to the king as visible head of the empire. To people who had been in the habit of setting forth and defending such a theory, it was impossible that the crown should seem so much a legal fiction as it had really come to be in England. It is very instructive to note that while the members of the Federal Convention thoroughly understood the antiquated theory of the English Constitution as set forth by Blackstone, they drew very few illustrations from the modern working of Parliament, with which they had not had sufficient opportunities of becoming familiar. In particular they seemed quite unconscious of the vast significance of a dissolution of Parliament, although a dissolution had occurred only three years before under such circumstances as to work a revolution in British politics without a breath of disturbance. The only sort of dissolution with which they were familiar was that in which Dunmore or Bernard used to send the colonial assemblies home about their business whenever they grew too refractory. Had the significance of a dissolution, in the British sense, been understood by the convention, the pregnant suggestion of Roger Sherman, above mentioned, could not have failed to give a different turn to the whole series of debates on the executive branch of the government. Had our Constitution been framed a few years later, this point would have had a better chance of being understood. As it was, in trying to modify the English system so as to adapt it to our own uses, it was the archaic monarchical feature, and not the modern ministerial feature, upon which we seized. The president, in our system, irremovable by the national legislature, does not answer to the modern prime minister, but to the old-fashioned king, with powers for mischief curtailed by election for short terms.

The American cabinet is analogous not to the British cabinet, but to the privy council.

The close parallelism between the office of president and that of king in the minds of the framers of the Constitution was instructively shown in the debates on the advisableness of restraining the president's action by a privy council. Gerry and Sherman urged that there was need of such a council, in order to keep watch over the president. It was suggested that the privy council should consist of "the president of the Senate, the speaker of the House of Representatives, the chief justice of the supreme court, and the principal officer in each of five departments as they shall from time to time be established; their duty shall be to advise him in matters which he shall lay before them, but their advice shall not conclude him, or affect his responsibility." The plan for such a council found favour with Franklin, Madison, Wilson, Dickinson, and Mason, but did not satisfy the convention. When it was voted down Mason used strong language. "In rejecting a council to the president," said he, "we are about to try an experiment on which the most despotic government has never ventured; the Grand Seignior himself has his Divan." It was this failure to provide a council which led the convention to give to the Senate a share in some of the executive functions of the president, such as the making of treaties, the appointment of ambassadors, consuls, judges of the supreme court, and other officers of the United States whose appointment was not otherwise provided for. As it was objected to the office of vice-president that he seemed to have nothing provided for him to do, he was disposed of by making him president of the Senate. No cabinet was created by the Constitution, but since then the heads of various executive departments, appointed by the president, have come to constitute what is called his cabinet. Since, however, the members of it do not belong to Congress, and can neither initiate nor guide legislation, they really constitute a privy council rather than a cabinet in the modern sense, thus furnishing another illustration of the analogy between the president and the archaic sovereign.

The federal judiciary.

Concerning the structure of the federal judiciary little need be said here. It was framed with very little disagreement among the delegates. The work was chiefly done in committee by Ellsworth, Wilson, Randolph, and Rutledge, and the result did not differ essentially from the scheme laid down in the Virginia plan. It was indeed the indispensable completion of the work which was begun by the creation of a national House of Representatives. To make a federal government immediately operative upon individual citizens, it must of course be armed with federal courts to try and federal officers to execute judgment in all cases in which individual citizens were amenable to the national law. But for this system of United States courts extended throughout the states and supreme within its own sphere, the federal constitution could never have been put into practical working order. In another respect the federal judiciary was the most remarkable and original of all the creations of that wonderful convention. It was charged with the duty of interpreting, in accordance with the general principles of common law, the Federal Constitution itself. This is the most noble as it is the most distinctive feature in the government of the United States. It constitutes a difference between the American and British systems more fundamental than the separation of the executive from the legislative department. In Great Britain the unwritten constitution is administered by the omnipotent House of Commons; whatever statute is enacted by Parliament must stand until some future Parliament may see fit to repeal it. But an act passed by both houses of Congress, and signed by the president, may still be set aside as unconstitutional by the supreme court of the United States in its judgments upon individual cases brought before it. It was thus that the practical working of our Federal Constitution during the first thirty years of the nineteenth century was swayed to so great an extent by the profound and luminous decisions of Chief Justice Marshall, that he must be assigned a foremost place among the founders of our Federal Union. This intrusting to the judiciary the whole interpretation of the fundamental instrument of government is the most peculiarly American feature of the work done by the convention, and to the stability of such a federation as ours, covering as it does the greater part of a huge continent, it was absolutely indispensable.

Thus, at length, was realized the sublime conception of a nation in which every citizen lives under two complete and well-rounded systems of laws,—the state law and the federal law,—each with its legislature, its executive, and its judiciary moving one within the other, noiselessly and without friction. It was one of the longest reaches of constructive statesmanship ever known in the world. There never was anything quite like it before, and in Europe it needs much explanation to-day even for educated statesmen who have never seen its workings. Yet to Americans it has become so much a matter of course that they, too, sometimes need to be told how much it signifies. In 1787 it was the substitution of law for violence between states that were partly sovereign. In some future still grander convention we trust the same thing will be done between states that have been wholly sovereign, whereby peace may gain and violence be diminished over other lands than this which has set the example.

Great as was the work which the Federal Convention had now accomplished, none of the members supposed it to be complete. After some discussion, it was decided that Congress might at any time, by a two thirds vote in both houses, propose amendments to the constitution, or on the application of the legislatures of two thirds of the states might call a convention for proposing amendments; and such amendments should become part of the constitution as soon as ratified by three fourths of the states, either through their legislatures or through special conventions summoned for the purpose. The design of this elaborate arrangement was to guard against hasty or ill-considered changes in the fundamental instrument of government; and its effectiveness has been such that an amendment has come to be impossible save as the result of intense conviction on the part of a vast majority of the whole American people.

Finally it was decided that the Federal Constitution, as now completed, should be presented to the Continental Congress, and then referred to special conventions in all the states for ratification; and that when nine states, or two thirds of the whole number, should have ratified, it should at once go into operation as between such ratifying states.

Signing the Constitution.

When the great document was at last drafted by Gouverneur Morris, and was all ready for the signatures, the aged Franklin produced a paper, which was read for him, as his voice was weak. Some parts of this Constitution, he said, he did not approve, but he was astonished to find it so nearly perfect. Whatever opinion he had of its errors he would sacrifice to the public good, and he hoped that every member of the convention who still had objections would on this occasion doubt a little of his own infallibility, and for the sake of unanimity put his name to this instrument. Hamilton added his plea. A few members, he said, by refusing to sign, might do infinite mischief. No man's ideas could be more remote from the plan than his were known to be; but was it possible for a true patriot to deliberate between anarchy and convulsion, on the one side, and the chance of good to be expected from this plan, on the other? From these appeals, as well as from Washington's solemn warning at the outset, we see how distinctly it was realized that the country was on the verge of civil war. Most of the members felt so, but to some the new government seemed far too strong, and there were three who dreaded despotism even more than anarchy. Mason, Randolph, and Gerry refused to sign, though Randolph sought to qualify his refusal by explaining that he could not yet make up his mind whether to oppose or defend the Constitution, when it should be laid before the people of Virginia. He wished to reserve to himself full liberty of action in the matter. That Mason and Gerry, valuable as their services had been in the making of the Constitution, would now go home and vigorously oppose it, there was no doubt. Of the delegates who were present on the last day of the convention, all but these three signed the Constitution. In the signatures the twelve states which had taken part in the work were all represented, Hamilton signing alone for New York.

Thus after four months of anxious toil, through the whole of a scorching Philadelphia summer, after earnest but sometimes bitter discussion, in which more than once the meeting had seemed on the point of breaking up, a colossal work had at last been accomplished, the results of which were most powerfully to affect the whole future career of the human race so long as it shall dwell upon the earth. In spite of the high-wrought intensity of feeling which had been now and then displayed, grave decorum had ruled the proceedings; and now, though few were really satisfied, the approach to unanimity was remarkable. When all was over, it is said that many of the members seemed awe-struck. Washington sat with head bowed in solemn meditation. The scene was ended by a characteristic bit of homely pleasantry from Franklin. Thirty-three years ago, in the days of George II., before the first mutterings of the Revolution had been heard, and when the French dominion in America was still untouched, before the banishment of the Acadians or the rout of Braddock, while Washington was still surveying lands in the wilderness, while Madison was playing in the nursery and Hamilton was not yet born, Franklin had endeavoured to bring together the thirteen colonies in a federal union. Of the famous Albany plan of 1754, the first complete outline of a federal constitution for America that ever was made, he was the principal if not the sole author. When he signed his name to the Declaration of Independence in this very room, his years had rounded the full period of threescore and ten. Eleven years more had passed, and he had been spared to see the noble aim of his life accomplished. There was still, no doubt, a chance of failure, but hope now reigned in the old man's breast. On the back of the president's quaint black armchair there was emblazoned a half-sun, brilliant with its gilded rays. As the meeting was breaking up and Washington arose, Franklin pointed to the chair, and made it the text for prophecy. "As I have been sitting here all these weeks," said he, "I have often wondered whether yonder sun is rising or setting. But now I know that it is a rising sun!"