It may be said that there was yet another source whence the executive might draw strength to support itself against the legislature, viz., those functions which the Constitution, deeming them necessarily incident to an executive, has reserved to the president and excluded from the competence of Congress. But examination shows that there is scarcely one of these which the long arm of legislation cannot reach. The president is commander in chief of the army, but the numbers and organization of the army are fixed by statute. The president makes appointments, but the Senate has the right of rejecting them, and Congress may pass acts specifying the qualifications of appointees, and reducing the salary of any official except the president himself and the judges. The real strength of the executive therefore, the rampart from behind which it can resist the aggressions of the legislature, is in ordinary times the veto power.6 In other words, it survives as an executive in virtue not of any properly executive function, but of the share in legislative functions which it has received; it holds its ground by force, not of its separation from the legislature, but of its participation in a right properly belonging to the legislature.7
An authority which depends on a veto capable of being overruled by a two-thirds majority may seem frail. But the experience of a century has shown that, owing to the almost equal strength of the two great parties, the houses often differ, and there is rarely a two-thirds majority of the same colour in both. Hence the executive has enjoyed some independence. He is strong for defence, if not for attack. Congress can, except within that narrow sphere which the Constitution has absolutely reserved to him, baffle the president, can interrogate, check, and worry his ministers. But it can neither drive him the way it wishes him to go, nor dismiss them for disobedience or incompetence.
An individual man has some great advantages in combating an assembly. His counsels are less distracted. His secrets are better kept. He may sow discord among his antagonists. He can strike a more sudden blow. Julius Cæsar was more than a match for the Senate, Cromwell for the Long Parliament, even Louis Napoleon for the French Assembly of 1851. Hence, when the president happens to be a strong man, resolute, prudent, and popular, he may well hope to prevail against a body whom he may divide by the dexterous use of patronage, may weary out by inflexible patience, may overawe by winning the admiration of the masses, always disposed to rally round a striking personality. But in a struggle extending over a long course of years an assembly has advantages over a succession of officers, especially of elected officers. The Roman Senate encroached on the consuls, though it was neither a legislature nor representative; the Carthaginian councils encroached on the suffetes; the Venetian councils encroached on the doge. Men come and go, but an assembly goes on forever; it is immortal, because while the members change, the policy, the passion for extending its authority, the tenacity in clinging to what has once been gained, remain persistent. A weak magistrate comes after a strong magistrate, and yields what his predecessor had fought for; but an assembly holds all it has ever won.8 Its pressure is steady and continuous; it is always, by a sort of natural process, expanding its own powers and devising new methods for fettering its rival. Thus Congress, though it is no more respected or loved by the people now than it was in its earlier days, and has developed no higher capacity for promoting the best interests of the state, has succeeded in occupying most of the ground which the Constitution left debatable between the president and itself;9 and would, did it possess a better internal organization, be more plainly than it now is the supreme power in the government.
In their effort to establish a balance of power, the framers of the Constitution so far succeeded that neither power has subjected the other. But they underrated the inconveniences which arise from the disjunction of the two chief organs of government. They relieved the administration from a duty which European ministers find exhausting and hard to reconcile with the conduct of administration—the duty of giving attendance in the legislature and taking the lead in its debates. They secured continuity of executive policy for four years at least, instead of leaving government at the mercy of fluctuating majorities in an excitable assembly. But they so narrowed the sphere of the executive as to prevent it from leading the country, or even its own party in the country, except indeed in a national crisis, or when the president happens to be exceptionally popular. They sought to make members of Congress independent, but in doing so they deprived them of some of the means which European legislators enjoy of learning how to administer, of learning even how to legislate in administrative topics. They condemned them to be architects without science, critics without experience, censors without responsibility.
When in 1788 the loosely confederated states of North America united themselves into a nation, national tribunals were felt to be a necessary part of the national government. Under the Confederation there had existed no means of enforcing the treaties made or orders issued by the Congress, because the courts of the several states owed no duty to that feeble body, and had little will to aid it. Now that a federal legislature had been established, whose laws were to bind directly the individual citizen, a federal judicature was evidently needed to interpret and apply these laws, and to compel obedience to them. The alternative would have been to entrust the enforcement of the laws to state courts. But state courts were not fitted to deal with matters of a quasi-international character, such as admiralty jurisdiction and rights arising under treaties. They supplied no means for deciding questions between different states. They could not be trusted to do complete justice between their own citizens and those of another state. Being under the control of their own state governments, they might be forced to disregard any federal law which the state disapproved; or even if they admitted its authority, might fail in the zeal or the power to give due effect to it. And being authorities coordinate with and independent of one another, with no common court of appeal placed over them to correct their errors or harmonize their views, they would be likely to interpret the federal Constitution and statutes in different senses, and make the law uncertain by the variety of their decisions. These reasons pointed imperatively to the establishment of a new tribunal or set of tribunals, altogether detached from the states, as part of the machinery of the new government. Side by side of the thirteen different sets of state courts, whose jurisdiction under state laws and between their own citizens was left untouched, there arose a new and complex system of federal courts. The Constitution drew the outlines of the system. Congress perfected it by statutes; and as the details rest upon these statutes, Congress retains the power of altering them. Few American institutions are better worth studying than this intricate judicial machinery; few deserve more admiration for the smoothness of their working; few have more contributed to the peace and well-being of the country.
The federal courts fall into three classes:
The Supreme Court, which sits at Washington
The Circuit Courts of Appeals
The Circuit Courts
The District Courts
The Supreme Court is directly created by art. III, § 1 of the Constitution, but with no provision as to the number of its judges. Originally there were six; at present there are nine, a chief justice, with a salary of $13,000