The American Commonwealth. Viscount James Bryce

of the Crown for a while revived and corruption declined.² The executive head of the state was, during the latter decades of the century, a factor apart from his ministers. They were not then, as now, a mere committee of Parliament dependent upon Parliament, but rather a compromise between the king’s will and the will of the parliamentary majority. They deemed and declared themselves to owe a duty to the king conflicting with, sometimes overriding, their duty to Parliament. Those phrases of abasement before the Crown which when now employed by prime ministers amuse us by their remoteness from the realities of the case, then expressed realities. In 1787, when the Constitutional Convention met at Philadelphia, the cabinet system of government was in England still immature. It was so immature that its true nature had not been perceived.³ And although we now can see that the tendency was really towards the depression of the Crown and the exaltation of Parliament, men might well, when they compared the influence of George III with that exercised by George I,⁴ argue in the terms of Dunning’s famous resolution, that “the power of the Crown has increased, is increasing, and ought to be diminished.” ⁵

      

      The greatest problem that free peoples have to solve is how to enable the citizens at large to conduct or control the executive business of the state. England was in 1787 the only nation (the cantons of Switzerland were so small as scarcely to be thought of) that had solved this problem, first, by the development of a representative system, secondly, by giving to her representatives a large authority over the executive. The Constitutional Convention, therefore, turned its eyes to her when it sought to constitute a free government for the new nation which the “more perfect union” of the states was calling into conscious being.

      Very few of the members of the Convention had been in England so as to know her Constitution, such as it then was, at first hand. Yet there were three sources whence light fell upon it, and for that light they were grateful. One was their experience in dealing with the mother country since the quarrel began. They saw in Britain an executive largely influenced by the personal volitions of the king, and in its conduct of colonial and foreign affairs largely detached from and independent of Parliament, since it was able to take tyrannical steps without the previous knowledge or consent of Parliament, and able afterwards to defend those steps by alleging a necessity whereof Parliament, wanting confidential information, could imperfectly judge. It was in these colonial and foreign affairs that the power of the Crown chiefly lay (as, indeed, to this day the authority of Parliament over the executive is smaller here than in any other department, because secrecy and promptitude are more essential), so they could not be expected to know for how much less the king counted in domestic affairs. Moreover, there was believed to be often a secret junto which really controlled the ministry, because acting in concert with the Crown; and the Crown had powerful engines at its disposal, bribes and honours, pensions and places, engines irresistible by the average virtue of representatives whose words and votes were not reported, and nearly half of whom were the nominees of some magnate.⁶

      The second source was the legal presentation of the English Constitution in scientific textbooks, and particularly in Blackstone, whose famous Commentaries, first published in 1765 (their substance having been delivered as professional lectures at Oxford in 1758 and several succeeding years), had quickly become the standard authority on the subject. Now Blackstone, as is natural in a lawyer who looks rather to the strict letter of the law than to the practice which had grown up modifying it, describes the royal prerogative in terms more appropriate to the days of the Stuarts than to those in which he wrote, and dwells on the independence of the executive, while also declaring the withholding from it of legislative power to be essential to freedom.⁷

      The third source was the view of the English Constitution given by the political philosophers of the eighteenth century, among whom, since he was by far the most important, we need look at Montesquieu alone.

      When the famous treatise on The Spirit of Laws appeared in 1748, a treatise belonging to the small class of books which permanently turn the course of human thought, and which, unlike St. Augustine’s City of God, turned it immediately instead of having to wait for centuries till the hour of its power arrived, it dwelt upon the separation of the executive, legislative, and judicial powers in the British Constitution as the most remarkable feature of that system. Accustomed to see the two former powers, and to some extent the third also, exercised by or under the direct control of the French monarch, Montesquieu attributed English freedom to their separation.⁸ The king of Great Britain then possessed a larger prerogative than he has now, and as even then it seemed on paper much larger than it really was, it was natural that a foreign observer should underrate the executive character of the British Parliament and overrate the personal authority of the monarch. Now Montesquieu’s treatise was taken by the thinkers of the next generation as a sort of Bible of political philosophy. Hamilton and Madison, the two earliest exponents of the American Constitution they had done so much to create, cite it in the Federalist much as the schoolmen cite Aristotle, that is, as an authority to which everybody will bow; and Madison in particular constantly refers to this separation of the legislative, executive, and judicial powers as the distinguishing note of a free government.

      These views of the British Constitution tallied with and were strengthened by the ideas and habits formed in the Americans by their experience of representative government in the colonies, ideas and habits which were after all the dominant factor in the construction of their political system. In these colonies the executive power had been vested either in a governor sent from England by the Crown, or in certain Proprietors, to whom the English Crown had granted hereditary rights in a province. Each representative assembly, while it made laws and voted money for the purposes of its respective commonwealth, did not control the governor, because his commission issued from the British Crown, and he was responsible thereto. A governor had no parliamentary cabinet, but only officials responsible to himself and the Crown. His veto on acts of the colonial legislature was frequently used; and that body, with no means of controlling his conduct other than the refusal to vote money, was a legislature and nothing more. Thus the Americans found and admired in their colonial (or state) systems, a separation of the legislative from the executive branch, more complete than in England; and being already proud of their freedom, they attributed its amplitude chiefly to this cause.

      From their colonial and state experience, coupled with these notions of the British Constitution, the men of 1787 drew three conclusions: First, that the vesting of the executive and the legislative powers in different hands was the normal and natural feature of a free government; secondly, that the power of the executive was dangerous to liberty, and must be kept within well-defined boundaries; thirdly, that in order to check the head of the state it was necessary not only to define his powers, and appoint him for a limited period, but also to destroy his opportunities of influencing the legislature. Conceiving that ministers, as named by and acting under the orders of the president, would be his instruments rather than faithful representatives of the people, they resolved to prevent them from holding this double character, and therefore forbade “any person holding office under the United States” to be a member of either house.⁹ They deemed that in this way they had rendered their legislature pure, independent, vigilant, the servant of the people, the foe of arbitrary power. Omnipotent, however, the framers of the Constitution did not mean to make it. They were sensible of the opposite dangers which might flow from a feeble and dependent executive. The proposal made in the first draft of the Constitution that Congress should elect the president, was abandoned, lest he should be merely its creature and unable to check it. To strengthen his position, and prevent intrigues among members of Congress for this supreme office, it was settled that the people should themselves, through certain electors appointed for the purpose, choose the president. By giving him the better status of a popular, though indirect, mandate, he became independent of Congress, and was encouraged to use his veto, which a mere nominee of Congress might have hesitated to do. Thus it was believed in 1787 that a due balance had been arrived at, the independence of Congress being secured on the one side and the independence of the presiden on the other. Each power holding the other in check, the people, jealous of their hardly won liberties, would be courted by each, and safe from the encroachments of either.

      There was of course the risk that controversies as to their respective rights and powers would arise between these two