principles in the courts; and republican predominance has driven from the highest tribunal of the land all but one representative of democratic doctrines. It has been only during comparatively short periods of transition, when public opinion was passing over from one political creed to another, that the decisions of the federal judiciary have been distinctly opposed to the principles of the ruling political party.
But, besides and above all this, the national courts are for the most part in the power of Congress. Even the Supreme Court is not beyond its control; for it is the legislative privilege to increase, whenever the legislative will so pleases, the number of the judges upon the supreme bench,—to "dilute the Constitution," as Webster once put it, "by creating a court which shall construe away its provisions;" and this on one memorable occasion it did choose to do. In December, 1869, the Supreme Court decided against the constitutionality of Congress's pet Legal Tender Acts; and in the following March a vacancy on the bench opportunely occurring, and a new justiceship having been created to meet the emergency, the Senate gave the President to understand that no nominee unfavorable to the debated acts would be confirmed, two justices of the predominant party's way of thinking were appointed, the hostile majority of the court was outvoted, and the obnoxious decision reversed.16
The creation of additional justiceships is not, however, the only means by which Congress can coerce and control the Supreme Court. It may forestall an adverse decision by summarily depriving the court of jurisdiction over the case in which such a decision was threatened,17 and that even while the case is pending; for only a very small part of the jurisdiction of even the Supreme Court is derived directly from the Constitution. Most of it is founded upon the Judiciary Act of 1789, which, being a mere act of Congress, may be repealed at any time that Congress chooses to repeal it. Upon this Judiciary Act, too, depend not only the powers but also the very existence of the inferior courts of the United States, the Circuit and District Courts; and their possible fate, in case of a conflict with Congress, is significantly foreshadowed in that Act of 1802 by which a democratic Congress swept away, root and branch, the system of circuit courts which had been created in the previous year, but which was hateful to the newly-successful Democrats because it had been officered with Federalists in the last hours of John Adams's administration.
This balance of judiciary against legislature and executive would seem, therefore, to be another of those ideal balances which are to be found in the books rather than in the rough realities of actual practice; for manifestly the power of the courts is safe only during seasons of political peace, when parties are not aroused to passion or tempted by the command of irresistible majorities.
As for some of the other constitutional balances enumerated in that passage of the letter to John Taylor which I have taken as a text, their present inefficacy is quite too plain to need proof. The constituencies may have been balanced against their representatives in Mr. Adams's day, for that was not a day of primaries and of strict caucus discipline. The legislatures of the States, too, may have been able to exercise some appreciable influence upon the action of the Senate, if those were days when policy was the predominant consideration which determined elections to the Senate, and the legislative choice was not always a matter of astute management, of mere personal weight, or party expediency; and the presidential electors undoubtedly did have at one time some freedom of choice in naming the chief magistrate, but before the third presidential election some of them were pledged, before Adams wrote this letter the majority of them were wont to obey the dictates of a congressional caucus, and for the last fifty years they have simply registered the will of party conventions.
It is noteworthy that Mr. Adams, possibly because he had himself been President, describes the executive as constituting only "in some degree" a check upon Congress, though he puts no such limitation upon the other balances of the system. Independently of experience, however, it might reasonably have been expected that the prerogatives of the President would have been one of the most effectual restraints upon the power of Congress. He was constituted one of the three great coördinate branches of the government; his functions were made of the highest dignity; his privileges many and substantial—so great, indeed, that it has pleased the fancy of some writers to parade them as exceeding those of the British crown; and there can be little doubt that, had the presidential chair always been filled by men of commanding character, of acknowledged ability, and of thorough political training, it would have continued to be a seat of the highest authority and consideration, the true centre of the federal structure, the real throne of administration, and the frequent source of policies. Washington and his Cabinet commanded the ear of Congress, and gave shape to its deliberations; Adams, though often crossed and thwarted, gave character to the government; and Jefferson, as President no less than as Secretary of State, was the real leader of his party. But the prestige of the presidential office has declined with the character of the Presidents. And the character of the Presidents has declined as the perfection of selfish party tactics has advanced.
It was inevitable that it should be so. After independence of choice on the part of the presidential electors had given place to the choice of presidential candidates by party conventions, it became absolutely necessary, in the eyes of politicians, and more and more necessary as time went on, to make expediency and availability the only rules of selection. As each party, when in convention assembled, spoke only those opinions which seemed to have received the sanction of the general voice, carefully suppressing in its "platform" all unpopular political tenets, and scrupulously omitting mention of every doctrine that might be looked upon as characteristic and as part of a peculiar and original programme, so, when the presidential candidate came to be chosen, it was recognized as imperatively necessary that he should have as short a political record as possible, and that he should wear a clean and irreproachable insignificance. "Gentlemen," said a distinguished American public man, "I would make an excellent President, but a very poor candidate." A decisive career which gives a man a well-understood place in public estimation constitutes a positive disability for the presidency; because candidacy must precede election, and the shoals of candidacy can be passed only by a light boat which carries little freight and can be turned readily about to suit the intricacies of the passage.
I am disposed to think, however, that the decline in the character of the Presidents is not the cause, but only the accompanying manifestation, of the declining prestige of the presidential office. That high office has fallen from its first estate of dignity because its power has waned; and its power has waned because the power of Congress has become predominant. The early Presidents were, as I have said, men of such a stamp that they would under any circumstances have made their influence felt; but their opportunities were exceptional. What with quarreling and fighting with England, buying Louisiana and Florida, building dykes to keep out the flood of the French Revolution, and extricating the country from ceaseless broils with the South American Republics, the government was, as has been pointed out, constantly busy, during the first quarter century of its existence, with the adjustment of foreign relations; and with foreign relations, of course, the Presidents had everything to do, since theirs was the office of negotiation.
Moreover, as regards home policy also those times were not like ours. Congress was somewhat awkward in exercising its untried powers, and its machinery was new, and without that fine adjustment which has since made it perfect of its kind. Not having as yet learned the art of governing itself to the best advantage, and being without that facility of legislation which it afterwards acquired, the Legislature was glad to get guidance and suggestions of policy from the Executive.
But this state of things did not last long. Congress was very quick and apt in learning what it could do and in getting into thoroughly good trim to do it. It very early divided itself into standing committees which it equipped with very comprehensive and thorough-going privileges of legislative initiative and control, and set itself through these to administer the government. Congress is (to adopt Mr. Bagehot's description of Parliament) "nothing less than a big meeting of more or less idle people. In proportion as you give it power it will inquire into everything, settle everything, meddle in everything. In an ordinary despotism the powers of the
