to obey the directions of the legislature, as in matters of domestic concern. But the impossibility which the legislature in countries like France and England finds in either assuming executive functions in international intercourse, or laying down any rules by law for the guidance of the executive, necessarily gives the executive a wide discretion and a correspondingly large measure of influence and authority. The only way of restricting this authority would be to create a small foreign affairs committee of the legislature and to empower it to sit when the latter was not sitting. And this extreme course neither France nor England has yet taken, because the dependence of the ministry on the majority of the legislature has hitherto seemed to secure the conformity of the Foreign Office to the ideas and sentiments of that majority.
Before applying these observations to the United States, let us summarize the conclusions we have reached.
We have found that wherever the will of the people prevails, the legislature, since it either is or represents the people, can make itself omnipotent, unless checked by the action of the people themselves. It can do this in two ways. It may, like the republics of antiquity, issue decrees for particular cases as they arise, giving constant commands to all its agents, who thus become mere servants with no discretion left them. Or it may frame its laws with such particularity as to provide by anticipation for the greatest possible number of imaginable cases, in this way also so binding down its officials as to leave them no volition, no real authority.
We have also observed that every legislature tends so to enlarge its powers as to encroach on the executive; and that it has great advantages for so doing, because a succeeding legislature rarely consents to strike off any fetter its predecessor has imposed.
Thus the legitimate issue of the process would be the extinction or absorption of the executive as a power in the state. It would become a mere set of employees, obeying the legislature as the clerks in a bank obey the directors. If this does not happen, the cause is generally to be sought in some one or more of the following circumstances:
The legislature may allow the executive the power of appealing to the nation against itself (England).4
The people may from ancient reverence or the habit of military submission be so much disposed to support the executive as to embolden the latter to defy the legislature (Prussia).
The importance of foreign policy and the difficulty of taking it out of the hands of the executive may be so great that the executive will draw therefrom an influence reacting in favour of its general weight and dignity (Prussia, England, and, to some extent, France).
Let us now see how the founders of the American Constitution settled the relations of the departments. They were terribly afraid of a strong executive, and desired to reserve the final and decisive voice to the legislature, as representing the people. They could not adopt the Greek method of an assembly both executive and legislative, for Congress was to be a body with limited powers; continuous sittings would be inconvenient, and the division into two equally powerful houses would evidently unfit it to govern with vigour and promptitude. Neither did they adopt the English method of a legislature governing through an executive dependent upon it. It was urged in the Philadelphia Convention of 1787 that the executive ought to be appointed by and made accountable to the legislature, as being the supreme power in the national government. This was overruled, because the majority of the Convention were fearful of “democratic haste and instability,” fearful that the legislature would, in any event, become too powerful, and therefore anxious to build up some counter authority to check and balance it. By making the president independent, and keeping him and his ministers apart from the legislature, the Convention thought they were strengthening him, as well as protecting it from attempts on his part to corrupt it.5 They were also weakening him. He lost the initiative in legislation which the English executive enjoys. He had not the English king’s power of dissolving the legislature and throwing himself upon the country. Thus the executive magistrate seemed left at the mercy of the legislature. It could weave so close a network of statutes round him, like the net of iron links which Hephæstus throws over the lovers in the Odyssey, that his discretion, his individual volition, seemed to disappear, and he ceased to be a branch of the government, being nothing more than a servant working under the eye and at the nod of his master. This would have been an absorption of the executive into the legislature more complete than that which England now presents, for the English prime minister is at any rate a leader, perhaps as necessary to his parliamentary majority as it is to him, whereas the president would have become a sort of superior police commissioner, irremovable during four years, but debarred from acting either on Congress or on the people.
Although the Convention may not have realized how helpless such a so-called executive must be, they felt the danger of encroachments by an ambitious legislature, and resolved to strengthen him against it. This was done by giving the president a veto which it requires a two-thirds vote of Congress to override. In doing this they went back on their previous action. They had separated the president and his ministers from Congress. They now bestowed on him legislative functions, though in a different form. He became a distinct branch of the legislature, but for negative purposes only. He could not propose, but he could refuse. Thus the executive was strengthened, not as an executive, but by being connected with the legislature; and the legislature, already weakened by being divided into two coequal houses, was further weakened by finding itself liable to be arrested in any new departure on which two-thirds of both houses were not agreed.
When the two houses are of one mind, and the party hostile to the president has a two-thirds majority in both, the executive is almost powerless. It may be right that he should be powerless, because such majorities in both houses presumably indicate a vast preponderance of popular opinion against him. The fact to be emphasized is, that in this case all “balance of powers” is gone. The legislature has swallowed up the executive, in virtue of the principle from which this discussion started, viz., that the executive is in free states only an agent who may be so limited by express and minute commands as to have no volition left him.
The strength of Congress consists in the right to pass statutes; the strength of the president in his right to veto them. But foreign affairs, as we have seen, cannot be brought within the scope of statutes. How then was the American legislature to deal with them? There were two courses open. One was to leave foreign affairs to the executive, as in England, giving Congress the same indirect control as the English Parliament enjoys over the Crown and ministry. This course could not be taken, because the president is independent of Congress and irremovable during his term. The other course would have been for Congress, like a Greek assembly, to be its own foreign office, or to create a foreign affairs committee of its members to handle these matters. As the objections to this course, which would have excluded the chief magistrate from functions naturally incidental to his position as official representative of the nation, were overwhelmingly strong, a compromise was made. The initiative in foreign policy and the conduct of negotiations were left to him, but the right of declaring war was reserved to Congress, and that of making treaties to one, the smaller and more experienced, branch of the legislature. A measure of authority was thus suffered to fall back to the executive which would have served to raise materially his position had foreign questions played as large a part in American politics as they have in French or English. They have, however, been comparatively unimportant, especially from 1815 till 1898, a time of external peace, except for the Mexican War of 1846.
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
