constitutional remedy; and if the newly elected House of Commons reasserts the view of its predecessor, the Lords, according to the now recognized constitutional practice, yield at once. Should they, however, still stand out, there remains the extreme expedient, threatened in 1832, but never yet resorted to, of a creation by the sovereign (i.e., the ministry) of new peers sufficient to turn the balance of votes in the Upper House. Practically the ultimate decision always rests with the people, that is to say, with the party which for the moment commands a majority of electoral votes. This method of cutting knots applies to all differences that can arise between executive and legislature. It is a swift and effective method; in this swiftness and effectiveness lie its dangers as well as its merits.
In America a dispute between the president and Congress may arise over an executive act or over a bill. If over an executive act, an appointment or a treaty, one branch of Congress, the Senate, can check the president, that is, can prevent him from doing what he wishes, but cannot make him do what they wish. If over a bill which the president has returned to Congress unsigned, the two houses can, by a two-thirds majority, pass it over his veto, and so end the quarrel; though the carrying out of the bill in its details must be left to him and his ministers, whose dislike of it may render them unwilling and therefore unsuitable agents. Should there not be a two-thirds majority, the bill drops; and however important the question may be, however essential to the country some prompt dealing with it, either in the sense desired by the majority of Congress or in that preferred by the president, nothing can be done till the current term of Congress expires. The matter is then remitted to the people. If the president has still two more years in office, the people may signify their approval of his policy by electing a House in political agreement with him, or disapprove it by reelecting a hostile House. If the election of a new president coincides with that of the new House, the people have a second means provided of expressing their judgment. They may choose not only a House of the same or an opposite complexion to the last, but a president of the same or an opposite complexion. Anyhow they can now establish accord between one house of Congress and the executive.14 The Senate, however, may still remain opposed to the president, and may not be brought into harmony with him until a sufficient time has elapsed for the majority in it to be changed by the choice of new senators by the state legislatures. This is a slower method than that of Britain. It may fail in a crisis needing immediate action; but it escapes the danger of a hurried and perhaps irrevocable decision.
Englishmen deem it a merit in their system that the practical executive of the country is directly responsible to the House of Commons. In the United States, however, not only in the national government, but in every one of the states, the opposite doctrine prevails—that the executive should be wholly independent of the legislative branch. Americans understand that this scheme involves a loss of power and efficiency, but they believe that it makes greatly for safety in a popular government. They expect the executive and the legislature to work together as well as they can, and public opinion does usually compel a degree of cooperation and efficiency which perhaps could not be expected theoretically. It is an interesting commentary on the tendencies of democratic government, that in America reliance is coming to be placed more and more, in the nation, in the state, and in the city, upon the veto of the executive as a protection to the community against the legislative branch. Weak executives frequently do harm, but a strong executive has rarely abused popular confidence. On the other hand, instances where the executive, by the use of his veto power, has arrested mischiefs due to the action of the legislature are by no means rare. This circumstance leads some Americans to believe that the day is not far distant when in England some sort of veto power, or other constitutional safeguard, must be interposed to protect the people against a hasty decision of their representatives.
While some bid England borrow from her daughter, other Americans (including two presidents), conceiving that the separation of the legislature from the executive has been carried too far in the United States, have suggested that the ministers of the president might be permitted to appear in both houses of Congress to answer questions, perhaps even to join in debate. It may be urged in support of this proposal that there is too much particularism in Congress and too strong a tendency to allow private moneyed “interests” to prevail against those general interests of the country as a whole which a British ministry is held bound to protect, and can by its command of the majority secure. But it might lead to changes more extensive than its advocates seem to contemplate. The more the president’s ministers come into contact with Congress, the more difficult will it be to maintain the independence of Congress which he and they now possess. When, before the separation of Norway from Sweden, the Norwegian Stor Thing forced the king to consent to his ministers appearing in that legislature, the king, perceiving the import of the concession, resolved to choose in future ministers in accord with the party holding a majority in the Stor Thing. It is hard to say, when one begins to make alterations in an old house, how far one will be led on in rebuilding, and I doubt whether this change in the present American system, possibly in itself desirable, might not be found to involve a reconstruction large enough to put a new face upon several parts of that system.
In the history of the United States there have been four serious conflicts between the legislature and the executive. The first was that between President Jackson and Congress. It ended in Jackson’s favour, for he got his way; but he prevailed because during the time when both houses were against him, his opponents had not a two-thirds majority. In the latter part of the struggle the (reelected) House was with him; and before he had quitted office his friends obtained a majority in the always-changing Senate. But his success was not so much the success of the executive office as of a particular president popular with the masses. The second contest, which was between President Tyler and both houses of Congress, was a drawn battle, because the majority in the houses fell short of two-thirds. In the third, between President Johnson and Congress, Congress prevailed; the enemies of the president having, owing to the disfranchisement of most Southern states, an overpowering majority in both houses, and by that majority carrying over his veto a series of acts so peremptory that even his reluctance to obey them could not destroy, though it sometimes marred, their efficiency. In the fourth case, referred to in a previous chapter, the victory remained with the president, because the congressional majority against him was slender. But a presidential victory is usually a negative victory. It consists not in his getting what he wants, but in his preventing Congress from getting what it wants.15 The practical result of the American arrangements thus comes to be that when one party possesses a large majority in Congress it can overpower the president, taking from him all but a few strictly reserved functions, such as those of pardoning, of making promotions in the army and navy, and of negotiating (not of concluding treaties, for these require the assent of the Senate) with foreign states. Where parties are pretty equally divided, i.e., when the majority is one way in the Senate, the other way in the House, or when there is only a small majority against the president in both houses, the president is in so far free that new fetters cannot be laid upon him; but he must move under those which previous legislation has imposed, and can take no step for which new legislation is needed.
It is another and a remarkable consequence of the absence of cabinet government in America, that government does not mean the same thing there that it does in Europe. In France, Italy, and England the term means, that one set of men, united, or professing to be united, by holding one set of opinions, have obtained control of the whole machinery of government, and are working it in conformity with those opinions. Their majority in the country is represented by a majority in the legislature, and to this majority the ministry of necessity belongs. The ministry is the supreme committee of the party, and controls all the foreign as well as domestic affairs of the nation, because the majority is deemed to be the nation. It is otherwise in America. Men do, no doubt, talk of one party as being “in power,” meaning thereby the party to which the then president belongs. But they do so because that party enjoys the spoils of office, in which to so many politicians the value of power consists. They do so also because in the early days the party which prevailed in the legislative usually prevailed also in the executive department, and because the presidential election was, and still is, the main struggle which proclaimed the predominance of one or other party.16
But
