The Critical Period of American History

by John Fiske

Now if this were the form of our government, it would correspond in all essential features to that of England. The likeness is liable to be obscured by the fact that in England it is the queen who is supposed to appoint the prime minister; but that is simply a part of the antiquated "literary theory" of the English Constitution. In reality the queen only acts as mistress of the ceremonies. Whatever she may wish, the prime minister must be the man who can command the best working majority in the house. This is not only tested by the first vote that is taken, but it is almost invariably known beforehand so well that if the queen offers the place to the wrong man he refuses to take it. Should he be so foolish as to take it, he is sure to be overthrown at the first test vote, and then the right man comes in. Thus in 1880 the queen's manifest preference for Lord Granville or Lord Hartington made no sort of difference. Mr. Gladstone was as much chosen by the House of Commons as if the members had sat in their seats and balloted for him. If the crown were to be abolished to-morrow, and the house were henceforth, on the resignation of a prime minister, to elect a new one to serve as long as he could command a majority, it would not be doing essentially otherwise than it does now. The house then dismisses its minister when it rejects one of his important measures. But while thus appointed and dismissed by the house, he is in no wise its slave; for by the power of dissolution he has the right to appeal to the country, and let the general election decide the issue. The obvious advantages of this system are that it makes anything like a deadlock between the legislature and the executive impossible; and it insures a concentration of responsibility. The prime minister's bills cannot be disregarded, like the president's messages; and thus, too, the house is kept in hand, and cannot degenerate into a debating club.[9]

In the British government, the executive department is not separated from the legislative.

A system so delicate and subtle, yet so strong and efficient, as this could no more have been invented by the wisest of statesmen than a chemist could make albumen by taking its elements and mixing them together. In its practical working it is a much simpler system than ours, and still its principal features are not such as would be likely to occur to men who had not had some actual experience of them. It is the peculiar outgrowth of English history. As we can now see, its chief characteristic is its not separating the executive power from the legislative. As a member of Parliament, the prime minister introduces the legislation which he is himself expected to carry into effect. Nor does the English system even keep the judiciary entirely separate, for the lord chancellor not only presides over the House of Lords, but sits in the cabinet as the prime minister's legal adviser. It is somewhat as if the chief justice of the United States were ex officio president of the Senate and attorney-general; though here the resemblance is somewhat superficial. Our Senate, although it does not represent landed aristocracy or the church, but the federal character of our government, has still a superficial resemblance to the House of Lords. It passes on all bills that come up from the lower house, and can originate bills on most matters, but not for raising revenue. Its function as a high court of impeachment, with the chief justice for its presiding officer, was directly copied from the House of Lords. But here the resemblance ends. The House of Lords has no such veto upon the House of Commons as our Senate has upon the House of Representatives. Between our upper and lower houses a serious deadlock is possible; but the House of Lords can only reject a bill until it sees that the House of Commons is determined to have it carried. It can only enter a protest. If it is obstinate and tries to do more, the House of Commons, through its prime minister, can create enough new peers to change the vote,—a power so formidable in its effects upon the social position of the peerage that it does not need to be used. The knowledge that it exists is enough to bring the House of Lords to terms.

Circumstances which obscured the true aspect of the case a century ago.

These features of the English Constitution are so prominent since the reform of Parliament in 1832 as to be generally recognized. They have been gradually becoming its essential features ever since the Revolution of 1688. Before that time the crown had really been the executive, and there had really been a separation between the executive and legislative branches of the government, which on several occasions, and notably in the middle of the seventeenth century, had led to armed strife. What the Revolution of 1688 really decided was that henceforth in England the executive was to be the mighty arm of the legislature, and not a separate and rival power. It ended whatever of reality there was in the old system of King, Lords, and Commons, and by the time of Sir Robert Walpole the system of cabinet government had become fairly established; but men still continued to use the phrases and formulas bequeathed from former ages, so that the meaning of the changes going on under their very eyes was obscured. There was also a great historical incident, after Walpole's time, which served further to obscure the meaning of these changes, especially to Americans. From 1760 to 1784, by means of the rotten borough system of elections and the peculiar attitude of political parties, the king contrived to make his will felt in the House of Commons to such an extent that it became possible to speak of the personal government of George III. The work of the Revolution of 1688 was not really completed till the election of 1784 which made Pitt the ruler of England, and its fruits cannot be said to have been fully secured till 1832. Now as our Revolutionary War was brought on by the attempts of George III. to establish his personal government, and as it was actually he rather than Lord North who ruled England during that war, it was not strange that Americans, even of the highest education, should have failed to discover the transformation which the past century had wrought in the framework of the English government. Nay, more, during this century the king had seemed even more of a real institution to the Americans than to the British. He had seemed to them the only link which bound the different parts of the empire together. Throughout the struggles which culminated in the War of Independence, it had been the favourite American theory that while the colonial assemblies and the British Parliament were sovereign each in its own sphere, all alike owed allegiance to the king as visible head of the empire. To people who had been in the habit of setting forth and defending such a theory, it was impossible that the crown should seem so much a legal fiction as it had really come to be in England. It is very instructive to note that while the members of the Federal Convention thoroughly understood the antiquated theory of the English Constitution as set forth by Blackstone, they drew very few illustrations from the modern working of Parliament, with which they had not had sufficient opportunities of becoming familiar. In particular they seemed quite unconscious of the vast significance of a dissolution of Parliament, although a dissolution had occurred only three years before under such circumstances as to work a revolution in British politics without a breath of disturbance. The only sort of dissolution with which they were familiar was that in which Dunmore or Bernard used to send the colonial assemblies home about their business whenever they grew too refractory. Had the significance of a dissolution, in the British sense, been understood by the convention, the pregnant suggestion of Roger Sherman, above mentioned, could not have failed to give a different turn to the whole series of debates on the executive branch of the government. Had our Constitution been framed a few years later, this point would have had a better chance of being understood. As it was, in trying to modify the English system so as to adapt it to our own uses, it was the archaic monarchical feature, and not the modern ministerial feature, upon which we seized. The president, in our system, irremovable by the national legislature, does not answer to the modern prime minister, but to the old-fashioned king, with powers for mischief curtailed by election for short terms.

The American cabinet is analogous not to the British cabinet, but to the privy council.

The close parallelism between the office of president and that of king in the minds of the framers of the Constitution was instructively shown in the debates on the advisableness of restraining the president's action by a privy council. Gerry and Sherman urged that there was need of such a council, in order to keep watch over the president. It was suggested that the privy council should consist of "the president of the Senate, the speaker of the House of Representatives, the chief justice of the supreme court, and the principal officer in each of five departments as they shall from time to time be established; their duty shall be to advise him in matters which he shall lay before them, but their advice shall not conclude him, or affect his responsibility." The plan for such a council found favour with Franklin, Madison, Wilson, Dickinson, and Mason, but did not satisfy the convention. When it was voted down Mason used strong language. "In rejecting a council to the president," said he, "we are about to try an experiment on which the most despotic government has never ventured; the Grand Seignior himself has his Divan." It was this failure to provide a council which led the convention to give to the Senate a share in some of the executive functions of the president, such as the making of treaties, the appointment of ambassadors, consuls, judges of the supreme court, and other officers of the United States whose appointment was not otherwise provided for. As it was objected to the office of vice-president that he seemed to have nothing provided for him to do, he was disposed of by making him president of the Senate. No cabinet was created by the Constitution, but since then the heads of various executive departments, appointed by the president, have come to constitute what is called his cabinet. Since, however, the members of it do not belong to Congress, and can neither initiate nor guide legislation, they really constitute a privy council rather than a cabinet in the modern sense, thus furnishing another illustration of the analogy between the president and the archaic sovereign.

The federal judiciary.

Concerning the structure of the federal judiciary little need be said here. It was framed with very little disagreement among the delegates. The work was chiefly done in committee by Ellsworth, Wilson, Randolph, and Rutledge, and the result did not differ essentially from the scheme laid down in the Virginia plan. It was indeed the indispensable completion of the work which was begun by the creation of a national House of Representatives. To make a federal government immediately operative upon individual citizens, it must of course be armed with federal courts to try and federal officers to execute judgment in all cases in which individual citizens were amenable to the national law. But for this system of United States courts extended throughout the states and supreme within its own sphere, the federal constitution could never have been put into practical working order. In another respect the federal judiciary was the most remarkable and original of all the creations of that wonderful convention. It was charged with the duty of interpreting, in accordance with the general principles of common law, the Federal Constitution itself. This is the most noble as it is the most distinctive feature in the government of the United States. It constitutes a difference between the American and British systems more fundamental than the separation of the executive from the legislative department. In Great Britain the unwritten constitution is administered by the omnipotent House of Commons; whatever statute is enacted by Parliament must stand until some future Parliament may see fit to repeal it. But an act passed by both houses of Congress, and signed by the president, may still be set aside as unconstitutional by the supreme court of the United States in its judgments upon individual cases brought before it. It was thus that the practical working of our Federal Constitution during the first thirty years of the nineteenth century was swayed to so great an extent by the profound and luminous decisions of Chief Justice Marshall, that he must be assigned a foremost place among the founders of our Federal Union. This intrusting to the judiciary the whole interpretation of the fundamental instrument of government is the most peculiarly American feature of the work done by the convention, and to the stability of such a federation as ours, covering as it does the greater part of a huge continent, it was absolutely indispensable.

Thus, at length, was realized the sublime conception of a nation in which every citizen lives under two complete and well-rounded systems of laws,—the state law and the federal law,—each with its legislature, its executive, and its judiciary moving one within the other, noiselessly and without friction. It was one of the longest reaches of constructive statesmanship ever known in the world. There never was anything quite like it before, and in Europe it needs much explanation to-day even for educated statesmen who have never seen its workings. Yet to Americans it has become so much a matter of course that they, too, sometimes need to be told how much it signifies. In 1787 it was the substitution of law for violence between states that were partly sovereign. In some future still grander convention we trust the same thing will be done between states that have been wholly sovereign, whereby peace may gain and violence be diminished over other lands than this which has set the example.