and augmenting the Peers are among the most important and the least appreciated parts of our whole government, and that hundreds of errors have been made in copying the English Constitution from not comprehending them.

Hobbes told us long ago, and everybody now understands, that there must be a supreme authority, a conclusive power, in every state on every point somewhere the idea of government involves it, when that idea is properly understood. But there are two classes of governments: in one the supreme determining power is upon all points the same; in the other that ultimate power is different upon different points, now resides in one part of the constitution and now in another. The Americans thought that they were imitating the English in making their Constitution upon the last principle, in having one ultimate authority for one sort of matter and another for another sort; but in truth the English Constitution is the type of the opposite species, it has only one authority for all sorts of matters. To gain a living conception of the difference, let us see what the Americans did.

First, they altogether retained what in part they could not help, the sovereignty of the separate States. A fundamental article of the federal Constitution says that "the powers not delegated to the" central government "are reserved to the States respectively"; and the whole recent history of the Union — perhaps all its history-has been more determined by that enactment than by any other single cause. The sovereignty of the principal matters of state has rested not with the highest government, but with the subordinate government [s]. The federal government could not touch slavery, - the "domestic institution" which divided the Union into two halves, unlike one another in morals, politics, and social condition, and at last set them to fight: this determining political fact was not in the jurisdiction of the highest government in the country, where you might expect its highest wisdom,

nor in the central government, where you might look for impartiality, but in local governments, where petty interests were sure to be considered and where only inferior abilities were likely to be employed; the capital fact was reserved for the minor jurisdictions. Again, there has been only one matter comparable to slavery in the United States, and that has been vitally affected by the State governments also: their ultrademocracy is not a result of federal legislation, but of State legislation. The federal Constitution deputed one of the main items of its structure to the subordinate governments: one of its clauses provides that the suffrages for the federal House of Representatives shall be, in each State, the same as for the most numerous branch of the legislature of that State; and as each State fixes the suffrage for its own legislature, the States altogether fix the suffrage for the federal lower chamber. By another clause of the federal Constitution, the States fix the electoral qualification for voting at a presidential election: the primary element in a free government, the determination how many people shall have a share in it, in America depends not on the government but on certain subordinate local- and sometimes, as in the South now, hostile-bodies.

Doubtless the framers of the Constitution had not much choice in the matter. The wisest of them were anxious to get as much power for the central government and to leave as little to the local governments as they could; but a cry was got up that this wisdom would create a tyranny and impair freedom, and with that help local jealousy triumphed easily. All federal government is in truth a case in which what I have called the dignified elements of government do not coincide with the serviceable elements. At the beginning of every league, the separate states are the old governments which attract and keep the love and loyalty of the people: the federal government is a useful thing, but new and unattractive; it must concede

much to the state governments, for it is indebted to them for motive power, they are the governments which the people voluntarily obey. When the state governments are not thus loved, they vanish as the little Italian and the little German potentates vanished; no federation is needed, a single central government rules all.

But the division of the sovereign authority in the American Constitution is far more complex than this: the part of that authority left to the federal government is itself divided and subdivided. The greatest instance is the most obvious: the Congress rules the law, but the President rules the administration. One means of unity the Constitution does give, the President can veto laws he does not like; but when twothirds of both houses are unanimous (as has lately happened), they can overrule the President and make the laws without him. So here there are three separate repositories of the legislative power in different cases: first, Congress and the President when they agree; next, the President when he effectually exerts his power; then, the requisite two-thirds of Congress when they overrule the President. And the President need not be over-active in carrying out a law he does not approve of: he may indeed be impeached for gross neglect, but between criminal nonfeasance and zealous activity there are infinite degrees; Mr. Johnson does not carry out the Freedmen's Bureau Bill as Mr. Lincoln, who approved of it, would have carried it out. The American Constitution has a special contrivance for varying the supreme legislative authority in different cases, and dividing the administrative authority from it in all cases.

But the administrative power itself is not left thus simple and undivided. One most important part of administration is international policy, and the supreme authority here is not in the President, still less in the House of Representatives, but in the Senate; the President can only make treaties "provided

two-thirds of the Senators present concur": the sovereignty therefore for the greatest international questions is in a different part of the state altogether from any common administrative or legislative question, it is put in a place by itself.

Again, the Congress declares war; but they would find it very difficult, according to the recent construction of their laws, to compel the President to make a peace. The authors of the Constitution doubtless intended that Congress should be able to control the American executive as our Parliament controls ours, -they placed the granting of supplies in the House of Representatives exclusively; but they forgot to look after paper money, and now it has been held that the President has power to emit such money without consulting Congress at all. The first part of the late war was so carried on by Mr. Lincoln: he relied not on the grants of Congress, but on the prerogative of emission. It sounds a joke, but it is true nevertheless, that this power to issue "greenbacks" is decided to belong to the President as commanderin-chief of the army: it is part of what was called the war power." In truth, money was wanted in the late war, and the administration got it in the readiest way; and the nation, glad not to be more taxed, wholly approved of it: but the fact remains that the President has now, by precedent and decision, a mighty power to continue a war without the consent of Congress, and perhaps, against its wish. Against the united will of the American people a President would of course be impotent, -such is the genius of the place and nation that he would never think of it; but when the nation was (as of late) divided into two parties, one cleaving to the President, the other to the Congress, the now unquestionable power of the President to issue paper money may give him the power to continue the war though parliament (as we should speak) may enjoin the war to cease.

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And lastly, the whole region of the very highest

questions is withdrawn from the ordinary authorities of the State, and reserved for special authorities: the Constitution cannot be altered by any authorities within the Constitution, but only by authorities without it; every alteration of it, however urgent or however trifling, must be sanctioned by a complicated proportion of States or legislatures. The consequence is, that the most obvious evils cannot be quickly remedied; that the most absurd fictions must be framed to evade the plain sense of mischievous clauses; that a clumsy working and curious technicality mark the politics of a rough-and-ready people. The practical arguments and the legal disquisitions in America are often like those of trustees carrying out a misdrawn will: the sense of what they mean is good, but it can never be worked out fully or defended simply, so hampered is it by the old words of an old testament.

These instances (and others might be added) prove, as history proves too, what was the principal thought of the American Constitution-makers: they shrank from placing sovereign power anywhere, they feared that it would generate tyranny; George III. had been a tyrant to them, and come what might they would not make a George III. Accredited theories said that the English Constitution divided the sovereign authority, and in imitation the Americans split up theirs.

The result is seen now: at the critical moment of their history there is no ready deciding power. The South, after a great rebellion, lies at the feet of its conquerors; its conquerors have to settle what to do with it. They must decide the conditions upon which the Secessionists shall again become fellowcitizens, shall again vote, again be represented, again perhaps govern. The most difficult of problems is

*

*This was written just after the close of the Civil War, but I do not know that the great problem stated in it has as yet been adequately solved. -Note to second edition, B.