experience convinced him that this conclusion was wholly wrong, and he sums up the numerous and cogent arguments against it by saying that,

from the moment when it had been decided that it would be the citizens themselves who would directly choose the President, the evil such as it was was irremediable, and that it would be only increasing it to undertake rashly to restrict the people in their choice.

It has been observed that while the presidential elections as a whole are tending to raise the character of the people, other influences are tending even more positively to drag it down. These may be summed up from a political point of view in the anarchy resulting from the suppression of executive power and the absorption of all government by the legislature, a force which is certain in the long run, unless some stand is made against it, to assert its superiority over all others, at least during a period of transition. We have now to turn our eyes in

that direction.

IT

CHAPTER XVII

GOVERNMENT BY LEGISLATURE

T is one of the great merits of the Federal Constitution that it furnishes only a framework of government without going too much into details, and has therefore been sufficiently tough and elastic to adapt itself without much formal modification to the vast social and political changes of the last century, Even the British Constitution, which is supposed to be wholly without fixed limits, has perhaps hardly undergone greater changes in its spirit and modes of operation than has that of the United States in its departure from the ideas and intentions of its framBut this want of extending into details has also its disadvantages. The Constitution provided for a legislature, an executive, and a judiciary, but it did not, probably it could not, fix any line of division or provide for the maintenance of such a line. Many political maxims which have since grown almost to be axioms were then hardly visible even to the most prophetic eye. Then it had not been demonstrated that the problem of popular government was to turn mainly upon a struggle for power between the executive and the legislature, in which the legislature would have an enormous advantage.

ers.

Yet the consciousness of impending danger made itself apparent in many quarters. The history of colonial government was that of steady absorption of power by the legislature.

"The legislature," says Bancroft, "was the centre of the system. The governor had no power to dissolve it or either branch. In most

of the States all important civil and military officers were elected by the legislature. The scanty power intrusted to the governor was still further restrained, wherever his power was more than a shadow, by an executive council. Where the governor had the nomination of officers they could be commissioned only by consent of the Council." He might have added that the governor himself was generally elected by the legislature; that in many states the legislature could remove any officer; that in some states these bodies held or shared the pardoning power; and, most singular of all, in five states they exercised extensive judicial powers, generally sitting as a court of last resort.1

In the Convention of 1787 Madison said:

Experience proves a tendency in our governments to throw all power into the legislative vortex. The executives of the States are little more than ciphers; the legislatures are omnipotent. If no effec

1 This extract and those following have been taken from a pamphlet on American Constitutions by Horace Davis of San Francisco, in the "Johns Hopkins University Studies in History and Political Science," third series, 1885. Mr. Davis thinks that the power of the State legislatures has been restricted and that of the executive increased till the proper balance has been restored, and that the danger in the federal government was never as great. It is needless to state that the view of the present writer is wholly different; according to which all the remedies thus far adopted have been wholly inadequate to the disease and the original evil remains to be combated in its full strength, having, moreover, with the increase of population and in the complexity of our civilization, assumed an aspect portentous beyond our previous experience.

Mr. Davis himself sounds one note of alarm :

"Government by parties, which has become the form of our political life, has, however, brought one dangerous feature of legislative encroachment, the right claimed by Congress to determine the validity of the electoral vote of any State in the presidential election. We have had one narrow escape from civil war through this source. Such a contingency may never arise again, but so great a peril must be guarded against. If Congress can by this means make a President, the system so carefully devised to maintain the independence of the executive is broken down, and we are drifting upon the shoals so much feared by the fathers of the Constitution. The same spirit which is always ready to unseat a member in a nearly balanced House of Representatives for the purpose of increasing the working majority of the party would not scruple in a closely contested presidential election to grasp at any technicality to win the grander prize, the control of the federal government. These fears may never be realized, but they threaten the most serious invasion of the independence of the executive ever yet attempted."

tual check be devised on the encroachments of the latter a revolution will be inevitable.

And speaking of the federal government: —

Wilson of Pennsylvania was most apprehensive that the legislature by swallowing up all the other powers would lead to a dissolution of the government, no adequate self-defensive power having been granted either to the executive or the judicial departments. He foreshadowed the power of the Senate in these prophetic words: "The President will not be the man of the people, but the minion of the Senate. He cannot even appoint a tide-waiter without it."

Again in the Federalist Madison says with reference to the State constitutions:

"The legislative department is everywhere extending the sphere of its activity and drawing all power into its impetuous vortex. The founders of our republics seem never to have recollected the danger from legislative usurpations, which by assembling all power in the same hands must lead to the same tyranny as is threatened by executive usurpations." . . . And he quotes from Jefferson's "Notes on Virginia" the following passage relative to the same defects in the Virginia constitution: "All the powers of the government — legislative, executive, and judiciary-result to the same legislative body. The concentrating these in the same hands is precisely the definition of despotic government. It will be no alleviation that these powers will be exercised by a plurality of hands and not by a single one."

With reference to the President's veto Judge Story remarks:

There is a natural tendency in the legislative department to intrude upon the rights and absorb the powers of the other departments of government. A mere parchment delineation of the boundaries of each is wholly insufficient for the protection of the weaker branch, as the executive unquestionably is, and hence there arises a constitutional necessity of arming it with powers for its own defence. If the executive did not possess this qualified negative he would be gradually stripped of all his authority and become what it is well known the governors of some States are, a mere pageant and shadow of magistracy.

We have endeavored to show that the veto has failed and must completely fail to accomplish the purpose here

set forth. One extract from a foreign observer may be added to those now given.

Smythe, in his "Lectures on Modern History," written in 1811 from an English standpoint, says, "If there results to America a grand calamity and failure of the whole, it can only accrue from the friends of liberty not venturing to render the executive power sufficiently effective, - the common mistake of all popular governments."

In considering how far these forebodings have been justified by the facts, we have to examine the structure and modes of operation of Congress, not taking into account by what historical process it came to be what it is, nor yet what under the Constitution it was intended to be, but through an analysis of the working machinery as it actually is. On the first Monday of December in alternate years, there come together in the House of Representatives 356 members or as many as arrive — from an equal number of fractional parts of the United States. They are all precisely equal. There is no one of them who, by virtue of office, or of a larger constituency, or for any reason, can claim any precedence over the others. The nearest approach to it consists in this, that whereas from one-third to one-half the members come there for the first time, for which good reasons will presently be shown, some members may have been in one or more previous Congresses, may have been chairmen of important committees, or may even have filled the office of Speaker. But after all they only represent single districts like every other member, they have a plenty of rivals among themselves, and there is no reason why they should, as they almost certainly will not, receive any deference from the others.

So impotent is this body, for want of initiation or cohesion, that it can do nothing at all till it has been called to order by the clerk of the last House and has proceeded to elect a Speaker. Even then it is wholly without lead