determination; but that determination does not require the consensus of different wills, and when once made it must be obeyed.

On the other hand, it is quite possible that the independence of the executive may produce a deadlock between the executive and the legislature. For example, the executive may veto a legislative act and the legislature may refuse to pass the appropriations until the veto be withdrawn. The state may, however, reduce this danger to a minimum by commanding, in the constitution, the separation of questions concerning appropriations from all other questions, and by vesting in the executive the power to execute the laws by his own ordinances, if the legislature should fail to enact the measures for their execution. This objection to the presidential form does not weigh heavily against its advantages.

The advantages of presidential government are especially manifest in those states in which a great variety of views and interests prevail, or in which governmental power is distributed among two or more independent organizations, or in which active defense against foreign invasion is a chief necessity. When all of these conditions coexist, any other form than very strong presidential government will inevitably meet with speedy and miserable failure.

2. Parliamentary government is that form in which the state confers upon the legislature the complete control of the administration of law. Under this form the legislature originates the tenure of the real (though perhaps not the nominal) executive, and terminates it at pleasure; and under this form the exercise of no executive prerogative, in any sense and manner unapproved by the legislature, can be successfully undertaken.

This is the general statement of the principle; but a little scrutiny will reveal the fact that in practice a still farther adjustment, a second differentiation, so to speak, is neces

sary.

This results from the fact that most legislatures con

sist of two houses. In legislation the required concurrence of two independent bodies to the validity of any act is advantageous, but in administration it is unendurable. Hence the control of the administration by the legislature is bound to become, in practice, control by one house of the legislature; and this control naturally gravitates to that house which, by the law or custom of the constitution, has the greater power over the revenues of the government.

This is in some respects, and under certain conditions, an admirable system. Its chief excellence is that it maintains permanent harmony between the different branches of the government; but in gaining this result, it sacrifices entirely the independence of the executive, and destroys practically the independence of one of the two houses of the legislature. Legislation is thus made comparatively easy; but at the risk of an unsteady and an inconsistent administrative policy. Another great advantage which this system offers is the better information of the legislature upon all subjects concerning which it must act, through the presence and voice of the heads of the administration in the chambers. Legislation is neither initiated nor shaped, as in the other system, by the heads of a half-hundred legislative committees by men, that is, who are commonly inexperienced and often visionary. To some minds this advantage is balanced, in some degree at least, by the disadvantage of an undue administrative influence thus gained over the legislature. This reflection would have more value if the executive in the parliamentary form were a really independent department; but since, in fact, it is nothing more than the grand committee of the reigning party in the legislature, or in that house which controls the administration, this point may be disregarded in estimating the worth of the system.

The parliamentary form, however, is not one which is suitable or possible for all conditions of men. In fact, its suc

cessful operation is dependent upon peculiar and unusual conditions. I can conceive of but two phases in the development of political society to which it is really applicable.

The one would be a practically perfect constitution of society, in which the whole population of the state should be highly and nearly equally intelligent, universally selfcontained, and moved by a pure spirit of justice. In such a society it must be presumed that the best would always be chosen to exercise the powers of government, and that, where all were so good, the best would need no artificial checks and balances to preserve them from committing wrong or error. Such a perfect society has never existed, does not now exist, and will not appear in the near future. We must not at present build our constitutional law upon any such presupposition. If this were the only condition. for the existence of parliamentary government, we might dismiss the further consideration of this form as an ideal of the distant future.

There is, however, one other stage in the evolution of the state at which the parliamentary form of government naturally appears and may work successfully. At this stage the political system consists of three dominant institutions: first, a kingship, i.e. an hereditary executive, with reserved dormant powers, possessing the most sincere devotion and loyalty of the masses; second, an established religion under the headship of the crown, through which the morality of the masses may be preserved and their attachment to the crown secured and perpetuated; and, third, limited suffrage, through which the intelligent, conservative and moderate classes shall be the bearers of the political power. The most cursory glance at the working of parliamentary government will manifest at once the necessity of these institutions, in these relations. How, for example, can the leaders of the majority in the legislature, or in one house thereof, govern with any degree of vigor and success, unless

the majority which supports them be stable and resolute, and the opposition be benevolent and forbearing? How, with the present degree of popular intelligence in even the most advanced states, can these qualities be secured in a legislature whose members are chosen by an universal or a widely extended suffrage? Experience teaches us that such a legislature is inclined to be factious, impatient and rash. But, again, how can a legislature proceeding from a distinctly limited suffrage govern the great mass of the unenfranchised, except through the medium of a kingship with its prehistoric legitimacy; and how can the power of that idea of legitimacy be maintained, save through the influence of a religion loyal to the crown and possessed of controlling power over the popular conscience? Lastly, how can the chiefs of the legislative majority govern at all, if the wearer of the crown may change its prerogatives at pleasure from dormancy to activity, and interfere at any and every point with their movements, or refuse at pleasure the royal sanction to their acts? It is evident, I think, that, at any stage in the development of the political world much short of the perfect stage, these are the conditions and relations essential to the successful working of parliamentary government. Any considerable change in them will undoubtedly impair its use fulness and endanger its existence.

CHAPTER II.

LET us

THE APPLICATION OF THE TESTS.

now test the constitutional law of the United States, England, Germany and France by the canons set forth in the preceding chapter, and see if we can thereby determine the general form of government obtaining in each. I. The Form of the Government of the United States.

1. This is substantially representative government. The organization of the state is substantially distinct from the organization of the government. It is true that the same personnel is made use of, to some degree, in both cases,1 but it is under different forms of combination. I have already fully demonstrated in the first book of this part of my treatise (vol. I, p. 142 ff.) that the organization of the state in our system is far from being perfect or even satisfactory, but it is sufficiently so to sustain the proposition that in the political system of the United States the state and the government are not identical; i.e. that the government is representative. The government of the United States is, further, limited representative government. Any argument to sustain this proposition would be superfluous. The merest glance at the text of the constitution is ample proof of the statement. Finally, the government of the United States is democratic representative government. Eligibility to office and legislative mandate are limited only by citizenship, age and residence.2 Citizenship is the privilege of no class, the required

1 Constitution of the United States, Art. V.

2 United States Constitution, Art. I, sec. 2, § 2; Art. I, sec. 3, § 3; Art. IL sec. 1, §. 5.

3 United States Constitution, Amendments, Art. XIV, sec. I.