members in the use of Commons, and less than thehundredth of the memes in the House of Lords, to be deemed regular quotes a The Cabinet represents the majority quorum; and it is the do the business of legislation. control of all legislation by the Cabinet which prevents all dangers from the mitonty quos in the houses; but in the English system, the majority quorum, chosen upon a cabinet issue, is the state.

I am aware that this theory of the Cabinet is novel, and I fear that, like most new things, it may be crude. But the cur rent theories are admittedly unsatisfactory and if

bere presented be accepted as con

all gladly leave to

thereto, and can now hardly be said to have the power to refuse.1

The Cabinet may be dismissed by the Crown; but if it be sustained by the House of Commons, it must be reinstated by the Crown. The only possible escape of the Crown from this immediate result is to effect dissolution of the Commons through another Cabinet, formed out of persons supported by the minority party in the House of Commons; but if the newly elected house sustain the policy of the old Çabinet, it must then be reinstated, in principle, if not in personnel.

Finally, the Cabinet is responsible to the House of Commons for the use which it makes of the royal powers; but it may escape its responsibility to the immediate House of Commons by requiring the Crown to dissolve that house. Appeal is then made to the electors to choose a new house upon the issue between the Cabinet and the old house. It is to the new house alone that the Cabinet owes unconditioned obedience.

Now what must be the essential character of an organ possessing such powers? It cannot be representative of the Crown merely, although its members are formally appointed by the Crown; for it can exercise compulsion over the Crown. It cannot be representative of the House of Commons, merely, or of both houses of the Parliament; for it can exercise compulsion over both houses of the Parliament. Bagehot says that the Cabinet is chosen by the legislature, and proceeds to argue from this that it is the creature of the legislature. It seems to me that both the proposition and the inference are erroneous. There certainly is no formal election of the Cabinet or the Prime Minister by the legislature or by the House of Commons. The only election which takes place is in and by the constituencies of the House of Com

1 Bagehot, The English Constitution, pp. 83, 297.

2 Todd, Parliamentary Government in England, vol. i, p. 495.
8 Bagehot, The English Constitution, p. 81.

mons. The members of the Cabinet, if elected at all, are elected by the original holders of the suffrage. The holders of the suffrage simply designate the party which shall govern; and the Crown formally calls the generally acknowledged chiefs of that party, whether they be elected or hereditary legislators, to conduct the administration. Now the suffrageholders, when electing a House of Commons upon the issue of a new governmental policy, are in the British system the state. Why, then, do we not say that the state, rather than the legislature, chooses the Cabinet, and that the Cabinet represents the state rather than the Parliament or the House of Commons viewed simply as legislature? This view of the Cabinet, as immediate representative of the state, and this view only, explains satisfactorily its dominant position over both the Crown and the Parliament, and its greater need to maintain "rapport" with the suffrage-holders than with the majority in the House of Commons.

This view will also explain several other things which commonly perplex the student of the English constitution. It explains how Parliament has been able to preserve its integrity under a rule which permits less than one-tenth of the members in the House of Commons, and less than onehundredth of the members in the House of Lords, to be deemed regular quorums and to do the business of legislation. The Cabinet represents the majority quorum; and it is the control of all legislation by the Cabinet which prevents all dangers from the minority quorums in the houses; but in the English system, the majority quorum, chosen upon a cabinet issue, is the state.

I am aware that this theory of the Cabinet is novel, and I fear that, like most new things, it may be crude. But the current theories are admittedly unsatisfactory; and if the view here presented be accepted as containing a greater share of truth, I shall gladly leave to others its better formulation.

CHAPTER III.

THE CONSTRUCTION OF THE EXECUTIVE IN THE GOVERNMENT OF THE UNITED STATES.

I. The Election of the President and Vice-President.. This process is separated into two parts by the constitution. The first part relates to the election of the electors; the second, to the election of the President and Vice-President by the electors.

I. The constitution commands that "each State" (commonwealth) "shall appoint, in such manner as the legislature thereof may direct, a number of electors equal to the whole number of senators and representatives to which the State" (commonwealth) "may be entitled in the Congress.'

"1

The appointment of the electors from each commonwealth is thus made wholly and exclusively subject to the direction and control of the legislature of the commonwealth, unless limited by some other clause of the constitution. So far as this clause is concerned, the legislature of the commonwealth might order the election of the electors by universal suffrage or by a restricted suffrage, directly or indirectly, by district ticket or general ticket, by single or cumulative vote; or it might authorize the executive of the commonwealth to appoint them; or it might choose them itself; or cause them to be selected by any person and in any manner which it might deem suitable. It may, and it alone can, direct how a disputed election of the electors or of any one of them shall be determined. It may, and it alone can, determine the

1 United States Constitution, Art. II, sec. 1, § 2.

qualifications of the electors, outside of the one qualification prescribed by the constitution, vis; that they shall hold no office of trust or profit under the United States.1 Up to the point of the completion of the election of the electors the legislature of the commonwealth has plenary and exclusive power conferred upon it by this provision of the constitution. Let us examine now if any subsequent clause of the constitution puts limitation upon the fulness of this power, or impairs its exclusiveness.

First. The third paragraph, of the first section, of Article II, confers upon the Congress the power to fix the day of choosing the electors; and Congress has fixed it on the Tuesday following the first Monday in November in every fourth year succeeding every election of the President and Vice-President. This day must by the constitution be one and the same for the whole United States.

Second. The principle of the fifteenth Amendment certainly applies to every election which may be held within the United States. If, therefore, the legislature of the commonwealth orders the presidential electors appointed by the commonwealth to be chosen by popular election, it cannot disqualify any citizen of the United States resident within the commonwealth from voting for them on account of his race, his color, or his previous status in respect to freedom or servitude.

Third. Article XIV of the Amendments also contains a certain restriction upon the commonwealth legislatures in respect to this subject. It declares: "When the right to vote at any election for the choice of electors for President and VicePresident of the United States, representatives in Congress, the executive and judicial officers of a State" (commonwealth), "or the members of the legislature thereof, is denied to any of the male inhabitants of such State" (commonwealth) "or 1 United States Constitution, Art. II, sec. 1, § 2.

2 United States Revised Statutes, sec. 131.

3 Being twenty-one years of age and citizens of the United States.