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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 two-thirds 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 non-feasance and zealous activity there are infinite degrees. Mr. Johnson does not carry out the Freedman'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 loss in the House of Representatives, but in the Senate. The President can only make treaties, "provided two-thirds of 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.
o they forgot to look after “, 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 commander-in-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.
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 IIL 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 fellow citizens, shall again vote, again be represented, again perhaps govern. The most difficult of problems is how to change late foes into free friends. The safety of their great public debt, and with that debt their future credit and their whole power in future wars, may depend on their not giving too much power to those who must see in the debt the cost of their own subjugation, and who must have an inclination towards the repudiation of it, now that their own debt,—the cost of their defence,—has been repudiated. A race, too, formerly enslaved, is now at the mercy of men who hate and despise it, and those who set it free are bound to give it a fair chance for new life. The slave was formerly protected by his chains; he was an article of value; but now he belongs to himself, no one but himself has an interest in his life; and he is at the mercy of the “mean whites,” whose labour he depreciates, and who regard him with a loathing hatred. The greatest moral duty ever set before a government, and the most fearful political problem ever set before a government, are now set before the American. But there is no decision, and no possibility of a decision. The President wants one course, and has power to prevent any other; the Congress wants another course, and has power to prevent any other. The splitting of sovereignty into many parts amounts to there being no sovereign.
* 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.
The Americans of 1787 thought they were copying the English Constitution, but they were contriving a contrast to it. Just as the American is the type of composite governments, in which the supreme power is divided between many bodies and functionaries, so the English is the type of simple constitutions, in which the ultimate power upon all questions is in the hands of the same persons.
The ultimate authority in the English Constitution is a newly-elected House of Commons. No matter whether the question upon which it decides be administrative or legislative; no matter whether it concerns high matters of the essential constitution or small matters of daily detail; no matter whether it be a question of making a war or continuing a war; no matter whether it be the imposing a tax or the issuing a paper currency; no matter whether it be a question relating to India, or Ireland, or London,-a new House of Commons can despotically and finally resolve.
The House of Commons may, as was explained, assent in minor matters to the revision of the House of Lords, and subunit in matters about which it cares little to the suspensive veto of the House of Lords; but when sure of the popular assent, and when freshly elected, it is