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sovereignty into departments, each, as it were, checking whatever of evil there might be in the uncontrolled action of the others, and yet each supposed to be in a sense independent of the others-gradually, we say, this theory came to be seen to be an incomplete, and, in truth, wholly erroneous explanation of the working of the constitution. The rising spirit of democracy had silently permeated the system of government, without any apparent disintegration of parts, but with a difference in the practical “residence” of power, which at length challenged recognition at the hands of those who would expound the constitution and its law.
Of comparatively recent writers, the late Walter Bagehot, in his most valuable essays, attacks with vigor this "literary theory,” with its supposed checks and balances, and as a result of an interesting study of constitutional dynamics, arrives at this conclusion:
• The efficient secret of the English constitution may be described as the close union, the nearly complete fusion of the executive and legislative powers. No doubt by the traditional theory, as it exists in all the books, the goodness of our constitution consists in the entire separation of the legislative and executive authorities, but in truth its merit consists in their singular approximation. The connecting link is the Cabinet. By that new word we mean a committee of the legislative body selected to be the executive body. The legislature has many committees, but this is its greatest. It chooses for this, its main committee, the men in whom it has most confidence. It does not, it is true, choose them directly; but it is nearly omnipotent in choosing them indirectly.
The Cabinet, in a word, is a Board of Control, chosen by the legislature, out of persons whom it trusts and knows, to rule the Nation. A cabinet is a combining committee-a hyphen which joins, a buckle which fastens, the legislative part of the State to the executive part of the State. In its origin, it belongs to the one, in its functions, it belongs to the other." and he proceeds further to show how, by this practical fusion, this result is clearly attained—that the will of the
people constitutionally expressed through their elected representatives in the House of Commons, controls both the law-making and the law-executing power, and is, in very fact, the ultimate power in government.
Mr. Dicey, in a work to which reference has already been made, treats of the law of the constitution, and insists on this as the legal principle discernible throughout, namely, the supremacy of Parliament. Viewed as a legal question, the solution of the problem stops short at the expression (in Act of Parliament) of the will of Parliament, and from that standpoint we may summarize the result thus: The Imperial Parliament is supreme over the Executive. By the legal expression of its will in statutory form, it controls the exercise of executive authority; may add to, or take from, the power of that department of government, or may subject the exercise of executive power to such conditions of time, place, or manner of action, as to Parliament may seem proper. The law of the constitution does, however, take this cognizance of the “power behind the throne,” that the method of electing the House of Commons is provided for by Act of Parliament.
Viewed in the light of the “conventions of the constitution,” the responsibility of the executive to the legislature for the proper performance of its functions, is guaranteed by those usages and precepts, that code of “conventions” which provide that, upon losing the confidence of the House of Commons, the Cabinet must resign, and give place to an executive which will command that confidence (n).
This responsibility of the executive to the people, through the House of Commons—the elective branch of parliament—is the principle of the British constitution,
(n) The last chapter in Prof. Dicey's book is a very interesting effort to show that the “conventions” of the British constitution rest upon a basis of legal sanction—that the violation of most, if not all, of those conventions, will speedily place the offender in the position of a lawbreaker. This idea could hardly be worked out in the matter of the "conventions" as to colonial self-government.
and is worked out in government somewhat upon the principle of the endless chain. Travelling in one direction along the links of this chain, we find an executive committee, practically appointed by, and subject to deposition at the hands of the Commons, executing upon and over the governed those laws of the land which are made, or allowed to remain such, by that branch of parliament which is elected by the people through certain executive machinery appointed by parliament, and put in motion by the executive committee. A reversal of the process leads to the same result—the discovery that the motive power in government is the will of the people, and that this power works always and only through parliament, but that, through the controlling branch of parliament, the governed make their own laws, and provide the means, and regulate the manner, by and in which they are to be governed by those laws.
Turning now to the system of government across the border, we find the same principle of ultimate responsibility to the people; but it is worked out in a very different and much less satisfactory way.
We have referred to the “ literary theory” of the English constitution. It is not very far from the truth to say that the United States system is an attempt to work out that very theory in actual practice. We may take as our example the “national” government at Washington, for, as we have already said, the type is persistent throughout both the “national” and the “local” governments of the American Union, just as the British type is persistent throughout both the “ national” and “local ” governments of the British Empire. How it came about that the "literary theory” of the English Constitution was embodied in the Constitution of the United States has been the subject of frequent enquiry, and we venture to quote from a recent American work of great merit:
“ The Convention of 1787 was composed of very able men of the English-speaking race. They took the system of government with which they had been familiar, improved it, adapted it
to the circumstances with which they had to deal, and put it into successful operation.
It is needful, however, to remember in this connection, what has already been alluded to, that when that Convention was copying the English constitution, that constitution was in a stage of transition, and had by no means fully developed the features which are now recognized as most characteristic of it.
The English constitution of that day had a great many features which did not invite republican imitation. It was suspected, if not known, that the ministers who sat in parliament were little more than the tools of a ministry of Royal favorites, who were kept out of sight behind the strictest confidences of the Court. It was notorious that the subservient parliaments of the day represented the estates and the money of the peers and the influence of the King, rather than the intelligence and purpose of the Nation.
It was something more than natural that the convention of 1787 should desire to erect a Congress which would not be subservient, and an executive which could not be despotic ; and it was equally to have been expected that they should regard an absolute separation of these two great branches of the system as the only effectual means for the accomplishment of that muc! desired end" ).
Prof. Wilson, indeed, shows very clearly, as one would expect, that Congress is now supreme over the executive of the federal government, and “subjects even the details of administration to the constant supervision, and all policy to the watchful intervention of the Standing Committees of Congress”; but he laments the lack of executive responsibility to Congress. The President and the heads of the chief executive departments of government stand apart, isolated from Congress; bound to execute its laws, but. with no greater influence in securing the passage of laws in aid of effective administration, or in preventing the passage of laws which may hamper administration, than is possessed by any other private citizen. By the terms of the “Constitution” itself, they are debarred from seats in
(0) Wilson's Congressional Government, p. 307.
Congress (P), and so have no initiative in legislation. On the other hand, Congress must go to the full extent of lawmaking in order to exercise its supremacy over the executive; but the trouble may be, not in the law, but in the execution of that law, and no matter to what extent of detail the law may make provision, one may expect that an executive, perhaps completely out of sympathy with the law, will not be a very satisfactory administrator of that law. In short, there is no guarantee of that harmony between the legislative and executive departments, that sympathy and co-operation, without which there must necessarily arise constant friction, lack of continuity in policy, and even a deadlock in the administration of public affairs. Congress and the executive are responsible, each directly to the people; but the retention of the confidence of Congress is in no way a condition to the retention of office Congress has no such power to depose the executive as has the House of Commons in the English constitutional system. Moreover, the constant possibility of party diversity between the Executive and Congress, renders it very difficult to fasten responsibility upon either. This difficulty is thus strongly put by Prof. Wilson, in the work from which we have already quoted :
“Is Congress rated for corrupt, or imperfect, or foolish legislation ?
Does administration blunder and run itself into all sorts of straits? The Secretaries hasten to plead the unreasonable or unwise commands of Congress, and Congress falls to blaming the Secretaries. The Secretaries aver that the wliole mischief might have been avoided, if they had only been allowed to suggest the proper measures; and the men who framed the existing measures, in their turn, avow their despair of good government, so long as they must entrust all their plans to the bungling incompetence of men who are appointed by, and responsible to somebody else. How is the school-master, the nation, to know which boy needs the whipping ?" (1).
(p) Art. I., sec. 6.
(1) Congressional Government, p. 283.