method. The people (that is, the qualified voters) have allowed an executive to subsist with apparently wide powers, but they virtually choose this executive, and keep it in so close and constant a dependence upon their pleasure, that it dare not act against what it believes their will to be. The struggle for popular liberties in England took at first the form of a struggle for the supremacy of law; that is to say, it was a struggle to restrain the prerogative of the king by compelling his ministers to respect the ancient customs of the land and the statutes passed in Parliament. As the customs were always maintained, and the range of the statutes constantly widened, the executive was by degrees hemmed in within narrow limits, its discretionary power restricted, and that characteristic principle of the Constitution, which has been well called "The Reign of Law," was established. It was settled that the law, i.e. the ancient customs and the statutes, should always prevail against the discretion of the Crown and its ministers, and that acts done by the servants of the Crown should be justiciable, exactly like the acts of private persons.1 This once achieved, the executive fairly bitted and bridled, and the ministry made to hold office at the pleasure of the House of Commons, Parliament had no longer its former motive for seeking to restrict the discretion of the ministers of the Crown by minutely particular legislation, for ministers had become so accustomed to subjection that their discretion might be trusted. Parliament has, in fact, of late years begun to sail on the other tack, and allows ministers to do many things by regulations, schemes, orders in council, and so forth, which would previously have been done by statute.2

It may be asked how it comes, if this be so, that people nevertheless talk of the executive in England as being a separate and considerable authority? The answer is twofold. The English Crown has never been, so to speak, thrown into the melting-pot and recast, but has continued, in external form and seeming, an independent and highly dignified part of the constitutional system.3 Parliament has never asserted a direct control

1 See Mr. Dicey's Law of the Constitution for a lucid exposition of this principle.

2 In these cases, however (of which schemes under the Endowed Schools Acts may be taken as an instance), Parliament reserves to itself a right of veto in the form of an address to the Crown requesting that the regulation or scheme be not approved.

3 An interesting illustration of the relations of the English executive to the

over certain parts of the royal prerogative, such as the bestowal of honours, the creation of peerages, the making of appointments to office. No one at this moment can say exactly what the royal prerogative does or does not include. And secondly, the actual executive, i.e. the ministry of the day, retains some advantages which are practically, though not legally, immense. It has an initiative in all legislation, a sole initiative in financial legislation. It is a small and well organized body placed in the midst of a much larger and less organized body (i.e. the two Houses), on which therefore it can powerfully act. All patronage, ecclesiastical as well as civil, lies in its gift, and though it must not use this function so as to disgust the Commons, it has great latitude in the disposal of favours. While Parliament is sitting it disposes of a large part, sometimes (as in 1887) of the whole of the time of the House of Commons, and can therefore advance the measures it prefers, while retarding or evading motions it dislikes. During nearly half the year Parliament is not sitting, and the necessities of a great State placed in a restless world oblige a ministry to take momentous resolutions upon its own responsibility. Finally, it includes a few men who have obtained a hold on the imagination and confidence of the people, which emboldens them to resist or even to lecture Parliament, and often to prevail, not only against its first impulses, but possibly against its deliberate wishes. And an English ministry is strong not only because it so frankly acknowledges its dependence on the Commons as not to rouse the antagonism of that body, to which, be it remembered, most ministers belong, but legislature in the fourteenth and fifteenth centuries, when Parliament was little more than a pure legislature, is afforded by the present constitution of the tiny kingdom of the Isle of Man, the last survivor of those numerous kingdoms among which the British Isles were once divided. Its government is carried on by a Governor (appointed by the English Crown), a council of eight (composed partly of persons nominated by the Crown and partly of ex-officio members holding posts to which they have been appointed by the Crown), and an elected representative assembly of twenty-four. The assembly is purely legislative, and cannot check the Governor otherwise than by withholding the legislation he wishes for and such taxes as are annually voted. For the purposes of finance bills the assembly (House of Keys) and the council sit together but vote separately. The Governor presides, as the English king did in his Great Council. The Governor can stop any legislation he disapproves, and can retain his ministers against the will of the assembly. He is a true executive magistrate, commanding, moreover, like the earlier English kings, a considerable revenue which does not depend on the annual votes of the legislature. Here therefore is an Old-World instance of the American system as contradistinguished from the cabinet system of England and her colonies.

also because it has another power outside to which it can, in extreme cases, appeal. It may dissolve Parliament, and ask the people to judge between its views and those of the majority of the House of Commons. Sometimes such an appeal succeeds. The power of making it is at all times a resource.

This delicate equipoise of the ministry, the House of Commons, and the nation acting at a general election, is the secret of the smooth working of the British Constitution. It reappears in two remarkable Constitutions, which deserve fuller study than they have yet received from American or English publicists, those of Prussia and the new German Empire. There, however, the ministry is relatively stronger than in England, because the Crown retains not only a wider stretch of legal authority, but a greater moral influence over the people, who have had less practice than the English in working free institutions, and who never forget that they are soldiers, and the King-Emperor head of the army. A Prussian minister is so likely to have the nation on his side when he makes an appeal to it in the name of the King, and feels so confident that even if he defies the Chambers without dissolving, the nation will not be greatly stirred, that he sometimes refuses to obey the legislature. This is one of those exceptions which illustrate the rule. The legislature is prevented from gaining ground on the executive, not so much by the Constitution as by the occasional refusal of the executive to obey the Constitution, a refusal made in reliance on the ascendency of the Crown.

So far we have been considering domestic policy. The case of foreign affairs differs chiefly in this, that they cannot be provided for beforehand by laws general in application, but minutely particular in wording. A governing assembly may take foreign affairs into its own hand. In the republics of antiquity the Assembly did so, and was its own foreign office. The Athenian Assembly received ambassadors, declared war, concluded treaties. It got on well enough while it had to deal with other republics like itself, but suffered when the contest came to be with an astute diplomatist like Philip of Macedon. The Roman Senate conducted the foreign policy of Rome, often with the skill to be expected from men of immense experience and ability, yet sometimes with a vacillation which a monarch would have been less likely to show. But the foreign relations of modern states are so numerous and complex, and so much entangled with commercial

questions, that it has become necessary to create a staff of trained officials to deal with them. No large popular assembly could have either the time or the knowledge requisite for managing the ordinary business, much less could it conduct a delicate negotiation whose success would depend on promptitude and secrecy. Hence even democratic countries like France and England are forced to leave foreign affairs to a far greater degree than home affairs to the discretion of the ministry of the day. France reserves to the Chambers the power of declaring war or concluding a treaty. England has so far adhered to the old traditions as to leave both to the Crown, though the first, and in most cases the second, must be exerted with the virtual approval of Parliament. The executive is as distinctly responsible to the legislature, as clearly bound to obey the directions of the legislature, as in matters of domestic concern. But the impossibility which the legislature in countries like France and England finds in either assuming executive functions in international intercourse, or laying down any rules by law for the guidance of the executive, necessarily gives the executive a wide discretion and a correspondingly large measure of influence and authority. The only way of restricting this authority would be to create a small foreign affairs committee of the legislature and to empower it to sit when the latter was not sitting. And this extreme course neither France nor England has yet taken, because the dependence of the ministry on the majority of the legislature has hitherto seemed to secure the conformity of the Foreign Office to the ideas and sentiments of that majority.

Before applying these observations to the United States, let us summarize the conclusions we have reached.

We have found that wherever the will of the people prevails, the legislature, since it either is or represents the people, can make itself omnipotent, unless checked by the action of the people themselves. It can do this in two ways. It may, like the republics of antiquity, issue decrees for particular cases as they arise, giving constant commands to all its agents, who thus become mere servants with no discretion left them. Or it may frame its laws with such particularity as to provide by anticipation for the greatest possible number of imaginable cases, in this way also so binding down its officials as to leave them no volition, no real authority.

We have also observed that every legislature tends so to

enlarge its powers as to encroach on the executive; and that it has great advantages for so doing, because a succeeding legislature rarely consents to strike off any fetter its predecessor has imposed.

It

Thus the legitimate issue of the process would be the extinction or absorption of the executive as a power in the State. would become a mere set of employés, obeying the legislature as the clerks in a bank obey the directors. If this does not happen, the cause is generally to be sought in some one or more of the following circumstances :

The legislature may allow the executive the power of appeal ing to the nation against itself (England).1

The people may from ancient reverence or the habit of military submission be so much disposed to support the executive as to embolden the latter to defy the legislature (Prussia).

The importance of foreign policy and the difficulty of taking it out of the hands of the executive may be so great that the executive will draw therefrom an influence re-acting in favour of its general weight and dignity (Prussia, England, and, to some extent, France).

Let us now see how the founders of the American Constitution settled the relations of the departments. They were terribly afraid of a strong executive, and desired to reserve the final and decisive voice to the legislature, as representing the people. They could not adopt what I have called the Greek method of an assembly both executive and legislative, for Congress was to be a body with limited powers; continuous sittings would be inconvenient, and the division into two equally powerful houses would evidently unfit it to govern with vigour and promptitude. Neither did they adopt the English method of a legislature governing through an executive dependent upon it. It was urged in the Philadelphia Convention of 1787 that the executive ought to be appointed by and made accountable to the legislature, as being the supreme power in the national government. This was over-ruled, because the majority of the Convention were fearful of "democratic haste and instability," fearful that the legislature would, in any event, become too powerful, and therefore anxious to build up some counter authority to check and balance it. By making the President independent, 1 In France the President can dissolve the Chambers, but only with the consent of the Senate.