LECTURE XIII.

The English Constitution (continued). - Impeachment in Parliament and in Congress. — Disuse of the Veto Power by the Crown, and its Frequent Exercise by the President. Relative Independence of the Judiciary in England and in the United States. Advantages and Disadvantages of a Written Constitution compared with those of a Constitution resting only on Precedent.

It may be contended, and there is much to justify such an inference, that our government is more evenly balanced and attended with stronger safeguards than the English government as now constituted. The senate is not, like the House of Lords, the exponent of a privileged class, weak in numbers and inferior in wealth and influence to the landed gentry and great manufacturers who are represented in the House of Commons; nor is it, like the senate of the several States, a duplication of the Lower House, distinguished merely by a little more stability of tenure. It represents the States themselves, those great political corporations which, properly regarded, are such important stays in the framework of our government. It is consequently less within the reach of the popular gales that blow so fiercely in a merely democratic assembly, and may keep the even tenor of its way when the waves of faction are running high in the House of Representatives.

The Senate has a peculiar importance, in view of one of the duties imposed upon it by the Constitution. We have seen that the executive function is really, as well as nominally, exercised in this country by a chief magistrate who holds his office from the people and may administer it in the way which he thinks most likely to promote their interest, with such deference to the views of Congress as a statesman should pay to the opinion of the department of the government

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which most nearly represents the will of the nation. Such independence might obviously be attended with injurious consequences if there were no means of removing or punishing an incapable or corrupt President. Congress is accordingly entitled, as Parliament has always been in England, to visit official misconduct with an impeachment, followed by the conviction and removal of the offender; and there is in England the sharper and more stringent method of a bill of attainder. Such means were long and successfully employed by the House of Commons to combat the royal prerogative and defend the liberties of the subject; but as the power of the Crown came to be wielded in Parliament, the necessity for extreme remedies diminished, and they are now relics of the past that may never again be brought into actual service.

Had the existing method of the English Constitution been adopted in the United States, and the executive placed under the control of Congress, it might have been possible to dispense with the power of impeachment. But as the framers of the Constitution preferred to make the President independent of the legislature, it was requisite to provide a means through which he might be brought to trial, and if need be, deposed. It was accordingly declared that the President might be convicted by the Senate, on the accusation of the House of Representatives, and sentenced to removal from office, or, if his judges saw fit, branded with a perpetual disqualification. A difficulty here arose that could not so easily be obviated. What if Congress should, in its turn, abuse the power confided to it, and overa we the executive by the menace of an impeachment?

To guard as far as possible against this evil it was provided that the Senate should, when trying an impeachment, act on oath or affirmation, and that the concurrence of two thirds of all the members present should be requisite for a conviction. It was supposed that a grave and dignified body would not by so great a majority sanction a frivolous or unfounded accusation. No better means could have been devised; and yet in the worst case, that where the great body of the Senate are bound by party ties to a policy contrary to that adopted

by the President, the precaution may obviously be inadequate to the danger.

If less than one third of the senators were of the same party with the accused, he could not hope for favor, and would be fortunate if he received bare justice; if more, it might be difficult to obtain a condemnation, even on the clearest proof of guilt. A politician called to decide on an accusation made by a political friend against a political enemy, is under a violent temptation, which even the firmest minds do not always successfully withstand. The evil was in the nature of things, and could not be avoided. It was necessary to choose between leaving the executive wholly irresponsible during his term of office, and subjecting his conduct to the revision of a tribunal that might not be impartial; and the latter alternative was justly thought preferable.

It was long since remarked by De Tocqueville that a decline of public morals in the United States would probably be marked by the abuse of the power of impeachment as a means of crushing political adversaries or ejecting them from office; and the conviction of Andrew Johnson might have been the first step in the downward path, if a few steadfast men in the Senate had not held the duty of administering justice above popular clamor and the dictation which the members of a political party find it so difficult to withstand.

There is another restraint on the popular will as declared in the House of Representatives. The seventh section of the first article of the Constitution requires that "every bill, order, resolution, or vote of Congress shall be presented to the President, and if he returns it with his objections, it shall not become a law without the concurrence of two thirds of both Houses." The power which had grown obsolete in England was thus made effectual here; and this clause is one of many proofs that the framers of our Constitution drew their inspiration from the political history of the mothercountry, and intended that the traditional checks and balance-wheels of the monarchy should not be wanting in the republic. Whether they were or were not aware that the administration of the English government was gradually passing

into the hands of a delegation from Parliament, they certainly did not intend to establish such a system in the United States, and leant in the opposite direction, by making the consent of the President, save in the rare and exceptional case of a twothirds majority in both Houses, essential to new legislation, or to the repeal, alteration, or re-enactment of the laws already made. He thus became a third branch of the legislature, whose approval was ordinarily requisite to the success of any measure proposed by the other two. It was accordingly by a resolute veto that Jackson frustrated the re-charter of the Bank of the United States and subverted the financial policy which had, with a brief interval, prevailed from the outset of the government, and that Grant prevented the expansion of the irredeemable currency which had been bequeathed by the civil war; and we have seen the persistent attempts of Congress to extort executive assent, by making it the price of the supplies needed for the military and civil services, foiled by the steadfastness of Mr. Hayes. The power may not always have been wisely exercised; but its use is as consistent with the method of our government as it would be foreign to the spirit of the English Constitution in the form which it has finally assumed.

It is not merely in the independence of the executive that the government of the United States may be contrasted with that of England. The separate existence of the judicial power is, at least in theory, more distinctly marked, and attended with stronger guaranties. The English judges are, it is true, appointed for life, and have for nearly two hundred years fulfilled their duty with an impartiality that cannot easily be surpassed; but they may still be dismissed at any moment by Parliament. It is the assurance that Parliament will not abuse its power that secures their independence. If the House of Commons were a merely popular assembly, it might not exercise this self-restraint, or the judges be so secure in

1 The method prescribed by the statute 13 Wm. III. c. 2, is a removal by the Crown on the address of both Houses (1 Bl. Com. 267, 11); but a bill carried by a popular minister through the Commons would probably prevail, notwithstanding any reluctance of the king or the Lords.

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their tenure of office. Moreover, Parliament may, as I have already intimated, blend the judicial and legislative functions, and by an attainder or bill of pains and penalties deprive an obnoxious individual of his property or life. It is not necessary that the offence should be political, or even that a legal offence should be alleged; the statute may be ex post facto, or sentence the alleged criminal without assigning a cause. do not mean to imply that such a law is likely to be passed in England: there is perhaps no country where men are less in danger from arbitrary power; but the safeguard is in the temper of the House of Commons, which may in the course of time undergo a change.

I

From what has been said, it is obvious that if the executive department of the English government is distinct and separate, it is, notwithstanding, controlled and administered by agents whom the Commons select, and may dismiss at pleasure; and next, that although the separation between the legislature and the judiciary is more distinctly marked, it may be disregarded or effaced by Parliament. What, then, it may be asked, since Parliament is thus omnipotent, is the English Constitution? What distinguishes it from the various governments in which power is confessedly absolute? The answer is, that if the only limit to the authority of Parliament is that set by the reason and judgment of the Lords and Commons, they still proceed according to rules and precedents, which, having been handed down for ages, possess a restraining influence which written Constitutions sometimes want. Parliament might deal with a political enemy as it dealt with Strafford, might arrogate to itself the trial of any cause that it did not choose to leave to the ordinary tribunals; might, if it saw fit, supersede the courts of justice by a commission acting under martial law. These things are possible; but centuries have passed since any Englishman has been deprived of life or goods, except by the judgment of his peers or in the due course of law prescribed by Magna Charta; nor does it enter into the mind of any Englishman to apprehend danger through the direct or indirect use of judicial or executive power by Parliament. On the contrary,