The American Commonwealth. Viscount James Bryce

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СКАЧАТЬ into commission, and divided between the chairmen of several unconnected committees of both houses. A mass of business which specially needs the knowledge, skill, and economical conscience of a responsible ministry, is left to committees which are powerful but not responsible, and to houses whose nominal responsibility is in practice sadly weakened by their want of appropriate methods and organization.

      How far, then, does the power of the purse enable Congress to control the president? Much less than in European countries. Congress may check any particular scheme which the president favours by refusing supplies for it. If he were to engage in military operations—he cannot under the Constitution “declare war” for that belongs to Congress—the House might paralyse him by declining to vote the requisite army appropriations. If he were to repeat the splendid audacity of Jefferson by purchasing a new territory, they could withhold the purchase money. But if, keeping within the limits of his constitutional functions, he takes a different course from that they recommend, if for instance he should refuse, at their repeated requests, to demand the liberation of American citizens pining in foreign dungeons, or to suppress disorders in a state whose government had requested federal intervention, they would have to look on. To withhold the ordinary supplies, and thereby stop the machine of government, would injure the country and themselves far more than the president. They would, to use a common expression, be cutting off their nose to spite their face. They could not lawfully refuse to vote his salary, for that is guaranteed to him by the Constitution. They could not, except by a successful impeachment, turn him out of the White House or deprive him of his title to the obedience of all federal officials.

      Accordingly, when Congress has endeavoured to coerce the president by the use of its money powers, the case being one in which it could not attack him by ordinary legislation (either because such legislation would be unconstitutional, or for want of a two-thirds majority), it has proceeded not by refusing appropriations altogether, as the British House of Commons would do in like circumstances, but by attaching what is called a “rider” to an appropriation bill. Many years ago the House formed, and soon began to indulge freely in, the habit of inserting in bills appropriating money to the purposes of the public service, provisions relating to quite different matters, which there was not time to push through in the ordinary way. In 1867 Congress used this device against President Johnson, with whom it was then at open war, by attaching to an army appropriation bill a clause which virtually deprived the president of the command of the army, entrusting its management to the general highest in command (General Grant). The president yielded, knowing that if he refused the bill would be carried over his veto by a two-thirds vote; and a usage already mischievous was confirmed. In 1879, the majority in Congress attempted to overcome, by the same weapon, the resistance of President Hayes to certain measures affecting the South which they desired to pass. They tacked these measures to three appropriation bills, army, legislative, and judiciary. The minority in both houses fought hard against the riders, but were beaten. The president vetoed all three bills, and Congress was obliged to pass them without the riders. Next session the struggle recommenced in the same form, and the president, by rejecting the money bills again compelled Congress to drop the tacked provisions. This victory, which was of course due to the fact that the dominant party in Congress could not command a two-thirds majority, was deemed to have settled the question as between the executive and the legislature, and may have permanently discouraged the latter from recurring to the same tactics.

      President Hayes in his veto messages argued strongly against the whole practice of tacking other matters to money bills; and a rule of the House (not always strictly observed) now declares that an appropriation bill shall not carry any new legislation. It has certainly caused great abuses, and is forbidden by the constitutions of many states. A president once urged upon Congress the desirability of so amending the federal Constitution as to enable him, as a state governor is by some recent state constitutions allowed to do, to veto single items in an appropriation bill without rejecting the whole bill. Such an amendment is generally desired by enlightened men, because it would enable the executive to do its duty by the country in defeating many petty jobs which are now smuggled into these bills, without losing the supplies necessary for the public service which the bills provide. The change seems a small one, but its adoption would cure one of the defects due to the absence of ministers from Congress, and save the nation millions of dollars a year, by diminishing wasteful expenditure on local purposes. But the process of amending the Constitution is so troublesome that even a change which involves no party issues may remain unadopted long after the best opinion has become unanimous in its favour.

CHAPTER 21

       The Legislature and the Executive

      The fundamental characteristic of the American national government is its separation of the legislative, executive, and judicial departments. This separation is the merit which the Philadelphia Convention chiefly sought to attain, and which the Americans have been wont to regard as most completely secured by their Constitution. In Europe, as well as in America, men are accustomed to talk of legislation and administration as distinct. But a consideration of their nature will show that it is not easy to separate these two departments in theory by analysis, and still less easy to keep them apart in practice. We may begin by examining their relations in the internal affairs of a nation, reserving foreign policy for a later part of the discussion.

      People commonly think of the legislature as the body which lays down general rules of law, which prescribes, for instance, that at a man’s death his children shall succeed equally to his property, or that a convicted thief shall be punished with imprisonment, or that a manufacturer may register his trade mark. They think of the executive as the person or persons who do certain acts under those rules, who lock up convicts, register trade marks, carry letters, raise and pay a police and an army. In finance the legislature imposes a tax, the executive gathers it, and places it in the treasury or in a bank, subject to legislative orders; the legislature votes money by a statute, appropriating it to a specific purpose; the executive draws it from the treasury or bank, and applies it to that purpose, perhaps in paying the army, perhaps in building a bridge.

      The executive is, in civilized countries, itself the creature of the law, deriving therefrom its existence as well as its authority. Sometimes, as in France, it is so palpably and formally. The president of the Republic has been called into existence by the Constitution. Sometimes, as in England, it is so substantially, though not formally. The English Crown dates from a remote antiquity, when custom and belief had scarcely crystallized into law; and though Parliament has repeatedly determined its devolution upon particular persons or families—it is now held under the Act of Settlement—no statute has ever affected to confer upon it its rights to the obedience of the people. But practically it holds its powers at the pleasure of Parliament, which has in some cases expressly limited them, and in others given them a tacit recognition. We may accordingly say of England and of all constitutional monarchies as well as of republics that the executive in all its acts must obey the law, that is to say, if the law prescribes a particular course of action, the executive must take that course; if the law forbids a particular course, the executive must avoid it.

      It is therefore clear that the extent of the power of the executive magistrate depends upon the particularity with which the law is drawn, that is, upon the amount of discretion which the law leaves to him. If the law is general in its terms, the executive has a wide discretion. If, for instance, the law prescribes simply that a duty of ten per cent ad valorem be levied on all manufactured goods imported, it rests with the executive to determine by whom and where that duty shall be collected, and on what principles it shall be calculated. If the law merely creates a post office, the executive may fix the rate of payment for letters and parcels, and the conditions on which they will be received and delivered. In these cases the executive has a large field within which to exert its free will and choice of means. Power means nothing more than the extent to which a man can make his individual will prevail against the wills of other men, so as to control them. Hence, when the law gives to a magistrate a wide discretion, he is powerful, because the law СКАЧАТЬ