CHAPTER III.

EXECUTIVE POWER.

THE present war has revealed weakness and uncertainty in a part of our system where few expected to find it. The Executive branch of the Government was a novelty, created partly out of the past and partly invented to meet the demands of a new situation. Under the strain of the existing crisis, it has become doubtful whether this invention has the power to provide for the public safety and at the same time maintain the security of personal liberty. As the Convention was obliged to make a Union out of the old Confederacy to suit the necessities of the times, so also were they obliged to make for a Government which was to act directly upon persons and things, an Executive which must not be a king, but must have power and functions very like those of a king. Royalty was out of the question, but some authority to execute the laws, to represent the country in its foreign relations, and to perform other royal duties, was absolutely necessary. How to invent an elective king, a republican king, powerful enough, but not too powerful, was the difficult problem.

All these attributes existed in the English model, therefore in the traditions and recollections of every member of the Convention. In that wonderful product of time, the English Executive, the person to hold the highest social and political rank in the nation, is chosen by law, so that the dangers of a popular election or of the designs of aspiring ambition are avoided. But this person, however important his functions, is scarcely a monarch, for he has no responsibility and but little power. "The king can do no wrong, cannot even intend a wrong." This is the maxim which lies at the foundation of the modern English throne. The meaning of the principle is,

not that the king is incapable of an immoral act, but that, as the law professes to offer a remedy for every wrong, and as the king could hardly be punished without causing a civil war, he is exempted from the penalties of the law. But if the king can do no wrong, his advisers may, and without incurring a like risk, may be made responsible. To impose responsibility without bestowing power, would be unjust, would be impossible. Power and responsibility have thus fallen to the ministers of the Crown; and who are those ministers? Members of the Legislature, holding office only so long as they are sustained by a majority of the Legislature; in other words, by the enlightened public opinion of the nation. The English Executive therefore is monarchical without arbitrary power and republican without being elective. It is unique; a genuine outgrowth of English character. It is a product of the whole past of the nation, its labors, struggles and dangers, aspirations and achievements through the centuries, and its elements may be traced up through the history of the people to feudalism, to Saxon Arthur and Alfred, nay to their German ancestors described by Tacitus, as in the acorn may be found a miniature picture of the future oak.

The irresponsibility of the Crown and the responsibility of its ministers were established as maxims of the British Constitution by the Revolution of 1688. The principle, asserted before, was confirmed and strengthened by that revolution, and the exclusive power of ministers in all important measures soon followed as a necessary consequence. In the early ages of the Government, the functions of the Executive and the Legislature were not accurately divided, as they never are among a rude people. The monarchy was first feudal, and a struggle arose between the Barons and the King, in which the former obtained Magna Charta, the great organic law of English liberty. As commercial wealth increased, the House of Commons acquired importance, and the contest for power was between that body and the King. In the Revolutions of 1645 and 1688, the House of Commons gained the victory, its supreme authority in the Government was established, and Hume says that "the share of power allotted to it is so

great that it absolutely commands all other parts of the Government." Such, therefore, was the condition of the English Executive at the time our Constitution was made. Its essential feature was subordination to the Legislature, for the ministry was and is the real Executive power.

The Convention that made our Constitution were obliged to invent an Executive department, a machine, so to speak, by which the Executive authority, essential to every Government, could be applied. In this as in all other things, the English Constitution was necessarily their model. They could have no other, for the customs and ways of thinking of England were theirs also. Whatever in the English plan of Government was unsuited to their condition, they discarded or altered, but they adhered to it and its principles so far as they could, under the new circumstances in which they were placed. They were about to make an organic law for the Government, superior to it and controlling it, as the act and will of the people. They were about to make a written Constitution, and they could have no other model than the unwritten Constitution of England or the custom of the realm in political law. They adopted it, except in parts which they intentionally altered, just as they necessarily and for the same reason adopted the common law. Psychologically it was impossible for them to do otherwise, for they brought these customs with them to this country in their minds, memories, hearts and traditions. The analogy between our law and that of England is genetic and cannot be overlooked, and the true rule of interpretation is to consider them the same, unless expressly or impliedly altered, because unsuited to our circumstances. It is simply a truth of mental science that such must have been the intention of the law-makers. The Constitution was the embodiment of their thought, and that of the people for whom it was made and who accepted it. Not the civil law but the common law, not French, Austrian or Turkish ideas of government, but English ideas were in their minds, because English blood ran in their veins.

A short time, little more than seventy years,—most of them years of peace and prosperity,-have elapsed, and a crisis has

arisen which is to test the workmanship of the Convention in the Executive power of the Government, as it is testing the Union which they intended to consolidate and make perpetual. Two vital questions have arisen, involving the very ends and purposes of this Government and all Governments: what is the power of the Executive to defend the nation from the dangers of civil or foreign war? and what is the security afforded by law for the personal liberty of the citizens? It seems that both these questions are doubtful, for both are doubted. The President has caused many persons suspected of treasonable designs or practices to be arrested and detained in confinement, suspending the privilege of the writ of Habeas Corpus by his sole authority. Congress has acquiesced and so have the people, for the necessity was urgent and obvious, and the confidence which Mr. Lincoln has inspired is so great and so general, that few are willing to censure acts which all know to be prompted by pure motives and a high sense of duty.

But this general consent is not law, though it may create a precedent which hereafter may become law. The legality of the President's course has been made the subject of much discussion, and different views of it have been taken by men whose opinions are entitled to respect. The Attorney-General, Judge Parsons, Professor of Law at Cambridge, Mr. Binney and others have made elaborate arguments, all different, some of them conflicting. It is therefore plain that the Executive machine constructed by the Convention does not work well, that it puts great interests and essential principles in jeopardy, that it is not clearly understood by those who have to manage it. It is a portion of our Constitution that is new, and therefore has to be tried and construed, and out of that trial and interpretation must grow a rule of conduct for the future. Seeing that things so momentous as national existence and personal liberty are involved, the subject demands a calm and dispassionate consideration, free not only from party bias, but from the exciting influences of even such a war as now disturbs the country.

The question is, which department of the Government has the authority to suspend the privilege of the writ of Habeas Corpus? The Constitution does not say. We must, therefore, be guided to a conclusion by some rule of interpretation. According to the principles above stated, we should inquire first, what is the law of England? secondly, what alteration in it has the Constitution expressly or impliedly made? and thirdly, if there be still room for doubt, what ought now to be established by precedent as the law for this country in the future?

Freedom is the birthright of Englishmen, because the love of it is an essential, inherent characteristic of their race and of theirs only. Out of this attribute of the Saxon nature grew the liberty of the English Constitution. Its free principles existed before the Norman conquest. Magna Charta, the keystone of English liberty, was merely an assertion of ancient but violated rights. During the subsequent struggle under the Norman kings, the confirmation of the Great Charter was the trophy of victory gained by the people over royal power and the price of every concession made by them to it. The laws of the Saxon Edward the Confessor, the civil rights of the people before Norman rule, lived in the heart of the nation, and the Great Charter did not create or bestow them, but declared them. The Petition of Right in 1626, the Bill of Rights in 1688, were nothing more than solemn and formal confirmations of the principles of Magna Charta, violated by a tyrannical and perfidious king, and the declaration of rights, which was the foundation of the Bill enacted by Parliament on the accession of William and Mary, concludes with these words: "And they (the Lords and Commons) do claim, demand and insist upon all and singular the premises, as their undoubted rights and liberties:" and the act of Parliament recognizes "all the rights and liberties confirmed in the said declarations to be the true, ancient and indubitable rights of the people of this Kingdom." Thus says Hallam:* "The

* 3 Constitutional History, 140. 1 Blackstone's Comm., 128.