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Constitutional Law

ART. V.—The Executive Power of the United States.  A Study of Constitutional Law.  By ADOLPH DE CHAMBRUN.  From the French.  By Mrs. MADELEINE VINTON DAHLGREN.  Lancaster, Pa.: Inquirer Printing and Publishing Co.  16mo, pp. 288.  1874.  Taken from Brownson’s Quarterly Review.  Last Series—Vol. II, No. III, July, 1874, pp. 376-389.

THIS is a work written originally in French, by an intelligent French nobleman, the Marquis de Chambrun, resident in some official capacity, we believe, for several years at Washington, D.C., and who has devoted much of his time and attention to the careful study of the constitution and working of the American government.  He intends the public the result of his studies and observations in four volumes, of which the present volume on the Executive Power is the first.  M. de Chambrun writes, no doubt, with primary reference to the instruction of his own countrymen in the crisis France is now passing through, and to indicate to them what in our constitution and example may be prudently imitated, and what should be carefully avoided, whether the Republic is to be definitively established, or monarchy in some form is to be restored.  He is in general correct in his statements and appreciations, showing that he has really studied our political institutions, and understands them far better than all but a few among ourselves understand them; and his observations are usually wise and just, and prove that he has studied politics as a science. 

M. de Chambrun understands well that the same constitution of government is not adapted alike to all nations, and he does not, while he evidently has no anti-republican prejudices, seem to regard, like so many of our own countrymen, the fact that a nation is not in the condition that makes the republican form the best possible form of government for it, as a proof that it is inferior or less advanced in civilization.  We do not think that a republican form of government is adapted to any European nation, but it would be a great mistake to suppose, because it is adapted to us, that we stand at the top of the scale of civilization, in any current sense of the word.  Political propagandism is a folly and a crime, whether attempted peaceably or forcibly.  Providence gives to each nation, not miraculously, or by direct supernatural intervention, unless in the case of the chosen people, but in its ordinary operations, and by the agency of second causes, the political constitution best fitted to its genius, its wants, and its destiny, and it is a crime and a sin to attempt to subvert it whether from without or from within.  Abuses may be reformed, but the revolutionizing of a government, or the destruction of an existing constitution of a nation even for the purpose of introducing a new and better one, has, in no instance on record, failed to make matters worse, and ultimately to cause the nation’s death.  The folly as well as criminality of seeking to meliorate the political and social condition of a people, or to advance civilization by revolution, is abundantly proved by the century of revolution not yet closed in Europe.  Something may sometimes perhaps be gained by the violent change in the person of the ruler, by the violent change of the constitution, nothing.

The author notes several provisions in the constitution of the Executive Power that have a most happy effect with us that would be either impracticable or disastrous in his own country.  In his exposition of the powers of the executive he follows the Federalist and the best authorities on the subject, and his statements may be relied on as correct.  He approves that feature in the constitution which establishes the unity of the executive, and makes the President alone responsible for his administration.  This is a feature we ourselves are apt to overlook.  We forget that our constitution knows no responsible ministers, and speak of the president’s secretaries as his “constitutional advisers,” as “cabinet ministers,” and as “the cabinet.”  The secretaries are simply the president’s clerks, and he is as responsible for their acts, constitutionally, as a merchant is legally for the acts of his agents.  The only thing in the constitution apparently in conflict with this complete responsibility of the President is the restriction placed on his appointing power by the necessity of the confirmation of his appointments by the Senate.  A still farther deviation from the theory of a single responsible executive head was attempted in the law that makes the consent of the Senate necessary to removal from office.  Each is a restriction on the administrative power of the President, and to that extent relieves his official responsibility.

The author very clearly perceives that the election of the President by electors elected in the several States by the people is a piece of useless machinery, for the popular election as effectually decides who is to be president as it would if the people voted directly for president without any intervention of the electoral colleges.  In theory the electoral colleges are independent, and have the right to elect whom they please, whether popularly designated or not; but in practice they have no independence or discretion in the matter, but must give their suffrages to the candidate of the party which has elected them.  We agree with the author that a change in the constitution abolishing the electoral colleges and permitting the people to vote directly for president would clear away a practical absurdity, and make theory conform to fact; but we do not agree with him, and some of our own politicians, that the change would tend to break up the caucus system, to weaken the tyranny of party, or to enlarge the freedom of choice of the voters.  There would remain the same motive for party organization as now, and as strong a reason for a caucus nomination, and perhaps a still stronger reason when the people of the several States vote directly for president, as when they vote for electors.   The electors count for nothing with the people in the presidential election, and it is not to elect them, but the candidate of the party for president, that party machinery is invented and employed. 

We have ourselves, in common with many of our countrymen, declaimed against the strict party organization which obtains among us, the caucus system, embracing in its ramifications, town, county, State, and nation, and establishing a party tyranny which few have strength of mind, or of character, enough to break through, and reducing the freedom of the citizen, in politics, to a choice between two or at most three parties and their respective candidates; yet we are forced to admit that this is a necessity of all popular governments.  What is called self-government would otherwise be absolutely impracticable.  If every elector were free to vote for any one according to his own individual judgment and choice, there would and could be no election at all.  The majority have no opinions or judgment, of their own, and are incapable by themselves of forming any.  The bulk of mankind are born to be led, and can only follow their chiefs, the few born to lead, or who contrive to usurp the place of natural-born leaders.  Nothing is or can be further from the truth than the assumption of the natural equality of all men.  The first family, the first school we visit, the first crowd in which we mingle, belies it.  One leads, is ring-leader, the rest follow.  No training or equality of education can make it otherwise.  We in this country are doing our best by our common schools to create and preserve an equality which nature nowhere provides for, and succeed only in bringing all down to a low level of intelligence, yet with us, more than elsewhere, the many follow, the few lead.  Go into any of your State Legislatures, and you will find all the members, except some three or four, simply lay figures.  All men have by the law of nature equal rights, and in this sense the natural equality of all men is a truth, but in no other sense.  Hence the democratic form of government is of all possible forms the most unnatural, the least in accordance with the natural capacities, dispositions, and tendencies of the race, and it becomes a practicable government only when it is neutralized by party organization, party machinery, and party discipline, enforced by appeals to men’s selfishness, ambition, or greediness.

The original, and so to speak, the natural form of government, is the patriarchal, and deviation from it, the exchange of the family for the city or state, however constituted, marks a social deterioration.  Hence civilization, in this its etymological sense, from civitas, city or state, is really a fall, not, as commonly held, a progress.  The builders of cities, that is, the organizers of civil governments in contradistinction from the original patriarchal regime, are not regarded with favor by the sacred writers, and the mightiest of them are treated as enemies of the Lord.  They are Cushites, an accursed race, among whom originated idolatry and the great Gentile apostasy.  There can be little doubt that the introduction of the political order instead of the patriarchal, was the first step toward Gentilism, and was the font of rebellion against the natural and divine constitution of society.  It placed politics in the thoughts and affections above religion, the service of the state above the service of God, the statesman above the priest, and the military hero above the saint.

But to return from this digression.  The experience of every popularly constituted government proves that a resort to party organization and party discipline is absolutely necessary.  In Great Britain, where the three Estates constitute, theoretically, the government, politics are an affair of party, especially since the power has effectively passed into the hands of the Commons.  We foolish Americans talk about and declaim against the British aristocracy, and do not seem to be aware that the Commons, not the aristocracy, govern, that the Commons have become the nation, and are no longer a simple Estate.  Against the Commons, the king or queen and the House of Lords are powerless.  The British government is, in fact, as democratic as the American, and the nobility have less influence on its policy and legislation than have bankers, manufacturing corporations, and great railway companies on ours.  In Great Britain as in the United States the industrial or business interests shape the action of the government.  Well, in Great Britain the parties are organized under party chiefs, and elections are simply a struggle between the ins and the outs.  Mr. Gladstone, the chief of one party, is defeated, goes out, and Mr. D’Israeli comes in.  A third party may be organized like the Home Rulers, and if the two parties are pretty nearly equal it may throw out the government, but can carry none of its measures without forming a coalition with the one or the other of the two old parties, and the coalition, if formed, will be negotiated by the recognized chiefs of the parties, whose agreement the members are expected to observe; for any member to bolt would be his disgrace and political death.

In our country the same system of acting politically through party organizations obtains, only more systematically developed and rendered more complete and stringent.  Here the individual is merged in the party, and his entire freedom consists in choosing his party, and in voting for one of two candidates, neither of whom, it may be, does he approve.  In 1868, my freedom of voting was reduced to a choice between General Grant and Horace Greeley, neither of whom in my judgment, was fit for the office for which he was a candidate; and so I voted not at all.  Practically, I was deprived of my right of suffrage.  Yet were there no party organization, and men felt no attachment to party and under no obligation to vote for its nominees, or no efforts were made by party leaders or managers to bring out voters and concentrate their votes, comparatively very few free and independent citizens would take the trouble to go to the polls, and the persons voted for would be nearly as numerous as the persons voting.  No one would have a majority, and there would be no choice, no election.  Even with all our party machinery and party efforts, experience proves that it is seldom practicable to secure an absolute majority for a candidate, and most of the States provide that a plurality—often a small minority of the freemen voting, and still minority of electors registered—shall elect.  The Marquis de Chambrun does not exaggerate the evils of the party-spirit, party machinery, or party tyranny, but we regard them as inevitable under our form of government, or any government depending largely on popular suffrage.  Universal suffrage and eligibility are high-sounding words, but they must be made in some way or by some means to count for nothing in practice, or the business of government cannot go on.  Whether the advantages secured by popular elections, controlled by irresponsible party leaders, are an adequate compensation for the evils of party-spirit and party tyranny is a question we are not called to decide.  We only know this, that no man rising far if at all above mediocrity can be elected to any important position by popular suffrage.  It is only the light weights that win.  There is not, so far as we are aware, a single first-class man in office, executive, legislative, or judicial, in State or nation.  Perhaps we have no first-class men in the nation.  Democracy, as the late Fenimore Cooper, himself a democrat, asserted, has an inevitable tendency to bring all down to a common average.  The debates on finance and currency questions, the absorbing questions at present in the country, which have been going on for months, both in and out of Congress, betray an ignorance, a shallowness, and narrowness of mind, a weakness of intellect, and a deficiency of intelligence that is by no means encouraging to the advocates of democracy.  The only speech that has been made in the Senate of the United States during the present session, which rises at all to the level of the subject, was made by a naturalized citizen, who did not receive his training in Democratic America or under democratic influences.  We have not been in the habit of regarding Carl Schurz as a man of the first eminence, and yet beside him, your Grants, Mortons, Logans, butlers, Boutwells, Richardsons, and Ferrys are mere pigmies, in matters of finance and currency.

The author makes the mistake almost universal with our own countrymen, that of assuming that sovereignty with us is vested in the inorganic people, or the people regarded solely as population.  Such is not the fact.  Sovereignty with us vests in the organic people, in the people organized and existing as States, and States united, as I have shown at length and I think conclusively in my “American Republic.”  This fact was overlooked by both the parties that met in mortal conflict in our late civil war, and it is only on the ground here assumed that the Federal government had or could have nay right to treat the Confederates as rebels, or the Supreme Court could declare the war between the Union and the Confederacy “a territorial civil war.”  It would have been, if the sovereignty vested in the inorganic people, to all intends and purposes a foreign war, or a war between two independent sovereign powers.  The Federal government blundered from beginning to end during the war, and in its methods of reconstruction since.  At first it treated secession as an insurrection against the State governments, although it was the State governments themselves that headed it.  It defended its right to interfere and put it down under that clause of the constitution which authorizes the Federal government to suppress insurrections in a State.  Afterwards, it treated it as an insurrection and rebellion against the Union, which it could not be, unless the Union was sovereign.  But the Union is a union of States, and was not and could not be sovereign, if the sovereignty vested in the inorganic people, or the people back of all political organization.  The people, then, if such were the case, owed it no allegiance, and therefore could not rebel against it.  The people of the Southern States, therefore, in seceding from it could commit no offence against it, for they were only exercising their sovereign right.  If there was any right on the part of the Union to coerce them into submission, the Union must be sovereign, and then sovereignty with us must vest in the Union, that is, in the States united, not in the inorganic people nor in the States severally.

We maintain, and have always, except for a brief moment, before we had fully investigated the question, that the States had a right to secede, if they chose: the same right that a sovereign has to abdicate; but we denied, and deny, that by seceding they became independent states, or territory independent of the United States.  By seceding they lost their sovereign rights, which are held only in the Union, and became simply people and territory subject to the Union.  They ceased to participate in the national sovereignty, and simply came under it, and therefore became criminals when they resisted it, and rebels when they made war against it.  The Federal government committed the blunder of supposing that the several States who hold the national sovereignty in solido and who in reality are it, were under it, and subject to its authority, and the farther blunder of holding that the States seceded remained sovereign states in the Union, because, forsooth, secession was an illegal act, and therefore null; and yet were at the same time out of the Union, and subject to it.  The secessionists were wrong, we hold, in their doctrine that sovereignty with us vests in the States or the people of the States severally, but granting that their whole proceeding was logical and justifiable, unless the possible there was, in some instances, a breach of faith.  But the Federalists, on any ground they took, were self-contradictory, logically and legally indefensible.  Some three or four members of Congress understood the question, but they were lost in the dense fog that enveloped the rest, the administration, and the people.  The military on both sides did credit to themselves, when not led by civilians nor thwarted by the civil authorities; but the Northern politicians, from the President and the Secretary of State down, only proved their ineptness—that a man may be a respectable country attorney, without being a constitutional lawyer, or a statesmen.  But what is to be expected of shopkeepers, manufacturers, bankers, brokers, and their factors?

The author states very truly the powers of the executive, and while he shows that his independence is sufficiently protected against any encroachment of the other departments of the government, he apprehends no danger of his usurping, to any serious extent, powers not confided to him by the written constitution.  In this we believe him right.  The former clamor, in old Whig times, against the “one man power,” and the present cry about the danger of “Caesarism,” raised by the N. Y. Herald and other sensation journals, we regard as both senseless and mischievous.  Every government needs a strong and efficient executive.  The executive patronage is very great, but it is in the hands of the politicians of his party, and the President himself, of his own free-will, can hardly appoint a tide-waiter, though responsible for the conduct of all Federal appointees.  The greatest danger the republic runs is undoubtedly in this executive patronage, but the party, not the President, shares the power it gives.  The offices are all farmed out among the delegates of the party in Congress from each State.  The congressional delegation recommend to the executive the persons they want appointed, and, though the President is theoretically free to reject the persons so recommended, yet practically he is obliged to appoint them.  President Grant, when he came into office, attempted to assert his independence of the politicians, and to follow his own judgment and inclinations in his appointments, and if he had been a man of a wider acquaintance, of broader views, keener sagacity, and sounder judgment, he possibly might have done something to emancipate the executive from its thralldom to the politicians in as well as out of Congress.  But his knowledge of men suitable to fill the offices at his disposal, was so limited, his individual tastes were so low and so little refined, that after appointing his and his wife’s personal relatives and friends, and such persons as had made him presents, he broke down, and was obliged to surrender to the politicians at discretion.  The members of Congress confine themselves each to the recommendations of citizens of his own State, and to residents of his own district, except that Senators have the bestowal of the patronage of districts represented by members of the opposing party.  These members in their recommendations rarely raise the question of fitness or consult the public good, but look solely to their own interest, and recommend only those who can best serve them in their respective districts, or such as they are under obligations to for having aided their election.

The consequence of this practical distribution of executive patronage among the members of Congress attached to the party in power is to embarrass and waken the real power of the executive, to intensify party feeling, and to envenom the struggle between the outs and the ins—to cause the public interest to be lost sight of, and to make politics an affair mere private interest.  Public spirit, public good, public duty, are words which one sometimes hears, but which must not be supposed to mean anything.  Elections become venal, and venal are the legislative bodies elected.  Congress itself has become venal, and most of our State legislatures, if not greatly belied, are purchasable at a moderate price.  What better is to be expected when citizens have lost all public spirit, if they ever had any, and seek to fill the offices of government only for their own private advantage?

The evil is so great, and threatens the stability of the Republic; but we see no political remedy for it, and regard it as inevitable in a popular government.  The law passed under President Johnson’s administration making the assent of the Senate necessary to removal in all cases where it is necessary to appointment to office, and which has been but partially repealed, serves only to embarrass the executive without in the least checking the scramble for office.  The Civil Service bill, so strenuously insisted on by our political reformers could not, if enacted, be carried out.  Competitive examination is usually a farce, and any measure that would give the office-holder a permanent tenure of his office, would be resisted by the office-seekers, a far more numerous body.  We have adopted two maxims, “To the victor belong the spoils” and “Rotation in office”—the last the most mischievous maxim that can be easily imagined.  As long as these two maxims are cherished by the people, there is no practicable remedy for the evil we have pointed out.  Reforms in politics seldom fail to aggravate the evils they are intended to redress, as we see in our attempted municipal reforms.  The reformers placed in office are usually worse than those they supplant.

The noble author sees very clearly that some of the best features of our system of government are not imitable elsewhere.  Our Federal system, for instance, which divides, not the sovereignty, as so many imagine, but the exercise of the powers of government between a General government and particular or local State governments, all in their respective spheres coordinate and mutually independent, he sees, what so many do not see, is impracticable in any European state.  The necessary conditions of such a Federal systems are wanting in very country of the Old World; and where they are wanting in the providential constitution of a country no human power can create them.  The real living constitution of a state does not originate in convention, but is the workings of Providence.  The convention may impair it, may wholly destroy it, and with it the national life, but it cannot create it where it does not exist, or revive it when once lost.  The North German Confederation, or the present German Empire so-called, is not a Federal state in the American sense, not indeed because its chief magistrate is called Emperor and is hereditary instead of being elective, but because the several states were, prior to the federation, independent states, and the federation is really their forced absorption in Prussia, or if not, it is only an alliance or league of independent states, without organic unity.  The attempt of the revolutionists of Spain to create a Federal Republic or Federal state must prove a failure, because the several provinces were originally independent states without any political bond of unity, and they dissolve into their original elements the moment the central authority which has through the action of centuries subjected them, and in which alone they made one, is removed.  Unity is not in the original constitution of what we call Spain.

But with us there is at once national unity and State diversity.  The unity is not a union formed by the agglomeration of parts, but is as original as the diversity itself.  The diversity, again, is not derived from or created by the unity, but is as old, as original as the unity.  The nation, so to speak, was born one in many and many in one.  The States united were never independent states, as the states united the German Kaiser, or as were Castile and Aragon, in Spain.  They were never complete states with all the rights and powers of independent sovereign nations.  They were dependent, prior to the Revolution, on the English crown, and since the Revolution they have sovereign powers or political rights only as States in the Union.  The American state is one and sovereign, but the exercise of its sovereign powers is divided between the General government and local State governments, neither of which is complete in itself or without the other; but both depend on the convention, or union of all the States which represents at once the national unity and State diversity, and in which, not in the inorganic people, not in the States’ organisms severally, nor the General government, is vested the national sovereignty.

This is not the view commonly taken by American constitutional lawyers, we admit, and is not clearly understood by the bulk of the people.  One class of our statesmen hold that the colonies, on gaining their independence of Great Britain, become ipso facto independent states, and have remained so.  With them the Union is a league or confederation.  Another class agree with this class that the colonies on gaining their independence of the mother country became severally independent states, and have remained so till the ratification of the Federal constitution of 1787, when State sovereignty was, to a certain extent, merged in the Union, and the States became one political people, by the surrender to the Union of a portion of their sovereignty.  The first class are consistent enough with themselves, though perhaps not with all the facts in the case, but they lose national unity, and make of the American people, politically, as many nations as individual states.  The other class forget that sovereignty is indivisible and inalienable, and that it is not and cannot be founded in compact or agreement, created or instituted where it has no previous existence.  If the States were ever severally sovereign, they are so still, unless subjected by another state, and the American people have, as a whole, no national unity, are not politically one people.  Yet, though distinct colonies, they were one people before independence, and owed allegiance to one and the same sovereign. 

The danger we run is not from Caesarism, or the usurpation of power by the executive, but from the usurpation of power over the States by the General government.  They party in power can hardly persuade “themselves that the States that seceded, even now they are reconstructed, stand on a footing of equality in the Union with the States that did not secede.  They hold them to be in some sense conquered territory, over which the General government is sovereign by the right of conquest.  They do not recognize them as equal participants in the national sovereignty, and, under pretext of protecting the freedmen, they assume for Congress the rights and powers of sovereignty, not only over them, but, in principle, over all the States.  If the party should remain in power much longer, the real relation between the several State governments and the General government, already lost sight of in the case of the reconstructed States, would be lost sight of in the case of all the States, and the General government, which is a government of limited and express powers, would become de facto the supreme and unlimited national government.  The tendency in this direction is fearfully strong, and there seems to be no party in the country sufficiently united, with the requisite strength and courage, to oppose to it any effectual resistance.  The only chance of deliverance would seem to be in the discredit the party, by its frauds, jobberies, and corruption, is bringing upon itself.  It has become quite reckless, and its recklessness is not unlikely to ruin it, and enable the country, if there shall be any virtue remaining in the people, to replace the government on its constitutional track.

We have attempted no analysis of the work before us.  We have only taken a few points from it, as texts for some remarks of our own.  Our readers, however, may be assured that the book is one of rare merit, written in clear, simple, and pleasing style, rich with information and just political thought, and throwing more light on the constitution of the American Executive than any other work we are aware of, not excepting De Tocqueville’s admirable work, “Democratie en Amerique.”  It can be read with as much profit by Americans as by foreigners.  We most cordially recommend it to the public as the work of an author who has thoroughly studied and mastered the subject on which he writes.

We may add that the Marquis has been exceedingly fortunate in securing for his work a competent translator.  The work is really translated into English, not simply “done out of French into no language.”  It does not read as a translation, but as an original English work, and we presume, suffers little in being transferred from the author’s native language to ours.  Madame Dahlgren must have found the work much to her taste, and have translated it con amore.  The translation proves her to be a mistress of both languages.  It is, we can vouch for it, without having seen the original, faithful, exact even, free, fresh, chaste, and graceful, what we had a right to expect from the accomplished translator of that most eloquent and profound Essay on Catholicity, Liberalism, and Socialism, by the late lamented Donoso Cortes, the Marquis de Valdegamas.  It requires genius, as well as learning and taste to be a good translator of a work of genius from one language to another, and that has, in no small measure, Mrs. Madeline Vinton Dahlgren.