Читать книгу The American Commonwealth - Viscount James Bryce - Страница 18

CHAPTER 5

The President

Everyone who undertakes to describe the American system of government is obliged to follow the American division of it into the three departments—executive, legislative, judicial. I begin with the executive, as the simplest of the three.

The president is the creation of the Constitution of 1789. Under the Confederation there was only a presiding officer of Congress, but no head of the nation.

Why was it thought necessary to have a president at all? The fear of monarchy, of a strong government, of a centralized government, prevailed widely in 1787. George III was an object of bitter hatred: he remained a bogey to succeeding generations of American children. The Convention found it extremely hard to devise a satisfactory method of choosing the president, nor has the method they adopted proved satisfactory. That a single head is not necessary to a republic might have been suggested to the Americans by those ancient examples to which they loved to recur. The experience of modern Switzerland has made it still more obvious to us now. Yet it was settled very early in the debates of 1787 that the central executive authority must be vested in one person; and the opponents of the draft Constitution, while quarrelling with his powers, did not accuse his existence.

The explanation is to be found not so much in the wish to reproduce the British Constitution as in the familiarity of the Americans, as citizens of the several states, with the office of state governor (in some states then called president) and in their disgust with the feebleness which Congress had shown under the Confederation in its conduct of the war, and, after peace was concluded, of the general business of the country. Opinion called for a man, because an assembly had been found to lack promptitude and vigour. And it may be conjectured that the alarms felt as to the danger from one man’s predominance were largely allayed by the presence of George Washington. Even while the debates were proceeding, everyone must have thought of him as the proper person to preside over the Union as he was then presiding over the Convention. The creation of the office would seem justified by the existence of a person exactly fitted to fill it, one whose established influence and ripe judgment would repair the faults then supposed to be characteristic of democracy, its impulsiveness, its want of respect for authority, its incapacity for pursuing a consistent line of action.

Hamilton felt so strongly the need for having a vigorous executive who could maintain a continuous policy, as to propose that the head of the state should be appointed for good behaviour, i.e., for life, subject to removal by impeachment. The proposal was disapproved, though it received the support of persons so democratically minded as Madison and Edmund Randolph; but nearly all sensible men, including many who thought better of democracy than Hamilton himself did, admitted that the risks of foreign war, risks infinitely more serious in the infancy of the Republic than they have subsequently proved, required the concentration of executive powers into a single hand. And the fact that in every one of their commonwealths there existed an officer in whom the state constitution vested executive authority, balancing him against the state legislature, made the establishment of a federal chief magistrate seem the obvious course.

Assuming that there was to be such a magistrate, the statesmen of the Convention, like the solid practical men they were, did not try to construct him out of their own brains, but looked to some existing models. They therefore made an enlarged copy of the state governor, or to put the same thing differently, a reduced and improved copy of the English king. He is George III shorn of a part of his prerogative by the intervention of the Senate in treaties and appointments, of another part by the restriction of his action to federal affairs, while his dignity as well as his influence are diminished by his holding office for four years instead of for life.¹ His salary is too small to permit him either to maintain a court or to corrupt the legislature; nor can he seduce the virtue of the citizens by the gift of titles of nobility, for such titles are altogether forbidden. Subject to these precautions, he was meant by the Constitution-framers to resemble the state governor and the British king, not only in being the head of the executive, but in standing apart from and above political parties. He was to represent the nation as a whole, as the governor represented the state commonwealth. The independence of his position, with nothing either to gain or to fear from Congress, would, it was hoped, leave him free to think only of the welfare of the people.

This idea appears in the method provided for the election of a president. To have left the choice of the chief magistrate to a direct popular vote over the whole country would have raised a dangerous excitement, and would have given too much encouragement to candidates of merely popular gifts. To have entrusted it to Congress would have not only subjected the executive to the legislature in violation of the principle which requires these departments to be kept distinct, but have tended to make him the creature of one particular faction instead of the choice of the nation. Hence the device of a double election was adopted, perhaps with a faint reminiscence of the methods by which the doge was then still chosen at Venice and the emperor in Germany. The Constitution directs each state to choose a number of presidential electors equal to the number of its representatives in both houses of Congress. Some weeks later, these electors meet in each state on a day fixed by law, and give their votes in writing for the president and vice-president.² The votes are transmitted, sealed up, to the capital and there opened by the president of the Senate in the presence of both houses and counted. To preserve the electors from the influence of faction, it is provided that they shall not be members of Congress, nor holders of any federal office. This plan was expected to secure the choice by the best citizens of each state, in a tranquil and deliberate way, of the man whom they in their unfettered discretion should deem fittest to be chief magistrate of the Union. Being themselves chosen electors on account of their personal merits, they would be better qualified than the masses to select an able and honourable man for president. Moreover, as the votes are counted promiscuously, and not by states, each elector’s voice would have its weight. He might be in a minority in his own state, but his vote would nevertheless tell because it would be added to those given by electors in other states for the same candidate.

No part of their scheme seems to have been regarded by the Constitution-makers of 1787 with more complacency than this,³ although no part had caused them so much perplexity. No part has so utterly belied their expectations. The presidential electors have become a mere cog-wheel in the machine; a mere contrivance for giving effect to the decision of the people. Their personal qualifications are a matter of indifference. They have no discretion, but are chosen under a pledge—a pledge of honour merely, but a pledge which has never (since 1796) been violated—to vote for a particular candidate. In choosing them the people virtually choose the president, and thus the very thing which the men of 1787 sought to prevent has happened—the president is chosen by a popular vote. Let us see how this has come to pass.

In the first two presidential elections (in 1789 and 1792) the independence of the electors did not come into question, because everybody was for Washington, and parties had not yet been fully developed. Yet in the election of 1792 it was generally understood that electors of one way of thinking were to vote for Clinton as their second candidate (i.e., for vice-president) and those of the other side for John Adams. In the third election (1796) no pledges were exacted from electors, but the election contest in which they were chosen was conducted on party lines, and although, when the voting by the electors arrived, some few votes were scattered among other persons, there were practically only two presidential candidates before the country, John Adams and Thomas Jefferson, for the former of whom the electors of the Federalist party, for the latter those of the Republican (Democratic)⁴ party were expected to vote. The fourth election was a regular party struggle, carried on in obedience to party arrangements. Both Federalists and Republicans put the names of their candidates for president and vice-president before the country, and round these names the battle raged. The notion of leaving any freedom or discretion to the electors had vanished, for it was felt that an issue so great must and could be decided by the nation alone. From that day till now there has never been any question of reviving the true and original intent of the plan of double election. Even in 1876 the suggestion that the disputed election might be settled by leaving the electors free to choose, found no favor. Hence nothing has ever turned on the personality of the electors. They are now so little significant that to enable the voter to know for which set of electors his party desires him to vote, it is often thought well to put the name of the presidential candidate whose interest they represent at the top of the voting ticket on which their own names are printed. Nor need this extinction of the discretion of the electors be regretted, becase what has happened in somewhat similar cases makes it certain that the electors would have so completely fallen under the control of the party organizations as to vote simply at the bidding of the party managers. Popular election is therefore, whatever may be its defects, a healthier method, for it enables the people to reject candidates whom the low morality of party managers would approve.

The completeness and permanence of this change has been assured by the method which now prevails of choosing the electors. The Constitution leaves the method to each state, and in the earlier days many states entrusted the choice to their legislatures. But as democratic principles became developed, the practice of choosing the electors by direct popular vote, originally adopted by Virginia, Pennsylvania, and Maryland, spread by degrees through the other states, till by 1832 South Carolina was the only state which retained the method of appointment by the legislature. She dropped it in 1868, and popular election now rules everywhere, though any state may go back to the old plan if it pleases.⁵ In some states the electors were for a time chosen by districts, like members of the House of Representatives. But the plan of choice by a single popular vote over the whole of the state found increasing favour, seeing that it was in the interest of the party for the time being dominant in the state. In 1828 Maryland was the only state which clung to district voting. She, too, adopted the “general ticket” system in 1832, since which year it was universal until 1891, when Michigan reverted to the district system, the party then dominant in her legislature conceiving that they would thereby secure some districts, and therefore some electors of their own colour, although they could not carry the state as a whole.⁶ (This in fact happened in 1892). Thus the issue comes directly before the people. The parties nominate their respective candidates, as hereafter described (Chapters 69 and 70), a tremendous “campaign” of stump speaking, newspaper writing, street parades, and torchlight processions sets in and rages for about four months: the polling for electors takes place early in November, on the same day over the whole Union, and when the result is known the contest is over, because the subsequent meeting and voting of the electors in their several states is mere matter of form.

So far the method of choice by electors may seem to be merely a roundabout way of getting the judgment of the people. It is more than this. It has several singular consequences, unforeseen by the framers of the Constitution. It has made the election virtually an election by states, for the system of choosing electors by “general ticket” over the whole state causes the whole weight of a state to be thrown into the scale of one candidate, that candidate whose list of electors is carried in the given state.⁷ In the election of 1884, New York State had thirty-six electoral votes. Each party ran its list or “ticket” of thirty-six presidential electors for the state, who were bound to vote for the party’s candidate, Mr. Blaine or Mr. Cleveland. The Democratic list (i.e., that which included the thirty-six Cleveland electors) was carried by a majority of 1,100 out of a total poll exceeding 1,100,000. Thus, all the thirty-six electoral votes of New York were secured for Mr. Cleveland, and these thirty-six determined the issue of the struggle over the whole Union, in which nearly 10,000,000 popular votes were cast. The hundreds of thousands of votes given in New York for the Blaine or Republican list did not go to swell the support which Mr. Blaine obtained in other states, but were utterly lost. Hence in a presidential election, the struggle concentrates itself in the doubtful states, where the great parties are pretty equally divided, and is languid in states where a distinct majority either way may be anticipated, because, since it makes no difference whether a minority be large or small, it is not worth while to struggle hard to increase a minority which cannot be turned into a majority. And hence also a man may be, and has been,⁸ elected president by a minority of popular votes.

When such has been the fate of the plan of 1787, it need hardly be said that the ideal president, the great and good man above and outside party, whom the judicious and impartial electors were to choose, has not been secured. The ideal was realized once and once only in the person of George Washington. His successor in the chair (John Adams) was a leader of one of the two great parties then formed, the other of which has, with some changes, lasted down to our own time. Jefferson, who came next, was the chief of that other party, and his election marked its triumph. Nearly every subsequent president has been elected as a party leader by a party vote, and has felt bound to carry out the policy of the men who put him in power.⁹ Thus instead of getting an Olympian president raised above faction, America has, despite herself, reproduced the English system of executive government by a party majority, reproduced it in a more extreme form, because in England the titular head of the state, in whose name administrative acts are done, stands in isolated dignity outside party politics. The disadvantages of the American plan are patent; but in practice they are less serious than might be expected, for the responsibility of a great office and the feeling that he represents the whole nation have tended to sober and control the president. Except as regards patronage, he has seldom acted as a mere tool of faction, or sought to abuse his administrative powers to the injury of his political adversaries.

The Constitution prescribes no limit for the reeligibility of the president. He may go on being chosen for one four year period after another for the term of his natural life. But tradition has supplied the place of law. Elected in 1789, Washington submitted to be reelected in 1792. But when he had served his second term he absolutely refused to serve a third, urging the risk to republican institutions of suffering the same man to continue constantly in office. Jefferson, Madison, Monroe, and Jackson obeyed the precedent, and did not seek, nor their friends for them, reelection after two terms. After them no president was reelected, except Lincoln, down to General Grant. Grant was president from 1869 to 1873, and again from 1873 to 1877, then came Mr. Hayes; and in 1880 an attempt was made to break the unwritten rule in Grant’s favour. Each party, as will be more fully explained hereafter, nominates its candidates in a gigantic party assembly called the national convention. In the Republican party convention of 1880 a powerful group for the delegates put forward Grant for nomination as the party candidate, alleging his special services as a ground for giving him the honour of a third term. Had there not been among the Republicans themselves a section personally hostile to Grant, or rather to those who surrounded him, the attempt might have succeeded, though it would probably have involved defeat at the polls. But this hostile section found the prepossession of the people against a third term so strong that, by appealing to the established tradition, they defeated Grant in the convention, and nominated Mr. Garfield, who was victorious at the ensuing election. This precedent was at that time taken as practically decisive for the future, because General Grant, though his administration had been marked by grave faults, was an exceptionally popular figure. A principle affirmed against him seemed not likely to be departed from in favour of any aspirant for many elections to come. And in 1912 a large body of seceders from the National Republican Convention held a convention of their own which nominated Mr. Roosevelt who had served two terms all but a few months.

The Constitution (amend. XII, which in this point repeats the original art. XI, § 1) requires for the choice of a president “a majority of the whole number of electors appointed.” If no such majority is obtained by any candidate, i.e., if the votes of the electors are so scattered among different candidates, that out of the total number (which in 1912 was 529, and will increase as new members are added to the Senate and the House) no one receives an absolute majority (i.e., at least 265 votes), the choice goes over to the House of Representatives, who are empowered to choose a president from among the three candidates who have received the largest number of electoral votes. In the House the vote is taken by states, a majority of all the states (i.e., at present of twenty-five states out of forty-eight) being necessary for a choice. As all the members of the House from a state have but one collective vote, it follows that if they are equally divided among themselves, the vote of that state is lost. Supposing this to be the case in half the total number of states, or supposing the states so to scatter their votes that no candidate receives an absolute majority, then no president is chosen, and the vice-president (supposing one to have been chosen) becomes president.

Only twice has the election gone to the House. In 1800, when the rule still prevailed that the candidate with the largest number of votes became president, and the candidate who came second vice-president, Jefferson and Aaron Burr received the same number. The Jeffersonian electors meant to make him president, but as they had also all voted for Burr, there was a tie. After a long struggle the House chose Jefferson. Feeling ran high, and had Jefferson been kept out by the votes of the Federalist party, who hated him more than Burr, his partisans might possibly have taken up arms.¹⁰ In 1824 Andrew Jackson had 99 electoral votes, and his three competitors (J. Q. Adams, Crawford, and Clay) 162 votes between them. The House chose J. Q. Adams by a vote of thirteen states against seven for Jackson and four for Crawford.¹¹ In this mode of choice, the popular will may be still less recognized than it is by the method of voting through presidential electors, for if the twenty-five smaller states were through their representatives in the House to vote for candidate A, and the twenty-three larger states for candidate B, A would be seated, though the population of the former set of states is, of course, very much below that of the latter.

The Constitution seems, though its language is not explicit, to have intended to leave the counting of the votes to the president of the Senate (the vice-president of the United States); and in early days this officer superintended the count, and decided questions as to the admissibility of doubtful votes. However, Congress has in virtue of its right to be present at the counting assumed the further right of determining all questions which arise regarding the validity of electoral votes, and has, it need hardly be said, determined them on each occasion from party motives. This would be all very well were a decision by Congress always certain of attainment. But it often happens that one party has a majority in the Senate, another party in the House, and then, as the two houses vote separately and each differently from the other, a deadlock results. I must pass by the minute and often tedious controversies which have arisen on these matters. But one case deserves special mention, for it illustrates an ingrained and formidable weakness of the present electoral system.

In 1876, Mr. Hayes was the Republican candidate for the presidency, Mr. Tilden the Democratic. The former carried his list of electors in seventeen states, whose aggregate electors numbered 163, and the latter carried his list also in 17 states, whose aggregate electors numbered 184. (As the total number of electors was then 369, 184 was within one of being a half of that number.) Four states remained out of the total thirty-eight, and in each of these four two sets of persons had been chosen by popular vote, each set claiming, on grounds too complicated to be here explained, to be the duly chosen electors from those states respectively.¹² The electoral votes of these four states amounted to twenty-two, so that if in any one of them the Democratic set of electors had been found to have been duly chosen, the Democrats would have secured a majority of electoral votes, whereas even if in all of them Republican electors had been chosen, the Republican electors would have had a majority of one only. In such circumstances the only course for the Republican leaders, as good party men, was to claim all these doubtful states. This they promptly did—party loyalty is the last virtue that deserts politicians—and the Democrats did the like.

Meanwhile the electors met and voted in their respective states. In the four disputed states the two sets of electors met, voted, and sent up to Washington, from each of these four, double returns of the electoral votes. The result of the election evidently depended on the question which set of returns should be admitted as being the true and legal returns from the four states respectively. The excitement over the whole Union was intense, and the prospect of a peaceful settlement remote, for the Constitution appeared to provide no means of determining the legal questions involved. Congress, as remarked above, had in some previous instances assumed jurisdiction, but seeing that the Republicans had a majority in the Senate, and the Democrats in the House of Representatives, it was clear that the majority in one House would vote for admitting the Republican returns, the majority in the other for admitting the Democratic. Negotiations between the leaders at last arranged a method of escape. A statute was passed creating an electoral commission of five senators, five members of the House of Representatives, and five justices of the Supreme Court, who were to determine all questions as to the admissibility of electoral votes from states sending up double returns.¹³ Everything now turned on the composition of the electoral commission, a body such as had never before been created. The Senate appointed three Republicans and two Democrats. The House of Representatives appointed three Democrats and two Republicans. So far there was an exact balance. The statute had indicated four of the justices who were to sit, two Republicans and two Democrats, and had left these four to choose a fifth. This fifth was the odd man whose casting vote would turn the scale. The four justices chose a Republican justice, and this choice practically settled the result, for every vote given by the members of the commission was a strict party vote.¹⁴ They were nearly all lawyers, and had all taken an oath of impartiality. The legal questions were so difficult, and for the most part so novel, that it was possible for a sound lawyer and honest man to take in each case either the view for which the Republicans or that for which the Democrats contended. Still it is interesting to observe that the legal judgment of every commissioner happened to coincide with his party proclivities.¹⁵ All the points in dispute were settled by a vote of eight to seven in favour of the returns transmitted by the Republican electors in the four disputed states, and Mr. Hayes was accordingly declared duly elected by a majority of 185 electoral votes against 184. The decision may have been right as matter of law—it is still debated by lawyers—and there had been so much force and fraud on both sides in Florida, Louisiana, and South Carolina, that no one can say on which side substantial justice lay. Mr. Tilden deserves the credit of having induced his friends both to agree to a compromise slightly to his own disadvantage, and to accept peaceably, though with long and loud complaints, a result which baffled their hopes. I tell the story here because it points to a grave danger in the presidential system. The stake played for is so high that the temptation to fraud is immense; and as the ballots given for the electors by the people are received and counted by state authorities under state laws, an unscrupulous state faction has opportunities for fraud at its command. In 1887 Congress, having had the subject pressed on its attention by successive presidents, took steps to provide against a recurrence of the danger described. It passed a statute enacting that tribunals appointed in and by each state shall determine what electoral votes from the state are legal votes; and that if the state has appointed no such tribunal, the two houses of Congress shall determine which votes (in case of double returns) are legal. If the houses differ the vote of the state is lost. It is, of course, possible under this plan that the state tribunal may decide unfairly; but the main thing is to secure some decision. Unfairness is better than uncertainty.

A president is removable during his term of office only by means of impeachment, a procedure familiar on both sides of the Atlantic in 1787, when the famous trial of Warren Hastings was still lingering on at Westminster. Impeachment, which had played no small part in the development of English liberties, was deemed by the Americans of those days a valuable element in their new Constitution, for it enabled Congress to depose, and the fear of it might be expected to restrain, a treasonably ambitious president. In obedience to state precedents,¹⁶ it is by the House of Representatives that the president is impeached, and by the Senate, sitting as a law court, with the chief justice of the Supreme Court, the highest legal official of the country, as presiding officer, that he is tried. A two-thirds vote is necessary to conviction, the effect of which is simply to remove him from and disqualify him for office, leaving him “liable to indictment, trial, judgment, and punishment, according to law” (Constitution, art. I, § 3, art. II, § 4). The impeachable offences are “treason, bribery, or other high crimes and misdemeanours,” an expression which some have held to cover only indictable offences, while others extend it to include acts done in violation of official duty and against the interests of the nation, such acts, in fact, as were often grounds for the English impeachments of the seventeenth century. As yet, Andrew Johnson is the only president who has been impeached. His headstrong conduct made his removal desirable, but as it was doubtful whether any single offence justified a conviction, several senators politically opposed to him voted for acquittal.¹⁷ A two-thirds majority not having been secured upon any one article (the numbers being thirty-five for conviction, nineteen for acquittal) he was declared acquitted, a result now generally approved.

In case of the removal of a president by his impeachment, or of his death, resignation, or inability to discharge his duties, the vice-president steps into his place. The vice-president is chosen at the same time, by the same electors, and in the same manner as the president. His only functions are to preside in the Senate and to succeed the president. Failing both president and vice-president it was formerly provided by statute, not by the Constitution, that the presiding officer for the time being of the Senate should succeed to the presidency, and, failing him, the Speaker of the House of Representatives. To this plan there was the obvious objection that it might throw power into the hands of the party opposed to that to which the lately deceased president belonged; and it has therefore been now (by an act of 1886) enacted that on the death of a president (including a vice-president who has succeeded to the presidency) the secretary of state shall succeed, and after him other officers of the administration, in the order of their rank. Five presidents (Harrison, Taylor, Lincoln, Garfield, McKinley) have died in office, the three latter killed by assassins, and been succeeded by vice-presidents, and in the first and third of these instances the succeeding vice-president has reversed the policy of his predecessor, and become involved in a quarrel with the party which elected him, such as has never yet broken out between a man elected to be president and his party. In practice very little pains are bestowed on the election of a vice-president. The convention which selects the party candidates usually gives the nomination to this post to a man in the second rank, sometimes as a consolation to a disappointed candidate for the presidential nomination, sometimes to a friend of such a disappointed candidate in order to “placate” his faction, sometimes to a person from whom large contributions to the campaign fund may be expected, sometimes as a compliment to an elderly leader who is personally popular, sometimes perhaps even to a man whom it is sought to shelve for the time being. If the party carries its candidate for president, it also as a matter of course carries its candidate for vice-president, and thus if the president happens to die, a man who may, like Tyler or Johnson, be of no great personal account, steps into the chief magistracy of the nation.