Chapter XIV
OF THE EXECUTIVE IN A REPRESENTATIVE GOVERNMENT.
Section 2
A most important principle of good government in a popular constitution is that no executive functionaries should be appointed by popular election: neither by the votes of the people themselves, nor by those of their representatives. The entire business of government is skilled employment; the qualifications for the discharge of it are of that special and professional kind which cannot be properly judged of except by persons who have themselves some share of those qualifications, or some practical experience of them. The business of finding the fittest persons to fill public employments---not merely selecting the best who offer, but looking out for the absolutely best, and taking note of all fit persons who are met with, that they may be found when wanted---is very laborious, and requires a delicate as well as highly conscientious discernment; and as there is no public duty which is in general so badly performed, so there is none for which it is of greater importance to enforce the utmost practicable amount of personal responsibility, by imposing it as a special obligation on high functionaries in the several departments. All subordinate public officers who are not appointed by some mode of public competition should be selected on the direct responsibility of the minister under whom they serve. The ministers, all but the chief, will naturally be selected by the chief; and the chief himself, though really designated by Parliament, should be, in a regal government, officially appointed by the Crown. The functionary who appoints should be the sole person empowered to remove any subordinate officer who is liable to removal; which the far greater number ought not to be, except for personal misconduct; since it would be vain to expect that the body of persons by whom the whole detail of the public business is transacted, and whose qualifications are generally of much more importance to the public than those of the minister himself, will devote themselves to their profession, and acquire the knowledge and skill on which the minister must often place entire dependence, if they are liable at any moment to be turned adrift for no fault, that the minister may gratify himself, or promote his political interest, by appointing somebody else.
To the principle which condemns the appointment of executive officers by popular suffrage, ought the chief of the executive, in a republican government, to be an exception? Is it a good rule, which, in the American Constitution, provides for the election of the President once in every four years by the entire people? The question is not free from difficulty. There is unquestionably some advantage, in a country like America, where no apprehension needs be entertained of a coup d'état, in making the chief minister constitutionally independent of the legislative body, and rendering the two great branches of the government, while equally popular both in their origin and in their responsibility, an effective check on one another. The plan is in accordance with that sedulous avoidance of the concentration of great masses of power in the same hands, which is a marked characteristic of the American Federal Constitution. But the advantage, in this instance, is purchased at a price above all reasonable estimates of its value. It seems far better that the chief magistrate in a republic should be appointed avowedly, as the chief minister in a constitutional monarchy is virtually, by the representative body. In the first place, he is certain, when thus appointed, to be a more eminent man. The party which has the majority in Parliament would then, as a rule, appoint its own leader; who is always one of the foremost, and often the very foremost person in political life: while the President of the United States, since the last survivor of the founders of the republic disappeared from the scene, is almost always either an obscure man, or one who has gained any reputation he may possess in some other field than politics. And this, as I have before observed, is no accident, but the natural effect of the situation. The eminent men of a party, in an election extending to the whole country, are never its most available candidates. All eminent men have made personal enemies, or have done something, or at the lowest professed some opinion, obnoxious to some local or other considerable division of the community, and likely to tell with fatal effect upon the number of votes; whereas a man without antecedents, of whom nothing is known but that he professes the creed of the party, is readily voted for by its entire strength. Another important consideration is the great mischief of unintermitted electioneering. When the highest dignity in the State is to be conferred by popular election once in every few years, the whole intervening time is spent in what is virtually a canvass. President, ministers, chiefs of parties, and their followers, are all electioneerers: the whole community is kept intent on the mere personalities of politics, and every public question is discussed and decided with less reference to its merits than to its expected bearing on the presidential election. If a system had been devised to make party spirit the ruling principle of action in all public affairs, and create an inducement not only to make every question a party question, but to raise questions for the purpose of founding parties upon them, it would have been difficult to contrive any means better adapted to the purpose.
I will not affirm that it would at all times and places be desirable that the head of the executive should be so completely dependent upon the votes of a representative assembly as the Prime Minister is in England, and is without inconvenience. If it were thought best to avoid this, he might, though appointed by Parliament, hold his office for a fixed period, independent of a parliamentary vote: which would be the American system, minus the popular election and its evils. There is another mode of giving the head of the administration as much independence of the legislature as is at all compatible with the essentials of free government. He never could be unduly dependent on a vote of Parliament, if he had, as the British Prime Minister practically has, the power to dissolve the House and appeal to the people: if instead of being turned out of office by a hostile vote, he could only be reduced by it to the alternative of resignation or dissolution. The power of dissolving Parliament is one which I think it desirable he should possess, even under the system by which his own tenure of office is secured to him for a fixed period. There ought not to be any possibility of that deadlock in politics which would ensue on a quarrel breaking out between a President and an Assembly, neither of whom, during an interval which might amount to years, would have any legal means of ridding itself of the other. To get through such a period without a coup d'etat being attempted, on either side or on both, requires such a combination of the love of liberty and the habit of self-restraint as very few nations have yet shown themselves capable of: and though this extremity were avoided, to expect that the two authorities would not paralyse each other's operations is to suppose that the political life of the country will always be pervaded by a spirit of mutual forbearance and compromise, imperturbable by the passions and excitements of the keenest party struggles. Such a spirit may exist, but even where it does there is imprudence in trying it too far.
Other reasons make it desirable that some power in the state (which can only be the executive) should have the liberty of at any time, and at discretion, calling a new Parliament. When there is a real doubt which of two contending parties has the strongest following, it is important that there should exist a constitutional means of immediately testing the point, and setting it at rest. No other political topic has a chance of being properly attended to while this is undecided: and such an interval is mostly an interregnum for purposes of legislative or administrative improvement; neither party having sufficient confidence in its strength to attempt things likely to promote opposition in any quarter that has either direct or indirect influence in the pending struggle.
I have not taken account of the case in which the vast power centralised in the chief magistrate, and the insufficient attachment of the mass of the people to free institutions, give him a chance of success in an attempt to subvert the Constitution, and usurp sovereign power. Where such peril exists, no first magistrate is admissible whom the Parliament cannot, by a single vote, reduce to a private station. In a state of things holding out any encouragement to that most audacious and profligate of all breaches of trust, even this entireness of constitutional dependence is but a weak protection.
Of all officers of government, those in whose appointment any participation of popular suffrage is the most objectionable are judicial officers. While there are no functionaries whose special and professional qualifications the popular judgment is less fitted to estimate, there are none in whose case absolute impartiality, and freedom from connection with politicians or sections of politicians, are of anything like equal importance. Some thinkers, among others Mr. Bentham, have been of opinion that, although it is better that judges should not be appointed by popular election, the people of their district ought to have the power, after sufficient experience, of removing them from their trust. It cannot be denied that the irremovability of any public officer, to whom great interests are entrusted, is in itself an evil. It is far from desirable that there should be no means of getting rid of a bad or incompetent judge, unless for such misconduct as he can be made to answer for in a criminal court; and that a functionary on whom so much depends should have the feeling of being free from responsibility except to opinion and his own conscience. The question however is, whether in the peculiar position of a judge, and supposing that all practicable securities have been taken for an honest appointment, irresponsibility, except to his own and the public conscience, has not on the whole less tendency to pervert his conduct than responsibility to the government, or to a popular vote. Experience has long decided this point in the affirmative as regards responsibility to the executive; and the case is quite equally strong when the responsibility sought to be enforced is to the suffrages of electors. Among the good qualities of a popular constituency, those peculiarly incumbent upon a judge, calmness and impartiality, are not numbered. Happily, in that intervention of popular suffrage which is essential to freedom they are not the qualities required. Even the quality of justice, though necessary to all human beings, and therefore to all electors, is not the inducement which decides any popular election. Justice and impartiality are as little wanted for electing a member of Parliament as they can be in any transaction of men. The electors have not to award something which either candidate has a right to, nor to pass judgment on the general merits of the competitors, but to declare which of them has most of their personal confidence, or best represents their political convictions. A judge is bound to treat his political friend, or the person best known to him, exactly as he treats other people; but it would be a breach of duty as well as an absurdity if an elector did so. No argument can be grounded on the beneficial effect produced on judges, as on all other functionaries, by the moral jurisdiction of opinion; for even in this respect, that which really exercises a useful control over the proceedings of a judge, when fit for the judicial office, is not (except sometimes in political cases) the opinion of the community generally, but that of the only public by whom his conduct or qualifications can be duly estimated, the bar of his own court. I must not be understood to say that the participation of the general public in the administration of justice is of no importance; it is of the greatest: but in what manner? By the actual discharge of a part of the judicial office, in the capacity of jurymen. This is one of the few cases in politics in which it is better that the people should act directly and personally than through their representatives; being almost the only case in which the errors that a person exercising authority may commit can be better borne than the consequences of making him responsible for them. If a judge could be removed from office by a popular vote, whoever was desirous of supplanting him would make capital for that purpose out of all his judicial decisions; would carry all of them, as far as he found practicable, by irregular appeal before a public opinion wholly incompetent, for want of having heard the case, or from having heard it without either the precautions or the impartiality belonging to a judicial hearing; would play upon popular passion and prejudice where they existed, and take pains to arouse them where they did not. And in this, if the case were interesting, and he took sufficient trouble, he would infallibly be successful, unless the judge or his friends descended into the arena, and made equally powerful appeals on the other side. Judges would end by feeling that they risked their office upon every decision they gave in a case susceptible of general interest, and that it was less essential for them to consider what decision was just than what would be most applauded by the public, or would least admit of insidious misrepresentation. The practice introduced by some of the new or revised State Constitutions in America, of submitting judicial officers to periodical popular re-election, will be found, I apprehend, to be one of the most dangerous errors ever yet committed by democracy: and, were it not that the practical good sense which never totally deserts the people of the United States is said to be producing a reaction, likely in no long time to lead to the retraction of the error, it might with reason be regarded as the first great downward stepin the degeneration of modern democratic government.[1]