The English Constitution

NO. VII
ITS SUPPOSED CHECKS AND BALANCES

In a former essay I devoted an elaborate discussion to the comparison of the royal and unroyal form of Parliamentary government. I showed that at the formation of a Ministry, and during the continuance of a Ministry, a really sagacious monarch might be of rare use. I ascertained that it was a mistake to fancy that at such times a constitutional monarch had no rule and no duties. But I proved likewise that the temper, the disposition, and the faculties then needful to fit a constitutional monarch for usefulness were very rare, at least as rare as the faculties of a great absolute monarch, and that a common man in that place is apt to do at least as much harm as good—perhaps more harm. But in that essay I could not discuss fully the functions of a king at the conclusion of an administration, for then the most peculiar parts of the English Government—the power to dissolve the House of Commons, and the power to create new peers—come into play, and until the nature of the House of Lords and the nature of the House of Commons had been explained, I had no premises for an argument as to the characteristic action of the king upon them. We have since considered the functions of the two houses, and also the effects of changes of Ministry on our administrative system; we are now, therefore, in a position to discuss the functions of a king at the end of an administration. I may seem over formal in this matter, but I am very formal on purpose. It appears to me that the functions of our executive in dissolving the Commons and augmenting the Peers are among the most important, and the least appreciated, parts of our whole government, and that hundreds of errors have been made in copying the English Constitution from not comprehending them.

Hobbes told us long ago, and everybody now understands, that there must be a supreme authority, a conclusive power, in every State on every point somewhere. The idea of government involves it—when that idea is properly understood. But there are two classes of Governments. In one the supreme determining power is upon all points the same: in the other, that ultimate power is different upon different points—now resides in one part of the Constitution and now in another. The Americans thought that they were imitating the English in making their Constitution upon the last principle—in having one ultimate authority for one sort of matter, and another for another sort. But in truth the English Constitution is the type of the opposite species; it has only one authority for all sorts of matters. To gain a living conception of the difference let us see what the Americans did.

First, they altogether retained what, in part, they could not help, the sovereignty of the separate States. A fundamental article of the Federal Constitution says that the powers not "delegated" to the central Government are "reserved to the States respectively". And the whole recent history of the Union—perhaps all its history—has been more determined by that enactment than by any other single cause. The sovereignty of the principal matters of State has rested not with the highest Government, but with the subordinate Government. The Federal Government could not touch slavery—the "domestic institution" which divided the Union into two halves, unlike one another in morals, politics, and social condition, and at last set them to fight. This determining political fact was not in the jurisdiction of the highest Government in the country, where you might expect its highest wisdom, nor in the central Government, where you might look for impartiality, but in local governments, where petty interests were sure to be considered, and where only inferior abilities were likely to be employed. The capital fact was reserved for the minor jurisdictions. Again, there has been only one matter comparable to slavery in the United States, and that has been vitally affected by the State Governments also. Their ultra-democracy is not a result of Federal legislation, but of State legislation. The Federal Constitution deputed one of the main items of its structure to the subordinate governments. One of its clauses provides that the suffrages for the Federal House of Representatives shall be, in each State, the same as for the most numerous branch of the legislature of that State; and as each State fixes the suffrage for its own legislatures, the States altogether fix the suffrage for the Federal Lower Chamber. By another clause of the Federal Constitution the States fix the electoral qualification for voting at a Presidential election. The primary element in a free government—the determination how many people shall have a share in it—in America depends not on the Government but on certain subordinate local, and sometimes, as in the South now, hostile bodies.

Doubtless the framers of the Constitution had not much choice in the matter. The wisest of them were anxious to get as much power for the central Government, and to leave as little to the local governments as they could. But a cry was got up that this wisdom would create a tyranny and impair freedom, and with that help, local jealousy triumphed easily. All Federal Government is, in truth, a case in which what I have called the dignified elements of government do not coincide with the serviceable elements. At the beginning of every league the separate States are the old Governments which attract and keep the love and loyalty of the people; the Federal Government is a useful thing, but new and unattractive. It must concede much to the State Governments, for it is indebted to them for motive power: they are the Governments which the people voluntarily obey. When the State Governments are not thus loved, they vanish as the little Italian and the little German potentates vanished; no federation is needed; a single central Government rules all.

But the division of the sovereign authority in the American Constitution is far more complex than this. The part of that authority left to the Federal Government is itself divided and subdivided. The greatest instance is the most obvious. The Congress rules the law, but the President rules the administration. One means of unity the Constitution does give: the President can veto laws he does not like. But when two-thirds of both Houses are unanimous (as has lately happened), they can overrule the President and make the laws without him; so here there are three separate repositories of the legislative power in different cases: first, Congress and the President when they agree; next, the President when he effectually exerts his power; then the requisite two-thirds of Congress when they overrule the President. And the President need not be over-active in carrying out a law he does not approve of. He may indeed be impeached for gross neglect; but between criminal non-feasance and zealous activity there are infinite degrees. Mr. Johnson does not carry out the Freedman's Bureau Bill as Mr. Lincoln, who approved of it, would have carried it out. The American Constitution has a special contrivance for varying the supreme legislative authority in different cases, and dividing the administrative authority from it in all cases.

But the administrative power itself is not left thus simple and undivided. One most important part of administration is international policy, and the supreme authority here is not in the President, still less in the House of Representatives, but in the Senate. The President can only make treaties, "provided two-thirds of Senators present" concur. The sovereignty therefore for the greatest international questions is in a different part of the State altogether from any common administrative or legislative question. It is put in a place by itself.

Again, the Congress declares war, but they would find it very difficult, according to the recent construction of their laws, to compel the President to make a peace. The authors of the Constitution doubtless intended that Congress should be able to control the American executive as our Parliament controls ours. They placed the granting of supplies in the House of Representatives exclusively. But they forgot to look after "paper money"; and now it has been held that the President has power to emit such money without consulting Congress at all. The first part of the late war was so carried on by Mr. Lincoln; he relied not on the grants of Congress, but on the prerogative of emission. It sounds a joke, but it is true nevertheless, that this power to issue greenbacks is decided to belong to the President as commander-in-chief of the army; it is part of what was called the "war power". In truth money was wanted in the late war, and the administration got it in the readiest way; and the nation, glad not to be more taxed, wholly approved of it. But the fact remains that the President has now, by precedent and decision, a mighty power to continue a war without the consent of Congress, and perhaps against its wish. Against the united will of the American PEOPLE a President would of course be impotent; such is the genius of the place and nation that he would never think of it. But when the nation was (as of late) divided into two parties, one cleaving to the President, the other to the Congress, the now unquestionable power of the President to issue paper-money may give him the power to continue the war though Parliament (as we should speak) may enjoin the war to cease.

And lastly, the whole region of the very highest questions is withdrawn from the ordinary authorities of the State, and reserved for special authorities. The "Constitution" cannot be altered by any authorities within the Constitution, but only by authorities without it. Every alteration of it, however urgent or however trifling, must be sanctioned by a complicated proportion of States or legislatures. The consequence is that the most obvious evils cannot be quickly remedied; that the most absurd fictions must be framed to evade the plain sense of mischievous clauses; that a clumsy working and curious technicality mark the politics of a rough-and-ready people. The practical arguments and the legal disquisitions in America are often like those of trustees carrying out a misdrawn will—the sense of what they mean is good, but it can never be worked out fully or defended simply, so hampered is it by the old words of an old testament.

These instances (and others might be added) prove, as history proves too, what was the principal thought of the American Constitution-makers. They shrank from placing sovereign power anywhere. They feared that it would generate tyranny; George III. had been a tyrant to them, and come what might, they would not make a George III. Accredited theories said that the English Constitution divided the sovereign authority, and in imitation the Americans split up theirs.

The result is seen now. At the critical moment of their history there is no ready, deciding power. The South, after a great rebellion, lies at the feet of its conquerors: its conquerors have to settle what to do with it.¹⁰ They must decide the conditions upon which the Secessionists shall again become fellow citizens, shall again vote, again be represented, again perhaps govern. The most difficult of problems is how to change late foes into free friends. The safety of their great public debt, and with that debt their future credit and their whole power in future wars, may depend on their not giving too much power to those who must see in the debt the cost of their own subjugation, and who must have an inclination towards the repudiation of it, now that their own debt—the cost of their defence—has been repudiated. A race, too, formerly enslaved, is now at the mercy of men who hate and despise it, and those who set it free are bound to give it a fair chance for new life. The slave was formerly protected by his chains; he was an article of value; but now he belongs to himself, no one but himself has an interest in his life; and he is at the mercy of the "mean whites," whose labour he depreciates, and who regard him with a loathing hatred. The greatest moral duty ever set before a Government, and the most fearful political problem ever set before a Government, are now set before the American. But there is no decision, and no possibility of a decision. The President wants one course, and has power to prevent any other; the Congress wants another course, and has power to prevent any other. The splitting of sovereignty into many parts amounts to there being no sovereign.

The Americans of 1787 thought they were copying the English Constitution, but they were contriving a contrast to it. Just as the American is the type of composite Governments, in which the supreme power is divided between many bodies and functionaries, so the English is the type of SIMPLE Constitutions, in which the ultimate power upon all questions is in the hands of the same persons.

The ultimate authority in the English Constitution is a newly-elected House of Commons. No matter whether the question upon which it decides be administrative or legislative; no matter whether it concerns high matters of the essential Constitution or small matters of daily detail; no matter whether it be a question of making a war or continuing a war; no matter whether it be the imposing a tax or the issuing a paper currency; no matter whether it be a question relating to India, or Ireland, or London—a new House of Commons can despotically and finally resolve.

The House of Commons may, as was explained, assent in minor matters to the revision of the House of Lords, and submit in matters about which it cares little to the suspensive veto of the House of Lords; but when sure of the popular assent, and when freshly elected, it is absolute, it can rule as it likes and decide as it likes. And it can take the best security that it does not decide in vain. It can ensure that its decrees shall be executed, for it, and it alone, appoints the executive; it can inflict the most severe of all penalties on neglect, for it can remove the executive. It can choose, to effect its wishes, those who wish the same; and so its will is sure to be done. A stipulated majority of both Houses of the American Congress can overrule by stated enactment their executive; but the popular branch of our legislature can make and unmake ours.

The English Constitution, in a word, is framed on the principle of choosing a single sovereign authority, and making it good; the American, upon the principle of having many sovereign authorities, and hoping that their multitude may atone for their inferiority. The Americans now extol their institutions, and so defraud themselves of their due praise. But if they had not a genius for politics; if they had not a moderation in action singularly curious where superficial speech is so violent; if they had not a regard for law, such as no great people have yet evinced, and infinitely surpassing ours,—the multiplicity of authorities in the American Constitution would long ago have brought it to a bad end. Sensible shareholders, I have heard a shrewd attorney say, can work ANY deed of settlement; and so the men of Massachusetts could, I believe, work ANY Constitution.¹¹ But political philosophy must analyse political history; it must distinguish what is due to the excellence of the people, and what to the excellence of the laws; it must carefully calculate the exact effect of each part of the Constitution, though thus it may destroy many an idol of the multitude, and detect the secret of utility where but few imagined it to lie.

How important singleness and unity are in political action no one, I imagine, can doubt. We may distinguish and define its parts; but policy is a unit and a whole. It acts by laws—by administrators; it requires now one, now the other; unless it can easily move both it will be impeded soon; unless it has an absolute command of both its work will be imperfect. The interlaced character of human affairs requires a single determining energy; a distinct force for each artificial compartment will make but a motley patchwork, if it live long enough to make anything. The excellence of the British Constitution is that it has achieved this unity; that in it the sovereign power is single, possible, and good.

The success is primarily due to the peculiar provision of the English Constitution, which places the choice of the executive in the "people's House"; but it could not have been thoroughly achieved except for two parts, which I venture to call the "safety-valve" of the Constitution, and the "regulator".

The safety-valve is the peculiar provision of the Constitution, of which I spoke at great length in my essay on the House of Lords. The head of the executive can overcome the resistance of the second chamber by choosing new members of that chamber; if he do not find a majority, he can make a majority. This is a safety-valve of the truest kind. It enables the popular will—the will of which the executive is the exponent, the will of which it is the appointee—to carry out within the Constitution desires and conceptions which one branch of the Constitution dislikes and resists. It lets forth a dangerous accumulation of inhibited power, which might sweep this Constitution before it, as like accumulations have often swept away like Constitutions.

The regulator, as I venture to call it, of our single sovereignty is the power of dissolving the otherwise sovereign chamber confided to the chief executive. The defects of the popular branch of a legislature as a sovereign have been expounded at length in a previous essay. Briefly, they may be summed up in three accusations.

First. Caprice is the commonest and most formidable vice of a choosing chamber. Wherever in our colonies Parliamentary government is unsuccessful, or is alleged to be unsuccessful, this is the vice which first impairs it. The assembly cannot be induced to maintain any administration; it shifts its selection now from one Minister to another Minister, and in consequence there is no government at all.

Secondly. The very remedy for such caprice entails another evil. The only mode by which a cohesive majority and a lasting administration can be upheld in a Parliamentary government, is party organisation; but that organisation itself tends to aggravate party violence and party animosity. It is, in substance, subjecting the whole nation to the rule of a section of the nation, selected because of its speciality. Parliamentary government is, in its essence, a sectarian government, and is possible only when sects are cohesive.

Thirdly. A Parliament, like every other sort of sovereign, has peculiar feelings, peculiar prejudices, peculiar interests; and it may pursue these in opposition to the desires, and even in opposition to the well-being of the nation. It has its selfishness as well as its caprice and its parties.

The mode in which the regulating wheel of our Constitution produces its effect is plain. It does not impair the authority of Parliament as a species, but it impairs the power of the individual Parliament. It enables a particular person outside Parliament to say, "You Members of Parliament are not doing your duty. You are gratifying caprice at the cost of the nation. You are indulging party spirit at the cost of the nation. You are helping yourself at the cost of the nation. I will see whether the nation approves what you are doing or not; I will appeal from Parliament No. 1 to Parliament No. 2."

By far the best way to appreciate this peculiar provision of our Constitution is to trace it in action—to see, as we saw before of the other powers of English royalty, how far it is dependent on the existence of an hereditary king, and how far it can be exercised by a Premier whom Parliament elects. When we examine the nature of the particular person required to exercise the power, a vivid idea of that power is itself brought home to us.

First. As to the caprice of Parliament in the choice of a Premier, who is the best person to check it? Clearly the Premier himself. He is the person most interested in maintaining his administration, and therefore the most likely person to use efficiently and dexterously the power by which it is to be maintained. The intervention of an extrinsic king occasions a difficulty. A capricious Parliament may always hope that his caprice may coincide with theirs. In the days when George III. assailed his Governments, the Premier was habitually deprived of his due authority. Intrigues were encouraged because it was always dubious whether the king-hated Minister would be permitted to appeal from the intriguers, and always a chance that the conspiring monarch might appoint one of the conspirators to be Premier in his room. The caprice of Parliament is better checked when the faculty of dissolution is entrusted to its appointee, than when it is set apart in an outlying and an alien authority.

But, on the contrary, the party zeal and the self-seeking of Parliament are best checked by an authority which has no connection with Parliament or dependence upon it—supposing that such authority is morally and intellectually equal to the performance of the entrusted function. The Prime Minister obviously being the nominee of a party majority is likely to share its feeling, and is sure to be obliged to say that he shares it. The actual contact with affairs is indeed likely to purify him from many prejudices, to tame him of many fanaticisms, to beat out of him many errors. The present Conservative Government contains more than one member who regards his party as intellectually benighted; who either never speaks their peculiar dialect, or who speaks it condescendingly, and with an "aside"; who respects their accumulated prejudices as the "potential energies" on which he subsists, but who despises them while he lives by them. Years ago Mr. Disraeli called Sir Robert Peel's Ministry—the last Conservative Ministry that had real power—"an organised hypocrisy," so much did the ideas of its "head" differ from the sensations of its "tail". Probably he now comprehends—if he did not always—that the air of Downing Street brings certain ideas to those who live there, and that the hard, compact prejudices of opposition are soon melted and mitigated in the great gulf stream of affairs. Lord Palmerston, too, was a typical example of a leader lulling, rather than arousing, assuaging rather than acerbating the minds of his followers. But though the composing effect of close difficulties will commonly make a Premier cease to be an immoderate partisan, yet a partisan to some extent he must be, and a violent one he may be; and in that case he is not a good person to check the party. When the leading sect (so to speak) in Parliament is doing what the nation do not like, an instant appeal ought to be registered and Parliament ought to be dissolved. But a zealot of a Premier will not appeal; he will follow his formulae; he will believe he is doing good service when, perhaps, he is but pushing to unpopular consequences, the narrow maxims of an inchoate theory. At such a minute a constitutional king—such as Leopold the First was, and as Prince Albert might have been—is invaluable; he can and will prevent Parliament from hurting the nation.

Again, too, on the selfishness of Parliament an extrinsic check is clearly more efficient than an intrinsic. A Premier who is made by Parliament may share the bad impulses of those who chose him; or, at any rate, he may have made "capital" out of them—he may have seemed to share them. The self-interests, the jobbing propensities of the assembly are sure indeed to be of very secondary interest to him. What he will care most for is the permanence, is the interest—whether corrupt or uncorrupt—of his own Ministry. He will be disinclined to anything coarsely unpopular. In the order of nature, a new assembly must come before long, and he will be indisposed to shock the feelings of the electors from whom that assembly must emanate. But though the interest of the Minister is inconsistent with appalling jobbery, he will be inclined to mitigated jobbery. He will temporise; he will try to give a seemly dress to unseemly matters: to do as much harm as will content the assembly, and yet not so much harm as will offend the nation. He will not shrink from becoming a particeps criminis; he will but endeavour to dilute the crime. The intervention of an extrinsic, impartial, and capable authority—if such can be found—will undoubtedly restrain the covetousness as well as the factiousness of a choosing assembly.

But can such a head be found? In one case I think it has been found. Our colonial governors are precisely Dei ex machina. They are always intelligent, for they have to live by a different trade; they are nearly sure to be impartial, for they come from the ends of the earth; they are sure not to participate in the selfish desires of any colonial class or body, for long before those desires can have attained fruition they will have passed to the other side of the world, be busy with other faces and other minds, be almost out of hearing what happens in a region they have half forgotten. A colonial governor is a super-Parliamentary authority, animated by a wisdom which is probably in quantity considerable, and is different from that of the local Parliament, even if not above it. But even in this case the advantage of this extrinsic authority is purchased at a heavy price—a price which must not be made light of, because it is often worth paying. A colonial governor is a ruler who has no permanent interest in the colony he governs; who perhaps had to look for it in the map when he was sent thither; who takes years before he really understands its parties and its controversies; who, though without prejudice himself, is apt to be a slave to the prejudices of local people near him; who inevitably, and almost laudably, governs not in the interest of the colony, which he may mistake, but in his own interest, which he sees and is sure of. The first desire of a colonial governor is not to get into a "scrape," not to do anything which may give trouble to his superiors—the Colonial Office—at home, which may cause an untimely and dubious recall, which may hurt his after career. He is sure to leave upon the colony the feeling that they have a ruler who only half knows them, and does not so much as half care for them. We hardly appreciate this common feeling in our colonies, because WE appoint THEIR sovereign; but we should understand it in an instant if, by a political metamorphosis, the choice were turned the other way—if THEY appointed OUR sovereign. We should then say at once, "How is it possible a man from New Zealand can understand England? how is it possible, that a man longing to get back to the antipodes can care for England? how can we trust one who lives by the fluctuating favour of a distant authority? how can we heartily obey one who is but a foreigner with the accident of an identical language?"

I dwell on the evils which impair the advantage of colonial governorship because that is the most favoured case of super-Parliamentary royalty, and because from looking at it we can bring freshly home to our minds what the real difficulties of that institution are. We are so familiar with it that we do not understand it. We are like people who have known a man all their lives, and yet are quite surprised when he displays some obvious characteristic which casual observers have detected at a glance. I have known a man who did not know what colour his sister's eyes were, though he had seen her every day for twenty years; or rather, he did not know because he had so seen her: so true is the philosophical maxim that we neglect the constant element in our thoughts, though it is probably the most important, and attend almost only to the varying elements—the differentiating elements (as men now speak)—though they are apt to be less potent. But when we perceive by the roundabout example of a colonial governor how difficult the task of a constitutional king is in the exercise of the function of dissolving Parliament, we at once see how unlikely it is that an hereditary monarch will be possessed of the requisite faculties.

An hereditary king is but an ordinary person, upon an average, at best; he is nearly sure to be badly educated for business; he is very little likely to have a taste for business; he is solicited from youth by every temptation to pleasure; he probably passed the whole of his youth in the vicious situation of the heir-apparent, who can do nothing because he has no appointed work, and who will be considered almost to outstep his function if he undertake optional work. For the most part, a constitutional king is a DAMAGED common man; not forced to business by necessity as a despot often is, but yet spoiled for business by most of the temptations which spoil a despot. History, too, seems to show that hereditary royal families gather from the repeated influence of their corrupting situation some dark taint in the blood, some transmitted and growing poison which hurts their judgments, darkens all their sorrow, and is a cloud on half their pleasure. It has been said, not truly, but with a possible approximation to truth, "That in 1802 every hereditary monarch was insane". Is it likely that this sort of monarchs will be able to catch the exact moment when, in opposition to the wishes of a triumphant Ministry, they ought to dissolve Parliament? To do so with efficiency they must be able to perceive that the Parliament is wrong, and that the nation knows it is wrong. Now to know that Parliament is wrong, a man must be, if not a great statesman, yet a considerable statesman—a statesman of some sort. He must have great natural vigour, for no less will comprehend the hard principles of national policy. He must have incessant industry, for no less will keep him abreast with the involved detail to which those principles relate, and the miscellaneous occasions to which they must be applied. A man made common by nature, and made worse by life, is not likely to have either; he is nearly sure not to be BOTH clever and industrious. And a monarch in the recesses of a palace, listening to a charmed flattery unbiassed by the miscellaneous world, who has always been hedged in by rank, is likely to be but a poor judge of public opinion. He may have an inborn tact for finding it out; but his life will never teach it him, and will probably enfeeble it in him.