University of Warsaw, Faculty of Journalism and Political Science
Chair of European Studies
Dr Przemysław BISKUP
HISTORY OF POLITICAL INSTITUTIONS:
Introductory course in Western
constitutional history
Selection of Texts and Documents
PREPARED EXCLUSIVELY FOR THE PURPOSES
of the Master’s Programme in Political Science,
Institute of Political Science, University of Warsaw
Part 8
Winter Semester
Academic Year 2009/2010
The bourgeois nation state
CHAPTER 8
The bourgeois nation state
GENERAL
OUTLINE
Nineteenth-century constitutional law reflects the political situation.
In the age of G l a d s t o n e a n d T h i e r s the bourgeoisie, which h a d been
locally powerful since the Middle Ages, gained access to the national
centres of command.
The existing kingdoms of Britain and France were created not by
the middle classes but by the monarchy, so that in those countries the
Third Estate could simply pick the nation state as a ripe fruit and
even, most notably in France, strengthen its unitary centralism.
Elsewhere, in Germany and Italy, the nation itself only came into
being in the nineteenth century. It was founded by the royal houses of
Prussia and Piedmont-Savoy and their great ministers, Bismarck and
Cavour, but with the collaboration and the stimulus of the bourgeoisie,
which was interested in the abolition of internal economic barriers
and the creation of a national common market. The middle classes
understood that they could not play a global role with the old
mini-states as bases and that capital and entrepreneurial initiative
required wide and, if need be, protected markets.
The constitutional ambitions of the bourgeoisie were expressed
in two key words, constitutionalism and parliamentarianism. The
former excluded absolute, arbitrary rule and demanded a government
operating under the law; it created the Rechlsstaat, where the citizens
were no more dominated by individuals, but by laws to which
everyone had to submit. The latter keyword signified a regime where
the government and the legislature derived their authority from and
were accountable to the nation, represented by an elected parliament.
This excluded direct democracy and even, because of the restricted
franchise, democracy itself. The parliaments of the nineteenth
century were often blatantly oligarchic; in Britain until the early
twentieth century the House of Lords, the assembly of the hereditary
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aristocracy, controlled legislation, and in Belgium the celebrated
Constitution of 1831 gave the vote in parliamentary elections to
about 1 per cent of the population.
T h e rise of this form of government came a b o u t via different paths
in different countries. In Britain the nation state, the constitutional
monarchy and the sovereignty of Parliament had been achieved in
the past, so the nineteenth-century Constitution continued along the
established pattern. The principal changes - the reshaping of the
constituencies and the widening of the franchise - could be seen as
adaptations of the existing order. In nineteenth-century France not
the sovereign nation state but the choice of form of government was
the problem. This was illustrated by the numerous and often violent
changes ranging from the restoration of the old- and an experiment
with a new-style monarchy to the short-lived Second Republic and
the not so short Second Empire, and finally leading to the Third
Republic, where the Constitution and parliament were triumphant.
In Germany things were different again. The bourgeoisie admittedly
obtained the national unification it wanted, and played a conspicuous
role in parliament and in society at large, but it was hemmed in by the
monarchy and the latter's ally, the army. No radical parliamentarianism
therefore and no radical unification followed: even after 1871 the old
kingdoms and principalities and their ruling dynasties remained in
place, though they did not prevent the creation of the common
market or the introduction of a common civil code.
Political liberalism, based on parliament and a Constitution, went
hand in hand with a free-market economy which favoured capitalists
and entrepreneurs and degraded labour to the status of merchandise,
the price of which was determined by supply and demand. As the
nineteenth century witnessed a spectacular demographic expansion
and consequently a growing supply of labour, the position of the
working class was both politically and economically weak. True
democracy was in those circumstances excluded. Nor should the rise
of the bourgeoisie, which was real enough, blind us to the fact that
the landowning nobility still played an important role in society at
large and in the House of Lords, the Herrenhaus or the Senate in
particular.
As could be expected, the labouring and subjected masses eventually
rose against the political and economic oligarchy. The earliest revolts
were failures, because the bourgeoisie not only disposed of the
machinery of the state, but was self-confident enough to use its
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position of strength to the full
witness the failure of chartism in
Britain between 1830 and 1850 and the suppression of the Parisian
revolts in 1848 and 1871. In the late nineteenth century workers'
parties began to agitate for a change in the regime via parliamentary
legislation, but they did not enter the government until the First
World War.
GREAT BRITAIN
*
In Britain, as we have seen, the fundamental transformation had
come about before the nineteenth century, and the nation state, the
constitutional monarchy and the supremacy of Parliament were
achievements of the past and not really questioned. The main change
- or adaptation - in nineteenth-century Britain was the extension of
the franchise, and the concomitant gradual democratization of
Parliament, or rather of the House of Commons: the other House
preserved its ancient composition and power until the early twentieth
century.'
The modernization of the Commons was achieved by the Reform
Act of 1832 and subsequent extensions of the franchise, each of which
was accompanied by assurances that it was the last. The Act of 1832
redrew the boundaries of the constituencies, which reflected past
vicissitudes and were hopelessly out of date. Some parts of the country
were obviously overrepresented in the Commons, whereas others,
especially in recently industrialized areas, were hardly represented at
all. In this way the enterprising bourgeoisie of large parts of the
kingdom was deprived of political influence, as if there had been no
Industrial Revolution and rural England was still intact. In numerous
insignificant countryside districts and the notorious 'rotten boroughs'
the landowner simply nominated the local member of Parliament of
his choice, which again advantaged the landed interest as against the
new social and economic groups and their political ambitions. The
old map of the constituencies was redrawn and to a large extent
adapted to the demographic and economic reality, which automatically
led to the decline of the old classes and the entry ofhomines novi into the
Commons. The Act of 1832 went even further and granted suffrage to
1
This reflected certain economic realities, for it appeared from the 'new Doomsday' of Lord
Derby (d. 1893) that four-fifths of the kingdom was in the hands of only 7,000 people, and that
of the sixteen topping £100,000 a year in rentals, all but two were peers. Sec D. Sutherland,
The landowners (London, 1968).
The bourgeois nation state
197
a new layer of voters from the middle class: the tax-paying qualification
was lowered and the electorate grew by about 50 per cent so that
a b o u t one Englishman out of five had the vote. In 1867 a n o t h e r step
forward followed, as the second Reform Act extended the franchise so
as to include a considerable section of the working class. This 'jump in
the dark', which gave the vote and therefore power to millions of low
income earners, had caused considerable alarm but, although it
doubled the size of the electorate, did not result in any fundamental
change, let alone the universal plunder of the propertied class. The
Act of 1867, which had favoured town dwellers, was followed in 1884
by a comparable measure for rural workers, the third Reform Act,
which was itself followed by new revisions of the constituencies in
1885 and 1888. Universal suffrage for men and women at last arrived
in 1918.
These changes produced no sudden political cataclysm because the
working class at first was no more than a pressure group inside the
Liberal Party and only resolved to form a modern party of its own and
to act independently in the House of Commons at the beginning of the
twentieth century. In 1911 the Parliament Act severely reduced the
legislative impact of the House of Lords, which could no longer hold
up indefinitely laws passed by the Commons, but only delay them. It
remains nevertheless till this day an i m p o r t a n t p a r t of the legislature,
where debate is carried on by people of experience and independence
of mind, particularly the law lords and the life peers (members of the
House of Lords who were not born into the aristocracy but made
peers by the crown).
The modernization of Parliament was no doubt the main change in
the British Constitution. But in its wake some other adaptations were
carried out. In 1835 elected municipal councils were introduced to
supplant the old closed patriciate. In 1888 elected county councils put
an end to the patriarchal justices of the peace, who had dominated the
countryside for centuries, not only as judges but as administrators as
well, with, for example, the power of fixing prices and wages. In the
same century the medieval common law and its courts were reformed,
inter alia, by the Judicature Acts of 1873 and 1875. But nothing
changed Britain's unitary, centralized structure: in the past decades
plans for devolution in Scotland - with a Scottish parliament - failed
to materialize.
Although quite a few elements of the Constitution had thus been
emended, its peculiar character remained unchanged: it was based on
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The bourgeois nation state
custom and an unwritten and therefore flexible Constitution. This
means that it consists of rules which are considered fundamental, but
can nevertheless be changed at any moment by Parliament without
any special procedural precautions (such as a declaration of the intent
to change the Constitution before the election of a Constituent
Parliament, the requirement of special majorities in Parliament or a
referendum)} If one understands by a Constitution a rigid fundamental
law, different from ordinary laws and binding even for the legislature,
then it can be said that Britain has no Constitution at all: its
Parliament is sovereign and can make or unmake any law it chooses,
without being hindered by a Constitution, let alone judicial control. 3
The absence of a Constitution means that there is no written Bill of
Rights, no textual anchor, where the fundamental freedoms of the
citizens are written down. 4 This state of affairs, which has been
accepted for a long time as dogma, is nowadays questioned and
subjected to a lively debate.
The sovereignty of Parliament, i.e. its freedom to legislate being
neither restricted by existing laws, the general principles of the
common law or natural justice, nor subject to judicial review, was
well established by the eighteenth century. 5 It was expounded most
authoritatively by the Oxford professor A. V. Dicey, in his Introduction
to the study of the law of the Constitution of 1885. 6 The basic idea is that
'99
nothing can go against the will of the people, that the will of the
people is to be done, and that therefore the will of Parliament, which
represents the people, is supreme. This unlimited, dictatorial
power of a single assembly nowadays upsets many observers, who
distrust absolute authority and fail to see why a parliament, once
elected, should not be obliged to respect certain well-defined
individual rights. 7 The critics of the existing situation argue that there
ought to be a written and rigid Constitution, or at least a Bill of
Rights, to protect the public from 'elective despotism'. 8 We find
this view expressed both by academics and by members of the
public. 9
The Oxford professor P.S. Atiyah has supported the idea that there
should be some fundamental rights which are not at the mercy of the
government and its majority in Parliament. 10 Other scholars have
voiced their unease at the existing state of affairs, i.e. 'the absence of
any common core of guaranteed individual rights'." On the other
hand, some academics fail to see how the sovereignty of Parliament
could be overcome, because of the principle that no parliament is
bound by its predecessors or can bind by its successors. If no
parliament can pass laws that are binding for a later parliament, how
can a fundamental law, binding Parliament, ever be passed? 12 There
is a risk of a petitio principii here, as the argument seems to be that we
cannot have a Bill of Rights because no parliament can bind another,
2
For the distinction between rigid and flexible Constitutions sec K. C. Wheare, Modern
constitutions (2nd edn., Oxford, 1966), 15-18.
3
There are some famous nineteenth-century pronouncements by judges on their submission to
the lawgiver. Among more recent declarations in the same sense we quote Lord Morris in
1974 in Pickin v. British Railways Board: 'it is the function of the courts to administer the laws
which Parliament has enacted' and Lord Reid, who in 1969 in Madtimbamuto v. Lardner-Burke
maintained that moral and other considerations could make a law 'highly improper' in the
eyes of many people, but that none would lead the courts to holding an Act of Parliament
invalid (sec A. W. Bradley, ' T h e sovereignty of P a r l i a m e n t in p e r p e t u i t y ? ' in J. J o w e l l a n d D.
Oliver (eds.), The changing constitution (Oxford, 1985), 26).
4
See the discussion in J. W. Cough, Fundamental law in English constitutional history (Oxford, 1955).
1
Blackstone, for example, wrote about Parliament: 'it hath sovereign and uncontrollable
authority in the making . .. of laws, concerning matters of all possible denominations. .. this
being the place where the absolute despotic power, which must in all govcrnements reside
somewhere, is entrusted by the constitution of this kingdom' (quoted by D. Lieberman, The
province of legislation determined. Legal theory in eighteenth-century Britain (Cambridge, 1989), 50.
See also C. K. Allen, Law in the making (7th edn, Oxford, 1964), 4 5 0 - 6 6 .
6
This classic, which went through numerous editions, was criticized by W. I.Jennings, The law
and the constitution (London, 1933) and more recently by P. P. Craig, Public law and democracy in
the United Kingdom and the United States of America (Oxford, 1990), 1 3 - 5 5 . Sec also the remarks in
J. Jowell and D. Oliver (eds.), The changing constitution (Oxford, 1985); Lord Denning, The
closing chapter ( L o n d o n , 1983), 1 1 5 - 3 9 ; a n d j . F. M c E l d o w n e y , 'Dicey in historical perspective
- a review essay' in M. McAuslan and J. F. McEldowney (eds.), Legitimacy and the constitution
(London, 1985), 3 9 - 6 1 .
' We are, of course, talking here about the British legal system, without reference to the
possibility for British subjects to go to the European Court of Human Rights at Strasbourg
with complaints about violations of human rights.
8
The expression was used by Jefferson, who wrote: 'The concentration of these [the executive,
legislative and judicial powers] in the same hands is precisely the definition of despotic
government. It will be no alleviation that these powers will be exercised by a plurality of
hands, and not by a single one: 173 despots would surely be as oppressive as o n e . . . An elective
despotism was not the government we fought for' (quoted in M. L. Volcansek and J. C.Lafon,
Judicial selection. The cross-evolution of French and American practices (New York, 1988), 24).
9
It comes as no surprise that Jeremy Bentham was an advocate of a constitutional code. His
First principles preparatory to a constitutional code, edited by P. Schofield (Oxford, 1989), contains
the germs of Bentham's Constitutional code, which was published by the Clarendon Press in
1982. See also D. Lyons, In the interest of the governed. A study in Bentham's philosophy of utility and
law (Oxford, 1974).
10
P . S . Atiyah, Law and modern society (Oxford, 1983), 108.
" A. Lester, 'The constitution's decline and renewal' in J. Jowell and D. Oliver (eds.), The
changing constitution (Oxford, 1985), 345. The author stresses the importance of the European
Convention for the Protection of H u m a n Rights and concludes: 'We find ourselves isolated
from our neighbours in Europe in our lack of a written constitution. The hope must be that
our adherence to the European system will bring about a new constitutional settlement'.
12
H. W. R. Wade, 'The basis oflegal sovereignty', Cambridge Law Journal 14 (1955), 172-96;
T. R. S. Allan, 'Legislative supremacy and the rule of law: democracy and constitutionalism',
Cambridge IMW Journal 44 (1985), 1 1 1 - 4 3 .
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as each parliament is sovereign, and it is sovereign because it cannot
be bound by another. 13
Public opinion is divided. There are voices both on the right - Lord
Hailsham, for example - and on the left the Charter '88 movement,
for e x a m p l e - in favour of a Bill of R i g h t s , b u t they a r e usually raised
when their own political family feels threatened by the prospect of a
long spell in the opposition. There is nevertheless a wide current in
favour of a Bill of Rights. At the time of writing, in the context of a
long p e r i o d of C o n s e r v a t i v e P a r t y rule, the political right is n o t vocal
in its defence, 14 whereas the left likes the idea on principle but is
frightened by the prospect of j u d i c i a l review a n d the c o n c o m i t a n t
impact of the judiciary, which it sees as a conservative force. Hence
the expressions of alarm in readers' letters in the press about the
enactment of an enforceable Bill of Rights meaning 'transferring
political decisions from Parliament to the courts'. 15
It is clear that the debate on a Bill of Rights for Britain - and
judicial review - goes beyond academic comment, and concerns basic
political views a n d o p t i o n s a b o u t t h a t most sacred keystone of British
life, the Parliament at Westminster. 16
FRANCE
AFTER
NAPOLEON
Introductory remarks
During the turbulent and creative quarter century between the fall of
the Bastille and the battle of Waterloo the seeds of every later
constitutional development were sown. All the main ideological
families and national interests which fought each other from Louis
13
14
13
16
Medieval parliaments have accepted the principle of higher laws that were binding for all
time. Thus the Parliament of 1369 assented that 'the Great Charter and the Charter of the
Forest beholden and kept in all points, and if any Statute be made to the contrary, that shall
be holden for none' (Gough, Fundamental taw. 15).
It can be observed that politicians who arc not happy with the way things arc going in
Parliament think of a Bill of Rights or a referendum as the last resort to put things right. It is
not uncommon for them to reject the referendum as contrary to parliamentary democracy in
one political context, and to want to resort to it in another.
The Independent of 20 April 1989.
Among recent publications, sec the following: J. Jaeonelli, Enacting a bill of rights, The legal
problems (Oxford, 1980); R. Dworkin, A bill of rights for Britain (London, 1990); K. Ewing, A
bill ofrights for Britain? (London, 1990); A. Lester et al.,/1 British bill ofrights (London, 1990);
F. Vibert (ed.), Britain's constitutional future (London, 1991); A people's charier: liberty's hill oj
rights (London, 1991). Sec also some remarks in R. C. van Caencgcm, Judges, legislators and
professors. Chapters in European legal history ( C a m b r i d g e , 1987), S f o - 6.
The bourgeois nation stale
201
X V I I I to de Gaulle's Fifth Republic can be traced back to the great
revolution of 1789 and its immediate aftermath. The following
components come to mind.
Monarchism was a nostalgic movement, harking back to the
Ancient Regime and rejecting the revolution and all its works. The
kings of France were seen as the architects of the country's greatness.
T h e i r disappearance was linked to the decline of the nobility and the
Church, the ancient elites who might have kept modern egalitarianism
at bay. A strong government was required as a dam against the
abominated democracy and the political wheeler-dealers and as the
guarantor of France's historical role. Monarchic traditionalism,
wedded to conservatism and nationalism, easily became xenophobic
and anti-Semitic. The vitality of this current was not only apparent
under Louis X V I I I , Charles X and Louis-Philippe, but also after the
fall of the Second Empire, when France 'provisionally' became a
republic again, while the monarchist majority waited for the two
pretenders to the throne to settle their quarrel (it was only when this
proved impossible that the country became a republic for good).
Even in the first half of the twentieth century the chauvinist-royalist
Action franfaise of the agitator Charles Maurras (d. 1952) was a force to
be reckoned with.
Republicanism was a movement that saw itself as the true heir of
the revolution, and particularly of the National Convention. It was
progressive and attached to equality and the secular state. It was
bourgeois and parliamentarian. It distrusted a strong executive and
throve on the indirect democracy of the political parties and the all
powerful parliament. Its politicians would have preferred to dispense
with a head of state altogether, but when this seemed impossible, they
were prepared to put up with a presidential figure-head who was no
threat to their combinations and arrangements. The Third Republic
(of which the Fourth was a revised version) was their golden age.
Bonapartism, like monarchism, valued a strong executive and
forceful rule, but it lacked the traditional legitimist anchor of
kingship. It committed personal rule to a military leader, a saviour of
the fatherland in times of internal or external crises. It was not based
on parliament and parties, but on popular trust and acclaim,
expressed by plebiscite or election. It was plebeian and akin to direct
democracy in ways that were lacking both in monarchism and
republicanism. Bonapartism, the French version of Caesarism, appeared
on the political scene with the First Consul, Napoleon Bonaparte, as
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The bourgeois nation state
one of the numerous experiments in the void left by the fall of the
ancient monarchy. It reappeared after the debacle of the Second
Republic under Emperor Napoleon I I I . It surfaced briefly at the time
of the failed coup (more precisely, the coup that was never even
attempted) of General Boulangerin 1889, and gained another chance
after the inglorious demise of the Third Republic in the summer of
1940, with Marshal Petain, to many Frenchmen the heroic saviour of
France, and with General de Gaulle, to many other Frenchmen the
liberator of Paris in 1944. De Gaulle had, however, to wait until 1958
for a Constitution that suited his ideas and his personality. His aim
was a regime that would put an end to the rule of lobbies, such as the
famous feodalite de la betlerave (the sugar lobby), and the political
parties, which he liked to call 'the factions'.
Socialism stood for working-class interests and fought bourgeois
capitalism. It wanted to break the power of property-owners and
extend equality before the law to social and economic equality,
wedding economic to political democracy. Some adherents of this
current viewed the state as the enemy and were converted to
anarchism, whereas others saw in the state the most adequate
machine for the foundation of economic democracy against the
dominant capitalist interests. As industrialization came slowly and
late in France, the proletariat only became a real force in the
twentieth century. In the nineteenth it had surfaced in the brief but
violent revolts of 1848 and 1871, but in the last phase of the Third
Republic it attained governmental status at the time of the Popular
Front and managed to obtain modest social benefits, such as yearly
paid holidays and a shorter working week.
As the years after 1789 were the starting point of so many threads in
the political and constitutional development of modern France, they
were also responsible for the sharp and often bitter conflicts of the
nineteenth and twentieth centuries. All great antagonisms go back to
those dramatic years, which witnessed such extreme and unpardonable
steps as Louis XVI's execution, the Terror and the persecution of
Christianity.
The antagonism between monarchists and republicans was deep
seated. Old-style kingship fell in 1830 and its more liberal version was
driven out in its turn in 1848, whereas the expected restoration in the
1870s never materialized. Hence the Third Republic was abominated
by the monarchists, a common name for conservatives and clericals,
who campaigned relentlessly against it. The salient moments were the
Dreyfus affair, with the resultant nationalist and anti-democratic
agitation of the Action franfaise, directed by Leon Daudet (rf.1942).
Charles Maurras (rf. 1952) and Jacques Bainville (rf.1936), and the
fascist leagues after the First World War, responsible for the bloody
demonstration in front of the parliament building in February 1934,
together with various forms of collaboration during the Second
World War.
203
The republic was threatened by replays of the Brumaire scenario.
Napoleon's nephew put an end to the Second Republic, and General
Boulanger's followers, who shouted 'A I'Elysee' on 27 January 1889,
would have liked to do the same to the Third. But the regime survived
until it committed hara-kiri on 10 July 1940 and gave Philippe
Petain, a hero of the First World War, full powers to save France.
The estrangement of the Catholics, which started with the Constitution
civile du clerge and was completed under the Convention (but to some
extent reversed by Napoleon's Concordat), at times assumed a
painful and bitter character. On various occasions the antagonism
was violent and bloody, as under the Commune of 1871, when the
archbishop of Paris was killed. At other times it was more civilized
and organized, as during the bouts of anti-clericalism under the
Third Republic, which led to the expulsion of the religious orders and
the rupture of diplomatic relations with the Vatican. Republican
anticlericalism had two faces. On the one hand it was caused by a
genuine fear of the Church as the symbol of the Ancient Regime and
the focus of various conservative tendencies. On the other it was a
lightning rod used by the ruling parties to divert attention from social
and economic demands from the left, which threatened bourgeois
interests and were shelved while public opinion got worked up about
the dangers of religious obscurantism. 17
Agitation by the French extreme left was only taken seriously at a
later d a t e . In 1871 the a r m y of the provisional g o v e r n m e n t h a d given
the Commune short shrift, and the Popular Front government of
Leon Blum in 1936-7 was a brief episode. The left was only given a
real chance during and after the Second World War, when the
communists, after Hitler invaded the Soviet Union, joined the
resistance against the Germans in large numbers and became a
political force of the first magnitude. After the war the left carried
governmental responsibility, as the Fourth Republic was dominated
I'hc problem is placed in a wider chronological perspective in N. Ravitch, The Catholic Church
and the French nation ifjHy-iySy (London, 1990).
An historical introduction to western constitutional law
by three parties of comparable strength, the communists, the socialists
and the Christian democrats of the Mouvement Republicain Populaire
(MRP). Later, the 'cold war' and Gaullist successes pushed back the
left^ until its comeback under President Mitterrand.
The successive Constitutions which we shall now present can only
be understood against the political background, as the reverberations
of the great revolution were always near the surface. Not only did
opposing tendencies hark back to ideas and interests of 1789, but
French political discourse is till this day full of references to personalities,
pronouncements and events of the 'great years'. Some later Constitutions
were not much more than new editions of the achievements of the
heroic age: the regime of Napoleon I I I , for example, was based on a
revised version of the Constitution of the Year V I I I .
The 'Charte oclroyee' of 1814
The Restoration monarchy which succeeded the Napoleonic regime
was no replay of the absolute kingship of bygone centuries: the past
was buried for good. Indeed, the anointed kingship of Louis XVIII
was a constitutional monarchy, even though the Constitution of 1814
had been oclroyee, i.e. benevolently 'granted' by his majesty to his
subjects, and, from 1816 onwards, it was in fact also a parliamentary
monarchy even though the cabinet ministers were, according to the
letter of t h e text of 1814, only a c c o u n t a b l e in the c r i m i n a l sense of the
word (penalement responsables). The Constitution of 1814 was influenced
by Benjamin Constant's ideas, as expressed in his Reflexions sur les
constitutions of 1814, 18 where the king was depicted as a pouvoir neulre
vis-a-vis the three traditional powers. The main elements of the
Constitution can be summarized as follows.
A first panel, entitled Droits publics des Franfais, contained a
declaration of the rights and liberties of the citizens, such as equality
before the law (which excluded a return to the old privileged estates),
t h e r u l e nullum crimen sine lege (excluding c r i m i n a l laws with r e t r o a c t i v e
effect), a guarantee of due process of law, freedom of religion
(although somewhat reduced by the stipulation that 'the RomanCatholic religion is the religion of the state'), the inviolability of
18
The full title was Reflexions sur les constitutions, la distribution des pouvoirs el les garanties d'une
monarchie constitutionnelle, i.e. 'Reflections on the Constitutions, the distribution of powers and
the guarantees of a constitutional monarchy'. The author proposed a return to the
Constitution of 1791, but with less restricted royal powers.
The bourgeois nation state
205
property rights (with a clause excluding any return of the revolutionary
biens nationaux to their Ancient-Regime owners), and also a form of
amnesty for revolutionary activities (though in fact numerous 'regicides'
fled abroad for fear of the 'white terror').
Executive power was in the hands of the king and his ministers,
whose responsibility, as we have seen, was changed in 1816 from a
criminal (before law courts) to a political accountability (before
parliament). This took place after the elections had produced an
ultra-royalist majority which wanted to make sure that the government
would follow an ultra-conservative course and therefore demanded
that after the British model, 'the ministers and the king himself should
obey the will of the parliamentary majority'. This request was
accepted through an interpretation of Article 18 of the Constitution,
which said that on every law there had to be a free debate and a free
vote by the majority of each chamber. 19 These two chambers, which
wielded legislative power together with the king, were the Chamber
of the Peers, an imitation of the House of Lords, for which La Fayette
had pleaded in vain twenty-five years before and whose members
were appointed by the king mostly from the ranks of the Ancient-Regime
or Napoleonic nobility, and the Chamber of Deputies, elected by such
a severely restricted suffrage that only landowners had the vote. The
government had the exclusive right to propose bills.
Towards the end of the reign of Charles X, who had succeeded
Louis X V I I I in 1824, the liberal opposition gained influence and, in
June 1830, won the elections. The refusal of the king to accept their
results and the publication of ordinances to curtail freedom led to the
July Revolution of that year and the abdication of the monarch.
The 'Ckarte constitutionnelle' 0/1830
The successor of Charles X was the 'bourgeois king' Louis-Philippe
d'Orleans, son of the progressive Duke Philip of Orleans, called
'Philippe Egalite', who had been a member of the Estates General of
1789. The Constitution of 1814 was little changed. It was, however,
no longer a 'granted charter' but a 'constitutional charter', and the
monarch was styled 'king of the French' instead of'king of France';
royal anointment, a religious element of the coronation which was
deemed to recall too strongly the Ancient Regime, was abolished. Far
" This stipulation was literally repeated in Article 16 of the Constitutional Charter of 14
2o6
An historical introduction to western constitutional law
from 'granting' a Constitution out of the fullness of his power, the king
was himself formally subjected to a fundamental law proclaimed by
the Chamber of Deputies.
The following minor differences between the Constitutions of 1814
and 1830 deserve to be mentioned. The king's authority to issue
ordinances, provided by Article 14 of the Charter of 1814, was
abolished, and so was his right to veto or suspend laws. Catholicism
was only recognized as the religion of the majority of the French
people, but not of the state, and censorship was forbidden forever.
The spirit of the new-style monarchy was more secular, modern,
liberal, bourgeois and parliamentarian (it provided for ministerial
accountability to parliament). The French Charte conslilulionnelle
lasted only till 1848, but it was the main model for the Belgian
Constitution of 1831, which was much praised and imitated by liberal
fundamental laws in Europe and elsewhere.
The Second Republic, 1848 32
The July monarchy lost its popularity because of the reactionary
policy of Louis-Philippe's prime minister, the historian Francois
Guizot (d. 1874). Liberal discontent led to the February Revolution of
1848, which easily conquered Paris and led to the flight of the king.
The republic was proclaimed and a provisional government formed,
containing liberal republicans, called 'radicals' (among whom the
author Lamartine), and socialists (among whom the historian Louis
Blanc). This was the beginning of a short but most dramatic phase,
which ended with the seizure of power by Napoleon III, who bitterly
disappointed both the liberal-republican and the socialist-republican
movements. Liberals and socialists in the provisional government
were initially in agreement, notably about the principle of universal
suffrage, which was proclaimed. But soon dissension was created by
socialist demands, unacceptable to the liberals. The great difference
with the July Revolution of 1830 was precisely the impact of a strong
socialist movement, which followed theories of C.-H. de Saint-Simon
(</. 1825), P . J . Proudhon (d. 1865) and C. Fourier (d. 1837) and was
supported by the industrial proletariat of Paris, a product of
advancing capitalism. Social unrest at the end of February and on 17
March 1848 radicalized the revolution and led to the recognition of
the right to work, the creation of the Commission pour les travailleurs
('workers' commission') and the organization of the Ateliers nationaux
The bourgeois nation state
207
('national workshops'), where the workers were supposed to run
production with state help, but which turned out to be places where
the unemployed were kept busy and paid wages from the public purse.
In April elections took place for a Constituent Assembly, by
universal male suffrage - a lasting feature of French elections. 20 To
the amazement of many revolutionaries the resulting Assembly was
very conservative. France was still an agricultural land, and the
peasants had voted conservative in a massive way. In the late
eighteenth century they had eagerly joined the revolution, taking
their revenge on their old masters and hoping to grab land, but in
1848 they rejected the Parisian clubs of radicals and their attacks on
property: many farmers had become small proprietors and all had
profited from the abolition of tithes and servile services which had
turned them and their forebears into revolutionaries in 1789. Now
they were content and had no time for intellectuals who preached
socialism and the expropriation of the means of production. The
behaviour of the peasant masses in twentieth-century Russia was
comparable, as they also supported the Bolshevik Revolution in 1917,
in the hope of land, but turned against the new regime when it took
the land from them under collectivization. Disappointed progressives
in France blamed the electoral disaster on the village priests, who
were supposed to have influenced the faithful in a conservative sense,
but they overlooked the fact that the same village clergy had failed to
keep their faithful in hand in 1789, so that its influence could not have
been the decisive factor.
How conservative the Constituent Assembly was became clear as
soon as it went into action and rejected various social demands out of
hand. A motion to recognize the right to work, for example, was
supported by 72 out of almost 900 members, and a proposal for a
progressive income tax was supported by 110. The result was a
left-wing coup under Armand Barbes (^.1870) and Louis-Auguste
Blanqui (d. 1881), the latter being a defender of the dictatorship of the
proletariat and a follower of Babeuf. The coup was repressed without
difficulty by the army and the National Guard, a bourgeois citizen
militia, and various social initiatives, such as the national workshops,
were liquidated in June 1848. This led to an angry explosion in
working class areas, where some 20,000 men barricaded themselves.
The revolt was smashed in bloody street fighting on 24-26 June 1848
20
The female vote, as we have seen, was introduced in 1944.
208
An historical introduction to western constitutional law
The bourgeois nation state
by General Cavaignac with units of the army and the National
Guard, strengthened by volunteers from the provinces who had had
enough of Paris and its radical clubs. It was a clear-cut example of
class warfare, the urban middle class and the peasants (mostly
smallholders) fighting the anarchists and the partageux, i.e. people
who defended the sharing of property.
In December 1848 presidential elections were held, which were
won easily by Louis-Napoleon Bonaparte, a nephew of Napoleon.
Bonapartism had reappeared, and the next step was the coup d'etat of
December 1851, when the president dissolved the National Assembly,
elected in 1849, and arrested more than 200 of its members. The
crowning achievement was the proclamation in December 1852 of
Napoleon III as emperor: the Second Empire had begun. Thus the
paradoxical consequence of the revolution and the workers' revolts of
1848 was the restoration of the Napoleonic regime, in which the
peasants embodied conservatism and the army sustained the new order.
The main characteristics of the ephemeral Constitution of 1848
were the following. The separation of powers was made complete.
The legislature consisted of a single assembly of 750 members, directly
elected by universal suffrage. E x e c u t i v e p o w e r was in the h a n d s of the
president of the republic, elected for a four-year term by universal
suffrage: he had no right of veto. 21
only accept or reject proposals worked out by the Council of State,
whose members were appointed by the president, to whom cabinet
ministers were also accountable.
At the proclamation of the empire, the Constitution of January
1852 was adapted to the new situation by the replacement of the title
of president by that of emperor. The new regime was widely accepted,
as appeared from the plebiscite where the new emperor received
almost 8 million yes-votes, against about half a million no-votes.
Popular Caesarism had proved its vitality. Once again the pendulum
had swung between parliament and autocracy. The political
consequences of 1848-52 were momentous, as the irreconcilable
opposition between right and left led to bitter hatred. Leading
republicans went into exile and Napoleon Ill's rule was repressive,
numerous freedoms being abolished and the opposition harassed. The
emigres of the Second Empire bode their time and dreamt of revenge.
They eventually got their chance, not because of the minor measures
of liberalization in the 1860s but because of the military catastrophe
in the French-German war of 1870 and the flight of the emperor.
The Second Empire, 185270
The political consequences of the events of 1848-52 were as important
as their constitutional impact was insignificant. The Constitution of
1848 was short-lived, as we have seen, and the Constitution of
Napoleon III, of January 1852, was, as could be expected, not much
more than a revised version of the Constitution of the Year V I I I , the
legal basis of his uncle's regime. The president of the republic, elected
for ten years, received almost unlimited power, and a two-chamber
parliament was reintroduced. The Legislative Corps, elected by
universal suffrage, was a democratic motor, but the Senate, whose
members were appointed by the president, acted as a forceful brake.
The legislature was further restricted by the provision that it could
" The French February Revolution of 1848 was the signal for a series of revolts that shook
many thrones in Europe. One of the best analyses of these events can be found in the classic of
Sir Lewis Namier, 1848. The revolution of the intellectuals, reissued with a new introduction b y j .
Joll (Oxford, 1992).
209
The Third and Fourth Republics, i8yo-ig§8
One gains the impression that modern France, after much turbulence
and experimentation, found stability at last in the regime of the Third
Republic. Its most striking feature, at first sight, is its longevity by
French standards: it lasted from 1870 till 1940 and, if one considers
the Fourth Republic as a revised version of the Third, even till 1958.
That is almost a century. The republic witnessed some critical
moments, such as the episodes with Boulanger and the fascist leagues,
but they were easily overcome. The crisis of 1940 was of the utmost
gravity, but even then the system of the Third Republic - if not its
Constitution - survived, as the Fourth Republic was basically the
continuation of the Third. It was not until the Fifth Republic and the
introduction of a presidential regime that French constitutional law
took a new turn.
In 1875 the Third Republic said farewell to monarchy and
Caesarism but also, and very markedly (as the repression of the
Commune of Paris showed), to social radicalism. The republic was
parliamentary, bourgeois and secular. Its party-political orientation
was e v i d e n t in the s t r o n g position of t h e legislature a n d the weakness
of the president, a mere symbolic head of state and certainly no
An historical introduction to western constitutional law
The bourgeois nation state
policy-maker; it also manifested itself in the unending succession of
cabinets which were put on stage and sent packing again by the play of
changing parliamentary majorities, as puppets in a Punch and Judy
show. Its bourgeois character explains its attachment to economic
liberalism and weak social consciousness. Its secularism led to religious
indifference and occasionally to anti-religious animosity. The regime
clearly suited society at large, as France was a nation of traditional and
individualistic middle class town dwellers and peasants, keen on
material gain and wary both of backward looking obscurantism and
social and economic adventurism. These fundamental realities and the
able national bureaucracy were the stable elements that kept the ship
of state on an even keel and made possible the building of a large
colonial empire; they also allowed France and the republic victoriously
to survive the terrible ordeal of the First World War. In contrast to the
political d r a m a s in the years 1870- 1958, the constitutional developments
have been uneventful and the harvest of texts is meagre. In fact there
are only two worth mentioning here, the Constitution of 1875, which
was not a real Constitution but a set of three lois constitutionnelles, and the
Constitution of the Fourth Republic of 1946.
T h e surrender of Napoleon I I I at Sedan, in September 1870, had
immediate repercussions on the home front: the Paris mob demanded
a republic, power was up for grabs. Two groups made a bid, the
moderate and the revolutionary republicans, the latter marching
behind the red flag. The moderates formed a Provisional Government
of National Defence, containing Parisian republican members of the
Legislative Corps and headed by the military governor of Paris. The
provisional government proclaimed the republic and easily outflanked
the extremists, who would return to the scene with a vengeance at the
Commune of Paris the following year. The provisional government,
which was also continuing the war against Germany, aimed at
founding a stable regime at home. Elections were organized, which
gave the conservative monarchists a clear lead. T h a t in spite of this no
restoration of the monarchy ensued was due to the uncompromising
attitude of two pretenders and their followers: the legitimists, who
marched behind the banner of the Count of Chambord, a grandson of
Charles X, and the Orleanists, who adhered to the Count of Paris, a
grandson of Louis-Philippe. Finally, after years of hesitation the
(considerable) minority of republicans gained the upper hand and, to
get out of the impasse, the republican regime was introduced in 1875,
with a majority of one vote in the Assembly.
In the meantime, on 18 March 1871, the Paris Commune, a local
left-wing revolt, anti-religious, Jacobin and proletarian had started.
It was aimed against the conservative national government, which
had appointed the historian Adolphe Thiers {d. 1877) as chef dupouvoir
executif, and resided at Versailles. The moderate republican regime
suppressed the Commune manu militari, thus winning conservative
support, and eventually the republican Constitution of 1875 was
accepted as a lasting point of equilibrium. It consisted, as we said, of
three 'constitutional laws', of 24 and 25 February and 16 July 1875,
concerning respectively the Senate, the powers in the state, and their
mutual relations. Paradoxically the French regime that lasted longest
was based on the briefest legal texts, as if people remembered
Napoleon's saying that the best Constitutions were 'short and
obscure'. The main elements of the Constitution of the Third
Republic were the following.
210
211
The head of state, the president of the republic, was elected for a
term of seven years, not by the people, but by the two chambers of the
legislature, which straight away highlighted the parliamentary
character of the regime. The president, a sort of republican
constitutional monarch, was inviolable and considered above party
strife. The cabinet ministers, by contrast, were accountable, not to the
president but to parliament. Consequently the legislative c h a m b e r s i.e. the capricious and changing party coalitions - always had the
governments under control and could topple them with the greatest
of ease (no constructive proposal for a replacement being required).
This, together with the absence of a two-party system after the British
or American models, led to the notorious instability of the governments
of the Third Republic and, for that matter, of the Fourth (which
counted twenty-one cabinets between 1947 and 1958).
Parliament was bicameral, with a Chamber of Deputies, elected by
universal suffrage, and a Senate, elected since 1884 by the departmental
councils - one more example of the role of the local notables (and
comparable to the initial election of the United States Senate).
Although there existed, generally speaking, a dichotomy in parliament
- and in the country - between la droile and la gauche,22 no two-party
system, with one party grouping the left and the other the right, ever
developed. French parties and mini-parties were too numerous and
'" 'Right' and 'left' arc notions which are indispensable in modern political history, even
though their definition is extremely difficult. See the remarks in D. Caute, The left in Europe
since i?8g (London, 1966), 8-25.
An historical introduction to western constitutional law
The bourgeois nation state
divided for that, and it is even doubtful whether some of these 'parties'
(particularly on the right) deserve that name, as they lacked even a
minimum of party discipline and organization. Thus the 'radicals'
(i.e. liberals) were split into doctrinaire, opportunist and progressive
wings, whereas one section of their left formed, in 1893, the
radical-socialist group, which for some time voted with the socialists.
Among the latter also there was dissension. The Parti Ouvrier
Francais ('French Workers' Party'), founded in 1880, was more akin
to Proudhon than Marx, but after it had won some fifty seats in
parliament in 1893, it decided to adopt Marxism as its doctrine in
1895-6. Nevertheless there arose two socialist parties, one moderate
and the other strictly Marxist and revolutionary, until Jean Jaures
(</. 1 g 14) managed to unite them in the Section Francaise de
ITntcrnationale Ouvriere (SFIO), which was destined to a role of
some importance between the World Wars and under the Fourth
Republic. A communist party was founded shortly after the First
World War, and a Christian-democrat party after the Second, with
the foundation of the Mouvement Republicain Populaire (MRP),
which we mentioned before. It is remarkable that France, where
conservative opinion was influential, never gave birth to specifically
Catholic parties, as happened in Germany, the Netherlands and
Belgium.
In spite of various 'scandals', created by politicians' involvement
with financial interests, and several 'affairs', caused by anti-Semitism
and veneration for the military establishment, the Third Republic
held out well until 1940, when it fell, like other regimes in the past, in
the wake of a military disaster, i.e. the collapse of the French army
and the armistice with the Germans, who already occupied a large
part of the country. Legally speaking the regime was dissolved by a
combined assembly of the senators and deputies which, in July 1940,
at Vichy (in unoccupied France), gave a mandate to draft a new
Constitution to Marshal Philippe Petain, a hero of the First World
War who had been placed at the head of the state in the vain hope of
averting military defeat. The marshal was told that the new regime
had to uphold the traditional values of travail,famille etpatrie ('labour,
family and fatherland'). The abolition of the Constitution of the
Third Republic was implied in the mandate to draft a new one
(which never materialized, although Petain put some desultory work
into it, and a few fragments were drafted). The constitutional law,
which was passed on 10 July 1940 by a great majority and after an
animated debate, contained a single article: 'The National Assembly
gives full power to the government of the Republic, under the
authority and signature of Marshal Petain, in order to promulgate,
by one or several acts, a new Constitution of the French state. This
Constitution shall g u a r a n t e e the rights of labour, the family and the
fatherland. It will be ratified by the nation and applied by the
Assemblies which it will have created'. 23 The first use which Petain, as
soon as 11 July 1940, made of his full powers was to abrogate the
essential elements of the Constitution of 1875, by issuing his Actes
constitutionnels nos. 1, 2 and 3. T h e legislative chambers were 'adjourned
until further notice' and the new leader issued the proclamation: 'We,
Philippe Petain, Marshal of France, declare that we assume the
functions of head of the French state'. 24 With the disappearance of the
function of the president of the republic, the republic itself had been
liquidated.
The 'head of the French state' assumed all executive and legislative
powers until the new Constitution created the new Assemblies. It is
noteworthy that in its gravest hour the Third Republic could think of
nothing better than to recall an 84-year-old marshal, a hero of the
previous war, to take over the ship of state. The republican Constitution
had taken care to create an office of president without real influence,
but in addition the politicians had systematically elected insignificant
candidates, who could under no circumstances develop into new
Napoleons. A weak executive, headed by weaklings, had led to a state
of affairs where only a grey-haired marshal could be thought of to
save the fatherland. 25
At the liberation of France in 1944 a provisional government was
formed under the leadership of General de Gaulle, who had worked
with the allies against Germany during the war. De Gaulle and many
members of the Resistance movement had conceived great hopes of a
post-war France that would be rejuvenated and socially oriented.
Various grandiose plans were launched, only to get stranded on
ingrained habits. The disappointed de Gaulle left the political arena
because his request for a strong government and a presidential regime
212
23
213
See on the momentous events of 10 July 1940 the detailed work of E. Berl, La fin de la Hie
Re'publique (Paris, 1968). T h e constitutional law of that d a y was passed by 569 against 80 votes.
24
The term head of the French state (and not president of the French Republic) is significant.
It was presumably borrowed from the style of General Franco, Jefe del Estado; Petain had
been French ambassador in Madrid.
" For a classic survey of Petain's regime, see R. O. Paxton, Vichy France. Old guard and new order,
ig40~ig44 (New York, 1982).
An historical introduction to western constitutional law
The bourgeois nation state
was refused (a similar return to pre-war patterns was observed in
other countries, where plans for a renovation of political life floundered).
The communists could not stay in the government because of the cold
war, so that the path was open for an unobtrusive return to the regime
of the centre parties, which in those days were the socialists and the
Christian democrats. The consequences for the Constitution can be
described as follows.
From August 1944 till the referendum and the elections of October
1945 de Gaulle ruled in a way that has been called 'presidential and
even authoritarian, rather than parliamentary'. The referendum of
October 1945 put the choice before the country between the old - and
universally condemned
Third Republic and a new Constitution for
the Fourth, which would be drafted by a Constituent Assembly
elected by the people. At the same time the country was to decide
whether the new regime, if the old was rejected, would be based on an
omnipotent or a limited assembly. It was the old alternative again
between a strong or weak popular representation and a strong or
weak executive. De Gaulle militated for a limited legislature, the
communists against. The result of the referendum reflected popular
disgust with the regime of the Third Republic, already deceased in
1940, for 96.4 per c e n t of t h e electors rejected it. T h i s result h a d been
expected, but that on the assembly came as a surprise: a clear
majority of 65 per cent rejected the idea of an almighty assembly - a
vote of confidence in de Gaulle and his plan for a strong executive.
The parliamentary elections, held at the same time (and in which
women had the vote), led to a Constituent Assembly where the major
formation of the T h i r d Republic, the radicals, was reduced to a relic
of the past (with 28 seats), whereas three great parties shared victory,
the communists with 152, the MRP with 150 and the SFIO with 143
seats.
be put before the country in a referendum. It provided for a
unicameral parliament and left the election of the prime minister
styled 'president of the Council of Ministers' to the National
Assembly, which also elected the president of the republic (who was
given a representative role). T h e spirit of the Constitution was clearly
favourable to the Assembly and averse to an independent and strong
cabinet and president. The project was narrowly defeated in the
referendum of May 1946; it had been opposed by the MRP during
discussions in the Assembly and was suspected by many as opening
the gates to a totalitarian take-over by the left. Communist propaganda
in its favour had created the impression that a vote for the projected
Constitution was a vote for the communists. 26 The negative outcome
of t h e r e f e r e n d u m led to new elections in J u n e 1946, b u t t h e resulting
Constituent Assembly resembled its predecessor very closely and the
same parties resumed the same talks. The predictable result was a
slightly revised version of the rejected text of May. In the meantime
de Gaulle had thrown himself into the battle for the Constitution,
advocating a strong state and a chefde I'Etat dument etfortement arme ('a
head of state appropriately and strongly armed'). Who that strong
head of state was meant to be was clear to everyone, including the
politicians in parliament, who abominated the very idea of a 'strong
man'. It was obvious that they were not going to change the project
according to the wishes of de Gaulle, whose appeal was rejected
outright by socialists and communists. The new text was subjected to
a referendum in October 1946 and accepted, in spite of de Gaulle's
warnings against the dangers of'the parties disposing of all powers in
the republic, directly, arbitrarily and without any checks'. There
were (in round figures) 36 per cent yes-votes, 31 per cent no-votes
and 31 per cent abstentions. It was a very weak popular majority, in
sharp contrast with the massive majority for the project in parliament.
Although the Constitution of the Fourth Republic of 27 October
1946 resembled closely t h a t of the T h i r d a n d lasted only a s h o r t t i m e ,
it was not without some interest. We draw attention to the following
points.
The Constitution adopted right from the start the leftist tone:
'France is an indivisible, secular, democratic and social republic'. It
214
The deliberations in the Constituent Assembly led in October 1946
to the proclamation of the Constitution of the Fourth Republic. Its
elaboration had not been smooth, particularly since the Constituent
Assembly followed a path not approved by de Gaulle, whom it had
elected president of the republic in November 1945. He wanted a
presidential regime, with a strong and stable cabinet, whereas the
Assembly preferred an omnipotent parliament where the political
parties ruled the roost. The conflict between president and Assembly
was so acute that de Gaulle resigned at the beginning of 1946. The
Assembly carried on, and the constitutional project was soon ready to
26
215
A comparable situation arose in France in the summer of 1992 when a referendum on the
Maastricht Treaty on European Unification of 1991 was called. As President Mitterrand was
strongly in favour of Maastricht, a vote against the treaty was felt by many to be a vote
against the president and his government, although the real issue was totally different.
216
An historical introduction to western constitutional law
broke with the tradition of the older fundamental laws, which were
almost exclusively concerned with the rights of the individual and
strictly political matters, for it paid great attention to social and
economic issues. Thus every enterprise which 'was in the nature of a
national public service or enjoyed a factual monopoly was to become
the property of the collectivity', a legitimation a posteriori of a series
of nationalizations (coal, gas, electricity, banking and insurance,
Renault, Air France). Article 25 announced a national plan for the
econemy, in order to ensure 'full employment and the rational use of
material resources'. The Constitution declared that everyone had
both the duty and the right to work, was free to join the trade union of
his choice and to take part 'through the intermediary of his delegate'
in the collective determination of the conditions of work and the
policy of the enterprises. It also declared that it was the duty of the
state to organize public education which was 'gratis and secular at all
levels' - no mention was made of the free choice of education, a
controversial question because it concerned possible state subsidies
for free, mainly Catholic schools.
In the Constitution of 1946 the legislature ruled supreme. The
legislative power was essentially in the hands of the Chamber of
Deputies, which gave the regime the name of the 'republic of the
deputies'. That Chamber alone carried the prestigious name of
National Assembly, which used to be reserved for a common meeting
of both the Chamber and the Senate. There was, however, a second
chamber, not called Senate (because of conservative connotations),
but Council of the Republic. Assembly and Council together constituted
the Parliament of the Republic. The Council's role was real, but
subordinate and 'reflective', even though on certain matters its advice
was obligatory, but the Assembly had the last word 'definitivement el
souverainemenC. The old Senate, where so many bills had died an
inglorious death, was in its turn ingloriously sent to the museum of
institutions. The Assembly was not only a legislative body, but also
the real source of executive power, as appears from an analysis of the
role of the president. The Constituent Assembly, though pretending
to desire greater governmental stability, did not want to realize it
through a presidential regime, which was associated or confused with
personal rule. The idea was to obtain better results not by strengthening
the position of the head of state but of the head of the government.
Hence the prerogatives of the president of the Fourth Republic were
little different from those of his predecessor and, just as in the Third
The bourgeois nation state
217
Republic, he was elected by parliament and not by the people. The
leader of the government, called president of the Council (of
Ministers), was appointed by the president of the republic at the
b e g i n n i n g of each legislature a n d h a d to receive t h e confidence of t h e
Assembly, whereupon he formed his cabinet. The prime minister,
unknown by that name in the Constitution of 1875, was made the
central figure in 1946, and expected to provide stability and efficiency
(the event of a 'governmental crisis' was dealt with extensively in the
Constitution).
All these fine intentions came to nothing. T h e omnipotence of the
parties, constitutionally expressed in the Assembly, saddled France
between 1946 and 1958 with an unstable regime and so many cabinet
changes that the Fourth Republic was constantly in a state of latent or
open crisis. The inglorious end came in 1958, with de Gaulle's Fifth
Republic, which we will briefly touch upon in chapter 9.
GERMANY
FROM N A P O L E O N
TO
WILHELM
II
Introductory remarks
German constitutional development in the nineteenth century was
unusually varied and dramatic, because the country was confronted
with several fundamental problems at once. There was the struggle of
the middle class for a liberal state, based on a Constitution and a
parliament. This went hand in hand with efforts aimed at the
unification of Germany, and the much debated problem whether it
should be a 'little' or a 'greater' German unification 27 and what form
of government the new Germany should have, unitary or federal.
Another question concerned the role of the reunited Germany in
Europe and the world, for even 'little' Germany would be a political
and economic giant. In the course of one century Germany, which
beat the French army in 1870, became a major power which not only
caused the fall of the Second Empire in France, but developed global
ambitions, as expressed by the term Weltpolitik. The crucial question
in internal constitutional terms concerned the relations between
monarchy and parliament, as was shown in all its sharpness in Prussia
in the 1860s, when the crown felt entitled to raise revenue without the
consent of parliament. While all this was going on, the old latent
" Grossdeulsch or great-German unification would have encompassed all ethnic Germans,
including the Austrians; klexnieulsch or little-German unification left Austria out.
218
An historical introduction to western constitutional law
The bourgeois nation state
tension between Church and state became virulent and led under
Bismarck to the Kulturkampf. in true enlightened-absolutism style the
chancellor wanted to integrate the Catholic Church into the new
empire, but met stiff opposition from the German Catholics and the
Roman curia. To top it all, the spectacular industrialization of
Germany and economic liberalism led to proletarian protest and the
rise of a powerful social-democratic party. The establishment, again
headed by Bismarck, tried to stem the tide with prohibitions of
various sorts, but could not prevent the social-democrats from
becoming even before the First World War the strongest party in the
Reichstag.
What a perplexing imbroglio when compared with nineteenthcentury Britain, where most such problems had been solved long ago.
There national unity went back to the early Middle Ages, modern
Church - state relations went back to Henry V I I I , the struggle
between crown and Parliament had been settled in Cromwell's day,
and under Queen Victoria Britain was so used to world hegemony
that hardly anyone questioned or even discussed it. Politically
speaking labour problems were not acute yet, as before the First
World War the Labour Party was of no consequence in Parliament;
the only burning issue (except for the eternal Irish Question) was the
modernization of Parliament and the franchise which, as we have
seen, was solved gradually and peacefully.
Constitutions and parliaments. Public opinion ardently desired to
live in a united and liberal Germany, but the major powers decided
otherwise.
We shall now present the public law which developed from the
melting pot of nineteenth-century Germany.
The period of the Vormarz
The period between Napoleonic rule and the revolution of 1848 is
known as the Vormarz (literally before March, the month when
revolution broke out in Germany) and was marked by hesitant moves
towards German unification and the predominance of conservatism:
it was the era of Metternich and the Sainte Alliance of the crowned
heads of Russia, Prussia and Austria. The collapse of French
hegemony in 1814 15 created a void which left all possibilities open.
Germany could return to the Ancient Regime and total division, as in
the days of the Holy Roman Empire, but a united German state, after
the British or French mode, was also conceivable. In internal politics
also one could turn the clock back and restore royal absolutism, or
alternatively introduce a liberal form of government, marked by
21 9
In June 1815 no single German state, but a German Bund
('Confederation') was created. This was no mere return to the old
Kleinstaaterei, as the number of states was cut drastically: the great
shake-up under Napoleon had not been in vain. After the Congress of
Vienna, which concerned itself with German as well as European
problems, only forty-one German states, all monarchies, except for
the four urban republics of Hamburg, Bremen, Liibeck and Frankfurt,
survived; among them there were one empire and five kingdoms.
Although a confederation, not a federal state, the German Bund was
more solidly organized than the old Reich. There was a Bundestag,
residing at Frankfurt and chaired by the Austrian emperor, where
delegates of the sovereign member states, appointed by their respective
governments, met. Its main task was to guard the independence and
integrity of the members' territories and the security of the whole of
Germany (as Article 11 of the Constitution of the German Confederation
excluded war between member states, the Prussian-Austrian war of
1866 signified the end of the Bund). The most tangible step towards
German unity during that period was the ^ollverein ('customs union'),
which became effective on 1 January 1834 and turned seventeen
states with a total population of 23 million into a common market
(other states joined later, Austria doing so after its defeat in 1866: the
^pllverein was terminated at the unification of Germany in 1871).
The liberal dream was not fulfilled. In Prussia and Austria absolute
monarchy was restored, as there was not even a Constitution, and
nowhere was a parliamentary regime introduced. Nevertheless, some
progress was made, for in southern Germany a few constitutional
monarchies were established, where the crown (which was not
disputed) was limited by the norms of a fundamental law. This took
place mostly through the 'granting' of a Constitution, after the model
of the Charte conslitutionnelle of Louis X V I I I , considered as a happy via
media between the extremes of absolutism and republicanism. Before
1830, in the era of 'early constitutionalism', written Constitutions
were proclaimed, inter alia, in Nassau (the earliest of the series, dating
from 1814), Bavaria, Wiirttemberg and Baden. After the Parisian
July Revolution of 1830 had caused some panic, other states followed,
such as Saxony and Hanover. The five main constitutional monarchies
in southern Germany, Bavaria, Wiirttemberg, Baden, Hesse-Darmstadt
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and Nassau, formed a solid moderately progressive block, which
could boast of bicameral representations of the people, with a first
chamber of noblemen, bishops and notables appointed by the ruler,
and a second that basically spoke for the bourgeoisie, even though it
often contained some representatives of the nobility as well.
The revolution of 1848 and its consequence
The example of the February Revolution in Paris was followed in
several Central European countries. In Germany the liberal revolt
aimed at unification and a liberal Constitution. It was almost purely
bourgeois, which is not surprising if one considers that only 4.5 per
cent of the population were factory workers. Its culminating point
came with the parliament of Frankfurt, which gathered on 18 May
1848 in the Church of St Paul and proclaimed itself (following French
inspiration even in the choice of words) the Deutsche Verfassungsgebende
JVationalversammlung ('German Constituent National Assembly'). It
contained 830 members, elected by the people in their respective
states. Over 33 per cent were clerics or professional people, almost 40
per cent were higher civil servants or judges, whereas 0.49 per cent of
the total came from the ranks of the manual workers. The 'revolutionaries' were in many ways marked by a deep latent conservatism, and
remind one of Lenin's quip that when Germans decided to storm a
railway station, they first bought platform tickets. They showed their
attachment to the monarchy by first electing Archduke Johann of
Austria, son of Emperor Leopold II, as Reichsverweser ('Reich Regent'),
and in 1849 offering the German imperial crown to the king of
Prussia, who declined to accept it from the hands of a popular
assembly. Although the liberal dream of 1848 quickly vanished and
the revolution was repressed in the following year, some ephemeral
constitutional texts were drafted that influenced later developments
in Germany and Austria. On 27 December 1848 the Frankfurt
parliament proclaimed the Grundrechte des deulschen Volkes ('fundamental
rights of the German people'), followed on 28 March 1849 by the
Constitution, called Reichsverfassung, which was intended to turn
Germany into a federal state and a constitutional monarchy. It
provided, after the American model, for a two-chamber system,
consisting of a Staatenhaus, with representatives of the states of the
Union, and a Volkshaus, with representatives of the German people,
elected by universal suffrage and a secret ballot. The Constitution
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went under with the revolution, but has had some influence on the
public law of the twentieth century. 28
At the moment of the proclamation of the Constitution of 1849 the
revolution in the German states had already collapsed, and the king
of Prussia and the emperor of Austria had diminished its impact by
issuing Constitutions of their own. In Prussia this was done in
December 1848, turning that country into a constitutional kingdom,
but without recognition of popular sovereignty. In Austria, where
Emperor Ferdinand had abdicated in December 1848 in favour of his
nephew Francis Joseph, a Constitution was granted in March 1849,
subjecting imperial legislation to the agreement of the Reichsrat- not
a momentous step, as its members were appointed by the emperor.
The old monarchies soon reasserted themselves. An imperial letter
patent of 31 December 1851 abolished the Austrian Constitution of
March 1849, turning the empire again into an absolute monarchy.
Prussia, which at that time was more progressive and only became
arch-conservative in the second half of the century, did not go so far,
as the Constitution of December 1848 was maintained and the
kingdom consequently remained a Verfassungsstaal, a constitutional
monarchy. The fundamental law of 1848 provided for a bicameral
system with elected representatives in both chambers and a franchise
that came to be considered too liberal and democratic, so that in May
1849 the king introduced, by way of an emergency measure, an
involved plutocratic system known as the Dreiklassenwahlrecht, or
three-class franchise. Its basic notion was that citizens who financially
contributed most to the state should have the greatest say in its
administration. This Prussian - not German - system was maintained
until 1918 and based on indirect elections. It took the roll of taxpayers as the basis for the indication of bodies of electors. The highest
taxpayers, who together accounted for one-third of the contributions
in their circumscription, formed the first class, the next group, again
accounting for one-third, formed the second class, and the rest formed
the third. Each class indicated an equal number of electors, which
resulted, for example, in 150,000 members of the first class choosing
the same number of electors as 2.5 million of the third class: in other
words 4.7 per cent of the citizens of the first class chose as many
electors as 82.7 per cent of the third class (example taken from the
year 1850). To present-day thinking the result was a grotesque
28
See the classic study by F. Kyck, The Frankfurt parliament (London, 1968), translated as
Deutschlands grosse Hoffnung. Die Frankfurter Mationatversammlung 1848-1849 {Munich, 1973).
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over-representation of the wealthy, all the more so if one realizes that
the law of 1849 excluded all those on relief.
The composition of the first chamber was also tampered with:
according to the 'revised Constitution' of 1850 only half its members
were elected, the others were of noble birth or appointed. This
measure was never put into practice, and in 1854 another change was
carried out in the composition of the first chamber, called H e r r e n h a u s
('House of Lords') since 1855: henceforth it would consist of hereditary
members, plus a few members ex officio and some appointed for life
by the king. Corporatist considerations played a role in the selection
of this third group, as it contained members of important chapters,
universities, cities and associations of landowners. In spite of various
cosmetic adaptations, Prussia after 1848 was and remained a
constitutional monarchy, where the traditional rights of the citizens
were recognized — as were their duties, which were taken most
seriously in matters of defence. Prussia, however, was no parliamentary
monarchy in the sense of parliament being able to bring down the
government. Nevertheless the king, in true medieval style, depended
on the subsidies voted by the representatives of the country, more
specifically the second chamber, the Haus der Abgeordneten ('House
of Deputies').
In the 1860s a conflict broke out between the House of Deputies
a n d t h e royal g o v e r n m e n t . T h e conflict was like a leaf t a k e n from t h e
medieval history books, as the representatives of the people refused
the credits demanded by the king and deemed indispensable for his
policy and the national interest. 29 King Wilhelm I riposted by
dissolving the House, but the new House resulting from the elections
remained adamant. This cat and mouse game was repeated several
times, until the king threatened to abdicate, which would have
plunged the country into a deep crisis. It was the prime minister Otto
von Bismarck, the later chancellor of the empire, who came up with a
solution, making use of the Luckentheorie ('theory of the gap (in the
Constitution)'). It alleged that, as Article 99 of the Constitution made
no provision in case of parliamentary refusal to vote the yearly
budget, this power gap, or void, had to be filled by the royal
prerogative, allowing the state to function without the agreement of
the elected assembly. It was no more than a legal fiction, but was
accepted and allowed the crown for several years to raise revenue
29
It should be realized that all this happened before the proclamation of the empire, so that it
was a purely Prussian business.
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without parliamentary consent and without seeming to violate the
fundamental law. The Prussian monarchy, so the theory went,
continued to possess all prerogative rights which had not been taken
away by the Constitution or later laws. Thus the king simply
continued to levy taxes without budget laws, until parliament gave in
and the situation was normalized.
In the meantime Bismarck was involved with a more grandiose
enterprise, the little-German unification under Prussian leadership:
Austria had to disappear from the German scene and devote itself
entirely to the Habsburg multinational, and German military success
would prepare the path for a German empire, with Bismarck at the
helm. His plan was realized by the Austrian defeat of 1866 in a short
war with Prussia, and Napoleon Ill's defeat in 1870 in an equally
short war with Germany, 30 followed in January 1871 by the proclamation of King Wilhelm I of Prussia as German emperor at Versailles,
then under German occupation. The new empire only concerned
Germany. Austria (which was previously part of the Reich) had
disappeared in 1866 from the German constitutional scene and, as we
have seen, put an end to the German Confederation. The short-lived
North German Confederation (1866-70), which lasted till the foundation of the Second Reich, was a transitional construction between
the German Confederation and the German empire.
The political organization of Austria, which in 1861 had at last and
for good become a constitutional monarchy, quickly felt the consequence
of its elimination from the German Confederation. As the Habsburgs
were now on their own in their heterogeneous empire, they proceeded
in 1867 to the historic Ausgleich ('Compromise') with Hungary. After
the Hungarian revolt of 1848-9 (put down with Russian help) this
ancient kingdom, under Habsburg rule since the sixteenth century,
fell victim to imperial unification and simply became part of Austria.
This policy was now reversed through a rare constitutional move, the
separation of a unitary state into two autonomous parts, the empire of
Austria and the kingdom of Hungary - a sort of'federalism with two'.
Both countries remained united through their common ruler, Francis
Joseph, who was both emperor and king, but each had its own
government, parliament and capital. The new construction was
known as the Dual Monarchy and distinguished common affairs,
Napoleon III was beaten by the North German Confederation, which had replaced the
German Confederation and with which the southern Germans had concluded a military
alliance.
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The bourgeois nation state
called kaiserlich und kbniglich, from specifically Austrian or Hungarian
business. 31 This bipartite arrangement was a success as far as
Austro-Hungarian relations were concerned, but did not solve the
nationality problem of the Danubian monarchy as a whole, since
many other ethnic groups lived under the sceptre of Francis Joseph.
The Ausgleich of 1867 was not followed by comparable arrangements
- for Czechs and Germans, for example - and plans for a confederation
of nation states under the House of H a b s b u r g did not go beyond the
discussion level. In the end the First World War caused the fall of the
monarchy, where (in 1910) 12 million Germans, 10 million Hungarians
and Slovaks, 6 million Czechs, 5 million Poles, 4 million Ruthenians,
3 million Romanians, 3 million Croats, 2 million Serbs, 1 million
Slovenes and 800,000 Italians had lived together under one imperial
sceptre.
misleading, as they suggest a greater degree of unity t h a n was in fact
established in 1871. Numerous and important matters admittedly
came under the authority of the emperor, chancellor and Reichstag:
external relations, defence, currency (Reichsmark, Reichsbank); also
the empire was a common market a n d , in course of time, came to live
under unified codes of law. There remained nevertheless four
kingdoms (Saxony, Bavaria, Wurttemberg and Prussia), six grand
duchies, five duchies, seven princedoms and three free cities, all with
their own rulers, governments and parliaments elected by different
systems of suffrage. The Constitution stated that the empire was a
federal state, and it might indeed have been better called the United
States of G e r m a n y , as the analogy with America was unmistakable.
Germany was nevertheless in many respects a case sui generis, inter
alia, because, in contrast with America, one of the German states - the
kingdom of Prussia - occupied a privileged position. It was not only
exceptionally large and densely populated, but its king was also
German emperor and its prime minister almost invariably chancellor
of the Reich. Looking for a comparable situation in a federal state,
one could point at the Republic of the United Netherlands and
Holland's predominance.
The Second German Empire (i8ji-igi8)
On 18 January 1871, Bismarck's dream of a little-German unification
came true, and King Wilhelm I of Prussia was proclaimed German
emperor. The unification was far from radical and did not abolish
existing kingdoms and principalities. Even the much debated new
title was meant to make this clear: not 'emperor of Germany' (to
which the other princes objected), but 'German emperor'.
We shall study the development of constitutional law on two levels,
that of the relations between the new Reich and the old states, and
that of the internal organization of Wilhelminian Germany. Expressions
such as 'German unification' and 'the German empire' can easily be
31
The following elements remained common: the monarch, foreign affairs, the army (with
some reservations) and the finances concerning the common affairs, for which one common
ministry was provided and whose expenses were to be borne 70% by Austria and 3 0 % by
Hungary. The two parliaments kept contact through delegates, the Hungarians being
adamant against one central parliament. Some federal states arose from existing bases: the
Seven Provinces existed before the Dutch Republic, and so did the Swiss cantons and cities
and the thirteen American colonies. Other federal countries originated by the division of
previously unitary states. Thus Brazil was a unitary empire till 1889, later becoming a federal
republic with, at present, twenty-two states. T h e post-World W a r I kingdom of Yugoslavia
was, according to the Constitution of 1921, a unitary state, dominated by the Serbs, but the
Constitution of 1946 introduced the federal form, with six republics. After the unitarism of
the Nazi era Germany went back to a federal form of government. In 1917-18 the unitary
Russian empire became a federation of soviet socialist republics. Canada, which was a
unitary British colony (Union Act of 1840), started experimenting with federalism as early as
1867 and eventually became a federal state, where the ten provinces have their own
Constitutions and parliaments. Belgium, which was founded in 1830-1 as a unitary
kingdom, has recently introduced a federal organization.
225
The unification of 1871, which maintained the existing states while
creating an overriding structure with a parliament and a bureaucracy
of its own, can be compared with the European Community of our
own time. In both cases the existing states and their institutions were
maintained, but higher common organs placed above them, the
Reichsgericht being comparable to the European Court of Justice,
the Reichstag to the European Parliament and the Reich chancellor
and his government to the European Commission. There are, of
course, some interesting differences. T h e unification of all European
legal systems is hardly conceivable. The Commission is a college of
civil servants (heading an administration of some 10,000 officials)
and is appointed by the national governments, whereas the imperial
cabinet depended on the emperor, through the chancellor. Also, the
European Parliament, in contrast with the Wilhelminian Reichstag,
is no legislator and has little power: the Parliament can, as we have
seen, force the Commission to resign, whereas the Reichstag could not
topple the chancellor, but his power of the p a r l i a m e n t is theoretical,
and the imperial government, as we shall see, had to take the wishes of
the Reichstag more seriously than the Commission those of the
Parliament in Strasbourg.
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An historical introduction to western constitutional law
The new empire was a constitutional monarchy: one of its first laws
was the Constitution of 20 April 1871, called Gesetz betreffend die
Verfassung des deutschen Reiches ('law concerning the Constitution of the
German empire'), which was a revised version of the Constitution of
the North German Confederation. Its principles were old-fashioned
and fundamentally monarchic. The German emperor was an invaluable
element of cohesion and deemed necessary to embody the newly
found unity of a country where ordinary people were inclined to think
and act first and foremost as Prussians or Bavarians. In this light one
understands why Germany, although a constitutional monarchy, was
not, strictly speaking, a parliamentary one. The possibility had not
even been broached, Bismarck for one being adamant, as a convinced
monarchist, that the Constitution had been a sufficient concession to
democracy.
The government was headed by the chancellor and consisted
properly speaking of Reichsdmter, or imperial offices, directed by
Slaatssekretdre, or secretaries of state, depending on him. T h e chancellor
was not accountable to the Reichstag, but to the emperor, who freely
appointed and dismissed him. This happened on a famous and
dramatic occasion, with the abrupt dismissal, in 1890, of the eminence
grise of German and European politics, Bismarck, by the young
Emperor Wilhelm II. 3 2 However, the emperor was far from almighty,
and in reality there arose a situation which could be called
crypto-parliamentarian, as the government had to ask parliament for
the necessary finances for its policies, so that discussion and give and
take between the chancellor and the Reichstag were the order of the
day - a situation not unlike the relations between the White House
and Capitol Hill in Washington, as described above. The changing
majorities in parliament, which controlled the budget, definitely
influenced the country's politics, and the chancellor had to take into
account both the will of his imperial master and the feeling in the
elected assembly. The emperor himself had (except in the extreme
case of dismissal) to listen to his chancellor, who was an essential
intermediary between crown and parliament and whose signature
was needed for all imperial political acts. Nor should we forget that
parliament had legislative powers: every piece of legislation proposed
had to have the consent of the Reichstag and the Bundesrat, so that
here again the government could not disregard parliament's wishes,
,2
A celebrated cartoon in Punch showed the aged and experienced pilot leaving the ship of state,
while the silly new captain brazenly looked on.
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227
as the rejection of bills desired by the government was an obvious way
for the assembly to show its displeasure at the chancellor's policies.
T h e G e r m a n parliament consisted of two houses. In the Bundesrat,
the federal component of the empire, the states were represented
proportionally to their importance. The Reichstag, whose composition
reflected the demographic reality, represented the German people as
a whole, and was elected directly by universal, equal, secret and male
suffrage. After the Napoleonic era and its secularization the Churchstate relation, an ancient point of controversy in European public
law, had been no real problem in Germany, and the Constitution of
1871, which sanctioned the equality of all faiths, had nothing to say
about it. The situation changed, however, when Bismarck started to
interfere with the organization and educational activities of the
Catholic Church, unleashing the Kulturkampf (1872-9). This was a
bitter struggle, pushing the Catholic Centre Party into outright
opposition and causing Bismarck to brand them as 'enemies of the
Reich'. His action was an echo of the enlightened absolutism of the
previous century, which also wanted to control the training of clerics
and education in general. Ideologically the Kulturkampf was also
caused by the Syllabus Errorum of Pope Pius IX (1864), which has been
mentioned before, and by the declaration of papal infallibility at the
First Vatican Council (1870), which many felt to be an outright
declaration of war on modern thought. Bismarck believed that the
Catholic Party was so dominated by the dictates of the Vatican that it
was not a truly national, German party. The conflict led to the
expulsion of religious orders, the abandonment of the Prussian
legation at the Vatican and the severing of diplomatic relations
between the Reich and the Holy See. But when clerics were being put
in prison, the whole conflict was clearly getting out of control and
Bismarck was happy to put an end to it, thanks to the conciliatory
new pope, Leo X I I I . In fact, he was trying to cope with a new and
more ominous danger, socialism, against which the clergy was a
useful dam which it would be unwise to undermine. In a speech to the
Prussian Herrenhaus in March 1887 he admitted seeing the conclusion
of the Kulturkampf"in that light, when he declared: ' T o a large extent
the place of papal authority is taken by social democracy, wherever
faith has disappeared'. And he added: 'Pope and emperor in this
respect have the same interest and should present a common front
against anarchy and revolution'.
The progress of the social democrats in the increasingly industrialized
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An historical introduction to western constitutional law
country worried Bismarck greatly and persuaded him to initiate a
policy which was imitated much later in other European countries,
i.e. compulsory social security. He saw this patriarchal state-socialism
as a happy middle road between English-style economic liberalism
and state capitalism which would abolish entrepreneurial freedom
and destroy the market economy. Social security organized by the
state preserved free enterprise, but relieved much of the misery and
insecurity of the working class, while tying it closer to the provident
and caring empire. This policy was more efficient as well as friendlier
than the Prussian prohibition of workers' coalitions of 1845 and
continued the Gewerbeordnung of the North German Confederation,
which had permitted trade unions for more favourable working
conditions and wages and had recognized the right of the workers to
act collectively. At first Bismarck attempted to take back these
concessions and to fight socialism outright, inter alia, by the
Sozialistengeselz ('law against socialists') of October 1878 (a year of
panic caused by attempts on the emperor's life), but in 1881 he
changed course and began working on his social security plans. He
drafted the 'First Imperial Message on the Social Question', by which
the state not only declared its concern for the needy, but also its
obligation, to some extent, to guarantee social security. After thorough
study and extensive debates in the Reichstag, three important laws
were passed, on insurance against sickness (1883), industrial accidents
(1884) and old age and invalidity (1889). The measures failed,
however, to halt the progress of social democracy in the Reichstag,
where it advanced from 35 out of 397 seats in 1890 to 81 in 1903 and
110 in 1912, when it became the strongest single party (in that year
the Catholic Centre, by comparison, had 9 1 , the National Liberals
45, the Conservatives 43 and the left-wing Liberals 42 seats). The
socialists played the constitutional game loyally, and hardly ever
thought of subverting the existing political order - at least until the
dramatic events of 1918.
Summing up these lines of development, we may formulate the
following considerations. When the Germans founded their own
nation state, they at last caught up with the European evolution. In
the nineteenth century the sovereign national state seemed highly
desirable as guaranteeing prosperity and security. German unification,
which brought together the great majority of ethnic Germans in one
state, had been achieved mainly by a peaceful and orderly process,
and could be described as a success. Maybe it was even too successful,
The bourgeois nation state
229
because weak and divided Germany suddenly developed into a
political, intellectual and economic giant in the heartland of Europe a position of newly found strength which, following the example of
older European powers, could easily lead to expansion and
imperialism.
German expansionism was supported by Prussian militarism. Ever
since the eighteenth century das Militar had been most influential,
and things were not different in the nineteenth century. The army,
led by the General Staff, was a state within the state which owed and
swore loyalty, not to the Constitution but to the emperor. It was also
like the terribly expensive Battle Fleet, a political instrument that
devoured such astronomical sums as to make the urge to use it almost
irresistible.
In nineteenth-century Germany liberal principles were victorious:
the form of government was constitutional, fundamental liberties
were guaranteed and political parties influential and firmly organized.
Germany was a Rechtsstaat and proud of it. There was admittedly no
fully fledged parliamentary system after the western mode, but a
strong monarchy and a forceful chancellor offered manifest advantages
over governments which were totally dominated by the party-game,
one illustration being the legislation on social security, which had no
parallel in the classic parliamentary regimes at the time.
The observer cannot help being struck by the impact of the past.
Germany had a tradition of small-scale politics and regionalism,
accompanied by monarchic paternalism. Hence the impression that
the 'federal' empire and the constitutional, but influential monarchy
were the best possible forms of government at that time. Hence also
the impression that Wilhelminian Germany was slowly but certainly
moving towards a truly parliamentary form of government under a
national dynasty that would more and more resemble the British
model. The First World War interrupted this evolution, but that the
potential for a thorough democratization was real was demonstrated
in the years before 1914- 18, in the good years of the Weimar
Republic and, of course, in today's Federal Republic. T h e r e were no
doubt anti-democratic and anti-Semitic currents at work in nineteenthcentury Germany, but they were active, and virulently so, in other
countries as well. It is not easy, in the light of what happened later, to
realize that in nineteenth-century Germany they were marginal
phenomena, in a free society where crazy ideas were not lacking.
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An historical introduction to western constitutional law
BELGIUM AND THE NETHERLANDS
The kingdom of the United Netherlands
W h e n the G r e a t Powers, in 1815, placed William I's kingdom of the
Netherlands on the European map, the impression was justified that
the Seventeen Provinces of Emperor Charles V gloriously were
coming to life again. The ancient Netherlands had slowly been
welded together by their common princes and, according to Charles
V's pragmatic sanction, they were to remain united forever. The
drama under his son Philip II had, however, caused their separation
into a Protestant north and a Catholic south, one being an independent
republic and the other a minor part of the Habsburg conglomerate.
But in 1815, after more than two centuries, they were united, with the
addition of the prince-bishopric of Liege, an ancient independent and
successful principaltity of the Reichskirche, which had never fallen
into Habsburg hands. Even the Constitution of the new kingdom
appeared to hark back to old traditions.
In the past the Seventeen Provinces had lived under rulers who
respected the rights and liberties of their subjects and accepted the
participation of their representatives in the affairs of state. After the
s e p a r a t i o n , c o n s u m m a t e d after t h e fall of A n t w e r p in 1585, freedom
was saved in the north, but the monarchy was lost; in the south the
monarchy survived, but freedom did not. Now north and south were
united again, enjoying both monarchy and freedom under the
Constitution.
The fundamental law of William I's kingdom had in fact been
drafted in the north before the two parts were joined. After Napoleon's
defeat at Leipzig French rule in the northern Netherlands collapsed,
and in November 1813 William-Frederick of Orange-Nassau, son of
the last stadholder, William V, who had fled to England, landed in
Holland. He symbolized the liberated fatherland and was proclaimed
sovereign prince. The country did not want to return to the old
federal republic, but to become a national monarchy which, after the
British model, would be constitutional. In March 1814 the Constitution
of the new state was a p p r o v e d by t h e l e a d i n g personalities of the l a n d ,
and the sovereign prince of the United Netherlands (for such was his
exact title) swore to uphold it. Shortly afterwards the Great Powers
decreed the 'amalgam' of north and south (in present-day terms,
Holland and Belgium) and the kingdom of the Netherlands was given
The bourgeois nation state
231
international status as a unified state, headed by King William I.
Attempts by conservative circles in the south to recall the Austrian
Habsburgs had stranded on the lack of interest of Vienna. The
Powers had added some constitutional provisions to their political
decision, namely that the northern fundamental law would be valid
for the whole kingdom (after possible adaptation, d'un commun accord,
in north and south), that Protestants and Catholics would enjoy
equal guarantees of freedom of worship and that the south would
enjoy a convenable ('appropriate') representation in parliament, i.e.
the States General of the new kingdom. Another stipulation concerned
the financial burden of the new state, which was to be borne equally
by north and south, although the northern public debt was much larger.
A commission equally composed of northern and southern members
went to work from May to July 1815 on the adaptation of the
northern Constitution of 1814. It maintained the latter's principles,
but added a considerable number of new articles on a variety of
topics. There was a change from a unicameral to a bicameral
parliament, which was important enough in itself, but there was also
the more explosive question whether the Second Chamber was to be
composed of northern and southern members in equal numbers or
proportionally to the demographic situation. The latter proposal,
favourable to the south, with its 3.2 million inhabitants as against 2.2
million in the north, was narrowly defeated. The 'sovereign prince',
of course, received the title of king.
As the northern notables had been given the opportunity of voting
on the project of the Constitution, it was only just to give the south the
same chance. However, the consultation went against the project and
the king who supported it, because the Catholic bishops in the south
combated it as providing for freedom of conscience and equal
protection for all denominations and making education a responsibility
of the state. The consultation of August 1815 was won by the no-votes
but, using some far-fetched reasoning, the king nevertheless managed
to declare that the text had been approved: he counted the abstentions
as yes-votes because they had not voted against, and he also counted
some hundred opponents as being partisans of the text, as they had
only voted against because they rejected religious freedom (a point
that was not under discussion and had been imposed by the Great
Powers). So the Constitution of the new kingdom of the Netherlands
was proclaimed by William I, who was solemnly received as the new
ruler in Brussels.
232
An historical introduction to western constitutional law
The fundamental law of 1815, which we shall analyse presently,
installed a regime that can best be described as enlightened absolutism
after the eighteenth-century continental fashion, but tempered by
the Constitution and a thin parliamentary veneer. Its main elements
were the following. Various fundamental freedoms were guaranteed,
not by a Bill of Rights or a Declaration of Human Rights (as
requested by some southerners), but by the inclusion, throughout
the text, of specific liberties. They concerned due process of law in
case>of arrest, the peaceful enjoyment of property rights and religious
freedom, including public worship (except where order was disturbed).
The freedom of the press was guaranteed, and state censorship
forbidden 'in the interest of knowledge and enlightened progress'.
The implementation of this article was, however, restricted in
practice because the authorities continued, in time of peace, to
apply a decree from the time of the war against Napoleon which
made spreading false information an offence outside the jurisdiction
of the ordinary courts. T h u s in the period between 1827 and 1830 in
particular, numerous Belgian journalists and authors were prosecuted
for attacking the king's policy. The kingdom was unitary and
centralized, and both the federalism of the republic in the north and
the autonomy of the old principalities in the south belonged to the
past. This was a consequence of French unitarism and centralism
with which both Belgium and Holland had been familiar in the
years before 1815. All powers in the state were ultimately in the
hands of the king, assisted by his ministers and the representatives of
the country.
Parliament, called the States General, consisted of two chambers,
and was not really representative by present-day standards. The First
Chamber consisted of an indefinite number of royal appointees for
life, selected from t h e r a n k s of t h e ' l e a d i n g personalities of t h e r e a l m '
they w e r e in fact 90 per cent r e c r u i t e d from the r a n k s of t h e nobility.
Its purpose, in a country that ignored the aristocracy as a privileged
estate, was to give the nobles, who still enjoyed considerable social
prestige in the south, a political role in the new kingdom. The Second
C h a m b e r consisted, as we have seen, of an equal n u m b e r of northern
and southern members. They were elected by a complicated system
conceived to accentuate their oligarchic, undemocratic character
and ensure their loyalty to the crown. Indeed they were not chosen by
the people, but by the provincial estates, which in their turn
contained, in a corporatist vein, representatives of three social classes,
The bourgeois nation state
_„„
233
the nobility, chosen by the provincial 'knights', the members from the
cities, chosen by the 'regents' (who were themselves elected indirectly
by a very restricted franchise) and the members of the 'rural estate',
chosen by bodies of electors in rural districts. As even this unrepresentative body contained too many opponents for his liking, King
William attempted to put a brake on its action through various
legislative measures. Consequently the aristocratic element was very
influential in the Second Chamber, and at times even in the majority.
Legislation was, according to the Constitution, in the hands of the
States General and the king. Bills were more specifically introduced
by the king and the Second Chamber, although in fact most of them
originated with the government. The questions for which the
legislature was competent were limited and specified in the Constitution.
They concerned the budget, taxation and major areas of civil and
criminal law and procedure; the rest could be left to royal decrees.
The budget was decennial, which drastically limited the impact of the
States General.
In the exercise of his executive powers the king was assisted, or
rather served, by a Council of State, with a counselling function and
several ministers. These did not constitute a cabinet, headed by a
prime minister and leading a political existence of its own. They were,
on the contrary, each in his own department the executors of the
king's will, and comparable to the secretaries of the president of the
United States (a royal decree of 1823 installed a council of ministers,
which never assumed any importance). The ministers naturally were
only accountable to the king and not to the States General, so that
there was no question of a parliamentary monarchy. As a consequence,
so many ministers left because they objected to the king's policy, that
only one, the minister of justice C. F. van Maanen (d. 1846), kept his
post throughout William's reign from 1813 till 1840. The ministers
came both from the north and the south. Sometimes there were more
from the north and at other times more from the south, but foreign
affairs, justice, war and finance were always in northern hands.
The kingdom of Belgium
The nineteenth-century edition of the Burgundian Netherlands was
short-lived, and its fragile unity shattered by the Belgian Revolution
of 1830. The reasons could be found in the Catholic opposition, which
from the start had balked at religious equality and demanded a
234
An historical introduction to western constitutional law
The bourgeois nation state
privileged position for the Catholic Church in the south. King
William's interference with education, including the training of the
clergy, inspired by his Enlightenment philosophy, met with a
determined opposition by the influential clergy - Belgian governments
would afterwards also find out that they could not unleash a 'school
war' unpunished. Beside the Catholic, there was also the Liberal
opposition, which objected to existing restrictions on freedom,
notably of the press, and generally speaking grew restless under a
regime marked by autocracy and conservatism.
That the revolt against the king came in 1830 and was so radical
that it resulted in a complete separation was caused by a coincidence
of various circumstances. The doctrine of F. R. de Lamennais
(d. 1854) on a 'free Church in a free state', condemned by Pope
Gregory XVI in 1831, a year after the Belgian Revolution, became
very popular with young Catholics from 1825 onwards. The ideas of
such French neo-liberals as Guizot (who later became a leading
conservative), who fought Charles X's absolutism, were most influential
among liberal intellectuals in the south and prepared them for
collaboration with the Catholics of Lamennais' camp. The alliance,
translated into practical political terms by the Catholic- Liberal
Union of 1828, was condemned by the pope in 1831, again a year
after the fatal events: the revolution had profited from a very brief
favourable j u n c t u r e . T h e revolution of J u l y 1830 in Paris, which
toppled the old-fashioned regime of Charles X, inspired the malcontents
in Brussels and Liege, who began to dream of a comparable success
against King William. There was, moreover, social unrest with
looting in Brussels on 24 August 1830, caused by rising prices and
threatening mechanization of industry. The breakdown of public
order was countered on 27-28 August by the armed forces of the
well-to-do middle class, called garde bourgeoise, and exploited by the
political opposition in the ranks of the bourgeoisie against King
William. At first their demands merely aimed at reform within the
existing legitimate order, but afterwards the tone became more
radical and rebellious. Finally a pro-French current in certain
sections of Belgian public opinion (soldiers who had fought under
Napoleon, for example) also played a role, as did French ambitions to
weaken the k i n g d o m of the N e t h e r l a n d s , conceived by the British as a
buffer state against France, and possibly to turn its southern half into
a French satellite, if not to annex it outright (hence French financial
and military support for the young Belgian state). Annexation was,
however, out of the question because of determined British opposition;
even a Belgian king of French origin was intolerable (there was no
objection to a French queen for Leopold, the first king of the Belgians,
who enjoyed British sympathy).
All these events and circumstances led to fighting in Brussels in
September 1830 and the formation of the provisional government
which on 4 October of that year proclaimed Belgian independence
and announced the convocation of a Constituent National Congress.
Various attempts to save the United Netherlands by introducing an
administrative separation, keeping a common ruler from the House of
Orange, failed. The Constitution of the new kingdom of Belgium was
drafted in record time, which is understandable as 90 per cent of its
articles were copied verbatim from other texts. A constitutional
commission, created by the provisional government on 6 October
1830, prepared a project that was discussed between 25 November
1830 and 7 February 1831 and passed on that day by the National
Congress, elected on 27 October and 3 November 1830. The
Congress had already on 22 November 1830 decided that Belgium
would be a hereditary monarchy. The Constitution was not put
before the country for approval. Its main features were predictable in
light of the events that led up to it. It contained numerous liberties,
particularly those that had been curtailed in the preceding years:
press, association, worship, education and language. The separation
of powers was fundamental, as was ministerial responsibility before
parliament, in other words the monarchy would be both constitutional
and parliamentary, Article 25 stated that 'all powers emanate from
the nation', which was represented by a bicameral parliament.
235
This is not the place for a detailed analysis of the Constitution of
1831, but some historical comments may be called for. T h e two main
social forces, the Church and the liberal bourgeoisie, which made the
Belgian Revolution, also profited most from the fundamental law
drafted under their influence. Freedom of worship, education and
association led in the decades after 1830 to an unparalleled expansion
of the Catholic Church and its schools and religious orders. On the
other hand the removal of royal autocratic control allowed the
bourgeoisie, which to a large extent gained c o m m a n d of the state, to
develop commercial and industrial enterprise so unrestrainedly that
nineteenth-century Belgium was known as the paradise of capitalism.
The Constitution had no social and economic dimension and
certainly no concern with labour problems. The state of 1831 was the
236
An historical introduction to western constitutional law
state of the well-to-do bourgeoisie and the landowners, and no one
thought of granting the vote to the man in the street who in Brussels in
September 1830 had fought the troops of the government. Suffrage
was a privilege to which, because of the very restricted franchise, just
over 1 per cent of the population was entitled; those eligible for
parliament were even less numerous, and the Senate was a club of
landowners. The Constitution was a victory for the parliamentary
oligarchy; there was no trace of democracy, either direct or indirect.
Belgium was also a centralized kingdom. The Constitution granted
no special powers to provinces and towns. The Provincial Law of
1836 underlined this anti-provincialism, whereas the Communal
Law of the same year granted a good deal of autonomy to the elected
administrations of towns and villages. Centralism was an important
point of the programme of the Liberals, who hoped that the central
government would make its secular influence felt in cities and
countryside.
Belgium was also a unitary kingdom. The fundamental division of
the country into two cultural communities, the Dutch-speaking
Flemings in the north and the French-speaking Walloons in the
south, was completely ignored. When French was imposed as the sole
official language of the new state, it became clear which part of the
country was going to pay the cost of unitarism. Even before the end of
1830 the provisional government decreed that 'although here and
there various dialects existed, only one language was spoken in
Belgium, French': the Dutch-speakers only spoke patois, the Frenchspeakers spoke a language. For the higher classes this was no problem,
as the nobility and well-to-do bourgeoisie in Flanders had learned to
use French and found it useful as a social barrier against the mass of
the people. They had fought King William's action in favour of the
official use of Dutch and they objected to the idea that they might be
obliged for official business to use the language of workers and
peasants. The Flemish clergy, for its part, feared the entry of
Protestant books from Holland and saw French as the language of the
Catholic neighbour in the south. Just as William had hoped to elevate
Dutch to the status of the common language of the realm and a
unifying factor, so the same role was attributed to French in the new
kingdom of Belgium, and with the same negative result. However, the
merciless oppression of the Dutch language (then called Vlaamsch, or
Nederduitsch or Mederlandsch) undertaken by the new masters of
Belgium was much harsher than anything William had undertaken
The bourgeois nation state
237
against French. The speed with which the elimination of the language
of the people in the Flemish area was initiated is striking (it was, of
course, also the language of the insurgents' Dutch enemy). On 5
October 1830 the provisional government decreed that the Bulletin des
arrets et des actes du gouvernement provisoire de Belgique would appear in
French only, ten days later the Flemish Chambers of the Court of
Appeal of Liege (with jurisdiction over Dutch-speaking Limburg)
were abolished, twelve days later French became the sole language of
the Belgian army and on 16 November the same government decided
that all laws and decrees would be published in French only. The
celebrated linguistic freedom, guaranteed by the Constitution, was
applied in the law courts in the sense that the parties were only
allowed to use their own language if the judges, the prosecuting
magistrate and the barristers involved understood it; in other words,
in a linguistic sense, the parties existed for the courts and not the other
way round.
The Belgian Constitution, as we indicated, was based to a large
extent on existing texts, but it was in its turn much imitated abroad.
Its main sources were the Constitution of the kingdom of the
Netherlands of 1815 and the French Charte constitutionnelle of 1830,
which was itself, as we have seen, an adaptation of the Charte octroyee of
1814. Some articles were borrowed from the French Constitution of
1791 and from British constitutional practice. In any case, Britain, as
the common model of all modern liberal monarchies, had a more
profound impact than the limited literal borrowing would suggest. It
has been calculated that the Belgian Constitution of 1831 borrowed
40 per cent of its articles more or less literally from the Constitution of
the Netherlands of 1815, about 35 per cent from the French Charte of
1830 (itself almost invariably copied from the Charte of 1814), a b o u t
1 o per cent from the French Constitution of 1791 and some 5 per cent
from Britain. The remainder, some 10 per cent of new material,
included ten articles on such important questions as the election of
senators, the relations between Church and state and the freedom of
association.
The Belgian Constitution found imitators, inter alia, in the Netherlands
in 1848, as we shall see. Several other countries copied it more or less
literally, still others took over the fundamental idea of the Belgian
parliamentary monarchy without borrowing verbatim. The Belgian
model clearly was attractive wherever a liberal monarchy was
introduced, not only because of its substance, but also because of its
238
An historical introduction to western constitutional law
concise and uncomplicated style and language. Among the imitations
we mention the Constitutions of Spain (1837), Greece (1844 and
1864), Piedmont Sardinia (1848), which itself in 1870 became the
Constitution of the unified kingdom of Italy, Bulgaria (1864) and
Romania (1866). It moreover exerted a considerable influence on the
Constitution of Prussia of 1850 and, after the First World War, on
those of Poland, Hungary and Czechoslovakia. 33
The kingdom of the Netherlands
The Belgian Revolution and the ensuing Constitution have not left
the north untouched. Dutch public opinion - especially Protestant welcomed the separation and was glad to be rid of the Belgian rebels:
people were happy to return to their own national cocoon. The
problem of ministerial accountability had, however, been sharply
raised, and public opinion questioned the autocracy of its disappointed
and stubborn king. This was no technical discussion for lawyers and
academics, but a central issue in the political life of the country: ought
the government to depend on the will of the sovereign, however
enlightened, or be placed under the control of parliament and made
accountable to the representatives of the nation (or the noble and
bourgeois oligarchs who considered themselves the spokesmen of the
silent mass of the people)? Many Dutch liberals believed William's
enlightened absolutism to be untenable and wanted to introduce
ministerial responsibility on the Belgian model, inter alia, because they
had been struck by the disadvantage of personal rule at the time of the
Belgian crisis. As early as January 1831 The Hague promised to take
the introduction of ministerial responsibility into consideration, and a
commission was installed to study the question, but the king was too
busy with plans for the reconquest of Belgium, and nothing was
achieved on the constitutional front. It was not until 1840 that a first
step was made, with the introduction of criminal ministerial
33
See on all this the work of a leading authority who taught legal history at Brussels for many
years: J. Gilissen, 'Gouvcrnes ct gouvernants en Belgiquc dcpuis 1815', Receuils de la SocieU
Jean Bodin 26 (1965), 81 148; J. Gilissen, 'Die belgische Verfassung von 1831: ihr Ursprung
und ihr Einfluss' in W. Conze (ed.), Beittdge iur deulschen undbelgischen Verfassungsgeschichte im
ig. Jahrhunderl (Stuttgart, 1967), 38-69 (also published in French, under the title 'La
Constitution beige de 1831. Ses sources, son influence', Res publica 10 (1968), 107-41); J.
Gilissen, 'Lc caractcre collegial des premieres formes de gouvernement et d'administration
de l'etat beige (1830-1831)', Revue beige d'histoire contempoTaine 12 (1981), 6 0 9 - 3 9 ; J. Gilissen,
'De eerste administratieve organisatie van Belgic ten tijde van de tijdelijke regering (Sept.
1830-Feb. 1831)', Legal History Review 52 (1984), 301-42.
The bourgeois nation state
239
responsibility (it was the first of eleven changes in the Constitution
between 1840 and 1972 -a new Constitution was proclaimed in 1983,
as we shall see); also the decennial budget became biannual. However
moderate these changes were, the king found them unacceptable and
he abdicated in favour of his son, William II, who accepted the
innovations. Of much greater importance was the revision of 1848,
realized under the impulse of the liberal professor J. R. Thorbecke
(^.1872), for it at last introduced a parliamentary regime, with
ministerial accountability to parliament. This was done after the
Belgian model, which was copied verbatim. The competent commission
stated in so many words that its project was an attempt 'to change our
Constitution, not after the principles indicated previously, but those
of the Belgian form of g o v e r n m e n t ' . T e n o u t of eighteen new articles
were borrowed from the southern neighbour. We mention, among
other innovations, the yearly budget and the direct election of the
Second Chamber, the First being elected by the Provincial States. For
the time being the suffrage remained the undemocratic taxationrestricted franchise, but the following constitutional revisions aimed
at extending it (1887), and finally introduced universal male suffrage
(1917) and female suffrage (1922). 34 Later revisions concerned
mainly colonial and European affairs. All in all the Constitution of
1814-15 held out well and, except for ministerial responsibility and
universal suffrage, this early nineteenth-century text has proved
valuable and workable. The Dutch have not undergone the storm
which wrought havoc in some other European nation states.
This remains true even after the introduction of a new Constitution
in 1983, which was anything but a radical, let alone a revolutionary
innovation (and consequently failed in any way to move public
opinion). Indeed, although it took sixteen years to draft, the new
fundamental law contains few elements to change day to day political
life. It is no exaggeration to say that the new Constitution is old wine
in new bottles and a vindication of Thorbecke's vision. Various bold
plans, mooted at the early stages of the constitutional commission's
activity, were quietly shelved. Nevertheless some antiquated features
were scrapped, concerning, for example, the Protestant character of
the country (which contains some 40 per cent Catholics). The
prohibition of religious processions was abolished, but this ancient
Catholic custom had anyway become unfashionable. Various social
34
In 1917 a new article in the Constitution provided for the possible introduction of female
suffrage, which was done in 1919; it was made an article of the Constitution in 1922.
An historical introduction to western constitutional law
The bourgeois nation state
features, such as full employment, social security and the fair
distribution of wealth, were given a place in the Constitution. The
role of the monarch was strongly reduced and his right to ' a p p o i n t or
dismiss ministers at will' was scrapped, but ever since the middle of
the nineteenth century this royal prerogative had been purely
theoretical.
are already fixed boundaries between the two halves of the federal
state, 36 and separate Flemish and Walloon parliaments and governments, competent for various spheres which used to belong to the
central government and parliament (which continue to run common
affairs such as defence, currency and social security). The necessary
adaptations of the Constitution, passed by the national parliament
in Brussels in successive waves, started in 1970, and a fourth
revision (following those of 1970, 1980 and 1988), the most radical
in Belgian history, was passed by parliament in the summer of
1993. Article 1 of the new Constitution proclaims that 'Belgium is a
federal state'. 37
240
Revisions of the Belgian Constitution
For a long time the Belgian Constitution underwent little change.
Revision eventually concerned mainly two fundamental blemishes of
the text of 1831, the disenfranchisement of the mass of the people and
the negation of the evident reality that Belgium is inhabited by two
communities, Flemings and Walloons. The first problem was tackled
progressively from the later nineteenth century onwards and finally
solved in the middle of the twentieth, when universal suffrage was
extended to women. 35
The solution of the second proved much more complicated and
the necessary revisions of the Constitution were still going on at the
time of writing. When in 1830, the unitary state was founded, one
community imposed its language, French, on the other in all
official business and to a large extent even in social relations,
business, the army and education (the universities in the Dutchspeaking part, for example, exclusively used French). The ensuing
discrimination against the mass of the Flemish people (i.e. those
who did not belong to the bourgeoisie, which spoke or learned
French) was oppressive a n d , with the progress of d e m o c r a c y , became
intolerable. The unitary, French-dominated state had to go. Vague
plans to make the whole country bilingual were unrealistic and
were in any case rejected by the French speakers, who understandably
wanted to preserve their own cultural identity. So the solution
clearly was the division of the country into two autonomous parts,
each with its own language, culture and way of life, but continuing
to live together in one kingdom. In legal terms this meant the
introduction, through successive revisions of the Constitution, of the
federal form of government. This process is still going on, but there
35
In 1893 universal plural male suffrage (not a right but, until today, a legal obligation) was
introduced, in 1921 universal single suffrage was written in the Constitution, as was the
principle of female suffrage, but the latter could only be realized in fact through a law voted
with a two-thirds majority, and this did not happen until 1948.
241
SWITZERLAND
After the troubled years of the Helvetian Republic, a French vassal
state with a centralized and unitary form of government based on the
French model, Switzerland found tranquillity again. Its neutralite
perpetuelle and the integrity and inviolability of its territory were
recognized by the Great Powers, and it attained its present size when,
in 1815, Geneva became a Swiss canton. The country returned to its
ancient Constitution, with sovereign cantons allied in a confederation,
but the power of the almighty leading lineages was broken (Article 7
of the Bundesvertrag of 1815 stated that the enjoyment of political rights
could never be the exclusive privilege of one class of a canton's
burghers). Swiss tranquillity was disturbed by the mini-war of
secession of 1847, when seven Catholic cantons formed the Sonderbund
('separate confederation') and agitated for so much cantonal autonomy
that the country might have broken up. The separatist movement
was repressed in a military campaign that lasted for three weeks. The
result was the more centralizing Constitution of 1848 which, in spite
of partial adaptations and a more thorough revision in 1874, n a s
remained the cornerstone of Swiss public law until the present day. In
1848 Switzerland became a federal state instead of a confederation of
3S
37
Two halves in a geographical sense, but not in terms of population, as roughly two-thirds of
the inhabitants of Belgium are Flemish, and one-third Walloon.
Professor Senelle, who used to teach constitutional law in Ghent, has devoted detailed
surveys to these developments; see R. Senelle, The Belgian Constitution. Commentary (Brussels,
1974); R. Senelle, The reform of the Belgian state (5 vols., Brussels, 1978-90). See also on a more
elementary level: A. Alen, Belgium: bipolar and centrifugal federalism (Brussels, 1990). A d e t a i l e d
analysis will be found in M. Uyttendaelc, Le fldfaalisme inacheve. For the repercussions on the
law courts, see J. Sarot et al., 1M jurisprudence de la Cour d'arbitrage (Brussels, 1990); E. O r b a n et
al., Fideralisme et cours supremes. Federalism and supreme courts (Brussels, 1991).
242
An historical introduction to western constitutional law
states. Two striking features of the Swiss Constitution deserve our
special attention here, the federal form of government and the
mixture of direct and indirect democracy.
The federal organization combines federal institutions, competent
for matters specifically assigned to them, with twenty-two sovereign
cantons - not provinces, but mini-states - competent for all other
affairs. The federal legislature is a bicameral parliament, called
Bundesversammlung or Assemblee federate, and composed of a Nalionalrat
or Conseil national and a Standerat or Conseil des Etats, the former being
proportional to the demographic situation and the latter containing
two members per canton. This serves to keep a balance between the
will of the cantons and that of the entire Swiss nation. Federal
executive power is in the hands of the government in Berne, called
Bundesrat or Conseil federal, chosen by parliament; it is not liable to be
toppled by parliament, but cannot dissolve it either. This provision
ensures great stability, but specifies nothing in case parliament and
government get involved in a frontal collision (a situation which has
not so far arisen in any dramatic way). This Federal Council acts as
collective head of state, the federal president being no more than the
yearly elected chairman of the Federal Council. In the government,
which contains seven members, the linguistic communities are not
equally represented, as the custom has arisen that there are four
German-speaking, two French-speaking and one Italian-speaking
members. It is also customary to have one member from Berne, one
from Zurich and one from the canton of Vaud.
Besides indirect democracy in the shape of elected federal and
cantonal representatives, Switzerland also practises direct democracy
in the form of frequent referendums, which can overrule the will of
parliament. The mechanism is remarkable as it means that the
representatives elected by the people can be disowned by them. In a
few cantons there exists an unbroken continuity between the medieval
democracy of the Landgemeinde and the present day. In Glarus,
Unterwalden and Appenzell this primeval democracy has been in
operation since the Middle Ages and the people decide in their
annual spring gathering on all questions of legislation and administration. This is done publicly and after free discussion where everyone
can speak up, under the chairmanship of the elected Landammann (this
supersedes the cantonal parliament). Elsewhere the referendum is a
nineteenth-century institution. In 1848 it was made compulsory for
constitutional questions. In 1869 the canton of Zurich, followed by
The bourgeois nation state
243
several neighbours, included the possibility of a referendum on
legislative matters. Shortly afterwards this optional referendum on
legislation was introduced at the federal level by the constitutional
revision of 1874 (the right of initiative for a federal referendum was
regulated in 1891).
At the federal level, leaving aside cantonal referendums, this means
at present that for a law passed by the federal parliament 50,000
citizens or eight cantons can, within 90 days, demand that it be
submitted to a popular consultation. And if at least 100,000 citizens
request it, a proposal for a change in the Constitution can be entered.
The variety of topics submitted to referendums is infinite, and varies
from trivial to fundamental issues, but whatever the issue, the
legislature has repeatedly been denied. Thus, to quote one example, a
referendum in March 1986 rejected by a three to one majority the
decision of the Swiss government to join the United Nations
Organization. In light of our earlier discussion, one point may be
specifically mentioned here: judicial control of the constitutionality of
the laws was rejected by referendum in 1939.
It is moreover worth mentioning that the Constitution of 1848
recognizes the sovereignty of the cantons as a m a t t e r of principle, but
only in so far as it is not restricted by the Constitution of the
Confederation. This restricted sovereignty, which is in fact a
contradiction in terms, reminds us of the European Community,
whose 'sovereign' kingdoms, republics and duchies have accepted
far-reaching limitations of their freedom of action in such fields as
European legislation, jurisdiction and government. This has not
turned them into vassal or satellite states, but there is no doubt that
their total, nineteenth-century style of sovereignty has been lost.
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The English Constitution
Edited with an Introduction and Notes by
MILES TAYLOR
OXFORD
UNIVERSITY PRESS
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' O N all great subjects,' says Mr Mill,* 'much remains to be said,'
and of none is this more true, than of the English Constitution. The
literature which has accumulated upon it is huge. But an observer
who looks at the living reality will wonder at the contrast to the
paper description. He will see in the life much which is not in the
books; and he will not find in the rough practice many refinements of
the literary theory.
It was natural—perhaps inevitable—that such an undergrowth of
irrelevant ideas should gather round the British Constitution. Language is the tradition of nations; each generation describes what it
sees, but it uses words transmitted from the past. When a great
entity like the British Constitution has continued in connected outward sameness, but hidden inner change, for many ages, every generation inherits a series of inapt words—of maxims once true, but of
which the truth is ceasing or has ceased. As a man's family go on
muttering in his maturity incorrect phrases derived from a just
observation of his early youth, so, in the full activity of an historical
constitution, its subjects repeat phrases true in the time of their
fathers, and inculcated by those fathers, but now true no longer. Or,
if I may say so, an ancient and ever-altering constitution is like an old
man who still wears with attached fondness clothes in the fashion of
his youth: what you see of him is the same; what you do not see is
wholly altered.
There are two descriptions of the English Constitution which
have exercised immense influence, but which are erroneous. First, it
is laid down as a principle of the English polity, that in it the legislative, the executive, and the judicial powers, are quite divided,—that
each is entrusted to a separate person or set of persons—that no one
of these can at all interfere with the work of the other. There has
been much eloquence expended in explaining how the rough genius
of the English people, even in the middle ages, when it was especially
rude, carried into life and practice that elaborate division of functions which philosophers had suggested on paper, but which they
had hardly hoped to see except on paper.
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Secondly, it is insisted, that the peculiar excellence of the British
Constitution lies in a balanced union of three powers. It is said that
the monarchical element, the aristocratic element, ajad the democratic element, have each a share in the supreme sovereignty, and
that the assent of all three is necessary to the action of that sovereignty. Kings, lords, and commons, by this theory, are alleged to be
not only the outward form, but the inner moving essence, the vitality
of the constitution. A great theory, called the theory of 'Checks and
Balances,' pervades an immense part of political literature, and
much of it is collected from or supported by English experience.
Monarchy, it is said, has some faults, some bad tendencies, aristocracy others, democracy, again, others; but England has shown
that a government can be constructed in which these evil tendencies
exactly check, balance, and destroy one another—in which a good
whole is constructed not simply in spite of, but by means of, the
counteracting defects of the constituent parts.
Accordingly it is believed, that the principal characteristics of the
English Constitution are inapplicable in countries where the
materials for a monarchy or an aristocracy do not exist. That constitution is conceived to be the best imaginable use of the political
elements which the great majority of States in modern Europe
inherited from the medieval period. It is believed that out of these
materials nothing better can be made than the English Constitution;
but it is also believed that the essential parts of the English Constitution cannot be made except from these materials. Now these elements are the accidents of a period and a region; they belong only to
one or two centuries in human history, and to a few countries. The
United States could not have become monarchical, even if the constituent convention had decreed it—even if the component States
had ratified it. The mystic reverence, the religious allegiance, which
are essential to a true monarchy, are imaginative sentiments that
no legislature can manufacture in any people. These semi-filial feelings in government are inherited just as the true filial feelings in
common life. You might as well adopt a father as make a monarchy;
the special sentiment belonging to the one is as incapable of voluntary creation as the peculiar affection belonging to the other. If the
practical part of the English Constitution could only be made out of
a curious accumulation of mediaeval materials, its interest would be
half historical, and its imitability very confined.
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No one can approach to an understanding of the English institutions, or of others which being the growth of many centuries exercise a wide sway over mixed populations, unless he divide them into
two classes. In such constitutions there are two parts (not indeed
separable with microscopic accuracy, for the genius of great affairs
abhors nicety of division): first, those which excite and preserve the
reverence of the population,—the dignified parts, if I may so call
them; and next, the efficient parts,—those by which it, in fact, works
and rules. There are two great objects which every constitution must
attain to be successful, which every old and celebrated one must have
wonderfully achieved:—every constitution must first gain authority,
and then use authority; it must first win the loyalty and confidence of
mankind, and then employ that homage in the work of government.
There are indeed practical men who reject the dignified parts of
government. They say, we want only to attain results, to do business;
a constitution is a collection of political means for political ends; and
if you admit that any part of a constitution does no business, or that a
simpler machine would do equally well what it does, you admit that
this part of the constitution, however dignified or awful it may be, is
nevertheless in truth useless. And other reasoners, who distrust this
bare philosophy, have propounded subtle arguments to prove that
these dignified parts of old governments are cardinal components of
the essential apparatus, great pivots of substantial utility; and so
manufactured fallacies which the plainer school have well exposed.
But both schools are in error. The dignified parts of government are
those which bring it force,—which attract its motive power. The
efficient parts only employ that power. The comely parts of a government have need, for they are those upon which its vital strength
depends. They may not do anything definite that a simpler polity
would not do better; but they are the preliminaries, the needful
pre-requisites of all work. They raise the army, though they do not
win the battle.
Doubtless, if all subjects of the same government only thought of
what was useful to them, and if they all thought the same thing
useful, and all thought that same thing could be attained in the same
way, the efficient members of a constitution would suffice, and no
impressive adjuncts would be needed. But the world in which we live
is organised far otherwise.
The most strange fact, though the most certain in nature, is the
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unequal development of the human race. If we look back to the early
ages of mankind, such as we seem in the faint distance to see them—
if we call up the image of those dismal tribes in lake yillages, or on
wretched beaches;—scarcely equal to the commonest material needs,
cutting down trees slowly and painfully with stone tools, hardly
resisting the attacks of huge, fierce animals, —without culture, without leisure, without poetry, almost without thought,—destitute of
morality, with only a sort of magic for religion; and if we compare
that imagined life with the actual life of Europe now, we are overwhelmed at the wide contrast—we can scarcely conceive ourselves to
be of the same race as those in the far distance. There used to be a
notion—not so much widely asserted as deeply implanted, rather
pervadingly latent than commonly apparent in political philosophy—
that in a little while, perhaps ten years or so, all human beings
might without extraordinary appliances be brought to the same level.
But now when we see by the painful history of mankind at what
point we began, by what slow toil, what favourable circumstances,
what accumulated achievements, civilised man has become at all
worthy in any degree so to call himself—when we realise the tedium
of history and the painfulness of results, our perceptions are sharpened as to the relative steps of our long and gradual progress. We
have in a great community like England crowds of people scarcely
more civilised than the majority of two thousand years ago; we have
others even more numerous such, as the best people were a thousand
years since. The lower orders, the middle orders, are still, when tried
by what is the standard of the educated 'ten thousand,' narrowminded, unintelligent, incurious. It is useless to pile up abstract
words. Those who doubt should go out into their kitchens: let an
accomplished man try what seems to him most obvious, most certain, most palpable in intellectual matters, upon the housemaid and
the footman, and he will find that what he says seems unintelligible,
confused, and erroneous—that his audience think him mad and wild
when he is speaking what is in his own sphere of thought the dullest
platitude of cautious soberness. Great communities are like great
mountains—they have in them the primary, secondary, and tertiary
strata of human progress; the characteristics of the lower regions
resemble the life of old times rather than the present life of the
higher regions. And a philosophy which does not ceaselessly remember, which does not continually obtrude the palpable differences of
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the various parts, will be a theory radically false, because it has
omitted a capital reality—will be a theory essentially misleading,
because it will lead men to expect what does not exist, and not to
anticipate that which they will find.
Every one knows these plain facts, but by no means every one has
traced their political importance. When a state is constituted thus, it
is not true the lower classes will be absorbed in the useful; they do
not like anything so poor. No* orator ever made an impression by
appealing to men as to their plainest physical wants, except when he
could allege or prove that those wants were caused by the tyranny of
some other class. But thousands have made the greatest impression
by appealing to some vague dream of glory, or empire, or nationality.
The ruder sort of men—that is, men at one stage of rudeness—will
sacrifice all they hope for, all they have, themselves, for what is called
an idea,—for some attraction which seems to transcend reality,
which aspires to elevate men by an interest higher, deeper, wider
than that of ordinary life. But this order of men are uninterested in
the plain, palpable ends of government; they do not prize them; they
do not in the least comprehend how they should be attained. It is
very natural, therefore, that the most useful parts of the structure of
government should by no means be those which excite the most
reverence. The elements which excite the most easy reverence will be
the theatrical elements; those which appeal to the senses, which
claim to be embodiments of the greatest human ideas—which boast
in some cases of far more than human origin. That which is mystic in
its claims;—that which is occult in mode of action; that which is
brilliant to the eye; that which is seen vividly for a moment, and then
is seen no more; that which is hidden and unhidden; that which is
specious, and yet interesting—palpable in its seeming, and yet professing to be more than palpable in its results;—this, howsoever its
form may change, or however we may define it or describe it, is the
sort of thing—the only sort which yet comes home to the mass of
men. So far from the dignified parts of a constitution being necessarily the most useful, they are likely, according to outside presumption,
to be the least so; for they are likely to be adjusted to the lowest
orders—those likely to care least and judge worst about what is
useful.
There is another reason which, in an old constitution like that of
England, is hardly less important. The most intellectual of men are
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moved quite as much by what they are used to as by what they
choose. The active voluntary part of man is very small, and if it were
not economised by a sleepy kind of habit, its results Would be null.
We could not do every day out of our own heads all we have to do.
We should accomplish nothing; for all our energies would be frittered away in minor attempts at petty improvement. One man, too,
would go off from the known track in one direction, and one. in
another; so that when a crisis comes requiring massed combination,
no two men will be near enough to act together. It is the dull traditional habit of mankind that guides most men's actions, and is the
steady frame in which each new artist must set the picture that he
paints. And all this traditional part of human nature is, ex vi termini,*
most easily impressed and acted on by that which is handed down.
Other things being equal, yesterday's institutions are by far the best
for to-day; they are the most ready, the most influential, the most
easy to get obeyed, the most likely to retain the reverence which they
alone inherit, and which every other must win. The most imposing
institutions of mankind are the oldest; and yet so changing is the
world,—so fluctuating are its needs,—so apt to lose inward force,
though retaining outward strength, are its best instruments, that we
must not expect the oldest institutions to be now the most efficient.
We must expect what is venerable to acquire influence because of its
inherent dignity; but we must not expect it to use that influence so
well as new creations apt for the modern world, instinct with its
spirit, and fitting closely to its life.
The brief description of the characteristic merit of the English
Constitution is, that its dignified parts are very complicated and
somewhat imposing, very old and rather venerable; while its efficient
part, at least when in great and critical action, is decidedly simple
and rather modern. We have made, or, rather, stumbled on, a constitution which,—though full of every species of incidental defect—
though of the worst workmanship in all out-of-the-way matters of any
constitution in the world, yet has two capital merits:—it contains a
simple efficient part which, on occasion, and when wanted, can work
more simply, and easily, and better than any instrument of government that has yet been tried; and it contains likewise historical,
complex, august, theatrical parts, which it has inherited from a long
past,—which take the multitude,—which guide by an insensible but
an omnipotent influence the associations of its subjects. Its essence is
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strong with the strength of modern simplicity; its exterior is august
with the Gothic grandeur of a more imposing age. Its simple essence
may, mutatis mutandis, be transplanted to many very various countries, but its august outside—what most men think it is—is narrowly
confined to nations with an analogous history and similar political
relics.
The efficient secret of the English Constitution may be described
as the close union, the nearly complete fusion of the executive and
legislative powers. According to the traditional theory, as it exists in
all the books, the goodness of our constitution consists in the entire
separation of the legislative and executive authorities, but in truth its
merit consists in their singular approximation. The connecting link
is the cabinet. By that new word we mean a committee of the legislative body selected to be the executive body. The legislature has many
committees, but this is its greatest. It chooses for this, its main
committee, the men in whom it has most confidence. It does not, it is
true, choose them directly; but it is nearly omnipotent in choosing
them indirectly. A century ago the Crown had a real choice of ministers, though it had no longer a choice in policy. During the long
reign of Sir R. Walpole* he was obliged not only to manage parliament but to manage the palace. He was obliged to take care that some
court intrigue did not expel him from his place. The nation then
selected the English policy, but the Crown chose the English ministers. They were not only in name, as now, but in fact, the Queen's
servants. Remnants, important remnants of this great prerogative
still remain. The discriminating favour of William IV made Lord
Melbourne head of the Whig party, when he was only one of several
rivals.* At the death of Lord Palmerston* it is very likely that the
Queen may have the opportunity of freely choosing between two, if
not three statesmen. But, as a rule, the nominal prime minister is
chosen by the legislature—and the real prime minister for most
purposes—the leader of the House of Commons almost without
exception is so. There is nearly always some one man plainly selected
by the voice of the predominant party in the predominant house
of the legislature, to head that party, and consequently to rule the
nation. We have in England an elective first magistrate as truly as
the Americans have an elective first magistrate. The Queen is only at
the head of the dignified part of the constitution. The prime minister is at the head of the efficient part. The Crown'is, according to the
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saying, the 'fountain of honour;' but the Treasury is the, spring of
business. However, our first magistrate differs from the American.
He is hot elected directly by the people; he is elected by/the representatives of the people. He is an example of 'double election.' The
legislature chosen, in name, to make laws, in fact finds its principal
business in making and in keeping an executive.
The leading minister so selected has to choose his associates, but
he only chooses among a charmed circle. The position of most men
in parliament forbids their being invited to the cabinet; the position
of a few men ensures their being invited. Between the compulsory
list whom he must take, and the impossible list whom he cannot take,
a prime minister's independent choice in the formation of a cabinet
is not very large; it extends rather to the division of the cabinet
offices than to the choice of cabinet ministers. Parliament and the
nation have pretty well settled who shall have the first places; but
they have not discriminated with the same accuracy which man shall
have which place. The highest patronage of a prime minister is, of
course, a considerable power, though it is exercised under close and
imperative restrictions; though it is far less than it seems to be when
stated in theory, or looked at from a distance.
The cabinet, in a word, is a board of control chosen by the legislature, out of persons whom it trusts and knows, to rule the nation.
The particular mode in which the English ministers are selected; the
fiction that they are, in any political sense, the Queen's servants; the
rule which limits the choice of the cabinet to the members of the
legislature,—are accidents unessential to its definition—historical
incidents separable from its nature. Its characteristic is that it should
be chosen by the legislature out of persons agreeable to and trusted
by the legislature. Naturally these are principally its own members—
but they need not be exclusively so. A cabinet which included persons not members of the legislative assembly might still perform
useful duties. Indeed the Peers, who constitute a large element in
modern cabinets, are members, now-a-days, only of a subordinate
assembly. The House of Lords still exercises several useful functions; but the ruling influence—the deciding faculty—has passed to
what, using the language of old times, we still call the lower houseto an assembly which, though inferior as a dignified institution, is
superior as an efficient institution. A principal advantage of the
House of Lords in the present age indeed consists in its thus acting
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as a reservoir of cabinet ministers. Unless the composition of the
House of Commons were improved, or unless the rules requiring
cabinet ministers to be members of the legislature were relaxed, it
would undoubtedly be difficult to find, without the Lords, a sufficient supply of chief ministers. But the detail of the composition of
a cabinet, and the precise method of its choice, are not to the purpose
now. The first and cardinal consideration is the definition of a cabinet. We must not bewilder ourselves with the separable accidents
until we know the necessary essence. A cabinet is a combining
committee,—a hyphen which joins, a buckle which fastens, the legislative part of the state to the executive part of the state. In its origin
it belongs to the one, in its functions it belongs to the otherj
The most curious point about the cabinet is that so very little is
known about it. The meetings are not only secret in theory, but
secret in reality. By the present practice, no official minute is kept of
them. Even a private note is discouraged and disliked. The House of
Commons, even in its most inquisitive and turbulent moments,
would not permit a note of a cabinet meeting to be read. No minister
who respected the fundamental usages of political practice would
attempt to read such a note. The committee which unites the lawmaking power to the law-executing power—which, by virtue of that
combination, is, while it lasts and holds together, the most powerful
body in the state—is a committee wholly secret. No description of it,
at once graphic and authentic, has ever been given. It is said to be
sometimes like a rather disorderly board of directors, where many
speak and few listen—but no one knows.1
But a cabinet, though it is a committee of the legislative assembly,
is a committee with a power which no assembly would—unless for
historical accidents, and after happy experience—have been persuaded to entrust to any committee. It is a committee which can
dissolve the assembly which appointed it; it is a committee with a
suspensive veto—a committee with a power of appeal. Though
appointed by one parliament, it can appeal if it chooses to the next.
Theoretically, indeed, the power to dissolve parliament is entrusted,
It is said, at the end of the cabinet which agreed to propose a fixed duty on corn,
Lord Melbourne put his back to the door and said,* 'Now is it to lower the price of corn
or isn't it? It is not much matter which we say, but mind, we must all say the same.' This
is the most graphic story of a cabinet I ever heard, but I cannot vouch for its truth. Lord
Melbourne's is a character about which men make stories
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to the sovereign only; and there are vestiges of doubt whether in all
cases a sovereign is bound to dissolve parliament when the cabinet
ask him to do so. But neglecting such small and dubious exceptions,
the cabinet which was chosen by one House of Commons has an
appeal to the next House of Commons. The chief committee of the
legislature has the power of dissolving the predominant part of that
legislature,—in fact, on critical occasions, the legislature itself. The
English system, therefore, is not an absorption of the executive
power by the legislative power; it is a fusion of the two. Either the
cabinet legislate and act, or, if not, it can dissolve. It is a creature, but
it has the power of destroying its creators. It is an executive which
can annihilate the legislature as well as an executive which is the
nominee of the legislature. It was made, but it can unmake; it was
derivative in its origin, but it is destructive in its action.
This fusion of the legislative and executive functions may, to those
who have not much considered it, seem but a dry and small matter to
be the latent essence and effectual secret of the English Constitution;
but we can only judge of its real importance by looking at a few of its
principal effects, and contrasting it very shortly with its great competitor, which seems likely, unless care be taken, to outstrip it in the
progress of the world. That competitor is the Presidential system.
The characteristic of it is that the President is elected from the
people by one process, and the House of Representatives by another.
The independence of the legislative and executive powers is the
specific quality of Presidential Government, just as their fusion and
combination is the precise principle of Cabinet Government.
First, compare the two in quiet times. The essence of a civilised
age is, that administration requires the continued aid of legislation.
One principal and necessary kind of legislation is taxation. The
expense of civilised government is continually varying. It must vary
if the government does its duty. The miscellaneous estimates of the
English Government contain an inevitable medley of changing
items. Education, prison discipline, art, science, civil contingencies
of a hundred kinds, require more money one year and less another.
The expense of defence—the naval and military estimates—vary
still more as the danger of attack seems more or less imminent, as the
means of retarding such danger become more or less costly. If the
persons who have to do the work are not the same as those who have
to make the laws, there will be a controversy between two sets of
persons. The tax-imposers are sure to quarrel with the tax-requirers.
The executive is crippled by not getting the laws it needs, and the
legislature is spoiled by having to act without responsibility; the
executive becomes unfit for its name since it cannot execute what it
decides on: the legislature is demoralised by liberty, by taking
decisions of which others (and not itself) will suffer the effects.
In America so much has this difficulty been felt that a semiconnection has grown up between the legislature and the executive.
When the Secretary of the Treasury of the Federal Government
wants a tax he consults upon it with the Chairman of the Financial
Committee of Congress. He cannot go down to Congress himself
and propose what he wants; he can only write a letter and send it.
But he tries to get a chairman of the Finance Committee who likes
his tax;—through that chairman he tries to persuade the committee
to recommend such tax; by that committee he tries to induce the
house to adopt that tax. But such a chain of communications is liable
to continual interruptions; it may suffice for a single tax on a fortunate occasion, but will scarcely pass a complicated budget—we do
not say in a war or a rebellion—we are now comparing the cabinet
system and the presidential system in quiet times—but in times of
financial difficulty. Two clever men never exactly agreed about a
budget. We have by present practice an Indian Chancellor of the
Exchequer talking English finance at Calcutta, and an English one
talking Indian finance in England.* But the figures are never the
same, and the views of policy are rarely the same. One most angry
controversy has amused the world, and probably others scarcely less
interesting are hidden in the copious stores of our Anglo-Indian
correspondence.
But relations something like these must subsist between the head
of a finance committee in the legislature, and a finance minister in
the executive.1 They are sure to quarrel, and the result is sure to
satisfy neither. And when the taxes do not yield as they were
expected to yield, who is responsible? Very likely the secretary of the
treasury could not persuade the chairman—very likely the chairman
could not persuade his committee—very likely the committee could
It is worth observing that even during the short existence of the Confederate
Government these evils distinctly showed themselves. Almost the last incident at the
Richmond Congress was an angry financial correspondence with Jefferson Davis*
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not persuade the assembly. Whom, then, can you punish—whom
can you abolish when your taxes run short? There is nobody save the
legislature, a vast miscellaneous body difficult to punish, and the
very persons to inflict the punishment.
Nor is the financial part of administration the only one which
requires in a civilised age the constant support and accompaniment
of facilitating legislation. All administration does so. In England, on
a vital occasion, the cabinet can compel legislation by the threat of
resignation, and the threat of dissolution; but neither of these can be
used in a presidential state. There the legislature cannot be dissolved
by the executive government; and it does not heed a resignation, for
it has not to find the successor. Accordingly, when a difference of
opinion arises, the legislature is forced to fight the executive, and the
executive is forced to fight the legislative; and so very likely they
contend to the conclusion of their respective terms.1 There, is,
indeed, one condition of things in which this description, though
still approximately true, is, nevertheless, not exactly true; and that
is, when there is nothing to fight about. Before the rebellion in
America, owing to the vast distance of other states, and the favourable economical condition of the country, there were very few considerable subjects of contention; but if that government had been
tried by the English legislation of the last thirty years, the discordant
action of the two powers, whose constant co-operation is essential to
the best government, would have shown itself much more distinctly.
Nor is this the worst. Cabinet governments educate the nation;
the presidential does not educate it, and may corrupt it. It has been
said that England invented the phrase, 'Her Majesty's Opposition;'
that it was the first government which made a criticism of administration as much a part of the polity as administration itself. This
critical opposition is the consequence of cabinet government. The
great scene of debate, the great engine of popular instruction and
political controversy, is the legislative assembly. A speech there by an
eminent statesman, a party movement by a great political combination, are the best means yet known for arousing, enlivening, and
teaching a people. The cabinet system ensures such debates, for it
makes them the means by which statesmen advertise themselves for
I leave this passage to stand* as it was written just after the assassination of Mr
Lincoln, and when every one said Mr Johnson would be very hostile to the South.
future and confirm themselves in present governments. It brings
forward men eager to speak, and gives them occasions to speak. The
deciding catastrophes of cabinet governments are critical divisions
preceded by fine discussions. Everything which is worth saying,
everything which ought to be said, most certainly will be said. Conscientious men think they ought to persuade others; selfish men
think they would like to obtrude themselves. The nation is forced to
hear two sides—all the sides, perhaps, of that which most concerns
it. And it likes to hear—it is eager to know. Human nature despises
long arguments which come to nothing,—heavy speeches which
precede no motion—abstract disquisitions which leave visible things
where they were. But all men heed great results, and a change of
government is a great result. It has a hundred ramifications; it runs
through society; it gives hope to many, and it takes away hope from
many. It is one of those marked events which, by its magnitude and
its melodrama, impresses men even too much. And debates, which
have this catastrophe at the end of them—or may so have it—are
sure to be listened to and sure to sink deep into the national mind.
Travellers even in the Northern States of America, the greatest
and best of presidential countries, have noticed that the nation was
'not specially addicted to politics;' that they have not a public opinion finished and chastened as that of the English has been finished
and chastened. A great many hasty writers have charged this defect
on the 'Yankee race,' on the Anglo-American character; but English
people, if they had no motive to attend to politics, certainly would
not attend to politics. At present there is business in their attention.
They assist at the determining crisis; they retard or help it. Whether
the government will go out or remain is determined by the debate,
and by the division in parliament. And the opinion out of doors, the
secret pervading decision of society has a great influence on that
division. The nation feels that its judgment is important, and it
strives to judge. It succeeds in deciding because the debates and the
discussions give it the facts and the arguments. But under a presidential government a nation has, except at the electing moment, no
influence; it has not the ballot-box before it; its virtue is gone, and it
must wait till its instant of despotism again returns. It is not incited
to form an opinion like a nation under a cabinet government; nor is it
instructed like such a nation. There are doubtless debates in the
legislature, but they are prologues without a play. There is nothing of
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catastrophe about them; you cannot turn out the government the
prize of power is not in the gift of the legislature, and no one cares
for the legislature. The executive, the great centre of power and
place, sticks irremovable; you cannot change it in any event. The
teaching apparatus which has educated our public mind, which prepares our resolutions, which shapes our opinions, does not exist. No
presidential country needs to form daily, delicate opinions, or is
helped in forming them.
It might be thought that the discussions in the press would supply
the deficiencies of the constitution; that by a reading people especially, the conduct of their government would be as carefully
watched, that their opinions about it would be as consistent, as
accurate, as well-considered, under a presidential as under a cabinet
polity. But the same difficulty oppresses the press which oppresses
the legislature. It can do nothing. It cannot change the administration; the executive was elected for such and such years, and for such
and such years it must last. People wonder that so literary a people as
the Americans—a people who read more than any people who ever
lived, who read so many newspapers—should have such bad newspapers. The papers are not as good as the English papers, because
they have not the same motive to be good as the English papers. At a
political 'crisis,' as we say—that is, when the fate of the administration is unfixed, when it depends on a few votes, yet unsettled, upon a
wavering and veering opinion—effective articles in great journals
become of essential moment. The Times has made many ministries.
When, as of late, there has been a long continuance of divided parliaments, of governments which were without 'brute voting power,'
and which depended on intellectual strength, the support of the
most influential organ of English opinion has been of critical
moment. If a Washington newspaper could have turned out Mr
Lincoln, there would have been good writing and fine argument in
the Washington newspapers. But the Washington newspapers can no
more remove a president during his term of place than the Times can
remove a lord mayor during his year of office. Nobody cares for a
debate in Congress which 'comes to nothing,' and no one reads long
articles which have no influence on events. The Americans glance at
the heads of news, and through the paper. They do not enter upon a
discussion. They do not think of entering on a discussion which
would be useless.
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19
After saying that the division of the legislative and executive in
presidential governments weakens the legislative power, it may seem
a contradiction to say that it also weakens the executive power. But it
is not a contradiction. The division weakens the whole aggregate
force of government—the entire imperial power; and therefore it
weakens both its halves. The executive is weakened in a very plain
way. In England a strong cabinet can obtain the concurrence of the
legislature in all acts which facilitate its administration; it is itself, so
to say, the legislature. But a president may be hampered by the
parliament, and is likely to be hampered. The natural tendency of
the members of every legislature is to make themselves conspicuous.
They wish to gratify an ambition laudable or blameable; they wish to
promote the measures they think best for the public welfare; they
wish to make their will felt in great affairs. All these mixed motives
urge them to oppose the executive. They are embodying the purposes of others if they aid; they are advancing their own opinions if
they defeat: they are first if they vanquish; they are auxiliaries if they
support. The weakness of the American executive used to be the
great theme of all critics before the Confederate rebellion.* Congress
and committees of Congress of course impeded the executive when
there was no coercive public sentiment to check and rule them.
But the presidential system not only gives the executive power an
antagonist in the legislative power, and so makes it weaker; but it also
enfeebles it by impairing its intrinsic quality. A cabinet is elected by a
legislature; and when that legislature is composed of fit persons, that
mode of electing the executive is the very best. It is a case of secondary
election, under the only conditions in which secondary election is
preferable to primary. Generally speaking, in an electioneering country (I mean in a country full of political life, and used to the manipulation of popular institutions), the election of candidates to elect
candidates is a farce. The Electoral College of America is so. It was
intended that the deputies when assembled should exercise a real
discretion, and by independent choice select the president. But the
primary electors take too much interest. They only elect a deputy to
vote for Mr Lincoln or Mr Breckenridge,* and the deputy only takes
a ticket, and drops that ticket in an urn. He never chooses or thinks
of choosing. He is but a messenger—a transmitter: the real decision
is in those who chose him; who chose him because they knew what
he would do.
20
The English Constitution
It is true that the British House of Commons is subject to the
same influences. Members are mostly, perhaps, elected because they
will vote for a particular ministry, rather than for purely legislative
reasons. But—and here is the capital distinction—the functions of
the House of Commons are important and continuous. It does not,
like the Electoral College in the United States, separate when it has
elected its ruler; it watches, legislates, seats, and unseats ministries,
from day to day. Accordingly it is a real electoral body. The parliament of 1857, which, more than any other parliament of late years,
was a parliament elected to support a particular premier—which was
chosen, as Americans might say, upon the 'Palmerston ticket'—
before it had been in existence two years, dethroned Lord Palmerston. Though selected in the interest of a particular ministry, it in
fact destroyed that ministry.
A good parliament, too, is a capital choosing body. If it is fit to
make laws for a country, its majority ought to represent the general
average intelligence of that country; its various members ought to
represent the various special interests, special opinions, special
prejudices, to be found in that community. There ought to be an
advocate for every particular sect, and a vast neutral body of no
sect—homogeneous and judicial, like the nation itself. Such a body,
when possible, is the best selecter of executives that can be imagined.
It is full of political activity; it is close to political life; it feels the
responsibility of affairs which are brought as it were to its threshold;
it has as much intelligence as the society in question chances to
contain. It is, what Washington and Hamilton* strove to create, an
electoral college of the picked men of the nation.
The best mode of appreciating its advantages is to look at the
alternative. The competing constituency is the nation itself, and this
is, according to theory and experience, in all but the rarest cases, a
bad constituency. Mr Lincoln, at his second election, being elected
when all the Federal states had set their united hearts on one single
object, was voluntarily re-elected by an actually choosing nation. He
embodied the object in which was every one was absorbed. But this
is almost the only presidential election of which so much can be said.
In almost all cases the President is chosen by a machinery of caucuses and combinations too complicated to be perfectly known, and
too familiar to require description. He is not the choice of the nation,
he is the choice of the wire-pullers. A very large constituency in
The Cabinet
21
quiet times is the necessary, almost the legitimate, subject of electioneering management: a man cannot know that he does not throw
his vote away except he votes as part of some great organisation; and
if he votes as a part, he abdicates his electoral function in favour of
the managers of that association. The nation, even if it chose for
itself, would, in some degree, be an unskilled body; but when it does
not choose for itself, but only as latent agitators wish, it is like a large,
lazy man, with a small, vicious mind,—it moves slowly and heavily,
but it moves at the bidding of a bad intention; it 'means little, but it
means that little ill.''
And, as the nation is less able to choose than a parliament, so it has
worse people to choose out of. The American legislators of the last
century have been much blamed for not permitting the ministers of
the President to be members of the Assembly; but, with reference to
the specific end which they had in view, they saw clearly and decided
wisely. They wished to keep 'the legislative branch absolutely distinct from the executive branch;' they believed such a separation to
be essential to a good constitution; they believed such a separation
to exist in the English, which the wisest of them thought the best
constitution. And, to the effectual maintenance of such a separation,
the exclusion of the President's ministers from the legislature is
essential. If they are not excluded they become the executive, they
eclipse the President himself. A legislative chamber is greedy and
covetous; it acquires as much, it concedes as little as possible. The
passions of its members are its rulers; the law-making faculty, the
most comprehensive of the imperial faculties, is its instrument;
it will take the administration if it can take it. Tried by their own
aims, the founders of the United States were wise in excluding the
ministers from Congress.
But though this exclusion is essential to the presidential system of
government, it is not for that reason a small evil. It causes the
degradation of public life. Unless a member of the legislature be
sure of something more than speech, unless he is incited by the hope
of action, and chastened by the chance of responsibility, a first-rate
man will not care to take the place, and will not do much if he does
take it. To belong to a debating society adhering to an executive
(and this is no inapt description of a congress under a presidential
constitution) is not an object to stir a noble ambition, and is a
position to encourage idleness. The members of a parliament
The English Constitution
The Cabinet
excluded from office can never be comparable, much less equal, to
those of a parliament not excluded from office. The presidential
government, by its nature, divides political life into two halves, an
executive half and a legislative half; and, by so dividing it, makes
neither half worth a man having—worth his making it a continuous
career—worthy to absorb, as cabinet government absorbs, his whole
soul. The statesmen from whom a nation chooses under a presidential system are much inferior to those from whom it chooses
under a cabinet system, while the selecting apparatus is also far less
discerning.
AH these advantages are more important at critical periods,
because government itself is more important. A formed public opinion, a respectable, able, and disciplined legislature, a well-chosen
executive, a parliament and an administration not thwarting each
other, but co-operating with each other, are of greater consequence
when great affairs are in progress than when small affairs are in
progress—when there is much to do than when there is little to do.
But in addition to this, a parliamentary or cabinet constitution possesses an additional and special advantage in very dangerous times.
It has what we may call a reserve of power fit for and needed by
extreme exigencies.
The principle of popular government is that the supreme power,
the determined efficacy in matters political, resides in the people—
not necessarily or commonly in the whole people, in the numerical
majority, but in a chosen people, a picked and selected people. It is
so in England; it is so in all free countries. Under a cabinet constitution at a sudden emergency this people can choose a ruler for the
occasion. It is quite possible and even likely that he would not be
ruler before the occasion. The great qualities, the imperious will, the
rapid energy, the eager nature fit for a great crisis are not
required—are impediments—in common times. A Lord Liverpool
is better in every-day politics than a Chatham—a Louis Philippe far
better than a Napoleon.* By the structure of the world we often
want, at the sudden occurrence of a grave tempest, to change the
helmsman—to replace the pilot of the calm by the pilot of the
storm. In England we have had so few catastrophes since our constitution attained maturity, that we hardly appreciate this latent
excellence. We have not needed a Cavour* to rule a revolution—a
representative man above all men fit for a great occasion, and by a
natural, legal mode brought in to rule. But even in England, at what
was the nearest to a great sudden crisis which we have had of late
years—at the Crimean difficulty*—we used this inherent power. We
abolished the Aberdeen cabinet, the ablest we have had, perhaps,
since the Reform Act*—a cabinet not only adapted, but eminently
adapted for every sort of difficulty save the one it had to meet—
which abounded in pacific discretion, and was wanting only in the
'demonic element;' we chose a statesman who had the sort of merit
then wanted, who, when he feels the steady power of England
behind him, will advance without reluctance, and will strike without
restraint. As was said at the time, 'We turned out the Quaker, and
put in the pugilist.'
But under a presidential government you can do nothing of the
kind. The American government calls itself a government of the
supreme people; but at a quick crisis, the time when a sovereign
power is most needed, you cannot find the supreme people. You
have got a Congress elected for one fixed period, going out perhaps
by fixed instalments, which cannot be accelerated or retarded—you
have a President chosen for a fixed period, and immovable during
that period: all the arrangements are for stated times. There is no
elastic element, everything is rigid, specified, dated. Come what
may, you can quicken nothing and can retard nothing. You have
bespoken your government in advance, and whether it suits you or
not, whether it works well or works ill, whether it is what you want
or not, by law you must keep it. In a country of complex foreign
relations it would mostly happen that the first and most critical year
of every war would be managed by a peace premier, and the first
and most critical years of peace by a war premier. In each case the
period of transition would be irrevocably governed by a man
selected not for what he was to introduce, but what he was to
change—for the policy he was to abandon, not for the policy he was
to administer.
T h e whole history of the American civil war—a history which has
thrown an intense light on the working of a presidential government
at the time when government is most important—is but a vast
continuous commentary on these reflections. It would, indeed, be
absurd to press against presidential government as such the singular
defect by which Vice-President Johnson has become President* by
which a man elected to a sinecure is fixed in what is for the moment
22
23
24
The English Constitution
The Cabinet
the most important administrative part in the political world. This
defect, though most characteristic of the expectations1 of the framers
of the constitution and of its working, is but an accident of this
particular case of presidential government, and no necessary
ingredient in that government itself. But the first election of Mr
Lincoln* is liable to no such objection. It was a characteristic
instance of the natural working of such a government upon a great
occasion. And what was that working, for it may be summed up in a
word, and it is easy to say it was government by an unknown quantity.
Hardly anyone in America had any living idea what Mr Lincoln was
like, or any definite notion what he would do. The leading statesmen
under the system of cabinet government are not only household
words, but household ideas. A conception not, perhaps, in all
respects a true, but a most vivid conception, what Mr Gladstone is
like, or what Lord Palmerston is like, runs through society. We have
simply no notion what it would be to be left with the visible sovereignty in the hands of an unknown man. The notion of employing a
man of unknown smallness at a crisis of unknown greatness is to our
minds ludicrous. Mr Lincoln, it is true, happened to be a man, if not
of eminent ability, yet of eminent justness. There was an inner depth
of Puritan nature which came out under suffering, and was very
attractive. But success in a lottery is no argument for lotteries. What
were the chances against a person of Lincoln's antecedents, elected
as he was, proving to be what he was?
Such an incident is, however, natural to a presidential government. The President is elected by processes which forbid the election of known men, except at peculiar conjunctures, and in moments
when public opinion is excited and despotic; and consequently, if a
crisis comes upon us soon after he is elected, inevitably we have
government by an unknown quantity—the superintendence of that
crisis by what our great satirist* would have called 'Statesman X.'
Even in quiet times, government by a president is, for the several
various reasons which have been stated, inferior to government by a
cabinet; but the difficulty of quiet times is nothing as compared with
the difficulty of unquiet times. The comparative deficiencies of the
regular, common operation of a presidential government, are far less
than the comparative deficiencies in time of sudden trouble—the
want of elasticity, the impossibility of a dictatorship, the total
absence of a revolutionary reserve.
This contrast explains why the characteristic quality of cabinet
governments—the fusion of the executive power with the legislative
power—is of such cardinal importance. I shall proceed to show what
nations can have it, and what is the form under which it exists in
England.
The framers of the constitution expected that the i>/Ve-president would be elected
by the Electoral College as the second wisest man in the country. The vice-presidentship
being a sinecure, a second-rate man agreeable to the wire-pullers is always smuggled in.
The chance of succession to the presidentship is too distant to be thought of
25
The Pre-requisites
2
THE PRE-REQUISITES OF CABINET GOVERNMENT, AND THE
PECULIAR FORM WHICH THEY HAVE ASSUMED IN ENGLAND
CABINET government is rare because its pre-requisites are many. It
requires the co-existence of several national characteristics which are
not often found together in the world, and which should be perceived more distinctly than they often are. It is fancied that the
possession of a certain intelligence, and a few simple virtues, are the
sole requisites. These mental and moral qualities are necessary, but
much else is necessary also. A cabinet government is the government
of a committee elected by the legislature, and there are therefore a
double set of conditions to it: first, those which are essential to all
elective governments as such; and second, those which are requisite
to this particular elective government. There are pre-requisites for
the genus, and additional ones for the species.
The first pre-requisite of elective government is the mutual confidence of the electors. We are so accustomed to submit to be ruled by
elected ministers, that we are apt to fancy all mankind would readily
be so too. Knowledge and civilisation have at least made this progress, that we instinctively, without argument, almost without consciousness, allow a certain number of specified persons to choose our
rulers for us. It seems to us the simplest thing in the world. But it is
one of the gravest things.
The peculiar marks of semi-barbarous people are diffused distrust
and indiscriminate suspicion. People, in all but the most favoured
times and places, are rooted to the places where they were born,
think the thoughts of those places, can endure no other thoughts.
The next parish even is suspected. Its inhabitants have different
usages, almost imperceptibly different, but yet different; they speak
a varying accent; they use a few peculiar words; tradition says that
their faith is dubious. And if the next parish is a little suspected, the
next county is much more suspected. Here is a definite beginning of
new maxims, new thoughts, new ways: the immemorial boundary
mark begins in feeling a strange world. And if the next county is
dubious, a remote county is untrustworthy. 'Vagrants come from
thence' men know, and they know nothing else. The inhabitants of
of Cabinet Government 27
the north speak a dialect different from the dialect of the south: they
have other laws, another aristocracy, another life. In ages when distant territories are blanks in the mind, when neighbourhood is a
sentiment, when locality is a passion, concerted co-operation between remote regions is impossible even on trivial matters. Neither
would rely enough upon good faith, good sense, and good judgment
of the other. Neither could enough calculate on the other.
And if such co-operation is not to be expected in trivial matters, it
is not to be thought of in the most vital matter of government—the
choice of the executive ruler. To fancy that Northumberland in the
thirteenth century would have consented to ally itself with Somersetshire for the choice of a chief magistrate is absurd; it would
scarcely have allied itself to choose a hangman. Even now, if it were
palpably explained, neither district would like it. But no one says at a
county election, 'The object of this present meeting is to choose our
delegate to what the Americans call the "Electoral College," to the
assembly which names our first magistrate—our substitute for their
president. Representatives from this county will meet representatives from other counties, from cities and boroughs, and proceed to
choose our rulers.' Such bald exposition would have been impossible
in old times; it would be considered queer, eccentric, if it were used
now. Happily, the process of election is so indirect and hidden, and
the introduction of that process was so gradual and latent, that we
scarcely perceive the immense political trust we repose in each other.
The best mercantile credit seems to those who give it, natural,
simple, obvious; they do not argue about it, or think about it. The
best political credit is analogous; we trust our countrymen without
remembering that we trust them.
A second and very rare condition of an elective government is a
calm national mind—a tone of mind sufficiently stable to bear the
necessary excitement of conspicuous revolutions. No barbarous, no
semi-civilised nation has ever possessed this. The mass of
uneducated men could not now in England be told 'go to, choose
your rulers;' they would go wild; their imaginations would fancy
unreal dangers, and the attempt at election would issue in some
forcible usurpation. The incalculable advantage of august institutions in a free state is, that they prevent this collapse. The excitement
of choosing our rulers is prevented by the apparent existence of an
unchosen ruler. The poorer and more ignorant classes—those who
28
The English Constitution
would most feel excitement, who would most be, misled by
excitement—really believe that the Queen governs. You could not
explain to them the recondite difference between '(eigning' and
'governing;' the words necessary to express it do not exist in their
dialect; the ideas necessary to comprehend it do not exist in their
minds. The separation of principal power from principal station is a
refinement which they could not even conceive. They fancy they are
governed by an hereditary queen, a queen by the grace of God, when
they are really governed by a cabinet and a parliament—men like
themselves, chosen by themselves. The conspicuous dignity awakens
the sentiment of reverence, and men, often very undignified, seize
the occasion to govern by means of it.
Lastly. The third condition of all elective government is what I
may call rationality, by which I mean a power involving intelligence,
but yet distinct from it. A whole people electing its rulers must be
able to form a distinct conception of distant objects. Mostly, the
'divinity' that surrounds a king altogether prevents anything like a
steady conception of him. You fancy that the object of your loyalty is
as much elevated above you by intrinsic nature as he is by extrinsic
position; you deify him in sentiment, as once men deified him in
doctrine. This illusion has been and still is of incalculable benefit to
the human race. It prevents, indeed, men from choosing their rulers;
you cannot invest with that loyal illusion a man who was yesterday
what you are, who tomorrow may be so again, whom you chose to be
what he is. But though this superstition prevents the election of
rulers, it renders possible the existence of unelected rulers.
Untaught people fancy that their king, crowned with the holy crown,
anointed with the oil of Rheims—descended of the House of
Plantagenet—is a different sort of being from any one not descended
of the Royal House—not crowned—not anointed. They believe that
there is one man whom by mystic right they should obey; and therefore they do obey him. It is only in later times, when the world is
wider, its experience larger, and its thought colder, that the plain rule
of a palpably chosen ruler is even possible.
These conditions narrowly restrict elective government. But the
pre-requisites of a cabinet government are rarer still; it demands not
only the conditions I have mentioned, but the possibility likewise of
a good legislature—a legislature competent to elect a sufficient
administration.
The Pre-requisites
of Cabinet Government 29
Now a competent legislature is very rare. Any permanent legislature at all, any constantly acting mechanism for enacting and
repealing laws, is, though it seems to us so natural, quite contrary to
the inveterate conceptions of mankind. The great majority of
nations conceive of their law, either as something Divinely given, and
therefore unalterable, or as a fundamental habit, inherited from the
past to be transmitted to the future. The English Parliament, of
which the prominent functions are now legislative, was not all so
once. It was rather a preservative body. The custom of the realm—
the aboriginal transmitted law—the law which was in the breast of
the judges, could not be altered without the consent of parliament,
and therefore everybody felt sure it would not be altered except in
grave, peculiar, and anomalous cases. The valued use of parliament
was not half so much to alter the law, as to prevent the laws being
altered. And such too was its real use. In early societies it matters
much more that the law should be fixed than that it should be good.
Any law which the people of ignorant times enact is sure to involve
many misconceptions, and to cause many evils. Perfection in legislation is not to be looked for, and is not, indeed, much wanted in a
rude, painful, confined life. But such an age covets fixity. That men
should enjoy the fruits of their labour, that the law of property
should be known, that the law of marriage should be known, that the
whole course of life should be kept in a calculable track, is the
summum bonum* of early ages, the first desire of semi-civilised mankind. In that age men do not want to have their laws adapted, but to
have their laws steady. The passions are so powerful, force so eager,
the social bond so weak, that the august spectacle of an all but
unalterable law is necessary to preserve it. In the early stages of
human society all change is thought an evil. And most change is an
evil. The conditions of life are so simple and so unvarying that any
decent sort of rules suffice, so long as men know what they are.
Custom is the first check on tyranny; that fixed routine of social
life at which modern innovations chafe, and by which modern
improvement is impeded, is the primitive check on base power. The
perception of political expediency has hardly begun; the sense of
abstract justice is weak and vague, and a rigid adherence to the fixed
mould of transmitted usage is essential to an unmarred, unspoiled,
unbroken life.
In such an age a legislature continuously sitting, always making
30
The English Constitution
laws, always repealing laws, would have been both an anomaly and a
nuisance. But in the present state of the civilised part of the world
such difficulties are obsolete. There is a diffused desire in civilised
communities for an adjusting legislation; for a legislation which
should adapt the inherited laws to the new wants of a world which
now changes every day. It has ceased to be necessary to maintain bad
laws, because it is necessary to have some laws. Civilisation is robust
enough to bear the incision of legal improvements. But taking history at large, the rarity of cabinets is mostly due to the greater rarity
of continuous legislatures.
Other conditions, however, limit even at the present day the area
of a cabinet government. It must be possible to have not only a
legislature, but to have a competent legislature—a legislature willing
to elect and willing to maintain an efficient executive. And this is no
easy matter. It is indeed true that we need not trouble ourselves to
look for that elaborate and complicated organisation which partially
exists in the House of Commons, and which is more fully and freely
expanded in plans for improving the House of Commons. We are
not now concerned with perfection or excellence; we seek only for
simple fitness and bare competency.
The conditions of fitness are two. First, you must get a good
legislature; and next, you must keep it good. And these are by no
means so nearly connected as might be thought at first sight. To keep
a legislature efficient, it must have a sufficient supply of substantial
business. If you employ the best sort of men to do nearly nothing,
they will quarrel with each other about that nothing. Where great
questions end, little parties begin. And a very happy community,
with few new laws to make, few old bad laws to repeal, and but
simple foreign relations to adjust, has great difficulty in employing a
legislature. There is nothing for it to enact, and nothing for it to
settle. Accordingly, there is great danger that the legislature, being
debarred from all other kind of business, may take to quarrelling
about its elective business; that controversies as to ministries may
occupy all its time, and yet that time be perniciously employed; that
a constant succession of feeble administrations, unable to govern and
unlit to govern, may be substituted for the proper result of cabinet
government,—a sufficient body of men long enough in power to
evince their sufficiency. The exact amount of non-elective business
necessary for a parliament which is to elect the executive cannot, of
The Pre-requisites
of Cabinet Government 31
urse, be formally stated. There are no numbers and no statistics in
theory of constitutions. All we can say is, that a parliament with
e business, which is to be as efficient as a parliament with much
siness, must be in all other respects much better. An indifferent
liament may be much improved by the steadying effect of grave
airs; but a parliament which has no such affairs must be intrinsicy excellent, or it will fail utterly.
But the difficulty of keeping a legislature good, is evidently
"ondary to the difficulty of first getting it. There are two kinds of
tions which can elect a good parliament. The first is a nation in
hich the mass of the people are intelligent, and in which they are
mfortable. Where there is no honest poverty, where education is
<hffused, and political intelligence is common, it is easy for the mass
of the people to elect a fair legislature. The ideal is roughly realised
in the North American colonies of England, and in the whole free
States of the Union. In these countries there is no such thing as
honest poverty; physical comfort, such as the poor cannot imagine
here, is there easily attainable by healthy industry. Education is diffused much, and is fast spreading. Ignorant emigrants from the Old
World often prize the intellectual advantages of which they are
themselves destitute, and are annoyed at their inferiority in a place
where rudimentary culture is so common. The greatest difficulty of
such new communities is commonly geographical. The population is
mostly scattered; and where population is sparse, discussion is difficult. But in a country very large, as we reckon in Europe, a people
really intelligent, really educated, really comfortable, would soon
form a good opinion. No one can doubt that the New England States,
if they were a separate community, would have an education, a political capacity, and an intelligence such as the numerical majority of no
people, equally numerous, has ever possessed. In a state of this sort,
where all the community is fit to choose a sufficient legislature, it
is possible, it is almost easy, to create that legislature. If the New
England States possessed a cabinet government as a separate nation,
they would be as renowned in the world for political sagacity as they
now are for diffused happiness.
The structure of these communities is indeed based on the principle of equality, and it is impossible that any such community can
wholly satisfy the severe requirements of a political theorist. In every
old community its primitive and guiding assumption is at war with
32
The English Constitution
truth. By its theory all people are entitled to the same political power,
and they can only be so entitled on the ground that in politics they
are equally wise. But at the outset of an agricultural colony this
postulate is as near the truth as politics want. There are in such
communities no large properties, no great capitals, no refined
classes,—every one is comfortable and homely, and no one is at all
more. Equality is not artificially established in a new colony; it establishes itself. There is a story that among the first settlers in Western
Australia, some, who were rich, took out labourers at their own
expense, and also carriages to ride in. But soon they had to try if they
could live in the carriages. Before the masters' houses were built, the
labourers had gone off,—they were building houses and cultivating
land for themselves, and the masters were left to their carriages.
Whether this exact thing happened I do not know, but this sort of
thing has happened a thousand times. There have been a whole series
of attempts to transplant to the colonies a graduated English society.
But they have always failed at the first step. The rude classes at the
bottom felt that they were equal to or better than the delicate classes
at the top; they shifted for themselves, and left the 'gentlefolks' to
shift for themselves; the base of the elaborate pyramid spread
abroad, and the apex tumbled in and perished. In the early ages of an
agricultural colony, whether you have political democracy or not,
social democracy you must have, for nature makes it, and not you.
But in time wealth grows and inequality begins. A and his children
are industrious, and prosper; B and his children are idle, and fail. If
manufactures on a considerable scale are established—and most
young communities strive even by protection to establish them—the
tendency to inequality is intensified. The capitalist becomes a unit
with much, and his labourers a crowd with little. After generations
of education, too, there arise varieties of culture—there will be an
upper thousand, or ten thousand, of highly cultivated people in the
midst of a great nation of moderately educated people. In theory it is
desirable that this highest class of wealth and leisure should have an
influence far out of proportion to its mere number: a perfect constitution would find for it a delicate expedient to make its fine thought
tell upon the surrounding cruder thought. But as the world goes,
when the whole of the population is as instructed and as intelligent
as in the case I am supposing, we need not care much about this.
Great communities have scarcely ever—never save for transient
The Pre-requisites
of Cabinet Government
33
moments—been ruled by their highest thought. And if we can get
them ruled by a decent capable thought, we may be well enough
contented with our work. We have done more than could be
expected, though not all which could be desired. At any rate, an
isocratic polity—a polity where every one votes, and where every one
votes alike—is, in a community of sound education and diffused
intelligence, a conceivable case of cabinet government. It satisfies the
essential condition; there is a people able to elect a parliament able to
choose.
But suppose the mass of the people are not able to elect,—and this
is the case with the numerical majority of all but the rarest nations,—
how is a cabinet government to be then possible? It is only possible in
what I may venture to call deferential nations. It has been thought
strange, but there are nations in which the numerous unwiser part
wishes to be ruled by the less numerous wiser part. The numerical
majority—whether by custom or by choice, is immaterial—is ready,
is eager to delegate its power of choosing its ruler to a certain select
minority. It abdicates in favour of its elite, and consents to obey
whoever that elite may confide in. It acknowledges as its secondary
electors—as the choosers of its government—an educated minority,
at once competent and unresisted; it has a kind of loyalty to some
superior persons who are fit to choose a good government, and
whom no other class opposes. A nation in such a happy state as this
has obvious advantages for constructing a cabinet government. It has
the best people to elect a legislature, and therefore it may fairly be
expected to choose a good legislature—a legislature competent to
select a good administration.
England is the type of deferential countries, and the manner in
which it is so, and has become so, is extremely curious. The middle
classes—the ordinary majority of educated men—are in the present
day the despotic power in England. 'Public opinion' now-a-days, 'is
the opinion of the bald-headed man at the back of the omnibus.' It is
not the opinion of the aristocratical classes as such; or of the most
educated or refined classes as such; it is simply the opinion of the
ordinary mass of educated, but still commonplace mankind. If
you look at the mass of the constituencies, you will see that they
are not very interesting people; and perhaps if you look behind the
scenes and see the people who manipulate and work the constituencies, you will find that these are yet more uninteresting. The English
34
The English Constitution
constitution in its palpable form is this—the mass of the people yield
obedience to a select few; and when you see this select few, you
perceive that though not of the lowest class, nor of an unrespectable
class, they are yet of a heavy sensible class—the last people in the
world to whom, if they were drawn up in a row, an immense nation
would ever give an exclusive preference.
In fact, the mass of the English people yield a deference rather to
something else than to their rulers. They defer to what we may call
the theatrical show of society. A certain state passes before them; a
certain pomp of great men; a certain spectacle of beautiful women; a
wonderful scene of wealth and enjoyment is displayed, and they are
coerced by it. Their imagination is bowed down; they feel they are
not equal to the life which is revealed to them. Courts and aristocracies have the great quality which rules the multitude, though philosophers can see nothing in it—visibility. Courtiers can do what
others cannot. A common man may as well try to rival the actors on
the stage in their acting, as the aristocracy in their acting. The higher
world, as it looks from without, is a stage on which the actors walk
their parts much better than the spectators can. This play is played
in every district. Every rustic feels that his house is not like my lord's
house; his life like my lord's life; his wife like my lady. The climax of
the play is the Queen: nobody supposes that their house is like the
court; their life like her life; her orders like their orders. There is in
England a certain charmed spectacle which imposes on the many,
and guides their fancies as it will. As a rustic on coming to London,
finds himself in presence of a great show and vast exhibition of
inconceivable mechanical things, so by the structure of our society
he finds himself face to face with a great exhibition of political things
which he could not have imagined, which he could not make—to
which he feels in himself scarcely anything analogous.
Philosophers may deride this superstition, but its results are
inestimable. By the spectacle of this august society, countless ignorant men and women are induced to obey the few nominal electors—
the £10 borough renters, and the £50 county renters*—who have
nothing imposing about them, nothing which would attract the eye
or fascinate the fancy. What impresses men is not mind, but the
result of mind. And the greatest of these results is this wonderful
spectacle of society, which is ever new, and yet ever the same; in
which accidents pass and essence remains; in which one generation
The Pre-requisites
of Cabinet Government 35
dies and another succeeds, as if they were birds in a cage, or animals
in a menagerie; of which it seems almost more than a metaphor to
treat the parts as limbs of a perpetual living thing, so silently do they
seem to change, so wonderfully and so perfectly does the conspicuous life of the new year take the place of the conspicuous life of last
year. The apparent rulers of the English nation are like the most
imposing personages of a splendid procession: it is by them the mob
are influenced; it is they whom the spectators cheer. The real rulers
are secreted in second-rate carriages; no one cares for them or asks
about them, but they are obeyed implicitly and unconsciously by
reason of the splendour of those who eclipsed and preceded them.
It is quite true that this imaginative sentiment is supported by a
sensation of political satisfaction. It cannot be said that the mass of
the English people are well off There are whole classes who have not
a conception of what the higher orders call comfort; who have not
the pre-requisites of moral existence; who cannot lead the life that
becomes a man. But the most miserable of these classes do not
impute their misery to politics. If a political agitator were to lecture
to the peasants of Dorsetshire, and try to excite political dissatisfaction, it is much more likely that he would be pelted than that he
would succeed. Of parliament these miserable creatures know
scarcely anything; of the cabinet they never heard. But they would
say that, 'for all they have heard, the Queen is very good;' and
rebelling against the structure of society is to their minds rebelling
against the Queen, who rules that society, in whom all its most
impressive part—the part that they know—culminates. The mass of
the English people are politically contented as well as politically
deferential.
A deferential community, even though its lowest classes are not
intelligent, is far more suited to a cabinet government than any kind
of democratic country, because it is more suited to political excellence. The highest classes can rule in it; and the highest classes must,
as such, have more political ability than the lower classes. A life of
labour, an incomplete education, a monotonous occupation, a career
in which the hands are used much and the judgment is used little,
cannot create as much flexible thought, as much applicable intelligences as a life of leisure, a long culture, a varied experience, an
existence by which the judgment is incessantly exercised, and by
which it may be incessantly improved. A country of respectful poor,
36
The English Constitution
though far less happy than where there are no poor to be respectful,
is nevertheless far more fitted for the best government. You can use
the best classes of the respectful country; you can only use, the worst
where every man thinks he is as good as every other.
It is evident that no difficulty can be greater than that of founding
a deferential nation. Respect is traditional; it is given not to what is
proved to be good, but to what is known to be old. Certain classes in
certain nations retain by common acceptance a marked political
preference, because they have always possessed it, and because they
inherit a sort of pomp which seems to make them worthy of it. But
in a new colony, in a community where merit may be equal, and
where there cannot be traditional marks of merit and fitness, it is
obvious that a political deference can be yielded to higher culture,
only upon proof, first of its existence, and next of its political value.
But it is nearly impossible to give such a proof so as to satisfy persons
of less culture. In a future and better age of the world it may be
effected; but in this age the requisite premises scarcely exist; if the
discussion be effectually open, if the debate be fairly begun, it is
hardly possible to obtain a rational, an argumentative acquiescence in
the rule of the cultivated few. As yet the few rule by their hold, not
over the reason of the multitude, but over their imaginations, and
their habits; over their fancies as to distant things they do not know
at all, over their customs as to near things which they know very
well.
A deferential community in which the bulk of the people are
ignorant, is therefore in a state of what is called in mechanics
unstable equilibrium. If the equilibrium is once disturbed there is no
tendency to return to it, but rather to depart from it. A cone balanced on its point is in unstable equilibrium, for if you push it ever
so little it will depart farther and farther from its position and fall to
the earth. So in communities where the masses are ignorant but
respectful; if you once permit the ignorant class to begin to rule you
may bid farewell to deference for ever. Their demagogues will inculcate, their newspapers will recount, that the rule of the existing
dynasty (the people) is better than the rule of the fallen dynasty (the
aristocracy). A people very rarely hears two sides of a subject in
which it is much interested; the popular organs take up the side
which is acceptable, and none but the popular organs in fact reach
the people. A people never hears censure of itself. No one will tell it
The Pre-requisites of Cabinet Government 37
that the educated minority whom it dethroned governed better or
more wisely than it governs. A democracy will never, save after
an awful catastrophe, return what has once been conceded to it, for
to do so would be to admit an inferiority in itself, of which, except by
some almost unbearable misfortune, it could never be convinced.
3°
The English Constitution
laws, always repealing laws, would have been both an anomaly and a
nuisance. But in the present state of the civilised part of the world
such difficulties are obsolete. There is a diffused desire in civilised
communities for an adjusting legislation; for a legislation which
should adapt the inherited laws to the new wants of a world which
now changes every day. It has ceased to be necessary to maintain bad
laws, because it is necessary to have some laws. Civilisation is robust
enough to bear the incision of legal improvements. But taking history at large, the rarity of cabinets is mostly due to the greater rarity
of continuous legislatures.
Other conditions, however, limit even at the present day the area
of a cabinet government. It must be possible to have not only a
legislature, but to have a competent legislature—a legislature willing
to elect and willing to maintain an efficient executive. And this is no
easy matter. It is indeed true that we need not trouble ourselves to
look for that elaborate and complicated organisation which partially
exists in the House of Commons, and which is more fully and freely
expanded in plans for improving the House of Commons. We are
not now concerned with perfection or excellence; we seek only for
simple fitness and bare competency.
The conditions of fitness are two. First, you must get a good
legislature; and next, you must keep it good. And these are by no
means so nearly connected as might be thought at first sight. To keep
a legislature efficient, it must have a sufficient supply of substantial
business. If you employ the best sort of men to do nearly nothing,
they will quarrel with each other about that nothing. Where great
questions end, little parties begin. And a very happy community,
with few new laws to make, few old bad laws to repeal, and but
simple foreign relations to adjust, has great difficulty in employing a
legislature. There is nothing for it to enact, and nothing for it to
settle. Accordingly, there is great danger that the legislature, being
debarred from all other kind of business, may take to quarrelling
about its elective business; that controversies as to ministries may
occupy all its time, and yet that time be perniciously employed; that
a constant succession of feeble administrations, unable to govern and
unfit to govern, may be substituted for the proper result of cabinet
government,—a sufficient body of men long enough in power to
evince their sufficiency. The exact amount of non-elective business
necessary for a parliament which is to elect the executive cannot, of
The Pre-requisites
of Cabinet Government 31
course, be formally stated. There are no numbers and no statistics in
the theory of constitutions. All we can say is, that a parliament with
little business, which is to be as efficient as a parliament with much
business, must be in all other respects much better. An indifferent
parliament may be much improved by the steadying effect of grave
affairs; but a parliament which has no such affairs must be intrinsically excellent, or it will fail utterly.
But the difficulty of keeping a legislature good, is evidently
secondary to the difficulty of first getting it. There are two kinds of
nations which can elect a good parliament. The first is a nation in
which the mass of the people are intelligent, and in which they are
comfortable. Where there is no honest poverty, where education is
diffused, and political intelligence is common, it is easy for the mass
of the people to elect a fair legislature. The ideal is roughly realised
in the North American colonies of England, and in the whole free
States of the Union. In these countries there is no such thing as
honest poverty; physical comfort, such as the poor cannot imagine
here, is there easily attainable by healthy industry. Education is diffused much, and is fast spreading. Ignorant emigrants from the Old
World often prize the intellectual advantages of which they are
themselves destitute, and are annoyed at their inferiority in a place
where rudimentary culture is so common. The greatest difficulty of
such new communities is commonly geographical. The population is
mostly scattered; and where population is sparse, discussion is difficult. But in a country very large, as we reckon in Europe, a people
really intelligent, really educated, really comfortable, would soon
form a good opinion. No one can doubt that the New England States,
if they were a separate community, would have an education, a political capacity, and an intelligence such as the numerical majority of no
people, equally numerous, has ever possessed. In a state of this sort,
where all the community is fit to choose a sufficient legislature, it
is possible, it is almost easy, to create that legislature. If the New
England States possessed a cabinet government as a separate nation,
they would be as renowned in the world for political sagacity as they
now are for diffused happiness.
The structure of these communities is indeed based on the principle of equality, and it is impossible that any such community can
wholly satisfy the severe requirements of a political theorist. In every
old community its primitive and guiding assumption is at war with
The Monarchy
3
THE MONARCHY
THE use of the Queen, in a dignified capacity, is incalculable. Without her in England, the present English Government would fail and
pass away. Most people when they read that the Queen walked on the
slopes at Windsor—that the Prince of Wales went to the Derbyhave imagined that too much thought and prominence were given to
little things. But they have been in error; and is it nice to trace how
the actions of a retired widow and an unemployed youth become of
such importance?
The best reason why Monarchy is a strong government is, that it
is an intelligible government. The mass of mankind understand it,
and they hardly anywhere in the world understand any other. It is
often said that men are ruled by their imaginations; but it would be
truer to say they are governed by the weakness of their imaginations.
The nature of a constitution, the action of an assembly, the play of
parties, the unseen formation of a guiding opinion, are complex
facts, difficult to know, and easy to mistake. But the action of a single
will, the fiat of a single mind, are easy ideas; anybody can make them
out, and no one can ever forget them. When you put before the mass
of mankind the question, 'Will you be governed by a king, or will you
be governed by a constitution?' the inquiry comes out thus—'Will
you be governed in a way you understand, or will you be governed in
a way you do not understand?' The issue was put to the French
people; they were asked, 'Will you be governed by Louis Napoleon,
or will you be governed by an assembly?' The French people said,
'We will be governed by the one man we can imagine, and not by the
many people we cannot imagine.'
The best mode of comprehending the nature of the two governments, is to look at a country in which the two have within a
comparatively short space of years succeeded each other.
'The political condition,' says Mr Grote,* 'which Grecian legend
everywhere presents to us, is in its principal features strikingly different from that which had become universally prevalent among the
Greeks in the time of the Peloponnesian war. Historical oligarchy, as
well as democracy, agreed in requiring a certain established system
39
of government, comprising the three elements of specialised functions, temporary functionaries, and ultimate responsibility (under
some forms or other) to the mass of qualified citizens—either a
Senate or an Ecclesia, or both. There were, of course, many and
capital distinctions between one government and another, in respect
to the qualification of the citizen, the attributes and efficiency of the
general assembly, the admissibility to power, &c; and men might
often be dissatisfied with the way in which these questions were
determined in their own city. But in the mind of every man, some
determining rule or system—something like what in modern times
is called a constitution—was indispensable to any government
entitled to be called legitimate, or capable of creating in the mind of a
Greek a feeling of moral obligation to obey it. The functionaries who
exercised authority under it might be more or less competent or
popular; but his personal feelings towards them were commonly lost
in his attachment or aversion to the general system. If any energetic
man could by audacity or craft break down the constitution, and
render himself permanent ruler according to his own will and pleasure, even though he might govern well, he could never inspire the
people with any sentiment of duty towards him: his sceptre was
illegitimate from the beginning, and even the taking of his life, far
from being interdicted by that moral feeling which condemned
the shedding of blood in other cases, was considered meritorious: he
could not even be mentioned in the language except by a name
(tupavvoc;, despot) which branded him as an object of mingled fear
and dislike.
'If we carry our eyes back from historical to legendary Greece, we
find a picture the reverse of what has been here sketched. We discern
a government in which there is little or no scheme or system,—still
less any idea of responsibility to the governed,—but in which the
main-spring of obedience on the part of the people consists in their
personal feeling and reverence towards the chief. We remark, first
and foremost, the King; next, a limited number of subordinate kings
or chiefs; afterwards, the mass of armed freemen, husbandmen,
artisans, freebooters, &c; lowest of all, the free labourers for hire and
the bought slaves. The King is not distinguished by any broad, or
impassable boundary from the other chiefs, to each of whom the title
Basileus is applicable as well as to himself: his supremacy has been
inherited from his ancestors, and passes by inheritance, as a general
40
The English Constitution
The Monarchy
41
rule, to his eldest son, having been conferred upon the family as a
privilege by the favour of Zeus. In war, he is the leader, foremost in
personal prowess, and directing all military movements; in peqce, he
is the general protector of the injured and oppressed; he offers up
moreover those public prayers and sacrifices which are intended to
obtain for the whole people the favour of the gods. An ample domain
is assigned to him as an appurtenance of his lofty position, and the
produce of his fields and his cattle is consecrated in part to an abundant, though rude hospitality. Moreover he receives frequent presents, to avert his enmity, to conciliate his favour, or to buy off his
exactions; and when plunder is taken from the enemy, a large previous share, comprising probably the most alluring female captive, is
reserved for him apart from the general distribution.
'Such is the position of the King in the heroic times of Greece,—
the only person (if we except the heralds and priests, each both
special and subordinate) who is then presented to us as clothed with
any individual authority,—the person by whom all the executive
functions, then few in number, which the society requires, are either
performed or directed. His personal ascendancy—derived from
divine countenance bestowed both upon himself individually and
upon his race, and probably from accredited divine descent—is the
salient feature in the picture: the people hearken to his voice,
embrace his propositions, and obey his orders: not merely resistance,
but even criticism upon his acts, is generally exhibited in an odious
point of view, and is indeed never heard of except from some one or
more of the subordinate princes.'
The characteristic of the English Monarchy is that it retains the
feelings by which the heroic kings governed their rude age, and has
added the feelings by which the constitutions of later Greece ruled in
more refined ages. We are a more mixed people than the Athenians,
or probably than any political Greeks. We have progressed more
unequally. The slaves in ancient times were a separate order; not
ruled by the same laws, or thoughts, as other men. It was not necessary to think of them in making a constitution: it was not necessary
to improve them in order to make a constitution possible. The Greek
legislator had not to combine in his polity men like the labourers of
Somersetshire, and men like Mr Grote. He had not to deal with a
community in which primitive barbarism lay as a recognised basis to
acquired civilisation. We have. We have no slaves to keep down by
special terrors and independent legislation. But we have whole
classes unable to comprehend the idea of a constitution—unable to
feel the least attachment to impersonal laws. Most do indeed vaguely
know that there are some other institutions besides the Queen, and
some rules by which she governs. But a vast number like their minds
to dwell more upon her than on anything else, and therefore she is
inestimable. A Republic has only difficult ideas in government; a
Constitutional Monarchy has an easy idea too; it has a comprehensible element for the vacant many, as well as complex laws and
notions for the inquiring few.
A family on the throne is an interesting idea also. It brings down
the pride of sovereignty to the level of petty life. No feeling could
seem more childish than the enthusiasm of the English at the marriage of the Prince of Wales.* They treated as a great political event,
what, looked at as a matter of pure business, was very small indeed.
But no feeling could be more like common human nature, as it is,
and as it is likely to be. The women—one half the human race at
least—care fifty times more for a marriage than a ministry. All but a
few cynics like to see a pretty novel touching for a moment the dry
scenes of the grave, world. A princely marriage is the brilliant edition
of a universal fact, and as such, it rivets mankind. We smile at the
Court Circular* but remember how many people read the Court
Circular] Its use is not in what it says, but in those to whom it speaks.
They say that the Americans were more pleased at the Queen's letter
to Mrs Lincoln* than at any act of the English Government. It was a
spontaneous act of intelligible feeling in the midst of confused and
tiresome business. Just so a royal family sweetens politics by the
seasonable addition of nice and pretty events. It introduces irrelevant
facts into the business of government, but they are facts which speak
to 'men's bosoms,' and employ their thoughts.
To state the matter shortly, Royalty is a government in which the
attention of the nation is concentrated on one person doing interesting actions. A Republic is a government in which that attention is
divided between many, who are all doing uninteresting actions.
Accordingly, so long as the human heart is strong and the human
reason weak, Royalty will be strong because it appeals to diffused
feeling, and Republics weak because they appeal to understanding.
Secondly. The English Monarchy strengthens our government
with the strength of religion. It is not easy to say why it should be so.
42
The English Constitution
The Monarchy
Every instructed theologian would say that it was the duty of a
person born under a Republic as much to obey that Republic as it is
the duty of one born under a Monarchy to obey the monarch. But
the mass of the English people do not think so; they agree with the
oath of allegiance; they say it is their duty to obey the 'Queen;' and
they have but hazy notions as to obeying laws without a queen. In
former times, when our constitution was incomplete, this notion of
local holiness in one part was mischievous. All parts were struggling,
and it was necessary each should have its full growth. But superstition said one should grow where it would, and no other part should
grow without its leave. The whole cavalier party said it was their
duty to obey the king, whatever the king did. There was to be 'passive obedience' to him, and there was no religious obedience due to
any one else. He was the 'Lord's anointed,' and no one else had been
anointed at all. The parliament, the laws, the press were human
institutions; but the Monarchy was a Divine institution. An undue
advantage was given to a part of the constitution, and therefore the
progress of the whole was stayed.
After the Revolution* this mischievous sentiment was much
weaker. The change of the line of sovereigns was at first conclusive.
If there was a mystic right in any one, that right was plainly in James
II; if it was an English duty to obey any one whatever he did, he was
the person to be so obeyed; if there was an inherent inherited claim
in any king, it was in the Stuart king to whom the crown had come by
descent, and not in the Revolution king to whom it had come by vote
of Parliament. All through the reign of William III there was (in
common speech) one king whom man had made, and another king
whom God had made. The king who ruled had no consecrated
loyalty to build upon; although he ruled in fact, according to sacred
theory there was a king in France who ought to rule. But it was very
hard for the English people, with their plain sense and slow imagination, to keep up a strong sentiment of veneration for a foreign
adventurer. He lived under the protection of a French king; what he
did was commonly stupid, and what he left undone was very often
wise. As soon as Queen Anne began to reign there was a change of
feeling; the old sacred sentiment began to cohere about her. There
were indeed difficulties which would have baffled most people; but
an Englishman whose heart is in the matter is not easily baffled.
Queen Anne had a brother living and a father living, and by every
rule of descent, their right was better than hers. But many people
evaded both claims. They said James II had 'run away,' and so abdicated, though he only ran away because he was in duresse and was
frightened, and though he claimed the allegiance of his subjects day
by day. The Pretender,* it was said, was not legitimate, though the
birth was proved by evidence which any Court of Justice would have
accepted. The English people were 'out of a sacred monarch, and so
they tried very hard to make a new one. Events, however, were too
strong for them. They were ready and eager to take Queen Anne as
the stock of a new dynasty; they were ready to ignore the claims of
her father and the claims of her brother, but they could not ignore
the fact that at the critical period she had no children. She had once
had thirteen, but they all died in her lifetime, and it was necessary
either to revert to the Stuarts or to make a new king by Act of
Parliament.
According to the Act of Settlement passed by the Whigs, the
crown was settled on the descendants of the 'Princess Sophia' of
Hanover, a younger daughter of a daughter of James I. There were
before her James II, his son, the descendants of a daughter of
Charles I, and elder children of her own mother. But the Whigs
passed these over because they were Catholics, and selected the Princess Sophia, who, if she was anything, was a Protestant. Certainly
this selection was statesman-like, but it could not be very popular. It
was quite impossible to say that it was the duty of the English people
to obey the House of Hanover upon any principles which do not
concede the right of the people to choose their rulers, and which do
not degrade monarchy from its solitary pinnacle of majestic reverence, and make it one only among many expedient institutions. If a
king is a useful public functionary who may be changed, and in
whose place you may make another, you cannot regard him with
mystic awe and wonder; and if you are bound to worship him, of
course you cannot change him. Accordingly, during the whole reigns
of George I and George II the sentiment of religious loyalty
altogether ceased to support the Crown. The prerogative of the king
had no strong party to support it; the Tories, who naturally would
support it, disliked the actual king; and the Whigs, according to their
creed, disliked the king's office. Until the accession of George III the
most vigorous opponents of the crown were the country gentlemen,
its natural friends, and the representatives of quiet rural districts,
43
44
The English Constitution
where loyalty is mostly to be found, if anywhere. But after the accession of George III the common feeling came back to the same point
as in Queen Anne's time. The English were ready to fake the new
young prince as the beginning of a sacred line of sovereigns, just as
they had been willing to take an old lady who was the second cousin
of his great-great-grandmother. So it is now. If you ask the immense
majority of the Queen's subjects by what right she rules, they would
never tell you that she rules by Parliamentary right, by virtue of
6 Anne, c. 7.* They will say she rules by 'God's grace;' they believe
that they have a mystic obligation to obey her. When her family came
to the Crown it was a sort of treason to maintain the inalienable right
of lineal sovereignty, for it was equivalent to saying that the claim of
another family was better than hers; but now, in the strange course of
human events, that very sentiment has become her surest and best
support.
But it would be a great mistake to believe that at the accession of
George III the instinctive sentiment of hereditary loyalty at once
became as useful as now. It began to be powerful, but it hardly began
to be useful. There was so much harm done by it as well as so much
good, that it is quite capable of being argued whether on the whole it
was beneficial or hurtful. Throughout the greater part of his life
George III was a kind of'consecrated obstruction.' Whatever he did
had a sanctity different from what any one else did, and it perversely
happened that he was commonly wrong. He had as good intentions
as any one need have, and he attended to the business of his country,
as a clerk with his bread to get attends to the business of his office.
But his mind was small, his education limited, and he lived in a
changing time. Accordingly he was always resisting what ought to
be, and prolonging what ought not to be. He was the sinister but
sacred assailant of half his ministries; and when the French revolution excited the horror of the world, and proved democracy to be
'impious,' the piety of England concentrated upon him, and gave
him tenfold strength. The monarchy by its religious sanction now
confirms all our political order; in George Ill's time it confirmed
little except itself. It gives now a vast strength to the entire constitution, by enlisting on its behalf the credulous obedience of enormous
masses; then it lived aloof, absorbed all the holiness into itself, and
turned over all the rest of the polity to the coarse justification of bare
expediency.
The Monarchy
45
A principal reason why the monarchy so well consecrates our
whole state is to be sought in the peculiarity many Americans
and many utilitarians* smile at. They laugh at this 'extra,' as the
Yankee called it, at the solitary transcendent element. They quote
Napoleon's saying,* 'that he did not wish to be fatted in idleness,'
when he refused to be grand elector in Sieyes' constitution, which
was an office copied, and M. Thiers says, well copied, from constitutional monarchy. But such objections are totally wrong. No doubt
it was absurd enough in the Abbe Sieyes to propose that a new
institution, inheriting no reverence, and made holy by no religion,
should be created to fill the sort of post occupied by a constitutional
king in nations of monarchical history. Such an institution, far from
being so august as to spread reverence around it, is too novel
and artificial to get reverence for itself; if, too, the absurdity could
anyhow be augmented, it was so by offering an office of inactive
uselessness and pretended sanctity to Napoleon, the most active man
in France, with the greatest genius for business, only not sacred,
and exclusively fit for action. But the blunder of Sieyes brings the
excellence of real monarchy to the best light. When a monarch can
bless, it is best that he should not be touched. It should be evident
that he does no wrong. He should not be brought too closely to real
measurement. He should be aloof and solitary. As the functions of
English royalty are for the most part latent, it fulfils this condition. It
seems to order, but it never seems to struggle. It is commonly hidden
like a mystery, and sometimes paraded like a pageant, but in neither
case is it contentious. The nation is divided into parties, but the
Crown is of no party. Its apparent separation from business is that
which removes it both from enmities and from desecration, which
preserves its mystery, which enables it to combine the affection of
conflicting parties,—to be a visible symbol of unity to those still so
imperfectly educated as to need a symbol.
Thirdly. The Queen is the head of our society. If she did not exist
the Prime Minister would be the first person in the country. He and
his wife would have to receive foreign ministers, and occasionally
foreign princes, to give the first parties in the country; he and she
would be at the head of the pageant of life; they would represent
England in the eyes of foreign nations; they would represent the
Government of England in the eyes of the English.
It is very easy to imagine a world in which this change would not
46
The English Constitution
be a great evil. In a country where people did not care for the outward show of life, where the genius of the people was untheatrical,
and they exclusively regarded the substance of things, this matter
would be trifling. Whether Lord and Lady Derby* received the
foreign ministers, or Lord and Lady Palmerston, would be a matter
of indifference; whether they gave the nicest parties would be important only to the persons at those parties. A nation of unimpressible
philosophers would not care at all how the externals of life were
managed. Who is the showman is not material unless you care about
the show.
But of all nations in the world the English are perhaps the least a
nation of pure philosophers. It would be a very serious matter to us
to change every four or five years the visible head of our world. We
are not now remarkable for the highest sort of ambition; but we are
remarkable for having a great deal of the lower sort of ambition and
envy. The House of Commons is thronged with people who get there
merely for 'social purposes,' as the phrase goes; that is, that they and
their families may go to parties else impossible. Members of Parliament are envied by thousands merely for this frivolous glory, as a
thinker calls it. If the highest post in conspicuous life were thrown
open to public competition, this low sort of ambition and envy would
be fearfully increased. Politics would offer a prize too dazzling for
mankind; clever base people would strive for it, and stupid base
people would envy it. Even now a dangerous distinction is given by
what is exclusively called public life. The newspapers describe daily
and incessantly a certain conspicuous existence; they comment on its
characters, recount its details, investigate its motives, anticipate its
course. They give a precedence and a dignity to that world which
they do not give to any other. The literary world, the scientific world,
the philosophic world, not only are not comparable in dignity to the
political world, but in comparison are hardly worlds at all. The
newspaper makes no mention of them, and could not mention them.
As are the papers, so are the readers; they, by irresistible sequence
and association, believe that those people who constantly figure in
the papers are cleverer, abler, or at any rate, somehow higher, than
other people. 'I wrote books,' we have heard of a man saying, 'for
twenty years, and I was nobody; I got into Parliament, and before I
had taken my seat I had become somebody.' English politicians are
the men who fill the thoughts of the English public; they are the
The Monarchy
47
actors on the scene, and it is hard for the admiring spectators not to
believe that the admired actor is greater than themselves. In this
present age and country it would be very dangerous to give the
slightest addition to a force already perilously great. If the highest
social rank was to be scrambled for in the House of Commons, the
number of social adventurers there would be incalculably more
numerous, and indefinitely more eager.
A very peculiar combination of causes has made this characteristic
one of the most prominent in English society. The middle ages left
all Europe with a social system headed by Courts. The government
was made the head of all society, all intercourse, and all life; everything paid allegiance to the sovereign, and everything ranged itself
round the sovereign —what was next to be greatest, and what was
farthest least. The idea that the head of the government is the
head of society is so fixed in the ideas of mankind that only a few
philosophers regard it as historical and accidental, though when the
matter is examined, that conclusion is certain and even obvious.
In the first place, society as society does not naturally need a head
at all. Its constitution, if left to itself, is not monarchical, but aristocratical. Society, in the sense we are now talking of, is the union of
people for amusement and conversation. The making of marriages
goes on in it, as it were, incidentally, but its common and main
concern is talking and pleasure. There is nothing in this which needs
a single supreme head; it is a pursuit in which a single person does
not of necessity dominate. By nature it creates an 'upper ten thousand;'* a certain number of persons and families possessed of equal
culture, and equal faculties, and equal spirit, get to be on a level—
and that level a high level. By boldness, by cultivation, by 'social
science' they raise themselves above others; they become the 'first
families,' and all the rest come to be below them. But they tend to be
much about a level among one another; no one is recognised by all or
by many others as superior to them all. This is society as it grew up
in Greece or Italy, as it grows up now in any American or colonial
town. So far from the notion of a 'head of society' being a necessary
notion, in many ages it would scarcely have been an intelligible
notion. You could not have made Socrates* understand it. He would
have said, 'If you tell me that one of my fellows is chief magistrate,
and that I am bound to obey him, I understand you, and you speak
well; or that another is a priest, and that he ought to offer sacrifices to
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The English Constitution
the gods which I or any one not a priest ought not to offer, again I
understand and agree with you. But if you tell me that there is in
some citizen a hidden charm by which his words become bettjer than
my words, and his house better than my house, I do not follow you,
and should be pleased if you will explain yourself
And even if a head of society were a natural idea, it certainly
would not follow that the head of the civil government should be
that head. Society as such has no more to do with civil polity than
with ecclesiastical. The organisation of men and women for the purpose of amusement is not necessarily identical with their organisation for political purposes, any more than with their organisation for
religious purposes; it has of itself no more to do with the State than
it has with the Church. The faculties which fit a man to be a great
ruler are not those of society; some great rulers have been unintelligible like Cromwell, or brusque like Napoleon, or coarse and barbarous like Sir Robert Walpole. The light nothings of the drawing-room
and the grave things of office are as different from one another as two
human occupations can be. There is no naturalness in uniting the
two; the end of it always is, that you put a man at the head of society
who very likely is remarkable for social defects, and is not eminent
for social merits.
The best possible commentary on these remarks is the 'History of
English Royalty.' It has not been sufficiently remarked that a change
has taken place in the structure of our society exactly analogous to
the change in our polity. A Republic has insinuated itself beneath the
folds of a Monarchy. Charles II was really the head of society;
Whitehall, in his time, was the centre of the best talk, the best
fashion, and the most curious love affairs of the age. He did not
contribute good morality to society, but he set an example of infinite
agreeableness. He concentrated around him all the light part of the
high world of London, and London concentrated around it all the
light part of the high world of England. The Court was the focus
where everything fascinating gathered, and where everything exciting centred. Whitehall was an unequalled club, with female society
of a very clever and sharp sort superadded. All this, as we know, is
now altered. Buckingham Palace is as unlike a club as any place is
likely to be. The Court is a separate part, which stands aloof from
the rest of the London world, and which has but slender relations
with the more amusing part of it. The two first Georges were men
The Monarchy
49
ignorant of English, and wholly unfit to guide and lead English
society. They both preferred one or two German ladies of bad character to all else in London. George III had no social vices, but he had
no social pleasures. He was a family man, and a man of business, and
sincerely preferred a leg of mutton and turnips after a good day's
work, to the best fashion and the most exciting talk. In consequence,
society in London, though still, in form, under the domination of a
Court, assumed in fact its natural and oligarchical structure. It too
has become an 'upper ten thousand;' it is no more monarchical in
fact than the society of New York. Great ladies give the tone to it
with little reference to the particular Court world. The peculiarly
masculine world of the clubs and their neighbourhood has no more
to do in daily life with Buckingham Palace than with the Tuileries.
Formal ceremonies of presentation and attendance are retained. The
names of levee and drawing-room still sustain the memory of the
time when the king's bed-chamber and the queen's 'withdrawing
room' were the centres of London life, but they no longer make a
part of social enjoyment; they are a sort of ritual in which now-adays almost every decent person can if he likes take part. Even Court
balls, where pleasure is at least supposed to be possible, are lost in a
London July. Careful observers have long perceived this, but it was
made palpable to every one by the death of the Prince Consort. Since
then the Court has been always in a state of suspended animation,
and for a time it was quite annihilated. But everything went on as
usual. A few people who had no daughters and little money made it
an excuse to give fewer parties, and if very poor, stayed in the country, but upon the whole the difference was not perceptible. The
queen bee was taken away, but the hive went on.
Refined and original observers have of late objected to English
royalty that it is not splendid enough. They have compared it with
the French Court, which is better in show, which comes to the surface everywhere so that you cannot help seeing it, which is infinitely
and beyond question the most splendid thing in France. They have
said, 'that in old times the English Court took too much of the
nation's money, and spent it ill; but now, when it could be trusted to
spend well, it does not take enough of the nation's money. There are
arguments for not having a Court, and there are arguments for having a splendid Court; but there are no arguments for having a mean
Court. It is better to spend a million in dazzling when you wish to
50
The English Constitution
dazzle, than three-quarters of a million in trying to dazzle ,and yet
not dazzling.' There may be something in this theory; it may be that
the Court of England is not quite as gorgeous as we might wish to see
it. But no comparison must ever be made between it and the French
Court. The Emperor represents a different idea from the Queen.
He is not the head of the State; he is the State. The theory of his
Government is that every one in France is equal, and that the
Emperor embodies the principle of equality. The greater you make
him, the less, and therefore the more equal, you make all others. He
is magnified that others may be dwarfed. The very contrary is the
principle of English royalty. As in politics it would lose its principal
use if it came forward into the public arena, so in society if it advertised itself it would be pernicious. We have voluntary show enough
already in London; we do not wish to have it encouraged and intensified, but quieted and mitigated. Our Court is but the head of an
unequal, competing, aristocratic society: its splendour would not
keep others down, but incite others to come on. It is of use so long as
it keeps others out of the first place, and is guarded and retired in
that place. But it would do evil if it added a new example to our many
examples of showy wealth—if it gave the sanction of its dignity to
the race of expenditure.
Fourthly. We have come to regard the crown as the head of our
morality. The virtues of Queen Victoria and the virtues of George III
have sunk deep into the popular heart. We have come to believe that
it is natural to have a virtuous sovereign, and that the domestic
virtues are as likely to be found on thrones as they are eminent when
there. But a little experience and less thought show that royalty
cannot take credit for domestic excellence. Neither George I, nor
George II, nor William IV, were patterns of family merit; George IV
was a model of family demerit. The plain fact is, that to the disposition of all others most likely to go wrong, to an excitable disposition, the place of a constitutional king has greater temptations
than almost any other, and fewer suitable occupations than almost
any other. All the world and all the glory of it, whatever is most
attractive, whatever is most seductive, has always been offered to the
Prince of Wales of the day, and always will be. It is not rational to
expect the best virtue where temptation is applied in the most trying
form at the frailest time of human life. The occupations of a constitutional monarch are grave, formal, important, but never exciting;
The Monarchy
51
they have nothing to stir eager blood, awaken high imagination, work
off wild thoughts. On men like George III, with a predominant taste
for business occupations, the routine duties of constitutional royalty
have doubtless a calm and chastening effect. The insanity with which
he struggled, and in many cases struggled very successfully, during
many years, would have burst out much oftener but for the sedative
effect of sedulous employment. But how few princes have ever felt
the anomalous impulse for real work; how uncommon is that impulse
anywhere; how little are the circumstances of princes calculated to
foster it; how little can it be relied on as an ordinary breakwater to
their habitual temptations! Grave and careful men may have
domestic virtues on a constitutional throne, but even these fail sometimes, and to imagine that men of more eager temperaments will
commonly produce them is to expect grapes from thorns and figs
from thistles.
Lastly. Constitutional royalty has the function which I insisted on
at length in my last essay, and which, though it is by far the greatest,
I need not now enlarge upon again. It acts as a disguise. It enables our
real rulers to change without heedless people knowing it. The
masses of Englishmen are not fit for an elective government; if they
knew how near they were to it, they would be surprised, and almost
tremble.
In ultimate analysis, perhaps identical with this disguise is the
value of constitutional royalty in times of transition. The greatest of
all helps to the substitution of a cabinet government for a preceding
absolute monarchy, is the accession of a king favourable to such a
government, and pledged to it. Cabinet government, when new, is
weak in time of trouble. The prime minister—the chief on whom
everything depends, who must take responsibility if any one is to
take it, who must use force if any one is to use it—is not fixed in
power. He holds his place, by the essence of the government, with
some uncertainty. Among a people well-accustomed to such a government such a functionary may be bold; he may rely, if not on the
parliament, on the nation which understands and values him. But
when that government has only recently been introduced, it is
difficult for such a minister to be as bold as he ought to be. He relies
too much on human reason, and too little on human instinct. The
traditional strength of the hereditary monarch is at these times of
incalculable use. It would have been impossible for England to get
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The English Constitution
through the first years after 1688 but for the singular ability of William III; it would have been impossible for Italy to have attained and
kept her freedom without the help of Victor Emmanuel; neither the
work of Cavour nor the work of Garibaldi were more necessary than
his.* But the failure of Louis Philippe* to use his reserve power as
constitutional monarch, is the most instructive proof how great that
reserve power is. In February, 1848, Guizot was weak because his
tenure of office was insecure. Louis Philippe should have made that
tenure certain. Parliamentary reform might afterwards have been
conceded to instructed opinion, but nothing ought to have been
conceded to the mob. The Parisian populace ought to have been put
down, as Guizot wished. If Louis Philippe had been a fit king to
introduce free government, he would have strengthened his ministers when they were the instruments of order, even if he afterwards
discarded them when order was safe, and policy could be discussed.
But he was one of the cautious men who are 'noted' to fail in old age:
though of the largest experience, and of great ability, he failed, and
lost his crown for want of petty and momentary energy, which at
such a crisis a plain man would have at once put forth.
Such are the principal modes in which the institution of royalty
by its august aspect influences mankind, and in the English state of
civilisation they are invaluable. Of the actual business of the
sovereign—the real work the Queen does—I shall speak in my next
paper.
4
THE MONARCHY (CONTINUED)
THE House of Commons has inquired into most things, but has
never had a committee on the 'Queen.' There is no authentic bluebook to say what she does. Such an investigation cannot take place;
but if it could, it would probably save her much vexatious routine,
and many toilsome and unnecessary hours.
The popular theory of the English Constitution involves two
errors as to the sovereign. First, in its oldest form, at least, it considers him as an 'Estate of the Realm,' a separate co-ordinate with
the House of Lords and the House of Commons. This and much else
the sovereign once was, but this he is no longer. That authority could
only be exercised by a monarch with a legislative veto. He should be
able to reject bills, if not as the House of Commons rejects them,
at least as the House of Peers rejects them. But the Queen has no
such veto. She must sign her own death-warrant if the two Houses
unanimously send it up to her. It is a fiction of the past to ascribe to
her legislative power. She has long ceased to have any. Secondly, the
ancient theory holds that the Queen is the executive. The American
Constitution was made upon a most careful argument, and most of
that argument assumes the king to be the administrator of the
English Constitution, and an unhereditary substitute for him—viz.,
a president—to be peremptorily necessary. Living across the Atlantic, and misled by accepted doctrines, the acute framers of the
Federal Constitution, even after the keenest attention, did not perceive the Prime Minister to be the principal executive of the British
Constitution, and the sovereign a cog in the mechanism. There is,
indeed, much excuse for the American legislators in the history of
that time. They took their idea of our constitution from the time
when they encountered it. But in the so-called government of Lord
North,* George III was the government. Lord North was not only
his appointee, but his agent. The minister carried on a war which he
disapproved and hated, because it was a war which his sovereign
approved and liked. Inevitably, therefore, the American Convention
believed the king, from whom they had suffered, to be the real
executive, and not the minister, from whom they had not suffered.
;4
The English Constitution
If we leave literary theory, and look to our actual old law, it is
wonderful how much the sovereign can do. A few years ago the
Queen very wisely attempted to make life Peers,* and the r^ouse of
Lords very unwisely, and contrary to its own best interests, refused
to admit her claim. They said her power had decayed into nonexistence; she once had it, they allowed, but it had ceased by long
disuse. If any one will run over the pages of Comyn's 'Digest,'* or
any other such book, title 'Prerogative,' he will find the Queen has a
hundred such powers which waver between reality and desuetude,
and which would cause a protracted and very interesting legal argument if she tried to exercise them. Some good lawyer ought to write
a careful book to say which of these powers are really usable, and
which are obsolete. There is no authentic explicit information as to
what the Queen can do, any more than of what she does.
In the bare superficial theory of free institutions this is undoubtedly a defect. Every power in a popular government ought to be
known. The whole notion of such a government is that the political
people—the governing people—rules as it thinks fit. All the acts of
every administration are to be canvassed by it; it is to watch if such
acts seem good, and in some manner or other to interpose if they
seem not good. But it cannot judge if it is kept in ignorance; it cannot
interpose if it does not know. A secret prerogative is an anomaly—
perhaps the greatest of anomalies. That secrecy is, however, essential
to the utility of English royalty as it now is. Above all things our
royalty is to be reverenced, and if you begin to poke about it you
cannot reverence it. When there is a select committee on the Queen,
the charm of royalty will be gone. Its mystery is its life. We must not
let in daylight upon magic. We must not bring the Queen into the
combat of politics or she will cease to be reverenced by all combatants; she will become one combatant among many. The existence of
this secret power is, according to abstract theory, a defect in our
constitutional polity, but it is a defect incident to a civilisation such
as ours, where august and therefore unknown powers are needed,
as well as known and serviceable powers.
If we attempt to estimate tne working of this inner power by the
evidence of those, whether dead or living, who have been brought in
contact with it, we shall find a singular difference. Both the courtiers
of George III and the courtiers of Queen Victoria are agreed as to the
magnitude of the royal influence. It is with both an accepted secret
The Monarchy (continued)
55
doctrine that the Crown does more than it seems. But there is a wide
discrepancy in opinion as to the quality of that action. Mr Fox did
not scruple to describe the hidden influence of George III as the
undetected agency 'of an infernal spirit.'* The action of the Crown
at that period was the dread and terror of Liberal politicians. But
now the best Liberal politicians say, We shall never know, but when
history is written our children may know, what we owe to the Queen
and Prince Albert.' The mystery of the constitution, which used to
be hated by our calmest, most thoughtful, and instructed statesmen,
is now loved and reverenced by them.
Before we try to account for this change, there is one part of the
duties of the Queen which should be struck out of the discussion. I
mean the formal part. The Queen has to assent to and sign countless
formal documents, which contain no matter of policy, of which the
purport is insignificant, which any clerk could sign as well. One
great class of documents George III used to read before he signed
them, till Lord Thurlow* told him, 'It was nonsense his looking at
them, for he could not understand them.' But the worst case is that
of commissions in the army. Till an Act passed only three years since
the Queen used to sign all military commissions,* and she still signs
all fresh commissions. The inevitable and natural consequence is
that such commissions were, and to some extent still are, in arrears
by thousands. Men have often been known to receive their commissions for the first time years after they have left the service. If the
Queen had been an ordinary officer she would long since have complained, and long since have been relieved of this slavish labour. A
cynical statesman is said to have defended it on the ground 'that you
may have a fool for a sovereign, and then it would be desirable he
should have plenty of occupation in which he can do no harm.' But it
is in truth childish to heap formal duties of business upon a person
who has of necessity so many formal duties of society. It is remnant
of the old days when George III would know everything, however
trivial, and assent to everything, however insignificant. These
labours of routine may be dismissed from the discussion. It is not by
them that the sovereign acquires his authority either for evil or for
good.
The best mode of testing what we owe to the Queen is to make a
vigorous effort of the imagination, and see how we should get on
without her. Let us strip cabinet government of all its accessories, let
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The English Constitution
us reduce it to its two necessary constituents,—a representative
assembly—a House of Commons—and a cabinet appointed by that
assembly,—and examine how we should manage with thempnly. We
are so little accustomed to analyse the constitution; we are so used to
ascribe the whole effect of the constitution to the whole constitution,
that a great many people will imagine it to be impossible that a
nation should thrive or even live with only these two simple elements. But it is upon that possibility that the general imitability of the
English Government depends. A monarch that can be truly reverenced, a House of Peers that can be really respected, are historical
accidents nearly peculiar to this one island, and entirely peculiar to
Europe. A new country, if it is to be capable of a cabinet government,
if it is not to degrade itself to presidential government, must create
that cabinet out of its native resources—must not rely on these old
world debris.
Many modes might be suggested by which a parliament might do
in appearance what our Parliament does in reality, viz., appoint a
premier. But I prefer to select the simplest of all modes. We shall
then see the bare skeleton of this polity, perceive in what it differs
from the royal form, and be quite free from the imputation of having
selected an unduly charming and attractive substitute.
Let us suppose the House of Commons—existing alone and by
itself—to appoint the Premier quite simply, just as the shareholders
of a railway choose a director. At each vacancy, whether caused by
death or resignation, let any member or members have the right of
nominating a successor; after a proper interval such as the time now
commonly occupied by a ministerial crisis, ten days or a fortnight, let
the members present vote for the candidate they prefer; then let the
Speaker count the votes, and the candidate wfth the greatest number
be premier. This mode of election would throw the whole choice into
the hands of party organisation, just as our present mode does,
except in so far as the Crown interferes with it; no outsider would
ever be appointed, because the immense number of votes which
every great party brings into the field would far outnumber every
casual and petty minority. The premier should not be appointed for a
fixed time, but during good behaviour or the pleasure of Parliament.
Mutatis mutandis, subject to the differences now to be investigated,
what goes on now would go on then. The premier then, as now, must
resign upon a vote of want of confidence, but the volition of parlia-
The Monarchy (continued)
57
ment would then be the overt and single force in the selection of a
successor, whereas it is now the predominant though latent force.
It will help the discussion very much if we divide it into three
parts. The whole course of a representative government has three
stages—first, when a ministry is appointed; next, during its continuance; last, when it ends. Let us consider what is the exact use of the
Queen at each of these stages, and how our present form of government differs in each, whether for good or for evil, from that simpler
form of cabinet government which might exist without her.
At the beginning of an administration there would not be much
difference between the royal and unroyal species of cabinet governments when there were only two great parties in the State, and when
the greater of those parties was thoroughly agreed within itself who
should be its parliamentary leader, and who therefore should be its
premier. The sovereign must now accept that recognised leader; and
if the choice were directly made by the House of Commons, the
House must also choose him; its supreme section, acting compactly
and harmoniously, would sway its decisions without substantial
resistance, and perhaps without even apparent competition. A predominant party, rent by no intestine demarcation, would be despotic.
In such a case cabinet government would go on without friction
whether there was a Queen or whether there was no Queen. The best
sovereign could then achieve no good, and the worst effect no harm.
But the difficulties are far greater when the predominant party is
not agreed who should be its leader. In the royal form of cabinet
government the sovereign then has sometimes a substantial selection; in the unroyal, who would choose? There must be a meeting at
'Willis's Rooms;'* there must be that sort of interior despotism of
the majority over the minority within the party, by which Lord John
Russell in 1859 was made to resign his pretensions to the supreme
government, and to be content to serve as a subordinate to Lord
Palmerston. The tacit compression which a party anxious for office
would exercise over leaders who divided its strength, would be used
and must be used. Whether such a party would always choose precisely the best man may well be doubted. In a party once divided it is
very difficult to secure a unanimity in favour of the very person
whom a disinterested by-stander would recommend. All manner of
jealousies and enmities are immediately awakened, and it is always
difficult, often impossible, to get them to sleep again. But though
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The Monarchy (continued)
such a party might not select the very best leader, they have the
strongest motives to select a very good leader. The maintenance of
their rule depends on it. Under a presidential constitution) the preliminary caucuses which choose the president need not care as to the
ultimate fitness of the man they choose. They are solely concerned
with his attractiveness as a candidate; they need not regard his efficiency as a ruler. If they elect a man of weak judgment, he will reign
his stated term;—even though he show the best judgment, at the end
of that term there will be by constitutional destiny another election.
But under a ministerial government there is no such fixed destiny.
The government is a removable government; its tenure depends
upon its conduct. If a party in power were so foolish as to choose a
weak man for its head, it would cease to be in power. Its judgment is
its life. Suppose in 1859 that the Whig party had determined to set
aside both Earl Russell and Lord Palmerston, and to choose for
its head an incapable nonentity, the Whig party would probably
have been exiled from office at the Schleswig-Holstein difficulty.*
The nation would have deserted them, and Parliament would have
deserted them, too; neither would have endured to see a secret negotiation, on which depended the portentous alternative of war or
peace, in the hands of a person who was thought to be weak—who
had been promoted because of his mediocrity—whom his own
friends did not respect. A ministerial government, too, is carried on
in the face of day. Its life is in debate. A president may be a weak man;
yet if he keep good ministers to the end of his administration, he may
not be found out—it may still be a dubious controversy whether he is
wise or foolish. But a prime minister must show what he is. He must
meet the House of Commons in debate; he must be able to guide that
assembly in the management of its business, to gain its ear in every
emergency, to rule it in its hours of excitement. He is conspicuously
submitted to a searching test, and if he fails hi must resign.
ment would secure for us a fair and able parliamentary leader,—that
it would give us a good premier, if not the very best. Can it be said
that the royal form does more?
In one case I think it may. If the constitutional monarch be a man
of singular discernment, of unprejudiced disposition, and great political knowledge, he may pick out from the ranks of the divided party
its very best leader, even at a time when the party, if left to itself,
would not nominate him. If the sovereign be able to play the part of
that thoroughly intelligent but perfectly disinterested spectator who
is so prominent in the works of certain moralists, he may be able to
choose better for his subjects than they would choose for themselves.
But if the monarch be not so exempt from prejudice, and have not
this nearly miraculous discernment, it is not likely that he will be
able to make a wiser choice than the choice of the party itself. He
certainly is not under the same motive to choose wisely. His place is
fixed whatever happens, but the failure of an appointing party
depends on the capacity of their appointee.
There is great danger, too, that the judgment of the sovereign may
be prejudiced. For more than forty years the personal antipathies of
George III materially impaired successive administrations. Almost at
the beginning of his career* he discarded Lord Chatham; almost at
the end he would not permit Mr Pitt to coalesce with Mr Fox. He
always preferred mediocrity; he generally disliked high ability; he
always disliked great ideas. If constitutional monarchs be ordinary
men of restricted experience and common capacity (and we have no
right to suppose that by miracle they will be more), the judgment of
the sovereign will often be worse than the judgment of the party, and
he will be very subject to the chronic danger of preferring a respectful common-place man, such as Addington,* to an independent
first-rate man, such as Pitt.
We shall arrive at the same sort of mixed conclusion if we examine
the choice of a premier under both systems in the critical case of
cabinet government—the case of three parties. This is the case in
which that species of government is most sure to exhibit its defects,
and least likely to exhibit its merits. The defining characteristic of
that government is the choice of the executive ruler by the legislative
assembly: but when there are three parties a satisfactory choice is
impossible. A really good selection is a selection by a large majority
which trusts those it chooses. But when there are three parties there
g
8
Nor would any party like to trust to a weak man the great power
which a cabinet government commits to its premier. The premier,
though elected by parliament, can dissolve parliament. Members
would be naturally anxious that the power which might destroy their
coveted dignity should be lodged in fit hands. They dare not place in
unfit hands a power which, besides hurting the nation, might
altogether ruin them. We may be sure, therefore, that whenever the
predominant party is divided, the ««-royal form of cabinet govern-
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is no such trust. The numerically weakest has the casting vote. It can
determine which candidate shall be chosen. But it does so under a
penalty. It forfeits the right of voting for its own candidate, ^t settles
which of other people's favourites shall be chosen, on condition of
abandoning its own favourite. A choice based on such self-denial can
never be a firm choice: it is a choice at any moment liable to be
revoked. The events of 1858,* though not a perfect illustration of
what I mean, are a sufficient illustration. The Radical party, acting
apart from the moderate Liberal party, kept Lord Derby in power.
The ultra-movement party thought it expedient to combine with the
non-movement party. As one of them coarsely but clearly put it, 'We
get more of our way under these men than under the other men;' he
meant that, in his judgment, the Tories would be more obedient
to the Radicals than the Whigs. But it is obvious that a union of
opposites so marked could not be durable. The Radicals bought it
by choosing the men whose principles were most adverse to them; the
Conservatives bought it by agreeing to measures whose scope was
most adverse to them. After a short interval the Radicals returned to
their natural alliance and their natural discontent with the moderate
Whigs. They used their determining vote first for a government of
one opinion and then for a government of the contrary opinion.
I am not blaming this policy. I am using it merely as an illustration. I say that if we imagine this sort of action greatly exaggerated
and greatly prolonged, parliamentary government becomes impossible. If there are three parties, no two of which will steadily combine
for mutual action, but of which the weakest gives a rapidly oscillating
preference to the two others, the primary condition of a cabinet
polity is not satisfied. We have not a parliament fit to choose; we
cannot rely on the selection of a sufficiently permanent executive,
because there-is no fixity in the thoughts and feelings of the choosers.
Under every species of cabinet government, whether the royal or
the unroyal, this defect can be cured in one way only. The moderate
people of every party must combine to support the government
which, on the whole, suits every party best. This is the mode in
which Lord Palmerston's administration has been lately maintained:
a ministry in many ways defective, but more beneficially vigorous
abroad, and more beneficially active at home, than the vast majority
of English ministries. The moderate Conservatives and the moderate Radicals have maintained a steady government by a sufficient
The Monarchy (continued)
61
coherent union with the moderate Whigs. Whether there is a king or
no king, this preservative self-denial is the main force on which we
must rely for the satisfactory continuance of a parliamentary government at this its period of greatest trial. Will that moderation be
aided or impaired by the addition of a sovereign? Will it be more
effectual under the royal sort of ministerial government, or will it be
less effectual?
If the sovereign has a genius for discernment, the aid which he can
give at such a crisis will be great. He will select for his minister, and
if possible maintain as his minister, the statesman upon whom the
moderate party will ultimately fix their choice, but for whom at the
outset it is blindly searching; being a man of sense, experience, and
tact, he will discern which is the combination of equilibrium, which
is the section with whom the milder members of the other sections
will at last ally themselves. Amid the shifting transitions of confused
parties, it is probable that he will have many opportunities of exercising a selection. It will rest with him to call either on A B to form an
administration, or upon X Y, and either may have a chance of trial. A
disturbed state of parties is inconsistent with fixity, but it abounds in
momentary tolerance. Wanting something, but not knowing with
precision what, it will accept for a brief period anything, to see
whether it may be that unknown something,—to see what it will do.
During the long succession of weak governments which begins with
the resignation of the Duke of Newcastle* in 1762 and ends with the
accession of Mr Pitt in 1784, the vigorous will of George III was an
agency of the first magnitude. If at a period of complex and protracted division of parties, such as are sure to occur often and last
long in every enduring parliamentary government, the extrinsic
force of royal selection were always exercised discreetly, it would be a
political benefit of incalculable value.
But will it be so exercised? A constitutional sovereign must in the
common course of government be a man of but common ability. I am
afraid, looking to the early acquired feebleness of hereditary dynasties, that we must expect him to be a man of inferior ability. Theory
and experience both teach that the education of a prince can be but a
poor education, and that a royal family will generally have less ability
than other families. What right have we then to expect the perpetual
entail on any family of an exquisite discretion, which if it be not a
sort of genius, is at least as rare as genius.
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Probably in most cases the greatest wisdom of a constitutional
king would show itself in well considered inaction. In the confused
interval between 1857 and 1859, the Queen and Prince Albert were
far too wise to obtrude any selection of their own. If they had
chosen, perhaps they would not have chosen Lord Palmerston. But
they saw, or may be believed to have seen, that the world was settling
down without them, and that by interposing an extrinsic agency,
they would but delay the beneficial crystallisation of intrinsic forces.
There is, indeed, a permanent reason which would make the wisest
king, and the king who feels most sure of his wisdom, very slow to
use that wisdom. The responsibility of parliament should be felt by
parliament. So long as parliament thinks it is the sovereign's business to find a government, it will be sure not to find a government
itself. The royal form of ministerial government is the worst of all
forms if it erect the subsidiary apparatus into the principal force, if it
induce the assembly which ought to perform paramount duties to
expect someone else to perform them.
It should be observed, too, in fairness to the unroyal species of
cabinet government, that it is exempt from one of the greatest and
most characteristic defects of the royal species. Where there is no
court, there can be no evil influence from a court. What these influences are everyone knows; though no one, hardly the best and closest
observer, can say with confidence and precision how great their
effect is. Sir Robert Walpole, in language too coarse for our modern
manners, declared after the death of Queen Caroline, that he would
pay no attention to the king's daughters ('those girls,' as he called
them), but would rely exclusively on Madame de Walmoden,* the
king's mistress. 'The king,' says a writer in George IV's time, 'is in
our favour, and what is more to the purpose, the Marchioness of
Conyngham* is so too.' Everybody knows to what sort of influences
several Italian changes of government since the unity of Italy have
been attributed. These sinister agencies are likely to be most effective just when everything else is troubled, and when, therefore, they
are particularly dangerous. The wildest and wickedest king's mistress would not plot against an invulnerable administration. But very
many will intrigue when parliament is perplexed, when parties are
divided, when alternatives are many, when many evil things are possible, when cabinet government must be difficult.
It is very important to see that a good administration can be
The Monarchy (continued)
63
started without a sovereign, because some colonial statesmen have
doubted it. 'I can conceive,' it has been said, 'that a ministry would
go on well enough without a governor when it was launched, but I do
not see how to launch it.' It has even been suggested that a colony
which broke away from England, and had to form its own government, might not unwisely choose a governor for life, and solely
trusted with selecting ministers, something like the Abbe Sieyes's
grand elector. But the introduction of such an officer into such a
colony would in fact be the voluntary erection of an artificial
encumbrance to it. He would inevitably be a party man. The most
dignified post in the State must be an object of contest to the great
sections into which every active political community is divided.
These parties mix in everything and meddle in everything; and they
neither would nor could permit the most honoured and conspicuous
of all stations to be filled, except at their pleasure. They know, too,
that the grand elector, the great chooser of ministries might be, at a
sharp crisis, either a good friend or a bad enemy. The strongest party
would select someone who would be on their side when he had to
take a side, who should incline to them when he did incline, who
should be a constant auxiliary to them, and a constant impediment to
their adversaries. It is absurd to choose by contested party election
an impartial chooser of ministers.
But it is during the continuance of a ministry, rather than at its
creation, that the functions of the sovereign will mainly interest most
persons, and that most people will think them to be of the gravest
importance. I own lam myself of that opinion. I think it may be
shown that the post of sovereign over an intelligent and political
people under a constitutional monarchy is the post which a wise man
would choose above any other—where he would find the intellectual
impulses best stimulated and the worst intellectual impulses best
controlled.
On the duties of the Queen during an administration we have an
invaluable fragment from her own hand. In 1851 Louis Napoleon
had his coup d'etat;* in 1852 Lord John Russell had his; he expelled
Lord Palmerston. By a most useful breach of etiquette he read in the
House a royal memorandum on the duties of his rivals. It is as
follows:—'The Queen requires, first, that Lord Palmerston will
distinctly state what he proposes in a given case in order that the
Queen may know as distinctly to what she is giving her royal
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sanction. Secondly, having once given her sanction to such a measure
that it be not arbitrarily altered or modified by the minister. Such an
act she must consider as failing in sincerity towards the Crojvn, and
justly to be visited by the exercise of her constitutional right of
dismissing that minister. She expects to be kept informed of what
passes between him and foreign ministers before important decisions
are taken based upon that intercourse; to receive the foreign despatches in good time; and to have the drafts for her approval sent to
her in sufficient time to make herself acquainted with their contents
before they must be sent off.'
In addition to the control over particular ministers, and especially
over the foreign minister, the Queen has a certain control over the
Cabinet. The first minister, it is understood, transmits to her authentic information of all the most important decisions, together with
what the newspapers would do equally well, the more important
votes in Parliament. He is bound to take care that she knows everything which there is to know as to the passing politics of the nation.
She has by rigid usage a right to complain if she does not know of
every great act of her ministry not only before it is done, but while
there is yet time to consider it, while it is still possible that it may not
be done.
To state the matter shortly,, the sovereign has, under a constitutional monarchy such as ours, three rights—the right to be consulted, the right to encourage, the right to warn. And a king of great
sense and sagacity would want no others. He would find that his
having no others would enable him to use these with singular effect.
He would say to his minister, 'The responsibility of these measures
is upon you. Whatever you think best must be done. Whatever you
think best shall have my full and effectual support. But you will
observe that for this reason and that reason what you propose to do is
bad; for this reason and that reason what you do not propose is
better. I do not oppose, it is my duty not to oppose; but observe that I
warn.'' Supposing the king to be right, and to have what kings often
have, the gift of effectual expression, he could not help moving his
minister. He might not always turn his course, but he would always
trouble his mind.
In the course of a long reign a sagacious king would acquire an
experience with which few ministers could contend. The king could
say, 'Have you referred to the transactions which happened during
The Monarchy (continued)
65
such and such an administration, I think about fourteen years ago?
They afford an instructive example of the bad results which are sure
to attend the policy which you propose. You did not at that time take
so prominent a part in public life as you now do, and it is possible you
do not fully remember all the events. I should recommend you to
recur to them, and to discuss them with your older colleagues who
took part in them. It is unwise to recommence a policy which so
lately worked so ill.' The king would have the advantage which a
permanent under-secretary has over his superior the parliamentary
secretary. He took part in the proceedings of the previous parliamentary secretaries. These proceedings were part of his own life;
occupied the best of his thoughts, gave him perhaps anxiety, perhaps
pleasure, were commenced in spite of his dissuasion or were
sanctioned by his approval. The parliamentary secretary vaguely
remembers that something was done in the time of some of his
predecessors, when he very likely did not know the least or care the
least about that sort of public business. He has to begin by learning
painfully and imperfectly what the permanent secretary knows by
clear and instant memory. No doubt a parliamentary secretary always
can, and sometimes does, silence his subordinate by the tacit might
of his superior dignity. He says, 'I do not think there is much in all
that. Many errors were committed at the time you refer to which we
need not now discuss.' A pompous man easily sweeps away the
suggestions of those beneath him. But though a minister may so deal
with his subordinate he cannot so deal with his king. The social force
of admitted superiority by which he overturned his under-secretary
is now not with him but against him. He has no longer to regard the
deferential hints of an acknowledged inferior, but to answer the
arguments of a superior to whom he has himself to be respectful.
George III in fact knew the forms of public business as well or better
than any statesman of his time. If in addition to his capacity as a man
of business and to his industry he had possessed the higher faculties
of a discerning statesman, his influence would have been despotic.
The old Constitution of England undoubtedly gave a sort of power
to the Crown which our present Constitution does not give. While a
majority in parliament was principally purchased, by royal patronage, the king was a party to the bargain either with his minister or
without his minister. But even under our present constitution, a
monarch like George III, with high abilities, would possess the
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The English Constitution
greatest influence. It is known to all Europe that in Belgium King
Leopold has exercised immense power by the use of such means as I
have described.*
j
It is known, too, to every one conversant with the real course of
the recent history of England, that Prince Albert really did gain
great power in precisely the same way. He had the rare gifts of a
constitutional monarch. If his life had been prolonged twenty years,
his name would have been known to Europe as that of King Leopold
is known. While he lived he was at a disadvantage. The statesmen
who had most power in England were men of far greater experience
than himself. He might, and no doubt did, exercise a great, if not a
commanding, influence over Lord Malmesbury,* but he could not
rule Lord Palmerston. The old statesman who governs England, at
an age when most men are unfit to govern their own families,
remembered a whole generation of statesmen who were dead before
Prince Albert was born. The two were of different ages and different
natures. The elaborateness of the German Prince—an elaborateness
which has been justly and happily compared with that of Goethe—
was wholly alien to the half-Irish, half-English statesman. The
somewhat boisterous courage in minor dangers, and the obtrusive
use of an always effectual, but not always refined, common-place,
which are Lord Palmerston's defects, doubtless grated on Prince
Albert, who had a scholar's caution and d scholar's courage. The
facts will be known to our children's children, though not to us.
Prince Albert did much, but he died ere he could have made his
influence felt on a generation of statesmen less experienced than he
was, and anxious to learn from him.
It would be childish to suppose that a conference between a minister and his sovereign can ever be a conference of pure argument.
'The divinity which doth hedge a king'* may have less sanctity than
it had, but it still has much sanctity. No one, or scarcely any one, can
argue with a cabinet minister in his own room as he would argue
with another man in another room. He cannot make his own points
as well; he cannot unmake as well the points presented to him. A
monarch's room is worse. The best instance is Lord Chatham,* the
most dictatorial and imperious of English statesmen, and almost the
first English statesman who was borne into power against the wishes
of the king and against the wishes of the nobility;—the first popular
minister. We might have expected a proud tribune of the people to be
The Monarchy (continued)
67
dictatorial to his sovereign; to be to the king what he was to all
others. On the contrary, he was the slave of his own imagination;
there was a kind of mystic enchantment in vicinity to the monarch
which divested him of his ordinary nature. 'The last peep into the
king's closet,' said Mr Burke,* 'intoxicates him, and will to the end of
his life.' A wit said that even at the levee, he bowed so low that you
could see the tip of his hooked nose between his legs. He was in the
habit of kneeling at the bedside of George III while transacting
business. Now no man can argue on his knees. The same superstitious feeling which keeps him in that physical attitude will keep him
in a corresponding mental attitude. He will not refute the bad arguments of the king as he will refute another man's bad arguments. He
will not state his own best arguments effectively and incisively when
he knows that the king would not like to hear them. In a nearly
balanced argument the king must always have the better, and in
politics many most important arguments are nearly balanced. Whenever there was much to be said for the king's opinion it would have
its full weight; whatever was to be said for the minister's opinions
would only have a lessened and an enfeebled weight.
The king, too, possesses a power, according to theory, for extreme
use on a critical occasion, but which he can in law use on any occasion. He can dissolve; he can say to his minister in fact, if not in
words, 'This parliament sent you here, but I will see if I cannot get
another parliament to send some one else here.' George III well
understood that it was best to take his stand at times and on points
when it was perhaps likely, or at any rate not unlikely, the nation
would support him. He always made a minister that he did not like
tremble at the shadow of a possible successor. He had a cunning in
such matters like the cunning of insanity. He had conflicts with the
ablest men of his time, and he was hardly ever baffled. He understood best how to help a feeble argument by a tacit threat, and how
best to address it to an habitual deference.
Perhaps such powers as these are what a wise man would most
seek to exercise and least fear to possess. To wish to be a despot, 'to
hunger after tyranny,' as the Greek phrase had it, marks in our day
an uncultivated mind. A person who so wishes cannot have weighed
what Butler calls the 'doubtfulness things are involved in.'* To be
sure you are right, to impose your will or to wish to impose it with
violence upon others,—to see your own ideas vividly and fixedly, and
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to be tormented till you can apply them in life and practice, not to
like to hear the opinions of others, to be unable to sit down and
weigh the truth they have, are but crude states of intellejct in our
present civilisation. We know, at least, that facts are many; that progress is complicated; that burning ideas (such as young men have)
are mostly false and always incomplete. The notion of a far-seeing
and despotic statesman, who can lay down plans for ages yet unborn,
is a fancy generated by the pride of the human intellect to which
facts give no support. The plans of Charlemagne died with him;
those of Richelieu were mistaken; those of Napoleon gigantesque
and frantic. But a wise and great constitutional monarch attempts no
such vanities. His career is not in the air; he labours in the world of
sober fact; he deals with schemes which can be effected—schemes
which are desirable—schemes which are worth the cost. He says to
the ministry his people send to him, to ministry after ministry, 'I
think so and so; do you see if there is anything in it. I have put down
my reasons in a certain memorandum, which I will give you. Probably it does not exhaust the subject, but it will suggest materials for
your consideration.' By years of discussion with ministry after
ministry, the best plans of the wisest king would certainly be
adopted, and the inferior plans, the impracticable plans, rooted out
and rejected. He could not be uselessly beyond his time, for he would
have been obliged to convince the representatives, the characteristic
men of his time. He would have the best means of proving that he
was right on all new and strange matters, for he would have won to
his side probably, after years of discussion, the chosen agents of the
common-place world—men who were where they were, because
they had pleased the men of the existing age, who will never be much
disposed to new conceptions or profound thoughts. A sagacious and
original constitutional monarch might go to his grave in peace if any
man could. He would know that his best laws were in harmony with
his age; that they suited the people who were to work them, the
people who were to be benefited by them. And he would have passed
a happy life. He would have passed a life in which he could always
get his arguments heard, in which he could always make those who
had the responsibility of action think of them before they acted,—in
which he could know that the schemes which he had set at work in
the world were not the casual accidents of an individual idiosyncrasy,
which are mostly much wrong, but the likeliest of all things to be
The Monarchy (continued)
69
right—the ideas of one very intelligent man at last accepted and
acted on by the ordinary intelligent many.
But can we expect such a king, or, for that is the material point,
can we expect a lineal series of such kings? Every one has heard the
reply of the Emperor Alexander to Madame de Stael,* who favoured
him with a declamation in praise of beneficent despotism. 'Yes,
Madame, but it is only a happy accident.' He well knew that the
great abilities and the good intentions necessary to make an efficient
and good despot never were continuously combined in any line of
rulers. He knew that they were far out of reach of hereditary human
nature. Can it be said that the characteristic qualities of a constitutional monarch are more within its reach? I am afraid it cannot. We
found just now that the characteristic use of an hereditary constitutional monarch, at the outset of an administration, greatly surpassed the ordinary competence of hereditary faculties. I fear that an
impartial investigation will establish the same conclusion as to his
uses during the continuance of an administration.
If we look at history we shall find that it is only during the period
of the present reign that in England the duties of a constitutional
sovereign have ever been well performed. The first two Georges
were ignorant of English affairs, and wholly unable to guide them
whether well or ill; for many years in their time the Prime Minister,
had over and above the labour of managing parliament, to manage
the woman—sometimes the queen, sometimes the mistress—who
managed the sovereign; George III interfered unceasingly, but he did
harm unceasingly; George IV and William IV gave no steady continuing guidance, and were unfit to give it. On the Continent constitutional royalty has never lasted out of one generation. Louis
Philippe, Victor Emmanuel, and Leopold are the founders of their
dynasties; we must not reckon in constitutional monarchy any more
than in despotic monarchy on the permanence in the descendants of
the peculiar genius which founded the race. As far as experience
goes, there is no reason to expect an hereditary series of useful
limited monarchs.
If we look to theory, there is even less reason to expect it. A
monarch is useful when he gives an effectual and beneficial guidance
to his ministers. But these ministers are sure to be among the ablest
men of their time. They will have had to conduct the business of
parliament so as to satisfy it: they will have to speak so as to satisfy it.
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The two together cannot be done save by a man of very great and
varied ability. The exercise of the two gifts is sure to teach a man
much of the world; and if it did not, a parliamentary leader has to
pass through a magnificent training before he becomes a leader. He
has to gain a seat in parliament; to gain the ear of parliament; to gain
the confidence of parliament; to gain the confidence of his colleagues. No one can achieve these—no one, still more, can both
achieve them and retain them—without a singular ability, nicely
trained in the varied detail of life. What chance has an hereditary
monarch, such as nature forces him to be, such as history shows he
is, against men so educated and so born? He can but be an average
man to begin with; sometimes he will be clever, but sometimes he
will be stupid; in the long run he will be neither clever nor stupid: he
will be the simple, common man who plods the plain routine of life
from the cradle to the grave. His education will be that of one who
has never had to struggle; who has always felt he has nothing to gain;
who has had the first dignity given him; who has never seen common
life as in truth it is: It is idle to expect an ordinary man born in the
purple to have greater genius than an extraordinary man born out of
the purple; to expect a man whose place has always been fixed to
have a better judgement than one who has lived by his judgement; to
expect a man whose career will be the same whether he is discreet or
whether he is indiscreet to have the nice discretion of one who has
risen by his wisdom, who will fall if he ceases to be wise.
The characteristic advantage of a constitutional king is the permanence of his place. This gives him the opportunity of acquiring a
consecutive knowledge of complex transactions, but it gives only an
opportunity. The king must use it. There is no royal road to political
affairs: their detail is vast, disagreeable, complicated, and miscellaneous. A king, to be the equal of his ministers in discussion, must
work as they work; he must be a man of business as they are men of
business. Yet a constitutional prince is the man who is most tempted
to pleasure, and the least forced to business. A despot must feel that
he is the pivot of the State. The stress of his kingdom is upon him.
As he is, so are his affairs. He may be seduced into pleasure; he may
neglect all else; but the risk is evident. He will hurt himself. He may
cause a revolution. If he becomes unfit to govern, some one else who
is fit may conspire against him. But a constitutional king need fear
nothing. He may neglect his duties, but he will not be injured. His
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71
place will be as fixed, his income as permanent, his opportunities of
selfish enjoyment as full as ever. Why should he work? It is true he
will lose the quiet and secret influence which in the course of years
industry would gain for him; but an eager young man, on whom the
world is squandering its luxuries and its temptations, will not be
much attracted by the distant prospect of a moderate influence over
dull matters. He may form good intentions; he may say, 'Next year I
will read these papers; I will try and ask more questions; I will not let
these women talk to me so.' But they will talk to him. The most
hopeless idleness is that most smoothed with excellent plans. 'The
Lord Treasurer,' says Swift,* 'promised he will settle it tonight, and
so he will say a hundred nights.' We may depend upon it the ministry whose power will be lessened by the prince's attention, will not
be too eager to get him to attend.
So it is if the prince come young to the throne; but the case is
worse when he comes to it old or middle-aged. He is then unfit to
work. He will then have spent the whole of youth and the first part of
manhood in idleness, and it is unnatural to expect him to labour. A
pleasure-loving lounger in middle life will not begin to work as
George III worked, or as Prince Albert worked. The only fit material
for a constitutional king is a prince who begins early to reign, —who
in his youth is superior to pleasure,—who in his youth is willing to
labour,—who has by nature a genius for discretion. Such kings are
among God's greatest gifts, but they are also among His rarest.
An ordinary idle king on a constitutional throne will leave no mark
on his time; he will do little good and as little harm; the royal form of
cabinet government will work in his time pretty much as the unroyal.
The addition of a cypher will not matter though it take precedence
of the significant figures. But corruptio optimi pessima* The most evil
case of the royal form is far worse than the most evil case of the
unroyal. It is easy to imagine, upon a constitutional throne, an active
and meddling fool, who always acts when he should not, who never
acts when he should, who warns his ministers against their judicious
measures, who encourages them in their injudicious measures. It is
easy to imagine that such a king should be the tool of others; that
favourites should guide him; that mistresses should corrupt him;
that the atmosphere of a bad court should be used to degrade free
government.
We have had an awful instance of the dangers of constitutional
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royalty. We have had the case of a meddling maniac. During a great
part of his life George Ill's reason was half upset by every crisis.
Throughout his life he had an obstinacy akin to that of insanity. He
was an obstinate and an evil influence; he could not be turned from
what was inexpedient; by the aid of his station, he turned truer but
weaker men from what was expedient. He gave an excellent moral
example to his contemporaries, but he is an instance of those whose
good dies with them, while their evil lives after them. He prolonged
the American war, perhaps he caused the American war, so we
inherit the vestiges of an American hatred; he forbad Mr Pitt's wise
plans,* so we an inherit an Irish difficulty. He would not let us do
right in time, so now our attempts at right are out of time and
fruitless. Constitutional royalty under an active and half-insane king
is one of the worst of governments. There is in it a secret power
which is always eager, which is generally obstinate, which is often
wrong, which rules ministers more than they know themselves,
which overpowers them much more than the public believe, which is
irresponsible because it is inscrutable, which cannot be prevented
because it cannot be seen. The benefits of a good monarch are almost
invaluable, but the evils of a bad monarch are almost irreparable.
We shall find these conclusions confirmed if we examine the
powers and the duties of an English monarch at the break-up of an
administration. But the power of dissolution and the prerogative of
creating peers, the cardinal powers of that moment, are too important and involve too many complex matters to be sufficiently treated
at the very end of a paper as long as this.
5
THE HOUSE OF LORDS
IN my last essay I showed that it was possible for a constitutional
monarch to be, when occasion served, of first-rate use both at the
outset and during the continuance of an administration; but that on
matter of fact it was not likely that he would be useful. The requisite
ideas, habits, and faculties far surpass the usual competence of an
average man, educated in the common manner of sovereigns. The
same arguments are entirely applicable at the close of an administration. But at that conjuncture the two most singular prerogatives of
an English king—the power of creating new peers and the power of
dissolving the Commons—come into play; and we cannot duly criticise the use or misuse of these powers till we know what the peers are
and what the House of Commons is.
The use of the House of Lords—or, rather, of the Order of the
Lords in its dignified capacity—is very great. It does not attract so
much reverence as the Queen, but it attracts very much. The office
of an order of nobility is to impose on the common people—not
necessarily to impose on them what is untrue, yet less what is hurtful; but still to impose on their quiescent imaginations what would
not otherwise be there. The fancy of the mass of men is incredibly
weak; it can see nothing without a visible symbol, and there is much
that it can scarcely make out with a symbol. Nobility is the symbol of
mind. It has the marks from which the mass of men always used to
infer mind, and often still infer it. A common clever man who goes
into a country place will get no reverence; but the 'old squire' will get
reverence. Even after he is insolvent, when every one knows that his
ruin is but a question of time, he will get five times as much respect
from the common peasantry as the newly-made rich man who sits
beside him. The common peasantry will listen to his nonsense more
submissively than to the new man's sense. An old lord will get
infinite respect. His very existence is so far useful that it awakens the
sensation of obedience to a sort of mind—the coarse dull, contracted
multitude, who could neither appreciate or perceive any other.
The order of nobility is of great use, too, not only in what it
creates, but in what it prevents. It prevents the rule of wealth—the
\
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religion of gold. This is the obvious and natural idol of the AngloSaxon. He is always trying to make money; he reckons everything in
coin; he bows down before a great heap, and sneers as he passes a
little heap. He has a 'natural instinctive admiration of wealth for its
own sake.' And within good limits the feeling is quite right. So long
as we play the game of industry vigorously and eagerly (and I hope
we shall long play it, for we must be very different from what we are
if we do anything better), we shall of necessity respect and admire
those who play successfully, and a little despise those who play
unsuccessfully. Whether this feeling be right or wrong, it is useless to
discuss; to a certain degree, it is involuntary: it is not for morals to
settle whether we will have it or not; nature settles for us that, within
moderate limits, we must have it. But the admiration of wealth in
many countries goes far beyond this; it ceases to regard in any degree
the skill of acquisition; it respects wealth in the hands of the inheritor just as much as in the hands of the maker; it is a simple envy and
love of a heap of gold as a heap of gold. From this our aristocracy
preserves us. There is no country where a 'poor devil of a millionaire
is so ill off as in England.' The experiment is tried every day, and
every day it is proved that money alone—money pur et simple—will
not buy 'London Society.' Money is kept down, and, so to say, cowed
by the predominant authority of a different power.
But it may be said that this is no gain; that worship for worship, the
worship of money is as good as the worship of rank. Even granting
that it were so, it is a great gain to society to have two idols; in the
competition of idolatries, the true worship gets a chance. But it is not
true that the reverence for rank—at least, for hereditary rank—is as
base as the reverence for money. As the world has gone, manner has
been half-hereditary in certain castes, and manner is one of the fine
arts. It is the style of society; it is in the daily-spoken intercourse of
human beings what the art of literary expression is in their occasional
written intercourse. In reverencing wealth we reverence not a man,
but an appendix to a man; in reverencing inherited nobility, we reverence the probable possession of a great faculty—the faculty of bringing out what is in one. The unconscious grace of life may be in the
middle classes; finely-mannered persons are born everywhere, but it
ought to be in the aristocracy; and a man must be born with a hitch in
his nerves if he has not some of it. It is a physiological possession of
the race, though it is sometimes wanting in the individual.
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There is a third idolatry from which that of rank preserves us, and
perhaps it is the worst of any—that of office. The basest deity is a
subordinate employe, and yet just now in civilised governments it is
the commonest. In France and all the best of the Continent it rules
like a superstition. It is to no purpose that you prove that the pay of
petty officials is smaller than mercantile pay; that their work is more
monotonous than mercantile work; that their mind is less useful and
their life more tame. They are still thought to be greater and better.
They are decores; they have a little red on the left breast of their coat,
and no argument will answer that. In England, by the odd course of
our society, what a theorist would desire, has in fact turned up. The
great offices, whether permanent or parliamentary, which require
mind now give social prestige, and almost only those. An UnderSecretary of State with £2,000 a-year is a much greater man than the
director of a finance company with £5,000, and the country saves the
difference. But except in a few offices like the Treasury, which were
once filled with aristocratic people, and have an odour of nobility at
second-hand, minor place is of no social use. A big grocer despises
the exciseman; and what in many countries would be thought impossible, the exciseman envies the grocer. Solid wealth tells where there
is no artificial dignity given to petty public functions. A clerk in
the public service is 'nobody;' and you could not make a common
Englishman see why he should be anybody.
But it must be owned that this turning of society into a political
expedient has half spoiled it. A great part of the 'best' English
people keep their mind in a state of decorous dulness. They maintain
their dignity, they get obeyed; they are good and charitable to their
dependants. But they have no notion of play of mind; no conception
that the charm of society depends upon it. They think cleverness an
antic, and have a constant though needless horror of being thought
to have any of it. So much does this stiff dignity give the tone, that
the few Englishmen capable of social brilliancy mostly secrete it.
They reserve it for persons whom they can trust, and whom they
know to be capable of appreciating its nuances. But a good government is well worth a great deal of social dulness. The dignified
torpor of English society is inevitable if we give precedence—not to
the cleverest classes, but to the oldest classes—and we have seen how
useful that is.
The social prestige of the aristocracy is, as every one knows,
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immensely less than it was a hundred years or even fifty years sjnce.
Two great movements—the two greatest of modern society—have
been unfavourable to it. The rise of industrial wealth in countless
forms has brought in a competitor which has generally more mind,
and which would be supreme were it not for awkwardness and intellectual gene. Every day our companies, our railways, our debentures,
and our shares, tend more and more to multiply these surroundings of
the aristocracy, and in time they will hide it. And while this undergrowth has come up, the aristocracy have come down. They have less
means of standing out than they used to have. Their power is in their
theatrical exhibition, in their state. But society is every day becoming
less stately. As our great satirist has observed,* 'The last Duke of St
David's used to cover the north road with his carriages; landladies
and waiters bowed before him. The present Duke sneaks away from
a railway station, smoking a cigar, in a brougham.' The aristocracy
cannot lead the old life if they would; they are ruled by a stronger
power. They suffer from the tendency of all modern society to raise
the average, and to lower—comparatively, and perhaps absolutely,
to lower—the summit. As the pictiiresqueness, the featureliness
of society diminishes, aristocracy loses the single instrument of its
peculiar power.
If we remember the great reverence which used to be paid to
nobility as such, we shall be surprised that the House of Lords, as an
assembly, has always been inferior; that it was always just as now, not
the first, but the second of our assemblies. I am not, of course, now
speaking of the middle ages; I am not dealing with the embryo or the
infant form of our Constitution; I am only speaking of its adult
form. Take the times of Sir R. Walpole. He was Prime Minister
because he managed the House of Commons; he was turned out
because he was beaten on an election petition in that House; he ruled
England because he ruled that House. Yet the nobility were then the
governing power in England. In many districts the word of some
lord was law. The 'wicked Lord Lowther,'* as he was called, left a
name of terror in Westmoreland during the memory of men now
living. A great part of the borough members and a great part of the
county members were their nominees; an obedient, unquestioning
deference was paid them. As individuals the peers were the greatest
people; as a House the collected peers were but the second House.
Several causes contributed to create this anomaly, but the main
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cause was a natural one. The House of Peers has never been a House
where the most important peers were most important. It could not
be so. The qualities which fit a man for marked eminence, in a
deliberative assembly, are not hereditary, and are not coupled with
great estates. In the nation, in the provinces, in his own province, a
Duke of Devonshire, or a Duke of Bedford, was a much greater
man than Lord Thurlow.* They had great estates, many boroughs,
innumerable retainers, followings like a court. Lord Thurlow had no
boroughs, no retainers; he lived on his salary. Till the House of
Lords met, the dukes were not only the greatest, but immeasurably
the greatest. But as soon as the House met, Lord Thurlow became
the greatest. He could speak, and the others could not speak. He
could transact business in half an hour which they could not have
transacted in a day, or could not have transacted at all. When some
foolish peer, who disliked his domination, sneered at his birth, he
had words to meet the case. He said it was better for any one to owe
his place to his own exertions than to owe it to descent, to being the
'accident of an accident.' But such a House as this could not be
pleasant to great noblemen. They could not like to be second in their
own assembly (and yet that was their position from age to age) to a
lawyer who was of yesterday,—whom everybody could remember
without briefs,—who had talked for 'hire,'—who had 'hungered
after six-and-eightpence.' Great peers did not gain glory from the
House; on the contrary, they lost glory when they were in the House.
They devised two expedients to get out of this difficulty; they
invented proxies which enabled them to vote without being
present,—without being offended by vigour and invective,—without
being vexed by ridicule,—without leaving the rural mansion or the
town palace where they were demigods. And what was more effectual still, they used their influence in the House of Commons more
instead of the House of Lords. In that indirect manner a rural potentate, who half returned two county members, and wholly returned
two borough members,*—who perhaps gave seats to members of the
Government, who possibly seated the leader of the Opposition,
became a much greater man than by sitting on his own bench, in his
own House, hearing a chancellor talk. The House of Lords was a
second-rate force, even when the peers were a first-rate force,
because the greatest peers, those who had the greatest social importance, did not care for their own House, or like it, but gained great
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part of their political power by a hidden but potent influence jn the
competing House.
When we cease to look at the House of Lords under its dignified
aspect, and come to regard it under its strictly useful aspect, we find
the literary theory of the English Constitution wholly wrong, as
usual. This theory says that the House of Lords is a co-ordinate
estate of the realm, of equal rank with the House of Commons; that
it is the aristocratic branch, just as the Commons is the popular
branch; and that by the principle of our Constitution the aristocratic
branch has equal authority with the popular branch. So utterly false
is this doctrine that it is a remarkable peculiarity, a capital excellence
of the British Constitution, that it contains a sort of Upper House,
which is not of equal authority to the Lower House, yet still has
some authority.
The evil of two co-equal Houses of distinct natures is obvious.
Each House can stop all legislation, and yet some legislation may be
necessary. At this moment we have the best instance of this which
could be conceived. The Upper House of our Victorian Constitution,* representing the rich wool-growers, has disagreed with the
Lower Assembly, and most business is suspended. But for a most
curious stratagem the machine of government would stand still.
Most constitutions have committed this blunder. The two most
remarkable Republican institutions in the world commit it. In both
the American and the Swiss Constitutions the Upper House has as
much authority as the second; it could produce the maximum of
impediment—the dead-lock, if it liked; if it does not do so, it is
owing not to the goodness of the legal constitution, but to the discreetness Of the members of the Chamber. In both these constitutions this dangerous division is defended by a peculiar doctrine with
which I have nothing to do now. It is said that there must be in a
Federal Government some institution, some authority, some body
possessing a veto in which the separate States, composing the Confederation are all equal. I confess this doctrine has to me no selfevidence, and it is assumed, but not proved. The State of Delaware is
not equal in power or influence to the State of New York, and you
cannot make it so by giving it an equal veto in an Upper Chamber.
The history of such an institution is indeed most natural. A little
State will like, and must like, to see some token, some memorial mark
of its old independence preserved in the Constitution by which that
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independence is extinguished. But it is one thing for an institution to
be natural, and another for it to be expedient. If indeed it be that a
Federal Government compels the erection of an Upper Chamber of
conclusive and co-ordinate authority, it is one more in addition to the
many other inherent defects of that kind of government. It may be
necessary to have the blemish, but it is a blemish just as much.
There ought to be in every constitution an available authority
somewhere. The sovereign power must be come-at-able. And the
English have made it so. The House of Lords, at the passing of the
Reform Act of 1832, was as unwilling to concur with the House of
Commons as the Upper Chamber at Victoria to concur with the
Lower Chamber. But it did concur. The Crown has the authority to
create new peers; and the king of the day had promised the ministry
of the day to create them.* The House of Lords did not like the
precedent, and they passed the Bill. The power was not used, but its
existence was as useful as its energy. Just as the knowledge that his
men can strike makes a master yield in order that they may not strike,
so the knowledge that their House could be swamped at the will of
the king—at the will of the people—made the Lords yield to the
people.
From the Reform Act the function of the House of Lords has been
altered in English history. Before that Act it was, if not a directing
Chamber, at least a Chamber of directors. The leading nobles, who
had most influence in the Commons, and swayed the Commons, sat
there. Aristocratic influence was so powerful in the House of Commons, that there never was any serious breach of unity. When the
Houses quarrelled, it was, as in the great Aylesbury case,* about their
respective privileges, and not about the national policy. The influence of the nobility was then so potent, that it was not necessary to
exert it. The English Constitution, though then on this point very
different from what it now is, did not even then contain the blunder
of the Victorian or of the Swiss Constitution. It had not two Houses
of distinct origin; it had two Houses of common origin—two Houses
in which the predominant element was the same. The danger of
discordance was obviated by a latent unity.
Since the Reform Act the House of Lords has become a revising
and suspending House. It can alter Bills; it can reject Bills on which
the House of Commons is not yet thoroughly in earnest—upon
which the nation is not yet determined. Their veto is a sort of
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hypothetical veto. They say, We reject your Bill for this once, or
these twice, or even these thrice; but if you keep on sending it up, at
last we won't reject it. The House has ceased to be one ofj latent
directors, and has become one of temporary rejectors and palpable
alterers.
It is the sole claim of the Duke of Wellington to the name of a
statesman that he presided over this change. He wished to guide the
Lords to their true position, and he did guide them. In 1846, in the
crisis of the Corn-Law struggle, and when it was a question whether
the House of Lords should resist or yield, he wrote a very curious
letter to the present Lord Derby:*—
'For many years, indeed from the year 1830, when I retired from
office, I have endeavoured to manage the House of Lords upon the
principle on which I conceive that the institution exists in the Constitution of the country, that of Conservatism. I have invariably
objected to all violent and extreme measures, which is not exactly the
mode of acquiring influence in a political party in England, particularly one in opposition to Government. I have invariably supported
Government in Parliament upon important occasions, and have
always exercised my personal influence to prevent the mischief of
anything like a difference or division between the two Houses,—of
which there are some remarkable instances, to which I will advert
here as they will tend to show you the nature of my management,
and possibly, in some degree, account for the extraordinary power
which I have for so many years exercised, without any apparent claim
to it.
'Upon finding the difficulties in which the late King William was
involved by a promise made to create peers, the number, I believe,
indefinite, I determined myself, and I prevailed upon others, the
number very large, to be absent from the House in the discussion of
the last stages of the Reform Bill, after the negotiations had failed for
the formation of a new Administration. This course gave at the time
great dissatisfaction to the party; notwithstanding that I believed it
saved the existence of the House of Lords at the time, and the
Constitution of the country.
'Subsequently, throughout the period from 1835 to 1841, I prevailed upon the House of Lords to depart from many principles and
systems which they as well as I had adopted and voted on Irish tithes,
Irish corporations, and other measures, much to the vexation and
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annoyance of many. But I recollect one particular measure, the union
of the provinces of Upper and Lower Canada, in the early stages of
which I had spoken in opposition to the measure, and had protested
against it; and in the last stages of it I prevailed upon the House to
agree to, and pass it, in order to avoid the injury to the public interests of a dispute between the Houses upon a question of such
importance. Then I supported the measures of the Government, and
protected the servant of the Government, Captain Elliot, in China.*
All of which tended to weaken my influence with some of the party;
others, possibly a majority, might have approved of the course which
I took. It was at the same time well known that, from the commencement of Lord Melbourne's Government, I was in constant
communication with it, upon all military matters, whether occurring
at home or abroad, at all events. But likewise upon many others.
'All this tended, of course, to diminish my influence in the Conservative party, while it tended essentially to the ease and satisfaction
of the Sovereign, and to the maintenance of good order. At length
came the resignation of the Government by Sir Robert Peel, in the
month of December last, and the Queen desiring Lord John Russell
to form an Administration. On the 12th of December the Queen
wrote to me the letter of which I enclose the copy, and the copy of
my answer of the same date; of which it appears that you have never
seen copies, although I communicated them immediately to Sir
Robert Peel. It was impossible for me to act otherwise than is indicated in my letter to the Queen. I am the servant of the Crown and
people. I have been paid and rewarded, and I consider myself
retained; and that I can't do otherwise than serve as required, when I
can do so without dishonour, that is to say, as long as I have health
and strength to enable me to serve. But it is obvious that there is, and
there must be, an end of all connection and counsel between party
and me. I might with consistency, and some may think that I ought
to, have declined to belong to Sir Robert Peel's Cabinet on the night
of the 20th of December. But my opinion is, that if I had, Sir Robert
Peel's Government would not have been framed; that we should have
had
and
in office next morning.
'But, at all events, it is quite obvious that when that arrangement
comes, which sooner or later must come, there will be an end to all
influence on my part over the Conservative party, if I should be so
indiscreet as to attempt to exercise any. You will see, therefore, that
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the stage is quite clear for you, and that you need not apprehend the
consequences of differing in opinion from me when you will enter
upon it; as in truth I have, by my letter to the Queen of the 12th of
December, put an end to the connection between the party and me,
when the party will be in opposition to her Majesty's Government.
'My opinion is, that the great object of all is that you should
assume the station, and exercise the influence, which I have so long
exercised in the House of Lords. The question is, how is that object
to be attained? By guiding their opinion and decision, or by following it? You will see that I have endeavoured to guide their opinion,
and have succeeded upon some most remarkable occasions. But it
has been by a good deal of management.
'Upon the important occasion and question now before the
House, I propose to endeavour to induce them to avoid to involve the
country in the additional difficulties of a difference of opinion, possibly a dispute between the Houses, on a question in the decision of
which it has been frequently asserted that their lordships had a personal interest; which assertion, however false as affecting each of
them personally, could not be denied as affecting the proprietors
of land in general. I am aware of the difficulty, but I don't despair of
carrying the Bill through. You must be the best judge of the course
which you ought to take, and of the course most likely to conciliate
the confidence of the House of Lords. My opinion is, that you
should advise the House to vote that which would tend most to
public order, and would be most beneficial to the immediate interests
of the country.'
This is the mode in which the House of Lords came to be what it
now is, a chamber with (in most cases) a veto of delay, with (in most
cases) a power of revision, but with no other rights or powers. The
question we have to answer is, 'The House of Lords being such,
what is the use of the Lords?'
The common notion evidently fails, that it is a bulwark against
imminent revolution. As the Duke's letter in every line evinces, the
wisest members, the guiding members of the House, know that the
House must yield to the people if the people is determined. The two
cases—that of the Reform Act and the Corn Laws—were decisive
cases. The great majority of the Lords thought Reform revolution,
Free-trade confiscation, and the two together ruin. If they could ever
have been trusted to resist the people, they would then have resisted
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it. But in truth it is idle to expect a second chamber—a chamber of
notables—ever to resist a popular chamber, a nation's chamber,
when that chamber is vehement and the nation vehement too. There
is no strength in it for that purpose. Every class chamber, every
minority-chamber, so to speak, feels weak and helpless when the
nation is excited. In a time of revolution there are but two powers,
the sword and the people. The executive commands the sword; the
great lesson which the First Napoleon taught the Parisian
populace—the contribution he made to the theory of revolutions at
the 18th Brumaire*—is now well known. Any strong soldier at the
head of the army can use the army. But a second chamber cannot use
it. It is a pacific assembly, composed of timid peers, or aged lawyers,
or, as abroad, clever litterateurs. Such a body has no force to put
down the nation, and if the nation will have it do something it must
doit.
The very nature, too, as has been seen, of the Lords in the English Constitution, shows that it cannot stop revolution. The constitution contains an exceptional provision to prevent its stopping it.
The executive, the appointee of the popular chamber and the
nation, can make new peers, and so create a majority in the peers; it
can say to the Lords, 'Use the powers of your House as we like, or
you shall not use them at all. We will find others to use them; your
virtue shall go out of you if it is not used as we like, and stopped
when we please.' An assembly under such a threat cannot arrest,
and could not be intended to arrest, a determined and insisting
executive.
In fact the House of Lords, as a House, is not a bulwark that will
keep out revolution, but an index that revolution is unlikely. Resting
as it does upon old deference, and inveterate homage, it shows that
the spasm of new forces, the outbreak of new agencies, which we call
revolution, is for the time simply impossible. So long as many old
leaves linger on the November trees, you know that there has been
little frost and no wind: just so while the House of Lords retains
much power, you may know that there is no desperate discontent in
the country, no wild agency likely to cause a great demolition.
There used to be a singular idea that two chambers—a revising
chamber and a suggesting chamber—were essential to a free government. The first person who threw a hard stone—an effectually
hitting stone—against the theory was one very little likely to be
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favourable to democratic influence, or to be blind to the use cjf aristocracy; it was the present Lord Grey.* He had to look at the matter
practically. He was the first great colonial minister of England who
ever set himself to introduce representative institutions into all her
capable colonies, and the difficulty stared him in the face that in
those colonies there were hardly enough good people for one
assembly, and not near enough good people for two assemblies. It
happened—and most naturally happened—that a second assembly
was mischievous. The second assembly was either the nominee of
the Crown, which in such places naturally allied itself with better
instructed minds, or was elected by people with a higher property
qualification—some peculiarly well-judging people. Both these
choosers chose the best men in the colony, and put them into the
second assembly. But thus the popular assembly was left without
those best men. The popular assembly was denuded of those guides
and those leaders who would have led and guided it best. Those
superior men were put aside to talk to one another, and perhaps
dispute with one another; they were a concentrated instance of high
but neutralised forces. They wished to do good, but they could do
nothing. The Lower House, with all the best people in the colony
extracted, did what it liked. The democracy was weakened rather
than strengthened by the isolation of its best opponents in a weak
position. As soon as experience had shown this, or seemed to show
it, the theory that two chambers were essential to a good and free
government vanished away.
With a perfect Lower House it is certain that an Upper House
would be scarcely of any value. If we had an ideal House of Commons perfectly representing the nation, always moderate, never passionate, abounding in men of leisure, never omitting the slow and
steady forms necessary for good consideration, it is certain that we
should not need a higher chamber. The work would be done so well
that we should not want any one to look over or revise it. And
whatever is unnecessary in government is pernicious. Human life
makes so much complexity necessary that an artificial addition is
sure to do harm: you cannot tell where the needless bit of machinery
will catch and clog the hundred needful wheels; but the chances
are conclusive that it will impede them somewhere, so nice are they
and so delicate. But though beside an ideal House of Commons
the Lords would be unnecessary, and therefore pernicious, beside the
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actual House a revising and leisured legislature is extremely useful, if
not quite necessary.
At present the chance majorities on minor questions in the House
of Commons are subject to no effectual control. The nation never
attends to any but the principal matters of policy and state. Upon
these it forms that rude, rough, ruling judgment which we call public opinion; but upon other things it does not think at all, and it
would be useless for it to think. It has not the materials for forming a
judgment: the detail of Bills, the instrumental part of policy, the
latent part of legislation, are wholly out of its way. It knows nothing
about them, and could not find time or labour for the careful investigation by which alone they can be apprehended. A casual majority of
the House of Commons has therefore dominant power: it can legislate as it wishes. And though the whole House of Commons upon
great subjects very fairly represents public opinion, and though its
judgment upon minor questions is, from some secret excellencies in
its composition, remarkably sound and good; yet, like all similar
assemblies, it is subject to the sudden action of selfish combinations.
There are said to be two hundred 'members for the railways'* in the
present Parliament. If these two hundred choose to combine on a
point which the public does not care for, and which they care for
because it affects their purse, they are absolute. A formidable sinister
interest may always obtain the complete command of a dominant
assembly by some chance and for a moment, and it is therefore of
great use to have a second chamber of an opposite sort, differently
composed, in which that interest in all likelihood will not rule.
The most dangerous of all sinister interests is that of the executive
Government, because it is the most powerful. It is perfectly
possible—it has happened, and will happen again—that the Cabinet,
being very powerful in the Commons, may inflict minor measures on
the nation which the nation did not like, but which it did not understand enough to forbid. If, therefore, a tribunal of revision can be
found in which the executive, though powerful, is less powerful, the
government will be the better; the retarding chamber will impede
minor instances of parliamentary tyranny, though it will not prevent
or much impede revolution.
Every large assembly is, moreover, a fluctuating body; it is not one
house, so to say, but a set of houses; it is one knot of men tonight and
another tomorrow night. A certain unity is doubtless preserved by
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the duty which the executive is supposed to undertake, and 4oes
undertake, of keeping a house; a constant element is so provided
about which all sorts of variables accumulate and pass away. But^even
after due allowance for the full weight of this protective machinery,
our House of Commons is, as all such chambers must be, subject to
sudden turns and bursts of feeling, because the members who compose it change from time to time. The pernicious result is perpetual
in our legislation; many acts of Parliament are medleys of different
motives, because the majority which passed one set of its clauses is
different from that which passed another set.
But the greatest defect of the House of Commons is that it has no
leisure. The life of the House is the worst of all lives—a life of
distracting routine. It has an amount of business brought before it
such as no similar assembly ever has had. The British empire is a
miscellaneous aggregate, and each bit of the aggregate brings its bit
of business to the House of Commons. It is India one day and
Jamaica the next: then again China, and then Schleswig Holstein.
Our legislation touches on all subjects, because our country contains
all ingredients. The mere questions which are asked of the ministers
run over half human affairs; the Private Bill Acts,* the mere privilegia of our Government—subordinate as they ought to be—probably
give the House of Commons more absolute work than the whole
business, both national and private, of any other assembly which has
ever sat. The whole scene is so encumbered with changing business,
that it is hard to keep your head in it.
Whatever, too, may be the case hereafter, when a better system has
been struck out, at present the House does all the work of legislation,
all the detail, and all the clauses itself. One of the most helpless
exhibitions of helpless ingenuity and wasted mind is a committee of
the whole House on a Bill of many clauses which eager enemies are
trying to spoil, and various friends are trying to mend. An Act of
Parliament is at least as complex as a marriage settlement and it is
made much as a settlement would be, if it were left to the vote and
settled by the major part of persons concerned, including the
unborn children. There is an advocate for every interest, and every
interest clamours for every advantage. The executive Government
by means of its disciplined forces, and the few invaluable members
who sit and think, preserve some sort of unity. But the result is very
imperfect. The best test of a machine is the work it turns out. Let
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any one who knows what legal documents ought to be, read first a
will he has just been making and then an Act of Parliament; he will
certainly say, 'I would have dismissed my attorney if he had done my
business as the legislature has done the nation's business.' While the
House of Commons is what it is, a good revising, regulating, and
retarding House would be a benefit of great magnitude.
But is the House of Lords such a chamber? Does it do this work?
This is almost an undiscussed question. The House of Lords, for
thirty years at least, has been in popular discussion an accepted
matter. Popular passion has not crossed the path, and no vivid
imagination has been excited to clear the matter up.
The House of Lords has the greatest merit which such a chamber
can have; it is possible. It is incredibly difficult to get a revising
assembly, because it is difficult to find a class of respected revisers. A
federal senate, a second House, which represents State Unity, has
this advantage; it embodies a feeling at the root of society—a feeling
which is older than complicated politics, which is stronger a thousand times over than common political feelings —the local feeling.
'My shirt,' said the Swiss state-right patriot,* 'is dearer to me than
my coat.' Every State in the American Union would feel that disrespect to the Senate was disrespect to itself. Accordingly, the Senate
is respected: whatever may be the merits or demerits of its action, it
can act; it is real, independent, and efficient. But in common governments it is fatally difficult to make an unpopular entity powerful
in a popular government.
It is almost the same thing to say that the House of Lords is
independent. It would not be powerful, it would not be possible,
unless it were known to be independent. The Lords are in several
respects more independent than the Commons; their judgment may
not be so good a judgment, but it is emphatically their own judgment. The House of Lords, as a body, is accessible to no social bribe.
And this, in our day, is no light matter. Many members of the House
of Commons, who are to be influenced by no other manner of corruption, are much influenced by this its most insidious sort. The
conductors of the press and the writers for it are worse—at least the
more influential who come near the temptation; for 'position,' as
they call it, for a certain intimacy with the aristocracy, they would do
almost anything and say almost anything. But the Lords are those
who give social bribes, and not those who take them. They are above
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corruption because they are the corrupters. They have no constituency to fear or wheedle; they have the best means of forming a
disinterested and cool judgment of any class in the country. They
have, too, leisure to form it. They have no occupations to distract
them which are worth the name. Field sports are but playthings,
though some Lords put an Englishman's seriousness into them. Few
Englishmen can bury themselves in science or literature; and the
aristocracy have less, perhaps, of that impetus than the middle classes.
Society is too correct and dull to be an occupation, as in other times
and ages it has been. The aristocracy live in the fear of the middle
classes—of the grocer and the merchant. They dare not frame a
society of enjoyment as the French aristocracy once formed it. Politics are the only occupation a peer has worth the name. He may
pursue them undistractedly. The House of Lords, besides independence to revise judicially and position to revise effectually, has leisure
to revise intellectually.
These are great merits; and, considering how difficult it is to get a
good second chamber, and how much with our present first chamber
we need a second, we may well be thankful for them. But we must
not permit them to blind our eyes. Those merits of the Lords have
faults close beside them which go far to make them useless. With its
wealth, its place, and its leisure, the House of Lords would, on the
very surface of the matter, rule us far more than it does, if it had not
secret defects which hamper and weaken it.
The first of these defects is hardly to be called secret, though on
the other hand, it is not well known. A severe though not unfriendly
critic of our institutions* said that 'the cure for admiring the House
of Lords was to go and look at it'—to look at it not on a great party
field-day, or at a time of parade, but in the ordinary transaction of
business. There are perhaps ten peers in the House, possibly only
six; three is the quorum for transacting business. A few more may
dawdle in or not dawdle in; those are the principal speakers, the
lawyers (a few years ago when Lyndhurst, Brougham, and Campbell
were in vigour,* they were by far the predominant talkers) and a few
statesmen whom everyone knows. But the mass of the House is
nothing. This is why orators trained in the Commons detest to speak
in the Lords. Lord Chatham used to call it the 'Tapestry.' The
House of Commons is a scene of life if ever there was a scene of life.
Every member in the throng, every atom in the medley, has his own
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objects (good or bad), his own purposes (great or petty); his own
notions, such as they are, of what is; his own notions, such as they
are, of what ought to be. There is a motley confluence of vigorous
elements, but the result is one and good. There is a 'feeling of the
House,' a 'sense' of the House, and no one who knows anything of it
can despise it. A very shrewd man of the world went so far as to say
that 'the House of Commons has more sense than any one in it'.*
But there is no such 'sense' in the House of Lords, because there is
no life. The Lower Chamber is a chamber of eager politicians; the
Upper (to say the least) of not eager ones.
This apathy is not, indeed, as great as the outside show would
indicate. The committees of the Lords (as is well known) do a great
deal of work, and do it very well. And, such as it is, the apathy is very
natural. A House composed of rich men who can vote by proxy
without coming will not come very much. But after every abatement
the real indifference to their duties of most peers is a great defect,
and the apparent indifference is a dangerous defect. As far as politics
go there is profound truth in Lord Chesterfield's axiom,* 'that the
world must judge of you by what you seem not by what you are.' The
world knows what you seem; it does not know what you are. An
assembly—a revising assembly especially—which does not assemble,
which looks as if it does not care how it revises, is defective in a main
political ingredient. It may be of use, but it will hardly convince
mankind that it is so.
The next defect is even more serious; it affects not simply the
apparent work of the House of Lords but the real work. For a revising legislature, it is too uniformly made up. Errors are of various
kinds; but the constitution of the House of Lords only guards
against a single error—that of too quick change. The L o r d s leaving out a few lawyers and a few outcasts—are all landowners of
more or less wealth. They all have more or less the opinions, the
merits, the faults of that one class. They revise legislation, as far as
they do revise it, exclusively according to the supposed interests, the
predominant feelings, the inherited opinions, of that class. Since the
Reform Act, this uniformity of tendency has been very evident.
The Lords have felt—it would be harsh to say hostile, but still dubious, as to the new legislation. There was a spirit in it alien to their
spirit, and which when they could they have tried to cast out. That
spirit is what has been termed the 'modern spirit.' It is not easy to
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concentrate its essence in a phrase: it lives in our life, animates our
actions, suggests our thoughts. We all know what it means, though it
would take an essay to limit it and define it. To this the Lords pbject;
wherever it is concerned, they are not impartial revisers, but biassed
revisers.
This singleness of composition would be no fault, it would be, or
might be, even a merit, if the criticism of the House of Lords,
though a suspicious criticism, were yet a criticism of great understanding. The characteristic legislation of every age must have characteristic defects; it is the outcome of a character, of necessity faulty
and limited. It must mistake some kind of things: it must overlook
some other. If we could get hold of a complemental critic, a critic
who saw what the age did not see, and who saw rightly what the age
mistook, we should have a critic of inestimable value. But is the
House of Lords that critic? Can it be said that its unfriendliness to
the legislation of the age is founded on a perception of what the age
does not see, and a rectified perception of what the age does see? The
most extreme partisan, the most warm admirer of the Lords, if of
fair and tempered mind, cannot say so. The evidence is too strong.
On free trade, for example, no one can doubt that the Lords—in
opinion, in what they wished to do, and would have done, if they had
acted on their own minds—were utterly wrong. This is the clearest
test of the 'modern spirit.' It is easier here to be sure it is right than
elsewhere. Commerce is like war; its result is patent. Do you make
money or do you not make it? There is as little appeal from figures as
from battle. Now no one can doubt that England is a great deal better
off because of free trade; that it has more money, and that its money
is diffused more, as we should wish it diffused. In the one case in
which we can unanswerably test the modern spirit, it was right, and
the dubious Upper House—the House which would have rejected it,
if possible—was wrong.
There is another reason. The House of Lords, being an hereditary
chamber, cannot be of more than common ability. It may contain—it
almost always has contained, it almost always will contain—extraordinary men. But its average born lawmakers cannot be extraordinary. Being a set of eldest sons picked out by chance and history, it
cannot be very wise. It would be a standing miracle if such a chamber
possessed a knowledge of its age superior to the other men of the
age; if it possessed a superior and supplemental knowledge; if it
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descried what they did not discern, and saw truly that which they
saw, indeed, but saw untruly.
The difficulty goes deeper. The task of revising, of adequately
revising the legislation of this age, is not only that which a noblesse
has no facility in doing, but one which it has a difficulty in doing.
Look at the statute book for 1865—the statutes at large for the year.
You will find, not pieces of literature, not nice and subtle matters,
but coarse matters, crude heaps of heavy business. They deal with
trade, with finance, with statute law reform, with common law
reform; they deal with various sorts of business, but with business
always. And there is no educated human being less likely to know
business, worse placed for knowing business, than a young lord.
Business is really more agreeable than pleasure; it interests the whole
mind, the aggregate nature of man more continuously, and more
deeply. But it does not look as if it did. It is difficult to convince a
young man, who can have the best of pleasure, that it will. A young
lord just come into £30,000 a year will not, as a rule, care much for
the law of patents, for the law of'passing tolls,' or the law of prisons.
Like Hercules, he may choose virtue, but hardly Hercules could
choose business. He has everything to allure him from it, and nothing to allure him to it. And even if he wish to give himself to business, he has indifferent means. Pleasure is near him, but business is
far from him. Few things are more amusing than the ideas of a wellintentioned young man, who is born out of the business world, but
who wishes to take to business, about business. He has hardly a
notion in what it consists. It really is the adjustment of certain particular means to equally certain particular ends. But hardly any
young man destitute of experience is able to separate end and means.
It seems to him a kind of mystery; and it is lucky if he do not think
that the forms are the main part, and that the end is but secondary.
There are plenty of business men, falsely so-called, who will advise
him so. The subject seems a kind of maze. 'What would you recommend me to readV the nice youth asks; and it is impossible to explain
to him that reading has nothing to do with it, that he has not yet the
original ideas in his mind to read about; that administration is an art
as painting is an art; and that no book can teach the practice of either.
Formerly this defect in the aristocracy was hidden by their other
advantages. Being the only class at ease for money and cultivated in
mind they were without competition; and though they might not be,
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as a rule, and extraordinary ability excepted, excellent in State
business, they were the best that could be had. Even in old times,
however, they sheltered themselves from the greater pressure of
coarse work. They appointed a manager—a Peel or a Walpole, anything but an aristocrat in manner or in nature—to act for them and
manage for them. But now a class is coming up trained to thought,
full of money, and yet trained to business. As I write, two members
of this class have been appointed to stations considerable in themselves, and sure to lead (if anything is sure in politics) to the Cabinet
and power. This is the class of highly-cultivated men of business,
who after a few years, are able to leave business and begin ambition.
As yet these men are few in public life, because they do not know
their own strength. It is like Columbus and the egg once again; a few
original men will show it can be done, and then a crowd of common
men will follow. These men know business partly from tradition, and
this is much. There are University families—families who talk of
fellowships, and who invest their children's ability in Latin verses as
soon as they discover it; there used to be Indian families of the same
sort, and probably will be again when the competitive system has had
time to foster a new breed.* Just so there are business families to
whom all that concerns money, all that concerns administration, is as
familiar as the air they breathe. All Americans, it has been said, know
business; it is in the air of their country. Just so certain classes know
business here; and a lord can hardly know it. It is as great a difficulty
to learn business in a palace as it is to learn agriculture in a park.
To one kind of business, indeed, this doctrine, does not apply.
There is one kind of business in which our aristocracy have still, and
are likely to retain long, a certain advantage. This is the business of
diplomacy. Napoleon, who knew men well, would never, if he could
help, employ men of the Revolution in missions to the old courts; he
said, 'They spoke to no one, and no one spoke to them;' and so they
sent home no information. The reason is obvious. The old-world
diplomacy of Europe was largely carried on in drawing-rooms, and
to a great extent, of necessity still is so. Nations touch at their summits. It is always the highest class which travels most, knows most of
foreign nations, has the least of the territorial sectarianism, which
calls itself patriotism, and is often thought to be so. Even here,
indeed, in England the new trade-class is in real merit equal to the
aristocracy. Their knowledge of foreign things is as great, and their
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contact with them often more. But, notwithstanding, the new race is
not as serviceable for diplomacy as the old race. An ambassador is
not simply an agent; he is also a spectacle. He is sent abroad for show
as well as for substance; he is to represent the Queen among foreign
courts and foreign sovereigns. An aristocracy is in its nature better
suited to such work; it is trained to the theatrical part of life; it is fit
for that if it is fit for anything. A shrewd judge wants 'to pass as Act
that the Minister at Washington should always be a Lord.' The social
prestige of an aristocracy is most valuable in a country which has no
aristocracy.
But, with this exception, an aristocracy is necessarily inferior in
business to the classes nearer business; and is not, therefore, a suitable class, if we had our choice of classes, out of which to frame a
chamber for revising matters of business. It is indeed a singular
example of how natural business is to the English race, that the
House of Lords works as well as it does. The common appearance of
the 'whole House' is a jest—a dangerous anomaly, which Mr Bright
will sometime use;* but a great deal of substantial work is done in
'Committees,' and often very well done. The great majority of the
Peers do none of their appointed work, and could do none of it; but a
minority—a minority never so large and never so earnest as in this
age—do it, and do it well. Still no one, who examines the matter
without prejudice, can say that the work is done perfectly. In a country so rich in mind as England, far more intellectual power can be,
and ought to be, applied to the revision of our laws.
And not only does the House of Lords do its work imperfectly, but
often, at least, it does it timidly. Being only a section of the nation, it
is afraid of the nation. Having been used for years and years, on the
greatest matters to act contrary to its own judgment, it hardly knows
when to act on that judgment. The depressing languor with which it
damps an earnest young peer is at times ridiculous. 'When the Corn
Laws are gone, and the rotten boroughs, why teaze about Clause IX
in the Bill to regulate Cotton Factories?' is the latent thought of
many peers. A word from the leaders, from 'the Duke,' or Lord
Derby, or Lord Lyndhurst, will rouse on any matters the sleeping
energies; but most lords are feeble and forlorn.
These grave defects would have been at once lessened, and in the
course of years nearly effaced, if the House of Lords had not resisted
the proposal of Lord Palmerston's first government to create peers
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for life. The expedient was almost perfect. The difficulty of reforming an old institution like the House of Lords is necessarily great; its
possibility rests on continuous caste and ancient deference. And if
you begin to agitate about it, to bawl at meetings about it, that
deference is gone, its peculiar charm lost, its reserved sanctity gone.
But, by an odd fatality, there was in the recesses of the Constitution
an old prerogative which would have rendered agitation needless—
which would have effected, without agitation, all that agitation could
have effected. Lord Palmerston was—now that he is dead, and his
memory can be clearly viewed—as firm a friend to an aristocracy, as
thorough an aristocrat, as any in England; yet he proposed to use
that power. If the House of Lords had still been under the rule of the
Duke of Wellington, perhaps they would have acquiesced. The Duke
would not indeed have reflected on all the considerations which a
philosophic statesman would have set out before him; but he would
have been brought right by one of his peculiarities. He disliked,
above all things, to oppose the Crown. At a great crisis, at the crisis
of the Corn Laws, what he considered was not what other people
were thinking of, the economical issue under discussion, the welfare
of the country hanging in the balance, but the Queen's ease. He
thought the Crown so superior a part in the Constitution, that, even
on vital occasions, he looked solely—or said he looked solely—to the
momentary comfort of the present sovereign. He never was comfortable in opposing a conspicuous act of the Crown. It is very likely
that, if the Duke had still been the President of the House of Lords,
they would have permitted the Crown to prevail in its well-chosen
scheme. But the Duke was dead, and his authority—or some of it—
had fallen to a very different person. Lord Lyndhurst had many
great qualities; he had a splendid intellect—as great a faculty of
finding truth as any one in his generation; but he had no love of
truth. With this great faculty of finding truth, he was a believer in
error—in what his own party admit to be error—all his life through.
He could have found the truth as a statesman just as he found it
when a judge; but he never did find it. He never looked for it. He was
a great partisan, and he applied a capacity of argument, and a faculty
of intellectual argument rarely equalled, to support the tenets of his
party. The proposal to create life-peers was proposed by the antagonistic party—was at the moment likely to injure his own party. To him
this was a great opportunity. The speech he delivered on that occa-
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sion lives in the memory of those who heard it. His eyes did not at
that time let him read, so he repeated by memory, and quite accurately, all the black-letter authorities bearing on the question. So great
an intellectual effort has rarely been seen in an English assembly. But
the result was deplorable. Not by means of his black-letter authorities, but by means of his recognised authority and his vivid impression, he induced the House of Lords to reject the proposition of the
Government. Lord Lyndhurst said the Crown could not now create
life-peers, and so there are no life-peers. The House of Lords
rejected the inestimable, the unprecedented opportunity of being
tacitly reformed. Such a chance does not come twice. The life-peers
who would have been then introduced would have been among the
first men in the country. Lord Macaulay was to have been among
the first;* Lord Wensleydale—the most learned and not the least
logical of our lawyers—to be the very first. Thirty or forty such men,
added judiciously and sparingly as years went on, would have given
to the House of Lords the very element which, as a criticising
chamber, it needs so much. It would have given it critics. The
most accomplished men in each department might then, without
irrelevant considerations of family and of fortune, have been added
to the Chamber of Review. The very element which was wanted
to reform the House of Lords was, as it were, by a constitutional
providence, offered to the House of Lords, and they refused it. By
what species of effort that error can be repaired, I cannot tell; but,
unless it is repaired, the intellectual capacity can never be what it
would have been, will never be what it ought to be, will never be
sufficient for its work.
Another reform ought to have accompanied the creation of lifepeers. Proxies ought to have been abolished. Some time or other the
slack attendance in the House will destroy the House of Lords.
There are occasions in which appearances are realities, and this is the
one of them. The House of Lords on most days looks so unlike what
it ought to be, that most people will not believe it is what it ought to
be. The attendance of considerate peers will, for obvious reasons, be
larger when it can no longer be overpowered by the »o»-attendance,
by the commissioned votes of inconsiderate peers. The abolition of
proxies would have made the House of Lords a real House; the
addition of life-peers would have made it a good House.
The greater of these changes would have most materially aided
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the House of Lords in the performance of its subsidiary functions. It
always perhaps happens in a great nation, that certain bodies of sensible men posted prominently in its constitution, acquire funptions,
and usefully exercise functions which, at the outset, no one expected
from them, and which do not identify themselves with their original
design. This has happened to the House of Lords especially. The
most obvious instance is the judicial function. This is a function
which no theorist would assign to a second chamber in a new constitution, and which is matter of accident in ours. But I do not much
rely on this. It is not a function of the House of Lords, but of a
Committee of the House of Lords. On one occasion only, the trial of
O'Connell,* the whole House, or some few in the whole House,
wished to vote, and they were told they could not, or they would
destroy the judicial prerogative. No one, indeed, would venture really
to place judicial function in the chance majorities of a fluctuating
assembly: it is so by a sleepy theory; it is not so in living fact. As a
legal question, too, it is a matter of grave doubt whether there ought
to be two supreme courts in this country—the Judicial Committee of
the Privy Council, and (what is in fact though not in name) the
Judicial Committee of the House of Lords. Up to a very recent time
one committee might decide that a man was sane as to money, and the
other committee might decide that he was insane as to land. This
absurdity has been cured; but the error from which it arose has not
been cured—the error of having two supreme courts, to both of
which, as time goes on, the same question is sure often enough to be
submitted, and each of which is sure every now and then to decide it
differently. I do not reckon the judicial function of the House of
Lords as one of its true subsidiary functions, first because it does not
in fact exercise it, next because I wish to see it in appearance deprived
of it. The supreme court of the English people ought to be a great
conspicuous tribunal, ought to rule all other courts, ought to have no
competitor, ought to bring our law into unity, ought not to be hidden
beneath the robes of a legislative assembly.
The subsidiary functions of the House of Lords are real, and,
unlike its judicial functions, are very analogous to its substantial
nature. The first is the faculty of criticising the executive. An
assembly in which the mass of the members have nothing to lose,
where most have nothing to gain, where every one has a social position firmly fixed, where no one has a constituency, where hardly any
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one cares for the minister of the day, is the very assembly in which to
look for, from which to expect, independent criticism. And in matter
of fact we find it. The criticism of the acts of late administrations by
Lord Grey has been admirable. But such criticism, to have its full
value, should be many-sided. Every man of great ability puts his own
mark on his own criticism; it will be full of thought and feeling, but
then it is of idiosyncratic thought and feeling. We want many critics
of ability and knowledge in the Upper House—not equal to Lord
Grey, for they would be hard to find—but like Lord Grey. They
should resemble him in impartiality; they should resemble him in
clearness; they should most of all resemble him in taking the supplemental view of a subject. There is an actor's view of a subject
which (I speak of mature and discussed action—of Cabinet action) is
nearly sure to include everything old and near—everything ascertained and determinate. But there is also a bystander's view, which is
likely to omit some one or more of these old and certain elements,
but also to contain some new or distant matter which the absorbed
and occupied actor could not see. There ought to be many life-peers
in our secondary chamber capable of giving us this higher criticism. I
am afraid we shall not soon see them, but as a first step we should
learn to wish for them.
The second subsidiary action of the House of Lords is even more
important. Taking the House of Commons, not after possible, but
most unlikely improvements, but in matter of fact and as it stands, it
is overwhelmed with work. The task of managing it falls upon the
Cabinet, and that task is very hard. Every member of the Cabinet in
the Commons has to 'attend the House;' to contribute by his votes,
if not by his voice, to the management of the House. Even in so small
a matter as the education department, Mr Lowe,* a consummate
observer, spoke of the desirability of finding a chief 'not exposed to
the prodigious labour of attending the House of Commons.' It is all
but necessary that certain members of the Cabinet should be exempt
from its toil, and untouched by its excitement. But it is also necessary that they should have the power of explaining their views to the
nation; of being heard as other people are heard. There are various
plans for so doing, which I may discuss a little in speaking of the
House of Commons. But so much is evident: the House of Lords, for
its own members, attains this object; it gives them what no competing plan does give them—position. The leisured members of the
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Cabinet speak in the Lords with authority and power. They are not
administrators with a right to speech—clerks (as is sometimes suggested) brought down to lecture a House, but not to vote is it; but
they are the equals of those they speak to; they speak as they like, and
reply as they choose; they address the House, not with the 'bated
breath' of subordinates, but with the force and dignity of sure rank.
Life-peers would enable us to use this faculty of our constitution
more freely and more variously. It would give us a larger command
of able leisure; it would improve the Lords as a political pulpit, for it
would enlarge the list of its select preachers.
The danger of the House of Commons is, perhaps, that it will be
reformed too rashly; the danger of the House of Lords certainly is,
that it may never be reformed. Nobody asks that it should be so; it is
quite safe against rough destruction, but it is not safe against inward
decay. It may lose its veto as the Crown has lost its veto. If most of its
members neglect their duties, if all its members continue to be of
one class, and that not quite the best; if its doors are shut against
genius that cannot found a family, and ability which has not five
thousand a year, its power will be less year by year, and at last be
gone, as so much kingly power is gone—no one knows how. Its
danger is not assassination, but atrophy; not abolition, but decline.
6
THE HOUSE OF COMMONS
T H E dignified aspect of the House of Commons is altogether
secondary to its efficient use. It is dignified: in a government in
which the most prominent parts are good because they are very
stately, any prominent part, to be good at all, must be somewhat
stately. The human imagination exacts keeping in government as
much as in art; it will not be at all influenced by institutions which do
not match with those by which it is principally influenced. The
House of Commons needs to be impressive, and impressive it is: but
its use resides not in its appearance, but in its reality. Its office is not
to win power by awing mankind, but to use power in governing
mankind.
The main function of the House of Commons is one which we
know quite well, though our common constitutional speech does not
recognise it. The House of Commons is an electoral chamber; it is
the assembly which chooses our president. Washington and his
fellow-politicians contrived an electoral college, to be composed (as
was hoped) of the wisest people in the nation, which, after due
deliberation, was to choose for President the wisest man in the
nation. But that college is a sham; it has no independence and no life.
No one knows, or cares to know, who its members are. They never
discuss, and never deliberate. They were chosen to vote that Mr
Lincoln be President, or that Mr Breckenridge be President; they do
so vote, and they go home. But our House of Commons is a real
choosing body; it elects the people it likes. And it dismisses whom it
likes too. No matter that a few months since it was chosen to support
Lord Aberdeen or Lord Palmerston; upon a sudden occasion it ousts
the statesman to whom it at first adhered, and selects an opposite
statesman whom it at first rejected. Doubtless in such cases there is
tacit reference to probable public opinion; but certainly also there is
much free will in the judgment of the Commons. The House only
goes where it thinks in the end the nation will follow; but it takes
its chance of the nation following or not following; it assumes the
initiative, and acts upon its discretion or its caprice.
When the American nation has chosen its President, its virtue
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goes out of it, and out of the Transmissive College through which it
chooses. But because the House of Commons has the power of dismissal in addition to the power of election, its relations, to the
Premier are incessant. They guide him, and he leads them. He is to
them what they are to the nation. He only goes where he believes
they will go after him. But he has to take the lead; he must choose his
direction, and begin the journey. Nor must he flinch. A good horse
likes to feel the rider's bit; and a great deliberative assembly likes to
feel that it is under worthy guidance. A minister who succumbs to
the House,—who ostentatiously seeks its pleasure,—who does not
try to regulate it,—who will not boldly point out plain errors to
it, seldom thrives. The great leaders of Parliament have varied much,
but they have all had firmness. A great assembly is as soon spoiled by
over-indulgence as a little child. The whole life of English politics
is the action and reaction between Ministry and the Parliament.
The appointees strive to guide, and the appointors surge under the
guidance.
The elective is now the most important function of the House of
Commons. It is most desirable to insist, and be tedious, on this,
because our tradition ignores it. At the end of half the sessions of
Parliament, you will read in the newspapers, and you will hear even
from those who have looked close at the matter and should know
better, 'Parliament has done nothing this session. Some things were
promised in the Queen's speech, but they were only little things; and
most of them have not passed.' Lord Lyndhurst used for years to
recount the small outcomings of legislative achievement; and yet
those were the days of the first Whig Governments, who had more to
do in legislation, and did more, than any Government. The true
answer to such harangues as Lord Lyndhurst's by a Minister should
have been in the first person. He should have said firmly, 'Parliament
has maintained ME, and that was its greatest duty; Parliament has
carried on what, in the language of traditional respect, we call the
Queen's Government; it has maintained what wisely or unwisely it
deemed the best Executive of the English nation.'
The second function of the House of Commons is what I may call
an expressive function. It is its office to express the mind of the
English people on all matters which come before it. Whether it does
so well or ill I shall discuss presently.
The third function of Parliament is what I may call—preserving a
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sort of technicality even in familiar matters for the sake of
distinctness—the teaching function. A great and open council of
considerable men cannot be placed in the middle of a society without
altering that society. It ought to alter it for the better. It ought to
teach the nation what it does not know. How far the House of Commons can so teach, and how far it does so teach, are matters for
subsequent discussion.
Fourthly, the House of Commons has what may be called an
informing function—a function which though in its present form
quite modern is singularly analogous to a mediaeval function. In old
times one office of the House of Commons was to inform the Sovereign what was wrong. It laid before the Crown the grievances and
complaints of particular interests. Since the publication of the Parliamentary debates a corresponding office of Parliament is to lay
these same grievances, these same complaints, before the nation,
which is the present sovereign. The nation needs it quite as much as
the king ever needed it. A free people is indeed mostly fair, liberty
practises men in a give-and-take, which is the rough essence of justice. The English people, possibly even above other free nations, is
fair. But a free nation rarely can be—and the English nation is not—
quick of apprehension. It only comprehends what is familiar to it;
what comes into its own experience, what squares with its own
thoughts. 'I never heard such a thing in my life,' the middle-class
Englishman says, and he thinks he so refutes an argument. The
common disputant cannot say in reply that his experience is but
limited, and that the assertion may be true, though he had never met
with anything at all like it. But a great debate in Parliament does
bring home something of this feeling. Any notion, any creed, any
feeling, any grievance -which can get a decent number of English
members to stand up for it, is felt by almost all Englishmen to be
perhaps false and pernicious opinion, but at any rate possible—an
opinion within the intellectual sphere, an opinion to be reckoned
with. And it is an immense achievement. Practical diplomatists say
that a free government is harder to deal with than a despotic government: you may be able to get the despot to hear the other side; his
ministers, men of trained intelligence, will be sure to know what
makes against them; and they may tell him. But a free nation
never hears any side save its own. The newspapers only repeat the
side their purchasers like: the favourable arguments are set out,
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elaborated, illustrated; the adverse arguments maimed, misstated,
confused. The worst judge, they say, is a deaf judge; the most dull
government is a free government on matters its ruling classes^ will
not hear. I am disposed to reckon it as the second function of Parliament in point of importance, that to some extent it makes us hear
what otherwise we should not.
Lastly, there is the function of legislation, of which of course it
would be preposterous to deny the great importance, and which I
only deny to be as important as the executive management of the
whole state, or the political education given by Parliament to the
whole nation. There are, I allow, seasons when legislation is more
important than either of these. The nation may be misfitted with its
laws, and need to change them: some particular corn law may hurt all
industry, and it may be worth a thousand administrative blunders to
get rid of it. But generally the laws of a nation suit its life; special
adaptations of them are but subordinate; the administration and
conduct of that life is the matter which presses most. Nevertheless,
the statute-book of every great nation yearly contains many important new laws, and the English statute-book does so above any. An
immense mass, indeed, of the legislation is not, in the proper language of jurisprudence, legislation at all. A law is a general command
applicable to many cases. The 'special acts' which crowd the statutebook and weary parliamentary committees are applicable to one case
only. They do not lay down rules according to which railways shall
be made, they enact that such a railway shall be made from this place
to that place, and they have no bearing upon any other transaction.
But after every deduction and abatement, the annual legislation
of Parliament is a result of singular importance; were it not so, it
could not be, as it often is considered, the sole result of its annual
assembling.
Some persons will perhaps think that I ought to enumerate a sixth
function of the House of Commons—a financial function. But I do
not consider that, upon broad principle, and omitting legal technicalities, the House of Commons has any special function with regard to
financial different from its functions with respect to other legislation. It is to rule in both, and to rule in both through Cabinet.
Financial legislation is of necessity a yearly recurring legislation; but
frequency of occurrence does not indicate a diversity of nature or
compel an antagonism of treatment.
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In truth, the principal peculiarity of the House of Commons in
financial affairs is now-a-days not a special privilege, but an
exceptional disability. On common subjects any member can propose
anything, but not on money,—the minister only can proposcto tax
the people. This principle is commonly involved in mediaeval metaphysics as to the prerogative of the Crown, but it is as useful in the
nineteenth century as in the fourteenth, and rests on as sure a principle. The House of Commons—now that it is the true sovereign,
and appoints the real executive—has long ceased to be the checking,
sparing, economical body it once was. It now is more apt to spend
money than the minister of the day. I have heard a very experienced
financier say, 'If you want to raise a certain cheer in the House of
Commons make a general panegyric on economy; if you want to
invite a sure defeat, propose a particular saving.' The process is
simple. Every expenditure of public money has some apparent public object; those who wish to spend the money expatiate on that
object; they say, 'What is £50,000 to this great country? Is this a time
for cheeseparing objection? Our industry was never so productive;
our resources never so immense. What is £50,000 in comparison
with this great national interest?' The members who are for the
expenditure always come down; perhaps a constituent or a friend
who will profit by the outlay, or is keen on the object, has asked them
to attend; at any rate, there is a popular vote to be given, on which
the newspapers—always philanthropic, and sometimes talked over—
will be sure to make encomiums. The members against the expenditure rarely come down of themselves; why should they become
unpopular without reason? The object seems decent; many of its
advocates are certainly sincere: a hostile vote will make enemies, and
be censured by the journals. If there were not some check, the
'people's house' would soon outrun the people's money.
That check is the responsibility of the Cabinet for the national
finance. If anyone could propose a tax, they might let the House
spend as it would, and wash their hands of the matter; but now, for
whatever expenditure is sanctioned—even when it is sanctioned
against the ministry's wish—the ministry must find the money.
Accordingly, they have the strongest motive to oppose extra outlay.
They will have to pay the bill for it; they will have to impose
taxation, which is always disagreeable, or suggest loans which, under
ordinary circumstances, are shameful. The ministry is (so to speak)
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the breadwinner of the political family, and has to meet the Cost of
philanthropy and glory; just as the head of a family has to pay for the
charities of his wife and the toilette of his daughters.
In truth, when a Cabinet is made the sole executive, it follows it
must have the sole financial charge, for all action costs money, all
policy depends on money, and it is in adjusting the relative goodness
of action and policies that the executive is employed.
From a consideration of these functions, it follows that we are
ruled by the House of Commons; we are indeed, so used to be so
ruled, that it does not seem to be at all strange. But of all odd forms
of government, the oddest really is government by a public meeting.
Here are 658 persons, collected from all parts of England, different
in nature, different in interests, different in look and language. If we
think what an empire the English is, how various are its components,
how incessant its concerns, how immersed in history its policy: if we
think what a vast information, what a nice discretion, what a consistent will ought to mark the rulers of that empire, we shall be surprised when we see them. We see a changing body of miscellaneous
persons, sometimes few, sometimes many, never the same for an
hour; sometimes excited, but mostly dulled and half weary,—
impatient of eloquence, catching at any joke as an alleviation. These
are the persons who rule the British empire,—who rule England,—
who rule Scotland,—who rule Ireland,—who rule a great deal of
Asia,—who rule a great deal of Polynesia,—who rule a great deal
of America, and scattered fragments everywhere.
Paley said many shrewd things,* but he never said a better thing
than that it was much harder to make men see a difficulty than
comprehend the explanation of it. The key to the difficulties of most
discussed and unsettled questions is commonly in their undiscussed
parts; they are like the background of a picture which looks obvious,
easy, just what any one might have painted, but which in fact sets the
figures in their right position, chastens them, and makes them what
they are. Nobody will understand parliamentary government who
fancies it an easy thing, a natural thing, a thing not needing explanation. You have not a perception of the first elements in this matter
till you know that government by a club is a standing wonder.
There has been a capital illustration lately how helpless many
English gentlemen are when called together on a sudden. The
Government, rightly or wrongly, thought fit to entrust the quarter-
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sessions of each county with the duty of combating its cattle plague;*
but the scene in most 'shire halls' was unsatisfactory. There was the
greatest difficulty in getting, not only a right decision, but any decision. I saw one myself which went thus. The chairman proposed a
very complex resolution, in which there was much which every one
liked, and much which every one disliked, though, of course, the
favourite parts of some were the objectionable parts to others. The
resolution got, so to say, wedged in the meeting; everybody suggested amendments; one amendment was carried which none were
satisfied with, and so the matter stood over. It is a saying in England,
'a big meeting never does anything;' and yet we are governed by the
House of Commons,—by 'a big meeting.'
It may be said that the House of Commons does not rule, it only
elects the rulers. But there must be something special about it to
enable it to do that. Suppose the Cabinet were elected by a London
club, what confusion there would be, what writing and answering!
'Will you speak to So-and-So, and ask him to vote for my man?'
would be heard on every side. How the wife of A and the wife of B
would plot to confound the wife of C. Whether the club elected
under the dignified shadow of a queen, or without the shadow,
would hardly matter at all; if the substantial choice was in them, the
cnfusion and intrigue would be there too. I propose to begin this
paper by asking, not why the House of Commons governs well? but
the fundamental—almost unasked-question—how the House of
Commons comes to be able to govern at all?
The House of Commons can do work which the quarter-sessions
or clubs cannot do, because it is an organised body, while quartersessions and clubs are unorganised. Two of the greatest orators in
England—Lord Brougham and Lord Bolingbroke*—spent much
eloquence in attacking party government. Bolingbroke probably
knew what he was doing; he was a consistent opponent of the power
of the Commons; he wished to attack them in a vital part. But Lord
Brougham does not know; he proposes to amend the parliamentary
government by striking out the very elements which make parliamentary government possible. At present the majority of Parliament
obey certain leaders; what those leaders propose they support, what
those leaders reject they reject. An old Secretary of the Treasury*
used to say, 'This is a bad case, an indefensible case. We must apply
our majority to this question.' That secretary lived fifty years ago,
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before the Reform Bill, when majorities were very blind, and very
'applicable.' Now-a-days, the power of leaders over their followers is
strictly and wisely limited: they can take their followers but a;httle
way, and that only in certain directions. Yet still there are leaders and
followers. On the Conservative side of the House there are vestiges
of the despotic leadership even now. A cynical politician is said to
have watched the long row of county members, so fresh and
respectable-looking, and muttered, 'By Jove, they are the finest brute
votes in Europe!'* But all satire apart, the principle of Parliament is
obedience to leaders. Change your leader if you will, take another if
you will, but obey No. i while you serve No. i, and obey No. 2 when
you have gone over to No. 2. The penalty of not doing so, is the
penalty of impotence. It is not that you will not be able to any good,
but you will not be able to do anything at all. If everybody does what
he thinks right, there will be 657 amendments to every motion, and
none of them will be carried or the motion either.
The moment, indeed, that we distinctly conceive that the House
of Commons is mainly and above all things an elective assembly, we
at once perceive that party is of its essence. There never was an
election without a party. You cannot get a child into an asylum without a combination. At such places you may see 'Vote for orphan A'
upon a placard, and 'Vote for orphan B (also an idiot!!!)' upon a
banner, and the party of each is busy about its placard and banner.
What is true at such minor and momentary elections must be much
more true in a great and constant election of rulers. The House of
Commons lives in a state of perpetual potential choice: at any
moment it can choose a ruler and dismiss a ruler. And therefore
party is inherent in it, is bone of its bone, and breath of its breath.
Secondly, though the leaders of party no longer have the vast
patronage of the last century with which to bribe, they can coerce by
a threat far more potent than any allurement:—they can dissolve.
This is the secret which keeps parties together. Mr Cobden most
justly said,* 'He had never been able to discover what was the proper
moment, according to members of Parliament, for a dissolution. He
had heard them say they were ready to vote for everything else, but
he had never heard them say they were ready to vote for that.' Efficiency in an assembly requires a solid mass of steady votes; and these
are collected by a deferential attachment to particular men, or by a
belief in the principles those men represent, and they are maintained
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by fear of those men—by the fear that if you vote against them, you
may yourself soon not have a vote at all.
Thirdly, it may seem odd to say so, just after inculcating that party
organisation is the vital principle of representative government,
but—that organisation is permanently efficient, because it is not
composed of warm partisans. The body is eager, but the atoms are
cool. If it were otherwise, parliamentary government would become
the worst of governments—a sectarian government. The party in
power would go all the lengths their orators proposed—all that their
formulae enjoined, as far as they had ever said they would go. But the
partisans of the English Parliament are not of such a temper. They
are Whigs, or Radicals, or Tories, but they are much else too. They
are common Englishmen, and, as Father Newman complains,* 'hard
to be worked up to the dogmatic level.' They are not eager to press
the tenets of their party to impossible conclusions. On the contrary,
the way to lead them—the best and acknowledged way—is to affect a
studied and illogical moderation. You may hear men say, 'Without
committing myself to the tenet that 3 + 2 make 5, though I am free to
admit that the honourable member for Bradford has advanced very
grave arguments in behalf of it, I think I may, with the permission of
the Committee, assume that 2 + 3 do not make 4, which will be a
sufficient basis for the important propositions which I shall venture
to submit on the present occasion.' This language is very suitable to
the greater part of the House of Commons. Most men of business
love a sort of twilight. They have lived all their lives in an atmosphere of probabilities and of doubt, where nothing is very clear,
where there are some chances for many events, where there is much
to be said for several courses, where nevertheless one course must be
determinedly chosen and fixedly adhered to. They like to hear
arguments suited to this intellectual haze. So far from caution or
hesitation in the statement of the argument striking them as an
indication of imbecility, it seems to them a sign of practicality. They
got rich themselves by transactions of which they could not have
stated the argumentative ground—and all they ask for is a distinct,
though moderate conclusion, that they can repeat when asked;
something which they feel not to be abstract argument, but abstract
argument diluted and dissolved in real life. 'There seem to me,' an
impatient young man once said, 'to be no stays in Peel's arguments.'*
And that was why Sir Robert Peel was the best leader of the
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Commons in our time; we like to have the rigidity taken out of an
argument, and the substance left.
Nor indeed, under our system of government, are the leaders
themselves of the House of Commons, for the most part, eager to
carry party conclusions too far. They are in contact with reality. An
Opposition, on coming into power, is often like a speculative merchant whose bills become due. Ministers have to make good their
promises, and they find a difficulty in so doing. They have said the
state of things is so and so, and if you give us the power we will do
thus and thus. But when they come to handle the official documents,
to converse with the permanent under-secretary—familiar with disagreeable facts, and though in manner most respectful, yet most
imperturbable in opinion—very soon doubts intervene. Of course,
something must be done: the speculative merchant cannot forget his
bills; the late Opposition cannot, in office, forget those sentences
which terrible admirers in the country still quote. But just as the
merchant asks his debtor, 'Could you not take a bill at four months?'
so the new minister says to the permanent under-secretary, 'Could
you not suggest a middle course? I am of course not bound by mere
sentences used in debate; I have never been accused of letting a false
ambition of consistency warp my conduct; but,' &c, &c. And the end
always is, that a middle course is devised which looks as much as
possible like what was suggested in opposition, but which is as much
as possible what patent facts—facts which seem to live in the office,
so teazing and unceasing are they—prove ought to be done.
Of all modes of enforcing moderation on a party, the best is to
contrive the members of that party shall be intrinsically moderate,
careful, and almost shrinking men; and the next best to contrive, that
the leaders of the party, who have protested most in its behalf, shall
be placed in the closest contact with the actual world. Our English
system contains both contrivances: it makes party government permanent and possible in the sole way in which it can be so, by making
it mild.
But these expedients, though they sufficiently remove the defects
which make a common club or quarter-sessions impotent, would not
enable the House of Commons to govern England. A representative
public meeting is subject to a defect over and above those of other
public meetings. It may not be independent. The constituencies may
not let it alone. But if they do not, all the checks which have been
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enumerated upon the evils of a party organisation would be futile.
The feeling of a constituency is the feeling of a dominant party, and
that feeling is elicited, stimulated, sometimes even manufactured by
the local political agent. Such an opinion could not be moderate;
could not be subject to effectual discussion; could not be in close
contact with pressing facts; could not be framed under a chastening
sense of near responsibility; could not be formed as those form their
opinions who have to act upon them. Constituency government is
the precise opposite of parliamentary government. It is the government of immoderate persons far from the scene of action, instead of
the government of moderate persons close to the scene of action; it is
the judgment of persons judging in the last resort and without a
penalty, in lieu of persons judging in fear of a dissolution, and ever
conscious that they are subject to an appeal.
Most persons would admit these conditions of parliamentary
government when they read them, but two at least of the most
prominent ideas in the public mind are inconsistent with them. The
scheme to which the arguments of our demagogues distinctly tend,
and the scheme to which the predilections of some most eminent
philosophers cleave, are both so. They would not only make parliamentary government work ill, but they would prevent its working at
all; they would not render it bad for they would make it impossible.
The first of these is the ultra-democratic theory. This theory
demands that every man of twenty-one years of age (if not every
woman, too) should have an equal vote in electing Parliament. Suppose that last year there were twelve million adult males in England.
Upon this theory each man is to have one twelve-millionth share in
electing a Parliament; the rich and wise are not to have, by explicit
law, more votes than the poor and stupid; nor are any latent contrivances to give them an influence equivalent to more votes. The
machinery for carrying out such a plan is very easy. At each census
the country ought to be divided into 658 electoral districts, in each
of which the number of adult males should be the same; and these
districts ought to be the only constituencies, and elect the whole
Parliament. But if the above prerequisites are needful for parliamentary government, that Parliament would not work.
Such a Parliament could not be composed of moderate men. The
electoral districts would be, some of them, in purely agricultural
places, and in these the parson and the squire would have almost
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unlimited power. They would be able to drive or send to the poll an
entire labouring population. These districts would return an
unmixed squirearchy. The scattered small towns, which now sjend so
many members to Parliament, would be lost in the clownish mass;
their votes would send to Parliament no distinct members. The agricultural part of England would choose its representatives from
quarter-sessions exclusively. On the other hand, a large part of the
constituencies would be town districts; and these would send up
persons representing the beliefs or the unbeliefs of the lowest classes
in their towns. They would, perhaps, be divided between the genuine representatives of the artizans,—not possibly of the best of the
artizans, who are a select and intellectual class, but of the common
order of workpeople,—and the merely pretended members for that
class, whom I may call the members for the public-houses. In all the
big towns in which there is electioneering these houses are the
centres of illicit corruption and illicit management. There are pretty
good records of what that corruption and management are, but there
is no need to describe them here. Everybody will understand what
sort of things I mean, and the kind of unprincipled members that are
returned by them. Our new Parliament, therefore, would be made up
of two sorts of representatives from the town lowest class, and one
sort of representatives from the agricultural lowest class. The genuine representatives of the country would be men of one marked sort,
and the genuine representatives for the county men of another
marked sort, but very opposite: one would have the prejudices of
town artizans, and the other the prejudices of county magistrates.
Each class would speak a language of its own; each would be unintelligible to the other; and the only thriving class would be the immoral
representatives, who were chosen by corrupt machination, and who
would probably get a good profit on the capital they laid out in that
corruption. If it be true that a parliamentary government is possible
only when the overwhelming majority of the representatives are men
essentially moderate, of no marked varieties, free from class prejudices, this ultra-democratic Parliament could not maintain that
government, for its members would be remarkable for two sorts
of moral violence and one sort of immoral.
I do not for a moment rank the scheme of Mr Hare* with the
scheme of the ultra-democrats. One can hardly help having a feeling
of romance about it. The world seems growing young when grave
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old lawyers and mature philosophers propose a scheme promising so
much. It is from these classes that young men suffer commonly the
chilling demonstration that their fine plans are opposed to rooted
obstacles, that they are repetitions of other plans which failed long
ago, and that we must be content with the very moderate results of
tried machinery. But Mr Hare and Mr Mill offer as the effect of their
new scheme results as large and improvements as interesting as a
young enthusiast ever promised to himself in his happiest mood.
I do not give any weight to the supposed impracticability of Mr
Hare's scheme because it is new. Of course it cannot be put in practice till it is old. A great change of this sort happily cannot be
sudden; a free people cannot be confused by new institutions which
they do not understand, for they will not adopt them till they understand them. But if Mr Hare's plan would accomplish what its friends
say, or half what they say, it would be worth working for, if it were
not adopted till the year 1966. We ought incessantly to popularise the
principle by writing; and what is better than writing, small preliminary bits of experiment. There is so much that is wearisome and
detestable in all other election machineries, that I well understand,
and wish I could share, the sense of relief with which the believers in
this scheme throw aside all their trammels, and look to an almost
ideal future, when this captivating plan is carried.
Mr Hare's scheme cannot be satisfactorily discussed in the
elaborate form in which he presents it. No common person readily
apprehends all the details in which, with loving care, he has
embodied it. He was so anxious to prove what could be done, that he
has confused most people as to what it is. I have heard a man say, 'He
never could remember it two days running.' But the difficulty which
I feel is fundamental, and wholly independent of detail.
There are two modes in which constituencies may be made. First,
the law may make them, as in England and almost everywhere: the
law may say such and such qualifications shall give a vote for constituency X; those who have that qualification shall be constituency
X. These are what we may call compulsory constituencies, and we
know all about them. Or, secondly, the law may leave the electors
themselves to make them. The law may say all the adult males of a
country shall vote, or those males who can read and write, or those
who have £50 a year, or any persons any way defined, and then leave
those voters to group themselves as they like. Suppose there were
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658,000 voters to elect the House of Commons; it is possible for.the
legislature to say, 'We do not care how you combine. On a given day
let each set of persons give notice in what group they mean to vote; if
every voter gives notice, and every one looks to make the most of his
vote, each group will have just 1,000. But the law shall not make this
necessary—it shall take the 658 most numerous groups, no matter
whether they have 2,000, 1,000, or 900, or 800 votes,—the most
numerous groups, whatever their number may be; and these shall be
the constituencies of the nation.' These are voluntary constituencies,
if I may so call them; the simplest kind of voluntary constituencies.
Mr Hare proposes a far more complex kind; but to show the merits
and demerits of the voluntary principle the simplest form is much
the best.
The temptation to that principle is very plain. Under the compulsory form of constituency the votes of the minorities are thrown
away. In the city of London, now, there are many Tories, but all the
members are Whigs; every London Tory, therefore, is by law and
principle misrepresented: his city sends to Parliament not the member whom he wished to have, but the member he wished not to have.
But upon the voluntary system the London Tories, who are far more
than 1,000 in number, may combine; they may make a constituency,
and return a member. In many existing constituencies the disfranchisement of minorities is hopeless and chronic. I have myself
had a vote for an agricultural county for twenty years, and I am a
Liberal. But two Tories have always been returned, and all my life
will be returned. As matters now stand, my vote is of no use. But
if I could combine with 1,000 other Liberals in that and other
Conservative counties, we might choose a Liberal member.
Again, this plan gets rid of all our difficulties as to the size of
constituencies. It is said to be unreasonable that Liverpool should
return only the same number of members as King's Lynn or Lyme
Regis; but upon the voluntary plan, Liverpool could come down to
King's Lynn. The Liberal minority in King's Lynn could communicate with the Liberal minority in Liverpool, and make up 1,000; and
so everywhere. The numbers of popular places would gain what is
called their legitimate advantage; they would, when constituencies
are voluntarily made, be able to make, and be willing to make, the
greatest number of constituencies.
Again, the admirers of a great man could make a worthy constitu-
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ency for him. As it is, Mr Mill was returned by the electors of
Westminster; and they have never, since they had members, done
themselves so great an honour. But what did the electors of Westminster know of Mr Mill? What fraction of his mind could be
imagined by any percentage of their minds? A great deal of his
genius most of them would not like. They meant to do homage to
mental ability, but it was the worship of an unknown god—if ever
there was such a thing in this world. But upon the voluntary plan,
one thousand out of the many thousand students of Mr Mill's books
could have made an appreciating constituency for him.
I could reckon other advantages, but I have to object to the
scheme, not to recommend it. What are the counterweights which
overpower these merits? I reply that the voluntary composition of
constituencies appears to me inconsistent with the necessary prerequisites of parliamentary government as they have been just laid
down.
Under the voluntary system, the crisis of politics is not the
election of the member, but the making the constituency. Presidentmaking is already a trade in America; and constituency-making
would, under the voluntary plan, be a trade here. Every party would
have a numerical problem to solve. The leaders would say, 'We have
350,000 votes, so we must take care to have 350 members;' and the
only way to obtain them is to organise. A man who wanted to compose part of a liberal constituency must not himself hunt for 1,000
other Liberals; if he did, after writing 10,000 letters, he would
probably find he was making part of a constituency of 100, all whose
votes would be thrown away, the constituency being too small to be
reckoned. Such a Liberal must write to the great Registration
Association in Parliament Street; he must communicate with its able
managers, and they would soon use his vote for him. They would
say, 'Sir, you are late; Mr Gladstone, sir, is full. He got his 1,000 last
year. Most of the gentlemen you read of in the papers are full. As
soon as a gentleman makes a nice speech, we get a heap of letters to
say, "Make us into that gentleman's constituency." But we cannot do
that. Here is our list. If you do not want to throw your vote away, you
must be guided by us: here are three very satisfactory gentlemen
(and one is an Honourable): you may vote for either of these, and we
will write your name down; but if you go voting wildly, you'll be
thrown out altogether.'
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The evident result of this organisation would be the return of
party men mainly. The member-makers would look, not for
independence, but for subservience—and they could hardly be
blamed for so doing. They are agents for the Liberal party; and, as
such, they should be guided by what they take to be the wishes of
their principal. The mass of the Liberal party wishes measure A,
measure B, measure C. The managers of the registration—the
skilled manipulators—are busy men. They would say, 'Sir, here is
our card; if you want to get into parliament on our side, you must go
for that card; it was drawn up by Mr Lloyd; he used to be engaged on
railways, but since they passed this new voting plan, we get him to
attend to us; it is a sound card; stick to that and you will be right.'
Upon this (in theory) voluntary plan, you would get together a set of
members bound hard and fast with party bands and fetters, infinitely
tighter than any members now.
Whoever hopes anything from desultory popular action if
matched against systematised popular action, should consider the
way in which the American President is chosen. The plan was that
the citizens at large should vote for the statesman they liked best.
But no one does anything of the sort: They vote for the ticket made
by the 'caucus,' and the caucus is a sort of representative meeting
which sits voting and voting till they have cut out all the known men
against whom much is to be said, and agreed on some unknown man
against whom there is nothing known, and therefore nothing to be
alleged. Caucuses, or their equivalent, would be far worse here in
constituency-making than there in President-making, because on
great occasions the American nation can fix on some one great man
whom it knows, but the English nation could not fix on 658 great
men and choose them. It does not know so many, and if it did, would
go wrong in the difficulties of the manipulation.
But though a common voter could only be ranged in an effectual
constituency, and a common candidate only reach a constituency by
obeying the orders of the political election-contrivers on his side,
certain voters and certain members would be quite independent of
both. There are organisations in this country which would soon
make a set of constituencies for themselves. Every chapel would be
an office for vote-transferring before the plan had been known three
months. The Church would be much slower in learning it, and much
less handy in using it; but would learn. At present the Dissenters are
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a most energetic and valuable component of the Liberal party; but
under the voluntary plan they would not be a component—they
would be a separate, independent element. We now propose to group
boroughs; but then they would combine chapels. There would be a
member for the Baptist congregation of Tavistock, cum Totnes,
cum, &c &c.
The full force of this cannot be appreciated except by referring to
the former proof that the mass of a Parliament ought to be men of
moderate sentiments, or they will elect an immoderate ministry, and
enact violent laws. But upon the plan suggested, the House would be
made up of party politicians selected by a party committee, chained
to that committee and pledged to party violence, and of characteristic, and therefore immoderate representatives, for every 'ism' in
all England. Instead of a deliberative assembly of moderate and
judicious men, we should have a various compound of all sorts of
violence.
I may seem to be drawing a caricature, but I have not reached the
worst. Bad as these members would be, if they were left to
themselves—if, in a free Parliament, they were confronted with the
perils of government, close responsibility might improve them and
make them tolerable. But they would not be left to themselves. A
voluntary constituency will nearly always be a despotic constituency.
Even in the best case, where a set of earnest men choose a member to
expound their earnestness, they will look after him to see that he
does expound it. The members will be like the minister of a dissenting congregation. That congregation is collected by a unity of sentiment in doctrine A, and the preacher is to preach doctrine A; if he
does not, he is dismissed. At present the member is free because the
constituency is not in earnest: no constituency has an acute, accurate
doctrinal creed in politics. The law made the constituencies by geographical divisions; and they are not bound together by close unity
of belief. They have vague preferences for particular doctrines; and
that is all. But a voluntary constituency would be a church with
tenets; it would make its representative the messenger of its mandates, and the delegate of its determinations. As in the case of a
dissenting congregation, one great minister sometimes rules it,
while ninety-nine ministers in the hundred are ruled by it, so here
one noted man would rule his electors, but the electors would rule all
the others.
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Thus, the members for a good voluntary constituency woulcjl be
hopelessly enslaved, because of its goodness; but the members for a
bad voluntary constituency would be yet more enslaved because of
its badness. The makers of these constituencies would keep the despotism in their own hands. In America there is a division of politicians into wire-pullers and blowers; under the voluntary system the
member of Parliament would only be the momentary mouthpiece—the impotent blower; while the constituency-maker would be
the latent wire-puller—the constant autocrat. He would write to
gentlemen in Parliament, and say, 'You were elected upon "the Liberal ticket;" if you deviate from that ticket you cannot be chosen
again.' And there would be no appeal for a common-minded man.
He is no more likely to make a constituency for himself than a mole
is likely to make a planet.
It may indeed be said that against a septennial Parliament such
machinations would be powerless; that a member elected for seven
years might defy the remonstrances of an earnest constituency, or
the imprecations of the latent manipulators. But after the voluntary
composition of constituencies, there would soon be but short-lived
Parliaments. Earnest constituencies would exact frequent elections;
they would not like to part with their virtue for a long period; it
would anger them to see it used contrary to their wishes, amid circumstances which at the election no one thought of. A seven years'
Parliament is often chosen in one political period, lasts through a
second, and is dissolved in a third. A constituency collected by law
and on compulsion endures this change because it has no collective
earnestness; it does not mind seeing the power it gave used in a
manner that it could not have foreseen. But a self-formed constituency of eager opinions, a missionary constituency, so to speak, would
object; it would think it its bounden duty to object; and the crafty
manipulators, though they said nothing, in silence would object still
more. The two together would enjoin annual elections, and would
rule their members unflinchingly.
The voluntary plan, therefore, when tried in this easy form, is
inconsistent with the extrinsic independence as well as with the
inherent moderation of a Parliament—two of the conditions which,
as we have seen, are essential to the bare possibility of Parliamentary
government. The same objections, as is inevitable, adhere to that
principle under its more complicated forms. It is in vain to pile detail
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on detail when the objection is one of first principle. If the above
reasoning be sound, compulsory constituencies are necessary, voluntary constituencies destructive; the optional transferability of votes
is not a salutary aid, but a ruinous innovation.
I have dwelt upon the proposal of Mr Hare and upon the
ultra-democratic proposal, not only because of the high intellectual
interest of the former and the possible practical interest of the latter,
but because they tend to bring into relief two at least of the necessary
conditions of parliamentary government. But besides these necessary qualities which are needful before a parliamentary government
can work at all, there are some additional prerequisites before it can
work well. That a House of Commons may work well it must perform, as we saw, five functions well: it must elect a ministry well,
legislate well, teach the nation well, express the nation's will well,
bring matters to the nation's attention well.
The discussion has a difficulty of its own. What is meant by 'well?'
Who is to judge? Is it to be some panel of philosophers, some fancied
posterity, or some other outside authority. I answer, no philosophy,
no posterity, no external authority, but the English nation here and
now.
Free government is self-government. A government of the people
by the people. The best government of this sort is that which the
people think best. An imposed government, a government like that
of the English in India, may very possibly be better; it may represent
the views of a higher race than the governed race, but it is not
therefore a free government. A free government is that which the
people subject to it voluntarily choose. In a casual collection of loose
people the only possible free government is a democratic government. Where no one knows or cares for, or, respects any one else all
must rank equal; no one's opinion can be more potent than that of
another. But, as has been explained, a deferential nation has a structure of its own. Certain persons are by common consent agreed to be
wiser than others, and their opinion is, by consent, to rank for much
more than its numerical value. We may in these happy nations weigh
votes as well as count them, though in less favoured countries we can
count only. But in free nations, the votes so weighed or so counted
must decide. A perfect free government is one which decides perfectly according to those votes; an imperfect, one which so decides
imperfectly; a bad, one which does not so decide at all. Public
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opinion is the test of this polity; the best opinion which, with its
existing habits of deference, the nation will accept: if the free government goes by that opinion, it is a good government of its species;
if it contravenes that opinion, it is a bad one.
Tried by this rule the House of Commons does its appointing
business well. It chooses rulers as we wish rulers to be chosen. If it
did not, in a speaking and writing age we should soon know. I have
heard a great Liberal statesman say, 'The time was coming when we
must advertise for a grievance.' What a good grievance it would be
were the ministry appointed and retained by the Parliament a ministry detested by the nation. An anti-present government league
would be instantly created, and it would be more instantly powerful
and more instantly successful than the Anti-Corn Law League.
It has, indeed, been objected that the choosing business of Parliament is done ill, because it does not choose strong governments. And
it is certain that when public opinion does not definitely decide upon
a marked policy, and when in consequence parties in the Parliament
are nearly even, individual cupidity and changeability may make
Parliament change its appointees too often: may induce them never
enough to trust any of them; may make it keep all of them under a
suspended sentence of coming dismissal. But the experience of Lord
Palmerston's second Government proves, I think, that these fears
are exaggerated. When the choice of a nation is really fixed on a
statesman, Parliament will fix upon him too. The parties in the Parliament of 1859 were as nearly divided as any probable Parliament; a
great many Liberals did not much like Lord Palmerston, and they
would have gladly co-operated in an attempt to dethrone him. But
the same influences acted on Parliament within which acted on the
nation without. The moderate men of both parties were satisfied that
Lord Palmerston's was the best Government, and they therefore
preserved it though it was hated by the immoderate on both sides.
We have then found by a critical instance that a government supported by what I may call 'the common element,'—by the likeminded men of unlike parties,—will be retained in power, though
parties are even, and though, as Treasury counting reckons, the
majority is imperceptible. If happily, by its intelligence and
attractiveness, a cabinet can gain a hold upon the great middle part
of Parliament, it will continue to exist notwithstanding the hatching
of small plots and the machinations of mean factions.
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On the whole, I think it indisputable that the selecting task of
Parliament is performed as well as public opinion wishes it to be
performed; and if we want to improve that standard, we must first
improve the English nation, which imposes that standard. Of the
substantial part of its legislative task the same, too, may I think
be said. The manner of our legislation is indeed detestable, and the
machinery for settling that manner odious. A committee of the
whole House, dealing, or attempting to deal, with the elaborate
clauses of a long Bill, is a wretched specimen of severe but misplaced
labour. It is sure to wedge some clause into the Act, such as that
which the judge said 'seemed to have fallen by itself, perhaps, from
heaven, into the mind of the legislature,' so little had it to do with
anything on either side or around it. At such times government by a
public meeting displays its inherent defects, and is little restrained
by its necessary checks. But the essence of our legislature may be
separated from its accidents. Subject to two considerable defects I
think Parliament passes laws as the nation wish to have them passed.
Thirty years ago this was not so. The nation had outgrown its
institutions, and was cramped by them. It was a man in the clothes of
a boy; every limb wanted more room, and every garment to be fresh
made. 'D—mn me,' said Lord Eldon* in the dialect of his age, 'if I
had to begin life again I would begin as an agitator.' The shrewd old
man saw that the best life was that of a miscellaneous objector to the
old world, though he loved that world, believed in it, could imagine
no other. But he would not say so now. There is no worse trade than
agitation at this time. A man can hardly get an audience if he wishes
to complain of anything. Now-a-days, not only does the mind and
policy of Parliament (subject to the exceptions before named) possess the common sort of moderation essential to the possibility of
parliamentary government, but also that exact gradation, that precise species of moderation, most agreeable to the nation at large. Not
only does the nation endure a parliamentary government, which it
would not do if Parliament were immoderate, but it likes parliamentary government. A sense of satisfaction permeates the country
because most of the country feels it has got the precise thing that
suits it.
The exceptions are two. First. That Parliament leans too much to
the opinions of the landed interest. The Cattle Plague Act is a conspicuous instance of this defect. The details of that Bill may be good
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or bad, and its policy wise or foolish. But the manner in which it was
hurried through the House savoured of despotism. The cotton trade
or the wine trade could not, in their maximum of perfl, have
obtained such aid in such a manner. The House of Commons would
hear of no pause and would heed no arguments. The greatest number of them feared for their incomes. The land of England returns
many members annually for the counties; these members the constitution gave them. But what is curious is that the landed interest gives
no seats to other classes, but takes plenty of seats from other classes.
Half the boroughs in England are represented by considerable landowners and when rent is in question, as in the cattle case, they think
more of themselves than of those who sent them. In number the
landed gentry in the House far surpass any other class. They have,
too, a more intimate connection with one another; they were educated at the same schools; know one another's family name from
boyhood; form a society; are the same kind of men; marry the same
kind of women. The merchants and manufacturers in Parliament are
a motley race—one educated here, another there, a third not educated at all; some are of the second generation of traders, who consider self-made men intruders upon an hereditary place; others are
self-made, and regard the men of inherited wealth, which they did
not make and do not augment, as beings of neither mind nor place,
inferior to themselves because they have no brains, and inferior to
lords because they have no rank. Traders have no bond of union, no
habits of intercourse; their wives, if they care for society, want to see
not the wives of other such men, but 'better people,' as they say—the
wives of men certainly with land, and, if Heaven help, with titles.
Men who study the structure of Parliament, not in abstract books,
but in the concrete London world, wonder not that the landed interest is very powerful, but that it is not despotic. I believe it would be
despotic if it were clever, or rather if its representatives were so, but
it has a fixed device to make them_stupid. The counties not only elect
landowners, which is natural and perhaps wise, but also elect only
landowners of their own county, which is absurd. There is no free
trade in agricultural mind; each county prohibits the import of able
men from other counties. That is why eloquent sceptics—
Bolingbroke and Disraeli*—have been so apt to lead the unsceptical
Tories. They will have people with a great piece of land in a particular spot, and of course these people generally cannot speak, and often
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cannot think. And so eloquent men who laugh at the party come to
lead the party. The landed interest has much more influence than it
should have; but it wastes that influence so much that the excess is,
except on singular occurrences (like the cattle plague), of secondary
moment.
It is almost another side of the same matter to say that the structure of Parliament gives too little weight to the growing districts of
the country and too much to the stationary. In old times the South of
England was not only the pleasantest but the greatest part of England. Devonshire was a great maritime county when the foundations
of our representation were fixed; Somersetshire and Wiltshire great
manufacturing counties. The harsher climate of the northern counties was associated with a ruder, a sterner, and a sparser people. The
immense preponderance which our Parliament gave before 1832,
and, though pruned and mitigated, still gives to England south of
the Trent, then corresponded to a real preponderance in wealth and
mind. How opposite the present contrast is we all know. And the case
gets worse every day. The nature of modern trade is to give to those
who have much and take from those who have little. Manufacture
goes where manufacture is, because there, and there alone, it finds
attendant and auxiliary manufacture. Every railway takes trade from
the little town to the big town, because it enables the customer to buy
in the big town. Year by year the North (as we may roughly call the
new industrial world) gets more important, and the South (as we
may call the pleasant remnant of old times) gets less important. It is a
grave objection to our existing parliamentary constitution that it
gives much power to regions of past greatness, and refuses equal
power to regions of present greatness.
I think (though it is not a popular notion) that by far the greater
part of the cry for parliamentary reform is due to this inequality. The
great capitalists, Mr Bright and his friends, believe they are sincere
in asking for more power for the working man,* but, in fact, they
very naturally and very properly want more power for themselves.
They cannot endure—they ought not to endure—that a rich, able
manufacturer should be a less man than a small, stupid squire. The
notions of political equality which Mr Bright puts forward are as old
as political speculation, and have been refuted by the first efforts of
that speculation. But for all that they are likely to last as long as
political society, because they are based upon indelible principles in
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human nature. Edmund Burke called the first East Indians, 'Jacpbins
to a man,'* because they did not feel their 'present importance equal
to their real wealth.' So long as there is an uneasy class, a class;which
has not its just power, it will rashly clutch and blindly believe the
notion that all men should have the same power.
I do not consider the exclusion of the working classes from
effectual representation a defect in this aspect of our parliamentary
representation. The working classes contribute almost nothing to
our corporate public opinion, and therefore, the fact of their want of
influence in Parliament does not impair the coincidence of Parliament with public opinion. They are left out in the representation,
and also in the thing represented.
Nor do I think the number of persons of aristocratic descent in
Parliament impairs the accordance of Parliament with public opinion. No doubt the direct descendants and collateral relatives of noble
families supply members to Parliament in far greater proportion
than is warranted by the number of such families in comparison with
the whole nation. But I do not believe that these families have the
least corporate character, or any common opinions, different from
others of the landed gentry. They have the opinions of the propertied rank in which they were born. The English aristocracy have
never been a caste apart, and are not a caste apart now. They 'would
keep up nothing that other landed gentlemen would not. And if any
landed gentlemen are to be sent to the House of Commons, it is
desirable that many should be men of some rank. As long as we keep
up a double set of institutions,—one dignified and intended to
impress the many, the other efficient and intended to govern the
many,—we should take care that the two match nicely, and hide
where the one begins and where the other ends. This is in part
effected by conceding some subordinate power to the august part of
our polity, but it is equally aided by keeping an aristocratic element
in the useful part of our polity. In truth, the deferential instinct
secures both. Aristocracy is a power in the 'constituencies.' A man
who is an honourable or a baronet, or better yet, perhaps, a real earl,
though Irish, is coveted by half the electing bodies; and, ceteris paribus,* a manufacturer's son has no chance with him. The reality of the
deferential feeling in the community is tested by the actual election
of the class deferred to, where there is a large free choice betwixt it
and others.
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Subject therefore to the two minor, but still not inconsiderable,
defects I have named, Parliament conforms itself accurately enough,
both as a chooser of executives and as a legislature, to the formed
opinion of the country. Similarly, and subject to the same exceptions,
it expresses the nation's opinion in words well, when it happens that
words, not laws, are wanted. On foreign matters, where we cannot
legislate, whatever the English nation thinks, or thinks it thinks, as to
the critical events of the world, whether in Denmark, in Italy, or
America, and no matter whether it thinks wisely or unwisely, that
same something, wise or unwise, will be thoroughly well said in
Parliament. The lyrical function of Parliament, if I may use such a
phrase, is well done; it pours out in characteristic words the characteristic heart of the nation. And it can do little more useful. Now that
free government is in Europe so rare and in America so distant, the
opinion, even the incomplete, erroneous, rapid opinion of the free
English people is invaluable. It may be very wrong, but it is sure to be
unique; and if it is right, it is sure to contain matter of great magnitude, for it is only a first-class matter in distant things which a free
people ever sees or learns. The English people must miss a thousand
minutiae that continental bureaucracies know even too well; but
if they see a cardinal truth which those bureaucracies miss, that
cardinal truth may greatly help the world.
But if in these ways, and subject to these exceptions, Parliament
by its policy and its speech well embodies and expresses public opinion, I own I think it must be conceded that it is not equally successful
in elevating public opinion. The teaching task of Parliament is the
task it does worst. Probably at this moment it is natural to exaggerate
this defect. The greatest teacher of all in Parliament, the headmaster of the nation, the great elevator of the country—so far as
Parliament elevates it—must be the Prime Minister; he has an influence, an authority, a facility in giving a great tone to discussion, or a
mean tone, which no other man has. Now Lord Palmerston for many
years steadily applied his mind to giving, not indeed a mean tone, but
a light tone, to the proceedings of Parliament. One of his greatest
admirers has since his death told a story of which he scarcely sees, or
seems to see, the full effect. When Lord Palmerston was first made
leader of the House, his jaunty manner was not at all popular, and
some predicted failure. 'No,' said an old member, 'he will soon educate us down to his level; the House will soon prefer this Ha! Ha!
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style to the wit of Canning and the gravity of Peel.' I am afraid^ that
we must own that the prophecy was accomplished. No prime minister, so popular and so influential, has ever left in the public memory
so little noble teaching. Twenty years hence, when men inquire as to
the then fading memory of Palmerston, we shall be able to point to
no great truth which he taught, no great distinct policy he
embodied, no noble words which once fascinated his age, and which,
in after years, men would not willingly let die. But we shall be able to
say 'he had a genial manner, a firm, sound sense; he had a kind of
cant of insincerity, but we always knew what he meant; he had the
brain of a ruler in the clothes of a man of fashion.' Posterity will
hardly understand the words of the facetious reminiscent, but we
now feel their effect. The House of Commons, since it caught its
tone from such a statesman, has taught the nation worse, and
elevated it less, than usual.
I think, however, that a correct observer would decide that in
general, and on principle, the House of Commons does not teach the
public as much as it might teach it, or as the public would wish to
learn. I do not wish very abstract, very philosophical, very hard
matters to be stated in Parliament. The teaching there given must be
popular, and to be popular it must be concrete, embodied, short. The
problem is to know the highest truth which the people will bear, and
to inculcate and preach that. Certainly Lord Palmerston did not
preach it. He a little degraded us by preaching a doctrine just below
our own standard;—a doctrine not" enough below us to repel us
much, but yet enough below to harm us by augmenting a worldliness
which needed no addition, and by diminishing a love of principle
and philosophy which did not want deduction.
In comparison with the debates of any other assembly, it is true
the debates by the English Parliament are most instructive. The
debates in the American Congress have little teaching efficacy; it is
the characteristic vice of Presidential Government to deprive them
of that efficacy; in that government a debate in the legislature has
little effect, for it cannot turn out the executive, and the executive
can veto all it decides. The French Chambers are suitable appendages to an Empire which desires the power of despotism without its
shame; they prevent the enemies of the Empire being quite correct
when they say there is no free speech: a few permitted objectors fill
the air with eloquence, which every one knows to be often true, and
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always vain. The debates in an English Parliament fill a space in the
world which, in these auxiliary chambers, is not possible. But I think
any one who compares the discussions on great questions in the
higher part of the press, with the discussions in Parliament, will feel
that there is (of course amid much exaggeration and vagueness) a
greater vigour and a higher meaning in the writing than in the
speech; a vigour which the public appreciate—a meaning that they
like to hear.
The Saturday Review said, some years since, that the ability of
Parliament was a 'protected ability;' that there was at the door a
differential duty of at least £2,000 a year. Accordingly the House of
Commons, representing only mind coupled with property, is not
equal in mind to a legislature chosen for mind only, and whether
accompanied by wealth or not. But I do not for a moment wish to see
a representation of pure mind; it would be contrary to the main
thesis of this essay. I maintain that Parliament ought to embody the
public opinion of the English nation; and, certainly, that opinion is
much more fixed by its property than by its mind. The 'too clever by
half people, who live in 'Bohemia,' ought to have no more influence
in Parliament than they have in England, and they can scarcely have
less. Only, after every great abatement and deduction, I think the
country would bear a little more mind; and that there is a profusion
of opulent dullness in Parliament which might a little—though only a
little—be pruned away.
The only function of Parliament which remains to be considered
is the informing function, as I just now called it: the function which
belongs to it, or to members of it, to bring before the nation the
ideas, grievances, and wishes of special classes. This must not be
confounded with what I have called its teaching function. In life, no
doubt, the two run one into another. But so do many things which it
is very important in definition to separate. The fact of two things
being often found together is rather a reason for, than an objection
to, separating them in idea. Sometimes they are not found together,
and then we may be puzzled if we have not trained ourselves to
separate them. The teaching function brings true ideas before the
nation: and is the function of its highest minds. The expressive
function brings only special ideas, and is the function of but special
minds. Each class has its ideas, wants, and notions; and certain brains
are ingrained with them. Such sectarian conceptions are not those by
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which a determining nation should regulate its action, nor, are
orators, mainly animated by such conceptions, safe guides in policy.
But those orators should be heard; those conceptions should be kept
in sight. The great maxim of modern thought is not only the
toleration of everything, but the examination of everything. It is by
examining very bare, very dull, very unpromising things, that modern science has come to be what it is. There is a story of a great
chemist who said he owed half his fame to his habit of examining,
after his experiments, what was going to be thrown away: everybody
knew the result of the experiment itself, but in the refuse matter
there were many little facts and unknown changes, which suggested
the discoveries of a famous life, to a person capable of looking for
them. So with the special notions of neglected classes. They may
contain elements of truth which though small, are the very elements
which we now require, because we already know all the rest.
This doctrine was well known to our ancestors. They laboured to
give a character to the various constituencies, or to many of them.
They wished that the shipping trade, the wool trade, the linen trade,
should each have their spokesman: that the unsectional Parliament
should know what each section in the nation thought before it gave
the national decision. This is the true reason for admitting the working classes to a share in the representation, at least as far as the
composition of Parliament is to be improved by that admission. A
great many ideas, a great many feelings have gathered among the
town artizans—a peculiar intellectual life has sprung up among
them. They believe that they have interests which are misconceived
or neglected; that they know something which others do not know;
that the thoughts of Parliament are not as their thoughts. They
ought to be allowed to try to convince Parliament; their notions
ought to be stated as those of other classes are stated; their advocates
should be heard as other people's advocates are heard. Before the
Reform Bill, there was a recognised machinery for that purpose. The
member for Westminster, and other members, were elected by universal suffrage (or what was in substance such); those members, did
in their day, state what were the grievances and ideas—or were
thought to be the grievances and ideas—of the working classes. It
was the single, unbending franchise introduced in 1832 that has
caused this difficulty, as it has others.
Until such a change is made the House of Commons will be
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defective, just as, the House of Lords was defective. It will not look
right. As long as the Lords do not come to their own House, we may
prove on paper that it is a good revising chamber, but it will be
difficult to make the literary argument felt. Just so, as long as a great
class, congregated in political localities, and known to have political
thoughts and wishes, is without notorious and palpable advocates in
Parliament, we may prove on paper that our representation is
adequate, but the world will not believe it. There is a saying of
the eighteenth century, that in politics 'gross appearances are great
realities.' It is in vain to demonstrate that the working classes have
no grievances; that the middle classes have done all possible for
them, and so on with a crowd of arguments which I need not repeat,
for the newspapers keep them in type, and we can say them by heart.
But so long as the 'gross appearance' is that there are no evident,
incessant representatives to speak the wants of artizans, the 'great
reality' will be a diffused dissatisfaction. Thirty years ago it was vain
to prove that Gatton and Old Sarum were valuable seats, and sent
good members.* Everybody said, 'Why, there are no people there.'
Just so everybody must say now, 'Our representative system must be
imperfect, for an immense class has no members to speak for it.' The
only answer to the cry against constituencies without inhabitants was
to transfer their power to constituencies with inhabitants. Just so, the
way to stop the complaint that artizans have no members is to give
them members,—to create a body of representatives, chosen by artizans, believing, as Mr Carlyle* would say, 'that artizanism is the one
thing needful.'
On Changes of Ministry
7
ON CHANGES OF MINISTRY
THERE is one error as to the English Constitution which crops-up
periodically. Circumstances which often, though irregularly, occur
naturally suggest that error, and as surely as they happen it revives.
The relation of Parliament, and especially of the House of Commons, to the Executive Government is the specific peculiarity of our
constitution, and an event which frequently happens much puzzles
some people as to it.
That event is a change of ministry. All our administrators go out
together. The whole executive government changes—at least, all the
heads of it change in a body, and at every such change some speculators are sure to exclaim that such a habit is foolish. They say, 'No
doubt Mr Gladstone and Lord Russell may have been wrong about
Reform;* no doubt Mr Gladstone may have been cross in the House
of Commons; but why should either or both of these events change
all the heads of all our practical departments? What could be more
absurd than what happened in 1858?* Lord Palmerston was for once
in his life over-buoyant; he gave rude answers to stupid inquiries; he
brought into the Cabinet a nobleman concerned in an ugly trial
about a woman; he, or his Foreign Secretary, did not answer a
French despatch by a despatch, but told our ambassador to reply
orally. And because of these trifles, or at any rate, these isolated unadministrative mistakes, all our administration had fresh heads. The
Poor Law Board had a new chief, the Home Department a new chief,
the Public Works a new chief. Surely this was absurd.' Now, is this
objection good or bad? Speaking generally, is it wise so to change all
our rulers?
The practice produces three great evils. First, it brings in on a
sudden new persons and untried persons to preside over our policy.
A little while ago Lord Cranborne* had no more idea that he would
now be Indian Secretary than that he would be a bill broker. He had
never given any attention to Indian affairs; he can get them up,
because he is an able educated man who can get up anything. But
they are not 'part and parcel' of his mind; not his subjects of familiar
reflection, nor things of which he thinks by predilection, of which he
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cannot help thinking. But because Lord Russell and Mr Gladstone
did not please the House of Commons about Reform, there he is. A
perfectly inexperienced man, so far as Indian affairs go, rules all our
Indian empire. And if all our heads of offices change together, so
very frequently it must be. If twenty offices are vacant at once, there
are almost never twenty tried, competent, clever men ready to take
them. The difficulty of making up a government is very much like
the difficulty of putting together a Chinese puzzle: the spaces do not
suit what you have to put into them. And the difficulty of matching a
ministry is more than that of fitting a puzzle, because the ministers
to be put in can object, though the bits of a puzzle cannot. One
objector can throw out the combination. In 1847 Lord Grey would
not join Lord John Russell's projected government if Lord Palmerston was to be Foreign Secretary; Lord Palmerston would be Foreign
Secretary, and so the government was not formed. The cases in
which a single refusal prevents a government are rare, and there
must be many concurrent circumstances to make it effectual. But the
cases in which refusals impair or spoil a government are very common. It almost never happens that the ministry-maker can put into
his offices exactly whom he would like; a number of place-men are
always too proud, too eager, or too obstinate to go just where they
should.
Again, this system not only makes new ministers ignorant, but
keeps present ministers indifferent. A man cannot feel the same
interest that he might in his work if he knows that by events over
which he has no control,—by errors in which he had no share,—by
metamorphoses of opinion which belong to a different sequence of
phenomena, he may have to leave that work in the middle and may
very likely never return to it. The new man put into a fresh office
ought to have the best motive to learn his task thoroughly, but, in
fact, in England he has not at all the best motive. The last wave of
party and politics brought him there, the next may take him away.
Young and eager men take, even at this disadvantage, a keen interest
in office work, but most men, especially old men, hardly do so. Many
a battered minister may be seen to think much more of the vicissitudes which make him and unmake him, than of any office matter.
Lastly, a sudden change of ministers may easily cause a mischievous change of policy. In many matters of business, perhaps in most, a
continuity of mediocrity is better than a hotch-potch of excellences.
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On Changes of Ministry
For example, now that progress in the scientific arts is revolutionising the instruments of war, rapid changes in our head-preparers for
land and sea war are most costly and most hurtful. A single, competent selector of new inventions would probably in the course of
years, after some experience, arrive at something tolerable; it is in the
nature of steady, regular, experimenting ability to diminish, if not
vanquish such difficulties. But a quick succession of chiefs has no
similar facility. They do not learn from each others' experience;—
you might well expect the new head boy at a public school to learn
from the experience of the last head boy. The most valuable result of
many years is a nicely balanced mind instinctively heedful of various
errors; but such a mind is the incommunicable gift of individual
experience, and an outgoing minister can no more leave it to his
successor than an elder brother can pass it on to a younger. Thus a
desultory and incalculable policy may follow from a rapid change of
ministers.
These are formidable arguments, but four things may, I think, be
said in reply to, or mitigation of them. A little examination will
show that this change of ministers is essential to a Parliamentary
government;—that something like it will happen in all elective
governments, and that worse happens under presidential government;—that it is not necessarily prejudicial to a good administration,
but that, on the contrary, something like it is a prerequisite of good
administration;—that the evident evils of English administration are
not the results of Parliamentary government, but of grave deficiencies in other parts of our political and social state;—that, in a word,
they result not from what we have, but from what we have not.
As to the first point, those who wish to remove the choice of
ministers from Parliament have not adequately considered what a
Parliament is. A Parliament is nothing less than a big meeting of
more or less idle people. In proportion as you give it power it will
inquire into everything, settle everything, meddle in anything. In an
ordinary despotism, the powers of a despot are limited by his bodily
capacity, and by the calls of pleasure; he is but one man;—there are
but twelve hours in his day, and he not disposed to employ more
than a small part in dull business;—he keeps the rest for the court,
or the harem, or for society. He is at the top of the world, and all the
pleasures of the world are set before him. Mostly there is only a very
small part of political business which he cares to understand, and
much of it (with the shrewd sensual sense belonging to the race) he
knows that he will never understand. But a Parliament is composed
of a great number of men by no means at the top of the world.
When you establish a predominant Parliament, you give over the
rule of the country to a despot who has unlimited time,—who has
unlimited vanity,—who has, or believes he has, unlimited comprehension, whose pleasure is in action, whose life is work. There is
no limit to the curiosity of Parliament. Sir Robert Peel once suggested that a list should be taken down of the questions asked of him
in a single evening; they touched more or less on fifty subjects, and
there were a thousand other subjects which by parity of reason
might have been added too. As soon as bore A ends, bore B begins.
Some inquire from genuine love of knowledge, or from a real wish
to improve what they ask about,—others ask to see their name in the
papers,—others to show a watchful constituency that they are
alert,—others to get on and to get a place in the government,—
others from an accumulation of little motives they could not themselves analyse, or because it is their habit to ask things. And a proper
reply must be given. It was said that 'Darby Griffith destroyed Lord
Palmerston's first Government,'* and undoubtedly the cheerful
impertinence with which in the conceit of victory that minister
answered grave men much hurt his Parliamentary power. There is
one thing which no one will permit to be treated lightly,—himself.
And so there is one too which a sovereign assembly will never permit to be lessened or ridiculed,—its own power. The minister of the
day will have to give an account in Parliament of all branches of
administration, to say why they act when they do, and why they do
not when they don't.
Nor is chance inquiry all a public department has most to fear.
Fifty members of Parliament may be zealous for a particular policy
affecting the department, and fifty others for another policy, and
between them they may divide its action, spoil its favourite aims, and
prevent its consistently working out either of their own aims. The
process is very simple. Every department at times looks as if it was in
a scrape; some apparent blunder, perhaps some real blunder, catches
the public eye. At once the antagonist Parliamentary sections, which
want to act on the department, seize the opportunity. They make
speeches, they move for documents, they amass statistics. They
declare 'that in no other country is such a policy possible as that
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which the department is pursuing; that it is medieval; that it costs
money; that it wastes life; that America does the contrary; that
Prussia does the contrary.' The newspapers follow according to
their nature. These bits of administrative scandal amuse the public.
Articles on them are very easy to write, easy to read, easy to talk
about. They please the vanity of mankind. We think as we read,
'Thank God, / am not as that man; / did not send green coffee to the
Crimea;* / did not send patent cartridge to the common guns, and
common cartridge to the breech-loaders. / make money; that miserable public functionary only wastes money.' As for the defence of the
department, no one cares for it or reads it. Naturally at first
hearing it does not sound true. The opposition have the unrestricted
selection of the point of attack, and they seldom choose a case in
which the department, upon the surface of the matter, seems to be
right. The case of first impression will always be that something
shameful has happened; that such and such men did die; that this
and that gun would not go off; that this or that ship will not sail. All
the pretty reading is unfavourable, and all the praise is very dull.
Nothing is more helpless than such a department in Parliament if
it has no authorised official defender. The wasps of the House fasten
on it; here they perceive is something easy to sting, and safe, for it
cannot sting in return. The small grain of foundation for complaint
germinates, till it becomes a whole crop. At once the minister of the
day is appealed to; he is at the head of the administration, and he
must put the errors right, if such there are. The opposition leader
says, 'I put it to the right honourable gentleman, the First Lord of
the Treasury. He is a man of business. I do not agree with him in his
choice of ends, but he is an almost perfect master of methods and
means. What he wishes to do he does do. Now I appeal to him
whether such gratuitous errors, such fatuous incapacity, are to be
permitted in the public service. Perhaps the right honourable
gentleman will grant me his attention while I show from the very
documents of the department,' &c, &c. What is the minister to do?
He never heard of this matter; he does not care about the matter.
Several of the supporters of the Government are interested in the
opposition to the department; a grave man, supposed to be wise,
mutters, 'This is too bad.' The Secretary of the Treasury tells him,
'The House is uneasy. A good many men are shaky. A. B. said yesterday he had been dragged through the dirt four nights following.
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Indeed I am disposed to think myself that the department has been
somewhat lax. Perhaps an inquiry,' &c, &c. And upon that the Prime
Minister rises and says, 'That Her Majesty's Government having
given very serious and grave consideration to this most important
subject, are not prepared to say that in so complicated a matter the
department has been perfectly exempt from error. He does not
indeed concur in all the statements which have been made; it is
obvious that several of the charges advanced are inconsistent with
one another. If A had really died from eating green coffee on the
Tuesday, it is plain he could not have suffered from insufficient
attendance on the following Thursday. However, on so complex a
subject, and one so foreign to common experience, he will not give a
judgment. And if the honourable member would be satisfied with
him having the matter inquired into by a committee of that House,
he will be prepared to accede to the suggestion.'
Possibly the outlying department, distrusting the ministry, crams
a friend. But it is happy indeed if it chances on a judicious friend.
The persons most ready to take up that sort of business are benevolent amateurs, very well intentioned, very grave, very respectable,
but also rather dull. Their words are good, but about the joints their
arguments are weak. They speak very well, but while they are speaking, the decorum is so great that everybody goes away. Such a man is
no match for a couple of House of Commons gladiators. They pull
what he says to shreds. They show or say that he is wrong about his
facts. Then he rises in a fuss and must explain: but in his hurry he
mistakes, and cannot find the right paper, and becomes first hot, then
confused, next inaudible, and so sits down. Probably he leaves the
House with the notion that the defence of the department has
broken down, and so the Times announces to all the world as soon as
it awakes.
Some thinkers have naturally suggested that the heads of departments should as such have the right of speech in the House. But the
system when it has been tried has not answered. M. Guizot tells us*
from his own experience that such a system is not effectual. A great
popular assembly has a corporate character; it has its own privileges,
prejudices, and notions. And one of these notions is that its own
members—the persons it sees every day—whose qualities it knows,
whose minds it can test, are those whom it can most trust. A clerk
speaking from without would be an unfamiliar object. He would be
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On Changes of Ministry
an outsider. He would speak under suspicion; he would speakwithout dignity. Very often he would speak as a victim. All the bores of
the House would be upon him. He would be put upon examination.
He would have to answer interrogatories. He would be put through
the figures and cross-questioned in detail. The whole effect of what
he said would be lost in quaestiunculae* and hidden in a controversial
detritus.
Again, such a person would rarely speak with great ability. He
would speak as a scribe. His habits must have been formed in the
quiet of an office; he is used to red tape, placidity, and the respect of
subordinates. Such a person will hardly ever be able to stand the
hurly-burly of a public assembly. He will lose his head,—he will say
what he should not. He will get hot and red; he will feel he is a sort of
culprit. After being used to the flattering deference of deferential
subordinates, he will be pestered by fuss and confounded by invective. He will hate the House as naturally as the House does not like
him. He will be an incompetent speaker addressing a hostile
audience.
And what is more, an outside administrator addressing Parliament, can move Parliament only by the goodness of his arguments. He
has no votes to back them up with. He is sure to be at chronic war
with some active minority of assailants or others. The natural mode
in which a department is improved on great points and new points is
by external suggestion; the worst foes of a department are the plausible errors which the most visible facts suggest, and which only half
invisible facts confute. Both the good ideas and the bad ideas are sure
to find advocates first in the press and then in Parliament. Against
these a permanent clerk would have to contend by argument alone.
The Minister, the head of the parliamentary Government, will not
care for him. The Minister will say in some undress soliloquy,
'These permanent "fellows" must look after themselves. I cannot be
bothered. I have only a majority of nine, and a very shaky majority,
too. I cannot afford to make enemies for those whom I did not
appoint. They did nothing for me, and I can do nothing for them.'
And if the permanent clerk come to ask his help he will say in
decorous language, 'I am sure that if the department can evince to
the satisfaction of Parliament that its past management has been
such as the public interests require, no one will be more gratified
than myself. I am not aware if it will be in my power to attend in my
place on Monday; but if I can be so fortunate, I shall listen to your
official statement with my very best attention.' And so the permanent public servant will be teazed by the wits, oppressed by the bores,
and massacred by the innovators of Parliament.
The incessant tyranny of Parliament over the public offices is
prevented and can only be prevented by the appointment of a parliamentary head, connected by close ties with the present ministry
and the ruling party in Parliament. The parliamentary head is a
protecting machine. He and the friends he brings stand between the
department and the busybodies and crotchet-makers of the House
and the country. So long as at any moment the policy of an office
could be altered by chance votes in their House of Parliament, there
is no security for any consistency. Our guns and our ships are not,
perhaps, very good now. But they would be much worse if any thirty
or forty advocates for this gun or that gun could make a motion in
Parliament, beat the department, and get their ships or their guns
adopted. The 'Black Breech Ordnance Company' and the 'Adamantine Ship Company' would soon find representatives in Parliament, if
forty or fifty members would get the national custom for their rubbish. But this result is now prevented by the parliamentary head of
the department. As soon as the opposition begins the attack, he looks
up his means of defence. He studies the subject, compiles his arguments, and builds little piles of statistics, which he hopes will have
some effect. He has his reputation at stake, and he wishes to show
that he is worth his present place, and fit for future promotion. He is
well-known, perhaps liked, by the House—at any rate the House
attends to him; he is one of the regular speakers whom they hear and
heed. He is sure to be able to get himself heard, and he is sure to
make the best defence he can. And after he has settled his speech, he
loiters up to the Secretary of the Treasury, and says quietly, 'They
have got a motion against me on Tuesday, you know. I hope you will
have your men here. A lot of fellows have crotchets, and though they
do not agree a bit with one another, they are all against the department; they will all vote for the inquiry' And the Secretary answers,
'Tuesday, you say; no (looking at a paper), I do not think it will come
on Tuesday. There is Higgins on Education. He is good for a long
time. But anyhow it shall be all right.' And then he glides about and
speaks a word here and a word there, in consequence of which, when
the anti-official motion is made, a considerable array of steady, grave
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faces sits behind the Treasury Bench—nay, possibly a rising man
who sits in outlying independence below the gangway rises to defend
the transaction; the department wins by thirty-three, and the management of that business pursues its steady way.
This contrast is no fancy picture. The experiment of conducting
the administration of a public department by an independent
unsheltered authority has often been tried, and always failed. Parliament always poked at it, till it made it impossible. The most
remarkable is that of the Poor Law. The administration of that law is
not now very good, but it is not too much to say that almost the
whole of its goodness has been preserved by its having an official and
party protector in the House of Commons. Without that contrivance
we should have drifted back into the errors of the old Poor Law, and
superadded to them the present meanness and incompetence in our
large towns. All would have been given up to local management.
Parliament would have interfered with the central board till it made
it impotent, and the local authorities would have been despotic. The
first administration of the new Poor Law was by 'Commissioners'—
the three kings of Somerset House, as they were called.* The system
was certainly not tried in untrustworthy hands. At the crisis Mr
Chadwick,* one of the most active and best administrators in
England, was the secretary and the motive power: the principal
Commissioner was Sir George Lewis,* perhaps the best selective
administrator of our time. But the House of Commons would not let
the Commission alone. For a long time it was defended because the
Whigs had made the Commission, and felt bound as a party to
protect it. The new law started upon a certain intellectual impetus,
and till that was spent its administration was supported in a rickety
existence by an abnormal strength. But afterwards the Commissioners were left to their intrinsic weaknesses. There were members
for all the localities, but there were none for them. There were members for every crotchet and corrupt interest, but there were none for
them. The rural guardians would have liked to eke out wages by
rates; the city guardians hated control, and hated to spend money.
The Commission had to be dissolved, and a parliamentary head was
added; the result is not perfect, but it is an amazing improvement on
what would have happened in the old system. The new system has
not worked well because the central authority has too little power;
but under the previous system the central authority was getting to
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have, and by this time would have had, no power at all. And if Sir
George Lewis and Mr Chadwick could not maintain an outlying
department in the face of Parliament, how unlikely that an inferior
compound of discretion and activity will ever maintain it!
These reasonings show why a changing Parliamentary head, a
head changing as the ministry changes, is a necessity of good Parliamentary government, and there is happily a natural provision that
there will be such heads. Party organisation ensures it. In America,
where on account of the fixedly recurring presidential election, and
the perpetual minor elections, party organisation is much more
effectually organised than anywhere else, the effect on the offices is
tremendous. Every office is filled anew at every presidential change,
at least every change which brings in a new party. Not only the
greatest posts, as in England, but the minor posts change their occupants. The scale of the financial operations of the Federal government is now so increased that most likely in that department, at least,
there must in future remain a permanent element of great efficiency;
a revenue of £90,000,000 sterling cannot be collected and expended
with a trifling and changing staff. But till now the Americans have
tried to get on not only with changing heads to a bureaucracy, as the
English, but without any stable bureaucracy at all. They have facilities for trying it which no one else has. All Americans can administer, and the number of them really fit to be in succession lawyers,
financiers, or military managers is wonderful; they need not be as
afraid of a change of all their officials as European countries must,
for the incoming substitutes are sure to be much better there than
here; and they do not fear, as we English fear, that the outgoing
officials will be left destitute in middle life, with no hope for the
future and no recompense for the past, for in America (whatever may
be the cause of it) opportunities are numberless, and a man who is
ruined by being 'off the rails' in England soon there gets on another
line. The Americans will probably to some extent modify their past
system of total administrative cataclysms, but their very existence
in the only competing form of free government should prepare us
for and make us patient with the mild transitions of Parliamentary
government.
These arguments will, I think, seem conclusive, to almost every
one; but, at this moment, many people will meet them thus: they will
say, 'You prove what we do not deny, that this system of periodical
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change is a necessary ingredient in Parliamentary government, but
you have not proved what we do deny, that this change is a good
thing. Parliamentary government may have that effect, among
others, for anything we care: we maintain merely that it is a defect.'
In answer, I think it may be shown not, indeed, that this precise
change is necessary to a permanently perfect administration, but that
some analogous change, some change of the same species, is so.
At this moment, in England, there is a sort of leaning towards
bureaucracy—at least, among writers and talkers. There is a seizure
of partiality to it. The English people do not easily change their
rooted notions, but they have a vast many unrooted notions. Any
great European event is sure for a moment to excite a sort of twinge
of conversion to something or other. Just now, the triumph of the
Prussians*—the bureaucratic people, as is believed, par excellence—
has excited a kind of admiration for bureaucracy, which a few years
since we should have thought impossible. I do not presume to criticise the Prussian bureaucracy of my own knowledge; it certainly is
not a pleasant institution for foreigners to come across, though
agreeableness to travellers is but of very second-rate importance. But
it is quite certain that the Prussian bureaucracy, though we, for a
moment, half admire it at a distance, does not permanently please
the most intelligent and liberal Prussians at home. What are two
among the principal aims of the Fortschritt Partei—the party of
progress—as Mr Grant Duff, the most accurate and philosophical of
our describers, delineates them?*
First, 'a liberal system, conscientiously carried out in all the
details of the administration, with a view to avoiding the scandals
now of frequent occurrence, when an obstinate or bigoted official
sets at defiance the liberal initiations of the government, trusting to
backstairs influence.'
Second, 'an easy method of bringing to justice guilty officials, who
are at present, as in France, in all conflicts with simple citizens, like
men armed cap-a-pie* fighting with undefenceless.' A system against
which intelligent native liberals bring even with colour of reason
such grave objections, is a dangerous model for foreign imitation.
The defects of bureaucracy are, indeed, well known. It is a form of
government which has been tried often enough in the world and it is
easy to show what, human nature being what it in the long run is, the
^defects of a bureaucracy must in the long run be.
It is an inevitable defect, that bureaucrats will care more for
routine than for results; or, as Burke put it,* 'that they will think the
substance of business not to be much more important than the forms
of it.' Their whole education and all the habit of their lives make
them do so. They are brought young into the particular part of the
public service to which they are attached; they are occupied for years
in learning its forms—afterwards, for years too, in applying these
forms to trifling matters. They are, to use the phrase of an old writer,
'but the tailors of business; they cut the clothes, but they do not find
the body.' Men so trained must come to think the routine of business
not a means but an end—to imagine the elaborate machinery of
which they form a part, and from which they derive their dignity, to
be a grand and achieved result, not a working and changeable
instrument. But in a miscellaneous world, there is now one evil and
now another. The very means which best helped you yesterday, may
very likely be those which most impede you tomorrow—you may
want to do a different thing tomorrow, and all your accumulation of
means for yesterday's work is but an obstacle to the new work. The
Prussian military system is the theme of popular wonder now, yet it
sixty years pointed the moral against the form. We have all heard the
saying that 'Frederic the Great lost the battle of Jena.'* It was the
system he had established—a good system for his wants and his
times, which, blindly adhered to, and continued into a different
age,—put to strive with different competitors,—brought his country
to ruin. The 'dead and formal' Prussian system was then contrasted
with the 'living' French system—the sudden outcome of the new
explosive democracy. The system which now exists is the product of
the reaction; and the history of its predecessor is a warning what
its future history may be too. It is not more celebrated for its day
than Frederic's for his, and principle teaches that a bureaucracy,
elated by sudden success, and marvelling at its own merit, is the most
improving and shallow of governments.
Not only does a bureaucracy thus tend to under-government, in
point of quality; it tends to over-government, in point of quantity.
The trained official hates the rude, untrained public. He thinks that
they are stupid, ignorant, reckless—that they cannot tell their own
interest—that they should have the leave of the office before they do
anything. Protection is the natural inborn creed of every official
body; free trade is an extrinsic idea, alien to its notions, and hardly to
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be assimilated with life; and it is easy to see how an accomplished
critic, used to a free and active life, could thus describe the official.
'Every imaginable and real social interest,' says Mr Laing,*
'religion, education, law, police, every branch of public or private
business, personal liberty to move from place to place, even from
parish to parish within the same jurisdiction. Liberty to engage in
any branch of trade or industry, on a small or large scale, all the
objects, in short, in which body, mind, and capital can be employed
in civilised society, were gradually laid hold of for the employment
and support of functionaries, were centralised in bureau, were superintended, licensed, inspected, reported upon, and interfered with by
a host of officials scattered over the land, and maintained at the
public expense, yet with no conceivable utility in their duties. They
are not, however, gentlemen at large, enjoying salary without service.
They are under a semi-military discipline. In Bavaria, for instance,
the superior civil functionary can place his inferior functionary
under house-arrest, for neglect of duty, or other offence against civil
functionary discipline. In Wurtemberg, the functionary cannot
marry without leave from his superior. Voltaire says somewhere,*
that, "the art of government is to make two-thirds of a nation pay all
it possibly can pay for the benefit of the other third." This is realised
in Germany by the functionary system. The functionaries are not
there for the benefit of the people, but the people for the benefit of
the functionaries. All this machinery of functionarism, with its
numerous ranks and gradations in every district, filled with a staff of
clerks and expectants in every department looking for employment,
appointments, or promotions, was intended to be a new support of
the throne in the new social state of the Continent; a third class, in
connection with the people by their various official duties of interference in all public or private affairs, yet attached by their interests
to the kingly power. The Beamptenstand, or functionary class, was to
be the equivalent to the class of nobility, gentry, capitalists, and men
of larger landed property than the peasant-proprietors, and was to
make up in numbers for the want of individual weight and influence.
In France, at the expulsion of Louis Philippe, the civil functionaries
were stated to amount to 807,030 individuals. This civil army was
more than double of the military. In Germany, this class is necessarily more numerous in proportion to the population, the landwehr
system imposing many more restrictions than the conscription on
the free action of the people, and requiring more officials to manage
it, and the semi-feudal jurisdictions and forms of law requiring
much more writing and intricate forms of procedure before the
courts than the Code Napoleon.'
A bureaucracy is sure to think that its duty is to augment official
power, official business, or official members, rather than to leave free
the energies of mankind; it overdoes the quantity of government, as
well as impairs its quality.
The truth is, that a skilled bureaucracy—a bureaucracy trained
from early life to its special avocation, is, though it boasts of an
appearance of science, quite inconsistent with the true principles of
the art of business. That art has not yet been condensed into precepts, but a great many experiments have been made and a vast
floating vapour of knowledge floats through society. One of the most
sure principles is, that success depends on a due mixture of special
and nonspecial minds—of minds which attend to the means, and of
minds which attend to the end. The success of the great joint-stock
banks of London*—the most remarkable achievement of recent
business—has been an example of the use of this mixture. These
banks are managed by a board of persons mostly not trained to the
business, supplemented by, and annexed to, a body of specially
trained officers, who have been bred to banking all their lives. These
mixed banks have quite beaten the old banks, composed exclusively
of pure bankers; it is found that the board of directors has greater
and more flexible knowledge—more insight into the wants of a
commercial community—knows when to lend and when not to lend,
better than the old bankers, who had never looked at life, except out
of the bank windows. Just so the most successful railways in Europe
have been conducted—not by engineers or by traffic managers—but
by capitalists; by men of a certain business culture, if of no other.
These capitalists buy and use the services of skilled managers, as the
unlearned attorney buys and uses the services of a skilled barrister,
and manage far better than any of the different sorts of special men
under them. They combine these different specialities—make it
clear where the realm of one ends and that of the other begins, add to
it a wide knowledge of large affairs, which no special man can have,
and which is only gained by diversified action. But this utility of
leading minds used to generalise, and acting upon various materials,
is entirely dependent upon their position. They must not be at the
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bottom—they must not even be half way up—they must be at the
top. A merchant's clerk would be a child at a bank counter; but the
merchant himself could, very likely, give good, clear, and useful
advice in a bank court. The merchant clerk would be equally at sea in
a railway office, but the merchant himself could give good advice,
very likely, at a board of directors. The summits (if I may so say) of
the various kinds of business are, like the tops of mountains, much
more alike than the parts below—the bare principles are much the
same; it is only the rich variegated details of the lower strata that so
contrast with one another. But it needs travelling to know that the
summits are the same. Those who live on one mountain believe that
their mountain is wholly unlike all others.
The application of this principle to Parliamentary government is
very plain; it shows at once that the intrusion from without upon an
office of an exterior head of the office, is not an evil; but that, on the
contrary, it is essential to the perfection of that office. If it is left
to itself, the office will become technical, self-absorbed, selfmultiplying. It will be likely to overlook the end in the means; it will
fail from narrowness of mind; it will be eager in seeming to do; it will
be idle in real doing. An extrinsic chief is the fit corrector of such
errors. He can say to the permanent chief, skilled in the forms and
pompous with the memories of his office, 'Will you, sir, explain to
me how this regulation conduces to the end in view? According to
the natural view of things, the applicant should state the whole of his
wishes to one clerk on one paper; you make him say it to five clerks
on five papers.' Or, again, 'Does it not appear to you, sir, that the
reason of this formality is extinct? When we were building wood
ships, it was quite right to have such precautions against fire; but
now that we are building iron ships,' &c, &c. If a junior clerk asked
these questions, he would be 'pooh-poohed!' It is only the head of
an office that can get them answered. It is he, and he only, that brings
the rubbish of office to the burning-glass of sense.
The immense importance of such a fresh mind is greatest in a
country where business changes most. A dead, inactive, agricultural
country may be governed by an unalterable bureau for years and
years, and no harm come of it. If a wise man arranged the bureau
rightly in the beginning, it may run rightly a long time. But, if the
country be a progressive, eager, changing one, soon the bureau will
either cramp improvement, or be destroyed itself.
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This conception of the use of a Parliamentary head shows how
wrong is the obvious notion which regards him as the principal
administrator of his office. The late Sir George Lewis* used to be
fond of explaining this subject. He had every means of knowing. He
was bred in the permanent civil service. He was a very successful
Chancellor of the Exchequer, a very successful Home Secretary, and
he died Minister for War. He used to say, 'It is not the business of a
Cabinet Minister to work his department. His business is to see that
it is properly worked. If he does much, he is probably doing harm.
The permanent staff of the office do what he chooses to do much
better, or if they cannot, they ought to be removed. He is only a bird
of passage, and cannot compete with those who are in the office all
their lives round.' Sir George Lewis was a perfect Parliamentary
head of an office, so far as that head is to be a keen critic and rational
corrector of it.
Sir George Lewis was not perfect: he was not even an average
good head in another respect. The use of a fresh mind applied to the
official mind is not only a corrective use: it is also an animating use.
A public department is very apt to be dead to what is wanting for a
great occasion till the occasion is past. The vague public mind will
appreciate some signal duty before the precise, occupied administration perceives it. The Duke of Newcastle was of this use at least in
the Crimean war.* He roused up his department, though when
roused it could not act. A perfect parliamentary minister would
be one who should add the animating capacity of the Duke of
Newcastle to the accumulated sense, the detective instinct, and the
laissezfaire habit of Sir George Lewis.
As soon as we take the true view of Parliamentary office we shall
perceive that, fairly, frequent change in the official is an advantage,
not a mistake. If his function is to bring a representative of outside
sense and outside animation in contact with the inside world, he
ought often to be changed. No man is a perfect representative of
outside sense- 'There is some one,' says the true French saying, 'who
is more able than Talleyrand, more able than Napoleon. C'est tout le
monde.' That many-sided sense finds no microcosm in any single
individual. Still less are the critical function and the animating function of a Parliamentary minister likely to be perfectly exercised by
one and the same man. Impelling power and restraining wisdom are
as opposite as any two things, and are rarely found together. And
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even if the natural mind of the Parliamentary minister was perfect,
long contact with the office would destroy his use. Inevitably he
would accept the ways of office, think its thoughts, live its life. The
'dyer's hand would be subdued to what it works in.'* If the function
of a Parliamentary minister is to be an outsider to his office, we must
not choose one who, by habit, thought, and life, is acclimatised to its
ways.
There is every reason to expect that a Parliamentary statesman
will be a man of quite sufficient intelligence, quite enough various
knowledge, quite enough miscellaneous experience, to represent
effectually general sense in opposition to bureaucratic sense. Most
Cabinet ministers in charge of considerable departments are men of
superior ability. I have heard an eminent living statesman of long
experience say that in his time he only knew one instance to the
contrary. And there is the best protection that it shall be so. A considerable Cabinet minister has to defend his Department in the face
of mankind; and though distant observers and sharp writers may
depreciate it, this is a very difficult thing. A fool, who has publicly to
explain great affairs, who has publicly to answer detective questions,
who has publicly to argue against able and quick opponents, must
soon be shown to be a fool. The very nature of Parliamentary
government answers for the discovery of substantial incompetence.
At any rate, none of the competing forms of government have
nearly so effectual a procedure for putting a good untechnical minister to correct and impel the routine ones. There are but four important forms of government in the present state of the world,—the
Parliamentary, the Presidential, the Hereditary, and the Dictatorial,
or Revolutionary. Of these I have shown that, as now worked in
America, the Presidential form of government is incompatible with a
skilled bureaucracy. If the whole official class change when a new
party goes out or comes in, a good official system is impossible. Even
if more officials should be permanent in America than now, still, vast
numbers will always be changed. The whole issue is based on a single
election—on the choice of President; by that internecine conflict all
else is won or lost. The managers of the contest have that greatest
possible facility in using what I may call patronage-bribery. Everybody knows that, as a fact, the President can give what places he likes
to what persons, and when his friends tell A. B., 'If we win C. D.
shall be turned out of Utica Post-office, and you, A. B., shall have it,'
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A. B. believes it, and is justified in doing so. But no individual
member of Parliament can promise place effectually. He may not be
able to give the places. His party may come in, but he will be powerless. In the United States party intensity is aggravated, by concentrating and overwhelming importance on a single contest, and the
efficiency of promised offices as a means of corruption is augmented,
because the victor can give what he likes to whom he likes.
Nor is this the only defect of a Presidential government in reference to the choice of officers. The President has the principal
anomaly of a Parliamentary government without having its corrective. At each change of party the President distributes (as here) the
principal offices to his principal supporters. But he has an opportunity for singular favouritism. The minister lurks in the office; he
need do nothing in public; he need not show for years whether he is a
fool or wise. The nation can tell what a Parliamentary member is by
the open test of Parliament; but no one, save from actual contact, or
by rare position, can tell anything certain of a Presidential minister.
The case of a minister under an hereditary form of government is
yet worse. The hereditary king may be weak; may be under the
government of women; may appoint a minister from childish
motives, may remove one from absurd whims. There is no security
that an hereditary king will be competent to choose a good chief
minister, and thousands of such kings have chosen millions of bad
ministers.
By the Dictatorial, or Revolutionary, sort of government, I mean
that very important sort in which the sovereign—the absolute
sovereign—is selected by insurrection. In theory, one would have
certainly hoped that by this time such a crude elective machinery
would have been reduced to a secondary part. But, in fact, the greatest nation (or, perhaps, after the exploits of Bismarck, I should say
one of the two greatest nations of the Continent) vacillates between
the Revolutionary and the Parliamentary, and now is governed under
the revolutionary form. France elects its ruler in the streets of Paris.
Flatterers may suggest that the democratic empire will become hereditary, but close observers know that it cannot. The idea of the
government is that the Emperor represents the people in capacity, in
judgment, in instinct. But no family through generations can have
sufficient, or half sufficient, mind to do so. The representative despot must be chosen by fighting, as Napoleon I and Napoleon III were
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chosen. And such a government is likely, whatever be its other
defects, to have a far better and abler administration than any other
government. The head of the government must be a man of the most
consummate ability. He cannot keep his place, he can hardly keep his
life, unless he is. He is sure to be active, because he knows that
his power, and perhaps his head, may be lost if he be negligent. The
whole frame of his State is strained to keep down revolution.
The most difficult of all political problems is to be solved—the
people are to be at once thoroughly restrained and thoroughly
pleased. The executive must be like a steel shirt of the middle ages—
extremely hard and extremely flexible. It must give way to attractive
novelties which do not hurt; it must resist such as are dangerous; it
must maintain old things which are good and fitting; it must alter
such as cramp and give pain. The dictator dare not appoint a bad
minister if he would. I admit that such a despot is a better selector of
administrators than a parliament; that he will know how to mix fresh
minds and used minds better; that he is under a stronger motive to
combine them well; that here is to be seen the best of all choosers
with the keenest motives to choose. But I need not prove in England
that the revolutionary selection of rulers obtains administrative
efficiency at a price altogether transcending its value; that it shocks
credit by its catastrophes; that for intervals it does not protect property or life; that it maintains an undergrowth of fear through all
prosperity; that it may take years to find the true capable despot; that
the interregna of the incapable are full of all evil; that the fit despot
may die as soon as found; that the good administration and all else
hang by the thread of his life.
But if, with the exception of this terrible, revolutionary government, a Parliamentary government upon principle surpasses all its
competitors in administrative efficiency, why is it that our English
Government, which is beyond comparison the best of Parliamentary
governments, is not celebrated through the world for administrative
efficiency? It is noted for many things, why is it not noted for that?
Why, according to popular belief, is it rather characterised by the
very contrary?
One great reason of the diffused impression is, that the English
Government attempts so much. Our military system is that which is
most attacked. Objectors say we spend much more on our army than
the great military monarchies, and yet with an inferior result. But,
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then, what we attempt, is incalculably more difficult. The continental monarchies have only to defend compact European territories
by the many soldiers whom they force to fight; the English try to
defend without any compulsion—only by such soldiers as they persuade to serve—territories far surpassing all Europe in magnitude,
and situated all over the habitable globe. Our Horse Guards and War
Office may not be at all perfect—I believe they are not; but if they
had sufficient recruits selected by force of law—if they had, as in
Prussia, the absolute command of each man's time for a few years,
and the right to call him out afterwards when they liked, we should
be much surprised at the sudden ease and quickness with which they
did things. I have no doubt too that any accomplished soldier of the
Continent would reject as possible what we after a fashion effect. He
would not attempt to defend a vast scattered empire, with many
islands, a long frontier line in every continent, and a very tempting
bit of plunder at the centre, by mere volunteer recruits who mostly
come from the worst class of the people,—whom the Great Duke*
called the 'scum of the earth,'—who come in uncertain numbers
year by year,—who by some political accident may not come in
adequate numbers, or at all, in the year we need them most. Our War
Office attempts what foreign War Offices (perhaps rightly) would
not try at; their officers have means of incalculable force denied to
ours, though ours is set to harder tasks.
Again, the English navy undertakes to defend a line of coast and a
set of dependencies far surpassing those of any continental power.
And the extent of our operations is a singular difficulty just now. It
requires us to keep a large stock of ships and arms. But on the other
hand, there are most important reasons why we should not keep
much. The naval art and the military art are both in a state of
transition; the last discovery of today is out of date and superseded
by an antagonistic discovery tomorrow. Any large accumulation of
vessels or guns is sure to contain much that will be useless, unfitting,
antediluvian, when it comes to be tried. There are two cries against
the Admiralty which go on side by side: one says, 'We have not ships
enough, no "relief" ships, no navy, to tell the truth;' the other cry
says, 'We have all the wrong ships, all the wrong guns, and nothing
but the wrong; in their foolish constructive mania the Admiralty
have been building when they ought to have been waiting; they have
heaped a curious museum of exploded inventions, but they have
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given us nothing serviceable.' The two cries for opposite policies go
on together, and blacken our Executive together, though each is a
defence of the Executive against the other.
Again, the Home Department in England struggles with difficulties of which abroad they have long got rid. We love independent
'local authorities,' little centres of outlying authority. When the
metropolitan executive most wishes to act, it cannot act effectually
because these lesser bodies hesitate, deliberate, or even disobey. But
local independence has no necessary connection with Parliamentary
government. The degree of local freedom desirable in a country
varies according to many circumstances, and a Parliamentary government may consist with any degree of it. We certainly ought not to
debit Parliamentary government as a general and applicable polity
with the particular vices of the guardians of the poor in England,
though it is so debited every day.
Again, as our administration has in England this peculiar difficulty, so on the other hand foreign competing administrations have
a peculiar advantage. Abroad a man under Government is a superior
being; he is higher than the rest of the world; he is envied by almost
all of it. This gives the Government the easy pick of the elite of the
nation. All clever people are eager to be under Government, and are
hardly to be satisfied elsewhere. But in England there is no such
superiority, and the English have no such feeling. We do not respect a
stamp-office clerk, or an exciseman's assistant. A pursy grocer considers he is much above either. Our Government cannot buy for
minor clerks the best ability of the nation in the cheap currency of
pure honour, and no government is rich enough to buy very much of
it in money. Our mercantile opportunities allure away the most
ambitious minds. The foreign bureaux are filled with a selection from
the ablest men of the nation, but only a very few of the best men
approach the English offices.
But these are neither the only nor even the principal reasons why
our public administration is not so good, as, according to principle
and to the unimpeded effects of Parliamentary government, it
should be. There are two great causes at work, which in their consequence run out into many details, but which in their fundamental
nature may be briefly described. The first of these causes is our
ignorance. No polity can get out of a nation more than there is in the
nation. A free government is essentially a government by persuasion;
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and as are the people to be persuaded, and as are the persuaders, so
will that government be. On many parts of our administration the
effect of our extreme ignorance is at once plain. The foreign policy
of England has for many years been, according to the judgment now
in vogue, inconsequent, fruitless, casual; aiming at no distinct preimagined end, based on no steadily preconceived principle. I have
not room to discuss with how much or how little abatement this
decisive censure should be accepted. However, I entirely concede
that our recent foreign policy has been open to very grave and serious blame. But would it not have been a miracle if the English
people, directing their own policy, and being what they are, had
directed a good policy? Are they not, above all nations, divided from
the rest of the world, insular both in situation and in mind, both for
good and for evil? Are they not out of the current of common European causes and affairs? Are they not a race contemptuous of others?
Are they not a race with no special education or culture as to this
modern world, and too often despising such culture? Who could
expect such a people to comprehend the new and strange events of
foreign places? So far from wondering that the English Parliament
has been inefficient in foreign policy, I think it is wonderful, and
another sign of the rude, vague imagination that is at the bottom of
our people, that we have done so well as we have.
Again, the very conception of the English Constitution, as distinguished from a purely Parliamentary constitution is, that it contains 'dignified' parts—parts, that is, retained, not for their intrinsic
use, but from their imaginative attraction upon an uncultured and
rude population. All such elements tend to diminish simple efficiency. They are like the additional and solely-ornamental wheels
introduced into the clocks of the middle ages, which tell the then age
of the moon or the supreme constellation;—which make little men
or birds come out and in theatrically. All such ornamental work is a
source of friction and error; it prevents the time being marked on
accurately; each new wheel is a new source of imperfection. So if
authority is given to a person, not on account of his working fitness,
but on account of his imaginative efficiency, he will commonly
impair good administration. He may do something better than good
work of detail, but will spoil good work of detail. The English aristocracy is often of this sort. It has an influence over the people of vast
value still, and of infinite value formerly. But no man would select
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the cadets of an aristocratic house as desirable administrators. They
have peculiar disadvantages in the acquisition of business knowledge,
business training, and business habits, and they have no peculiar
advantages.
Our middle class, too, is very unfit to give us the administrators we
ought to have. I cannot now discuss whether all that is said against
our education is well grounded; it is called by an excellent judge
'pretentious, insufficient, and unsound.'* But I will say that it does
not fit men to be men of business as it ought to fit them. Till lately
the very simple attainments and habits necessary for a banker's clerk
had a scarcity-value. The sort of education which fits a man for the
higher posts of practical life is still very rare; there is not even a good
agreement as to what it is. Our public officers cannot be as good as
the corresponding officers of some foreign nations till our business
education is as good as theirs.
But strong as is our ignorance in deteriorating our administration,
another cause is stronger still. There are but two foreign administrations probably better than ours, and both these have had something
which we have not had. Theirs in both cases were arranged by a man
of genius, after careful forethought, and upon a special design.
Napoleon built upon a clear stage which the French Revolution
bequeathed him. The originality once ascribed to his edifice was
indeed untrue; Tocqueville and Lavergne have shown that he did but
run up a conspicuous structure in imitation of a latent one before
concealed by the medieval complexities of the old regime* But what
we are concerned with now, is not Napoleon's originality, but his
work. He undoubtedly settled the administration of France upon an
effective, consistent, and enduring system; the succeeding governments have but worked the mechanism inherited from him. Frederic
the Great did the same in the new monarchy of Prussia. Both the
French system and the Prussian are new machines, made in civilised
times to do their appropriate work.
The English offices have never, since they were made, been
arranged with any reference to one another; or rather they were
never made, but grew as each could. The sort of free-trade which
prevailed in public institutions in the English middle ages is very
curious. Our three courts of law—the Queen's Bench, the Common
Pleas, and the Exchequer—for the sake of the fees extended an originally contracted sphere into the entire sphere of litigation. Boni
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judicis est ampliare jurisdictionem, went the old saying;- or, in English,
'It is the mark of a good judge to augment the fees of his court,' his
own income, and the income of his subordinates. The central
administration, the Treasury, never asked any account of the moneys
the courts thus received; so long as it was not asked to pay anything,
it was satisfied. Only last year one of the many remnants of this
system cropped-up, to the wonder of the public. A clerk in the
Patent Office stole some fees, naturally the men of the nineteenth
century thought our principal finance minister, the Chancellor of the
Exchequer, would be, as in France, responsible for it. But the English law was different somehow. The Patent Office was under the
Lord Chancellor, and the Court of Chancery is one of the multitude
of our institutions which owe their existence to fee competition,—
and so it was the Lord Chancellor's business to look after the fees,
which of course, as an occupied judge, he could not. A certain Act of
Parliament did indeed require that the fees of the Patent Office
should be paid into the 'Exchequer;' and, again, the 'Chancellor of
Exchequer,' was thought to be responsible in the matter, but only by
those who did not know. According to our system the Chancellor of
the Exchequer is the enemy of the Exchequer; a whole series of
enactments try to protect it from him. Until a few months ago there
was a very lucrative sinecure called the 'Comptrollership of the
Exchequer,'*—designed to guard the Exchequer against its Chancellor, and the last holder, Lord Monteagle, used to say he was the
pivot of the English Constitution. I have not room to explain what
he meant, and it is not needful; what is to the purpose is that, by
an inherited series of historical complexities, a defaulting clerk in an
office of no litigation, was not under the natural authority, the
finance minister, but under a far-away judge who had never heard of
him.
The whole office of the Lord Chancellor is a heap of anomalies.
He is a judge, and it is contrary to obvious principle that any part of
administration should be entrusted to a judge; it is of very grave
moment that the administration of justice should be kept clear of
sinister temptations. Yet the Lord Chancellor, our chief judge, sits
in the Cabinet, and makes party speeches in the Lords. Lord Lyndhurst was a principal Tory politician, and yet he presided in the
O'Connell case.* Lord Westbury was in chronic wrangle with r"~
bishops, but he gave judgment upon 'Essays and Reviews.'* In tru
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the Lord Chancellor became a Cabinet Minister because, being near
the person of the sovereign, he was high in court precedence, and
not upon a political theory, wrong or right.
,
[ A friend once told me that an intelligent Italian asked him about
the principal English officers, and that he was very puzzled to
explain their duties, and especially to explain the relation of their
duties to their titles. I do not remember all the cases, but I can
recollect that the Italian could not comprehend why the First 'Lord
of the Treasury' had as a rule nothing to do with the Treasury, or
why the 'Woods and Forests' looked after the sewerage of towns.
This conversation was years before the cattle plague, but I should
like to have heard the reasons why the Privy Council office had
charge of that malady. Of course one could give a historical reason,
but I mean an administrative reason—a reason which would show,
I not how it came to have the duty, but why in future it should keep it.
*" But the unsystematic and casual arrangement of our public offices
is not more striking than their difference of arrangement for the one
purpose they have in common. They all, being under the ultimate
direction of a Parliamentary official, ought to have the best means of
bringing the whole of the higher concerns of the office before that
official. When the fresh mind rules, the fresh mind requires to be
informed. And most business being rather alike, the machinery for
bringing it before the extrinsic chief ought, for the most part, to be
similar; at any rate, where it is different, it ought to be different upon
reason, and where it is similar, similar upon reason. Yet there are
almost no two offices which are exactly alike in the defined relationship of the permanent official to the Parliamentary chief. Let us see.
The army and navy are the most similar in nature, yet there is in the
army a permanent office, called the Horse Guards, to which there is
nothing else like. In the navy, there is a curious anomaly—a Board of
Admiralty, also changing with every government, which is to
instruct the First Lord in what he does not know. The relations
between the First Lord and the Board have not always been easily
intelligible, and those between the War Office and the Horse Guards
are in extreme confusion. Even now a Parliamentary paper relating
to them has just been presented to the House of Commons, which
says that the fundamental and ruling document cannot be traced
beyond the possession of Sir George Lewis, who was Secretary for
War three years since; and the confused details are endless, as they
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must be in a chronic contention of offices. At the Board of Trade
there is only the hypothesis of a Board; it has long ceased to exist.
Even the President and Vice-President do not regularly meet for the
transaction of affairs. The patent of the latter is only to transact
business in the absence of the President, and if the two are not
intimate, and the President chooses to act himself, the VicePresident sees no papers and does nothing. At the Treasury the
shadow of a Board exists, but its members have no power, and are the
very officials whom Canning said existed to make a House, to keep a
House, and to cheer the ministers. The India Office has a fixed
'Council;' but the Colonial Office, which rules over our other
dependencies and colonies, has not, and never had, the vestige of a
council. Any of these various Constitutions may be right, but all of
them can scarcely be right.
In truth the real constitution of a permanent office to be ruled by a
permanent chief has been discussed only once in England, that case
was a peculiar and anomalous one, and the decision then taken was
dubious. A new India Office when the East Company was abolished,
had to be made.* The late Mr James Wilson,* a consummate judge
of administrative affairs, then maintained that no council ought to be
appointed eo nomine* but that the true Council of a Cabinet minister
was a certain number of highly paid, much occupied, responsible
secretaries, whom the minister could consult, either separately or
together, as, and when, he chose. Such secretaries, Mr Wilson maintained, must be able, for no minister will sacrifice his own convenience, and endanger his own reputation by appointing a fool to a post
so near himself, and where he can do so much harm. A member of a
Board may easily be incompetent; if some other members and the
chairman are able, the addition of one or two stupid men will not be
felt; they will receive their salaries and do nothing. But a permanent
under-secretary, charged with a real control over much important
business, must be able, or his superior will be blamed, and there will
be 'a scrape in Parliament.'
I cannot here discuss, nor am I competent to discuss, the best
mode of composing public offices, and of adjusting them to a Parliamentary head. There ought be on record skilled evidence on the
subject before a person without specific experience can to any purpose think about it. But I may observe that the plan which Mr
Wilson suggested is that followed in the most successful part of our
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administration, the 'Ways and Means' part. When the Chancellor of
the Exchequer prepares a Budget, he requires from the responsible
heads of the revenue department their estimates of the, public
revenue upon the preliminary hypothesis that no change is made,
but that last year's taxes will continue; if, afterwards, he thinks of
making an alteration, he requires a report on that too. If he has to
renew Exchequer bills, or operate anyhow in the City, he takes the
opinion, oral or written, of the ablest and most responsible person at
the National Debt Office, and the ablest and most responsible at the
Treasury. Mr Gladstone, by far the greatest Chancellor of the
Exchequer of this generation, one of the very greatest of any
generation, has often gone out of his way to express his obligation to
these responsible skilled advisers. The more a man knows himself,
the more habituated he is to action in general, the more sure he is to
take and to value responsible counsel emanating from ability and
suggested by experience. That this principle brings good fruit is
certain. We have by unequivocal admission—the best budget in the
world. Why should not the rest of our administration be as good if
we did but apply the same method to it?
8
ITS SUPPOSED CHECKS AND BALANCES
IN a former essay I devoted an elaborate discussion to the comparison of the royal and the 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 role 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, 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
government. 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
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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 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 governments. 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 observed 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 suffrage 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.
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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
Freedmen'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,
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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 tended 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 trifling, must be sanctioned
by a complicated proportion of States or legislatures. The consequence is that the most obvious evils cannot be quickly remedied;
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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 odd
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. 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
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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,
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 newlyelected 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
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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.1 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
Of course I am not speaking here of the South and South-East, as they now are.
How any free government is to exist in societies where so many bad elements are so
much perturbed, I cannot imagine.
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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 not 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 yourselves 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. i 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
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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 dextrously the
power by which it is 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 intrusted to its appointee, than when it is set apart
in an outlying and 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 intrusted
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
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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 appeal to the nation;
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 machind.* They
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are always intelligent, for they have to live by a difficult 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
opposite 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.
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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
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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.
But there is a still worse case, a case which the life of George III—
which is a sort of museum of the defects of a constitutional king—
suggests at once. The Parliament may be wiser than the people, and
yet the king may be of the same mind with the people. During the
last years of the American war, the Premier, Lord North, upon
whom the first responsibility rested, was averse to continuing it, and
knew it could not succeed. Parliament was much of the same mind; if
Lord North had been able to come down to Parliament with a peace
in his hand, Parliament would probably have rejoiced, and the nation
under the guidance of Parliament, though saddened by its losses,
probably would have been satisfied. The opinion of that day was
more like the American opinion of the present day than like our
present opinion. It was much slower in its formation than our opinion now, and obeyed much more easily sudden impulses from the
central administration. If Lord North had been able to throw the
undivided energy and the undistracted authority of the Executive
Government into the excellent work of making a peace and carrying
a peace, years of bloodshed might have been spared, and an entail of
enmity cut off that has yet to run out. But there was a power behind
the Prime Minister; George III was madly eager to continue the war,
and the nation—not seeing how hopeless the strife was, not comprehending the last antipathy which their obstinacy was creating—
ignorant, dull, and helpless, was ready to go on too. Even if Lord
North had wished to make peace, and had persuaded Parliament
accordingly, all his work would have been useless; a superior power
could and would have appealed from a wise and pacific Parliament to
a sullen and warlike nation. The check which finds for the special
vices of our Parliament was misused to curb its wisdom.
The more we study the nature of Cabinet Government, the more
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we shall shrink from exposing at a vital instant its delicate machinery
to a blow from a casual, incompetent, and perhaps semi-insane outsider. The preponderant probability is that on a great occasion.the
Premier and Parliament will really be wiser than the king. The
Premier is sure to be able, and is sure to be most anxious to decide
well; if he fail to decide, he loses his place, though through all blunders
the king keeps his; the judgment of the man, naturally very discerning, is sharpened by a heavy penalty, from which the judgment of the
man by nature much less intelligent is exempt. Parliament, too, is for
the most part a sound, careful, and practical body of men. Principle
shows that the power of dismissing a Government with which Parliament is satisfied, and of dissolving that Parliament upon an appeal
to the people, is not a power which a common hereditary monarch
will in the long run be able beneficially to exercise.
Accordingly this power has almost, if not quite, dropped out of
the reality of our constitution. Nothing, perhaps, would more surprise the English people than if the Queen by a coup d'etat and on a
sudden destroyed a ministry firm in the allegiance and secure of a
majority in Parliament. That power indisputably, in theory, belongs
to her; but it has passed so far away from the minds of man, that it
would terrify them, if she used it, like a volcanic eruption from
Primrose Hill. The last analogy to it is not one to be coveted as a
precedent. In 1835 William IV dismissed an administration* which,
though disorganised by the loss of its leader in the Commons, was an
existing Government, had a premier in the Lords ready to go on, and
a leader in the Commons willing to begin. The King fancied that
public opinion was leaving the Whigs and going over to the Tories,
and he thought he should accelerate the transition by ejecting the
former. But the event showed that he misjudged. His perception
indeed was right; the English people were wavering in their allegiance to the Whigs, who had no leader that touched the popular
heart, none in whom Liberalism could personify itself and become a
passion—who besides were a body long used to opposition, and
therefore making blunders in office—who were borne to power by a
popular impulse which they only half comprehended, and perhaps
less than half shared. But the King's policy was wrong; he impeded
the re-action instead of aiding it. He forced on a premature Tory
Government, which was as unsuccessful as all wise people perceived
that it must be. The popular distaste to the Whigs was as yet but
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incipient, inefficient; and the intervention of the Crown was advantageous to them, because it looked inconsistent with the liberties of
the people. And in so far as William IV was right in detecting an
incipient change of opinion, he did but detect an erroneous change.
What was desirable was the prolongation of Liberal rule. The commencing dissatisfaction did but relate to the personal demerits of the
Whig leaders, and other temporary adjuncts of free principles, and
not to those principles intrinsically. So that the last precedent for a
royal onslaught on a ministry ended thus:—in opposing the right
principles, in aiding the wrong principles, in hurting the party it was
meant to help. After such a warning, it is likely that our monarchs
will pursue the policy which a long course of quiet precedent at
present directs—they will leave a Ministry trusted by Parliament to
the judgment of Parliament.
Indeed, the dangers arising from a party spirit in Parliament
exceeding that of the nation, and of a selfishness in Parliament contradicting the true interest of the nation, are not great dangers in a
country where the mind of the nation is steadily political, and where
its control over its representatives is constant. A steady opposition to
a formed public opinion is hardly possible in our House of Commons, so incessant is the national attention to politics, and so keen
the fear in the mind of each member that he may lose his valued seat.
These dangers belong to early and scattered communities, where
there are no interesting political questions, where the distances are
great, where no vigilant opinion passes judgment on parliamentaryexcesses, where few care to have seats in the chamber, and where
many of those few are from their characters and their antecedents
better not there than there. The one great vice of parliamentary
government in an adult political nation, is the caprice of Parliament
in the choice of a ministry. A nation can hardly control it here; and it
is not good that, except within wide limits, it should control it. The
Parliamentary judgment of the merits or demerits of an administration very generally depends on matters which the Parliament, being
close at hand, distinctly sees, and which the distant nation does not
see. But where personality enters, capriciousness begins. It is easy
to imagine a House of Commons which is discontented with all
statesmen, which is contented with none, which is made up of little
parties, which votes in small knots, which will adhere steadily to
no leader, which gives every leader a chance and a hope. Such
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Parliaments require the imminent check of possible dissolution; but
that check is (as has been shown) better in the premier than in the
sovereign; and by the late practice of our constitution, its use is
yearly ebbing from the sovereign and yearly centring in the premier.
The Queen can hardly now refuse a defeated minister the chance of
a dissolution, any more than she can dissolve in the time of an
undefeated one, and without his consent.
We shall find the case much the same with the safety-valve, as
I have called it, of our constitution. A good, capable, hereditary
monarch would exercise it better than a premier, but a premier could
manage it well enough; and a monarch capable of doing better will be
born only once in a century, whereas monarchs likely to do worse
will be born every day.
There are two modes in which the power of our executive to
create Peers—to nominate, that is, additional members of our upper
and revising chamber—now acts:, one constant, habitual, noticed by
the popular mind as it goes on; and the other possible and terrific,
scarcely ever really exercised, but always by its reserved magic maintaining a great and a restraining influence. The Crown creates Peers,
a few year by year, and thus modifies continually the characteristic
feeling of the House of Lords. I have heard people say, who ought to
know, that the English peerage (the only one upon which unhappily
the power of new creation now acts) is now more Whig than Tory.
Thirty years ago the majority was indisputably the other way. Owing
to very curious circumstances English parties have not alternated in
power as a good deal of speculation predicts they would, and a good
deal of current language assumes they have. The Whig party were in
office some seventy years (with very small breaks), from the death
of Queen Anne to the coalition between Lord North and Mr
Fox; then the Tories (with only such breaks) were in power for
nearly fifty years, till 1832; and since, the Whig party has always,
with very trifling intervals, been predominant. Consequently, each
continuously-governing party has had the means of modifying the
upper house to suit its views. The profuse Tory creations of half a
century had made the House of Lords bigotedly Tory before the first
Reform Act, but it is wonderfully mitigated now. The Irish Peers
and the Scotch Peers—being nominated by an almost unaltered
constituency, and representing the feelings of the majority of that
constituency only (no minority having any voice)—present an
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unchangeable Tory element. But the element in which change is
permitted has been changed. Whether the English Peerage be or
be not predominantly now Tory, it is certainly not Tory after the
fashion of the Toryism of 1832. The Whig additions have indeed
sprung from a class commonly rather adjoining upon Toryism than
much inclining to Radicalism. It is not from men of large wealth that
a very great impetus to organic change should be expected. The
additions to the Peers have matched nicely enough with the old
Peers, and therefore they have effected more easily a greater and
more permeating modification. The addition of a contrasting mass
would have excited the old leaven, but the delicate infusion of
ingredients similar in genus, though different in species, has
modified the new compound without irritating the old original.
This ordinary and common use of the peer-creating power is
always in the hands of the premier, and depends for its characteristic use on being there. He, as the head of the predominant party,
is the proper person to modify gradually the permanent chamber
which, perhaps, was at starting hostile to him; and, at any rate, can
be best harmonised with the public opinion he represents by the
additions he makes. Hardly any contrived constitution possesses a
machinery for modifying its secondary house so delicate, so flexible, and so constant. If the power of creating life peers had been
added, the mitigating influence of the responsible executive upon
the House of Lords would have been as good as such a thing can
be.
The catastrophic creation of Peers for the purpose of swamping
the upper house is utterly different. If an able and impartial exterior
king is at hand, this power is best in that king. It is a power only to be
used on great occasions, when the object is immense, and the party
strife unmitigated. This is the conclusive, the swaying power of the
moment, and of course, therefore, it had better be in the hands of
a power both capable and impartial, than of a premier who must
in some degree be a partisan. The value of a discreet, calm, wise
monarch, if such should happen at the acute crisis of a nation's
destiny, is priceless. He may prevent years of tumult, save bloodshed
and civil war, lay up a store of grateful fame to himself, prevent the
accumulated intestine hatred of each party to its opposite. But the
question comes back, Will there be such a monarch just then? What
is the chance of having him just then? What will be the use of the
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monarch whom the accidents of inheritance, such as we know them
to be, must upon an average bring us just then?
The answer to these questions is not satisfactory, if we take it from
the little experience we have had in this rare matter. There have been
but two cases at all approaching to a catastrophic creation of Peers—
to a creation which would suddenly change the majority of the Lords
in English history. One was in Queen Anne's time.* The majority of
peers in Queen Anne's time were Whig, and by profuse and quick
creations Harley's Ministry changed it to a Tory majority. So great
was the popular effect, that in the next reign one of the most contested ministerial proposals was a proposal to take the power of
indefinite peer creation from the Crown, and to make the number of
Lords fixed, as that of the Commons is fixed. But the sovereign had
little to do with the matter. Queen Anne was one of the smallest
people ever set in a great place. Swift bitterly and justly said* 'she
had not a store of amity by her for more than one friend at a time,'
and just then her affection was concentrated on a waiting-maid. Her
waiting-maid told her to make peers, and she made them. But of
large thought and comprehensive statesmanship she was as destitute
as Mrs Masham.* She supported a bad ministry by the most extreme
of measures, and she did it on caprice. The next case, the case of
William IV, is far less perfectly known to us. We are to know it
now—Lord Grey promises the correspondence* of that king with
his father during his ministry, in which all the facts must be accurately set forth. But according to our present information, the King
was in the natural state of an imbecile man at a crisis. His mind went
hither and thither; he listened first to his minister, then to the queen,
then perhaps to a secretary. He thought, Can the Duke do anything?
Will Peel do nothing? Must Grey do everything? The vital question
in every mind was, Will the King create Peers? but the King did not
know. He vacillated. The extreme power of the constitution in his
hands was like a gun in the hands of a startled woman, who is so
frightened that she can neither let it off nor put it down. First he
refused to create Peers, and caused a crisis when the greatest people
in the land told others not to pay taxes, when the Birmingham
unions were exciting people to madness, when the stoppage of the
Bank of England was talked of as a political expedient, when 'RUN
FOR GOLD' was placarded all over London. Then the King (according to Lord Brougham, at least) signed a written engagement with
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the Whigs-that he would create as many Peers as they wished, i
wonder you could press him,' Lord Grey said to Lord Brougham,
'when you saw the abject state he was in.' A bystander observed that
he had never seen so large a matter on so small a bit of paper. In fact,
you may place power in weak hands at a revolution, but you cannot
keep it in weak hands. It runs out of them into strong ones. An
ordinary hereditary sovereign—a William IV, or a George IV—is
unable to exercise the peer-creating power when most wanted. A
half-insane king, like George III, would be worse. He might use it by
accountable impulse when not required; and refuse to use it out of
sullen madness when required.
The existence of a fancied check on the premier is in truth an evil,
because it prevents the enforcement of a real check. It would be easy
to provide by law that an extraordinary number of Peers—say more
than ten annually—should not be created except on a vote of some
large majority, suppose three-fourths of the lower house. This would
ensure that the premier should not use the reserve force of the
constitution as if it were an ordinary force; that he should not use it
except when the whole nation fixedly wished it; that it should be
kept for a revolution, not expended on administration; and it would
ensure that he should then have it to use. Queen Anne's case and
William IV's case prove that neither object is certainly attained by
entrusting this critical and extreme force to the chance idiosyncrasies
and habitual mediocrity of an hereditary sovereign.
It may be asked why I argue at such length a question in appearance so removed from practice, and in one point of view so irrelevant
to my subject. No one proposes to remove Queen Victoria; if any one
is in a safe place on earth, she is in a safe place. In these very essays it
has been shown that the mass of our people would obey no one else,
that the reverence she excites is the potential energy—as science now
speaks—out of which all minor forces are made, and from which
lesser functions take their efficiency. But looking not to the present
hour, and this single country, but to the world at large and coming
times, no question can be more practical.
What grows upon the world is a certain matter-of-factness. The
test of each century, more than of the century before, is the test of
results. New countries are arising all over the world where there are
no fixed sources of reverence; which have to make them; which have
to create institutions which must generate loyalty by conspicuous
/
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utility. This matter-of-factness is the growth even in Europe of the
two greatest and newest intellectual agencies of our time. One of
these is business. We see so much of the material fruits of commerce,
that we forget its mental fruits. It begets a mind desirous of things,
careless of ideas, not acquainted with the niceties of words. In all
labour there should be profit, is its motto. It is not only true that we
have 'left swords for ledgers,' but war itself is made as much by the
ledger as by the sword. The soldier—that is, the great soldier—of
today is not a romantic animal, dashing at forlorn hopes, animated by
frantic sentiment, full of fancies as to a ladye-love or a sovereign; but
a quiet, grave man, busied in charts, exact in sums, master of the art
of tactics, occupied in trivial detail; thinking, as the Duke of Wellington was said to do, most of the shoes of his soldiers; despising all
manner of eclat and eloquence; perhaps, like Count Moltke,* 'silent
in seven languages.' We have reached a 'climate' of opinion where
figures rule, where our very supporter of Divine right, as we deemed
him, our Count Bismarck,* amputates kings right and left, applies
the test of results to each, and lets none live who are not to do
something. There has in truth been a great change during the last
five hundred years, in the predominant occupations of the ruling
part of mankind; formerly they passed their time either in exciting
action or inanimate repose. A feudal baron had nothing between war
and the chase—keenly animating things both—and what was called
'inglorious ease.' Modern life is scanty in excitements, but incessant
in quiet action. Its perpetual commerce is creating a 'stock-taking
habit'; the habit of asking each man, thing, and institution, 'Well,
what have you done since I saw you last?'
Our physical science, which is becoming the dominant culture of
thousands, and which is beginning to permeate our common literature to an extent which few watch enough, quite tends the same way.
The two peculiarities are its homeliness and its inquisitiveness: its
value for the most 'stupid' facts, as one used to call them, and its
incessant wish for verification^ to be sure, by tiresome seeing and
hearing, that they are facts. The old excitement of thought has half
died out, or rather it is diffused in quiet pleasure over a life, instead
of being concentrated in intense and eager spasms. An old philosopher—a Descartes, suppose—fancied that out of primitive truths,
which he could by ardent excogitation know, he might by pure
deduction evolve the entire universe. Intense self-examination, and
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intense reason would, he thought, make out everything. The soul
'itself by itself,' could tell all it wanted if it would be true to its
sublime isolation. The greatest enjoyment possible to man was that
which this philosophy promises its votaries—the pleasure of being
always right, and always reasoning—without ever being bound to
look at anything. But our most ambitious schemes of philosophy now
start quite differently. Mr Darwin begins:—*
'When on board H.M.S. Beagle, as naturalist, I was much struck
with certain facts in the distribution of the organic beings inhabiting
South America, and in the geological relations of the present to the
past inhabitants of that continent. These facts, as will be seen in
the latter chapters of this volume, seemed to throw some light on the
origin of species—that mystery of mysteries, as it has been called by
one of our greatest philosophers. On my return home, it occurred to
me, in 1837, that something might perhaps be made out on this
question by patiently accumulating and reflecting on all sorts of facts
which could possibly have any bearing on it. After five years' work I
allowed myself to speculate on the subject, and drew up some short
notes; these I enlarged in 1844 into a sketch of the conclusions,
which then seemed to me probable: from that period to the present
day I have steadily pursued the same object. I hope that I may be
excused for entering on these personal details, as I give them to show
that I have not been hasty in coming to a decision.'
If he hopes finally to solve his great problem, it is by careful
experiments in pigeon fancying, and other sorts of artificial variety
making. His hero is not a self-inclosed, excited philosopher, but 'that
most skilful breeder, Sir John Sebright,* who used to say, with
respect to pigeons, that he would produce any given feathers in three
years, but it would take him six years to obtain a head and a beak.' I
am not saying that the new thought is better than the old; it is no
business of mine to say anything about that; I only wish to bring
home to the mind, as nothing but instances can bring it home, how
matter-of-fact, how petty, as it would at first sight look, even our
most ambitious science has become.
In the new communities which our emigrating habit now constantly creates, this prosaic turn of mind is intensified. In the American mind and in the colonial mind there is, as contrasted with the
old English mind, a literalness, a tendency to say, 'The facts are soand-so, whatever may be thought or fancied about them.' We used
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before the civil war to say that the Americans worshipped the
almighty dollar; we now know that they can scatter money almost
recklessly when they will. But what we meant was half right—they
worship visible value; obvious, undeniable, intrusive result. And in
Australia and New Zealand the same turn comes uppermost. It
grows from the struggle with the wilderness. Physical difficulty is
the enemy of early communities, and an incessant conflict with it
for generations leaves a mark of reality on the mind—a painful
mark almost to us, used to impalpable fears and the half-fanciful
dangers of an old and complicated society. The 'new Englands' of
all latitudes are bare-minded (if I may so say) as compared with the
'old.'
When, therefore, the new communities of the colonised world
have to choose a government, they must choose one in which all the
institutions are of an obvious evident utility. We catch the Americans
smiling at our Queen with her secret mystery, and our Prince of
Wales with his happy inaction. It is impossible, in fact, to convince
their prosaic minds that constitutional royalty is a rational government, that it is suited to a new age and an unbroken country, that
those who start afresh can start with it. The princelings who run
about the world with excellent intentions, but an entire ignorance of
business, are to them a locomotive advertisement that this sort of
government is European in its limitations and mediaeval in its origin; that though it has yet a great part to play in the old states, it has
no place or part in new states. The realisme impitoyahle* which good
critics find in a most characteristic part of the literature of the nineteenth century, is to be found also in its politics. An ostentatious
utility must characterise its creations.
The deepest interest, therefore, attaches to the problem of this
essay. If hereditary royalty had been essential to parliamentary government, we might well have despaired of that government. But
accurate investigation shows that this royalty is not essential; that,
upon an average, it is not even in a high degree useful; that though a
king with high courage and fine discretion,—a king with a genius for
the place,—is useful, and at rare moments priceless, yet that a common king, a king such as birth brings, is of no use at difficult crises,
while in the common course of things his aid is neither likely nor
required—he will do nothing, and he need do nothing. But we happily find that a new country need not fall back into the fatal division
Its Supposed Checks and Balances
177
of powers incidental to a presidential government; it may, if other
conditions serve, obtain the ready, well-placed, identical sort of
sovereignty which belongs to the English Constitution, under the
unroyal form of Parliamentary Government.
Its History, and the Effects of that History 179
9
ITS HISTORY, AND THE EFFECTS OF THAT HISTORY—
CONCLUSION
A VOLUME might seem wanted to say anything worth saying on the
History of the English Constitution, and a great and new volume
might still be written on it, if a competent writer took it in hand. The
subject has never been treated by any one combining the lights of the
newest research and the lights of the most matured philosophy.
Since the masterly book of Hallam* was written, both political
thought and historical knowledge have gained much, and we might
have a treatise applying our strengthened calculus to our augmented
facts. I do not pretend that I could write such a book, but there are a
few salient particulars which may be fitly brought together, both
because of their past interest and of their present importance.
There is a certain common polity, or germ of polity, which we find
in all the rude nations that have attained civilisation. These nations
seem to begin in what I may call a consultative and tentative absolutism. The king of early days, in vigorous nations, was not absolute as
despots now are; there was then no standing army to repress rebellion, no organised espionage to spy out discontent, no skilled bureaucracy to smooth the ruts of obedient life. The early king was indeed
consecrated by a religious sanction; he was essentially a man apart, a
man above others, divinely anointed, or even God-begotten. But in
nations capable of freedom this religious domination was never despotic. There was indeed no legal limit: the very words could not be
translated into the dialect of those times. The notion of law as we
have it—of a rule imposed by human authority, capable of being
altered by that authority when it likes, and in fact, so altered
habitually—could not be conveyed to early nations, who regarded
law half as an invincible prescription, and half as a Divine revelation.
Law 'came out of the king's mouth;' he gave it as Solomon gave
judgment,—embedded in the particular case, and upon the authority
of Heaven as well as his own. A Divine limit to the Divine revealer
was impossible, and there was no other source of law. But though
there was no legal limit, there was a practical limit to subjection
in (what may be called) the pagan part of human nature,—the
inseparable obstinacy of freemen. They never would do exactly what
they were told.
To early royalty, as Homer describes it in Greece and as we may
well imagine it elsewhere, there were always two adjuncts: one, the
'old men,' the men of weight, the council, the pouA, f |, of which the
king asked advice, from the debates in which the king tried to learn
what he could do and what he ought to do. Besides this there was the
ayopct, the purely listening assembly as some have called it, but the
tentative assembly as I think it might best be called. The king came
down to his assembled people in form to announce his will, but in
reality, speaking in very modern words, to 'feel his way.' He was
sacred, no doubt; and popular, very likely; still he was half like a
popular premier speaking to a high-spirited chamber: there were
limits to his authority and power; limits which he would discover by
trying whether eager cheers received his mandate, or only hollow
murmurs and a thinking silence.
This polity is a good pne for its era and its place, but there is a fatal
defect in it. The reverential associations upon which the government
is built are transmitted according to one law, and the capacity needful
to work the government is transmitted according to another law. The
popular homage clings to the line of god-descended kings; it is
transmitted by inheritance. But very soon that line comes to a child
or an idiot, or one by some defect or other incapable. Then we find
everywhere the truth of the old saying, that liberty thrives under
weak princes; then the listening assembly begins not only to murmur, but to speak; then the grave council begins not so much to
suggest as to inculcate, not so much to advise as to enjoin.
Mr Grote has told at length how out of these appendages of the
original kingdom the free States of Greece derived their origin,
and how they gradually grew—the oligarchical States expanding
the council, and the democratical expanding the assembly. The
history has as many varieties in detail as there were Greek cities, but
the essence is the same everywhere. The political characteristic of
the early Greeks, and of the early Romans, too, is that out of the
tentacula of a monarchy they developed the organs of a republic.
English history has been in substance the same, though its form is
different, and its growth far slower and longer. The scale was larger,
and the elements more various. A Greek city soon got rid of its kings,
for the political sacredness of the monarch would not bear the daily
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inspection and constant criticism of an eager and talking multitude.
Everywhere in Greece the slave population—the most ignorant, and
therefore the most unsusceptible of intellectual influences—was
struck out of the account. But England began as a kingdom of considerable size, inhabited by distinct races, none of them fit for prosaic
criticism, and all subject to the superstition of royalty. In early England, too, royalty was much more than a superstition. A very strong
executive was needed to keep down a divided, an, armed, and an
impatient country; and therefore the problem of political development was delicate. A formed free government in a homogeneous
nation may have a strong executive; but during the transition state,
while the republic is in course of development and the monarchy in
course of decay, the executive is of necessity weak. The polity is
divided, and its action feeble and failing. The different English
people have progressed, too, at different rates. The change in the
state of the higher classes since the Middle Ages is enormous, and it
is all improvement; but the lower have varied little, and many argue
that in some important respects they have got worse, even if in
others they have got better. The development of the English Constitution was of necessity slow, because a quick one would have
exhausted the executive and killed the State, and because the most
numerous classes, who changed very little, were not prepared for
any catastrophic change in our institutions.
In its outline the process of development has been simple. The
exact nature of all Anglo-Norman institutions is perhaps dubious: at
least, in nearly all cases there have been many controversies. Political
zeal, whether Whig, or Tory, has wanted to find a model in the past;
and the whole state of society being confused, the precedents altering with the caprice of men and the chance of events, ingenious
advocacy has had a happy field. But all that I need speak of is quite
plain. There was a great 'council' of the realm, to which the king
summoned the most considerable persons in England, the persons
he most wanted to advise him, and the persons whose tempers he
was most anxious to ascertain. Exactly who came to it at first is
obscure and unimportant. I need not distinguish between the 'magnum concilium in Parliament' and the 'magnum concilium out of
Parliament'. Gradually the principal assemblies summoned by the
English sovereign took the precise and definite form of Lords and
Commons, as in their outside we now see them. But their real nature
Its History, and the Effects of that History 181
was very different. The Parliament of today is a ruling body; the
mediaeval Parliament was, if I may say so, an expressive body. Its
function was to tell the executive—the king—what the nation
wished he should do; to some extent, to guide him by new wisdom,
and, to a very great extent, to guide him by new facts. These facts
were their own feelings, which were the feelings of the people,
because they were part and parcel of the people. From thence the
king learned or had the means to learn, what the nation would
endure, and what it would not endure;—what he might do, and what
he might not do. If he much mistook this, there was a rebellion.
There are, as is well known, three great periods in the English
Constitution. The first of these is the ante-Tudor period. The English Parliament then seemed to be gaining extraordinary strength
and power. The title to the crown was uncertain; some monarchs
were imbecile. Many ambitious men wanted to 'take the people into
partnership' Certain precedents of that time were cited with grave
authority centuries after, when the time of freedom had really
arrived. But the causes of this rapid growth soon produced an even
more sudden decline. Confusion fostered it, and confusion destroyed it. The structure of society then was feudal; the towns were
only an adjunct and a make-weight. The principal popular force was
an aristocratic force, acting with the co-operation of the gentry and
yeomanry, and resting on the loyal fealty of sworn retainers. The
head of this force, on whom its efficiency depended, was the high
nobility. But the high nobility killed itself out. The great barons who
adhered to the 'Red Rose' or the 'White Rose,' or who fluctuated
from one to the other, became poorer, fewer, and less potent every
year. When the great struggle ended at Bosworth, a large part of the
greatest combatants were gone. The restless, aspiring, rich barons,
who made the civil war, were broken by it. Henry VII attained a
kingdom in which there was a Parliament to advise, but scarcely a
Parliament to control.
The consultative government of the ante-Tudor period had little
resemblance to some of the modern governments which French
philosophers call by that name. The French Empire, I believe, calls
itself so. But its assemblies are symmetrical 'shams.' They are elected
by a universal suffrage, by the ballot, and in districts once marked
out with an eye to equality, and still retaining a look of equality. But
our English parliaments were asymmetrical realities. They were
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The English Constitution
elected anyhow; the sheriff had a considerable license in sending
writs to boroughs, that is, he could in part pick his constituencies;
and in each borough there was a rush and scramble for the franchise,
so that the strongest local party got it, whether few or many. But in
England at that time there was a great and distinct desire to know the
opinion of the nation, because there was a real and close necessity.
The nation was wanted to do something—to assist the sovereign in
some war, to pay some old debt, to contribute its force and aid in the
critical conjuncture of the time. It would not have suited the anteTudor kings to have had a fictitious assembly; they would have lost
their sole feeler, their only instrument for discovering national opinion. Nor could they have manufactured such an assembly if they
wished. The instrument in that behalf is the centralised executive,
and there was then no prefet by whom the opinion of a rural locality
could be made to order, and adjusted to suit the wishes of the capital.
Looking at the mode of election, a theorist would say that these
parliaments were but 'chance' collections of influential Englishmen.
There would be many corrections and limitations to add to that
statement if it were wanted to make it accurate, but the statement
itself hits exactly the principal excellence of those parliaments. If
not 'chance' collections of Englishmen, they were 'undesigned' collections; no administrations made them or could make them.
They were bond-fide counsellors, whose opinion might be wise or
unwise, but was anyhow of paramount importance, because their
co-operation was wanted for what was in hand.
Legislation as a positive power was very secondary in those old
parliaments. I believe no statute at all, as far as we know, was passed
in the reign of Richard I, and all the ante-Tudor acts together
would look meagre enough to a modern Parliamentary agent* who
had to live by them. But the negative action of parliament upon the
law was essential to its whole idea, and ran through every part of its
use. That the king could not change what was then the almost
sacred datum of the common law, without seeing whether his nation
liked it or not, was an essential part of the 'tentative' system. The
king had to feel his way in this exceptional, singular act, as those
ages deemed original legislation, as well as in lesser acts. The legislation was his at last; he enacted after consulting his Lords and
Commons; his was the sacred mouth which gave holy firmness to
the enactment; but he only dared alter the rule regulating the
Its History, and the Effects of that History 183
common life of his people after consulting those people; he would
not have been obeyed if he had, by a rude age which did not fear civil
war as we fear it now. Many most important enactments of that
period (and the fact is most characteristic) are declaratory acts.
They do not profess to enjoin by inherent authority what the law
shall in future be, but to state and mark what the law is; they are
declarations of immemorial custom, not precepts of new duties.
Even in the 'Great Charter'* the notion of new enactments was
secondary; it was a great mixture of old and new; it was a sort of
compact defining what was doubtful in floating custom, and was reenacted over and over again, as boundaries are perambulated once a
year, and rights and claims tending to desuetude thereby made
patent and clear of new obstructors. In truth, such great 'charters'
were rather treaties between different orders and factions, confirming ancient rights, or what claimed to be such, than laws in our
ordinary sense. They were the 'deeds of arrangement' of medieval
society affirmed and re-affirmed from time to time, and the principal controversy was, of course, between the king and nation—the
king trying to see how far the nation would let him go, and the
nation murmuring and recalcitrating, and seeing how many acts of
administration they could prevent, and how many of its claims they
could resist.
Sir James Mackintosh says that Magna Charta 'converted the
right of taxation into the shield of liberty,'* but it did nothing of the
sort. The liberty existed before, and the right to be taxed was an
efflorescence and instance of it, not a substratum or a cause. The
necessity of consulting the great council of the realm before taxation,
the principle that the declaration of grievances by the Parliament
was to precede the grant of supplies to the sovereign, are but conspicuous instances of the primitive doctrine of the ante-Tudor
period, and the king must consult the great council of the realm
before he did anything, since he always wanted help. The right of
self-taxation was justly inserted in the 'great treaty;' but it would
have been a dead letter, save for the armed force and aristocratic
organisation which compelled the king to make a treaty; it was a
result, not a basis—an example, not a cause.
The civil wars of many years killed out the old councils (if I might
so say); that is, destroyed three parts of the greater noblesse, who
were its most potent members; tired the smaller noblesse and the
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The English Constitution
gentry and overthrew the aristocratic organisation on which all
previous effectual resistance to the sovereign had been based.
The second period of the British Constitution begins with the
accession of the House of Tudor, and goes down to 1688; it is in
substance the history of the growth, development, and gradually
acquired supremacy of the new great council. I have no room and no
occasion to narrate again the familiar steps by which the slavish
Parliament of Henry VIII grew into the murmuring Parliament of
Queen Elizabeth, the mutinous Parliament of James I, and the rebellious Parliament of Charles I. The steps were many, but the energy
was one—the growth of the English middle-class, using that word in
its most inclusive sense, and its animation under the influence of
Protestantism. No one, I think, can doubt that Lord Macaulay is
right in saying* that political causes would not alone have then provoked such a resistance to the sovereign, unless propelled by
religious theory. Of course, the English people went to and fro from
Catholicism to Protestantism, and from Protestantism to Catholicism (not to mention that the Protestantism was of several shades
and sects), just as the first Tudor kings and queens wished. But that
was in the pre-Puritan era. The mass of Englishmen were in an
undecided state, just as Hooper tells us his father was*—'Not believing in Protestantism, yet not disinclined to it.' Gradually, however, a
strong Evangelic spirit (as we1 should now speak) and a still stronger
anti-Papal spirit entered into the middle sort of Englishmen, and
added to that force, fibre, and substance, which they have never
wanted, an ideal warmth and fervour which they have almost always
wanted. Hence the saying that Cromwell founded the English Constitution. Of course, in seeming, Cromwell's work died with him; his
dynasty was rejected, his republic cast aside; but the spirit which
culminated in him never sank again; never ceased to be a potent,
though often a latent and volcanic, force in the country. Charles II
said that he would never go again on his travels* for anything or
anybody; and he well knew that though the men whom he met at
Worcester might be dead, still the spirit which warmed them was
alive and young in others.
But the Cromwellian republic and the strict Puritan creed were
utterly hateful to most Englishmen. They were, if I may venture on
saying so, like the 'Rouge' element in France and elsewhere—the
sole revolutionary force in the entire State, and were hated as such.
Its History, and the Effects of that History 185
That force could do little of itself; indeed, its bare appearance tended
to frighten and alienate the moderate and dull as well as the refined
and reasoning classes. Alone it was impotent against the solid clay of
the English apathetic nature. But give this fiery element a body of
decent-looking earth; give it an excuse for breaking out on an occasion, when the decent, the cultivated, and the aristocratic classes
could join with it, and they could conquer by means of it, and it
could be disguised in their covering.
Such an excuse was found in 1688. James II, by incredible and
pertinacious folly, irritated not only the classes which had fought
against his father, but also those who had fought for his father. He
offended the Anglican classes as well as the Puritan classes; all the
Whig nobles and half the Tory nobles, as well as the dissenting
bourgeois. The rule of Parliament was established by the concurrence of the usual supporters of royalty with the usual opponents of
it. But the result was long weak. Our revolution has been called the
minimum of a revblution, because in law, at least, it only changed the
dynasty, but exactly on that account it was the greatest shock to
the common multitude, who see the dynasty but see nothing else.
The support of the main aristocracy held together the bulk of the
deferential classes, but it held them together imperfectly, uneasily,
and unwillingly. Huge masses of crude prejudice swayed hither and
thither for many years. If an able Stuart had with credible sincerity
professed Protestantism, probably he might have overturned the
House of Hanover. So strong was inbred reverence for hereditary
right, that until the accession of George III the English Government was always subject to the unceasing attrition of a competitive
sovereign.
This was the result of what I insist on tediously, but what is most
necessary to insist on, for it is a cardinal particular in the whole topic.
Many of the English people—the higher and more educated
portion—had come to comprehend the nature of constitutional government, but the mass did not comprehend it. They looked to the
sovereign as the government, and to the sovereign only. These were
carried forward by the magic of the aristocracy, and principally by
the influence of the great Whig families with their adjuncts. Without
that aid reason or liberty would never have held them.
Though the rule of Parliament was definitely established in 1688,
yet the mode of exercising that rule has since changed. At first
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The English Constitution
Parliament did not know how to exercise it; the organisation of
parties and the appointment of cabinets by parties grew up in the
manner Macaulay has described so well. Up to the latest period the
sovereign was supposed, to a mischievous extent, to interfere hi the
choice of the persons to be Ministers. When George III finally
became insane, in 1810, every one believed that George IV, on
assuming power as Prince Regent, would turn out Mr Perceval's
government* and empower Lord Grey or Lord Grenville, the Whig
leaders, to form another. The Tory ministry was carrying on a successful war—a war of existence—against Napoleon; but in the
people's mind, the necessity at such an occasion for an unchanged
government, did not outweigh the fancy that George IV was a Whig.
And a Whig, it is true, he had been before the French Revolution,
when he lived an indescribable life in St James's Street with Mr
Fox.* But Lord Grey and Lord Grenville were rigid men, and had no
immoral sort of influence. What liberalism of opinion the Regent
ever had was frightened outof him (as of other people) by the Reign
of Terror. He felt, according to the saying of another monarch, that
'he lived by being a royalist.'* It soon appeared that he was most
anxious to retain Mr Perceval, and that he was most eager to quarrel
with the Whig Lords. As we all know, he kept the ministry whom he
found in office;.but that it should have been thought he could then
change them, is a significant example how exceedingly modern our
notions of the despotic action of Parliament in fact are.
By the steps of the struggle thus rudely mentioned (and by others
which I have no room to speak of, nor need I), the change which in
the Greek cities was effected both in appearance and in fact, has been
effected in England, though in reality only, and not in outside. Here,
too, the appendages of a monarchy have been converted into the
essence of a republic; only here, because of a more numerous heterogeneous political population, it is needful to keep the ancient show
while we secretly interpolate the new reality.
This long and curious history has left its trace on almost every
part of our present political condition; its effects lie at the root
of many of our most important controversies; and because these
effects are not rightly perceived, many of these controversies are
misconceived.
One of the most curious peculiarities of the English People is its
dislike of the executive government. We are not in this respect '«»
Its History, and the Effects of that History 187
vraipeuple moderne'* like the Americans. The Americans conceive
of their executive as one of their appointed agents; when it intervenes in common life, it does so, they consider, in virtue of the
mandate of the sovereign people, there is no invasion or dereliction
of freedom in that people interfering with itself. The French, the
Swiss, and all nations who breathe the full atmosphere of the nineteenth century, think so too. The material necessities of this age
require a strong executive; a nation destitute of it cannot be clean, or
healthy, or vigorous like a nation possessing it. By definition, a nation
calling itself free should have no jealousy of the executive, for freedom means that the nation, the political part of the nation, wields
the executive. But our history has reversed the English feeling: our
freedom is the result of centuries of resistance, more or less legal, or
more or less illegal, more or less audacious, or more or less timid, to
the executive Government. We have, accordingly, inherited the traditions of conflict, and preserve them in the fullness of victory. We
look on State action, not as our own action, but as alien action; as an
imposed tyranny from without, not as the consummated result of
our own organised wishes. I remember at the Census of 1851* hearing a very sensible old lady say that 'the liberties of England were at
an end;' if Government might be thus inquisitorial, if they might ask
who slept in your house, or what your age was, what, she argued,
might they ask and what might they not do.
The natural impulse of the English people is to resist authority.
The introduction of effectual policemen was not liked. I know
people, old people I admit, who to this day consider them an
infringement of freedom, and an imitation of the gendarmes of
France. If the original policemen had been started with the present
helmets, the result might have been dubious; there might have been a
cry of military tyranny, and the inbred insubordination of the English people might have prevailed over the very modern love of perfect
peace and order. The old notion that the Government is an extrinsic
agency still rules our imaginations, though it is no longer true, and
though in calm and intellectual moments we well know it is not. Nor
is it merely our history which produces this effect; we might get over
that, but the results of that history co-operate. Our double Government so acts: when we want to point the antipathy to the executive,
we refer to the jealousy of the Crown, so deeply imbedded in the
very substance of constitutional authority; so many people are loath
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The English Constitution
to admit the Queen, in spite of law and fact, to be the people's
appointee and agent, that it is a good rhetorical emphasis to speak of
her prerogative as something now-popular and to be distrusted. By
the very nature of our Government our executive cannot be 'liked
and trusted as the Swiss or the American is liked and trusted.
Out of the same history and the same results proceed our tolerance of those 'local authorities' which so puzzle many foreigners. In
the struggle with the Crown these local centres served as props and
fulcrums. In the early parliaments it was the local bodies who sent
members to parliament, the counties, and the boroughs; and in that
way, and because of their free life, the parliament was free too. If
active, real bodies had not sent the representatives, they would have
been powerless. This is very much the reason why our old rights of
suffrage were so various; the Government let whatever people happened to be the strongest in each town choose the members. They
applied to the electing bodies the test of'natural selection;' whatever
set of people were locally strong enough to elect, did so. Afterwards,
in the civil war, many of the corporations, like that of London, were
important bases of resistance. The case of London is typical and
remarkable. Probably, if there is any body more than another, which
an educated Englishman now-a-days regards with little favour, it is
the Corporation of London. He connects it with hereditary abuses
perfectly preserved, with large revenues imperfectly accounted for,
with a system which stops the principal city government at an old
archway, with the perpetuation of a hundred detestable parishes,
with the maintenance of a horde of luxurious and useless bodies. For
the want of all which makes Paris nice and splendid we justly
reproach the Corporation of London; for the existence of much of
what makes London mean and squalid we justly reproach it too. Yet
the Corporation of London was for centuries a bulwark of English
liberty. The conscious support of the near and organised capital gave
the Long Parliament* a vigour and vitality which they could have
found nowhere else. Their leading patriots took refuge in the City,
and the nearest approach to an English 'sitting in permanence' is the
committee at Guildhall, where all members 'that came were to have
voices.' Down to George Ill's time* the City was a useful centre of
popular judgment. Here, as elsewhere, we have built into our polity
pieces of the scaffolding by which it was erected.
De Tocqueville indeed used to maintain that in this matter the
Its History, and the Effects of that History 189
English were not merely historically excusable, but likewise politically judicious. He founded what may be called the culte of corporations.* And it was natural that in France, where there is scarcely any
power of self-organisation in the people, where the prefer must be
asked upon every subject, and take the initiative in every movement,
a solitary thinker should be repelled from the exaggerations of which
he knew the evil, to the contrary exaggeration of which he did not.
But in a country like England, where business is in the air, where we
can organise a vigilance committee on every abuse and an executive
committee for every remedy—as a matter of political instruction,
which was De Tocqueville's point—we need not care how much
power is delegated to outlying bodies, and how much is kept for the
central body. We have had the instruction municipalities could give
us: we have been through all that. Now we are quite grown up, and
can put away childish things.
The same causes account for the innumerable anomalies of our
polity. I own that I do not entirely sympathise with the horror of
these anomalies which haunts some of our best critics. It is natural
that those who by special and admirable culture have come to look at
all things upon the artistic side, should start back from these queer
peculiarities. But it is natural also that persons used to analyse political institutions should look at these anomalies with a little tenderness and a little interest. They may have something to teach us.
Political philosophy is still most imperfect; it has been framed from
observations taken upon regular specimens of politics and States; as
to these its teaching is most valuable. But we must ever remember
that its data are imperfect. The lessons are good where its primitive
assumptions hold, but may be false where those assumptions fail. A
philosophical politician regards a political anomaly as a scientific
physician regards a rare disease—it is to him an 'interesting case.'
There may still be instruction here, though we have worked out the
lessons of common cases. I cannot, therefore, join in the full cry
against anomalies; in my judgment it may quickly overrun the scent,
and so miss what we should be glad to find.
Subject to this saving remark, however, I not only admit, but
maintain, that our constitution is full of curious oddities, which are
impeding and mischievous, and ought to be struck out. Our law very
often reminds one of those outskirts of cities where you cannot for a
long time tell how the streets come to wind about in so capricious
i go
The English Constitution
and serpent-like a manner. At last it strikes you that they grew up,
house by house, on the devious tracks of the old green lanes; and if
you follow on to the existing fields, you may often find the change
half complete. Just so the lines of our constitution were framed in
old eras of sparse population, few wants, and simple habits; and we
adhere in seeming to their shape, though civilisation has come with
its dangers, complications, and enjoyments. These anomalies, in a
hundred instances, mark the old boundaries of a constitutional
struggle. The casual line was traced according to the strength of
deceased combatants; succeeding generations fought elsewhere; and
the hesitating line of a half-drawn battle was left to stand for a
perpetual limit.
I do not count as an anomaly the existence of our double government, with all its infinite accidents, though half the superficial peculiarities that are often complained of arise out of it. The co-existence
of a Queen's seeming prerogative and a Downing Street's real government is just suited to such a country as this, in such an age as
ours.1
The effect of this history, and the consequent institutions, upon
what our national character is, has been great; and its effect on the
common idea of that character cannot be exaggerated. Half the
world believes that the Englishman is born illogical, and that he has
a sort of love of complexity in and for itself. They argue no nation
with any logic in them could ever make such a constitution. And in
fact no one did make it. It is a composite result of various efforts,
very few of which had any reference to the look of the whole, and of
which the infinite majority only had a very bounded reference to a
proximate end. The French political work is just the same in like
circumstances. Under the old regime, each province in France had
most complex and traditional institutions, which have perished out
of memory, very much because they were so involved that no one can
describe them at once truly and graphically. They were so very bad
that they have ceased to be remembered against the national character. Even under the present Government, whenever a large body of
political relations is the gradual effect of changing arrangements,
' So well is our real Government concealed, that if you tell a cab-man to drive to
'Downing Street' he most likely will never have heard of it, and will not in the least
know where to take you.
Its History, and the Effects of that History 191
complexity comes out. Any one who will try to state at all accurately
the relations between the French railways and the Emperor* will
find that he has taken in hand a very difficult descriptive task,
so complex is the present bargain, and so inexplicable, except by
reference to previous bargains.
The evidence of language, the best single evidence of national
character, goes to show that the English care more, even than the
French, for simplicity, and are less patient of meaningless anomalies.
If the facts were the other way, I am sure we should have many a
pretty essay in Paris on the barbarous conservatism of the English in
retaining genders. As they have kept and me abandoned them, we
hear nothing about it; but a more meaningless anomaly, or one less
explicable except by dim investigation into the far-off antiquity of
language cannot be found. The plain English grammar is evidence
all through of the fundamental simplicity of the English character. I
believe it is admitted that the Americans are a logical people, and
French and Germans, too,—so that the ingredients of the English
people and the outcome of it are both logical, but that the nation
itself is illogical. There is an obvious improbability in this theory
which should keep people from asserting it.
But though I deny that the English Constitution is a result of an
illogical intellect, and though I maintain that at bottom the English
character is mentally and morally very consistent and straightforward, yet I concede that the spectacle of this beneficial puzzle (for
such our constitution is to most who live under it), is not a good
teaching for symmetrical arrangements. Being in itself, as Englishmen think, so good and yet so illogical, it gives them a suspicion of
logic. Seeing that the best practical things they know are produced
by an inexplicable process, they are apt to doubt the efficiency of any
explicable process. And as far as the constitution itself is concerned
they are right in thinking it dangerous to apply to it quick and
sweeping thoughts. You must take the trouble to understand the plan
of an old house before you can make a scheme for mending it; simple
diagrams are very well on an empty site, but not upstairs in a gothic
mansion. Any good alteration of our constitution must be based on a
precise description of the part affected, and that delineative premiss
can scarcely ever be plain. So far the English suspicion of conspicuous logic is true and well-founded, but undeniably they have come to
regard their constitution not only as a precedent but as a model, and
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so have sometimes a confidence in analogous compromises, rather
than in contrasted simple measures. But the half measure must be
one we understand. New complexity, as such, is detestable to the
English mind; and let any one who denies it, try to advocate some
plan of suffrage reform at all out of the way, and see how long it will
be before he ceases to be able to count his disciples upon the fingers
of a single hand.
And lastly, this history and its complex consequences have made
the great political question of the day, the suffrage question, exceedingly difficult; have made it such that no perfect solution can be
looked for, and that only a choice of difficulties, is possible.
There are two sorts of countries in which the suffrage question is
easy. In a large community of peasant proprietors and no one else,
where society is homogeneous, where comfort is universal, and
where education is diffused, you cannot help having tolerable constituencies. You may draw parallelograms over the country of equal
area, and call them constituencies, or you may make pens of equal
numbers of persons, and call them constituencies, and either way the
result will be about the same. A rough nation, where a common sort
of education is plenty, and comfort sure, will yield a decent sort of
parliament under any electoral system, though it cannot yield a
refined one under any. We may frame likewise the image of a community, in which the less educated and less wealthy part of the
nation yielded a conscious loyalty to superior knowledge. This
would be a deference founded expressly on reason and justified by
avowed argument. In that community it would be possible to give all
some votes each, but to give the rich and wise each many votes. The
fealty of the community being to certain specified classes and qualities, you might openly and plainly give to those qualities and those
classes a superior power in the polity.
But England is not like either of these countries. We are (as I
showed at, perhaps, tedious length in a former essay) a deferential
nation, but we are deferential by imagination, not by reason. The
homage of our ignorant classes is paid not to individual things but to
genejal things, not to precise things but to vague things. They are
impressed by the great spectacle of English society; they bow down
willingly, but they do not reckon their idols, they do not rationalise
their religion. A country village is very happy and contented now;
it acquiesces in a government which it likes. But it would not be
Its History, and the Effects of that History 193
contented if any one put before it bare inquiries. If any one said,
'Will you be subject to persons who live in £20 houses, or £30
houses; or will you agree to take votes yourselves, on condition that
those who live in big houses, or those who spell well, or those who
add up well, shall have more votes?' If we wish to comprehend what
England really is, we should fancy a set of Dorsetshire peasants
assembled by the mud-pond of the village solemnly to answer these
questions. The utmost stretch of wisdom the conclave could arrive at
would be, 'Ah, sir, you gentlefolks do know; and the Queen, God
bless her! will see us righted.'
Of course, as soon as we see that England is a disguised republic
we must see too that the classes for whom the disguise is necessary
must be tenderly dealt with. In fact, we do deal very tenderly with
them, even the roughest of us. Our most bold demagogues steer clear
of country villages, and small towns, and lone farmhouses, where
those ideas are rife. They do not even descend into the 'lanes' of the
city, and track the ignorant they there find. Probably if they did, they
would not find the least wish for the suffrage, or the least real knowledge of what it means. These classes do often enough want much,
and want it bitterly. But they would interrupt the best of Mr Bright's
speeches, as the mob did in Paris, 'Pain, pain pas de longs discours.'*
Bonaparte, we know, hoped to gain the acquiescence of the Egyptians by promising them a constitution, which (as Mr Kinglake truly
said*) was like a sportsman hoping to fill his game-bag by promising
the partridges a House of Commons. Much the same would be the
result of trying to make an explicit constitution for our ignorant
classes. They now defer involuntarily, unconsciously, and happily,
but they would not defer argumentatively.
The plain result is that on the whole England is not a bit like
either a country where numbers rule, or a country where mind, as
mind, rules. The masses are infinitely too ignorant to make much of
governing themselves, and they do not know mind when they see it.
Rank they comprehend, and money they comprehend, but, except
in the vague phrase, 'He be a sharp hand,' their conception of the
abstract intellect is feeble and inexpressible.
The existing system (as I have before shown) is a very curious one.
The middle classes rule under the shadow of the higher classes. The
immense majority of the borough constituencies at least belong to
the lower middle class, and the majority of the county constituency
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is, I suppose, by no means of the highest middle class. These people
are the last to whom any people would yield any sort of homage if
they saw them. They are but the 'dry trustees' of a fealty given to
others. The mass of the English lower classes defer to the English
higher class, but the nominal electors are a sort of accidental intermediaries, who were not chosen for their own merits and do not
choose out of their own number.
It is not pleasant to observe how artificial our system is, and to be
convinced that no natural system would serve our turn. The result
of our electoral system is the House of Commons, and that House is
our sovereign. As that House is, so will our Cabinet be, so will our
administration be, so will our policy be. We have vested, therefore,
the trust of our supremest power in persons chosen upon no system,
and who if they elected people like themselves would be unbearable.
Yet a simple system would be fatal. Some eager persons, indeed, who
are dissatisfied with what they call the imbecility of our present
Parliament—meaning by that, not its want of sense or opinion, but
its want of vigour in action—hope to get an increase of energy by a
wholesale democratic reform. They give us metaphors about the
Titan who touched earth, and I do not feel quite sure that this
illustration does not, even with themselves, do duty as an argument.
They think that as there are passions at the bottom of the social
scale, so there is energy. But ideas are wanted as well as impulse, and
there are no ideas among our ignorant poor. Let us examine the
matter carefully.
Suppose household suffrage all over England with the present
constituencies. The result would be that the counties would be still
as much, even if not more than now, in the hands of the landowners.
They would be able by means of the labourers—who never had a
reasonable political opinion and who have no pretence of independence and intelligence—to control the entire constituency. The lower
you go in the agricultural counties, under some limiting line, such as
£20 or £15, the more you strengthen the present rulers; the tighter
you bind the yoke of quarter sessions.
Then as to the small boroughs, the lower you go in them the more
you aggravate the force of money. There are not in the enormous
majority of country towns any working men who have much opinion
about politics, or sufficient self-respect to abstain from selling their
vote. Not twenty men in ten thousand in those classes can compre-
Its History, and the Effects of that History 195
hend in the least why any one thinks votes should not be sold. They
know, of course, that 'gentlefolks' say so, but they regard it as an
error engendered by high living, and part of the nonsense the rich
talk about the poor. Very good judges assure me that these feelings
are not declining but growing. Not only is more and more wealth
brought to bear on the constituencies year by year, but the class of
questions which a poor person can understand is become exceedingly small. If Ritualism could be made a political question,* it might
be different. I have no doubt a candidate who could say anywhere
that he was for anti-Ritualism, and his opponent for Ritualism,
would be elected by acclamation. He would be the genuine representative of the actual electors on, perhaps, the only question they care
for. In many places it would be worth a man's life to take a bribe to
'vote for the Pope.' But if a person will try to explain administrative
reform, or law reform, or even parliamentary reform, to a chance
audience in a small borough, he will only find a dull languor. No
common working man there really thinks of them by himself, or is
able to enter into them when stated rapidly or orally by others.
Persons, of course, interest the multitude more. A candidate new to
the business not long since asked an old hand what he should speak
about. The answer was 'Gladstone and Garibaldi.* Stick to them as
long as possible, and get back to them as quick as you can.' There is
so little to interest poor electors now-a-days, and so much money is
all but thrown at them, that instead of wondering at their vice in
being bribed, we should think them political anchorites if they were
not so. The lower you go in the minor towns, the more sure and the
more inflexible you make the dominion of wealth.
The larger towns are doubtless different,—at least, much more
mixed. There are in them a considerable, though uncertain number
of really intellectual artizans; and these are very well fit to form a
political opinion, and far too well off to care much about a bribe.
What the number of these thoughtful artizans is we cannot indeed
tell. We can guess roughly at the number of the whole artizan class;
but this includes many very different from those we speak of. There
are many who never think of politics, who could not think of them,
who care only for such pleasures as they can get. But what the
proportion is between the good artizan and the inferior artizan—the
artizan who is no better than other people—we have no means of
even investigating. There are no 'mental and moral statistics' here to
io6
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help us; and I do not claim to be able from personal knowledge to
know the true ratio, while such estimates as I have been able to elicit
from others differ immensely. We can only allege that as both classes
largely exist, in a political estimate both must be carefully allowed
for.
But the vote of the inferior-working man is simply the vote of the
'wire-puller.' I am not competent to explain in detail how the inferior
species of large constituencies are managed now, but in general
everybody knows that money will buy them, and that certain persons
will contract for them. They are mapped out, I believe, by the electioneering agents, and each contractor for a district, or a set of votes,
has a subcontractor for bits of the district and parts of the set. This
fate will happen to all but the most rigid and political artizans, as it
happens to all except the most strict and most intellectual of the
lower middle classes. Here again, is the rule of money, just as in the
small boroughs.
The result of our investigations, therefore, is this. So far from an
ultra-democratic suffrage giving us a more homogeneous and
decided House of Commons, it would give us a less homogeneous
and a more timid House. There would be first, a new element,—the
representative of the intellectual artizan, but he would be in a vast
minority, and only a new item in a motley crowd; next, there would
be the rich member for the corrupt big borough; next, the rich
member for the corrupt small borough; and, next, the county member, much as he is now, but perhaps intensified and more even still of
a class member. Now wealth is the most timid of all things; and the
kind of people most apt to purchase seats are the most politically
ignorant of people. They are newly-made rich men, who by hard
labour and great skill in business have made large fortunes; or again,
they are new men, who wish to be thought rich, and are deeply
engaged in traffic and companies. These people have never been
much used to give much attention to politics; they have no leisure,
and perhaps no inclination either, to begin to give real attention to
them in middle age; they float with the opinion of the day; they are
guided by what was in the newspapers last week, and change to what
may be there next week. Such men are timid upon a double score:
they fear as rich men, that their wealth may be endangered; and they
fear as ignorant men, that they may be entrapped into something
they do not comprehend. They will bring no vigour. The landlord
Its History, and the Effects of that History 197
will bring none either; and the House will be more heterogeneous
and probably be more vacillating and timid than now.
This argument, I shall be told, assumes that the present constitution will be retained though the suffrage is lowered, and that the
point of the demonstration depends upon that retention. But I
answer by denial. I say that any readjustment of boundaries would
leave the matter much the same. There are not enough pure and
rigid citizens, under a very low suffrage, to elect above a fraction of
the House, pick the electoral places where you like; but territorial
and aristocratic influence has its indefeasible seats, and money its
power everywhere. The nature of our constitution is not predominantly in fault, but the nature of our people.
As far as I can see, the theory of the augmented administrative
power of a more democratic government rests not upon an accurate
argument, but upon a kind of faith. Sanguine men assume that the
English, somehow or other, ought to have the best possible government, and when they find that Parliament is not so decided as they
like, they are angry, and clutch at the readiest means of altering
Parliament. But it is of little use to alter the suffrage unless we alter
ourselves. A free government cannot be wiser than a free nation; it is
but their fruit and outcome, and it must be as they are. The real
source of the weakness in our policy is in ourselves—in our ignorance. Let any one take to pieces the brains of any twenty persons he
knows well, and think how little accurate knowledge, how little
defined opinion, how little settled notion of State policy there is in
any of them. Let him see, too, how each opinion flickers and changes
with the patent facts of the day, and with what the last newspaper
said; and note how various the opinions are. Perhaps no two heads
will have any notion quite the same—some extrinsic notion—some
cuckoo's egg, perchance, of stolid prejudice. Neither man nor nation
can be vigorous except upon a defined and settled creed.
The advocates of the artizan's claims ought to take warning by
France. The visible experiment there conclusively proves that universal suffrage will not necessarily help ouvriers. The intelligent
workmen of Paris and Lyons, and elsewhere, are the most eager
opponents of the Imperial Government. Their imagined socialism
was the object—if not the real object, at least the alleged and
believed object—struck at by the coup d'etat; there is never an election of deputies at which they do not return as many opponents of
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the Emperor as they can. Yet the Emperor boasts, and truly boasts,
that he rules by universal suffrage; firmly based on the fear and
ignorance of innumerable rural proprietors, he despises the intelligent working men, as well as the literary classes of the great towns;
he knows both hate him, and he lets both hate him. Because France,
in comparison with England, is a homogeneous country, and because
its rural population greatly outnumbers its town population, and
because the nature of an elected empire abolishes the influence of
minorities, the result of universal suffrage has no doubt there been
the establishment of a strong government. But that government is
established by the enslavement of the particular intelligent class
whom here we wish to enfranchise; and as we are not a homogeneous
country, and as we have a Parliamentary Government which preserves some influence for minorities, we should not get the good
from universal suffrage that the French have, although we should get
the evil, for the thinking artizan would be outnumbered here as
much as there.
The very nature of our social system, therefore, forbids those
rough and rude changes which the boldest political physicians prescribe. Those changes would not, indeed, as unthinking people
fancy, cause massacre and confiscation. In spite of De Tocqueville,*
in spite of a hundred similar teachers, the instantia terrifica of. the
original French Revolution still rules men's fancies. They think that
democracy means the guillotine; that as Sydney Smith said,* 'it
abolishes human life and human rents.' But here democracy would
mean the rule of money, and mainly and increasingly of new money
working upon ignorance for its -own ends. It would not destroy our
constitution by sudden revolution, but it would vitally impair it by
spoiling our Parliament. What then must be done? Is our electoral
system so refined, so delicate, that we cannot venture to touch it?
Can we not meet the wants of this age as our fathers did that of other
ages?
Something will have to be done. The numerous, the organised, the
intellectual class of artizans who live close to our greatest wealth, and
in the very foci of our most delicate credit, must not be teased with
the continual proffer of the suffrage and the continued denial of it.
Their physical strength we might indeed well cope with, if we had
the rest of the nation to back us. They are a great and formidable
number, but they could be coerced at once if they were the assailants
Its History, and the Effects of that History 199
of property or the enemies of order. If their cause was unjust, we
could resist them; but we have neither physical nor moral force to
use when their demand is judicious. They are a class fit to be
entrusted with the franchise, and whom it is desirable to entrust with
it.
The simplest expedient which has as yet been proposed for that
purpose is to recur to the old English system of different suffrages in
different boroughs, which existed down to the Act of 1832. Whether
that system can or cannot be revived, I think there can be little doubt
that its abolition was an error. It gave an element of variety to our
constitution, exactly where it was wanted. Sir James Mackintosh and
Lord Russell, and other Whig authorities, had written panegyrics on
it.* In the hurry of a half revolution, and from the need of a simple
bill, this valuable legacy of old times was unhappily discarded. But if
it can be revived now, it affords the readiest and easiest help out of
our palpable difficulty.
But I have not to deal now with this or that plan for representing
artizans; I have to do here with the Reform question not as respects
its solution, but as respects its difficulty. It affords the best illustration of the nature of our constitution, such as history and the nature
of the people have made it. It shows the difficulty of maintaining and
amplifying Parliamentary institutions in the midst of a various, and,
at the bottom of the social scale, ignorant and poor nation; it brings
out unmistakably the fact that our constitution is not based on equality, or on an avowed and graduated adjustment to intelligence and
property; but upon certain ancient feelings of deference and a
strange approximate mode of representing sense and mind, neither
of which must be roughly handled, for if spoiled they can never be
remade, and they are the only supports possible of a polity such as
ours, in a people such as ours.
And thus I may fitly, perhaps, close these essays on the English
Constitution. They will have served their purpose if they assist to
break up obsolete traditions on an important subject; if they induce
others to treat it according to the sight of their eyes, and not according to the hearing of their ears; if even by their errors they should
stir some great thinker to embody the experience of England so as to
be useful to mankind.
APPENDIX ON REFORM
IN a pamphlet published in 1859 I stated at greater length the mode
in which the scheme of Reform, stated at the end of the last essay,
might be effected. I had intended to have added here some quotations from that pamphlet, but I do not find them very suitable to my
purpose. I prefer to cite the following article, stating the same plan,
which appeared in the Economist for 24th December, 1864:'A SIMPLE PLAN OF REFORM
'We last week showed why the Reform question is so difficult. We
showed that people must bend their mind to something new; must
accept some anomaly; must admit something out of the way. If they
do not, sooner or later democracy is inevitable. The great artizan
class is augmenting in numbers, growing in intelligence, intensifying
in political tastes. It will have before long some recognised place in
the national system. The existing ideas, the common ideas, afford it
no place but an exclusive place. Solely founded in all the constituencies on a uniform basis of mere number, it inevitably gives in all
constituencies a uniform preponderance to the most numerous class.
Throw open the door, admit the working class, and they will be
everywhere the most numerous. Some new plan, some additional
experiment, some uncommon conception is required, unless we wish
to have a worse America, in which the lower orders are equally
despotic, but are not equally intelligent. We must choose between
anomaly and democracy. There is no third alternative.
'We have then to consider what is the minimum of anomaly which
will be sufficient for our preservation. How can we best and easiest,
in the most effectual way, the most comprehensible way, the most
acceptable way, admit the working classes to some power without
giving them the whole power? How can we concede to them a share
in the Constitution without sacrificing the whole Constitution to
them?
'We must look carefully at the real world before we try to solve this
problem. It is no use upon this subject of all subjects to evade facts,
amuse ourselves with theories, spin cobwebs. We are dealing with a
The English Constitution
Appendix on Reform
plain rough matter of political business, and any misconception of
our data, any misconception in our design, will be sure to lead us
into grievous error. We must really face the question as it truly
stands, or it is of no use facing it at all.
'But when we look at the Reform movement as it exists in the
world, we immediately perceive that this question of the working
men is in practice inseparably associated and confused with a very
different question. There is another great interest in this country
which conceives itself to be ill represented,—which believes that it
does not occupy its true place,—which thinks that it is kept down,
overshadowed, cast into the shade by other interests unequal to itself
in value, feebler in intelligence, lower in vigour, and inferior in political capacity. We mean new commercial wealth. It cannot be denied
that much of the wealth created in the last thirty years is dissatisfied
with the settlement of the Constitution made thirty years since,—
that it is restless and dissatisfied,—that it fancies older, more
aristocratic, less energetic classes cast it into the shade. When the
distribution of the English representation was originally made, the
Southern part of England was not only the most gentle and agreeable, but the most rich and energetic. The ports of Devonshire were
celebrated wherever the English navy was known. What are now old
and mouldering seaport towns were then active victorious marts,
eager with enterprise, and sparkling with the intelligence of the day.
England north of the Trent was in old times a less cultivated, a
harsher, and less populous region. Naturally, therefore, the duty (the
charge was the phrase of those times) was entrusted to the towns
which were the most eminent for industry and for wealth. Parliamentary boroughs were placed in the South because it was adapted
for Parliamentary boroughs: they were not placed in the North,
beacuse it was not adapted. Centuries of change and industry have
altered all this. The North is now the industrial region, the vigorous
member, the growing part of the Commonwealth, and we are only
carrying out the original design of the English representation, if we
take from the parts which were then living but are now dead, and add
to the parts which had not been born but now live and thrive.
'No one who observes the Reform agitation closely can fail to see
how closely this feeling—this sensation of the insufficient representation of commercial wealth and manufacturing industry—is associated with the cry for working-class representation. It is the master
manufacturers who agitate for the enfranchisement of their own
workmen. The classes whose immediate interests are most clearly
opposed, who are constantly and of necessity driving unpleasant
bargains with each other, who often are at bitter feud, are on this
subject at one. The capitalist heads the movement of the citizen; he
is sometime more clamorous for the rights of labour than the
labourer himself. The explanation is simple. The capitalist and the
labourer have a united interest—a common object—in this matter.
They wish to push forward the present seats of their common industry into the places now occupied by the mouldering remains of past
industry. When a great manufacturer says at a West Riding meeting,
"I wish to alter the Constitution, so that the working classes around
me should be represented," he means that undoubtedly very sincerely, but he means also, and more sincerely, because half consciously, "We—I, and such as I—ought to have more power. The
stationary South must no longer govern the advancing North."
202
203
'Examined by the grave tests of sound philosophy, it cannot be
denied that the whole new world of the North has its grievance as
well as the artizan part of that world. Neither has such a place in the
community as it ought to have. The effect of the Act of 1832 was to
lessen the powers of the working classes in the country: the Act of
1832, though it did something to remedy the inequality between
North and South—though it gave something to the new and took
something from the old—did not adjust the balance even in the
inequality it stood then; it did not transfer enough for a just rectification at that time, much less did it adjust matters as they should stand
now that, after thirty busy years, the claimant has achieved such vast
progress, and the possessor has plainly made so little. A good scheme
of reform would both increase the power of what we must
roughly but intelligibly call "the North," at the same time that it
gave some power to the whole working classes, though denying them
the whole power.
'We would propose to effect both these objects by the following
means. Transfer a certain considerable number of members from
insignificant boroughs,—from the well-known boroughs which have
uniformly figured in every schedule of proposed disfranchisement,—
to the great seats of industry, and in those seats of industry, and
there only, lower the franchise, so as to admit artizan classes. This
would give the necessary representation to the working classes, and it
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Appendix on Reform
would give them only that necessary representation. Being only possessed of a certain number of seats, they could not rule the country,
they could not impose on it their enthusiasms, their prejudices, or
their fancied interests. Their members would be only one sort of
members out of many sorts. They would contribute an element to a
Parliament; they would not elect a Parliament. At the same time, this
plan would cure the now faulty division between the more progressive part of England and the less progressive. The proposed transfer
would give to those who ought to have, and take from those who
ought not to have; and this is what is wanted.
'It may be justly objected that this plan would throw the representation of the great seats of industry, of the most intelligent part of
the country, into the exclusive power of the least intelligent inhabitants in those places. But we would meet that objection. We would
give to each of these great cities with low suffrage as many as three
members, and allow all voters to give their three votes to any one
candidate. This would give the rich and cultivated one member at
least; for they would always be a large minority, and any minority
greater than a fourth is by this plan sure of a vote.
'It may also be objected that this plan is an unjust plan. It gives, it
may be said, a vote to an operative in borough A, and denies a vote to
a precisely similar operative in borough B. But there is no injustice
when we examine the matter. No one has a right to a political power
which he will use to impair a better man's political power. The real
injustice would be to give votes to all the working classes, for then, in
substance, all the better classes, the more instructed classes, the more
opulent classes, would have no votes at all. Supposing this selection
of special constituencies to be the best mode of admitting the operative to a limited share of power, we need not fear the accusation of its
injustice. It will be for the excluded operative to suggest some better
plan for giving his class some power, and not giving them the whole
power. Till he has given us a better scheme, we may rightfully act on
what we think best. And, unquestionably, the operative in the
«»selected is not injured by the enfranchisement of the operative in
the selected place. We take from him nothing; only we do not see our
way to give him that which we see our way to give to another man.
'The common sense of this plan is the great recommendation of
it. You have a great intelligent class to enfranchise, and by lowering
the franchise in great cities you will enfranchise it. But in the mass of
the boroughs there is no such class. Where, as the Times justly asked,
is "there in Thetford the instructed, intelligent political class that our
reformers speak of?" Why, then, touch Thetford? We wish to lower
the franchise because we wish to give votes to a special class. In the
mass of boroughs that class is not to be found; why, then, alter the
franchise in the mass of boroughs? A great argument for this plan,
too, is that which Mr Buxton put so happily in his letter to the
Times*—"a Parliament composed of human beings might vote for
it." He found, he said, that the indiscriminate adoption of the minority principle, as it is called—of the permission, that is, to concentrate
his votes on any candidate he likes—would change so many seats at
the next election, that it could never be got through the House of
Commons. So many people would feel they were voting for their
own destruction. We rather fear that the same objection would apply
to the plan which Mr Buxton proceeded to suggest, the giving a
greater number of votes to the rich than to the poor. This, too, being
a great diffused change affecting all constituencies, and affecting
them much, would be very difficult to pass. Everybody would feel
"that may hurt me in my borough. It is an unknown element. I am in
now, but after this newfangled thing is introduced I may not come
in." We fear the universal action of selfish fear upon every member
for every seat.
205
'But, according to the plan we have put forward, the great mass
of seats and boroughs would not be touched at all. Their members
would say, "This is a good Bill; this does not 'touch us.'" Of course,
the members for the places from which seats were to be taken
would be sure to complain, and perhaps the places where the constituency was to be augmented might also complain. But the virtuous indignation of an uninjured majority would soon tread down
the selfishness of these few. Mr Roebuck would rise* and ask "If the
selfishness of a small minority was to be despotic in this country?"
And the vast majority, happy to escape being hurt themselves,
would feel a pleasant patriotism in the necessary immolation of the
selected few.
'As we said, we propose this plan—saying that it includes an
anomaly, and even because it includes an anomaly. Nothing, as we
before proved at length, which does not include an extraordinary
uncommon element will achieve the work which there is to do. We
concede the exceptional nature of our scheme, but we believe that
206
The English Constitution
something exceptional is necessary and that this is the minimum of
exception.'
I do not know whether such a scheme as this is now pqssible.
Perhaps the passions of men have become too excited, and a more
commonplace plan is all which can be hoped for. But I am sure it was
possible when the above article was written, and that it would have
saved us from many evils.
THE END
EXPLANATORY NOTES
3 Lincoln's death: Abraham Lincoln (1809-65) was assassinated on 14 April
1865 by John Booth, a Confederate sympathizer. His running mate (and
therefore Vice-President) Andrew Johnson (1808-75) then succeeded
him as US President. By 1867 (when this edition of Bagehot was published) Congress had opposed Johnson's policy of readmitting Southern
representatives. Johnson vetoed Congress's measures and Congress
overrode his veto. (He later narrowly survived an impeachment by one
vote.)
5 Mr Mill: John Stuart Mill (1806-73), philosopher and MP for Westminster, 1865-8.
io ex vi termini: by definition.
11 Sir R. Walpole: Sir Robert Walpole (1676-1745), First Lord of the
Treasury and Chancellor of the Exchequer from 1721 to 1742, is usually
regarded as the first Prime Minister.
The discriminating favour of William IV. . . rivals: in July 1834, on the
resignation of Earl Grey, William IV surprisingly appointed the
inexperienced Lord Melbourne (1779-1848) Prime Minister.
Lord Palmerston: Henry John Temple, Lord Palmerston (1784-1865) was
Prime Minister in the years 1855-7 and 1859-65. Visibly weak when
Bagehot commenced the English Constitution he died on October 18,1865.
13 Lord Melbourne put his back to the door and said . . . : Melbourne is
reported to have made this comment following a cabinet meeting in
March 1841.
15 Indian Chancellor... England: following the Government of India Act of
1858 a Governor General of India (based mainly in Calcutta) had his own
financial department, whilst back in Britain the Secretary of State for
India had an advisory council, including a financial member. In theory all
Indian expenditure was controlled by the Secretary of State.
an angry financial correspondence with Jefferson Davis: on 13 March 1865
Jefferson Davis (1808-89), President of the Confederate States, sent a
message to the Confederate Congress at Richmond, accusing it of holding up the mobilization of troops. On 18 March the Congress assembled
for what proved the last time and gave Davis's message a critical
reception.
16 I leave this passage to stand . . . : Abraham Lincoln (1809-65) was assassinated on 14 April 1865 by John Booth, a Confederate sympathizer.
Andrew Johnson (1808-75), the new President, declared that 'Treason
must be made infamous, and traitors must be impoverished.'
19 Confederate rebellion: the American Civil War effectively began in
2o8
Explanatory
Notes
February 1861 with the secession of six southern states and the election
of Jefferson Davis as President of the Confederacy.
38
'The political condition,' says Mr Grote: George Grote, A History of
Greece, 12 vols. (1846-56), ii. 82-6.
19 Mr Breckenridge: John Cabell Breckenridge (1821-75), Vice-President,
1856—60 and unsuccessful pro-slavery,Presidential candidate in i860.
41 the marriage of the Prince of Wales: the Prince of Wales and Princess
Alexandra were married at Windsor on 10 March 1863.
20 Washington and Hamilton: George Washington (1732-99) was the first
President of the USA (1789-97) and Alexander Hamilton (1757-1804)
was the first Secretary of the Treasury. Both men attended the convention in Philadelphia in 1787 which drew up the constitution.
Court Circular: then, as now, most newspapers included a column listing
events involving the royal family. There was also a 'society' newspaper of
the same name which commenced publication in 1856.
22 Lord Liverpool . . . Chatham . . . Louis Philippe . . . Napoleon: Robert
Banks Jenkinson, Lord Liverpool (1770-1828), was Prime Minister
between 1812 and 1827 and was known for his pragmatic approach to
government. By contrast, William Pitt, 1st Earl of Chatham (1708-78),
Secretary of State and effectively Prime Minister between 1756 and
1761, was a strident Foreign Minister. Louis Philippe (1773-1850), was
King of France between 1830 and 1848 and proved more of a constitutional monarch than any of his predecessors. Following his military
successes Napoleon Bonaparte (1769-1821) became Emperor of France
in 1804.
Cavour: Count Camillo Benso di Cavour (1810-61), Prime Minister of
the Kingdom of Sardinia between 1852 and 1859 and the behind-thescenes architect of Italian unification.
23 at the Crimean difficulty: in February 1855 the government headed by
Lord Aberdeen, a coalition of Whigs, Peelites, and Radicals, resigned
over accusations that it had mismanaged the war effort. Aberdeen, who
had sought a negotiated peace with Russia from the outset of the
difficulties, was replaced by Lord Palmerston, who favoured direct
Franco-British action against Russia.
the Reform Act: the 1832 Reform Act, which not only overhauled the
electoral system, but also contributed to the growth of parliamentary
government.
the singular defect . . . President: Johnson, the military governor of
Tennessee, was Lincoln's vice-presidential running mate in the 1864
Presidential campaign, and, not long after inauguration, was rushed
into office as President after Lincoln's assassination.
24 the first election of Mr Lincoln: although well-known in Illinois, Lincoln
was a relative newcomer in the presidential campaign of i860 and won
largely because the two Democrat party candidates, Breckenridge and
Douglas, split the vote.
the Queen's letter to Mrs Lincoln: Queen Victoria sent a letter of condolence to Abraham Lincoln's widow soon after his assassination.
42 After the Revolution: the 'Glorious revolution' was the bloodless coup of
1688 whereby James II abdicated and William of Orange and Mary
acceded to the throne. When Anne (1655-1714), Mary's sister, succeeded
in 1702, her father, James II, had already died, but her brother James
Stuart (1688-1766), the 'old Pretender', remained as a claimant to the
crown.
43 the Pretender: see previous note.
44 by virtue of 6 Anne, c. 7: 6 Anne c. 7 is the 1707 Act of Succession.
45 utilitarians: the followers of the philosopher Jeremy Bentham (17481832), who, among other things, demanded cheap government.
They quote Napoleon's saying: Napoleon disapproved of the 1799 constitution, in which the Abbe Sieyes (1748-1836) had a hand and in which
the 'grand elector' would rule alongside two nominated consuls. Formerly French Foreign Minister in 1836 and 1840, Louis Adolphe Thiers
(1797-1877) was one of the foremost historians of his generation, the
author of LHistoire de la revolution francaise (1823—7) and LHistoire du
consulat et de I'empire (1845-62).
46 Lord and Lady Derby: Edward Stanley, 14th Earl of Derby (1799-1869),
Prime Minister 1852, 1858-9, 1867-8, and Emma Caroline, Lady Derby.
47 an 'upper ten thousand': contemporary slang for the social elite. The
phrase originated in New York in the 1840s.
Socrates: Greek philosopher f.470-399 BC.
52 it would have been impossible for Italy . . . than his: as King of Sardinia,
Victor Emmanuel (1820-78), helped unite Cavour's Piedmontese nationalists in the north with Garibaldi's redshirts in southern Italy.
the failure of Louis Philippe: in February 1848 at the first sign of unrest,
Louis Philippe (1773-1850), the King of France, panicked and dismissed
Francois Guizot (1787-1874), his Foreign Minister and de facto head of
the administration.
our great Satirist: Bagehot is probably alluding to the satirical journal,
Punch.
29 summum bonum: highest good.
53 Lord North: Frederick, 8th Lord North (1732-92), Prime Minister
between 1770 and 1782.
34 the £IQ borough renters, and the £50 county renters: the 1832 Reform Act
enfranchised occupiers of property worth £10 rental per annum in the
boroughs and £50 in the counties.
54 the Queen very wisely attempted to make life Peers: in 1856, seeking to
increase the number of Law Lords, Lord Palmerston recommended that
the judge James Parke (1782-1868) be made Baron Wensleydale for his
2io
Explanatory
Notes
lifetime. However, a House of Lords committee of privileges decided that
the Crown's power to create life peers had fallen into disuse.
54 Comyn's 'Digest': Sir John Comyn's Digest of the Laws of England, 5 vols.
(1762-7).
55 Mr Fox . . . 'of an infernal spirit': attributed to Fox, speaking in the House
of Commons, 22 February 1782, by Horace Walpole, Journal of the Reign
of King George HI, from the Year IJJI to 1783, 2 vols. (1859), ii. 507.
Lord Thurlow: Edward, 1 st Baron Thurlow (1731-1806), Lord Chancellor,
1778-83, 1788-92.
the Queen used to sign all military commissions: the Officers' Commissions
Act of 1862 removed the necessity of obtaining the royal signature.
57 There must be a meeting at Willis's Rooms': on 6 June 1859 the whole of
the Liberal party in the House of Commons met at Willis's Rooms in
central London in order that Lord Palmerston and Lord John Russell
might patch up their differences.
58 at the Schleswig-Holstein difficulty: in July 1864, having been defeated on
the issue in the House of Lords, Lord Palmerston's government survived
an attack by Disraeli on its handling of the Prussian occupation of
Holstein.
59 Almost at the beginning of his career: in 1762 George III ousted Chatham
in favour of the Marquis of Bute. In 1805 he rejected William Pitt's
suggestion that Charles James Fox be invited to join the ministry.
(Chatham is William Pitt the elder; Bute is John Stuart, 3rd Marquis of
Bute (1713-92); Pitt is William Pitt the younger.)
Addington: Henry Addington, 1st Viscount Sidmouth (1757-1844), former Speaker of the House of Commons, led an unremarkable ministry
between 1801 and 1804.
60 The events of 1858: in February 1858, led by Thomas Milner Gibson
(1806-84), many radical MPs joined with the Conservative opposition to
defeat Lord Palmerston's government over the Conspiracy to Murder
bill.
61 Duke of Newcastle: Thomas Pelham Holies, 2nd Duke of Newcastle
(1693-1768), Prime Minister between 1754 and 1756, and nominally
head of the ministry between 1757 and 1762 (although Pitt the elder was
Prime Minister to all intents and purposes).
62 Madame de Walmoden: in 1738, a year after Queen Caroline's death,
George II moved his mistress, Amalie Sophie Wallmoden (1704-65), into
St James's Palace. She was created Countess of Yarmouth in 1740. NB:
Wallmoden is the German spelling given in standard histories. Presumably Bagehot is using the Frenchified version.
the Marchioness of Conyngham: Elizabeth, Marchioness Conyngham
(1770-1861) lived, along with her husband, in the royal household of
George IV.
Explanatory Notes
211
63 In 1851 Louis Napoleon had his coup d'etat: in a remark made to the
French ambassador, Lord Palmerston (1784-1865) expressed approval of
Louis Napoleon's overthrow of the republican constitution. Under pressure from Queen Victoria, Lord John Russell (1792-1878) advised him to
resign as Foreign Secretary.
66 King Leopold has exercised immense power : . . I have described: elected in
1831, Leopold I (1790-1865) was a constitutional monarch. He himself
described his situation as one in which 'the state was in reality a republic
with the shades of monarchical forms'.
a commanding influence over Lord Malmesbury: James Howard Harris, 3rd
Earl Malmesbury (1807-89), Foreign Secretary in 1852 and again in
1858-9.
'The divinity which doth hedge a king': Shakespeare, Hamlet, iv. v.
The best instance is Lord Chatham: William Pitt the elder, 1st Earl
Chatham (1708-78), enjoyed great popularity following British successes
in the Seven Years' War (1756-63).
67 Mr Burke: Edmund Burke (1729-97), Whig MP and political writer.
Letter to the Marquis of Rockingham, 5 January 1775, in Burke,
Correspondence between 1744 and I7Q7, 4 vols. (1844), i. 503-8.
the 'doubtfulness things are involved in': Joseph Butler (1692-1752),
Bishop of Durham and moral philosopher. Author of Analogy of Religion
Natural and Revealed (1736).
69 the reply of the Emperor Alexander to Madame de Stael: a comment made in
1812 and cited in Maria Norris, Life and Times of Madame de Stael
(1853), 35471 says Swift: Jonathan Swift (1667-1745), satirist and politician. Swift to
Mrs Dingley, 7 April 1713; Letters written by the late Jonathan Swift. . .
1703-40, 4 vols. (1776-8), i. 373corruptio optimi pessima: corruption of the best is worst.
72 Mr Pitt's wise plans: after the Union with Ireland came into effect in
1801 Pitt proposed the emancipation of Catholics, against George Ill's
wishes.
76 As our great satirist has observed: again, probably Punch.
The 'wicked Lord Lowther': James Lowther, Earl of Lonsdale (1736-1802).
77 a Duke of Devonshire, . . . Duke of Bedford . . . Thurlow: the Cavendish
family (the Dukes of Devonshire) and the Russell family (the Dukes of
Bedford) were amongst the wealthiest landowners in Britain. Edward
Thurlow (1731-1806) was Lord Chancellor between 1778 and 1783.
county members . . . borough members: in the years before the 1832 Reform
Act it was calculated that around 200 parliamentary seats were 'nomination boroughs', that is not available for open election but controlled by
the Crown or aristocratic patrons.
78 The Upper House of our Victorian Constitution: in 1864 the Upper House
212
Explanatory
Notes
in the Australian colony of Victoria blocked the new government's
Appropriation bill, as it contained tariff measures. The deadlock was not
resolved until 1866.
79 The Crown has the authority to create new peers . . . to create them: in
January 1832, following the defeat of the Reform Bill in the House of
Lords, William IV agreed to Earl Grey's request that he create at least
twenty-one new peers in order to prevent further Opposition.
the great Aylesbury case: a protracted legal wrangle in 1700 between the
two Houses of Parliament over the right to vote of Matthew Ashby, an
elector at Aylesbury. The Commons insisted it was the sole judge of
election matters.
80 he wrote a very curious letter to the present Lord Derby: in February 1846
the Duke of Wellington (1769-1852) sent a memorandum to the then
Lord Stanley (1799-1869), from which Bagehot quotes; G. R. Gleig, The
Life of Arthur, First Duke of Wellington (1862), 569-72.
81 Captain Elliott, in China: in 1840 the Chinese, attempting to end the
opium trade, blockaded the port of Canton. Charles Elliot (1801-75) led
the British attempt to break the blockade.
83 the 18th Brumaire: returning from Egypt, Naploeon Bonaparte overthew
the French Directory government on 9-10 November 1799 (18th
Brumaire in the revolutionary calendar), and established the Consulate.
84 the present Lord Grey: Henry, 3rd Earl Grey (1802-94), Colonial Secretary 1846-52, and author of The Colonial Policy of Lord John Russell's
Administration (1853) and Parliamentary Government considered with
Reference to reform (1858; 2nd edn. 1864). Both were works which influenced Bagehot.
85 'members for railways': MPs who were railway directors. There were
some 125 such MPs in 1868: Geoffrey Alderman, The Railway Interest
(Leicester, 1973).
86 the, Private Bill Acts: private bills, i.e. legislation such as local government, railways, as well as legislation such as divorce and naturalization
relating to individuals, constituted the main workload of the midVictorian House of Commons, their volume doubling between 1852 and
1866.
87 Swiss state-right patriot: until 1874 Switzerland was based on a loose
confederation of independent cantons, each with their own institutions.
88 A severe . . . critic of our institutions: untraced.
a few years ago when Lyndhurst, Brougham and Campbell were in vigour:
John Singleton Copley, Lord Lyndhurst (1772-1863), was Lord Chancellor in the years 1827-30, 1834-5, and 1841-6; Henry, Lord Brougham
(1778-1868), in the years 1830-4; and John, Lord Campbell (17791861), in the years 1859-61.
89 'the House of Commons has more sense than any one in it': source of
quotation not traced.
Explanatory
Notes
213
Lord Chesterfield's axiom: Philip Stanhope, Earl of Chesterfield
(1694-1773), author of a famous series of letters to his son.
92 foster a new breed: the recruitment, qualifications, and pay structure of
the Indian Civil Service were overhauled by series of reforms beginning
in the mid-i8sos.
93 Mr Bright will sometime use: John Bright (1811-89), radical MP for
Durham, 1843-7, Manchester, 1847-57, Birmingham, 1858-89.
95 Lord Macaulay was to have been amongst the first: Thomas Babington
Macaulay (1800-59), the MP and historian. He was ennobled in 1857.
96 the trial of O'Connell: in September 1844 the House of Lords reversed
the guilty verdict passed by a Dublin court on the Irish leader, Daniel
O'Connell (1775-1847), 'the Liberator', who advocated repeal of the
Union with Britain.
97 Mr Lowe: Robert Lowe (1811-92), Vice-President of the Education
Board, 1859-64. Cf Lowe in the House of Commons, Hansard, 177, 28
Feb. 1865, col. 875.
104 Paley said many shrewd things: William Paley (1743-1805), author of
Principles of Moral and Political Philosophy (1785).
105 combating its cattle plague: in June 1865 reports of an outbreak of rinderpest in England and Wales began to appear. By the end of the year 8,000
cattle had died.
Lord Brougham and Lord Bolingbroke: Brougham (see also note to p. 88)
was author of The British Constitution: its History, Structure and Working
(1861). Henry St John, Viscount Bolingbroke (1678-1751), opponent of
Walpole, and author of two famous attacks on government by party: A
Dissertation on Parties (1733) and Idea of a Patriot King (1738).
An old secretary of the Treasury: Bagehot is probably referring to Charles
Arbuthnot (1767-1850), one of the longest-lasting secretaries to the
Treasury in the pre-reform era, who held the position of patronage
secretary in the Tory party between 1809 and 1823.
106 finest brute votes in Europe': sometimes attributed to Benjamin Disraeli
(1804-81).
Mr Cobden most justly said: Richard Cobden (1804-65), free trade advocate and MP for Stockport 1841-7, West Riding of Yorkshire 1847-57,
Rochdale 1859-65.
107 Father Newman complains: John Henry Newman (1801-90), Catholic
theologian.
'no stays in Peel's argument': stays were corsets stiffened by strips of
whalebone, worn to shape and support the figure.
110 the scheme of Mr Hare: Thomas Hare (1806-91), author of two influential
works on proportional representation, The Machinery of Representation
(1857), and A Treatise on the Election of Representatives, Parliamentary
and Municipal (1859).
214
Explanatory
Notes
119 'D-mn me,' said Lord Eldon: John Scott, Baron Eldon (1751-1838), Lord
Chancellor (1801-6, 1807-27), an 'ultra-Tory' opponent of the Reform
Bill in 1831-2.
120 Bolingbroke and Disraeli: for Bolingbroke see note to p. 105. Benjamin
Disraeli (1804-81), Prime Minister in 1868 and between 1874 and 1880.
121 MrBright . . . working man: Bright, whose family owned carpet mills,
was the parliamentary figurehead of the parliamentary reform campaign
in 1866-7.
122 Jacobins to a man': a paraphrasing of the words used by Edmund Burke
(1729-97) in his Thoughts on French Affairs (1797).
ceteris paribus: other things being equal.
127 Gatton and Old Sarum . . . good members: Gatton in Surrey and Old
Sarum in Wiltshire were two of the smallest and most notoriously
corrupt of the old nomination boroughs in the pre-1832 electoral system.
They were disenfranchised.
Mr Carlyle: Thomas Carlyle (1795-1881), author of The French Revolution (1837), Past and Present (1843), Latter Day Pamphlets (1850), and
other works.
128 'Mr Gladstone and Lord Russell may have been wrong about reform':
the Liberal government resigned in 1866 following the defeat of their
reform bill.
What could be more absurd than what happened in 1858?: the popularity of
Palmerston's government was fatally undermined in 1858 by a combination of factors, including his inclusion in his Cabinet of John de Burgh
Ulick, 14th Earl of Clanricarde (1802-74), who had been named in a
court case involving the estate of an Irish widow (in which he was
accused of being her son and heir's real father), and Palmerston's own
careless handling of diplomacy with Count Walewski, the French
ambassador.
Lord Cranborne: Robert Cecil, 3rd Marquis of Salisbury (1830-1902),
was known as Viscount Cranborne between 1865 and 1868, after the
death of his elder brother. He was Secretary of State for India until he
resigned over Disraeli's reform bill in 1867,
131 Darby Griffith destroyed Lord Palmerston's first Government': in the
House of Commons on 16 February 1858 Christopher Darby Griffith
(1804-85), MP for Devizes, 1857-68, asked the question about Lord
Palmerston's reply to Count Walewski which precipitated the defeat of
Palmerston's government.
132 green coffee to the Crimea: inefficiencies in the supply of military, medical,
food and clothing resources to the British forces in the Crimea brought
about the collapse of the Aberdeen coalition in February 1855.
133 M, Guizot tells us: Guizot's (see note to p. 52) Memoirs were published in
English in four volumes between 1858 and 1861.
Explanatory
Notes
215
134 quaestiunculae: trifling questions.
136 the three kings of Somerset House as they were called: established by the
Poor Law Amendment Act of 1834, t n e three-man Poor Law Commission was based in Somerset House and was reponsible for the
co-ordination of poor law relief in England and Wales. The first three
commissioners were in fact Thomas Frankland Lewis (1780-1855)
(George Cornewall Lewis's father), John Shaw-Lefevre (1797-1879),
and George Nicholls (1781-1865).
Mr Chadwick: Edwin Chadwick (1801-90) was one of the authors of the
1833 Poor Law report, and was Secretary of the Poor Law Board from
1834 to 1846.
Sir George Lewis: George Cornewall Lewis (1806-93), Chancellor of the
Exchequer 1855-8, Home Secretary 1859-61, Secretary for War 1861-3.
138 the triumph of the Prussians: in 1866 Prussia defeated Austria at the Battle
of Sadowa, and also annexed much of the former German Confederation.
Mr Grant Duff. . . delineates them: Mountstuart E. Grant Duff, Studies in
European Politics (1866), 228-9.
cap-a-pie: head to foot.
139 as Burke put it: Edmund Burke, Speech on American Taxation (1774).
Frederic the Great lost the battle of Jena': Frederick the Great (1712-86)
reformed the Prussian bureaucracy. However, twenty years after his
death, the Prussian army was defeated by Napoleon at the Battle of Jena.
Napoleon himself, it should be noted, thought the Prussians would not
have been defeated had Frederick been in charge.
140 Every imaginable and real social interest,' says Mr Laing: Samuel Laing,
Observations on the Social and Political State of the European People in
1848 and i84g (1850), 184-5.
Voltaire says somewhere: 'Money', Philosophical Dictionary (1764).
141 the great joint stock banks of London: following the Bank Act of 1833,
which extended the joint-stock principle to banks as long as they were
not note-issuing, London-based joint-stock banks such as the London
and Westminster, and the National Provincial Bank, began to surpass the
traditional private banks.
143 The late Sir George Lewis: George Cornewall Lewis (1806-93).
The Duke of Newcastle was of this use at least in the Crimean war: Henry
Pelham Clinton (1811-64), 5th Duke of Newcastle, became Secretary
of War in 1854 when the Department of War was separated from the
Colonial Office.
144 The 'dyer's hand would be subdued to what it works in': Shakespeare, Sonnet
in.
147 the Great Duke: Arthur Wellesley, 1st Duke of Wellington (1769-1852).
150 'pretentious, insufficient, and unsound': source not traced.
2i6
Explanatory
Notes
150 Tocqueville and Lavergne have shown . . . the old regime: Alexis de
Tocqueville's L'Ancien Regime et la Revolution (1856) and Leonce de
Lavergne's Les Assemblies Provinciates sous Louis XVI (1864) had both
argued that centralization in France long preceded the imperial rule of
Napoleon.
1 5 1 Comptrollership of the Exchequer: Thomas Spring Rice, Baron Monteagle
(1790-1866), was the last person to hold this office which, under the
Exchequer and Audit Departments Act of 1866, was replaced by the
position of Comptroller and Auditor General.
the O'Connell case: in September 1844. See note to p. 96.
Lord Westbury. . . Essays and Reviews': Richard Bethell, Baron Westbury
(1800-73), Lord Chancellor between 1861 and 1865, who sat on the
committee of the Privy Council in 1864 that heard and upheld the
appeals of the authors of a volume of biblical criticism entitled Essays
& Reviews, a controversial book written by clergy which had been
condemned by Convocation.
153 A new India Office ... had to be made: the Government of India Act of
1858 transferred the administration of India to the Crown, in the shape
of a new Secretary of State for India, advised by a council.
Mr James Wilson: James Wilson (1805-60), proprietor and editor of the
Economist and member of the Council for India. Bagehot's father-in-law.
eo nomine: explicitly, under that name.
1 5 5 Hobbes told us long ago: Thomas Hobbes, Leviathan (1651).
156 A fundamental article of the Federal constitution: the four articles of the
American Constitution to which Bagehot refers are Amendment 10
(1791), and Articles I 1:2a, II 1:2a, and II 2:2a of the original
Constitution.
157 Mr Johnson: see notes to pp. 3 and 23.
1 6 3 'an organised hypocrisy': House of Commons, 17 March 1845.
1 6 4 particeps criminis: a partner in the crime.
Dei ex machind: 'gods from the machine' (a device of ancient Greek
theatre), i.e. a quick-fix solution.
1 6 6 'That in 1802 every hereditary monarch was insane': source not traced.
168 In 183s William IV dismissed an administration: in November 1834
[Bagehot got the date wrong], alarmed at the Whigs' policy towards the
Church of Ireland, William IV failed in his attempt to use the accession
of Viscount Althorp, the Whig leader in the Commons, to the Lords, as
an excuse to dismiss Melbourne's ministry, although Lord John Russell
had been chosen by the party to take over from Althorp in the
Commons.
172 One was in Queen Anne's time: in 1712 twelve new peers were created to
strengthen the ministry of Robert Harley, the Earl of Oxford (1661-1724),
and increase parliamentary support for the Peace of Utrecht.
Explanatory Notes
217
Swift bitterly and justly said: Swift, Memoirs relating to that change which
happened in Queen Anne's ministry in the year iyio, in Swift's Works, ed.
Thomas Roscoe, 2 vols. (1843), '• 2 73Mrs Masham: Abigail Masham (1670-1734), Queen Anne's dresser and
court favourite.
Lord Grey promises the correspondence: published in two volumes in 1 8 6 7
as The Correspondence of the late Earl Grey with His Majesty the King
William IV and with Sir Herbert Taylor, edited by Henry, Earl Grey.
174 like Count Moltke: Helmuth, Count von Moltke (1800-91), Chief of Staff of the Prussian Army, since 1858. A learned man, who wrote widely on
military strategy, he was known as 'the Silent'.
our very supporter of Divine Right. . . Count Bismarck: the unification of
Germany entailed the end of power for the smaller German monarchies
and duchies. At the same time Otto von Bismarck behaved autocratically
towards the Prussian Parliament, suspending it temporarily in 1862.
175 Mr Darwin begins: Charles Darwin, The Origin of the Species, By Means
of Natural Selection, or the Preservation of Favoured Races in the Struggle
for Life (1859), 1.
'that most skilful breeder, Sir John Sebright': Sir John Sebright
(1767-1846), MP and author of The Art of Improving the Breeds of
Domestic Animals (1809). Darwin mentions him in The Origin of the
Species, p. 31.
1 7 6 realisme impitoyable: merciless realism.
178 the masterly book of Hallam: Henry Hallam (1777-1859), author of The
Constitutional History of England from Henry VII to George 7/(1827).
182 a modern Parliamentary agent: by mid-century there were sixty or so
solicitors' firms dealing with the draughtsmanship of parliamentary
legislation, principally railway bills.
183 Even in the 'Great Charter': the Magna Carta, agreed to by King John and
the rebel nobility, was sealed at Runnymede on 15 June 1215.
'converted the right of taxation into the shield of liberty': James Mackintosh
(1365-1832), Whig politician and historian. Author of The History of
England, 10 vols. (1830-40), i. 221.
1 8 4 Lord Macaulay is right in saying: Macaulay, The History of England, 5 vols.
(1848-61).
just as Hooper tells us his father was: John Hooper (d. 1555), Bishop of
Gloucester and Worcester, executed by Mary I.
Charles II said that he would never go on his travels: Charles's forces were
defeated by Cromwell's army at Worcester in August, 1651, forcing him
to flee into exile.
1 8 6 Mr Perceval's government: Spencer Perceval (1762-1812), Prime Minister
from 1809 until his assassination in 1812.
an indescribable life in St James's Street with Mr Fox: in the 1780s, much to—
2l8
Explanatory
Notes
his father's despair, the young Prince of Wales gambled and got into debt
in the company of Charles James Fox and other Whigs, such as the
playwright Sheridan.
186 'he lived by being a royalist': cf Chateaubriand's description of Louis
XVI, that no one should be more royalist than the king': De la monarchic
selon la chartre (Paris, 1816), 27.
187 'un vrai peuple moderne': cf De Tocqueville, L'Ancien Regime et la
Revolution (1856), 27: 'une nation toute moderne'.
the census of 1851: the Census of 1851 was the most extensive to date,
based as it was on the new administrative framework established by the
Civil Registration Act of 1837. Two separate censuses on religious
attendance and educational provision were also carried out.
188 the Long Parliament: the City of London provided financial support to
Parliament during the 1640s, and the Corporation supported parliamentary control of the militia. On 5 January 1642, Parliament decided to
meet in the Guildhall, where 'all members that came were to have voices':
The History of the Rebellion and Civil Wars in England, beginning in the
year 1641 (1702), iv. 159.
Down to George Ill's time: the mayoral campaign of John Wilkes in 1774
was the last famous occasion when the Corporation showed its
radicalism.
189 De Tocqueville . . . founded what may be called the culte of corporations:
De Tocqueville's Democracy in America (1835) included an attack on
French-style centralization and praise for the Puritan settlers who took
old English habits of local autonomy with them.
191 the relations between the French railways and the Emperor: in the 1850s
Napoleon III embarked on an ambitious scheme of railway building,
revolutionizing the system of public credit in France to pay for it all.
193 'Pain, pain pas de longs discours': 'Bread, bread, no long speeches.'
as Mr Kinglake truly said: in 'The French Lake', Quarterly Review, 75
(March 1845), 542. Alexander William Kinglake (1809-91), MP and
author of Eothen and a history of the Crimean war, was a neighbour of
Bagehot's in Somerset.
195 If Ritualism could be made a political question: by the 1860s there was
increasing concern over the lack of control of ceremonial practices in the
Anglican church.
Gladstone and Garibaldi: in the 1865 election campaign Gladstone, as
Chancellor of the Exchequer, personified the Liberal party's slogan of
'peace, retrenchment and reform'. Garibaldi, the popular hero of Italian
unification, made a very successful visit to Britain in 1864.
198 in spite ofde Tocqueville: De Tocqueville's L'Ancien Regime et la Revolution emphasized the continuities between Bourbon France and the
Jacobins.
Explanatory
Notes
219
as Sydney Smith said: Sydney Smith (1771-1845), canon of St Paul's
Cathedral and political essayist.
199 Sir James Mackintosh and Lord John Russell. . . had written panegyrics on
it: Mackintosh, in the Edinburgh Review (1820), and Russell, in his Essay
on the History of the English Government (1821), had both supported the de
facto existence of mixed suffrages.
205 Mr Buxton . . . in his letter to the Times: The Times, 9 Dec. 1864, p. 5.
Mr Roebuck would rise: John Arthur Roebuck (1801-79), MP for Sheffield 1849-68 and 1874-9, a Benthamite radical in the 1830s and 1840s,
who from 1859 onwards proved unpredictable on the parliamentary
reform issue.
THE CONSTITUTION OF THE UNITED STATES
Complete text of the U.S. Constitution: The original spelling and capitalization have been retained.
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure
domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the
Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the
United States of America.
Article I
Section 1. All legislative Powers herein granted shall be vested in a Congress of the United States,
which shall consist of a Senate and House of Representatives.
Section 2. The House of Representatives shall be composed of Members chosen every second Year
by the People of the several States, and the Electors in each State shall have the Qualifications
requisite for Electors of the most numerous Branch of the State Legislature.
No Person shall be a Representative who shall not have attained to the age of twenty five Years, and
been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of
that State in which he shall be chosen.
Representatives and direct Taxes shall be apportioned among the several States which may be
included within this Union, according to their respective Numbers, which shall be determined by
adding to the whole Number of free Persons, including those bound to Service for a Term of Years,
and excluding Indians not taxed, three fifths of all other Persons. The actual Enumeration shall be
made within three Years after the first Meeting of the Congress of the United States, and within every
subsequent Term of ten Years, in such Manner as they shall by Law direct. The Number of
Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least
one Representative; and until such enumeration shall be made, the State of New Hampshire shall be
entitled to chuse three, Massachusetts eight, Rhode-Island and Providence Plantations one,
Connecticut five, New-York six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six,
Virginia ten, North Carolina five, South Carolina five, and Georgia three.
When vacancies happen in the Representation from any State, the Executive Authority thereof shall
issue Writs of Election to fill such Vacancies.
The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole
Power of Impeachment.
Section 3. The Senate of the United States shall be composed of two Senators from each State,
chosen by the Legislature thereof, for six Years; and each Senator shall have one Vote.
Immediately after they shall be assembled in Consequence of the first Election, they shall be divided
as equally as may be into three Classes. The Seats of the Senators of the first Class shall be vacated
at the Expiration of the second Year, of the second Class at the Expiration of the fourth Year, and the
third Class at the Expiration of the sixth Year, so that one third may be chosen every second Year; and
if Vacancies happen by Resignation, or otherwise, during the Recess of the Legislature of any State,
the Executive thereof may make temporary Appointments until the next Meeting of the Legislature,
which shall then fill such Vacancies.
No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine
Years a Citizen of the United States and who shall not, when elected, be an Inhabitant of that State for
which he shall be chosen.
The Vice President of the United States shall be President of the Senate, but shall have no Vote,
unless they be equally divided.
The Senate shall chuse their other Officers, and also a President pro tempore, in the Absence of the
Vice President, or when he shall exercise the Office of President of the United States.
The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they
shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice
shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members
present.
1
Judgment in Cases of Impeachment shall not extend further than to removal from Office, and
disqualification to hold and enjoy any Office of Honor, Trust or Profit under the United States: but the
Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and
Punishment, according to Law.
Section 4. The Times, Places and Manner of holding Elections for Senators and Representatives,
shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law
make or alter such Regulations, except as to the Places of chusing Senators.
The Congress shall assemble at least once in every Year, and such Meeting shall be on the first
Monday in December, unless they shall by Law appoint a different Day.
Section 5. Each House shall be the Judge of the Elections, Returns and Qualifications of its own
Members, and a Majority of each shall constitute a Quorum to do Business; but a smaller Number may
adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in
such Manner, and under such Penalties as each House may provide.
Each House may determine the Rules of its Proceedings, punish its Members for disorderly
Behaviour, and, with the Concurrence of two thirds, expel a Member.
Each House shall keep a Journal of its Proceedings, and from time to time publish the same,
excepting such Parts as may in their Judgment require Secrecy; and the Yeas and Nays of the
Members of either House on any question shall, at the Desire of one fifth of those Present, be entered
on the Journal.
Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for
more than three days, nor to any other Place than that in which the two Houses shall be sitting.
Section 6. The Senators and Representatives shall receive a Compensation for their Services, to be
ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except
Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the
Session of their respective Houses, and in going to and returning from the same; and for any Speech
or Debate in either House, they shall not be questioned in any other Place.
No Senator or Representative shall, during the Time for which he was elected, be appointed to any
civil Office under the Authority of the United States, which shall have been created, or the Emoluments
whereof shall have been encreased during such time: and no Person holding any Office under the
United States, shall be a Member of either House during his Continuance in Office.
Section 7. All Bills for raising Revenue shall originate in the House of Representatives; but the Senate
may propose or concur with Amendments as on other Bills.
Every Bill which shall have passed the House of Representatives and the Senate, shall, before it
become a Law, be presented to the President of the United States; if he approve he shall sign it, but if
not he shall return it, with his Objections to that House in which it shall have originated, who shall enter
the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two
thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the
other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it
shall become a Law. But in all such Cases the Votes of both Houses shall be determined by Yeas and
Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of
each House respectively. If any Bill shall not be returned by the President within ten Days (Sundays
excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he
had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not
be a Law.
Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of
Representatives may be necessary (except on a question of Adjournment) shall be presented to the
President of the United States; and before the Same shall take Effect, shall be approved by him, or
being disapproved by him, shall be repassed by two thirds of the Senate and House of
Representatives, according to the Rules and Limitations prescribed in the Case of a Bill.
Section 8. The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to
pay the Debts and provide for the common Defence and general Welfare of the United States; but all
Duties, Imposts and Excises shall be uniform throughout the United States;
To borrow Money on the credit of the United States;
2
To regulate Commerce with foreign Nations, and among the several States, and with the Indian
Tribes;
To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies
throughout the United States;
To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and
Measures;
To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;
To establish Post Offices and post Roads;
To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and
Inventors the exclusive Right to their respective Writings and Discoveries;
To constitute Tribunals inferior to the supreme Court;
To define and punish Piracies and Felonies committed on the high Seas, and Offences against the
Law of Nations;
To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land
and Water;
To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term
than two Years;
To provide and maintain a Navy;
To make Rules for the Government and Regulation of the land and naval Forces;
To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and
repel Invasions;
To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as
may be employed in the Service of the United States, reserving to the States respectively, the
Appointment of the Officers, and the Authority of training the Militia according to the discipline
prescribed by Congress;
To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles
square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of
the Government of the United States, and to exercise like Authority over all Places purchased by the
Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts,
Magazines, Arsenals, dock-Yards, and other needful Buildings;--And
To make all Laws which shall be necessary and proper for carrying into Execution the foregoing
Powers, and all other Powers vested by this Constitution in the Government of the United States, or in
any Department or Officer thereof.
Section 9. The Migration or Importation of such Persons as any of the States now existing shall think
proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred
and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each
Person.
The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of
Rebellion or Invasion the public Safety may require it.
No Bill of Attainder or ex post facto Law shall be passed.
No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration
herein before directed to be taken.
No Tax or Duty shall be laid on Articles exported from any State.
No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State
over those of another: nor shall Vessels bound to, or from, one State, be obliged to enter, clear or pay
Duties in another.
No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and
a regular Statement and Account of Receipts and Expenditures of all public Money shall be published
from time to time.
3
No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or
Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument,
Office, or Title, of any kind whatever, from any King, Prince, or foreign State.
Section 10. No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque
and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in
Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of
Contracts, or grant any Title of Nobility.
No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports,
except what may be absolutely necessary for executing it's inspection Laws: and the net Produce of all
Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the
United States; and all such Laws shall be subject to the Revision and Controul of the Congress.
No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of
War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign
Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of
delay.
Article II
Section 1. The executive Power shall be vested in a President of the United States of America. He
shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for
the same Term, be elected, as follows:
Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors,
equal to the whole Number of Senators and Representatives to which the State may be entitled in the
Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the
United States, shall be appointed an Elector.
The Electors shall meet in their respective States, and vote by Ballot for two Persons, of whom one at
least shall not be an Inhabitant of the same State with themselves. And they shall make a List of all the
Persons voted for, and of the Number of Votes for each; which List they shall sign and certify, and
transmit sealed to the Seat of the Government of the United States, directed to the President of the
Senate. The President of the Senate shall, in the Presence of the Senate and House of
Representatives, open all the Certificates, and the Votes shall then be counted. The Person having
the greatest Number of Votes shall be the President, if such Number be a Majority of the whole
Number of Electors appointed; and if there be more than one who have such Majority, and have an
equal Number of Votes, then the House of Representatives shall immediately chuse by Ballot one of
them for President; and if no Person have a Majority, then from the five highest on the List the said
House shall in like Manner chuse the President. But in chusing the President, the Votes shall be taken
by States, the Representation from each State having one Vote; A quorum for this Purpose shall
consist of a Member or Members from two thirds of the States, and a Majority of all the States shall be
necessary to a Choice. In every Case, after the Choice of the President, the Person having the
greatest Number of Votes of the Electors shall be the Vice President. But if there should remain two or
more who have equal Votes, the Senate shall chuse from them by Ballot the Vice President.
The Congress may determine the Time of chusing the Electors, and the Day on which they shall give
their Votes; which Day shall be the same throughout the United States.
No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption
of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to
that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a
Resident within the United States.
In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to
discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President, and
the Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the
President and Vice President, declaring what Officer shall then act as President, and such Officer shall
act accordingly, until the Disability be removed, or a President shall be elected.
The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be
encreased nor diminished during the Period for which he shall have been elected, and he shall not
receive within that Period any other Emolument from the United States, or any of them.
4
Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:--"I do
solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and
will to the best of my Ability, preserve, protect and defend the Constitution of the United States."
Section 2. The President shall be Commander in Chief of the Army and Navy of the United States,
and of the Militia of the several States, when called into the actual Service of the United States; he
may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon
any Subject relating to the Duties of their respective Offices, and he shall have Power to grant
Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.
He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided
two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and
Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the
supreme Court, and all other Officers of the United States, whose Appointments are not herein
otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the
Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of
Law, or in the Heads of Departments.
The President shall have Power to fill up all Vacancies that may happen during the Recess of the
Senate, by granting Commissions which shall expire at the End of their next Session.
Section 3. He shall from time to time give to the Congress Information of the State of the Union, and
recommend to their Consideration such Measures as he shall judge necessary and expedient; he
may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of
Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such
Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take
Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.
Section 4. The President, Vice President and all civil Officers of the United States, shall be removed
from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and
Misdemeanors.
Article III
Section 1. The judicial Power of the United States, shall be vested in one supreme Court, and in such
inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the
supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times,
receive for their Services, a Compensation, which shall not be diminished during their Continuance in
Office.
Section 2. The judicial Power shall extend to all Cases, in Law and Equity, arising under this
Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their
Authority;--to all Cases affecting Ambassadors, other public Ministers and Consuls;--to all Cases of
admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;--to
Controversies between two or more States;--between a State and Citizens of another State;--between
Citizens of different States;--between Citizens of the same State claiming Lands under Grants of
different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State
shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before
mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such
Exceptions, and under such Regulations as the Congress shall make.
The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held
in the State where the said Crimes shall have been committed; but when not committed within any
State, the Trial shall be at such Place or Places as the Congress may by Law have directed.
Section 3. Treason against the United States, shall consist only in levying War against them, or in
adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason
unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.
The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason
shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.
5
Article IV
Section 1. Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial
Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in
which such Acts, Records, and Proceedings shall be proved, and the Effect thereof.
Section 2. The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in
the several States.
A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and
be found in another State, shall on Demand of the executive Authority of the State from which he fled,
be delivered up, to be removed to the State having Jurisdiction of the Crime.
No Person held to Service or Labour in one State, under the Laws thereof, escaping into another,
shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour,
but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.
Section 3. New States may be admitted by the Congress into this Union; but no new States shall be
formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of
two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned
as well as of the Congress.
The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting
the Territory or other Property belonging to the United States; and nothing in this Constitution shall be
so construed as to Prejudice any Claims of the United States, or of any particular State.
Section 4. The United States shall guarantee to every State in this Union a Republican Form of
Government, and shall protect each of them against Invasion; and on Application of the Legislature, or
of the Executive (when the Legislature cannot be convened) against domestic Violence.
Article V
The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose
Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several
States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all
Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of
the several States, or by Conventions in three fourths thereof, as the one or the other Mode of
Ratification may be proposed by the Congress; Provided that no Amendment which may be made
prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth
Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be
deprived of its equal Suffrage in the Senate.
Article VI
All Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be
as valid against the United States under this Constitution, as under the Confederation.
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all
Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme
Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution
or Laws of any State to the Contrary notwith-standing.
The Senators and Representatives before mentioned, and the Members of the several State
Legislatures, and all executive and judicial Officers, both of the United States and of the several
States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall
ever be required as a Qualification to any Office or public Trust under the United States.
Article VII
The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this
Constitution between the States so ratifying the Same.
Done in Convention by the Unanimous Consent of the States present the Seventeenth Day of
September in the Year of our Lord one thousand seven hundred and Eighty seven and of the
Independence of the United States of America the Twelfth
In witness whereof We have hereunto subscribed our Names,
6
George Washington--President and deputy from Virginia
New Hampshire: John Langdon, Nicholas Gilman
Massachusetts: Nathaniel Gorham, Rufus King
Connecticut: William Samuel Johnson, Roger Sherman
New York: Alexander Hamilton
New Jersey: William Livingston, David Brearly, William Paterson, Jonathan Dayton
Pennsylvania: Benjamin Franklin, Thomas Mifflin, Robert Morris, George Clymer, Thomas FitzSimons,
Jared Ingersoll, James Wilson, Gouverneur Morris
Delaware: George Read, Gunning Bedford, Jr., John Dickinson, Richard Bassett, Jacob Broom
Maryland: James McHenry, Daniel of Saint Thomas Jenifer, Daniel Carroll
Virginia: John Blair, James Madison, Jr.
North Carolina: William Blount, Richard Dobbs Spaight, Hugh Williamson
South Carolina: John Rutledge, Charles Cotesworth Pinckney, Charles Pinckney, Pierce Butler
Georgia: William Few, Abraham Baldwin
Original source: The Pennsylvania Packet, September 19, 1787. Retrieved from:
http://www.earlyamerica.com/earlyamerica/freedom/constitution/text.html
7
Amendments to the Constitution
Articles in addition to, and amendments of, the Constitution of The United States of America,
proposed by Congress, and ratified by the legislatures of the several states, pursuant to the
Fifth Article of the original Constitution (see note 12)
Article [I.] (See Note 13)
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise
thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to
assemble, and to petition the Government for a redress of grievances.
Article [II.]
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep
and bear Arms, shall not be infringed.
Article [III.]
No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in
time of war, but in a manner to be prescribed by law.
Article [IV.]
The right of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and particularly describing the place to be
searched, and the persons or things to be seized.
Article [V.]
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment
or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when
in actual service in time of War or public danger; nor shall any person be subject for the same offence
to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness
against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall
private property be taken for public use, without just compensation.
Article [VI.]
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an
impartial jury of the State and district wherein the crime shall have been committed, which district shall
have been previously ascertained by law, and to be informed of the nature and cause of the
accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining
witnesses in his favor, and to have the Assistance of Counsel for his defence.
Article [VII.]
In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by
jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the
United States, than according to the rules of the common law.
Article [VIII.]
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments
inflicted.
Article [IX.]
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage
others retained by the people.
Article [X.]
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States,
are reserved to the States respectively, or to the people.
[Article XI.]
8
The Judicial power of the United States shall not be construed to extend to any suit in law or equity,
commenced or prosecuted against one of the United States by Citizens of another State, or by
Citizens or Subjects of any Foreign State.
Proposal and Ratification
The eleventh amendment to the Constitution of the United States was proposed to the legislatures of
the several States by the Third Congress, on the 4th of March 1794; and was declared in a message
from the President to Congress, dated the 8th of January, 1798, to have been ratified by the
legislatures of three-fourths of the States. The dates of ratification were: New York, March 27, 1794;
Rhode Island, March 3 1 , 1794; Connecticut, May 8, 1794; New Hampshire, June 16, 1794;
Massachusetts, June 26, 1794; Vermont, between October 9, 1794 and November 9, 1794; Virginia,
November 18, 1794; Georgia, November 29, 1794; Kentucky, December 7, 1794; Maryland,
December 26, 1794; Delaware, January 23, 1795; North Carolina, February 7, 1795.
Ratification was completed on February 7, 1795.
The amendment was subsequently ratified by South Carolina on December 4, 1797. New Jersey and
Pennsylvania did not take action on the amendment.
[Article XII.]
The Electors shall meet in their respective states, and vote by ballot for President and Vice-President,
one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in
their ballots the person voted for as President, and in distinct ballots the person voted for as VicePresident, and they shall make distinct lists of all persons voted for as President, and of all persons
voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify,
and transmit sealed to the seat of the government of the United States, directed to the President of the
Senate;--The President of the Senate shall, in the presence of the Senate and House of
Representatives, open all the certificates and the votes shall then be counted;--The person having the
greatest number of votes for President, shall be the President, if such number be a majority of the
whole number of Electors appointed; and if no person have such majority, then from the persons
having the highest numbers not exceeding three on the list of those voted for as President, the House
of Representatives shall choose immediately, by ballot, the President. But in choosing the President,
the votes shall be taken by states, the representation from each state having one vote; a quorum for
this purpose shall consist of a member or members from two-thirds of the states, and a majority of all
the states shall be necessary to a choice. And if the House of Representatives shall not choose a
President whenever the right of choice shall devolve upon them, before the fourth day of March next
following, then the Vice-President shall act as President, as in the case of the death or other
constitutional disability of the President. (See Note 14)--The person having the greatest number of
votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole
number of Electors appointed, and if no person have a majority, then from the two highest numbers on
the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of twothirds of the whole number of Senators, and a majority of the whole number shall be necessary to a
choice. But no person constitutionally ineligible to the office of President shall be eligible to that of
Vice-President of the United States.
Proposal and Ratification The twelfth amendment to the Constitution of the United States was
proposed to the legislatures of the several States by the Eighth Congress, on the 9th of December,
1803, in lieu of the original third paragraph of the first section of the second article; and was declared
in a proclamation of the Secretary of State, dated the 25th of September, 1804, to have been ratified
by the legislatures of 13 of the 17 States. The dates of ratification were: North Carolina, December 2 1 ,
1803; Maryland, December 24, 1803; Kentucky, December 27, 1803; Ohio, December 30, 1803;
Pennsylvania, January 5, 1804; Vermont, January 30, 1804; Virginia, February 3, 1804; New York,
February 10, 1804; New Jersey, February 22, 1804; Rhode Island, March 12, 1804; South Carolina,
May 15, 1804; Georgia, May 19, 1804; New Hampshire, June 15, 1804.
Ratification was completed on June 15, 1804.
The amendment was subsequently ratified by Tennessee, July 27, 1804.
The amendment was rejected by Delaware, January 18, 1804; Massachusetts, February 3, 1804;
Connecticut, at its session begun May 10, 1804.
9
Article XIII.
Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the
party shall have been duly convicted, shall exist within the United States, or any place subject to their
jurisdiction.
Section 2. Congress shall have power to enforce this article by appropriate legislation.
Proposal and Ratification
The thirteenth amendment to the Constitution of the United States was proposed to the legislatures of
the several States by the Thirty-eighth Congress, on the 31st day of January, 1865, and was declared,
in a proclamation of the Secretary of State, dated the 18th of December, 1865, to have been ratified
by the legislatures of twenty-seven of the thirty-six States. The dates of ratification were: Illinois,
February 1, 1865; Rhode Island, February 2, 1865; Michigan, February 2, 1865; Maryland, February 3,
1865; New York, February 3, 1865; Pennsylvania, February 3, 1865; West Virginia, February 3, 1865;
Missouri, February 6, 1865; Maine, February 7, 1865; Kansas, February 7, 1865; Massachusetts,
February 7, 1865; Virginia, February 9, 1865; Ohio, February 10, 1865; Indiana, February 13, 1865;
Nevada, February 16, 1865; Louisiana, February 17, 1865; Minnesota, February 23, 1865; Wisconsin,
February 24, 1865; Vermont, March 9, 1865; Tennessee, April 7, 1865; Arkansas, April 14, 1865;
Connecticut, May 4, 1865; New Hampshire, July 1, 1865; South Carolina, November 13, 1865;
Alabama, December 2, 1865; North Carolina, December 4, 1865; Georgia, December 6, 1865.
Ratification was completed on December 6, 1865.
The amendment was subsequently ratified by Oregon, December 8, 1865; California, December 19,
1865; Florida, December 28, 1865 (Florida again ratified on June 9, 1868, upon its adoption of a new
constitution); Iowa, January 15, 1866; New Jersey, January 23, 1866 (after having rejected the
amendment on March 16, 1865); Texas, February 18, 1870; Delaware, February 12, 1901 (after
having rejected the amendment on February 8, 1865); Kentucky, March 18, 1976 (after having
rejected it on February 24, 1865).
The amendment was rejected (and not subsequently ratified) by Mississippi, December 4, 1865.
Article XIV.
Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof,
are citizens of the United States and of the State wherein they reside. No State shall make or enforce
any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any
State deprive any person of life, liberty, or property, without due process of law; nor deny to any
person within its jurisdiction the equal protection of the laws.
Section 2. Representatives shall be apportioned among the several States according to their
respective numbers, counting the whole number of persons in each State, excluding Indians not taxed.
But when the right to vote at any election for the choice of electors for President and Vice President of
the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the
members of the Legislature thereof, is denied to any of the male inhabitants of such State, being
twenty-one years of age,(See Note 15) and citizens of the United States, or in any way abridged,
except for participation in rebellion, or other crime, the basis of representation therein shall be reduced
in the proportion which the number of such male citizens shall bear to the whole number of male
citizens twenty-one years of age in such State.
Section 3. No person shall be a Senator or Representative in Congress, or elector of President and
Vice President, or hold any office, civil or military, under the United States, or under any State, who,
having previously taken an oath, as a member of Congress, or as an officer of the United States, or as
a member of any State legislature, or as an executive or judicial officer of any State, to support the
Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or
given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House,
remove such disability.
Section 4. The validity of the public debt of the United States, authorized by law, including debts
incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion,
shall not be questioned. But neither the United States nor any State shall assume or pay any debt or
obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss
or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.
10
Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this
article.
Proposal and Ratification
The fourteenth amendment to the Constitution of the United States was proposed to the legislatures of
the several States by the Thirty-ninth Congress, on the 13th of June, 1866. It was declared, in a
certificate of the Secretary of State dated July 28, 1868 to have been ratified by the legislatures of 28
of the 37 States. The dates of ratification were: Connecticut, June 25, 1866; New Hampshire, July 6,
1866; Tennessee, July 19, 1866; New Jersey, September 1 1 , 1866 (subsequently the legislature
rescinded its ratification, and on March 24, 1868, readopted its resolution of rescission over the
Governor's veto, and on Nov. 12, 1980, expressed support for the amendment); Oregon, September
19, 1866 (and rescinded its ratification on October 15, 1868); Vermont, October 30, 1866; Ohio,
January 4, 1867 (and rescinded its ratification on January 15, 1868); New York, January 10, 1867;
Kansas, January 1 1 , 1867; Illinois, January 15, 1867; West Virginia, January 16, 1867; Michigan,
January 16, 1867; Minnesota, January 16, 1867; Maine, January 19, 1867; Nevada, January 22, 1867;
Indiana, January 23, 1867; Missouri, January 25, 1867; Rhode Island, February 7, 1867; Wisconsin,
February 7, 1867; Pennsylvania, February 12, 1867; Massachusetts, March 20, 1867; Nebraska, June
15, 1867; Iowa, March 16, 1868; Arkansas, April 6, 1868; Florida, June 9, 1868; North Carolina, July 4,
1868 (after having rejected it on December 14, 1866); Louisiana, July 9, 1868 (after having rejected it
on February 6, 1867); South Carolina, July 9, 1868 (after having rejected it on December 20, 1866).
Ratification was completed on July 9, 1868.
The amendment was subsequently ratified by Alabama, July 13, 1868; Georgia, July 2 1 , 1868 (after
having rejected it on November 9, 1866); Virginia, October 8, 1869 (after having rejected it on January
9, 1867); Mississippi, January 17, 1870; Texas, February 18, 1870 (after having rejected it on October
27, 1866); Delaware, February 12, 1901 (after having rejected it on February 8, 1867); Maryland, April
4, 1959 (after having rejected it on March 23, 1867); California, May 6, 1959; Kentucky, March 18,
1976 (after having rejected it on January 8, 1867).
Article XV.
Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the
United States or by any State on account of race, color, or previous condition of servitude.
Section 2. The Congress shall have power to enforce this article by appropriate legislation.
Proposal and Ratification
The fifteenth amendment to the Constitution of the United States was proposed to the legislatures of
the several States by the Fortieth Congress, on the 26th of February, 1869, and was declared, in a
proclamation of the Secretary of State, dated March 30, 1870, to have been ratified by the legislatures
of twenty-nine of the thirty-seven States. The dates of ratification were: Nevada, March 1, 1869; West
Virginia, March 3, 1869; Illinois, March 5, 1869; Louisiana, March 5, 1869; North Carolina, March 5,
1869; Michigan, March 8, 1869; Wisconsin, March 9, 1869; Maine, March 1 1 , 1869; Massachusetts,
March 12, 1869; Arkansas, March 15, 1869; South Carolina, March 15, 1869; Pennsylvania, March 25,
1869; New York, April 14, 1869 (and the legislature of the same State passed a resolution January 5,
1870, to withdraw its consent to it, which action it rescinded on March 30, 1970); Indiana, May 14,
1869; Connecticut, May 19, 1869; Florida, June 14, 1869; New Hampshire, July 1, 1869; Virginia,
October 8, 1869; Vermont, October 20, 1869; Missouri, January 7, 1870; Minnesota, January 13,
1870; Mississippi, January 17, 1870; Rhode Island, January 18, 1870; Kansas, January 19, 1870;
Ohio, January 27, 1870 (after having rejected it on April 30, 1869); Georgia, February 2, 1870; Iowa,
February 3, 1870.
Ratification was completed on February 3, 1870, unless the withdrawal of ratification by New York was
effective; in which event ratification was completed on February 17, 1870, when Nebraska ratified.
The amendment was subsequently ratified by Texas, February 18, 1870; New Jersey, February 15,
1871 (after having rejected it on February 7, 1870); Delaware, February 12, 1901 (after having
rejected it on March 18, 1869); Oregon, February 24, 1959; California, April 3, 1962 (after having
rejected it on January 28, 1870); Kentucky, March 18, 1976 (after having rejected it on March 12,
1869).
The amendment was approved by the Governor of Maryland, May 7, 1973; Maryland having
previously rejected it on February 26, 1870.
11
The amendment was rejected (and not subsequently ratified) by Tennessee, November 16, 1869.
Article XVI.
The Congress shall have power to lay and collect taxes on incomes, from whatever source derived,
without apportionment among the several States, and without regard to any census or enumeration.
Proposal and Ratification
The sixteenth amendment to the Constitution of the United States was proposed to the legislatures of
the several States by the Sixty-first Congress on the 12th of July, 1909, and was declared, in a
proclamation of the Secretary of State, dated the 25th of February, 1913, to have been ratified by 36
of the 48 States. The dates of ratification were: Alabama, August 10, 1909; Kentucky, February 8,
1910; South Carolina, February 19, 1910; Illinois, March 1, 1910; Mississippi, March 7, 1910;
Oklahoma, March 10, 1910; Maryland, April 8, 1910; Georgia, August 3, 1910; Texas, August 16,
1910; Ohio, January 19, 1911; Idaho, January 20, 1911; Oregon, January 23, 1911; Washington,
January 26, 1911; Montana, January 30, 1911; Indiana, January 30, 1911; California, January 3 1 ,
1911; Nevada, January 3 1 , 1911; South Dakota, February 3, 1911; Nebraska, February 9, 1911; North
Carolina, February 1 1 , 1911; Colorado, February 15, 1911; North Dakota, February 17, 1911; Kansas,
February 18, 1911; Michigan, February 23, 1911; Iowa, February 24, 1911; Missouri, March 16, 1911;
Maine, March 3 1 , 1911; Tennessee, April 7, 1911; Arkansas, April 22, 1911 (after having rejected it
earlier); Wisconsin, May 26, 1911; New York, July 12, 1911; Arizona, April 6, 1912; Minnesota, June
1 1 , 1912; Louisiana, June 28, 1912; West Virginia, January 3 1 , 1913; New Mexico, February 3, 1913.
Ratification was completed on February 3, 1913.
The amendment was subsequently ratified by Massachusetts, March 4, 1913; New Hampshire, March
7, 1913 (after having rejected it on March 2, 1911).
The amendment was rejected (and not subsequently ratified) by Connecticut, Rhode Island, and Utah.
[Article XVII.]
The Senate of the United States shall be composed of two Senators from each State, elected by the
people thereof, for six years; and each Senator shall have one vote. The electors in each State shall
have the qualifications requisite for electors of the most numerous branch of the State legislatures.
When vacancies happen in the representation of any State in the Senate, the executive authority of
such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any
State may empower the executive thereof to make temporary appointments until the people fill the
vacancies by election as the legislature may direct.
This amendment shall not be so construed as to affect the election or term of any Senator chosen
before it becomes valid as part of the Constitution.
Proposal and Ratification
The seventeenth amendment to the Constitution of the United States was proposed to the legislatures
of the several States by the Sixty-second Congress on the 13th of May, 1912, and was declared, in a
proclamation of the Secretary of State, dated the 31st of May, 1913, to have been ratified by the
legislatures of 36 of the 48 States. The dates of ratification were: Massachusetts, May 22, 1912;
Arizona, June 3, 1912; Minnesota, June 10, 1912; New York, January 15, 1913; Kansas, January 17,
1913; Oregon, January 23, 1913; North Carolina, January 25, 1913; California, January 28, 1913;
Michigan, January 28, 1913; Iowa, January 30, 1913; Montana, January 30, 1913; Idaho, January 3 1 ,
1913; West Virginia, February 4, 1913; Colorado, February 5, 1913; Nevada, February 6, 1913; Texas,
February 7, 1913; Washington, February 7, 1913; Wyoming, February 8, 1913; Arkansas, February
1 1 , 1913; Maine, February 1 1 , 1913; Illinois, February 13, 1913; North Dakota, February 14, 1913;
Wisconsin, February 18, 1913; Indiana, February 19, 1913; New Hampshire, February 19, 1913;
Vermont, February 19, 1913; South Dakota, February 19, 1913; Oklahoma, February 24, 1913; Ohio,
February 25, 1913; Missouri, March 7, 1913; New Mexico, March 13, 1913; Nebraska, March 14,
1913; New Jersey, March 17, 1913; Tennessee, April 1, 1913; Pennsylvania, April 2, 1913;
Connecticut, April 8, 1913.
Ratification was completed on April 8, 1913.
The amendment was subsequently ratified by Louisiana, June 1 1 , 1914.
The amendment was rejected by Utah (and not subsequently ratified) on February 26, 1913.
12
Article [XVIII].(See Note 16)
Section 1. After one year from the ratification of this article the manufacture, sale, or transportation of
intoxicating liquors within, the importation thereof into, or the exportation thereof from the United
States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited.
Section. 2. The Congress and the several States shall have concurrent power to enforce this article by
appropriate legislation.
Section. 3. This article shall be inoperative unless it shall have been ratified as an amendment to the
Constitution by the legislatures of the several States, as provided in the Constitution, within seven
years from the date of the submission hereof to the States by the Congress.
Proposal and Ratification
The eighteenth amendment to the Constitution of the United States was proposed to the legislatures
of the several States by the Sixty-fifth Congress, on the 18th of December, 1917, and was declared, in
a proclamation of the Secretary of State, dated the 29th of January, 1919, to have been ratified by the
legislatures of 36 of the 48 States. The dates of ratification were: Mississippi, January 8, 1918;
Virginia, January 1 1 , 1918; Kentucky, January 14, 1918; North Dakota, January 25, 1918; South
Carolina, January 29, 1918; Maryland, February 13, 1918; Montana, February 19, 1918; Texas, March
4, 1918; Delaware, March 18, 1918; South Dakota, March 20, 1918; Massachusetts, April 2, 1918;
Arizona, May 24, 1918; Georgia, June 26, 1918; Louisiana, August 3, 1918; Florida, December 3,
1918; Michigan, January 2, 1919; Ohio, January 7, 1919; Oklahoma, January 7, 1919; Idaho, January
8, 1919; Maine, January 8, 1919; West Virginia, January 9, 1919; California, January 13, 1919;
Tennessee, January 13, 1919; Washington, January 13, 1919; Arkansas, January 14, 1919; Kansas,
January 14, 1919; Alabama, January 15, 1919; Colorado, January 15, 1919; Iowa, January 15, 1919;
New Hampshire, January 15, 1919; Oregon, January 15, 1919; Nebraska, January 16, 1919; North
Carolina, January 16, 1919; Utah, January 16, 1919; Missouri, January 16, 1919; Wyoming, January
16, 1919.
Ratification was completed on January 16, 1919. See Dillon v. Gloss, 256 U.S. 368, 376 (1921).
The amendment was subsequently ratified by Minnesota on January 17, 1919; Wisconsin, January 17,
1919; New Mexico, January 20, 1919; Nevada, January 2 1 , 1919; New York, January 29, 1919;
Vermont, January 29, 1919; Pennsylvania, February 25, 1919; Connecticut, May 6, 1919; and New
Jersey, March 9, 1922.
The amendment was rejected (and not subsequently ratified) by Rhode Island.
Article [XIX].
The right of citizens of the United States to vote shall not be denied or abridged by the United States
or by any State on account of sex.
Congress shall have power to enforce this article by appropriate legislation.
Proposal and Ratification
The nineteenth amendment to the Constitution of the United States was proposed to the legislatures
of the several States by the Sixty-sixth Congress, on the 4th of June, 1919, and was declared, in a
proclamation of the Secretary of State, dated the 26th of August, 1920, to have been ratified by the
legislatures of 36 of the 48 States. The dates of ratification were: Illinois, June 10, 1919 (and that State
readopted its resolution of ratification June 17, 1919); Michigan, June 10, 1919; Wisconsin, June 10,
1919; Kansas, June 16, 1919; New York, June 16, 1919; Ohio, June 16, 1919; Pennsylvania, June 24,
1919; Massachusetts, June 25, 1919; Texas, June 28, 1919; Iowa, July 2, 1919; Missouri, July 3,
1919; Arkansas, July 28, 1919; Montana, August 2, 1919; Nebraska, August 2, 1919; Minnesota,
September 8, 1919; New Hampshire, September 10, 1919; Utah, October 2, 1919; California,
November 1, 1919; Maine, November 5, 1919; North Dakota, December 1, 1919; South Dakota,
December 4, 1919; Colorado, December 15, 1919; Kentucky, January 6, 1920; Rhode Island, January
6, 1920; Oregon, January 13, 1920; Indiana, January 16, 1920; Wyoming, January 27, 1920; Nevada,
February 7, 1920; New Jersey, February 9, 1920; Idaho, February 1 1 , 1920; Arizona, February 12,
1920; New Mexico, February 2 1 , 1920; Oklahoma, February 28, 1920; West Virginia, March 10, 1920;
Washington, March 22, 1920; Tennessee, August 18, 1920.
Ratification was completed on August 18, 1920.
13
The amendment was subsequently ratified by Connecticut on September 14, 1920 (and that State
reaffirmed on September 2 1 , 1920); Vermont, February 8, 1921; Delaware, March 6, 1923 (after
having rejected it on June 2, 1920); Maryland, March 29, 1941 (after having rejected it on February 24,
1920, ratification certified on February 25, 1958); Virginia, February 2 1 , 1952 (after having rejected it
on February 12, 1920); Alabama, September 8, 1953 (after having rejected it on September 22, 1919);
Florida, May 13, 1969; South Carolina, July 1, 1969 (after having rejected it on January 28, 1920,
ratification certified on August 22, 1973); Georgia, February 20, 1970 (after having rejected it on July
24, 1919); Louisiana, June 1 1 , 1970 (after having rejected it on July 1, 1920); North Carolina, May 6,
1971; Mississippi, March 22, 1984 (after having rejected it on March 29, 1920).
Article [XX.]
Section 1. The terms of the President and Vice President shall end at noon on the 20th day of
January, and the terms of Senators and Representatives at noon on the 3d day of January, of the
years in which such terms would have ended if this article had not been ratified; and the terms of their
successors shall then begin.
Section. 2. The Congress shall assemble at least once in every year, and such meeting shall begin at
noon on the 3d day of January, unless they shall by law appoint a different day.
Section. 3. If, at the time fixed for the beginning of the term of the President, the President elect shall
have died, the Vice President elect shall become President. If a President shall not have been chosen
before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify,
then the Vice President elect shall act as President until a President shall have qualified; and the
Congress may by law provide for the case wherein neither a President elect nor a Vice President elect
shall have qualified, declaring who shall then act as President, or the manner in which one who is to
act shall be selected, and such person shall act accordingly until a President or Vice President shall
have qualified.
Section. 4. The Congress may by law provide for the case of the death of any of the persons from
whom the House of Representatives may choose a President whenever the right of choice shall have
devolved upon them, and for the case of the death of any of the persons from whom the Senate may
choose a Vice President whenever the right of choice shall have devolved upon them.
Section. 5. Sections 1 and 2 shall take effect on the 15th day of October following the ratification of
this article.
Section. 6. This article shall be inoperative unless it shall have been ratified as an amendment to the
Constitution by the legislatures of three-fourths of the several States within seven years from the date
of its submission.
Proposal and Ratification
The twentieth amendment to the Constitution was proposed to the legislatures of the several states by
the Seventy-Second Congress, on the 2d day of March, 1932, and was declared, in a proclamation by
the Secretary of State, dated on the 6th day of February, 1933, to have been ratified by the
legislatures of 36 of the 48 States. The dates of ratification were: Virginia, March 4, 1932; New York,
March 1 1 , 1932; Mississippi, March 16, 1932; Arkansas, March 17, 1932; Kentucky, March 17, 1932;
New Jersey, March 2 1 , 1932; South Carolina, March 25, 1932; Michigan, March 3 1 , 1932; Maine, April
1, 1932; Rhode Island, April 14, 1932; Illinois, April 2 1 , 1932; Louisiana, June 22, 1932; West Virginia,
July 30, 1932; Pennsylvania, August 1 1 , 1932; Indiana, August 15, 1932; Texas, September 7, 1932;
Alabama, September 13, 1932; California, January 4, 1933; North Carolina, January 5, 1933; North
Dakota, January 9, 1933; Minnesota, January 12, 1933; Arizona, January 13, 1933; Montana, January
13, 1933; Nebraska, January 13, 1933; Oklahoma, January 13, 1933; Kansas, January 16, 1933;
Oregon, January 16, 1933; Delaware, January 19, 1933; Washington, January 19, 1933; Wyoming,
January 19, 1933; Iowa, January 20, 1933; South Dakota, January 20, 1933; Tennessee, January 20,
1933; Idaho, January 2 1 , 1933; New Mexico, January 2 1 , 1933; Georgia, January 23, 1933; Missouri,
January 23, 1933; Ohio, January 23, 1933; Utah, January 23, 1933.
Ratification was completed on January 23, 1933.
The amendment was subsequently ratified by Massachusetts on January 24, 1933; Wisconsin,
January 24, 1933; Colorado, January 24, 1933; Nevada, January 26, 1933; Connecticut, January 27,
1933; New Hampshire, January 3 1 , 1933; Vermont, February 2, 1933; Maryland, March 24, 1933;
Florida, April 26, 1933.
14
Article [XXI.]
Section 1. The eighteenth article of amendment to the Constitution of the United States is hereby
repealed.
Section 2. The transportation or importation into any State, Territory, or possession of the United
States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby
prohibited.
Section 3. This article shall be inoperative unless it shall have been ratified as an amendment to the
Constitution by conventions in the several States, as provided in the Constitution, within seven years
from the date of the submission hereof to the States by the Congress.
Proposal and Ratification
The twenty-first amendment to the Constitution was proposed to the several states by the SeventySecond Congress, on the 20th day of February, 1933, and was declared, in a proclamation by the
Secretary of State, dated on the 5th day of December, 1933, to have been ratified by 36 of the 48
States. The dates of ratification were: Michigan, April 10, 1933; Wisconsin, April 25, 1933; Rhode
Island, May 8, 1933; Wyoming, May 25, 1933; New Jersey, June 1, 1933; Delaware, June 24, 1933;
Indiana, June 26, 1933; Massachusetts, June 26, 1933; New York, June 27, 1933; Illinois, July 10,
1933; Iowa, July
Amendment XXII
Section 1. No person shall be elected to the office of the President more than twice, and no person
who has held the office of President, or acted as President, for more than two years of a term to which
some other person was elected President shall be elected to the office of the President more than
once. But this article shall not apply to any person holding the office of President when this article was
proposed by the Congress, and shall not prevent any person who may be holding the office of
President, or acting as President, during the term within which this article becomes operative from
holding the office of President or acting as President during the remainder of such term.
Section 2. This article shall be inoperative unless it shall have been ratified as an amendment to the
Constitution by the legislatures of three-fourths of the several states within seven years from the date
of its submission to the states by the Congress.
Amendment XXIII
Section 1. The District constituting the seat of government of the United States shall appoint in such
manner as the Congress may direct:
A number of electors of President and Vice President equal to the whole number of Senators and
Representatives in Congress to which the District would be entitled if it were a state, but in no event
more than the least populous state; they shall be in addition to those appointed by the states, but they
shall be considered, for the purposes of the election of President and Vice President, to be electors
appointed by a state; and they shall meet in the District and perform such duties as provided by the
twelfth article of amendment.
Section 2. The Congress shall have power to enforce this article by appropriate legislation.
Amendment XXIV
Section 1. The right of citizens of the United States to vote in any primary or other election for
President or Vice President, for electors for President or Vice President, or for Senator or
Representative in Congress, shall not be denied or abridged by the United States or any state by
reason of failure to pay any poll tax or other tax.
Section 2. The Congress shall have power to enforce this article by appropriate legislation.
Amendment XXV
Section 1. In case of the removal of the President from office or of his death or resignation, the Vice
President shall become President.
Section 2. Whenever there is a vacancy in the office of the Vice President, the President shall
nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses
of Congress.
15
Section 3. Whenever the President transmits to the President pro tempore of the Senate and the
Speaker of the House of Representatives his written declaration that he is unable to discharge the
powers and duties of his office, and until he transmits to them a written declaration to the contrary,
such powers and duties shall be discharged by the Vice President as Acting President.
Section 4. Whenever the Vice President and a majority of either the principal officers of the executive
departments or of such other body as Congress may by law provide, transmit to the President pro
tempore of the Senate and the Speaker of the House of Representatives their written declaration that
the President is unable to discharge the powers and duties of his office, the Vice President shall
immediately assume the powers and duties of the office as Acting President.
Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker
of the House of Representatives his written declaration that no inability exists, he shall resume the
powers and duties of his office unless the Vice President and a majority of either the principal officers
of the executive department or of such other body as Congress may by law provide, transmit within
four days to the President pro tempore of the Senate and the Speaker of the House of
Representatives their written declaration that the President is unable to discharge the powers and
duties of his office. Thereupon Congress shall decide the issue, assembling within forty-eight hours for
that purpose if not in session. If the Congress, within twenty-one days after receipt of the latter written
declaration, or, if Congress is not in session, within twenty-one days after Congress is required to
assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the
powers and duties of his office, the Vice President shall continue to discharge the same as Acting
President; otherwise, the President shall resume the powers and duties of his office.
Amendment XXVI
Section 1. The right of citizens of the United States, who are 18 years of age or older, to vote, shall not
be denied or abridged by the United States or any state on account of age.
Section 2. The Congress shall have the power to enforce this article by appropriate legislation.
Amendment XXVII
No law varying the compensation for the services of the Senators and Representatives shall take
effect until an election of Representatives shall have intervened.
NOTES
Note 12: The first ten amendments to the Constitution of the United States (and two others, one of
which failed of ratification and the other which later became the 27th amendment) were proposed to
the legislatures of the several States by the First Congress on September 25, 1789. The first ten
amendments were ratified by the following States, and the notifications of ratification by the Governors
thereof were successively communicated by the President to Congress: New Jersey, November 20,
1789; Maryland, December 19, 1789; North Carolina, December 22, 1789; South Carolina, January
19, 1790; New Hampshire, January 25, 1790; Delaware, January 28, 1790; New York, February 24,
1790; Pennsylvania, March 10, 1790; Rhode Island, June 7, 1790; Vermont, November 3, 1791; and
Virginia, December 15, 1791.
Ratification was completed on December 15, 1791.
The amendments were subsequently ratified by the legislatures of Massachusetts, March 2, 1939;
Georgia, March 18, 1939; and Connecticut, April 19, 1939.
Note 13: Only the 13th, 14th, 15th, and 16th articles of amendment had numbers assigned to them at
the time of ratification.
Note 14: This sentence has been superseded by section 3 of amendment XX.
Note 15: See amendment XIX and section 1 of amendment XXVI.
Note 16: Repealed by section 1 of amendment XXI.
This information has been compiled from the U.S. Code. The U.S. Code is published by the Law
Revision Counsel of the U.S. House of Representatives.
Retrieved from: http://www.house.gov/house/Constitution/Amend.html
16
UNITED KINGDOM
Abolition of the Negro Slave Trade Act
(1807, March 25. 47 George III. c. 36. 47 S. L. 140.)
WHEREAS the two houses of parliament did, by their resolutions of the tenth and twenty-fourth days
of July one thousand eight hundred and six, severally resolve, upon certain grounds therein
mentioned, that they would, with all practicable expedition, take effectual measures for the abolition of
the African slave trade, in such manner, and at such period, as might be deemed advisable; and
whereas it is fit upon all and each of the grounds mentioned in the said resolutions, that the same
should be forthwith abolished and prohibited, and declared to be unlawful: be it therefore enacted by
the king’s most excellent Majesty, by and with the advice and consent of the lords spiritual and
temporal, and commons, in this present parliament assembled, and by the authority of the same, that
from and after the first day of May one thousand eight hundred and seven, the African slave trade, and
all and all manner of dealing and trading in the purchase, sale, barter, or transfer of slaves, or of
persons intended to be sold, transferred, used, or dealt with as slaves, practised or carried on, in, at,
to, or from any part of the coast or countries of Africa, shall be, and the same is hereby utterly
abolished, prohibited, and declared to be unlawful; and also that all and all manner of dealing, either
by way of purchase, sale, barter, or transfer, or by means of any other contract or agreement
whatever, relating to any slaves, or to any persons intended to be used or dealt with as slaves, for the
purpose of such slaves or persons being removed or transported either immediately or by
transhipment at sea or otherwise, directly or indirectly from Africa, or from any island, country, territory,
or place whatever, in the West Indies, or in any other part of America, not being in the dominion,
possession, or occupation of His Majesty, to any other island, country, territory, or place whatever, is
hereby in like manner utterly abolished, prohibited, and declared to be unlawful; * * *
Repeal of Corporation and Test Acts
(1828, May 9. 9 George IV c. 17. 65 S. L. 22.)
WHEREAS an act was passed in the thirteenth year of the reign of King Charles the Second, entitled,
An Act for the well governing and regulating of Corporations: and whereas another act was passed in
the twenty-fifth year of the reign of King Charles the Second, entitled, An Act for preventing Dangers
which may happen from Popish Recusants: and whereas another act was passed in the sixteenth year
of the reign of King George the Second, entitled, An Act to indemnify Persons who have omitted to
qualify themselves for Offices and Employments within the Time limited by Law, and for allowing
further Time for that Purpose, and also for amending so much of an Act made in the twenty-fifth Year
of the Reign of King Charles the Second, entitled, An Act for preventing Dangers which may happen
from Popish Recusants, as related to the Time for receiving the Sacrament of the Lord’s Supper now
limited by the said Act: and whereas it is expedient that so much of the said several acts of parliament
as imposes the necessity of taking the sacrament of the Lord’s Supper according to the rites or usage
of the Church of England, for the purposes therein respective1y mentioned, should be repealed: be it
therefore enacted by the king’s most excellent Majesty, by and with the advice and consent of the
lords spiritual and temporal, and commons, in this present parliament assembled, and by the authority
of the same, that so much and such parts of the said several acts passed in the thirteenth and twentyfifth years of the reign of King Charles the Second, and of the said act passed in the sixteenth year of
the reign of King George the Second, as require the person or persons in the said acts respectively
described to take or receive the sacrament of the Lord’s Supper according to the rites or usage of the
Church of England, for the several purposes therein expressed, or to deliver a certificate or to make
proof of the truth of such his or their receiving the said sacrament in manner aforesaid, or as impose
upon any such person or persons any penalty, forfeiture, incapacity, or disability whatsoever for or by
reason of any neglect or omission to take or receive the said sacrament, within the respective periods
and in the manner in the said acts respectively provided in that behalf, shall, from and immediately
after the passing of this act, be and the same are hereby repealed.
II. And whereas the Protestant episcopal Church of England and Ireland, and the doctrine, discipline,
and government thereof, and the Protestant presbyterian Church of Scotland, and the doctrine,
discipline, and government thereof, are by the laws of this realm severally established, permanently
and inviolably: and whereas it is just and fitting, that on the repeal of such parts of the said acts as
impose the necessity of taking the sacrament of the Lord’s Supper according to the rites or usage of
17
the Church of England as a qualification for office, a declaration to the following effect should be
substituted in lieu thereof; be it therefore enacted, that every person who shall hereafter be placed,
elected, or chosen in or to the office of mayor, alderman, recorder, bailiff, town clerk or common
councilman, or in or to any office of magistracy, or place, trust, or employment relating to the
government of any city, corporation, borough, or cinque port within England and Wales, or the town of
Berwick-upon-Tweed, shall, within one calendar month next before or upon his admission into any of
the aforesaid offices or trusts, make and subscribe the declaration following:
‘I, A. B., do solemnly and sincerely, in the presence of God, profess, testify, and declare, upon the true
faith of a Christian, that I will never exercise any power, authority, or influence which I may possess by
virtue of the office of [ ] to injure or weaken the Protestant church as it is by law established in
England, or to disturb the said church, or the bishops and clergy of the said church, in the possession
of any rights or privileges to which such church, or the said bishops and clergy, are or may be by law
entitled.’
[Part omitted]
Catholic Emancipation Act
(1829, April 13. 10 George IV. c. 7. 65 S. L. pt. 2, p. 49.)
WHEREAS by various acts of parliament certain restraints and disabilities are imposed on the Roman
Catholic subjects of His Majesty, to which other subjects of His Majesty are not liable: and whereas it
is expedient that such restraints and disabilities shall be from henceforth discontinued: and whereas
by various acts certain oaths and certain declarations, commonly called the declaration against
transubstantiation, and the declaration against transubstantiation and the invocation of saints and the
sacrifice of the mass, as practised in the Church of Rome, are or may be required to be taken, made,
and subscribed by the subjects of His Majesty, as qualifications for sitting and voting in parliament,
and for the enjoyment of certain offices, franchises, and civil rights: be it enacted by the king’s most
excellent Majesty, by and with the advice and consent of the lords spiritual and temporal, and
commons, in this present parliament assembled, and by the authority of the same, that from and after
the commencement of this act all such parts of the said acts as require the said declarations, or either
of them, to be made or subscribed by any of His Majesty’s subjects, as a qualification for sitting and
voting in parliament, or for the exercise or enjoyment of any office, franchise, or civil right, be and the
same are (save as hereinafter provided and excepted) hereby repealed.
II. And be it enacted, that from and after the commencement of this act it shall be lawful for any person
professing the Roman Catholic religion, being a peer, or who shall after the commencement of this act
be returned as a member of the house of commons, to sit and vote in either house of parliament
respectively, being in all other respects duly qualified to sit and vote therein, upon taking and
subscribing the following oath, instead of the oaths of allegiance, supremacy, and abjuration;
‘I, A. B., do sincerely promise and swear, that I will be faithful and bear true allegiance to His Majesty
King George the Fourth, and will defend him to the utmost of my power against all conspiracies and
attempts whatever, which shall be made against his person, crown, or dignity; and I will do my utmost
endeavour to disclose and make known to His Majesty, his heirs and successors, all treasons and
traitorous conspiracies which may be formed against him or them: and I do faithfully promise to
maintain, support, and defend, to the utmost of my power, the succession of the crown, which
succession, by an act, entitled, An Act for the further Limitation of the Crown, and better securing the
Rights and Liberties of the Subject, is and stands limited to the princess Sophia, electress of Hanover,
and the heirs of her body, being Protestants; hereby utterly renouncing and abjuring any obedience or
allegiance unto any other person claiming or pretending a right to the crown of this realm: and I do
further declare, that it is not an article of my faith, and that I do renounce, reject, and abjure the
opinion, that princes excommunicated or deprived by the pope, or any other authority of the see of
Rome, may be deposed or murdered by their subjects, or by any person whatsoever; and I do declare,
that I do not believe that the pope of Rome, or any other foreign prince, prelate, person, state, or
potentate, hath or ought to have any temporal or civil jurisdiction, power, superiority, or preeminence,
directly or indirectly, within this realm. I do swear, that I will defend to the utmost of my power the
settlement of property within this realm, as established by the laws: and I do hereby disclaim, disavow,
and solemnly abjure any intention to subvert the present church establishment, as settled by law within
this realm; and I do solemnly swear, that I will never exercise any privilege to which I am or may
become entitled, to disturb or weaken the Protestant religion or Protestant government in the united
18
kingdom; and I do solemnly, in the presence of God, profess, testify, and declare, that I do make this
declaration, and every part thereof, in the plain and ordinary sense of the words of this oath, without
any
evasion,
equivocation,
or
mental
reservation
whatsoever.
So help me God.’
III. And be it further enacted, that wherever, in the oath here appointed and set forth, the name of His
present Majesty is expressed or referred to, the name of the sovereign of this kingdom for the time
being, by virtue of the act for the further limitation of the crown and better securing the right and
liberties of the subject, shall be substituted from time to time, with proper words of reference thereto.
IV. Provided always, and be it further enacted, that no peer professing the Roman Catholic religion,
and no person professing the Roman Catholic religion, who shall be returned a member of the house
of commons after the commencement of this act, shall be capable of sitting or voting in either house of
parliament respectively, unless he shall first take and subscribe the oath hereinbefore appointed and
set forth, before the same persons, at the same times and places, and in the same manner as the
oaths and the declaration now required by law are respectively directed to be taken, made, and
subscribed; and that any such person professing the Roman Catholic religion, who shall sit or vote in
either house of parliament, without having first taken and subscribed, in the manner aforesaid, the
oath in this act appointed and set forth, shall be subject to the same penalties, forfeitures, and
disabilities, and the offence of so sitting or voting shall be followed and attended by and with the same
consequences, as are by law enacted and provided in the case of persons sitting or voting in either
house of parliament respectively, without the taking, making, and subscribing the oaths and the
declaration now required by law.
V. And be it further enacted, that it shall be lawful for persons professing the Roman Catholic religion
to vote at elections of members to serve in parliament for England and for Ireland, and also to vote at
the elections of representative peers of Scotland and of Ireland, and to be elected such representative
peers, being in all other respects duly qualified, upon taking and subscribing the oath hereinbefore
appointed and set forth, instead of the oaths of allegiance, supremacy, and abjuration, and instead of
the declaration now by law required, and instead also of such other oath or oaths as are now by law
required to be taken by any of His Majesty’s subjects professing the Roman Catholic religion, and
upon taking also such other oath or oaths as may now be lawfully tendered to any persons offering to
vote at such elections.
VI. VII. [The administration of the oath.]
VIII. [Allowing Roman Catholics to vote and be elected in Scotland.]
[Part omitted]
IX. And be it further enacted, that no person in holy orders in the Church of Rome shall be capable of
being elected to serve in parliament as a member of the house of commons; and if any such person
shall be elected to serve in parliament as aforesaid, such election shall be void; and if any person,
being elected to serve in parliament as a member of the house of commons, shall, after his election,
take or receive holy orders in the Church of Rome, the seat of such person shall immediately become
void; and if any such person shall, in any of the cases aforesaid, presume to sit or vote as a member
of the house of commons, he shall be subject to the same penalties, forfeitures, and disabilities as are
enacted by an act passed in the forty-first year of the reign of King George the Third, entitled An Act to
remove Doubts respecting the Eligibility of Persons in Holy Orders to sit in the House of Commons;
and proof of the celebration of any religious service by such person, according to the rites of the
Church of Rome, shall be deemed and taken to be primâ facie evidence of the fact of such person
being in holy orders, within the intent and meaning of this act.
X. And be it enacted, that it shall be lawful for any of His Majesty’s subjects professing the Roman
Catholic religion to hold, exercise, and enjoy all civil and military offices and places of trust or profit
under His Majesty, his heirs or successors, and to exercise any other franchise or civil right, except as
hereinafter excepted, upon taking and subscribing, at the times and in the manner hereinafter
mentioned, the oath hereinbefore appointed and set forth, instead of the oaths of allegiance,
supremacy, and abjuration, and instead of such oath or oaths as are or may be now by law required to
be taken for the purpose aforesaid by any of His Majesty’s subjects professing the Roman Catholic
religion.
XI. Provided always, and be it enacted, that nothing herein contained shall be construed to exempt
any person professing the Roman Catholic religion from the necessity of taking any oath or oaths, or
making any declaration, not hereinbefore mentioned, which are or may be by law required to be taken
19
or subscribed by any person on his admission into any such office or place of trust or profit as
aforesaid.
XII. Provided also, and be it further enacted, that nothing herein contained shall extend or be
construed to extend to enable any person or persons professing the Roman Catholic religion to hold or
exercise the office of guardians and justices of the united kingdom, or of regent of the united kingdom,
under whatever name, style, or title such office may be constituted; nor to enable any person,
otherwise than as he is now by law enabled, to hold or enjoy the office of lord high chancellor, lord
keeper or lord commissioner of the great seal of Great Britain or Ireland; or the office of lord lieutenant,
or lord deputy, or other chief governor or governors of Ireland; or His Majesty’s high commissioner to
the General Assembly of the Church of Scotland.
Reform Act of 1832
(1832, June 7. 2 William IV, c.45.)
WHEREAS it is expedient to take effectual measures for correcting divers abuses that have long
prevailed in the choice of members to serve in the commons house of parliament, to deprive many
inconsiderable places of the right of returning members, to grant such privilege to large, populous, and
wealthy towns, to increase the number of knights of the shire, to extend the elective franchise to many
of His Majesty’s subjects who have not heretofore enjoyed the same, and to diminish the expense of
elections; Be it therefore enacted by the king’s most excellent Majesty, by and with the advice and
consent of the lords spiritual and temporal, and commons, in this present parliament assembled, and
by the authority of the same, that each of the boroughs enumerated in the Schedule marked A (56 in
all) shall from and after the end of this present parliament cease to return any member or members to
serve in parliament.
II. [Boroughs enumerated in Schedule B (30 in all) to return one member only.]
III. [Places named in Schedule C (22 in all) made boroughs to return two members to parliament.]
IV. [Places named in Schedule D (20 in all) made boroughs to return one member to parliament.]
V. [Four boroughs to include adjacent districts.]
VI. [Weymouth and Melcombe Regis to return two members instead of four; Penryn to include
Falmouth, and Sandwich to include Deal and Walmer.]
VII. Boundaries to be fixed.]
VIII. IX, X. [Dealing with Wales.]
XI. [Returning officers.]
XII. [Yorkshire to return six members.]
XIII. [Lincolnshire to return four members.]
XIV. [Counties enumerated in Schedule F (25 in all) to return four members.]
XV. [Counties enumerated in Schedule F2 (7 in all) to return three members, and two members
instead of one to be returned by three of the counties in Wales.]
XVI. [Isle of Wight to return one member, apart from Hampshire.]
XVII. [Towns, which are counties of themselves, to be included in adjoining counties.]
XVIII. That no person shall be entitled to vote in the election of a knight or knights of the shire to serve
in any future parliament, or in the election of a member or members to serve in any future parliament
for any city or town being a county of itself, in respect of any freehold lands or tenements whereof
such person may be seised for his own life, or for the life of another, of for any lives whatsoever,
except such person shall be in the actual and bona fide occupation of such lands or tenements, or
except the same shall have come to such person by marriage, marriage settlement, devise, or
promotion to any benefice or to any office, or except the same shall be of the clear yearly value of not
less than 10£ above all rents and charges payable out of or in respect of the same; any statute or
usage to the contrary notwithstanding: provided always, that nothing in this act contained shall prevent
any person now seised for his own life, or for the life of another, or for any lives whatsoever, of any
freehold lands or tenements in respect of which he now has, or but for the passing of this act might
20
acquire, the right of voting in such respective elections, from retaining or acquiring, so long as he shall
be so seised of the same lands or tenements, such right of voting in respect thereof, if duly registered
according to the respective provisions hereinafter contained.
XIX. That every male person of full age, and not subject to any legal incapacity, who shall be seised at
law or in equity of any land or tenements of copyhold or any other tenure whatever except freehold, for
his own life, or for the life of another, or for any lives whatsoever, or for any larger estate, of the clear
yearly value of not less than 10£ over and above all rents and charges payable out of or in respect of
the same, shall be entitled to vote in the election of a knight or knights of the shire to serve in any
future parliament for the county, or for the riding, parts, or division of the county, in which such lands or
tenements shall be respectively situate.
XX. That every male person of full age, and not subject to any legal incapacity, who shall be entitled,
either as lessee or assignee, to any lands or tenements, whether of freehold or of any other tenure
whatever, for the unexpired residue, whatever it may be, of any term originally created for a period of
not less than sixty years, (whether determinable on a life or lives, or not,) of the clear yearly value of
not less than 10£ over and above all rents and charges payable out of or in respect of the same, or for
the unexpired residue, whatever it may be, of any term originally created for a period of not less than
twenty years, (whether determinable on a life or lives, or not,) of the clear yearly value of not less than
50£ over and above all rents and charges payable out of or in respect of the same, or who shall
occupy as tenant any lands or tenements for which he shall be bona fide liable to a yearly rent of not
less than 50£, shall be entitled to vote in the election of a knight or knights of the shire to serve in any
future parliament for the county, or for the riding, parts, or division of the county, in which such lands or
tenements shall be respectively situate: provided always, that no person, being only a sub-lessee, or
the assignee of any under-lease, shall have a right to vote in such election in respect of any such term
of sixty years or twenty years as aforesaid, unless he shall be in the actual occupation of the premises.
XXI. That no public or parliamentary tax, nor any church rate, county rate, or parochial rate, shall be
deemed to be any charge payable out of or in respect of any lands or tenements within the meaning of
this act.
XXII. That in order to entitle any person to vote in any election of a knight of the shire or other member
to serve in any future parliament, in respect of any messuages, lands, or tenements, whether freehold
or otherwise, it shall not be necessary that the same shall be assessed to the land tax; any statute to
the contrary notwithstanding.
[Part omitted]
XXVI. That notwithstanding anything hereinbefore contained no person shall be entitled to vote in the
election of a knight or knights of the shire to serve in any future parliament unless he shall have been
duly registered according to the provisions hereinafter contained; and that no person shall be so
registered in any year in respect of his estate or interest in any lands or tenements, as a freeholder,
copyholder, customary tenant, or tenant in ancient demesne, unless he shall have been in the actual
possession thereof, or in the receipt of the rents and profits thereof for his own use, for six calendar
months at least next previous to the last day of July in such year, which said period of six calendar
months shall be sufficient, any statute to the contrary notwithstanding; and that no person shall be so
registered in any year, in respect of any lands or tenements held by him as such lessee or assignee,
or as such occupier and tenant as aforesaid, unless he shall have been in the actual possession
thereof, or in receipt of the rents and profits thereof for his own use, as the case may require, for
twelve calendar months next previous to the last day of July in such year: provided always, that where
any lands or tenements, which would otherwise entitle the owner, holder, or occupier thereof to vote in
any such election, shall come to any person, at any time within such respective periods of six or twelve
calendar months, by descent, succession, marriage, marriage settlement, devise, or promotion to any
benefice in a church, or by promotion to any office, such person shall be entitled in respect thereof to
have his name inserted as a voter in the election of a knight or knights of the shire in the lists then next
to be made, by virtue of this act as hereinafter mentioned, and, upon his being duly registered
according to the provisions hereinafter contained, to vote in such election.
XXVII. That in every city or borough which shall return a member or members to serve in any future
parliament, every male person of full age, and not subject to any legal incapacity, who shall occupy,
within such city or borough, or within any place sharing in the election for such city or borough, as
owner or tenant, any house, warehouse, counting-house, shop, or other building, being, either
separately, or jointly with any land within such city, borough, or place occupied therewith by him as
owner, or therewith by him as tenant under the same landlord, of the clear yearly value of not less than
21
10£, shall, if duly registered according to the provisions hereinafter contained, be entitled to vote in the
election of a member or members to serve in any future parliament for such city or borough: provided
always, that no such person shall be so registered in any year unless he shall have occupied such
premises as aforesaid for twelve calendar months next previous to the last day of July in such year,
nor unless such person, where such premises are situated in any parish or township in which there
shall be a rate for the relief of the poor, shall have been rated in respect of such premises to all rates
for the relief of the poor in such parish or township, made during the time of such his occupation so
required as aforesaid, nor unless such person shall have paid, on or before the 20th of July in such
year, all the poor’s rates and assessed taxes which shall have become payable from him in respect of
such premises previously to the 6th of April then next preceding: provided also, that no such person
shall be so registered in any year unless he shall have resided for six calendar months next previous
to the last day of July in such year within the city or borough, or within the place sharing in the election
for the city or borough, in respect of which city, borough, or place respectively he shall be entitled to
vote, or within seven statute miles thereof or of any part thereof.
XXVIII. That the premises in respect of the occupation of which any person shall be entitled to be
registered in any year and to vote in the election for any city or borough as aforesaid, shall not be
required to be the same premises, but may be different premises occupied in immediate succession
by such person during the twelve calendar months next previous to the last day of July in such year,
such person having paid on or before the 20th of July in such year, all the poor’s rates and assessed
taxes which shall previously to the 6th of April then next preceding have become payable from him in
respect of all such premises so occupied by him in succession.
[Part omitted]
XXXVI. That no person shall be entitled to be registered in any year as a voter in the election of a
member or members to serve in any future parliament for any city or borough who shall within twelve
calendar months next previous to the last day of July in such year have received parochial relief or
other alms, which by the law of parliament now disqualify from voting in the election of members to
serve in parliament.
XXXVII. That the overseers of the poor of every parish and township shall, on the 20th day of June in
the present and in every succeeding year, cause to be fixed on or near the doors of all the churches
and chapels within such parish or township, or if there be no church or chapel therein, then to be fixed
in some public and conspicuous situation within the same respectively, a notice according to the form
numbered 1. in the schedule (H.) to this act annexed, requiring all persons who may be entitled to vote
in the election of a knight or knights of the shire * * * in respect of any property situate wholly or in part
in such parish or township, to deliver or transmit to the said overseers on or before the 20th of July in
the present and in every succeeding year a notice of their claim as such voters, according to the form
numbered 2. in the said schedule (H.), or to the like effect: provided always, that after the formation of
the register to be made in each year, as hereinafter mentioned, no person whose name shall be upon
such register for the time being shall be required thereafter to make any such claim as aforesaid, so
long as he shall retain the same qualification, and continue in the same place of abode described by
such register.
XXXVIII. That the overseer of the poor of every parish and township shall, on or before the last day of
July in the present year, make out or cause to be made out, according to the form numbered 3. in the
said schedule (H.), an alphabetical list of all persons who shall claim as aforesaid to be inserted in
such list as voters in the election of a knight or knights of the shire * * *, in respect of any lands or
tenements situate wholly or in part within such parish or township; and that the said overseers shall on
or before the last day of July in every succeeding year make out or cause to be made out a like list,
containing the names of all persons who shall be upon the register for the time being as such voters,
and also the names of all persons who shall claim as aforesaid to be inserted in the last-mentioned list
as such voters; and in every list so to be made out by the overseers as aforesaid, the Christian name
and surname of every person shall be written at full length, together with the place of his abode, the
nature of his qualification, and the local or other description of such lands or tenements, as the same
are respectively set forth in his claim to vote, and the name of the occupying tenant, if stated in such
claim; and the said overseers, if they shall have reasonable cause to believe that any person so
claiming as aforesaid, or whose name shall appear in the register for the time being, is not entitled to
vote in the election of a knight or knights of the shire * * *, shall have power to add the words “objected
to” opposite the name of every such person on the margin of such list; and the said overseers shall
sign such list, and shall cause a sufficient number of copies of such list to be written or printed, and to
be fixed on or near the doors of all the churches and chapels within their parish or township, or if there
22
be no church or chapel therein, then to be fixed up in some public and conspicuous situation within the
same respectively, on the two Sundays next after such list shall have been made; and the said
overseers shall likewise keep a true copy of such list, to be perused by any person, without payment of
any fee, at all reasonable hours during the first two weeks after such lists shall have been made;
provided always, that every precinct or place, whether extra-parochial or otherwise, which shall have
no overseers of the poor, shall for the purpose of making out such list as aforesaid be deemed to be
within the parish or township adjoining thereto, such parish or township being situate within the same
county, or the same riding, parts, or division of a county, as such precinct or place; and if such precinct
or place shall adjoin two or more parishes or townships so situate as aforesaid, it shall be deemed to
be within the least populous of such parishes or townships according to the last census for the time
being; and the overseers of the poor of every such parish or township shall insert in the list for their
respective parish or township the names of all persons who shall claim as aforesaid to be inserted
therein as voters. * * *
XXXIX. That every person who shall be upon the register for the time being for any county, or for any
riding, parts, or division of a county, or who shall have claimed to be inserted in any list for the then
current year of voters * * * may object to any person as not having been entitled on the last day of July
then next preceding to have his name inserted in any list of voters * * * so to be made out as aforesaid;
and every person so objecting (save and except overseers objecting in the manner hereinbefore
mentioned) shall, on or before the 25th of August in the present and in every succeeding year, give or
cause to be given a notice in writing according to the form numbered 4. in the said schedule (H.), or to
the like effect, to the overseers who shall have made out the list in which the name so objected to shall
have been inserted; and the person so objecting shall also, on or before the 25th of August * * * give
to the person objected to, or leave at his place of abode as described in such list, or personally deliver
to his tenant in occupation of the premises described in such list, a notice in writing according to the
form numbered 5. in the said schedule (H.), or to the like effect; and the overseers shall include the
names of all persons so objected to in a list according to the form numbered 6. in the said schedule
(H.), and shall cause copies of the same to be fixed on or near the doors of all the churches * * * on
the two Sundays next preceding the 15th of September in the present and every succeeding year; and
the overseers shall likewise keep a copy of the names of all the persons so objected to, to be perused
by any person. * * *
XL. That on the 29th of August in the present and in every succeeding year the overseers of every
parish and township shall deliver the list of voters so made out as aforesaid, together with a written
statement of the number of persons objected to by the overseers and by other persons, to the high
constable or high constables of the hundred or other like district in which such parish or township is
situate; and such high constable or high constables shall forthwith deliver all such lists, together with
such statements as aforesaid, to the clerk of the peace of the county, riding, or parts, who shall
forthwith make out an abstract of the number of persons objected to by the overseers and by other
persons in each parish or township, and transmit the same to the barrister or barristers appointed as
hereinafter mentioned to revise such lists, in order that the said barrister or barristers may fix proper
times and places for holding his or their courts for the revision of the said lists.
XLI. That the lord chief justice of the court of king’s bench shall, in the month of July or August in the
present and in every succeeding year, nominate and appoint for Middlesex, and the senior judge for
the time being in the commission of assize for every other county shall, when travelling the summer
circuit, * * * nominate and appoint for every such county, or for each of the ridings, parts, or divisions of
such county, a barrister or barristers to revise the lists of voters in the election of a knight or knights of
the shire; and such barrister or barristers so appointed as aforesaid shall give public notice, as well by
advertisement in some of the newspapers circulating within the county, riding, parts, or division, as
also by a notice to be fixed in some public and conspicuous situation * * * (* * * to be given three days
at the least before the commencement of his or their circuit,) that he or they will make a circuit of the
county, riding, parts, or division for which he or they shall be so appointed, and of the several times
and places at which he or they will hold courts for that purpose, such times being between the 15th of
September inclusive and the 25th of October inclusive in the present and in every succeeding year,
and he or they shall hold open courts for that purpose at the times and places so to be announced.
and where two or more barristers shall be appointed for the same county, riding, parts, or division,
they shall attend at the same places together, but shall sit apart from each other, and hold separate
courts at the same time for the despatch of business; provided always, that no member of parliament,
nor any person holding any office or place of profit under the crown, shall be appointed such barrister,
and that no barristers so appointed as aforesaid shall be eligible to serve in parliament for eighteen
months from the time of such his appointment. * * *
23
XLII. That the clerk of the peace shall at the opening of the first court to be held by every such barrister
* * * produce or cause to be produced before him the several lists of voters for such county, riding,
parts, or division which shall have been delivered to such clerk of the peace by the high constable as
aforesaid; and the overseers of every parish and township who shall have made out the lists of voters
shall attend the court to be held by every such barrister at the place appointed for revising the lists
relating to such parish or township respectively, and shall also deliver to such barrister a copy of the
list of the persons objected to, so made out by them as aforesaid; and the said overseers shall answer
upon oath all such questions as such barrister may put to them or any of them touching any matter
necessary for revising the lists of voters; and every such barrister shall retain on the lists of voters the
names of all persons to whom no objection shall have been made by the overseers, or by any other
person, in the manner hereinbefore mentioned; and he shall also retain on the list of voters the name
of every person who shall have been objected to by any person other than the overseers, unless the
party so objecting shall appear by himself or by some one on his behalf in support of such objection;
and where the name of any person inserted in the list of voters shall have been objected to by the
overseers, or by any other person in the manner hereinbefore mentioned, and such person so
objecting shall appear by himself or by some one on his behalf in support of such objection, every
such barrister shall require it to be proved that the person so objected to was entitled on the last day of
July then next preceding to have his name inserted in the list of voters in respect of the qualification
described in such list; and in case the same shall not be proved to the satisfaction of such barrister, or
in case it shall be proved that such person was then incapacitated by any law or statute from voting in
the election of members to serve in parliament, such barrister shall expunge the name of every such
person from the said lists; and he shall also expunge from the said lists the name of every person who
shall be proved to him to be dead: and shall correct any mistake which shall be proved to him to have
been made in any of the said lists as to any of the particulars by this act required to be inserted in such
lists and where the Christian name of any person, or his place of abode, or the nature of his
qualification, or the local or other description of his property, or the name of the tenant in the
occupation thereof, as the same respectively are required to be inserted in any such list, shall be
wholly omitted therefrom, such barrister shall expunge the name of every such person from such list,
unless the matter or matters so omitted be supplied to the satisfaction of such barrister before he shall
have completed the revision of such list, in which case he shall then and there insert the same in such
list: provided always, that no person’s name shall be expunged from any such list, except in case of
his death or of his being objected to on the margin of the list by the overseers as aforesaid, or except
in case of any such omission or omissions as hereinbefore last-mentioned, unless such notice as is
hereinbefore required in that behalf shall have been given to the overseers, nor unless such notice as
is hereinbefore required in that behalf shall have been given to such person, or left at his place of
abode, or delivered to his tenant as hereinbefore mentioned.
XLIII. Provided also, that if it shall happen that any person who shall have given to the overseers of
any parish or township due notice of his claim to have his name inserted in the list of voters in the
election of a knight or knights of the shire, shall have been omitted by such overseers from such list, it
shall be lawful for the barrister, upon the revision of such list, to insert therein the name of the person
so omitted, in case it shall be proved to the satisfaction of such barrister that such person gave due
notice of such his claim to the said overseers, and that he was entitled on the last day of July then next
preceding to be inserted in the list of voters in the election of a knight or knights of the shire. * * *
XLIV-LII. [Regulations for registration of voters for boroughs.]
[Part omitted]
LVI. That for the purpose of defraying the expenses to be incurred by the overseers of the poor and by
the clerk of the peace in carrying into effect the several provisions of this act, so far as relates to the
electors for any county, or for any riding, parts, or division of a county, every person, upon giving
notice of his claim as such elector to the overseers, as hereinbefore mentioned, shall pay or cause to
be paid to the said overseers the sum of 1 s.; and such notice of claim shall not be deemed valid until
such sum shall have been paid; and the overseers of each parish or township shall add all monies so
received by them to the money collected or to be collected for the relief of the poor in such parish or
townships, and such monies so added shall be applicable to the same purposes as monies collected
for the relief of the poor; and that for the purpose of defraying the expenses to be incurred by the
returning officer of every city and borough, and townships in and by the overseers of the several
parishes every city and borough, and place sharing in the election therewith, in carrying into effect the
provisions of this act, so far as relates to the electors for such city or borough, every such elector
whose name shall be upon the register of voters for such city or borough for the time being shall be
24
liable to the payment of 1 s. annually, which sum shall be levied and collected from each elector in
addition to and as a part of the money payable by him as his contribution to the rate for the relief of the
poor, and such sum shall be applicable to the same purposes as money collected for the relief of the
poor; and that the expenses incurred by the overseers of any parish or township in making out,
printing, and publishing the several lists and notices directed by this act, and all other expenses
incurred by them in carrying into effect the provisions of this act, shall be defrayed out of the money
collected or to be collected for the relief of the poor in such parish or township; and that all expenses
incurred by the returning officer of any city or borough in causing the lists of the electors for such city
or borough to be copied out and made into a register, and in causing copies of such register to be
written or printed, shall be defrayed by the overseers of the poor of the several parishes and townships
within such city or borough, or place sharing in the election therewith, out of the money collected or to
be collected for the relief of the poor in such parishes and township, in proportion to the number of
voters placed on the register of voters for each parish or township; and that all expenses incurred by
the clerk of the peace of any county, riding, or parts in causing the lists of the electors for such county,
riding, or parts, or for any division of such county, to be copied out and made into a register, and in
causing copies of such register to be written or printed, and in otherwise carrying into effect the
provisions of this act, shall be defrayed by the treasurer of such county, riding, or parts out of any
public money in his hands, and he shall be allowed all such payments in his accounts: provided
always, that no expenses incurred by any clerk of the peace under this act shall be so defrayed unless
the account shall be laid before the justices of the peace at the next quarter sessions after such
expenses shall have been incurred, and allowed by the court.
LVII. That every barrister appointed to revise any list of voters under this act shall be paid at the rate of
five guineas for every day that he shall be so employed, over and above his travelling and other
expenses; and every such barrister, after the termination of his last sitting, shall lay or cause to be laid
before the lords commissioners of His Majesty’s treasury for the time being a statement of the number
of days during which he shall have been so employed, and an account of the travelling and other
expenses incurred by him in respect of such employment; and the said lords commissioners shall
make an order for the amount to be paid to such barrister.
[Part omitted]
LXII. That at every contested election of a knight or knights to serve in any future parliament for any
county, or for any riding, parts, or division of a county, the polling shall commence at nine o’clock in
the forenoon of the next day but two after the day fixed for the election, unless such next day but two
shall be Saturday or Sunday, and then on the Monday following, at the principal place of election, and
also at the several places to be appointed as hereinafter directed for taking polls; and such polling
shall continue for two days only, such two days being successive days; (that is to say,) for seven hours
on the first day of polling, and for eight hours on the second day of polling; and no poll shall be kept
open later than four o’clock in the afternoon of the second day; any statute to the contrary
notwithstanding.
LXIII. That the respective counties in England and Wales, and the respective ridings, parts, and
divisions of counties, shall be divided into convenient districts for polling, and in each district shall be
appointed a convenient place for taking the poll at all elections of a knight or knights of the shire to
serve in any future parliament, and such districts and places for taking the poll shall be settled and
appointed by the act to be passed in this present parliament for the purpose of settling and describing
the divisions of the counties enumerated in the schedule marked (F.) to this act annexed; provided that
no county, nor any riding, parts, or division of a county, shall have more than fifteen districts and
respective places appointed for taking the poll for such county, riding, parts, or division.
LXIV. That at every contested election for any county, riding, parts, or division of a county the sheriff,
under-sheriff, or sheriff’s deputy shall, if required thereto by or on behalf of any candidate, on the day
fixed for the election, and if not so required may if it shall appear to him expedient, cause to be erected
a reasonable number of booths for taking the poll at the principal place of election, and also at each of
the polling places so to be appointed as aforesaid, and shall cause to be affixed on the most
conspicuous part of each of the said booths the names of the several parishes, townships, and places
for which such booth is respectively allotted; and no person shall be admitted to vote at any such
election in respect of any property situate in any parish, township, or place, except at the booth so
allotted for such parish, township, or place, and if no booth shall be so allotted for the same, then at
any of the booths for the same district; and in case any parish, township, or place shall happen not to
be included in any of the districts to be appointed, the votes in respect of property situate in any
25
parish, township, or places omitted shall be taken at the principal place of election for the county, or
riding, parts, or division of the county, as the case may be.
[Part omitted]
LXXI. That from and after the end of this present parliament all booths erected for the convenience of
taking polls shall be erected at the joint and equal expense of the several candidates, and the same
shall be erected by contract with the candidates, if they shall think fit to make such contract, or if they
shall not make such contract, then the same shall be erected by the sheriff or other returning officer at
the expense of the several candidates as aforesaid, subject to such limitation as is hereinafter next
mentioned; (that is to say,) that the expense to be incurred for the booth or booths to be erected at the
principal place of election * * * or at any of the polling places so to be appointed as aforesaid, shall not
exceed the sum of 40£ in respect of any one such principal place of election or any one such polling
place; and that the expense to be incurred for any booth or booths to be erected for any parish,
district, or part Of any city or borough shall not exceed the sum of 25£ in respect of any one such
parish, district, or part; and that all deputies appointed by the sheriff or other returning officer shall be
paid each two guineas by the day, and all clerks employed in taking the poll shall be paid each one
guinea by the day, at the expense of the candidates at such election: provided always, that if any
person shall be proposed without his consent, then the person so proposing him shall be liable to
defray his share of the said expenses in like manner as if he had been a candidate; provided also, that
the sheriff or other returning officer may, if he shall think fit, instead of erecting such booth or booths
as aforesaid, procure or hire and use any houses or other buildings for the purpose of taking the poll
therein, subject always to the same regulations, provisions, liabilities, and limitations of expense as are
hereinbefore mentioned with regard to booths for taking the poll.
[Part omitted]
LXXVIII. Provided always, that nothing in this act contained shall extend to or in any wise affect the
election of members to serve in parliament for the universities of Oxford or Cambridge, or shall entitle
any person to vote in the election of members to serve in parliament for the city of Oxford or town of
Cambridge in respect of the occupation of any chamber or premises in any of the colleges or halls of
the universities of Oxford or Cambridge.
[Part omitted]
Abolition of Negro Slavery Act
(1833, August 28. 3 & 4 William IV. c. 73.)
WHEREAS divers Persons are holden in Slavery within divers of His Majesty’s Colonies, and it is just
and expedient that all such Persons should be manumitted and set free, and that a reasonable
Compensation should be made to the Persons hitherto entitled to the Services of such Slaves for the
Loss which they will incur by being deprived of their Right to such Services: And whereas it is also
expedient that Provision should be made for promoting the Industry and securing the good Conduct of
the Persons so to be manumitted, for a limited Period after such their Manumission: And whereas it is
necessary that the Laws now in force in the said several Colonies should forthwith be adapted to the
new State and Relations of Society therein which will follow upon such general Manumission as
aforesaid of the said Slaves; and that, in order to afford the necessary Time for such Adaptation of the
said Laws, a short Interval should elapse before such Manumission should take effect: Be it therefore
enacted by the King’s most Excellent Majesty, by and with the Advice and Consent of the Lords
Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the Authority of
the same, That from and after the First Day of August One thousand eight hundred and thirty-four all
Persons who in conformity with the Laws now in force in the said Colonies respectively shall on or
before the First Day of August One thousand eight hundred and thirty-four have been duly registered
as Slaves in any such Colony and who on the said First Day of August One thousand eight hundred
and thirty-four shall be actually within any such Colony, and who shall by such Registries appear to be
on the said First bay of August One thousand eight hundred and thirty-four of the full Age of Six Years
or upwards, shall by force and virtue of this Act, and without the previous Execution of any Indenture
of Apprenticeship, or other Deed or Instrument for that Purpose, become and be apprenticed
Labourers; provided that, for the Purposes aforesaid, every Slave engaged in his ordinary Occupation
on the Seas shall be deemed and taken to be within the Colony to which such Slave shall belong.
26
II. And be it further enacted, That during the Continuance of the Apprenticeship of any such
apprenticed Labourer such Person or Persons shall be entitled to the Services of such apprenticed
Labourer as would for the Time being have been entitled to his or her Services as a Slave if this Act
had not been made.
III. Provided also, and be it further enacted, That all Slaves who may at any Time previous to the
passing of this Act have been brought with the Consent of their Possessors, and all apprenticed
Labourers who may hereafter with the like Consent be brought, into any Part of the United Kingdom of
Great Britain and Ireland, shall from and after the passing of this Act be absolutely and entirely free to
all Intents and Purposes whatsoever.
[Part omitted]
XXIV. And whereas, towards compensating the Persons at present entitled to the Services of the
Slaves to be manumitted and set free by virtue of this Act for the Loss of such Services, His Majesty’s
most dutiful and loyal Subjects the Commons of Great Britain and Ireland in Parliament assembled
have resolved to give and grant to His Majesty the Sum of Twenty Millions Pounds Sterling; be it
enacted, That the Lords Commissioners of His Majesty’s Treasury of the United Kingdom of Great
Britain and Ireland may raise such Sum or Sums of Money as shall be required from Time to Time
under the Provisions of this Act, and may grant as the Consideration for such Sum or Sums of Money
Redeemable Perpetual Annuities or Annuities for Terms of Years. * * *
[Part omitted]
XXXIII. And for the Distribution of the said Compensation Fund, and the Apportionment thereof
amongst the several Persons who may prefer Claims thereon, be it enacted, That it shall and may be
lawful for His Majesty from Time to Time, by a Commission under the Great Seal of the United
Kingdom, to constitute and appoint such Persons, not being less than Five, as to His Majesty shall
seem meet, to be Commissioners of Arbitration for inquiring into and deciding upon the Claims to
Compensation which may be preferred to them under this Act.
[Part omitted]
XLV. And be it further enacted, That the said Commissioners shall proceed to apportion the said Sum
into Nineteen different Shares, which shall be respectively assigned to the several British Colonies or
Possessions hereinafter mentioned; (that is to say,) the Bermuda Islands, the Bahama Islands,
Jamaica, Honduras, the Virgin Islands, Antigua, Montserrat, Nevis, Saint Christopher’s, Dominica,
Barbadoes, Grenada, Saint Vincent’s, Tobago, Saint Lucia, Trinidad, British Guiana, the Cape of
Good Hope, and Mauritius; and in making such Apportionment of the said Funds between the said
several Colonies the said Commissioners shall and are hereby required to have regard to the Number
of Slaves belonging to or settled in each of such Colonies as the same may appear and are stated
according to the latest Returns made in the Office of the Registrar of Slaves in England, appointed in
pursuance and under the Authority of an Act passed in the Fifty-ninth Year of His late Majesty King
George the Third, intituled An Act for establishing a Registry of Colonial Slaves in Great Britain, and
for making further Provision with respect to the Removal of Slaves from British Colonies; and the said
Commissioners shall and they are hereby further required, in making such Apportionment as
aforesaid, to have regard to the Prices for which, on an Average of Eight Years ending on the Thirtyfirst Day of December One thousand eight hundred and thirty, Slaves have been sold in each of the
Colonies aforesaid respectively, excluding from Consideration any such Sales in which they shall have
sufficient Reason to suppose that such Slaves were sold or purchased under any Reservation, or
subject to any express or tacit Condition affecting the Price thereof; and the said Commissioners shall
then proceed to ascertain, in reference to each Colony, what Amount of Sterling Money will represent
the average Value of a Slave therein for the said Period of Eight Years; and the total Number of the
Slaves in each Colony being multiplied into the Amount of Sterling Money so representing such
average Value as aforesaid of a Slave therein, the Product of such Multiplication shall be ascertained
for each such Colony separately; and the said Twenty Millions of Pounds Sterling shall then be
assigned to and apportioned amongst the said several Colonies rateably and in proportion to the
Product so ascertained for each respectively.
27
Reform Act of 1867
(1867, August 15. 30 & 31 Victoria, c. 102.)
WHEREAS it is expedient to amend the laws relating to the representation of the people in England
and Wales:
Be it enacted by the queen’s most excellent Majesty, by and with the advice and consent of the lords
spiritual and temporal, and commons, in this present parliament assembled, and by the authority of the
same as follows:
1. This act shall be cited for all purposes as “The Representation of the People Act, 1867.”
2. This act shall not apply to Scotland or Ireland, nor in any wise affect the election of members to
serve in parliament for the universities of Oxford or Cambridge.
PART I
FRANCHISES
3. Every man shall, on and after the year one thousand eight hundred and sixty-eight, be entitled to be
registered as a voter, and, when registered, to vote for a member or members to serve in parliament
for a borough, who is qualified as follows; (that is to say,)
1. Is of full age, and not subject to any legal incapacity; and
2. Is on the last day of July in any year, and has during the whole of the preceding twelve
calendar months been, an inhabitant occupier, as owner or tenant, of any dwelling house
within the borough; and
3. Has during the time of such occupation been rated as an ordinary occupier in respect of the
premises so occupied by him within the borough to all rates (if any) made for the relief of the
poor in respect of such premises; and
4. Has on or before the twentieth day of July in the same year bona fide paid an equal amount in
the pound to that payable by other ordinary occupiers in respect of all poor rates that have
become payable by him in respect of the said premises up to the preceding fifth day of
January:
Provided that no man shall under this section be entitled to be registered as a voter by reason of his
being a joint occupier of any dwelling house.
4. Every man shall, in and after the year one thousand eight hundred and sixty-eight, be entitled to be
registered as a voter, and, when registered, to vote for a member or members to serve in parliament
for a borough, who is qualified as follows; (that is to say,)
1. Is of full age and not subject to any legal incapacity, and
2. As a lodger has occupied in the same borough separately and as sole tenant for the twelve
months preceding the last day of July in any year the same lodgings, such lodgings being part
of one and the same dwelling house, and of a clear yearly value, if let unfurnished, of ten
pounds or upwards; and
3. Has resided in such lodgings for the twelve months immediately preceding the last day of July,
and has claimed to be registered as a voter at the next ensuing registration of voters.
5. Every man shall, in and after the year one thousand eight hundred and sixty-eight, be entitled to be
registered as a voter, and, when registered, to vote for a member or members to serve in parliament
for a county, who is qualified as follows; (that is to say,)
1. Is of full age, and not subject to any legal incapacity, and is seised at law or in equity of any
lands or tenements of freehold, copyhold, or any other tenure whatever, for his own life, or for
the life of another, or for any lives whatsoever, or for any larger estate of the clear yearly value
of mot less than five pounds over and above all rents and charges payable out of or in respect
of the same, or who is entitled, either as lessee or assignee, to any lands or tenements of
freehold or of any other tenure whatever for the unexpired residue, whatever it may be, of any
term originally created for a period of not less than sixty years (whether determinable on a life
or lives or not), of the clear yearly value of not less than five pounds over and above all rents
and charges payable out of or in respect of the same:
28
Provided that no person shall be registered as a voter under this section unless he has complied with
the provisions of the twenty-sixth section of the act of the second year of the reign of His Majesty
William the Fourth, Chapter forty-five.
6. Every man shall, in and after the year one thousand eight hundred and sixty-eight, be entitled to be
registered as a voter, and, when registered, to vote for a member or members to serve in parliament
for a county, who is qualified as follows; (that is to say,)
1. Is of full age, and not subject to any legal incapacity, and
2. Is on the last day of July in any year, and has during the twelve months immediately preceding
been, the occupier, as owner or tenant, of lands or tenants within the county of the rateable
value of twelve pounds or upwards; and
3. Has during the time of such occupation been rated in respect to the premises so occupied by
him to all rates (if any) made for the relief of the poor in respect of the said premises; and
4. Has on or before the twentieth day of July in the same year paid all poor rates that have
become payable by him in respect of the said premises up to the preceding fifth day of
January.
[Part omitted]
PART II
DISTRIBUTION OF SEATS
17. From and after the end of this present parliament, no borough which has a less population than
ten thousand at the census of one thousand eight hundred and sixty-one shall return more than one
member to serve in parliament, such boroughs being enumerated in schedule (A.) [38 in all] to this act
annexed
18. From and after the end of this present parliament, the city of Manchester, and the boroughs of
Liverpool, Birmingham, and Leeds, shall each respectively return three members to serve in
parliament.
19. Each of the places named in schedule (B.) [10 in all] to this act annexed shall be a borough, and,
until otherwise directed by parliament, each such borough shall comprise such places as are specified
and described in connection with the name of each such borough in the said schedule (B.); and in all
future parliaments the borough of Chelsea, named in the said schedule, shall return two members,
and each of the other boroughs named in the said schedule shall return one member to serve in
parliament.
20. Registers of voters shall be formed in and after the year one thousand eight hundred and sixtyeight, notwithstanding the continuance of this present parliament, for or in respect of the boroughs
constituted by this act, in like manner as if before the passing of this act they respectively had been
boroughs returning members to serve in parliament.
2 1 . From and after the end of the present parliament, the boroughs of Merthyr Tydfil and Salford shall
each return two members instead of one to serve in future parliaments; and the borough of the Tower
Hamlets shall be divided into two divisions, and each division shall in all future parliaments be a
separate borough returning two members to serve in parliament.
The said divisions shall be known by the name of the borough of Hackney and the borough of the
Tower Hamlets, and, until otherwise directed by parliament, shall comprise the places mentioned in
connection with each such borough in schedule (C.) hereto annexed.
22. Registers of voters shall be formed in and after the year one thousand eight hundred and sixtyeight, notwithstanding the continuance of this present parliament, in respect of the said boroughs of
Hackney and of the Tower Hamlets constituted under this act in like manner as if such divisions had
previously to the passing of this act been separate boroughs returning members to serve in
parliament.
23. From and after the end of the present parliament, each county named in the first column of
schedule (D.) [8 counties divided into 3 divisions, 4 divisions of counties made in 1832 divided into 2
divisions, and the west riding of Yorkshire divided into 3 divisions] to this act annexed shall be divided
into the divisions named in the second column of the said schedule, and, until otherwise directed by
29
parliament, each of such divisions shall consist of the hundreds, lathes, wapentakes, and places
mentioned in the third column of the said schedule.
In all future parliaments there shall be two members to serve for each of the divisions specified in the
said second column, and such members shall be chosen in the same manner, and by the same
description of voters, and in respect of the same rights of voting, as if each such division were a
separate county.
All enactments relating to divisions of counties returning members to serve in parliament shall be
deemed to apply to the divisions constituted as aforesaid.
Registers of voters shall be formed in and after the year one thousand eight hundred and sixty-eight,
notwithstanding the continuance of this present parliament, for or in respect of the divisions of counties
constituted by this act, in like manner as if before the passing of this act they had respectively been
counties returning members to serve in parliament.
24. In all future parliaments the university of London shall return one member to serve in parliament.
25. Every man whose name is for the time being on the register of graduates constituting the
convocation of the university of London shall, if of full age, and not subject to any legal incapacity, be
entitled to vote in the election of a member to serve in any future parliament for the said university.
PART III
SUPPLEMENTAL PROVISION
[Part omitted]
REGISTRATION OF VOTERS
30. The following regulations shall in and after the year one thousand eight hundred and sixty-eight be
observed with respect to the registration of voters:
1. The overseers of every parish or township shall make out or cause to be made out a list of all
persons on whom a right to vote for a county in respect of the occupation of premises is
conferred by this act, in the same manner, and subject to the same regulations, as nearly as
circumstances admit, in and subject to which the overseers of parishes and townships in
boroughs are required by the registration acts to make out or cause to be made out a list of all
persons entitled to vote for a member or members for a borough in respect of the occupation
of premises of a clear yearly value of not less than ten pounds:
[Part omitted]
MISCELLANEOUS
5 1 . Whereas great inconvenience may arise from the enactments now in force limiting the duration of
the parliament in being at the demise of the crown: be it therefore enacted, that the parliament in being
at any future demise of the crown shall not be determined or dissolved by such demise, but shall
continue so long as it would have continued but for such demise, unless it should be sooner
prorogued or dissolved by the crown, anything in the act passed in the sixth year of Her late Majesty
queen Anne, chapter seven, in any way notwithstanding.
52. Whereas it is expedient to amend the law relating to offices of profit the acceptance of which from
the crown vacates the seats of members accepting the same, but does not render them incapable of
being re-elected: be it enacted, that where a person has been returned as a member to serve in
parliament since the acceptance by him from the crown of any office described in schedule (H.) to this
act annexed, the subsequent acceptance by him from the crown of any other office or offices
described in such schedule in lieu of and in immediate succession the one to the other shall not
vacate his seat.
[Part omitted]
Disestablishment of the Irish Church Act
(1869, July 26. 32 & 33 Victoria, c. 42.)
WHEREAS it is expedient that the union created by act of parliament between the churches of
England and Ireland, as by law established, should be dissolved, and that the Church of Ireland, as so
30
separated, should cease to be established by law, and that after satisfying, so far as possible, upon
principles of equality as between the several religious denominations of Ireland, all just and equitable
claims, the property of the said Church of Ireland, or the proceeds thereof, should be applied in such
manner as parliament shall hereafter direct:
And whereas Her Majesty has been graciously pleased to signify that she has placed at the disposal
of parliament her interests in the several archbishoprics, bishoprics, benefices, cathedral preferments,
and other ecclesiastical dignities and offices in Ireland:
Be it therefore enacted by the queen’s most excellent Majesty, by and with the advice and consent of
the lords spiritual and temporal, and commons, in this present parliament assembled, and by the
authority of the same, as follows:
1. This act may be cited for all purposes as “The Irish Church Act, 1869.”
2. On and after the first day of January one thousand eight hundred and seventy-one the said union
created by act of parliament between the Churches of England and Ireland shall be dissolved, and the
said Church of Ireland, herein-after referred to as “the said church,” shall cease to be established by
law.
[Part omitted]
The Ballot Act
(1872, July 18. 35 & 36 Victoria, c. 33.)
WHEREAS it is expedient to amend the law relating to procedure at parliamentary and municipal
elections:
Be it enacted by the queen’s most excellent Majesty, by and with the advice and consent of the lords
spiritual and temporal, and commons, in this present parliament assembled, and by the authority of the
same, as follows:
PART I
PARLIAMENTARY ELECTIONS
PROCEDURE AT ELECTIONS
1. A candidate for election to serve in parliament for a county or borough shall be nominated in writing.
The writing shall be subscribed by two registered electors of such county or borough as proposer and
seconder, and by eight other registered electors of the same county or borough as assenting to the
nomination, and shall be delivered during the time appointed for the election to the returning officer by
the candidate himself, or his proposer or seconder.
If at the expiration of one hour after the time appointed for the election no more candidates stand
nominated than there are vacancies to be filled up, the returning officer shall forthwith declare the
candidates who may stand nominated to be elected, and return their names to the clerk of the crown in
chancery; but if at the expiration of such hour more candidates stand nominated than there are
vacancies to be filled up, the returning officer shall adjourn the election and shall take a poll in manner
in this act mentioned.
A candidate may, during the time appointed for the election, but not afterwards, withdraw from his
candidature by giving a notice to that effect, signed by him, to the returning officer: provided that the
proposer of a candidate nominated in his absence out of the United Kingdom may withdraw such
candidate by a written notice signed by him and delivered to the returning officer, together with a
written declaration of such absence of the candidate.
If after the adjournment of an election by the returning officer for the purpose of taking a poll one of the
candidates nominated shall die before the poll has commenced, the returning officer shall, upon being
satisfied of the fact of such death, countermand notice of the poll, and all the proceedings with
reference to the election shall be commenced afresh in all respects as if the writ had been received by
the returning officer on the day on which proof was given to him of such death; provided that no fresh
nomination shall be necessary in the case of a candidate who stood nominated at the time of the
countermand of the poll.
31
2. In the case of a poll at an election the votes shall be given by ballot. The ballot of each voter shall
consist of a paper (in this act called a ballot paper) showing the names and description of the
candidates. Each ballot paper shall have a number printed on the back, and shall have attached a
counterfoil with the same number printed on the face. At the time of voting, the ballot paper shall be
marked on both sides with an official mark, and delivered to the voter within the polling station, and the
number of such voter on the register of voters shall be marked on the counterfoil, and the voter having
secretly marked his vote on the paper, and folded it up so as to conceal his vote, shall place it in a
closed box in the presence of the officer presiding at the polling station (in this act called “the presiding
officer”) after having shown to him the official mark at the back.
Any ballot paper which has not on its back the official mark, or on which votes are given to more
candidates than the voter is entitled to vote for, or on which anything, except the said number on the
back, is written or marked by which the voter can be identified, shall be void and not counted.
After the close of the poll the ballot boxes shall be sealed up, so as to prevent the introduction of
additional ballot papers, and shall be taken charge of by the returning officer, and that officer shall, in
the presence of such agents, if any, of the candidates as may be in attendance, open the ballot boxes,
and ascertain the result of the poll by counting the votes given to each candidate, and shall forthwith
declare to be elected the candidates or candidate to whom the majority of votes have been given, and
return their names to the clerk of the crown in chancery. The decision of the returning officer as to any
question arising in respect of any ballot paper shall be final, subject to reversal on petition questioning
the election or return.
Where an equality of votes is found to exist between any candidates at an election for a county or
borough, and the addition of a vote would entitle any of such candidates to be declared elected, the
returning officer, if a registered elector of such county or borough, may give such additional vote, but
shall not in any other case be entitled to vote at an election for which he is returning officer.
[Part omitted]
PART II
MUNICIPAL ELECTIONS
20. The poll at every contested municipal election shall, so far as circumstances admit, be conducted
in the manner in which the poll is by this act directed to be conducted at a contested parliamentary
election, and, subject to the modifications expressed in the schedules annexed hereto, such provision
of this act and of the said schedules as relate to or are concerned with a poll at a parliamentary
election shall apply to a poll at a contested municipal election: * * *
[Part omitted]
Reform Act of 1884
(1884, December 6. 48 Victoria, c. 3.)
BE it enacted by the queen’s most excellent Majesty, by and with the advice and consent of the lords
spiritual and temporal, and commons, in this present parliament assembled, and by the authority of the
same, as follows:
PRELIMINARY
1. This act my be cited as the Representation of the People Act, 1884.
EXTENSION OF THE HOUSEHOLD AND LODGER FRANCHISE
2. A uniform household franchise and a uniform lodger franchise at elections shall be established in all
counties and boroughs throughout the united kingdom, and every man possessed of a household
qualification or a lodger qualification shall, if the qualifying premises be situate in a county in England
or Scotland, be entitled to be registered as a voter, and when registered to vote at an election for such
county, and if the qualifying premises be situate in a county or borough in Ireland, be entitled to be
registered as a voter, and when registered to vote at an election for such county or borough.
3. Where a man himself inhabits any dwelling-house by virtue of any office, service, or employment,
and the dwelling-house is not inhabited by any person under whom such man serves in such office,
service, or employment, he shall be deemed for the purposes of this act and of the representation of
the people acts to be an inhabitant occupier of such dwelling-house as a tenant.
32
[Part omitted]
Third Redistribution of Parliamentary Seats Act
(1885, June 25. 48 & 49 Victoria, c. 23.)
BE it enacted by the Queen’s Most Excellent Majesty, by and with the advice and consent of the Lords
Spiritual and Temporal, and Commons, in this present parliament and by the authority of the same, as
follows:
PRELIMINARY
1. This act may be cited as ”The Redistribution of Seats Act, 1885.”
PART I
REDISTRIBUTION
Boroughs
2. From and after the end of this present parliament the parliamentary boroughs named in the first part
of the First Schedule [103 in all] shall cease as boroughs to return any member.
[Part omitted]
3. [Boroughs of Macclesfield and Sandwich disfranchised for corruption.]
4. From and after the end of this present parliament the City of London shall return two members, and
no more, and each of the parliamentary boroughs named in the Second Schedule [39 in all] shall
return one member, and no more.
5. [Parliamentary boroughs named in Third Schedule [19 in all] given additional members.]
6. [Towns and places named in the Fourth Schedule [33 in all] made parliamentary boroughs.]
7. [Alterations of boundaries of boroughs.]
8. [Division of boroughs for electoral purposes.]
Counties
9. [Division of counties for electoral purposes into divisions returning one member each - the counties
of England and Wales into 244 divisions, the counties of Scotland into 46 divisions, and the counties
of Ireland into 85 divisions.]
[Part omitted]
Retrieved from: Adams & Stephens “Select Documents of English Constitutional History”,
http://home.freeuk.net/don-aitken/ast/astintro.html
33
Parliament (Qualification of Women) Act 1918
1918 c.47 8_and_9_Geo_5
An Act to amend the Law with respect to the Capacity of Women to sit in Parliament
[21st November 1918]
1.
Capacity of women to be members of Parliament.
A woman shall not be disqualified by sex or marriage for being elected to or sitting or voting as a
Member of the Commons House of Parliament.
2.
Short title.
This Act may be cited as the Parliament (Qualification of Women) Act 1918.
Parliament Act 1911
1911 c.13 1_and_2_Geo_5
An Act to make provision with respect to the powers of the House of Lords in relation to those of the
House of Commons, and to limit the duration of Parliament.
[18th August 1911]
Whereas it is expedient that provision should be made for regulating the relations between the two
Houses of Parliament:
And whereas it is intended to substitute for the House of Lords as it at present exists a Second
Chamber constituted on a popular instead of hereditary basis, but such substitution cannot be
immediately brought into operation:
And whereas provision will require hereafter to be made by Parliament in a measure effecting such
substitution for limiting and defining the powers of the new Second Chamber, but it is expedient to
make such provision as in this Act appears for restricting the existing powers of the House of Lords:
1.
Powers of House of Lords as to Money Bills.
— (1) If a Money Bill, having been passed by the House of Commons, and sent up to the House of
Lords at least one month before the end of the session, is not passed by the House of Lords without
amendment within one month after it is so sent up to that House, the Bill shall, unless the House of
Commons direct to the contrary, be presented to His Majesty and become an Act of Parliament on the
Royal Assent being signified, notwithstanding that the House of Lords have not consented to the Bill.
(2) A Money Bill means a Public Bill which in the opinion of the Speaker of the House of Commons
contains only provisions dealing with all or any of the following subjects, namely, the imposition,
repeal, remission, alteration, or regulation of taxation; the imposition for the payment of debt or other
financial purposes of charges on the Consolidated Fund, [F1the National Loans Fund] or on money
provided by Parliament, or the variation or repeal of any such charges; supply; the appropriation,
receipt, custody, issue or audit of accounts of public money; the raising or guarantee of any loan or the
repayment thereof; or subordinate matters incidental to those subjects or any of them. In this
subsection the expressions “taxation,” “public money,” and “loan” respectively do not include any
taxation, money, or loan raised by local authorities or bodies for local purposes.
(3) There shall be endorsed on every Money Bill when it is sent up to the House of Lords and when it
is presented to His Majesty for assent the certificate of the Speaker of the House of Commons signed
by him that it is a Money Bill. Before giving his certificate the Speaker shall consult, if practicable, two
members to be appointed from the Chairmen’s Panel at the beginning of each Session by the
Committee of Selection.
Annotations:
Amendments (Textual) F 1 : Words inserted by National Loans Act 1968 (c. 13), s. 1(5)
34
2.
Restriction of the powers of the House of Lords as to Bills other than Money Bills.
— (1) If any Public Bill (other than a Money Bill or a Bill containing any provision to extend the
maximum duration of Parliament beyond five years) is passed by the House of Commons [F2in two
successive sessions](whether of the same Parliament or not), and, having been sent up to the House
of Lords at least one month before the end of the session, is rejected by the House of Lords in each of
those sessions, that Bill shall, on its rejection [F2for the second time] by the House of Lords, unless
the House of Commons direct to the contrary, be presented to His Majesty and become an Act of
Parliament on the Royal Assent being signified thereto, notwithstanding that the House of Lords have
not consented to the Bill: Provided that this provision shall not take effect unless [F2one year has
elapsed] between the date of the second reading in the first of those sessions of the Bill in the House
of Commons and the date on which it passes the House of Commons [F2in the second of these
sessions.]
(2) When a Bill is presented to His Majesty for assent in pursuance of the provisions of this section,
there shall be endorsed on the Bill the certificate of the Speaker of the House of Commons signed by
him that the provisions of this section have been duly complied with.
(3) A Bill shall be deemed to be rejected by the House of Lords if it is not passed by the House of
Lords either without amendment or with such amendments only as may be agreed to by both Houses.
(4) A Bill shall be deemed to be the same Bill as a former Bill sent up to the House of Lords in the
preceding session if, when it is sent up to the House of Lords, it is identical with the former Bill or
contains only such alterations as are certified by the Speaker of the House of Commons to be
necessary owing to the time which has elapsed since the date of the former Bill, or to represent any
amendments which have been made by the House of Lords in the former Bill in the preceding session,
and any amendments which are certified by the Speaker to have been made by the House of Lords
[F2in the second session] and agreed to by the House of Commons shall be inserted in the Bill as
presented for Royal Assent in pursuance of this section:
Provided that the House of Commons may, if they think fit, on the passage of such a Bill through the
House [F2in the second session,] suggest any further amendments without inserting the amendments
in the Bill, and any such suggested amendments shall be considered by the House of Lords, and, if
agreed to by that House, shall be treated as amendments made by the House of Lords and agreed to
by the House of Commons; but the exercise of this power by the House of Commons shall not affect
the operation of this section in the event of the Bill being rejected by the House of Lords.
Annotations:
Amendments (Textual) F2: Words substituted except in relation to Bill for Parliament Act 1949 (c. 103),
by ibid., s. 1
3.
Certificate of Speaker.
Any certificate of the Speaker of the House of Commons given under this Act shall be conclusive for
all purposes, and shall not be questioned in any court of law.
4.
Enacting words.
— (1) In every Bill presented to His Majesty under the preceding provisions of this Act, the words of
enactment shall be as follows, that is to say:—
"Be it enacted by the King’s most Excellent Majesty, by and with the advice and consent of the
Commons in this present Parliament assembled, in accordance with the provisions of [F3the
Parliament Acts 1911 and 1949] and by authority of the same, as follows."
(2) Any alteration of a Bill necessary to give effect to this section shall not be deemed to be an
amendment of the Bill.
Annotations:
Amendments (Textual) F3: Words substituted by Parliament Act 1949 (c. 103), s. 2(2)
5.
35
Provisional Order Bills excluded.
In this Act the expression “Public Bill” does not include any Bill for confirming a Provisional Order.
6.
Saving for existing rights and privileges of the House of Commons.
Nothing in this Act shall diminish or qualify the existing rights and privileges of the House of Commons.
7.
Duration of Parliament.
Five years shall be substituted for seven years as the time fixed for the maximum duration of
Parliament under the M1Septennial Act 1715.
Annotations:
Marginal Citations M 1 : 1715 c. 38.
8.
Short title.
This Act may be cited as the Parliament Act 1911.
Life Peerages Act 1958
1958 c.21 6_and_7_Eliz_2
An Act to make provision for the creation of life peerages carrying the right to sit and vote in the House
of Lords.
[30th April 1958]
1.
Power to create life peerages carrying right to sit in the House of Lords.
— (1) Without prejudice to Her Majesty’s powers as to the appointment of Lords of Appeal in Ordinary,
Her Majesty shall have power by letters patent to confer on any person a peerage for life having the
incidents specified in subsection (2) of this section.
(2) A peerage conferred under this section shall, during the life of the person on whom it is conferred,
entitle him—
(a)
to rank as a baron under such style as may be appointed by the letters patent; and
(b)
subject to subsection (4) of this section, to receive writs of summons to attend the House of Lords and
sit and vote therein accordingly,
and shall expire on his death.
(3) A life peerage may be conferred under this section on a woman.
(4) Nothing in this section shall enable any person to receive a writ of summons to attend the House of
Lords, or to sit and vote in that House, at any time when disqualified therefore by law.
2.
Short title.
This Act may be cited as the Life Peerages Act 1958.
Peerage Act 1963
1963 c.48
36
An Act to authorise the disclaimer for life of certain hereditary peerages; to include among the peers
qualified to sit in the House of Lords all peers in the peerage of Scotland and peeresses in their own
right in the peerages of England, Scotland, Great Britain and the United Kingdom; to remove certain
disqualifications of peers in the peerage of Ireland in relation to the House of Commons and elections
thereto; and for purposes connected with the matters aforesaid.
[31st July 1963]
Disclaimer of Peerage
1.
Disclaimer of certain hereditary peerages.
— (1) Subject to the provisions of this section, any person who, after the commencement of this Act,
succeeds to a peerage in the peerage of England, Scotland, Great Britain or the United Kingdom may,
by an instrument of disclaimer delivered to the Lord Chancellor within the period prescribed by this
Act, disclaim that peerage for his life.
(2) Any instrument of disclaimer to be delivered under this section in respect of a peerage shall be
delivered within the period of twelve months beginning with the day on which the person disclaiming
succeeds to that peerage or, if he is under the age of twenty-one when he so succeeds, the period of
twelve months beginning with the day on which he attains that age; and no such instrument shall be
delivered in respect of a peerage by a person who [F1is excepted from section 1 of the House of Lords
Act 1999 by virtue of section 2 of that Act].
(3) The foregoing provisions of this section shall apply to a person who has succeeded to a peerage
before the commencement of this Act as they apply to a person who succeeds to a peerage after the
commencement of this Act, but subject to the following modifications:—
(a)
the period within which an instrument of disclaimer may be delivered by such a person shall be twelve
months beginning with the commencement of this Act or, if he is then under twenty-one years of age,
twelve months beginning with the day on which he attains that age; F2. . .
F2(b)
(4) In reckoning any period prescribed by this section for the delivery of an instrument of disclaimer by
any person no account shall be taken of any time during which that person is shown to the satisfaction
of the Lord Chancellor to have been subject to any infirmity of body or mind rendering him incapable of
exercising or determining whether to exercise his rights under this section.
(5) The provisions of Schedule 1 to this Act shall have effect with respect to the form of instruments of
disclaimer under this section, and the delivery, certification and registration of such instruments.
Annotations:
Amendments (Textual):
F 1 : Words in s. 1(2) substituted (11.11.1999) by 1999 c. 34, ss. 4(1), 5(1), Sch. 1 para. 1
F2: S. 1(3)(b) and the word “and” immediately preceding repealed (11.11.1999) by 1999 c. 34, ss.
4(2), 5(1), Sch. 2
F3: S. 2 repealed (11.11.1999) by 1999 c. 34, ss. 4(2), 5(1), Sch. 2
3.
Effects of disclaimer.
— (1) The disclaimer of a peerage by any person under this Act shall be irrevocable and shall operate,
from the date on which the instrument of disclaimer is delivered,—
(a)
to divest that person (and, if he is married, his wife) of all right or interest to or in the peerage, and all
titles, rights, offices, privileges and precedence attaching thereto; and
(b)
37
to relieve him of all obligations and disabilities F4. . . arising therefrom,
but shall not accelerate the succession to that peerage nor affect its devolution on his death.
(2) Where a peerage is disclaimed under this Act, no other hereditary peerage shall be conferred upon
the person by whom it is disclaimed F5. . .
(3) The disclaimer of a peerage under this Act shall not affect any right, interest or power (whether
arising before or after the disclaimer) of the person by whom the peerage is disclaimed, or of any other
person, to, in or over any estates or other property limited or settled to devolve with that peerage.
(4) The reference in the foregoing subsection to estates or other property limited or settled to devolve
with a peerage shall, for the purposes of the application of this Act to Scotland, be construed as
including a reference to estates or other land devolving as aforesaid under an entail or special
destination, or the beneficial interest in which so devolves under a trust.
Annotations:
Amendments (Textual):
F4: Words in s. 3(1)(b) repealed (11.11.1999) by 1999 c. 34, ss. 4(2), 5(1), Sch. 2
F5: Words in s. 3(2) repealed (11.11.1999) by 1999 c. 34, ss. 4(2), 5(1), Sch. 2
Parliamentary qualifications of Scottish Peers, Irish Peers and Peeresses in own right
4.
Scottish peerages.
The holder of a peerage in the peerage of Scotland shall have the same right to receive writs of
summons to attend the House of Lords, and to sit and vote in that House, as the holder of a peerage
in the peerage of the United Kingdom; and the enactments relating to the election of Scottish
representative peers shall cease to have effect.
Annotations:
Amendments (Textual)
F6: S. 5 repealed (11.11.1999) by 1999 c. 34, ss. 4(2), 5(1), Sch. 2
6.
Peeresses in own right.
A woman who is the holder of a hereditary peerage in the peerage of England, Scotland, Great Britain
or the United Kingdom shall (whatever the terms of the letters patent or other instrument, if any,
creating that peerage) have the same right to receive writs of summons to attend the House of Lords,
and to sit and vote in that House, and shall be subject to the same disqualifications in respect of
membership of the House of Commons and elections to that House, as a man holding that peerage.
Supplemental
7.
Short title, and repeals.
— (1) This Act may be cited as the Peerage Act 1963.
(2) F7
Annotations:
Amendments (Textual)
F7
S. 7(2), Sch. 2 repealed by Statute Law (Repeals) Act 1974 (c. 22), Sch. Pt. XI
38
SCHEDULE 1
Section 1.
FORM, DELIVERY, CERTIFICATION AND REGISTRATION OF INSTRUMENTS OF DISCLAIMER
1. An instrument of disclaimer under this Act shall be an instrument under seal in the following form or
any form to the like effect:
Peerage Act 1963
Whereas I,, succeeded to the peerage[s] described in the Annex hereto on the date[s] specified in that
Annex, and desire to disclaim the said peerage[s] for my life under the above mentioned Act;
And whereas I attained the age of 21 years [before the said date[s]] [on theday of];
Now therefore, I, the said,
in accordance with the provisions of the said Act, hereby disclaim the said peerage[s] for my life.
In witness whereof I have hereunto set my hand and seal thisday of
Signed and sealed by the said in the presence of:
Signature of witness
(L.S.) Signature
Address
Description
Annex
Description of peerage[s]
Date[s]of succession
2. Any instrument of disclaimer under this Act shall be delivered to the office of the Clerk of the Crown
in Chancery.
3. Where the Lord Chancellor is satisfied that an instrument of disclaimer in respect of a peerage has
been delivered within the time allowed by this Act, he shall furnish to the person disclaiming the
peerage a certificate to that effect, and shall cause particulars of the instrument and of his certificate to
be entered in a register kept by him for the purpose, which shall be open to inspection by the public at
all reasonable times.
4. A certificate of the Lord Chancellor that an instrument of disclaimer was delivered within the time
allowed by this Act shall be conclusive evidence of that fact, but shall not be evidence of any other
matter relevant to the validity of the instrument, including the right of the person by whom it was
delivered to any peerage to which it relates.
SCHEDULE 2
F8
Annotations:
Amendments (Textual)
F8: S. 7(2), Sch. 2 repealed by Statute Law (Repeals) Act 1974 (c. 22), Sch. Pt. XI
Retrieved from: http://www.statutelaw.gov.uk
39
GERMANY
The Constitution of the German Reich was the basic law of Germany from 1871 to 1919. In
English, this document is generally known as the Constitution of the German Empire to
differentiate it from its 1919 republican successor. The text of the constitution was heavily
based on that of the Constitution of the North German Confederation (1866), which had
likewise been instigated by Prussian Prime Minister Otto von Bismarck. With the enactment of
this constitution in 1871, Bismarck became the first Chancellor of Germany
PREAMBLE
His Majesty the King of Prussia, in the name of the North German Confederation, His Majesty the King
of Bavaria, His Majesty the King of Württemberg, His Royal Highness the Grand Duke of Baden, and
His Royal Highness the Grand Duke of Hessen and the Rhine for those parts of Grand Duchy of
Hessen which are situated South of the Main, conclude an eternal alliance for the protection of the
territory of the Confederation, and of the law of the same, as well as for the promotion of the welfare of
the German people.
This Confederation shall bear the name of the German Empire (Deutsches Reich), and shall have the
following constitution:—
I. TERRITORY
Article 1
The territory of the Confederation shall consist of the States of Prussia (with Lauenburg), Bavaria,
Saxony, Württemberg, Baden, Hessen, Mecklenburg-Schwerin, Saxe-Weimar, Mecklenburg-Strelitz,
Oldenburg, Brunswick, Saxe-Meiningen, Saxe-Altenburg, Saxe-Coburg-Gotha, Anhalt, SchwarzburgRudolstadt, Schwarzburg-Sondershausen, Waldeck, Reuß (Older Line), Reuß (Younger Line),
Schwarzburg-Lippe, Lippe, Lübeck, Bremen, and Hamburg.
II. LEGISLATION OF THE EMPIRE
Article 2
Within said territory, the Empire shall have the right of legislation according to the provision of this
Constitution, and the laws of the Empire shall take precedence of those of the individual states. The
laws of the Empire shall be rendered binding by Imperial proclamation, such proclamation to be
published in a journal devoted to the publication of the laws of the Empire (Reichsgesetzblatt). If no
other period shall be designated in public law for it to take effect, it shall take effect on the fourteenth
day after the day of its publication in the Reichsgesetzblatt in Berlin.
Article 3
There is one citizenship for all Germany, and the citizens or subjects of each State of the
Confederation shall be treated in every other State thereof as natives, and shall have the right of
becoming permanent residents, of carrying on businesses, of filling public offices, and may acquire all
civil rights on the same conditions as those born in said States, and shall also the same usage as
regards civil prosecution and the prosecution of the laws.
No German shall be limited in the exercise of this privilege by the authorities of his native State, or by
the authorities of any other of States in the Confederation. The regulations governing the care of
paupers, and admission in to the various parishes, are not affected by the principle enunciated in the
first paragraph. In the like manner those shall remain in forces which have been concluded between
the various States of the Confederation in relation to custody of persons who are to be expelled, the
care of the sick, and the burial of deceased citizens.
With regard to the performance of military service to the various States, the necessary laws will be
passed hereafter.
All Germans in foreign countries shall have equal claim upon the protection of the Empire.
Article 4
40
The following matters shall be under the supervision of the Empire and its Legislature:1. Privilege of carrying on trade in more than one place; domestic affairs and matters relating to
the settlement of natives of one State in the territory of another; the right of citizenship; the
issue and examination of passports; surveillance of foreigners and of manufactures; together
with insurance business, so far as these matters are not already provided for by Article 3 of
this Constitution (in Bavaria, however, exclude of domestic affairs, and matters relating to the
settlement of one State in the territory of another); and likewise matters relating to colonization
and emigration to foreign countries.
2. Legislation concerning customs, duties, and commerce, and such imports as are to be applied
to the uses of the Empire.
3. Regulation of weights and measures, and of the coinage, together with the emission of funded
and unfunded paper money.
4. Banking regulations in general.
5. Patents for inventions.
6. The protection of literary property.
7. The organisation of a general system of protection for German trade in foreign countries; of
German navigation, and of the German flag on the high seas; likewise the organisation of a
general consular representation of the Empire.
8. Railway matters (subject in Bavaria to the provisions of Article 46) and the construction of
means of communication by land and water for the purposes of home defence, and of general
commerce.
9. Rafting and navigation upon those waters which are common to several States and the
condition of such waters, as likewise river and other water dues.
10. Postal and telegraph affairs; but in Bavaria and Württemberg these shall be subject to the
provisions of Article 52.
1 1 . Regulations concerning the execution of judicial sentences in civil matters, in the fulfilment of
requisition of general.
12. The authentication of public documents.
13. General legislation with respect to the whole domain of civil law, criminal law; likewise legal
procedure.
14. The Imperial Army and Navy.
15. The surveillance of the medical and veterinary professions.
16. The Press, trades' unions, etc.
Article 5
The legislative power of the Empire shall be exercised by the Federal Council (Bundesrat) and the
Imperial Diet (Reichstag). A majority of the votes of both bodies shall be necessary and sufficient for
the passage of a law.
When a law is proposed in relation to the Army, or Navy, or to the imports specified in Article 35, the
vote of the presiding officer shall decide in case of a difference of opinion in the Federal Council, if
said vote be in favour of the retention of existing arrangements.
III. FEDERAL COUNCIL (BUNDESRAT)
Article 6
The Federal Council shall consist of the representatives of the States of the Confederation, among
whom the votes shall be divided in such a manner as that
41
Prussia (including the former votes of Hanover, the Electoral Hessen, Holstein,
Nassau, and Frankfurt) shall have
17 votes
Bavaria
6
"
Saxony
4
"
Württemberg
4
"
Baden
3
"
Hessen
3
"
Mecklenburg-Schwerin
2
"
Saxe-Weimar
1
"
Mecklenburg-Strelitz
1
"
Oldenburg
1
"
Brunswick
2
"
Saxe-Meiningen
1
"
Saxe-Altenburg
1
"
Saxe-Coburg-Gotha
1
"
Anhalt
1
"
Schwarzburg-Rudolstadt
1
"
Schwarzburg-Sondershausen
1
"
Waldeck
1
"
Reuß (Older Line)
1
"
Reuß (Younger Line)
1
"
Schaumburg-Lippe
1
"
Lippe
1
"
Lübeck
1
"
Bremen
1
"
Hamburg
1
"
Total 58 votes.
Each member of the confederation may appoint as many delegates to the Federal Council as it has
votes; nevertheless, the total of the votes of each States must be cast by only one delegate.
Article 7
The Federal Council shall take action upon:1. The measure to proposed to the Diet, and the resolutions passed by the same.
2. The general provisions and regulations necessary for the execution of the laws of the Empire,
so far as no other provision is made by said laws.
3. The defects which may be discovered in the execution of the laws of the Empire, or of the
provisions and regulations heretofore mentioned. Each member of the Confederation shall
42
have the right to introduce motions, and it shall be the duty of the presiding officer to submit
them for deliberation.
Legislative action shall take place by simple majority, with the exception of the provisions in the Article
5, 37, and 78. Votes not represented or instructed shall not be counted. In the case of a tie, the vote of
the presiding officer shall decide.
When legislative action is taken upon a subject which does not affect, according to the provisions of
this Constitution, the whole Empire, the votes only of those States of the Confederation interested in
the matter in question shall be counted.
Article 8
The Federal Council shall appoint from its own members Permanent committees:
1. On the Army and the fortifications;
2. On naval affair;
3. On duties and taxes;
4. On commerce and trade;
5. On railroads, posts, and telegraphs;
6. On affairs of justices;
7. On accounts;
In each of Committees there shall be representatives of at least four States of the Confederation,
besides the presiding officer, and each State shall be entitled to only one vote in the same.
In the Committee on the army and fortifications, Bavaria shall have a permanent seat; the remaining
members of it, as well as the member of the Committee on naval affairs, shall be appointed by the
Emperor; the members of the other Committees shall be elected by Federal Council. These
Committees shall be newly formed at each session of the Federal Council, etc, each year, when the
retiring members shall again be eligible.
Besides, there shall be appointed in the Federal Council a Committee on Foreign Affairs, over which
Bavaria shall preside, to be composed of the plenipotentiaries of the Kingdom if Bavaria, Saxony, and
Württemberg, and of to plenipotentiaries of the other States of the Empire, who shall be elected
annually by the Federal Council. Clerks shall be placed at the disposal if the Committees to perform
the necessary work appertaining thereto.
Article 9
Each member of the Federal Council shall have the right to appear in the Diet, and be heard there at
any time when he shall so request, to represent the views of his Government, even when the same
shall not have been adopted by the majority of the Council. No one shall be at the same time a
member of the Federal Council and of the Diet.
Article 10
The Emperor shall afford the customary diplomatic protection to the members of the Federal Council.
IV. OFFICE OF PRESIDENT
Article 11
The King of Prussia shall be the President of the Confederation, and shall have the title of German
Emperor. The Emperor shall represent the Empire among nations, declare war, and conclude peace in
the name of the same, enter into alliances and other conventions with foreign countries, accredit
ambassadors, and receive them. For declaration of war in the name of the Empire the consent of the
Federal Council shall be required, except in case of an attack upon the territory of the Confederation
or its coasts.
So far as treaties with foreign countries refer to matters which, according to Article 4, are to be
regulated by the Legislature of the Empire, the consent of the Federal Council shall be required for
their ratification, and the approval of the Diet shall be necessary to render them valid.
43
Article 12
The Emperor shall have the right to convene the Federal Council and the Diet, and to open, adjourn,
and close them.
Article 13
The convocation of the Federal Council and the Diet shall take place annually, and the Federal
Council maybe called together for the preparation of business without the Diet; the latter, however,
shall not be convoked without the Federal Council.
Article 14
The convocation of the Federal Council shall take place as soon as demanded by one-third of its
members.
Article 15
The Chancellor of the Empire, to be appointed by the Emperor, shall preside in the Federal Council,
and supervise the conduct of its business. The Chancellor of the Empire shall have the right to
delegate the power to represent him to any member of the Federal Council.
Article 16
The necessary Bills shall be laid before the Diet in the name of the Emperor, in accordance with the
resolution of the Federal Council, and they shall be advocated in the Diet by members of the Federal
Council, or by special commissioners appointed by the said council.
Article 17
To the Emperor belongs the right to prepare and publish the laws of the Empire. The decrees and
ordinances of the Emperor shall be published in the name of the Empire, and require for their validity
the signature of the chancellor of the Empire, who thereby becomes responsible for their execution.
Article 18
The Emperor shall appoint the Imperial officials, require them to take the oath of allegiance, and
dismiss them when necessary. Officials appointed to any office of the Empire from one of the States of
the Confederation shall enjoy the same rights as those to which they are entitled in their native States
by their official position, provided no other legislative provision shall have been made previously to
their entrance into the service of the Empire.
Article 19
If States of the Confederation do not fulfil their constitutional duties, proceeding may be instituted
against them by military execution. This execution shall be ordained by the Federal Council, and
enforced by the Emperor.
V. THE IMPERIAL DIET (REICHSTAG)
Article 20
The members of the Imperial Diet shall be elected by universal suffrage, and by direct secret ballot.
Until regulated by law, which is reserved by section 5 of the Election Law of May 3 1 , 1869, 48 deputies
shall be elected in Bavaria, 17 in Württemberg, 14 in Baden, 6 in Hessen south of the Main, and the
total number of deputies shall be 382.
Article 21
Government officials shall not require leave of absence in order to enter the Imperial Diet. When a
member of the Imperial Diet accepts a salaried office of the Empire, or a salaried office in one of the
States of the Confederation, or accepts any office of the Empire or of a States involving higher rank or
salary, he shall forfeit his seat and vote in the Imperial Diet, but may recover his place in the same by
a new election.
Article 22
The proceeding of the Imperial Diet shall be public. Truthful reports of the proceeding of the public
sessions of the Diet shall subject those making them to no responsibility.
44
Article 23
The Imperial Diet shall have the right to propose laws within the jurisdiction of the Empire, and to refer
petitions, addressed to it, to the Federal Council or the Chancellor of the Empire.
Article 24
Each legislative period of the Diet shall last three years. The Diet may be dissolved by the resolution of
the Federal Council, with the consent of the Emperor.
Article 25
In the case of dissolution of the Imperial Diet new election shall take place within a period of sixty
days, and the Imperial Diet shall re-assemble within a period of ninety days after its dissolution.
Article 26
Unless by consent of the Imperial Diet, an adjournment of that body shall not exceed the period of
thirty days, and shall not be repeated during the same session without such consent.
Article 27
The Diet shall examine into the legality of the election of its members, and decide thereon. It shall
regulate the mode of transacting business, as well as its own discipline, by establishing rules thereof,
and elect its president, vice-presidents, and secretaries.
Article 28
The Diet shall pass a resolution by absolute majority. To render the passing of a resolution valid, the
presence of a majority of the statutory number of members shall be required.
Article 29
The members of the Diet shall be the representatives of the entire people, and shall not be bound by
orders and instructions from their constituents.
Article 30
No member of the Diet shall at any time suffer legal prosecution on account of his vote, or on account
of utterances made while in the performance of his functions, or be held responsible outside the Diet
for his actions (in it).
Article 31
Without the consent of the Diet, none of its members shall be tried or punished during the session for
any offence committed, except when arrested in the act of committing the offence, or in the course of
the following day.
The same rule shall apply in the case of arrests for debt. At the request of the Diet, all legal
proceeding instituted against one of its members, and likewise imprisonment, shall be suspended
during its session.
Article 32
The members of the Diet shall not be allowed draw any salary, or be compensated as such.
VI. CUSTOMS AND COMMERCE
Article 33
Germany shall form a customs and Commercial Union, having a common frontier for the collection of
duties. Such territories as cannot, by reason of their situation, be suitably embraced within the said
frontier, shall be excluded. It shall be lawful to introduce all articles of commerce of any State of the
Confederation into any other State of the Confederation without paying any duty thereon, excepts so
far as such articles are subject to internal taxation therein.
Article 34
The Hanseatic cities, Bremen and Hamburg, shall remain free ports outside of the common boundary
of the Customs Union, retaining for that propose a district of their own, or of the surrounding territory,
until they shall request to be admitted into the said Union.
45
Article 35
The Empire shall have the exclusive power to legislate concerning everything relate to the customs;
the taxation of salt and tobacco manufactured or raised in the territory of the Confederation;
concerning the taxation of manufactured brandy and beer, and of sugar and syrup prepared from
beets or other domestic productions. It shall have exclusive power to legislate concerning the mutual
protection of taxes upon articles of consumption levied in the several States of the Empire; against
embezzlement; as well as concerning the measures which are required in granting exemption from the
payment of duties, for the security of the common customs frontier. In Bavaria, Württemberg, and
Baden the matters of imposing duties on domestic brandy and beer is reserved for the Legislature of
each country. The States of the Confederation shall, however, endeavour to bring about uniform
legislation regarding the taxation of these articles.
Article 36
The imposing of duties and excise on article of consumption, and the collection of the same (Article
35), is left to each State of the Confederation within its own territory, so far as this have been done by
each State heretofore.
The Emperor shall have the supervision of legal proceedings instituted by the officials of the Empire,
when he shall designate as adjuncts to the Custom or Excise Offices, and board of directors of the
several States, after hearing the committee of the Federal council on customs and revenues. Notes
given by officials as to defects in the execution of the laws of the Empire (Article 35) shall be submitted
to the Federal Council for action.
Article 37
In taking action upon the rules and regulations for the execution of the laws of the Empire (Article 35),
the vote of the presiding officer shall decide whenever he shall pronounce for upholding the existing
rule or regulation.
Article 38
The amounts accruing from customs and other revenue designated in the Article 35 of the latter, so far
as they are subject to legislation by the Diet, shall go to the treasury of the Empire.
This amount is made up of the total receipts from the customs and other revenues, after deducting
therefor 1. Tax compensations and reductions in conformity with existing laws and regulations.
2. Reimbursements for taxes unduly imposed.
3. The costs for collection and administration, viz.:
1. In the department of customs, the costs which are required for the protection and
collection of customs on the frontiers and in the frontier districts.
2. In the department of the duty on salt, the costs which are used for the pay of the
others charged with collecting and controlling these duties in the salt mines.
3. In the department of duties on beet-sugar and tobacco, the compensation which
according to the resolution of the Federal Council is to be allowed to the several State
Governments for the cost of the collection of these duties.
4. Fifteen percent of the total receipts in the departments of the other duties.
The territories situated outside of the common customs frontier shall contribute to the expenses of the
Empire by paying an aversum (or sum of acquittance). Bavaria, Württemberg, and Baden shall not
share in the revenues from duties on liquors and beer, which go into the treasury of the Empire, nor
the corresponding portion of the aforesaid aversum.
Article 39
The quarterly statements to be regularly made by the revenue officers of the Federal States at the end
of every quarter, and the final settlements (to be made of the end of the year, and after f the closing of
the account-books) of the receipts from customs, which have become due in the course of the quarter,
or during the fiscal year, and the revenues of the Treasury of the Empire, according to Article 38, shall
be arranged by the boards of directors of the Federal States, after a previous examination in general
46
summaries, in which every duty is to be shown separately; these summaries shall be transmitted to
the Federal Committee for Accounts. The latter provisionally fixes every three months, taking as a
basis these summaries, the amount due to the Treasury of the Empire from the Treasury of each
State, and it shall inform the Federal Council and the Federal States of this act; it shall submit to the
Federal Council annually the final statement of these amounts, with its remarks. The Federal Council
shall deliberate upon the fixing of these amounts.
Article 40
The terms of the Customs Union Treasury of July 8, 1867, remain in force, so far as they have not
been altered by the provision of this Constitution, and as long as they are not altered in the manner
designated in Articles 7 and 78.
VII. RAILWAYS
Article 41
Railways, which are considered necessary for defence of Germany, or the purpose of general
commerce, may be constructed for the account of the Empire by a law of the Empire, even in
opposition to the will of those members of the Confederation through whose territory the railroad run,
without prejudice to the sovereign rights of that country; or private persons may be charged with their
construction, and receive rights of expropriation. Every existing railway company is bound to permit
new railroad lines to be connected with it, at the expense of these latter. All laws granting exiting
railway companies the right of injunction against the building of parallel or competitive lines are hereby
abolished throughout the Empire, without detriment to rights already acquired. Such right of injunction
cannot be granted in concessions to be given hereafter.
Article 42
The Governments of the Federal States bind themselves in the interest of general commerce, to have
the German railways managed as a uniform network, and for this purpose to have the lines constructs
and equipped according to a uniform system.
Article 43
Accordingly, as soon as possible, uniform arrangements as to management shall be made, and
especially shall uniform regulations be instituted for the police of the railroads. The Empire shall take
care that the administrative officers of the railway lines keep the roads always such a condition as is
required for public security, and that they be equipped with the necessary rolling stock.
Article 44
Railway companies are bound to run such passenger trains of suitable velocity as may be required for
ordinary traffic, and for establishment of harmony between time-tables; also to make provision for such
goods trains as may be necessary for commercial purposes, and to establish, without extra
remuneration, offices for the direct forwarding of passengers, and goods trains, to be transferred when
necessary, from one road to another.
Article 45
The Empire shall have control over the tariff of fares. The same shall endeavour to cause:1. Uniform regulations to be speedily introduced on all German railway lines.
2. The tariff to be reduced and made uniform as far as possible, and particularly to cause a
reduction of the tariff for the transport of coal, coke, wood, minerals, stone, salt, crude iron,
manure, and similar articles, for long distances, as demanded by the interests of agriculture
and industry, and to introduce a one-penny (pfennig) tariff as soon as practicable.
Article 46
In case of distress, especially in case of extra-ordinary rise in the price of provisions, it shall be the
duty of the railway companies to adopt temporary a low special tariff, to be fixed by the Emperor, on
motion of the competent committee, for the forwarding of grain, flour, vegetables, and potatoes. This
tariff shall, however, not be less than the lowest rate for raw produce existing on the said line.
The forgoing provisions and those of Articles 42 to 45 shall not apply to Bavaria.
47
The Imperial Government, however, has the power also, with regard to Bavaria, to establish by means
of legislation uniform rules for the construction equipment of such railways as may be of importance
for the defence of the country.
Article 47
The managers of all railways shall be required to obey, without hesitation, requisitions made by the
authorities of the Empire for the use of their roads for the defence of Germany. In particular shall
troops, and all material of war, be forwards at uniform reduced rates.
VIII. POSTS AND TELEGRAPHS
Article 48
The posts and telegraphs shall be organized and managed as States institutions throughout the
German Empire. The legislation of the Empire in regard to postal and telegraphic affairs, provided for
in Article 4, does not extend to those matters whose regulation is left to managerial arrangement,
according to the principles which have control the North German administration of posts and
telegraphs.
Article 49
The receipts from posts and telegraphs are a joint affair throughout the Empire. The expensed shall be
paid from the general receipts. The surplus goes into the Treasury of the Empire. (Section 12)
Article 50
The Emperor has the supreme supervision of the administration of posts and telegraphs. The
authorities appointed by him are in duty bound and authorised to see that uniformity be established
and maintained in the organisation of the administration and in the transaction of business, as also in
regard to the qualification of employs.
The Emperor shall have the power to make general administration regulations, and also exclusive to
regulate the relations which are to exist between the post and telegraph offices of Germany and those
of other countries.
It shall be the duty of the officers of the Post office and Telegraph Department to obey Imperial Orders.
This obligation shall be included in their oath of office. The appointment of superior officers (such as
directors, counsellors, and superintendents), as they shall be required for the administration of the
posts and telegraphs in the various districts; also the appointment of officers of the posts and
telegraphs (such as inspector or comptrollers), acting for aforesaid authorities in the several districts,
in the capacity of supervisors, shall be made by the Emperor for the whole territory of German Empire,
and these officers shall take the oath of fealty to him as a part of their oath of office. The Government
of the several States shall be inform in due time, by means of Imperial confirmation and official
publication, of the aforementioned appointments, so far as they may relate to their territories.
Others officers required by the Department of Posts and Telegraphs, as also all officers to be
employed at the various stations, and for technical purposes, etc., shall be appointed by the respective
Governments of the States.
Where there is no independent administration, or inland mails or telegraphs, the terms of the various
treaties are to be enforced.
Article 51
In assigning the surplus if the Post-office Department to the Treasury of the Empire for general
purposes (Article 49), the following procedure is to be observed in the consideration of the difference
which has heretofore existed in the clear receipts of the Post Office Departments of the several
territories for the purpose of securing a suitable equalisation during the period of transition below
named.
Of the Post Office surplus, which accumulated in the several mail districts during the five years from
1861 to 1865, an average yearly shall be computed, and the share which every separate mail district
has had in the surplus resulting therefrom for the whole territory of the Empire shall be fixed upon by a
percentage.
48
In accordance with the proportion thus made, the several States shall be credited on the account of
their other contributions to the expenses of the Empire with their quota accruing from the postal
surplus in the Empire, for a period of eight years subsequent to their entrance to the Post Office
Department of the Empire. At the end of the said eight years the distinction shall cease, and any
surplus in the Post Office Department shall go, without division, into the Treasury if the Empire,
according to the principle enunciated in Article 49.
Of the quota of the Post Office Department surplus resulting during the aforementioned period of eight
years in the favour of the Hanseatic towns, one-half shall every year be place at the disposal if the
Emperor, for the purpose of providing for the establishment of uniform post-offices in the Hanseatic
towns.
Article 52
The stipulations of the forgoing Articles 48 to 51 do not apply to Bavaria and Württemberg. In their
stead the following stipulation shall be valid for these two States of the Confederation. The Empire
alone is authorised to legislate upon the privilege of the Post-office and Telegraph Departments, on
the legal position of both institution toward the public, upon the franking privilege and rate of postage,
and upon the establishment or rates for telegraphic correspondence into Hanseatic towns, exclusive,
however, of managerial arrangements, and the fixing of tariffs for internal communication within
Bavaria and Württemberg. In the same manner the Empire shall regulate postal and telegraphic
communication with foreign countries, excepting the immediate communication of Bavaria and
Württemberg with their neighbouring States, not belong to the Empire, in regard to with regulation the
stipulation in Article 49 of the postal treaty of November 23, 1867, remains in force.
Bavaria and Württemberg shall not share in the postal and telegraphic receipts which belong to the
Treasury of the Empire.
IX. MARINE AND NAVIGATION
Article 53
The navy of the Empire is a united one under the supreme command of the Emperor. The Emperor is
charged with its organization and arrangement, and he shall appoint the officers and officials of the
navy, and in his name these seamen shall be sworn in.
The harbour of Kiel and the harbour of the jade are Imperial war-harbours.
The expenditure required for establishment and maintenance of the navy and the institution connected
there with shall be defrayed from the Treasury of the Empire.
All seafaring men of the Empire, including machinists and hands employed in ship-building are exempt
from serving in the army, but obliged to serve in the Imperial navy.
The appointment of men to supply the wants of the navy shall be made according to the actual
seafaring population, and the quota furnished in accordance herewith by each States shall be credited
to the army account.
Article 54
The merchant vessels of all States of the Confederation shall form the commercial marine.
The Empire shall determine the process of ascertaining the tonnage of sea going vessels, shall
regulate the issuing of tonnage certificates and sea-letters, and shall fix the conditions to which a
permit for commanding a sea-going vessel shall be subject.
The merchant vessels of all States of the confederation shall be admitted on an equal footing to the
harbours, and to all natural and artificial water-courses of the several States of the Confederation, and
shall receive the same usage therein.
The duties which shall be collected from sea-going vessels, or levies upon their freights, for the use of
naval institutions in the harbours, shall not exceed the amount required for the maintenance and
ordinary repair of these institutions.
On all natural of watercourses, duties are only levied for the use of special establishments, which
serve for facilitating commercial intercourse, these duties, as well as the duties for navigating such
artificial channels, which are property of the State, are not to exceed the amount required for the
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maintenance and ordinary repair of the institutions and establishments. These rules apply to rafting, so
far as it is carried on navigable watercourses.
The levying of other or higher duties upon foreign vessels or their freights than those which are paid by
the vessels of the Federal States or their freights does not belong to the various States, but the
Empire.
Article 55
The flag of the war and merchant navy shall be black, white, and red.
X. CONSULAR AFFAIRS
Article 56
The Emperor shall have the supervision of all consular affairs of the German Empire, and he shall
appoint consuls, after hearing the committee of the Federal Council on Commerce and Traffic.
No new State consulates are to be established within the jurisdiction of the German consuls. German
consuls shall perform the represented in their district. All the new existing State consulates shall be
abolished, as soon as the organisation of the German Consulates shall be completed, in such a
manner that the representation of the separate interests of all the Federal States shall be recognised
by the Federal Council as secured by the German consulates.
XI. MILITARY AFFAIRS OF THE EMPIRE
Article 57
Every German is subject to military duty, and in the discharge of this duty no substitute can be
accepted.
Article 58
The costs and the burden of all the military system of the Empire are to be borne equally by all the
Federal States and their subjects, and no privileges or molestations to the several States or classes
are admissible. Where an equal distribution of the burdens cannot be effected in nature without
prejudice to the public welfare, affairs shall be equalised by legislation in accordance with the
principles of the justice.
Article 59
Every German capable of bearing arms shall serve for seven years in the standing army, ordinarily
from the end of his twentieth to the beginning of his twenty-eight years; the first three in the field army,
the last four years in the reserve; during the next five years he shall belong to the militia (Landwehr). In
those States of the Confederation in which heretofore a longer term of service than twelve years was
required time of service shall take place in such a manner as it compatible with the interests and the
war-footing of the army of the Empire.
As regards the emigration of men belonging to the reserve, only those provisions shall be in force
which apply to the emigration of members if the militia.
Article 60
The strength of the German army in time of peace shall be, until the 31st December, 1871, 1 percent
of the population of 1867, and shall be furnished by the several Federal States in proportion to their
population. In future the strength of army in time of peace shall be fixed by legislation.
Article 61
After the publication of this Constitution the complete Prussian military system of legislation shall be
introduced without delay throughout the Empire, as well as statutes themselves as the regulations,
instructions, and ordinances issued for their execution, explanation, or completion; thus in particular,
the military penal code of April 3, 1845; the military orders of the penal court of April 3, 1845; the
regulations with respect to recruiting, time of service, matters relate to service and subsistence, to the
quartering of troops, claims for the damages, mobilising, etc, for times of peace and war. Orders for
the attendance of the military upon religious services are, however, excluded.
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When a uniform organisation of the German army shall have been established, a comprehensive
military law for the Empire shall be submitted to the Diet and the Federal Council for their action in
accordance with the Constitution.
Article 62
For the purpose of defraying the expense of the whole German army, and the institutions connected
therewith, the sum of 225 thalers shall be placed at the disposal of the Emperor until the 31st
December, 1871, for each man in the army on the peace-footing, according to Article 60.
After the 31st December, 1871, the payment of these contributions of the several States to the
Imperial Treasury must be continued. The strength of the army in the time of peace, which have been
temporarily fixed in Article 60, shall be taken as a basis for calculating these amounts until it shall be
altered by a law of the Empire.
In determining the budget of military expenditure, the lawfully established organisation of the Imperial
army, in accordance with this Constitution, shall be taken as a basis.
Article 63
The total land force of the Empire shall form one army, which, in war and in peace, shall be under the
command of the Emperor.
The regiments, etc, throughout the whole German army shall bear continuous numbers. The principle
colours and cut of the garments of the Royal Prussian army shall serve as a pattern for the rest of the
army. It is left to the commanders of contingent forces to choose the external badges, cockades, &c.
It shall be the duty and the right of the Emperor to take care that, throughout the German army, all
divisions be kept full and well equipped, and that unity be established and maintained in regard to
organisation and formation, equipment, and command in the training of the men, as well as in the
qualification of the officers. For these purpose the Emperor shall be authorised to satisfy himself at any
time of the condition of the several contingents, and to provide remedies for existing defects.
The Emperor shall determine the strength, composition, and division of the contingents of the Imperial
army, and also the organisation of the militia, and he shall have the right to designate garrisons within
the territory of the Confederation, as also to call any portion of the army into active service.
In order to maintain the necessary unity in the care, arming, and equipment of all troops of the German
army, all orders hereafter to be issued for the Prussian army shall be communicated in due form to the
commanders of the remaining contingents by the Committee on the army and fortifications, provided
for in Article 8, No. 1.
Article 64
All German troops are bound implicitly to obey the orders of the Emperor. This obligation shall be
included in the oath of allegiance. The Commander-in-chief of a contingent, as well as all officers
commanding troops of more than one contingent, and all commanders of fortress, shall be appointed
by Emperor. The officers appointed by the Emperor shall take the oath of fealty to him.
The appointment of generals, or officers performing the duties of generals, in contingent force, shall be
in each subject to the approval of the Emperor. The Emperor has the right with regard to the transfer
of officers, with or without promotion, to positions which are to be filled in the service of the Empire, be
it in the Prussian army or in other contingents, to select from the officers of all the contingents of the
army of the Empire.
Article 65
The right to build fortresses within the territory of the Empire shall belong to the Emperor, who,
according to the section 12, shall ask for the appropriation of the necessary means required for that
purpose, if not already included in the regular appropriation.
Article 66
If not otherwise stipulated, the Princes of the Empire and the Senates shall appoint the officers of their
respective contingents, subject to the restriction of Article 64. They are the chiefs of all troops
belonging to their respective territories, and are entitled to the honours connected therewith.
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They shall have especially the right to hold inspections at any time, and receive, besides the regular
reports and announcements of changes for publication, timely information of all promotions and
appointments concerning their respective contingents.
They shall also have the right to employ, for police purposes, not only their own troops, but all other
contingents of the army of the Empire which are stationed in their respective territories.
Article 67
The unexpended portion of the military appropriation shall, under no circumstances, fall to the share of
a single Government, but at all times to the Treasury of the Empire.
Article 68
The Emperor shall have the power, if the public security of the Empire demand it, to declare martial
law in any part thereof, until the publication of a law regulating the grounds, the form of
announcement, and the effects of such a declaration, the provisions of the Prussian law of June 4,
1851, shall be substituted therefor.
XII. FINANCES OF THE EMPIRE
Article 69
All receipts and expenditures of the Empire shall be estimated yearly, and included in the financial
estimate. The latter shall be fixed by law before the beginning of the fiscal year, according to the
following principles:Article 70
The surplus of the previous year, as well as the customs duties, the common excise duties, and the
revenue derived from the postal and telegraph service shall be applied to the defrayal of all general
expenditure. In so far as these expenditures are not covered by the receipts, they shall be raised, as
long as no taxes of the Empire shall have been established, by assessing the several States of the
Empire according to their population, the amount of the assessment to be fixed by the Chancellor of
the Empire in accordance with the budget agreed upon.
Article 71
The general expenditure shall be, as a rule, granted for one year; they may, however, in special cases,
be granted for a longer period. During the period of transition fixed in Article 60, the financial estimate,
properly classified, of the expenditures, of the army shall be laid before the Federal Council and the
Diet for their information.
Article 72
An annual report of the expenditure of all the receipts of the Empire shall be rendered to the Federal
Council and the Diet, through the Chancellor of the Empire.
Article 73
In cases of extraordinary requirements, a loan may be contracted in accordance with the law of the
Empire, such loan to be granted by the Empire.
XIII. SETTLEMENT OF DISPUTES AND MODES OF PUNISHMENT
Article 74
Every attempt against the existence, the integrity, the security, or the constitution of the German
Empire; finally, any offence committed against the Federal Council, the Diet, a member of the Federal
Council, or of the Diet, a magistrate or public official of the Empire, while in the execution of his duty,
or with reference to his official position, by word, writing, printing, signs, or caricatures, shall be
judicially investigated, and upon conviction, punished in the several States of the Empire, according to
the law therein existing, or which shall hereafter exist in the same, according to which laws a similar
offence against any one of the States of the Empire, its constitution, legislature, members of its
legislature, authorities, or officials is to be judged.
Article 75
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For those offences, specified in Article 74, against the German Empire, which, if committed against
one of the States of the Empire, would be deemed high treason, the superior court of appeal of three
free Hanseatic towns at Lübeck shall be the competent deciding tribunal in the first and the last resort.
More definite provisions as to the competency and the proceedings of the superior court of appeals
shall be adopted by the Legislature of the Empire. Until the passage of a law of the Empire, the
existing competency of the courts in the respective States of the Empire, and the provisions relative to
the proceedings of those courts, shall remain in force.
Article 76
At the request of one of the parties disputes between the different States of the Confederation, so far
as they are not of a private nature and therefore are to be decided by the competent authorities, shall
be settled by the Federal Council. Disputes relating to constitutional matters in those of the States of
the Confederation whose Constitution contains no provision for the settlement of such differences,
shall be adjusted by the Federal Council, at the request of one of the parties, or if this cannot be done,
they shall be settled by the legislative power of the Confederation.
Article 77
If in one of the States of the Confederation justice shall be denied, and no sufficient relief can be
procured by legal measures, it shall be the duty of the Federal Council to receive substantiated
complaints concerning denial or restriction of justice, which are to be judged according to the
constitution and the existing laws of the respective States of the Confederation, and thereupon to
obtain judicial relief from the confederate Government in the matter which shall have given rise to the
complaint.
XIV. GENERAL PROVISION
Article 78
Amendments of the Constitution shall be made by legislative enactment. They shall be considered as
rejected when fourteen votes are cast against them in the Federal Council. The provisions of
Constitution of the Empire, by which fixed rights of individual States of the Confederation are
established in their relation to the whole, shall only be modified with the consent of the State of the
Confederation which is immediately concerned.
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