In treating of representative government, it is above all necessary to keep in view the distinction between its idea or essence, and the particular forms in which the idea has been clothed by accidental historical developments, or by the notions current at some particular period.
The meaning of representative government is, that the whole people, or some numerous portion of them, exercise through deputies periodically elected by themselves the ultimate controlling power, which, in every constitution, must reside somewhere. This ultimate power they must possess in all its completeness. They must be masters, whenever they please, of all the operations of government. There is no need that the constitutional law should itself give them this mastery. It does not in the British Constitution. But what it does give practically amounts to this: the power of final control is as essentially single, in a mixed and balanced government, as in a pure monarchy or democracy. This is the portion of truth in the opinion of the ancients, revived by great authorities in our own time, that a balanced constitution is impossible. There is almost always a balance, but the scales never hang exactly even. Which of them preponderates is not always apparent on the face of the political institutions. In the British Constitution, each of the three co-ordinate members of the sovereignty is invested with powers which, if fully exercised, would enable it to stop all the machinery of government. Nominally, therefore, each is invested with equal power of thwarting and obstructing the others; and if, by exerting that power, any of the three could hope to better its position, the ordinary course of human affairs forbids us to doubt that the power would be exercised. There can be no question that the full powers of each would be employed defensively if it found itself assailed by one or both of the others. What, then, prevents the same powers from being exerted aggressively? The unwritten maxims of the Constitution—in other words, the positive political morality of the country; and this positive political morality is what we must look to if we would know in whom the really supreme power in the Constitution resides.
By constitutional law, the crown can refuse its assent to any act of Parliament, and can appoint to office and maintain in it any minister, in opposition to the remonstrances of Parliament. But the constitutional morality of the country nullifies these powers, preventing them from being ever used; and, by requiring that the head of the administration should always be virtually appointed by the House of Commons, makes that body the real sovereign of the state.
These unwritten rules, which limit the use of lawful powers, are, however, only effectual, and maintain themselves in existence on condition of harmonising with the actual distribution of real political strength. There is in every constitution a strongest power—one which would gain the victory if the compromises by which the Constitution habitually works were suspended, and there came a trial of strength. Constitutional maxims are adhered to, and are practically operative, so long as they give the predominance in the Constitution to that one of the powers which has the preponderance of active power out of doors. This, in England, is the popular power. If, therefore, the legal provisions of the British Constitution, together with the unwritten maxims by which the conduct of the different political authorities is in fact regulated, did not give to the popular element in the Constitution that substantial supremacy over every department of the government which corresponds to its real power in the country, the Constitution would not possess the stability which characterizes it; either the laws or the unwritten maxims would soon have to be changed. The British government is thus a representative government in the correct sense of the term; and the powers which it leaves in hands not directly accountable to the people can only be considered as precautions which the ruling power is willing should be taken against its own errors. Such precautions have existed in all well-constructed democracies. The Athenian Constitution had many such provisions, and so has that of the United States.
But while it is essential to representative government that the practical supremacy in the state should reside in the representatives of the people, it is an open question what actual functions, what precise part in the machinery of government, shall be directly and personally discharged by the representative body. Great varieties in this respect are compatible with the essence of representative government, provided the functions are such as secure to the representative body the control of every thing in the last resort.
There is a radical distinction between controlling the business of government and actually doing it. The same person or body may be able to control every thing, but can not possibly do every thing; and in many cases its control over every thing will be more perfect the less it personally attempts to do. The commander of an army could not direct its movements effectually if he himself fought in the ranks or led an assault. It is the same with bodies of men. Some things can not be done except by bodies; other things can not be well done by them. It is one question, therefore, what a popular assembly should control, another what it should itself do. It should, as we have already seen, control all the operations of government. But, in order to determine through what channel this general control may most expediently be exercised, and what portion of the business of government the representative assembly should hold in its own hands, it is necessary to consider what kinds of business a numerous body is competent to perform properly. That alone which it can do well it ought to take personally upon itself. With regard to the rest, its proper province is not to do it, but to take means for having it well done by others.
For example, the duty which is considered as belonging more peculiarly than any other to an assembly representative of the people is that of voting the taxes. Nevertheless, in no country does the representative body undertake, by itself or its delegated officers, to prepare the estimates. Though the supplies can only be voted by the House of Commons, and though the sanction of the House is also required for the appropriation of the revenues to the different items of the public expenditure, it is the maxim and the uniform practice of the Constitution that money can be granted only on the proposition of the crown. It has, no doubt, been felt that moderation as to the amount, and care and judgment in the detail of its application, can only be expected when the executive government, through whose hands it is to pass, is made responsible for the plans and calculations on which the disbursements are grounded. Parliament, accordingly, is not expected, nor even permitted, to originate directly either taxation or expenditure. All it is asked for is its consent, and the sole power it possesses is that of refusal.
The principles which are involved and recognized in this constitutional doctrine, if followed as far as they will go, are a guide to the limitation and definition of the general functions of representative assemblies. In the first place, it is admitted in all countries in which the representative system is practically understood, that numerous representative bodies ought not to administer. The maxim is grounded not only on the most essential principles of good government, but on those of the successful conduct of business of any description. No body of men, unless organized and under command, is fit for action, in the proper sense. Even a select board, composed of few members, and these specially conversant with the business to be done, is always an inferior instrument to some one individual who could be found among them, and would be improved in character if that one person were made the chief, and all the others reduced to subordinates. What can be done better by a body than by any individual is deliberation. When it is necessary or important to secure hearing and consideration to many conflicting opinions, a deliberative body is indispensable. Those bodies, therefore, are frequently useful, even for administrative business, but in general only as advisers; such business being, as a rule, better conducted under the responsibility of one. Even a joint-stock company has always in practice, if not in theory, a managing director; its good or bad management depends essentially on some one person's qualifications, and the remaining directors, when of any use, are so by their suggestions to him, or by the power they possess of watching him, and restraining or removing him in case of misconduct. That they are ostensibly equal shares with him in the management is no advantage, but a considerable set-off against any good which they are capable of doing: it weakens greatly the sense in his own mind, and in those of other people, of that individual responsibility in which he should stand forth personally and undividedly.
But a popular assembly is still less fitted to administer, or to dictate in detail to those who have the charge of administration. Even when honestly meant, the interference is almost always injurious. Every branch of public administration is a skilled business, which has its own peculiar principles and traditional rules, many of them not even known in any effectual way, except to those who have at some time had a hand in carrying on the business, and none of them likely to be duly appreciated by persons not practically acquainted with the department. I do not mean that the transaction of public business has esoteric mysteries, only to be understood by the initiated. Its principles are all intelligible to any person of good sense, who has in his mind a true picture of the circumstances and conditions to be dealt with; but to have this he must know those circumstances and conditions; and the knowledge does not come by intuition. There are many rules of the greatest importance in every branch of public business (as there are in every private occupation), of which a person fresh to the subject neither knows the reason or even suspects the existence, because they are intended to meet dangers or provide against inconveniences which never entered into his thoughts. I have known public men, ministers of more than ordinary natural capacity, who, on their first introduction to a department of business new to them, have excited the mirth of their inferiors by the air with which they announced as a truth hitherto set at nought, and brought to light by themselves, something which was probably the first thought of every body who ever looked at the subject, given up as soon as he had got on to a second. It is true that a great statesman is he who knows when to depart from traditions, as well as when to adhere to them; but it is a great mistake to suppose that he will do this better for being ignorant of the traditions. No one who does not thoroughly know the modes of action which common experience has sanctioned is capable of judging of the circumstances which require a departure from those ordinary modes of action. The interests dependent on the acts done by a public department, the consequences liable to follow from any particular mode of conducting it, require for weighing and estimating them a kind of knowledge, and of specially exercised judgment, almost as rarely found in those not bred to it, as the capacity to reform the law in those who have not professionally studied it. All these difficulties are sure to be ignored by a representative assembly which attempts to decide on special acts of administration. At its best, it is inexperience sitting in judgment on experience, ignorance on knowledge; ignorance which, never suspecting the existence of what it does not know, is equally careless and supercilious, making light of, if not resenting, all pretensions to have a judgment better worth attending to than its own. Thus it is when no interested motives intervene; but when they do, the result is jobbery more unblushing and audacious than the worst corruption which can well take place in a public office under a government of publicity. It is not necessary that the interested bias should extend to the majority of the assembly. In any particular case it is of ten enough that it affects two or three of their number. Those two or three will have a greater interest in misleading the body than any other of its members are likely to have in putting it right. The bulk of the assembly may keep their hands clean, but they can not keep their minds vigilant or their judgments discerning in matters they know nothing about; and an indolent majority, like an indolent individual, belongs to the person who takes most pains with it. The bad measures or bad appointments of a minister may be checked by Parliament; and the interest of ministers in defending, and of rival partisans in attacking, secures a tolerably equal discussion; but quis custodiet custodes? who shall check the Parliament? A minister, a head of an office, feels himself under some responsibility. An assembly in such cases feels under no responsibility at all; for when did any member of Parliament lose his seat for the vote he gave on any detail of administration? To a minister, or the head of an office, it is of more importance what will be thought of his proceedings some time hence, than what is thought of them at the instant; but an assembly, if the cry of the moment goes with it, however hastily raised or artificially stirred up, thinks itself and is thought by every body, to be completely exculpated, however disastrous may be the consequences. Besides, an assembly never personally experiences the inconveniences of its bad measures until they have reached the dimensions of national evils. Ministers and administrators see them approaching, and have to bear all the annoyance and trouble of attempting to ward them off.
The proper duty of a representative assembly in regard to matters of administration is not to decide them by its own vote, but to take care that the persons who have to decide them shall be the proper persons. Even this they can not advantageously do by nominating the individuals. There is no act which more imperatively requires to be performed under a strong sense of individual responsibility than the nomination to employments. The experience of every person conversant with public affairs bears out the assertion that there is scarcely any act respecting which the conscience of an average man is less sensitive; scarcely any case in which less consideration is paid to qualifications, partly because men do not know, and partly because they do not care for, the difference in qualifications between one person and another. When a minister makes what is meant to be an honest appointment, that is, when he does not actually job it for his personal connections or his party, an ignorant person might suppose that he would try to give it to the person best qualified. No such thing. An ordinary minister thinks himself a miracle of virtue if he gives it to a person of merit, or who has a claim on the public on any account, though the claim or the merit may be of the most opposite description to that required. Il fallait un calculateur, ce fut un danseur qui l'obtint, is hardly more of a caricature than in the days of Figaro; and the minister doubtless thinks himself not only blameless, but meritorious, if the man dances well. Besides, the qualifications which fit special individuals for special duties can only be recognized by those who know the individuals, or who make it their business to examine and judge of persons from what they have done, or from the evidence of those who are in a position to judge. When these conscientious obligations are so little regarded by great public officers who can be made responsible for their appointments, how must it be with assemblies who can not? Even now, the worst appointments are those which are made for the sake of gaining support or disarming opposition in the representative body; what might we expect if they were made by the body itself? Numerous bodies never regard special qualifications at all. Unless a man is fit for the gallows, he is thought to be about as fit as other people for almost any thing for which he can offer himself as a candidate. When appointments made by a public body are not decided, as they almost always are, by party connection or private jobbing, a man is appointed either because he has a reputation, often quite undeserved, for general ability, or oftener for no better reason than that he is personally popular.
It has never been thought desirable that Parliament should itself nominate even the members of a cabinet. It is enough that it virtually decides who shall be prime minister, or who shall be the two or three individuals from whom the prime minister shall be chosen. In doing this, it merely recognizes the fact that a certain person is the candidate of the party whose general policy commands its support. In reality, the only thing which Parliament decides is, which of two, or at most three, parties or bodies of men shall furnish the executive government: the opinion of the party itself decides which of its members is fittest to be placed at the head. According to the existing practice of the British Constitution, these things seem to be on as good a footing as they can be. Parliament does not nominate any minister, but the crown appoints the head of the administration in conformity to the general wishes and inclinations manifested by Parliament, and the other ministers on the recommendation of the chief; while every minister has the undivided moral responsibility of appointing fit persons to the other offices of administration which are not permanent. In a republic, some other arrangement would be necessary; but the nearer it approached in practice to that which has long existed in England, the more likely it would be to work well. Either, as in the American republic, the head of the executive must be elected by some agency entirely independent of the representative body; or the body must content itself with naming the prime minister, and making him responsible for the choice of his associates and subordinates. In all these considerations, at least theoretically, I fully anticipate a general assent; though, practically, the tendency is strong in representative bodies to interfere more and more in the details of administration, by virtue of the general law, that whoever has the strongest power is more and more tempted to make an excessive use of it; and this is one of the practical dangers to which the futurity of representative governments will be exposed.
But it is equally true, though only of late and slowly beginning to be acknowledged, that a numerous assembly is as little fitted for the direct business of legislation as for that of administration. There is hardly any kind of intellectual work which so much needs to be done not only by experienced and exercised minds, but by minds trained to the task through long and laborious study, as the business of making laws. This is a sufficient reason, were there no other, why they can never be well made but by a committee of very few persons. A reason no less conclusive is, that every provision of a law requires to be framed with the most accurate and long-sighted perception of its effect on all the other provisions; and the law when made should be capable of fitting into a consistent whole with the previously existing laws. It is impossible that these conditions should be in any degree fulfilled when laws are voted clause by clause in a miscellaneous assembly. The incongruity of such a mode of legislating would strike all minds, were it not that our laws are already, as to form and construction, such a chaos, that the confusion and contradiction seem incapable of being made greater by any addition to the mass. Yet even now, the utter unfitness of our legislative machinery for its purpose is making itself practically felt every year more and more. The mere time necessarily occupied in getting through bills, renders Parliament more and more incapable of passing any, except on detached and narrow points. If a bill is prepared which even attempts to deal with the whole of any subject (and it is impossible to legislate properly on any part without having the whole present to the mind), it hangs over from session to session through sheer impossibility of finding time to dispose of it. It matters not though the bill may have been deliberately drawn up by the authority deemed the best qualified, with all appliances and means to boot; or by a select commission, chosen for their conversancy with the subject, and having employed years in considering and digesting the particular measure: it can not be passed, because the House of Commons will not forego the precious privilege of tinkering it with their clumsy hands. The custom has of late been to some extent introduced, when the principle of a bill has been affirmed on the second reading, of referring it for consideration in detail to a select committee; but it has not been found that this practice causes much less time to be lost afterwards in carrying it through the committee of the whole House: the opinions or private crotchets which have been overruled by knowledge always insist on giving themselves a second chance before the tribunal of ignorance. Indeed, the practice itself has been adopted principally by the House of Lords, the members of which are less busy and fond of meddling, and less jealous of the importance of their individual voices, than those of the elective House. And when a bill of many clauses does succeed in getting itself discussed in detail, what can depict the state in which it comes out of committee! Clauses omitted which are essential to the working of the rest; incongruous ones inserted to conciliate some private interest, or some crotchety member who threatens to delay the bill; articles foisted in on the motion of some sciolist with a mere smattering of the subject, leading to consequences which the member who introduced or those who supported the bill did not at the moment foresee, and which need an amending act in the next session to correct their mischiefs. It is one of the evils of the present mode of managing these things, that the explaining and defending of a bill, and of its various provisions, is scarcely ever performed by the person from whose mind they emanated, who probably has not a seat in the House. Their defense rests upon some minister or member of Parliament who did not frame them, who is dependent on cramming for all his arguments but those which are perfectly obvious, who does not know the full strength of his case, nor the best reasons by which to support it, and is wholly incapable of meeting unforeseen objections. This evil, as far as government bills are concerned, admits of remedy, and has been remedied in some representative constitutions, by allowing the government to be represented in either House by persons in its confidence, having a right to speak, though not to vote.
If that, as yet considerable, majority of the House of Commons who never desire to move an amendment or make a speech would no longer leave the whole regulation of business to those who do; if they would bethink themselves that better qualifications for legislation exist, and may be found if sought for, than a fluent tongue, and the faculty of getting elected by a constituency, it would soon be recognized that, in legislation as well as administration, the only task to which a representative assembly can possibly be competent is not that of doing the work, but of causing it to be done; of determining to whom or to what sort of people it shall be confided, and giving or withholding the national sanction to it when performed. Any government fit for a high state of civilization would have as one of its fundamental elements a small body, not exceeding in number the members of a cabinet, who should act as a Commission of Legislation, having for its appointed office to make the laws. If the laws of this country were, as surely they will soon be, revised and put into a connected form, the Commission of Codification by which this is effected should remain as a permanent institution, to watch over the work, protect it from deterioration, and make further improvements as often as required. No one would wish that this body should of itself have any power of enacting laws; the Commission would only embody the element of intelligence in their construction; Parliament would represent that of will. No measure would become a law until expressly sanctioned by Parliament; and Parliament, or either house, would have the power not only of rejecting but of sending back a bill to the commission for reconsideration or improvement. Either house might also exercise its initiative by referring any subject to the commission, with directions to prepare a law. The commission, of course, would have no power of refusing its instrumentality to any legislation which the country desired. Instructions, concurred in by both houses, to draw up a bill which should effect a particular purpose, would be imperative on the commissioners, unless they preferred to resign their office. Once framed, however, Parliament should have no power to alter the measure, but solely to pass or reject it; or, if partially disapproved of, remit it to the commission for reconsideration. The commissioners should be appointed by the crown, but should hold their offices for a time certain, say five years, unless removed on an address from the two Houses of Parliament, grounded either on personal misconduct (as in the case of judges), or on refusal to draw up a bill in obedience to the demands of Parliament. At the expiration of the five years a member should cease to hold office unless reappointed, in order to provide a convenient mode of getting rid of those who had not been found equal to their duties, and of infusing new and younger blood into the body.
The necessity of some provision corresponding to this was felt even in the Athenian Democracy, where, in the time of its most complete ascendancy, the popular Ecclesia could pass psephisms (mostly decrees on single matters of policy), but laws, so called, could only be made or altered by a different and less numerous body, renewed annually, called the Nomothetæ, whose duty it also was to revise the whole of the laws, and keep them consistent with one another. In the English Constitution there is great difficulty in introducing any arrangement which is new both in form and in substance, but comparatively little repugnance is felt to the attainment of new purposes by an adaptation of existing forms and traditions. It appears to me that the means might be devised of enriching the Constitution with this great improvement through the machinery of the House of Lords. A commission for preparing bills would in itself be no more an innovation on the Constitution than the Board for the administration of the Poor Laws, or the Inclosure Commission. If, in consideration of the great importance and dignity of the trust, it were made a rule that every person appointed a member of the Legislative Commission, unless removed from office on an address from Parliament, should be a peer for life, it is probable that the same good sense and taste which leave the judicial functions of the peerage practically to the exclusive care of the law lords would leave the business of legislation, except on questions involving political principles and interests, to the professional legislators; that bills originating in the Upper House would always be drawn up by them; that the government would devolve on them the framing of all its bills; and that private members of the House of Commons would gradually find it convenient, and likely to facilitate the passing of their measures through the two houses, if, instead of bringing in a bill and submitting it directly to the house, they obtained leave to introduce it and have it referred to the Legislative Commission; for it would, of course, be open to the House to refer for the consideration of that body not a subject merely, but any specific proposal, or a Draft of a Bill in extenso, when any member thought himself capable of preparing one such as ought to pass; and the House would doubtless refer every such draft to the commission, if only as materials, and for the benefit of the suggestions it might contain, as they would, in like manner, refer every amendment or objection which might be proposed in writing by any member of the House after a measure had left the commissioners' hands. The alteration of bills by a committee of the whole House would cease, not by formal abolition, but by desuetude; the right not being abandoned, but laid up in the same armoury with the royal veto, the right of withholding the supplies, and other ancient instruments of political warfare, which no one desires to see used, but no one likes to part with, lest they should any time be found to be still needed in an extraordinary emergency. By such arrangements as these, legislation would assume its proper place as a work of skilled labor and special study and experience; while the most important liberty of the nation, that of being governed only by laws assented to by its elected representatives, would be fully preserved, and made more valuable by being detached from the serious, but by no means unavoidable drawbacks which now accompany it in the form of ignorant and ill-considered legislation.
Instead of the function of governing, for which it is radically unfit, the proper office of a representative assembly is to watch and control the government; to throw the light of publicity on its acts; to compel a full exposition and justification of all of them which any one considers questionable; to cinsure them if found condemnable, and, if the men who compose the government abuse their trust, or fulfill it in a manner which conflicts with the deliberate sense of the nation, to expel them from office, and either expressly or virtually appoint their successors. This is surely ample power, and security enough for the liberty of the nation. In addition to this, the Parliament has an office not inferior even to this in importance; to be at once the nation's Committee of Grievances and its Congress of Opinions; an arena in which not only the general opinion of the nation, but that of every section of it, and, as far as possible, of every eminent individual whom it contains, can produce itself in full light and challenge discussion; where every person in the country may count upon finding somebody who speaks his mind as well or better than he could speak it himself—not to friends and partisans exclusively, but in the face of opponents, to be tested by adverse controversy; where those whose opinion is overruled, feel satisfied that it is heard, and set aside not by a mere act of will, but for what are thought superior reasons, and commend themselves as such to the representatives of the majority of the nation; where every party or opinion in the country can muster its strength, and be cured of any illusion concerning the number or power of its adherents; where the opinion which prevails in the nation makes itself manifest as prevailing, and marshals its hosts in the presence of the government, which is thus enabled and compelled to give way to it on the mere manifestation, without the actual employment of its strength; where statesmen can assure themselves, far more certainly than by any other signs, what elements of opinion and power are growing and what declining, and are enabled to shape their measures with some regard not solely to present exigencies, but to tendencies in progress. Representative assemblies are often taunted by their enemies with being places of mere talk and bavardage. There has seldom been more misplaced derision. I know not how a representative assembly can more usefully employ itself than in talk, when the subject of talk is the great public interests of the country, and every sentence of it represents the opinion either of some important body of persons in the nation, or of an individual in whom some such body have reposed their confidence. A place where every interest and shade of opinion in the country can have its cause even passionately pleaded, in the face of the government and of all other interests and opinions, can compel them to listen, and either comply, or state clearly why they do not, is in itself, if it answered no other purpose, one of the most important political institutions that can exist any where, and one of the foremost benefits of free government. Such "talking" would never be looked upon with disparagement if it were not allowed to stop "doing"; which it never would, if assemblies knew and acknowledged that talking and discussion are their proper business, while doing, as the result of discussion, is the task not of a miscellaneous body, but of individuals specially trained to it; that the fit office of an assembly is to see that those individuals are honestly and intelligently chosen, and to interfere no further with them, except by unlimited latitude of suggestion and criticism, and by applying or withholding the final seal of national assent. It is for want of this judicious reserve that popular assemblies attempt to do what they can not do well—to govern and legislate—and provide no machinery but their own for much of it, when of course every hour spent in talk is an hour withdrawn from actual business. But the very fact which most unfits such bodies for a council of legislation, qualifies them the more for their other office—namely, that they are not a selection of the greatest political minds in the country, from whose opinions little could with certainty be inferred concerning those of the nation, but are, when properly constituted, a fair sample of every grade of intellect among the people which is at all entitled to a voice in public affairs. Their part is to indicate wants, to be an organ for popular demands, and a place of adverse discussion for all opinions relating to public matters, both great and small; and, along with this, to check by criticism, and eventually by withdrawing their support, those high public officers who really conduct the public business, or who appoint those by whom it is conducted. Nothing but the restriction of the function of representative bodies within these rational limits will enable the benefits of popular control to be enjoyed in conjunction with the no less important requisites (growing ever more important as human affairs increase in scale and in complexity) of skilled legislation and administration. There are no means of combining these benefits except by separating the functions which guaranty the one from those which essentially require the other; by disjoining the office of control and criticism from the actual conduct of affairs, and devolving the former on the representatives of the Many, while securing for the latter, under strict responsibility to the nation, the acquired knowledge and practiced intelligence of a specially trained and experienced Few.
The preceding discussion of the functions which ought to devolve on the sovereign representative assembly of the nation would require to be followed by an inquiry into those properly vested in the minor representative bodies, which ought to exist for purposes that regard only localities. And such an inquiry forms an essential part of the present treatise; but many reasons require its postponement, until we have considered the most proper composition of the great representative body, destined to control as sovereign the enactment of laws and the administration of the general affairs of the nation.
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