Parliamentary Government.—The English System.—The right of the commons to share the power of the king and lords in legislation, the exclusive right of the commons to impose taxes, the disappearance of the clergy as a separate order, were all important steps in the movement towards popular government. The extinction of the old feudal nobility in the dynastic wars of the 15th century simplified the question by leaving the crown face to face with parliament. The immediate result was no doubt an increase in the power of the crown, which probably never stood higher than it did in the reigns of Henry VIII. and Elizabeth; but even these powerful monarchs were studious in their regard for parliamentary conventionalities. After a long period of speculative controversy and civil war, the settlement of 1688 established limited monarchy as the government of England. Since that time the external form of government has remained unchanged, and, so far as legal description goes, the constitution of William III. might be taken for the same system as that which still exists. The silent changes have, however, been enormous. The most striking of these, and that which has produced the most salient features of the English system, is the growth of cabinet government. Intimately connected with this is the rise of the two great historical parties of English politics. The normal state of government in England is that the cabinet of the day shall represent that which is, for the time, the stronger of the two. Before the Revolution the king’s ministers had begun to act as a united body; but even after the Revolution the union was still feeble and fluctuating, and each individual minister was bound to the others only by the tie of common service to the king. Under the Hanoverian sovereigns the ministry became consolidated, the position of the cabinet became definite, and its dependence on parliament, and more particularly on the House of Commons, was established. Ministers were chosen exclusively from one house or the other, and they assumed complete responsibility for every act done in the name of the crown. The simplicity of English politics has divided parliament into the representatives of two parties, and the party in opposition has been steadied by the consciousness that it, too, has constitutional functions of high importance, because at any moment it may be called to provide a ministry. Criticism is sobered by being made responsible. Along with this movement went the withdrawal of the personal action of the sovereign in politics. No king has attempted to veto a bill since the Scottish Militia Bill was vetoed by Queen Anne. No ministry has been dismissed by the sovereign since 1834. Whatever the power of the sovereign may be, it is unquestionably limited to his personal influence over his ministers. And it must be remembered that since the Reform Act of 1832 ministers have become, in practice, responsible ultimately, not to parliament, but to the House of Commons. Apart, therefore, from democratic changes due to a wider suffrage, we find that the House of Commons, as a body, gradually made itself the centre of the government. Since the area of the constitution has been enlarged, it may be doubted whether the orthodox descriptions of the government any longer apply. The earlier constitutional writers, such as Blackstone and J. L. Delolme, regard it as a wonderful compound of the three standard forms,—monarchy, aristocracy and democracy. Each has its place, and each acts as a check upon the others. Hume, discussing the question “Whether the British government inclines more to absolute monarchy or to a republic,” decides in favour of the former alternative. “The tide has run long and with some rapidity to the side of popular government, and is just beginning to turn toward monarchy.” And he gives it as his own opinion that absolute monarchy would be the easiest death, the true euthanasia of the British constitution. These views of the English government in the 18th century may be contrasted with Bagehot’s sketch of the modern government as a working instrument.[4]
Leading Features of Parliamentary Government.—The parliamentary government developed by England out of feudal materials has been deliberately accepted as the type of constitutional government all over the world. Its leading features are popular representation more or less extensive, a bicameral legislature, and a cabinet or consolidated ministry. In connexion with all of these, numberless questions of the highest practical importance have arisen, the bare enumeration of which would surpass the limits of our space. We shall confine ourselves to a few very general considerations.
The Two Chambers.—First, as to the double chamber. This, which is perhaps more accidental than any other portion of the British system, has been the most widely imitated. In most European countries, in the British colonies, in the United States Congress, and in the separate states of the Union,[5] there are two houses of legislature. This result has been brought about partly by natural imitation of the accepted type of free government, partly from a conviction that the second chamber will moderate the democratic tendencies of the first. But the elements of the British original cannot be reproduced to order under different conditions. There have, indeed, been a few attempts to imitate the special character of hereditary nobility attaching to the British House of Lords. In some countries, where the feudal tradition is still strong (e.g. Prussia, Austria, Hungary), the hereditary element in the upper chambers has survived as truly representative of actual social and economic relations. But where these social conditions do not obtain (e.g. in France after the Revolution) the attempt to establish an hereditary peerage on the British model has always failed. For the peculiar solidarity between the British nobility and the general mass of the people, the outcome of special conditions and tendencies, is a result beyond the power of constitution-makers to attain. The British system too, after its own way, has for a long period worked without any serious collision between the Houses,—the standing and obvious danger of the bicameral system. The actual ministers of the day must possess the confidence of the House of Commons; they need not—in fact they often do not—possess the confidence of the House of Lords. It is only in legislation that the Lower House really shares its powers with the Upper; and (apart from any such change in the constitution as was suggested in 1907 by Sir H. Campbell-Bannerman) the constitution possesses, in the unlimited power of nominating peers, a well-understood last resource should the House of Lords persist in refusing important measures demanded by the representatives of the people. In the United Kingdom it is well understood that the real sovereignty lies with the people (the electorate), and the House of Lords recognizes the principle that it must accept a measure when the popular will has been clearly expressed. In all but measures of first-class importance, however, the House of Lords is a real second chamber, and in these there is little danger of a collision between the Houses. There is the widest possible difference between the British and any other second chamber. In the United States the Senate (constituted on the system of equal representation of states) is the more important of the two Houses, and the only one whose control of the executive can be compared to that exercised by the British House of Commons.
The real strength of popular government in England lies in the ultimate supremacy of the House of Commons. That supremacy had been acquired, perhaps to its full extent, before the extension of the suffrage made the constituencies democratic. Foreign imitators, it may be observed, have been more ready to accept a wide basis of representation than to confer real power on the representative body. In all the monarchical countries of Europe, however unrestricted the right of suffrage may be, the real victory of constitutional government has yet to be won. Where the suffrage means little or nothing, there is little or no reason for guarding it against abuse. The independence of the executive in the United States brings that country, from one point of view, more near to the state system of the continent of Europe than to that of the United Kingdom. The people make a more complete surrender of power to the government (State or Federal) than is done in England.
Cabinet Government.—The peculiar functions of the English cabinet are not easily matched in any foreign system. They are a mystery even to most educated Englishmen. The cabinet (q.v.) is much more than a body consisting of chiefs of departments. It is the inner council of the empire, the arbiter of national policy, foreign or domestic, the sovereign in commission. The whole power of the House of Commons is concentrated in its hands. At the same time, it has no place whatever in the legal constitution. Its numbers and its constitution are not fixed even by any rule of practice. It keeps no record of its proceedings. The relations of an individual minister to the cabinet, and of the cabinet to its head and creator, the premier, are things known only to the initiated. With the doubtful exception of France, no other system of government presents us with anything like its equivalent. In the United States, as in the European monarchies, we have a council of ministers surrounding the chief of the state.
Change of Power in the English System.—One of the most difficult problems of government is how to provide for the devolution of political power, and perhaps no other question is so generally and justly applied as the test of a working constitution. If the transmission works smoothly, the constitution, whatever may be its other defects, may at least be pronounced stable. It would be tedious to enumerate all the contrivances which this problem has suggested to political societies. Here, as usual, oriental despotism stands at the bottom of the scale. When sovereign power is imputed to one family, and the law of succession fails to designate exclusively the individual entitled to succeed, assassination becomes almost a necessary measure of precaution. The prince whom chance or intrigue has promoted to the throne of a father or an uncle must make himself safe from his relatives and competitors. Hence the scenes which shock the European conscience when “Amurath an Amurath succeeds.” The strong monarchical governments of Europe have been saved from this evil by an indisputable law of succession, which marks out from his infancy the next successor to the throne. The king names his ministers, and the law names the king. In popular or constitutional governments far more elaborate precautions are required. It is one of the real merits of the English constitution that it has solved this problem—in a roundabout way perhaps, after its fashion—but with perfect success. The ostensible seat of power is the throne, and down to a time not long distant the demise of the crown suspended all the other powers of the state. In point of fact, however, the real change of power occurs on a change of ministry. The constitutional practice of the 19th century settled, beyond the reach of controversy, the occasions on which a ministry is bound to retire. It must resign or dissolve when it is defeated[6] in the House of Commons, and if after a dissolution it is beaten again, it must resign without alternative. It may resign if it thinks its majority in the House of Commons not sufficiently large. The dormant functions of the crown now come into existence. It receives back political power from the old ministry in order to transmit it to the new. When the new ministry is to be formed, and how it is to be formed, is also clearly settled by established practice. The outgoing premier names his successor by recommending the king to consult him; and that successor must be the recognized leader of his successful rivals. All this is a matter of custom, not of law; and it is doubtful if any two authorities could agree in describing the custom in language of precision. In theory the monarch may send for any one he pleases, and charge him with the formation of a government; but the ability to form a government restricts this liberty to the recognized head of a party, subject to there being such an individual. It is certain that the intervention of the crown facilitates the transfer of power from one party to another, by giving it the appearance of a mere change of servants. The real disturbance is that caused by the appeal to the electors. A general election is always a struggle between the great political parties for the possession of the powers of government. It may be noted that modern practice goes far to establish the rule that a ministry beaten at the hustings should resign at once without waiting for a formal defeat in the House of Commons.
The English custom makes the ministry dependent on the will of the House of Commons; and, on the other hand, the House of Commons itself is dependent on the will of the ministry. In the last result both depend on the will of the constituencies, as expressed at the general election. There is no fixity in either direction in the tenure of a ministry. It may be challenged at any moment, and it lasts until it is challenged and beaten. And that there should be a ministry and a House of Commons in harmony with each other but out of harmony with the people is rendered all but impossible by the law and the practice as to the duration of parliaments.
Change of Power in the United States.—The United States offers a very different solution of the problem. The American president is at once king and prime minister; and there is no titular superior to act as a conduit-pipe between him and his successor. His crown is rigidly fixed; he can be removed only by the difficult method of impeachment. No hostile vote on matters of legislation can affect his position. But the end of his term is known from the first day of his government; and almost before he begins to reign the political forces of the country are shaping out a new struggle for the succession. Further, a change of government in America means a considerable change in the administrative staff (see [Civil Service]). The commotion caused by a presidential election in the United States is thus infinitely greater and more prolonged than that caused by a general election in England. A change of power in England affects comparatively few personal interests, and absorbs the attention of the country for a comparatively short space of time. In the United States it is long foreseen and elaborately prepared for, and when it comes it involves the personal fortunes of large numbers of citizens. And yet the British constitution is more democratic than the American, in the sense that the popular will can more speedily be brought to bear upon the government.
Change of Power in France.—The established practice of England and America may be compared with the constitutionalism of France. Here the problem presents different conditions. The head of the state is neither a premier of the English, nor a president of the American type. He is served by a prime minister and a cabinet, who, like an English ministry, hold office on the condition of parliamentary confidence; but he holds office himself on the same terms, and is, in fact, a minister like the others. So far as the transmission of power from cabinet to cabinet is concerned, he discharges the functions of an English king. But the transmission of power between himself and his successor is protected by no constitutional devices whatever, and experience would seem to show that no such devices are really necessary. Other European countries professing constitutional government appear to follow the English practice. The Swiss republic is so peculiarly situated that it is hardly fair to compare it with any other. But it is interesting to note that, while the rulers of the states are elected annually, the same persons are generally re-elected.
The Relation between Government and Laws.—It might be supposed that, if any general proposition could be established about government, it would be one establishing some constant relation between the form of a government and the character of the laws which it enforces. The technical language of the English school of jurists is certainly of a kind to encourage such a supposition. The entire body of law in force in a country at any moment is regarded as existing solely by the fiat of the governing power. There is no maxim more entirely in the spirit of this jurisprudence than the following:—“The real legislator is not he by whom the law was first ordained, but he by whose will it continues to be law.” The whole of the vast repertory of rules which make up the law of England—the rules of practice in the courts, the local customs of a county or a manor, the principles formulated by the sagacity of generations of judges, equally with the statutes for the year, are conceived of by the school of Austin as created by the will of the sovereign and the two Houses of Parliament, or so much of them as would now satisfy the definition of sovereignty. It would be out of place to examine here the difficulties which embarrass this definition, but the statement we have made carries on its face a demonstration of its own falsity in fact. There is probably no government in the world of which it could be said that it might change at will the substantive laws of the country and still remain a government. However well it may suit the purposes of analytical jurisprudence to define a law as a command set by sovereign to subject, we must not forget that this is only a definition, and that the assumption it rests upon is, to the student of society, anything but a universal fact. From his point of view the cause of a particular law is not one but many, and of the many the deliberate will of a legislator may not be one. Sir Henry Maine has illustrated this point by the case of the great tax-gathering empires of the east, in which the absolute master of millions of men never dreams of making anything in the nature of a law at all. This view is no doubt as strange to the English statesman as to the English jurist. The most conspicuous work of government in his view is that of parliamentary legislation. For a large portion of the year the attention of the whole people is bent on the operations of a body of men who are constantly engaged in making new laws. It is natural, therefore, to think of law as a factitious thing, made and unmade by the people who happen for the time being to constitute parliament. It is forgotten how small a proportion the laws actually devised by parliament are of the law actually prevailing in the land. No European country has undergone so many changes in the form of government as France. It is surprising how little effect these political revolutions have had on the body of French law. The change from empire to republic is not marked by greater legislative effects than the change from a Conservative to a Liberal ministry in England would be.