An old master, and other political essays

by Woodrow Wilson

It is the habit both of English and American writers to speak of the constitution of Great Britain as if it were ‘writ in water,’ because nothing but the will of Parliament stands between it and revolutionary change. But is there nothing back of the will of Parliament? Parliament dare not go faster than the public thought. There are vast barriers of conservative public opinion to be overrun before a ruinous speed in revolutionary change can be attained. In the last analysis, our own Constitution has no better safeguard. We have, as I have already pointed out, the salient advantage of knowing just what the standards of our Constitution are. They are formulated in a written code, wherein all men may look and read; whereas many of the designs of the British system are to be sought only in a cloud-land of varying individual readings of affairs. From the constitutional student’s point of view, there are, for instance, as many different Houses of Lords as there are writers upon the historical functions of that upper chamber. But the public opinion of Great Britain is no more a juggler of precedents than is the public opinion of this country. Perhaps the absence of a written constitution makes it even less a fancier of logical refinements. The arrangements of the British constitution have, for all their theoretical instability, a very firm and definite standing in the political habit of Englishmen: and the greatest of those arrangements can be done away with only by the extraordinary force of conscious revolution.

It is wholesome to observe how much of our own institutions rests upon the same basis, upon no other foundations than those that are laid in the opinions of the people. It is within the undoubted constitutional power of Congress, for example, to overwhelm the opposition of the Supreme Court upon any question by increasing the number of justices and refusing to confirm any appointments to the new places which do not promise to change the opinion of the court. Once, at least, it was believed that a plan of this sort had been carried deliberately into effect. But we do not think of such a violation of the spirit of the Constitution as possible, simply because we share and contribute to that public opinion which makes such outrages upon constitutional morality impossible by standing ready to curse them. There is a close analogy between this virtual inviolability of the Supreme Court and the integrity hitherto vouchsafed to the English House of Lords. There may be an indefinite creation of peers at any time that a strong ministry chooses to give the sovereign its imperative advice in favor of such a course. It was, doubtless, fear of the final impression that would be made upon public opinion by action so extraordinary, as much as the timely yielding of the Lords upon the question at issue, that held the ministry back from such a measure, on one notable occasion. Hitherto that ancient upper chamber has had in this regard the same protection that shields our federal judiciary.

It is not essentially a different case as between Congress and the Executive. Here, too, at the very centre of the Constitution, Congress stands almost supreme, restrained by public opinion rather than by law. What with the covetous admiration of the presidency recently manifested by some alarmed theorists in England, and the renewed prestige lately given that office by the prominence of the question of civil service reform, it is just now particularly difficult to apply political facts to an analysis of the President’s power. But a clear conception of his real position is for that very reason all the more desirable. While he is a dominant figure in politics would seem to be the best time to scrutinize and understand him.

It is clearly misleading to use the ascendant influence of the President in effecting the objects of civil service reform as an illustration of the constitutional size and weight of his office. The principal part in making administration pure, business-like, and efficient must always, under any conceivable system of government, be taken by the executive. It was certainly taken by the executive in England thirty years ago; and that much in opposition to the will of Parliament. The prominence of our President in administrative reform furnishes no sufficient ground for attributing a singularity of executive influence to the government of this country.

In estimating the actual powers of the President it is no doubt best to begin, as almost all writers in England and America now habitually begin, with a comparison between the executives of the two kindred countries. Whilst Mr. Bagehot has done more than any other thinker to clear up the facts of English constitutional practice, he has also, there is reason to believe, done something toward obscuring those facts. Everybody, for instance, has accepted as wholly true his description of the ministry of the Crown as merely an executive committee of the House of Commons; and yet that description is only partially true. An English cabinet represents, not the Commons only, but also the Crown. Indeed, it is itself ‘the Crown.’ All executive prerogatives are prerogatives which it is within the discretion of the cabinet itself to make free use of. The fact that it is generally the disposition of ministers to defer to the opinion of Parliament in the use of the prerogative, does not make that use the less a privilege strictly beyond the sphere of direct parliamentary control, to be exercised independently of its sanction, even secretly on occasion, when ministers see their way clear to serving the state thereby. “The ministry of the day,” says a perspicacious expounder of the English system,[E] “appears in Parliament, on the one hand, as personating the Crown in the legitimate exercise of its recognized prerogatives; and on the other hand, as the mere agent of Parliament itself, in the discharge of the executive and administrative functions of government cast upon them by law.” Within the province of the prerogative “lie the stirring topics of foreign negotiations, the management of the army and navy, public finance, and, in some important respects, colonial administration.” Very recent English history furnishes abundant and striking evidence of the vitality of the prerogative in these fields in the hands of the gentlemen who “personate the Crown” in Parliament. “No subject has been more eagerly discussed of late,” declares Mr. Amos (page 187), “than that of the province of Parliament in respect of the making of treaties and the declaration of war. No prerogative of the Crown is more undisputed than that of taking the initiative in all negotiations with foreign governments, conducting them throughout, and finally completing them by the signature and ratification of a treaty.... It is a bare fact that during the progress of the British diplomatic movements which terminated in the Treaty of Berlin of 1878, or more properly in the Afghan war of that year,”—including the secret treaty by which Turkey ceded Cyprus to England, and England assumed the protectorate of Asia Minor,—“Parliament never had an opportunity of expressing its mind on any one of the important and complicated engagements to which the country was being committed, or upon the policy of the war upon the northwest frontier of India. The subjects were, indeed, over and over again discussed in Parliament, but always subsequent to irreparable action having been taken by the government” (page 188). Had Mr. Amos lived to take his narrative of constitutional affairs beyond 1880, he would have had equally significant instances of ministerial initiative to adduce in the cases of Egypt and Burmah.

[E] Mr. Sheldon Amos: Fifty Years of the English Constitution, page 338.

The unfortunate campaign in the Soudan was the direct outcome of the purchase of the Suez Canal shares by the British government in 1875. The result of that purchase was that “England became pledged in a wholly new and peculiar way to the support of the existing Turkish and Egyptian dominion in Egypt; that large English political interests were rendered subservient to the decisions of local tribunals in a foreign country; and that English diplomatic and political action in Egypt, and indeed in Europe, was trammelled, or at least indirectly influenced, by a narrow commercial interest which could not but weigh, however slightly, upon the apparent purity and simplicity of the motives of the English government.” And yet the binding engagements which involved all this were entered into “despite the absence of all assistance from, or consent of, Parliament.”[F] Such exercises of the prerogatives of the Crown receive additional weight from “the almost recognized right of evolving an army of almost any size from the Indian seed-plot, of using reserve forces without communication to Parliament in advance, and of obtaining large votes of credit for prospective military operations of an indefinite character, the nature of which Parliament is allowed only dimly to surmise” (page 392). The latest evidence of the “almost recognized” character of such rights was the war preparations made by England against Russia in 1885. If to such powers of committing the country irrevocably to far-reaching foreign policies, of inviting or precipitating war, and of using Indian troops without embarrassment from the trammels of the Mutiny Act, there be added the great discretionary functions involved in the administration of colonial affairs, some measure may be obtained of the power wielded by ministers, not as the mere agents of Parliament, but as personating the Crown. Such is in England the independence of action possible to the executive.

[F] Amos, page 384.

As compared with this, the power of the President is insignificant. Of course, as everybody says, he is more powerful than the sovereign of Great Britain. If relative personal power were the principle of etiquette, Mr. Cleveland would certainly not have to lift his hat to the Queen, because the Queen is not the English executive. The prerogatives of the Crown are still much greater than the prerogatives of the presidency; they are exercised, however, not by the wearer of the crown, but by the ministry of the Crown.

As Sir Henry Maine rightly says, the framers of our Constitution, consciously or unconsciously, made the President’s office like the King’s office under the English constitution of their time,—the constitution, namely, of George III., who chose his advisers with or without the assent of Parliament. They took care, however, to pare down the model where it seemed out of measure with the exercise of the people’s liberty. They allowed the President to choose his ministers freely, as George then seemed to have established his right to do; but they made the confirmation of the Senate a necessary condition to his appointments. They vested in him the right of negotiating treaties with foreign governments; but he was not to sign and ratify treaties until he had obtained the sanction of the Senate. That oversight of executive action which Parliament had not yet had the spirit or the inclination to exert, and which it had forfeited its independence by not exerting, was forever secured to our federal upper chamber by the fundamental law. The conditions of mutual confidence and co-operation between executive and legislature now existing in England had not then been developed, and consequently could not be reproduced in this country. The posture and disposition of mutual wariness which were found existing there were made constitutional here by express written provision. In short, the transitional relations of the Crown and Parliament of that day were crystallized in our Constitution, such guarantees of executive good faith and legislative participation in the weightier determinations of government as were lacking in the model being sedulously added in the copy.