and delicate. The first is the check of impeachment. Any Minister who
advised the Queen so to use her prerogative as to endanger the safety
of the realm, might be impeached for high treason, and would be so.
Such a Minister would, in our technical law, be said to have levied, or
aided to levy, "war against the Queen". This counsel to her so to use
her prerogative would by the Judge be declared to be an act of violence
against herself, and in that peculiar but effectual way the offender
could be condemned and executed. Against all gross excesses of the
prerogative this is a sufficient protection. But it would be no
protection against minor mistakes; any error of judgment committed bona
fide, and only entailing consequences which one person might say were
good, and another say were bad, could not be so punished. It would be
possible to impeach any Minister who disbanded the Queen's army, and it
would be done for certain. But suppose a Minister were to reduce the
army or the navy much below the contemplated strength--suppose he were
only to spend upon them one-third of the amount which Parliament had
permitted him to spend--suppose a Minister of Lord Palmerston's
principles were suddenly and while in office converted to the
principles of Mr. Bright and Mr. Cobden, and were to act on those
principles, he could not be impeached. The law of treason neither could
nor ought to be enforced against an act which was an error of judgment,
not of intention--which was in good faith intended not to impair the
well-being of the State, but to promote and augment it. Against such
misuses of the prerogative our remedy is a change of Ministry. And in
general this works very well. Every Minister looks long before he
incurs that penalty, and no one incurs it wantonly. But, nevertheless,
there are two defects in it. The first is that it may not be a remedy
at all; it may be only a punishment. A Minister may risk his dismissal;
he may do some act difficult to undo, and then all which may be left
will be to remove and censure him. And the second is that it is only
one House of Parliament which has much to say to this remedy, such as
it is; the House of Commons only can remove a Minister by a vote of
censure. Most of the Ministries for thirty years have never possessed
the confidence of the Lords, and in such cases a vote of censure by the
Lords could therefore have but little weight; it would be simply the
particular expression of a general political disapproval. It would be
like a vote of censure on a Liberal Government by the Carlton, or on a
Tory Government by the Reform Club. And in no case has an adverse vote
by the Lords the same decisive effect as a vote of the Commons; the
Lower House is the ruling and the choosing House, and if a Government
really possesses that, it thoroughly possesses nine-tenths of what it
requires. The support of the Lords is an aid and a luxury; that of the
Commons is a strict and indispensable necessary.
These difficulties are particularly raised by questions of foreign
policy. On most domestic subjects, either custom or legislation has
limited the use of the prerogative. The mode of governing the country,
according to the existing laws, is mostly worn into a rut, and most
administrations move in it because it is easier to move there than
anywhere else. Most political crises--the decisive votes, which
determine the fate of Government--are generally either on questions of
foreign policy or of new laws; and the questions of foreign policy come
out generally in this way, that the Government has already done
something, and that it is for the one part of the legislature
alone--for the House of Commons, and not for the House of Lords--to say
whether they have or have not forfeited their place by the treaty they
have made.
I think every one must admit that this is not an arrangement which
seems right on the face of it. Treaties are quite as important as most
laws, and to require the elaborate assent of representative assemblies
to every word of the law, and not to consult them even as to the
essence of the treaty, is prima facie ludicrous. In the older forms of
the English Constitution, this may have been quite right; the power was
then really lodged in the Crown, and because Parliament met very
seldom, and for other reasons, it was then necessary that, on a
multitude of points, the Crown should have much more power than is
amply sufficient for it at present. But now the real power is not in
the Sovereign, it is in the Prime Minister and in the Cabinet--that is,
in the hands of a committee appointed by Parliament, and of the
chairman of that committee. Now, beforehand, no one would have ventured
to suggest that a committee of Parliament on foreign relations should
be able to commit the country to the greatest international obligations
without consulting either Parliament or the country. No other select
committee has any comparable power; and considering how carefully we
have fettered and limited the powers of all other subordinate
authorities, our allowing so much discretionary power on matters
peculiarly dangerous and peculiarly delicate to rest in the sole charge
of one secret committee is exceedingly strange. No doubt it may be
beneficial; many seeming anomalies are so, but at first sight it does
not look right.
I confess that I should see no advantage in it if our two Chambers were
sufficiently homogeneous and sufficiently harmonious. On the contrary,
if those two Chambers were as they ought to be, I should believe it to
be a great defect. If the administration had in both Houses a
majority--not a mechanical majority ready to accept anything, but a
fair and reasonable one, predisposed to think the Government right, but
not ready to find it to be so in the face of facts and in opposition to
whatever might occur; if a good Government were thus placed, I should
think it decidedly better that the agreements of the administration
with foreign powers should be submitted to Parliament. They would then
receive that which is best for all arrangements of business, an
understanding and sympathising criticism, but still a criticism. The
majority of the legislature, being well disposed to the Government,
would not "find" against it except it had really committed some big and
plain mistake. But if the Government had made such a mistake, certainly
the majority of the legislature would find against it. In a country fit
for Parliamentary institutions, the partisanship of members of the
legislature never comes in manifest opposition to the plain interest of
the nation; if it did, the nation being (as are all nations capable of
Parliamentary institutions) constantly attentive to public affairs,
would inflict on them the maximum Parliamentary penalty at the next
election and at many future elections. It would break their career. No
English majority dare vote for an exceedingly bad treaty; it would
rather desert its own leader than ensure its own ruin. And an English
minority, inheriting a long experience of Parliamentary affairs, would
not be exceedingly ready to reject a treaty made with a foreign
Government. The leaders of an English Opposition are very conversant
with the school-boy maxim, "Two can play at that fun". They know that
the next time they are in office the same sort of sharp practice may be
used against them, and therefore they will not use it. So strong is
this predisposition, that not long since a subordinate member of the
Opposition declared that the "front benches" of the two sides of the
House--that is, the leaders of the Government and the leaders of the
Opposition--were in constant tacit league to suppress the objections of
independent members. And what he said is often quite true. There are
often seeming objections which are not real objections; at least, which
are, in the particular cases, outweighed by counter-considerations; and
these "independent members," having no real responsibility, not being
likely to be hurt themselves if they make a mistake, are sure to blurt
out, and to want to act upon. But the responsible heads of the party
who may have to decide similar things, or even the same things
themselves, will not permit it. They refuse, out of interest as well as
out of patriotism, to engage the country in a permanent foreign scrape,
to secure for themselves and their party a momentary home advantage.
Accordingly, a Government which negotiated a treaty would feel that its
treaty would be subject certainly to a scrutiny, but still to a candid
and lenient scrutiny; that it would go before judges, of whom the
majority were favourable, and among whom the most influential part of
the minority were in this case much opposed to excessive antagonism.
And this seems to be the best position in which negotiators can be
placed, namely, that they should be sure to have to account to
considerate and fair persons, but not to have to account to
inconsiderate and unfair ones. At present the Government which
negotiates a treaty can hardly be said to be accountable to any one. It
is sure to be subjected to vague censure. Benjamin Franklin said, "I
have never known a peace made, even the most advantageous, that was not
censured as inadequate, and the makers condemned as injudicious or
corrupt. 'Blessed are the peace-makers' is, I suppose, to be understood
in the other world, for in this they are frequently cursed." And this
is very often the view taken now in England of treaties. There being
nothing practical in the Opposition--nothing likely to hamper them
hereafter--the leaders of Opposition are nearly sure to suggest every
objection. The thing is done and cannot be undone, and the most natural
wish of the Opposition leaders is to prove that if they had been in
office, and it therefore had been theirs to do it, they could have done
it much better. On the other hand, it is quite possible that there may
be no real criticism on a treaty at all; or the treaty has been made by
the Government, and as it cannot be unmade by any one, the Opposition
may not think it worth while to say much about it. The Government,
therefore, is never certain of any criticism; on the contrary, it has a
good chance of escaping criticism; but if there be any criticism the
Government must expect it to be bitter, sharp, and captious--made as an
irresponsible objector would make it, and not as a responsible
statesman, who may have to deal with a difficulty if he make it, and
therefore will be cautious how he says anything which may make it.
This is what happens in common cases; and in the uncommon--the
ninety-ninth case in a hundred--in which the Opposition hoped to turn
out the Government because of the alleged badness of the treaty they
have made, the criticism is sure to be of the most undesirable
character, and to say what is most offensive to foreign nations. All
the practised acumen of anti-Government writers and speakers is sure to
be engaged in proving that England has been imposed upon--that, as was
said in one case, "The moral and the intellectual qualities have been
divided; that our negotiation had the moral, and the negotiation on the
other side the intellectual," and so on. The whole pitch of party
malice is then expended, because there is nothing to check the party in
opposition. The treaty has been made, and though it may be censured,
and the party which made it ousted, yet the difficulty it was meant to
cure is cured, and the opposing party, if it takes office, will not
have that difficulty to deal with.
In abstract theory these defects in our present practice would seem
exceedingly great, but in practice they are not so. English statesmen
and English parties have really a great patriotism; they can rarely be
persuaded even by their passions or their interest to do anything
contrary to the real interest of England, or anything which would lower
England in the eyes of foreign nations. And they would seriously hurt
themselves if they did. But still these are the real tendencies of our
present practice, and these are only prevented by qualities in the
nation and qualities in our statesmen, which will just as much exist if
we change our practice.
It certainly would be in many ways advantageous to change it. If we
require that in some form the assent of Parliament shall be given to
such treaties, we should have a real discussion prior to the making of
such treaties. We should have the reasons for the treaty plainly
stated, and also the reasons against it. At present, as we have seen,
the discussion is unreal. The thing is done and cannot be altered; and
what is said often ought not to be said because it is captious, and
what is not said ought as often to be said because it is material. We
should have a manlier and plainer way of dealing with foreign policy,
if Ministers were obliged to explain clearly their foreign contracts
before they were valid, just as they have to explain their domestic
proposals before they can become laws. The objections to this are, as
far as I know, three, and three only.
First, that it would not be always desirable for Ministers to state
clearly the motives which induced them to agree to foreign compacts.
"Treaties," it is said, "are in one great respect different from laws,
they concern not only the Government which binds, the nation so bound,
but a third party too--a foreign country--and the feelings of that
country are to be considered as well as our own. And that foreign
country will, probably, in the present state of the world be a despotic
one, where discussion is not practised, where it is not understood,
where the expressions of different speakers are not accurately weighed,
where undue offence may easily be given." This objection might be
easily avoided by requiring that the discussion upon treaties in
Parliament like that discussion in the American Senate should be "in
secret session," and that no report should be published of it. But I
should, for my own part, be rather disposed to risk a public debate.
Despotic nations now cannot understand England; it is to them an
anomaly "chartered by Providence"; they have been time out of mind
puzzled by its institutions, vexed at its statesmen, and angry at its
newspapers. A little more of such perplexity and such vexation does not
seem to me a great evil. And if it be meant, as it often is meant, that
the whole truth as to treaties cannot be spoken out, I answer, that
neither can the whole truth as to laws. All important laws affect large
"vested interests"; they touch great sources of political strength; and
these great interests require to be treated as delicately, and with as
nice a manipulation of language, as the feelings of any foreign
country. A Parliamentary Minister is a man trained by elaborate
practice not to blurt out crude things, and an English Parliament is an
assembly which particularly dislikes anything gauche or anything
imprudent. They would still more dislike it if it hurt themselves and
the country as well as the speaker.
I am, too, disposed to deny entirely that there can be any treaty for
which adequate reasons cannot be given to the English people, which the
English people ought to make. A great deal of the reticence of
diplomacy had, I think history shows, much better be spoken out. The
worst families are those in which the members never really speak their
minds to one another; they maintain an atmosphere of unreality, and
every one always lives in an atmosphere of suppressed ill-feeling. It
is the same with nations. The parties concerned would almost always be
better for hearing the substantial reasons which induced the
negotiators to make the treaty, and the negotiators would do their work
much better, for half the ambiguities in treaties are caused by the
negotiators not liking the fact or not taking the pains to put their
own meaning distinctly before their own minds. And they would be
obliged to make it plain if they had to defend it and argue on it
before a great assembly.
Secondly, it may be objected to the change suggested that Parliament is
not always sitting, and that if treaties required its assent, it might
have to be sometimes summoned out of season, or the treaties would have
to be delayed. And this is as far as it goes a just objection, but I do
not imagine that it goes far. The great bulk of treaties could wait a
little without harm, and in the very few cases when urgent haste is
necessary, an autumn session of Parliament could well be justified, for
the occasion must be of grave and critical importance.
Thirdly, it may be said that if we required the consent of both Houses
of Parliament to foreign treaties before they were valid we should much
augment the power of the House of Lords. And this is also, I think, a
just objection as far as it goes. The House of Lords, as it cannot turn
out the Ministry for making treaties, has in no case a decisive weight
in foreign policy, though its debates on them are often excellent; and
there is a real danger at present in giving it such weight. They are
not under the same guidance as the House of Commons. In the House of
Commons, of necessity, the Ministry has a majority, and the majority
will agree to the treaties the leaders have made if they fairly can.
They will not be anxious to disagree with them. But the majority of the
House of Lords may always be, and has lately been generally an
opposition majority, and therefore the treaty may be submitted to
critics exactly pledged to opposite views. It might be like submitting
the design of an architect known to hold "mediaeval principles" to a
committee wedded to "classical principles".
Still, upon the whole, I think the augmentation of the power of the
peers might be risked without real fear of serious harm. Our present
practice, as has been explained, only works because of the good sense
of those by whom it is worked, and the new practice would have to rely
on a similar good sense and practicality too. The House of Lords must
deal with the assent to treaties as they do with the assent to laws;
they must defer to the voice of the country and the authority of the
Commons even in cases where their own judgment might guide them
otherwise. In very vital treaties probably, being Englishmen, they
would be of the same mind as the rest of Englishmen. If in such cases
they showed a reluctance to act as the people wished, they would have
the same lesson taught them as on vital and exciting questions of
domestic legislation, and the case is not so likely to happen, for on
these internal and organic questions the interest and the feeling of
the peers is often presumably opposed to that of other classes--they
may be anxious not to relinquish the very power which other classes are
anxious to acquire; but in foreign policy there is no similar
antagonism of interest--a peer and a non-peer have presumably in that
matter the same interest and the same wishes.
Probably, if it were considered to be desirable to give to Parliament a
more direct control over questions of foreign policy than it possesses
now, the better way would be not to require a formal vote to the treaty
clause by clause. This would entail too much time, and would lead to
unnecessary changes in minor details. It would be enough to let the
treaty be laid upon the table of both Houses, say for fourteen days,
and to acquire validity unless objected to by one House or other before
that interval had expired.
II.
This is all which I think I need say on the domestic events which have
changed, or suggested changes, in the English Constitution since this
book was written. But there are also some foreign events which have
illustrated it, and of these I should like to say a few words.
Naturally, the most striking of these illustrative changes comes from
France. Since 1789 France has always been trying political experiments,
from which others may profit much, though as yet she herself has
profited little. She is now trying one singularly illustrative of the
English Constitution. When the first edition of this book was published
I had great difficulty in persuading many people that it was possible
in a non-monarchical State, for the real chief of the practical
executive--the Premier as we should call him--to be nominated and to be
removable by the vote of the National Assembly. The United States and
its copies were the only present and familiar Republics, and in these
the system was exactly opposite. The executive was there appointed by
the people as the legislature was too. No conspicuous example of any
other sort of Republic then existed. But now France has given an
example--M. Thiers is (with one exception) just the chef du pouvoir
executif that I endeavoured more than once in this book to describe. He
is appointed by and is removable by the Assembly. He comes down and
speaks in it just as our Premier does; he is responsible for managing
it just as our Premier is. No one can any longer doubt the possibility
of a republic in which the executive and the legislative authorities
were united and fixed; no one can assert such union to be the
incommunicable attribute of a Constitutional Monarchy. But,
unfortunately, we can as yet only infer from this experiment that such
a Constitution is possible; we cannot as yet say whether it will be bad
or good. The circumstances are very peculiar, and that in three ways.
First, the trial of a specially Parliamentary Republic, of a Republic
where Parliament appoints the Minister, is made in a nation which has,
to say the least of it, no peculiar aptitude for Parliamentary
Government; which has possibly a peculiar inaptitude for it. In the
last but one of these essays I have tried to describe one of the mental
conditions of Parliamentary Government, which I call "rationality," by
which I do not mean reasoning power, but rather the power of hearing
the reasons of others, of comparing them quietly with one's own
reasons, and then being guided by the result. But a French Assembly is
not easy to reason with. Every assembly is divided into parties and
into sections of parties, and in France each party, almost every
section of a party, begins not to clamour but to scream, and to scream
as only Frenchmen can, as soon as it hears anything which it
particularly dislikes. With an Assembly in this temper, real discussion
is impossible, and Parliamentary government is impossible too, because
the Parliament can neither choose men nor measures. The French
assemblies under the Restored Monarchy seem to have been quieter,
probably because being elected from a limited constituency they did not
contain so many sections of opinion; they had fewer irritants and fewer
species of irritability. But the assemblies of the '48 Republic were
disorderly in the extreme. I saw the last myself, and can certify that
steady discussion upon a critical point was not possible in it. There
was not an audience willing to hear. The Assembly now sitting at
Versailles is undoubtedly also, at times, most tumultuous, and a
Parliamentary government in which it governs must be under a peculiar
difficulty, because as a sovereign it is unstable, capricious, and
unruly.