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 an historical reason, but I mean an
administrative reason a reason which would show, 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
relations 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 outside 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 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 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 Vice-President 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 varied 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 India 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 much harm. A member of a
Board may easily be incompetent; if some other members and the chairmen
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 to be on record skilled evidence on the subject
before a person without any 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
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?
I leave this to stand as it was originally written since it does not
profess to rest on my own knowledge, and only offers a suggestion on
good authority. Recent experience seems, however, to show that in all
great administrative departments there ought to be some one permanent
responsible head through whom the changing Parliamentary chief always
acts, from whom he learns everything, and to whom he communicates
everything. The daily work of the Exchequer is a trifle compared with
that of the Admiralty or the Home Office, and therefore a single
principal head is not there so necessary. But the preponderance of
evidence at present is that in all offices of very great work some one
such head is essential.
NO. VII.
ITS SUPPOSED CHECKS AND BALANCES.
In a former essay I devoted an elaborate discussion to the comparison
of the royal and 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 rule 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, and 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 Governments. 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 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 that the 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 Government. 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 reserved 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 suffrages 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.
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 Freedman'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, 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 intended 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 however trifling, must be
sanctioned by a complicated proportion of States or legislatures. The
consequence is that the most obvious evils cannot be quickly remedied;
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 old 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.[10] 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 Congress wants another course, and
has power to prevent any other. The splitting of sovereignty into many
parts amounts to there being no sovereign.
[10] This was written just after the close of the Civil War, but I do
not know that the great problem stated in it has as yet been adequately
solved.
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, so 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 newly-elected
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 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.[11] 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.
[11] 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.
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 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.