Delphi complete works of.., p.437
Delphi Complete Works of Stephen Leacock, page 437
Whatever arrangements may exist, either legal or customary, there always remains in the background the danger of conflict or even of an actual deadlock between the two houses. In most legislatures, as for instance in the Congress of the United States and in the Parliament of the United Kingdom, this danger is lessened by the system of conferences between representatives of each house. In the Congress, when the houses are unable to agree over amendments, three members of the Senate are appointed to confer with three members of the House of Representatives, with a view to arranging a compromise. Although serious differences of opinion have often existed between the two houses of Congress, the possibility of an actual deadlock bringing the legislative machinery to a standstill is not one of the special dangers in the American system. Beyond the plan of committees of conference there is no legal machinery for forcing an agreement between the two houses. The case is quite different with the newly made constitution of the commonwealth of Australia. Australian legislatures, especially the legislatures of Victoria, have experienced the very serious dangers that may be threatened by the obstinate disagreement of the upper and lower house. As a result of the difficulties that have thus arisen, the new constitution of the commonwealth contains in consequence provisions that are intended to render impossible a complete deadlock in the federal legislature. The Governor General is empowered in the event of the House presenting and re-presenting a bill, and the Senate persistently rejecting it, to dissolve both houses simultaneously. If after a new election the same situation persists, the governor may convene a joint sitting, the vote in which is final.
5. Direct Legislation; the Initiative and the Referendum. As a conclusion to our discussion of the legislature and the legislative process, we may briefly advert to what is called direct legislation, or the making of laws by means of the action of the people themselves. That the whole of the people, or at any rate of the voters, should participate in the process of legislation seems in a sense the embodiment of the idea of democratic self-government. Rousseau regarded it as the only true expression of popular sovereignty. In some form or other it has been known since the earliest historical times. At Athens there existed the Ecclesia, an assembly of all the free citizens, erected by Solon in the sixth century B. C. into an organ of general political control. In it the citizens decided on questions of peace and war, and voted on matters laid before them by the Council of Four Hundred. The Romans also had their Comitia Tributa, or meeting of the people by tribes, which became in the latter days of the republic a lawmaking assembly. In the smaller cantons of Switzerland the Landesgemeinde, or gathering of the people, has acted from time immemorial as a legislative body. Such organs of government were rendered possible in the city states of the classical world, and in the cantons of Switzerland, by reason of their restricted territorial extent. In the larger states of the world an actual gathering of the people is a physical impossibility. The sovereignty of the people has worked itself out by means of representative assemblies. But at the present day the growth of rapid communication by post and telegraph renders it possible to have recourse to some extent to the whole body of the citizens in the making of the law; the people of a great state cannot, it is true, be all gathered together in one place in a deliberative capacity, but it is possible for them all at one and the same time to give their vote upon any measure proposed. The system of direct legislation which is thus rendered possible has been favored by the growing distrust of representative legislatures which is noticed in so many democratic countries at the present day. There is an increasing tendency to rely on the general will of the whole people as expressed in a direct vote. “The people,” says Professor Goldwin Smith, “cannot be lobbied, wheedled, or bulldozed; the people is not in fear of its reëlection if it throws out something supported by the Irish, the Prohibitionist, or the Methodist vote.” As against this contention it may properly be advanced that the making of laws requires, like every other task of importance, a special training and experience, and that the interests of the people are really safer in the hands of carefully chosen legislatures than when submitted to the hazards of a popular vote. The fact that in every community a large proportion of the citizens are of necessity too much absorbed in their own affairs to be able to properly consider the public questions submitted to them, is also of considerable weight. Rightly or wrongly, however, legislation by the people is already used to a considerable extent. It assumes several forms. Of these the most important is the referendum, or submission to the popular vote of a proposed measure or constitutional change which becomes law if ratified by the required majority. The initiative means the legal right of the people, acting by petition and in sufficient number, to cause a legislative measure to be brought to a popular vote. There is finally what may best be called the plebiscite, or vote of the people used merely as an expression of opinion without binding force, and intended as a guide to the policy of the government. It is in Switzerland more than anywhere else that direct legislation is in use. Of the nineteen cantons and six half-cantons which form the federation, two cantons and four half-cantons still preserve the immemorial Landesgemeinde, or mass meeting, already referred to. In Uri, for example (of which the total population is 19,700), the people meet once a year in a large meadow, where they vote taxes, pass laws, and elect their executive officers for the coming year. Even in the cantons which have representative legislatures the referendum — the submission of the laws to the vote of the people — is largely used. In about half of them it is “optional,” employed, that is to say, only when called for by petition. In all the rest (except Freiburg) it is “obligatory,” and must be used for all legislative measures of importance. In all the cantons changes in the constitution can only be made if ratified by the popular vote. The initiative, or right of the people to introduce laws by petition, is of more modern creation, having been first introduced into the constitutions of the cantons in the middle of the nineteenth century. It is permissible at present in all but three of the cantons for ordinary measures of law, and in all but one for constitutional changes. In the federal government of Switzerland the referendum is compulsory for an amendment of the constitution. There is also an optional referendum, requiring the submission of ordinary laws to the people if called for by thirty thousand citizens or eight cantons. The initiative in the shape of a proposal supported by fifty thousand voters also exists in the federal government; though nominally admissible only on constitutional amendments it can in practice be applied to any measure by giving it the form of a change in the constitution. That this system thus established is of great practical importance in the government of Switzerland is seen from the fact that between April, 1874, and October, 1896, no less than thirty-eight popular votes were taken. Unfortunately it is impossible to draw any general conclusion as to the utility of direct legislation from the experience of Switzerland, as its critics, both in and out of that country, are much divided in opinion.
In the United States, direct legislation, though not always referred to by that name, exists to a considerable extent. There is in the first place a historic form of it in the shape of the New England “town meeting,” or assembly of the electors of the township. This is almost a counterpart of the Landesgemeinde of Switzerland. The voters come together in a mass meeting once a year (and on special occasions if called for by petition) and not only elect the “select men” or officers of the township, but also vote on the raising of taxes, the spending of money, and on other local questions. The town meeting is an instance of direct legislation of the purest type, inasmuch as it permits of discussion as well as voting in the mass meeting. Another form of direct legislation is seen in the ratification by the people of changes in the Constitution, a system now practically universal in the United States. The constitutions of many of the states make a still further use of the principle. As has already been seen, the power of the state legislature is often restricted by a constitutional provision requiring certain kinds of statutes to be submitted to a popular vote. The constitution of Pennsylvania (1873), for example, declares that “no law changing the location of the capital of the State shall be valid until the same be submitted to the qualified electors of the commonwealth at a general election, and ratified and approved by them.” Similar provisions in regard to altering the location of the capital are found in the constitution of many other states. In the same way a clause of the Iowa constitution of 1846 (adopted later in the constitutions of New York, California, Illinois, and a number of western states) provides that laws for the contraction of debt (with certain exceptions) must be submitted to the people. In many states, too, the raising of taxes beyond a stipulated limit can only be effected by means of a popular vote. Of other matters treated in this way the alienation of public property, the creation of banks, and the extension of the franchise to women may be cited. The popular votes by which female suffrage was rejected in South Dakota (1898), in Washington (1898), and in Oregon (1900) were of this nature. Direct legislation is also found in the form of a “municipal referendum” in which the people of a county or town vote on the question of the location of the county seat, the contraction of a local debt, or the adoption of a city charter. The system is decidedly growing in favor, especially in the western part of the Union, and profits by the distrust with which the state legislatures are often viewed by the people at large. The Populist party in its national convention at St. Louis, in 1896, expressed itself in favor of the use of both initiative and referendum; the same demand was repeated in the platforms of both sections of the party in 1900, and at the Springfield convention of the party in 1904. Present indications seem to show that direct legislation is destined to play a considerable part in the American system of government.
READINGS SUGGESTED
Lecky, W. H., Democracy and Liberty (1896), vol. i, chap. iv.
Low, S., Governance of England (1904).
Bryce, J., American Commonwealth (1889), vol. i, chaps, i-xx.
FURTHER AUTHORITIES
The Statesman’s Year Book (annual).
Anson, Sir W., Law and Custom of the Constitution, part i (2d edition, 1896).
Hart, A. B., Actual Government (1903).
Lowell, A. L., Governments and Parties in Continental Europe (1897).
Simonet, Traité Elémentaire de Droit Public et Administratif (3d edition, 1897).
Dicey, A. V., Law of the Constitution (4th edition, 1893).
Macy, J., English Constitution (1897).
Wilson, W., The State (2d edition, 1901).
Vincent, J. M., Government in Switzerland (1900).
Wilson, W., Congressional Government (2d edition, 1901).
Deploige, S., The Referendum in Switzerland (translation, 1898).
Ilbert, Sir Courtenay, Legislative Methods and Forms (1901).
CHAPTER III. THE EXECUTIVE
1. CONCENTRATION OF Authority the first Requisite of the Executive. — 2. Methods of Appointment; Hereditary Executives. — 3. Elective Executives. — 4. Presidential and Parliamentary Government. — 5. Subordinate Officials of the Executive; the Civil Service.
1. Concentration of Authority the First Requisite of the Executive. The term executive is used to designate those officers of the government whose business it is to “execute” or carry out the law of the land. In the narrower sense it often signifies merely the supreme head of the administration, as the President of the United States, or the same person together with his chief subordinates. Thus when we speak of the “executive” of the French Republic, we refer to the president, or perhaps to the president together with the prime minister and cabinet. But the word has also a wider signification, in which it means the entire staff of officials, high and low, who are concerned with the administration of public affairs. This does not, of course, include persons acting in a legislative or judicial capacity, but comprises all such public servants as postmasters, revenue officers, sheriffs, inspectors, commissioners, etc. Occasionally even the army and the navy are included in this usage of the term. In the following chapter the word executive will be used in the narrower sense except where otherwise indicated.
The first striking point to be noticed in connection with the executive heads of modern governments is that, while members of the legislature are many, the chief officers of the executive are few. This, as has been seen, arises from the fact that the prime need in the executive or acting branch of a government is promptness of decision and singleness of purpose. That this is difficult to obtain among a number of persons acting with equal authority goes without saying. “One bad general,” the Emperor Napoleon once said, “is better than two good ones.”
It is further to be noted that to a very great extent executive authority — either over the whole conduct of government or over its subdivisions — tends to centre in a single person. Thus in the United States the supreme administration lies in the President, whose chief subordinates are his own creations, and can be dismissed by him. In Great Britain the virtual control of affairs is in the hands of a cabinet of fifteen to twenty persons, one of whom is, to a large extent, dominant over the others. It is not necessary that any single person should always impose his own ideas and his own will upon the conduct of public administration. But it is essential that there should be some one person who can in the last resort exercise a decisive and final authority. It is one of the admirable points in the federal Constitution of the United States that, by virtue of his position of commander-in-chief of the army and navy, the President may become in time of war almost a dictator. His power expands with the need of strengthening the executive, and he is able to cut the Gordian knot of legislative perplexities by the incisive application of a single will.
It appears, then, that there is a strong presumption against what is called a “plural executive,” or group of persons exercising the supreme executive authority, no one of whom is superior in power to the others. Such a body is able to act only by joint decision. At first sight there appears a decided gain in this system in the direction of maturity of judgment and mutual control of the members against any possible tyranny on the part of any of them. But the necessary loss in promptness of resolution and the danger of actual conflict of opinion in a moment of crisis, more than offsets this gain. As a matter of fact a plural executive is scarcely able to act at all except by subdividing the work to be done and committing certain special functions to the care of each of its members. This was, for example, the plan pursued by the Committee of Public Safety, the joint executive of eleven members which governed France during the reign of terror, 1793-94. History offers many examples of plural executives, such as the dual kings at Sparta and the consuls at Rome. But experience has been decidedly unfavorable to such a plan of government. To this general verdict a signal exception is found in the case of modern Switzerland. Here the supreme executive power is vested in a board of seven persons, the Bundesrath, or federal council, elected for a term of three years, by the two houses of the legislature in joint session. Although one of the council is nominated each year to the titular dignity of president of the Swiss Confederation, he is in no sense above the others in authority. The members act severally as the heads of the seven governmental departments, though this is for convenience only, and not prescribed by the constitution. In their corporate capacity they manage the general conduct of the administration. In practice the system works admirably. The members of the council are constantly reëlected, and enjoy what is practically a permanent tenure. But this rather anomalous situation is partly to be explained by the fact that the legislature itself decides upon the policy to be pursued in all matters of moment.
2. Methods of Appointment; Hereditary Executives. Returning, then, to the consideration of modern executives in general, and having noted the prevailing principle of single control, we may next indicate the great differences that exist in the method of selecting the executive heads of governments, in their tenure of office, and in the relations of the executive to the legislative body. Two separate lines of classification are here presented; first the distinction between hereditary and appointed executives, and secondly the distinction between those that are real and those that are nominal. A hereditary executive — a king, emperor, sovereign prince, etc. — enjoys a tenure which is not only lifelong, but which passes to his heirs. Such an institution has of course no place among the political ideas current in the independent states of the American continent. Looked at in a purely rational light, it is difficult to find much to be said in its favor. A hereditary ruler seems on the face of things as absurd as the hereditary mathematician or hereditary poet-laureate referred to in the preceding chapter. But hereditary monarchy, as it exists in Europe, is not to be disposed of in so simple a manner. In nearly all countries where it exists, it is a historical product, and has grown up as a part of the political evolution of the state. In many cases, too, it is regarded by the people of the country, as most notably in Great Britain, not only with tolerance, but with the most sincere approval. The desire for a republican form of government is about as little known in England as the desire for a monarchical system in the United States. But the real secret of the persistent survival of hereditary monarchy in so many of the civilized communities of the world lies in the fact that, in the cases where it meets with the greatest approval, the hereditary sovereign is a nominal and not a real executive. In the United Kingdom, Italy, Hungary, Belgium, etc., the actual conduct of government is not in the hands of the king. The king is, to a great extent, though of course not literally, only the nominal head of the state; public business is transacted in his name, and professedly by his authority, but in reality the control of affairs is in the hands of the prime minister and cabinet, who represent the voice of the people. In this form the system can be supported by many arguments of great weight. It helps to lend to the government of the country those features of stability, permanence, and continuity which are among the most essential factors in political institutions. To international dealings it contributes, whether rightly or wrongly, a certain prestige that is not without its diplomatic value. It is certainly, also, to be admitted that the traditions which surround a monarchy of long continuance help to inspire the actual chiefs of the government with a sense of responsibility and dignity most salutary in its effect.
