Delphi Complete Works of Stephen Leacock, page 435
Even under the Constitution of the United States, the principle of distributed powers is only adopted in the federal government to a modified extent. The executive is not without a share in legislation, since the President has a partial veto power on the acts passed by the Congress, and something resembling a power of initiative by means of presidential messages. Nor is the legislature without share in the executive government, as is seen in the ratification by the Senate of treaties and appointments. The judges are the appointees of the executive, and the courts are empowered to pass on the constitutionality of the acts of the two other branches of the government. Even this qualified separation existing under the law of the Constitution is still further modified in the actual operation of the government. Here the existence of the party system is an important factor. Though standing outside of the legal machinery of the government, it none the less acts as a bond of union between the legislature and the heads of the executive government. Whenever the executive and the majority in the houses of Congress are of the same political party (as has been continuously the case, for instance, between the years 1895 and 1907), they are under the guidance of common councils, and are united in the pursuit of the same ends. It is possible, indeed, to look upon the singularly systematic and powerful growth of the party system in the United States as a sort of “natural” evolution consequent upon the attempt to keep apart the powers of government; an attempt, as it were, on the part of nature to rectify an error in organic structure, a process analogous to the healing of a fractured limb. In the state governments the separation of powers is more nearly complete. The separate election by the people of the governor and other executive officers, the legislature, and the judges, is the prevalent constitutional arrangement. The partial veto power given to the governor in nearly all the states of the Union, and the governor’s right of sending messages to the legislature, are a departure from the rigidity of the doctrine. In all the states, too, the courts have cognizance of the official acts of the members of the government.
5. Continental Administrative Law. In the countries of continental Europe an application of the principle of separation is made quite contrary to American ideas of government. The officers of the government acting in their official capacity cannot be brought to account before the ordinary courts of law; nor can the courts question the validity of an act of the legislature. Such a system professes to rest on the principle of the separation of powers, by protecting the executive and judiciary from the control of the third branch of the government. The protection, however, is only afforded at the expense of the individual citizen, the practical effect of this fallacious form of separation being to strengthen very much the hands of the executive. The peculiar relation thus established between the executive and judicial branches of the government will be treated more fully in a later chapter.
6. General Criticism of the Theory of the Separation of Powers. It remains to consider, in conclusion, to what extent the theory of the separation of powers is to be regarded as true. Stated in the form of a universal principle, as by Montesquieu and Blackstone, in the quotations above, it is undoubtedly false. It is not true that there cannot possibly be public liberty where executive and legislature are joined in the same hands. The example of Great Britain alone amply proves this. Nor is it true either that the separation of the powers of government of necessity guarantees the individual against possible tyranny, establishes in and of itself a government “of laws and not of men.” A single government board or body of directors need not of necessity act tyrannically; nor does it follow that an executive officer and a legislative council elected and acting separately will of necessity act in the public interest. But though no such universal formula can be laid down, it remains true that in the actual conduct of public affairs a certain degree of separation of powers makes towards efficient government. The divergent requisites in the composition of executive and legislative bodies will be treated in the next chapters; it is apparent, however, that absolute identity of the two is not to be recommended. The separation of the judiciary to the extent at least of independence in tenure of office is admitted by all to be desirable. The question of the advisability of establishing an executive controllable by the legislature (as in the cabinet system of Great Britain), or of following the system adopted in the state governments, is a disputed point. Its solution will depend upon the particular circumstances and the historical antecedents of each community. Americans are inclined to look with favor on the system of popular election of state officers. Such writers as A. Lawrence Lowell in his “Essays on Government” and John Fiske, “Civil Government in America,” have ably argued in defense of the American plan. The English, on the other hand, are inclined to view the union of powers in the hands of the cabinet as the most admirable feature of their system of government.
READINGS SUGGESTED
Montesquieu, Esprit des Lois (1748), bk. xi, chap. vi.
The Federalist (1788), Essays Nos. 47-51.
Bagehot, W., English Constitution, chap. ii.
FURTHER AUTHORITIES
Polybius, History of Rome, bk. vi.
Goodnow, F., Comparative Administrative Law (1897).
Hélie, M. F., Les Constitutions de la France (1880).
Goodnow, F., Politics and Administration (1900).
Hart, A. B., Actual Government (1893).
Lowell, A. L., Essays on Government (1889).
Fiske, J., Civil Government in America (1891).
CHAPTER II. THE LEGISLATURE
1. THE LEGISLATURE; General Requisites, Procedure, etc. — 2. The Bicameral System; Reasons for its Adoption. — 3. Composition of Upper Houses. — 4. Distribution of Power between the Two Houses. — 5. Direct Legislation; the Initiative and the Referendum.
1. The Legislature; General Requisites, Procedure, etc. It has been said in the preceding chapter that there is a necessary diversity in the composition of the different branches of the government to meet the distinctive requirements of each. The executive is concerned with action more than deliberation; promptness and unity of purpose are the prime requisites. For the judiciary, the technical knowledge of the actual law to be applied, and a trained logical faculty to be used in its application are above all necessary. The legislature, on the other hand, demands an entirely different set of qualities. The legislature is, par excellence, a deliberative body, and for deliberation two heads are better than one, and two hundred are better than two. A legislative body must consist of many persons, representing numerous interests, various points of view, and different sections of the community. No precise size can be indicated as proper for a legislature; as numbers increase the gain in added wisdom is offset by the increased cumbrousness. The French constituent assembly, called in 1789, consisted of nearly 1200 members. This was the largest legislative body of modern times, and was found hopelessly unwieldy. Of the popularly elected legislatures of the world, the House of Representatives at Washington contains 386 members, the British House of Commons 670, the French Chamber of Deputies 584, the German Reichstag 397, the Italian Deputies number 508, and the Spanish Congress has 431 members. The number of members in the state legislatures of the United States varies very much. New Hampshire has 390, Massachusetts 242, and Virginia 100 in the lower house, while Delaware has only 34, and Rhode Island 72.
It is hardly possible to accomplish the work of actual legislation among such large bodies of men, without the adoption of definite plans and systems of procedure. Any large gathering which acts at haphazard and without formal rules is liable to become a mere babel of tongues; its resolutions, to use Mr. Bagehot’s phrase, get “wedged in the meeting.” This was the case with the French Assembly of 1789, already referred to, which in its first enthusiasm was inclined to proceed “according to the promptings of the spirit,” rather than to follow any formal plan. They rejected the suggestion that they should adopt the standing orders of the House of Commons. “They discuss nothing in their assembly,” wrote Gouverneur Morris, at that time in Paris, and an interested observer of their proceedings. “One large half of their time is spent in hallooing and bawling.” Universal experience has therefore shown the need of what is called legislative procedure, a definite method of doing business which the legislature adopts as part of the necessary formality of the making of a law. Such rules have been adopted by all the chief legislatures of the world. They are of course made by the legislature itself, and can consequently be set aside if need be in moments of stress. The objects aimed at are the orderly and efficient dispatch of business, the prevention on the one hand of precipitate and ill-considered action, and on the other, of fruitless prolixity of debate. The rules thus adopted tend to be extremely intricate and confusing by reason of the vast amount of business that tries to force itself upon a modern legislature. Mr. Bryce in his “American Commonwealth” tells us that an industrious member of the House of Representatives needs one whole session to learn the rules of procedure.
A few general features of procedure adopted in most legislative bodies may be mentioned. The most important is the device of requiring a bill to be voted on, not once and for all, but at three separate “readings,” or intervals of time. This is intended to prevent the legislature from acting on the spur of the moment, and committing itself to a measure under the influence, perhaps, of momentary emotion. In the British House of Commons, “the member who desires to introduce a measure gives notice . . . of his intention to do so. When the motion comes on in its order, he moves for leave to introduce a bill. . . . An order of the House is made that the bill be prepared and brought in by the mover and other members named by him. The bill may then immediately be presented, which is done by the member appearing at the bar, whereupon the Speaker calls upon him by name, he calls out, ‘A bill, sir,’ and is desired by the Speaker to bring it up. He brings it to the table and delivers it to the clerk of the House, by whom its title is read aloud. The questions that a bill ‘be now read a first time,’ and that it be printed are put without amendment or debate; an order is then made that it be read a second time on a day named.” On this day the bill is again brought up, and a vote taken on the question that the “bill be now read a second time;” having successfully passed this stage it is referred to what is called a committee of the whole House; here it is discussed, voted on clause by clause, and probably amended. At the conclusion of this stage a day is set for the final consideration of the bill; the bill is presented in its revised form to the House, and unless further amendments are now carried, it is submitted to its third and final reading. Even after this the bill may have to be reconsidered if amended in the Upper House.
Another device of legislative procedure is the delegation of the work of the legislature to a series of committees. The aim of this is to facilitate the dispatch of business, and to enable the legislature, by dividing itself into sections, to multiply its powers of work. The system has been most completely developed in the House of Representatives. Here the so-called first and second readings are a purely perfunctory matter, and mean the reading of the title by the clerk. After this the bill is referred to the appropriate standing committee. These are nominated by the speaker, and are representative of both the great political parties. In the Fifty-Ninth Congress there are over thirty standing committees of the House of Representatives; the committees on Ways and Means, on Appropriations, on Banking and Currency, on Commerce, on Claims, Manufacturing, Pensions, etc., are among the most important. The great majority of bills never survive their reference to a committee; the committee, though it has no formal power to negative a bill, destroys them either by making an adverse report or by introducing another bill as a substitute or by simple neglect. Such a system, accompanied as it is by stringent rules of debate, tends of course to remove the actual conduct of business from the House itself, and to discourage independent action on the part of individual members. The French Cabinet of Deputies adopts the peculiar system of dividing its members by lot into eleven sections or panels; out of these a special committee is elected (by the members of the panel) for each bill that is presented. Such a plan is plainly unsatisfactory, as it does not accord with the system of cabinet government supposed to operate in the French legislature. The hazard of the lot may lead to government bills being handed over to opposition committees. It is easier, however, to see the faults in legislative procedure than to suggest adequate remedies.
A further point of importance in the conduct of legislative business is the need of some method of forcibly bringing the debate to a close. The procedure of most assemblies allows means whereby a vote may be taken on the question of terminating the discussion and voting on the matter under consideration. To this general rule the Senate of the United States is an exception; it has been a part of the traditional dignity of that body not to interfere with the freedom of discussion by closing the debate. In the House of Representatives, however, the closure of the debate, the “previous question,” as such a motion is called, may be moved by any member, and is carried if supported by a majority of those present. Until quite recently the British House of Commons had no such rule. It happened, however, that during Mr. Gladstone’s second administration (1880-85) the Irish members took advantage of this fact to block all parliamentary business by talking against time. This has rendered it necessary for the House somewhat reluctantly to adopt a rule of closure (standing order of 1882, revised 1887). Under the present regulations a motion can be made for terminating the debate; the speaker is allowed to use his discretion as to whether or not he will submit the motion to a vote. A similar purpose is effected by what is called the “closure by compartments” or “the guillotine,” which consists in a resolution of the House either altogether precluding discussion on certain clauses of a bill or limiting the time to be allotted to the bill or to parts of it. This rather drastic form of procedure was applied in the case of the Home Rule Bill, which narrowly passed the Commons in 1893.
2. The Bicameral System; Reasons for its Adoption. Of all the means that have been used to secure, in the work of legislation, a due amount of caution and reflection, the most important is the division of the legislature into two parts, creating thus what is called a two-chambered or bicameral legislature. It is not meant that the desire to avoid precipitate action is the sole reason for establishing a legislature of this sort; it will presently be seen that it often serves other purposes as well, but such is none the less the main ground on which the separation of the legislature into two parts is to be defended. At the present time the bicameral system is of almost universal prevalence. The United States, the United Kingdom, France, Germany, and all the chief countries of Europe have bicameral legislatures. The kingdom of Greece alone vests the legislative power in a single chamber (the Bulé). Mexico and the South American states have copied the United States in establishing “congresses” composed of senates and houses of representatives, in some cases (as in Brazil) denominated chambers of deputies. Even in the subdivisions of federal governments the bicameral structure of the legislature is often found. All of the forty-five states of the Union have legislatures consisting of a senate and another house. In Canada two of the provinces (Quebec and Nova Scotia) have an upper and a lower house, and the “states” of the commonwealth of Australia, and the different kingdoms, duchies, etc., which make up the German federation have all double legislatures. Japan, in reconstructing its government in the light of European experience in 1889, deliberately set up a bicameral system.
The objections, indeed, against a unicameral system are of overwhelming force. “Of all the forms of government which are possible among mankind,” writes the distinguished historian W. E. H. Lecky, “I do not know of any which is likely to be worse than the government of a single omnipotent democratic chamber.” Mr. Lecky undoubtedly states the case too strongly. The fact remains, however, that the unicameral legislature has been tried and found wanting. A single legislative house, unchecked by the revising power of another chamber associated with it, proves itself rash and irresponsible; it is too much exposed to the influence of the moment; it is swayed by emotion, by passion, by the influence of oratory; it is liable to a sudden access of extravagance or of retrenchment. But quite apart from these more or less psychological arguments, there are other practical objections to a single legislature. Elected (in most cases) all at the same time, its members represent the opinions of the community at a particular moment and on particular issues. But the lapse of time and the appearance of new public questions may render a legislature such as this quite out of harmony with public opinion long before its term has expired. A somewhat natural confusion of thought tended in the past to confound the existence of a single legislative chamber with the principle of popular sovereignty, as if the rule of the people would not allow of the existence of a second house. Such a confusion arose from the historical fact that in its origin the British House of Lords was an aristocratic institution. As a consequence of this, the democrats of the French Revolution adopted (1791) a legislature of a single house; the proposal to unite it with an upper chamber was rejected in the Constituent Assembly as savoring of aristocratic ideas. The same error was committed in 1848 in the constitution of the second French republic. The abortive German parliament of 1848 consisted of a single house. Even in the United States unicameral legislatures have been tried. Georgia and Pennsylvania in 1790, and Vermont in 1836, successively abandoned the system in favor of the now universal double legislatures. The idea that the existence of a second branch of the legislature is not compatible with popular sovereignty is indeed purely fallacious. The two houses may each of them draw their power from the people, although elected for different terms and by different districts. The division between the two need not in any way imply the existence of caste, or follow the line of the social stratification of society. The senates of the United States and France are obvious illustrations.
