Note III
DISTINCTION BETWEEN
A PARUAMENTARY EXECUTIVE AND A
NON-PARLIAMENTARY EXECUTIVE
Representative government, of one kind or another, exists at this moment in most European countries, as well as in all countries which come within the influence of European ideas; there are few civilised states in which legislative power is not exercised by a wholly, or partially, elective body of a more or less popular or representative character. Representative government, however, does not mean everywhere one and the same thing. It exhibits or tends to exhibit two different forms, or types, which are discriminated from each other by the difference of the relation between the executive and the legislature. Under the one form of representative government the legislature, or, it may be, the elective portion thereof, appoints and dismisses the executive which under these circumstances is, in general, chosen from among the members of the legislative body. Such an executive may appropriately be termed a “parliamentary executive.” Under the other form of representative government the executive, whether it be an Emperor and his Ministers, or a President and his Cabinet, is not appointed by the legislature. Such an executive may appropriately be termed a “non-parliamentary executive.” As to this distinction between the two forms of representative government, which, though noticed of recent times by authors of eminence, has hardly been given sufficient prominence in treatises on the theory or the practice of the English constitution, two or three points are worth attention.
First, the distinction affords a new principle for the classification of constitutions, and brings into light new points both of affinity and difference. Thus if the character of polities be tested by the nature of their executives, the constitutions of England, of Belgium, of Italy, and of the existing French Republic, all, it will be found, belong substantially to one and the same class; for under each of these constitutions there exists a parliamentary executive. The constitutions, on the other hand, of the United States and of the Gérman Empire, as also the constitution of France in the time of the Second Republic, all belong to another and different class, since under each of these constitutions there is to be found a non-parliamentary executive. This method of grouping different forms of representative government is certainly not without its advantages. It is instructive to perceive that the Republican democracy of America and the Imperial government of Germany have at least one important feature in common, which distinguishes them no less from the constitutional monarchy of England than from the democratic Republic of France.
Secondly, the practical power of a legislative body, or parliament, greatly depends upon its ability to appoint and dismiss the executive; the possession of this power is the source of at least half the authority which, at the present day, has accrued to the English House of Commons. The assertion, indeed, would be substantially true that parliamentary government, in the full sense of that term, does not exist, unless, and until, the members of the executive body hold office at the pleasure of parliament, and that, when their tenure of office does depend on the pleasure of parliament, parliamentary government has reached its full development and been transformed into government by parliament. But, though this is so, it is equally true that the distinction between a constitution with a parliamentary executive and a constitution with a non-parliamentary executive does not square with the distinction insisted upon in the body of this work, between a constitution in which there exists a sovereign parliament and a constitution in which there exists a non-sovereign parliament. The English Parliament, it is true, is a sovereign body, and the real English executive— the Cabinet—is in fact, though not in name, a parliamentary executive. But the combination of parliamentary sovereignty with a parliamentary executive is not essential but accidental. The English Parliament has been a sovereign power for centuries, but down at any rate to the Revolution of 1689 the government of England was in the hands of a non-parliamentary executive. So again it is at least maintainable that in Germany the Federal Council (Bundesrath) and the Federal Diet (Reichstag) constitute together a sovereign legislature. But no one with recent events before his eyes can assert that the German Empire is governed by a parliamentary executive. In this matter, as in many others, instruction may be gained from a study of the history of parliamentary government in Ireland. In modern times both the critics and the admirers of the constitution popularly identified with the name of Grattan, which existed from 1782 to 1800, feel that there is something strange and perplexing in the position of the Irish Parliament. The peculiarity of the case, which it is far easier for us to perceive than it was for Grattan and his contemporaries, lies mainly in the fact that, while the Irish Parliament was from 1782 an admittedly sovereign legislature, and whilst it was probably intended by all parties that the Irish Houses of Parliament should, in their legislation for Ireland, be as little checked by the royal veto as were the English Houses of Parliament, yet the Irish executive was as regards the Irish Parliament in no sense a parliamentary executive, for it was in reality appointed and dismissed by the English Ministry. It would be idle to suppose that mere defects in constitutional mechanism would in themselves have caused, or that the most ingenious of constitutional devices would of themselves have averted, the failure of Grattan's attempt to secure the parliamentary independence of Ireland. But a critic of constitutions may, without absurdity, assert that in 1782 the combination of a sovereign parliament with a non-parliamentary executive made it all but certain that Grattan's constitution must either be greatly modified or come to an end. For our present purpose, however, all that need be noted is that this combination, which to modern critics seems a strange one, did in fact exist during the whole period of Irish parliamentary independence. And as the existence of a sovereign parliament does not necessitate the existence of a parliamentary executive, so a parliamentary executive constantly coexists with a non-sovereign parliament. This is exemplified by the constitution of Belgium as of every English colony endowed with representative institutions and responsible government.
The difference again between a parliamentary and a non-parliamentary executive, though it covers, does not correspond with a distinction, strongly insisted on by Bagehot, between Cabinet Government and Presidential Government. Cabinet Government, as that term is used by him and by most writers, is one form, and by far the most usual form, of a parliamentary executive, and the Presidential Government of America which Bagehot had in his mind, is one form, though certainly not the only form, of a non-parliamentary executive. But it would be easy to imagine a parliamentary executive which was not a Cabinet, and something of the sort, it may be suggested, actually existed in France during the period when Monsieur Thiers and Marshal MacMahon were each successively elected chief of the executive power by the French National Assembly, and there certainly may exist a non-parliamentary executive which cannot be identified with Presidential government. Such for example is at the present moment the executive of the Gem-Lan Empire. The Emperor is its real head; he is not a President; neither he, nor the Ministers he appoints, are appointed or dismissible by the body which we may designate as the Federal Parliament.
Thirdly, the English constitution as we now know it presents here, as elsewhere, more than one paradox. The Cabinet is, in reality and in fact, a parliamentary executive, for it is in truth chosen, though by a very indirect process, and may be dismissed by the House of Commons, and its members are invariably selected from among the members of one or other House of Parliament. But, in appearance and in name, the Cabinet is now what it originally was, a non-parliamentary executive; every Minister is the servant of the Crown, and is in form appointed and dismissible, not by the House of Commons, not by the Houses of Parliament, but by the King.
It is a matter of curious speculation, whether the English Cabinet may not at this moment be undergoing a gradual and, as yet, scarcely noticed change of character, under which it may be transformed from a parliamentary into a non-parliamentary executive. The possibility of such a change is suggested by the increasing authority of the electorate. Even as it is, a general election may be in effect, though not in name, a popular election of a particular statesman to the Premiership. It is at any rate conceivable that the time may come when, though all the forms of the English constitution remain unchanged, an English Prime Minister will be as truly elected to office by a popular vote as is an American President. It should never be forgotten that the American President is theoretically elected by electors who never exercise any personal choice whatever, and is in fact chosen by citizens who have according to the letter of the constitution no more right to elect a President than an English elector has to elect a Prime Minister.
Fourthly, each kind of executive possesses certain obvious merits and certain obvious defects.
A parliamentary executive, which for the sake of simplicity we may identify with a Cabinet, can hardly come into conflict with the legislature, or, at any rate, with that part of it by which the Cabinet is appointed and kept in power. Cabinet government has saved England from those conflicts between the executive and the legislative power which in the United States have impeded the proper conduct of public affairs, and in France, as in some other countries, have given rise to violence and revolution. A parliamentary Cabinet must from the necessity of the case be intensely sensitive and amenable to the fluctuations of parliamentary opinion, and be anxious, in matters of administration no less than in matters of legislation, to meet the wishes, and even the fancies, of the body to which the Ministry owes its existence. The “flexibility,” if not exactly of the constitution yet of our whole English system of government, depends, in practice, quite as much upon the nature of the Cabinet as upon tihe legal sovereignty of the English Parliament. But Cabinet government is inevitably marked by a defect which is nothing more than the wrong side, so to speak, of its merits. A parliamentary executive must by the law of its nature follow, or tend to follow, the lead of Parliament. Hence under a system of Cabinet government the administration of affairs is apt, in all its details, to reflect not only the permanent will, but also the temporary wishes, or transient passions and fancies, of a parliamentary majority, or of the electors from whose good will the majority derives its authority. A parliamentary executive, in short, is likely to become the creature of the parliament by which it is created, and to share, though in a modified form, the weaknesses which are inherent in the rule of an elective assembly.
The merits and defects of a non-parliamentary executive are the exact opposite of the merits and defects of a parliamentary executive. Each form of administration is strong where the other is weak, and weak where the other is strong. The strong point of a non-parliamentary executive is its comparative independence. Wherever representative government exists, the head of the administration, be he an Emperor or a President, of course prefers to be on good terms with and to have the support of the legislative body. But the German Emperor need not pay anything like absolute deference to the wishes of the Diet; an American President can, if he chooses, run counter to the opinion of Congress. Either Emperor or President, if he be a man of strong will and decided opinions, can in many respects give effect as head of the executive to his own views of sound policy, even though he may, for the moment, offend not only the legislature but also the electors. Nor can it be denied that the head of a non-parliamentary executive may, in virtue of his independence, occasionally confer great benefits on the nation. Many Germans would now admit that the King of Prussia and Prince Bismarck did, just because the Prussian executive was in fact, whatever the theory of the constitution, a non-parliamentary executive, pursue a policy which, though steadily opposed by the Prussian House of Representatives, laid the foundation of German power. There was at least one occasion, and probably more existed, on which President Lincoln rendered an untold service to the United States by acting, in defiance of the sentiment of the moment, on his own conviction as to the course required by sound policy. But an executive which does not depend for its existence on parliamentary support, clearly may, and sometimes will, come into conflict with parliament. The short history of the second French Republic is, from the election of Louis Napoleon to the Presidency down to the Coup d'État of the 2nd of December, little else than the story of the contest between the French executive and the French legislature. This struggle, it may be said, arose from the peculiar position of Louis Napoleon as being at once the President of the Republic and the representative of the Napoleonic dynasty. But the contest between Andrew Johnson and Congress, to give no other examples, proves that a conflict between a non-parliamentary executive and the legislature may arise where there is no question of claim to a throne, and among a people far more given to respect the law of the land than are the French.
Fifthly, the founders of constitutions have more than once attempted to create a governing body which should combine the characteristics, and exhibit, as it was hoped, the merits without the defects both of a parliamentary and of a non-parliamentary executive. The means used for the attainment of this end have almost of necessity been the formation under one shape or another of an administration which, while created, should not be dismissible, by the legislature. These attempts to construct a semi-parliamentary executive repay careful study, but have not been crowned, in general, with success.
The Directory which from 1795 to 1799 formed the government of the French Republic was, under a very complicated system of choice, elected by the two councils which constituted the legislature or parliament of the Republic. The Directors could not be dismissed by the Councils. Every year one Director at least was to retire from office. “The foresight,” it has been well said,
of [the Directorial] Constitution was infinite: it prevented popular violence, the encroachments of power, and provided for all the perils which the different crises of the Revolution had displayed. If any Constitution could have become firmly established at that period [1795], it was the directorial constitution.
It lasted for four years. Within two years the majority of the Directory and the Councils were at open war. Victory was determined in favour of the Directors by a coup d'état, followed by the transportation of their opponents in the legislature.
It may be said, and with truth, that the Directorial Constitution never had a fair trial, and that at a time when the forces of reaction and of revolution were contending for supremacy with alternating success and failure, nothing but the authority of a successful general could have given order, and no power whatever could have given constitutional liberty, to France. In 1875 France was again engaged in the construction of a Republican Constitution. The endeavour was again made to create an executive power which should neither be hostile to, nor yet absolutely dependent upon, the legislature. The outcome of these efforts was the system of Presidential government, which nominally still exists in France. The President of the Republic is elected by the National Assembly, that is, by the Chamber of Deputies and the Senate (or, as we should say in England, by the two Houses of Parliament) sitting together. He holds office for a fixed period of seven years, and is re-eligible; he possesses, nominally at least, considerable powers; he appoints the Ministry or Cabinet, in whose deliberations he, sometimes at least, takes part, and, with the concurrence of the Senate, can dissolve the Chamber of Deputies. The Third French Republic, as we all know, has now lasted for thirty-eight years, and the present Presidential Constitution has been in existence for thirty-three years. There is no reason, one may hope, why the Republic should not endure for an indefinite period; but the interesting endeavour to form a semi-parliamentary executive may already be pronounced a failure. Of the threatened conflict between Marshal MacMahon and the Assembly, dosed by his resignation, we need say nothing; it may in fairness be considered the last effort of reactionists to prevent the foundation of a Republican Commonwealth. The breakdown of the particular experiment with which we are concerned is due to the events which have taken place after MacMahon's retirement from office. The government of France has gradually become a strictly parliamentary executive. Neither President Grévy nor President Carnot attempted to be the real head of the administration. President Faure and President Loubet followed in their steps. Each of these Presidents filled, or tried to fill, the part, not of a President, in the American sense of the word, but of a constitutional King. Nor is this all. As long as the President's tenure of office was in practice independent of the will of the Assembly, the expectation was reasonable that, whenever a statesman of vigour and reputation was called to the Presidency, the office might acquire a new character, and the President become, as were in a sense both Thiers and MacMahon, the real head of the Republic. But the circumstances of President Grévy's fall, as also of President Casimir Périer's retirement from office, show that the President, like his ministers, holds his office in the last resort by the favour of the Assembly. It may be, and no doubt is, a more difficult matter for the National Assembly to dismiss a President than to change a Ministry. Still the President is in reality dismissible by the legislature. Meanwhile the real executive is the Ministry, and a French Cabinet is, to judge from all appearances, more completely subject than is an English Cabinet to the control of an elective chamber. The plain truth is that the semi-parliamentary executive which the founders of the Republic meant to constitute has turned out a parliamentary executive of a very extreme type.
The statesmen who in 1848 built up the fabric of the Swiss Confederation have, it would seem, succeeded in an achievement which has twice at least baffled the ingenuity of French statesmanship. The Federal Council of Switzerland is a Cabinet or Ministry elected, but not dismissible, by each Federal Assembly. For the purpose of the election the National Council and the Council of States sit together. The national Council continues in existence for three years. The Swiss Ministry being elected for three years by each Federal Assembly holds office from the time of its election until the first meeting of the next Federal Assembly. The working of this system is noteworthy. The Swiss Government is elective, but as it is chosen by each Assembly Switzerland thus escapes the turmoil of a presidential election, and each new Assembly begins its existence in harmony with the executive. The Council, it is true, cannot be dismissed by the legislature, and the legislature cannot be dissolved by the Council. But conflicts between the Government and the Assembly are unknown. Switzerland is the most democratic country in Europe, and democracies are supposed, not without reason, to be fickle; yet the Swiss executive power possesses a permanence and stability which does not characterise any parliamentary Cabinet. An English Ministry, to judge by modern experience, cannot often retain power for more than the duration of one parliament; the Cabinets of Louis Philippe lasted on an average for about three years; under the Republic the lifetime of a French administration is measured by months. The members of the Swiss Ministry, if we may use the term, are elected only for three years; they are however re-eligible, and reelection is not the exception but the rule. The men who make up the administration are rarely changed. You may, it is said, find among them statesmen who have sat in the Council for fifteen or sixteen years consecutively. This permanent tenure of office does not, it would seem, depend upon the possession by particular leaders of extraordinary personal popularity, or of immense political influence; it arises from the fact that under the Swiss system there is no more reason why the Assembly should not re-elect a trusted administrator, than why in England a joint-stock company should not from time to time reappoint a chairman in whom they have confidence. The Swiss Council, indeed, is—as far as a stranger dare form an opinion on a matter of which none but Swiss citizens are competent judges—not a Ministry or a Cabinet in the English sense of the term. It may be described as a Board of Directors appointed to manage the concerns of the Confederation in accordance with the articles of the Constitution and in general deference to the wishes of the Federal Assembly. The business of politics is managed by men of business who transact national affairs, but are not statesmen who, like a Cabinet, are at once the servants and the leaders of a parliamentary majority. This system, one is told by observers who know Switzerland, may well come to an end. The reformers, or innovators, who desire a change in the mode of appointing the Council, wish to place the election thereof in the hands of the citizens. Such a revolution, should it ever be carried out, would, be it noted, create not a parliamentary but a non-parliamentary executive.
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