The Online Library of Liberty

A project of Liberty Fund, Inc.

• United States Prefatory Note
• Chapter XXXVIII: The Beginnings of Democracy In North America
• Chapter XXXIX: The Frame of Government : State, Local, and Federal Constitutions
• Chapter Xl: the Party System
• Chapter Xli: the Actual Working of the National and State Governments
• Chapter Xlii: the State Governments In Their Working
• Chapter Xliii: the Judiciary and Civil Order
• Chapter Xliv: Public Opinion
• Chapter Xlv: Recent Reforming Movements
• Australia
• Chapter Xlvi: Australian History and Frame of Government
• Chapter Xlvii: Australian Legislatures and Executives
• Chapter Xlviii: the Executive and the Civil Service
• Chapter Xlix: Australian Parties and Policies
• Chapter L: Questions Now Before the Australian People
• Chapter Li: Labour Policies and Proposals
• Chapter Lii: Characteristics of Australian Democracy
• New Zealand
• Chaptee Liii: the Country and Its First Half Century of History
• Chapter Liv: Richard Seddon and His Policies
• Chapter Lv: Compuisoby Aebiteation In Tbade Disputes
• Chapter Lvi: the Working of the Government
• Chapter Lvii: Results of Democratic Government
• Part Iii
• Chapter Lviii: the Decline of Legislatures
• Chapter Lix: the Pathology of Legislatures
• Chapter Lx: the Executive In a Democracy
• Chapter Lxi: Democracy and Foreign Policy 1
• Chapter Lxii: the Judiciary
• Chapter Lxiii: Checks and Balances
• Chapter Lxiv: Second Chambers
• Chapter Lxv: Direct Legislation By the People
• Chapter Lxvi: the Relation of Central to Local Government
• Chapter Lxvii: Comparison of the Six Democratic Governments Examined
• Chapter Lxviii: Types of Democratic Government
• Chapter Lxix: the Money Power In Politics
• Chapter Lxx: Responsibility
• Chapter Lxxi: Democracy and the Backward Races
• Chapter Lxxii: the Relation of Democracy to Letters and Arts
• Chapter Lxxiii: the Results Democratic Government Has Given
• Chapter Lxxiv: Democracy Compared With Other Forms of Government
• Chapter Lxxv: Oligarchies Within Democracies
• Chapter Lxxvi: Leadership In a Democracy
• Chapter Lxxvii: the Later Phases of Democracy
• Chapter Lxxviii: Present Tendencies In Democracies
• Chapter Lxxix: Democracy and the Communist State
• Chapter Lxxx: the Future of Democracy

CHAPTER LIX

the pathology of legislatures

As new maladies assail the human body with advancing age or when the external conditions of life are changed, so with the progress of the years unforeseen weaknesses are disclosed in political institutions. The thinkers and statesmen of last century either did not discern or gave little thought to several such weaknesses incident to representative assemblies which have now begun to cause concern. Five of these chronic ailments, some of which have been briefly adverted to in the last chapter, deserve examination.

I. First comes the practice of what is called in England Obstruction, in America Filibustering, in Australia Stonewalling, in Germany Dauerreden, i.e. the systematic effort to delay the progress of business by speaking against time, or by a series of motions (usually amendments to a Bill) which are intended to keep the assembly as long as possible from reaching a decision on the main question before it. In a mild form this must have been an old device, pardonable or even justifiable when a party that found itself in a temporary majority tried to snatch a division. It could also be excused when employed as an honest protest by a minority which felt that it had not been allowed a fair chance of stating its case. In our times it has, however, been systematically used to paralyse the action of a legislature. In England, whose Parliament was formerly distinguished for a decorous propriety in the conduct of business, obstruction was raised to the level of a fine art,1 with the result not only of obliging the majority to spend excessive time over their measures, but of discrediting the House of Commons itself. The temptation to resort to it is strongest in countries living under the so-called “Cabinet” or “Parliamentary system,” because in them the fortunes of the Administration are associated with the measures it proposes, so that when an important Bill fails for want of time to be passed, or when the disproportionate expenditure of time upon it compels the abandonment of other measures, the Cabinet suffers, having been unable to fulfil promises made to its supporters. In such countries, therefore, an Opposition is often tempted to waste time, for even if the particular measure obstructed is not disliked on its merits, the Ministry is prevented from proceeding to other measures which are actually so disliked, and is thus made to seem impotent in the eyes of the electors. This abuse of the right of free discussion has, in most countries, compelled the adoption of rules enabling the majority to close debate and proceed to an immediate vote. Such rules, however necessary as a remedy, are themselves an evil, for they are in turn abused to pass measures which, having been imperfectly discussed, will probably prove faulty when they come to be applied. No remedy, except closure, has yet been discovered against obstruction, nor any for the misuse of closure itself. In England the Administration, when it suffered from the former, used to believe that the electors would punish obstructionist members by refusing to re-elect them, and these members, when silenced by the closure, likewise believed that the electors would commiserate them and condemn the Administration. But neither of these things happened. The electors did not examine the merits of the quarrel, but blamed both parties, and regretted the good old days when neither majority nor minority pressed its rights to their utmost legal limit.

Obstruction is only one of the causes which have made it difficult for representative assemblies to meet the demands for legislation, more numerous now' than ever before, that are made upon them. In France, in the United States, in England, arrears accumulate for overtaking which no means has yet been discovered.1

II. A comparatively new feature in representative assemblies is the multiplication of parties. Most countries began with two — the party of Advance, called in England Whigs, and afterwards Liberals, and the party which defended existing conditions, called Tories or Conservatives. So in France there was the conservative party of the Right, and the party of the Left which pressed for changes, the former generally monarchical in its sympathies, the latter republican. But latterly, partly by the splitting up of these old parties, partly by the emergence of new issues, sometimes of race, sometimes of religion, sometimes of class, parties have grown more numerous. In the British House of Commons there were in 1914 three well-organized parties to which two or three much smaller groups have now been added. In the German Reichstag there were in 1914 five or six,1 while in the French Chamber the eleven or twelve of 1914 have been but slightly reduced in number.

When a phenomenon appears simultaneously in several countries, one must search for a generally operative cause. Such a cause may be found in the fact that whereas the middle of last century was an era of destruction, when monarchical or oligarchic institutions were being rejected in favour of more popular forms of government, all the advocates of reform, while differing on some points, could agree in getting rid of what had become odious or obsolete. When, however, the work of construction had to be undertaken, divergences appeared between sections each of which had schemes of its own to propound. Thus Radicals drew apart from Liberals, and the classes which had special grievances tended to form class parties. Nevertheless there were also at work other causes, varying in different countries. Among these were Race and Religion. In Germany a Roman Catholic party arose many years ago, while the Poles formed a group by themselves. In the United Kingdom the sentiment of Irish nationality created a third party opposed to Liberals and Tories alike. In France the Catholic Church has kept alive a party which was at first Monarchist and still resists the anti-clerical Republican majority. This has happened in Holland and Belgium also. In Canada a Farmere' party, and even in Switzerland a Peasants' party, has arisen. In these countries, as well as in Britain and Australia, Socialist or Labour parties have evolved themselves on a basis partly of class interest, partly of theoretic doctrine. Only in the United States have the two old-established parties been strong enough to maintain their supremacy, doing this the more easily because it is not Congress but a vote of the people every four years that gives executive power to one or other party, so that the legislature is not, as in “Parliamentary countries,” the centre of political conflict.1 That Republic has thus escaped two unfortunate results which the Group system has produced in countries lying under the Parliamentary Frame of Government. One is the instability of Cabinets, the other the difficulty of carrying through controversial legislation. Where there are more than two parties, it is probable that no one party may hold a majority of the whole Chamber. The Executive, being dependent on the support of a majority, is in such cases liable to be defeated by any combination of the minority parties, and when power passes to the larger of those minorities, the new Executive, consisting of the chiefs of that party, is exposed to a like peril. This affects not only the tenure of office but the consistency and thoroughness of legislative measures, which have to be so framed as to obtain from members of the Opposition parties a support sufficient to enable them to pass. The only remedy lies in the making of bargains between the Executive and the leaders of one at least of the Opposition parties, thus creating a combination capable of keeping the Executive in power and helping it to pass some of its Bills; but such combinations are unstable, and legislation passed under such conditions becomes a matter of compromise, showing the faults incident to measures founded on no clear principle. Sometimes a minority party can, as the price of its support, extort from the party in power measures which the bulk of that party dislikes, and which may not express the general will of the nation.2 For these evils, such as they are, members of the legislatures cannot be blamed. The sources lie in the nature of a representative system; and though racial and even religious antagonisms may in time by a process of assimilation disappear from the greater countries, the social or economic bases of parties are likely to last so long as no single type of economic doctrine becomes completely dominant. Within the party of Advance there will always be some desiring to move faster than others, and theorists, attracting bands of followers, will point out various paths into the Promised Land.

III. From groups in the legislatures one may pass to note the results of the existence in the electorate of small sections which exercise a power disproportionate to their numbers. Where electors having a personal interest, such as a particular trade (e.g. dealers in intoxicating liquors), or the votaries of a particular view, such as anti-vaccinationists, regard their special interest or tenet as of supreme importance, they are apt to make their support of a candidate depend on his promising to support it in the legislature, and where the contest is likely to be close, the candidate will probably give the promise. Thus the interest or view, possibly little better than a fad, secures an artificial support in the legislature, and the real wishes of the electors are misrepresented. In Britain, for instance, the postal and telegraph clerks were (in the larger towns) accustomed to tell a candidate that they would vote for or against him according as he promised or refused to promise to support in Parliament their demand for higher salaries; and by this method they secured in the House of Commons a majority of votes which represented not the views of the electors generally, nineteen-twentieths of whom took no interest in the matter, but only the pliability of complaisant candidates, so that the Ministry, which wished to resist the demand, found itself overborne. It is a weakness of the representative system that it gives undue importance to any section which, forgetting its duty to the whole community, puts its vote up to be bid for by a candidate to whichever party he may belong. In Australia such action by the railway employees once gave rise to serious trouble.

IV. To understand another malady which now threatens the utility of representative assemblies we must cast a glance back into the history of the representative system. It began in the Middle Ages with the sending to the national council, presided over by the King, of persons deputed to grant to him money for the State services, and was also used for the promulgation of the few laws which were then passed, the chief of which, in England, related to the tenure of land. I take England as the example to be described because in it the representative system has had an unbroken career, now continued in other English-speaking countries. The earliest representatives had a simple duty, that of granting money to the Crown for the national services. By degrees the House of Commons drew to themselves larger and larger powers in legislation and delivered their views on the great political issues of the time. Members were understood to be expressing the general mind and will of those who dwelt in the shires and boroughs whence they came, and they usually did so.1 Little question was raised as to their obligation to precisely ascertain and obediently convey exactly what their electors desired. Practically they had a wide discretion, and felt themselves to be not merely representatives of particular localities, but also members of the Great Council of the Nation, successors of the (non-representative) Witan of Old England before the Norman Conquest, the Wise Men who were wont to consult with the Sovereign on all great matters touching the welfare of the realm, bringing to those matters not only the will of their constituents but their own wisdom, and therefore a freedom which could not be limited by positive instructions, because it was to be exercised after hearing what the Sovereign and his advisers, as well as their own colleagues, had to say to them. There were then, be it remembered, no newspapers, and public opinion expressed itself upon very few subjects. Broadly speaking, it was not till the eighteenth century that the question was seriously mooted how far a member's duty was to think, speak, and vote according to his personal views or according to the views of the majority of his constituents. The point was discussed by Edmund Burke in his famous letter to the Sheriffs of Bristol. His argument that the member is not and ought not to be a mere delegate held the field till in our own time the stress laid upon the principle of popular sovereignty has led many to contend that in a true democracy the representative must be nothing more than a sort of conduit-pipe conveying the will of those who elected him. The growth of party organization makes possible the application of the principle, for the political committee which exists in each constituency can watch the votes of its member and is likely, especially if so requested by the Central Office of the party to which he belongs, to warn him that he must give unquestioning support to the party leaders.

The various views held regarding the grounds for choosing a representative, and the duties incumbent on him, may be reduced to three theories or types of theory.

• (1) He may be chosen as the person whom the constituency selects to urge its special local demands, to state its special grievances, to obtain for it from the Government a full share of whatever is going in the way of money grants for local purposes, or any other favours.
• (2) He may be chosen as a person eminently fitted by character and attainments to meet and consult with other representatives in the council of the nation on public affairs, while also in accord with the general views of the constituency regarding those affairs.
• (3) He may be chosen as a spokesman of the party which holds a majority in the constituency, bound, whatever his personal opinions on any question, to speak and vote as the majority commands him, being thus a sort of telephone wire by which it transmits its wishes. This is the doctrine of the mandat imperatif, and has been strongly urged by those who carry furthest the belief that the people, i.e. the whole mass of voting citizens, hold a definite opinion and are prepared to declare their will regarding every question of some moment. Any other kind of representation seems to them undemocratic and delusive.

It is possible that the same man may combine the qualifications and fulfil the duties required and imposed by the first and third theories. He may serve the constituency for its local purposes and the party for its national as well as for local purposes. But he could not at the same time discharge also the duties prescribed by the second theory. No man can serve two masters. Cases arise in which the demands of a locality or the commands of a party are at variance with the interests of the nation, and the honest man who perceives this variance will have to sacrifice one or other. The third theory makes his duty to the party majority paramount.

Are there not here two duties each in itself clear, but at moments incompatible in practice? One duty of a member is that of securing full weight in Parliament for the opinion of his constituents, both as to the persons to be entrusted with executive power and as to the laws to be passed. The other duty, owed to the nation, is that of supporting whatever action, legislative or administrative, he believes to be best for the national interests. Does democratic theory require him to give a vote which his own judgment holds to be against those interests? Is he to be the mouthpiece of views he thinks mistaken? The matter is not so simple as it seems. The member may have been elected some while ago and conditions may have changed. Ministers may have so acted as to weaken the confidence his constituents then reposed in them. The question on which he has now to vote may be one on which he gave as a candidate no pledge, or maybe one which nobody foresaw at the time of the election. When his constituents chose him, can they have meant that he was not to profit by what he has learnt from debates in the legislature? If so, why have debates? It may be impossible for him to ascertain how the majority of his constituents would view the particular question now at issue. He may of course consult the local committee, but such a committee being usually more partisan than is the majority of his party, will probably tell him to support his party leaders, being naturally biassed in their favour whatever their conduct. Why should he become the slave of a small caucus? The electors must have meant to leave him some discretion, though it is hard to say how much.

It would seem, then, that the only way in which the system of the imperative mandate could be worked in practice would be to have in each constituency a committee constantly instructing the member how to vote, and for that purpose summoning a meeting of the party electors whenever an important issue arose. The objections to this need no stating. The only way in which a member could defend himself from charges of breach of faith to his electors would be by his announcing while a candidate that he reserved his freedom upon all questions save those on which he gave a positive and definite pledge.

One thing is clear. If a representative so dislikes the whole policy of his own party as to wish to cross over to the other, his duty is to resign his seat forthwith. This is now the rule in Great Britain. So, too, if his opinions have so changed as regards one important measure that, having been elected to advocate it, he can do so no longer, he must resign. But where the Executive Ministers have announced a new policy on a new issue, is he bound to follow them into it because the bulk of their and his party supports them in it? This question arose in England when a large majority of the Conservative party adopted a Protectionist policy in 1904–5. It arose in 1899 when the Government of that day entered on the South African War. One of their supporters, a member of high personal character, who had been resident in South Africa and knew its condition, disapproved of their policy and spoke against it in Parliament. The issue was a new one, but his local committee, apparently with the support of the local majority, called on him to resign. Nevertheless he retained his seat till the next general election and seemed to be generally held justified in doing so.

The present tendency in England is to make the member more distinctly a delegate than he is in France or Italy, where people pass lightly from one to another of the various Liberal and Radical groups,1 or than he is in America, where a straight party vote is exacted only on the main points of the party programme. In Switzerland the Constitution declares that he is not to consider himself a delegate, and the recent constitution of Esthonia enunciates the same view. To press hard the doctrine that a member is a mere delegate would result (a) in deterring men of independent character from entering Parliament; (b) in reducing the value of Parliamentary debate; (c) in increasing the control of local party committees; and (d) in making a Cabinet even more powerful over its followers in Parliament than it now is.

V. There remains to be mentioned a more serious menace to the healthy action of representative bodies.

Every party in a legislature is strong not only by its numbers but by its unity, i.e. by the freedom from internal dissensions which enables it to bring to bear its full strength and cast a unanimous vote on every important occasion. When a party has a definite programme and is earnest in pushing that programme, it may require those whom it approves as candidates to promise to hold together in the legislature and vote as one united body. They may be content to pledge themselves at their election to every item in the formally adopted party programme, and to give their votes accordingly. But as that document, like every other document, needs to be interpreted and applied to the circumstances of each case as it arises, this plan might not always secure unity, for members might interpret its terms differently, and circumstances might make the particular terms inapplicable. Hence some organizations have gone further by requiring candidates to undertake that they will, if elected, always obey any direction which the majority of the party in the legislature, assembled in a secret conclave — such as is called in America a “party caucus” — may pronounce. The member who has given such a promise foregoes his independence. He has his chance of influencing his colleagues in the conclave, but when a decision has proceeded from the majority of those present and voting, he, whether present or absent, will be bound, irrespective of his own convictions, to obey that decision.

This method enhances the power of a compact Group whether the group be a majority or minority of the whole Chamber. If it be a minority, the group are in a strong position to deal with the leaders of the majority party, for whenever the latter feel doubtful of success in a division, owing to differences in their own ranks, the group may offer to give its solid support upon certain terms favourable to themselves, and may thus extort from the other dominant party something the group desires. If, on the other hand, the group constitute a majority in the Chamber, it is omnipotent. The ball is at its feet; it can count on passing all its measures, and need not trouble to expound or defend proposals in debate except for the purpose of saving appearances and putting its case before the country. It has only to go on voting steadily what has been previously determined on in secret, uninstructed and unmoved by arguments from any other part of the Chamber, because there is no need for listening to words which cannot affect its predetermined action. The Chamber having ceased to be deliberative has become a mere voting machine, the passive organ of an unseen despotism. It may have even ceased to express the national will, for the majority of a majority party does not necessarily represent the view of the majority of the whole Chamber. Assume that whole Chamber to consist of 210 members, 110 of whom constitute the ruling Group. Suppose the majority of that group who decide upon a particular course to be 60 against 50 dissentients. Add to these fifty the hundred other members of the Chamber who are also opposed to the course proposed. That course will be carried by a compact majority of 110 against 100, although if the real opinion of the members were expressed by the vote, it would be rejected by 150 against 60. If we were to try to ascertain the probable will of the people on the matter by examining the popular majorities in each constituency by which the 60 members whose vote in caucus prevailed had been elected, as compared with the number of votes cast for the 150 members who disapproved, the contrast between the true popular will and the decision rendered by those who are supposed to represent it in the Assembly might become still more evident. Yet by this method of subjecting the whole Assembly to a bare majority of a majority the most far-reaching and possibly irrevocable decisions might be taken.

This may seem a sorry result for representative government to have reached, yet it is a logical and legitimate development of the principle of Majority Party Rule and there seems to be no remedy except by invoking the whole people to pass judgment upon Bills by a Referendum.

The Parliamentary caucus system here described was invented by the Irish party in the British House of Commons and worked there from 1880 to 1918. In its first ten years it proved effective, turning out two Ministries in succession after obtaining large concessions from each. It has also been practised with success in the legislatures of the Australian States and in that of the Federal Commonwealth. It has been to some extent adopted as regards various subjects by Socialist parties in the Trench Chamber, and may spread wherever party spirit is strong enough to induce men to subordinate their views and wills to the attainment of a few aims they are united in desiring. The requisites for its existence are two — a definite programme and a fervent party zeal. The presence of a strong-willed leader, able by his hold on the party outside the Chamber to maintain discipline among his followers within it, facilitates its work. C. S. Parnell's possession of the advantages mentioned counted for much, but the Australian Labour parties have won their victories mainly by the loyal cohesion of their members and the pressure of the outside Labour organization to which all are responsible.

Every one of the defects in or perversions of representative government which I have enumerated arises naturally out of the conditions of political life, and none is peculiar to countries living under universal suffrage. In particular, Obstruction and the rule of a legislative caucus are natural weapons of war, ready to the hand of party spirit. No attempt to deal by law with any of these evils has a promise of success. They can be cured only by the action of public opinion, which can show its displeasure at practices that lower the character and utility of representative assemblies. But opinion is in most countries too much absorbed with the economic and social aims to which legislation should be directed to give due attention to legislative methods, and the leaders of a party are usually too eager for a temporary victory to forgo the means, however dangerous for the future, by which victory may be won. It is not that they are short-sighted: many foresee clearly enough the consequences of their acts: it is that in politics most men are prone to sacrifice the future interests of the nation to the temporary interests of the party, or, to give them the benefit of a common excuse, to attain by pernicious means a laudable end.

Though the dignity and moral influence of representative legislatures have been declining, they are still an indispensable part of the machinery of government in large democracies, since it is only in comparatively small populations that citizens can be frequently summoned to vote by Referendum and Initiative. Hence the quality of a legislature, the integrity and capacity of its members, the efficiency of the methods by which it passes laws and supervises the conduct of the Executive, must continue to be of high significance to a nation's welfare. The dictum of a legal sage in the seventeenth century, “England can never be ruined except by a Parliament,” is true to-day of all countries in which the Parliamentary system exists, and is still able to hold its ground against revolutionary forces.

[1]Some remarks of the Lord Chancellor in the House of Lords, in March 1919, during a debate on Devolution, contain an instructive account of the methods practised in the House of Commons.

[1]In Britain proposals have been made for a scheme of federalization or devolution creating local assemblies to relieve Parliament.

[1]It is not yet possible to define the position in the Reichstag of 1920.

[1]In the United States, moreover, the elements of religious animosity are absent. See as to the causes which have prevented the new parties that have been launched in America from maintaining themselves against the old parties Chapters on the U.S.A. in Part II.

[2]See as to these phenomena in Australia Chapters on that country in Part II.

[1]Though in Tudor and early Stuart times the Crown, by giving the right of representation to many insignificant boroughs in which it could control the electors, tried to secure the presence of persons subservient to its will.

[1]In France, however, party discipline is rigid among the Socialists, who are the best organized party.