Rights of citizenship, a survey of safeguards for the people;

• RIGHTS •

^ or '■^

CITIZENSHIP

A SURVEY OF

SAFEGUARDS

FOR THE

PEOPLE

MARCtUESS OF LaNSDOWNE. K C

Sir William R.Anson, bt„m r
F.E.Smith, K.c.,MR

LORD>X'![LLOUGHBY DE BROKE,

Professor AV Dicey. Dici,LL.ft
Viscount Midleton
Sir Robert Finlay, o.cm.g., k.c.,m.p.
Lord Hugh Cecil, m.p
Earl of Selborne, kg.

RIGHTS OF CITIZENSHIP

RIGHTS OF

CITIZENSHIP

A SURVEY OF
SAFEGUARDS FOR THE PEOPLE

BY

SIR WILLIAM R. ANSON, Bart., M.P.

F. E. SMITH, K.C., M.P.

LORD WILLOUGHBY DE BROKE

PROFESSOR A. V. DICEY, D.C.L., LL.D.

VISCOUNT MIDLETON

SIR ROBERT FINLAY, G.C.M.G., K.C., M.P.

LORD HUGH CECIL, M.P.

THE EARL OF SELBORNE, K.G.

WITH PREFACE BY

THE MARQUESS OF LANSDOWNE, K.G,

LONDON """^1 \q

FREDERICK WARNE & CO

AND NEW YORK
1912

(A II H^his reserved)

^-■m^

PREFACE

By the marquess OF LANSDOWNE, K.G.

The writers of the essays included in this volume
seem to me to be rendering a great service to the
public at a time when that service is urgently
needed. It has been their aim to lay before their
readers in broad outline, and with as little techni-
cality as possible, some of the aspects of a question
infinitely more important than any other, upon
which the people of this country will have to decide
for themselves within the next few years.

The Constitution is in abeyance. It cannot be
allowed to remain in abeyance. Under what kind
of a Constitution do we intend that we shall be
governed when the present period of chaos has
been brought to an end? This question is not
merely one of a number of outstanding questions.
It is the master-question, and upon the manner in
which the country answers it will depend the
whole future of our country and of the Empire.

Before such a question can be answered, it is
necessary that those who will have to answer it
should know something of the working of the old
Constitution, something of the treatment which it
has lately received, something of the possibilities
indicated by the experience of other nations and
of our own Dominions.

VI PREFACE

There are few of us who do not feel that our
education has been neglected at this point. Con-
stitutional history and constitutional law do not
necessarily form part of what is vaguely spoken
of as "a liberal education." They are certainly not
taught in the schools frequented by the mass of
those upon whose votes will depend the ultimate
decision of this and all other political questions.
Even upon the platform and in the Press it is only
of late that constitutional issues have become as
prominent as they have.

To many, the mere fact that a problem is a
constitutional problem is enough to stamp it as
something abstruse and remote, and a speaker
addressing a popular audience upon such a subject
will probably apologize for its dryness, while his
hearers, even if they give him their attention,
will at best be under the impression that they
are discussing a question which stands on a par
with a whole row of others representing the
ordinary stock-in-trade of the party politician.

We have indeed been content until lately to
look at the quality of our legislation without en-
quiring particularly into the efficiency of the
machine by which our laws are turned out, and
if we have thought about constitutional change
at all it has probably been only in connection
with occasional Reform Bills which, whatever
their merits or demerits, have all of them been
framed professedly for the purpose of bringing
the Legislature into closer touch with the feelings
and aspirations of the people. But we have yet,
I am afraid, as a people, to grasp the great fact
that there is a difference in kind between
ordinary legislation and legislation which has

PREFACE vii

for its object, not to amend or repeal a parti-
cular law, but to alter fundamentally the organic
machinery by which all laws are made.

The issue has been still further obscured owing
to the fact that the subject is so closely connected
with that of the composition of our own Second
Chamber. Many of those who are aware that
there ts a constitutional problem, have most likely
supposed that it was concerned merely with the
conduct of the House of Lords in declining to
pass several conspicuous measures, and finally the
Finance Bill of 1909, without distinct authorization
from the electorate. Such persons have probably
been dissatisfied with the composition of that
House, which, as we are often and properly
reminded, has itself admitted that it stands in need
of thorough reform. They resent the idea that a
Chamber constituted on so undemocratic a basis
should have been able to impede the breathless
progress of Radical legislation; but they have
not realized the danger of stopping short at
the point which we have now reached, nor have
they perhaps given a serious thought to the new
safeguards which must be set up in place of the
mis-called "Veto" of the House of Lords, unless
the country is to be left at the absolute mercy of
that which the Prime Minister, in historic phrase,
described as '^a scratch majority." They accord-
ingly submit to being put off with the nebulous
promise of a reformed Second Chamber, embodied
in a Preamble which has become a by-word — a
promise which has been described by its authors
as an obligation of honour, to be, if possible,
fulfilled within the lifetime of the present Parlia-
ment, but of which one may say, without any

viii PREFACE

imputation of bad faith to the minister responsible
for this hasty pledge, that no one now believes for
a moment that it will be redeemed.

Those who watch these events are still more
puzzled when they observe that under the Home
Rule Bill, as introduced in the House of Commons,
they are asked to give their adhesion to brand-new
principles of constitutional reform for the sister
island— principles which include, inter alia^ a
Second Chamber based upon nomination, together
with Joint Sittings of the two Irish Houses of
Parliament. These startling innovations are to
take place, apparently, without a thought of the
lines upon which the new Constitution of the
United Kingdom is to be constructed, and in spite
of the admission that the grant of a new Constitu-
tion to Ireland may have the effect of ''precipitating"
analogous, though possibly quite dissimilar, changes
in the government of Scotland, Wales, and pre-
sumably England also ; while as if this were not
enough there are not wanting hints that we are to
look forward to an even vaster scheme of recon-
struction which shall include not only the British
islands, but the whole of the British Empire.

The country has only to realize the naked facts
of the case in order to realize also the outrage
which is being put upon it when, with such
possibilities looming in the distance, it is asked to
sit down for an indefinite time amidst the ruins of
the old Constitution, without any security that the
task of setting up a new one will be seriously
attempted, and without any safeguards against the
perils to which the nation is inevitably exposed in
the interim.

The space at my command docs not permit me

PREFACE ix

to elaborate a description of those perils. A well-
known writer, the late Professor Henry Sidgwick,
has laid it down that a Second Chamber " is useful
in checking hasty legislation, impeding combina-
tions of sinister interests, and supplementing
the deficiencies of the primary representative
Assembly." Looking at the question from Pro-
fessor Sidgwick's point of view, will any one be
found so courageous as to maintain that a Second
Chamber, and a Second Chamber possessing sub-
stantial powers, is a superfluity in this country?

Are there no examples of hasty legislation to
which we can point ? Will any member of the
House of Commons venture to say that a Chamber
the members of which have lately voted themselves
handsome salaries, which they can, if they please,
themselves double at any moment by a mere vote,
a Chamber in which the existence of the Govern-
ment depends upon the support of a number of
groups, each of which in turn has to be propitiated,
may not at times find itself at the mercy of " sinister
interests," or to contend that a House has no
'deficiencies to supplement" when it so completely
misrepresents the electorate that while three con-
stituencies, with one member apiece, together have
137,000 electors, a smaller number of electors at
the other end of the list are represented by no
fewer than 38 members? Is not the very fact
that a Franchise Bill is now before Parliament a
recognition that such deficiencies exist ?

Are our people aware that a revolution has taken
place, and that there is no country in the world
in which such a revolution could have taken place
and have been brought about by such methods ?

Are they aware that in the principal European

X PREFACE

States the legislative powers of both Houses are
practically equal, and that in the large majority of
cases a distinction is made between ordinary legis-
lation and changes in the Constitution, special
safeguards being insisted upon in order to prevent
what may be termed structural alterations of the
constitutional fabric ?

Do they know that in some cases, and particularly
in that of the United States, these safeguards form
a rampart so insurmountable as to render consti-
tutional change almost impossible ?

Have they considered that in the Constitutions
of our own colonies analogous safeguards find a
place, that in each of the three great Dominions
the legislative powers of both Houses of Parlia-
ment are equal, and that, in two out of the three,
special precautions are insisted upon in the case
of constitutional changes?

Have they endeavoured to familiarize them-
selves with the nature of any of these precautionary
measures ? How much, for example, do they
know of the conditions under which, by means of
a Referendum, it is possible in some of our great
colonies to make a supreme appeal from the
representatives of the people to those whom they
claim to represent — an appeal disentangled from
other issues, and focussed upon the particular
point in dispute ?

Do they realize that the present Government
has taken advantage of its opportunities in order
to deprive this country of the only safeguard
which, until last year, it possessed under the un-
written Constitution which has hitherto sufficed
for our needs ?

Do they perceive that, this safeguard having

PREFACE xi

disappeared, a minister, if he can obtain, no matter
by what means, the necessary amount of support
in the House of Commons, can impose upon the
country still further alterations of the Constitution
— changes perhaps forced upon him by a faction
with whose support he cannot afford to dispense ?

Meanwhile all who bestow attention on passing
events, certainly all who look below the surface,
are dismayed at the present working of the political
machine. Knowing that their powers of effectual
resistance have disappeared, and that, if ministerial
intimations are to be credited, they are to be
superseded by a new body, small in numbers and
constituted upon a purely elective basis — one,
therefore, in which few of the present members
of the House of Lords are likely to find a place —
the Peers exhibit the listlessness which might
naturally be expected from a doomed Assembly,
and devote the energy, ability and experience so
conspicuously possessed by many of them to other
work.

The House of Commons, knowing that the
House of Lords will probably consider itself not
only entitled, but bound, to exercise the suspensory
powers expressly entrusted to it by the Act of
last year, is described as taking a languid and
perfunctory interest in its work.

The country, because it realizes imperfectly the
tremendous gravity of the situation, is thinking of
such matters as Home Rule, or the Insurance Act,
rather than of the Constitution under which it is
governed.

The pages which follow have been written in
the hope that they may help those who read
them to grasp the situation which we have to

xii PREFACE

face. But to recognize the gravity of the situa-
tion is also to recognize that a new Constitution
must emerge from the ruins of the old, and it
is beyond question that, even if the present
Government palters w^ith its task, their successors
v^ill realize the solemnity of the obligation
v^hich will rest upon them.

One word more. By whomsoever the new
Constitution is constructed, it cannot be imposed
upon a puzzled and reluctant country. Our people
must be taught to feel that this is not only a live
question, but one which, on account of its far-
reaching scope, because of the fact that it is
fundamental, should rank in the public mind far in
front of all other questions.

The authors of these chapters desire to
awaken interest in these problems, rather than
to suggest the lines upon which they might be
solved. They are no doubt ready to do this also ;
some of them have done it already. But their
object on this occasion is not to press upon the
public this or that remedy, but to give some idea
of the gravity of the disease. When that is under-
stood, the common-sense of our people will not be
slow to discern the dangers to which a purely
destructive policy has exposed us, and to determine
the broad lines upon which adequate measures of
precaution must be framed.

CONTENTS

PREFACE V

By the Marquess of Lansdoivne, K.G.

CHAPTER

I. The Growth and Modern Development of

THE British Constitution . . . . i

By the Rt. Hon. Sir William R. Anson, Bart., M.P.

II. The Parliament Act considered in Relation

to the Rights of the People ... 26
By theRt. Hon. F. E. Smith, K.C., M.P.

III. The Constitution and the Individual . , 44

By Lord Wi I lough by de Broke.

IV. The Parliament Act, 1911, and the Destruc-

tion OF ALL Constitutional Safeguards . 81
By Projessor A. V. Dicey, D.C.L., LL.D.

V. The House of Lords and the Civil War . 108

By Viscount Midleton.

VI. Constitutional Safeguards in the British

Dominions and in Foreign Countries . 122

By the Rt. Hon. Sir Robert Finlay, G.C.M.G.,
K.C.,M.P.

VII. Second Chambers in the British Dominions

AND IN Foreign Countries . . . .159

By Lord Hugh Cecil, M.P.

VIII. The Referendum 198

By the Earl o/Selborne, K.G.

The Parliament Act, 1911 233

Index 237

RIGHTS OF CITIZENSHIP

CHAPTER I

THE GROWTH AND MODERN DEVELOPMENT
OF THE BRITISH CONSTITUTION

By the Rt. Hon. Sir William R. Anson, Bt., M.P.

The essays to which this chapter forms an intro-
duction are designed to set forth the securities
which exist in other countries, and which, till lately,
existed in the United Kingdom, that the institutions
under which men live shall not be subjected to im-
portant change without the full knowledge and
consent of those whom they concern. The stability
of a constitution is of value not only to the com-
munity as a whole, but as a security for the rights
of the individual citizen.

There is nothing in our constitution which can-
not be altered by an Act of Parliament. Until 191 1
an Act of Parliament required the assent of King,
Lords, and Commons. For more than 200 years
the assent of the King has been given as a matter
of course to measures approved by both Houses.
Under the conditions of the Parliament Act that
assent may now be demanded for a measure ot

2 RIGHTS OF CITIZENSHIP

which the House of Lords has not approved.
Legislative sovereignty, therefore, with the power
to change our institutions at will, is transferred to
the Commons.

In view of this it may be well to understand the
lines on which our institutions have developed, the
nature of the constitutional conflicts of the past,
the process by which our system of government
came to be what it was at the beginning of the
twentieth century. I will try to sketch this as
shortly as I can.

Early Kingship. — We begin with a time when
the King was the central and essential figure in our
polity. He was the leader in war ; the guardian
of the peace of the community; he judged; he
declared such changes or affirmations of custom as
corresponded to legislation. It is true that he
acted with the counsel and consent of a body styled
in Saxon times the Witan, in Norman times the
Council ; but the limitations on his power depended
on the comparative wealth, popularity, force of
character, and political capacity of the King, and of
the members of this Witan or Council.

The history of our constitution is the history of
the passing of these powers into the hands of a
body of ministers responsible, ultimately, to the
electors of the country, and yet we retain the
language — remote from, yet not wholly devoid of,
reality — which reminds us of those beginnings of
our constitutional history, and of the reserve
of political power which exists in the Crown.

A Statute is the Act of the King in Parliament,

GROWTH OF THE BRITISH CONSTITUTION 3

yet it is only presented to the King in its com-
pleted form for assent or rejection, and by custom
he assents. Every executive act of Government
is the act of the King or a servant of the King,
but for no executive act is the King responsible,
while in the choice of his ministers, and in their
policy when chosen, he is guided in the first case
by an indication of the wishes of the people, in the
second by the advice of ministers whom he can
only change if the people or their representatives
in Parliament signify that they are no longer satis-
fied with the men or the policy.

Epochs of Change. — The history of these changes
falls roughly into three periods. The first is the
period before Parliament, ending in 1295. The
second covers the long struggle between King and
Parliament as to the control of legislation and
taxation. This ends with the Act of Settlement
(1701), which consummated the work of the Revo-
lution of 1688. Then we come to the assertion of
power by the Commons in determining the course
of legislation and the choice of the King's ministers,
and the comparatively recent acquisition of power
by these same ministers which is reducing the
House of Commons to a machine for carrying out
the policy supposed by them to be acceptable to
the country.

In the first of these periods two points of
permanent interest stand out from the very
beginning. The King has always acted with the
counsel and consent of a body of advisers who
were composed, we may say, of great territorial

4 RIGHTS OF CITIZENSHIP

lordS; and great ecclesiastics also usually lords of
lands. To that extent the royal power has always
been restrained, and our monarchy always limited.
But it is not to this advisory body that we must
look for the beginnings of Parliament.

King's Council. — We find in this assembly the
magnates who became the House of Lords, and
the officers of State who have become the ministers
of to-day. Under the administrative activity of
the Norman and Angevin Kings, the officers of the
Household begin to lose their political character;
the administration of the King's justice, the collec-
tion of the King's revenue, the communication of
the King's pleasure, pass into the hands of the
Justiciar, the Treasurer, the Chancellor. We begin
to distinguish, in a rudimentary form, the Courts
of Justice, the Treasury, the Secretaries of State,
and the Boards, who now do the executive work
of government.

Local Institutions. — But it is to our local insti-
tutions that we must look for the beginnings of
popular government. Under the loose organiza-
tion of the Saxon monarchy, the township, the
hundred, and the shire held together when the
central authority was weak. The Norman Kings
retained these, used them, and linked them up with
their administration of justice and finance. To the
restless ingenuity of Henry H we owe the con-
nection of local with representative government.
The inquest of the twelve men of the countryside
for the ascertainment of disputed fact is the be-
ginning of trial by jury ; and the use of a similar

GROWTH OF THE BRITISH CONSTITUTION 5

local jury for the assessment of local liabilities to
taxation is the beginning of that representation of
shire and town, to hear and to supply the King's
needs, which grows into Parliament.

The Charter. — The terms of the Great Charter,
which was the result of the pressure of all classes,
Clergy, Baronage, and Commons, upon the King,
had been discussed at an assembly which, within
its limits, was as representative as a mediaeval
Parliament of later date. And the Charter itself,
though often interpreted for political purposes to
mean more than was present to the minds of its
framers, is memorable as the work of the three
estates of the realm, as indicating in outline the
division of the two Houses of Parliament, as lay-
ing the foundations of security from arbitrary
punishment and taxation.

Parliament. — Thenceforward we move not
rapidly but steadily towards the Parliament of
which our Parliament of to-day is the direct de-
scendant. The process of change was the super-
session of an assemblage consisting of the tenants-
in-chief of the King, by an assemblage of the
estates of the realm, in which the Baronage
appeared in person, and the Clergy and Commons
by their representatives. The modeb Parliament
of 1295 conforms in outline and in mode of sum-
mons to the Parliaments of 1910. The Baronage
were summoned, as the peers are now, by writ
individually ; the representation of the Clergy was
indicated, as it is now, in the writs addressed to
the bishops ; the representation of shire and town

6 RIGHTS OF CITIZENSHIP

was obtained by writs addressed to the sheriffs of
counties who were bidden to call on the shire to
send two knights, and on each town to send two
burgesses. Collectively, the Parliament was an
assemblage of the three estates. The representa-
tion of the Commons was not a representation of
numbers, or classes, or ideas, but of localities.
The sheriff's duty was to secure the return of two
knights for his shire, and to send precepts to the
towns within the shire to return two burgesses.
The returns were made to the sheriff, and sent by
him, as returns are now, to the office of the Crown
in Chancery.

From this Parliament of 1295 much of our
constitutional history may be traced as from a
common source. But before dealing with the
collision and conflict of the various forces in the
state, it may be well to describe the composition
of the two Houses in the past and as they bear
on the controversies of the present.

Of the three estates summoned to the Parliament
of 1295, one, the estate of the clergy, shortly ceased
to attend. The bishops attended, but as part of
the estate of the baronage ; the clergy met, and,
until after the Restoration, taxed themselves, in
their own House of Convocation.

House of Lords. — The assembly of the baronage
consisted at the outset of archbishops and bishops,
earls, and barons. We need not stop to ask
whether the bishop sits as a baron or in virtue of
his spiritual office, we may regard him as a Lord
of Parliament in virtue of his office. The rank of

GROWTH OF THE BRITISH CONSTITUTION 7

Earl dates from Saxon times, when the earl was a
kind of viceroy in the ill-compacted Saxon mon-
archy; the Baron was a tenant-in-chief of high
degree. Edward III was responsible for the mili-
tary title of Duke; Richard II turned the marcher
lord into a Marquis ; and Henry VI took the
sheriff's title of vicecomes and made the Viscount a
rank in the peerage. Early in the history of Par-
liament the rule became settled that the man who
received a writ of summons and thereupon took
his seat acquired a right of summons for himself
and his heirs.

The number of the hereditary peers has varied,
but has steadily increased. Until the end of the
fifteenth century they were a bare majority of
the House, and rarely exceeded 50. The Reforma-
tion took away 28 mitred abbots, and thenceforward
the lay peers increased in number; yet at the begin-
ning of the eighteenth century they were less than
200, and the creation of twelve new peers secured
a majority for the peace of Utrecht. The union
with Scotland added 16 peers chosen by the peers
of Scotland for each Parliament, and the Union
with Ireland added 28 chosen for life by the peers
of Ireland ; the number of Lords Spiritual is
limited to 26, and the Lords of Appeal, who hold
their seats (since 1887) for life, are four in number.

The rest of the House, the hereditary peerage
has come into existence by the exercise of the
royal prerogative, and for 200 years one may say
that this prerogative has been exercised on the
advice of the Prime Minister. During this time

8 RIGHTS OF CITIZENSHIP

the numbers have nearly trebled, and the House
now consists of about 600 members.

The number is obviously too large for a
deliberate assembly; it contains many who take
no continuous interest in the business of politics,
and who are free from the compulsion to attend
to public affairs which a constituency can exercise ;
it is constantly recruited from the leisured and
well-to-do class, and hence its political complexion
is predominantly and uniformly conservative.
The Preamble to the Parliament Act acknow-
ledges the need and avers the intention to reform
the House, but the Act itself does no more than
deprive the House of its power to secure an appeal
to the people against the action of a House of
Commons which, as we shall presently see, is
admittedly an imperfect mirror of public opinion.

The two Houses have moved in different direc-
tions. At the beginning of the eighteenth century
the House of Lords was mainly Whig, it is now
mainly Conservative; at the earlier date the
House of Commons was certainly not a demo-
cratic assembly ; it now rests on a very democratic
franchise.

House of Commons. — The steps may be briefly
noted. The constituency in counties consisted, at
first, of those who attended the shiremoot. To
ensure that elections were orderly, and that only
qualified persons took part in them, an Act of
Henry VI limited the franchise to residents owning
a freehold worth 40s. The requirement of residence
fell into disuse, and was abolished in 1774. This

GROWTH OF THE BRITISH CONSTITUTION 9

is the property qualification which now exists in
counties, and in a very few towns. The borough
franchise was almost infinitely various. Residence,
assessment to local liabilities, ownership of certain
lands within the borough, membership of guild
or corporation, the holding of corporate office,
were the main qualifications, varied in different
towns, and dependent on custom, on charters of
incorporation, and, later, on the decisions of election
committees of the House of Commons, where a
petition was lodged against a return.

Extension of Franchise.— The Reform Act of
1832 swept these away with few exceptions, retain-
ing the property qualification in counties with the
addition of leaseholds, and occupation franchises,
and making the occupation of premises of a certain
value the main qualification in towns. The Repre-
sentation of the People Act, 1867, introduced the
resident householder, and the ten-pound lodger as
qualified voters for towns, and the Franchise Act,
1884, extended these qualifications to counties.
The extension of the Franchise in the last so years
has resulted in an increase of voters from little
over a million in 1867 to close on eight millions
in 1912.

The Constituencies. — But we have to consider
not merely the number of voters but the value of
their votes, and this depends on the distribution of
political power among the constituencies. The
design of the first Parliaments was to secure re-
presentation of the shires and of every borough
therein, and at the end of the thirteenth century

10 RIGHTS OF CITIZENSHIP

i66 boroughs were summoned to send members.
But many boroughs did not care to send burgesses
to whom they had to pay two shillings a day for
wages, even though a member could not claim his
wage unless he had attended throughout the
Session. Nor was the temptation of a seat very
great in times when travelling was difficult and
som.etimes dangerous, even though privilege of
Parliament protected the member, eundo morando
et exinde redeundo, and though the King sometimes
entertained the Commons at dinner at the close
of a Parliament. At the beginning of the sixteenth
century not more than loo boroughs sent members,
but then a change began and a seat became an
object of desire.

The Tudors added largely to the constituencies.
Henry VIII gave representation by statute to the
twelve Welsh counties and Monmouth, and their
boroughs ; his children created no less than 56
boroughs by charter, nearly all returning two
members ; by the beginning of the sixteenth
century boroughs which had ceased to return
members revived their claims and were re-admitted.
Charles II added Newark by charter and Durham
by statute, union with Scotland introduced thirty
members into the House of Commons, union with
Ireland 103.

Each Reform Act of the nineteenth century has
been accompanied by a redistribution of seats, and
the Redistribution Act of 1885, while retaining
the local character of our representation intro-
duced with few exceptions, the single member

GROWTH OF THE BRITISH CONSTFl^UTION 11

constituency, cutting up large towns into wards,
and counties into divisions.

It is plain that an increase in the number of
voters does not of itself provide a good repre-
sentative system, and that political power ought
to be so distributed as to give something like an
equal value to every man's vote. To make such a
distribution, and to maintain it despite the growth
and shifting of population is no easy task. The
present anomalies of our representative system are
matters of common knowledge, it is enough to
point out that the Romford division of Essex with
nearly 53,000 electors returns one member and so
does Kilkenny with less than 1750.

Franchise Bill of 1912.— The Government pro-
pose to deal with the franchise as part of a measure
for simplifying the process of registration, but
they do not propose to correct the anomalies of
distribution. The Bill now before Parliament will
abolish the plural vote, and thus deprive about
half a million owners of property of their votes
in places where they have local and proprietary
interests; it will also abolish the University con-
stituencies. The sincerity of these reforms is
somewhat discounted by the fact that these voters
and constituencies are supposed not to share the
political opinions of the present Government.

Thus much for the composition of Parliament
and the mode in which its present deficiencies are
treated by our present rulers. We must now go
back to the first Parliaments if we want to trace
the struggles for the control of the purse, the

12 RIGHTS OF CITIZENSHIP

power to make laws, the choice of ministers, and
the direction of policy. We have to deal with four
parties in these struggles. King, Ministers, Lords,
and Commons, but until we reach the eighteenth
century ministers may be left out of account.
They become important when the predominance
of the House of Commons becomes established.

Taxation and the King.— The existence of Par-
liament marks the definition of Prerogative, because
there is thenceforth a force in the country capable
of imposing a check on the royal will ; but when
Edward I summoned his Parliaments he had no
intention of renouncing any portion of kingly
power. He regarded a Parliament as convenient
machinery for explaining to his people through
their representatives the needs of government, and
thus obtaining supplies with greater ease and
certainty.

But mediaeval Parliaments and the Commons in
particular took a different view ; they desired that
taxes should not be imposed, nor laws made with-
out their consent. The struggle over taxation
began early, and took various forms. We need not
dwell on the controversies over direct taxation and
export and import duties which were thought to
have been settled in the fourteenth century and
which were revived by the Stuarts.

James, under claim of prerogative to regulate
trade, levied import duties in excess of the tonnage
and poundage granted by Parliament. Charles,
under pretence of needs of State levied direct
taxation by way of shipmoney. Both forms of

GROWTH OF THE BRITISH CONSTITUTION 13

impost were contested in the Courts, both were
decided in favour of the Crown with some show of
reason and precedent in the first case, with little or
none in the second. The Long Parliament in 1640,
and the Bill of Rights in 1689 dealt with both, the
latter in conclusive terms. Money is not to be
levied for or to the use of the Crown without
consent of Parliament for longer time or in other
manner than the same is or shall be granted.

Money Bills and the Lords. — Ministers ask for
money on behalf of the Crown, the Commons grant
it, and until 191 1 it was necessary that the Lords as
well as the King should assent to the grant. The
Parliament Act makes the assent of the Lords un-
necessary to a Money Bill as defined in the Act. It is
worth while to note the stages in this controversy.

From the reign of Henry IV, and the year 1407
it had been admitted that grants of supplies should
emanate from the Commons. In 1625 the grant
was recited, for the first time, in the preamble of a
Money Bill as the grant of the assembled Commons.
In 1671 the King asked for a subsidy, the Commons
made a grant and imposed a tax to meet the grant ;
the Lords altered the amount of the tax. A long
wrangle ensued. The right of the Commons to
initiate, and the right of the Lords to reject a
Money Bill was admitted by both Houses, but the
Commons insisted then, and again in 1678, that the
Lords could not alter the amount, conditions or
objects of the grant. The Lords neither admitted
nor contested this claim, and so the matter stood
until i860.

14 RIGHTS OF CITIZENSHIP

In i860 the Lords rejected a Bill which repealed
a duty on paper, a part of the financial scheme of
the year. The Commons while protesting against
this interference with the arrangements of the
Chancellor of the Exchequer did not dispute the
right of the Lords to reject the Bill. Mr. Gladstone
went so far as to say that the Lords were right in
not giving up even their claim to amend a Money
Bill, because '' cases might arise in which from the
illegitimate incorporation of elements not financial
into financial measures it might be wise and just
to fall back on the full extent of their privi-
leges." Nevertheless, in 1861 and thenceforward,
the Commons made rejection difficult by embody-
ing the whole finance of the year in a single
Bill.

The novel features of the Finance Bill of 1909,
with the apparent "incorporation of elements not
financial," impelled the Lords to use their right of
rejection in order to obtain the opinion of the
country on the new methods and principles of
the Bill. The response of the country was
doubtful, but a majority, certainly not actuated
by any regard for the special features of the
Finance Bill, secured its passage through the
Commons, and the Lords at once accepted the
decision as that of the country.

Control of Supply.— But the right to initiate and
make grants of money constitutes of itself a very
imperfect control over government, unless it is a
control over all sources of supply, and unless it is
accompanied by some security that the money

GROWTH OF THE BRITISH CONSTITUTION 15

granted is issued and actually spent for the pur-
poses for which the grant was made. While the
King conducted the business of government on the
proceeds of his hereditary revenues, of grants, of
taxeS; made to him for his life, and of occasional
subsidies, systematic control of expenditure by
Parliament was impossible. Appropriation of
supply was first attempted when Charles II asked
for a subsidy and the Commons specified in the
Bill which made the provision the purposes for
which the provision was made, and appointed a
Committee to see to its application.

After the Revolution a further step was taken,
the King was granted a revenue for life which was
supposed to meet the needs of Civil Government,
described as the Civil List, while the Commons
undertook to provide annually for the needs of the
Army and Navy. In successive reigns the Civil
List has been relieved of all payments except such
as concern the personal requirements of the
Sovereign, Parliament has taken over the provision
of all the needs of government, while the methods
for controlling the issue of public money, of
account and of audit, have been perfected.

Modern Practice. — A certain number of days
are set apart in every Session for criticizing the
expenditure of the various departments on the
votes asked for to supply their needs, and other
opportunities are afforded for discussing the finan-
cial policy of the Government ; and yet it must be
admitted that the actual control and supervision of
finance by the House of Commons is somewhat

16 RIGHTS OF CITIZENSHIP

delusive. Criticism may affect public opinion
outside the House ; inside, it can only be effective
if it take the form of an adverse vote, which is
treated by the Government as a vote of censure,
and resisted with all the force at a Government's
disposal. Extravagance in a Government is only
an offence if it touches the pocket of the voter,
and it is possible to be liberal to the point of
extravagance at the expense of a minority.

Legislative sovereignty, before the days of
Parliaments, rested with the King and his council,
though legislative change was rare and hesitating
in those early days; but as early as 1322 the
''assent of prelates, earls, barons, and the common-
alty of the realm, was acknowledged to be neces-
sary to matters established for the estate of the
realm."

King and Commons. — Nevertheless, for some
time the King made Ordinances of a temporary
character with the assent of the magnates ; and
legislation to which the Commons were parties
was obtained by petition, to which, if the King
assented, he replied; "le roy le veult." But this
did not always result in the law which the Com-
mons wanted. The matter might be forgotten, or
the law, as drafted, was something different to the
purport of the petition, or contained saving clauses
or dispensing powers. So, in the middle of the
fifteenth century, the Commons sent up Bills which
contained the laws they wanted, in the terms which
expressed their meaning, and the King's control
over legislation was thenceforth reduced to a veto.

GROWTH OF THE BRITISH CONSTITUTION 17

freely used for more than 200 years, and now for
more than 200 years disused.

In Tudor times, the Proclamation of the King
in Council took the place of the Ordinance made
by King and magnates as a rival to the Statute
made by the King in Parliament.

In spite of the expressed opinion of the judges
that these Proclamations were of no force except
to declare existing law, they were used by Tudors
and Stuarts and enforced by the jurisdiction of the
Star Chamber. When that jurisdiction was taken
away by the Long Parliament, the King had
recourse to his power of appointing and dismissing
judges at pleasure, in order to secure judicial
decisions in favour of his claim to suspend or
dispense with the operation of Statutes. The
provisions of the Bill of Rights as to the suspend-
ing and dispensing powers, and of the Act of
Settlement giving security of tenure to the judges,
brought to an end the efforts of the Crown to
legislate independently of Parliament.

Commons and Lords. — Laws are, or should be,
made by the King in Parliament, by and with the
advice of the Lords Spiritual and Temporal and
the Commons in Parliament assembled. The
contest then arises between Lords and Commons
as to the use of their co-ordinate legislative powers
by the Lords. Until 1832, the composition of the
Houses was too similar in its character, and the
influence of the Peers too potent in the consti-
tuencies to admit of any very wide divergence of
opinion between them. When the Lords threw

18 RIGHTS OF CITIZENSHIP

out Fox's India Bill in 1783, the measure of a
Coalition Government, a change of Government
ensued, a General Election shortly followed, with
a display of public excitement unusual in those
days, but the country endorsed by a sweeping
majority the action of the Lords.

Objects of Second Chamber. — The long struggle
of the Peers against the Reform Bill of 1832 fore-
shadowed the differences which would arise when
extensions of the franchise altered the social and
political character of the House of Commons ; but
in the course of the nineteenth century a conven-
tion grew up which fairly defined the place of the
Lords in our legislation. Apart from the use of
a Second Chamber in legislation, as a place for
amendment, reconsideration, and prudent delay,
the House of Lords secured an appeal to the
country by the rejection of measures as to which
there was reasonable ground for supposing that
the Government had mistaken or disregarded the
opinion of the electors. It cannot be disputed
that from 1832 onwards they invariably yielded to
a definite expression of the will of the people.
They did so in the case of the Irish Church in
1869, and of the Finance Act in 1910. Their action
in rejecting the Home Rule Bill in 1893 was
justified by the result of the General Election
which took place shortly after. The Parliament
Act deprived the people of this appeal.

Commons and Ministers. — Until the Commons
had become beyond question the strongest force in
our constitution, we do not hear much, though the

GROWTH OF THE BRITISH CONSTITUTION 19

question arises from time to time, of their relations
to the ministers of the Crown, and through them,
to the executive policy of the State. The history
of these relations is not to be found in Statutes nor
in definite rules of law : it is to be traced in the
changing balance of forces in the Constitution.

I mentioned earlier the beginnings of depart-
mental government, but the men who worked the
machine were for a long time the creatures of the
royal pleasure, save in the case of an official too
useful to be spared, or a magnate too popular or
too powerful to be slighted. Parliaments of the
fourteenth century asked to be told who the King's
ministers were : and for awhile the Lancastrians
nominated their chief officers in Parliament. Under
the Tudors and Stuarts we find the King's ministers
taking part in debate in the Commons. After the
Restoration, the increasing hold of the Commons
over legislation and supply made it necessary that
close relations should be established between the
Executive and that House, and the formation of
parties made it necessary that ministers should be
on good terms with the party which was in a
majority.

The meetings of leading ministers, called Cabi-
nets, brought together at first for the convenience
of the Stuart kings, presided over by them and
influenced by their wishes in policy and action,
were concerned not only with affairs of State, but
with the best means of securing the good will of
the House of Commons. Parties took definite
shape, and William III and Anne reluctantly

20 RIGHTS OF CITIZENSHIP

accepted the principle that ministers must belong
to the party which possessed a majority, and
must be changed if the balance of parties changed.
With the adoption of this principle comes a closer
cohesion of the group of ministers who for the
time being work the departments of State govern-
ment : they become the '^ King's confidential ser-
vants " — the Cabinet.

King and Policy. — But the King loses power in
two directions. His choice of ministers is limited
by the necessity of choosing those who are accept-
able to the majority. His influence over policy is
diminished when he ceased to preside at Cabinet
Councils. In the reign of Anne it had become
evident that policy was settled, and must be settled
by the group of ministers who were in accord on
the questions of the moment, and not by the mis-
cellaneous body of political opinion represented in
the Privy Council. But Anne presided at Cabinet
meetings, and made her influence felt. George I
did not attend Cabinets, and the presence of the
King was henceforth disused. Henceforth the
King acted through and not with his Cabinet. He
sacrificed an influence which would vary with the
capacity of the individual sovereign, but which was
undoubtedly real.

King and Choice of Ministers. — But the strength
of ministers, and the coherence of Cabinets must
depend on the continuous support of a party, and
during a great part of the eighteenth century, when
no great political issues were before the country,
and when, owing to the defects of our electoral

GROWTH OF THE BRITISH CONSTITUTION 21

system^ the constituencies knew little and cared
little about the action of their members, the House
of Commons broke up into groups, mainly con-
nected by small matters of self-interest. A work-
ing majority had to be provided, and Walpole
and his successors provided one by systematic
corruption, by gifts of places, pensions, or hard
cash. After the American war, party spirit woke
up, and the grosser forms of corruption dis-
appeared. Cabinets recognized a collective re-
sponsibility and political parties displayed a certain
loyalty to their leaders. While the House was
broken into groups a King, such as George III
with a taste and capacity for party management,
could enjoy a considerable independence in the
choice of his ministers and the control of their
policy, but this phase of royal power waned when
parties were based on differences of principle and
not on matters of personal interest.

Party Organization.— After 1832 the influence of
the Commons increased in proportion as it became
more representative of public opinion in the
country. Ministers cannot hold office without the
support of a majority in the House, but the relations
of ministers to the House of Commons have under-
gone a change since 1885, for party leaders, once
chosen and installed in office, can exercise a strong
constraint upon their followers. The single
member constituency in the hands of the party
organizer limits the choice of the elector, unless a
Labour candidate should intervene, to one of two
men usually chosen from the most pronounced

n RIGHTS OF CITIZENSHIP

upholders of the party programmes. The member
when chosen is not left to the natural impulse of
loyalty to a leader, or the convictions of a political
thinker. Party discipline is enforced by the fear
that if the orders of the Party Whip are disobeyed,
the too independent member may not be the
selected candidate at the next General Election,
or that if selected his independence may result in
defeat, or that, in any event, if he imperils the
existence of the Government which he is elected to
support he increases the probability of a general
election with the expense which attends a contest,
and with the risk that he may lose his seat, and
therewith his newly acquired salary of i;"400 a
year. The payment of members offers a fresh
. inducement to party fidelity.

Power of Ministers. — In the region of executive
Government ministers have always enjoyed a cer-
tain independence, because they can act while a
representative assembly is talking, and the criticism
of Parliament may fail to focus public opinion
upon their action, or in any case may come too late
to be effective. But the control which a Govern-
ment now exercises over legislation is modern ; for
ministers can apply party discipline not only to
carry measures which are regarded as necessary
to the fulfilment of promises made at an election,
or as likely to promote the popularity or well
being of the party, but they can use modern rules
of procedure to curtail debate by the various
methods of closure now in use.

And this control over legislation, and the

GROWTH OF THE BRITISH CONSTITUTION 23

discussion which should precede legislation,
formidable enough if it were only used on behalf
of a party which for the time commands a majority
in the country, is far more formidable under present
conditions, with a House of Commons broken into
groups. For these groups of Nationalist and
Labour members are independent of either of the
great political parties, and demand legislation for
purposes of their own. The groups of the eigh-
teenth century were purchasable by the simple
processes of the time, involving, no doubt, some
expense to the taxpayer. The support of a modern
group is only to be obtained at the cost of
legislation which may affect the community for
generations. And this legislation may be carried
through by the rigour of party discipline, with
limited and imperfect discussion; and, since the
powers of the House of Lords have been curtailed
by the Parliament Act, without an appeal to the
electors.

The duration of Parliament is now reduced to
five years : and it cannot be too clearly understood
that at a General Election the people now choose
their Sovereign for that time. The King retains
the power, long disused, of refusing his assent to a
Bill, and of dismissing his ministers ; and it is only
through the action of the Crown, which, by the
conventions of the Constitution, is guided by the
advice of ministers, that an appeal can be made
to the people from the legislative and executive
sovereignty of the Government of the day.

A sketch of the growth of our Constitution

24 RIGHTS OF CITIZENSHIP

would be incomplete without some notice of the
formation of the United Kingdom and the Empire.

The United Kingdom.— The union of the Scot-
tish and English crowns on the accession of
James I did not secure legislative or permanent
union ; and when, in the reign of Anne, the risks
of foreign war and of a disputed succession made a
union of the two countries a paramount necessity,
it was by commercial pressure and the prospect of
commercial advantages that the Scotch were in-
duced to consent to the treaty which united the
Parliaments and Kingdoms of England and Scot-
land. The results of the complete legislative in-
dependence accorded in 1782, to what is known as
Grattan's Parliament, made a union with Ireland
inevitable. It is significant that both Acts of
Union were passed when the country was engaged
in a great European war. Such times do not admit
of divided counsels in these islands. Enough has
been said elsewhere of the features of Home Rule
for Ireland, or that more speculative adventure in
constitution-making which is described as Home
Rule all round. We have before us in the
Dominions the examples of Colonial self-govern-
ment, and, in Canada and Australia, of Federal
Government. We can judge for ourselves how far
either system is applicable to the component parts
of the United Kingdom.

The Empire. — The experience of our colonies
tends to show that where the Dominions of the
Crown are too remote to form an integral part
of the kingdom, there is practically no half-way

GROWTH OF THE BRITISH CONSTITUTION 25

house between Crown Colony government, that is,
government responsible only to the Imperial Par-
liament, and responsible government, that is,
government responsible to a colonial legislature.
The colonies, which possess popularly elected
assemblies, and a nominative executive irrespon-
sible to the Assembly, are survivals of a type of
constitution which elsewhere has either moved
forward to self-government, or back to the status of
a Crown colony.

It would be impossible to sketch even in outline
here the process by which our Empire has grown
up almost at haphazard ; but in dealing with the
constitution under which we are now living, it is
necessary to think of it in relation to the responsi-
bilities of Empire. Where we govern directly, as
we do govern millions in the East, we need some
security that our rule ensures, not only good
intentions, but stability of purpose, and of institu-
tions. Where we have given responsible govern-
ment, as we have given it to the great Dominions
in Canada, in Africa, in Australasia, we must yet
be prepared to defend them in the last resort, and
give them the benefit of our help and experience
towards the solution of the great and various prob-
lems which lie before our children in those lands,
and our own constitution should be adapted to
these ends.

CHAPTER II

THE PARLIAMENT ACT CONSIDERED IN

RELATION TO THE RIGHTS OF

THE PEOPLE

By the Right Hon. F. E. Smith, K.C., M.P.

At the time of the General Election the Parliament
Act was everywhere recommended as the restora-
tion to the constituencies of the right to govern
England. The House of Lords, such was the
suggestion, had usurped powers which they had
never legally possessed, and the time had come,
once for all, to render them helpless. This point
of view was rhetorically expressed in the familiar
question, illustrated by a disgusting cartoon,
" Shall six hundred peers rule six million English-
men?" The measure has now been in operation
for a period sufficiently long to make it possible to
examine, in a perspective somewhat calmer than
that of a General Election, the justice of the claim
underlying these representations.

We are, all of us, agreed that for good or
for evil we are governed by democracy. The
apparent tendency is to extend rather than to
restrict the popular character of our Government.
It is, indeed; perhaps a safe prediction that the

THE RIGHTS OF THE PEOPLE 27

government of this country will remain democratic
unless the tendency above adverted to should be
arrested by civil convulsions. This speculation,
though full of interest; would carry us too far from
the immediate subject of inquiry. Democratic
government has many merits, and it suffers from
some not inconsiderable defects. Some critics will
lay stress on the merits, others would be more
impressed by the defects, but all alike will agree
that it is supremely important, as long as we
purport to be governed by democracy, that the
reality of our constitution should correspond with
its labels.

There is much to be said for a democratic system
of government, as there is much to be urged on
behalf of an autocratic system. There is nothing
whatever that can be urged in favour of a constitu-
tion which, under the name of democracy, has in
effect concentrated every faculty of government in
the hands of a small clique which has cheated the
people of every vestige of effective control over
the national policy. It is the object of this article
to show that the present Cabinet is such a clique ;
that the Parliament Act is the instrument by which
they have speciously effected their purpose; and
that, so far from having restored power to the
electorate, they have by a fraud persuaded
democracy to sanction a more supreme abdication
of power than any democracy has ever voluntarily
made in the history of the world.

Many illustrations might be given to support
this view. The Insurance Bill is as instructive as

28 RIGHTS OF CITIZENSHIP

any. The Prime Minister assured the country that
adequate powers to delay unconsidered, or imper-
fectly understood, legislation would still remain to
the House of Lords. The Insurance Act was sent
to the Second Chamber for consideration at the
very end of a Session already protracted beyond
precedent, and under circumstances making it
evidently impossible for that House to give the
time necessary for its consideration. The House
of Commons had bestowed many months upon the
measure without a single obstructive discussion ;
and yet many of its most vital provisions were
hardly discussed at all. Three or four months
would have been required for the purposes of a
serious or useful consideration in the Second
Chamber, and indeed the Parliament Act expressly
gives the countenance of a statute to the most
extreme claims ever made by the House of
Commons in respect of financial privilege, and any
amendments of importance made by the House of
Lords to the National Insurance Bill must have
had a financial aspect, and would have been de-
nounced as a breach of the privileges of the House
of Commons. The Government, under the stress of
their Irish obligations, sent the Bill to the Lords
at a date and under circumstances which ensured
that the Bill should become law with as little
reference to the Second Chamber as if the forms of
that assembly had been destroyed as completely as
its substance. The Act, in fact, was passed under
a uni-cameral system of government, and it is very
material to notice that not even Mr. Lloyd George

THE RIGHTS OF THE PEOPLE 29

has claimed that his proposals were ever submitted
to or sanctioned by the constituencies.

It is, under these circumstances, illuminating to
analyse some of the Prime Minister's recent refer-
ences to the supposed electioneering consequences
of the Act. He has told us that the Government
never expected it would be an asset, and that they
introduced it, not because they thought it would be
popular, but because they were satisfied that it
would at least be beneficial. Similarly, Mr. Lloyd
George has informed an admiring interviewer that
every statesman worthy the name must be prepared
to carry measures which are unpopular. These
expressions of opinion suggest much material for
thought.

If a grateful country had unanimously requested
the Prime Minister to be good enough for the next
few years to discharge in his own person the
functions heretofore vaguely distributed between
the Lords, the Commons and the Constituencies,
his position would be perfectly intelligible. He
would, under those circumstances, be entitled to
pass this Act or any other Act which he himself
thought, or Mr. Lloyd George persuaded him, was
likely to benefit the community. Nor would it be
necessary in such a case to consult the people. But
in the actual circumstances the claim put forward
is astounding in its naive assurance. Mr. Asquith
says in effect, " I have restored to the people by
the Parliament Act the right to govern themselves;
I have given a new charter to democracy, and,
having enfranchised them, I pass a complex

30 RIGHTS OF CITIZENSHIP

measure; affecting every household in the country,
which is not ' an electioneering asset ' " ; or, in
other words, which the people do not want and
against which they would vote if they were afforded
an opportunity.

Nor can the answer be made that the Insurance
Act is likely to prove an exceptional case. There
is no reason whatever for supposing that it will be
so, and there is every reason for supposing that
it will not. The Parliament Act depended upon one
principle only, that there is an irresistible presump-
tion that every new House of Commons so com-
pletely represents the constituencies on every
conceivable subject which may assume legislative
form that it is unnecessary under any circumstances
to consult the people upon any proposals which
any House of Commons may sanction during the
first two years of its existence. The strength of
this chain is the strength, neither more nor less, of
its weakest link. If it can be shown that a House
of Commons in the first two years of its existence
has passed or will pass a Bill which the con-
stituencies, if they retain the power, would veto, it
is apparent that by whatever other arguments the
measure may be supported it cannot appeal to
those which draw their strength from the principles
of democracy.

Accident, or the weakness of the Government,
or both, have provided us with a method of testing
the working of the Parliament Act which is even
more striking than that furnished by the Insurance
Act. The Franchise Bill is drafted in such a

THE RIGHTS OF THE PEOPLE 31

manner as to allow an amendment which will
enfranchise a certain number of women. Whether
such an amendment will receive the support of a
Parliamentary majority no man living can con-
fidently predict. Suppose, for the sake of argument,
that it is carried. We shall be face to face then
with a measure passed by the House of Commons
in that halcyon and sacro-sanct period in which
every supporter of the Parliament Act is bound to
admit that the First Chamber necessarily reflects the
real wishes of the electors. If the Parliament Act
was well-conceived it is evident that the Govern-
ment have the same right, neither more nor less, to
carry into law Female Suffrage without consulting
the constituences as they have to carry Home Rule
and Welsh Disestablishment. But recent occur-
rences have made it abundantly clear that some of
the strongest supporters of the Parliament Act are
of opinion that the biennial period may be freely
used to carry into law every change, however novel
and far-reaching, which they desire, but that it
cannot without the gravest impropriety be used for
the purpose of carrying novel proposals of which
they disapprove.

A great demonstration was recently held at the
Albert Hall to protest against the concession of
votes to women. The meeting was addressed by
Lord Loreburn, the late Lord Chancellor, and he
was supported upon the platform by, I think, no
fewer than fifteen of his colleagues. He stated, and
evidently with their consent and approval, that it
would be " a constitutional outrage " to pass Female

32 RIGHTS OF CITIZENSHIP

Suffrage by an amendment of the Franchise Bill
and without an appeal to the constituencies. Why ?
Such an amendment will, on the hypothesis, have
received the assent of a House of Commons at the
very moment when the Parliament Act teaches
that the House of Commons for all purposes
represents the people. Why is one subject, and
one subject only, to be withdrawn from the
legislative field upon which this inspired assembly
is otherwise permitted to browse in uncontrolled
enjoyment ? It is no answer to say, as I have
myself said in another connection, that however
little Home Rule was before the country. Female
Suffrage was never before it at all. An opponent of
the Parliament Act may draw these distinctions ;
they are not open to a supporter. No person can
hold the view that the House of Commons is con-
stitutionally incapable, except by outrage, of carry-
ing Female Suffrage unless he shares our view
that the expediency of committing supreme powers
to a Single Chamber during the period permitted
by the Parliament Act is inexpedient and ought to
be abolished.

It is, therefore, necessary to admit, firstly, that
the short period which has elapsed since the
Parliament Act became law has made an irreparable
inroad upon the principle upon which it was con-
fessedly based; and, secondly, that it admits the
risk that measures may become law under its
protection which are, in Lord Loreburn's phrase,
outrageous. The events which are taking place
before the eyes of the country to-day show in a

THE RIGHTS OF THE PEOPLE 83

variety of other ways how deeply injurious the
measure in operation is proving to those popular
rights which it promised to found upon a permanent
and unassailable rock. When a new House of
Commons meets it will henceforth become neces-
sary for ministers to draw a sharp line distinguish-
ing such of their legislative proposals as they
really wish to become law from those towards
which they feel a vague benevolence, or in respect
of which they are bound by unattractive historical
commitment. All those measures which fall in the
first class will be, and indeed must be, brought
forward and carried through their stages either
in the first or second Session of the new House
of Commons in order that it may become law
without consideration by the constituencies.

The result is that the extent of our Parliamen-
tary labours is, and always will be henceforth,
determined, not by reference to the amount of
work which the House of Commons can reason-
ably and usefully perform, but by reference to the
number of measures which the Government, either
to maintain or to prolong their existence, must
introduce. The menace to popular liberty of such
a system is profound. Suppose, for the sake of
example, that the Cabinet of a newly-elected
Government decides that six measures at least
shall become law before they go out of office. It
may well be that every one of those measures
would require, unless the Insurance muddle is to
be repeated, a whole Session of Parliamentary
consideration. The measure may require it, but

34 RIGHTS OF CITIZENSHIP

it 'will certainly not receive it. Time-tables will
be automatically formulated depending not in the
least upon the importance of the measure, but upon
the available period, having regard to the claims of
other measures, which must also become law in the
preferential period.

Such a state of affairs makes it clear that deep
and vital as was the injury done by the Government
to the House of Lords, they have inflicted on
the House of Commons a blow far more serious.
The House of Commons, indeed, under its present
masters, has become as weary of itself as the
country is weary of it. The people do not read
our debates, the popular Press does not report
them, and our legislators do not listen to them.
Vast, complex and often unintelligible proposals
succeed in alternation to the Parliamentary stage
with a rapidity which not only bewilders the
intelligent politician in the constituencies, but
leaves many quite reasonably intelligent Members
of Parliament wholly ignorant of the measures
which they daily support by their votes in the
lobby.

The state of affairs, thus produced, would be
ludicrous if its consequences were not so tragic.
The actual results of the Parliament Act up to date
may be exhibited in the following way. (i) The
constituencies have lost all control over the legis-
lation of the House of Commons during the period
in question ; by-elections are sneered at as the
fruit of misrepresentation. (2) The House of
Lords has no control over legislation during this

THE RIGHTS OF THE PEOPLE 35

period : it can only postpone measures, sharing
the hope of Mr. Micawber that something will turn
up in the course of the following two years.
(3) The House of Commons has no control over
the legislation of the first two years.

The third of these propositions may, at first
sight, appear somewhat paradoxical ; it is, in fact,
less obvious than the first two, but I believe that
on analysis it will appear equally well-founded.
Every supporter of the Government in the House
of Commons knows that if the Government are
defeated during that period on an occasion of
importance they will resign and an election will
follow, but every supporter of the Government is
determined under no circumstances to contest a
premature election, and he is more particularly
determined when the political barometer happens
to be low. It is notorious, and no honest man who
knows the House of Commons would deny, that
many members habitually vote for measures of
which they disapprove, supporting themselves by
the reflection that it is better to maintain in office a
Liberal Government of whose policy they disap-
prove in one particular, than to give a vote which
would place in office the Conservative Party of
whose policy they disapprove in every particular.
Not only is this view natural, but it can be defended
by very respectable authority. Burke said some-
thing very like it in his famous vindication of
government by party, but if it be true — and that
alone is the relevant inquiry in the context— it is
evident that the third proposition is as true as the

36 RIGHTS OF CITIZENSHIP

other two, that the House of Commons exercises
no control during the period when control is most
necessary.

But if the Parliament Act has excluded from a
real influence over legislation the Constituencies,
the House of Lords, and the House of Commons,
by what man or body of men are these enormous
powers in fact exercised? Who is it, in other
words, who governs England with unrestricted
power, controlled by no checks or balances, and
able to write his or their will on all subjects upon
the pages of the Statute Book ? The legatees of the
people, the Lords and the Commons, are the
Cabinet of the day. They operate with no restraint
except such as may be furnished by remote
electioneering apprehensions, and they always have
at hand for a rainy day Mr. Lloyd George with a
new Limehouse speech or new land propaganda.
Whether the people like their new Constitution
remains to be seen, but if they do, and are prepared
to stereotype it, they may have many other merits
but they will have ceased to be democrats.

An answer is frequently attempted to these
objections, as stupid as it is superficial. It is con-
tended that all these mischiefs existed whenever a
Conservative Government held office, but that the
present critics of the Parliament Act were quite
unconscious of their evil consequences to the
Commonwealth. The statement is grossly ex-
aggerated. I have before me as I write the
volumes of the Statutes which were passed during
the ten years before 1906, and side by side with

THE RIGHTS OF THE PEOPLE S7

them the volumes containing our legislation from
1906 to 191 1. A comparison of the size of the
volumes during the respective periods is the most
effective distinction between the two cases, but I
will not elaborate either this or other obvious
grounds of differentiation. Let me, for the sake of
argument, accept the contention at its face value,
and attempt to appraise its controversial value.

The Liberal Party during the last thirty years
has almost invariably, when in office, come into
collision with the House of Lords. In the dis-
cussions which have followed, Liberals have always
contrasted the state of affairs which exists under a
Unionist Government with that of which they com-
plained when themselves in power. They have
pointed out that Liberal Governments were con-
stantly harassed by a partizan Second Chamber,
whereas during every period of Conservative
Government the country was altogether deprived
of the control of a Second Chamber. I do not
make here the obvious point that it is the very
boast of the Liberal Party that they stand for pro-
gress and change, that they commonly reproach the
Unionist Party with stagnation and reaction, and
that therefore any Second Chamber, however im-
partial, will certainly be more active when the party
which continually proposes great changes is in
power, than when the other party is in power.
I do not develop this point because, although the
statement which I am examining is grossly ex-
aggerated, it does none the less contain a certain
element of truth. It is, and has been the case for

38 RIGHTS OF CITIZENSHIP

many years that under Conservative Governments
there was too close a correspondence between the
Government of the day and the House of Lords.
No House of Commons, however little disposed to
rash and hazardous experiment, can be trusted with
both the initial and the final control over legis-
lation.

It is a commonplace that no great country in
the world is governed to-day by a Single Chamber.
The Conservative Party, of all parties, ought
clearly to recognize that of all great issues which
concern the party of order and stability, none is
more vital than the existence of an effective Second
Chamber. If such a Chamber be honest, strong,
and independent, it matters little what the party
labels of its members may be. Therefore every
period during which the Conservative Party has
carried on the Government of the country without
any real interference by the House of Lords has
supplied our opponents with a most dangerous
object-lesson of Single Chamber government in
operation. These considerations led me in the
crisis a year ago to contemplate with great com-
posure the creation of even a considerable number
of Liberal Peers. The persons so promoted, if
carefully chosen, would have afforded a useful
panel, the existence of which would have made it
possible to appoint 150 Liberals, and as many Con-
servatives out of the total number of Peers as
Lords of Parliament. This opportunity was lost,
and greatly as I myself dislike the idea of an
elective Second Chamber, the existence of which

THE RIGHTS OF THE PEOPLE 89

will, in my judgment; destroy what remains of the
prestige of the House of Commons, I see many
signs that one or the other party will be driven to
propose the solution of an elective Second Chamber
as the most defensible and logical method of escape
from our constitutional difficulties.

And it may be further observed that although
the Conservative Party is, on the whole, the
cautious party, there have been many occasions,
normally recurrent in its history, in which it has
made itself the instrument for effecting the most
far-reaching changes. Peel, Disraeli, Lord Ran-
dolph Churchill, and even Lord Salisbury himself,
introduced many momentous changes in the con-
sideration of which no one could contend that the
help of a Second Chamber would be superfluous.
Recent history affords us an illustration both con-
venient and forcible. Mr. Balfour, after the Khaki
Election, introduced two measures, the Education
Act and the Licensing Act, which had certainly, to
put it mildly, not played a particularly prominent
part amongst the subjects discussed at the General
Election, and each of these Bills introduced very
important changes in the subject-matter to which
they respectively related. The Liberal Party
complained most persistently and bitterly of the
conditions under which these Bills became law,
without, as they alleged, a mandate from the
people, and under the conditions of Single
Chamber Government. Many persons w^ho were
in entire agreement with the policy of Mr. Balfour's
great Education Act felt that there was some force

40 RIGHTS OF CITIZENSHIP

in the complaints so loudly put forward. The
adoption, however, of the policy which has been
incorporated in the Parliament Act has left Mr.
Balfour's Liberal critics without a rag of con-
sistency. They complained that a Unionist House
of Commons passed two great measures without
an appeal to thie people, and the principle of which
had never been sanctioned by the people. When
their time comes to formulate a constitutional
remedy, instead of strengthening the Second
Chamber and rendering the repetition of an un-
desirable state of things impossible, they stereotype
it in the Constitution, and enable every Parliament,
Conservative and Liberal alike, to do exactly the
thing which they found so unconstitutional and so
dangerous.

It is, I think, clear that they were right in their
\ earlier view, and that they are wrong in their
present view. I have stated reasons for the con-
clusion that even a Conservative Government
would be stronger, and its legislation better, if an
effective Second Chamber revised their measures ;
but the arguments become overwhelming in their
strength when we consider the position of a Coali-
tion Government. The present Ministry is kept in
office by Liberals, Nationalists, and Labour mem-
bers. They all want a few of the same things, but
each of the sections wants, in addition, a number of
things which the other sections do not want at
all. The objects which they commonly desire are
neither sufficiently numerous nor sufficiently popu-
lar to constitute the whole Parliamentary stock-in-

THE RIGHTS OF THE PEOPLE 41

trade of their supporters. Each group, in other
words, does not get enough of the things which it
most particularly desires, hence the necessity for
an elaborate system of bargaining. The Irish Party,
for instance, wants Home Rule. The Welsh
Party wants Welsh Disestablishment. The Irish
Party is notoriously indifferent about Welsh Dis-
establishment, but very anxious to procure Welsh
support for Home Rule. Hence the Union is bar-
gained for the Church in Wales. Instances could
be multiplied, but they will occur to every one, and
the statement of phenomena so evident need not
be prolonged; but it must most carefully be
observed that this state of things makes it abso-
lutely certain that measures will be introduced
which are positively disliked by a majority in the
constituencies. The Labour Party, for instance,
whose strength in the constituencies is at present
negligible, but whose votes in the House are at the
moment vital, are able to stipulate for a Bill repeal-
ing the Osborne Judgment, to which I am certain
the working classes are resolutely opposed.

These inconveniences and dangers were serious
before the Parliament Bill became law : they have
become, under its operation, a grave menace to the
stability of our whole political system. There is
no mode by which the constituencies can make
their desires effectively felt at the critical period
in which alone an unpopular measure may be
defeated. Public meetings are useless for the pur-
pose. Any party can fill the Albert Hall with
cheering crowds in support of any cause, from

42 RIGHTS OF CITIZENSHIP

Female Suffrage to Anti-vaccination ; and even
by-elections are scarcely more helpful. No one
knows whether vacancies are likely to occur when
they are most required; or in seats where there is
ever, under any circumstances, a defection from
the party in power. It may, however, be stated
that an ultimate check is always present, like Black
Care behind the ministerial horseman, namely, the
fear of an election Nemesis when the inevitable
appeal to the country comes at last.

But to this reassurance there are at least two
important qualifications. In the first place, how-
ever paradoxical it may appear, ministers occa-
sionally become exhausted, and consequently
willing to see the responsibility of government in
other hands ; and if their work has been effectively
and unalterably done, they may contemplate with
indifference the certainty that the result of an
election will change the Government of the
country. The second qualification is even more
important. If ministers do desire re-election, they
will be irresistibly tempted to change the whole
character of the issues on which they will be tried
by the constituencies. For instance, suppose, to
take an extreme illustration, that the present
Government were to carry into law all their pro-
gramme amid growing signs of popular resent-
ment. Suppose, further, that when their work
was done twelve months remained in which to
conciliate the constituencies, ministers are left face
to face with an overwhelming temptation to devise
a great policy of debauchery or class-hatred, in the

THE RIGHTS OF THE PEOPLE 43

hope that the popular attention may be diverted
for the moment from the legislation by which they
ought to be judged. Does any one; for instance,
suppose that Mr. Lloyd George ever intended to
allow an appeal to the country in which the
principal issues would have been Welsh Dis-
establishment and Home Rule ?

These considerations are, I hope, sufficient to
show clearly the great danger to the whole cause
of democratic government, and to the vital interests
of the people, which exist, and will exist, so long
as the Parliament Act, in its present shape, is on
the Statute Book. Under its provisions the con-
stituencies enjoy neither protection nor security,
and it is certain that measures will continually
become law which are opposed to the wishes of a
majority of the electors. Under these circum-
stances, it is of vital importance that the Unionist
Party should clear its mind and decide how great a
price it is worth its while to pay for the abolition
of conditions so disastrous. I am persuaded that
the only solution will be found in the creation of a
Second Chamber commanding the confidence of
the country, and therefore reasonably claiming the
restoration of the powers of which the Parliament
Act robbed the House of Lords. It is extremely
unlikely that any Chamber will receive so large a
measure of public support unless it can be recom-
mended to the constituencies as independent and
impartial.

CHAPTER III

THE CONSTITUTION AND THE INDIVIDUAL

By Lord Willoughby de Broke

The British Constitution and all that it means
both in letter and spirit is of vital importance to
every man, woman and child in the United King-
dom. There never was a time in the whole history
of the nation when it was more necessary than now
for each one of us to remember the benefits that
have been gained in the past by living under this
Constitution, and to realize the damage that we are
now suffering through its being destroyed by the
abuse of Party Government of which the last stroke
was the passage of the Parliament Act through the
House of Lords.

From within a few hours of the passing of that
Act we have been plunged into a series of strikes
which have brought hunger, cold, and unemploy-
ment to those who are least able to help themselves.
Moreover, the very security of the nation has been
seriously threatened. We are told that all this
is due to " the spirit of the age." Bishop Welldon
tells us that the spirit of the age is the most
intoxicating of all spirits, and that it springs from
education and the political power of the working-

THE CONSTITUTION AND INDIVIDUAL 45

classes. If these things be true, the spirit of the
age will one morning give us all a very bad
headache unless we correct it by a strong dose of
the national commonsense that has built up through
the ages the wonderful fabric of rights and duties
which we call the Constitution.

For the present struggle is not only a struggle
about wages. Those who are really underfed and
grossly underpaid are taking no part in it. The
war is not being fought on behalf of those who are
working inhumanly long hours for a starvation
wage. The strife is being engineered by those
who have been rich enough to combine to frighten
Parliament into placing them above the law, and
who propose to follow up their advantage by
holding up supplies of food and coal. They have
proclaimed that they themselves are the Govern-
ment. It is not for a moment suggested that the
last word has been said with regard to well-paid
labour. But the general public cannot ignore the
fact that one of the most serious aspects of the
question is the undisguised attempt of a particular
section of society to overthrow Constitutional
government. Everyone who is interested in the
security of contracts, in equality before the law, in
the maintenance of personal liberty, justice, and
fairplay will have to look to it that in the end
the Caucus shall not be allowed to defeat the
Constitution.

Before considering how the Constitution affects
" the man in the street," it may be well to state
what it means. We have lived so long under a

46 RIGHTS OF CITIZENSHIP

form of government that has worked so smoothly
on the whole, that most of us have taken many-
things for granted which we shall now be obliged
to examine for ourselves. Some people have a
vague idea that the Constitution is a matter for
scholars and dons, or the concern of politicians
who want to distract attention from what is called
Social Reform. Ask the first twenty people you
meet how they are governed, and you will get a
variety of answers, ranging from the sanitary
inspector to the King of England. These answers
may not be complete, but they will convey a
good deal of truth, in that both the King and
the inspector owe their position to the law of
the land, the spirit of which ought to form in
the last resort the control and the refuge of every
citizen.

Our Constitution in its first and best sense
intends that the law shall be made by the national
will acting through Parliament, and that all disputes
about the law shall be dealt with in the Law Courts.
These are the two chief features of the political
institutions of the country, and it will be seen that
everyone may be liable, sooner or later, to be
brought into contact with them. Particularly is
this so at the present moment, when it is rightly
or wrongly becoming the fashion for the State
to meddle more and more with our most intimate
affairs. The Insurance Act is a case in point. No
Act has ever been passed in this country of so
universal a character. No one can escape from it.
This is not the place to discuss its details ; it is

THE CONSTITUTION AND INDIVIDUAL 47

enough to remark that the nation is restive and
annoyed not only at the burdens it imposes, but
at the manner in which it became law. It was
hurried on to the Statute Book in a thoroughly un-
constitutional manner. Anyone who is aggrieved
by the Insurance Act in the future will be aggrieved
because the spirit of the Constitution has been
violated.

For the term '^Constitution" in its broader
sense means something more than the actual
powers of Parliament and the Law Courts. You
constantly hear of something being '* constitu-
tional " or '' unconstitutional." These two terms
are not capable of exact definition ; but in the main
an "unconstitutional " action is one that overrides
either in or out of Parliament the cardinal ideas of
equity that have been evolved by commonsense,
and are the property of every native of Britain.
They are not embodied in any catalogue, and have
not always got a legal sanction ; but on this very
account these ideas should be most zealously
guarded. The fact that we have no written
Constitution renders them liable to insidious and
veiled attacks not always easy to recognize, and
tending to whittle them away without anyone
being able exactly to say how the deed has been
done.

It will be necessary to deal later on with the
very dangerous powers of Parliament in this
respect. For the present it is vital to bear in mind
the general ideas that until recently have more or
less animated the action of legislative and executive

48 RIGHTS OF CITIZENSHIP

authority in this country. The chief of them is that
every man shall enjoy the fullest personal freedom,
in which is included, with many other rights, the
right freely to offer and exercise his labour; that
contracts shall be adhered to ; that all classes shall
be equal before the law ; that no one shall lawfully
suffer except for a distinct breach of the law ; and
that no one shall be imprisoned without being
brought to trial. To these must be added freedom
of worship, and the right of everyone to the free
ministrations of an established Church, wherever its
endowments permit. These principles are dotted
about all over the pages of English history. It seems
almost childish to have to state them again at this
time of day. But they have had to be affirmed and
reaffirmed at times of national crisis in historical
documents like Magna Charta, the Habeas Corpus
Act, and the Petition of Right ; and since the
Parliament Act of 191 1 has mutilated the Constitu-
tion, it is necessary that they should now be
asserted once more. Their importance to each
citizen cannot be stated too strongly. They form
the very bedrock of the universal right of oppor-
tunity to civil and religious liberty that was enjoyed
in this country long before it prevailed in many
other western states, and has been the distinguish-
ing feature of our national life. But great crimes
have been committed, and seem likely to be com-
mitted again, in the name of civil and religious
liberty; and the individual must, therefore, take
stock of the powers that be, and the way in which
they are working.

THE CONSTITUTION AND INDIVIDUAL 49

The most important of these is the Parliament
of the United Kingdom of Great Britain and
Ireland. Some would have us believe that forms
of government do not matter very much, and hope
that in some mysterious way " it will be all right
on the night." They take refuge in the half-truth
of Pope's lighthearted couplet —

" For forms of government let fools contest
That which is best administered is best."

Our form of government is supposed to be repre-
sentative. It took definite shape in the reign of
Edward I; who came to the throne in the year
1272, and has been handed down to us practically
intact. Parliamentary government, as we know it,
means government by King, Lords and Comm^ons,
and has been admitted by all great thinkers both
at home and abroad to be the finest balance
between authority and freedom that the world has
ever seen. Whatever Pope may say, they were
no fools who fought for it and preserved it through
the centuries. But the second line of his couplet
contains the real truth. The balance between
authority and freedom, which is the great safe-
guard of each individual, falls to the ground as
soon as Parliament ceases to be administered in
the national or constitutional spirit. Whenever
the King has tried to encroach upon his subjects,
or whenever ministers, greedy of place and power,
have exceeded the moral trust reposed in them,
the cause of personal freedom has always suffered,
and the lovers of Hberty have been forced to assert
themselves to restore the balance. The extreme

50 RIGHTS OF CITIZENSHIP

point was reached when the Constitution was
abolished altogether by Oliver Cromwell, who set
up in its place an Instrument of Government that
was speedily rejected by the commonsense of the
English people, who found that the excesses of an
unbridled House of Commons were far worse than
the worst caprices of Charles I. The hereditary
King and the hereditary House of Lords were ac-
cordingly recalled; and on May 29th, 1660, govern-
ment by King, Lords and Commons was restored.

This form of government continued until
August loth, 191 1, when the Radical Caucus suc-
ceeded in coercing King, Lords and Commons into
destroying the balance which, on the whole, had
worked with success, inasmuch as both political
parties had in a greater or less degree " played the
game." But it would not be fair to leave out of
the account the fact that Liberal or Radical
Governments have for years past found it difficult
to manage their various groups within the limits
of a free Constitution that was expressly designed
to give effect to the national will, and not to class
prejudices. Lord Beaconsfield warned the nation
as far back as 1872 that the tone and tendency of
Liberalism could not long be concealed; that it
was to attack the institutions of the country under
the name of Reform, and to make war on the
manners and customs of the people under the
pretext of progress. The Radical campaign against
the Constitution has culminated in the Parliament
Act. Before saying anything about the form of
government that now prevails under that Act, let

THE CONSTITUTION AND INDIVIDUAL 51

us consider the position of a private individual in
relation to the Parliament under the late Con-
stitution.

Parliament, which strictly speaking, means the
King in Parliament, was in the legal sense abso-
lutely supreme. Everything in the daily life of
each citizen might be affected by any law
which was passed by the Houses of Parliament
and assented to by the King. Parliament had the
power of making what new laws it pleased or of
altering or repealing any existing laws. It could
alter the succession to the throne and abolish any
institution you like to name. In fact it has wittily
been said that Parliament could do anything except
make a man a woman and a woman a man.

It must be remembered that Parliament does
not mean the government of the day. The govern-
ment of the day, or the political party that had a
majority in the House of Commons was subjected
to legal checks; for instance, any of their Bills
might be rejected by the House of Lords, or in the
last resort by the King, and so fail to become the
law of the land unless passed by a subsequent
Parliament. But the Parliament as a whole was
all powerful from the legal point of view. From
the moral point of view it was only answerable to
its own conscience, a commodity which public
bodies do not as a rule possess.

At the beginning of the reign of George I the
Parliament then sitting dared not face a general
election for fear it might turn out to be unfavour-
able to the Hanoverian succession. A general

c

58 RIGHTS OF CITIZENSHIP

election was due, as Parliaments were then elected
only for three years. The Ministry persuaded
Parliament to pass an Act prolonging their
existence for seven years.

Many people may think that Parliament would
never do anything so high-handed at this time of
day. The answer to that is that a Parliament
whose conscience will allow it to pass the Parlia-
ment Act without the electors having seen the Act
in its printed form at a general election, and then
vote the members of the House of Commons a
salary of ;^400 a year without consulting the
electors, is capable of anything. The ordinary
elector, therefore, to say nothing of those who
have got no votes at all, had even under the late
Constitution, no legal check whatever over the
supreme governing body of King, Lords, and
Commons — no legal check, and very little moral
check. It is certainly true that all despots whether
they be Sultans, or Caucuses, or Parliaments, are
sometimes restrained by the thought that they may
not be able to enforce their laws owing to public
opinion deciding that they shall not be obeyed,
but it should be remarked that this force would
probably act with greater restraint upon a single
despot than upon a popularly elected body. The
rule of a despot is absolute, both in name and in
appearance. The rule of a Parliament is absolute,
but has the appearance of being free, in so much as
one of its bodies is elected by the popular vote.
But if the potential or actual absolutism of Par-
liament is dangerous, and particularly dangerous

THE CONSTITUTION AND INDIVIDUAL 5S

if it can carry out its despotism with the plausible
appearance of being a free government, still more
intolerable is the absolutism of the majority in the
House of Commons. It is this very absolutism
that our system of checks and balances was de-
signed to prevent; yet, even these checks and
balances are relative and not absolute, as they
can be got over by a cunning and unscrupulous
ministry.

As a matter of fact, the whole theory of our
representative government rests upon a series of
fictions. People have believed in these fictions in
the past, because the tenour and intention of the
Constitution was obeyed by those who worked it.
The House of Commons used to be respected so
long as the Cabinet did not strain the uses and
procedure of the House for party purposes.
Party government is only morally defensible so
long as the majority does not unduly coerce the
minority ; so long as legislation is temperate,
cautious, national, and open to full and fair dis-
cussion. As soon as the majority tramples ruth-
lessly on the minority; as soon as legislation
becomes organic, hazardous, sectional, and passed
without free debate, the essentially fictitious char-
acter of the authority of Parliament at once
becomes apparent.

The fiction that the Cabinet represents the
House of Commons, that the House of Commons
represents the electors, and that the electors repre-
sent the nation, can no longer receive the acqui-
escence of thinking people. The Cabinet certainly

54 RIGHTS OF CITIZENSHIP

does not represent the Opposition; even on those
occasions when both Front Benches agree, there
are many searchings of heart on the part of private
members on both sides. The Cabinet may be said
to rule rather than to represent the Government
side of the House. The policy and legislation is,
in fact, selected and dictated, not even by the
Cabinet as a whole, but by whatever group of
Cabinet Ministers obtains the mastery in the
Cabinet Councils for the time being. These will
be the most adventurous and extreme spirits, who
in their turn wall be influenced by the party wire-
pullers outside the House, who will be themselves
the very flower of extreme opinion in the country.
The masterful section of the Cabinet, having
obtained the acquiescence of their own colleagues,
contrive to control the Members of Parliament on
their own side by rewarding the obedience of those
who can talk, as well as vote, by the grant of
government appointments and titles. The inarticu-
late members who can vote and either cannot or do
not talk, have been recently paid ;^400 a year each
from the taxpayers' money to stave off a dissolution
till the last possible moment. A more drastic treat-
ment awaits those rare but valuable Members of
Parliament whom neither fear nor favour can induce
to hold their tongues. They are, first of all, driven
out of their party, which, to their constituents, may
not matter so much. But they are finally driven
out of Parliament itself, for the party machine will
use its whole force against them at the next
election. The constituencies who are sufficiently

THE CONSTITUTION AND INDIVIDUAL 55

independent of either the local or the central
machine to choose and return their own man in
opposition to an official candidate are few and far
between.

If, then, the Cabinet does not represent, but in
reality dominates not only the House of Commons,
but also its own side, still less can the House of
Commons, as a whole, be said to represent the
electors. In a rough-and-ready sense, the idea
that the House of Commons represents the electors
is partly correct. But this theory must be viewed
in the light of the reflection that some constituencies
have about 50,000 electors, and other constituencies
only have about 2000 electors. This being so, it is
not at all surprising that a large majority of seats
in the House of Commons can be gained by a com-
paratively small transfer of votes in the constitu-
encies. There are between seven and eight million
electors in the United Kingdom. An examination
of the figures of a General Election will show that
a very large Parliamentary majority can be secured
by a turnover of less than a quarter of a million of
votes. These figures only constitute a slender
claim on the part of the House of Commons to
ride roughshod over the whole electorate.

And does the electorate represent the nation?
The population of the United Kingdom is over 45
millions. The number of Parliamentary electors
is under eight millions. Many adults, both male
and female, have no direct representation by means
of a vote. Whether the power of election really
secures representation in its best sense is another

56 RIGHTS OF CITIZENSHIP

matter. Adult suffrage would very likely only open
up a more promising field for the wire-puller. But,
as the power of the House of Commons is based
on the assumption that it is representative because
it is elected, and as this representative character
has been proved to be very largely unreal, it
follows that the House of Commons ought to
exercise its power with great moderation. That
is exactly what the House of Commons does not
do. Bills of the most profound importance to the
life of every citizen have been hustled through the
House with several pages not submitted to debate.
The system of log-rolling has been carried to such
a point that the Ministry of the day is actually
engaged on passing a Bill for the government of
Ireland which a large section of the Irish nation
have declared they will not obey under any cir-
cumstances whatever.

Instances could easily be multiplied to show
the travesty of Constitutional government that
prevails to-day at Westminster. In the mean time,
the individual suffers. Under the late Constitution
he had none too much power. Since the passing
of the Parliament Act, he is handed over, body and
soul, to the Ministry of the day.

Under the late Constitution the individual could
sometimes protect himself from the excesses of the
House of Commons by appealing to the House of
Lords to give him a chance of electing a new
Member of Parliament at a General Election. The
theory of the relation of the ^' man in the street "
towards the governing body of King, Lords and

THE CONSTITUTION AND INDIVIDUAL 57

Commons at its best contemplated a system of
safeguards. The majority of electors were, theo-
retically at any rate, represented by the majority in
the House of Commons. The minority were
supposed to be protected by full debate in the
House of Commons and by the power of the House
of Lords to amend or reject measures, and in the
last resort by the power of the King to withhold
his assent. Those who had no votes had no repre-
sentation in Parliament at all except through the
House of Lords and the King.

Now all this was very well on the whole so long
as the Cabinet Ministers ''played cricket." This
is not the place to re-open a discussion as to the
rights and wrongs of the production of the cele-
brated Budget of 1909 and its rejection by the
Peers. It may be claimed that to use the Budget as
a means of inflaming class prejudice and of coining
party capital was unconstitutional on the ground
that the ethics of the Constitution only contemplate
a Chancellor of the Exchequer making an equitable
distribution of taxation for the expenses of the
current financial year. On the other hand it may
be claimed that there was no precedent for the
Peers rejecting a Budget, and that the absence of
of this precedent rendered their action in a certain
sense unconstitutional. But one thing is certain,
there was no legal means of preventing a Chancellor
of the Exchequer producing a revolutionary
Budget, and no legal means of preventing the
Peers rejecting it. Both were within their strict
legal rights. The real damage to the Constitution

58 RIGHTS OF CITIZENSHIP

came afterwards. Both parties might have co-
operated to strengthen the Constitution so as to
deal with the question of the House of Lords,
particularly with regard to finance, in a way that
all reasonable people of both parties would have
accepted. This is the best chance of securing per-
manence for any alteration in the Constitution, if it
has to be altered at all. But instead of that, the
Radicals set to w^ork to make a party settlement
and not a national one, by abolishing all the effective
power of the House of Lords in the face of the
protests of a powerful Opposition.

Pages could be written about the morality of
the means employed to achieve this end. But to
the individual the fact that the Radicals obtained
from the King a free hand to create as many peers
as they might require to vote down the House of
Lords has had a most important result. It means
to every inhabitant of Great Britain and Ireland
that he is no longer governed by King, Lords and
Commons. He must remember from henceforth
that since the Constitution under which he was
brought up has been destroyed by the Parliament
Act, the House of Lords is no longer able to give
him an opportunity of saying ^'aye" or ''no" to
any legislation affecting his welfare that has passed
the House of Commons. Someone will say that
the Act still gives the Lords power to delay the
Bills for two years. Do not make any mistake.
This is a trap for the unwary or, as Lord Selborne
said on a famous occasion, '' a cunning device con-
ceived for the deceit of the moderate Liberal." The

THE CONSTITUTION AND INDIVIDUAL 59

whole object of the House of Lords in rejecting a
Bill is that it may be submitted to a vote at a
General Election. This might never happen under
the Parliament Act. Lord Selborne's damaging
analysis of *' the two years' fraud " is so complete
that it may be quoted at length : —

" Under the cloak and pretence of the issue of
'the rights of the people versus the peers/ the
people are being robbed by the House of Commons
of their Constitutional power to say the last word
in great national issues, and the Prime Minister of
the day is being lifted into the position of a dictator.
There are those who do not appreciate the full
extent of this revolution, and the reason why they
do not do so is because of what I may call ' the two
years' fraud.' That was a most cunning device
conceived for the deceit of the moderate Liberal.
But the Nationalists, the Socialists and the Radicals
entirely understood its value. If that two years'
power of delay had been worth anything at all, do
you suppose that the Nationalists, the Socalists and
the Radicals would have agreed to it? No, this
two years' delay is worth absolutely nothing at all.

" In the first place let me point out that it is not
a two years' delay, but an eighteen months' delay.
Take the case of a Home Rule Bill for Ireland.
Suppose it to have been read a second time in the
House of Commons in March. It could not possibly
have emerged from its treatment in both Houses
until six months after that period, and, therefore,
the additional time allowed for what is called

60 RIGHTS OF CITIZENSHIP

counsel and reflection is not two years but eighteen
months. Now, consider what the value of those
eighteen months would be. What would be their
value in the House of Commons? Suppose the
Home Rule Bill for Ireland to have once passed
the House of Commons. On the second or third
occasion, how much consideration and how much
time do you suppose would be given to it ? Its
passage the second and third time through the
House of Commons would be purely perfunctory.
The letter of the Parliament Act would be observed,
but great care would be taken by the use of the
kangaroo closure and the gag that no critical
questions should again jeopardise the fate of that
measure in the House of Commons. And what
would happen in the House of Lords — the House
of Lords as it would be when the Parliament Bill
had passed? They might reject the Home Rule
Bill on the second or third occasion. But so might
any debating society in the country. And what of
the country ? In the country we are told that these
eighteen months are of real value, because the
searchlights of criticism would be brought to bear
on the measure at issue. Yes, we could make
speeches, and so could our opponents. Our Press
would write articles and so would theirs. Is there
any centre of population in this country where, if
we held meetings of protest against this measure,
equally good meetings — possibly filled exclusively
by Irish Nationalists — might not be held by the
other side? And what would be the attitude of
the Irish Nationalists in the House of Commons ?

THE CONSTITUTION AND INDIVIDUAL 61

Their great aspiration, the one measure for the
accomplishment of which they exist, would be
launched on its two years' course. Do you suppose
anything would induce them to vote against the
Government until these two years had elapsed ?
So it would be, if you come to think of it, in regard
to each one of those measures that occupy the
forefront in the programme of the Government.
The Welsh Members, the Irish Members, the
Socialist Members, each would have seen launched
on its two years' career the one measure for which
they care, and no power on earth would induce
them to give a vote that might jeopardise the fate
of the Government during those two years. You
would have a solid phalanx in the House of Commons
whose sole interest in politics would be fixed on
the retention of office by the Government for those
two years. And what would they care for the voice
of the electors as pronounced at by-elections ?
The very worst thing that could possibly happen
to us is this, that each of these measures should
become law at the end of the two years, and become
law irrevocably, just before a General Election,
when not one evil effect of those of which they all
would be pregnant had manifested itself, and when
there would have been no opportunity for the action
of the House of Lords to have justified itself"

Lord Lansdowne's statement of the effect of the
Bill is equally telling; after commenting on the
possible smallness of a majority, he said :

" There is literally nothing whatever which is
safe. The most fundamental issues are at its mercy.

62 RIGHTS OF CITIZEiNSHIP

It may insist upon passing a measure inflicting
irreparable injury upon our most cherished institu-
tions. The Crown is not safe. The Constitution
is not safe. The Church is not safe. Our political
liberties are not safe. Literally no institution,
however much revered and respected in this
country, is beyond the reach of a majority of the
kind I have described just now."

This gives us all something to think about, no
matter what our station in life may be. One more
quotation with regard to the vital necessity of a
strong Second Chamber to control the House of
Commons must be given. It is from Oliver
Cromwell. In 1652, when the House of Com-
mons had uncontrolled power, Oliver Cromwell
said :

^'The Members of Parliament chiefly occupied
themselves in getting profits for themselves and
their friends, and in delaying business in order to
continue in power, and they could not be kept
within the bounds of justice, law or reason, because
they themselves were the supreme power of the
nation, liable to nobody, and could not be con-
trolled or regulated by any other power, there
being none superior or co-ordinate with them.
That unless there was some authority and power
to restrain them and keep things in order, it would
be impossible to prevent the ruin of the country."

It is of no avail for any one to say that he is
not interested in constitutional government. The
first-fruits of the Parliament Act are already law,
and concern each citizen very nearly. The chief

THE CONSTITUTION AND INDIVIDUAL 63

of them are the Insurance Act, and the Payment
of Members of Parliament.

The payment of Members of Parliament is in
its very nature unconstitutional, in the sense that
it is opposed to the whole spirit of our traditions.
One of the finest traditions of English public life,
and one of the greatest guarantees for its purity,
is the vast amount of public service that is offered
without any hope of reward except the honourable
reward of duty. If for the sake of argument it is
granted that this thesis is open to doubt, there is
at least no doubt that this very grave change in
the character of the House of Commons should
not have been carried behind the backs of the
electors. It is dead against the spirit of the Con-
stitution that this deed should have been done
without the nation being consulted. Is there any
one who will say that it is a matter of no moment
to him whether or no he has to pay his Member of
Parliament ?

Now let us look at the Insurance Act. This is
a colossal affair. There is hardly any one who will
escape inquisition. It marks off good lives from
bad lives in a manner about which there can be no
mistake. A Deposit Contributor is a marked man
for life. It creates an army of officials, and an
autocratic body of commissioners. The fact that
it has caused so much restiveness and apprehension
in the country is a healthy symptom of the national
character. There is nothing English people dislike
so much as interference with their private affairs.
The Constitution has hitherto proceeded on the

64 RIGHTS OF CITIZENSHIP

idea of imposing as few restrictions as possible
on liberty. Foreigners have been surprised at the
absence of notice boards and '^Dont's" in our
system that pervade countries who enjoy the
luxury of a written Constitution. The Insurance
Act has altered all that, and most English men and
women are profoundly alarmed.

They are also indignant at the manner in which
the Bill was hustled through the House of Commons
to make way for Bills to give Home Rule ; for
Ireland and to disestablish the Church. Both
these measures had to be promoted by the Govern-
ment as the result of pressure from sections of their
followers, and are themselves designed to make
further inroads on the Constitution. But some
one may sa}'- that if all this be true, why did not
the House of Lords amend or suspend the Insurance
Act?

In this connection it is interesting to observe
that almost before the ink was dry on the Parliament
Act the Trades Unions besought the House of Lords
to protect them from the excesses of a Radical
Government. The Trades Unions were reinforced
in this prayer by chambers of commerce, mer-
chants, friendly societies, agricultural organiza-
tions, doctors, shipbuilders, and clerks from all
over the country. These appeals form a clear
national demand for a strong Second Chamber.

This is not the place to discuss the pass-
ing of the Insurance Act by the Lords. But it
may be pointed out that the principle of the Bill
was accepted by all parties in the House of

THE CONSTITUTION AND INDIVIDUAL 65

Commons, and that the Parliament Act campaign
has deprived the House of Lords of— at any rate,
for the time being — its moral as well as its legal
authority. You cannot threaten and degrade one
House of Parliament one minute, and the next
minute expect that House to undertake the gigantic
responsibility of handling a huge and complex
national measure on the main principle of which
the other House of Parliament was almost unani-
mously agreed.

The case of the Home Rule Bill is different. It
is being fought both in principle and detail by a
very strong minority in the House of Commons.
A part of the nation that cannot be ignored has
declared that it will not obey the measure if it
passes. Public opinion may expect the House of
Lords to use even the shadowy powers of delay
given by the Parliament Act in the hopes that the
threatened catastrophe, which many think will
amount to Civil War, may be averted.

This amount of speculation has been necessary
in order to bring home to the individual the posi-
tion in which he is placed by the loss of the old
Constitution. Supposing the House of Lords
suspend the Home Rule Bill, and supposing that
nothing happens to bring on a General Election
before the Bill becomes law, the individual who is
determined that he will not have Home Rule at
any price has only got one card left to play before
he resists by force. That card is the fact that a
Bill will not have the force of law until the
Sovereign has given his consent to it.

66 RIGHTS OF CITIZENSHIP

The most important effect of the working of the
Constitution that may be brought about by the
destruction of the House of Lords is the revival of
the power of the monarchy. For some centuries
after the Constitution received definite shape, the
King was the most important part of the governing
body. He could even govern for a time, and did
govern after a fashion, without any Parliament. It
was not until the reign of William III that the
King became obliged to call a Parliament every
year for the purpose of granting supply. Since
that time the theory has prevailed that " the King's
government must be carried on." Even this theory
might be over-strained. A situation might be
imagined in which the King could carry on his
government in times of great stress with the moral
support of the army, the navy, the police, and
public opinion in the absence of the legal warrants
afforded by annual Acts of Parliament.

Be this as it may, the King still has the legal
right to refuse assent to any Act of Parliament;
and one tendency of the natural desire to restore
the balance of the Constitution may well be that
those over whom the House of Commons rides
roughshod will bring their grievance to the King
himself Those who may be shocked at this idea
should remember that the intention of government
by a King and two Houses of Parliament was to
guard against despotism on the part of any one
portion of the Constitution ; that if the House of
Commons went beyond what was morally right a
nation accustomed to freedom would be sure to

THE CONSTITUTION AND INDIVIDUAL 67

seek redress ; that the monarch was saved from
the invidious task of settling disputes between
the nation and the Commons by the intervention of
the House of Lords ; and that as the effective power
of the House of Lords has now gone, the likelihood
of the King being brought into play has to be faced.
The Constitution exists for the nation ; the nation
does not exist for the purpose of illustrating the
working of the Parliament Act.

If the supremacy of Parliament, or whatever
combination of forces contrives to control Parlia-
ment for the time being, is of vital concern to the
individual, the supremacy of the law is no less
important. After an Act has left Parliament, and
become a Statute, the Constitution intends that
each citizen, or body of citizens shall be amenable
to that law, and that if any dispute arises, that
dispute shall be settled in the Law Courts. The
governing idea is that no one shall be subjected to
tyranny on the part of the executive, and that the
liberties of each subject shall be capable of being
brought before an impartial tribunal with no taint
of party politics. The case for the protection of
liberty was so admirably stated by Lord Alverstone,
the Lord Chief Justice of England, who holds the
highest non-political office in the country, that it
may be quoted. Speaking on June i8th, 1909, in
the City of London, he said :

"Time had been when the judges had stood
between the Crown and the liberties of the people.
That was a duty which was not likely ever again to
fall upon His Majesty's judges in any part of the

68 RIGHTS OF CITIZENSHIP

empire, because His Most Gracious Majesty was
among the first to recognize what were the proper
relations between the Crown and the Judiciary.
If, however, certain things were true which they
saw in the Press, it might be that the judges might
be called upon in the future to protect the interests
of the people against the executive ; but he hoped
that the time would never come when it would be
considered that the executive government was to
be its own interpreter of Acts of Parliament. He
trusted that His Majesty's judges would always be
regarded as the impartial tribunal to whom was to
be given the duty of interpreting Acts of Parlia-
ment."

There is no country where the judges deserve
and enjoy a higher reputation than in the United
Kingdom. The independence and fairness of our
Courts of Justice, and the vindication of the two
principles that no one can be lawfully made to
suffer except for a distinct breach of the law, and
that all shall be equal before the law, are among
the greatest treasures of this country. Yet we see
them all three being encroached upon, and are
forced to the conclusion that these encroachments
are due to modern party government, or in plain
terms, to the desire to catch votes.

All the world over you will, of course, find
people to whom constitutional or settled govern-
ment is irksome and disagreeable, but these
enemies of law and order have usually not been
found in high places. But lately we have had an
attack upon the judges publicly delivered by no

THE CONSTITUTION AND INDIVIDUAL 69

less a person than Mr. Winston Churchill when he
was Home Secretary. In the House of Commons
on May 30th; 191 1, he said that ^'the Courts held a
position of unequalled eminence in the eyes of the
world; and in cases between man and man no doubt
they deserved respect and admiration ; but where
class issues and party issues were involved it was
impossible to contend that the Courts commanded
the same degree of general confidence. On the
contrary, they did not ; and a very large number of
people had been led to the opinion that they were,
unconsciously no doubt, biased ... It was un-
fortunate that collisions occurred between the
Courts and the great Trade Union bodies."

This is a deliberate attack by a Cabinet Minister
on our judges, although the wording of it is a little
difficult to understand. It is dangerous, as it con-
veys the idea that justice should no longer be
impartially administered if it is inconvenient to
^'the great Trade Union bodies." The speech did
not command the assent of the vast mass of public
opinion, but it should not be forgotten, as it marks
a serious menace to the liberty of the individual.
And for this reason. Everybody is human. It is
therefore necessary for judges, of all people, to be
removed as far as possible from anything that may
influence their decisions. This has already been j
done. For instance, a judge cannot be removed
except by a formal resolution of Parliament. But
what assists the cause of justice more than any-
thing else is the absence of carping criticism from
outside. As Lord Halsbury said :

TO RIGHTS OF CITIZENSHIP

^ No judge could be just if he was continually
thinking what would be said of him next day in the
newspapers, and what might be said of him at the
next General Election . . . respect for the law as
law was not likely to be increased if men in high
places joined in a cry attributing base and unworthy
motives to the judges who had to administer the
law."

But there is another tendency also very destruc-
tive of liberty that must be noted. This tendency
is to remit either to a Government Department, or
to special bodies of commissioners, jurisdiction
over matters which in this country it has hitherto
been customary to reserve either to Parliament or
the Courts of Justice, and in this way to hand over
the liberty and property of the subject to fresh
authorities from whose decision there is in many
cases to be no appeal to the Courts of Law. This
has either been intended, or else actually done, in
the Education Bill of 1906, the Old Age Pensions
Act of 1908, the Irish Universities Act, 1908, the
Small Holdings and Allotments Act, 1908, the
Housing, Town Planning, etc., 1909, the Finance
Act, 1909-10, and the National Insurance Act, 191 1.
All these Acts are instances of what are called
bureaucratic legislation.

Bureaucracy is in itself a word of foreign de-
rivation, and conveys a notion distasteful to and
out of accord with English manners and customs.
It means government by officials, and its intro-
duction into this country means the establishment
of that system of "red-tape" that prevails in other

THE CONSTITUTION AND INDIVIDUAL 71

countries, but with which the British Constitution
has in the main contrived to dispense. As a nation
we have no great love for officials, especially when
they are appointed by the whim of the Government
of the day. The recent extension of the system of
patronage is formidable. Many people will be
surprised to learn that between January, 1906, and
August, 1910, 873 Government appointments at
salaries of over ;^ioo a year were given away with-
out being thrown open to public competition by
passing the Civil Service examination.

The disposal of liberty and property by officials
has been most marked with regard to the com-
pulsory acquisition of land, though under the
Insurance Act practically the whole nation will
be handed over to a body of commissioners. Now
it is not denied that there are cases where land
should be compulsorily taken if the public interest
obviously requires it; but in considering the
position of landowners of all sorts and degrees,
it should be remarked that this liability to com-
pulsory acquisition does not attach to owners of
movable property. But the general rule under
our Constitution has always been that powers of
compulsory purchase should only be given by the
special authority of Parliament with liberty to
the owner affected to appear by Counsel before
the Committees of both Houses of Parliament, to
show reason why compulsory powers should not
be granted against him. If compulsory purchase
was determined upon, the general practice was to
give compensation to tlie disturbed owner.

72 RIGHTS OF CITIZENSHIP

Recent legislation has altered this in a very
arbitrary manner. By the Small Holdings and
Allotments Act, 1907 (now repealed and re-enacted
in the Consolidation Act of 1908); powers are given
to County Councils of

{a) Compulsory Purchase

(b) Compulsory Hiring
of land for small holdings. The Board of Agri-
culture, whose reputation it should be noticed is
involved in the extension of small holdings, can
make an order for Compulsory Purchase, and if
the order is objected to, the Board must appoint a
person to hold an inquiry. The Board must con-
sider the report of the person who held the inquiry,
but is under no legal obligation to act upon it, and
an order confirmed by the Board is '^ final and con-
clusive, and has effect as if enacted in the Act."
In a case where the Board had confirmed an order
for taking a farm, the occupying owner, who felt
himself aggrieved, endeavoured to bring the matter
before the Courts of Justice for revision. It was
held that the Court had no jurisdiction. Mr.
Justice Jelf said {Times Law Report, Vol. XXV.,
p. 719):

"This case presented an illustration of the
length to which Parliament had the right to go in
ousting the powers and jurisdiction of Courts of
Law. If a majority in Parliament were successful
in passing an Act of Parliament which had that
effect, then the jurisdiction of the Courts of Law
in matters in which some people might think it
was desirable that even Government Departments

THE CONSTITUTION AND INDIVIDUAL 73

should be under the control of the Courts was
nevertheless ousted, and the Courts had no power
to interfere with the decision of the Department."

This very high-handed procedure is defended
by the Government on the ground of expense of
proceedings before Parliamentary Committees. But
it should be remarked that if the rights of private
property contemplated by the Constitution are to
survive, then what is called expropriation, even if
desirable, is a very delicate process, which may,
in the interests of justice, require lengthy, and
therefore expensive, handling. It should also
be remarked that, under the Small Holdings
Act and the Housing and Town Planning Act, the
Arbitrator is prohibited from hearing counsel or
expert witnesses, except in such cases as the Gov-
ernment Department otherwise directs. It would
be easy to give more instances of official autocracy
in the matter of land legislation, but we will now
look at something else of more general application.

Under the Insurance Act, 191 1, separate bodies
of Commissioners are set up for the whole
country. Vast powers are placed in their
hands. They can settle matters of vital importance
to the everyday life of each citizen without any
appeal. The Insurance Commissioners are ap-
pointed by the Government, and, in fact, they are
the Government Department administering the
Act, and ousting the Law Courts.

Doctors, druggists, employers, employed,
friendly societies, are all to be handed over to
the absolute control of these gentlemen, who may

74 RIGHTS OF CITIZENSHIP

make their own arrangements for settling disputes,
and whose decision is final. They may remove a
doctor from the panel of those entitled to treat
insured persons, and destroy his livelihood and
reputation at one blow. The doctor will have
absolutely no appeal to any one, even if the
decision is erroneous. The same thing applies to
any firm or company entitled to supply drugs and
medicines to insured persons. The Insurance Com-
missioners may withdraw their approval from any
society if, in their opinion, the society has failed to
comply with any of the provisions of the Act.
The question of the rate of payment by both
master and man is to be finally awarded by the
Commissioners, in accordance with regulations
made by themselves. In fact, it is difficult to
imagine a more serious inroad into the liberty of
the subject, as contemplated by the Constitution,
than has been made by this Act.

Having now seen something of the danger that
threatens each individual by the establishment of
separate authorities to oust people from their
constitutional right of access to the Courts of
Justice, with, in many cases, a power of appeal to
a higher court, let us look at one or two of the
rights of citizenship which are even more elemen-
tary, and which have been actually destroyed by
an Act of Parliament designed for the purpose.
The Constitution is a body of rules and conven-
tions determining the balance between the autho-
rity of the State and the liberty of the subject.
Some aspects of the making and carrying out of

THE CONSTITUTION AND INDIVIDUAL 75

Statute Law have already been presented, and
attention has been called to the increasing ten-
dency to bring the liberty of the subject under the
control of the Government of the day, by re-
moving it from the field of constitutional right. If
the right of access to the Law Courts is of pro-
found importance to the individual, even more
important is his right to have his personal freedom
protected by those who are responsible for using
the armed forces of the Crown.

This need has been so clearly brought before
the public by the action or inaction of the Cabinet
in connection with free labour, that it is unnecessary
to state the case at any great length. Two vital
constitutional principles are, however, involved.
First, that constituted, or recognized, authority
shall be supreme. Second, that constituted
authority shall be exerted to protect all law-abiding
men and women in their lawful occupations with-
out any regard to the favour or caprice of the
Ministry of the day.

Parliament, by passing the Trades Disputes Act,
has already seriously handicapped itself in carrying-
out these principles. The recent issue turned upon
the question of whether Great Britain is to be
governed by the Strike Committee of the Transport
Workers' Association, or by the ordinary forces of
law and order. The Trades Disputes Act has
deliberately and of set purpose placed Trades
Unions above the Constitution.

They have quite naturally taken advantage of
their new position of legal superiority over their

76 RIGHTS OF CITIZENSHIP

fellow-countrymen. They have tried to hold up,
and in some measure have succeeded in holding
up, the trade of the country. They have actually
sat in a room issuing " permits " as to what class of
goods shall or shall not be allowed to enter London,
and issuing passes to their fellow-citizens allowing
them the use of the King's highway.

They have coerced and intimidated free men
until the protection of free labour had to be sought
from the Home Secretary. Now, the doctrine laid
down by the Government with regard to the pro-
tection of free labour is vital to everybody, and
particularly to the working-classes. It is not only
a question of disturbance, or a question of trade, or
even a question of the starvation of the country,
though all these things are involved.

All these things ultimately hang on the great
constitutional principle of personal freedom which
the very Constitution was called into being to
safeguard. The doctrine that the Government
seek to lay down is that the Ministry of the day
shall have power to discriminate under what cir-
cumstances they will, or will not, grant or withhold
from free British subjects the benefits of the British
Constitution. In other words, if full significance is
to be given to the attitude of the Government
towards free labour, we have reached a stage in
English history when Cabinet Ministers are seeking
to suspend constitutional guarantees for freedom
on any occasion when to enforce them might, in
their judgment, have inconvenient results to them-
selves.

THE CONSTITUTION AND INDIVIDUAL T7

Reference has been made to the great consti-
tutional principle of personal freedom. Public
opinion has, of course, decided that personal
freedom must be limited in the general interests of
society. For instance, laws have been passed
enforcing, with the assent of public opinion, such
duties as the payment of taxes and the education
of our children. Even these matters have been
subjects for grave dispute. But an elementary
right of citizenship about which there can be no
dispute in any civilized state is the right of every
man to make a free bargain, and as Mr. Austen
Chamberlain said in the House of Commons on
June 13th, 1912, "to sell his labour freely in a lawful
calling and to be allowed to go about in the pursuit
of his calling freely and without being subjected to
intimidation, threats and violence."

If we were to start all over again in England
with a written constitution, the rather wooden
device that some countries, not inferior to our own
in civilization, have found themselves obliged to
adopt, this is one of the elementary rights that
would have to be clearly reduced to writing. In
this country primary rights are protected rather by
remedies for their infringement than by their being
expressed in any single document. In Belgium,
for instance, the right to personal freedom is
"guaranteed " in an article of a written constitution.

The important thing, however, is not the state-
ment of the right, but the means to make the right
effective. In England this means has been provided
by the Habeas Corpus Acts, passed to prevent

78 RIGHTS OF CITIZENSHIP

anyone being kept in prison without being brought
to trial. Arbitrary imprisonment is in this country
unknown to the law, except in circumstances of
peculiar danger to the State, when the Habeas
Corpus Acts might be suspended. But imprison-
ment does not only mean being brought to a gaol
by the policeman, and being kept there by the
turnkey. Anyone who is prevented by the set
purpose and action of his fellow citizens from going
about his lawful calling freely may also be said to
be imprisoned. And the portion of the Trades
Disputes Act that legalizes peaceful picketing
amounts to a partial repeal of the Habeas Corpus
Act, one of the great landmarks in the history of
personal freedom.

So far as the limits of this chapter will permit,
the ways in which the individual is related to the
Constitution have been in some measure traced.
An attempt has been made to show how his or her
interests are at the disposal of Parliament, the Law
Courts, and the Executive. These three institu-
tions combine to form what is called the State,
which is that portion of the social organism that
Society intends shall be the instrument of social
justice. They will command public confidence,
and serve their purpose, so long as their actions
are animated by the spirit of the laws, conventions,
understandings and traditions that are the ingre-
dients of the British Constitution.

Of the three, the Law Courts still stand high in
public estimation. It can safely be asserted that
this is because the judges are removed as far

THE CONSTITUTION AND INDIVIDUAL 79

as is humanly possible from the influence of party
politics. It is not so with Parliament and the
Executive.

In England when we speak of the Executive we
mean the Cabinet. The danger of a Parliamentary
Executive responsible to Parliament is that it may
be deterred from using its powers by the fear of
losing the votes of some of its supporters either
in or out of Parliament, and national interests
may be overborn by the supposed interests of a
political party. The danger to the individual of
representative government from the legislative
point of view is instanced by the attempt that is now
being made to disestablish the Church in Wales
and to give Home Rule to Ireland without submit-
ting to the electors the Bills embodying these
proposals. It is not easy to make out a claim that
even the principle of either of these Bills was really
what the country voted upon at the last election.
But certainly no taxpayer was given to understand
that he was going to be invited to pay a large sum
for the maintenance of Irish concerns over which
he is to have no direct control, while 42 Irish
delegates are to come to Westminster to vote
about British concerns.

There is only one remedy for this. It has been
very truly remarked that every country gets the
government it deserves. If we wish to save
ourselves and our freedom from the abuse and
abrogation of the Constitution we cannot set to
work too soon to create a public opinion that will
look to these matters, and insist that whenever

80 RIGHTS OF CITIZENSHIP

fundamentals are at stake, regard shall be had to
principle instead of party.

We are told that we have outgrown our clothes,
and that new organizations must be found. Let it
be admitted at once that real progress will, and
ought to, change the aspect of many things. But
the old truths cannot be changed. They form the
very bed-rock of civilization, and the vehicle of
progress. They are to be found in the instrument
of social justice known as the British Constitution.
Any attempt to whittle them away will be retro-
grade and not progressive, and reproduce a
condition of anarchy that our Constitution through-
out the ages has gradually resolved into a system
of orderl}'' progress.

CHAPTER IV

THE PARLIAMENT ACT, J 911, AND THE

DESTRUCTION OF ALL CONSTITUTIONAL

SAFEGUARDS

By Professor A. V. Dicey

My readers may reasonably ask what is meant by
a " constitutional safeguard " ? My answer is this :
A constitutional safeguard means, under any form
of popular and parliamentary government (such as
exists, e.g. in England, in the United States, or in
France), any law, or received custom, which secures
that no change in the constitution or the fundamental
laws of the country shall take place until it has
obtained the permanent assent of the nation.

So much may well be said as to the meaning of
an expression which may cause some perplexity.
With this explanation it is easy for me to state the
object with which I have written this chapter. My
aim is to impress upon my readers three important
truths : The first truth is that the Parliament Acti .
has destroyed our last effective constitutional safe-
guard. . The second truth is that the whole ex-
perience of every country, which enjoys popular
government, proves that the absence of constitu-
tional safeguards imperils the prosperity of the

82 RIGHTS OF CITIZENSHIP

State. The last truth is that the absence of con-
stitutional safeguards is full of danger to England ;
for it enables a party, or a coalition of parties, to
usurp the sovereignty of the nation.

(A) The Parliament Act, 191 1, has destroyed our
last effective constitutional safeguard.

(I) The nature of these safeguards. — The dif-
ferent safeguards which have from time to time
protected the rights of the nation may be brought
under three heads : —

(i.) The so-called Veto of the King.— -Down at
least to the accession of George I (17 14) the King
was the real head of the Government. He took an
active, sometimes a predominant, part in Parlia-
mentary legislation. No man disputed the King's
right to refuse his assent to a Bill which had been
passed by ;the two Houses of Parliament. This
right in theory still exists : it is not touched by the
Parliament Act, but it has never (for any political
object) been made use of for at least 200 years.^
The veto of the King, though its existence is of
importance, is all but obsolete. It is not in the
twentieth century an effective safeguard of the
Constitution.

1 Burke has pointed out that the veto and other latent rights of
the Crown may, under unforeseen circumstances, be of great utility
to the country. As regards the King's veto, experience has fully
proved Burke's foresight. The royal veto is the foundation of the
right of the British Cabinet to disallow a Bill passed by the legis-
lature of a self-governing colony, when such Bill is clearly opposed
to the legislation of the Imperial Parliament and to the interest
of the Empire (see Dicey, Law of the Constitution, 7th ed.,
pp. 98-116).

DESTRUCTION OF SAFEGUARDS 83

(ii.) The Constitution of tlie House of Commons
up to the full development of Household Suffrage
in 1884. — Everybody now acknowledges, what even
thirty years ago educated men were slow to admit,
that Parliament (by which term a lawyer must
always mean the King and the two Houses) has
constitutionally a right to make any new law it
pleases, to repeal any law, or to change or abolish
any law or institution whatever. But every one
also knows that this doctrine of Parliamentary
omnipotence has, during long periods of history,
been combined with a strong public opinion that
though the constitution and the more important
laws of the realm could be changed, yet the con-
stitution and such laws should be treated as practi-
cally unchangeable, unless their amendment were
unmistakably demanded by the voice of the nation,
or, in other words, of the electors.

The existence of this feeling was, down from
the Revolution of 1688 to very near the great
Reform Act of 1832, an adequate constitutional
safeguard, and sometimes too strong a safeguard,
against sudden change not approved of by the
nation. I do not deny for a moment that the
constitution of the unreformed Parliament did
exhibit serious defects. All I do maintain, and
maintain with absolute confidence is, that if reforms
were, as I admit, at times unduly delayed — the
Catholic Emancipation Act, for example, might
have been with great advantage to the country
passed in 1820 or 1825 instead of in 1829 — 3^et the
character of the unreformed House of Commons

D

84 RIGHTS OF CITIZENSHIP

and the opinion of the day provided an ample safe-
guard against the danger of usurpation of the
national sovereignty by a party which had obtained
a temporary majority in the House of Commons.
Oddly enough the great Reform Act produced less
immediate change of public sentiment than was
expected by either the opponents or the authors of
the Act. The Whig leaders themselves insisted
on the finality of the Reform Act. Peel advocated
administrative improvements instead of constitu-
tional changes. Palmerston, after the middle of
the nineteenth century, was in reality a Liberal-
Conservative in domestic affairs. The few reforms
in which he personally took an interest often did
not command public support. At the height of
his popularity (1857) he with great sagacity pro-
posed to revive the habitual creation of life
peerages; but this most statesmanlike idea was
not heartily supported by the people.

All these things, which some men still living
can remember, are sure signs that till 1867, or
rather till 1884, Englishmen and Parliament on the
whole practically accepted the unchangeableness
of the constitution. The experience of the last
25 or 28 years proves that the change in the con-
stitution of the House of Commons, and the change
in public opinion has so weakened this second con-
stitutional guarantee, that it can no longer be relied
upon to protect the rights of the nation.

(iii.) The legislative authority of the House of
Lords. — Till last year it was universally admitted
that (except in respect of Money Bills) the House

DESTRUCTION OF SAFEGUARDS 85

of Lords possessed the same right as the House of
Commons to reject any Bill whatever. Of course
no man of sense had since 1832 ever supposed that
the Upper House could reject or ought in fact to
reject permanently any Bill passed by the House of
Commons as the undoubted representatives of the
nation. The legislative authority of the House of
Lords meant, and was up to 191 1 understood to
mean, that the House had the power, and was
under the obligation to reject any Bill of first rate
importance which the House reasonably and bond
fide believed to be opposed to the permanent will
of the country. This doctrine, like every other
constitutional doctrine, must of course, as most
Englishmen have always felt, be construed in accord-
ance with common sense. The nation's assent to
a Bill may be given in several different manners.
It may be made manifest by the clear absence of
any vigorous opposition to a particular measure.
It may again be signified by the whole character of
a proposed measure (e.g. Gladstone's plan for the
Disestablishment of the Church in Ireland), having
been laid before the electors and been the main
object of debate at a General Election. If under
such circumstances the electors should, by their
votes, ratify, as they did, Mr. Gladstone's policy, it
was surely right to treat such ratification as the
deliberate approval by the nation. But no one
till 1910 and 1911 seriously disputed the doctrine
that the House of Lords in modern times had
the right to demand an appeal to the people
whenever on any great subject of legislation

86 RIGHTS OF CITIZENSHIP

the will of the electorate was uncertain or un-
known.

The House of Lords has, of very recent days,
used its authority to safeguard the rights of the
nation. Any one may feel well assured that in 1869
the Bill for the Disestablishment of the Irish
Church would have been rejected, and rightly
rejected, by the Lords had not the question of
Disestablishment been clearly and undoubtedly
placed before the people at the General Election of
1868. The Lords again in 1893 rejected the Home
Rule Bill of 1893, which had been passed by a small
but unwavering, majority of the House of Commons.
The Ministry of the day, after their defeat, held
ofifice unconstitutionally till 1895. The appeal to
the people which ought to have been made at once
was, when it took place, decisive. The return of a
large Unionist majority was the approval by the
people of the rejection by the House of Lords of
the Home Rule Bill of 1893. It was the solemn con-
demnation by the people of the United Kingdom of
the whole policy of Home Rule. This condemna-
tion should never be forgotten; it is of infinite
significance, it means that at a great crisis in the
fortunes of England, the hereditary House of Lords
represented, whilst the elected House of Commons
misrepresented; the will of the nation.

Nor was the authority of the House of Lords, as
protector of the Constitution, seen only in the cases
in which the House came openly into conflict with
the House of Commons. The legislative power of
the Lords was seen sometimes in the modification

DESTRUCTION OF SAFEGUARDS 87

of Bills passed by the House of Commons and even
more frequently in preventing a Bill from being-
brought into the House of Commons.

The source of this power was, however, always
one and the same, namely the doubt, and the reason-
able doubt; whether the House of Lords in modify-
ing or rejecting a Bill, might not be found at the
next General Election to be the true representative
of the will of the nation.^

Its authority supplied a true, though imperfect,
constitutional safeguard ; and it was, in 1910, our
last effective safeguard.

(II) The Parliament Act, 191 1, destroys the last
of our constitutional safeguards, for it indubitably
produces the following effects : ^

The House of Lords retains no power whatever
in regard to any Money Bill, and a Money Bill
means, under the Parliament Act, any Bill which
the Speaker of the House of Commons for the time
being pleases to endorse as a Money Bill. The
House of Commons, on the other hand, has absolute
and uncontrolled power over every such Money
Bill.

^ The true defect of the House of Lords as a constitutional
safeguard is not that it rejected Bills too often, but that it did not
reject them often enough. It represented too much, not the con-
servatism of the nation, but a quite different thing, the interest of
the Conservative Party. Its weakness was that it did not criticise
with sufficient severity Bills proposed when Conservatives were in
office. It is now admitted on all sides that the remedy for this
weakness is a reform in the Constitution of the House of Lords.
The so-called Liberals of the day have refused to apply this
admitted remedy.

2 See " Thoughts on the Parliament Act," iii and iv, Times^
Tuesday, September 12th, and Saturday, September 23rd, 191 1,

88 RIGHTS OF CITIZENSHIP

With regard to Public Bills (which are not
Money Bills) the House of Lords has, under the
Parliament Act, no final veto. The House of
Lords may, however, exercise a suspensive veto
which may delay such Bill (e.g., a Bill for the total
abolition of the House of Lords or for changing
the succession to the Crown, or giving to every
woman of 21 years of age a vote for Parliament or
the right to be elected to a seat in Parliament)
from passing into an Act for a little more than
two years.

But what is now the legislative power of the
House of Commons in regard to any public Bill
which is not a Money Bill? It is the answer to
this question which I wish to force upon the care-
ful attention of every one of my readers. The
Parliament Act gives to the House of Commons,
or in truth, to the majority thereof for the time
being, power to pass into law any public Bill
whatever, ^ in spite of the rejection thereof by the
House of Lords. Every Statute, past, present or
to come, and every law, whether contained in the
Statute Book or not, is now rendered subject to the
sole and despotic authority of the present coalition
or of any other faction which may attain a majority
by whatever means in the House of Commons.

Upon the present House of Commons and
every subsequent House of Commons, has been
conferred an absolute legislative dictatorship.
England is now governed by one Chamber alone.

1 Except a Bill to extend the maximum duration of Parliament
beyond five years.

DESTRUCTION OF SAFEGUARDS 89

The House of Commons can repeal the Magna
Charta; it can alter the Act of Settlement ; it can
enact that the Crown may descend to a Roman
Catholic; it can extend the already enormous
privileges conceded to Trade Unions under the
Trades Disputes Act, 1906; it can dissolve the
Union between Great Britain and Ireland, and
between England and Scotland; it can establish
universal suffrage in the strictest sense of that
term, so as to include woman suffrage; it can pass
an Act giving an old-age pension to every man or
woman of 50. All this may be done though the
House of Lords may have rejected every one of
these Acts; all this and much more can be done
without any necessity whatever for an appeal to
the electorate. This statement is no delusion of a
fanatical Unionist. The world knows that one
motive at least, for the passing of the Parliament
Act by the House of Commons, and forcing it by
means of a ministerial misuse of the prerogative
through the House of Lords, was that the Act
makes it possible to pass a Home Rule Bill and a
Woman Suffrage Bill without an appeal to the
nation. Nor does the matter end here. The
Parliament Act, as we shall see, must continue
in force for at least two years, but otherwise the
Parliament Act can itself be repealed and modified
by the House of Commons. The Parliament Act
indeed places two limits on the exercise by a
House of Commons majority of unlimited legisla-
tive power.
\The one limit is that any Bill which is to be

90 RIGHTS OF CITIZENSHIP

passed in spite of the dissent of the House of
LordS; must be passed three times in three suc-
cessive Sessions by the House of Commons. Note,
however, that '^ three Sessions " is not the same as
three years ; two Sessions are often now held in
one year. Note, too, that successive Sessions are a
totally different thing from successive Parliaments.
If the House of Comm.ons would have substituted
*' Parliaments " for " Sessions " the inherent vice of
the Bill would have disappeared. For such a
change would have made it certain that no Bill
rejected by the Lords could have passed into an
Act without an appeal to the people. The first
so-called restriction is worth little ; its real effect,
and in truth its real object, is not to restrain but to
increase the power of a dominant party. It enables
a House of Commons majority to pass Bills, say a
Welsh Disestablishment Bill, which the party in
power suspects to be opposed by the will of the
nation.

The second limit or restriction is that no Bill

I can, without the assent of the Peers, be passed into

I law ^'unless" two years have elapsed between the

' date of the second reading [of a Bill] in the first

of [three successive] Sessions of the BilP in the

House of Commons and the date on which it passes

the House of Commons in the third of those

^" Sessions of the Bill" are the words of the Parliament Act.
This language is dubious English. It apparently means " the three
successive Sessions during which any Bill intended to pass into
law, though rejected by the House of Lords, must be brought
into, and passed by the House of Commons."

DESTRUCTION OF SAFEGUARDS 91

Sessions."^ The meaning of these words is best
made clear by an illustration. The second reading
in the House of Commons of the present Home
Rule Bill took place on May 9th, 1912. The
Bill cannot, without the assent of the Lords,
become an Act of Parliament till May loth,
1914. This restriction is a real one. It means
something, but it does not mean much. It gives to
the Lords a suspensive veto for two 3^ears. But
the importance of this suspensive veto is diminished
by one material fact. A House of Commons
maj6rity may, under the Parliament Act, cut
down the suspensive veto of the Peers to one
year or to six months, or indeed may abolish it
altogether. Under the Parliament Act then, any
party which has obtained, by whatever means, a
House of Commons majority, can arrogate to itself
that legislative omnipotence which of right belongs
to the nation.

(B) The experience of all countries, where popular
and Parliamentary government exists or has
existed proves the necessity for constitutional
safeguards.

Many most respectable persons think that the
House of Commons will never misuse its now
exorbitant power to defy the will of the country.
Every advocate of the Parliament Act relies upon
this argument. It is utterly unfounded, it is con-
futed by universal experience.

The inhabitants of every country where popular
and Parliamentary government exists or has existed
^ Parliament Act, 191 1, S. 2, sub-s. (i).

92 RIGHTS OF CITIZENSHIP

have acknowledged the necessity of having two
legislative Chambers or, as we should say, two
Houses of Parliament. No country, except Eng-
land, now dreams of placing itself under the rule
of a single elected House. The most democratic
of existing Governments, further, are not content
with the safeguard provided by the existence of
two Houses. They have generally instituted
many other safeguards against Parliamentary
despotism. To illustrate this truth, consider for
a moment the Constitution of the United States —
of the Swiss Confederacy — of the Third French
Republic — of Norway — and of the Australian
Commonwealth — and the annals of the English
Commonwealth.

The United States.— The Constitution of the
American Commonwealth is based from top to
bottom on the principle that no legislature can
be entrusted with anything like unlimited power.
Congress can alone legislate for the whole federa-
tion. It consists of two. Houses : the Senate,
which represents each of the States, and the
House of Representatives, which represents in
proportion to their numbers the citizens of each
State. The two Houses have each real and effec-
tive power. The Senate may amend or reject any
Bill passed by the House of Representatives ; it
has been through most periods of American history
a more powerful body than the House of Repre-
sentatives. The President again has a real, and an
often exerted, veto on any Bill which has passed the
two Houses ; no Bill can be passed against his will,

DESTRUCTION OF SAFEGUARDS 93

unless, after it has been returned (i.e., vetoed) by the
President, it is supported by two-thirds of each of
the Houses of Congress. The power of Congress
itself is confined within narrow limits by the terms
of the Constitution. The Constitution cannot be
changed by Congress. Any alteration needs the
assent of at least three-fourths of the forty-eight I
States which make up the United States. The j
Courts further, and ultimately the Supreme Court ^
of the United States, can treat any Act passed by
Congress in excess of its powers as invalid. Note
also that any power not conferred upon Congress
resides in the people of each State.

Every State of the Union (except one) has
itself a Legislature of two Houses. The Con-
stitution of the Union cuts down in some respects
the power of the State legislatures. What is of
even more importance, each State has its separate
Constitution. This Constitution always limits the
power of the State legislature, and, speaking
broadly, in every State the principle is recognized
that amendments of the Constitution cannot be
passed and become part thereof until they have
been submitted to and approved by the vote of
the people. This appeal to the people is really
what we now call in Europe a Referendum. It is
recognized and practised in almost all the States
of the American Commonwealth. Add to this that
the Courts treat as invalid any law passed by the
legislature of a State, e.g., New York, which is
Inconsistent with any article of the State Con-
stitution. Thus, throughout the Constitutions of

94 RIGHTS OF CITIZENSHIP

the American Commonwealth and of the States
thereof, j^ou find the strictest restrictions on the
legislative power of elected Parliaments. The
idea of giving in effect unlimited power to one
House of any Parliament would be laughed down
by all American citizens.

The Swiss Confederacy.— Switzerland is the
most democratic of Republics ; Switzerland is
a well-governed country, and an economically
governed country ; Switzerland is a country of
small extent and a comparatively small population;
Switzerland is surrounded by huge military States,
but Switzerland knows how to hold her own and
to maintain both her dignity and her independence.
This democratic Republic, however, repudiates
the dogma of Parliamentary omnipotence. The
legislature of the Confederacy is made up of
two Houses— the Council of States, representing
the cantons— the National Council, representing
the people. This Two-House Parliament, or
Federal Assembly, can pass Bills which change
the Constitution, but these Bills cannot become
law until they have been referred to the nation,
and have received the assent both of the people
and of the cantons. Here we have the celebrated
Referendum.^

The Third French Republic— France has during
a period of some 120 years made trial of at least
twelve Constitutions. Her experience has very

^ I have purposely omitted all details as to the working of the
Referendum in respect either of federal laws which do not touch
the Federal Constitution or in respect of cantonal legislation.

DESTRUCTION OF SAFEGUARDS 95

peculiar value. Thrice she has at crises of her
fate felt the practical and disastrous result of
government by one Chamber. She has found it
also extremely difficult to constitute a Second
Chamber or, as we should say, an Upper House,
which should be different from the Lower House
and yet exercise real power without obstructing
the course of government. The Third Republic
has already outlasted by a considerable number
of years every French Constitution created since
1789. It shows signs of strength and life; it is
accepted by every Republican, and apparently by
the mass of the people. Yet the Third Republic
is the condemnation of government by a single
and omnipotent Chamber. The Senate or Upper
House is, like the Chamber of Deputies, or, as we
should say, the Lower House, a wholly elected
body, but it is a Second Chamber of real dignity
and power. A modern French statesman — I have
been informed on good authority — prefers a seat
in the Senate to a seat in the Chamber of Deputies.
Then, too, no constitutional law can be changed
unless by the vOte of the two Chambers sitting
and voting together at what is called a Congress.
Modern France is assuredly not prepared to hazard
the despotism either of Parliament or of one
House of Parliament.

The Kingdom of Norway.— You may be surprised
that I direct attention to the Norwegian Consti-
tution. 1 do so because it has a peculiar interest
of its own. Norway is (if the expression may be
allowed) a monarchical democracy. It is based like

96 RIGHTS OF CITIZENSHIP

other democracies on universal suffrage. The
Norwegian Parliament is elected by every Nor-
wegian man of 25 years of age. It consists in one
sense of one House, the Parliament, or Storthing
containing 123 members. But from the moment the
Storthing meets, 30 of such members are elected by
the Storthing to form an Upper House or Lagthing,
whilst the remaining 93 constitute the Lower
House, or Odelsthing. The powers of the Upper
House are real. That House may reject or send
back any Bill twice, but after the second rejection
both Houses vote together as one,»though in that
case a majority of two-thirds is required for carry-
ing the Bill. Add to this that the King's signature
makes a Bill law. But if he refuses to sign and
the Bill is passed in three successive Parliaments
(not Sessions) it becomes law in spite of the King's
veto. The experience of this little but thoroughly
democratic State is worth notice. It affords an ex-
ceptional example of a One-House Parliament. But
here, if ever, the exception not only proves but
supports the rule. The sagacity of the Norwegian
democracy has detected and corrected the defects of
a Constitution devoid of Constitutional safeguards.
The Australian Commonwealth. — Australia pos-
sesses one of the latest and most elaborate of our
Colonial Constitutions. She is a typical self-
governing colony, and has as much of independence
as can be given to any land forming part of the
British Empire. The Constitution was drafted by
Australian statesmen. I will call attention to two
facts only. The Parliament of the Commonwealth

DESTRUCTION OF SAFEGUARDS 97

is elected by strictly universal suffrage, for women
no less than men, are entitled to vote as electors.
This Parliament consists of two Houses— a Senate
representing the separate States, a House of
Commons representing the people of the States.
No Australian dreams of a One-House Parliament.
The Commonwealth Parliament, though created by
an Act of the Imperial Parliament, can change
most of the articles of the Constitution, but the
alteration of the Constitution is surrounded by
special safeguards. A Bill which is to alter the
Constitution, must be passed by an absolute
majority of each House. It cannot become an
Act until it has been submitted to, and obtained
the approval both of the majority of the States
and of the electors who actually vote with regard
to the proposed amendment. The Commonwealth
has accepted and practised with success the
Referendum, or Poll of the People.

From the examination of modern democratic
Constitutions we obtain two undeniable and im-
portant results. The first is that every country
where popular government exists has recognized
the necessity of constitutional safeguards. No
country has the folly to place absolute sovereignty
to one omnipotent House of Parliament. The
absurdity of the Parliament Act, 1911, does not
find a parallel in any country whatever outside
the United Kingdom.^ The second conclusion is
that during the last fifty or sixty years the

^ Except it be Greece, and if Greece can afford any lesson to
England the lesson is a warning against a One- House Parliament.

98 RIGHTS OF CITIZENSHIP

sensible and wise men of every country have
recognized the fact that even a fairly elected
legislature made up of members who intend to
do their duty may misrepresent the permanent
wish of their country. This possibility was hardly
recognized by reformers during the first half of
the nineteenth century, yet the experience of
Switzerland is conclusive. The Referendum often
reveals the incapacity of sensible and well-meaning
members of Parliament to understand on some
one topic the will of the nation. This is so well
understood in Switzerland that the Swiss electors
constantly return again to Parliament the very
men who have on a particular point mistaken the
wishes of the nation but loyally accept the formally
expressed will of the country.

I am not pleading for any servile and pedantic
theory of what is called a ^'mandate." This dogma
may no doubt be so interpreted as to forbid to
members of Parliament the fair exercise of their
common sense and discretion. I fully admit that
*' to follow not to force the public inclination ; to
give a direction, a form, a technical dress, and a
specific sanction, to the general sense of the
community, is the true end of legislature."^ But I
confidently assert that the special danger of to-day
in England is that a House of Commons majority,
especially when it is a coalition of factions, should,
in obedience to a policy of partisanship, defy the
general sense of the community.

1 Burke, *' Works : Letter to Sheriffs of Bristol," vol. iii.
p 1 80.

DESTRUCTION OF SAFEGUARDS 99.

The English Commonwealth.— For eleven years
(1649-1660), though most people have forgotten
the fact, England was a Commonwealth. During
these years she had a Parliament consisting of
only a House of Commons. For four years (1649-
1653) this One-House Parliament was supreme.
It at once abolished the monarchy and the House
of Lords. It claimed to establish the rule of the
people of England as a Commonwealth or Free
State. This unlimited authority of the House of
Commons was for these four years no mere form.
The House stretched its power to the utmost. It
usurped judicial functions. It was accused, not
without reason, of corruption. It had neither the
strength to restrain nor the wisdom to conciliate
the Army. When in 1653 Cromwell and his
soldiers put an end to the Parliament, they did
an act which was popular with the country. One
lesson Englishmen, and especially English reformers
and democrats had taken to heart — the despotism
of a House of Commons which was legally under
no restraint, might become a combination of
incapacity and tyranny. Any one who doiibts
this should study the Constitution of 1653. It
expresses in every line thereof the determination
that the power of Parliament should be placed
under strict restraints. That Constitution, known
as the Instrument of Government, was a very
rigid Constitution. It contained certain principles
which Parliament had not the right to touch.
According to the views of most historians the
Articles of the Constitution were not changeable

100 RIGHTS OF CITIZENSHIP

by Parliament. The legislative power of Parlia-
ment was in one shape or another contrQlled by
the Protector. A strong Council of State went
a good way towards supplying the lack of a Second
Chamber. It is not my object in this article to
give historical details of the change in the constitu-
tion effected or attempted during the Protectorate ;
but to one or two general considerations it is
worth while calling attention.

Cromwell was assuredly anxious to carry on
Parliamentary government in England as he and
his contemporaries understood it ; yet with Parlia-
mentarians filled with the idea of the unlimited
authority of the House of Commons he found it
impossible to act. He and the reformers of his
day had no belief in a House of Commons of
unrestained power. In the last year of his life he
issued writs summoning to Parliament a newly
created House of Lords. Many historians now
perceive that if Cromwell's life had lasted, he
would in all probability have accepted the Crown
which had been pressed upon him and have
re-established with some great reforms the old
Parliament of England. He certainly would have
kept alive and given force to the Parliamentary
Union already created between England, Scotland,
and Ireland. There is assuredly nothing in the
failure of the experiment of a One-House Parlia-
ment during the seventeenth century^ which
supports the idea that a like experiment, though

^ See Marriott, "Second Chambers," for the Unicameral Ex-
periment, p. 26.

DESTRUCTION OF SAFEGUARDS 101

concealed under an absurd form, will be a success
in the twentieth century.

(C) The Special Danger of the Absence of
Constitutional Safeguards.

The Parliament Act gives, as I have shown,
unrestricted powers of passing laws to a House of
Commons majority. This power may assuredly
be misused. Two new circumstances make this
misuse certain. During the last fifty years, and
especially during the last thirty years, the strength
and the rigidity of the party system (or, as
Americans would say, the machine) has been
increased to an almost unlimited extent. This is
an undeniable fact. There must still be alive some
old men who, like myself, remember Palmerston
and his immense popularity. In 1857 he had
defeated a most unpopular coalition. At a general
election he had obtained the support of what was
then considered a huge majority. He was the
people's hero. Yet before two years had elapsed,
he was defeated in his own House of Commons
and resigned the Premiership. This defeat means
a great deal. It means that a good number of
Palmerstonians, though elected as Palmerston's
followers, felt free to withdraw their support.
They were assuredly not under the pressure of the
machine. Palmerston's return to power and his
retention of office till his death (1859-1865) bear
witness to the same laxity of party discipline. His
authority arose from the fact that many men of both
parties preferred the government of Palmerston

102 RIGHTS OF CITIZENSHIP

either to the government of the Radicals, as repre-
sented by Bright, or to the government of the Con-
servatives, as represented by Disraeli. Any man
who keeps his eyes well open will see that neither
Palmerston's overthrow in 1858 nor his subsequent
tenure of office from 1859 to 1865, could find a
parallel in the public life of to-day.

The second new circumstance to which I direct
my reader's attention is the growth of Parlia-
mentary groups or factions. A Parliamentary
group is a body of members who are regularly
organized and act together mainly for the promo-
tion of some particular object. Such are, for
example, the Irish Nationalists, the Labour Party,
the Temperance Party, or the political Noncon-
formists. The degree in which each of these
groups may be organized of course differs, but
they notoriously each act with a view to some one
or more political objects. They may or they may
not be allied with one of the two great parties
which, under the varying name of Whigs and
Tories, Liberals and Conservatives, and the like,
have for generations divided the political life of
England. But a group always exists primarily for
the attainment of its own special object. Now the
existence of each of these two new circumstances,
viz., the rigidity of the party machine and the
existence of organized groups, does, it will easily
be seen, immensely increase the easiness with
which the Parliament Act may be misused.

Let us suppose that the two large parties, whom
we may call the Ministerialists and the Opposition,

DESTRUCTION OF SAFEGUARDS 103

each command between two and three hundred
votes in the House of Commons. Neither party
can be at all sure of retaining office, for its
opponents may always obtain a majority from
having gained the votes of one or more of the
groups or factions — say of the Irish Nationalists or
of the Labour Party. It may even occur to some
ingenious intriguer at the head, say, of the so-called
Ministerialists, that he can obtain the permanent
support of all or most of the groups by promising
to each of them that if it will support his general
policy, i.e., keep him in office, he will under the
Parliament Act obtain for each group in turn the
object for which it cares most, e.g.. Home Rule for
the Irish Nationalists, an extension of Trade Union
privileges for the Labour Party, and an absolute
prohibition of all traffic in liquor for the Temperance
Party.

A moment's reflection will show that a coalition
formed on this basis may represent neither the
deliberate will of the nation nor even the true
judgment of a majority of the House of Commons.
A homely illustration will make my point clear. A
business firm consists, we will say, of Brown, Jones
and Robinson. Brown contributes a lot of money
to the concern, and he therefore is entitled to four
votes. Jones contributes little money, but, though
a dull and cautious man, has a good deal of business
experience. Robinson also contributes little money,
but brings into the firm much cleverness and
originality, though also no small amount of rash-
ness. Each of these two partners has only three

104 RIGHTS OF CITIZENSHIP

votes. Brown, the predominant partner, imagines
that his position is safe enough. He believes that
the prudence of Jones and the daring of Robinson
will balance one another, and that if Jones's caution
degenerates into timidity, Brown may rely on the
votes of Robinson, and if Robinson tries to embark
on a rash venture, Brown may rely on the votes of
the prudent Jones. All turns out as Brown wishes
until one fine day Robinson suggests to Jones that
the perpetual predominance of Brown is tiresome,
and proposes to remove it by a tacit arrangement
that alternately on a difference of opinion arising
with Brown, Eobinson shall support the proposal
of Jones, and Jones the proposal of Robinson.
Under this arrangement the wealthy Brown will
find himself nowhere. There are always six votes
against his four. But note the following circum-
stance. The coalition against Brown succeeds
because the votes of the majority, though they
obtain satisfaction for some of the private objects
of each partner, do not represent the real judgment
of the majority. Robinson supports the caution of
Jones when both he and Brown agree in thinking
it unwise. Jones supports the rashness of Robinson
though he really agrees with Brown in thinking
that it involves considerable risks. The private
agreement between Robinson and Jones would be
looked upon with very unfavourable eyes by any
court of justice. Common sense shows that it may
lead the partnership to ruin.

The rules of private life are in this case appli-
cable to political life. A Parliamentary coalition

DESTRUCTION OF SAFEGUARDS 105

based on elaborate log-rolling, even though free
from any taint of personal corruption, vitiates our
whole Parliamentary system and is opposed both
to the authority and to the interest of the nation.
I confidently assert, as does every Unionist, that
such a coalition exists. I appeal, not to secret
documents, which probably do not exist, but to
notorious facts. A Government which came into
existence on the plea of protecting Free Trade is
more and more inclining towards Socialism, and
has entered upon a course of reckless extravagance
foreign to every doctrine of Free Traders. Ministers
who but a few years ago talked of Home Rule as a
bogey invented by Tories, are now carrying through
the House of Commons a Home Rule Bill far more
injurious to England and far less likely to secure
amity between England and Ireland than either of
the Gladstonian Home Rule Bills. Their Irish
allies have voted, consistently enough from their
own point of view, for measures as, for example,
the Old Age Pensions Act and the National Insur-
ance Act, which they did not think desirable
for Ireland. English Nonconformists have been
induced, not one suspects without qualms, to turn,
in Parliament at least, a deaf ear to the bitter cry
of all Protestants, whether Nonconformists or not,
in Ireland. The abolition of the Church Establish-
ment in Wales has been carried through the House
of Commons by the aid of Irish Roman Catholics,
who are certainly not hostile to the State endow-
ment of religion and who will have comparatively
little to say — or rather ought to have little to say

106 RIGHTS OF CITIZENSHIP

— when the Home Rule Bill has passed into law,
to any matter regarding the government of any
part of Great Britain. At any moment when it
suits the Government Mr. Asquith may, as Prime
Minister, be advocating the proposal of Parlia-
mentary votes for women which he as a private
man avowedly condemns.

I have said that political log-rolling has hitherto
been free from any element of personal corruption.
But a desire to be fair to opponents may have
led me to express myself with some rashness.
Personal corruption, thank Heaven, does not yet
exist in the Imperial Parliament, but the corrup-
tion of classes has already begun. When an
election in a country district is to be won at all
costs, the candidate, backed by the Premier, boldly
advocates, we are told, a policy of land reform
which he sums up in the cry of '' the land for the
people " and thus assuredly holds out hopes which
must sound to agricultural labourers very like
promises for the distribution of land. The
National Insurance Act was certainly meant to
gain votes though it has not exactly attained its
end. What shall we say about the payment to
every member of Parliament who has not got a
lucrative office under the Government of a nice
little sum of ;^400 a year, which to the astonish-
ment of many plain men outside Parliament, is
being paid for services which members had under-
taken to perform gratuitously? And this ;^400 a
year which imposes a tax of about a quarter of
a million upon the overburdened taxpayer of the

DESTRUCTION OF SAFEGUARDS 107

United Kingdom, is full, to members of Parliament,
not only of comfort, but of hope. The originally
modest payment of members of the French Parlia-
ment has risen from about ;^300 to £600 a year.
The payment of members of Congress has at last
reached the sum of at least ;^i500 a year, and, as
some people say, comes by force of certain allow-
ances up to near ;^20oo a year. Who shall say
that ten years hence our excellent M.P.'s who, we
know rise so much above members of Congress,
will not be each blessed with a comfortable income
.of;^i5oo?

Let me conclude with a question which it
concerns every Englishman to answer ; let me
also give to it the plainest of replies. Why is it
that the revolutionary proposals of the Govern-
ment fill men of sense, who understand what the
plans of the Ministry mean, with intense fear?
My reply may be given in a very few words :
The fear is caused by the existence of the Parlia-
ment Act. This Act, and this Act alone, makes
it possible, nay, even probable, that ministers who
have lost, or are rapidly losing, the confidence even
of their own followers, may pass into law without
any appeal to the people proposals which ministers
themselves dare not submit to the judgment of the
nation.

CHAPTER V

THE HOUSE OF LORDS AND THE CIVIL WAR

By Viscount Midleton

The century during which England was ruled by
the Stuarts forms a necessary link between the
personal rule of the Tudors and the Parliamentary
system of government which grew up under the
House of Hanover. It is difficult at this distance
of time to realize the wide divergence between
the two methods of rule. The sons of a man
who had been tortured under the actual eyes of
Queen Mary or Queen Elizabeth lived to a period
when actions treasonable to the nation as well as
the sovereign obtained no worse punishment than
exclusion from Court. Under the Tudors, indi-
duals were possessed of or deprived of houses
and lands almost at the will of the sovereign ;
Charles I in his turn claimed the whole revenues
of Connaught, and after a farcical jury trial in
Dublin usurped the entire rents of the County of
Roscommon. Yet by the accession of George I
property was more secure from the clutches of the
sovereign than it is under George V from Parlia-
mentary confiscation.

Religion had gone through even ruder phases.

HOUSE OF LORDS AND CIVIL WAR 109

By a reaction against the persecution of sects,
the Puritans turned the England of Queen Elizabeth
into one vast Nonconformist conscience ; a counter
reaction induced for 25 years an indescribable
laxity of national life, and left the country in-
different as to the person and even as to the nation-
ality of their ruler provided his Protestantism
secured them from the instability of Charles II, and
from the intolerance of which they had a taste
under James II.

It would obviously be absurd to judge the
Parliaments of the seventeenth century by the
standard of the eighteenth. In truth both the
House of Lords and House of Commons were then
in the making. It was not a question of their title
to control this or that part of the national business,
but of their right to sit at all. The men who lived
through the Long Parliament saw more consti-
tutional history made than is usual within the
compass of a century. In the course of twenty
years power passed successively from the King
to the Commons; from the Commons to the
Army ; from the Army to the Protector ; from the
Protector to a Junta, and nominally again to
Parliament before the Restoration. In these
remarkable transitions we must search in vain for
consecutive development of our Constitution.

Lord Macaulay, reviewing this period, credits
the House of Commons with keenness, dexterity,
coolness, and perseverance while representing a
distraught nation during the Long Parliament.
The panegyric may be strained too far, but it is

no RIGHTS OF CITIZENSHIP

difficult to recall any assembly which, under a
similar ordeal at a time of national excitement,
has acquitted itself better. Moreover as the Long
Parliament went through every conceivable phase,
being purged at different times of its cavalier
members, of its anti-regicides and of the supporters
of civil predominance against the Army, the pro-
ceedings of the various sections which successively
dominated it must not be too closely analysed.
But one law was common to the whole of the
Parliament ; whatever was lasting was achieved
by the two Houses working in concert; from the
day that the House of Commons was left alone,
its decisions carried no weight at all.

This was not due to the special efficiency of the
House of Lords. The Civil Wars found the House
of Lords handicapped for serious responsibility.
When Elizabeth died the peerage was select and
powerful. Only 59 lay peers existed, and of these
only eight had been created in 45 years. The Scotch
prudence of James I and the rapacity of Bucking-
ham exactly doubled the peerage in 25 years,
besides flooding Ireland and Scotland with titles,
paid for but otherwise unearned.

At the beginning of the century the peerage
commanded almost exaggerated reverence. Thus
the Commons of 1603 humbly represented to the
Lords that a certain question was "a. matter of
State fitted to have beginning from the Upper
House that is better acquainted with matters of
State." In 1648 Prynne argued that to bring the
Lords down to sit with the Commons " would be

HOUSE OF LORDS AND CIVIL WAR 111

such a dishonour and affront to the Lords that
none but degenerate and ignoble spirits can bear
to think of it with patience, and it would be
detrimental to the character of members of the
Commons, for it would too much puff and bladder
them with pride, and make them slight those whom
they represented." The opinions so universally
held in 1603 had become confined in 1648 to select
circles ; Prynne's heroics found few sympathizers ;
the Levellers early the following year closed the
House of Lords then reduced to about twelve
members; and of the 150 commissioners appointed
to try the King, only six were chosen from the
ranks of the peerage.

Whatever differences of class may have existed
between Peers and Commons, the two bodies
acted very much in concert in the crucial years
1640 to 1649. Very early a definite opposition
party was formed in the Upper House allied with
the popular party in the Lower House. Indeed,
the Duke of Newcastle, who had joined the House
in 1620, told Charles II, 40 years later, that the
Upper House was, from the King's standpoint,
more factious than the Lower House. The main
reason of this was that the King kept no engage-
ments with either House, and the encroachments
of Buckingham speedily removed the scruples of
the Peers to interfering with a prerogative which
the King had practically surrendered.

The Upper House consequently stood by the
Lower till the Petition of Right was granted, and
its members formed a target for the exactions and

112 RIGHTS OF CITIZENSHIP

oppressions of the Star Chamber. Lords Danby,
Warwick; and Saye, during the intermission of
Parliament; declined; like Hampden; to pay the
illegal ship money; called upon the King to
summon a Parliament; and suffered arrest for their
plain speaking.

In the short Parliament of 1640, Charles's
numerous creations helped the bishops who re-
mained subservient to the Crown to counter the
Commons in their spirited decision to take
grievance before supply, the majority of 61 to 27
alleging that it was "indecent and unreasonable
to press grievances when King and kingdom were
in straits and in danger to be overrun by a pack
of rebels." Charles dissolved the Parliament ; but
in September of that year, when he called the
Peers alone to meet at York, they declined the un-
constitutional functions which he proposed for
them, and would not act without the Commons.

In estimating the proceedings of the Long
Parliament, which shortly afterwards assembled,
it must be remembered that two-thirds of the
temporal peers and all the bishops owed their
places to Charles or his father. That the Lords
as a body were less forward in the path of reform
and held a sort of middle position between Crown
and Commons is unquestionable. The verdict of
history has surely justified them.

Intolerable as was the conduct of the King,
traditions die hard in this country. The war would
have been shorter if the sword could have been
drawn later. The execution of the King put back

HOUSE OF LORDS AND CIVIL WAR 118

the clock of progress. It terminated the theory
of the divine right of kings — but left a chaos of
institutions as well as of ideas, which outlasted
one of the strongest administrations ever set up
and opened the door in 1660 to a Restoration which
preluded the most despicable chapter in English
history. It would be rash to suggest that the
Lords in 1649 foresaw these consequences ; but at
the least they evinced more statecraft than the
Commons in realizing that there was use in retain-
ing the King even from the democratic standpoint
and that the baffled monarch might be a buffer be-
tween Parliament and the new military order, which
was every whit as much out of sympathy as the
Crown with Parliamentary liberties.

The successive steps which marked the breach
between the two Houses may be briefly noted. Up
to 1647 no serious difference had arisen between
them. Both Houses had agreed in claiming for
the English Parliament the right of demanding
the king's consent to certain proposals as the basis
of peace, and had agreed to ignore the Scots in
disposing of the king's person.

In 1648, after a sharp discussion, the Lords
carried the Commons with them in proposing to
Charles terms which he had refused earlier, and
which involved a complete surrender on his part.
He was forced to accept them. He legalized the
past action of Parliament in making war on him ;
he annulled all the titles he had given since 1642,
and made his right of creation for the future
subject to the veto of both Houses; he further

114 RIGHTS OF CITIZENSHIP

gave the. Houses the control of the Army for
twenty years and established Presbyterianism.

This treaty, had Charles adhered to it, would
have been unique among agreements between him
and his subjects, for the effect of it was to give
the House of Commons a position it had never
attained before, since it became impossible for the
Crown to secure support in the House of Lords
against the Commons by creating peers. The
treaty was only accepted by the Peers from the
conviction that if the monarchy fell they would
also fall. It proved unacceptable and precipitated
the final crisis, for it w^as altogether against the
views of the Levellers and the Army, which within
two months purged the House of Commons by ex-
cluding more than half its members, caused the
remainder to vote the House of Commons supreme
as representing the people, and, after some pre-
liminary skirmishing, abolished the House of Lords.

Cromwell voted for the Lords and against the
extreme party, giving thereby a noteworthy tribute
to convictions which he afterwards put in practice,
and which had already taken deep root in his mind.

Almost alone among the advanced politicians of
the day, he saw the necessity of a balance in the
Constitution. Few politicians at that moment re-
gretted the loss of the Peers. Royalists despised
their action ; Levellers decried their existence ; the
nation resented their exemption from arrest for debt
and from answering suits at law. Privileges which
were tolerable when confined to a few great poten-
tates became inexcusable when diffused among a

HOUSE OF LORDS AND CIVIL WAR 115

number of men who had been recently raised from
among the commonalty and were now in sharp
controversy with them. There could hardly, there-
fore, have been a weaker body to set up as a
bulwark to the State, yet from the day the House
of Lords disappeared, the people, on whose behalf
its abolition had been decreed, took second place
to the Army, and their representatives lost caste
accordingly.

The House of Commons for ten years was the
sport of the various contending parties. Nominally
omnipotent, it was practically powerless. At first,
about loo members alone remained, and whole
counties were unrepresented. The fact that a few
peers, like Lords Pembroke and Salisbury, were
returned to the House on by-elections, apparently
reduced their own credit without raising that of
the Commons. For four years this singular body
sat continuously and claimed powers of legislation,
judicature, and administration, without rules of
conduct or restriction — a system which Cromwell
emphatically declared to be '' the horridest arbitrari-
ness that ever was exercised in the world."

The Commons committed manifest injustice by
keeping the Royalists in jeopardy long after the
cessation of hostilities, by selling the estates of
" delinquents " when money was required, and by
including in their excessive greed some persons
who had taken no part in the Civil War. Their zeal
for their own privileges exceeded their discretion.
Although their mandate from the nation had long
since expired, it was not till nearly three years

116 RIGHTS OF CITIZENSHIP

after the execution of Charles that they decided
to dissolve themselves, and fixed as a date
November, 1654, three years further on. Crom-
well took advantage of the general distrust in
which they were held to expel them, and the
Parliament fell unregretted.

Their successors, a nominated body nicknamed
Barebone's Parliament, had their own views of
"thorough," and acted on them. They abolished
the Court of Chancery, recast the law without asking
any advice from lawyers, proposed to abolish tithes
without giving compensation, and transferred the
ceremony of marriage from the clergy to Justices
of the Peace. They also were turned out of doors
by the Protector.

In 1654 Cromwell, now armed with an Instru-
ment of Government which carefully defined the
powers of the Commons, prohibited them from
altering the Constitution, limited the duration of
Parliament, and fixed a revenue for the Government
independent of them, called together a body of 400
under a new franchise. These faithful representa-
tives proved recalcitrant, refused to accept the
bounds laid down for them, voted the protectorate
to be elective not hereditary — and Cromwell dis-
solved them without delay.

In 1656 the Protector's second Parliament came
as promptly as its predecessor to loggerheads with
him, although he excluded 90 members, duly re-
turned by their constituents, from taking their
seats. They assumed the judicial powers of the
House of Lords, and lost many weeks in trying,

HOUSE OF LORDS AND CIVIL WAR 117

without any semblance of justice, a blasphemer
whom they punished by torture and other mediaeval
penalties.

Never was there a more flagrant example of
^^Nero fiddling while Rome was burning." The
country was eager for some form of trustworthy
government. The abortive rising of Penruddock,
by reviving the fear of a Royalist reaction, had
given Cromwell the excuse to divide England into
districts which Major-Generals vested with supreme
power governed by exactions without process of law.
Liberty, for which such heavy sacrifices had been
made, had vanished under military despotism. Pro-
perty and person were less safe under the Major-
Generals than under the Star Chamber. Taxes
were illegally raised and in a celebrated case the
three counsel of a complainant who refused to pay
duty after the date when it had expired by law
were committed by Cromwell to the Tower.

This was the time chosen by Parliament to
spend weeks in parodying the judicial authority
of the House of Lords which they had usurped,
while neglecting such great issues as the illegal
trial and execution of prominent Englishmen by
the Protector. Yet with all their obsequiousness
to Cromwell himself, their disregard of his pre-
rogative in important particulars crystallized his
views as to the evils of a Single Chamber govern-
ment. Even his iron will shrank from the continual
single-handed contest between the Head of the
State and the House of Commons.

By 1657 Cromwell had become a convinced

118 RIGHTS OF CITIZENSHIP

Second Chamber man and declared himself openly.
Replying to the loo officers who came to him to
protest against the revival of the monarchy and
House of Lords, '' By their judicial powers," said
he, "the Commons fall upon life and member;
and doth the Instrument enable me to control it?
Unless you have some such thing as a balance
we cannot be safe."

Curiously enough the mind of the House of
Commons was working in the same direction.
While Cromwell was restive under their control,
they were conscious that without some equipoise
in the Constitution, they would be always at the
mercy of military rule. Thus within nine years
of the abolition of the Upper House the Protector
and the House of Commons combined to re-
establish a Second Chamber, the nomination of
the members being entrusted to the Head of the
State.

Unluckily Cromwell's Lords were not a success.
Cromwell made a fair selection from the influential
men of the party supporting him ; but only two
of the old peers summoned obeyed the writs. The
new men lacked prestige ; their tenure was un-
certain. Republicans objected to so many members
of an Upper Chamber being officers and officials;
men so tied to the Government, they argued, should
be the servants of the people not their masters.
There is much in the failure of this experiment
which may be profitably studied by the amateur
Constitution-mongers of the present day.

The main interest, however, of the last three

HOUSE OF LORDS AND CIVIL WAR 119

years before the restoration of Charles II lies not
in the ups and downs of negotiations between two
Houses, neither of which was representative of
the people, nor in the divisions of the Army, nor
in the waning power of the Protector, but in the
great fact that the uncontrolled domination of each
of these parties was found distasteful to the nation.

British politics furnish many instances of
ascendancy which for a time has had the force
of despotism ; they furnish none in which
measures hurried through under these conditions
have not been followed by reaction.

It is not necessary to assume that the ways
of representative governments are infallible. No
one is so foolhardy as to ascribe a monopoly of
wisdom or even a great measure of foresight to
popular assemblies. It would be impossible to
justify step by step, from day to day the channels
by which Parliament comes to a decision. Pro-
longed and discursive debates, sudden compro-
mises, appeals to passion outside, pressure of party
exigencies, all appear inconsistent with sober
judgment and reasoned decisions. Add to this the
friction which, when feeling runs high, must
occasionally arise between two chambers, and the
medley appears to be complete.

But all these processes have their uses. The
prosperity of a country which has enjoyed en-
lightened rule is best served by steady progress,
not by the pursuit of visions which evaporate
when the hot fit has passed away. Cromwell had
a true grasp of England's foreign position, and

120 RIGHTS OF CITIZENSHIP

saw clearly what could be accomplished abroad
by one-man rule. But in dealing with a distracted
nation at home he ignored the preliminary pro-
cesses by which Parliament feels the pulse of the
commonalty, and quickly proved that he could not
carry the English nation with him.

Henry Cromwell's analysis of his father's atti-
tude to the Commons merits reproduction. He
wrote (1657) to Thurloe :

" I wish His Highness would consider how
casual (incalculable) the motions of a Parliament
are, and how many of them are called before one
is found to answer the ends thereof, and that it is
the natural genius of such great assemblies to be
various, inconsistent, and for the most part froward
with their superiors, and therefore, that he would
not wholly reject so much of what they offer as
is necessary to the public welfare. And the Lord
give him to see how much safer it is to rely upon
persons of estate, interest, integrity and wisdom
than upon such as have so amply discovered their
envy and ambition and whose faculty it is by con-
tinuing of confusion to support themselves."

The failure of a Single Chamber (1650-1660) is
a warning, and its significance lies not in the analogy
between the conditions then and now, but in the
greater need which then existed for prompt action.
Under modern conditions the worst features of
the ten years of republican rule could hardly be
reproduced. The tyranny of the Government and
the rapacity of the House of Commons, the
contempt of law, the persecution of classes, would

HOUSE OF LORDS AND CIVIL WAR 121

in the present day cause too speedy a reaction
to be allowed to go very far.

Far milder methods than those of 250 years
ago would now be held injurious to the common
weal. But in 1650 the right of Parliament to
govern, the personal liberty of the subject, and
the superior right of the many to those of the
privileged few, were all in jeopardy. The time
called for drastic remedies and for purges too
long delayed. If under those conditions and with
the directing force of Cromwell's personality, all
parties found necessary ^'a balance in the Con-
stitution" as a security against the haste and
prejudice of the very human elements which then
as now make up a House of Commons, surely no
better testimony to the value of a powerful Second
Chamber could be desired.

It should be remembered that it is not by the
single effort of the House of Commons but by the
co-operation of two chambers that our country has
for a century been a landmark of liberty, order, and
prosperity. An assembly which, relying upon the
records of the past, demands unfettered powers,
lacks authority and precedent for converting its
independence into despotism. It is not necessary
to warn a sovereign against renewing the errors
of the Stuarts ; it ought not to be necessary to
warn the Commons against reproducing in the
twentieth century the worst failures of Parliament
under the Commonwealth.

CHAPTER VI

CONSTITUTIONAL SAFEGUARDS IN THE

BRITISH DOMINIONS AND IN FOREIGN

COUNTRIES

By the Rt. Hon. Sir Robert Finlay, G.C.M.G., M.P.

"When for such arguments as these you have
abolished the House of Peers, how long do you
think the privileges of hereditary monarchy will
survive? I will tell you. Just so long as the
privileges and prerogatives of monarchy can be
made useful instruments and tools in the hands
of the democracy which is to ride triumphant
over the ruins of the House of Lords."

These words were spoken by Sir Robert Peel
at Glasgow, on January 13th, 1837. The speech
in which they occur, and the words themselves
are curiously applicable to the events of our very
recent political history and may be regarded as
prophetic. In 1837 the House of Lords was
threatened with destruction. In 191 1 the House
of Lords was not indeed abolished but effectually
deprived of the right it had always exercised of
securing that the nation should be consulted
before any vital change was made in its capital
institutions by those who professed to speak in

CONSTITUTIONAL SAFEGUARDS 123

its name. This was the privilege, not of the House
of Lords, but of the people. Of this privilege the
country has been robbed by means of an abuse
by the present Government of the Royal Prero-
gative which As without parallel in our history.
The revolution was effected by the threat of the
Government to swamp the House of Lords by
a wholesale creation of peers in order to carry
the Parliament Bill into law.

By the Parliament Act the House of Commons
is given absolute control over Money Bills, and
any Bill certified by the Speaker as such does
not require the assent of the House of Lords
in order that it may receive the Royal Assent.
The Act further provides that any other Bill, if
three times passed by the House of Commons,
shall become law without the assent of the House
of Lords. This applies to all legislation, whether
of an ordinary character or involving the gravest
Constitutional changes. The sole exception is
with regard to Bills to extend the duration of
Parliament. Any House of Commons, though
elected upon a totally different issue, is at liberty
to destroy the Union, to disestablish the Church,
to abolish the House of Lords, or to convert
the Constitution of this country from a Limited
Monarchy into a Republic.

No more dangerous blow has ever been struck
at the liberties of the people of the United
Kingdom. Under our ancient free Constitution
we possessed in the House of Lords an
assembly which, as experience has amply proved

124 RIGHTS OF CITIZENSHIP

— notably in 1895 — sometimes represented the
settled convictions of the country more faithfully
than did the House of Commons of the hour. The
House of Lords did not claim to prevent the
passage into law of any measure in favour of
which the electors had definitely made up their
minds. What the House of Lords did claim was
the right to give the nation time to think, and
to ensure that it should be consulted before any
measure of importance, which happened to be
desired by a temporary majority in the House
of Commons, passed finally into law.

Under the Parliament Act the most vital
changes may be effected in our institutions, not
only without the consent but against the will of the
electors, by a Government which has entrenched
itself against the opinion of the country behind
the barrier of a coalition of factions in the House
of Commons, and which resolutely avoids an appeal
to the country precisely because it knows that its
temporary majority could not survive a General
Election.

It may be added that the Parliament Act in-
volves two consequences at once whimsical and
disastrous. The House of Commons, in striking
at the House of Lords, has dealt a heavy blow
at its own efficiency and prestige. To comply
with the conditions of the Act the Bill must be
passed through the House of Commons three
times in three Sessions in substantially the same
form. If any change is made in the second or
third Session, the Bill cannot be sent up for the

CONSTITUTIONAL SAFEGUARDS 125

Royal Assent over the heads of the House of
Lords. It is obvious that under such circumstances
discussion in the House of Commons in the
second and third Sessions will be a mere pretence.
The Bill will be passed wholesale as it emerged
in the first Session under the pressure of the gag
and the guillotine. Any member on the Govern-
ment side who votes for any amendment, however
essential, and however clearly wanted, will be
denounced as a traitor, and the House of Commons
will cease to be a deliberative assembly. The
Parliament Act in crippling the House of Lords
and depriving the electors of their right to be
consulted has also degraded the House of Com-
mons. An attempt has been made in the Act to
cure this blot by providing that the House of
Commons may send up to the House of Lords
in the second or third Session suggestions for
amendments, but if these are not accepted the
Bill is to pass as it stands without tjiem. The
grotesque result follows that the Bill is passed
in a form which neither House approves ; the
House of Lords, regarding the Bill as vicious in
principle, refuses to pass it even as amended, and
it is passed into law without the changes which
the House of Commons thought necessary and
suggested for consideration. In the result the
Royal Assent is given to a Bill of which both
Houses disapprove.

The Parliament Act is without precedent in the
history of the country, and indeed destroys one
of the most valuable portions of our Constitution.

ne RIGHTS OF CITIZENSHIP

It is incapable of defence in principle, and it
was hardly concealed that it was designed in the
interests not of the nation but of the Liberal party.

It is without parallel in the civilized world,
and runs counter to the lessons of experience in
every other country and in our own Dominions
beyond the Seas.

It is especially dangerous in view of the fact
that we have no written Constitution to differentiate
between ordinary legislation and legislation invol-
ving changes of the most revolutionary character
in our institutions. In almost every other country
in the world proposals for grave constitutional
change are surrounded by special precautions which
do not apply in the case of ordinary legislation.
In almost every other country in the world
there exists a Second Chamber exercising effective
control over the passage into law of all Bills
whether financial in their character or for effecting
a change in the laws of the country.

Constitutions other than our own, when con-
sidered from this point of view, fall naturally
into three groups.

I. The Constitution of the United States and
the several States of the Union furnish perhaps
the most perfect example of effective checks upon
the vagaries of a Single Chamber especially in the
matter of constitutional change. The Constitu-
tion of the United States is especially interesting
to Englishmen as having been modelled upon the
Constitution of this country as it existed in the
eighteenth century, as was pointed out by Sir

CONSTITUTIONAL SAFEGUARDS 127

Henry Maine in his brilliant essays upon Popular
Government. That Constitution is interesting to
all students of constitutional law, to whatever
country they may belong, as showing the elaborate
precautions that have been taken in the most
democratic nation in the world to secure the
people from the mischief of rash and ill-considered
change.

II. The Constitutions of our great Dominions
beyond the Seas afford cogent evidence of the
recognition by all parties in this country of the
necessity of such checks as existed in Great
Britain until the Parliament Act became law.
Whether we turn to Canada or to Australia or to
South Africa the lesson is the same. The precau-
tions which were enshrined in the ancient Con-
stitution of England were recognized as necessary
and were reproduced in the Constitutions of these
great countries by British statesmen, and by the
Imperial Parliament at the instance of our fellow-
countrymen beyond the seas themselves.

III. The lessons taught by the Constitutions of
other European countries are no less striking.
These Constitutions make provision for an
effective Second Chamber and draw a broad
distinction between constitutional changes and
legislation of an ordinary type.

It is proposed to pass in review the results
yielded by an examination of Constitutions other
than our own, taking the three groups in the
order above specified.

A survey of this kind is calculated to give

128 RIGHTS OF CITIZENSHIP

pause to the most enthusiastic Radical and to
make him doubt whether the Mother of Parliaments
has been well advised in throwing over her own
traditions and the experience of the whole world
in order to embark on the new and perilous
experiment of the Parliament Act.

I. The United States and the States of the Union.

— The Constitution of the United States of America,
like that of Germany and Switzerland, controls a
Federation of independent States who retain for
themselves sovereign powers over all matters not
specifically entrusted to the Federal Legislature,
and it must be differentiated from unitary Con-
stitutions like those of Great Britain, France, or
Italy, which are invested with full legislative
power. In the United States the Federal Con-
stitution presupposes the State Constitutions and
its powers are delegated and not original; and so
it happens that whereas in Great Britain, France,
or Italy, Parliament is at liberty to alter the
Constitution, in the United States the Constitution
is above Congress and can only be amended by
the people of the States whose creature it is.

The American Congress consists of two
chambers, a Senate and a House of Representatives.
The Senate is composed of 96 members elected for
six years by the Legislatures of the States, one-
third retiring every two years, and the House of
Representatives of 391 members chosen every
second year by the people of the several States
in the Union. The two Houses enjoy equal and

CONSTITUTIONAL SAFEGUARDS 129

co-ordinate legislative power in respect of all
matters within their jurisdiction, except that
Money Bills must originate in the House of
Representatives, and all measures, whether they
relate to finance or not, require the assent of each
House of Congress. The Senate, however, not
only possesses the right to reject Money Bills,
but also the right of amendment — a right which
it freely exercises by drastically altering such Bills
in an overwhelming proportion of cases, thereby
increasing the amount of appropriation. In the
not infrequent event of a deadlock, a conference,
usually composed of three members from each
House, endeavours to arrive at a compromise,
but if no compromise can be arranged the measure
is lost. However, in practice, whenever the two
Houses disagree about the provisions of a Money
Bill, a sum intermediate between the respective
amounts is adopted. All Bills before they become
law must not only pass Congress, but must be
presented to the President for his assent. If the
President approves of the measure he signs the
Bill, if he disapproves of it he returns the Bill
within ten days to the Chamber in which it
originated, with a statement of the grounds of
his objections, and, if Congress passes the Bill
again by a two-thirds majority in each House,
the Bill becomes law without requiring the
President's signature. The President's veto is a
very real Constitutional safeguard, for the President
is expected to exercise his veto, as he frequently
does, in what he conceives to be the interest of

130 RIGHTS OF CITIZENSHIP

the people. Mr. Bryce, in his work on the
American Commonwealth, expresses himself on
this subject as follows :

^' The people regard him (the President) as an
indispensable check not only upon the haste and
heedlessness of their representatives (the faults
which the framers of the Constitution chiefly
feared), but upon their tendency, a tendency whose
mischievous force experience has revealed, to
yield either to pressure from any section of their
constituents or to temptation of a private nature.''

To these constitutional limitations the Federal
Legislature of the United States is bound to
conform, and any legislative action not in accord-
ance with the Constitution will be pronounced
null and void by the Supreme Court of the United
States. The Constitution of the United States,
then, is not controlled by the Legislature, but the
Legislature is controlled by the Constitution,
which can only be amended subject to the most
stringent safeguards. The mode in which the
national will is to be ascertained in a matter of
such supreme importance is set out in Article 5
of the Constitution as follows :

"The Congress, whenever two-thirds of both
Houses shall deem it necessary, shall propose
amendments to this Constitution, or on the appli-
cation of the Legislatures of two-thirds of the
several States shall call a convention for proposing
amendments which, in either case, shall be valid
to all intents and purposes as part of the capital
Constitution when ratified by the Legislatures of

CONSTITUTIONAL SAFEGUARDS 181

three-fourths of the several States, or by con-
ventions in three-fourths thereof, as the one or
the other mode of ratification may be proposed
by the Congress provided that ... no State
without its consent shall be deprived of its equal
suffrage in the Senate."

No provision is made in the Constitution for
the election or composition of constitutional con-
ventions, and amendments of the Constitution
have always been dealt with by the method first
mentioned, namely by the Legislatures of the
several States.

Congress has no power to alter the Constitutions
of any of the Federated States, and the Legislatures
of the States have no more power to alter the State
Constitutions (with the possible exception of the
little State of Delaware) than Congress has to alter
the Constitution of the United States. Constitu-
tional amendments in the several States are usually
initiated by the State Legislature, but the amend-
ments cannot be carried except with the assent
of at least the majority of the citizens voting at
the polls.

Such are the constitutional safeguards against
the abuse of legislative power, which are con-
sidered necessary by the most democratic country
in the world. Has that country no lesson to
teach us ?

The veto of the President was modelled on the
veto of the Crown as exercised in earlier periods of
our history, but with the development of Constitu-
tional Government the veto of the Crown has

188 RIGHTS OF CITIZENSHIP

become obsolete. The Second Chamber of this
country in the past has stood between the people
and the arbitrary exercise of power by the House
of Commons, but by the Parliament Act this safe-
guard has been destroyed, and measures to dis-
member the United Kingdom, and to disestablish
the Church are avowedly to be passed as the first-
fruits of the Parliament Act, 191 1, without the
opinion of the people being taken. Would it not
be wise statesmanship to re-invest the Second
Chamber once more with the power of referring
to the people measures with respect to which
the wishes of the people have not been ascer-
tained ?

II. The British Dominions. — An examination of
the Constitutions of the British Dominions beyond
the Seas demonstrates that, so far as the self-govern-
ing colonies are concerned, the Imperial Parliament
has considered it advisable to incorporate in each
of the Constitutions which have been granted to
the British Dominions provisions to prevent the
very abuse of arbitrary authority by a Single
Chamber which the Radical administration has
by the Parliament Act made possible in the Mother
Country. It must further be borne in mind that
these Constitutions were framed by the Dominions
themselves, and by them submitted for the approval
of the Imperial Parliament, so that in these Con-
stitutions we have embodied the views of these
great democratic communities as to the necessity
of such safeguards as have now been discarded in
Great Britain.

CONSTITUTIONAL SAFEGUARDS 133

The Constitutions of the British Dominions
possess fundamental characteristics which differ-
entiate them from the Constitutions of other
countries, for it must always be borne in mind that
the Imperial Parliament in the first instance
created the Colonial Constitutions by Imperial
Statute, and retains, in theory at all events, the un-
fettered right to amend or even abolish them. More-
over, the several Constitutions of the Dominions
differ inter se, for, whereas the Colonies which form
the Commonwealth of Australia are entitled under
the Constitution, as in the United States, to legis-
late in respect of all matters not specifically trans-
ferred to the Commonwealth Parliament, in Canada
and in United South Africa the Provincial Legisla-
tures have only such legislative power as is
specifically allocated to them under the terms of
the Constitution, while over all other matters the
Federal Government has supreme and exclusive
jurisdiction.

(a) Canada. — The Federal Constitution of
Canada, which is contained in the British North
America Act of 1867, as amended in 1871, 1875, and
1886, provides for a Legislature which is composed
of the Senate nominated for life by the Governor-
General on the advice of the Prime Minister, and
the House of Commons elected by a poll of the
people. The powers of the Senate and of the
House of Commons are equal and co-ordinate,
except that Money Bills must originate in the
House of Commons, and no provision is in-
corporated in the Act to meet the difficulties

184 RIGHTS OF CITIZENSHIP

arising from a deadlock between the two Houses
either with regard to finance or general legislation.

The number of Senators was in the first
instance 72, but it was provided that the Crown,
upon the advice of the Governor-General, might
at any time add from three to six members to the
Senate. Provision was made for an increase of
the number of the Senate in respect of new Pro-
vinces which might be added to the Dominion or
in respect of Territories not included in any Pro-
vince. In this country the Prime Minister and
his allies, before the House of Lords had rejected
the Parliament Bill, or had even considered its
provisions, threatened to overwhelm resistance to
the measure by advising the King to appoint a
very large number of new peers ; this action
amounted in effect to seizing the Royal Prerogative
and using it for party purposes. No such con-
stitutional outrage could be committed in Canada,
for under the Constitution it is impossible for the
Senate to be swamped at the will of the executive.

The Dominion Parliament possesses no power
of amending the Constitution itself, and an altera-
tion of the Constitution must proceed from the
source which created it, namely, the Imperial
Parliament.

(b) Australia. — The Commonwealth of Australia
is undoubtedly the most interesting constitutional
experiment of modern times. Like the Federal
Constitutions of Germany and Switzerland and the
United States, the Parliament of the Common-
wealth of Australia possesses only such legislative

CONSTITUTIONAL SAFEGUARDS 135

powers as are conferred upon it by the Act of the
Imperial Parliament which created it ; and all
legislative power not exclusively vested in the
Parliament of the Commonwealth by the Constitu-
tion, or withdrawn from the Legislatures of the
several States, is retained by the States which
form the Commonwealth.

The Federal Parliament is composed of the
Senate and the House of Representatives ; both
Houses are elected by the direct votes of the
people, and the electorate is the same for each
House ; the Senate being chosen by the people of
the States voting as one electorate by scrutin de
liste, and although the Commonwealth Parliament
may increase or diminish the number of senators,
the representatives of each original State must
be equal in number and must consist of not less
than six senators. Senators are elected for six
years and members of the House of Representa-
tives for three years, the number of Representa-
tives being as nearly as possible twice that of
senators. The Senate has equal power as to
legislation with the House of Representatives,
except with regard to finance. Money Bills must
originate in the House of Representatives and the
Senate has the power to reject but cannot amend
such Bills, although it may suggest amendments
by message to the other House.

Constitutional safeguards of the greatest im-
portance, however, are incorporated to provide
against any attempt being made, either to "tack"
on to Money Bills provisions relating to general

136 RIGHTS OF CITIZENSHIP

legislation, or to lump into one Money Bill a
number of separate taxing provisions.

"Section 54. The proposed law, which appro-
priates Revenue or monies for the ordinary
services of the Government, shall deal only with
such appropriation."

" Section 55. Laws imposing taxation shall deal
only with the imposition of taxation, and any pro-
vision therein dealing with any other matter shall
be of no effect."

" Laws imposing taxation, except laws imposing
duties of customs or of excise, shall deal with one
subject of taxation only, but laws imposing duties
of customs shall deal with duties of customs only,
and laws imposing duties of excise shall deal with
duties of excise only."

It will be recollected that in this country after
the rejection by the House of Lords of the proposed
repeal of the paper duties, Mr. Gladstone in 1861
introduced the practice of combining into one
measure all the financial proposals for the year
which had previously been contained in separate
Bills, and that practice has been followed and
extended ever since. It was adapted avowedly for
the purpose of making it difficult for the House of
Lords to exercise its undoubted right of rejecting
any financial Bill. Any financial legislation in such
a composite form is expressly forbidden by the
Australian Constitution.

The Senate may reject any Bill, whether it
deals with finance or not, and elaborate provisions
are found in the Constitution to obviate the

CONSTITUTIONAL SAFEGUARDS 137

difficulties of a deadlock between the two Houses.
If any Bill has been twice passed by the House
of Representatives and twice rejected by the
Senate, the Governor-General may dissolve both
Houses, and if, after such dissolution, the Senate
again rejects or fails to pass the Bill in a form
acceptable to the House of Representatives, the
Governor-General may convene a joint sitting of the
two Houses, and, if the Bill with or without amend-
ments is passed by an absolute majority of the total
number of the members of the two Houses, it is
taken to have been duly passed by both Houses.

It will be observed that, while under the
Parliament Act, 191 1, Bills can be passed over the
head of the Second Chamber in this country
without any reference to the people, in Australia,
not only can the Second Chamber ^' force a dis-
solution " of Parliament, but even after the
assembling of the new Parliament the proposed
Bill, if again rejected by the Upper House, cannot
be placed on the Statute Book unless and until it
has received the assent of the two Houses sitting
in joint session.

The Constitutional procedure to effect an
alteration in the Constitution itself is as follows :

'' Section 128. The proposed law for the
alteration thereof must be passed by an absolute
majority of each House of Parliament and not less
than two nor more than six months after its
passage through both Houses the proposed law
shall be submitted in each State to the electors
qualified to vote for the election of members of the

138 RIGHTS OF CITIZENSHIP

House of Representatives. But if either House
passes any such proposed law by an absolute
majority and the other House rejects or fails to
pass it, or passes it with any amendments to which
the first mentioned House will not agree, and if,
after an interval of three months, the first-mentioned
House in the same or the next Session again passes
the pre posed law by an absolute majority with or
without any amendment, which has been made or
agreed to by the other House, and such other
House rejects or fails to pass it or passes it with
any amendments to which the first-mentioned
House will not agree, the Governor-General may
submit the proposed law as last proposed by the
first-mentioned House, and either with or without
any amendments subsequently agreed to by both
Houses, to the electors in each State qualified to
vote for the election of the House of Representa-
tives. When a proposed law is submitted to the
electors the vote shall be taken in such manner as
the Parliament prescribes. ... If in a majority of
the States a majority of the electors voting approve
the proposed law, and if a majority of all the
electors voting also approve the proposed law, it
shall be presented to the Governor-General for the
Crown's assent. No alteration diminishing the
proportionate representation of any State in either
House of the Parliament, or the minimum number
of representatives of a State in the House of
Representatives, or increasing, diminishing or
otherwise altering the limits of the State, or in any
manner affecting the provisions of the Constitution

CONSTITUTIONAL SAFEGUARDS 139

in relation thereto shall become law unless the
majority of the electors voting in that State
approve the proposed law."

Such are the elaborate Constitutional safe-
guards against reckless and arbitrary legislation
which commended themselves to the Australians
and the Imperial Parliament in 1900.

(c) South Africa. — In 1909 the Imperial Parlia-
ment, under a Liberal Administration, passed a
Constitution for United South Africa, and an
examination of the provisions of the South Africa
Act discloses the remarkable fact that the same
Government which has in effect set up an autocratic
Single Chamber in this country, adopted in the
Constitution of United South Africa, safeguards to
prevent the possibility of Single Chamber Govern-
ment similar to those found in the Commonwealth
of Australia Act. Is it right and prudent that a
strong Second Chamber should form part of the
Constitution of a State? If not, what justification
is there for imposing such a system upon one of
the Dominions? But, if a Second Chamber with
real powers ought to form part of a Constitution,
what satisfactory explanation can His Majesty's
present advisers give of the provisions of the
Parliament Act, which destroyed the power of the
House of Lords to refer ill-considered measures to
the electors?

The legislative power of the South African
Union is vested in the King, a Senate composed of
40 members to hold office for ten years (eight of
whom are nominated by the Governor-General, and

140 RIGHTS OF CITIZENSHIP

eight elected by each of the four Provincial
Legislatures), and a House of Assembly chosen
directly by the European male adults of the Union
for five years.

The Union Parliament possesses supreme
legislative power and the Provincial Councils,
subject to the Constitution, are entitled to legislate
by ordinance in respect of such matters only as are
specified in the Act of Union. A reference to s. 85
of the Act will show that these matters are of a
local and private nature.

Except that the Senate may not amend the
taxation or appropriation provisions of Money
Bills, which must originate in the House of
Assembly, or, by amending any Bill, increase any
proposed charge upon the people, the^ Senate and
the House of Assembly have equal and co-ordinate
legislative authority. Moreover, Appropriation
Bills can deal only with the appropriation of
revenue or money.

In case of a deadlock between the House it is
provided :

" Section 63. If the House of Assembly passes
any Bill and the Senate rejects or fails to pass it,
or passes it with amendments to which the House
of Assembly will not agree, and if the House of
Assembly in the next Session again passes the
Bill with or without any amendments which have
been made or agreed to by the Senate, and the
Senate rejects or fails to pass it, or passes it with
amendments to which the House of Assembly will
not agree, the Governor-General may during that

CONSTITUTIONAL SAFEGUARDS UI

Session convene a joint sitting of the members of
the Senate and House of Assembly. The members
present at any such joint sitting may deliberate
and shall vote together upon the Bill as last
proposed by the Assembly and upon amendments,
if any, which have been made therein by one House
of Parliament, and not agreed to by the other ; and
any such amendments v^hich are affirmed by a
majority of the total [number of members of the
Senate and House of Assembly present at such
sitting, shall be taken to have been carried, and if
the Bill with amendments, if any, is confirmed by a
majority of the members of the Senate and House
of Assembly present at such sitting it shall be
taken to have been duly passed by both Houses of
Parliament : Provided that, if the Senate shall
reject or fail to pass any Bill dealing with the
appropriation of revenue or monies for the public
service, such joint sitting may be convened during
the same Session in which the Senate so rejects or
fails to pass such Bill."

The Union Parliament is invested with legisla-
tive power to repeal or alter the Constitution
provided that no provision thereof for the
operation of which a definite period of time is
prescribed shall during such period be repealed
or altered ; and provided that no repeal or altera-
tion of provisions relating to the amendment of
the Constitution, or the numbers of the House
of Assembly (during a certain period), or of the
provisions of s. 35 of the Act (a section dealing
with the qualification of voters) or of s. 137 as to

142 RIGHTS OF CITIZENSHIP

the equality of the English and Dutch languages,
shall be valid unless the Bill embodying such
repeal or alteration shall be passed by both Houses
of Parliament sitting together, and at the third
reading be agreed to by not less than two-thirds
of the total number of members of both Houses.
A Bill so passed at such joint sitting shall be
taken to have been duly passed by both Houses
of Parliament. In Australia and in South Africa
the Governor-General may in his discretion give
or withhold his assent to measures presented to
him for the King's assent or he may return the
Bill with amendments for further consideration ;
or he may, and in South Africa in certain cases
must, reserve the Bill for the signification of the
King's pleasure.

(d) New Zealand. — In the Constitution of New
Zealand, a British Dominion, to which, as a colony,
responsible Government was granted in 1856, there
is no machinery for adjusting differences between
the two Houses. The Legislative Council (the
members of which are nominated by the Governor)
and the House of Representatives enjoy equal and
co-ordinate legislative powers. Twenty years ago,
the relations of the two Houses in general legisla-
tion was under discussion in the Imperial Parliament
and papers were laid dealing with the matter.

The result of this survey is to show that the
Constitutions of all English-speaking civilized
communities, both in the United States and in
the British Dominions beyond the Seas, afford no

CONSTITUTIONAL SAFEGUARDS 143

precedent for investing a Single Chamber with
autocratic power. On the contrary, not only do
Second Chambers with ample powers form part
of each of their Constitutions, but an amendment
of the Constitutions themselves is hedged round
with special precautions. It must also be re-
membered that these Constitutions are not the
result of Legislation passed in dim ages long since
gone by, but are the outcome of modern con-
stitutional experience, and have been adopted and
carried out in practice by democratic communities
of the most advanced type.

III. Other European Countries.— A considera-
tion of the Constitutions of Continental European
countries will show the importance therein attached
to a strong and efficient Second Chamber, and to
adequate safeguards against rash constitutional
change. The Parliament Act has placed this
country in a position of constitutional isolation
which can hardly be described as splendid.

(a) France. — The constitutional history of
France since the great Revolution of 1789 is
both interesting and instructive ; numerous and
varied forms of Government have been tried ; the
present Constitution was brought into being in
February, 1875, and, as subsequently amended,
forms the present Instrument of Government.

The Legislative Power is exercised by the
Senate and the Chamber of Deputies ; the Senators
are elected by Departmental Electoral Colleges
for nine years, the members of the Chamber of

144 RIGHTS OF CITIZENSHIP

Deputies under a system of universal manhood
suffrage for four years. The President, acting on
the advice of his Ministers, possesses concurrent
right with either of the Chambers to initiate
legislation, and all Bills require the assent of both
Houses. Money Bills must be introduced in the
Chamber of Deputies, but otherwise the two
Chambers possess equal and co-ordinate authority.

The Constitution itself can only be amended
in accordance with Article 8, which runs as
follows : " The Chambers shall have the right
by separate resolutions, taken in each by an
absolute majority of votes, either upon their own
initiative or upon the request of the President
of the Republic, to declare a revision of the Con-
stitutional Laws necessary." After each of the
two Chambers shall have come to this decision,
they shall meet together in National Assembly to
proceed with the revision.

Any Acts effecting revision of the Constitutional
Laws in whole or in part, shall be passed by an
absolute majority of the members composing the
National Assembly. The Republican form of
Government may not be made the subject of a
proposed revision.

No constitutional machinery is in existence
for settling disagreements between the Senate
and the Chamber, although each of the two
Chambers has drawn up Rules of Procedure
which provide for the appointment by each
House, in its discretion, of a committee to confer
with a committee of the other House, in the

CONSTITUTIONAL SAFEGUARDS 145

event of a deadlock taking place. Frequent dis-
putes on general legislation have arisen between
the two Houses, but they have almost invariably
resulted in a compromise being arranged. In
truth, it is only by a policy of conciliation that
legislation in case of a deadlock can be carried.

In England, an election was forced upon the
country in December, 1910, before the Parliament
Bill had been even considered by the House of
Lords ; in France no such tour de force could have
been attempted, for it is only with the advice of
the Senate, that the President may dissolve the
Chamber of Deputies before the legal expiration
of its term. Monsieur Ribot, in the course of a
speech in the French Parliament in 1885, said :
"The two Chambers should be allowed to con-
tinue their negotiations, which may probably be
laborious, but which are the necessary conditions
of a Parliamentary regime. An agreement will
be the more easily found, seeing that the Consti-
tution has rendered conciliation an everyday
necessity ; it is indeed the basis of a Parliamentary
regime and one of the inevitable conditions of the
existence of two Chambers."

In countries where legislation can only be
carried by compromise and conciliation, the exe-
cutive has every inducement to introduce measures
moderate in principle and carefully considered in
detail. The position of uncontrolled authority set
up by the Parliament Act will tend to engender
in the Government in office a desire to exercise
its supreme power for the benefit of one party

146 RIGHTS OF CITIZENSHIP

rather than of the State as a whole. '^ How oft
the sight of means to do ill deeds makes ill deeds
done ! "

(b) Germany. — The legislative power of the
German Empire is exercised by the Bundesrath,
composed of 58 representatives proportionately
allocated to the several States of the Union, and
appointed by their executives (Prussia being
granted seventeen representatives in all), and the
Reichstag, the members of which are chosen for
five years directly by the people. As in the United
States, Switzerland, and Australia, the powers
vested in the Federal Parliament are delegated and
not original, and the States are, subject always to
the Constitution, possessed of all legislative rights
not entrusted to the Federal Parliament. The
Bundesrath or the Reichstag may initiate legisla-
tion, including Money Bills, and the assent of both
bodies is necessary and sufficient for the passage
of legislation. The relative importance of the two
Houses is in striking contrast with that which
obtains in other European countries. The Upper
House, which performs many important executive
as well as legislative functions, altogether over-
shadows the Reichstag. The Bundesrath in practice
always exercises the initiative in legislation, and
from among its members are chosen the heads of the
administrative departments. But, without the con-
sent of the Reichstag, no legislation is possible,
and no machinery exists to compel the Reichstag
to defer to the decisions of the Upper House.
How different from the position of the Second

CONSTITUTIONAL SAFEGUARDS 147

Chamber in this country! Like the House of
Lords before 191 1, the power of the Reichstag is
negative rather than positive, but unlike the House
of Lords since 191 1, it possesses the power to
amend or to reject Bills which it does not conceive
to be in the interest of the people.

The Constitution of the German Empire (except
with regard to rights thereby secured to particular
States which can only be amended with the con-
sent of the States affected) can be amended by
legislative enactment of the Imperial Parliament,
but if fourteen votes of the Bundesrath are raised
against any constitutional amendment, the amend-
ment is to be treated as rejected. This is a con-
stitutional provision which not only prevents the
adoption of ill-considered amendments, but safe-
guards the privileges of Prussia, for as Prussia has
seventeen votes in the Bundesrath, no amendment
of the Constitution can be carried without her
consent.

(c) Austria. — Austria and Hungary are inde-
pendent States under a dual monarchy, the
Emperor of Austria being also King of Hungary ;
and each State is supreme and uncontrolled, except
in so far as administration and legislation in respect
of certain ^'common affairs," e.g., Foreign Affairs,
Naval and Military Affairs, and National Defence,
have been placed within the jurisdiction of delega-
tions, chosen from the Parliament of each State,
which sit and deliberate separately, or, in default
of agreement, in joint Session.

The Austrian Reichsrath is composed of an

148 RIGHTS OF CITIZENSHIP

*

Upper House of some 250 members (of whom 150
to 170 are nominated by the Emperor, and the
remainder are hereditary Peers), and of a House of
Representatives, the 516 members of which are
chosen directly by the people. Both Houses have
equal and co-ordinate legislative authority in all
matters within the jurisdiction of the Reichsrath,
and which are not transferred to the delegations,
except that Money Bills and Bills relating to
recruiting must originate in the Lower House.
Each House has equal control over the public
finances, and in case of disagreement with regard to
Money or Recruiting Bills, the lower figure is to
be considered as granted. No machinery exists for
settling a deadlock in ordinary legislation, although
in practice a joint committee is formed for the
purpose of arranging a compromise.

Section 14 of the Constitution of 1867 provides
as follows :

^' If urgent circumstances should render neces-
sary some measure constitutionally requiring the
consent of the Reichsrath when that body is not in
Session, such measure may be taken by Imperial
Ordinance, issued under the collective responsibility
of the ministry, provided it makes no alteration of
the fundamental law, imposes no lasting burden
upon the public treasury and alienates none of the
domain of the State. Such ordinances shall have
provisionally the force of law, if they are signed by
all of the ministers and shall be published with
an express reference to this provision of the
fundamental law.

CONSTITUTIONAL SAFEGUARDS 149

''The legal force of such an ordinance shall cease
if the Government neglects to present it for the
approval of the Reichsrath at its next succeeding
Session, and indeed first to the House of Repre-
sentatives, within four weeks after its convention,
or if one of the two Houses refuses its approval
thereof.

"The ministry shall be collectively responsible
for the withdrawal of such ordinances as soon as
they have lost their provisional legal force."

Similar clauses appear in the Constitutions of
Russia and of Denmark. This provision has been
more than once used to overcome racial obstruction
to legislation, although its original object was to
meet cases of sudden emergency, and, for this
reason, it has been the cause of much bitter dis-
cussion in both Houses. Amendment of the Con-
stitution or of the fundamental laws on the general
rights of Austrian citizens can be made only by a
majority of not less than two-thirds of the members
present, and with the presence of not less than half
of the members of the House of Representatives.

(d) Hungary. — The Hungarian Diet consists of
the Table of Magnates or Upper Chamber, com-
posed of 394 members, in part nominated and
official, but mainly hereditary, and a House of
Representatives whose members number 453 and
are directly chosen by the people. Both Houses
have equal legislative powers, and Bills may be
introduced in either House, although in practice
Bills are always introduced in the Lower House.
No machinery for settling differences between the

160 RIGHTS OF CITIZENSHIP

Houses exists, but it is impossible to swamp the
Table of Magnates, for the total number of life
members appointed by the Crown may not exceed
50, and in no case may more than five appointments
be made in a year.

(e) Italy, — In Italy, the legislative power is
exercised by the King and two Houses, a nominated
Senate and a Chamber of Deputies chosen for five
years by the people. The two Chambers have
equal right to approve, amend or reject Bills which
may be introduced either by the King or in either
House, except that Money Bills must be presented
in the first instance to the Chamber of Deputies.
There is no provision in the Constitution for the
settlement of disagreements between the Chambers,
but, in practice, the functions of the Senate are
subordinate to those of the Chamber; the reason
being, that the number of senators which may be
appointed for life by the King, is unlimited, and in
recent years the Royal Prerogative has been exer-
cised on several occasions in order to change the
political views of the Upper House; in 1886 41
senators, in 1890 75, and in 1892 42 being appointed
''en bloc."

(f) Spain. — In Spain, the legislative power re-
sides in the Cortes and the King, and the relations
of the two Houses (the Senate and the Chamber
of Deputies) to each other is analogous to that
which obtains in Italy, with . two important dis-
tinctions, viz. : (i) the number of senators sitting in
their own right and appointed by the King for life
is limited to iSo, so that the Upper House cannot

CONSTITUTIONAL SAFEGUARDS 151

be swamped at the will of the executive ; and (2)
although no machinery to deal with a deadlock is
incorporated in the Constitution of 1867, by a law
of July i2th, 1837, it is provided that " if one of the
Chambers modify, or disapprove in any of its parts,
a Bill already passed in the other Chamber, a
committee shall be formed, composed of equal
numbers of senators and deputies for the purpose
of conferring on the mode of conciliating the con-
flicting opinions. The report of this committee
shall be discussed without any alteration by the
Senate and the Chamber, and if accepted by both,
the Bill shall be held as passed." These joint
committees have so admirably fulfilled their
functions, that in practice any collision between
the two Chambers has been avoided.

(g) The Netherlands, Sweden, Denmark, Belgium. —
The Netherlands, Sweden, Denmark and Belgium
possess Constitutions which differ, no doubt, in
the composition of the two Chambers, but which,
with certain modifications, are constructed on
similar lines.

The States-General in the Netherlands, the
Rigsdag in Sweden, the Rigsdag in Denmark and
the Parliament in Belgium are each composed of
two Chambers. It is impossible for the executive
to swamp the Upper House under any of these
Constitutions, for (except that twelve out of 66
members of the Upper House in Denmark are
appointed by the King, and that the Princes of the
blood are ipso facto senators by right in Belgium),
the members of both Houses in these countries

152 RIGHTS OF CITIZENSHIP

are elected. The Upper House of the Netherlands
is undoubtedly the weakest Second Chamber in
Europe with the exception of the present House
of Lords, for it cannot initiate or amend any
legislation unless it is sitting in joint session with
the Lower House. In other respects the Upper
House has equal power with the Lower House,
and no machinery to relieve deadlocks exists.
The mode of carrying constitutional amendments
is carefully safeguarded, for any proposal for a
change in the Constitution must be embodied in
a Bill providing for its consideration, upon the
passage of which both Houses are dissolved.
Newly elected chambers proceed to examine the
modifications proposed, but the measure cannot
become law unless it has been passed by a majority
of two-thirds of the newly elected members. In
the case of a proposal for a revision of the Con-
stitution in regard to the dynasty a dissolution
takes place, the new Chambers elected ad hoc
being composed of double the normal number of
members, each constituency or electoral college
electing two members to every one elected under
ordinary conditions.

The two Chambers in Sweden are accorded
equal competence both in financial and other
matters. Legislation requires the assent of both
Chambers voting independently, except in financial
matters, in respect of which under certain conditions
a common vote is taken. The Parliamentary prac-
tice allows, when the decision of the Houses shows
only a slight divergence, that the matter in hand

CONSTITUTIONAL SAFEGUARDS 153

should be referred back to committee, with a view
to effecting a compromise acceptable to both ; but
should the Houses reach different conclusions
which cannot be brought into agreement, each
House must vote separately upon the matter in
dispute. The opinion which receives the majority
of the votes of the two Houses shall be the decision
of the Rigsdag. An amendment of the fundamental
laws, including the law of the Constitution, can
only be carried with the assent of the King, and
of both Houses in two regular Sessions of the
Rigsdag.

In Denmark both Houses possess the right to
propose laws and to act upon them, but Money
Bills must be first introduced in the Folkething, or
Lower House. In case of disagreement, an equal
number of members are appointed by each House
to meet in committee and arrange a compromise if
possible, but if no agreement is arrived at the Bill
is lost.

Proposals for any constitutional amendment
must be adopted by both Houses, and the pro-
posed amendment can only become law after a
General Election, and after confirmation by the
newly elected Rigsdag, and the approval of the King.

In Belgium, Money Bills and Army Bills must
originate in the Lower House, but in all other
respects the Chambers possess equal and co-
ordinate authority in respect of both financial
and general legislation. No machinery to settle
collisions between the Houses exists, but amend-
ments of the Constitution can only be carried after

154 RIGHTS OF CITIZENSHIP

the proposed amendment has been adopted by the
King and both Houses, in which event the two
Houses are ipso facto dissolved, and the amendment
becomes law, if with the approval of the King it
has been adopted by a majority of at least two-
thirds of the members of the newly elected Parlia-
ment, two-thirds of the members of each House
being in attendance.

(h) Norivay. — The Constitutions of Norway and
Switzerland call for special treatment. In Norway
the entire legislative power is vested in a body of
123 Representatives, chosen by the people every
three years to form the Storthing; but it is pro-
vided that the Storthing shall at its first regular
Session select one quarter of its members to form
the Lagthing or Second Chamber, the remaining
three-quarters constituting the First Chamber, or
Odelsthing. Every Bill must, in the first instance, be
deliberated in the Odelsthing, and if twice rejected
by the Lagthing when sent up from the Lower
House, the entire Storthing meets and acts by a
two-thirds vote. Every Bill passed by the Storthing
requires the consent of the King, but Bills auto-
matically become law, even without the Royal
assent, if passed without change by three Stor-
things after three successive elections. All Bills
involving questions of finance, motions criticizing
government action, etc., come before the whole
Storthing and are decided by a majority of votes.

Amendments of the Constitution, provided they
do not contravene the principles of the Constitution,
can only be carried if they are presented in the

CONSTITUTIONAL SAFEGUARDS 155

Storthing after a new election and are confirmed by
a two-thirds majority of the Storthing after the next
General Election.

(i) Switzerland. — The Constitution of the Swiss
Federation is especially interesting as it is the
home of the Referendum or Poll of the People, but,
apart altogether from the Referendum which
receives special treatment elsewhere in this work,
ample constitutional safeguards are provided in
the Constitution against Single Chamber govern-
ment. The Federal Assembly, which (subject to
the rights reserved to the people and to the
Cantons to effect legislation by direct ballot)
exercises supreme legislative power, is composed
of two chambers, the National Council chosen
directly by the people, and the Council of States
consisting of two members appointed by each of
the 22 Cantons. Like the United States Congress
and the Federal Parliaments of Germany and
Australia, the powers of the Federal Assembly are
delegated and not original, and in Switzerland, as in
America and Germany, the Federated States retain
sovereign rights so far as their sovereignty is not
limited by the Federal Constitution. The two
Chambers possess absolutely equal and co-ordinate
power. All Bills may originate in either House
(the practice being to introduce the Budget in
alternate Sessions in the National Council and
Council of States), and all laws require for their
validity the assent of both Houses. In the event
of a disagreement between the two Chambers,
which; however, is practically unheard of, a joint

156 RIGHTS OF CITIZENSHIP

committee of an equal number of members from
each chamber is formed to effect a compromise.
The Bill is dropped unless the committee succeeds
in formulating an agreed proposal, in which case each
Chamber affirms or rejects the Bill in its final form.
Federal laws, however, which have passed both
Houses, must be submitted for acceptance or rejec-
tion to the people. If the demand for a Referendum
is made by thirty thousand voters or by eight
Cantons, the Constitution gives the electorate a
direct power, if it wills, to veto any legislation of
which it disapproves.

The amendment of the Constitution not only
may, but must be referred to the people for confir-
mation or rejection. A proposal for a total or
partial revision may proceed either from one or
both Houses, or from fifty thousand electors. If
the two Chambers agree upon the amendment, the
revision takes place in the manner provided for
passing Federal Laws. If one Chamber does not
consent to a revision proposed by the other, or
if fifty thousand voters demand total or partial
revision, there is a poll of the people, followed, if
the amendment is approved, by a General Election
of both Chambers for the purpose of undertaking
the revision. The amendment must be adopted by
a majority of Swiss citizens voting thereon, and by
a majority of the Cantons.

Conclusions. — Certain obvious conclusions can
be reached after an examination of the Constitutions
in foreign countries and the British Dominions
beyond the Seas. It is evident that no counterpart

CONSTITUTIONAL SAFEGUARDS 167

of the system of government under which the
affairs of the United Kingdom are at present being
administered can be found in any other civilized
community. In other countries, both Chambers
of the Legislature almost invariably possess equal
and co-ordinate authority. No modern State of
any importance, with the sole exception of Great
Britain, is willing to submit its destinies to a single
autocratic Chamber, and it is a matter of some
interest that even in countries such as Russia,
Turkey and Greece, where the evolution of
constitutional government is being slowly and
painfully worked out, the bi-cameral system has
been adopted as an essential and important part
of the new Constitution. Again, every other
Second Chamber (except in Sweden, Norway and
South Africa, where the joint opinion of the two
Houses is taken) possesses an effective power of
rejecting measures which it considers to be injurious
to the interests of the people, while in Great
Britain the Second Chamber is now unable even
to delay the passage of Bills until the wishes of
the people have been ascertained. But is a strong
Second Chamber desirable in other countries, and
undesirable in Great Britain, and if not, upon what
grounds can the Parliament Act, 191 1, be justified?
In the Constitution of many States, provision is
made for the settlement of disputes between the
two Houses by joint Session or otherwise, but no
such machinery exists in this country, and indeed
it would be superfluous, for under the Parliament
Act the will of the House of Commons is to

158 RIGHTS OF CITIZENSHIP

prevail. Again, in nearly all modern instruments
of government, provisions are inserted to prevent
ill-considered and unpopular attempts being made
to amend the terms of the Constitution ; and the
more democratic the nation, the more stringent are
these constitutional safeguards found to be. One
effect of the Parliament Act is to abolish the power
of the House of Lords to refer even measures
which effect a change in the Constitution itself to
the decision of the people. Everything is left
to chance votes in an uncontrolled House of
Commons.

England and France in times gone by have
suffered from the evils of Single-Chamber govern-
ment, and^in each country the experiment proved
a dismal and disastrous failure. It is to be
hoped that the electors will realize, while there
is yet time, the perils to which their country
will continue to be exposed, so long as the Parlia-
ment Act, 191 1, in its present form, remains upon
the Statute Book, and will take steps to restore
to the people the ultimate control of their own
destinies.

CHAPTER VII

SECOND CHAMBERS IN THE BRITISH
DOMINIONS AND IN FOREIGN COUNTRIES

By Lord Hugh Cecil, M.P.

The student of Parliamentary institutions, review-
ing all the Constitutions in the world, finds himself
perplexed by their number and by the variety of
their details. Those who have not looked into the
matter probably hardly realize the enormous num-
ber of legislative assemblies of one kind or another
that exist at present. There are assemblies in
every independent European country. In two of
those countries which are federations, namely the
German Empire and the Swiss Confederation, there
are also assemblies in the different component
States. In the American continent there are
assemblies in every State of the United States
besides the Federal Congress. There are in
Canada similarly assemblies for each of the
Provinces, as well as for the Dominion. And to
these may be added the assemblies to be found
in the Republics of South and Central America.
In Asia we find Japan with assemblies in effective
working; Persia with them at any rate in nominal

160 RIGHTS OF CITIZENSHIP

existence ; China about to embark on a Parlia-
mentary career; India with Legislative Councils
both under the Viceroy and in the Presidencies.
In Australia there are the two Chambers of the
Commonwealth, as well as two for each State. In
South Africa the supply is only a little less
abundant; for there are two Chambers to the
Union, and a single Council for each province.
The smaller British Colonies, like the West Indies,
have assemblies of various constitution, sometimes
with a larger, and sometimes with a smaller, demo-
cratic element.

It is true that for the present purpose we are
concerned directly only with those States that have
two Chambers. But even with that limitation there
is danger, in studying a large number of examples,
of becoming lost in confusing details and failing to
carry away any definite or useful impression. It
will be well, therefore, to begin by an endeavour
to divide the examples according to some easily
distinguished characteristics, to set aside altogether
examples from the least important States, to review
only briefly many of the more important States,
and to concentrate attention so far as possible on
the examples which are really most instructive.

In the first place, we may note and put on one
side those States which have only a single Chamber,
and which therefore lie beyond the scope of our
present discussion. There are a large number of
these, but almost all of them are of insignificant
importance. Twenty-two Swiss Cantons, sixteen
German States, and six Provinces of the Dominion

SECOND CHAMBERS 161

of Canada have single Chambers ; so have the
Provinces of the South African Union. All these
are States forming part of federations. Among
unitary States, Costa Rica, Panama, Honduras,
Salvador, and San Domingo have single Chambers,
and many of the smaller British Colonies are
legislated for by a single council. But the least
inconsiderable unitary States that have single
Chambers are Bulgaria and Montenegro. Of
these, none can be regarded as States of the
first or second, and scarcely of the third rank.
Norway is in a peculiar position, for the Consti-
tution of Norway provides for a second legislative
Chamber, but that Chamber is only a committee of
the first. The Storthing, as the whole Parliament
is called, divides itself after election into two
bodies ; the Lagthing, which consists of a quarter
of the members of the Storthing, and performs the
functions of a Second Chamber ; and the Odelsthing,
which consists of the other three-fourths, and forms
the Lower House. Norway might perhaps be
described as having neither one chamber nor
two, but one and a half.

Among States having independent Second
Chambers, a distinction must be drawn between
federal and unitary States. A Second Chamber
in a federal State is not merely a checking, sus-
pensory, or revising body, but a constitutional
expression of the rights of the separate States as
distinct from those of the federation as a whole.
In the United States of America the Senate is con-
stituted by the election of two senators by each of

162 RIGHTS OF CITIZENSHIP

the States who make up the Union. The senators
are therefore representatives not of so many
electors, but of States. A thinly populated State
of the Union, like Nevada, returns two members
to the Senate no less than the State of New York,
although the State of New York is more than a
hundred times as populous as Nevada. For Nevada
is deemed to be a State, joined indeed in a federa-
tion with other States, but for some purposes and
in some relations sovereign ; and all sovereign
States are equal in the federation. It matters not
that Nevada is thinly populated, and New York
densely populated ; it matters not that in several
States in the west the standard of civilization is
less organized and complete than in the east; it
matters not that there is a still greater discrepancy
between the wealth of the older and the younger
States; all are alike autonomous States joined
equally in a federal union. And the representa-
tives of each State in the Senate have therefore
something of the character of ambassadors at a
congress, although in practice they exercise their
own judgments, and are not guided by the instruc-
tions of their State. They represent a State, and
not a number of individuals, and in this aspect are
sharply distinguished from the ordinary member of
a legislative assembly, who is returned by a par-
ticular constituency. This characteristic of the
constitution of the Senate does not diminish the
importance of that body, but, on the contrary,
tends to enhance it, and to give to the Senate a
prestige and dignity superior to that of the House

SECOND CHAMBERS 163

of Representatives, which' is returned by particular
constituencies, and in rough proportion to popu-
lation. The Senate in the United States is in a
true sense the Upper House, while the House of
Representatives is the Lower. And the Senate's
federal character distinguishes it altogether from
the Second Chambers in unitary States, and makes
it the less instructive as an example to ourselves.

A similar observation applies to the Bundesrath
or Upper House of the German Empire. This, like
the Senate, is a federal assembly and represents
not constituencies of electors but autonomous
States. Yet, unlike the American Senate, the
different States send not equal, but very different
numbers of representatives to the Bundesrath ; and
the votes belonging to each State are given in a
block as the Government of that State directs. Of
the 58 members of the Bundesrath, Prussia has
17 in right of the Prussian dominions, i in right
of Waldeck, which Prussia has purchased, and the
2 votes of Brunswick are in fact given under
Prussian orders, because the ruler of Brunswick
is a Prussian prince. Prussia therefore in effect
controls 20 votes, Bavaria has 6, Saxony and
Wtlrtemberg 4, Baden and Hesse 3, Mecklenburg-
Schwerin 2, and the other 13 States and 3 Free
Cities I each. Alsace Lorraine is reckoned an
imperial territory, and has no representative.
Since no amendment of the Constitution can be
carried against which 14 votes in the Bundesrath
are given, the Prussian Government are assured
of an absolute veto on all constitutional changes;

164 RIGHTS OF CITIZENSHIP

and the Prussian Government is controlled by the
King of Prussia. On his authority even the
Prussian Parliament has but slight influence ; and
that Parliament is itself so constituted as to give to
the Prussian aristocracy a predominant voice. The
Bundesrath is therefore a powerful instrument for
securing the predominance of the king and aris-
tocracy of Prussia in the German federation.

Among federal systems we must also note the
Dominion of Canada and the Australian Common-
wealth. The Upper House in Canada is called a
Senate, like the Senate in the United States, but it
only has a faint flavour of federalism about it. It
consists now of 2>7 members, and they are nominated
for life by the Governor-General, on the advice of
his ministers. The only federal feature in the
matter is that a certain number of senators must
be appointed from each of the Canadian Provinces :
24 are appointed to represent Ontario ; 24 to
represent Quebec; 10 to represent Nova Scotia;
10 New Brunswick ; 4 Prince Edward Island ;
3 British Columbia ; 4 Manitoba; 4 Saskatchewan ;
and 4 Alberta. But since they are all nominated
by the Dominion Government, they can scarcely be
regarded as really representative of the different
Provinces. Every senator is required to be 30
years of age, and a British subject ; he must be a
resident in the Province which he is appointed to
represent ; he must in the same Province own land
of the value of ;^8oo clear of all charges and en-
cumbrances, and his total property over and above
his debts and liabilities must not be less than ;^8oo.

SECOND CHAMBERS 166

In the case of senators appointed to represent
Quebec, these requirements are made rather more
stringent by the condition that the senator must
reside and have his property qualification in the
particular electoral division of the Province in
respect to which he is appointed.

It does not appear that the Canadian Senate has
very great weight. It is appointed by a party
ministry which gives it little moral authority ; and
the circumstance that since the passing of the
British North America Act in 1867, first the Con-
servative and then the Liberal party have held
office for long periods of time has made the system
of nomination work specially badly. For the
Senate was originally constituted in equal num-
bers from the two parties, and since all vacancies
were filled by the Dominion Government, it soon
happened that the party in power obtained a con-
stantly growing majority in the Senate. That
assembly became therefore subservient to the
Government of the day, which is precisely what
it is not desirable that Second Chambers should
be. When the Liberals came in, there was a short
period of friction during which the old Conservative
majority remained and contested matters with the
Liberal administration. But time soon cured this
difficulty. The members of the Senate being all
of them men of advanced years, vacancies were
frequent, and it was not long before a Liberal
majority, not less subservient to the Liberal
administration than the former Conservative
majority had been to its predecessors, was

166 RIGHTS OF CITIZENSHIP

established in the Senate. A similar process has now
begun with the new Conservative Government. It
is difficult for those who have not lived in a country
to pronounce with confidence on the working of an
institution. But it would seem that the principal
defect of the Canadian Senate is its subservience to
the Government of the day; and that this sub-
servience is caused by a system of nomination
which places overwhelming influence in the hands
of that Government.

The Australian Senate closely resembles in
constitution the Senate of the United States of
America. It consists of 36 senators, 6 of whom
are elected by each of the constituent States of
the Commonwealth. But there is this important
difference between the two constitutions — the
American Senators are elected by the State Legis-
latures, the Australian senators by the popular
vote of each State. The Australian Senate sits for
six years, half of its members being renewed at
the end of three years. Except in case of a dead-
lock between the two Houses it cannot be dis-
solved.

These are the most important Second Chambers
of federations. But the function of a federal Second
Chamber is essentially different from that of a
Second Chamber in a unitary State. Its primary
purpose is to safeguard the rights of the constituent
states of the federation. In Canada, indeed, the
Second Chamber has an ambiguous character,
being substantially unitary and only nominally
federal. But in America and Australia the federal

SECOND CHAMBERS 167

characteristic is still important, and we who live in
a unitary State have the less to learn from the
Australian and American examples. It would be
impossible for us to set up a Senate which should
have the character of those in the United States
and the Commonwealth.

Of the States forming the Dominion of Canada,
only two have Second Chambers ; Nova Scotia and
Quebec. They consist of members nominated for
life. Newfoundland, which is of course separate
from the federation, has, similarly, a Second
Chamber, the members of which are nominated
for life. Formerly, the South African Colonies
of Natal, the Transvaal and the Orange River had
Second Chambers nominated for a term of years,
and the Cape of Good Hope, an elected Second
Chamber. But now these States are merged in the
South African Union, and, as Provinces, have each
only a single Council.

Among the constituent States of the Common-
wealth, Victoria, West Australia, South Australia
and Tasmania have elected Second Chambers ; in
Queensland and New South Wales, the members
of the Second Chamber are nominated. New
Zealand has also a nominee Second Chamber, but,
in 1 891, the period of service was reduced from life
to seven years. All these Chambers are smaller,
and some of them very much smaller than the
First Chamber with which they are associated.
The members of the nominated Chambers sit for
life, except in the case of New Zealand : the
elected assemblies last for six years, unless sooner

168 RIGHTS OF CITIZENSHIP

dissolved. The Upper Chambers of the States of
Victoria, West Australia, South Australia and
Tasmania, are elected on a property franchise,
which varies in the different States ; but even in
Tasmania, v^here it is widest, it is considerably
narrower than the universal franchise by which all
the Lower Chambers are elected.

In the newly constructed Constitution of South
Africa, eight of the members of the Senate are
nominated by the Governor-General in Council,
and the other thirty-two are chosen by the com-
ponent Provinces of the South African Union. The
old legislatures of the four colonies each elected
eight senators, and in future these thirty-two seats
will be filled by each provincial council of the
four Provinces, electing eight senators. Provincial
councils are themselves chosen by a system of
proportional representation on the same franchise
as the Lower Chamber. The senators must be
30 years of age, British subjects of European
descent who have resided for five years within
the limits of the Union and are qualified to vote
as electors of the House of Assembly, and own
property worth not less than ;^5oo.

More important for instruction are the unitary
States of Europe. Their conditions more closely
resemble our own than do either the federations
or the constituent states of the United States or
the Dominions. But among the States of Europe
it is impossible to find any one which is precisely
like ourselves. We may divide them into those
in which the monarchical element plays a greater

SECOND CHAMBERS 169

part than with us, and those which are substantially
democratic. But even in the democratic States the
more we study them the more are we struck by
the unlikeness rather than the likeness to our
conditions.

The most important States in which the
authority of the monarch is of dominant signifi-
cance are Russia, Austria, Hungary, Prussia, and
perhaps Spain. Among these the first is Russia.
The Council of the Empire in Russia is half of it
appointed by the emperor and half of it elected
by various public bodies. The Orthodox Church
elects six ; the Chambers of Commerce twelve ;
Assemblies of the Nobility eighteen ; the Univer-
sities six ; the landed proprietors of Poland six ;
and the Provincial Zemstvos one each. These
together constitute one half of the Assembly, the
other half being nominated by the emperor. All
members must be 40 years old and must have
an academical degree. The elected members are
paid for attendance. The constitution of the
Council of the Empire was evidently intended to
make it subservient to the Government, but as a
matter of experience (so unexpectedly do constitu-
tions work out), the Council of the Empire has
resisted the Government, and, though few are the
years the Russian Constitution has been in exist-
ence, the resistance of the Council of the Empire
has already once rendered it necessary to supersede
its authority by proroguing both Houses and carry-
ing important legislation by decree under a clause of
the Constitution which permits such a proceeding.

170 RIGHTS OF CITIZENSHIP

In Austria, where the authority of the Throne
is theoretically not so great as in Russia, the
ascendency of the emperor over the Upper House
is nevertheless no smaller. The Austrian Upper
House, called the Herren-Haus, or the House of
Lords, consists of princes of the blood, hereditary
peers, ten archbishops, and seven bishops, and
life-peers who must not number less than 150 or
more than 170. Formerly the power of creating
life-peers was unrestricted; but the limit of 170
was introduced; and as the emperor can only
create hereditary peers from certain families, it is
now practically impossible to overcome the resist-
ance of the Upper House by the prerogative of the
Crown. But hitherto the personal influence of the
emperor has always been so powerful that where
he supported the Lower House his wishes have
always prevailed. It is important to notice that
the authority of the Crown in Austria means the
personal authority of the emperor, not, as with
us, the authority of the ministry who advise the
Crown. Accordingly, when the Herren-Haus gives
way to the emperor, they do not give way to the
leaders of a party but to a national sovereign. A
similar observation must be borne in mind in con-
sidering the case of Hungary, where the same
sovereign rules as king. The House of Magnates
in Hungary now consists of 249 hereditary members;
6^ official, ecclesiastical and nominated life mem-
bers ; and three elected Croatian deputies. But
this was only settled on its j)resent footing in 1885.
In the older Constitution the House was almost

SECOND CHAMBERS 171

purely hereditary, but a reform on the lines de-
scribed was agreed to in that year. Since then
there has been one great deadlock between the two
Houses, which was only overcome by the threat of
the creation of hereditary magnates by the king.

Prussia, forming though it does part of a federa-
tion, is nevertheless so important that it demands
separate notice. The composition of the Second
Chamber is exceedingly complicated. It is com-
posed, firstly, of the Hohenzollern family ; secondly,
of sixteen mediatized princes; thirdly, of about
50 representatives of the landed nobility ; fourthly,
of life-members nominated by the king from land-
owners, manufacturers, and men intellectually or
otherwise eminent; fifthly, of eight noblemen
elected by the eight old provinces of Prussia;
sixthly, of representatives of universities, heads
of chapters and burgomasters of large towns ;
seventhly, by an indefinite number of men nomi-
nated by the king for life. The power in the Crown
of creating life-members at will, no less than the
personal ascendancy of the monarch, make the
Upper House in Prussia almost entirely sub-
servient to the king, and the constitution of the
Lower House is so undemocratic that very little
dislocation or difficulty at present arises between
the two Houses. Both are, in eff*ect, under mon-
archical or aristocratic influence.

The Senate in Spain is, like the Upper House
in Prussia, a composite assembly. It consists of:

(i) Senators in their own right.

(2) Life Senators named by the Crown.

172 RIGHTS OF CITIZENSHIP

(3) Senators elected by the *^ Corporations of
the State," and the highest tax-payers.

Half of the assembly, that is, 180 members, con-
sist of non-elected senators and half of elected,
making the whole assembly 360. The life senators
named by the Crown must be named from twelve
categories which comprise members of the Lower
House of a certain standing: ministers, bishops,
nobles, high officials, the heads of the six academies,
members of academies, professors, etc., former
members of Parliament not qualified by standing,
members of provincial assemblies and ex-mayors
who have a certain pecuniary qualification, and
finally, those who have been senators under pre-
vious constitutions.^ Those who sit in their own

* The following are the twelve categories exactly set out :

1. Presidents of Senate and Chamber of Deputies.

2. Deputies who have sat in three different Parliaments, or in
eight Parliamentary Sessions.

3. Ministers of the Crown.

4. Bishops.

5. Grandees of Spain.

6. Lieutenant-Generals and Vice-Admirals after two years'
employment.

7. Ambassadors after two, and Ministers Plenipotentiary after
three years' active service.

8. Members of Council of State, Supreme Council of War and
Marine, and various other officers of the law and military orders.

9. Presidents of the six Academies, viz. Royal Academy of
Spain, and Academies of History, Fine Arts, Exact Sciences,
Moral and Political Science and Medicine.

10. Senior members of the above Academies, Inspectors
General of Civil Engineers, University Professors of four years'
seniority. They must have an income of 7500 pesetas (;^3oo at
par) a year.

11. All persons of title, ex-Deputies to Cortes or provincial
Assemblies, ex-Mayors of provincial capitals and towns of over

SECOND CHAMBERS 178

right are certain great officers of State ; the arch-
bishops; and those grandees in their own right
who have an income of 60,000 pesetas (;^24oo) a
year derived from land or property deemed legally
equivalent.

The elected portion of the Senate has also a
complicated Constitution. The Corporations of the
State, who elect 30 of the 180 elected members,
are as follows :

(i) An Ecclesiastical Corporation consisting of
the archbishop, bishops and chapters of the
archiepiscopal Sees of Spain, which are nine in
number. This Corporation elects nine senators.

(2) The six learned Academies of Spain elect
six senators.

(3) The Universities elect ten.

(4) The '^ Economic Societies of Friends of the
Country," which are five in number, belonging to
the five districts of Madrid, Barcelona, Leon,
Seville and Valencia, elect five senators. The re-
maining 150 senators are elected by the provincial
Deputies and the representatives of the Town
Councils and highest tax-payers in the 49 Provinces
of Spain, each returning three senators except
Madrid, Barcelona and Seville, which return four.
The elected portion of the Senate may be dissolved
by the king, and is, as a matter of practice, dis-
solved whenever the Chamber of Deputies is
dissolved. In theory the king might dissolve

20,000 inhabitants. These must have an income of 20,000 pesetas
(/800) a year, or pay 4000 pesetas (;!{^i6o) in direct taxes.
12. Ex-senators under former Constitutions.

174 RIGHTS OF CITIZENSHIP

either singly, but he appears never to have
done so.

No serious disagreements appear to have taken
place between the two Houses in Spain, agreement
being usually attainable either by discussion in a
committee jointly appointed by the two Chambers
or by a dissolution of the Chamber and the elective
portion of the Senate. The probable explanation
of this harmony, apart from the prevalence of
counsels of conciliation, is to be found in the large
influence exercised by the king's Government over
both Chambers.

These are the most important European States
in which the power of the Crown is a dominant
element in the Constitution. Italy is an example
of a more democratic monarchy. The Senate in
Italy consists, with the exception of the princes of
the blood who sit by hereditary right, entirely of
nominated members. The senators are nominated
for life from certain categories of official, literary,
and scientific distinction and from among persons
who have for three years paid a sum equivalent to
;^i20 in direct taxes. The power of the Crown to
nominate senators is unlimited, and this has
enabled on several occasions the ministry of the
day to overcome the resistance of the Upper
Chamber by nominating a batch of senators to
support their government. Accordingly the Italian
Senate appears to suffer from the same defect as
the Canadian, and in an even worse degree, since
in Canada the Minister has at any rate to wait
until there are sufficient vacancies to enable him

SECOND CHAMBERS 175

to acquire a majority, whereas in Italy he can, if
driven to an extremity, create one at any time.

The nominated Second Chambers in democratic
unitary States, such as in some of the British
Colonies and in the Kingdom of Italy, are intended
to be founded on a democratic basis. The members
are appointed not as under the stronger monarchies
by the Crown acting independently, but by the
ministry, which is itself the creature of the First
Chamber. In Russia and Austria and Hungary
the Second Chamber in so far as it is subordinated
at all, is subordinated rather to the Crown than to
the First Chamber, and it could at any time resist
the First Chamber with ease and triumphant success
if it were acting in co-operation with the sovereign.
It has therefore a real independence of the other
House of Parliament. But this is not so in demo-
cratic States. For the members of a nominated
Senate take their title to legislate from the First
Chamber. It is the First Chamber that gives its
confidence to the ministry, and the ministry
appoints the Second Chamber. But the nomi-
nated senators suffer from the defect that the
ministry does not represent in reality the whole
of the First Chamber, but only the party that has
a majority within it. Accordingly the nominated
Second Chamber becomes a reflection not of both
sides of the First Chamber but only of one party.

This partisan origin has unquestionably greatly
weakened the moral authority of nominated Second
Chambers, and has been the cause of serious
defects in their working. Theoretically the powers

176 RIGHTS OF CITIZENSHIP

given to such Chambers in Italy and in our Colonies
are great, but practically they have proved to have
very little authority. In Italy especially the effort
of the Second Chamber to assert itself has been
met by the creation of new members on the part
of the Crovvrn, acting of course in obedience to the
advice of its ministers, a method which has re-
peatedly been used to overcome the independence
of the Upper Chamber. On one occasion no less
than 75 additional senators were created in Italy.
These creations of course were resorted to because
the Chamber, having been appointed by previous
ministries, was not in sympathy with the ministry
that at the moment had the confidence of the First
Chamber. And having only a partisan origin, the
Senate could not pretend to any moral authority
in resisting the wishes of the First Chamber, and
was therefore easily "swamped" by the preroga-
tive of the Crown. The same process was resorted
to in New South Wales on one occasion, but it has
not been tried elsewhere, and is not legally possible
in all cases. Yet apart from swamping, the partisan
taint which is inherent in the system of nomination
by a party ministry has so weakened the authority
of these Second Chambers that they are seldom
able to offer any effectual resistance to the desires
of the Lower House.

The weakness, therefore, of the nominated sys-
tem in democratic States is that it does not take its
origin from any respected principle. A nominated
member, unlike an elected member, cannot claim to
have been chosen by the people; again, if he be

SECOND CHAMBERS 177

nominated by a party ministry, he cannot claim
the authority which in undemocratic States is still
given to the choice of the monarch. He is weak
because he cannot trace his origin to any respected
source. The Russian nominated member has
authority because the emperor, who chooses him,
has authority. The elected senator of France has
authority because he is the choice of a free people.
The Canadian or Italian senators have no authority
because they are the choice neither of a respected
sovereign nor of a free people, but of a party
ministry.

A similar observation appears to be true of
the nominated Second Chambers in the different
colonial states which form part of the Canadian or
Australian federations and of the Second Chamber
in New Zealand. In none of these cases does the
real authority of the Second Chamber at all equal
its ostensible power under the Constitution. This
is evidently due to some lack of moral force, and
the most likely explanation is that, where members
of an assembly are nominated by a partisan
ministry, the circumstance of their appointment
destroys their authority and that of the assembly
which they compose.

The case of Belgium deserves some notice,
although it is not a kingdom of great importance,
because its general economic condition is not very
dissimilar from our own. Belgium has an elected
Senate chosen in rather a complicated way. The
constitution of the Belgian Senate, which was
finally brought to its present shape in 1899,

178 RIGH^rS OF CITIZENSHIP

provides that the Senate shall consist of no
members elected for eight years, half retiring
alternately at the end of each four years, whereas
of the First Chamber one-half retires every two
years. Of the senators, 83 are directly elected by
the same electorate as elect the First Chamber
or House of Representatives, except that the
senatorial electors must be 30 years of age
instead of 25 years. The Senate, like the House of
Representatives, is elected by a combination of
plural votes and proportional representation.
There is universal manhood suffrage : every man
has a vote. But a married man has a second vote
in right of his marriage, and an additional vote is
also allowed to every man who attains to a certain
educational standard. Those both married and
educated (who may be supposed to be inclined to a
conservative political attitude) have, therefore,
three votes. And the elections are made under a
system of proportional representation. The other
27 senators are elected by the Provincial Councils,
which are themselves elected by the same franchise
as directly elect the Ss- There is also a property
qualification for senators : each senator must be
the owner or occupier of real estate worth £480, or
pay £48 a year in direct taxes. And he must be
40 years of age.

France is a Republic and, so far, unlike our-
selves ; but the constitutional system is largely
modelled on England and is worked in a manner
not dissimilar from our own. The French Senate
is a good example of the elective Upper House.

SECOND CHAMBERS 179

It consists of 300 members elected by Electoral
Colleges. A number of senators proportioned to
the population of each Department is chosen by
the Electoral College of the Department. This
Electoral College is composed of the Parliamentary
deputies to the Department ; the members of the
Council of the Department (the equivalent of our
County Council); the members of the District
Councils in the Department ; and the delegates
elected by each Council of a Commune from among
the electors of their own Commune. It is these
delegates from the Communes (of which our
parishes are the nearest equivalent) who form the
large majority of the Electoral College. As all the
members of the college ultimately owe their
membership to universal suffrage, the Senate in
the end rests on the same suffrage as the Chamber,
but it is indirectly elected instead of directly.
Accordingly it follows that there is no very great
discrepancy in political opinion between the Senate
and the Chamber.

In reviewing these various examples of Second
Chambers, it will be convenient to classify them
according to the principles of their Constitutions.
At the same time it will be natural to notice more
precisely the powers that are assigned to them and
to point out how these powers are related to the
principles on which their Constitutions are framed.

It is clear that there are three main principles
at work. First, a Second Chamber is sometimes
an organ of some authority within the state, like
the sovereign or the nobles, other than the people

180 RIGHTS OF CITIZENSHIP

at large who are represented in the First Chamber.
Secondly, a Second Chamber may rest directly or
indirectly on the same democratic foundation as the
First Chamber, and is then designed either to
express the second thoughts of the people or to
secure to the people an opportunity of expressing
those second thoughts. A third principle is found
in federal States where the Second Chamber ex-
presses the rights and authority of the separate
component States as against the federation as a
whole. An illustration of the first principle is the
Russian Council of the Empire, which represents
partly the official bureaucracy depending ultimately
on the will of the emperor, and partly certain
classes, noble, wealthy or educated, who, in right of
their qualities, are thought fit for a separate voice
in the government of the country. Similarly in
Austria and in Hungary and in Prussia, official,
noble, wealthy, and educated influences are repre-
sented in the Second Chambers. But in democratic
States this principle is either not admitted, or is
allowed a very limited recognition.

The Constitution of the Belgian Second Chamber
seems intended to give a very moderate degree of
weight to wealth alone of the influences distinct
from pure democracy. In Victoria, West Australia,
South Australia and Tasmania the Upper Chamber
is elected on a narrower and richer franchise than
the Lower ; and there appears to be a considerable
consequent diff*erence betvv^een the Houses. But
in the constitution of most elected Second
Chambers the main principle is difl*erent. The

SECOND CHAMBERS 181

Second Chamber is constituted to secure what
may be called democratic second thoughts. It is
not less democratic than the First Chamber. It
derives its authority, like the First Chamber, from
the people, and the only apparent purpose of having
two Chambers instead of one is to give a double
opportunity for considering matters, although
always under the same influences and from essen-
tially the same point of view. In federal consti-
tutions another consideration comes in, and the
principle expressed in the Second Chamber is
the principle of the autonomous rights of the
component states.

There are thus three principles operating : the
authority of some undemocratic element in the
community ; the desire to give the democracy
an opportunity for second thoughts; and the
authority belonging to the component States of
a federation. The powers and functions of the
Second Chamber correspond to the weight which
opinion in the country concerned attaches to the
particular influence which the Second Chamber
expresses. Some Second Chambers are both in
form and substance equal and co-ordinate to the
First Chamber : some are nominally co-ordinate (or
nearly so), but in practice are inferior ; in some this
inferiority confines the Second Chamber to a sus-
pensory function pending appeal to the people ;
some have in reality only powers of revision and
suggestion and are entirely subordinate. In Russia,
where the influence of the throne and of the edu-
cated and wealthy classes is still profoundly

182 RIGHTS OF CITIZENSHIP

reverenced, the Council of the Empire has powers
co-ordinate with those of the Duma. Both the
Council and the Duma are subject to a common
disability, that no change in the constitution can be
proposed in either chamber except on the initiation
of the emperor. But the two Chambers enjoy
concurrent rights in all matters, even including
finance, save that financial business comes first
before the Duma.

In the case of Austria the powers are similar.
The Upper House cannot initiate Money Bills
except under the paragraph of the Constitution
that allows the Crown temporarily to supersede
the action of Parliament and to carry emergency
legislation by decree. This is, of course, altogether
an abnormal proceeding, although the violent
obstruction prevailing in the Lower House has
actually compelled recourse to it. But in the
normal working of the Constitution the Upper
House has full power both to amend and to reject
Money Bills. In practice the personal authority of
the emperor has the greatest possible weight with
the Herren-Haus. And though by an arrangement
made in 1906 it has been rendered impossible for
the emperor to overcome resistance by a creation
of members of the Upper House, there is no reason
to think that the emperor's authority has lost
its decisive importance.

The House of Magnates in Hungary has powers,
not indeed so extensive as those of the Lower House,
but still of a substantial character. It has the
powers that the House of Lords had before the

SECOND CHAMBERS 183

Parliament Act passed ; that is, absolutely co-
ordinate powers subject to a conventional restriction
in respect to finance. This is due to conscious
imitation of the English system. Though in law
the House of Magnates has equal powers even
in regard to finance, it is regarded as unparlia-
mentary for it to amend and possibly for it even to
reject a Money Bill, though there appears to be
some difference of opinion on this latter point.
By custom only the Lower House can originate
legislation. Otherwise in ordinary legislation the
powers of the House of Magnates and those of
the Lower House are theoreticall}^ equal, but in
practice the magnates have lost greatly in authority
since the king compelled them to give way to the
Lower House in 1895 by threatening to create
magnates to ^' swamp" the opposition of their
House. Probably its authority could not now be
pitted against that of the Lower House except
as an instrument in the hands of the Crown, the
personal authority of the king being in Hungary
a most important political power.

The Prussian Herren-Haus has co-ordinate
powers with the Lower House in respect of all legis-
lation except finance. In dealing with Money Bills
the Herren-Haus is expressly precluded from origi-
nating or from amending Money Bills, but it may
reject them altogether. Here, as in the case of
Hungary, there is no doubt conscious imitation
of England. This imitation does not, however,
extend to the relations between the Crown and
the Upper House, for the King of Prussia has

184 RIGHTS OF CITIZENSHIP

an overwhelming influence over the Herren-Haus.
This influence not only arises from the ascendancy
that monarchical sentiment gives to the king, but
also from the fact that he can overcome the re-
sistance of the Herren-Haus by creating life-
members at will; and this course he actually
adopted in 1872. The king's authority is of course
personal to himself His ministers are not the
creatures of Parliament; but his own servants
responsible to him.

Federal Second Chambers, like the Bundesrath
or the Senate of the United States, have great
authority. In the case of the American Senate this
is probably due partly to the fact that it represents
the independent rights of the component States,
partly to its elected constitution, which puts it on
an equality in respect to origin with the House of
Representatives. And the Senate is not only equal
to the House in legislation : its consent is also
necessary to many executive acts with which the
House has nothing to do. The Bundesrath, though
not an elected assembly, is also a truly federal
assembly, and its members owe their appointment
to the sovereigns of the different German States
who, according to German opinion, possess a
deeply respected authority. Its powers surpass
those of the Reichstag ; for all Bills — even Money
Bills — originate in the Bundesrath and are returned
to it again for final assent ; and it has in addition
important executive functions as a Council of State.
As has been already pointed out, the Canadian
Senate, though nominally representing the com-

SECOND CHAMBERS 185

ponent provinces of the federation, really derives
no strength from its federal character because it
is appointed not by the provinces but by the party
ministry of the Dominion. The American Senate
and the Bundesrath, being truly federal, have the
authority that belongs to that character.

In France the Senate has the authority that
attaches to an elected Chamber in a democratic
State. Accounts differ as to whether the Senate
is stronger or w^eaker than the Chamber. Theo-
retically they are co-ordinate ; but the circumstance
that they are not of very different political opinions
makes it difficult to judge what would be the
result of a persistent disagreement between the
Houses, since such disagreement does not easily
arise. The Senate has the unusual power that the
President can only dissolve the Chamber with the
Senate's consent, which seems to give the Senate a
moral superiority. In finance it has absolutely
equal powers with the Chamber, except that
Finance Bills must originate in the Chamber.

The only quarrel of great importance between
the two assemblies which has occurred did not
relate to legislation. But it is the rare, or probably
the unique, case' of a Second Chamber insisting on
the principle that a ministry must enjoy its con-
fidence as well as that of the First Chamber. For
the Senate in 1896 used its undoubted power over
finance to drive a ministry from power, although
that ministry was supported by a majority of
the Chamber. The Senate, having censured the
ministry on more than one occasion, declined to

186 RIGHTS OF CITIZENSHIP

pass supplies necessary for conducting military
operations in Madagascar until the ministry
resigned. The Senate affirmed that the Govern-
ment was responsible to both the Senate and the
Chamber, and that, since it had lost the confidence
of the Senate, it was necessary for it to resign.
Accordingly the Senate would not vote, as the
leader of the majority declared, the Madagascar
supplies while the obnoxious Cabinet remained
in power. The proposal to vote supplies was
adjourned until '' a constitutional ministry having
the confidence of the two Chambers " should be
appointed. This was decisive and the ministry
resigned, the Chamber contenting itself with
affirming the preponderance of universal suffrage,
which may be understood to imply a reflection on
the indirect election of the Senate. Since 1896 no
similar crisis has arisen ; but it appears to be
established that the Senate can force the resignation
of a ministry.

In Belgium the Senate has all the powers that
belong to the Chamber except the power of
initiating Money Bills. According to the law of
the Constitution the Senate may reject or amend
Money Bills, but it appears that this power has not
been very freely exercised, though there is no
reason to doubt that it might be in any case about
which a sharp controversy arose. Mainly as a
matter of convenience, the Senate has been accus-
tomed to pass Money Bills with comparatively
slight criticism, because they have generally come
up late in the Session and a prolonged discussion

SECOND CHAMBERS 187

has therefore been inconvenient. But the chief
operative cause for this, as well as for the general
harmony between the Senate and the Chamber
which exists in Belgium, is that, since they are
both elected by the same franchise — the Chamber
directly, the Senate indirectly — they are naturally
of not very dissimilar political complexion. They
are really two organs of the same body of opinion,
and as such, are commonly in agreement. It is not
easy to see what advantage a Second Chamber is
which is constituted in this manner, except merely
for purpose of revision; and the powers that are
entrusted to the Belgian Senate go far beyond any
such purpose.

If to secure deliberation and revision is to
be the only function of a Second Chamber, the
Norwegian Lagthing is perhaps the best. For in
Norway the Second Chamber in its constitution
recognizes without veil the theory that it exists
only for the purpose of expressing the second
thoughts of the First Chamber. Being as it is,
only a committee chosen by the First Chamber
and not independently elected, it is evidently the
creature of the First Chamber. If the theory of a
purely revising Second Chamber be adopted, it is
impossible to have a more simple and logical
arrangement. Its only function is either to accept
or reject the conclusions of the Odelsthing, and if
it twice rejects them a joint sitting of the whole
Storthing is held, and if in that joint sitting a
majority of two-thirds approves the Bill it is
presented for Royal Assent.

188 RIGHTS OF CITIZENSHIP

This system of a single House sitting in two
chambers and ultimately deciding by a majority
of two-thirds, seems a very good mechanism for
deliberate and revised legislative action, if it be
not desired to put any check upon the popular
assembly once it has been elected. But the normal
theory of Second Chambers as expressed in their
Constitutions is plainly that there should exist a
power capable of thwarting the First Chamber,
either in the name of some non-democratic authority
or in the name of the component States of a federa-
tion, or in order, not merely that the First Chamber
should have an opportunity of thinking things over
a second time, but that the people at large should
not be committed to legislation within the compass
of the sitting of a single Parliament and therefore
possibly against their will. Unless it be the
function of the Second Chamber either absolutel}^
to thwart the First Chamber in the name of some
independent authority or at least to suspend its
conclusions until the people themselves can in
some form decide, there would appear to be no
purpose whatever in entrusting Second Chambers
with the large powers which, in almost every state
except Norway, they possess.

In Russia, Prussia and Hungary the resistance
of the Second Chamber can only be overcome by
the prerogative of the Crown ; in Austria only by
its influence. Here the reason for large powers in
the hands of the Second Chamber is plain enough.
Nothing but the joint agreement between the
sovereign and the Lower House can make legisla-

SECOND CHAMBERS 189

tion effective against the sentiment of the noble,
wealthy, or educated classes. A similar observa-
tion is true of Spain, though the actual machinery
for solving a deadlock by a dissolution of both
Houses, seeing the difference in their constitutions,
might theoretically be ineffectual; but practically
the casting voice is with the king. But in Italy,
where the Upper House can be "swamped " at the
will of the ministry of the day, there seems but
little advantage in having a Second Chamber
except on Norwegian lines. And in France and
Belgium, where the Second Chambers are strong
enough to exercise independent authority, the
circumstances of their origin are too like those
of the First Chamber to make their independent
power of much practical significance. Nothing is
gained by a machinery to do the same thing twice
over.

The Constitution of Queensland, where the
Second Chamber is nominated for life, but where
its resistance can be overcome, not by ^^ swamping "
on the advice of a partisan ministry, but by a Refer-
endum to the electorate at large, like the Norwegian,
presents a clear and logical system, though con-
structed for a different purpose. Queensland has,
however, the weakness that its Second Chamber is
nominated by a party ministry, and this same
weakness attaches to all the nominated Second
Chambers in the British Empire and apparently
prevents them efficiently exercising even the sus-
pensory function of obliging reference to the
people either formally by Referendum, as in

190 RIGHTS OF CITIZENSHIP

Queensland, or elsewhere informally by a General
Election.

Those colonial Second Chambers which are
elected on the same franchise as the First Chamber
are, like the Senates of France and Belgium, too
much in agreement with the First Chambers in
opinion to fulfil usefully any purpose more im-
portant than that of revision. They are organs
for doing the same thing a second time over.

It is difficult not to feel that there has been a
lack of clear purpose in the minds of those who
have made Second Chambers in the various consti-
tutions of the world. No one seems to have asked
himself very distinctly what it was that the Second
Chamber should do, before determining what its
constitution and its powers should be. It seems
silly to have a Second Chamber like that in Italy,
which is merely subservient to the Government of
the day, and which, if it ventures to show inde-
pendence, can be reduced to obedience by the
creation of new members. Nor does it seem very
wise to have, as in France, two Houses represent-
ing the same body of opinion, and therefore
normally of one mind. One would have thought
that it was very obvious that, if a Second Chamber
is worth having at all, it is only worth having
because and when it disagrees with the First
Chamber.

That disagreement must indeed ultimately be
capable of solution by an appeal to whatever
authority is thought of as the true embodiment of
national sovereignty. This, whether consciously

SECOND CHAMBERS 191

or unconsciously, seems to be the underlying
principles of the monarchical States of Eastern
Europe, where the final word really lies with the
monarch. And by one mechanism or another,
either by dissolution or Referendum, it is enforced
in some of the democratic States which believe in
the sovereignty of the people, though all democratic
States have not been so wise. But to have a
Second Chamber which never disagrees or which,
if it does agree, can be suppressed by the ministry
of the day, seems to add little to the utility of the
First Chamber, unless it be by giving the First
Chamber an opportunity for further deliberation
and revision.

The study of foreign and colonial Second
Chambers will be of use to ourselves only if that
study forces us to reflect on what is precisely the
function we wish our Second Chamber to perform,
so that we may construct it with a clear intention
of adapting our means to our ends and giving to
the Second Chamber that constitution and those
powers which will enable it properly to play the
part that we assign to it.

In composing this article, the following works were consulted :

" Senates and Upper Chambers," by Harold W. V. Temperley.

"Second Chambers," by J. A. R. Marriott.

"The Report on Second or Upper Chambers in Foreign
States" (White Paper, Miscellaneous, No. 5 (1907)); and

The House of Commons Return (March 30th, 1910), entitled
" British Colonies (Legislature)."

192

RIGHTS OF CITIZENSHIP

The following tables are, by the courteous
permission of Mr. Harold Temperley and Messrs.
Chapman and Hall, reprinted from Mr. Tem-
perley's book entitled, "Senates and Upper
Chambers " :

COLONIAL UPPER CHAMBERS
METHOD OF APPOINTMENT

Electoral Franchise for

NOMINATED

Upper Chamber

FOR LIFE

FOR A PERIOD
OF YEARS

Freeholder, £s°> or Lease-

Victoria

New S. Wales

New Zealand Cfor

holder, ;^2o yearly, or

New Zealand (be-

7 years since

Educational test.

fore 1 891)

1891)

Freeholder, ;^ioq, or Lease-

W. AustraUa

Queensland

holder, £2$ yearly.

P'reeholder, £50, or Lease-

S. AustralU

Nova Scotia t

holder, £30 yearly.

Freeholder, ;^io yearly, or

Tasmania

Quebec f

Leaseholder, £jo yearly,

or Educational test.

Same as Lower House.

[Australian Com-
monwealth]

Newfoundland

[Dominion of
Canada]

fi It »

[S.Africa]*

* Eight members are, however, nominated.

t Nova Scotia and Quebec are the only Provinces of Canada which appear in these
tables, the remaining seven being uni-cameral.

Note. — Federal Upper Chambers are distinguished from those of Unitary States by
the name of the country being placed between brackets.

The figures are those of 1909-10.

RESTRICTIONS OF THE FINANCIAL POWERS OF
COLONIAL UPPER CHAMBERS

The right of initiation is always confined to the Lower House. The following table
gives a list of the cases in which further legislative restrictions have been made.

Upper Chamber
cannot amend

Newfoundland No. 249 of the /?w/^f of the House

of Assembly
[S. Africa] Sect. 60 of S. Africa Act of 1909

S. Australia Resolution of both Houses 25 Aug.

1857

Victoria Sect. 30 of Victorian Act of 1903

W. Australia Amending Act of 1899

[Australian Commonwealth]. . Sect. 53 of the Constitution

Upper Chamber
cannot amend

but can suggest
amendments

SECOND CHAMBERS

193

COLONIAL UPPER CHAMBERS : IN RELATION TO

THE LOWER CHAMBERS

(i) ELECTIVE

Upper Chamber

Lower
Chamber

Colo NT

Period for

WHICH

Members

SIT

Number of
Members

Number

OF

Members

Provisions for avoid-
ing Deadlock

Victoria ....

6 years

34

65

Dissolution followed by
simultaneous dissolution
of both Chambers

W. Australia . . .

6 years

30

50

S. Australia . . .

61 years

18

4a

Dissolution followed by
simultaneous dissolution
of both Chambers. Or,
by election of a limited
number of additional
members to the Upper
Chamber

Tasmania ....

6 years

18

30

[Australian Com-
monwealth]

6 years

13

75

Joint- session after simul-
taneous dissolution of
both Chambers

Referendum for Constitu-
tional Amendment

[S. Africa] (1910) .

10 years

40
(8 nomi-
nated)

121

Joint-session without dis-
solution of Lower or
Upper Chamber

News. Wales . .

Life

57

90

"Swamping" is constitu-
tionally possible

Queensland . . •

Life

44

72

Referendum

New Zealand . .

Life before

1891,7 years

since i8gi

45

80

" Swamping " is legally
possible

Nova Scotia . .

Life

21

38

Quebec

Life

24

74

Newfoundland . .

Life

iS

36

[Canada] ....

Life

87

231

Six members may be added
to the Upper Chamber

CONTINENTAL UPPER CHAMBERS

N.B. — Luxemburg, Russia, Turkey, Roumania, Servia, and Japan are
omitted from the following table. . . .

The princes of the reigning family are members by right of the Upper
Chamber in monarchical countries, and must therefore be reckoned in
addition to the constituent elements of those assemblies which are enume-
rated in the table. Brazil and the United States are added at the end of
this table. , , .

194

RIGHTS OF CITIZENSHIP

CONTINENTAL
(i) UPPER CHAMBERS ELECTED

Country

Upper Chamber

'

How Appointed

Number of
Members

France

Indirect election based upon universal
suffrage

300

Sweden

Indirect election (proportional repre-
sentation)

150

Netherlands (Holland) . .

Indirect election by provincial legisla-
tures

50

Belgium

Eighty-three members by direct election,
27 members by indirect election based
on universal suffrage. (Plural vote
and proportional representation)

no

Norway

Appointed from and by the Lower
Chamber

30

[Switzerland] Elected by the cantons

44

(2) UPPER CHAMBERS PARTIALLY

Denmark

Fifty-four members elected by indirect
election and la nombated

66

Spain

(i) One hundred and eighty members
(indirect election)

(2) Hereditary, official and ecclesiastical
members

(3) Nominated life members

360

(3) UPPER CHAMBERS VARIOUSLY

Italy

Austria .

Life members nominated out of certain
categories

328

(i) Nominated life members

(2) Hereditary members

(3) Ecclesiastical ex officio members

357

SECOND CHAMBERS

UPPER CHAMBERS
ON A POPULAR BASIS

195

Lower Chamber

Provisions for avoiding

Number of
Members

How Elected

Deadlocks

584

Universal suffrage

Rules of procedure provide for joint com-
mittees to report ; joint-sessions for
constitutional amendments.

Senators' consent necessary to dissolution
of Lower Chamber

230

Universal suffrage

Joint-sessions decide on disputed finance

Bills
Simultaneous dissolution of both Chambers

is possible

100

Small property franchise

Upper Chamber forbidden by law to

amend money or other Bills
Simultaneous dissolution of both Chambers

is possible

166

Universal suffrage (propor-
tional representation)

Simultaneous dissolution of both Chambers
is possible

123

Universal suffrage

The Chambers sit as one House in finance,
and in all cases of dispute. In the
latter case two-thirds majority needed
to pass Bill

Simultaneous dissolution of both Chambers
is inevitable by the constitutional pro-
visions

167 Universal suffrage

Joint committees report ; Joint sessions
for certain matters

ELECTED ON A POPULAR BASIS

114

Universal suffrage

Joint committees can report (Art, 53 of

Constitution)
Simultaneous dissolution of both Chambers

is possible

406

Universal suffrage

Joint committees must report (Law of

Relations, 1837)
Dissolution of elective part of Senate

simultaneously with the Chamber is

usual

COMPOSED

ON A NON-POPULAR

BASIS

508

Property, educational or
occupational franchise

'• Swamping " k possible

516

Universal suffrage

Joint committees can report. Since 1907
•' swamping " is practically impossible

196

RIGHTS OF CITIZENSHIP

(3) UPPER CHAMBERS VARIOUSLY COMPOSED

Country

Upper Chamber

How Appointed

Number of
Members

Hungary

[Germany]

Prussia .

(i) Hereditary members (249)

(2) Official, ecclesiastical and nominated
life members (67)

(3) Three elected Croatian deputies

Nominated by the rulers of the individual
States of the Empire

(i) Hereditary members (115)

(2) Official and ecclesiastical representa-
tives (177)

(3) Nominated life members (73)

319

365

Saxony .

Bavaria

(i) Hereditary members and representa-
tives

(a) Official and ecclesiastical members
and representatives

(3) Nominated life members

(i) Hereditary members and representa-
tives

(2) Ecclesiastical and official members

(3) Nominated life members

46

69

Wiirtemberg

Hesse-Darmstadt

(i) Hereditary and ecclesiastical mem-
bers

(2) Representatives of various interests

(3) Nominated life members

(i) Hereditary members and representa-
tives

(2) Twelve nominated life members

(3) Ecclesiastical and official members

Baden

(i) Elected representatives of various
interests

(2) Hereditary, ecclesiastical and official
members

(3) Nominated life members

AMERICAN FEDERAL

[Brazil].

Three elected by direct vote from each
State

63

[United States]

Two elected by each State Legislature

9a

SECOND CHAMBERS

ON A NON-POPULAR BASIS-con^mued

197

Lower Chamber

Provisions for avoiding

Number of
Members

How Elected

Deadlocks

453

Property, educational or
occupational franchise

" Swamping " is possible

397

Universal suffrage

433

Indirect election by three
classes of electors

" Swamping " is possible

82

Indirect election by three
classes

Joint committees report

163 Qualification by payment of
1 direct taxes

!
1

93

Universal suffrage

Disputes as to Budget decided by a
majority of total votes of both Houses

50

Indirect election based on
universal suffrage

73

Universal suffrage

Disputes as to Budget decided by a
majority of total votes of both Houses.
In ordinary legislation joint committees
can report (Law of 1904)

UPPER CHAMBERS

212

Universal suffrage— propor-
tional representation

Joint committees confer

39«

Partially universal suffrage

Joint committees report

Biennial renewal of one-third of Senate

coincides with dissolution of popular

House

CHAPTER VIII

THE REFERENDUM

By The Earl of SELBORNE, K.G.

The theory of government of the United Kingdom
is a partnership between the Crown and the people.
The sphere of the Crown is rule ; the sphere of the
people is policy. As it would be impossible for the
people always as a whole to express their opinions
on matters of policy, they do so through repre-
sentatives elected to the House of Commons ; and,
because it is possible that a temporary and dis-
credited majority in the House of Commons might
abuse the trust committed to them, a Second
Chamber is necessary to insure the people against
the usurpation and abuse of their authority.

In all modern States, government tends to
become more and more complicated. If there
were to be a General Election in the United King-
dom to-morrow, in each constituency the electors
would have to give a decision between two or more
rival candidates, and between two or more rival
parties — the Liberal, the Unionist, and the Labour
Parties — and also to give a decision in respect of
the policy of Home Rule for Ireland, on the pro-
posal to disestablish and disendow the Church in

THE REFERENDUM 199

Wales, on the National Insurance Act, on a host of
minor matters, and on the labour and foreign policy
of the Government. It seldom occurs that an elector
thinks exactly the same on all such subjects as the
candidate or party for which he decides to vote.
He is obliged to strike a balance and to vote for
a Liberal candidate, although he may be opposed
to the disestablishment and disendowment of the
Church in Wales, or for a Unionist candidate,
although he may be in favour of Home Rule for
Ireland.

How far it may be due to this confusion must
remain a matter of opinion, but the fact is that the
influence of the representatives of the people in
Parliament is steadily waning, and that the power
of the Cabinet, a body of some twenty ministers
who exert their influence over the members of
Parliament by the machinery of the caucus, is
steadily waxing. That they can do so, is due to
the high state of organization of each party in the
country at the present moment. The party
managers in each constituency may be very far
from representing the average opinion, even of the
adherents of the party in their constituency, much
less that of the constituency as a whole, but they
can make it impossible for a man to remain a
member of Parliament if he quarrels with them.
The influence of the party machine over the votes
of members continues constantly to increase, and
the party machine is controlled by the Cabinet.
The question which has arisen in the United
Kingdom is this : How can the danger be averted,

200 RIGHTS OF CITIZENSHIP

that the Cabinet, acting through the party machine,
may misinterpret the real opinion of the electors ?
How can the opinion of the electors on some grave
national issue, such as Home Rule for Ireland, be
tested, if necessary, without recourse to the compli-
cated and unsatisfactory machinery of a General
Election ? It is in this connection that a suggestion
has been made that the Referendum should be
incorporated into our Constitution as part of its
mechanism.

An argument which is often put forward against
the Referendum is, that if incorporated into the
mechanism of the Constitution it would be liable
to be used too often. The argument is framed
somewhat as follows. If used too often on issues
which are keenly contested, the disturbance and
agitation throughout the country, approaching that
of a General Election, will cause the Referendum to
become hateful, and the demand will arise among
traders and business men first of all, and afterwards
among other classes, to be relieved from what would
be an intolerable burden.

I agree that the Referendum should not be used
too often, the less frequently it can be brought into
use, the better, so long as it is brought into use,
either to settle matters of very grave importance,
such as, though not necessarily limited to, a change
in the Constitution, or to adjust disputes between
the two Houses of Parliament which have become
so acute or chronic as to amount to a grave political
inconvenience. But I wish to insist on the fact that
neither the too frequent recurrence of a Referendum

THE REFERENDUM «01

nor of a General Election is really the greatest
political danger or evil which now confronts us,
and I would say the same thing in respect of the
cost of a Referendum, which, indeed, has been
much exaggerated.

The greatest political evil which now confronts
us is the usurpation of the authority of the majority
by a minority, a usurpation of which we stand in con-
stant danger, partly through the peculiar working of
our party system, and partly through the prepos-
terous manner in which seats are now distributed.
It is common to talk of the swing of the pendulum,
and of the fickleness of the electorate. The electorate
has been much maligned ; it is nothing like as fickle
as it is supposed to be ; nor has the pendulum
ever swung in reality as it is supposed to have
swung.

First let us see how in this connection our party
system works. Take a typical constituency. Many
such may be found where the vote of the Liberal
and Radical Party never fails to amount to a
given figure. For the sake of this illustration we
will suppose 5000. At times the vote is larger, but
even at the lowest fortunes of the Liberal and
Radical Party it never falls below 5000. This
means that there are in that constituency a con-
stant 5000 electors who, under all circumstances,
will vote Liberal and Radical. There is sure to be
a Liberal and Radical Association in that con-
stituency. How many of that constant 5000
Liberal and Radical voters will be paying mem-
bers of that association? It would, indeed, be a

202 RIGHTS OF CITIZENSHIP

strong association if there are 500 such. Every
year an annual meeting is called to elect the officers
of that association. How many of those 500 attend
this annual meeting? Very rarely would it be
more than 50, and those 50 would elect a com-
mittee of five, who will manage all the affairs of
the party in that constituency, and, above all, select
the Radical candidate. It will be observed that the
result is a sort of mathematical progression in
Radicalism. The 500 paying members are the
keenest Radicals among the 5000 Liberals and
Radicals in the constituency ; the 50 who attend
the annual meeting are the keenest among the 500
members ; and the five who do all the work are the
keenest, and therefore surely the most extreme men,
and they select the candidate. The result is, that
when the Radical member is returned to Parliament,
he not only does not represent the average opinion
of the constituency, in which there may easily be
4800 Unionists to 5000 Liberals and Radicals, but
he will not even represent the average Liberalism
of the 5000 Liberals and Radicals in the con-
stituency. He will generally be more advanced
in his opinions than the average of his party in
his own constituency, and the result is that no
majority in the House of Commons ever really
represents the average opinion of the country, or
even of their own party. A Radical majority in
the House of Commons is always more Radical
than the average opinion of the country at the
time; and a Unionist majority in the House of
Commons, similarly, is always more Conservative

THE REFERENDUM 203

than the average opinion of the country at the
time.

Now let us look at the record of the electors
themselves, and I v^ill take that record in England,
Scotland, and Wales only, in the General Elections
from 1886 to December, 1910, both inclusive. I
exclude Ireland, because the pendulum is not sup-
posed to have swung there, the fight having been
all through those years always on the question of
Home Rule alone. I have taken the aggregate
votes cast on the one hand for Conservative and
Liberal Unionist candidates ; and, on the other
hand, for Liberal, Labour, Socialist, and Nationalist
candidates; and I have allotted the seats as they
would have fallen in true proportion to the two
groups of parties, according to the votes which
they have received. I have made no calculation
in respect of the uncontested seats ; I have simply
added their numbers to the number of seats
allotted to each party under this calculation. On
the other side I set down what the majority
actually was at each election under our present
preposterous distribution of seats. I repeat again
that the figures are for England, Scotland, and
Wales only.

In 1886 the Conservative and

Liberal Unionist majority

should have been .... ^'j, but was 183.
In 1892 the Conservative and

Liberal Unionist majority

should have been .... 17, and was 17.

204 RIGHTS OF CITIZENSHIP

In 1895 the Conservative and

Liberal Unionist majority

should have been .... in, but was 213.
In 1900 the Conservative and

Liberal Unionist majority

should have been .... 125, but was 195.
In 1906 the Liberal, etc., majority

should have been .... 89, but was 289.
In January, 19 10, the Liberal,

etc., majority should have

been 17, but was 63.

In December, 1910, the Liberal,

etc., majority should have

been 5, but was 61.

These figures show real and distinct movements
of public opinion, but they indicate a far greater
stability of opinion among the electorate than that
with which they have been credited. The electors
have never been so fickle, and the pendulum has
never really swung as much as has been supposed.

It has already been stated that the Referendum
has been proposed as a remedy for this evil in
certain cases, but what is the Referendum ? How
it can be used in this country, and under what
conditions, it will be for Parliament hereafter to
determine, but the first step towards a wise de-
cision in this matter will be an accurate under-
standing of what it is, and how it works in other
countries. For the Referendum is no suddenly
invented device, of which the world has no ex-
perience. On the contrary, it is in use, in one

THE REFERENDUM 205

form or another, in forty-five out of the forty-six
States of which the United States of America is
composed. It is in constant use in the Swiss
Republic, and in almost all the cantons of which
that republic is composed. And lastly, it is part
of the constitutional machinery of the Common-
wealth of Australia, it has been used at a grave
crisis in the Colony of Natal, and it is in use in the
United Kingdom in the municipalities and in the
Trades Unions.

United States.

Mr. James Bryce, the British Ambassador to
the United States, describes its use in that country
as follows :

"The institution of the Referendum owes its
origin in the United States nevither to abstract
theory nor to the example of Switzerland. It is a
natural outgrowth of the habit of submitting to
the vote of the people of a State changes in the
Constitution of the State. These Constitutions are
superior in authority to the statutes passed by
State Legislatures; and among other things, they
limit the authority of those bodies. It is, therefore,
necessary to enact a Constitution by a power
superior to that of the Legislature, viz. the citizens
of the State as a whole. Accordingly, when a
State Constitution had to be altered, the amend-
ments proposed to be made in it were submitted
to and voted on by the citizens. It was presently
found that this was a convenient method of securing

206 RIGHTS OF CITIZENSHIP

any kind of alteration in the law of the State which
the people desired to make. Various causes com-
bined to recommend the method. Sometimes the
people could not trust the Legislature to make the
alterations desired. Sometimes the Legislature
preferred to leave them to the people instead of
making them itself Sometimes the people wished
to put it out of the power of the Legislature to
change them. Thus the people of the States almost
unconsciously drifted into the practice of enacting
measures by their own direct vote, and the Con-
stitutions of most of the States now contain an
immense number of laws which, although they are
parts of the Constitution, do not differ in kind, i.e.
in the nature of their contents, from ordinary
statutes.

" The habit of direct popular legislation having
been thus formed;^ the transition to the use of the
Referendum has been natural and easy. There is
now an active propaganda in favour of its being
further extended, carried on specially in the
western states, where it is regarded as being the
legitimate outcome of democratic principles. But
it may be doubted whether the experience of its
practical working has yet been long enough to
enable a full and final judgment to be passed upon
its utility."

The standard work on the use of the Refe-
rendum in the United States is to be found in a
book by Professor Oberholtzer. The following
example of the case of Massachusetts in 1870 is
taken from that work :

THE REFERENDUM 207

" From this time onwards, when the old States
adopted new constitutions, they were submitted to
popular vote, and nearly all the new States admitted
to the Union brought constitutions with them
which had received the direct sanction of the
citizens. ... In by far the greater number of cases
the electors are twice consulted ; first by the Legis-
lature as to whether the Convention should be
called or not ; and secondly by the Convention
itself, when its labours have been finished and its
draft of the constitution is complete."

In Oregon in 1857, in New York in 1846, and in
Illinois in 1848, articles granting equal suffrage to
the negro were separately referred to the citizens
of those States; and in connection with the Con-
stitution of Illinois in 1870, nine different points
were submitted to the electors for their decision.

But the use of the Referendum in the American
States is not confined to changes in the Constitu-
tion ; on the contrary, questions of great importance
such as a proposed change of the capital, the
raising of particular loans after the State debt has
reached a certain point, the creation of corporations
with special powers, women's suffrage, the sale of
alcoholic liquors, have been submitted to the people
for their direct decision in many States.

As in England the Referendum has been used
to a limited degree in municipal matters, so in the
United States it has been widely used in the
counties, cities, towns, and other local districts,
for the decision of matters of great local import-
ance, such as the boundaries of districts, the sites

208 RIGHTS OF CITIZENSHIP

of towns, charters, loans, questions affecting public
lands, and questions affecting the public schools.

The machinery of the Referendum in America
is not always exactly the same. It varies in different
States ; sometimes, for instance, a three-fifths or a
two-thirds majority is required for assent to a
proposition instead of a bare majority.

Switzerland.

The use of the Referendum in Switzerland has
been thus described by Mr. Bax-Ironside, the
British Minister:

" The institution known as the Referendum,
which provides for the reference to all the electors
of the confederation, or of a canton, for acceptance
or rejection of laws or resolutions framed by their
representatives is now firmly established in this
country.

" The Referendum is of two kinds, compulsory
and optional. It is compulsory in certain cantons
where all laws adopted by the Grand Council or
other representative body of a canton must
be submitted to the people, and optional where
limited to those cases in which a certain number of
voters demand it.

" These two Referendums, the one compulsory
and the other optional, are exercised by the col-
lective vote of the citizens of the whole confedera-
tion. The application of the optional Referendum
to federal laws and resolutions is regulated by the

THE REFERENDUM 209

Federal Act of June 17th, 1874. The following is
a summary of its most important provisions :.

"All federal laws must be submitted to the
people for adoption or rejection on the demand of
30,000 citizens or of eight cantons. The same pro-
vision applies to resolutions of the Federal Council
which are of general application and are not of an
urgent character. The Federal Assembly has
power to declare when a resolution is urgent or
not of general application.

" Every federal law and every federal resolution,
with the two above mentioned exceptions, must be
immediately published and communicated to the
cantonal Governments.

"A demand that a law or resolution should be
submitted to the popular vote must be addressed
in writing to the Federal Council within 90 days
of the publication of the law or resolution in
question. Every elector supporting the demand
must sign in person, and his signature must be
attested by the local authorities of the district in
which he has a vote. This demand may also be
formulated by the cantonal council.

" If it appears from the examination of the
petitions sent in that the demand has been signed
by 30,000 duly qualified citizens, or by the cantonal
councils of eight cantons, the Federal Council
issues an order for taking the popular vote. It
notifies the cantonal Governments, and takes the
necessary steps to ensure the general publication
of the law or resolution to be voted on.

"The voting takes place on the same day

210 RIGHTS OF CITIZENSHIP

throughout the country. The date is fixed by the
Federal Council, but at least four weeks must
elapse between the general publication of the pro-
posed law and the date of the vote.

" Every Swiss of not less than 21 years of age,
and not deprived of his civic rights by the authority
of the canton in which he resides, has a vote.

'^ The arrangements for taking the vote devolve
upon the cantonal authorities, who distribute to
each qualified elector the necessary voting paper
provided by the Federal Government. The elector
fills it in, takes it to the local polling station and
deposits it in an urn. The authorities must trans-
mit within ten days to the Federal Council the
official result of the voting in their respective
cantons, and must, if required to do so, forward
the voting papers themselves to the Federal
Council.

'^ If a majority has voted for the proposed law
it comes into force at once ; in the contrary case
it is considered as rejected. In either the Federal
Council publishes the result of the vote, and
reports to the Federal Assembly at its next
session.

" The Referendum has struck firm root in
Switzerland, and no party would now dream of
demanding its abolition. The application of the
Referendum as worked in Switzerland and the
issues raised by it are so easy to understand
that public opinion acquiesces at once in the
result."

We are not dependent, however, only on an

THE REFERENDUM 211

official report for the working of the system in
Switzerland, any more than in the United States.
The following quotations are taken from a book on
the Swiss Federation by Sir F. O. Adams, K.C.M.G.,
C.B., andC. D. Cunningham:

''The Referendum is of two kinds, compulsory
and optional. It is compulsory in certain cantons
where all laws adopted by the Grand Council or
other representative body of a canton must be sub-
mitted to the people, and optional where limited to
those cases in which a certain number of voters
demand it.

" In Federal matters there are now two Referen-
dums. The first was established by the Constitu-
tion of 1848, and was limited to one point, viz. the
revision of that Constitution. All such revisions
became subject to a compulsory appeal to the
people, and the articles relating to this matter were
reproduced in the revised Constitution of 1874.
But as we have seen, the latter also contains an
article, extending the exercise of the popular vote,
when demanded by 30,000 citizens or eight cantons,
to all federal laws and all resolutions of a general
nature which have been passed by the Chambers.
These two Referendums, the one compulsory and
the other optional, are exercised by the collective
vote of the citizens of the whole confederation.
By the cantonal Referendum, whether compulsory
or optional, many important local matters are sub-
mitted to the collective vote of the citizens of the
particular canton interested, and the institution is

now to be found all over Switzerland, except where

II

212 RIGHTS OF CITIZENSHIP

there is still a Langsgemeinde and in Freiburg,
where the Ultramontane majority are perhaps a
little prone to deprecate changes.

"A sufficient period has elapsed to allow the
people of Switzerland to form an opinion of the
working and results of the popular vote. As
regards the former, nothing could be more simple.
All the voter has to do is to deposit in the urn his
voting paper with either " Aye " or '' No " written
upon it. As to the moral effect which the exercise
of this institution has had upon the people, we are
assured that it is admitted to be salutary even by
adversaries of democratic government. The con-
sciousness of individual influence, as w^ell as the
national feeling, is declared to have been strength-
ened, and the fact of a large and, on several
occasions, increased participation of the people
in the vote is quoted as tending to prove that their
interest in political questions is growing keener.

" Extreme measures, whether radical or re-
actionary, have no chance whatever of being
accepted by the people, who, while in a manner
fulfilling the functions of a Second Chamber, have
infinitely more weight than any such body usually
possesses, even if it be thoroughly representative
and chosen by universal suff'rage.

"It would seem that, of the two forms of Re-
ferendum existing in cantons, the compulsory is
more practical than the optional.

" Since the adoption of the Federal Referendum
in 1874, for laws and general resolutions passed by
the Chambers, many such measures have been

THE REFERENDUM 218

accepted by the Swiss people without a vote.
Others have given rise to much discussion and
difference of opinion, some being ultimately
sanctioned and some rejected by the popular
vote.

"On May nth, 1884, no less than four mea-
sures which had been adopted by the Chambers
were rejected by the popular vote."

Australia.

In Australia no amendment of the Constitution
can become law, even although agreed to by both
Chambers of the Legislature, until after it has been
submitted to the electors in a Referendum ; and a
bare majority of electors is not sufficient to pass it
into law. There must not only be a majority of the
whole number of the electors voting, but also a
majority in a majority of the States of the Australian
Commonwealth. As there are six States in that
Commonwealth, it follows that there must be a
majority in favour of the proposed change of the
Constitution in four of those States.

It has been noticed that in America sometimes
not so much interest is taken in the voting at a
Referendum as there is in the election of members
to the State Congress ; but that has not been the
experience in Australia. In that country, as many
electors have voted respecting proposed changes in
the Constitution as in respect of an election of
Members of Parliament when the two duties of
citizenship had to be performed simultaneously in

214 RIGHTS OF CITIZENSHIP

the same polling booth; and in April, 191 1, they
showed as lively a sense of responsibility on the
occasion of the first Referendum, which, as it were,
stood alone, unsupported by the interest of a
General Election. Two amendments of the Consti-
tution were submitted to the electors, the first of
which may be roughly summarized as a proposal
that the Commonwealth Government, in contra-
distinction to the State Government, should have
control of all legislation affecting industry and
commerce, and the second as a proposal for the
nationalization of all monopolies. In Australia
every adult male and female has a vote, and, in
round figures, 1,200,000 voters went to the poll out
of a total population of under five million souls. The
amendments were rejected by over 240,000 votes.

In the State of Queensland, and again in the
State of South Australia, the question of denomi-
national or undenominational religious education
has been decided by a special Referendum, and in
Queensland henceforth obstinate disputes between
the two Houses of Parliament are to be settled by
a Referendum.

Natal.

In Natal in 1909, when the Union of South Africa
was contemplated, and after the Constitution had
been drawn up by a South African Convention and
published and explained in Parliament, the question
was submitted to the electors. The Parliament of
Natal felt that the question at issue was too

THE REFERENDUM 215

important for them to decide, and they passed a
special Referendum Act, leaving the decision to
the electors. The Schedule to that Act was in the
following form :

SCHEDULE.
Referendum Act, 1909.
Are you in favour of the Draft South Africa Act ?

Yes. [2

No.

D

If you are in favour of the Draft Act, make your
cross in the square opposite the word " Yes."

If you are against the Draft Act, make your
cross in the square opposite the word " No."

The result was published in an extraordinary
number of the Natal Government Gazette on June
I2th, 1909. The votes had been counted, not as
a whole, but separately in connection with each
constituency, and the returns showed that not only
was there a majority among the whole of the
electors of Natal in favour of union, but that there
was a majority in every single constituency into
which Natal was then divided — a truly remarkable
result I

United Kingdom.

It has been already stated that the Referendum
is, as a matter of fact, used in the United Kingdom,

216 RIGHTS OF CITIZENSHIP

I

both in municipalities and in trades unions. It is a
matter of common knowledge that, when the
question of a strike is before a trades union like
the Miners' Federation, the question is not decided
by any committee of the union but by all the
members of the union themselves at a ballot,
which is exactly the same thing as a Referendum.
It is not, however, equally commonly known that
the Referendum is used for important purposes in
connection with our municipal government. The
following is a copy of the declaration of the result
of the poll on an important occasion recently in
Bristol :

DECLARATION OF RESULT OF POLL.

County Borough of Bristol.

In Parliament — Session 1911.

The Bristol Corporation Billy 1911.

Whereas a poll of the Electors of the above-named
County Borough was taken on the 26th day of
January, 191 1, with reference to the resolutions
put to the Public Meeting of Electors, held on
the 6th day of January, 191 1, in favour of the pro-
motion of the Bill, the title of which is set forth
above, and such resolutions were in the following
terms :

I. ^' That this Meeting of the Electors approves
of the provision made in the Bill to be promoted
in the ensuing Session to empower the Corporation

THE REFERENDUM 217

to lay out and utilise for burial purposes lands
adjoining Canford Cemetery and Avonview Ceme-
tery, Bristol, and to borrow the moneys necessary
for these purposes."

2. "That this Meeting of the Electors approves
of the provision made in the Bill to empower
the Corporation to revise the rates of tonnage on
vessels entering or leaving the Port ; to make
provision for better securing the payment of rates
on goods imported or exported coastwise ; and to
enable the Corporation to charge Passenger fares
for Passengers using the Railways forming part
of the Dock Undertaking."

3. ''That this Meeting of Electors approves of
the provision made in the Bill to empower the
Corporation to adjust moneys already raised and
to raise further moneys for the completion of
the Dock Works at Avonmouth ; to borrow moneys
for the erection of sheds and warehouses at Avon-
mouth, and for the general purposes of the Dock
Undertaking."

4. ''That this Meeting of Electors approves of
the provision made in the Bill to authorize the
Corporation to spend money upon advertising the
City and Port, and to enable them to appoint on
any committee which they may select for the
purposje of advertising persons who are not
members of the Council."

I, the undersigned, being the Returning Officer
at the said Poll, do hereby declare that the number
of Votes recorded thereat is as follows : —

218

RIGHTS OF CITIZENSHIP

In favour of Resolution No. i 15,833 Votes

Against Resolution No. i . .

6,657 „

Majority in favour

9,176

In favour of Resolution No. 2
Against Resolution No. 2 . .

17,718 „
4,370 „

Majority in favour

13,348

In favour of Resolution No. 3
Against Resolution No. 3 . .

16,751 „

5,450 „

Majority in favour

11,301

In favour of Resolution No. 4
Against Resolution No. 4 . .

15,218 „

6,477 „

Majority in favour

8,741

I 22,

088

201

I 22,

I 21,695

Dated this 27th day of January, 191 1.

C. A. HAYES, Lord Mayor,
Returning Officer.

The descriptions given above show how the
Referendum is worked elsewhere, where the same
difficulties in the working of a democratic form
of Government, although occurring doubtless in
different forms, have been solved by the Referendum
as a remedy. Consideration must now be given to
the objections urged against the Referendum itself,
or to its introduction into this country.

It has been urged that the Referendum is the
fanciful creation of theorists, and that in practice it
would be impossible to put it into operation. I
will say at once, for the sake of clearing the ground,
that because the Referendum has been found to

THE REFERENDUM 219

work well in, and to suit the political conditions
of, so many states in Switzerland and the United
States of America, it does not follow that it would
suit us. But the argument can surely be drawn
from its extensive and continuous use in America
and Switzerland that the Referendum is a piece of
political machinery which can easily be used in
practice, and that there is no objection alleged in
respect of its cost or inconvenience or the difficulty
of adjusting it to Parliamentary government, that
it is not a mere bogey invented by Radicals as
part of their effort to keep the Referendum out of
the British Constitution by all means in their power.
Furthermore, the fact that the Referendum is used
for certain limited purposes in Australia, and as
part of the regular constitutional machinery of the
Commonwealth; is surely proof, not only that it can
be used, but that it can be used by our own race
and as part of one of the Constitutions of the
Empire.

Another objection is that the introduction of
the Referendum into the British Constitution
would be unfair to the Liberal Party, because if a
Unionist Government were in power, and had a
majority in both Houses of Parliament, then it
would only be under very exceptional circum-
stances that a measure would be sent to a
Referendum. To this argument there are two
replies. The first is, that in a reconstructed
Second Chamber there would be no assured
majority of Unionists ; and that, although that
reconstructed Chamber might be conservative

220 RIGHTS OF CITIZENSHIP

in a national sense, it would certainly no longer be
conservative in the party sense as the House of
Lords is now alleged to be. It must, however,
also be pointed out that this is a contingency for
which the Radicals themselves do not, even in the
Parliament Act, attempt to make provision. The
Referendum is put forward partly as an answer to
the pet Radical grievance that the House of Lords
prevented the passage of Liberal legislation which
the electors ardently desired. The Parliament Act
is now part of the statute law, and if an Unionist
Government were to come into power to-morrow
that Government would be far more powerful than
any Unionist Government has yet been to pass
such legislation as it chose to pass, whether the
electors really desired that legislation or not.

Again, as it is urged that if the Referendum be
adopted into the Constitution, so must also the
Initiative, let me remind my readers what the
Initiative is. It is not always quite the same
under all circumstances ; there are more forms of
it than one, but in its crudest form it is the pro-
vision by which a certain number of electors may
put forward a project of legislation that has not
been discussed in Parliament at all, and which is
then submitted to the electors in a Referendum
to be passed or rejected.

It is obvious that machinery of this kind might
be used by Socialists to put forward predatory
proposals direct to the electorate ; but its special
inherent danger consists, not in the fact that the
proposals might be predatory, but in the fact that

THE REFERENDUM ftftl

these predatory proposals might be voted upon by
the electors at a Referendum without that adequate
preliminary and sustained discussion and criticism
which is necessary for the purpose of informing
them of their true nature, and consequently no
proposal in respect of the Referendum will ever be
put forward by the Unionist Party which does not
ensure to the electors a period for adequate and
sustained preliminary discussion and criticism
before being asked to vote upon a Bill.

If a democracy like ours is determined to
embark on a course of legislative injustice and
spoliation, in the long run it will do so, but I do
not believe the British people will intentionally
ever do any such thing. The real danger of the
democratic system to us consists in the possibility
of the electors being cajoled into the approval of
a proposal before they have understood its full
significance, and which they would have unhesitat-
ingly rejected if they had had time to understand
it. The British people do not grasp quickly the
full bearing of a political proposition which is new
to them, but if they are given time, history proves
their judgment to be sounder than that of any
democracy of which the world has hitherto had
experience.

But the question must be answered — is there
any necessary connection between the Referendum
and the Initiative? I assert that the answer is
" No," that there is no necessary connection. The
Referendum, in one form or another, is to be found
as part of the Constitution of forty-five of the forty-

2^2 RIGHTS OF CITIZENSHIP

six States of which the United States of America is
composed ; the Initiative has a place in the Con-
stitution of only seven of those forty-six States,
and I understand from Mr. Bryce's Report that it
is in actual operation in only one. In Switzerland,
the Referendum is in operation in every canton but
one ; the Initiative is in operation in some cantons,
but not in all. In the Commonwealth of Australia
no change of any kind can be made in the Constitu-
tion, even when both Houses of Parliament are in
agreement, unless it be approved by a majority of
the electors in a majority of the States, voting at a
Referendum, but the Initiative has no place in the
Constitution of the Commonwealth. The Initiative
is, in fact, another red herring dragged across the
trail of the Referendum. The Initiative can be dis-
cussed on its own merits, but there is no reason
whatever why, because the Referendum is intro-
duced for certain definite purposes into the British
Constitution, the Initiative should also be intro-
duced.

The argument used above has in part also
served as an answer to the objection that the
Referendum can be used for the bribery and
debauchery of the electors, and that their ignorance
and unfitness to decide an issue are an absolute bar
to its introduction, but it will be well to develop it
further. The objection has been formulated in this
way : If the Referendum were used for measures
which might take the form of a direct bribe to the
electors, it would demoralize first ministers, then
Parliament, and then the electorate. A crude bribe

THE REFERENDUM 223

might, perhaps, be rejected by the electors, but
could they be trusted to withstand the insidious
mixture of bribery and sentiment which forms
the staple of the platform speeches of Radicals
and Socialists?

This argument deserves careful attention, but
I protest that it must be discussed in comparison
with the facts as they are, and not as we would
wish them to be. What is the present position ?
Are not the Bills of the Radical Government
already introduced to the electors in a dangerous
and insidious mixture of bribery and sentiment ?
What else have been Mr. Lloyd George's speeches
at Limehouse and Mile End and elsewhere ? We
are already confronted with this gross abuse. The
demoralization feared is not prospective, it is exis-
tent ; and the question is, not whether there is not
a danger of the abuse of the Referendum by such
means, but which is the greater danger — the danger
to be feared from the votes of the electors them-
selves at a Referendum, after attempts have been
made to debauch their sense of honesty and justice,
or that to be feared from the votes of the members
of the House of Commons dominated by the caucus,
in its turn dominated by Mr. Lloyd George, or
some unknown demagogue of the future ?

The truth is that politicians who do not scruple
to resort to such methods of sustaining themselves
in office, will resort to these methods under any
democratic system, and the real question now to
be answered is, not whether the Referendum would
or would not be responsible for introducing such

224 RIGHTS OF CITIZENSHIP

methodS; but whether they could be more easily
defeated if the final word rested with the electors
at a Referendum or with an autocratic Single
Chamber (as the House of Commons at present
is), unchecked by any Referendum. In my own
judgment the path of safety undoubtedly lies with
the Referendum. I would far rather argue before
the electors, who themselves were about to give
a vote on a definite concrete proposal, however
predatory in character, than I would argue to a
tyrannical majority in a Single Chamber dominated
by the caucus.

Those who advocate the use of the Referendum
do so as an appeal to the electors, not in substi-
tution for the fullest debate in Parliament, but as
an appeal in certain cases after that debate is
concluded. So organized, they consider that the
Referendum cannot justly be described as an
additional danger, and that the real danger to be
guarded against already exists in the autocracy of
a Single Chamber. The Referendum properly
organized would, they urge, be a powerful check
on that autocracy. If the electors at a Referendum
endorsed a decision of Parliament, the situation
would be no worse even from a Conservative point
of view. Every time they rejected a Bill approved
by Parliament, the country would have been saved
from a piece of legislation which would otherwise
have been imposed upon it against its will.

Some of our friends think that, when the
Parliament Act has been repealed and the House
of Lords reconstructed into a strong Second

THE REFERENDUM 225

Chamber, there will be no need for the Referendum.
I cannot share that opinion ; I agree that the
stronger the Second Chamber the less frequent will
be the occasions for recourse to the Referendum,
and, as I do not desire to see the Referendum too
freely used, I should consider that a great ad-
ditional advantage; but I hold that the absence of
any provision for settling an acute difference of
opinion between the two Houses of Parliament
other than a general election to be a grave defect
in the constitution, and, however strongly the
Second Chamber may be reconstructed, the Refe-
rendum will be required as the constitutional
method of settling such persistent irreconcilable
disputes.

All who have had the experience of being
brought into close contact with the British
electorate will agree that they are, on the whole,
a set of men genuinely anxious to do what is right,
and to give fair play to all interests and classes.
The closer Unionists can get to them in the settle-
ment of the grave questions of the future, the more
stable will be the Constitution and the rights of
property ; the more effectually the Radicals can
interpose an autocratic Single Chamber between
the people and the champions of the Constitution,
and of the rights of the individual citizen, the more
unstable will be all our conditions. Mr. Disraeli
was never wiser than when he adjured his party to
trust to the sublime instincts of an ancient people.

1 lay great stress on the educative effect of
requiring the electors to consider one question

226 RIGHTS OF CITIZENSHIP

I

at a time. Public meetings, the Press, all sorts of
literature, and elections, are the chief instruments
of the political education of the electors ; but in a
General Election the issue is a bewildering com-
plication of rival policies, diverse bills, and personal
considerations, while everything is overshadowed
by what I must call the '^ cup-tie" aspect of the
giant struggle between the great political parties.
The inevitable tendency is to attach the elector
blindly to a colour or a label. A Referendum on a
single great issue would in my judgment do more
than anything else to make him regard himself
more as a trustee, and less as a sportsman. The
Referendum would be a potent instrument for the
political education of the democracy.

Remembering the quarter from which it comes,
the most extraordinary argument which is used
against the Referendum is that the electors are not
fit to decide the kind of issue which would be sub-
mitted to them. I can understand the argument
and appreciate its full -weight when it is directed
against democracy as an institution, when it is used
to point out how absurd it is to expect the average
elector, with his comparatively limited oppor-
tunities of information, and his hard struggle to
live, to decide the great issues which are the sub-
ject of modern politics. I can understand such an
argument used by one who desired to restrict the
franchise to comparatively few persons, well edu-
cated and possessed of property. But I confess
I am wholly unable to understand the argument
when it proceeds from a man who lauds democracy

THE REFERENDUM 227

as the best possible form of government, or who
at any rate accepts it so long as it is not equipped
with the machinery of the Referendum.

For what is the proposal to which this objection
is taken ? That after a measure such as a Bill for
Home Rule for Ireland, or for the Disestablishment
and Disendowment of the Church, has been debated
in Parliament for at least two sessions, when it has
been before the country for many months, when it
has been discussed in every newspaper and on
every platform, when its leading features are fairly
well-known to the great majority of the electors, it
should then, under certain circumstances, be sub-
mitted to the electors to say whether they approve
of it or not. When this proposal is made, the
objection is raised that the electors are not fit to
decide, and in the same breath it is asserted that
they are fit to decide at a General Election whether
that particular measure shall become law, and
whether a dozen other measures, most of which
have not been discussed at all, shall become law.
The proposition, in fact, amounts to this, that the
more measures on which an elector has to give an
opinion at the same moment, and the less they
have been discussed, the fitter he is to give a
decision on them ; but that if one measure, after
ample discussion, is eliminated from all others and
stands by itself alone, then he is quite unfit to
give a decision upon it !

Mr. Asquith is reported in The Times of April
4th, 191 1, to have used the following words : ^' When
this Bill (the Parliament Bill) was presented to the

228 RIGHTS OF CITIZENSHIP

country, as it was at the last election, it was pre-
sented with its preamble. The assent given by
the electorate to the Bill was an assent given, I do
not say to every detail, but given to the Bill as a
whole." This was a Bill which had been printed
and published in the early part of 1910, but never
discussed for one single day in the House of
Commons. It was a Bill presented to the electors
under such conditions as no Bill could ever be
presented to them in the form of a Referendum.
Mr. Asquith would probably make a great point of
the unfitness of the electors to decide such a
question after ample discussion at a Referendum,
and yet he claimed that they gave their decision
upon it at the General Election of December, 1910,
although there had been no preliminary discussion !
To judge by his speech at a further stage of the
Parliament Bill, as reported in The Times of April
2 1 St, 191 1, 1 understand him to have said that at the
same election — December, 1910 — the electors gave
him a mandate to pass Home Rule for Ireland.
Mr. Asquith would absolutely decline to refer a
Home Rule Bill to a Referendum after it had been
discussed in all its details for many months in
Parliament, and he would probably say that the
electors were unfit to give a decision in such a
manner; yet he tells us that they have given him
a mandate to pass a Home Rule Bill for Ireland,
the details of which, I presume, had been indicated
to them by some process of telepathy— as they had
never been published !

Again, it is said that the frequent or habitual

THE REFERENDUM 229

use of the Referendum would necessarily weaken
the sense of responsibility of Parliament and en-
courage members to vote for measures of which
they disapprove if they were popular among any
considerable section of their supporters, trusting
to others to reject what they themselves were
afraid to oppose, or at least washing their hands of
a responsibility for the consequences. This argu-
ment, again, must be weighed in connection with
facts as they are. The Member of Parliament
to-day is in the grip of the party machine, and he
cannot escape from it. What effect the Referendum
would have on the sense of responsibility of
Members of Parliament, and^ Cabinet Ministers,
can only be a matter of opinion ; but I suggest in
the first place that the present position in this
respect is so bad that it cannot easily be made
worse, and in the second place that it is more
probable that the effect of the Referendum would
be to heighten than to weaken the sense of re-
sponsibility. Cabinet Ministers would think twice,
and oftener, before they proposed measures which
they knew were deeply resented by a very large
section of the population, a number which they
might well suspect really to comprise a majority,
and Members of Parliament would feel the same
influence and make their representations felt
within the party before the question took shape in
the form of a Bill in the House of Commons.
This, in my opinion, would be just as true of the
Unionist Party as of the Radical Party.

The influence of the Referendum would, in fact,

230 RIGHTS OF CITIZENSHIP

be towards compromise, and where we have those
acute divisions of opinion which exist in this coun-
try among great bodies of men, as, for instance, in
the matter of religious education, compromise, I
submit, is what all sensible people should desire.
This objection also ignores the introduction of
the system of log-rolling into our Parliamentary
tactics, which is now an accomplished fact. The
groups of Welsh, Irish, Scottish and Labour
members scheme to tie themselves to each other
like men in a three-legged race. Each group is
willing to support the others to realize their pet
legislative projects provided that the support is
mutual, and that each group is repaid for its votes
by receiving the votes of the other groups when
its turn comes. This system is capable of almost
indefinite extension, and it is commonly reported
that it has been so extended in America. Log-
rolling involves the destruction of the sense of
responsibility, both of Cabinet Ministers and Mem-
bers of Parliament, and whatever else it did the
Referendum would certainly defeat log-rolling.

Yet another objection urged against the Refe-
rendum is that a Cabinet could not retain office
after a Bill promoted by it had been rejected at a
Referendum. Of course, if a Cabinet had staked all
its fortunes on a measure such as Home Rule for
Ireland, and if that Bill were rejected by the electors
at a Referendum, the credit of that Government
would be so shaken that it might not be able to
retain office. But the question is essentially one
of degree. If the Bill rejected was only one of

THE REFERENDUM 231

secondary importance; there is no reason whatever
why the Government should resign. Of course, its
credit pro tanto would be damaged ; but the prob-
ability is that the Cabinet would be very sensible
of this danger in advance, and would endeavour to
avoid the necessity for a Referendum by reasonable
compromise, which is exactly the tendency it is
most desirable to foster.

The doctrine of verbal inspiration in legislation
and of infallibility in administration is a new and
very mischievous one. It is only within com-
paratively recent times that a Government has
affected to regard an amendment of detail in com-
mittee, or a resolution in respect of some ordinary
administrative blunder as a question of confidence.
If the Referendum had no other result than that of
destroying this ridiculous heresy, which has had
much influence in impairing the independent action
of Members of Parliament, it would perform a
great service to the cause of Parliamentary Govern-
ment. The fact is that Liberals and Radicals are
so obsessed with the sense of their beneficent
omniscience that they consider it a matter of no
importance that the majority of the electors may
be really opposed to the laws they pass. Those
who happen to think that a democracy becomes
an absurd and dangerous farce, if a minority can
persistently impose its will on a majority of the
electors, will not be distracted in their advocacy
of the Referendum by the plaintive cries of the
Radicals that it might sometimes make their
retention of office more difficult.

282 RIGHTS OF CITIZENSHIP

But in connection with this argument it is
interesting to note that the Labour Cabinet in
Australia has never resigned, although the electors
of the Commonwealth in April 191 1 rejected at a
Referendum the proposed amendments to the Con-
stitution to which it attached great importance,
and that it continues to enjoy the support of its
Parliamentary majority and the confidence of the
electors.

I have now shown what the nature of the
Referendum is, and how it is used in foreign coun-
tries and in the Dominions of the Empire, and to
a limited degree for local or trade purposes in the
United Kingdom. I have also endeavoured to
meet the objections urged to its introduction into
our Constitution, but for the arguments I have
used I am alone responsible. The leaders of our
party have accepted the principle of the Referendum,
but in what manner and for what purposes and in
what degree its use shall be recommended it will
be for them with the consent of the Unionist party
to decide.

n

THE PARLIAMENT ACT, 1911

An Act to make provision with respect to the powers of the House
of Lords in relation to those of the House of Commons^ and
to limit the duration of Parliament. \\Zth August^ 191 1-]

Whereas it is expedient that provision should be made for
regulating the relations between the two Houses of Parlia-
ment :

And whereas it is intended to substitute for the House of
Lords as it at present exists a Second Chamber constituted on
a popular instead of hereditary basis, but such substitution
cannot be immediately brought into operation :

And whereas provision will require hereafter to be made
by Parliament in a measure effecting such substitution for
limiting and defining the powers of the new Second Chamber,
but it is expedient to make such provision as in this Act
appears for restricting the existing powers of the House of
Lords :

Be it therefore enacted by the King's most Excellent
Majesty, by and with the advice and consent of the Lords
Spiritual and Temporal, and Commons, in this present
Parliament assembled, and by the authority of the same, as
follows : —

Powers of House of Lords as to Money Bills. — 1. — (i) If a
Money Bill, having been passed by the House of Commons,
and sent up to the House of Lords at least one month before
the end of the Session, is not passed by the House of Lords
without amendment within one month after it is so sent up to
that House, the Bill shall, unless the House of Commons
direct to the contrary, be presented to His Majesty and
become an Act of Parliament on the Royal Assent being

234 RIGHTS OF CITIZENSHIP

signified, notwithstanding that the House of Lords have n(
consented to the Bill.

(2) A Money Bill means a Public Bill which in the opinion '"
of the Speaker of the House of Commons contains only
provisions dealing with all or any of the following subjects,
namely, the imposition, repeal, remission, alteration, or
regulation of taxation; the imposition for the payment of
debt or other financial purposes of charges on the Consolidated
Fund, or on money provided by Parliament, or the variation or
repeal of any such charges ; supply ; the appropriation, receipt,
custody, issue or audit of accounts of public money ; the raising
or guarantee of any loan or the repayment thereof; or sub-
ordinate matters incidental to those subjects or any of them.
In this subsection the expressions " taxation," " pubhc
money," and *' loan " respectively do not include any
taxation, money, or loan raised by local authorities or bodies
for local purposes.

(3) There shall be endorsed on every Money Bill when it
is sent up to the House of Lords and when it is presented
to His Majesty for assent the certificate of the Speaker of the
House of Commons signed by him that it is a Money Bill.
Before giving his certificate, the Speaker shall consult, if
practicable, two members to be appointed from the Chairmen's
Panel at the beginning of each Session by the Committee of
Selection.

Restriction of the Powers of the House of Lords as to Bills
other tha?i Money Bills. — 2. — (i) If any Public Bill (other than
a Money Bill or a Bill containing any provision to extend the
maximum duration of Parliament beyond five years) is passed
by the House of Commons in three successive sessions
(whether of the same Parliament or not), and^ having been
sent up to the House of Lords at least one month before the
end of the session, is rejected by the House of Lords in each
of those sessions, that Bill shall, on its rejection for the third
time by the House of Lords, unless the House of Commons
direct to the contrary, be presented to His Majesty and become
an Act of Parliament on the Royal Assent being signified
thereto, notwithstanding that the House of Lords have not

THE PARLIAMENT ACT, 1911 235

consented to the Bill : Provided that this provision shall not
take effect unless two years have elapsed between the date of
the second reading in the first of those sessions of the Bill in
the House of Commons and the date on which it passes the
House of Commons in the third of those sessions.

(2) When a Bill is presented to His Majesty for assent in
pursuance of the provisions of this section, there shall be
endorsed on the Bill the certificate of the Speaker of the House
of Commons signed by him that the provisions of this section
have been duly complied with.

(3) A Bill shall be deemed to be rejected by the House of
Lords if it is not passed by the House of Lords either without
amendment or with such amendments only as may be agreed
to by both Houses.

(4) A Bill shall be deemed to be the same Bill as a former
Bill sent up to the House of Lords in the preceding Session if,
when it is sent up to the House of Lords, it is identical with
the former Bill or contains only such alterations as are certified
by the Speaker of the House of Commons to be necessary
owing to the time which has elapsed since the date of the
former Bill, or to represent any amendments which have been
made by the House of Lords in the former Bill in the preceding
session, and any amendments which are certified by the
Speaker to have been made by the House of Lords in the
third session and agreed to by the House of Commons shall be
inserted in the Bill as presented for Royal Assent in pursuance
of this section :

Provided that the House of Commons may, if they think
fit, on the passage of such a Bill through the House in the
second or third session, suggest any further amendments
without inserting the amendments in the Bill, and any such
suggested amendments shall be considered by the House of
Lords, and, if agreed to by that House, shall be treated as
amendments made by the House of Lords and agreed to by
the House of Commons ; but the exercise of this power by the
House of Commons shall not affect the operation of this
section in the event of the Bill being rejected by the House of
Lords.

236 RIGHTS OF CITIZENSHIP

Certificate of Speaker. — 3. Any certificate of the Speaker
of the House of Commons given under this Act shall be
conclusive for all purposes, and shall not be questioned in any
court of law.

Enacting words. — 4. (i) In every Bill presented to His
Majesty under the preceding provisions of this Act, the words
of enactment shall be as follows, that is to say : —

" Be it enacted by the King's most Excellent Majesty,
by and with the advice and consent of the Commons in
this present Parliament assembled, in accordance with the
provisions of the Parliament Act, 191 1, and by authority
of the same, as follows. "

(2) Any alteration of a Bill necessary to give effect to this
section shall not be deemed to be an amendment of the Bill.

Provisional Order Bills excluded. — 5. In this Act the
expression " Public Bill " does not include any Bill for con-
firming a Provisional Order.

Saving 'for existing rights and privileges of the House of
Commons. — 6. Nothing in this Act shall diminish or qualify
the existing rights and privileges of the House of Commons.

Duration of Parliament^ i Geo. i, stat. 2, c. 38. — 7. Five
years shall be substituted for seven years as the time fixed for
the maximum duration of Parliament under the Septennial Act,

1715-

Short title, — 8. This Act may be cited as the Parliament

Act, 1 9 11.

I

INDEX

Adams, Sir F. O., on the Referen-
dum in Switzerland, 21 1

Alverstone, Lord Chief Justice, on
the protection of liberty, 67

American Federal Upper Chambers,
196-7

Anne, Queen, presides at Cabinet
Councils, 20

Anson, Sir William, on the Growth
and Development of the Consti-
tution, I

Appeal to the people, the, 85

Asquith, H. H., on the Parliament
Bill, 227

Assent, the Royal, i, 65, 82

Australia, Parliament of, 96, 134
Referendum in, 213
Second Chambers in, 167
Senate of, 166, 192, 193

Austria, Constitution of, 147, 170
Upper Chamber of, 170, 183, 194

Baden, Lower Chamber of, 197

Upper Chamber of, 196
Baronage, the, 5, 6
Bavaria, Lower Chamber of, 197

Upper Chamber of, 196
Bax-Ironside on the Referendum in

Switzerland, 208
Belgium and personal freedom, 77

Constitution of, 151, 177

Lower Chamber of 195

Senate of, 177, 180, i86, 194
Bill, legislation by, 16
Bill of Rights, 13
Board of Agriculture, the, 72
Boards of commissioners, multiplica-
tion of, 70
Brazil, Upper Chamber of, 196
Bribery and party politics, 223
Bribery of the classes, the, 106

Bristol, Referendum at, 216
British North America Act, 133
Brown, Jones, and Robinson, 103
Bryce, James, on the advantages of
the President's veto, 130

on the Referendum, 205
Budget of 1909, the, 57
Bundesrath, the, 146, 163, 184
Bureaucracy, evils of, 70
Burke, Edmund, on the King's Teto,

82

Cabinet, origin of the, 19

power of the, 54
Canada, Constitution of, 133

Senate of, 164, 184, 192, 193
Caucus and Constitution, 45
Caucus, the, how it works, 201
Cecil, Lord Hugh, on Second Cham-
bers in the British dominions and
in foreign countries, 159
Chamber of Deputies in France, 95,

143
in Italy, 150
in Spain, 150
Chamberlain, Austen J., on free

labour, 77
Churchill, Winston, attacks the

judges, 69
Civil List, the, 15
Civil War, the, and the House of

Lords, 108
Classification of Constitutions, 179
Clergy, representation of the, 5, 6
Coalition of factions, dangers of a,

124
Colonial forms of government, 24
Colonial Upper Chamber, methods of

appointment, 190, 192
in relation to the Lower Chambers,

193

INDEX

Colonial Upper Chambers, restrictions

on financial power, 192
Commissioners, increase of, 70
Commons, the, abolish the Lords,
114

govern alone, 115

injured by the Parliament Act, 34

representation of the, 5
Commonwealth of Australia, 96
Commonwealth of England, 99
Congress of the United States, 92,

128
Conservative Party, the, 38
Constituencies, the, 9
Constitution, the, its Growth and
Development, i

general principles of the, 47
Constitution of 1653, the, 99
Constitution and the individual, the,

44
Constitution of Australia, the, 96,

127, 134

of Austria, 170

of Canada, 133

of Russia, 169

of Switzerland, 94

cf the United States, 92, 126, 128
Constitutional changes, how effected
in Australia, 137

in Belgium, 154

in France, 144

in Germany, 163

in Norway, 154

in South Africa, 141

in Sweden, 153

in Switzerland, 156
Constitutional safeguards, 81
Constitutional safeguards in the

British dominions and foreign

countries, 122
Continental Lower Chambers, 195
Continental Upper Chambers, 193-7

variously composed, 194-7

elected on a popular basis, 194-5
Control of supply, tbe, 14
Convocation, 6

Corruption of classes, the, 106
Cortes of Spain, the, 150
Council of States of Switzerland, 94,

15s
Council of the Empire, character of,

180
Council of the Empire in Russia, 169
Cromwell, Henry, on Parliaments,

120

Cromwell, Oliver, and the Instrument
of Government, 50, 99
expels the Long Parliament, 116
his House of Lords, 100, 118
on the Parliament of 1652, 62
Cunningham, C. D., on the Swiss
Referendum, 211

Danger of the absence of safeguards,

lOI
Deadlocks between Colonial Cham-
bers, 193
in Continental Chambers, 195
in Holland, 152
in Hungary, 171
in Italy, 189
in South Africa, 140
in Spain, 151, 189
Democracy, the abdication of, 27
Democratic government, 26
Denmark, Constitution of, 149, 151
Lower Chamber of, 195
Upper Chamber of, 194
Dicey, Professor V. A., on the Par-
liament Act, and the destruction
of all constitutional safeguards,
81
Dictatorship of the Commons, 88
Diet, the Hungarian, 149
Dissolution, the power of, in France,

145. 185
Duma, the, 182

Education Act, Mr. Balfour's, 39
Education question decided by the

Referendum, 214
Edward I., his views on Parliaments,

12
Elected Colonial Upper Chambers,

192, 193
Elected Second Chambers, character

of, 181
Elections from 1886 to 1910, 203
Electoral Franchise for Colonial

Upper Chambers, 192
Electorate and the nation, 55
Electorate, the, and what it votes for,

199
English Commonwealth, the, 99
Estates, the Three, S

Federal Assembly of Switzerland,

the, 94
Federal States with Single Chambers,

160

INDEX

SB9

Federal Upper Chambers, 196-7

Female Suffrage, 31

Finance Bill, 1909, the, 14

Finlay, Sir Robert, on Constitutional
safeguards in British dominions
and foreign countries, 122

Folkething in Denmark, the, 153

France, Constitutions of, 94, 143, 178
Lower Chamber of, 195
Senate of, 95, 178, 185, 194

Franchise Act of 1884, 9

Franchise Bill of 19 12, ii

Franchise Bill, the new, 30

Free Labour, 75

Germany, Constitution of, 146
Lower Chamber of, 197
Upper Chamber of, 163, 196
Government becomes more compli-
cated, 198
Growth and Modern Development of
the British Constitution, by Sir
William Anson, i

Habeas Corpus Acts and peaceful

picketing, 78
Halsbury, Earl of, on attacks on

judges, 69
Herren-Haus, the, in Austria, 170,

183, 194
Hesse-Darmstadt, Lower Chamber of,
197

Upper Chamber of, 196
Holland, Constitution of, 151

Lower Chamber of, 195

Upper Chamber of, 194
Home Rule Bill, the, 65, 79

of 1893, 86
House of Assembly of South Africa,

140
House of Magnates, the, 170, 182
House of Representatives, the, of
Australia, 135

of Austria, 148

of New Zealand, 142

of the United States, 92, 128
Hungary, Constitution of, 149

Lower Chamber of, 197

Upper Chamber of, 196

Illinois, Referendum in, 207
Imperial Ordinances in Austria, 148
Individual, the, as afifected by the

Parliament Act, 44, 56
Initiative, the, 220

Instrument of Government, the, 50,

99) 116
Insurance Act, 46, 63, 73
Insurance Bill, the, 27
Italy, the Constitution of, 150, 174

Lower Chamber of, 195

Upper Chamber of, 174, 176, 194

Judges, independence and fairness

of our, 68
Jury, origin of the, 4

King, the, as leader, 2, 82
as President at Cabinet Councils,
20
King's Assent, the, i, 65, 82
King's Council, the, 4
King's Revenue, the, 14

Lansdowne, Marquess of, on effect

of the Parliament Act, 61
Preface by, v.
Lagthing of Norway, the, 154, 161,

187
Law, supremacy of the, necessity for,

67
Legislative Assemblies, the number

of, 159
Legislative Council of New Zealand,

142
Legislative work of the Lords, 86
Liberal Party, the, 37
Lords, political opinions of the, 8
Liberty, the menace to, 33
Life Members of Colonial Upper

Chambers, 193
Logrolling in politics, 105, 230
Long Parliament, the, 109
Lords and the Civil War, 108, in
Lords and Commons, contest between,

17

Lords, House of, 6
opposed to Charles I., ill
and Money Bills, 13
and their right of rejection, 85
their place in legislation, 18

Macau LAY, Lord, on the Long Par-
liament, 109

Magna Charta, 5

Magnates, the House of, in Hun-
gary, 170, 182

Maine, Sir Henry, on the American
Constitution, 126

240

INDEX

I

Majorities, parliamentary, required

and attained, 203
Members, payment of, 10, $2, 63, 106
Members voting for measures they

dislike, 35
Midleton, Viscount, on the House of

Lords and the Civil War, 108
Ministry, origin of the, 4
Model Parliament, the, 5
Money Bills, 13

defined, 87

in Australia, 135

in Austria, 148, 182

in Belgium, 153, 186

in Denmark, 153

in France, 144, 185

in Germany, 184

in Hungary, 182

in Italy, 150

in Norway, 154

in Prussia, 183

in South Africa, 140

in Switzerland, 155
Municipalities and the Referendum,
216

Natal, Referendum in, 214
National Council of Switzerland, the,

94. 155
Netherlands, Constitution of the, 151
Lower Chamber of, 195
Upper Chamber of, 194
Newfoundland, Constitution of, 167

Upper Chamber of, 192, 193
New South Wales, Upper Chamber

of, 192, 193
New York, Referendum in, 207
New Zealand Constitution, the, 142,
167
Upper Chamber of, 192, 193
Nominated Colonial Upper Cham-
bers, 192
Nominated Second Chambers, their

defects, 175
Norway, the Constitution of, 95, 154,
161, 187
Lower Chamber of, 195
Upper Chamber of, 194
Norwegian Lagthing, 187
Nova Scotia, Upper Chamber of,
192, 193

Oberholtzer, Professor, on the
Referendum, 206

Odelsthing of Norway, the, 96, 154,

161, 187
Ordinances, the King's, 16
Imperial, in Austria, 148
Oregon, Referendum in, 207

Paper Duty Bill rejected, 14
Palmerston, Lord, 84

his defeat, loi
Parliament Act, the, 34, 41, 123, 233
and the destruction of constitutional

safeguards, 81
considered in relation to the rights

of the people, 26
principle of the, 30
Parliament of Belgium, 15 1
of South Africa, 140
of the Australian Commonwealth,

96
of 1295, 5

of 1640, 112

of 1652, 62

origin of, 4

rights of, 83
Parliamentary factions, 102

government, meaning of, 49

supremacy, 51
Parliaments, duration of, 23

the Protector's, 116
Partnership problem, a, 103
Parties, the present, 40

in Parliament, 102
Party, the difficulties of, 199

machine, the, 199

organization, 21

pressure, the power of, 35

system, working of the, 201
Patronage, extension of, 71
Payment of Members, 10, 52, 63, 106

in Russia, 169
Peel, Sir Robert, on abolishing the

House of Peers, 122
Peerage small in the past, no

threatened increase of the, 58
Peers abolished by Commons, 1 14

numbers of the, '7

refuse to act alone, 1 12
Permits issued for the King's high-
way, 76
Personal freedom and the Constitu-
tion, 44
Petition of Right, the, 1 1 1
Picketing violates Habeas Corpus

Acts, 78
Plural votes in Belgium, 178

INDEX

Ul

Poll of the people, the, 198
Prerogative of the Crown, 188
President of the United States, his

powers, 92, 129
Princes of reigning families members

of Upper Chambers, 193
Proclamations in Council, 17
Proportional representation in Bel-
gium, 178
Provisions for avoiding deadlocks,

195, 197 .
Prussia, Constitution of, 171

Lower Chamber of, 197

Upper Chamber of, 196
Public Bills and the Lords, 88

Quebec, Upper Chamber of, 192,

193
Queensland, Constitution of, 189
Referendum in, 214
Upper Chamber of, 192, 193

Redistribution Act of 1885, 10

Referendum, the, 198
at Bristol, 216
and bribery, the, 223
in Australia, 97, 213
in Illinois, 207
in Natal, 214
in New York, 207
in Oregon, 207
in Queensland, 189, 214
in Switzerland, 155, 156, 208
in the United States, 93, 205
in use by municipalities, 216
does not compel resignation, 230
its effect on Members of Parliament,

229
of two kinds in Switzerland, 208
party objections to the, 219
would defeat log-rolling, 230

Reform Act of 1832, 9, 84

Reichsrath, the, 147

Reichstag, the, 146

Representation, results of the in-
equalities of, 55

Representative government resting
upon fictions, 53

Representatives who do not repre-
sent, 202

Restrictions on the financial powers
of Colonial Upper Chambers, 192

Rigsdag in Denmark, the, 151
in Sweden, the, 151

Royal Assent, i, 65, 82

Russia, Constitution of, 149, 169

Safeguards, Constitutional, 122

in Australia, 135

the destruction of, 81
Saxony, Lower Chamber of, 197

Upper Chamber of, 196
Second Chamber, duties of, 38, 40,

190
Second Chambers and Single Cham-
ber dangers, 126

adopted in all important States,

. ^57

in Australia, 167

in South Africa, 167

in the British dominions and in
foreign countries, 159

nominated, 175
Selborne, Earl of, on " the two years'
fraud," 59

on the Referendum, 198
Senate, American, 92, 128, 161, 184

of Australia, 135, 166

of Belgium, 177, 186

of Canada, 134, 164, 184

of France, 95, 143, 178, 185

of Italy, 150, 174, 176

of South Africa, 139, 168

of Spain, 150, 171

of the United States, 92, 128, 161,
184
Sessions different from years, 90
Single-Chamber government in Eng-
land and its failure, 115, 120
Single- Chamber States, 160
Single-member constituencies and

party organization, 21
Small Holdings Act, the, 72
Smith, F. E„ K.C., M.P., on the

Parliament Act, 26
South Africa, Parliament of, 139

Second Chambers of, 167

Senate of, 168, 192, 193

Union of, 139

Upper Chamber of, 192, 193
South Australia, Uppei^ Chambe^ of,

192, 193
Spain, Constitution of, 150, 171

Lower Chamber of, 195

Upper Chamber of, 194
Star Chamber, the, 17
State legislatures in America, 93, 131
State representation, 162

INDEX

Storthing of Norway, the, 96, 154,

161, 187
Stuarts, the, and taxation, 12
Sweden, Constitution of, 151

Lower Chamber of, 195

Upper Chamber of, 194
vSwing of the pendulum, the, 201, 203
Switzerland, Constitution of, 94, 155

Lower Chamber of, 195

Referendum in, 208

Upper Chamber of, 194

Table of Magnates, 140
Tasmania, Upper Chamber of, 192,

193
Taxation, the struggle over, 12
Temperley, H. W. V., Tables by,

192
Theory of Government, our, 198
Titles of the Peerage, 6
Trades Disputes Act, 75
Trades Unions placed above the

Constitution, 75
the Referendum in use by, 216
Tudor rule and Stuart rule. 108
Two years' delay, the, 58

Unequal representation, ii
Union of the Kingdoms, the, 24
Unitary States with Single Chambers,

161

United States, constitution, 92, 126,
128
Referendum in, 205
Senate, 161, 196
Upper Chambers, Tables of, 192-197

Veto of the King, the, i, 65, 82
Victoria, Upper Chamber of, 192,
Voters, the number of, 9
Voting on the Referendum, 215
plural, 178

193

Western Australia, Upper Chamber

of, 192, 193
Willoughby de Broke, Lord, on the

Constitution and the individual,

44
Wiirtemberg, Lower Chamber of,
197
Upper Chamber of, 196

THE END

PRINTED BY WILLIAM CLOWBS AND SONS, UMITKD, LONDON AND BBCCLB8.

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