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THE

EDINBURGH REVIEW.

APRIL, 1835.

No CXXIII.

Art. I.— Theory of the Constitution compared with its Practice,

in ancient and modern times. By James B. BERNARD, Esq.,

Fellow of King's Coll. Cambridge. 8vo. London : 1834. THERE There are few subjects on which more erroneous notions have

been spread by ingenious and zealous men of various shades of opinion, than the Theory of the British Constitution. While it has been represented by some as an exquisite piece of mechanism, in which the movements were made regular and safe by a curious combination of parts, and by a system of mutual checks and balances—other reasoners have denied it all merit of this kind, and, maintaining that no equipoised system can exist because a perfect equilibrium must be followed by absolute inaction, have contended that the whole functions of the government would be at once suspended, unless the theory were corrected in practice, and one power overwhelmed all the rest. The main error of the former class has consisted in regarding too nicely the speculative views of the subject, suffering themselves to be dazzled by the idea of symmetry, and allowing metaphorical expressions to usurp the place of argument, and to influence their reasoning. The other class have fallen into an equal mistake, by confining their attention to the theoretical consequences of the speculative or ideal account given by the panegyrists of the system, and by not observing how the same matters of fact which those panegyrists overlooked in their zeal to praise, made the system work well, and work well according to the principles of the theory, while they certainly impaired the symmetry so greatly vaunted. For it is undoubtedly true, though a truth overlooked by both parties, that the constitution works well in practice only by working according to its principles.

The principles upon which not only the British constitution VOL. LXI. NO. CXXIII.

A

but every mixed government whatever must be founded, are those upon which every combination of men must act, if they have a common purpose, and act together, whether the union is formed of several distinct bodies, or of several distinct individuals. Different portions of one association, and different individuals in one such portion, act together in concert, on exactly the same principles which regulate the mutual actions of the different parts whereof a system of government consists. What is called the balance of forces may be traced in every such combination of bodies or associations of men. Wherever all power is not intended to be lodged in one portion of an association, composed of various bodies, or in one man, or member of any particular body of individuals, the mutual checks and balances must needs there exist.

Suppose there is a voluntary association of any kind, and that, for the better managing its affairs, and consulting the general wishes and opinions of its members, a committee is appointed of certain individuals who subscribe so much a-year, and another and larger committee of certain other subscribers to a lower amount, and the arrangement is made that whatever appointment to an employment takes place, or whatever by-law is passed, shall first be agreed to by the smaller committee and then by the larger; and that then, after both shall have agreed, the appointment shall not take place, nor the by-law have force, until the whole body of subscribers together shall have adopted it. Rigorously speaking, this constitution imports that the smaller committee is master of the whole, for it can refuse its consent to any appointment and any by-law; and so, in like manner, the larger committee is supreme, for the same reason; and so of the body at large appealed to in the third place. But let us reflect a little on the manner in which this constitution would work practically. There is a person proposed to be surgeon to the hospital, or house-steward, or housekeeperall necessary places to fill

, and without which the hospital cannot go on. The small committee rejects him and prefers another—the large committee prefers the first, and rejects the second. Then none can be appointed, and the limbs of the patient must gangrene, or the house accounts be in confusion, or the household remain without superintendence, for want of a surgeon, housesteward, or housekeeper. What is the inevitable consequence ? Rather than all should go to ruin, the two committees come to an understanding : they either agree on one of the two candidates for the place, one of whom each had severally preferred; or what is much more likely, they choose neither the one nor the other, but some third person, the favourite of neither, but less objectionable to both. So, in the case of making rules, they adopt the by-law, with such modifications as neither committee, if left to itself, would have approved, but such as may remove the complaints both of the one and the other, and such as, if it satisfies neither altogether, is not altogether offensive to either. Now, this arrangement is not only convenient, because it enables the affairs of the institution to go on instead of coming to a stop, but it is probably far more beneficial for the institution than if either committee had had its own way entirely. We say probably, but not certainly—in the majority of cases, not always—for unquestionably it may happen that one of the committees is quite right in its views and the other quite wrong ; in which case the interference of the other has proved to a certain extent hurtful, and the plan of a joint authority has worked ill. But then we are to take two considerations into the account, which not only turn the balance in favour of this arrangement, but make it absolutely and without any exception at all, more desirable. First, the plan is best which works well in the great majority of cases, and prevents grievous error and irrreparable mischief from ever happening at all; for this conduces to the great end of security. Secondly, even in the cases where an admixture of error is introduced by the combined operation of two or more bodies in producing the general result, this advantage is gained, that the course taken reconciles all men's opinions, and meets all their wishes, which in all institutions is a great advantage, and in governments is every thing; because it both tends to ensure safety, and it almost wholly constitutes liberty in popular government, liberty being the security that popular opinion shall generally be consulted. Thus a less able house-steward may be preferable in the hospital, if his nomination prevents the factious and discontented spirit which the choice of an abler person would have occasioned—and so a popular minister of inferior talents may be far better to govern a country than one of greater genius whom his fellow-citizens dislike. 'In regard to laws this is still more clear ; for as these apply to the whole community, are to be executed by different classes of persons, and must regulate the conduct of all, though the provision you adopt may be less beneficial than some other propounded, if you had the power of moulding men's characters and dispositions at will, yet not having any such power, except by very slow degrees and in a considerable period of time, the minds of the people must form always one element in the calculations of every wise lawgiver; and none but unreflecting or inexperienced persons can ever think of legislating for millions of human beings as if they were children, or animals, or inanimate substances.

It is, however, another consequence, equally undeniable, of the same principle, that if there be two or more branches of any government, and the one representing the people, the whole mass of the community, adopts one line of policy, because the whole community is deeply and universally, and after deliberation, wedded to the principles of that policy,—the other branches must in the end yield, and cannot with safety to the state hold out against the general voice. For, right or wrong, the law cannot be executed if it is made in opposition to the fixed and deliberate sentiments of all who are to obey it. We speak not of a sudden opinion on any one point taken up hastily, however unanimously, and occasionally, however vehemently entertained. It may be the highest duty of the other branches, and the best service they can render the community at large, to oppose its prevailing wishes on some one question, and save it from the consequences of its own folly.

This is true in all departments of polity; it is especially true as to foreign affairs, wherein it may be noted, that often-times, if the universal feelings of a nation were exactly reflected by its representatives and consulted by the Government, ruinous wars might be entered upon in a moment, out of which years of disaster and expense could not retrieve us, and a peace insecure, nay, dangerous, might be made, when a few months' longer exertion would acquire for the country lasting safety and real repose. But we speak of a well-considered opinion, consistent in itself, gradually formed, and steadily entertained, especially when it regards not insulated measures, but a system of policy.

Suppose that the people of England, where there are three branches of the constitution, have become absolutely convinced that one system of policy is for its advantage, and that their representatives steadily support it-suppose that one or other of the branches, say the Lords, has a decided opinion of an opposite kind—one of two things must happen if each House of Parliament acts upon its own opinion—either all the plans conformable to the system of the Commons will be rejected entirely by the Lords, or the Lords will yield to the people, and abandon their own opinion. If the former is the result, a policy will be adopted absolutely hurtful in practice, whatever be the reasons capable of being urged for it in argument; for the people will be governed by rulers whom they detest, and the law when executed will do mischief. This is all the while supposing both branches to be absolutely equal, and that the Commons have no means of securing a concurrence of the Lords. If, again, the latter issue of the difference results, the Lords will be injured in public estimation, and lose their credit and power. There is a third course, then, which, before yielding, they will probably endeavour to pursue. Yielding in the main, they will make certain terms; they will mitigate the measures proposed, or they will alter them in some material de

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