Harold William Vazeille Temperley.

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House of Commons in England in 1910. It particularly
resembles them in the provision that the disputed measure
should go straight to the Crown without intervention. Further
information may be found in his evidence before Select
Committee.

671. Did the Colony suggest that a two-thirds majority of
the Legislative Assembly should have the power of passing
Bills over the head of the Council (i. e. Legislative Council
or Upper Chamber)? Sir F. N. Broome: That was a
personal suggestion of my own.

672. Did it not also come from the Legislature? No, the
Legislature did not approve of it. The Secretary of State

* The only sanction for them I know is the practice in Baden and
Wiirtemburg. Vide Chap. III., n. 25, p. 309.



302 NOTES AND ILLUSTRATIONS

did not approve of it, and the Legislature endorsed the
Secretary of State's opinion.

676. Now, as I understand, you are of opinion that the
mind of the Legislature would be hostile to the two-thirds
majority proposal? I think so. ... I think that the
majority of the Legislature were against it, and attached
weight to the Secretary of State's observations as to the
unwisdom of interfering with the equal power of the Upper
House.

(Evidence of Sir F. N. Broome, Governor of West
Australia, March 25, 1890, p. 44. Select Committee on W.
Australia Constitutional Bill, Parl. Paper, No. 160, May 6,
1890. Reports of Committees, vol. xviii., 1890, p. 486.)

32 A dissolution has been refused by the Governor when
demanded by a colonial ministry in the following cases :
New Brunswick (1855), "Canada" (Ontario and Quebec)
(1855), Nova Scotia (1860), Victoria (1872), New Zealand
(1872 and 1877), Tasmania (1878). (Vide Todd, Parliament,
ary Government in the British Colonies (second edition,
1894), pp. 759-803.) There have been other instances more
recently ; in several at least of these cases the circumstances
were such as would have produced a dissolution in England.
Members of colonial Upper Chambers are frequently unpaid,
those of the Popular Chamber invariably paid. This fact
has a bearing on dissolutions, especially on simultaneous
dissolutions of both Chambers.

It is also worth while for English readers to note that, if
colonial dissolutions are less frequent, the resignations of
ministries are more frequent than in England. In 1897 it
was calculated that Victoria had had 26 ministries, New
South Wales 28, and South Australia no less than 42
ministries during the last forty years !



CHAPTER III

1 The only Austrian ruler who governed Hungary in a
spirit of avowed absolutism was Joseph II (1780-90), but the
restraint imposed on the Kings was not exercised by the
national Parliament, but by the local justices and the
assemblies of the counties (congregationes). Vide Hungary
in the Eighteenth Century, by Henry Marczali, Cambridge,
1910, p. 347. "The Parliament was not the chief opponent
to be reckoned with by a sovereign bent on overthrowing
the independence of Hungarian political life. . . . Any King
desirous of affecting the whole structure, of attacking the



very foundations of this separate national and constitutional
life, had above all to overthrow two deeply-rooted and far-
reaching institutions the judiciary and the county " (vide
also pp. 143, 348, 353-7, and ib. Ungarische Verfassungs-
gescluchte: Tubingen, 1910).

2 The Duke of Mecklenburg-Schwerin is often described as
an absolute ruler. If he is a despot, so is King George in
the Channel Isles. In each case the ruler is restrained by
a mediaeval Parliament of Estates. One point is worth
making with reference to mediaeval Estates. Usually the
mediaeval Parliaments were divided into three orders or
estates, Clergy, Nobles, and Burgesses (Tiers Etat), or some-
times, as in the case of Aragon and Sweden, into four. It
is, however, erroneous to suppose that there were three or
four separate Chambers in the mediaeval Parliament, as Mr.
Marriott (Second Chambers, pp. 6, 199, etc.) seems to imply.
The orders, though sometimes voting and debating separ-
ately, were always regarded as a Single Assembly, as may
be seen in the constitution of the Channel Isles or of Meck-
lenburg to-day. Cp. Marczali, Hungary in the Eighteenth
Century, 127-8. England's Estates eventually divided into
two Chambers, but this was an accident, and was an excep-
tion to the general rule on the Continent of Single Chambers.

3 Legislation by administrative decree is pushed to its
extremest limit in Italy, where it is now difficult to dis-
tinguish between a law proper and an administrative decree
supplementing it. Vide Brusa, E., Das Staatsrecht des
Konigreichs Italien (Handbook des offentlichen Rechts, iv.
1-7), Freiburg, i/B, 1892, pp. 190-250. Cp. Lowell, Govern-
ments and Parties in Continental Europe, 1896, i., pp. 165-6.

4 Reports from H.M.'s Representatives Abroad respecting
the Composition and Functions of the Second or Upper
Chamber in Foreign States, Parl. Pap. Misc., No. 5, 1907
(Cd. 3824). It contains much valuable information. The
only use I have seen made of it as yet is in an article on
"Parliamentary Deadlocks," by Sir Alfred Mond, M.P.,
English Review, May 1910.

5 Quoted in Acton, Historical Essays and Studies, ed.
J. N. Figgis and R. V. Laurence, London, 1907, p. 184. I
have changed the obvious misprint of "resolution" into
"revolution." These sentiments seem to me to express the
usual Continental practice pretty well, and I can see no
justification for Maine's contention that " there is not in the
least any dislike or distrust of the hereditary principle on
the Continent." Popular Government (1909), p. 182. Vide
infra, n. 3, Chap. IV.



304 NOTES AND ILLUSTRATIONS

6 Lowell, i. 213. He, however, points out (note) that an
adverse vote in the Popular Chamber sometimes produces
the resignation of individual ministers, though the Cabinet
as a whole retains office. But this practice is not L as he
implies, confined to Italy. For example, in France, in
November 1897, M. Davlan the "Garde des Sceaux "-
resigned in consequence of an adverse vote in the Senate.

7 Acton, Historical Essays and Studies (1907), pp. 183-4;
Morizot-Thibault, Des Droits des Chambres hautes ou Senats
en matiere des Lois de Finance, Paris, 1891, pp. 156-75, lays
special stress on the weakness of the nominated principle,
and uses Italy as its best example.

8 Professor E. S. Beesly in the Times, in criticism of
Professor Dicey 's article ot March 14, "The French Senate
and the House of Lords " ; vide also his definition of the term
"Municipal Councils " "they are those, not of urban com-
munes only, but of every one of the 36,000 communes of
France, the enormous majority of which are rural in the
fullest sense of the word."

9 To this rule there is only one exception among Unitary
States on the Continent Saxony, where there is complete
financial equality between the Chambers. It exists in two
Federal States on the Continent the German Empire and
Switzerland. It should be noted that in some countries
e. g. Prussia and Italy finance is initiated and in practice
controlled by the ministers, whereas in others e. g. France
the Popular Chamber as a whole has a real power of
initiation and control. In neither case, however, does this
circumstance directly affect the powers of the Popular House
in relation to the Upper Chamber. Morizot-Thibault, Des
Droits des Chambres Hautes ou Senats en matiere des Lois
de Finance, Paris, 1891, gives a good general view of the
whole subject, but unfortunately the work is now out of date.

10 The following passage from Brusa, Das Staatsrecht des
Konigreichs Italien, p. 331, puts the general conception of
the Budget on the Continent very well: "Das Finanzjahr
ist eine Verpflichtung fur die Verwaltung, theils nach dem
Inhalt, theils nach dem Zeitraum. Doch schreibt kein
Gesetz vor, dasz das Budget gerade jahrlich votirt werde :
wesshalb denn die Kammern einmal einen Artikel gut
hiessen, durch den fur die Finanzverwaltung des nachsten
Jahres Ueberschreitung einer gewissen Summe bei den Kos-
ten des Kriegsministeriums verboten wurde. Das Prazedenz
blieb jedoch ohne weitere Nachahmung." The only real excep-
tion to the rule that the Budget must be passed in some form
or other within the year is to be found in Denmark, where
during the years 1885-94 provisional Budgets of dubious



NOTES AND ILLUSTRATIONS 305

legality were passed. An arrangement was then come to by
both Houses to provide for the voting of the Budget, subject
to amendments, within the year. Similar contests have
produced similar results elsewhere, and the rule now applies
almost universally on the Continent that the Budget must
be passed within the year. Special arrangements are made
to secure this end in Norway, Sweden, Hesse-Darmstadt,
Baden, Wiirtemberg. Vide note 25.

11 Up till 1848 both the Houses of the Hungarian Legis-
lature consisted almost wholly of nobles who paid no taxes.
Financial business was therefore not their chief occupation
until 1867. Even now a public and unparliamentary official,
known as the Chief Accountant, controls a good deal of the
financial policy and has considerable independence of action,
but ministers are responsible to the Lower House for expen-
diture, and can and often do interfere in the Chief Account-
ant's business. Vide Parl. Paper, 1907, pp. 312.

12 Szilagyi had a great struggle with the Upper House
from 1893-4 in other legislative matters besides finance, but
never denied the right of the Magnates to exercise the veto
in non-financial legislation. Szilagyi, Beothy Akos and
Count Andrassy Gyula (pere) were the men responsible for
introducing and adapting English financial practice in 1867
and subsequent years. For this general information I am
indebted to my friend Professor Marczali, of the University
of Budapest.

13 Parl. Paper, 1907, p. 56. It must be regarded as
rather doubtful whether Sweden is really available for com-
parison in this direction. The active personal power of the
King of Sweden remains considerable, and he both directs
policy and chooses ministers in some degree independently
of the Popular Chamber. This fact naturally gives the
Upper House a considerable advantage, which it has not
been slow to use. Vide Woodrow Wilson, The State, New
York, 1899, pp. 357-8 ; Flandin, Institutions Politiques, Paris,
1909, pp. 321-5.

4 Parl. Paper, 1907, pp. 21-2; Bodley's France, London,
1899, PP- 285-6, 292-4 ; Dupriez, Les Ministres dans les
principaux pays d'Europe et d'Amerique, Paris, 1892, tome
ii., pp. 4302. Yves Guyot, in a recent article on the French
Senate and Chamber of Deputies (Contemporary Review,
February 1910, pp. 144-6), assigns to the former more
financial power than do older critics. Contrast Morizot-
Thibault, Des Droits des Chambres Hautes ou Senats en
matiere des Lois de Finance, Paris, 1891, pp. 95-105. Cp.
note 19 infra.
X



306 NOTES AND ILLUSTRATIONS

15 Vide supra, note 11, and for Prussia, Dupriez, Les
Ministres, etc., ii. 410-21.

16 We must not judge too much by appearances, however,
e. g. in Hungary since 1885 the initiative of almost all laws
has been usurped by the Lower House. But there is a good
deal of intimidation and corruption at election times, especi-
ally in the country districts where the Magnates have
influence. Hence the Magnates, while unable to stop laws
in a direct and legal manner in the Upper House, can often
check them in an indirect and illegal manner by their con-
trol over the elections and members of the Lower House.
It should be noted that in Hungary the parliamentary fran-
chise is so managed as to favour Magyars enormously at the
expense of other races in Hungary.

17 Sometimes this power of concluding treaties only
extends to such agreements as involve the laying of financial
burdens on the people. This is the case in Italy (vide Brusa,
Italien, pp. 4901). Generally speaking, however, both
Senate and Chamber have a much more extensive control
over treaties and commercial agreements on the Continent
than either Commons or Lords in England, e. g. Guyot,
Contemporary Review, February 1910, p. 143: "On March
15, 1890, the Tirard Cabinet (in France) resigned on account
of a vote passed by the Senate refusing to accept a treaty with
Greece. I was a member of that Cabinet, and not one of
us questioned the Senators' right."

18 e.g. in Hesse-Darmstadt, Parl. Paper, 1907, p. 26

" In the Bill of 1907 is found the compromise offered in
return for the larger powers proposed to be given to the
Upper Chamber, namely, that in place of the present system
of indirect election to the Lower Chamber, by means of
electing Delegates who again elect the Deputies, the system
of direct election is to be substituted. The system of voting
by secret ballot already exists."

Compare Baden, Parl. Paper, 1907, pp. 28-30
" The Constitution of the Grand Duchy of Baden promul-
gated August 22, 1818, was considerably modified by the
Baden Law of August 24, 1904, on which date a new
Electoral Law was promulgated, which also defines the
manner in which the elective members of the Upper Cham-
ber (called the First Chamber) are to be elected, as well as
those of the Lower or Second Chamber. These measures
marked the termination of a long struggle for the direct as
opposed to the indirect system of voting, which still obtains
in the Grand Duchy of Hesse. Similar measures of electoral
reform have also been adopted in Bavaria and Wurtemberg



in recent years. No constitutional disputes have, however,
arisen between the two Chambers of the Baden Diet during
the past ten years."

19 The increase is well illustrated in the works on the
subject. Bodley, the most profound English student of
French politics, described the power of the French Senate
as "not as effective as it might be" in 1898. Dupriez, ii.
450-4, and Lowell, i. 21-3, are obviously of the same
opinion. The Parl. Paper of 1907 (pp. 22-5), and Guyot,
Contemporary Review, February 1910, give a very different
impression. The explanation of the discrepancy is that the
power of the Senate has greatly increased in the last decade.

20 The crisis of 1896 is described in the Parl. Paper, 1907,
pp. 225, and in Bodley's France, pp. 2967. The latter
belittles the importance of the incident, but it definitely
established the precedent that an adverse vote of the Senate
may dismiss a Cabinet which has a majority in the Popular
Chamber.

21 Parl. Paper, 1907, pp. 711. The system of proportional
representation there described is more fully dealt with in the
Report of Royal Commission to inquire into Electoral
Systems. Blue Book (Cd. 5163), London, 1910.

22 Palma, Cor so Diritto Costituzionale, vol. ii., p. 264,
quoted in Dupriez, i. 301 ; Morizot-Thibault, Des Droits des
Chambres H antes ou Senats en Matiere des Lois de Finance,
Paris, 1891, pp. 163-75.

23 It is interesting and worthy of note that Portugal
adopted this joint-committee system of reconciling differences
between the two Chambers, at the moment (1896) when it
abolished the elective part of its Upper Chamber, and made
the whole body Nominated or Hereditary. It may be here
pointed out that this joint-committee system was proposed
in the Sicilian Constitution of 1848, but has not found favour
in the modern kingdom of Italy. Vide Brusa, Italien, p. 156,
n. 2.

21 It may occur to some readers that the system of
Delegations, by which the joint affairs of Austria-Hungary
are managed, is a system of joint-conference or joint-session
for the purpose of reconciling two distinct Legislatures. The
situation is, indeed, somewhat analogous, because, though
the Austrian and Hungarian Legislatures are both bicameral,
there is a good deal of superficial resemblance between the
process of reconciling two opposed Chambers and of recon-
ciling two opposed Legislatures. In practice, however, the
system is very different ; the ideal of the joint-conference of
representatives of the two Chambers in a Unitary State is

X 2



808 NOTES AND ILLUSTRATIONS

to promote harmony, that of the joint-conference between
the representatives of two Legislatures in different States is
to maintain the equality and individuality of each State.
The procedure illustrates this fact at once. The Hungarian
Parliament and the Austrian Reichsrath each appoints
from its own members for every session a committee of sixty
members (the Delegation) to report upon (i) Defence (Naval
and Military) ; (2) foreign affairs and Diplomacy ; (3) Finance,
in so far as it is connected with these matters. The three
ministers in whose sphere these affairs fall are appointed by
the Emperor-King, and may be either Austrian or Hungarian
subjects. The two Delegations meet ultimately in Budapest
and Vienna, but they do not confer together, and, though
they sit at the same time in the same capital, they do not
sit in the same building. The three Common Ministers
communicate and negotiate their proposals with each Delega-
tion separately. Each Delegation reports on the proposals
of the Common Ministers separately ; if their reports do not
coincide, they communicate by letter with one another and
endeavour to arrive at an agreement. If this process is
repeated three times without producing agreement, the two
Delegations may meet together. They meet, however, not
to discuss or to speak about the matter at issue, but simply
to vote about it. No member or members may be absent
at this voting on one side without a similar number being
withdrawn on the other. The conference then is not really
a conference at all, but simply a meeting formally to register
the fundamental character of the differences between the
two Delegations. There have only been four such confer-
ences since 1867, the last being in 1882, since which date
the practice seems to have been abandoned. The present
system appears to be that, if the Delegations disagree, the
disputed proposal is dropped for the current year. It is not
necessary to go farther into this matter, because enough
has been said to show that the joint-conference is not really
a meeting of committees to promote agreements, but a
meeting of Delegations to establish differences. The actual
abandonment of the practice shows this to be the case,
though the provisions regulating the meeting and forbidding
discussion on the subjects in dispute would in any case be
explicit enough. I believe I am correct in saying that Deak
and others had in mind a real scheme for joint-conference,
but that a purely formal character was given to the con-
ference under the Ausgleich in 1867, owing to the influence
of Count Andrassy Gyula (pere). In any case, it is obvious
that there is no real parallel between this system and that



NOTES AND ILLUSTRATIONS 309

of joint-conference or joint-session as practised elsewhere on
the Continent.

25 Here are the details with respect to Wiirtemberg and
Baden. Parl. Paper, 1907 (Cd. 3824).

P. 7 (Wiirtemberg) : "In the event of its becoming impos-
sible for the two Chambers to agree as to the Budget, the
votes cast in both Chambers for or against it are added
together, and the resulting majority decides the issue.
Should the votes be equal, the President of the Lower
Chamber has the casting vote." The last provision is inter-
esting because it shows that the last word, and therefore the
superiority in finance, rests with the Lower Chamber.

P. 30 (Baden) : "If the Upper Chamber rejects altogether
a Bill of the nature described in Article 60, section 3 (i. e.
a money Bill), which has been adopted by the Lower
Chamber, then, at the request of the Government or of the
Lower Chamber, a vote will be taken in the matter on
account of the total votes given in both Chambers whether
the Bill is to be adopted in the form proposed by the Lower
Chamber." It will be seen from the above extracts that
these methods do not allow the same amount of discussion,
compromise and concession as does that of joint-session.

26 Parl. Paper, 1907 (Cd. 3824), p. 56. Sweden :
" Financial questions on which the decisions of the two
Chambers are in conflict are submitted to a common vote
of both Houses voting as one body, when the absolute
majority is decisive. As the Upper Chamber consists only
of 150 members, whereas there are 230 in the Popular
Chamber, it is clear that the latter has numerically the
stronger voice, but in practice, inasmuch as the Upper
Chamber has generally been found homogeneous in char-
acter, while in the Popular Chamber parties are more evenly
balanced, the influence of the former has been somewhat
preponderating.

"The principle of common voting on financial questions
has undoubtedly contributed to counteract constitutional
conflicts between the two Houses."

27 Many of the methods for reconciling two Chambers
e. g. that of joint-conference were proposed by the ingenuity
of Sieyes and the legion of constitution-makers whom he
inspired at the time of the French Revolution. One solution
which they suggested has never had a serious trial. In the
Napoleonic Constitution after the 18 Brumaire, 1798, two
Chambers, a Senate and Popular Chamber, were established,
and a third body (the Tribunate) added for the sole purpose
of mediating between them and reconciling their differences.



310 NOTES AND ILLUSTRATIONS

The Constitution lasted a very short time, but Bolivar sub-
sequently revived the idea, and sought to apply it to the
Constitution of Bolivia (1826), and also of Peru and
Colombia. He proposed two Chambers, a Senate and a
Tribunate (Popular Chamber), and a third Chamber (the
Ceusas) to mediate between the two.* The proposal is not
as absurd as it sounds, and corresponds somewhat to an
Arbitration Board which partly consists of representatives of
workers and masters, and partly certain impartial arbitra-
tors. In practice the head of the executive has really usurped
the functions of a third House whose function is harmony.
In several Continental countries the sovereign really plays
the part of a final and impartial arbitrator between the two
Houses ; the English Government sometimes does the same
in the case of disputes between the two Chambers in a
Colony, and it is not inconceivable that a King might play
such a part in England in future disputes between the
Commons and the Lords. It is conceivable that the Judges
might assume the same functions in England if they were
to be called upon to decide what was and what was not a
money Bill. In the United States the Federal Judges do
practically mediate between the two Houses in all matters of
dispute as to authority between the two. Lord Acton has
summed up the question with his usual felicity (History of
Freedom, p. 96) : " In 1799 Siyes suggested to Bonaparte
the idea of a great Council whose function it should be to
keep the acts of the (two-Chambered) Legislature in harmony
with the Constitution a function which the Nomophylakes
discharged at Athens and the Supreme Court in the United
States."

28 Acton's opinion of proportional representation and its
aims is most striking. "The one pervading evil of demo-
cracy is the tyranny of the majority, or rather of that party,
not always the majority, that succeeds, by force or fraud,
in carrying elections. To break off that point is to avert
the danger. The common system of representation per-
petuates the danger. Unequal electorates afford no security
to majorities. Equal electorates give none to minorities.
Thirty-five years ago it was pointed out that the remedy is
proportional representation. It is profoundly democratic,
for it increases the influence of thousands who would other-
wise have no voice in the government ; and it brings men
more near an equality by so contriving that no vote shall be
wasted, and that every voter shall contribute to bring into

* Simon Bolivar, by Loraine Petre, London, 1910, pp. 356-7.



Parliament a member of his own opinions. The origin of
the idea is variously claimed for Lord Grey and for Con-
sideYant. The successful example of Denmark and the
earnest advocacy of Mill gave it prominence in the world of
politics. It has gained popularity with the growth of
democracy, and we are informed by M. Naville that in
Switzerland Conservatives and Radicals combined to promote
it" (Acton, History of Freedom and other Essays, London,
iqoy, pp. 97-8). It cannot be said that recent experience has
justified the hopes here entertained of the use and value of
Proportional Representation. To judge from the latest
Report of Royal Commissions to inquire into Electoral
Systems (Cd. 5163), London, 1910, the theory of Proportional
Representation is likely to form an interesting branch of the


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Online LibraryHarold William Vazeille TemperleySenates and upper chambers, their use and function in the modern state, with a chapter on the reform of the House of lords → online text (page 22 of 25)