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Modern Mixed Government: A Liberal Defence of Inequality*

Published online by Cambridge University Press:  10 November 2009

Janet Ajzenstat
Janet Ajzenstat
Affiliation:
McMaster University
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Abstract

Eighteenth-century British Whig and Tory accounts of mixed government and the balanced constitution are examined together with the similar doctrine favoured by British liberals of the Great Reform Bill period, among them Lord Durham. Durham's Report of 1839 is particularly interesting, it is argued, since it purports to demonstrate the superiority of mixed government to the kind of majoritarian democracy put forward in those years by British and colonial radicals. Durham's proposal to curtail the powers of the democratic branch of government in Lower Canada—the Legislative Assembly, he wrote, had “endeavoured to extend its authority in modes totally incompatible with the principles of constitutional liberty”—is compared to the eighteenth-century “court” party argument for a strong political executive. It is suggested that Durham and the eighteenth-century thinkers together provide grounds for supposing that even today the egalitarian aims of modern societies are furthered by a political system that recognizes man's natural inequalities.

Résumé

Ce travail examine l'importance que les Whig et les Tory du 18e. siècle attachaient au gouvernement mixte et à une constitution dite équilibrée; il examine aussi la doctrine semblable favorisée par les libéraux anglais de la période du Projet de loi de la Réforme Générale, parmi lesquels on trouve Lord Durham. On y débat aussi que le Rapport Durham de 1839 est particulièrement intéressant parce qu'il prétend démontrer la supériorité du gouvernement mixte sur le genre de démocratie majoritaire préconisée dans ce temps-là par les radicaux Anglais et Coloniaux. La proposition de Lord Durham de tronquer les pouvoirs de la branche démocratique du gouvernement du Bas Canada—« l'Assemblée Législative », écrit-il « s'évertue à étendre son autorité de façon tout à fait incompatible avec les principes de la liberté constitutionnelle »—est comparée à l'argument présenté par le parti de la « cour » du 18e siècle demandant un exécutif politiquement fort. On suggère qu'avec les penseurs du 18e siècle, Lord Durham donne des motifs qui laissent supposer que même aujourd'hui les buts égalitaires des sociétés modernes sont mieux servis par un système politique qui reconnait les inégalités naturelles de l'homme.

Type
Research Article
Information
Canadian Journal of Political Science/Revue canadienne de science politique , Volume 18 , Issue 1 , March 1985 , pp. 119 - 134
Copyright
Copyright © Canadian Political Science Association (l'Association canadienne de science politique) and/et la Société québécoise de science politique 1985

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References

1 “Talk of balance,” Bentham had written years before, “never will it do: leave that to Mother Goose and Mother Blackstone… when forces balance each other the machine is at a stand” (Plan of Parliamentary Reform, in Bowring, John [ed.], The Works of Jeremy Bentham, Vol. 3 [New York: Russell and Russell, 1962], 450).Google Scholar James Mill attacks the theory of balance as “wild, visionary, chimerical” in his Essay on Government. “If there are three powers, how is it possible to prevent two of them from combining to swallow up the third?” (Essays on Government, Jurisprudence, Liberty of the Press and Law of Nations [New York: Augustus M. Kelley, 1967], 15). Their disciples of the 1830s in the Philosophical Radical party copy. Henry Samuel Chapman, for example, saw the Parti patriote victory in 1834 as a vindication of Benthamite teachings; the “people” of Lower Canada had seen the worth of the “philosophers'” doctrine, and overthrown the old balanced constitution ("What is the Result of the Elections. Fully Answered,” Daily Advertiser [Montreal], December 8, 1834).Google Scholar

2 Only for a comparatively short period in the mid-nineteenth century was the popular house in Britain really able to humble the executive branch and bring ministers to account by making and unmaking governments. The lower house in Canada flourished at about the same time. See Thomas Hockin, “Flexible and Structured Parliamentarism: From 1848 to Contemporary Party Government,” Journal of Canadian Studies, Special Issue on Responsible Government, 14 (1979), and other articles in this issue.

3 Truman, Tom, “A Critique of Seymour M. Lipset's Article, “Value Differences, Absolute or Relative: The English-Speaking Democracies,’” this JOURNAL 4 (1971), 511.Google Scholar

4 Lucas, C. P. (ed.), Lord Durham's Report on the Affairs of British North America, Vol. 2 (Oxford: Clarendon Press, 1912), 277Google Scholar, 278. All references are to the text in volume 2 of this edition, cited as Report. Durham's English speeches are filled with references to the “balance” or “harmony” of powers, and to the “three estates.” During the election campaign of 1837, for example, he argued, “I wish to rally as large a portion of the British people around the existing institutions of the country-the throne-the Lords-the Commons and the Established Church. I do not wish to make new institutions, but to preserve and strengthen the old” (from a letter, July 8,1838 to Russell Bowlby, intended for publication; cited in New, Chester, Lord Durham, A Biography of John George Lambton, First Earl of Durham [Oxford: Clarendon Press, 1929], 314).Google Scholar Other examples will be given below. The eminent Whigs of his father's generation and before-Charles James Fox in particular—were always his heroes. Throughout his career he describes himself as heir to their tradition. This is the theme of his speeches at the Fox anniversary dinners in 1819 and 1821. for example (Reid, John [ed.], Sketch of the Political Career of the Earl of Durham [Glasgow: John Reid and Co., 1835], 71–73,97,98). He often refers to motions for parliamentary reform initiated by Fox, by Charles Grey and by William Lambton. his father, and above all to the programme set forth in the petition laid before parliament in 1793 by the association known as The Friends of the People, of which William Lambton and Charles Grey were leading members (Hansard. Parliamentary History. 1066-1803.30 [May 6, 1793], 787-99).Google Scholar

5 John Arthur Roebuck, in a letter to Papineau (September 1836), described the British Whigs as the party of Aristocracy and the assembly party of Lower Canada as a party “of the people,” representing the great opposing principle, Democracy (Public Archives of Canada, Roebuck Papers, Vol. 2, 19). “My whole case rested on democracy,” he said of his commission from Papineau. “The people whom I was representing were democrats” (Hansard, Ser. 3, 26 [March 9, 1835], 670). In his simplified black and white version of Benthamite doctrine, all of politics could be seen as a struggle between Aristocracy and Democracy (see Hansard, Ser. 3, 36 [January 31, 1837]). Chapman uses the same language in “What is the Result of the Elections."

6 Thus he describes the Assembly as attempting and failing to establish a school system, attempting and failing to carry out famine relief, unable to promote a coherent policy on the subject of land tenure reform. The practice of local grants for local works helped the assembly party at the polls, but in Durham's opinion, it was a “vicious” practice, “productive of evil” (Report, 90). Narrow petty interests were gratified by the Assembly, but it was not able to formulate the large economic programmes needed at the time (see Ajzenstat, Janet, “Liberalism and Nationality,” this JOURNAL 14 (1981), 598–600).Google Scholar

7 Report, 81-100.

8 The constitution of 1791 was deficient in that it did not allow the popular house “necessary privileges,” the powers “proper” to a representative body, such as the power to vote supplies. The Assembly of Lower Canada had “transgressed,” and reached for improper powers in the attempt to secure those proper. In the end Durham defines the powers “proper” to each branch; in effect he makes a separation of powers, so that transgressions will cease: “There can be no reason for apprehending that either party would enter on a contest, when each would find its interest in the maintenance of harmony: and the abuse of the powers which each would constitutionally possess, would cease when the struggle for larger powers became unnecessary. Nor can I conceive that it would be found impossible or difficult to conduct a Colonial Government with precisely that limitation of the respective powers which has been so long and so easily maintained in Great Britain” (Report, 280).

9 Ibid., 101. This is not to say that the executive was left entirely without resources. It was unable to govern the province, but “Fortified by family connexion and the common interest felt by all who held, and all who desired, subordinate offices,"the executive council was only too able to gratify the interests of individuals and the party (ibid., 78).

10 Ibid., 73. “Since the Revolution of 1688, the stability of the English constitution has been secured by that wise principle of our Government which has vested the direction of national policy, and the distribution of patronage in the leaders of the Parliamentary majority” (ibid., 79, and see also 279). Thomas Hockin argues that Durham was quite wrong to date the emergence of cabinet government so early ("Flexible and Structured Parliamentarism,” 10. 11). But the idea was hardly peculiar to Durham. Joseph Hamburger notes that Macauley, for example, dated cabinet government from shortly after 1688 (Macauley and the Whig Tradition [Chicago: University of Chicago Press, 1976], 22).Google Scholar

11 Report, 256,287,328. He speaks of the “true principle of limiting popular power,” and of the need for “an essential limitation on the present powers of the representative bodies in these Colonies."

12 Ibid., 278.

13 Hockin, for one, describes Durham as a Benthamite ("Flexible and Structured Parliamentarism,” footnote 14).

14 Report, 74. Even the Radicals had no quarrel with the basis of representation.

15 Ibid., 55.

16 See above, footnote 6, and Report, 58-62.

17 For my understanding of the eighteenth-century mixed-government theorists I am indebted to H. T. Dickinson for his book of selections from writings by Jonathan Swift, Lord Robert Molesworth, Joseph Addison, John Trenchard and Thomas Gordon, Bolingbroke, David Hume, Edward Spelman, Robert Wallace, John Willies, Joseph Priestley and others. See Dickinson, H. T. (ed.), Politics and Literature in the Eighteenth Century (London: Dent, 1974).Google Scholar I have also drawn on his Liberty and Property: Political Ideology in Eighteenth-Century Britain (London: Weidenfeld and Nicoison, 1977).Google Scholar

18 Edward Spelman, , “The Preface to a Fragment Out of the Sixth Book of Polybius (1743),” in Dickinson, (ed.), Politics and Literature, 114.Google Scholar

19 Report, 9.

20 Speeches of the Earl of Durham, Delivered at Public Meetings in Scotland in 1834 (8th ed.; London: Ridgway, 1838), 18, 19.Google Scholar

21 So Roebuck, for example, denounces the “official” party in Lower Canada as a “minority,” “seeking to domineer by force or by fraud over the suffering majority."

This is from the scheme for the government of the colonies which Roebuck drew up for Durham in 1838 and later reprinted in Colonies of England: A Plan for the Government of Some Portion of Our Colonial Possessions (London: John W. Parker, 1849), 201.Google Scholar

22 This is true even of H. T. Dickinson.

23 See Dickinson's introduction to Politics and Literature, esp. xiii-vi.

24 Compare Durham arguing forthe Reform Bill: “We have not introduced anything new or unknown to our Constitution… To give security to the three estates is the object of our bill” (Hansard, Ser. 3, 3 [March 28, 1831], 1028-29). Marriott, J. A. R. (in England Since Waterloo [New York: G. B. Putnam's Sons, 1922], 101)Google Scholar argues that although the ideas of Grey and his ministers in 1832 may have been characterized principally by a surprising lack of foresight, the Grey government did indeed believe that their efforts at the time of the Reform Bill would not alter the essential features of the British constitution. “The changes of 1867 and 1884... implicit in the earlier revolution… were … neither foreseen nor intended, by Lord Grey and his colleagues… Neither then nor later had the Whigs any intention of satisfying democratic aspirations.” G. M. Trevelyan, however, takes the view that the long-term consequences of the Reform Bill, forseen or unforseen, should in some sense redound to the credit of the party (British History in the Nineteenth Century [1782-1901] [London: Longman's Green, 1922], 225). When Chester New refers to the Durham Report as “the charter of Canadian democracy,” he surely betrays Trevelyan's influence (Lord Durham, 190).Google ScholarPubMed

25 Hansard, Ser. 3, 8 (October 7, 1831), 320-25.

26 Quoted in Schuyler, R. L., British Constitutional History Since 1832 (Princeton: Anvil Books, 1957), 114–15.Google Scholar

27 Jones, Gareth (ed.), The Sovereignty of the Law, Selections from Blackstone's Commentaries on the Laws of England (Toronto: University of Toronto Press, 1973). 65-71. In his first great reform speech, Durham cited this passage from Blackstone (Hansard, Ser. 2. 5 [April 17, 1821], 365).Google Scholar

28 From the Radical point of view, of course, the debate between the old-line parties was a sham. In the 1830s Radical and Whig programmes were not dissimilar as far as particular measures. Both campaigned for ministerial “retrenchment.” extension of the franchise and reform of electoral practices. But the underlying aim was very different. It was the Radicals' dearest hope that the measures that the Whigs themselves put forward would, with a little help from their friends the Radicals, overturn the balance entirely, putting an end to Whig and Tory alike and subjecting all branches of government to the pure and untrammeled will of the people.

29 Machiavelli, , The Discourses (Harmondsworth: Penguin, 1970), 1.2, 1.4.Google Scholar

30 Ibid., 1.5. 1.8.

31 Report, 303.

32 Ibid., 268. 269, 311.

33 Fink, Zera (The Classical Republicans: An Essay in the Recovery of a Pattern of Thought in Seventeenth Century England [Evanston, Ill.: Northwestern University Press, 1962])Google Scholar traces the introduction of the idea of mixed government into British political thought. See also the review of The Classical Republicans in Strauss, Leo, What is Political-Philosophy? And Other Studies (Glencoe: The Free Press, 1959), 290–92. Strauss points to the differences between the ancient doctrine and the modern, implicit in Fink's account.Google Scholar

34 Report, 312.

35 Discourses, 1.13. I am indebted to Harvey C. Mansfield, Jr., for guiding me through the Discourses. See Machiavelli's New Modes and Orders: A Study of the Discourses on Livy (Ithaca: Cornell University Press, 1979).Google Scholar It was also Harvey Mansfield who alerted me to the full significance of 1688 for the eighteenth and nineteenth-century thinkers: see his "Party Government and the Settlement of 1688,” American Political Science Review 58 (1964), 933–46.CrossRefGoogle Scholar Professor Mansfield again prompted thoughts about the mixed regime in the twentieth century, in The Spirit of Liberalism (Cambridge: Harvard University Press, 1978).Google Scholar

36 Dickinson, Liberty and Property. 181-92.

37 Durham, announcing his first reform platform in 1819, was one of the first.

38 Report, 31, 32.

39 Ibid., 33, 58.

40 De la Democratic en Amerique (Paris: Gamier-Flammarion, 1981), 350–51. Durham had certainly read passages at least from the first volume of De la Démocratic the volume that appeared in 1835. He adopted phrases and whole sentences from the concluding section.Google Scholar

41 Ibid.. 251.

42 For example. Dickinson. Liberty and Property: Birch, A. H.. Representative and Responsible Government (Toronto: University of Toronto Press, 1964).Google Scholar

43 See Stewart, John, “Strengthening the Commons,” Journal of Canadian Studies, Special Issue on Responsible Government, 14 (1979), 35–37.CrossRefGoogle Scholar