THE CABINET AND THE COUNTRY 423
PART II.--THE PARTY SYSTEM
CHAPTER XXIV
PARTY AND THE PARLIAMENTARY SYSTEM 435
CHAPTER XXV
PARTY ORGANISATION IN PARLIAMENT 448
CHAPTER XXVI
NON-PARTY ORGANISATIONS OUTSIDE OF PARLIAMENT 458
CHAPTER XXVII
LOCAL PARTY ORGANISATIONS 466
CHAPTER XXVIII
ACTION OF LOCAL ORGANISATIONS 491
CHAPTER XXIX
THE RISE AND FALL OF THE CAUCUS--THE LIBERALS 501
CHAPTER XXX
THE RISE AND FALL OF THE CAUCUS--THE CONSERVATIVES 535
VOLUME II
CHAPTER XXXI
ANCILLARY PARTY ORGANISATIONS 1
CHAPTER XXXII
THE FUNCTIONS OF PARTY ORGANISATIONS 18
CHAPTER XXXIII
THE LABOUR PARTY 24
CHAPTER XXXIV
CANDIDATES AND ELECTIONS 46
CHAPTER XXX
THE STRENGTH OF PARTY TIES 71
CHAPTER XXXV
POLITICAL OSCILLATIONS 101
CHAPTER XXXVII
THE EXISTING PARTIES 113
PART III.--LOCAL GOVERNMENT
CHAPTER XXXVIII
AREAS OF LOCAL GOVERNMENT 129
CHAPTER XXXIX
BOROUGHS--THE TOWN COUNCIL 144
CHAPTER XL
BOROUGHS--THE PERMANENT OFFICIALS 171
CHAPTER XLI
BOROUGHS--POWERS AND RESOURCES 181
CHAPTER XLII
LONDON 202
CHAPTER XLIII
THE LONDON COUNTY COUNCIL 215
CHAPTER XLIV
MUNICIPAL TRADING 233
CHAPTER XLV
OTHER LOCAL AUTHORITIES 268
CHAPTER XLVI
CENTRAL CONTROL 284
PART IV.--EDUCATION
CHAPTER XLVII
PUBLIC ELEMENTARY EDUCATION 295
CHAPTER XLVIII
SECONDARY EDUCATION 324
CHAPTER XLIX
THE UNIVERSITIES 343
CHAPTER L
EDUCATION IN SCOTLAND 354
PART V.--THE CHURCH
CHAPTER LI
ORGANISATION OF THE CHURCH 362
CHAPTER LII
REVENUES OF THE CHURCH 374
CHAPTER LIII
THE FREE CHURCH FEDERATION 380
PART VI.--THE EMPIRE
CHAPTER LIV
COMPONENT PARTS OF THE EMPIRE 386
CHAPTER LV
THE SELF-GOVERNING COLONIES 392
CHAPTER LVI
THE CROWN COLONIES 408
CHAPTER LVII
INDIA AND THE PROTECTORATES 420
CHAPTER LVIII
IMPERIAL FEDERATION 430
PART VII.--THE COURTS OF LAW
CHAPTER LIX
HISTORY OF THE COURTS 439
CHAPTER LX
THE EXISTING COURTS 451
CHAPTER LXI
THE ENGLISH CONCEPTION OF LAW 471
CHAPTER LXII
EFFECTS OF THE CONCEPTION OF LAW 489
PART VIII.--REFLECTIONS
CHAPTER LXIII
ARISTOCRACY AND DEMOCRACY 505
CHAPTER LXIV
PUBLIC, PRIVATE AND LOCAL INTERESTS 514
CHAPTER LXV
THE GROWTH OF PATERNALISM 520
CHAPTER LXVI
PARTY AND CLASS LEGISLATION 531
CHAPTER LXVII
CONCLUSION 539
INDEX 541
INTRODUCTORY NOTE ON THE CONSTITUTION
[Sidenote: Different Meanings of the word Constitution.]
De Tocqueville declared that the English Constitution did not really
exist,[1:1] and he said so because in his mind the word "constitution"
meant a perfectly definite thing to which nothing in England conformed.
An examination of modern governments shows, however, that the thing is
by no means so definite as he had supposed.
[Sidenote: A Document Embodying the Chief Institutions.]
The term "constitution" is usually applied to an attempt to embody in a
single authoritative document, or a small group of documents, the
fundamental political institutions of a state. But such an attempt is
rarely, if ever, completely successful; and even if the constitution
when framed covers all the main principles on which the government is
based, it often happens that they become modified in practice, or that
other principles arise, so that the constitution no longer corresponds
fully with the actual government of the country. In France, for example,
the principle that the cabinet can stay in office only so long as it
retains the confidence of the popular chamber, the principle, in short,
of a ministry responsible in the parliamentary sense, was not mentioned
in the charters of 1814 or 1830, and yet it was certainly firmly
established in the reign of Louis Philippe; and it is noteworthy that
this same principle, on which the whole political system of the English
self-governing colonies is based, appears neither in the British North
American Act nor in the Australian Federation Act. The first of those
statutes, following the English tradition, speaks of the Privy Council
for Canada,[1:2] but never of the cabinet or the ministers; while the
Australian Act, going a step farther, refers to the Queen's Ministers of
State,[1:3] but ignores their responsibility to the parliament.[2:1]
Again, in the United States, the provision that the electoral college
shall choose the President has become so modified in practice that the
electors must vote for the candidate nominated by the party to which
they owe their own election. In choosing the President they have become,
by the force of custom, as much a mere piece of mechanism as the Crown
in England when giving its assent to acts passed by the two Houses of
Parliament. Their freedom of choice is as obsolete as the royal veto. So
far, therefore, as this meaning of the term is concerned, the
constitution of England differs from those of other countries rather in
degree than in kind. It differs in the fact that the documents, being
many statutes, are very numerous, and the part played by custom is
unusually large.
[Sidenote: Not Changeable by Ordinary Legislation.]
[Sidenote: Rigid and Flexible Constitutions.]
De Tocqueville had more particularly in mind another meaning which is
commonly attached to the term "constitution." It is that of an
instrument of special sanctity, distinct in character from all other
laws; and alterable only by a peculiar process, differing to a greater
or less extent from the ordinary forms of legislation. The special
sanctity is, of course, a matter of sentiment incapable of exact
definition, and it may be said to belong to the British Constitution
quite as much as to some others. The peculiar process of amendment, on
the other hand,--the separation of the so-called constituent and
law-making powers,--upon which Mr. Bryce bases his division of
constitutions into rigid and flexible,[2:2] has had a long history and
been much discussed; but although the contrast between the two types is
highly important, the creation of intermediate forms has made it less
exact as a basis of classification. The later constitutions, and the
more recent practice, have tended to obscure the distinction. A
separation between the constituent and law-making powers does not, in
fact, always exist in written constitutions. The Italian _Statuto_, for
instance, which contains no provision for amendment, can be, and in fact
has been, altered by the ordinary process of legislation;[3:1] and the
same thing was true of the French Charter of 1830.[3:2] The last Spanish
constitution omits all provision for amendment, but one may assume that
if it lasts long enough to require amendment the changes will be made by
ordinary legislative process.
From countries which can change their fundamental constitution by the
ordinary process of legislation we pass by almost imperceptible degrees
to those where the constitutional and law-making powers are in
substantially different hands. Thus the procedure for changing the
constitution in Prussia differs from that for the enactment of laws only
by the requirement of two readings at an interval of twenty-one days.
Here there is a difference legally perceptible between the methods of
changing the constitution and other laws; but it may be remarked that a
provision in the constitution to the effect that all laws should require
two readings at an interval of twenty-one days, would not essentially
change the nature of the constitution, and yet in theory it would make
that constitution flexible instead of rigid. As it is, the fundamental
laws are quite as much under the control of the legislature in Prussia
as they are in England.[3:3] This is almost equally true of France; for
although the changes in her constitution are made by the National
Assembly, composed of the two chambers sitting together, yet the
Assembly can meet only after the two chambers have passed a concurrent
resolution to that effect; and in fact the chambers are in the habit of
determining beforehand by separate votes the amendments which shall be
submitted to the Assembly. So that in France, also, the constitution is
virtually under the unrestricted control of the legislature.
[Sidenote: The Distinction has Lost Practical Importance.]
The separation of constituent and law-making powers has been rendered of
much less practical importance in some countries not only by making the
process of amending the constitution more simple, but also by making the
enactment of laws more complex. In Switzerland, for example, changes in
the Constitution of 1848 required a popular vote, while changes in the
laws did not; but after the referendum on ordinary laws was introduced
in 1874, this distinction largely disappeared, and at the present day
the differences between the methods of passing constitutional amendments
and ordinary laws are comparatively slight. In the case of ordinary laws
a popular vote is taken only on the petition of thirty thousand citizens
or eight cantons, and the popular majority is decisive; whereas
constitutional amendments must be submitted to the people whether a
petition is presented or not, and for their ratification a majority vote
in more than half the cantons as well as a majority in the Confederation
as a whole is required.[4:1]
In those European countries where the difference in the procedure for
changing constitutional and other laws is the most marked, the special
formalities for the former consist in requiring more than a majority
vote in the legislature, or that a general election shall take place
before the amendment is finally adopted, or both. Now the last of those
conditions is practically not unknown in England. There is a growing
feeling that no fundamental or far-reaching change ought to be made
unless, as a result of a general election fought on that issue,
Parliament has received from the nation a mandate to make the change.
Such a doctrine does not affect the law, but it does affect that body
of customs which is a not less vital part of the British Constitution.
The classical distinction between constituent and law-making powers, and
hence between rigid and flexible constitutions, has also been somewhat
effaced by extending the requirement of a special procedure to the
enactment of certain classes of ordinary law. Thus in the German Empire
the only peculiar formality for amendments to the constitution is found
in the provision that they are defeated by fourteen adverse votes in the
Bundesrath.[5:1] This gives Prussia with her seventeen votes a veto upon
them, but she has also a veto in the Bundesrath upon any measures
affecting the army, the navy, customs-duties or excises.[5:2]
[Sidenote: Growing Variety in Written Constitutions.]
In the middle of the last century written constitutions in Europe were
framed for the most part upon the same model and were much alike, so
that a written constitution usually implied a definite type of limited
monarchy, where the same class of matters were removed from the direct
control of the legislature and placed, in theory at least, under special
protection. But now written constitutions all over the world have come
to differ a great deal, some of them being simpler, and others more
comprehensive than of old. The constitutional laws of France, for
example, provide only for the bare organisation of the public
authorities, and can be amended virtually at will by the legislature;
while the constitutions of Switzerland, Germany and the United States go
into great detail, and that of the United States can be amended only
with the greatest difficulty. The result is that the French
constitution, although written and technically rigid, bears from the
point of view of rigidity a far closer resemblance to the constitution
of England than to that of the United States.
It would seem, therefore, that the distinction between constitutions
which are flexible and those which are rigid, while valuable, has ceased
to mark a contrast between widely separated groups; and that it might be
well to regard the distinction as one of degree rather than of kind.
From this aspect it may be said that of late years constitutions have
tended on the whole to become more flexible; and at the same time there
has been a tendency toward greater variations in flexibility, the
constitutions of England and of Hungary standing at one end of the
scale, and that of the United States at the other.
[Sidenote: A Constitution as a Supreme Law.]
[Sidenote: Meaning of Law where the Common Law Prevails.]
If the term "constitution" does not necessarily imply that the so-called
constituent and law-making powers are in different hands, still less
does it imply the existence of a law of superior obligation which
controls legally the acts of the legislature. Before discussing that
question, one must understand clearly what is meant by a law. In
England, and in the countries that have inherited the Anglo-Norman
system of jurisprudence, a law may be defined as a rule that will be
enforced by the courts. This results from the fact that officers of the
government, like private persons, are subject to judicial process, and
liable to have the legality of their actions examined and determined by
the ordinary tribunals. Hence a rule recognised as law by the courts
will be enforced against both officials and private citizens; and a rule
which they do not recognise cannot be enforced at all, for they will
entertain suits and prosecutions against officials who try to apply it,
and will afford protection to individuals who resist them.[6:1] Assuming
this definition of law, the famous decision of Chief Justice
Marshall[6:2] that an Act of Congress inconsistent with the Constitution
of the United States must be treated as invalid was a logical necessity.
The Constitution was certainly intended to be a law, and as such it
could be enforced by the courts. But if that law came into conflict with
another law, an Act of Congress for example, the court must consider, as
in any other case of conflict of laws, which law was of superior
authority; and there could be no doubt that the Constitution was the
superior of the two. The same principle is applied in the British
colonies, when colonial acts come into collision with the Acts of
Parliament establishing the colonial government;[7:1] and it has been
incorporated into the constitutions of the Spanish American republics.
[Sidenote: Where the Civil Law Prevails.]
But, except for those Latin countries which have copied it from the
United States, the doctrine is almost entirely confined to the places
where the Common Law prevails,[7:2] for elsewhere the same definition of
law does not obtain. In accordance with the French interpretation of the
theory of the separation of powers, it is the general rule on the
continent of Europe that the ordinary courts administer only private law
between private citizens, and that questions affecting the rights and
duties of public officials are withdrawn from their jurisdiction. Such
questions are now usually, though not universally, submitted to special
tribunals known as administrative courts. The rules administered by
these tribunals are laws, but they form a distinct and separate branch
of the law from that applied by the ordinary courts. On the continent,
therefore, a constitution may or may not be properly regarded as a law,
but even if it be so regarded it is not of necessity enforced by any
court. On the contrary, if an ordinary court is not suffered to pass
upon the legality of the actions of a policeman, it would be hardly
rational that it should pass upon the validity of an act of the national
legislature; and it would be even more irrational to intrust any such
power to the administrative courts which are under the influence of the
executive branch of the government.[8:1]
[Sidenote: Legal Restraints on Power of Legislature are Rare.]
The conception of a constitution as a law of superior obligation, which
imposes legal restraints upon the action of the legislature, is really
confined to a very few countries, chiefly to America and the English
self-governing colonies.[8:2] In Europe it has no proper place, for
whether a constitution in continental states be or be not regarded as a
supreme law, no body of men has, as a rule, been intrusted with legal
authority to enforce its provisions as against the legislature; and in
England there is no law superior in obligation to an Act of Parliament.
There can, indeed, be no doubt that the Acts of Union with Scotland and
Ireland were intended to be, in part at least, forever binding, but as
they created no authority with power either to enforce or to amend the
Acts, the united Parliament assumed that, like its predecessors, it
possessed unlimited sovereignty; and it has, in fact, altered material
provisions in each of those statutes.[8:3]
[Sidenote: Sources of the English Constitution.]
The English Constitution--speaking, of course, of its form, not its
content--differs, therefore, from those of most other European nations
more widely in method of expression than in essential nature and legal
effect. They have been created usually as a result of a movement to
change fundamentally the political institutions of the country, and the
new plan has naturally been embodied in a document; but since the
Restoration England has never revised her frame of government as a
whole, and hence has felt no need of codifying it. The national
political institutions are to be found in statutes,[9:1] in customs
which are enforced and developed by the courts and form a part of the
Common Law, and in customs strictly so called which have no legal
validity whatever and cannot be enforced at law. These last are very
appropriately called by Professor Dicey the conventions of the
constitution. The two chief peculiarities of the English Constitution
are: first, that no laws are ear-marked as constitutional,--all laws can
be changed by Parliament, and hence it is futile to attempt to draw a
sharp line between those laws which do and those which do not form a
part of the constitution;--second, the large part played by customary
rules, which are carefully followed, but which are entirely devoid of
legal sanction. Customs or conventions of this kind exist, and in the
nature of things must to some extent exist, under all governments. In
the United States where they might, perhaps, be least expected, they
have, as already observed, transformed the presidential electors into a
mere machine for registering the popular vote in the several states, and
this is only the most striking of the instances that might be
cited.[9:2] England is peculiar, not because it has such conventions,
but because they are more abundant and all-pervasive than elsewhere. The
most familiar of them is, of course, the rule that the King must act on
the advice of his ministers, while they must resign or dissolve
Parliament when they lose the confidence of the majority in the House of
Commons.
It is impossible, however, to make a precise list of the conventions of
the constitution, for they are constantly changing by a natural process
of growth and decay; and while some of them are universally accepted,
others are in a state of uncertainty. Hence one hears from time to time
a member of the Opposition assert that some action of the government is
unconstitutional, meaning that it is an unusual breach of a principle
which in his opinion ought to be recognised as inviolable. It was said,
for example, that the Parliament of 1900, having been elected on the
issue of the South African war, was not justified in enacting measures
of great importance on other subjects, but that a fresh mandate from the
nation ought to be obtained by another general election. As claims of
this kind are in dispute, those customs alone can safely be said to be a
part of the constitution which are generally assumed to be outside the
range of current political controversy.
[Sidenote: The Relation of Law and Custom.]
The relation between law and custom in the English government is
characteristic. From the very fact that the law consists of those rules
which are enforced by the courts, it follows that the law,--including,
of course, both the statutes and the Common Law,--is perfectly distinct
from the conventions of the constitution; is quite independent of them,
and is rigidly enforced. The conventions do not abrogate or obliterate
legal rights and privileges, but merely determine how they shall be
exercised. The legal forms are scrupulously observed, and are as
requisite for the validity of an act as if custom had not affected their
use.[10:1] The power of the Crown, for example, to refuse its consent to
bills passed by the two Houses of Parliament is obsolete, yet the right
remains legally unimpaired. The royal assent is given to such bills with
as much solemnity as if it were still discretionary, and without that
formality a statute would have no validity whatever. Public law in
countries where it is administered not by the ordinary courts, but
solely by the executive, or with the aid of special tribunals composed
of administrative officials, must of necessity contain a discretionary
element, and that element is always affected by political conventions.
Hence there is a likelihood that the line between law and convention
will become blurred, but this is not so in England. There the law and
the conventions of the constitution are each developing by processes
peculiar to themselves, but the line between them remains permanently
clear. The conventions are superimposed upon the law, and modify
political relations without in the least affecting legal ones. In fact
Freeman declared that the growth of the unwritten conventions of the
constitution began after the supremacy of the law had been firmly
established by the revolution of 1688, and that they could not have been
evolved if that condition had not existed.[11:1]
[Sidenote: The Sanction of Custom.]
The question why the conventions of the constitution are so scrupulously
followed, when they have no legal force, is not a simple one.
Impeachment as a means of compelling the observance of traditions has,
of course, long been obsolete. Professor Dicey maintains that the
ultimate sanction of these conventions lies in the fact that any
ministry or official violating them would be speedily brought into
conflict with the law of the land as enforced by the courts.[11:2] He
takes as illustrations the omission to summon Parliament every year, and
the retention of office by a ministry against the will of the Commons
without dissolving; and he shows in each case how the ministry would be
brought into conflict with the law by the failure to enact the annual
army bill or to pass the appropriations. He proves that in such cases
the wheels of government would be stopped by the regular operation of
the law; and that the House of Commons can readily bring about this
result if it pleases.[12:1] There is, however, another question, and
that is why the House is determined to exert its power so as to maintain
the conventions of the constitution as they stand to-day. It has long
possessed the necessary authority, but the conventions were evolved
slowly. The House of Representatives in Washington has the same power to
stop appropriations, but it does not try to use it to force a
responsible ministry upon the President; a result which has, on the
other hand, been brought about in France almost as conclusively as in
England, and that without the sanction arising from the risk of conflict
between the government and the courts. Any parliament could use its
authority if it chose to keep the ministry in office indefinitely, as
well as to make it responsible. It could pass a permanent army act,
grant the tea and income taxes for a term of years, charge all ordinary
expenses upon the Consolidated Fund, and so make the existing ministry
well-nigh independent of future parliaments.
The question seems to resolve itself into two parts: first, why a custom
once established is so tenaciously followed in England; and, second, why
the conventions have assumed their present form. In regard to the first
it may be suggested that while the consequences mentioned by Professor
Dicey form, no doubt, the ultimate sanction of the most important
conventions of the constitution, they are not the usual, or in fact the
real, motive for obedience; just as the dread of criminal punishment is
not the general motive for ordinary morality. The risk of imprisonment
never occurs, indeed, to people of high character, and in the same way
the ultimate sanctions of the law are not usually present in the minds
of men in English public life. In the main the conventions are observed
because they are a code of honour. They are, as it were, the rules of
the game, and the single class in the community which has hitherto had
the conduct of English public life almost entirely in its own hands is
the very class that is peculiarly sensitive to obligation of this kind.
Moreover, the very fact that one class rules, by the sufferance of the
whole nation, as trustees for the public, makes that class exceedingly
careful not to violate the understandings on which the trust is held.
The key to the question why the conventions have assumed their present
form is to be found mainly in Professor Dicey's remark[13:1] that all of
them exist for the sake of securing obedience to the deliberately
expressed will of the House of Commons, and ultimately to the will of
the nation. Their effect has been to bring the prerogatives of the Crown
more and more completely under the control of the cabinet, and the
cabinet itself under the control of the House of Commons; to restrain
the opposition of the Lords to any policy on which the Commons backed by
the nation are determined; and, finally, through the power of
dissolution to make the House of Commons itself reflect as nearly as may
be the views of the electorate. In England there is, in fact, only one
conclusive means of expressing the popular will--that of an election to
the House of Commons; and in ordinary cases there is only one body that
has power to interpret that expression, the cabinet placed in office by
the House so elected.
[Sidenote: The Effects of Custom.]
Professor Dicey has also pointed out a singular result of the
conventions. If the growing power of the House of Commons, instead of
being used to impose customary restraints on the exercise of authority
by the Crown and the House of Lords, had been exerted to limit that
authority by law, the Crown and the House of Lords would have been far
more free to exercise at their discretion the powers still left in their
hands; and hence the House of Commons could not have obtained its
present omnipotence. By leaving the prerogative substantially untouched
by law, and requiring that it should be wielded by ministers responsible
to them, the Commons have drawn into their own control all the powers
of the sovereign that time has not rendered entirely obsolete.
The great part played by custom has had another effect upon English
public life. It has tended to develop a conservative temperament. If
laws are changed the new ones may have the same authority as the old;
but if customs are changed rapidly they lose their force altogether.
Stability is necessary for the very life of custom. The conventions of
the constitution could not exist without respect for precedent, and
where the institutions and liberties of a country depend not upon a
written code, but upon custom, there is a natural tendency to magnify
the importance of tradition and precedent in themselves. In England,
therefore, there is a peculiar veneration for custom, and a disposition
to make as little change in it as is compatible with changing times. The
result is a constant tinkering, rather than remodelling, of outworn
institutions,--a spirit which is strongly marked throughout the whole of
English public life.
[Sidenote: English System not Logical but Scientific.]
Critics and apologists both assert that the English political system is
not logical; and the statement is true in the sense that the system was
not excogitated by an _a priori_ method. But on the other hand the very
fact that it has grown up by a continual series of adaptations to
existing needs has made it on the whole more consistent with itself, has
brought each part more into harmony with the rest, than is the case in
any other government. In this it is like a living organism. There are,
no doubt, many small anomalies and survivals that mar the unity for the
purpose of description; but these, like survivals of structure in
animals, like the splint bones in the leg of a horse for example, do not
interfere seriously with the action of the whole. It may be said that in
politics the Frenchman has tended in the past to draw logical
conclusions from correct premises, and that his results have often been
wrong, while the Englishman draws illogical conclusions from incorrect
premises, and his results are commonly right. The fact being that all
abstract propositions in politics are at best approximations, and an
attempt to reason from them usually magnifies the inaccuracy. But in
England the institutions being empirical have resulted from experience,
although men have often tried to explain them afterwards by a somewhat
artificial and incongruous process of reasoning. In this sense French
political principles may be said to be the more logical, the English
government--not the theories about it--the more scientific. It is more
important, therefore, to describe the organs of the English government
and their relations to one another than to consider the traditional
principles that have been supposed to underlie the system. But the very
nature of the English government renders it peculiarly difficult to
portray. As the laws that regulate its structure are overlaid by customs
which moderate very greatly their operation without affecting their
meaning or their validity, it is necessary to describe separately the
legal and customary aspects of the constitution. It is almost
unavoidable to pass in review first the legal organisation of each
institution, and then its actual functions. Such a process is sometimes
tedious, especially for a person already familiar with the subject, but
an attempt has been made in the following pages to separate as far as
possible the dry legal details from a discussion of the working forces,
so that the former may be skipped by the judicious reader.
FOOTNOTES:
[1:1] _La Democratie en Amerique_, I., Ch. vi.
[1:2] 30-31 Vic., c. 3, Sec. 11.
[1:3] 63-64 Vic., c. 12, Const., Secs. 64-65.
[2:1] The provisions about the responsibility of the ministers are
almost identical in the constitutions of Belgium (Arts. 63, 64, 65, 88,
89, 90) and Prussia (Arts. 44, 45, 60, 61); but in Belgium the cabinet
is politically responsible to the chamber, while in Prussia it is not.
[2:2] "Studies in History and Jurisprudence," Essay III.
[3:1] _Cf._ Brusa, _Italien_, in Marquardsen's _Handbuch des
Oeffentlichen Rechts_, 12-16, 181-82.
[3:2] Professor Dicey points out ("Law of the Constitution," 5 Ed., 116
and Note 2) that De Tocqueville considered the Charter unalterable by
reason of this omission, but that it was, in fact, changed like an
ordinary law.
[3:3] For the purpose of the argument it is unimportant that Prussia is
not a sovereign state, and for sixteen years it did exist as an
independent sovereign state under its present constitution.
[4:1] Constitutional amendments can also be proposed by popular
initiative, and ordinary laws cannot.
[5:1] Const., Art. 78.
[5:2] _Ibid._, Art. 5.
[6:1] By far the best exposition of this matter is to be found in
Professor Dicey's "Law of the Constitution." It is discussed more fully
in Chapter xl., _infra_.
[6:2] Marbury _vs._ Madison, 1 Cranch, 137.
[7:1] The Australian Federation Act (Sec. 74) refers particularly to the
decision of such questions, limiting the right to bring them on appeal
before the Judicial Committee of the Privy Council.
[7:2] There are a few exceptions. Provisions giving such a power to the
courts are to be found in the constitutions of the little Swiss cantons
of Uri (Art. 51) and Unterwalden nid dem Wald (Art. 43). The Swiss
national constitution, on the other hand (Art. 113), directs the Federal
Tribunal to apply every law enacted by the national legislature. Some
discussion has taken place on the question in Germany. (See Brinton
Coxe, "Judicial Power and Unconstitutional Legislation," Ch. ix., and
the writer's "Governments and Parties in Continental Europe," I.,
282-84.) Curiously enough, a struggle over this question occurred in the
Transvaal not long before the South African War (Bryce's "Studies in
History and Jurisprudence," 378; Kruger's "Memoirs," 254-57). In his
next inaugural address President Kruger quoted Scripture to prove that
the principle of holding statutes unconstitutional had been invented by
the devil. (Kruger, 354-55.)
[8:1] Esmein (_Elements de droit constitutionel_, 425-28) describes the
various proposals made at different times in France for annulling
unconstitutional laws. One of these, Sieyes's _jurie constitutionaire_,
bears a curious resemblance to an institution for a somewhat analogous
purpose in Athens: Goodwin, "Demosthenes on the Crown," Essay II.,
316-27.
[8:2] It must be observed, also, that the English colonies are not
legally independent or sovereign states, and hence their parliaments are
legally subordinate legislatures. We may note in this connection that
the Swiss Federal Tribunal can hold unconstitutional laws of the cantons
which violate the constitution either of the confederation or of the
canton.
[8:3] Professor Dicey argued that the first Home Rule Bill if enacted
might have restricted the legal sovereignty of Parliament. "England's
Case against Home Rule," 238, _et seq._ This result was denied by the
other side. Bryce, "Studies in Hist. and Jur.," 176, note.
[9:1] Boutmy in his _Etudes de droit constitutionel_ (1 Ed., 9) adds
treaties or quasi-treaties (the Acts of Union), and solemn agreements
such as the Bill of Rights. But all these are in legal effect simply
statutes.
[9:2] Bryce, American Commonwealth, Ch. xxxiv.
[10:1] The habit of collecting new or increased duties or excises as
soon as the resolution to impose them passes the House of Commons is an
apparent exception to this principle, for the taxes are not legally
payable until laid by Act of Parliament. The object of the custom is to
prevent a large loss of revenue by importations made after it is known
that the duty will be levied and before it goes into effect. The act
when passed contains, of course, a clause authorising and thereby making
legal the collection from the date of the resolution, and if it fails to
pass the tax is refunded.
[11:1] "Growth of the English Constitution," 107, 112-13, 119.
[11:2] "Law of the Constitution," Ch. xv.
[12:1] All this is true only of conventions that give effect to the will
of the majority of the House of Commons, not of those that secure fair
play to the minority, which are in fact not less important.
[13:1] "Law of the Constitution," 360, 384.
PART I.--CENTRAL GOVERNMENT
CHAPTER I
THE CROWN
Political liberty and romance in English history are both bound up with
the shifting fortunes of the throne. The strong hand of the Norman and
Angevin kings welded the whole country into a nation, and on that
foundation were built the solid structures of a national Common Law, a
national Parliament, and a long series of national statutes. When in the
fulness of time the Crown had accomplished its work of unification, it
came into conflict with Parliament, and after a series of convulsions,
in which one king lost his head and another his throne, political
evolution resumed its normal course. The House of Commons gradually drew
the royal authority under its control. But it did so without seriously
curtailing the legal powers of the Crown, and thus the King legally
enjoys most of the attributes that belonged to his predecessors,
although the exercise of his functions has passed into other hands. If
the personal authority of the monarch has become a shadow of its former
massiveness, the government is still conducted in his name, and largely
by means of the legal rights attached to his office. With a study of the
Crown, therefore, a description of English government most fittingly
begins.
[Sidenote: The Title to the Crown.]
Ever since 1688, when James II., fleeing in fear of his life, "withdrew
himself out of the kingdom, and thereby abdicated," the title to the
Crown has been based entirely upon parliamentary enactment. At the
present day it rests upon the Act of Settlement of 1700,[16:1] which
provided that, in default of heirs of William and of Anne, the Crown
should pass to the Electress Sophia, and the heirs of her body, being
Protestants. Sophia was the granddaughter of James I., through her
mother, wife of the Elector Palatine; and while not his nearest heir,
was the nearest who was a Protestant.
[Sidenote: The Rules of Succession.]
The rules of descent are in the main the same as those for the
inheritance of land at Common Law.[17:1] That is, the title passes to
the eldest son; or, if he is not living, through him to his issue, male
or female, as if he had himself died upon the throne. If the first son
has died without issue, then to, or through, the eldest son who is
living, or has issue living; and in default of any sons living, or
leaving issue, then to, or through, the eldest daughter. The rule is,
however, subject to the qualification that any one who is, or becomes, a
Catholic is excluded from, and forfeits, the right to the Crown, which
then passes to the next heir. In order to insure a test that will make
this last provision effective, the sovereign is obliged to take an oath,
abjuring the Catholic religion, in words which have proved offensive to
members of that faith. After the accession of Edward VII., therefore,
but before his coronation, an effort was made to modify the form of the
oath, and a bill was introduced into the House of Lords for that
purpose; but it was not then found possible to arrange a phrase
satisfactory to all parties, and the bill was dropped.
[Sidenote: Incapacity of the Sovereign.]
In other monarchies permanent provision has been made by law for the
possible incapacity of the monarch, whether by reason of infancy or
insanity. But this has never been done in England. Each case has been
dealt with as it arose, and usually after it has arisen, so that, in
default of any person competent to give the royal assent to bills,
Parliament has been driven into the legal absurdity of first passing a
regency bill to confer such a power upon a regent, and then directing
the Chancellor to affix the Great Seal to a commission for giving assent
to that bill. Until recent times it was also thought necessary to
appoint officers, Lords Justices or others, to exercise the royal
powers when the sovereign went out of the kingdom; but with the rapidity
of modern travel and communication this has become unnecessary, and it
has not been done since the accession of Queen Victoria.
[Sidenote: The Powers of the Crown.]
The authority of the English monarch may be considered from different
points of view, which must be taken up in succession; the first question
being what power is legally vested in the Crown; the second how much of
that power can practically be exercised at all; the third how far the
power of the Crown actually is, or may be, used in accordance with the
personal wishes of the King, and how far its exercise is really directed
by his ministers; the fourth, how far their action is in turn controlled
by Parliament. The first two questions, which form the subject of this
chapter, cannot always be treated separately, for it is sometimes
impossible to be sure whether a power that cannot practically be
exercised is or is not legally vested in the Crown. An attempt to make
use of any doubtful power would probably be resisted, and the legality
of the act could be discussed in Parliament or determined by the law
courts; but it is very rare at the present day that any such attempt is
made. There are powers that have been disputed, or fallen into disuse,
and that no government would ever think of reviving; and thus the
question of law never having been settled, the legal right of the Crown
to make use of them must remain uncertain.
[Sidenote: The Prerogative.]
The authority of the Crown may be traced to two different sources. One
of them is statutory, and comprises the various powers conferred upon
the Crown by Acts of Parliament. The other source gives rise to what is
more properly called the prerogative. This has been described by
Professor Dicey[18:1] as the original discretionary authority left at
any moment in the hands of the King; in other words, what remains of the
ancient customary or Common Law powers inherent in the Crown. The
distinction is one not always perfectly easy to draw, for many parts of
the prerogative have been regulated and modified by statute, and in such
cases it is not always clear whether the authority now exercised is
derived from statute or from the prerogative. Nevertheless the
distinction is often important, because where the powers have been
conferred by Parliament the Crown acts by virtue of a delegated
authority which lies wholly within the four corners of the statute, and
exists only so far as it is expressly contained therein; while the
prerogative not being circumscribed by any document is more indefinite,
and capable of expanding or contracting with the progress of the suns.
[Sidenote: Legislative Power.]
All legislative power is vested in the King in Parliament; that is, in
the King acting in concert with the two Houses. Legally, every act
requires the royal assent, and, indeed, the Houses can transact business
only during the pleasure of the Crown, which summons and prorogues them,
and can at any moment dissolve the House of Commons. But it is important
to note that by itself, and apart from Parliament, the Crown has to-day,
within the United Kingdom,[19:1] no inherent legislative power whatever.
This was not always true, for legislation has at times been enacted by
the Crown alone in the form of ordinances or proclamations; but the
practice may be said to have received its death-blow from the famous
opinion of Lord Coke, "that the King by his proclamation cannot create
any offence which was not an offence before, for then he may alter the
law of the land."[19:2] The English Crown has, therefore, no inherent
power to make ordinances for completing the laws, such as is possessed
by the chief magistrate in France and other continental states. This
does not mean that it cannot make regulations for the conduct of
affairs by its own servants, by Orders in Council, for example,
establishing regulations for the management of the Army, or prescribing
examinations for entrance to the civil service. These are merely rules
such as any private employer might make in his own business, and differ
entirely in their nature from ordinances which have the force of law,
and are binding quite apart from any contract of employment.
Power to make ordinances which have the force of law and are binding on
the whole community is, however, frequently given to the Crown[20:1] by
statute, notably in matters affecting public health, education, etc.,
and the practice is constantly becoming more and more extensive, until
at present the rules made in pursuance of such powers--known as
"statutory orders"--are published every year in a volume similar in form
to that containing the statutes. Some of these orders must be submitted
to Parliament, but go into effect unless within a certain time an
address to the contrary is passed by one of the Houses, while others
take effect at once, or after a fixed period, and are laid upon the
tables of the Houses in order to give formal notice of their adoption. A
fuller description of these orders must, however, be postponed to the
chapters that deal with Parliament. It is only necessary here to point
out that in making such orders the Crown acts by virtue of a purely
delegated authority, and stands in the same position as a town council.
The orders are a species of subordinate legislation, and can be enacted
only in strict conformity with the statutes by which the power is
granted; and being delegated, not inherent in the Crown, a power of this
kind does not fall within the prerogative in its narrower and more
appropriate sense.
[Sidenote: Executive Power.]
The Crown is at the head of the executive branch of the central
government, and carries out the laws, so far as their execution requires
the intervention of any national public authority. In fact all national
executive power, whether regulated by statute, or forming strictly a
part of the prerogative, is exercised in the name of the Crown, and by
its authority, except when directly conferred by statute upon some
officer of the Crown, and in this case, as we shall see, it is exercised
by that officer as a servant of the Crown, and under its direction and
control. Legally some of the executive powers are indeed vested in the
Crown in Council--that is, in the King acting with his Privy
Council--but as the Council has no independent authority, and consists,
for practical purposes, of the principal ministers appointed by the
Crown, even these powers may be said to reside in the Crown alone.
[Sidenote: Appointments to Office.]
All national public officers, except some of the officials of the Houses
of Parliament, and a few hereditary dignitaries whose duties are purely
ceremonial,[21:1] are appointed directly by the Crown or by the high
state officials whom it has itself appointed; and the Crown has also the
right to remove them, barring a small number whose tenure is during good
behaviour. Of these last by far the most important are the judges, the
members of the Council of India, and the Controller and Auditor General,
no one of whom has any direct part in the executive government of the
kingdom.[21:2] Now the right to appoint and remove involves the power to
control; and, therefore, it may be said in general that the whole
executive machinery of the central government of England is under the
direction of the Crown.
[Sidenote: Other Powers under the Prerogative.]
The Crown furthermore authorises under the sign manual the expenditure
of public money in accordance with the appropriations made by
Parliament, and then expends the money. It can grant charters of
incorporation, with powers not inconsistent with the law of the land, so
far as the right to do so has not been limited by statute; but in
consequence of the various reform acts, municipal corporation acts, and
local government acts, no charter conferring political power can now be
created except in pursuance of statute, while even commercial companies
usually require privileges which can be given only by the same
authority.[22:1] The Crown grants all pardons, creates all peers, and
confers all titles and honours. As head of the Established Church of
England it summons Convocation with a license to transact business
specified in advance. It virtually appoints the archbishops, bishops and
most of the deans and canons, and has in its gift many rectorships and
other livings.[22:2] As head of the Army and Navy it raises and controls
the armed forces of the nation, and makes regulations for their
government, subject, of course, to the statutes and to the passage of
the Annual Army Act. It represents the empire in all external relations,
and in all dealings with foreign powers. It has power to declare war,
make peace, and conclude treaties, save that, without the sanction of
Parliament, a treaty cannot impose a charge upon the people, or change
the law of the land, and it is doubtful how far without that sanction
private rights can be sacrificed or territory ceded.[22:3]
[Sidenote: Executive Powers under Statutes.]
Just as Parliament has often conferred legislative authority upon the
Crown, so it has conferred executive power in addition to that possessed
by virtue of the prerogative. I do not refer here to the cases where a
statute creates new public duties to be performed directly by the Crown
and confers upon it the authority needed for the purpose. Such powers,
although statutory, are exercised in the same way as those derived from
the prerogative. I refer to statutes that regulate the duties or
privileges of local and other bodies, and give to the Crown, not a
direct authority to carry out the law, but a power of supervision and
control. Statutes of this kind have become very common during the last
half century in relation to such matters as local government, public
health, pauperism, housing of the working-classes, education, tramways,
electric lighting and a host of other things. Even without an express
grant of authority, supervisory powers have often been conferred upon
the Crown by means of appropriations for local purposes which can be
applied by the government at its discretion, and hence in accordance
with such regulations as it chooses to prescribe. This has been true,
for example, of the subsidies in aid of the local police, and of
education. By such methods the local authorities, and especially the
smaller ones, have been brought under the tutelage of the Crown to an
extent quite unknown in the past.
[Sidenote: Wide Extent of the Powers of the Crown.]
All told, the executive authority of the Crown is, in the eye of the
law, very wide, far wider than that of the chief magistrate in many
countries, and well-nigh as extensive as that now possessed by the
monarch in any government not an absolute despotism; and although the
Crown has no inherent legislative power except in conjunction with
Parliament, it has been given by statute very large powers of
subordinate legislation. "It would very much surprise people," as
Bagehot remarked in his incisive way, "if they were only told how many
things the Queen could do without consulting Parliament . . . Not to
mention other things, she could disband the army (by law she cannot
engage more than a certain number of men, but she is not obliged to
engage any men); she could dismiss all the officers, from the General
Commanding-in-Chief downwards; she could dismiss all the sailors too;
she could sell off all our ships of war and all our naval stores; she
could make a peace by the sacrifice of Cornwall, and begin a war for the
conquest of Brittany. She could make every citizen in the United
Kingdom, male or female, a peer; she could make every parish in the
United Kingdom a 'university'; she could dismiss most of the civil
servants; she could pardon all offenders. In a word, the Queen could by
prerogative upset all the action of civil government within the
government."[24:1] We might add that the Crown could appoint bishops,
and in many places clergymen, whose doctrines were repulsive to their
flocks; could cause every dog to be muzzled, every pauper to eat leeks,
every child in the public elementary schools to study Welsh; and could
make all local improvements, such as tramways and electric light,
well-nigh impossible.
[Sidenote: Powers that have been Lost.]
Great as the prerogative is to-day, it was, in some directions, even
more extensive in the past, and men are in the habit of repeating the
phrases derived from that past after they have lost their meaning. This
is done by writers who are not under the slightest misapprehension in
regard to the actual legal authority of the Crown. It is the habit, for
example, to speak of the Crown as the fountain of justice, and even an
author so learned and accurate as Todd repeats Blackstone's statement
that "By the fountain of justice, the law does not mean the author or
original, but only the distributor. Justice is not derived from the
king, as from his free gift, but he is the steward of the public, to
dispense it to whom it is due. He is not the spring, but the reservoir,
from whence right and equity are conducted by a thousand channels to
every individual."[24:2] Now apart from public prosecution by the state,
which is less common in England than elsewhere, and the use of the
King's name in judicial process, the only legal connection of the Crown
with the distribution of justice to-day lies in the appointment of the
judges; and to call it on that account the reservoir of justice is
merely fanciful. There was a time when the Crown was really the fountain
or reservoir of justice, when it might fairly have been said to
administer justice by deputy. It created the Common Law courts, and
after the growth of civilisation had produced more refined and complex
ideas of justice it received petitions for the redress of wrongs not
recognised before, and established new courts to deal with them. Stubbs
has compared the process to that of the sun throwing off a series of
nebulous envelopes, which rolled up into compact bodies, but left the
old nucleus of light to assert its vitality, unimpaired by successive
emanations.[25:1] In this way the courts of equity arose to give relief
in cases where there was no remedy by the strict rules of the Common
Law, while the Star Chamber performed an analogous function in criminal
matters. This last tribunal came to be used as a political engine under
the Stuarts, and was abolished by statute[25:2] early in the struggle
with Charles I. With the fall of the Stuarts the power of the Crown to
create new courts came to an end altogether. In 1689 the Bill of Rights
declared the "Court of Commissioners for Ecclesiastical Causes, and all
other Commissions and Courts of a like Nature," illegal, and since that
time an Act of Parliament has been necessary to create any new court of
justice in England.
The Crown has been deprived in the same way of other powers once
possessed or claimed under the prerogative. The Bill of Rights, for
example, declared illegal the suspending or dispensing with laws, and
the maintenance of a standing army in time of peace without the consent
of Parliament. Some powers have, from long disuse, become obsolete and
have been lost; such as the right to confer on boroughs the privilege of
electing members to the House of Commons;[25:3] and the power to create
life peers with votes in the House of Lords.[25:4] Other powers again,
although legally unimpaired, have become obsolete in practice, and can
no longer be exerted. The illustration commonly given of this is the
right of the Crown to withhold its assent to a bill passed by
Parliament,--popularly called, or miscalled, the veto. The right has
not been exercised since the days of Queen Anne; but it may not be gone
so completely beyond revival as is generally supposed. It could, of
course, be used only on the advice of the ministry of the day, and under
ordinary circumstances a ministry willing to withhold the royal assent
to a bill would be bound to treat the passage of that bill by the House
of Commons as a ground for resignation or dissolution. One can imagine,
however, a case where after a bill has passed the Commons the ministry
should resign, and the House of Lords should insist on passing the bill
in spite of the opposition of the new cabinet. It would be rash to
assert that in such a case the royal assent would not be withheld.
Something of the kind very nearly occurred in 1858, when the ministry
threatened to advise the Queen to withhold her assent to a private bill
unless the Lords gave permission to the Board of Works to appear before
the private bill committee and oppose the plans.[26:1]
[Sidenote: Powers of the Crown exercised by Ministers.]
Since the accession of the House of Hanover the new powers conferred
upon the Crown by statute have probably more than made up for the loss
to the prerogative of powers which have either been restricted by the
same process or become obsolete by disuse. By far the greater part of
the prerogative, as it existed at that time, has remained legally vested
in the Crown, and can be exercised to-day; but it is no longer used in
accordance with the personal wishes of the sovereign. By a gradual
process his authority has come more and more under the control of his
ministers, until it is now almost entirely in the hands of the cabinet,
which is responsible to Parliament, and through Parliament to the
nation. The cabinet is to-day the mainspring of the whole political
system, and the clearest method of explaining the relations of the
different branches of the government to each other is to describe in
succession their relations with the cabinet.
FOOTNOTES:
[16:1] 12-13 Will. III., c. 2.
[17:1] Except, of course, that the eldest of several sisters succeeds
instead of all having equal rights as co-parceners.
[18:1] "Law of the Constitution," 355.
[19:1] The statement is made with this limitation because the Crown has
always had inherent authority to legislate directly for Crown colonies
acquired by conquest; but if the Crown once grants a representative
legislature to such a colony without reserving its own legislative
authority, it surrenders that authority over the colony forever. See
Jenkyns, "British Rule and Jurisdiction Beyond the Seas," 4-6, 95;
Campbell _vs._ Hall, Cowp., 204.
[19:2] Coke's Reports, XII., 76.
[20:1] Or more strictly to the Crown in Council.
[21:1] Such as the hereditary Earl Marshal and Grand Falconer.
[21:2] On the power of removal from an office held during good
behaviour, and on the effect of the provision that the three classes of
officers mentioned above may be removed upon the address of both Houses
of Parliament, see Anson, "Law and Custom of the Constitution," II.,
213-15. The references to Anson are to the 3 Ed. of Vol. I. (1897); the
2 Ed. of Vol. II. (1896).
[22:1] Todd, "Parl. Govt. in England," 2 Ed. (1887), Ch. xiv.
[22:2] See the later chapter on The Church.
[22:3] _Cf._ Anson, "Law and Custom," II., 297-99; Dicey, "Law of the
Constitution," 393. Heligoland was ceded to Germany by treaty in 1890,
subject to the assent of Parliament, which was given by 53-54 Vic., c.
32.
[24:1] "English Constitution," 2 Ed. (Amer.), Introd., 31.
[24:2] Todd, "Parl. Govt. in England," I., 570.
[25:1] "Const. Hist. of England," 4 Ed., I., 647.
[25:2] 16 Car. I., c. 10.
[25:3] It may be maintained that the right, if not already lost by
disuse, was by implication, though not expressly, taken away by the
Reform Acts of 1832, 1867 and 1885, which created new boroughs and
disfranchised old ones.
[25:4] See the debate in the Lords on the Wensleydale case. Hans., 3
Ser., CXL., _passim_.
[26:1] The Victoria Station and Pimlico Railway Bill, Hans., 3 Ser.,
CLI., 586-89, 691-93, 797-98. See Todd, II., 392.
CHAPTER II
THE CROWN AND THE CABINET
It is not within the province of this book to trace the process whereby
the King became irresponsible both at law and before the nation, while
the responsibility for his acts became transferred to his ministers. The
story has been told by others far better than the writer could tell it,
and the object here is only to note the results of that process in the
existing constitution.
[Sidenote: The King can do no Wrong at Law;]
The doctrine that "the King can do no wrong" had its beginnings as far
back as the infancy of Henry III., and by degrees it grew until it
became a cardinal principle of the constitution. Legally it means that
he cannot be adjudged guilty of wrong-doing, and hence that no
proceedings can be brought against him. He cannot be prosecuted
criminally, or, without his own consent, sued civilly in tort or in
contract in any court in the land.[27:1] But clearly if the government
is to be one of law, if public officers like private citizens are to be
subject to the courts, if the people are to be protected from arbitrary
power, the servant who acts on behalf of the Crown must be held
responsible for illegal conduct from the consequences of which the King
himself is free. Hence the principle arose that the King's command is no
excuse for a wrongful act, and this is a firmly established maxim of the
Common Law in both civil and criminal proceedings.[27:2] To prevent
royal violations of the law, however, it is not enough to hold liable a
servant who executes unlawful orders, if the master still has power to
commit offences directly. A further step must be taken by restraining
the Crown from acting without the mediation of a servant who can be made
accountable, and for this reason Edward I. was informed that he could
not make an arrest in person.[28:1] But, as the kings and queens are not
likely to be tempted into personal assaults and trespasses, the
principle that they can act only through agents has had little
importance from the point of view of their liability at law, although it
is a matter of vital consequence in relation to their political
responsibility.
[Sidenote: or in Politics.]
The doctrine that the King can do no wrong applies not only to legal
offences, but also to political errors. The principle developed slowly,
as a part of the long movement that has brought the royal authority
under the control of public opinion; not that the process was altogether
conscious, or the steps deliberately planned, but taking constitutional
history as a whole, we can see that it tended to a result, and in
speaking of this it is natural to use terms implying an intent which the
actors did not really possess. To keep the Crown from actual violations
of law was not always easy, but it was far more difficult to prevent it
from using its undoubted prerogatives to carry out an unpopular policy.
Parliament could do something in a fitful and intermittent way by
refusing supplies or insisting upon the redress of particular
grievances, but that alone was not enough to secure harmony between the
Crown and the other political forces of the day. There could, in the
nature of things, be no appropriate penalty for royal misgovernment. In
the Middle Ages, indeed, a bad king or a weak king might lose his throne
or even his life; but in more settled times such things could not take
place without a violent convulsion of the whole realm,--a truth only too
well illustrated by the events of the seventeenth century. An orderly
government cannot be founded on the basis of personal rule tempered by
revolution. Either the royal power must be exercised at the personal
will of the monarch, or else other persons who can be made accountable
must take part in his acts of state.
[Sidenote: A Minister Responsible for Each of his Acts.]
As early as the fourteenth and fifteenth centuries the King's Council
had begun to encumber the affixing of the various seals with a series of
formalities which involved the intervention of one or more royal
officers. The process continued until custom or statute required that
almost every public act which the Crown was in the habit of performing
directly--except the appointment and removal of the great officers of
state themselves--must either be done in the Privy Council, or by means
of an instrument authenticated by seals or countersignatures affixed by
one or more officers of state.[29:1] The object of these formalities was
to protect the Crown from improvident grants, and to secure the
influence of the Council over the administration,[29:2] rather than to
create any responsibility to Parliament or the public; and yet it was
easy to maintain, when the time was ripe, that the officer who sealed or
signed assumed thereby responsibility for the act. Then if a wrong was
committed some one could be held to account; for misconduct some one
could be punished; for acts that were unpopular, or a policy that was
odious, some one beneath the throne could be assailed; and if a strong
expression of resentment did not deter the offender, Parliament had as a
last resort the weapons of impeachment and bill of attainder. These
weapons were a stage in the process of evolution, a stepping-stone in
the progress of parliamentary control, but they were far too rough to
produce a true accord between the Crown and Parliament; and when the
political experiments of William and of Anne, fostered by the timely
accident of two unkingly foreigners upon the throne, evolved at last the
system of a responsible ministry in its present form, even impeachment
became obsolete, or rather it lingered only as a means of retribution
for personal malfeasance in office.
[Sidenote: Nature of Modern Responsibility.]
The rules requiring seals or signatures to be affixed to royal acts,
though somewhat simplified, remain in force to-day, but they have ceased
to be the real source of responsibility. The effort to fasten upon a
particular person the actual responsibility for each public act of the
Crown by compelling some officer to put his approval of it on record,
has been superseded by the general principle that the responsibility
must always be imputed to a minister. Though ignorant of the matter at
the time it occurred, he becomes answerable if he retains his post after
it comes to his knowledge; and even though not in office when the act
was done, yet if he is appointed in consequence of it, he assumes with
the office the responsibility for the act. This happened to Sir Robert
Peel in 1834. Believing, as every one at that time did believe, that the
King had arbitrarily dismissed Lord Melbourne's cabinet, he said, "I
should by my acceptance of the office of First Minister become
_technically, if not morally_, responsible for the dissolution of the
preceding government, although I had not the remotest concern in
it."[30:1] The rule is so universal in its operation "that there is not
a moment in the King's life, from his accession to his demise, during
which there is not some one responsible to Parliament for his public
conduct."[30:2] A minister is now politically responsible for everything
that occurs in his department, whether countersignature or seal is
affixed by him or not; and all the ministers are jointly responsible for
every highly important political act. A minister whose policy is
condemned by Parliament is no longer punished, he resigns; and if the
affair involves more than his personal conduct or competence, if it is
of such moment that it ought to have engaged the attention of the
cabinet, his colleagues resign with him. Thus punitive responsibility
has been replaced by political responsibility, and separate has been
enlarged to joint responsibility.
[Sidenote: The King must Follow the Advice of Ministers;]
The ministers, being responsible to Parliament for all the acts of the
Crown, are obliged to refrain from things that they cannot justify, and
to insist upon actions which they regard as necessary. In short, the
cabinet must carry out its own policy; and to that policy the Crown must
submit. The King may, of course, be able to persuade his ministers to
abandon a policy of which he does not approve, and of his opportunities
for doing so we shall have more to say later; but if he cannot persuade
them, and, backed by a majority in Parliament, they insist upon their
views, he must yield. It is commonly said that he must give his
ministers his confidence, but it would be more accurate to say that he
must follow their advice. With the progress of the parliamentary system
this custom has grown more and more settled, the ministers assuming
greater control, and the Crown yielding more readily, not necessarily
from any dread of the consequences, but from the force of habit.
[Sidenote: or Find Others who will Accept Responsibility.]
According to the older theory of parliamentary government, it was merely
necessary that the King should have ministers who would accept
responsibility for his acts; and, therefore, he might disregard their
advice if he could find others who were willing to adopt his policy, and
assume responsibility for it. Such an alternative is a very remote
possibility in England to-day. It could only be brought about in one of
two ways.
In the first place it might be brought about by the dismissal of the
cabinet. William IV. was long supposed to have dismissed arbitrarily
Lord Melbourne's cabinet in 1834, and for many years his action in so
doing was freely criticised; but on the publication of the Melbourne
Papers[32:1] it appeared that the Prime Minister himself, meeting with
great difficulty in carrying on the government, virtually suggested the
dismissal to the King; and thus the incident was rather in the nature of
a resignation than a dismissal. The right to dismiss a ministry,
although unquestionably within the legal prerogative of the Crown, seems
to be regarded as one of those powers which the close responsibility of
the cabinet to the House of Commons has practically made obsolete. As in
the case of some other powers, however, it is hardly safe to predict
that it will never be used again, for circumstances might arise in which
it was evident that the ministry and the House of Commons no longer
represented the opinion of the country. Before Mr. Gladstone's last
administration few people would have hesitated to say that the House of
Lords would never again venture to reject a bill on which a House of
Commons, fresh from a general election, was thoroughly in earnest, when
the subject of the bill had been one of the chief issues in that
election. Yet the Lords rejected the last Home Rule Bill of 1893,
without losing popularity by so doing; and in 1906 it destroyed the
Education Bill. It is conceivable that under similar conditions the
Crown might, by dismissing a ministry, force a dissolution, and appeal
to the electorate. Such an event, though highly improbable, cannot be
said to be impossible.
The dismissal of a ministry must, of course, be carefully distinguished
from the dismissal of an individual minister. This would be done, as in
the case of Lord Palmerston,--the last of the kind that has
occurred,--at the request of the Premier, and therefore not contrary to,
but in accordance with, the advice of the person chiefly responsible for
the acts of the Crown.
The other way in which a change of ministry could be brought about by
the Crown would be by a refusal to consent to some act which the
ministry deemed essential to their remaining in office. Some cases of
the exercise of such a right by the representative of the Crown have
taken place in the self-governing colonies, but they are not such as are
likely to occur in England. A request, for example, by the ministry to
be allowed to dissolve a colonial legislature has on several occasions
been refused by the governor, usually on the ground that a general
election had recently been held, or that there was no important issue
pending between the parties which the people could properly be called
upon to decide.[33:1] In England, on the other hand, such a request by a
ministry has never been refused since William Pitt in 1784 invented the
principle that a government faced by a hostile majority in the House of
Commons may appeal to the electorate instead of resigning; nor is it
probable that it will be refused, because the rules of political fair
play are so thoroughly understood among English statesmen that the power
is not likely to be misused for party purposes.
An interesting discussion on the right of a colonial governor to reject
the advice of his ministers was raised in the case of Governor Darling
of Victoria in 1865. The story has been often told. It grew out of a
quarrel between the Assembly and the Legislative Council, which were
both elective, but happened to be on opposite sides in politics. The
Assembly, wishing to enact a protective tariff, to which a majority of
the Council was known to be opposed, tacked it to the annual
appropriation bill; and the Council, unable to amend such a bill,
rejected it altogether. Thereupon the Governor, yielding to the pressure
of his ministers, sanctioned the levy of the new duties, the issue of a
loan, and the payment of official salaries, without the authority of any
act regularly passed by both branches of the legislature. For
permitting, on the advice of his ministers, such a violation of law,
Governor Darling was rebuked, and finally dismissed by the Secretary of
State for the Colonies.[34:1] It is needless to say that no such
situation has ever arisen, or is likely to arise, in England.
[Sidenote: Selection of a New Premier.]
There is one matter in which the Crown cannot really be bound by the
advice of ministers, and that is in the selection of a Premier. It would
be obviously improper, not to say absurd, that the King in the selection
of a new Prime Minister should be obliged to follow the opinion of the
old one who has just resigned in consequence of a change of party in the
House of Commons. That Mr. Balfour, for example, should have had the
right to dictate whether Sir Henry Campbell-Bannerman or Lord Rosebery
should be his successor would have been grotesque. There is usually one
recognised leader of the Opposition, and when that is the case the Crown
must intrust the formation of the new ministry to him. This was
illustrated in 1880. Mr. Gladstone had, some years before, retired from
the leadership of the Liberals in Parliament, and the Queen, after their
success at the general election, sent for Lord Hartington, then leading
them in the House of Commons; but she found that Mr. Gladstone, who had
really led the party in the country to victory, was the only possible
head of a Liberal government.[34:2]
If the party that has obtained a majority in Parliament has no
recognised leader, the Crown may intrust the formation of a ministry to
any one of its chief men who is willing to undertake the task; or if, as
is sometimes the case, the parties have become more or less
disintegrated, so that only a coalition ministry can be formed, the
Crown can send for the head of any one of the various groups. Not to
speak of earlier days, when the King had more freedom than at present in
the formation of his cabinets, it happened several times in the reign of
Queen Victoria that the question who should be Prime Minister was
determined by her personal choice. In 1852, for example, Lord
Aberdeen's coalition cabinet was formed by her desire.[35:1] In 1859 she
selected Lord Palmerston rather than Lord John Russell;[35:2] and in
1868 and 1894, when in each case the existing cabinet lost its head, she
selected the minister who was to succeed, designating in the first case
Mr. Disraeli, and in the last Lord Rosebery.[35:3] Such opportunities,
however, are likely to be less common in future, for it is altogether
probable that a party will prefer to choose its own leader rather than
to leave the selection to the Crown.
[Sidenote: Selection of Other Ministers.]
The choice of the other members of the cabinet is a very different
matter; for although former sovereigns insisted on having a decisive
voice in the composition of the ministry, it may be said that with
Peel's appointment to office in 1834 the principle was definitely
established that the Prime Minister chooses his colleagues, and is
responsible for their selection.[35:4] The royal authority in this
matter gave a last dying flicker in the bed-chamber question of 1839,
where Peel's clumsiness and the Queen's impetuosity gave rise to a
misunderstanding. Peel wished to replace some of the ladies attendant on
the Queen, who were exclusively Whigs, by Conservatives; and the Queen,
getting the impression that he intended to replace them all,
refused.[35:5] When Peel came into office two years later part of the
Whig ladies retired and were replaced; and it has since been settled
that the Mistress of the Robes, like the Gentlemen of the Household,
shall change with the administration, but that the other ladies shall
remain. The Mistress of the Robes, however, must always be a duchess,
and during the last years of the Queen's life it happened that there was
no duchess who was a Liberal.
At the present day all persons whose offices are considered political
are appointed in accordance with the advice of the Prime Minister. This
does not mean that the sovereign may not urge his own views, perhaps
with success, and on one occasion, at least, the Queen secured, it is
said, a place in the cabinet for a former minister whom the incoming
Premier had either forgotten or meant to leave out. It does mean,
however, that if the minister insists upon his advice it must be
accepted. More than once, for example, the Queen tried in vain to
exclude from the Foreign Office Lord Palmerston, who was a constant
grief of mind to her. As Mr. Morley puts it in the chapter, in his "Life
of Walpole," which is understood to express Mr. Gladstone's views upon
the cabinet, "Constitutional respect for the Crown would inspire a
natural regard for the personal wishes of the sovereign in
recommendations to office, but royal predilections or prejudices will
undoubtedly be less and less able to stand against the Prime Minister's
strong view of the requirements of the public service."[36:1]
[Sidenote: For what Acts Ministers are Responsible.]
The responsibilities of the ministers may be classified as technical and
complete. Thus for acts which happen before they come into office, and
which they could not possibly have advised, they assume what may be
called a technical, or perhaps a nominal, responsibility. A premier is
technically responsible for his own selection; but as responsibility of
that kind means merely the obligation to resign on an adverse vote of
the House of Commons, and as he would be obliged to do this in any
event, he assumes no additional responsibility by reason of his own
selection; and the same thing may be said of all acts which happen
before the ministers come into power, and which they do not by accepting
office effectually sanction or condone. They become responsible, for
example, for the condition of the public departments of which they take
charge; and yet it may be for the very purpose of changing that
condition that they were put in office. In other words, there is a
difference between those things for which they are technically
responsible but not to blame, and those things which have been done by
their advice, and for the consequence of which they may be said to be
morally or completely responsible. The distinction is unimportant from
the point of view of the conventions of the constitution, but its
practical consequences are considerable as regards the position of the
cabinet before Parliament and the public. Now the ministers are
completely responsible for all political acts done by the Crown during
their tenure of office, even those which appear to be most directly the
work of the sovereign himself. All communications with the
representatives of foreign powers, for example, pass through their
hands. The creation of peers, the granting of honours, are now
unquestionably subject to their advice; and although when King Edward's
list of coronation honours was announced in 1901, _The Times_ declared
that the names were the personal choice of the monarch, it took pains to
add that the constitutional responsibility must, of course, rest with
the ministers.[37:1]
In short, the ministers direct the action of the Crown in all matters
relating to the government. The King's speech on the opening of
Parliament is, of course, written by them; and they prepare any answers
to addresses that may have a political character. All official letters
and reports to the King, and all communications from him, must pass
through the hands of one of their number. A letter addressed to the
sovereign as such by a subject, or other private person, passes through
the office of the Home Secretary; and even peers, who have a
constitutional right to approach him, must make an appointment for the
interview through the same office. This does not mean that the Crown may
not consult any one it pleases. That question came up in relation to
Prince Albert, whom the ministers at first held at arm's length, and
whose presence at their interviews with the Queen they refused for a
couple of years to permit, while he, on the other hand, called himself
the Queen's "confidential adviser" and "permanent minister."[38:1]
Confidential adviser he certainly was, but minister he certainly was
not, because in the nature of things he could not be responsible for her
acts. Mr. Gladstone in his "Gleanings of Past Years"[38:2] seems to have
defined the true position of the Queen and Prince Consort when he said
that she has a right to take secret counsel with any one, subject only
to the condition that it does not disturb her relation with her
ministers. She cannot, as a rule, consult the Opposition, because they
are directly opposed to the ministry; but she can consult any one else,
provided it does not affect the responsibility of her ministers; that
is, provided that in the end she follows their advice.
[Sidenote: Public and Private Acts of the Crown.]
The ministers are responsible for the public, not the private, acts of
the Crown; but it is sometimes hard to distinguish between the two.
Queen Victoria, for example, had relatives on many of the thrones of
Europe to whom it was absurd that she should not write private letters;
while other crowned heads were constantly writing letters to her on
public business which they did not intend the ministers to see. The rule
was, therefore, adopted that all her correspondence with foreign
sovereigns, not her relatives, should pass through the ministers'
hands,--an arrangement which, though a necessary result of English
responsible government, was galling to the Queen, who was often made to
express in her own handwriting opinions quite different from those which
she really held.[38:3] In domestic matters, also, it is hard to draw the
line between what is public and what is private. The Queen's marriage,
which was felt at the time to have a greater political importance than
it would have to-day, was arranged by herself, without consultation with
her ministers, and merely announced to them. On the other hand, when the
Princess Louise was betrothed to the Marquis of Lorne, Mr. Gladstone
stated in the House of Commons that the marriage with a subject had not
been decided upon without the advice of the ministers of the
Crown.[39:1] The risk of a strong infusion of British blood in the veins
of some future occupant of the throne is, it seems, a political matter,
for which the cabinet must hold itself responsible. But this is not true
of purely social affairs. One of the chief functions of the Crown is
that connected with its duties as the head of the social life of the
capital. These duties the Queen virtually abandoned for many years after
her husband's death; but although there were loud complaints on the part
of the public, the question was not regarded as a political one for
which the ministers could be called to account.
[Sidenote: The King's Name not Brought into Public Controversy.]
Since the King can do no wrong, he can do neither right nor wrong. He
must not be praised or blamed for political acts; nor must his ministers
make public the fact that any decision on a matter of state was actually
made by him.[39:2] His name must not be brought into political
controversy in any way, or his personal wishes referred to in argument,
either within or without Parliament.[39:3] This principle was not fully
recognized until after the accession of Queen Victoria. At the first
election of her reign the Tories complained, apparently with reason,
that the Whigs used her and her name as party weapons,[40:1] and three
years later we find Wellington referring to the Queen as the head of the
party opposed to the Conservatives.[40:2] Almost the only public acts
that can be done by the Crown before the public eye are ceremonies,
public functions, speeches which have no political character and deeds
of kindness that are above criticism. When the Queen, for example, made
her last visit to Ireland, the public were allowed to understand that it
was her own suggestion, and the same thing was true of her order
allowing Irish soldiers to wear the shamrock, it being assumed that such
acts could not have a political bearing, and would excite no hostile
comment.
[Sidenote: Actual Influence of the Sovereign.]
According to the earlier theory of the constitution the ministers were
the counsellors of the King. It was for them to advise and for him to
decide. Now the parts are almost reversed. The King is consulted, but
the ministers decide. It is commonly said that, with the sovereign,
influence has been substituted for power; or as Bagehot puts it in his
own emphatic way, the Crown has "three rights--the right to be
consulted, the right to encourage, the right to warn. And a king of
great sense and sagacity would want no others."[40:3] But after the
advice and warning have been given the final decision must remain with
the ministers. It is for them to determine whether their opinion is of
such importance that they feel obliged to insist upon it in spite of the
objections of the King, and if they do he must yield. Bagehot goes on to
describe how effective the right to advise may become in the hands of a
sage and experienced monarch, but he admits how small the chance must be
that the occupant of the throne will possess the qualities needed for
making a good use of the right, and adds that the attempt of the
ordinary monarch to exercise it would probably do more harm than good.
[Sidenote: He is Consulted after a Decision is Reached.]
Historians have often observed that the absence of the sovereign from
cabinet meetings, since the accession of the House of Hanover, has been
a great factor in the growth of cabinet government. His absence had,
indeed, three distinct effects. It helped to free the individual members
of the cabinet from royal pressure; it made it easier for them to act as
a unit in their relations with the monarch; and it tended to remove him
from the discussion of public policy until it had been formulated. This
last point is highly important, and has a bearing upon the influence of
the King to-day, because it is before the ministers have formed an
opinion that his advice and warning are most effective. It is while some
of them are reluctant and others are hesitating that the weight of his
views has the best chance of turning the scale. After the matter has
been threshed out and an agreement reached the decision is far less
likely to be reversed, or even seriously modified, by his personal
preferences.
Now the sovereign is not usually consulted about matters of domestic
legislation and policy until the opinion of the cabinet has taken shape.
For although he is informed in general terms of what is done at cabinet
meetings, and sometimes discusses with a minister the proposed measures
relating to his department, yet a matter is commonly talked over and
agreed upon by the ministers before it is submitted to him for approval.
In this way "the sovereign is brought into contact only with the net
results of previous inquiry and deliberation,"[41:1] and the views of
the cabinet are "laid before" him "and before Parliament, as if they
were the views of one man."[41:2] Queen Victoria tried, indeed, to
insist upon the right of "commenting on all proposals before they are
matured;"[41:3] but apparently without much success. This was not
equally true, however, of all departments of the government. On the
contrary, after a long struggle with Lord Palmerston, in which she
suffered many exasperating rebuffs, the autocratic foreign minister by
his impulsiveness and lack of perfect candour gave her at last an
advantage. She succeeded in establishing, by the memorandum of August,
1850, the rule that she must be kept informed of foreign correspondence
and despatches before they were sent, so that foreign matters should be
intact and not already compromised when they were brought to her
attention. Mr. Gladstone has criticised the principles laid down at that
time because they meant that the comments of the Premier on despatches
were to be made, not privately to the foreign minister, but after the
draft had been submitted to the Queen.[42:1] In other words, he
complained that the Queen was consulted before the tenor of the despatch
had been finally settled between the Premier and the foreign minister.
His criticism seems, therefore, to be levelled at the practice of
consulting the Crown before the policy has been agreed upon by those who
are responsible for it,[42:2] in this case the Prime Minister and the
Foreign Secretary, for despatches are not ordinarily brought before the
full cabinet for consideration.
The opportunity for an exertion of royal influence is much less in those
matters which are settled in cabinet meeting than in others. In the
former case the sovereign is not usually consulted until the question
has been thoroughly discussed, and the cabinet has reached a decision
which is the more difficult to change because it is often the result of
a compromise, and has, therefore, something of the binding force of an
agreement; whereas, in questions which are not brought directly before
the cabinet, the Crown when consulted has to overcome only the opinion,
and perhaps the hasty opinion, of one or two ministers. This is true in
such matters as the less important foreign relations, ecclesiastical and
other patronage, and the ordinary executive work of the various
departments. But herein another difference must be observed. The
executive action of the government in domestic affairs is usually
brought under very close scrutiny by Parliament, and is subjected to a
galling fire there. Hence the minister, with the volley of questions
levelled at the Treasury Bench ever before his mind, finds it more
difficult in these affairs to yield his opinion to that of the monarch
than he does in the case of foreign negotiations, and of ecclesiastical,
judicial and military patronage, which are not habitually discussed in
Parliament.[43:1] It would seem, therefore, that under ordinary
circumstances the personal influence of the King in political matters is
not likely to be very effectively asserted outside of foreign affairs,
church patronage, and some other appointments to office.
[Sidenote: Personal Influence of Queen Victoria.]
Although one can perceive the general limitations upon the personal
influence of the monarch imposed by the conditions under which it is
exercised, one can never know how vigorously it is being used at the
moment; and, indeed, it is difficult to estimate its actual effect
during any comparatively recent period. There is no use in going back
beyond the reign of Queen Victoria, to times when the parliamentary
system was so imperfectly developed that ministers sometimes gave
individual and contrary advice to the King;[43:2] and since the Queen
came to the throne very little has been published which throws light
upon the subject. From the various memoirs and letters of her ministers
almost everything has been eliminated that bears upon the actual
influence she exerted. Nevertheless certain facts appear. There can be
no doubt that the personal opinions of the monarch were deemed of
greater importance at the time of the Queen's accession than they are
to-day. Of late years, indeed, many popular writers have tended to
neglect the royal influence altogether. With the love of broad
generalisation, which is at once valuable and perilous in political
philosophy, publicists have been in the habit of speaking of the Queen
as a figurehead; but statesmen who have seen the inner life of the
cabinet know that the metaphor is inexact. Mr. Gladstone is reported to
have said that every treatise on the English government which he had
read failed to estimate her actual influence at its true value; and in
his "Gleanings of Past Years"[44:1] he remarks, "there is not a doubt
that the aggregate of direct influence normally exercised by the
sovereign upon the counsels and proceedings of her ministers is
considerable in amount, tends to permanence and solidity of action, and
confers much benefit on the country." Perhaps at a later period he might
have stated this less strongly; and although no final judgment can yet
be formed, one may venture an estimate of the Queen's influence in the
different branches of the government.
[Sidenote: In Domestic Policy.]
The effect of the Queen's personal preferences in the selection of the
Prime Minister and his colleagues has already been discussed, and it may
be added that on two or three occasions a cabinet, instead of resigning
on a defeat in the Commons, dissolved Parliament in deference to her
wishes;[44:2] but except for this it is hard to find definite traces of
her influence upon the general domestic policy of the country. Yet in
some departments, at least, of the public service she took a very lively
interest. At times she was prodigal of suggestions and advice, which
bore, as far as one can see, no positive fruit. She held her opinions
strongly, expressed them boldly, and was frank in her criticism of
measures, but did not succeed apparently in persuading her ministers to
abandon or even to modify them. On more than one occasion she used her
personal influence over the peers to prevent a disagreement between the
Houses, but this was never done to give effect to her own personal
views, and in the case of the Irish Church Disestablishment Bill it was
done to secure the passage of a government measure with which she was
not herself in sympathy.[45:1] In short her personal influence in
domestic affairs, either in the form of initiating policy, or of
effecting changes in that of her ministers, seems to have been very
slight. To this statement, however, a couple of exceptions must be made,
which relate to the Army and the Church. The Queen, who regarded the
Army as peculiarly dependent upon the sovereign, procured the
appointment of a royal duke as Commander-in-Chief, and for a time she
resisted successfully all attempts to change the vague relation of that
office to the Crown,[45:2] although in the end it was made completely
subordinate to the minister responsible to Parliament.[45:3] In the
matter of ecclesiastical appointments her opinions were expressed with
still greater effect, bishops and deans having in several cases been
selected by her, sometimes in preference to candidates proposed by the
Prime Minister.
[Sidenote: In Foreign Affairs.]
But it was in foreign affairs that the Queen's efforts were most
untiring, and on the whole most successful, in spite of many
disappointments. For years she was opposed to Lord Palmerston's
aggressive attitude, and while she never effected a radical change of
policy, she appears at times to have softened it to some extent.[45:4]
Throughout her reign she insisted upon the right to criticise
despatches, and not infrequently she caused changes to be made in them;
sometimes, as in the European crisis of 1859-1861, by appealing from the
Foreign Secretary and the Prime Minister to the cabinet as a
whole.[46:1] The most famous case is that of the Trent Affair in 1861,
where the changes made in a despatch, in accordance with the suggestions
of the Prince Consort a few days before his death, avoided a danger of
serious trouble with the United States. In foreign affairs, therefore,
it is safe to conclude that while the Queen never initiated a policy,
her influence had on several important occasions a perceptible effect in
modifying the policy of her ministers.
[Sidenote: Changes during the Queen's Reign.]
In the closing chapter of his biography of the Queen, Mr. Lee says that
her "personal influence was far greater at the end of her life than at
her accession to the throne. Nevertheless it was a vague intangible
element in the political sphere, and was far removed from the solid
remnants of personal power which had adhered to the sceptre of her
predecessors."[46:2] No doubt her long experience, and the veneration
due to her age and unblemished character, caused her opinions to be
treated with growing respect; but there can be no doubt, also, that the
political influence of the sovereign faded slowly to a narrower and
fainter ray during her reign. One sees this in Peel's remark at her
accession, that the personal character of a constitutional monarch
counteracts the levity of ministers and the blasts of democratic
passions.[46:3] One sees it in the great importance attached at that
time to the persons surrounding the Queen, to the Ladies of the
Bedchamber, to the question of her private secretary, and to the
position of the Prince Consort. The Queen herself seems to have held
views about her own position that were drawn from the past rather than
the present.[46:4] At least this is the impression one forms, and it is
fortified both by her defence of her seclusion in 1864, on the ground
that she had higher duties to discharge which she could not neglect
without injury to the public service; and by her complaint that some of
her ministers did not allow her time enough to consider and decide
public questions, when in reality the decision was not made by her at
all. The Crown has been compared to a wheel turning inside the engine of
state with great rapidity, but producing little effect because
unconnected with the rest of the machinery. This is, no doubt, an
exaggeration; but the actual influence of Queen Victoria upon the course
of political events was small as compared with the great industry and
activity she displayed. What the influence of the sovereign will be in
the future cannot be foretold with precision. It must depend largely
upon the insight, the tact, the skill, the industry and the popularity
of the monarch himself; and as regards any one department, upon his
interest in that department. The monarch is not likely to be inured to a
life of strenuous work, and yet in addition to the political routine,
which is by no means small, his duties, social and ceremonial, are
great. Moreover, with the highest qualifications for the throne, his
opportunities must be very limited, for there is certainly no reason to
expect any growth in irresponsible political authority.
[Sidenote: Utility of the Monarchy; as a Political Force.]
Bagehot's views upon the utility of the monarchy have become classic.
Recognising the small chance that an hereditary sovereign would possess
the qualities necessary to exert any great influence for good upon
political questions, he did not deem the Crown of great value as a part
of the machinery of the state; and he explained at some length how a
parliamentary system of government could be made to work perfectly well
in a republic, although up to that time such an experiment had never
been tried. But he thought the Crown of the highest importance in
England as the dignified part of the government. Writing shortly before
the Reform Bill of 1867, he dreaded the extension of democracy in Great
Britain, for he had a low opinion of the political capacity of the
English masses. He felt that the good government of the country depended
upon their remaining in a deferential attitude towards the classes
fitted by nature to rule the state, and he regarded the Crown as one of
the strongest elements in keeping up that deferential attitude.
According to his conception of English polity the lower classes believed
that the government was conducted by the Queen, whom they revered, while
the cabinet, unseen and unknown by the ignorant multitude, was thereby
enabled to carry on a system which would be in danger of collapsing if
the public thoroughly understood its real nature. Whatever may have been
the case when Bagehot wrote, this state of things is certainly not true
to-day. The English masses have more political intelligence than he
supposed, or more political education than when he wrote. A traveller in
England does not meet to-day people who think that the country is
governed by the King, nor does he find any ignorance about the cabinet,
or any illusions about the part played by the chief leaders in
Parliament. The English workingman is now bombarded from the platform,
in the newspapers and in political leaflets, with electioneering appeals
which do not refer to the King, but discuss unceasingly the party
leaders and their doings. The political action of the Crown is, in fact,
less present to men's minds than it was half a century ago. Mr. Lee
tells us that he was impressed by the outspoken criticism of the Queen's
actions in the early and middle years of her reign.[48:1] To-day the
social and ceremonial functions of the Crown attract quite as much
interest as ever; but as a political organ it has receded into the
background, and occupies less public attention than it did formerly. The
stranger can hardly fail to note how rarely he hears the name of the
sovereign mentioned in connection with political matters; and when he
does hear it the reference is only too apt to be made by way of
complaint. If the foreign policy is unpopular, if there is delay in the
formation of a cabinet, one may hear utterly unfounded rumours
attributing the blame to the King. Even if a committee of inquiry is
thought not to have probed some matter to the bottom, it is perhaps
whispered that persons in favour at court are involved. Fortunately such
reports are uncommon. In general the growth of the doctrine of royal
irresponsibility has removed the Crown farther and farther out of the
public sight, while the spread of democracy has made the masses more and
more familiar with the actual forces in public life. One may dismiss,
therefore, the idea that the Crown has any perceptible effect to-day in
securing the loyalty of the English people, or their obedience to the
government.
On the other hand, the government of England is inconceivable without
the parliamentary system, and no one has yet devised a method of working
that system without a central figure, powerless, no doubt, but beyond
the reach of party strife. European countries that had no kings have
felt constrained to adopt monarchs who might hold a sceptre which they
could not wield; and one nation, disliking kings, has been forced to set
up a president with most of the attributes of royalty except the title.
If the English Crown is no longer the motive power of the ship of state,
it is the spar on which the sail is bent, and as such it is not only a
useful but an essential part of the vessel.
[Sidenote: As a Social and Moral Force.]
The social and ceremonial duties of the Crown are now its most
conspicuous, if not its most important, functions. There can be no
question that the influence of the Queen and her court was a powerful
element in the movement that raised the moral tone of society during the
first half of the last century. But such an influence must vary with the
personal character of the monarch. It may be exerted for good or for
evil; and it may not be so strong in the future as it has been in the
past.
[Sidenote: As a Pageant.]
In its relation to the masses royalty may be considered in another
aspect. Within a generation there has been a great growth of interest in
ceremony and dress. Antiquated customs and costumes have been revived,
and matters of this kind are regarded by many people as of prime
importance. A kindred result of the same social force has been a marked
increase in what Bagehot called the spirit of deference, and what those
who dislike it call snobbishness--a tendency by no means confined to the
British Isles. All this has exalted the regard for titles and offices,
and enhanced the attractiveness of those who bear them. In prestige the
titled classes have profited thereby, and although their position is
less and less dependent upon court favour, the royal family has also
profited directly. The presence of some one of its members is sought at
ceremonies of all kinds, whether it be the opening of a new building,
the inauguration of a charity, or an anniversary celebration at a
university. The attendance of the King on such occasions insures an
extended report in all the newspapers of the country, and is, therefore,
a most effective form of advertisement.
[Sidenote: As a Symbol.]
A century or more ago people who had learned nothing from the history of
Greece or Rome, and above all of Venice, were wont to assert that the
sentiment of loyalty requires a person for its object. No one would make
such a statement now. No one pretends that the English would be less
patriotic under a republic; and yet with the strengthening conception of
the British Empire, the importance of the Crown as the symbol of
imperial unity has been more keenly felt. To most countries the visible
symbol of the state is the flag; but curiously enough there is no
British national flag. Different banners are used for different
purposes; the King himself uses the Royal Standard; ships of war carry
at the peak the White Ensign; naval reserve vessels fly the Blue Ensign,
and merchantmen the Red Ensign; while the troops march, and Parliament
meets, under the Union Jack; and all of these are freely displayed on
occasions of public rejoicing. There is a tendency at the moment to
speak of the Union Jack as the national flag, but a recent occurrence
will illustrate how far this is from being justified. A British subject
residing at Panama had been in the habit of flying the Red Ensign,
until one day he hoisted in its place the Union Jack. Now, according to
the regulations the Jack is displayed from the consulates, and the
British consul requested his patriotic fellow-citizen not to use it on
his private house. The question was finally referred to the British
Foreign Office, which in deference to a law of Panama forbidding all
private display of alien flags, supported the position of the consul,
but refrained from expressing any opinion on the right of an English
citizen to hoist the Union Jack in foreign parts.[51:1] Each of the
self-governing colonies has, moreover, its own flag, which consists of
the Union Jack with some distinctive emblem upon it. One of the first
acts of the new Commonwealth of Australia was to adopt a separate flag
of this kind. The government held a competition in designs, and some
thirty thousand were presented. From these one was selected which showed
at the same time the connection with the empire and the self-dependence
of the commonwealth. It is the Union Jack with a southern cross and a
six-pointed star at one end,--a design that seems to have been more
shocking to heraldic than to imperialist sensibilities.
The Crown is thus the only visible symbol of the union of the empire,
and this has undoubtedly had no inconsiderable effect upon the reverence
felt for the throne.
[Sidenote: Popularity of the Monarchy.]
Whatever the utility of the Crown may be at the present time, there is
no doubt of its universal popularity. A generation ago, when the Queen,
by her seclusion after the death of Prince Albert, neglected the social
functions of the court, a number of people began to have serious doubts
on the subject. This was while republican ideals of the earlier type
still prevailed, and before men had learned that a republic is
essentially a form of government, and not necessarily either better or
worse than other forms. The small republican group in England thought
the monarchy useless and expensive; but people have now learned that
republics are not economical, and that the real cost of maintaining the
throne is relatively small.[52:1] So that while the benefits derived
from the Crown may not be estimated more highly, or admitted more
universally than they were at that time, the objections to the monarchy
have almost entirely disappeared, and there is no republican sentiment
left to-day either in Parliament or the country.
FOOTNOTES:
[27:1] If a person has a claim against the Crown for breach of contract,
or because his property is in its possession, he may bring a Petition of
Right, and the Crown on the advice of the Home Secretary will order the
petition indorsed "Let right be done," when the case proceeds like an
ordinary suit.
[27:2] Anson, II., 4, 5, 42, 43, 278, 279, 476-80. But a servant of the
Crown is not liable on its contracts, for he has made no contract
personally, and he cannot be compelled to carry out the contracts of the
Crown. Gidley _vs._ Lord Palmerston, 3 B. & B., 284. The rule that the
sovereign cannot be sued has been held to prevent a possessory action
against a person wrongfully in the possession of land as agent of the
Crown: Doe. d. Legh. _vs._ Roe., 8 M. & W., 579. It would seem that in
such a case the courts might have held that as the King could do no
wrong, the wrongful act, and consequently the possession, was not his;
in other words, that the agency could not be set up as a defence to the
wrongful act. Compare United States _vs._ Lee, 106 U.S., 196, where land
had been illegally seized by the government of the United States.
[28:1] Coke, Inst. (4 Ed.), II, 186-87. "Hussey Chief Justice reported,
that Sir John Markham said to King E. I. that the King could not arrest
any man for suspicion of Treason, or Felony, as any of his Subjects
might, because if the King did wrong, the party could not have his
Action."
[29:1] Anson, II., 27, 42-54. Dicey, "The Privy Council," 34 _et seq._
[29:2] Dicey, _Ibid._, 40-42.
[30:1] Mahon and Cardwell, "Memoirs by Sir Robert Peel," II., 31.
[30:2] Todd, "Parl. Govt. in England," 2 Ed., I., 266.
[32:1] Pp. 220-26.
[33:1] A description of these cases may be found in Todd, "Parl. Govt.
in the British Colonies," 525-73.
[34:1] Todd, "Parl. Govt. in the British Colonies," 105 _et seq._
[34:2] _Cf._ Morley, "Life of Gladstone," Book II., Ch. vii.
[35:1] Sidney Lee, "Life of Queen Victoria," 1 Ed., 232-33.
[35:2] Ashley's "Life of Lord Palmerston," II., 154-57. Lee, "Life of
Queen Victoria," 296.
[35:3] Lee, _Ibid._, 511.
[35:4] Todd, "Parl. Govt. in England," 2 Ed., I., 323 _et seq._
[35:5] Parker, "Sir Robert Peel," II., 391 _et seq._, and Lee, "Life of
Queen Victoria," 97-103.
[36:1] Morley, "Walpole," 158.
[37:1] _The Times_, June 26, 1902.
[38:1] Martin, "Life of the Prince Consort," 4 Ed., I., 74.
[38:2] I., 73.
[38:3] Lee, "Life of Queen Victoria," 1 Ed., 211-13.
[39:1] Todd, "Parl. Govt. in England," 2 Ed., I., 266, note _y_. Hans.,
3 Ser. CCIV., 173, 370.
[39:2] Disraeli's opponents were right for criticising him for letting
it be known that it was the Queen who had decided whether to accept his
resignation or to dissolve in 1868: Hans., 3 Ser. CXCI., 1705, 1724,
1742, 1788, 1794, 1800, 1806, 1811. There was no objection to allowing
her to decide if he pleased,--that is, he might accept her opinion as
his own,--but he ought to have assumed in public the sole responsibility
for the decision.
[39:3] In 1876 Mr. Lowe in a public speech expressed his belief that the
Queen had urged previous ministers in vain to procure for her the title
of Empress of India. The matter was brought to the attention of the
House of Commons, and he was forced to make an apology, which was
somewhat abject, the Queen through the Prime Minister having denied the
truth of his statement: Hans., 3 Ser. CCXXVIII., 2023 _et seq._; and
CCXXIX., 52-53.
An apparent, though not a real, exception may be found in the rule which
requires that before a bill affecting the prerogative can be introduced
into Parliament, notice of the King's assent thereto must be given. If
the bill affects only the private property of the Crown it is not a
political matter. If it affects the public powers of the Crown, then the
assent is given on the responsibility of the ministers.