which changes are wrought in the English constitution to-day is that
of parliamentary enactment. It is to be observed that in Great Britain
there is not, nor has there ever been, any attempt to draw a line of
distinction between powers that are constituent and powers that are
legislative. All are vested alike in Parliament, and in respect to the
processes of enactment, repeal, and revision there is no difference
whatsoever between a measure affecting the fundamental principles of
the governmental system and a statute pertaining to the commonest
subject of ordinary law. "Our Parliament," observes Mr. Anson, "can
make laws protecting wild birds or shell-fish, and with the same
procedure could break the connection of Church and State, or give
political power to two millions of citizens, and redistribute it among
new constituencies."[54] The keystone of the law of the constitution
is, indeed, the unqualified omnipotence which Parliament possesses in
the spheres both of constitution-making and of ordinary legislation.
In Parliament is embodied the supreme will of the nation; and although
from time to time that will may declare itself in widely varying and
even inconsistent ways, at any given moment its pronouncements are
conclusive.
[Footnote 54: Law and Custom of the Constitution,
4th ed., I., 358.]
*46. What are "Constitutional" Laws?*--From this unrestricted
competence of Parliament arise two highly important facts. One of them
is that the distinction between "constitutional" laws, on the one
hand, and ordinary statutes, on the other, is neither so obvious nor
so essential as under most governmental systems. The concept, (p. 046)
even, of constitutional law has developed but slowly among the
English, and the phrase is as yet seldom employed in legal discussion.
In the United States constitutional amendments or addenda, in so far
at least as they assume written form, emanate from sources and by
processes different from those that obtain in the enactment of
ordinary statutes. In most continental nations the constituent process
is at least somewhat different from that employed in the enactment of
simple laws. And these specially devised processes are designed to
emphasize the essential differentiation of the product from the
handiwork of the ordinary legislative bodies. In Great Britain,
however, there is, as has appeared, no difference of process, and the
distinction between the law of the constitution and ordinary statute
law is not infrequently all but impossible to trace. If it is to be
traced at all, it must be derived from the circumstances of enactment.
Some measures, e.g., the Habeas Corpus Act, the Act of Settlement, and
the Parliament Act of 1911, relate obviously to the most fundamental
and enduring aspects of state. Others just as clearly have to do with
ephemeral and purely legislative concerns. Precisely where the line
should be drawn between the two no man can say. It is, in the opinion
of Mr. Bryce, because of this obstacle primarily that no attempt has
been made to reduce the English constitution to the form of a single
fundamental enactment.[55]
[Footnote 55: Studies in History and Jurisprudence,
I., No. 3.]
*47. All Parts of the Constitution subject to Amendment.*--In the second
place, no portion whatsoever of the constitution is immune from
amendment or abrogation at the hand of Parliament. So forcefully was
the French observer De Tocqueville impressed with this fact that he
went so far as to assert that there really is no such thing as an
English constitution at all.[56] De Tocqueville wrote, however, from
the point of view of one who conceives of a constitution as of
necessity 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";[57] and this conception is recognized universally
nowadays to be altogether inadequate. There is, in every proper sense,
an English constitution. No small portion of it, indeed, is in written
form. And it is worth observing that in practice there is tending to
be established in England in our own day some measure of that (p. 047)
distinction between constituent and legislative functions which
obtains in other countries. There is no disposition to strip from
Parliament its constituent powers; but the feeling is gaining ground
that when fundamental and far-reaching innovations are contemplated
action ought not to be taken until after there shall have been an
appeal to the nation through the medium of a general election at which
the desirability of the proposed changes shall be submitted as a clear
issue. The principle, broadly stated, is that Parliament ought to
exercise in any important matter its constituent powers only under the
sanction of direct popular mandate. It was essentially in deference to
this principle that the elections of December, 1910, turning squarely
upon the issue of the reform of the House of Lords, were ordered.
Thus, while in numerous continental countries the distinction between
constituent and legislative functions is being nowadays somewhat
relaxed, in Great Britain there is distinctly a tendency to establish
in a measure a differentiation in this matter which long has been in
practice non-existent.
[Footnote 56: "In England the Parliament has an
acknowledged right to modify the constitution; as,
therefore, the constitution may undergo perpetual
changes, it does not in reality exist (_elle
n'existe point_); the Parliament is at once a
legislative and a constituent assembly." OEuvres
Complètes; I., 166-167.]
[Footnote 57: Lowell, Government of England, I.,
2.]
In effect, every measure of Parliament, of whatsoever nature and under
whatsoever circumstances enacted, is "constitutional," in the sense
that it is legally valid and enforceable. When an Englishman asserts
of a measure that it is unconstitutional he means only that it is
inconsistent with a previous enactment, an established usage, the
principles of international law, or the commonly accepted standards of
morality. Such a measure, if passed in due form by Parliament, becomes
an integral part of the law of the land, and as such will be enforced
by the courts. There is no means by which it may be rendered of no
effect, save repeal by the same or a succeeding parliament. In
England, as in European countries generally, the judicial tribunals
are endowed with no power to pass upon the constitutional validity of
legislative acts. Every such act is _ipso facto_ valid, whether it
relates to the most trivial subject of ordinary legislation or to the
organic arrangements of the state; and no person or body, aside from
Parliament itself, possesses a right to override it or to set it
aside.[58]
[Footnote 58: For brief discussions of the general
nature of the English constitution see A. L.
Lowell, Government of England, 2 vols. (New York,
1909), I., 1-15; T. F. Moran, Theory and Practice
of the English Government (new ed., New York,
1908), Chap. 1; J. A. R. Marriott, English
Political Institutions (Oxford, 1910), Chaps. 1, 2;
J. Macy, The English Constitution (New York, 1897),
Chaps. 1, 9; and S. Low, The Governance of England
(London, 1904), Chap. 1. A suggestive
characterization is in the Introduction of W.
Bagehot, The English Constitution (new ed., Boston,
1873). A more extended and very incisive analysis
is Dicey, Introduction to the Study of the Law of
the Constitution, especially the Introduction and
Chaps. 1-3, 13, 14-15.]
CHAPTER III (p. 048)
THE CROWN AND THE MINISTRY
I. THE CROWN: LEGAL STATUS AND PRIVILEGES
*48. Contrasts of Theory and Fact.*--The government of the United
Kingdom is in ultimate theory an absolute monarchy, in form a limited,
constitutional monarchy, and in fact a thoroughgoing democracy.[59] At
its head stands the sovereign, who is at the same time the supreme
executive, a co-ordinate legislative authority (and, in theory, much
more than that), the fountain of justice and of honor, the "supreme
governor" of the Church, the commander-in-chief of the army and navy,
the conservator of the peace, and the _parens patriae_ and _ex
officio_ guardian of the helpless and the needy. In law, all land is
held, directly or indirectly, of him. Parliament exists only by his
will. Those who sit in it are summoned by his writ, and the privilege
of voting for a member of the lower chamber is only a franchise, not a
right independent of his grant. Technically, the sovereign never dies;
there is only a demise of the crown, i.e., a transfer of regal
authority from one person to another, and the state is never without a
recognized head.
[Footnote 59: From this essential incongruity of
theory, form, and fact arises the special
difficulty which must attend any attempt to
describe with accuracy and completeness the British
constitutional system. In the study of every
government the divergences of theory and fact must
be borne constantly in mind, but nowhere are these
divergences so numerous, so far-reaching, or so
fundamental as in the government of the United
Kingdom.]
The assertions that have been made represent with substantial accuracy
the ultimate theory of the status of the crown in the governmental
system. In respect to the form and fact of that system as it actually
operates, however, it would hardly be possible to make assertions that
would convey a more erroneous impression. The breadth of the
discrepancy that here subsists between theory and fact will be made
apparent as examination proceeds of the organization and workings of
the executive, the legislative, and the judicial departments of the
government of the realm. It is necessary first of all, however, to
give attention to certain of the more external aspects of the position
which the monarch occupies.
*49. Title to the Throne: the Act of Settlement, 1701.*--Since (p. 049)
the Revolution of 1688 title to the English throne has been based
solely upon the will of the nation as expressed in parliamentary
enactment. The statute under which the succession is regulated is the
Act of Settlement, passed by the Tory parliament of 1701, by which it
was provided that, in default of heirs of William III. and Anne, the
crown and all prerogatives thereto appertaining should "be, remain,
and continue to the most Excellent Princess Sophia, and the heirs of
her body, being Protestants."[60] Sophia, a granddaughter of James I.,
was the widow of the Elector of Hanover, and although in 1701 she was
not first in the natural order of succession she was first among the
surviving heirs who were Protestants. It was by virtue of the act
mentioned that, upon the death of Anne in 1714, the throne devolved
upon the son of the German Electress (George I.). The present
sovereign, George V., is the eighth of the Hanoverian dynasty.
Although it would be entirely within the competence of Parliament to
repeal the Act of Settlement and to vest the crown in a member of some
house other than the Hanoverian, there is, of course, no occasion for
such an act, and the throne may be expected to continue to pass from
one member of the present royal family to another in strict accordance
with the principles of heredity and primogeniture. The rules of
descent are essentially identical with those governing the inheritance
of real property at common law.[61] Regularly, the sovereign's eldest
son, the Prince of Wales,[62] inherits. If he be not alive, the
inheritance passes to his issue, male or female. If there be none, the
succession devolves upon the sovereign's second son, or upon his
issue; and in default thereof, upon the eldest son who survives, or
his issue. If the vacancy be not supplied by or through, a son,
daughters and their issue inherit after a similar order. No Catholic
may inherit, nor anyone marrying a Catholic; and by the Act of 1701 it
was stipulated that every person who should attain the throne "shall join
in communion with the Church of England as by law established." (p. 050)
If after accession the sovereign should avow himself a Catholic, or
should marry a Catholic, his subjects would be absolved from their
allegiance. It is required, furthermore, that the sovereign shall take
at his coronation an oath wherein the tenets of Catholicism are
abjured. Until 1910 the phraseology of this oath, formulated as it was
in a period when ecclesiastical animosities were still fervid,[63] was
such as to be offensive not only to Catholics but to temperate-minded
men of all faiths. By act of parliament passed in anticipation of the
coronation of George V., the language employed in the oath was made
very much less objectionable. The sovereign is required now merely to
declare "that he is a faithful Protestant and that he will, according
to the true intent of the enactments which secure the Protestant
succession to the throne of the Realm, uphold and maintain the said
enactments to the best of his power according to law."
[Footnote 60: The text of the Act of Settlement is
printed in Stubbs, Select Charters, 528-531; Adams
and Stephens, Select Documents, 475-479; and Gee
and Hardy, Documents Illustrative of English Church
History, 664-670, As safeguards against dangers
which might conceivably arise from the accession of
a foreign-born sovereign the Act stipulated (1)
that no person who should thereafter come into
possession of the crown should go outside the
dominions of England, Scotland, or Ireland, without
consent of Parliament, and (2) that in the event
that the crown should devolve upon any person not a
native of England the nation should not be obliged
to engage in any war for the defense of any
dominions or territories not belonging to the crown
of England, without consent of Parliament.]
[Footnote 61: Lowell, Government of England, I.,
17.]
[Footnote 62: This title was created by Edward I.
in 1301. Its possession has never involved the
exercise of any measure of political power.]
[Footnote 63: The words to be employed were
prescribed originally in the Act for Establishing
the Coronation Oath, passed in the first year of
William and Mary. For the text see Robertson,
Select Statutes, Cases, and Documents, 65-68. An
historical sketch of some value is A. Bailey, The
Succession to the English Crown (London, 1879).]
*50. Regencies.*--The age of majority of the sovereign is eighteen. The
constitutions of most monarchical states contain more or less
elaborate stipulations respecting the establishment of a regency in
the event of the sovereign's minority or incapacitation. In Great
Britain, on the contrary, the practice has been to make provision for
each such contingency when it should arise. A regency can be created
and a regent designated only by act of Parliament. Parliamentary
enactments, however, become operative only upon receiving the assent
of the crown, and it has sometimes happened that the sovereign for
whom a regent was required to be appointed was incapable of performing
any governmental act. In such a case, there has been resort usually to
some legal fiction by which the appearance, at least, of regularity
has been preserved. A regency act regularly defines the limits of the
regent's powers and establishes specific safeguards in respect to the
interests of both the sovereign and the nation.[64]
[Footnote 64: For the text of the Regency Act of
1811, passed by reason of the incapacitation of
George III., see Robertson, Statutes, Cases and
Documents, 171-182. For an excellent survey of the
general subject see May and Holland, Constitutional
History of England, I., Chap. 3.]
*51. Royal Privileges: the Civil List.*--The sovereign is capable of
owning land and other property, and of disposing of it precisely as
may any private citizen. The vast accumulations of property, however,
which at one time comprised the principal source of revenue of the
crown, have become the possession of the state, and as such are
administered entirely under the direction of Parliament. In lieu (p. 051)
of the income derived formerly from land and other independent sources
the sovereign has been accorded for the support of the royal household
a fixed annual subsidy--voted under the designation of the Civil
List--the amount of which is determined afresh at the beginning of
each reign. The Civil List was instituted by an act of 1689 in which
Parliament settled upon the king for the meeting of personal expenses,
the payment of civil officers, and other charges, a stipulated sum,
thus separating for the first time the private expenditures of the
crown from the public outlays of the nation.[65] The sum given William
III. was £700,000. George III., in return for a fixed Civil List,
surrendered his interest in the hereditary revenues of the crown, and
William IV. went further and, in return for a Civil List of £510,000 a
year, surrendered not only the hereditary revenues but also a large
group of miscellaneous and casual sources of income.[66] At the
accession of Queen Victoria the Civil List was fixed at £385,000. The
amount was comparatively small, but opportunity was taken at the time
finally to transfer to Parliament the making of provision for all
charges properly incident to the maintenance of the state. In addition
to various annuities payable to the children of the royal family, the
Civil List of Edward VII., established by Act of July 2, 1901,
amounted to £470,000, of which £110,000 was appropriated to the privy
purse of the king and queen, £125,000 to salaries and retiring
allowances of the royal household, and £193,000 to household expenses.
At the accession of George V., in 1910, the Civil List was continued
in the sum of £470,000.[67]
[Footnote 65: Under Charles II. Parliament began to
appropriate portions of the revenue for specific
purposes, and after 1688 this became the general
practice. Throughout a century the proceeds of
particular taxes were appropriated for particular
ends. But in 1787 Pitt simplified the procedure
involved by creating a single Consolidated Fund
into which all revenues were turned and from which
all expenditures were met.]
[Footnote 66: Accuracy requires mention of the fact
that, by exception, the crown still enjoys the
revenues of the Duchy of Lancaster and the Duchy of
Cornwall, the latter being part of the appanage of
the Prince of Wales.]
[Footnote 67: On the history of the Civil List see
May and Holland, Constitutional History of England,
I., 152-175.]
The sovereign enjoys unrestricted immunity from political
responsibility and from personal distraint. The theory of the law has
long been that the king can do no wrong, which means that for his
public acts the sovereign's ministers must bear complete responsibility
and for his private conduct he may not be called to account in any
court of law or by any legal process. He cannot be arrested, his goods
cannot be distrained, and as long as a palace remains a royal
residence no sort of judicial proceeding can be executed in it. (p. 052)
Strictly, the revenues are the king's, whence it arises that the king
is himself exempt from taxation, though lands purchased by the privy
purse are taxed. And there are numerous minor privileges, such as the
use of special liveries and a right to the royal salute, to which the
sovereign, as such, is regularly entitled.
II. THE POWERS OF THE CROWN
*52. Sources: the Prerogative.*--Vested in the crown is, in the last
analysis, an enormous measure of authority. The sum total of powers,
whether or not actually exercised by the sovereign immediately, is of
two-fold origin. There are powers, in the first place, which have been
defined, or conferred outright, by parliamentary enactment. Others
there are, however--more numerous and more important--which rest upon
the simple basis of custom or the Common Law. Those powers which
belong to the statutory group are, as a rule, specific and easily
ascertainable. But those which comprise the ancient customary rights
of the crown, i.e., the prerogative, are not always possible of exact
delimitation. The prerogative is defined by Dicey as "the residue of
discretionary or arbitrary authority which at any time is legally left
in the hands of the crown."[68] The elements of it are to be
ascertained, not from statutes but from precedents, and the sources of
it, as enumerated by Anson, are (1) the residue of the executive power
which the king in the early stages of English history possessed in all
of the branches of government; (2) survivals of the power once
accruing to the king as the feudal chief of the country; and (3)
attributes with which the crown has been invested by legal theory, e.g.,
the attribute of perpetuity popularly expressed in the aphorism
"the king never dies," and that of perfection of judgment, similarly
expressed in the saying "the king can do no wrong."[69] The most
considerable element in the prerogative is that which Anson first
mentions, i.e., the power which the king has carried over, in the
teeth of the popularization of the governmental system, from days when
the royal authority was not hedged about as since the seventeenth
century it has been. It is further to be observed that no
inconsiderable portion of the royal powers as they exist to-day
represent original prerogative worked over and delimited by
parliamentary enactment, so that in many instances it becomes
difficult to determine whether a given power exists by virtue of a
statute, by which it is to be regarded as absolutely defined, or (p. 053)
by virtue of an anterior prerogative which may be capable of being
stretched or interpreted more or less arbitrarily. Nominally, the
sovereign still holds by divine right. At the head of every public
writ to-day stand the words "George V., by the Grace of God of Great
Britain and Ireland King." But no principle of the working
constitution is more clearly established than that in accordance with
which the prerogatives of the crown may be defined, restricted, or
extended by the supreme legislative power. Among prerogatives once
claimed and exercised, but long since rendered obsolete by prohibitive
legislation may be mentioned those of imposing taxes without
parliamentary consent, suspending or dispensing with laws, erecting
tribunals not proceeding according to the ordinary course of justice,
declaring forfeit the property of convicted traitors,[70] purveyance,
pre-emption, and the alienation of crown lands at pleasure.
[Footnote 68: Law of the Constitution (7th ed.),
420.]
[Footnote 69: Law and Custom of the Constitution,
II., Pt. I., 3-5.]
[Footnote 70: Abolished by the Felony Act of 1870.]
*53. Powers, Theoretical and Actual.*--It is not, however, the origin of
the royal power, but rather the manner of its exercise, that fixes the
essential character of monarchy in Great Britain to-day. The student
of this phase of the subject is confronted at the outset with a
paradox which has found convenient expression in the aphorism that the
king reigns but does not govern. The meaning of the aphorism is that,
while the sovereign is possessed of all of the inherent dignity of
royalty, it is left to him actually to exercise in but a very
restricted measure the powers which are involved in the business of
government. Technically, all laws are made by the crown in parliament;
all judicial decisions are rendered by the crown through the courts;
all laws are executed and all administrative acts are performed by the
crown. But in point of fact laws are enacted by Parliament
independently; verdicts are brought in by tribunals whose immunity
from royal domination is thoroughly assured; and the executive
functions of the state are exercised all but exclusively by the
ministers and their subordinates. One who would understand what
English monarchy really is must take account continually both of what
the king does and may do theoretically and of what he does and may do
in actual practice. The matter is complicated further by the fact that
powers once possessed have been lost, that others which have never
been formally relinquished have so long lain unused that the question
may fairly be debated whether they still exist, and that there never
has been, nor is likely ever to be, an attempt to enumerate
categorically or to define comprehensively the range of powers, either
theoretical or actual.
*54. Executive Powers.*--Disregarding for the moment the means of their
actual exercise, the powers of the crown to-day may be said to (p. 054)
fall into two principal groups. The first comprises those which are
essentially executive in character; the second, those which are shared
with the two houses of Parliament, being, therefore chiefly legislative.
The first group is distinctly the more important. It includes: (1) the
appointment, directly or indirectly, of all national public officers,
except some of the officials of the parliamentary chambers and a few
unimportant hereditary dignitaries; (2) the removal, upon occasion, of
all appointed officers except judges, members of the Council of India,
and the Comptroller and Auditor General; (3) the execution of all laws
and the supervision of the executive machinery of the state throughout
all its branches; (4) the expenditure of public money in accordance
with appropriations voted by Parliament; (5) the pardoning of
offenders against the criminal law, with some exceptions, either
before or after conviction;[71] (6) the granting, in so far as not
prohibited by statute, of charters of incorporation; (7) the creating
of all peers and the conferring of all titles and honors; (8) the
coining of all money; (9) the summoning of Convocation and, by reason
of the headship of the Established Church, the virtual appointment of
the archbishops, bishops, and most of the deans and canons; (10) the
supreme command of the army and navy, involving the raising and
control of the armed forces of the nation, subject to such conditions
only as Parliament may impose; (11) the representing of the nation in
all of its dealings with foreign powers, including the appointment of
all diplomatic and consular agents and the negotiation and conclusion
of peace; and (12) the exercise, largely under statutory authority
conferred within the past half-century, of supervision or control in
respect to local government, education, public health, pauperism,
housing, and a wide variety of other social and industrial interests.
[Footnote 71: This power, in practice, is seldom
exercised. The Act of Settlement prescribed that
"no pardon shall be pleadable to an impeachment by
the Commons in parliament."]
*55. The Composition of the Executive.*--The executive branch of the
government, through whose agency these powers are exercised, consists
of the sovereign, the ministry, and the entire hierarchy of
administrative officials reaching downwards from the heads of
departments and the under-secretaries at London through the several
grades of clerks to the least important revenue and postal employees.
There are various points of view from which the chief of the executive
may be conceived of as the sovereign, the prime minister, the ministry
collectively, or the king and ministry conjointly. So far as executive
functions go, the sovereign, in law, is very nearly as supreme as (p. 055)
in the days of personal and absolute monarchy. The ministers are but
his advisers, the local administrative authorities his agents. The
government is conducted wholly in his name. In practice, however,
supreme executive acts of the kinds that have been mentioned are
performed by the ministers; or, if performed by the crown immediately,
will not be undertaken without the ministers' knowledge and assent.
The ministers, and not the sovereign, may be held to account by
parliament for every executive act performed, and it is but logical
that they should control the time and tenor of such acts. It falls
very generally to the prime minister to speak for and otherwise
represent the ministerial group. On the whole, however, it accords
best with both law and fact to consider the executive under the
working constitution as consisting of the crown as represented and
advised by the ministry.
*56. The Crown and Legislation.*--The second general group of powers
lodged in the crown comprises those which relate to legislation.
Technically, all legislative authority is vested in "the king in
parliament," by which is meant the king acting in collaboration with
the two houses. Parliament transacts business only during the pleasure
of the crown. The crown summons and prorogues the houses, and it is
empowered at any time to dissolve the House of Commons. No
parliamentary act, furthermore, is valid without the crown's assent.
It is on the legislative, rather than the executive side, none the
less, that the crown has lost most heavily in actual authority. There
was a time when the crown possessed inherent law-making power and
through the agency of proclamations and ordinances contributed
independently to the body of enforceable law. To-day the sovereign may
exercise no such power, save alone in the crown colonies. It is true
that ordinances with the force of law are still issued, and that their
number and importance tend steadily to be increased. But in all cases
these ordinances have been, and must be, authorized specifically by
statute. As "statutory orders" they emanate from a delegated authority
purely and bear no relation to the ancient ordinance by prerogative.
The king may not even, by virtue of any inherent power, promulgate
ordinances in completion of parliamentary statutes--the sort of thing
which the French president, the Italian king, and virtually every
continental ruler may do with full propriety. Of his own authority,
furthermore, the sovereign may not alter by one jot or tittle the law
of the land. There was a time when the crown claimed and exercised the
right to suspend, or to dispense with, laws which had been duly enacted
and put in operation. But this practice was forbidden definitely (p. 056)
in the Bill of Rights, and no sovereign since the last Stuart has
sought to revive the prerogative. Still another aspect of the ancient
participation by the king in the legislative function was the
influencing of the composition of the House of Commons through the
right to confer upon boroughs the privilege of electing members. This
right, never expressly withdrawn, is regarded now as having been
forfeited by disuse. Finally, the power to withhold assent from a
measure passed in Parliament has not been exercised since the days of
Queen Anne,[72] and while legally it still exists, it is conceded for
all practical purposes to have been extinguished.
[Footnote 72: In 1707, when the Queen refused her
assent to a bill for settling the militia in
Scotland.]
*57. Principles Governing the Actual Exercise of Powers.*--After full
allowances have been made, the powers of the British crown to-day
comprise a sum total of striking magnitude. "All told," says Lowell,
"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.... 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."[73]
[Footnote 73: Government of England, I., 23, 26.]
The next fundamental thing to be observed is that the extended powers
here referred to are exercised, not by the king in person, but by
ministers with whose choosing the sovereign has but little to do and
over whose acts he has only an incidental and extra-legal control.
Underlying the entire constitutional order are two principles whose
operation would seem to reduce the sovereign to a sheer nonentity. The
first is that the crown shall perform no important governmental act
whatsoever save through the agency of the ministers. The second is
that these ministers shall be responsible absolutely to Parliament for
every public act which they perform. From these principles arises the
fiction that "the king can do no wrong," which means legally that the
sovereign cannot be adjudged guilty of wrongdoing (and that therefore
no proceedings may be instituted against him), and politically that
the ministers are responsible, singly in small affairs and (p. 057)
conjointly in more weighty ones, for everything that is done in the
crown's name. "In a constitutional point of view," writes an English
authority, "so universal is the operation of this rule 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; and there can be no exercise of the crown's authority
for which it must not find some minister willing to make himself
responsible."[74] In continental countries the responsibility of
ministers is established very commonly by specific and written
constitutional provision. In Great Britain it exists by virtue simply
of a group of unwritten principles, or conventions, of the
constitution; but it is there none the less real. In the conduct of
public affairs the ministry must conform to the will of the majority
in the House of Commons; otherwise the wheels of government would be
blocked. And from this it follows that the crown is obliged to accept,
with such grace as may be, the measures which the ministry, working
with the parliamentary majority, formulates and for which it stands
ready to shoulder responsibility. It is open to the king, of course,
to dissuade the ministers from a given course of action. But if they
cannot be turned back, and if they have the support of a parliamentary
majority, there is nothing that the sovereign can do save acquiesce.
[Footnote 74: Todd, Parliamentary Government in
England, I., 81.]
*58. Appointment of Ministers.*--In the naming of a new premier,
following the retirement of a ministry, the king is legally
unhampered; but here again in practice he is bound to designate the
recognized leader of the dominant party, and so to pursue a course in
which there is left no room for the exercise of discretion. Only when
there is no clearly recognized leader, or when circumstances compel
the formation of a coalition ministry, is there a real opportunity for
the sovereign to choose a premier from a number of more or less
available men.[75] In the appointment of the remaining ministers, and
of all persons whose offices are regarded as political, the crown
yields uniformly to the judgment of the premier. The King's Speech, on
the opening of Parliament, is written by the ministers; all public
communications of the crown pass through their hands; peers are
created and honors bestowed in accord with their advice; measures are
framed and executive acts are undertaken by them, sometimes without
the sovereign's knowledge and occasionally even contrary to his
wishes.
[Footnote 75: This sort of situation presented
itself several times during the reign of Queen
Victoria, but in general it is exceptional.]
III. THE IMPORTANCE AND STRENGTH OF THE MONARCH (p. 058)
*59. The Real Authority and Service of the Crown.*--It would be an
error, however, to conclude that kingship in England is unimportant,
or even that the power wielded in person by the crown is negligible.
On the contrary, the uses served by the crown are indisputable and the
influence exerted upon the course of public affairs may be decisive.
The sovereign, in the words of Bagehot, has three rights--the right to
be consulted, the right to encourage, and the right to warn. "A king
of great sense and sagacity," it is added, "would want no others."[76]
Despite the fact that during upwards of two hundred years the
sovereign has not attended the meetings of the cabinet, and so is
deprived of the opportunity of wielding influence directly upon the
deliberations of the ministers as a body, the king keeps in close
touch with the premier, and cabinet councils at which important lines
of policy are to be formulated are preceded not infrequently by a
conference in which the subject in hand is threshed out more or less
completely by king and chief minister. Merely because the ancient
relation has been reversed, so that now it is the king who advises and
the ministry that arrives at decisions, it does not follow that the
advisory function is an unimportant thing. Queen Victoria many times
wielded influence of a decisive nature upon the public measures of her
reign, especially in respect to the conduct of foreign relations. The
extent of such influence cannot be made a matter of record, because
the ministers are in effect bound not to publish the fact that a
decision upon a matter of state has been taken at the sovereign's
instance. It is familiarly known, however--to cite a recent
illustration--that Edward VII. approved and encouraged the Haldane
army reforms, that he sought to dissuade the House of Lords from the
rejection of the Lloyd-George budget of 1909, and that he discouraged
the raising, in any form, of the issue of the reconstitution of the
upper chamber. In other words while, as a constitutional monarch
content to remain in the background of political controversy, the late
king not only had opinions but did not hesitate to make them known;
and in the shaping and execution of the Liberal programme his advice
was at times a factor of importance.[77]
[Footnote 76: The English Constitution (rev. ed.),
143.]
[Footnote 77: The most satisfactory estimate of the
political and governmental activities of Edward
VII. is contained in Mr. Sidney Lee's memoir of the
king, printed in the Dictionary of National
Biography, Second Supplement (London and New York,
1912), I., 546-610.]
*60. Why Monarchy Survives.*--Monarchy in Great Britain is a solid (p. 059)
and, so far as can be foreseen, a lasting reality. Throughout the
tempestuous years 1909-1911, when the nation was aroused as it had not
been in generations upon the issue of constitutional reform, and when
every sort of project was being warmly advocated and as warmly
opposed, without exception every suggested programme took for granted
the perpetuation of the monarchy as an integral part of the
governmental system. In the general bombardment to which the
hereditary House of Lords was subjected hereditary kingship wholly
escaped. The reasons are numerous and complex. They arise in part,
though by no means so largely as is sometimes imagined, from the fact
that monarchy in England is a venerable institution and the innate
conservatism of the Englishman, while permitting him from time to time
to regulate and modify it, restrains him from doing anything so
revolutionary as to abolish it. That upon certain conspicuous
occasions, as in the Cromwellian period, and again in 1688, kingship
has owed its very life to the conservative instinct of the English
people is well enough known to every student of history. But to-day,
as ever, the institution rests upon a basis very much more substantial
than a mere national predilection. Monarchy remains impregnably
entrenched because the crown, in addition to comprising an accustomed
feature of the governmental economy, fulfills specific ends which are
recognized universally to be eminently worth while, if not
indispensable. As a social, moral, and ceremonial agency, and as a
visible symbol of the unity of the nation; king and court occupy an
immeasurable place in the life and thought of the people; and even
within the domain of government, to employ the figure of Lowell, if
the 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.[78] The entire
governmental order of Great Britain hinges upon the parliamentary
system, and nowhere has that system been reduced to satisfactory
operation without the presence of some central, but essentially
detached, figure, whether a king or, as in France, a president with
the attributes of kingship. It is fundamentally because the English
people have discerned that kingship is not necessarily incompatible
with popular government that the monarchy has persisted. If royalty
had been felt to stand inevitably in the path of democratic progress,
it is inconceivable that all the forces of tradition could have pulled
it through the past seventy-five or eighty years. As it is, while half
a century ago there was in the country a small republican group which
was fond of urging that the monarchy was but a source of needless (p. 060)
expense, to-day there is hardly a vestige, in any grade of society, of
anti-monarchical sentiment.[79]
[Footnote 78: Government of England, I., 49.]
[Footnote 79: The best brief discussions of the
position of the crown in the governmental system
are Lowell, Government of England, I., Chap, 1;
Moran, English Government, Chaps. 2-3; Marriott,
English Political Institutions, Chap. 3; Macy,
English Constitution, Chap. 5; and Low, Governance
of England, Chaps. 14-15. More extended treatment
of the subject will be found in Anson, Law and
Custom of the Constitution, II., Pt. 1, Chaps 1 and
4; Todd, Parliamentary Government in England, I,
Pt. 2; Bagehot, English Constitution, Chaps. 2-3;
H. D. Traill, Central Government, Chap. 1. Mention
may be made of N. Caudel, Le souverain anglais, in
_Annales des Sciences Politiques_, July, 1910, and
J. Bardoux, Le pouvoir politique de la couronne
anglaise, in _Revue des Deux Mondes_, May 15,
1911.]
IV. PRIVY COUNCIL, MINISTRY, AND CABINET
*61. The Privy Council.*--One who would understand the modes by which
the powers of the crown are in practice exercised must begin by fixing
firmly in mind the nature and relations of three distinct but closely
interrelated institutions, the Privy Council, the ministry, and the
cabinet. As has appeared, the Privy Council through a long period of
English history comprised the body of men who advised the crown and
assisted to some extent in the supervision of administration. The
number of councillors from time to time varied widely, but it tended
constantly to be too large to admit of the requisite despatch and
secrecy, and by reason principally of this consideration the crown
fell into the custom of selecting as advisers a group of persons less
numerous, and perhaps more trustworthy, than the whole body of public
functionaries collectively designated as the Privy Council. Thus arose
the cabinet, which throughout its entire history has been only an
inner circle, unknown to the law, of the older and larger body. The
Privy Council survives to-day, and in both law and theory it still is
the advisory body of the crown. A cabinet member possesses authority
and is known to the law only as a privy councillor. In point of fact,
however, the Privy Council, once highly influential in affairs of
state, is now, as such, all but powerless. Such portions of the
dignity of its ancient place in the constitution as remain to it are
of a purely formal and ceremonial nature. It holds no meetings of a
deliberative character, and although legally its action is still
essential to many public measures, as the preparation of proclamations
and of orders in council, this action may be taken by as few as three
persons.[80] All cabinet members are members of the Council, so that
even one-fifth or one-sixth of the cabinet group is competent to meet
every legal requirement imposed upon the Council as a whole.[81] (p. 061)
All councillors are appointed by the crown and continue in office for
life or until dismissed. Their number is unlimited, and the only
qualification necessary for appointment is British nativity. Members
fall into three groups: (1) members of the cabinet; (2) holders of
certain important non-political offices who by custom are entitled to
appointment; (3) persons eminent in politics, literature, law, or
science, or by reason of service rendered the crown, upon whom the
dignity is conferred as an honorary distinction. Members bear
regularly the title of Right Honorable. The President of the Council,
designated by the crown, takes rank in the House of Lords next after
the Chancellor and Treasurer.[82]
[Footnote 80: On the nature of orders in council
see Anson, Law and Custom of the Constitution, II.,
Pt. 1, 147-149.]
[Footnote 81: It is to be observed, however, that
despite the transfer of the business devolving
formerly upon the Council into the hands of the
specially constituted departments of government,
the Council does still, through the agency of its
committees, perform a modicum of actual service. Of
principal importance among the committees is the
Judicial Committee, which hears appeals in
ecclesiastical cases and renders final verdict in
all appeals coming from tribunals outside the
United Kingdom. See p. 175.]
[Footnote 82: Traill, Central Government, Chap.
12.]
*62. Ministry and Cabinet.*--Another governmental group which, like the
Privy Council, differs from the cabinet while containing it, is the
ministry. The ministry comprises a large and variable body of
functionaries, some of whom occupy the principal offices of state and
divide their efforts between advising the crown, i.e., formulating
governmental policy, and administering the affairs of their respective
departments, and others of whom, occupying less important executive
positions, do not possess, save indirectly, the advisory function. The
first group comprises, approximately at least, the cabinet. Most heads
of departments are regularly and necessarily in the cabinet. A few are
in it as a rule, though not invariably. A few, still less important,
may be, but are not likely to be, admitted to it. And, finally, a
large number of parliamentary under-secretaries, party "whips," and
officers of the royal household are certain not to be admitted.[83]
[Footnote 83: On the relations of cabinet and
ministry see Lowell, Government of England, I.,
Chap. 3.]
V. THE EXECUTIVE DEPARTMENTS
In respect to both origin and legal status the executive departments
of the central government of Great Britain exhibit little of the
conformity to type which characterizes their counterparts in the
logical and self-consistent governmental systems of the majority of
continental countries. Under the pressure, however, of custom and (p. 062)
of parliamentary control, they have been reduced to essentially a
common style of organization and a common mode of administrative
procedure. In virtually every instance the department is presided over
by a single responsible minister, assisted as a rule by one or more
parliamentary under-secretaries and, more remotely, by a greater or
lesser body of non-political officials who carry on the actual work of
the department and whose tenure is not affected by the political
fortunes of their chiefs.
*63. The Treasury.*--Among the numerous departments, some represent
survivals of great offices of state of an earlier period, some are
offshoots of the ancient secretariat, and some comprise boards and
commissions established in days comparatively recent. In the first
group fall the offices of the Lord High Treasurer, the Lord High
Chancellor, and the Lord High Admiral. From the early sixteenth
century to the death of Queen Anne the principal official of the
Treasury was the Lord High Treasurer. Since 1714, however, the office
has been regularly in commission. The duties connected with it have
been intrusted to a board composed of certain Lords of the Treasury,
and no individual to-day bears the Lord High Treasurer's title. When a
ministry is made up the group of Treasury Lords is renewed, and as a
rule the post of First Lord is assumed by the premier. In point of
fact, however, the board is never called together, some of its members
have no actual connection whatsoever with the Treasury, and the
functions of this most important of all departments are in practice
exercised by the Chancellor of the Exchequer, assisted by the Junior
Lords and the under-secretaries. The Exchequer, i.e., the department
concerned principally with the collection of the taxes, is in fact,
though not in name, a branch of the Treasury Board. Within the
Treasury, and immediately under the direction of the Chancellor, is
drawn up the annual budget, embodying a statement of the contemplated
expenditures of the year and a programme of taxation calculated to
produce the requisite revenue. The Treasury exercises general control
over all other departments of the public service, e.g., the
Post-office and the Board of Customs, in which public money is
collected or expended.[84]
[Footnote 84: On the organization and workings of
the Treasury see Lowell, Government of England, I,
Chap. 5; Dicey, Law of the Constitution, Chap. 10;
Anson, Law and Custom of the Constitution, II., Pt.
1, 173-190; Traill, Central Government, Chap. 3.]
*64. The Admiralty Board and the Lord High Chancellorship.*--A second of
the ancient offices of state which survives only in commission is (p. 063)
that of the Lord High Admiral. The functions of this important post
devolve to-day upon an Admiralty Board, consisting strictly of a First
Lord, four Naval Lords (naval experts, usually of high rank), and a
Civil Lord, with whom, however, sit a number of parliamentary and
permanent secretaries. The First Lord is invariably a member of the
cabinet, and while legally the status of the six Lords is identical,
in practice the position of the First Lord approximates closely that
of the minister of marine in continental countries. Unlike the
Treasury Lords, the Lords of the Admiralty actually meet, and transact
business.
The third of the executive offices which comprise survivals from early
times is that of the Lord High Chancellor. There is in Great Britain
no single official who fills even approximately the position occupied
elsewhere by a minister of justice or an attorney-general, but the
most important of several officers who supply the lack is the Lord
Chancellor. "The greatest dignitary," says Lowell, "in the British
government, the one endowed by law with the most exalted and most
diverse functions, the only great officer of state who has retained
his ancient rights, the man who defies the doctrine of the separation
of powers more than any other personage on earth, is the Lord
Chancellor."[85] The Lord Chancellor is invariably a member of the
Cabinet. He is the chief judge in the High Court of Justice and in the
Court of Appeal. He appoints and removes the justices of the peace and
the judges of the county courts and wields large influence in
appointments to higher judicial posts. He affixes the Great Seal where
it is required to give validity to the acts of the crown and he
performs a wide variety of other more or less formal services.
Finally, it is the Lord High Chancellor who presides in the House of
Lords.
[Footnote 85: Government of England, I., 131.]
*65. The Five Secretaries of State.*--Five of the great departments
to-day represent the product of a curious evolution of the ancient
secretariat of state. Originally there was but a single official who
bore the designation of secretary of state. In the earlier eighteenth
century a second official was added, although no new office was
created. At the close of the century a third was added, after the
Crimean War a fourth, and after the Indian Mutiny of 1857 a fifth.
There are now, accordingly, five "principal secretaries of state," all
in theory occupying the same office and each, save for a few statutory
restrictions, competent legally to exercise the functions of any or
all of the others. In practice each of the five holds strictly to his
own domain. The group comprises: (1) the Secretary of State for the
Home Department, assisted by a parliamentary under-secretary and a
large staff of permanent officials, and possessing functions of a
highly miscellaneous sort--those, in general, belonging to the (p. 064)
ancient secretariat which have not been assigned to the care of other
departments; (2) the Secretary of State for Foreign Affairs, at the
head of a department which not only conducts foreign relations but
administers the affairs of such protectorates as are not closely
connected with any of the colonies; (3) the Secretary of State for the
Colonies; (4) the Secretary of State for War; and (5) the Secretary of
State for India, assisted by a special India Council of ten to
fourteen members.
*66. The Administrative Boards.*--The third general group of departments
comprises those which have arisen through the establishment in
comparatively recent years of a variety of administrative boards
or commissions. Two--the Board of Trade and the Board of
Education--originated as committees of the Privy Council. Three
others--the Board of Agriculture, the Board of Works, and the Local
Government Board--represent the development of administrative
commissions not conceived of originally as vested with political
character. All are in effect independent and co-ordinate governmental
departments. The composition and functions of the Board of Trade are
regulated by order in council at the opening of each reign, but the
character of the other four is determined wholly by statute. At the
head of each is a president (save that the chief of the Board of Works
is known as First Commissioner), and the membership embraces the five
secretaries of state and a variable number of other important
dignitaries. This membership, however, is but nominal. No one of the
Boards actually meets, and the work of each is performed entirely by
its president, with, in some instances, the assistance of a
parliamentary under-secretary. "In practice, therefore, these boards
are legal phantoms that provide imaginary colleagues for a single
responsible minister."[86] Very commonly the presidents are admitted
to the cabinet, but sometimes they are not.[87]
[Footnote 86: Lowell, Government of England, I.,
84.]
[Footnote 87: On the organization and workings of
the executive departments see Lowell, _op. cit._,
I., Chaps. 4-6; Marriott, English Political
Institutions, Chap. 5; Anson, Law and Custom of the
Constitution, II., Pt. 1, Chap. 3; Traill, Central
Government, Chaps. 3-11.]
VI. THE CABINET: COMPOSITION AND CHARACTER
*67. Regular and Occasional Members.*--The cabinet comprises a variable
group of the principal ministers of state upon whom devolves singly
the task of administering the affairs of their respective departments
and, collectively, that of shaping the policy and directing the conduct
of the government as a whole. The position occupied by the cabinet (p. 065)
in the constitutional system is anomalous, but transcendently
important. As has been pointed out, the cabinet as such is unknown to
English law. Legally, the cabinet member derives his administrative
function from the fact of his appointment to a ministerial post, and
his advisory function from his membership in the Privy Council. The
cabinet exists as an informal, extra-legal ministerial group into
whose hands, through prolonged historical development, has fallen the
supreme direction of both the executive and the legislative activities
of the state. The composition of the body is determined largely by
custom, but in part by passing circumstance. Certain ministerial heads
are invariably included: the First Lord of the Treasury, the Lord
Chancellor, the Chancellor of the Exchequer, the five Secretaries of
State, and the First Lord of the Admiralty. Two dignitaries who
possess no administrative function, i.e., the Lord President of the
Privy Council and the Lord Privy Seal,[88] are likewise always
included. Beyond this, the make-up of the cabinet group is left to the
discretion of the premier. The importance of a given office at the
moment and the wishes of the appointee, together with general
considerations of party expediency, may well enter into a decision
relative to the seating of individual departmental heads. In recent
years the presidents of the Board of Trade, the Board of Education,
and the Local Government Board have regularly been included, together
with the Lord Lieutenant or the Chief Secretary for Ireland.[89] The
Secretary for Scotland and the Chancellor of the Duchy of Lancaster
are usually included; the Postmaster-General and the President of the
Board of Agriculture frequently, and the First Commissioner of Works
and the Lord Chancellor for Ireland occasionally.
[Footnote 88: The functions of this official are
but nominal. In 1870 Sir Charles Dilke moved to
abolish the office as useless, but Gladstone urged
the desirability of having in the cabinet at least
one man who should not be burdened with the
management of a department, and the motion was
lost. The presidency of the Council is a post
likewise of dignity but of meager governmental
power or responsibility.]
[Footnote 89: In theory the powers of the executive
are exercised in Ireland by the Lord Lieutenant,
but in practice they devolve almost entirely upon
the nominally inferior official, the Chief
Secretary.]
*68. Increasing Size.*--The trend is distinctly in the direction of an
increase in the size of the body. The more notable cabinets of the
eighteenth century contained, as a rule, not above seven to ten
members. In the first half of the nineteenth century the number ran up
to thirteen or fourteen, and throughout the Gladstone-Disraeli period
it seldom fell below this level. The second Salisbury cabinet, at its
fall in 1892, numbered seventeen, and when, following the elections of
1900, the third Salisbury government was reconstructed, the cabinet
attained a membership of twenty.[90] The Balfour cabinet of 1905 (p. 066)
and the succeeding Campbell-Bannerman cabinet likewise numbered
twenty. The increase is attributable to several causes, especially the
pressure which comes from ambitious statesmen for admission to the
influential circle, the growing necessity of according representation
to varied elements and interests within the dominant party, the
multiplication of state activities which call for direction under new
and important departments, and the disposition to accord to every
considerable branch of the administrative system at least one
representative. The effect is to produce a certain unwieldiness, to
avoid which, it will be recalled, the cabinet was originally
instituted. Only through the domination of the cabinet by a few of its
most influential members can expeditiousness be preserved, and during
recent years there has been a tendency toward the differentiation of
an inner circle which shall bear to the whole cabinet a relation
somewhat analogous to that which the cabinet now bears to the
ministry. Development in this direction is viewed apprehensively by
many people who regard that the concentration of power in the hands of
an "inner cabinet" might well fail to be accompanied by a
corresponding concentration of recognized responsibility. During more
than a decade criticism of the inordinate size of the cabinet group
has been voiced freely upon numerous occasions and by many
observers.[91]
[Footnote 90: Lord Salisbury at this point retired
from the Foreign Office, which was assigned to Lord
Lansdowne, and assumed in conjunction with the
premiership the less exacting post of Lord Privy
Seal.]
[Footnote 91: Lowell, Government of England, I.,
59; Anson, Law and Custom of the Constitution, II.,
Pt. 1, 211.]
*69. Appointment of the Premier.*--When a new cabinet is to be made up
the first step is the designation of the prime minister. Legally the
choice rests with the crown, but considerations of practical politics
leave, as a rule, no room whatsoever for the exercise of discretion.
The crown sends as a matter of course for the statesman who is able to
command the support of the majority in the House of Commons. If the
retiring ministry has "fallen," i.e., has lost its parliamentary
majority, the new premier is certain to be the recognized leader of
the party which formerly has played the rôle of opposition. If there
has not occurred a shift in party status, the premiership will be
bestowed upon some one of the colleagues, at least upon one of the
fellow-partisans, of the retiring premier, nominated, if need be, by
the chiefs of the party. Thus, when in 1894 Gladstone retired from
office by reason of physical infirmity, the Liberal leaders in the two
houses conferred upon the question as to whether he should be succeeded
by Sir William Vernon-Harcourt or by Lord Rosebery. They (p. 067)
recommended Lord Rosebery, who was forthwith appointed by the Queen.
If, by any circumstance, the premiership should fall to the Opposition
at a moment when the leadership of this element is in doubt, the crown
would be guided, similarly, by the informally expressed will of the
more influential party members. While, therefore, the appointment of
the prime minister remains the sole important governmental act which
is performed directly by the sovereign, even here the substance of
power has been lost and only the form survives.
*70. Selection of Other Members.*--The remaining members of the cabinet
are selected by the premier, in consultation, as a rule, with leading
members of the party. Technically, what happens is that the first
minister places in the hands of the sovereign a list of the men whom
he recommends for appointment to the principal offices of state. The
crown accepts the list and there appears forthwith in the London
Gazette an announcement to the effect that the persons named have been
chosen by the crown to preside over the several departments.
Officially, there is no mention of the "cabinet." In the selection of
his colleagues the premier theoretically has a free hand. Practically
he is bound by the necessity of complying with numerous principles and
of observing various precedents and practical conditions. Two
principles, in particular, must be adhered to in determining the
structure of every cabinet. All of the members must have seats in one
or the other of the two houses of Parliament, and all must be
identified with the party in power, or, at the least, with an allied
political group. There was a time, when the personal government of the
king was yet a reality, when the House of Commons refused to admit to
its membership persons who held office under the crown, and this
disqualification found legal expression as late as the Act of
Settlement of 1701.[92] With the ripening of parliamentary government
in the eighteenth century, however, the thing that once had been
regarded properly enough as objectionable became a matter of
unquestionable expediency, if not a necessity. When once the ministers
comprised the real executive of the nation it was but logical that
they should be authorized to appear on the floor of the two houses to
introduce and advocate measures and to explain the acts of the
government. Ministers had occupied regularly seats in the upper
chamber, and not only was all objection to their occupying seats in
the lower chamber removed, but by custom it came to be an inflexible
rule that cabinet officers, and indeed the ministers generally, should
be drawn exclusively from the membership of the two houses.[93] (p. 068)
Under provision of an act of 1707 it is still obligatory upon
commoners who are tendered a cabinet appointment, with a few
exceptions, to vacate their seats and to offer themselves to their
constituents for re-election. But re-election almost invariably
follows as a matter of course and without opposition.[94] It is to be
observed that there are two expedients by which it is possible to
bring into the cabinet a desirable member who at the time of his
appointment does not possess a seat in Parliament. The appointee may
be created a peer; or he may stand for election to the Commons and,
winning, qualify himself for a cabinet post.
[Footnote 92: The clause of this measure which bore
upon the point in hand was repealed, however,
before it went into operation.]
[Footnote 93: The one notable instance in which
this rule has been departed from within the past
seventy-five years was Gladstone's tenure of the
post of Secretary of State for the Colonies during
the last six months of the Peel administration in
1846.]
[Footnote 94: On the reasons for the requirement of
re-election and the movement for the abolition of
the requirement see Moran, The English Government,
108-109.]
*71. Distribution Between the Houses of Parliament.*--Since the middle
of the eighteenth century the tenure of the premiership has been
divided approximately equally between peers and commoners, but the
apportionment of cabinet seats between the two houses has been
extremely variable. The first cabinet of the reign of George III.
contained fourteen members, thirteen of whom had seats in the House of
Lords, and, in general, throughout the eighteenth century the peers
were apt greatly to preponderate. With the growth in importance of the
House of Commons, however, and especially after the Reform Act of
1832, the tendency was to draw an ever increasing proportion of the
cabinet officers from the chamber in which lies the storm center of
English politics. By legal stipulation one of the secretaries of state
must sit in the upper house; and the Lord Privy Seal, the Lord
Chancellor, and the Lord President of the Council are all but
invariably peers. Beyond this, there is no positive requirement, in
either law or custom. In the ministries of recent times the number of
peers and of commoners has generally been not far from equal. To fill
the various posts the premier must bring together the best men he can
secure--not necessarily the ablest, but those who will work together
most effectively--with but secondary regard to the question of whether
they sit in the one or the other of the legislative houses. A
department whose chief sits in the Commons is certain to be
represented in the Lords by an under-secretary or other spokesman, and
_vice versa_.[95]
[Footnote 95: In France and other continental
countries in which the parliamentary system obtains
an executive department is represented in
Parliament by its presiding official only. But this
official is privileged, as the English minister is
not, to appear and to speak and otherwise
participate in proceedings on the floor of either
chamber.]
*72. Political Solidarity.*--A second fundamental principle which (p. 069)
dominates the structure of the cabinet is that which requires that the
members be men of one political faith. William III. sought to govern
with a cabinet in which there were both Whigs and Tories, but the
result was confusion and the experiment was abandoned. Except during
the ascendancy of Walpole, the cabinets of the eighteenth century very
generally embraced men of more or less diverse political affiliations,
but gradually the conviction took root that in the interest of unity
and efficiency the political solidarity of the cabinet group is
indispensable. The last occasion upon which it was proposed to make up
a cabinet from utterly diverse political elements was in 1812. The
scheme was rejected, and from that day to this cabinets have been
composed regularly, not necessarily of men identified with a common
political party, but at least of men who are in substantial agreement
upon the larger questions of policy and who have expressed their
willingness to co-operate in the carrying out of a given programme of
action. The fundamental requisite is unity. A Liberal Unionist may
occupy a post in a Conservative cabinet and a Laborite in a Liberal
administration, but he may not oppose the Government upon any
important question and expect to continue a member of it, save by the
express permission of the premier. It is the obligation of every
cabinet member to agree, or to appear to agree, with his colleagues.
If he is unable to do this, no course is open to him save resignation.
*73. Other Considerations Determining Appointment.*--In the selection of
his colleagues the premier works under still other practical
restrictions. One of them is the well-established rule that surviving
members of the last cabinet of the party, in so far as they are in
active public life and desirous of appointment, shall be given prior
consideration. Members of the party, furthermore, who have come into
special prominence and influence in Parliament must usually be
included. In truth, as Bagehot points out, the premier's independent
choice is apt to find scope not so much in the determination of the
cabinet's personnel as in the distribution of offices among the
members selected; and even here he will often be obliged to
subordinate his wishes to the inclinations, susceptibilities, and
capacities of his prospective colleagues. In the expressive simile of
Lowell, the premier's task is "like that of constructing a figure out
of blocks which are too numerous for the purpose, and which are not of
shapes to fit perfectly together."[96]
[Footnote 96: Government of England, I., 57. See
MacDonaugh, The Book of Parliament, 148-183.]
VII. THE CABINET IN ACTION (p. 070)
*74. Ministerial Responsibility.*--In its actual operation the English
cabinet system involves the unvarying application of three principles:
(1) the responsibility of cabinet ministers to Parliament; (2) the
non-publicity of cabinet proceedings; and (3) the close co-ordination
of the cabinet group under the leadership of the premier. Every
minister whether or not in the cabinet, is responsible individually to
Parliament, which in effect means to the House of Commons, for all of
his public acts. If he is accorded a vote of censure he must retire.
In the earlier eighteenth century the resignation of a cabinet officer
did not affect the tenure of his colleagues, the first of cabinets to
retire as a unit being that of Lord North in 1782. Subsequently,
however, the ministerial body so developed in compactness that in
relation to the outside world, and even to Parliament, the individual
officer came to be effectually subordinated to the group. Not since
1866 has a cabinet member retired singly in consequence of an adverse
parliamentary vote. If an individual minister falls into serious
disfavor one of two things almost certainly happens. Either the
offending member is persuaded by his colleagues to modify his course
or to resign before formal parliamentary censure shall have been
passed, or the cabinet as a whole rallies to the support of the
minister in question and stands or falls with him. This is but another
way of saying that, in practice, the responsibility of the cabinet is
collective rather than individual, a condition by which the
seriousness and effectiveness of it are vastly increased. This
responsibility covers the entire range of acts of the executive
department of the government, whether regarded as acts of the crown or
of the ministers themselves, and it constitutes the most distinctive
feature of the English parliamentary system. Formerly the only means
by which ministers could be held to account by Parliament was that of
impeachment. With the development, however, of the principle of
ministerial responsibility as a necessary adjunct to parliamentary
government, the occasional and violent process of impeachment was
superseded by continuous, inescapable, and pacific legislative
supervision. The impeachment of cabinet ministers may be regarded,
indeed, as obsolete.
*75. How a Ministry may Be Overthrown.*--A fundamental maxim of the
constitution to-day is that a cabinet shall continue in office only so
long as it enjoys the confidence and support of a majority in the
House of Commons. There are at least four ways in which a
parliamentary majority may manifest its dissatisfaction with a
cabinet, and so compel its resignation. It may pass a simple vote (p. 071)
of "want of confidence," assigning therefor no definite reason. It may
pass a vote of censure, criticising the cabinet for some specific act.
It may defeat a measure which the cabinet advocates and declares to be
of vital importance. Or it may pass a bill in opposition to the advice
of the ministers. The cabinet is not obliged to give heed to an
adverse vote in the Lords; but when any of the four votes indicated is
carried in the lower chamber the premier and his colleagues must do
one of two things--resign or appeal to the country. If it is clear
that the cabinet has lost the support, not only of Parliament, but
also of the electorate, the only honorable course for the ministry is
that of resignation. If, on the other hand, there is doubt as to
whether the parliamentary majority really represents the country upon
the matters at issue, the ministers are warranted in requesting the
sovereign to dissolve Parliament and to order a general election. In
such a situation the ministry continues tentatively in office. If at
the elections there is returned a majority disposed to support the
ministers, the cabinet is given a new lease of life. If, on the other
hand, the new parliamentary majority is adverse, no course is open to
the ministry save to retire. The new parliament will be convoked at
the earliest practicable date; but in advance of its assembling the
defeated cabinet will generally have resigned and a new government,
presided over by the leader of the late Opposition, will have assumed
the reins. During the interval required for the transfer of power none
save routine business is likely to be undertaken.
*76. Secrecy of Proceedings.*--Perpetually responsible to the House of
Commons and imperatively obligated to resign collectively when no
longer able to command a working majority in that body, the cabinet
must at all times employ every device by which it may be enabled to
present a solid and imposing front. Two such devices are those of
secrecy and the leadership of the premier. It is a sufficiently
familiar principle that a group of men brought together to agree upon
and execute a common policy in behalf of a widespread and diverse
constituency will be more likely to succeed if the differences that
must inevitably appear within their ranks are not published to the
world. It is in deference to this principle that the German Bundesrath
transacts its business to this day behind closed doors, and it was for
an analogous reason that the public was excluded from the sittings of
the convention by which the present constitution of the United States
was framed. Notices of meetings of the English cabinet and the names
of members present appear regularly in the press, but respecting the
subjects discussed, the opinions expressed, and the conclusions
arrived at not a word is given out, officially or unofficially. (p. 072)
The oath of secrecy, required of all privy councillors, is binding in
a special degree upon the cabinet officer. Not even the sovereign is
favored with more than a statement of the topics considered, together
with occasionally a formal draft of such decisions as require his
assent. In the earlier part of the nineteenth century meager minutes
of the proceedings were preserved, but nowadays no clerical employee
is allowed to be present and no record whatsoever is kept.[97] For
knowledge of past transactions members rely upon their own or their
colleagues' memories, supplemented at times by privately kept notes.
The meetings, which are held only as occasion requires (usually as
often as once a week when Parliament is in session) are notably
informal. There is not even a fixed place where meetings are held, the
members being gathered sometimes at the Foreign Office, sometimes at
the premier's house, and, as circumstance may arise, at almost any
convenient place.
[Footnote 97: The same thing is true of the
President's cabinet in the United States. The
reasons for the policy are obvious and ample; but
the preservation of cabinet records, whether in
Great Britain or the United States, would, if such
records were to be made accessible, facilitate
enormously the task of the historian and of the
student of practical government.]
*77. Leadership of the Premier.*--The unity of the cabinet is further
safeguarded and emphasized by the leadership of the prime minister.
Long after the rise of the cabinet to controlling influence in the
state the members of the ministerial body continued supposedly upon a
common footing in respect both to rank and authority. The habitual
abstention of the early Hanoverians from attendance at cabinet
meetings, however, left the group essentially leaderless, and by a
natural process of development the members came gradually to recognize
a virtual presidency on the part of one of their own number. In time
what was a mere presidency was converted into a thoroughgoing
leadership, in short, into the premier's office of to-day. It is
commonly regarded that the first person who fulfilled the functions of
prime minister in the modern sense was Sir Robert Walpole, First Lord
of the Treasury from 1715 to 1717 and from 1721 to 1742. The phrase
"prime minister" was not at that time in use, but that the realities
of the office existed is indicated by a motion made in the Commons
attacking Walpole on the ground that he had "grasped in his own hands
every branch of government; had attained the sole direction of
affairs; had monopolized all the powers of the crown; had compassed
the disposal of all places, pensions, titles, and rewards"--almost
precisely, as one writer puts it, what the present premier is doing
and is expected to do.[98] By the time of the establishment of (p. 073)
the ministry of the younger Pitt, in 1783, the ascendancy of the
premier among his colleagues was an accomplished fact and was
recognized as altogether legitimate. The enormous power of the
premier, arising immediately upon the ruins of the royal prerogative,
was brought virtually to completion when, during the later years of
George III., the rule became fixed that in constituting a ministry the
king should but ratify the choice of officials made by the premier.
[Footnote 98: Moran, The English Government, 99.]
Not until 1906 was the premier's office recognized by law,[99] but
through more than a century no other public position in the nation has
been comparable with it in volume of actual ruling power. Within the
ministry, more particularly the cabinet, the premier is the guiding
force. He presides, as a rule, at cabinet meetings; he advises with
colleagues upon all matters of consequence to the administration's
welfare; and, although he will shrink from doing it, he may require of
his colleagues that they acquiesce in his views, with the alternative
of his resignation.[100] He occupies one of the high offices of state,
usually that of First Lord of the Treasury; and, although ordinarily
his own portfolio will not require much of his time or energy, he must
maintain as close a watch as may be over the affairs of every one of
the departments in which his appointees have been placed. The prime
minister, is, furthermore, the link between the cabinet and, on the
one hand, the crown, and, on the other, Parliament. On behalf of the
cabinet he advises with the sovereign, communicating information
respecting ministerial acts and synopses of the daily debates in
Parliament. In the house of which he is a member he represents (p. 074)
the cabinet as a whole, makes such statements as are necessary
relative to general aspects of the government's policy, and speaks, as
a rule, upon every general or important projected piece of
legislation. As a matter of both theory and historical fact, the
premier who belongs to the House of Commons is more advantageously
situated than one who sits in the Lords.[101]
[Footnote 99: In a statute fixing the order of
precedence of public dignitaries. The premier's
position, however, was defined by a royal warrant
of December, 1905.]
[Footnote 100: The resignation of the premier
terminates _ipso facto_ the life of the ministry.
An excellent illustration of the accustomed
subordination of individual differences of opinion
to the interests of cabinet solidarity is afforded
by some remarks made by Mr. Asquith, December 4,
1911, to a deputation of the National League for
Opposing Woman Suffrage. The deputation had called
to protest against the Government's announced
purpose to attach a suffrage amendment (if carried
in the House of Commons) to a forthcoming measure
of franchise reform. The Premier explained that he
was, and always had been, of the opinion that "the
grant of the parliamentary franchise to women in
this country would be a political mistake of a very
grievous kind." "So far," he continued, "we are in
complete harmony with one another. On the other
hand, I am, as you know, for the time being the
head of the Government, in which a majority of my
colleagues, a _considerable_ majority of my
colleagues--I may say that without violating the
obligation of cabinet secrecy...--are of a
different opinion; and the Government in those
circumstances has announced a policy which is the
result of their combined deliberations, and by
which it is the duty of all their members, and
myself not least, to abide loyally. That is the
position, so far as I am personally concerned."]
[Footnote 101: Low, The Governance of England,
Chap. 9; M. Sibert, Étude sur le premier ministre
en Angleterre depuis ses origines jusqu'à l'époque
contemporaine (Paris, 1909).]
*78. The Cabinet's Central Position.*--In the English governmental
system the cabinet is in every sense the keystone of the arch. Its
functions are both executive and legislative, and indeed, to employ
the figure of Bagehot, it comprises the hyphen that joins, the buckle
that fastens, the executive and the legislative departments
together.[102] As has been pointed out, the uses of the crown are by
no means wholly ornamental. None the less, the actual executive of the
nation is the cabinet. It is within the cabinet circle that
administrative policies are decided upon, and it is by the cabinet
ministers and their subordinates in the several departments that these
policies, and the laws of the land generally, are carried into effect.
On the other side, the cabinet members not only occupy seats in one or
the other of the houses of Parliament; collectively they direct the
processes of legislation. They--primarily the prime minister--prepare
the Speech from the Throne, in which at the opening of a parliamentary
session the state of the country is reviewed and a programme of
legislation is outlined. They formulate, introduce, explain, and
advocate needful legislative measures upon all manner of subjects; and
although bills may be submitted in either house by private members it
is a recognized principle that all measures of large importance shall
emanate directly or indirectly from the cabinet. Statistics
demonstrate that measures introduced by private members have but an
infinitesimal chance of enactment.
[Footnote 102: The English Constitution (new ed.),
79.]
In effect, the cabinet comprises a parliamentary committee chosen, as
Bagehot bluntly puts it, to rule the nation. If a cabinet group does
not represent the ideas and purposes of Parliament as a whole, it at
least represents those of the majority of the preponderating chamber;
and that is ample to give it, during the space of its tenure of
office, a thoroughgoing command of the situation. The basal fact of
the political system is the control of party, and within the party the
power that governs is the cabinet. "The machinery," says Lowell, "is
one of wheels within wheels; the outside ring consisting of the (p. 075)
party that has a majority in the House of Commons; the next ring being
the ministry, which contains the men who are most active within that
party; and the smallest of all being the cabinet, containing the real
leaders or chiefs. By this means is secured that unity of party action
which depends upon placing the directing power in the hands of a body
small enough to agree, and influential enough to control."[103]
[Footnote 103: Government of England, I., 56. The
best discussion of the organization, functions, and
relationships of the cabinet is contained in
Lowell, _op. cit._, I., Chaps. 2-3, 17-18, 22-23.
Other good general accounts are Low, Governance of
England, Chaps. 2-4, 8-9; Moran, English
Government, Chaps. 4-9; Macy, English Constitution,
Chap. 6; Anson, Law and Custom of the Constitution,
II., Pt. 1, Chap. 2; and Maitland, Constitutional
History of England, 387-430. A detailed and still
valuable survey is in Todd, Parliamentary
Government, Parts 3-4. A brilliant study is
Bagehot, English Constitution, especially Chaps. 1,
6-9. The growth of the cabinet is well described in
Blauvelt, The Development of Cabinet Government in
England; and a monograph of value is P. le Vasseur,
Le cabinet britannique sous la reine Victoria
(Paris, 1902). For an extended bibliography see
Select List of Books on the Cabinets of England and
America (Washington, 1903), compiled in the Library
of Congress under the direction of A. P. C.
Griffin.]
CHAPTER IV (p. 076)
PARLIAMENT: THE HOUSE OF COMMONS
*79. Antiquity and Importance.*--The British Parliament is at once the
oldest, the most comprehensive in jurisdiction, and the most powerful
among modern legislative assemblages. In structure, and to some extent
in function, it is a product, as has appeared, of the Middle Ages. The
term "parliament," employed originally to denote a discussion or
conference, was applied officially to the Great Council in 1275;[104]
and by the opening of the fourteenth century the institution which the
English know to-day by that name had come clearly into existence,
being then, indeed, what technically it still is--the king and the
three estates of the realm, i.e., the lords spiritual, the lords
temporal, and the commons. During upwards of a hundred years the three
estates sat and deliberated separately. By the close of the reign of
Edward III. (1327-1377), however, the bicameral principle had become
fixed, and throughout the whole of its subsequent history (save during
the Cromwellian era of experimentation) Parliament has comprised
uninterruptedly, aside from the king, the two branches which exist at
the present time, the House of Lords and the House of Commons, or,
strictly, the Lords of Parliament and the Representatives of the
Commons.
[Footnote 104: In the First Statute of
Westminster.]
The range of jurisdiction which, step by step, these chambers, both
separately and conjointly, have acquired has been broadened until, so
far as the dominions of the British crown extend, it covers all but
the whole of the domain of human government. And within this enormous
expanse of political control the competence of the chambers knows, in
neither theory nor fact, any restriction. "The British Parliament, ..."
writes Mr. Bryce, "can make and unmake any and every law, change
the form of government or the succession to the crown, interfere with
the course of justice, extinguish the most sacred private rights of
the citizen. Between it and the people at large there is no legal
distinction, because the whole plenitude of the people's rights and
powers resides in it, just as if the whole nation were present within
the chamber where it sits. In point of legal theory it is the nation,
being the historical successor of the Folk Moot of our Teutonic
forefathers. Both practically and legally, it is to-day the only (p. 077)
and the sufficient depository of the authority of the nation; and
it is therefore, within the sphere of law, irresponsible and
omnipotent."[105] Whether the business in hand be constituent or
legislative, whether ecclesiastical or temporal, the right of
Parliament--or, more accurately "the King in Parliament"--to discuss
and to dispose is indisputable.
[Footnote 105: The American Commonwealth (3d ed.),
I., 35-36.]
I. THE HOUSE OF COMMONS PRIOR TO 1832
*80. Present Ascendancy.*--Legally, as has been explained, Parliament
consists of the king, the lords spiritual, the lords temporal, and the
commons. For practical purposes, however, it is the House of Commons
alone. "When," as Spencer Walpole wrote a quarter of a century ago, "a
minister consults Parliament he consults the House of Commons; when
the Queen dissolves Parliament she dissolves the House of Commons. A
new Parliament is simply a new House of Commons."[106] The gathering
of the "representatives of the commons" at Westminster is, and has
long been, without question the most important agency of government in
the kingdom. The House of Commons consists at the present day of 670
members, of whom 465 sit for English constituencies, 30 for Welsh, 72
for Scottish, and 103 for Irish. Nine of the members are chosen, under
somewhat special conditions, by the universities, but the remaining
661 are elected in county or borough constituencies under franchise
arrangements, which, while based upon residence and property
qualifications, fall not far short of manhood suffrage. The chamber is
at the same time the preponderating repository of power in the
national government and the prime organ of the popular will. It is in
consequence of its prolonged and arduous development that Great
Britain has attained democracy in national government; and the
influence of English democracy as actualized in the House of Commons
upon the political ideas and the governmental agencies of the outlying
world, both English-speaking and non-English-speaking, is simply
incalculable.
[Footnote 106: The Electorate and the Legislature
(London, 1892), 48.]
*81. Undemocratic Character at the Opening of the Nineteenth
Century.*--"The virtue, the spirit, the essence of the House of
Commons," once declared Edmund Burke, "consists in its being the
express image of the nation." In the eighteenth century, however, when
this assertion was made, the House of Commons was, in point of fact,
far from constituting such an "image." Until, indeed, the nineteenth
century was well advanced the nominally popular parliamentary branch
was in reality representative, not of the mass of the nation, but (p. 078)
of the aristocratic and governing elements, at best of the well-to-do
middle classes; and a correct appreciation of the composition and
character of the chamber as it to-day exists requires some allusion to
the process by which its democratization was accomplished. In
1832--the year of the first great Reform Act--the House of Commons
consisted of 658 members, of whom 186 represented the forty counties
and 472 sat for two hundred three boroughs. The apportionment of both
county and borough members was haphazard and grossly inequitable. In
the Unites States, and in many European countries, it is required by
constitutional provision that following a decennial census there shall
be a reapportionment of seats in the popular legislative chamber, the
purpose being, of course, to preserve substantial equality among the
electoral constituencies and, ultimately, an essential parity of
political power among the voters. At no time, however, has there been
in Great Britain either legislation or the semblance of a tradition in
respect to this matter. Reapportionment has taken place only partially
and at irregular intervals, and at but a few times in the history of
the nation have constituencies represented at Westminster been even
approximately equal. Save that, in 1707, forty-five members were added
to represent Scotland and, in 1801, one hundred to sit for Ireland,
the identity of the constituencies represented in the Commons
continued all but unchanged from the reign of Charles II. to the
reform of 1832.
*82. Need of a Redistribution of Seats.*--The population changes, in
respect to both growth and distribution, falling within this extended
period were, however, enormous. In 1689 the population of England and
Wales was not in excess of 5,500,000. The census of 1831 revealed in
these countries a population of 14,000,000. In the seventeenth and
earlier eighteenth centuries the great mass of the English people
lived in the south and east. Liverpool was but an insignificant town,
Manchester a village, and Birmingham a sand-hill. But the industrial
revolution had the effect of bringing coal, iron, and water-power into
enormous demand, and after 1775 the industrial center, and likewise
the population center, of the country was shifted rapidly toward the
north. In the hitherto almost uninhabited valleys of Lancashire and
Yorkshire sprang up a multitude of factory towns and cities. In
Parliament these fast-growing populations were either glaringly
under-represented or not represented at all. In 1831 the ten
southernmost counties of England contained a population of 3,260,000
and returned to Parliament 235 members.[107] At the same time the six
northernmost counties contained a population of 3,594,000, but (p. 079)
returned only 68 members. Cornwall, with 300,000 inhabitants, had 42
representatives; Lancashire, with 1,330,000, had 14. Among towns,
Birmingham and Manchester, each with upwards of 100,000 people, and
Leeds and Sheffield, each with 50,000, had no representation whatever.
On the other hand, boroughs were entitled to representation which
contained ridiculously scant populations, or even no population at
all. Gatto, in Surrey, was a park; Old Sarum, in Wiltshire, was a
deserted hill; the remains of what once was Dunwich were under the
waves of the North Sea. Bosseney, in Cornwall, was a hamlet of three
cottages, eight of whose nine electors belonged to a single family.
But Bosseney sent two members to the House of Commons.
[Footnote 107: That is to say, the quota of members
mentioned was returned by the counties and by the
boroughs contained geographically within them.]
*83. County and Borough Franchise in 1831.*--Not only was there, thus,
the most glaring lack of adjustment of parliamentary representation to
the distribution of population; where the right of representation
existed, the franchise arrangements under which members were elected
were hopelessly heterogeneous and illiberal. Originally, as has been
pointed out,[108] the representatives of the counties were chosen in
the county court by all persons who were entitled to attend and to
take part in the proceedings of that body. In 1429, during the reign
of Henry VI., an act was passed ostensibly to prevent riotous and
disorderly elections, wherein it was stipulated that county electors
should thereafter comprise only such male residents of the county as
possessed free land or tenement which would rent for as much as forty
shillings a year above all charges.[109] Leaseholders, copyholders,
small freeholders, and all non-landholders were denied the suffrage
altogether. Even in the fifteenth and sixteenth centuries the number
of forty-shilling freeholders was small. With the concentration of
land in fewer hands, incident to the agrarian revolution of the
eighteenth and early nineteenth centuries, it bore an increasingly
diminutive ratio to the aggregate county population, and by 1832 the
county electors comprised, as a rule, only a handful of large landed
proprietors. Within the boroughs the franchise arrangements existing
at the date mentioned were complicated and diverse beyond the
possibility of general characterization. Many of the boroughs had been
accorded parliamentary representation by the most arbitrary and
haphazard methods, and at no time prior to 1830 was there legislation
which so much as attempted to regulate the conditions of voting within
them. There were "scot and lot" boroughs, "potwalloper" boroughs,
burgage boroughs, corporation or "close" boroughs, and "freemen"
boroughs, to mention only the more important of the types that (p. 080)
can be distinguished.[110] In some of these the franchise was, at
least in theory, fairly democratic; but in most of them it was
restricted by custom or local regulation to petty groups of
property-holders or taxpayers, to members of the municipal
corporations, or even to members of a favored guild. With few
exceptions, the borough franchise was illogical, exclusive, and
non-expansive.
[Footnote 108: See p. 23.]
[Footnote 109: Equivalent in present values to £30
or £40.]
[Footnote 110: See p. 23.]
*84. Political Corruption.*--A third fact respecting electoral
conditions in the earlier nineteenth century is the astounding
prevalence of illegitimate political influence and of sheer
corruption. Borough members were very commonly not true
representatives at all, but nominees of peers, of influential
commoners, or of the government. It has been estimated that of the 472
borough members not more than 137 may be regarded as having been in
any proper sense elected. The remainder sat for "rotten" boroughs, or
for "pocket" boroughs whose populations were so meager or so docile
that the borough might, as it were, be carried about in a magnate's
pocket. In the whole of Cornwall there were only one thousand voters.
Of the forty-two seats possessed by that section of the country twenty
were controlled by seven peers, twenty-one were similarly controlled
by eleven commoners, and but one was filled by free election. In 1780
it was asserted by the Duke of Richmond that a clear majority of the
House of Commons was returned by six thousand persons. Bribery and
other forms of corruption were so common that only the most shameless
instances attracted public attention. Not merely votes, but seats,
were bought and sold openly, and it was a matter of general
understanding that £5,000 to £7,000 was the amount which a political
aspirant might expect to be obliged to pay a borough-monger for
bringing about his election. Seats were not infrequently advertised
for sale in the public prints, and even for hire for a term of
years.[111]
[Footnote 111: The monumental treatise on the House
of Commons prior to 1832 is E. Porritt, The
Unreformed House of Commons: Parliamentary
Representation before 1832, 2 vols. (2d ed.,
Cambridge, 1909). On the prevalence of corruption
see May and Holland, Constitutional History of
England, I., 224-238, 254-262.]
II. PARLIAMENTARY REFORM, 1832-1885
*85. Demand for Reform Prior to 1832.*--Active demand for a reformation
of the conditions that have been described antedated the nineteenth
century. As early as 1690, indeed, John Locke denounced the
absurdities of the prevailing electoral system,[112] although at the
time they were inconsiderable in comparison with what they became by
1832; and during the second half of the eighteenth century a (p. 081)
number of interesting reform proposals--notably that of the elder Pitt
in 1766, that of Wilkes in 1776, and that of the younger Pitt in
1785--were widely though fruitlessly discussed. In 1780 a group of
public-spirited men established a Society for Constitutional
Information which during the ensuing decade carried on actively a
propaganda in behalf of parliamentary regeneration, and at a meeting
under the auspices of this organization and presided over by Charles
James Fox a programme was drawn up insisting upon innovations no less
sweeping than the establishment of manhood suffrage, the creation of
equal electoral districts, the payment of members, the abolition of
property qualifications for members, and adoption of the secret
ballot.[113] The revolution in France and the prolonged contest with
Napoleon stayed the reform movement, but after 1815 agitation was
actively renewed. The economic and social ills of the nation in the
decade following the restoration of peace were many, and the idea took
hold widely that only through a reconstitution of Parliament could
adequate measures of amelioration be attained. The disposition of the
Tory governments of the period was to resist the popular demand, or,
at the most, to concede changes which would not affect the
aristocratic character of the parliamentary chambers. But the
reformers refused to be diverted from their fundamental object, and in
the end the forces of tradition, conservatism, and vested interest
were obliged to give way.[114]
[Footnote 112: Treatises of Government, II., Chap.
13, § 157.]
[Footnote 113: It is of interest to observe that
every one of the demands enumerated found a place
half a century later among the "six points" of the
Chartists. See pp. 82-83. A bill embodying the
proposed reforms was introduced by the Duke of
Richmond in 1780, but met with small favor. A
second society--The Friends of the People--was
formed in 1792 to promote the cause.]
[Footnote 114: The reform movement prior to 1832 is
admirably sketched in May and Holland,
Constitutional History of England, I., 264-280. See
also G. L. Dickinson, The Development of Parliament
during the Nineteenth Century (London, 1895), Chap.
1; J. H. Rose, The Rise and Growth of Democracy in
Great Britain (London, 1897), Chap. 1; C. B. R.
Kent, The English Radicals (London, 1899), Chaps.
1-2; and W. P. Hall, British Radicalism, 1791-1797
(New York, 1912).]
*86. The Reform Act of 1832.*--The first notable triumph was the
enactment of the Reform Bill of 1832. The changes wrought by this
memorable piece of legislation were two-fold, the first relating to
the distribution of seats in Parliament, the second to the extension
of the franchise. The number of Scottish members was increased from 45
to 54; that of Irish, from 100 to 105; that of English and Welsh was
reduced from 513 to 499. There was no general reapportionment of seats,
no effort to bring the parliamentary constituencies into precise and
uniform relation to the census returns. But the most glaringly
inequitable of former conditions were remedied. Fifty-six (p. 082)
boroughs, of populations under 2,000, were deprived entirely of
representation,[115] thirty-one, of populations between 2,000 and
4,000, were reduced from two members to one, and one was reduced from
four members to two. The 143 seats thus made available were
redistributed, and the aggregate number (658) continued as before.
Twenty-two large boroughs hitherto unrepresented were given two
members each; twenty-one others were given one additional member each;
and a total of sixty-five seats were allotted to twenty-seven of the
English counties, the remaining thirteen being given to Scotland and
Ireland. The redistribution had the effect of increasing markedly the
political power of the northern and north-central portions of the
country. The alterations introduced in the franchise were numerous and
important. In the counties the forty-shilling freehold franchise, with
some limitations, was retained; but the voting privilege was extended
to all leaseholders and copyholders of land renting for as much as £10
a year, and to tenants-at-will holding an estate worth £50 a year. In
the boroughs the right to vote was conferred upon all "occupiers" of
houses worth £10 a year. The total number of persons enfranchised was
approximately 455,000. By basing the franchise exclusively upon the
ownership or occupancy of property of considerable value the reform
fell short of admitting to political power the great mass of factory
employees and of agricultural laborers, and for this reason it was
roundly opposed by the more advanced liberal elements. If, however,
the voting privilege had not been extended to the masses it had been
brought appreciably nearer them; and--what was almost equally
important--it had been made substantially uniform, for the first time,
throughout the realm.[116]
[Footnote 115: Of the fifty-six all save one had
returned two members.]
[Footnote 116: The more important parts of the text
of the Reform Bill of 1832 are printed in
Robertson, Statutes, Cases and Documents, 197-212.]
*87. The Chartist Movement.*--The act of 1832 possessed none of the
elements of finality. Its authors were in general content, but with
the lapse of time it was made increasingly manifest that the nation
was not. Political power was still confined to the magnates of the
kingdom, the townsfolk who were able to pay a £10 annual rental, and
the well-to-do copyholders and leaseholders of rural districts. Whigs
and Tories of influence alike insisted that further innovation could
not be contemplated, but the radicals and the laboring masses insisted
no less resolutely that the reformation which had been begun should be
carried to its logical conclusion. The demands upon which emphasis was
especially placed were gathered up in the "six points" of the People's
Charter, promulgated in final form May 8, 1838. The six points were:
(1) universal suffrage for males over twenty-one years of age, (p. 083)
(2) equal electoral districts, (3) voting by secret ballot, (4) annual
sessions of Parliament, (5) the abolition of property qualifications
for members of the House of Commons, and (6) payment of members. The
barest enumeration of these demands is sufficient to reveal the
political backwardness of the England of three-quarters of a century
ago. Not only was the suffrage still severely restricted and the basis
of representation antiquated and unfair; voting was oral and public,
and only men who were qualified by the possession of property were
eligible for election.[117]
[Footnote 117: Rose, Rise and Growth of Democracy,
Chaps. 6-8; Kent, The English Radicals, Chap. 3;
and R. G. Gammage, History of the Chartist
Movement, 1837-1854 (Newcastle-on-Tyne, 1894).]
*88. The Representation of the People Act of 1867.*--After a decade of
spectacular propaganda Chartism collapsed, without having attained
tangible results. None the less, the day was not long postponed when
the forces of reform, sobered and led by practical statesmen, were
enabled to realize one after another of their fundamental purposes. In
1858 the second Derby government acquiesced in the enactment of a
measure by which all property qualifications hitherto required of
English, Welsh, and Irish members were abolished,[118] and after 1860
projects for franchise extension were considered with increasing
seriousness. In 1867 the third Derby government, whose guiding spirit
was Disraeli, carried a bill providing for an electoral reform of a
more thoroughgoing character than any persons save the most
uncompromising of the radicals had ever asked or desired. This
Representation of the People Act modified but slightly the
distribution of parliamentary seats. The total number of seats
remained unchanged, as did Ireland's quota of 105; Scotland's
apportionment was increased from 54 to 60, while that of England and
Wales was decreased from 499 to 493; and in the course of the
re-allotment that was made eleven boroughs lost the right of
representation and thirty-five others were reduced from two members to
one. The fifty-two seats thus vacated were utilized to enfranchise
twelve new borough and three university constituencies and to increase
the representation of a number of the more populous towns and
counties.
[Footnote 118: By law of 1710 it had been required
that county members should possess landed property
worth £600, and borough members worth £300, a year.
These qualifications were very commonly evaded, but
they were not abolished until 1858.]
The most important provisions of the Act were, however, those relating
to the franchise. In England and Wales the county franchise was
guaranteed to men whose freehold was of the value of forty shillings a
year, to copyholders and leaseholders of the annual value of £5, and
to householders whose rent amounted to not less than £12 a year. (p. 084)
The twelve pound occupation franchise was new,[119] and the
qualification for copyholders and leaseholders was reduced from £10 to
£5; otherwise the county franchise was unchanged. The borough
franchise was modified profoundly. Heretofore persons were qualified
to vote as householders only in the event that their house was worth
as much as £10 a year. Now the right was conferred upon every man who
occupied, as owner or as tenant, for twelve months, a dwelling-house,
or any portion thereof utilized as a separate dwelling, without regard
to its value. Another newly established franchise admitted to the
voting privilege all lodgers occupying for as much as a year rooms of
the clear value, unfurnished, of £10 a year. The effect of these
provisions was to enfranchise the urban working population, even as
the act of 1832 had enfranchised principally the urban middle class.
So broad, indeed, did the urban franchise at this point become that
little room was left for its modification subsequently. As originally
planned, Disraeli's measure would have enlarged the electorate by not
more than 100,000; as amended and carried, it practically doubled the
voting population, raising it from 1,370,793 immediately prior to 1867
to 2,526,423 in 1871.[120] By the act of 1832 the middle classes had
been enfranchised; by that of 1867 political power was thrown in no
small degree into the hands of the masses. Only two large groups of
people remained now outside the pale of political influence, i.e., the
agricultural laborers and the miners.
[Footnote 119: It may be regarded, however, as
taking the place of the £50 rental franchise.]
[Footnote 120: It is to be observed that these
figures are for the United Kingdom as a whole,
embracing the results not merely of the act of 1867
applying to England and Wales but of the two acts
of 1868 introducing similar, though not identical,
changes in Scotland and Ireland.]
*89. The Representation of the People Act of 1884.*--That the
qualifications for voting in one class of constituencies should be
conspicuously more liberal than in another class was an anomaly, and
in a period when anomalies were at last being eliminated from the
English electoral system remedy could not be long delayed. February 5,
1884, the second Gladstone ministry redeemed a campaign pledge by
introducing a bill extending to the counties the same electoral
regulations that had been established in 1867 in the towns. The
measure passed the Commons, but was rejected by the Lords by reason of
the fact that it was not accompanied by a bill for the redistribution
of seats. By an agreement between the two houses a threatened deadlock
was averted, and the upshot was that before the end of the year the
Lords accepted the Government's bill, on the understanding that its
enactment was to be followed immediately by the introduction of a
redistribution measure. The Representation of the People Act of (p. 085)
1884 is in form disjointed and difficult to understand, but the effect
of it is easy to state. By it there was established a uniform
household franchise and a uniform lodger franchise in all counties and
boroughs of the United Kingdom. The occupation of any land or tenement
of a clear annual value of £10 was made a qualification in boroughs
and counties alike; and persons occupying a house by virtue of office
or employment were to be deemed "occupiers" for the purpose of the
act. The measure doubled the county electorate and increased the total
electorate by some 2,000,000, or approximately forty per cent. Its
most important effect was to enfranchise the workingman in the
country, as the act of 1867 had enfranchised the workingman in the
town.
*90. The Redistribution of Seats Act, 1885.*--In 1885, the two great
parties co-operating, there was passed the Redistribution of Seats Act
which had been promised. Now for the first time in English history
attempt was made to apportion representation in the House of Commons
in something like strict accordance with population densities. In the
first place, the total number of members was increased from 658[121]
to 670, and of the number 103 were allotted to Ireland, 72 to
Scotland, and 495 to England and Wales. In the next place, the method
by which former redistributions had been accomplished, i.e.,
transferring seats more or less arbitrarily from flagrantly
over-represented boroughs to more populous boroughs and counties, was
replaced by a method based upon the principle of equal electoral
constituencies, each returning one member. In theory a constituency
was made to comprise 50,000 people. Boroughs containing fewer than
15,000 inhabitants were disfranchised as boroughs, becoming for
electorial purposes portions of the counties in which they were
situated. Boroughs of between 15,000 and 50,000 inhabitants were
allowed to retain, or if previously unrepresented were given, one
member each. Those of between 50,000 and 165,000 were given two
members, and those of more than 165,000 three, with one in addition
for every additional 50,000 people. The same general principle was
followed in the counties. Thus the city of Liverpool, which prior to
1885 sent three members to Parliament, fell into nine distinct
constituencies, each returning one member, and the great northern
county of Lancashire, which since 1867 had been divided into four
portions each returning two members, was now split into twenty-three
divisions with one member each. The boroughs which prior to 1885
elected two members, and at the redistribution retained that number,
remained single constituencies for the election of those two members.
Of these boroughs there are to-day twenty-three. They, together (p. 086)
with the city of London and the three universities of Oxford,
Cambridge, and Dublin, comprise the existing twenty-seven two-member
constituencies. By partition of the counties, of the old boroughs
having more than two members, and of the new boroughs with only two
members, all save these twenty-seven constituencies have been erected
into separate, single-member electoral divisions, each with its own
name and identity.[122]
[Footnote 121: Strictly 652, since after 1867 four
boroughs, returning six members, were
disfranchised.]
[Footnote 122: On the reforms of the period
1832-1885 see Cambridge Modern History, X., Chap.
18, and XI., Chap. 12; Dickinson, Development of
Parliament, Chap. 2; Rose, Rise and Growth of
Democracy, Chaps. 2, 10-13; Marriott, English
Political Institutions, Chap. 10. An excellent
survey is May and Holland, Constitutional History
of England, I., Chap. 6, and III., Chap. 1. Mention
may be made of H. Cox, A History of the Reform
Bills of 1866 and 1867 (London, 1868); J. S. Mill,
Considerations on Representative Government
(London, 1861); and T. Hare, The Election of
Representatives, Parliamentary and Municipal (3d
ed., London, 1865). An excellent survey by a Swiss
scholar is contained in C. Borgeaud, The Rise of
Modern Democracy in Old and New England, trans. by
B. Hill (London, 1894), and a useful volume is J.
Murdock, A History of Constitutional Reform in
Great Britain and Ireland (Glasgow, 1885). The
various phases of the subject are covered, of
course, in the general histories of the period,
notably S. Walpole, History of England from the
Conclusion of the Great War in 1815, 6 vols. (new
ed., London, 1902); W. N. Molesworth, History of
England from the year 1830-1874, 3 vols. (London,
1874); J. F. Bright, History of England, 5 vols.
(London, 1875-1894); H. Paul, History of Modern
England, 5 vols. (London, 1904-1906); and S. Low
and L. C. Sanders, History of England during the
Reign of Victoria (London, 1907). Three
biographical works are of special service: S.
Walpole, Life of Lord John Russell, 2 vols.
(London, 1889); J. Morley, Life of William E.
Gladstone, 3 vols. (London, 1903); and W. F.
Monypenny, Life of Benjamin Disraeli, Earl of
Beaconsfield, vols. 1-2 (London and New York,
1910-1912).]
III. THE FRANCHISE AND THE ELECTORAL QUESTIONS OF TO-DAY
*91. The Franchise as It Is.*--By the measures of 1884 and 1885 the
House of Commons was placed upon a broadly democratic basis. Both
measures stand to-day upon the statute-books, and neither has been
amended in any important particular. With respect to the existing
franchises there are two preponderating facts. One of them is that
individuals, as such, do not possess the privilege of voting; on the
contrary, the possession of the privilege is determined all but
invariably in relation to the ownership or occupation of property. The
other is that the franchise system, while substantially uniform
throughout the kingdom, is none the less the most complicated in
Europe. There are three important franchises which are universal and
two which are not. In the first group are included: (1) occupancy, as
owner or tenant, of land or tenement of a clear yearly value of £10;
(2) occupancy, as owner or tenant, of a dwelling-house, or part of a
house used as a separate dwelling, without regard to its value; (p. 087)
and (3) occupancy of lodgings of the value, unfurnished, of £10 a
year. The two franchises which are not universal are (1) ownership of
land of forty shillings yearly value or occupation of land under
certain other specified conditions--this being applicable only to
counties and, to a small extent, to boroughs which are counties in
themselves; and (2) residence of freemen in those towns in which they
had a right to vote prior to 1832. The conditions and exceptions by
which these various franchises are attended are so numerous that few
people in England save lawyers make a pretense of knowing them all,
and the volume of litigation which arises from the attempted
distinction between "householder" and "lodger," and from other
technicalities of the subject, is enormous. Voters must be twenty-one
years of age, and there are several complicated requirements in
respect to the period of occupation of land and of residence, and
likewise in respect to the fulfillment of the formalities of
registration.[123] There are also various incidental disqualifications.
No peer, other than a peer of Ireland who is in possession of a seat
in the House of Commons, may vote; persons employed as election
agents, canvassers, clerks, or messengers may not vote, nor may the
returning officers of the constituencies, save when necessary to break
a tie between two candidates; and aliens, felons, and, under
stipulated conditions, persons in receipt of public charity, are
similarly debarred. In the aggregate, however, the existing franchises
approach measurably near manhood suffrage. It has been computed that
the ratio of electors to population is approximately one in six,
whereas, the normal proportion of males above the age of twenty-one,
making no allowance for paupers, criminals, and other persons commonly
disqualified by law, is somewhat less than one in four. The only
classes of adult males at present excluded regularly from the voting
privilege are domestic servants, bachelors living with their parents
and occupying no premises on their own account, and persons whose
change of abode periodically deprives them of a vote.
[Footnote 123: On the process of registration see
Anson, Law and Custom of the Constitution, I.,
134-137, and M. Caudel, L'enregistrement des
électeurs en Angleterre, in _Annales des Sciences
Politiques_, Sept., 1906.]
"The present condition of the franchise," asserts Lowell, "is, indeed,
historical rather than rational. It is complicated, uncertain,
expensive in the machinery required, and excludes a certain number of
people whom there is no reason for excluding, while it admits many
people who ought not to be admitted if any one is to be debarred."[124]
During the past generation there has been demand from a variety (p. 088)
of quarters that the conditions of the franchise, and, indeed, the
electoral system as a whole, be overhauled, co-ordinated, and
liberalized; and at the date of writing (1912) there is pending in
Parliament a measure of fundamental importance looking in this
direction. The electoral changes which have been most widely
advocated, at least in recent years, are four in number: (1) a fresh
apportionment of seats in the Commons in accordance with the
distribution of population; (2) the extension of the franchise to
classes of men at present debarred; (3) the abolition of the plural
vote; and (4) the enfranchisement of women.
[Footnote 124: Government of England, I., 213. On
the franchise system see Anson, Law and Custom of
the Constitution, I., Chap. 4 and Lowell, _op.
cit._, I., Chap. 9.]
*92. The Question of Redistribution of Seats.*--As has been pointed out,
the Redistribution of Seats Act of 1885 established constituencies in
which there was some approach to equality. The principle was far from
completely carried out. For example, the newly created borough of
Chelsea contained upwards of 90,000 people, while the old borough of
Windsor had fewer than 20,000. But the inequalities left untouched by
the act were slight in comparison with those which have arisen during
a quarter of a century in which there has been no reapportionment
whatsoever. In 1901 the least populous constituency of the United
Kingdom, the borough of Newry in Ireland, contained but 13,137 people,
while the southern division of the county of Essex contained 217,030;
yet each was represented by a single member. This means, of course, a
gross disparity in the weight of popular votes, and, in effect, the
over-representation of certain sets of opinions and interests. In
January, 1902, an amendment to a parliamentary address urging the
desirability of redistribution was warmly debated in the Commons, and,
on the eve of its fall, in the summer of 1905, the Balfour government
submitted a Redistribution Resolution designed to meet the demands of
the "one vote, one value" propagandists. At this time it was pointed
out that whereas immediately after the reform of 1885 the greatest
ratio of disparity among the constituencies was 5.8 to 1, in twenty
years it had risen to 16.5 to 1. The plan proposed provided for the
fixing of the average population to be represented by a member at from
50,000 to 65,000, the giving of eighteen additional seats to England
and Wales and of four to Scotland, the reduction of Ireland's quota by
twenty-two, and such further readjustments as would bring down the
ratio of greatest disparity to 6.8 to 1. Under a ruling of the Speaker
to the effect that the resolution required to be divided into eight or
nine parts, to be debated separately, the proposal was withdrawn. It
was announced that a bill upon the subject would be brought in, but
the early retirement of the ministry rendered this impossible, (p. 089)
and throughout succeeding years this aspect of electoral reform
yielded precedence to other matters.[125]
[Footnote 125: _Annual Register_ (1905), 193.]
A special difficulty inherent in the subject is imposed by the
peculiar situation of Ireland. By reason of the decline of Ireland's
population during the past half century that portion of the United
Kingdom has come to be markedly over-represented at Westminster. The
average Irish commoner sits for but 44,147 people, while the average
English member represents 66,971. If a new distribution were to be
made in strict proportion to members Ireland would lose 30 seats and
Wales three, while Scotland would gain one and England about 30. It is
contended by the Irish people, however, that the Act of Union of 1800,
whereby Ireland was guaranteed as many as one hundred parliamentary
seats, is in the nature of a treaty, whose stipulations cannot be
violated save by the consent of both contracting parties; and so long
as the Irish are not allowed a separate parliament they may be
depended upon to resist, as they did resist in 1905, any proposal
contemplating the reduction of their voting strength in the parliament
of the United Kingdom.