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HE GOVERNMENTS OF EUROPE
by
FREDERIC AUSTIN OGG, Ph. D.
Professor of Political Science
in the University of Wisconsin
Author of
"Social Progress in Contemporary Europe"
New York
The MacMillan Company
1918
All rights reserved
Copyright, 1913.
by the MacMillan Company
Set up and electrotyped. Published February, 1913.
Reprinted July, December, 1913; June, 1914; August, 1915;
July, 1916; September, 1917.
TO MY FATHER
PREFACE (p. vii)
It is a matter of common observation that during the opening years of
the twentieth century there has been, in many portions of the
civilized world, a substantial quickening of interest in the
principles and problems of human government. The United States is
happily among those countries in which the phenomenon can be observed,
and we have witnessed in recent times not only the organization of
societies and the establishment of journals designed to foster
research within the field, but also a notable multiplication and
strengthening of courses in political science open to students in our
colleges and universities, as well as the development of clubs,
forums, extension courses, and other facilities for the increasing of
political information and the stimulation of political thinking on the
part of the people at large. It is the object of this book to promote
the intelligent study of government by supplying working descriptions
of the governmental systems of the various countries of western and
central Europe as they have taken form and as they operate at the
present day. Conceived and prepared primarily as a text for use in
college courses, it is hoped none the less that the volume may prove
of service to persons everywhere whose interest in the subject leads
them to seek the sort of information which is here presented.
The content of the book has been determined, in the main, by three
considerations. In the first place, it has been deemed desirable to
afford a wide opportunity for the _comparative_ study of political
institutions, especially by reason of the familiar fact that the
governmental system of a minor country may, and frequently does,
exhibit elements of novelty and of importance not inferior to those to
be observed in the political organization of a greater state. Hence
there are included descriptions of the governments of the minor as
well as of the major nations of western and central Europe; and the
original purpose to attempt some treatment of the governments of the
eastern nations has been abandoned, somewhat reluctantly, only because
of the demands of space, and because it was felt that this portion of
the projected work would perhaps meet no very serious need in the
usual college courses. In the second place, it is believed that the
intelligent study of present-day governments must involve at all (p. viii)
stages the taking into careful account of the historical origins and
growth of these governments. Hence a considerable amount of space has
been devoted to sketches of constitutional history, which, however,
are in all instances so arranged that they may readily be omitted if
their omission is deemed desirable. In the case of countries whose
political system underwent a general reconstitution during the
Revolutionary and Napoleonic era it has been thought not feasible to
allude, even briefly, to historical developments prior to the later
eighteenth century. In the third place, it has been considered
desirable to include in the book some treatment of political parties
and of the institutions of local administration.
Within a field so expansive it has been possible to undertake but an
introduction to a majority of the subjects touched upon. In the
foot-notes will be found references to books, documents, and
periodical materials of widely varying types, and it is hoped that
some of these may serve to guide student and reader to more intensive
information.
The preparation of the book has been facilitated by the encouragement
and the expert advice accorded me by a number of teachers of
government in colleges and universities in various portions of the
country. And I have had at all times the patient and discriminating
assistance of my wife. For neither the plan nor the details of the
work, however, can responsibility be attached to anyone save myself. I
can only hope that amidst the multitude of facts, some elusive and
many subject to constant change, which I have attempted here to set
down, not many seriously vitiating errors may have escaped detection.
Frederic Austin OGG.
Cambridge, Massachusetts,
January 10, 1913.
TABLE OF CONTENTS (p. ix)
PART I.--GREAT BRITAIN
I. THE FOUNDATIONS OF THE CONSTITUTION
1. The Importance of Historical Background 1
2. Anglo-Saxon Beginnings 2
3. The Norman-Plantagenet Period 6
4. The Rise of Parliament 11
5. Administrative and Judicial Development 16
6. The Tudor Monarchy 18
7. Parliament under the Tudors 21
8. The Stuarts: Crown and Parliament 26
9. The Later Stuarts: the Revolution of 1688-1689 31
II. THE CONSTITUTION SINCE THE SEVENTEENTH CENTURY
1. Crown and Parliament after 1789 34
2. Rise of the Cabinet and of Political Parties 37
3. The Scottish and Irish Unions 39
4. The Nature and Sources of the Constitution 41
5. The Flexibility of the Constitution 44
III. THE CROWN AND THE MINISTRY
1. The Crown: Legal Status and Privileges 48
2. The Powers of the Crown 52
3. The Importance and Strength of the Monarchy 58
4. Privy Council, Ministry, and Cabinet 60
5. The Executive Departments 61
6. The Cabinet: Composition and Character 64
7. The Cabinet in Action 70
IV. PARLIAMENT: THE HOUSE OF COMMONS
1. The House of Commons prior to 1832 77
2. Parliamentary Reform, 1832-1885 80
3. The Franchise and the Electoral Questions of To-day 86
4. Electoral Procedure and Regulations 92
V. PARLIAMENT: THE HOUSE OF LORDS (p. x)
1. Composition 97
2. The Reform of the Lords: the Question prior to 1909 101
3. The Question of the Lords, 1909-1911 106
4. The Parliament Act of 1911 and After 112
VI. PARLIAMENT, ORGANIZATION, FUNCTIONS, PROCEDURE
1. The Assembling of the Chambers 117
2. Organization of the House of Commons 120
3. Organization of the House of Lords 125
4. Privileges of the Houses and of Members 126
5. The Functions of Parliament 128
6. General Aspects of Parliamentary Procedure 132
7. The Conduct of Business in the two Houses 138
VII. POLITICAL PARTIES
1. Parliamentarism and the Party System 143
2. Parties in the Later Eighteenth and Earlier Nineteenth
Centuries 145
3. The Second Era of Whig [Liberal] Ascendancy, 1830-1874 147
4. The Second Era of Conservative Ascendancy, 1874-1905 150
5. The Liberal Revival 155
6. The Rule of the Liberals, 1906-1912 158
7. The Parties of To-day 162
VIII. JUSTICE AND LOCAL GOVERNMENT
1. English Law 167
2. The Inferior Courts 170
3. The Higher Courts 173
4. Local Government to the Municipal Corporations Act,
1835 176
5. Local Government Reform, 1835-1912 179
6. Local and Central Government 181
7. Local Government To-day: Rural 183
8. Local Government To-day: Urban 186
PART II.--GERMANY
IX. THE EMPIRE AND ITS CONSTITUTION
1. Political Development Prior to 1848 193
2. The Creation of the Empire 198
3. The Constitution: Nature of the Empire 202
4. The Empire and the States 205
X. THE IMPERIAL GOVERNMENT: EMPEROR, CHANCELLOR, AND BUNDESRATH
1. The Emperor 210
2. The Chancellor 213
3. The Bundesrath 217
XI. THE IMPERIAL GOVERNMENT: REICHSTAG, PARTIES, JUDICIARY (p. xi)
1. Composition of the Reichstag--Electoral System 223
2. Organization and Powers of the Reichstag. 226
3. The Rise of Political Parties 229
4. Party Politics after 1878 233
5. Parties since 1907 236
6. Law and Justice 241
XII. THE CONSTITUTION OF PRUSSIA--THE CROWN AND THE MINISTRY
1. The German States and their Governments 245
2. The Rise of Constitutionalism in Prussia 246
3. The Crown and the Ministry 253
XIII. THE PRUSSIAN LANDTAG--LOCAL GOVERNMENT
1. Composition of the Landtag 257
2. The Movement for Electoral Reform 260
3. Organization and Functions of the Landtag 263
4. Local Government: Origins and Principles 265
5. Local Government: Areas and Organs 268
XIV. THE MINOR GERMAN STATES--ALSACE-LORRAINE
1. The More Important Monarchies 275
2. The Lesser Monarchies and the City Republics 279
3. Alsace-Lorraine 282
PART III.--FRANCE
XV. CONSTITUTIONS SINCE 1789
1. A Century of Political Instability 289
2. The Revolutionary and Napoleonic Era 290
3. From the Restoration to the Revolution of 1848 295
4. The Second Republic and the Second Empire 297
5. The Establishment of the Third Republic 301
6. The Constitution of To-day 304
XVI. THE PRESIDENT, THE MINISTRY, AND PARLIAMENT
1. The President 308
2. The Ministry 311
3. Parliament: Senate and Chamber of Deputies 315
4. The Problem of Electoral Reform 319
XVII. PARLIAMENTARY PROCEDURE--POLITICAL PARTIES
1. Organization and Workings of the Chambers 325
2. Political Parties since 1871 329
XVIII. JUSTICE AND LOCAL GOVERNMENT
1. French Law 335
2. The Courts 337
3. Local Government: Development since 1789 341
4. Local Government To-day 346
PART IV.--ITALY (p. xii)
XIX. CONSTITUTIONAL DEVELOPMENT IN THE NINETEENTH CENTURY
1. The Era of Napoleon 353
2. The Restoration and the Revolution of 1848 358
3. The Achievement of Unification 362
4. The Constitution 365
XX. THE ITALIAN GOVERNMENT SYSTEM
1. The Crown and the Ministry 368
2. Parliament: the Senate 372
3. The Chamber of Deputies--Parliamentary Procedure 375
4. The Judiciary 381
5. Local Government 383
XXI. STATE AND CHURCH--POLITICAL PARTIES
1. Quirinal and Vatican 387
2. Parties and Ministries, 1861-1896 391
3. The Era of Composite Ministries, 1896-1912 395
4. Phases of Party Politics 398
PART V.--SWITZERLAND
XXII. THE CONSTITUTIONAL SYSTEM--THE CANTONS
1. The Confederation and Its Constitutions 405
2. The Nation and the States 411
3. Cantonal Legislation: the Referendum and the Initiative 416
4. The Cantonal Executive and Judiciary 421
XXIII. THE FEDERAL GOVERNMENT
1. The Executive 423
2. Legislation: the Federal Assembly 426
3. Legislation: the Referendum and the Initiative 430
4. Political Parties 434
5. The Judiciary 437
PART VI.--AUSTRIA-HUNGARY
XXIV. AUSTRIA-HUNGARY PRIOR TO THE AUSGLEICH
1. Austrian Political Development to 1815 442
2. Hungarian Political Development to 1815 445
3. The Era of Metternich 450
4. The Revolution of 1848 453
5. The Revival of Constitutionalism: the Ausgleich 456
XXV. THE GOVERNMENT AND PARTIES OF AUSTRIA
1. The Constitution 460
2. The Crown and the Ministry 463
3. The Reichsrath--the Electoral System 465
4. Political Parties 474
5. The Judiciary and Local Government 483
XXVI. THE GOVERNMENT AND PARTIES OF HUNGARY (p. xiii)
1. The Constitution 489
2. The Crown and the Ministry 491
3. Parliament--the Electoral System 492
4. Political Parties 500
5. The Judiciary and Local Government 505
XXVII. AUSTRIA-HUNGARY: THE JOINT GOVERNMENT
1. The Common Organs of Government 510
2. The Territories of Bosnia and Herzegovina 514
PART VII.--THE LOW COUNTRIES
XXVIII. THE GOVERNMENT OF HOLLAND
1. A Century of Political Development 517
2. The Crown and the Ministry 523
3. The States-General and Political Parties 525
4. The Judiciary and Local Government 531
XXIX. THE GOVERNMENT OF BELGIUM
1. The Constitution--the Crown and the Ministry 534
2. The Houses of Parliament--the Electoral System 538
3. Parties and Electoral Reform since 1894--Parliamentary
Procedure 542
4. The Judiciary and Local Government 549
PART VIII.--SCANDINAVIA
XXX. THE GOVERNMENT OF DENMARK
1. Development Prior to 1814 553
2. The Rise of Constitutionalism, 1814-1866 556
3. The Crown and the Ministry 559
4. The Rigsdag--Political Parties 562
5. The Judiciary and Local Government 568
XXXI. THE SWEDISH-NORWEGIAN UNION AND THE GOVERNMENT OF NORWAY
1. Political Development to 1814 570
2. The Swedish-Norwegian Union, 1814-1905 573
3. The Norwegian Constitution--Crown and Ministry 578
4. The Storthing--Political Parties 581
5. The Judiciary and Local Government 587
XXXII. THE GOVERNMENT OF SWEDEN
1. The Constitution--the Crown and the Ministry 589
2. The Riksdag--the Electoral System 591
3. The Riksdag in Operation--Political Parties 597
4. The Judiciary and Local Government 600
PART IX.--THE IBERIAN STATES (p. xiv)
XXXIII. THE GOVERNMENT OF SPAIN
1. The Beginnings of Constitutionalism 603
2. Political and Constitutional Development, 1833-1876 606
3. The Present Constitution 611
4. The Crown and the Ministry 613
5. The Cortes 616
6. Political Parties 620
7. The Judiciary and Local Government 626
XXXIV. THE GOVERNMENT OF PORTUGAL
1. A Century of Political Development 629
2. The Government of the Kingdom 634
3. The Revolution of 1910 639
4. The Constitution of 1911 643
GOVERNMENTS OF EUROPE (p. 001)
PART I.--GREAT BRITAIN
CHAPTER I
THE FOUNDATIONS OF THE CONSTITUTION
I. THE IMPORTANCE OF HISTORICAL BACKGROUND
*1. Political Pre-eminence of Great Britain.*--George III. is reported
to have pronounced the English constitution the most perfect of human
formations. One need hardly concur unreservedly in this dictum to be
impressed with the propriety of beginning a survey of the governmental
systems of modern Europe with an examination of the political
principles, rules, and practices of contemporary Britain. The history
of no other European nation, in the first place, exhibits a
development of institutions so prolonged, so continuous, and so
orderly. The governmental forms and agencies of no other state have
been studied with larger interest or imitated with clearer effect. The
public policy of no other organized body of men has been more
influential in shaping the progress, social and economic as well as
political, of the civilized world. For the American student,
furthermore, the approach to the institutions of the European
continent is likely to be rendered easier and more inviting if made by
way of a body of institutions which lies at the root of much that is
both American and continental. There are, it is true, not a few
respects in which the governmental system of the United States to-day
bears closer resemblance to that of France, Germany, Switzerland, or
even Italy than to that of Great Britain. The relation, however,
between the British and the American is one, in the main, of
historical continuity, while that between the French or German and the
American is one which arises largely from mere imitation or from
accidental resemblance.
*2. The Continuity of Institutional History.*--No government can be
studied adequately apart from the historical development which has (p. 002)
made it what it is; and this ordinarily means the tracing of origins
and of changes which stretch through a prolonged period of time. Men
have sometimes imagined that they were creating a governmental system
_de novo_, and it occasionally happens, as in France in 1791 and in
Portugal in 1911, that a regime is instituted which has little
apparent connection with the past. History demonstrates, however, in
the first place, that such a regime is apt to perpetuate more of the
old than is at the time supposed and, in the second place, that unless
it is connected vitally with the old, the chances of its achieving
stability or permanence are inconsiderable. In Germany, for example,
if the institutions of the Empire were essentially new in 1871, the
governmental systems of the several federated states, and of the towns
and local districts, exhibited numerous elements which in origin were
mediaeval. In France, if central institutions, and even the political
arrangements of the department and of the arrondissement, do not
antedate the Revolution, the commune, in which the everyday political
activity of the average citizen runs its course, stands essentially as
it was in the age of Louis XIV.
If the element of continuity is thus important in the political system
of Germany, France, or Switzerland, in that of England it is
fundamental. It is not too much to say that the most striking aspect
of English constitutional history is the continual preservation, in
the teeth of inevitable changes, of a preponderating proportion of
institutions that reach far into the past. "The great difficulty which
presses on the student of the English constitution, regarded as a set
of legal rules," observes a learned commentator, "is that he can never
dissociate himself from history. There is hardly a rule which has not
a long past, or which can be understood without some consideration of
the circumstances under which it first came into being."[1] It is the
purpose of the present volume to describe European governments as they
to-day exist and operate. It will be necessary in all cases, however,
to accord some consideration to the origins and growth of the
political organs and practices which may be described. In respect to
Great Britain this can mean nothing less than a survey, brief as may
be, of a thousand years of history.
[Footnote 1: W. R. Anson, The Law and Custom of the
Constitution (3d ed., Oxford, 1897), I., 13.]
II. ANGLO-SAXON BEGINNINGS
The earliest form of the English constitution was that which existed
during the centuries prior to the Norman Conquest. Political
organization among the Germanic invaders of Britain was of the (p. 003)
most rudimentary sort, but the circumstances of the conquest and
settlement of the island were such as to stimulate a considerable
elaboration of governmental machinery and powers. From the point of
view of subsequent institutional history the most important features
of the Anglo-Saxon governmental system were kingship, the witenagemot,
and the units of local administration--shire, hundred, borough, and
township.[2]
[Footnote 2: See G. B. Adams, The Origin of the
English Constitution (New Haven, 1912), Chap. 1.
That the essentials of the English constitution of
modern times, in respect to forms and machinery,
are products of the feudalization of England which
resulted from the Norman Conquest, and not
survivals of Anglo-Saxon governmental arrangements,
is the well-sustained thesis of this able study.
That many important elements, however, were
contributed by Anglo-Saxon statecraft is beyond
dispute.]
*3. Kingship.*--The origins of Anglo-Saxon kingship are shrouded in
obscurity, but it is certain that the king of later days was
originally nothing more than the chieftain of a victorious war-band.
During the course of the occupation of the conquered island many
chieftains attained the dignity of kingship, but with the progress of
political consolidation one after another of the royal lines was
blotted out, old tribal kingdoms became mere administrative districts
of larger kingdoms, and, eventually, in the ninth century, the whole
of the occupied portions of the country were brought under the control
of a single sovereign. Saxon kingship was elective, patriarchal, and,
in respect to power, limited. Kings were elected by the important men
sitting in council, and while the dignity was hereditary in a family
supposedly descended from the gods, an immediate heir was not unlikely
to be passed over in favor of a relative who was remoter but abler.[3]
In both pagan and Christian times the royal office was invested with a
pronouncedly sacred character. As early as 690 Ine was king "by God's
grace." But the actual authority of the king was such as arose
principally from the dignity of his office and from the personal
influence of the individual monarch.[4] The king was primarily a
war-leader. He was a law-giver, but his "dooms" were likely to be
framed only in consultation with the wise men, and they pertained to
little else than the preservation of the peace. He was supreme (p. 004)
judge, and all crimes and breaches of the peace came to be looked upon
as offenses against him; but he held no court and he had in practice
little to do with the administration of justice. Over local affairs he
had no direct control whatever.
[Footnote 3: Thus, in 871, the minor children of
Ethelred I. were passed over in favor of Alfred,
younger brother of the late king.]
[Footnote 4: The Anglo-Saxon king was "not the
supreme law-giver of Roman ideas, nor the fountain
of justice, nor the irresponsible leader, nor the
sole and supreme politician, nor the one primary
landowner; but the head of the race, the chosen
representative of its identity, the successful
leader of its enterprises, the guardian of its
peace, the president of its assemblies; created by
it, and, although empowered with a higher sanction
in crowning and anointing, answerable to his
people." W. Stubbs, Select Charters Illustrative of
English Constitutional History (8th ed., Oxford,
1895), 12.]
*4. The Witenagemot.*--Associated with the king in the conduct of
public business was the council of wise men, or witenagemot. The
composition of this body, being determined in the main by the will of
the individual monarch, varied widely from time to time. The persons
most likely to be summoned were the members of the royal family, the
greater ecclesiastics, the king's gesiths or thegns, the ealdormen who
administered the shires, other leading officers of state and of the
household, and the principal men who held land directly of the king.
There were included no popularly elected representatives. As a rule,
the witan was called together three or four times a year. Acting with
the king, it made laws, imposed taxes, concluded treaties, appointed
ealdormen and bishops, and occasionally heard cases not disposed of in
the courts of the shire and hundred. It was the witan, furthermore,
that elected the king; and since it could depose him, he was obliged
to recognize a certain responsibility to it. "It has been a marked and
important feature in our constitutional history," it is pointed out by
Anson, "that the king has never, in theory, acted in matters of state
without the counsel and consent of a body of advisers."[5]
[Footnote 5: Law and Custom of the Constitution,
II., Pt. 1., 7. Cf. W. Stubbs, Constitutional
History of England, I., 127.]
*5. Township, Borough, and Hundred.*--By reason of their persistence,
and their comparative changelessness from earliest times to the later
nineteenth century, the utmost importance attaches to Anglo-Saxon
arrangements respecting local government and administration. The
smallest governmental unit was the township, comprising normally a
village surrounded by arable lands, meadows, and woodland. The
town-moot was a primary assembly of the freemen of the village, by
which, under the presidency of a reeve, the affairs of the township
were administered. A variation of the township was the burgh, or
borough, whose population was apt to be larger and whose political
independence was greater; but its arrangements for government
approximated closely those of the ordinary township. A group of
townships comprised a hundred. At the head of the hundred was a
hundred-man, ordinarily elected, but not infrequently appointed by a
great landowner or prelate to whom the lands of the hundred belonged.
Assisting him was a council of twelve or more freemen. In the (p. 005)
hundred-moot was introduced the principle of representation, for to
the meetings of that body came regularly the reeve, the parish priest,
and four "best men" from each of the townships and boroughs comprised
within the hundred. The hundred-moot met as often as once a month, and
it had as its principal function the adjudication of disputes and the
decision of cases, civil, criminal, and ecclesiastical.
*6. The Shire.*--Above the hundred was the shire. Originally, as a
rule, the shires were regions occupied by small but independent
tribes; eventually they became administrative districts of the united
kingdom. At the head of the shire was an ealdorman, appointed by the
king and witan, generally from the prominent men of the shire.
Subordinate to him at first, but in time overshadowing him, was the
shire-reeve, or sheriff, who was essentially a representative of the
crown, sent to assume charge of the royal lands in the shire, to
collect the king's revenue, and to receive the king's share of the
fines imposed in the courts. Each shire had its moot, and by reason of
the fact that the shires and bishoprics were usually coterminous, the
bishop sat with the ealdorman as joint president of this assemblage.
In theory, at least, the shire-moot was a gathering of the freemen of
the shire. It met, as a rule, twice a year, and to it were entitled to
come all freemen, in person or by representation. It was within the
competence of those who did not desire to attend to send as spokesmen
their reeves or stewards; so that the body was likely to assume the
character of a mixed primary and representative assembly. The
shire-moot decided disputes pertaining to the ownership of land, tried
suits for which a hearing could not be obtained in the court of the
hundred, and exercised an incidental ecclesiastical jurisdiction.[6]
[Footnote 6: The classic description of Anglo-Saxon
political institutions is W. Stubbs, Constitutional
History of England in its Origin and Development, 3
vols. (6th ed., Oxford, 1897), especially I.,
74-182; but recent scholarship has supplemented and
modified at many points the facts and views therein
set forth. A useful account (though likewise
subject to correction) is H. Taylor, The Origins
and Growth of the English Constitution, 2 vols.
(new ed., Boston, 1900), I., Bk. 1., Chaps. 3-5;
and a repository of information is J. Ramsay, The
Foundations of England, 2 vols. (London, 1898). A
valuable sketch is A. B. White, The Making of the
English Constitution, 449-1485 (New York, 1908),
16-62. A brilliant book is E. A. Freeman, The
Growth of the English Constitution (4th ed.,
London, 1884); but by reason of Professor Freeman's
over-emphasis of the perpetuation of Anglo-Saxon
institutions in later times this work is to be used
with caution. Political and institutional history
is well set forth in T. Hodgkin, History of England
to the Norman Conquest (London, 1906), and C. W. C.
Oman, England before the Norman Conquest (London,
1910). A useful manual is H. M. Chadwick, Studies
on Anglo-Saxon Institutions (Cambridge, 1905); and
an admirable bibliography is C. Gross, The Sources
and Literature of English History (London, 1900).]
III. THE NORMAN-PLANTAGENET PERIOD (p. 006)
At the coming of William the Conqueror, in 1066, two fundamental
principles may be said to have been firmly fixed in the English
political system. The first was that of thoroughgoing local
self-government. The second was that of the obligation of the king, in
all matters of first-rate importance, such as the laying of taxes and
the making of laws, to seek the counsel and consent of some portion of
his subjects. In the period which was inaugurated by the Conquest
neither of these principles was entirely subverted, yet the Norman era
stands out distinctly as one in which the powers of government were
gathered in the hands of the king and of his immediate agents in a
measure unknown at any earlier time. Building in so far as was
possible upon foundations already laid, William was able so to
manoeuver the consequences of the Conquest as to throw the advantages
all but wholly upon the side of the crown. Feudalism, land-tenure,
military service, taxation, the church--to all was imparted, by force
or by craft, such a bent that the will of the sovereign acquired the
practical effect of law, and monarchy in England, traditionally weak,
was brought to the verge of sheer absolutism.
*7. Extension of Centralized Control.*--In respect to the actual
mechanism of government the principal achievement of the
Norman-Plantagenet period was the overhauling and consolidation of the
agencies of administration. Despite the fact that local institutions
of Saxon origin were largely respected, so that they have continued to
this day the most substantial Anglo-Saxon contribution to English
polity, there was a notable linking-up of these hitherto largely
disassociated institutions with the institutions of the central
government. This was accomplished in part by the dissolution of the
earldoms by which the monarchy had been menaced in later Saxon days,
and in part by a tremendous increase of the power and importance of
the sheriffs. It was accomplished still more largely, however, by the
organization of two great departments of government--those of justice
and finance--presided over by dignitaries of the royal household and
manned by permanent staffs of expert officials. The department of
justice comprised the Curia; that of finance, the Exchequer. At the
head of the one was the Chancellor; at the head of the other, the
Treasurer. The principal officials within the two comprised a single
body of men, sitting now as _justitiarii_, or justices, and now as
_barones_ of the Exchequer. The profits and costs of asserting and
administering justice and the incomings and outgoings of the Exchequer
were but different aspects of the same fundamental concerns of (p. 007)
state.[7] The justices of the Curia who held court on circuit
throughout the realm and the sheriffs who came up twice a year to
render to the barons of the Exchequer an account of the sums due from
the shires served as the real and tangible agencies through which the
central and local governments were knit together. As will appear, it
was from the Norman Curia that, in the course of time, there sprang
immediately those diversified departments of administration whose
heads comprise the actual executive of the British nation to-day.
[Footnote 7: Anson, Law and Custom of the
Constitution, II., Pt. I., II.]
*8. King and Great Council.*--Untrammelled by constitutional
restrictions, the Conqueror and his earlier successors recognized such
limitations only upon the royal authority as were imposed by powerful
and turbulent subjects. Associated with the king, however, was from
the first a body known as the _Commune Concilium_, the Common, or
Great, Council. "Thrice a year," the Saxon Chronicle tells us, "King
William wore his crown every year he was in England; at Easter he wore
it at Winchester; at Pentecost, at Westminster; and at Christmas, at
Gloucester; and at these times all the men of England were with
him--archbishops, bishops and abbots, earls, thegns and knights." By
the phrase "all the men of England" is to be understood only the great
ecclesiastics, the principal officers of state, and the king's
tenants-in-chief--in truth, only such of the more important of these
as were summoned individually to the sovereign's presence. At least in
theory, however, the Norman kings were accustomed to consult this
gathering of magnates, very much as their predecessors had been
accustomed to consult the witenagemot, upon all important questions of
legislation, finance, and public policy. It may, indeed, be said that
it is the development of this Council that comprises the central
subject of English constitutional history; for, "out of it, directly
or indirectly, by one process or another, have been evolved
Parliament, the Cabinet, and the courts of law."[8]
[Footnote 8: W. Wilson, The State (rev. ed.,
Boston, 1903), 369.]
*9. The Plantagenet Monarchy.*--During the century and a half following
the death of the Conqueror the vigor of the monarchy varied
enormously, but not until the days of King John can there be said to
have been any loss of power or independence which amounted to more
than a passing circumstance. In a charter granted at the beginning of
his reign, in 1100, Henry I. confirmed the liberties of his subjects
and promised to respect the laws of Edward the Confessor; but the new
sovereign did not propose, and no one imagined that he intended to
propose, to relax any of the essential and legitimate power which had
been transmitted to him by his father and brother. The reign of (p. 008)
Stephen (1135-1154) was an epoch of anarchy happily unparalleled in
the history of the nation. During the course of it the royal authority
sank to its lowest ebb since the days of the Danish incursions. But
the able and wonderfully energetic Henry II. (1154-1189) recovered all
that had been lost and added not a little of his own account. "Henry
II.," it has been said, "found a nation wearied out with the miseries
of anarchy, and the nation found in Henry II. a king with a passion
for administration."[9] With the fundamental purpose of reducing all
of his subjects to equality before an identical system of law, the
great Plantagenet sovereign waged determined warfare upon both the
rebellious nobility and the independent clergy. He was not entirely
successful, especially in his conflict with the clergy; but he
effectually prevented a reversion of the nation to feudal chaos, and
he invested the king's law with a sanction which it had known hardly
even in the days of the Conqueror. The reign of Henry II. has been
declared, indeed, to "initiate the rule of law."[10] By reviving and
placing upon a permanent basis the provincial visitations of the royal
justices, for both judicial and fiscal purposes, and by extending in
the local administration of justice and finance the principle of the
jury, Henry contributed fundamentally to the development of the
English Common Law, the jury, and the modern hierarchy of courts. By
appointing as sheriffs lawyers or soldiers, rather than great barons,
he fostered the influence of the central government in local affairs.
By commuting military service for a money payment (_scutage_), and by
a revival of the ancient militia system (the _fyrd_), he brought the
control of the armed forces of the nation effectually under royal
control. By the frequent summons of the Great Council and the
systematic reference to it of business of moment he contributed to the
importance of an institution through whose amplification a century
later Parliament was destined to be brought into existence.
[Footnote 9: Anson, Law and Custom of the
Constitution, II., Pt. I., 13.]
[Footnote 10: Stubbs, Select Charters, 21.]
*10. The Great Charter, 1215.*--The period of Richard I. (1189-1199)
was, in constitutional matters, a continuation of that of Henry II.
Richard was absent from the kingdom throughout almost the whole of the
reign, but under the guidance of officials trained by Henry the
machinery of government operated substantially as before. Under John
(1199-1216) came a breakdown, occasioned principally by the sovereign's
persistence in evading certain limitations upon the royal authority
which already had assumed the character of established rules of the
constitution. One of these forbade that the king should impose fresh
taxation except with the advice and consent of the Great Council. (p. 009)
Another enjoined that a man should not be fined or otherwise despoiled
of his property except in virtue of judicial sentence. These and other
principles John habitually disregarded, with the consequence that in
time he found himself without a party and driven to the alternative of
deposition or acceptance of the guarantee of liberties which the
barons, the Church, and the people were united in demanding of him.
The upshot was the promulgation, June 15, 1215, of Magna Carta.
No instrument in the annals of any nation exceeds in importance the
Great Charter. The whole of English constitutional history, once
remarked Bishop Stubbs, is but one long commentary upon it. The
significance of the Charter arises not simply from the fact that it
was wrested from an unwilling sovereign by concerted action of the
various orders of society (action such as in France and other
continental countries never, in mediaeval times, became possible), but
principally from the remarkable summary which it embodies of the
fundamental principles of English government in so far as those
principles had ripened by the thirteenth century. The Charter
contained little or nothing that was new. Its authors, the barons,
sought merely to gather up within a reasonably brief document those
principles and customs which the better kings of England had been wont
to observe, but which in the evil days of Richard and John had been
persistently evaded. There was no thought of a new form of government,
or of a new code of laws, but rather of the redress of present and
practical grievances. Not a new constitution, but good government in
conformity with the old one, was the essential object. Naturally
enough, therefore, the instrument was based, in most of its important
provisions, upon the charter granted by Henry I. in 1100, even as that
instrument was based, in the main, upon the righteous laws of Edward
the Confessor. After like manner, the Charter of 1215 became, in its
turn, the foundation to which reassertions of constitutional liberty
in subsequent times were apt to return; and, under greater or lesser
pressure, the Charter itself was "confirmed" by numerous sovereigns
who proved themselves none too much disposed to observe its
principles.
In effect the Charter was a treaty between the king and his dissatisfied
subjects. It was essentially a feudal document, and the majority of
its provisions relate primarily to the privileges and rights of the
barons. None the less, it contains clauses that affected all classes
of society, and it is especially noteworthy that the barons and clergy
pledged themselves in it to extend to their dependents the same
customs and liberties which they were themselves demanding of the
crown. Taking the Charter as a whole, it guaranteed the freedom of
the Church, defined afresh and in precise terms surviving feudal (p. 010)
incidents and customs, placed safeguards about the liberties of the
boroughs, pledged security of property and of trade, and stipulated
important regulations respecting government and law, notably that
whenever the king should propose the assessment of scutages or of
unusual aids he should take the advice of the General Council,
composed of the tenants-in-chief summoned individually in the case of
the greater ones and through the sheriffs in the case of those of
lesser importance. Certain general clauses, e.g., that pledging that
justice should neither be bought nor sold, and that prescribing that a
freeman might not be imprisoned, outlawed, or dispossessed of his
property save by the judgment of his peers or by the law of the land,
meant in effect considerably less than they sometimes have been
interpreted to mean.[11] Yet even they served to emphasize the
fundamental principle upon which the political and legal structure was
intended to be grounded, that, namely, of impartial and unvarying
justice.[12]
[Footnote 11: The term "peers," as here employed,
means only equals in rank. The clause cited does
not imply trial by jury. It comprises a guarantee
simply that the barons should not be judged by
persons whose feudal rank was inferior to their
own. Jury trial was increasingly common in the
thirteenth century, but it was not guaranteed in
the Great Charter.]
[Footnote 12: Good accounts of the institutional
aspects of the Norman-Angevin period are Stubbs,
Constitutional History, I., 315-682, II., 1-164;
Taylor, Origin and Growth of the English
Constitution, I., Bk. 2, Chaps. 2-3; Adams, The
Origin of the English Constitution, Chaps. 1-4; and
White, Making of the English Constitution, 73-119.
Two excellent little books are Stubbs, Early
Plantagenets (London, 1876) and Mrs. J. R. Green,
Henry II. (London, 1892). General accounts will be
found in T. F. Tout, History of England from the
Accession of Henry III. to the Death of Edward
III., 1216-1377 (London, 1905), and H. W. C. Davis,
England under the Normans and the Angevins (London,
1904). A monumental treatise, though one which
requires a considerable amount of correction, is E.
A. Freeman, History of the Norman Conquest, 6 vols.
(Oxford, 1867-69), and a useful sketch is Freeman,
Short History of the Norman Conquest (3d ed.,
Oxford, 1901). Among extended and more technical
works may be mentioned: F. Pollock and F. W.
Maitland, History of English Law, 2 vols. (2d ed.,
Cambridge, 1898), which, as a study of legal
history and doctrines, supersedes all earlier
works; F. W. Maitland, Domesday Book and Beyond
(Cambridge, 1897); J. H. Round, Feudal England
(London, 1895); K. Norgate, England under the
Angevin Kings, 2 vols. (London, 1887); ibid., John
Lackland (London, 1902), and J. H. Ramsay, The
Angevin Empire (London, 1903). The text of the
Great Charter is printed in Stubbs, Select
Charters, 296-306. English versions may be found in
G. B. Adams and H. M. Stephens, Select Documents of
English Constitutional History (New York, 1906),
42-52; S. Amos, Primer of the English Constitution
and Government (London, 1895), 189-201; and
University of Pennsylvania Translations and
Reprints (translation by E. P. Cheyney), I., No. 6.
The principal special work on the subject is W. S.
McKechnie, Magna Carta; a Commentary on the Great
Charter of King John (Glasgow, 1905). An
illuminating commentary is contained in Adams,
Origin of the English Constitution, 207-313.]
IV. THE RISE OF PARLIAMENT (p. 011)
*11. Beginnings of the Representative Principle.*--The thirteenth
century was clearly one of the most important periods in the growth of
the English constitution. It was marked not merely by the contest
which culminated in the grant of the Great Charter but also by the
beginnings, in its essentials, of Parliament. The formative epoch in
the history of Parliament may be said to have been, more precisely,
the second half of the reign of Henry III. (1216-1272), together with
the reign of the legislator-king Edward I. (1272-1307). The creation
of Parliament as we know it came about through the signal enlargement
of the Norman-Plantagenet Great Council by the introduction of
representative elements, followed by the splitting of the
heterogeneous mass of members definitely into two co-ordinate
chambers. The representative principle was in England no new thing in
the thirteenth century. As has appeared, there were important
manifestations of it in the local governmental system of Anglo-Saxon
times. As brought to bear in the development of Parliament, however,
the principle is generally understood to have sprung from the
twelfth-century practice of electing assessors to fix the value of
real and personal property for purposes of taxation, and of jurors to
present criminal matters before the king's justices. Thus, Henry II.'s
Saladin Tithe of 1188--the first national imposition upon incomes and
movable property--was assessed, at least in part, by juries of
neighbors elected by, and in a sense representative of, the taxpayers
of the various parishes. By the opening of the thirteenth century the
idea was fast taking hold upon the minds of Englishmen, not only that
the taxpayer ought to have a voice in the levying of taxes, but that
between representation and taxation there was a certain natural and
inevitable connection. In the Great Charter, as has been stated, it
was stipulated that in the assessment of scutages and of all save the
three commonly recognized feudal aids the king should seek the advice
of the General Council. The General Council of the earlier thirteenth
century was not regularly a representative body, but it was not beyond
the range of possibility to impart to it a representative character,
and in point of fact that is precisely what was done. To facilitate
the process of taxation it was found expedient by the central
authorities to carry over into the domain of national affairs that
principle of popular representation which already was doing approved
service within the sphere of local justice and finance, and from this
adaptation arose, step by step, the conversion of the old gathering of
feudal magnates into a national parliamentary assembly.
*12. Early Parliaments.*--The means by which the transformation (p. 012)
was accomplished consisted in the first instance, as has been said, in
the introduction into the Council of new and representative elements.
The earliest step in this direction was taken in 1213, when King John,
harassed by fiscal and political difficulties, addressed to the
sheriffs a series of writs commanding that four discreet knights from
every county be sent to participate in a deliberative council to be
held at Oxford. The practice took root slowly. In 1254 Henry III., in
sore need of money for the prosecution of his wars in Gascony,
required of the sheriffs that two knights be sent from each county to
confer with the barons and clergy relative to the subsidies which
should be accorded the crown. The desired vote of supplies was refused
and the long-brewing contest between the king and the barons broke in
civil war. But during the struggle that ensued the foundations of
Parliament were still more securely laid. Following the king's defeat
at Lewes, in 1264, Simon de Montfort, leader of the barons, convened a
parliament composed of not only barons and clergy but also four
knights from each shire, and at London during the following year, he
caused again to be assembled, in addition to five earls, eighteen
barons, and a large body of clergy, two knights from each of the
several shires and two burgesses from each of twenty-one towns known
to be friendly to the barons' cause. These proceedings were
essentially revolutionary and unauthorized. Even the gathering of
1265, as Stubbs remarks, presented the appearance largely of a party
convention, and there is no evidence that its author intended such a
body to be regularly or frequently summoned, or even summoned a second
time at all. None the less, now for the first time representatives of
the towns were brought into political co-operation with the barons,
clergy, and knights; and the circumstance was filled with promise.
During the ensuing thirty years there were several "parliaments,"
although the extent to which knights and burgesses participated in
them is uncertain. The period was one of experimentation. In 1273 four
knights from each shire and four citizens from each town joined the
magnates in taking the oath of fealty to the new and absent sovereign,
Edward I. The First Statute of Westminster, in 1275, declares itself
to have been adopted with the assent of the "commonalty of the realm."
In 1283 a parliament was held which almost precisely duplicated that
of 1265. In 1290, and again in 1294, there was one, in which, however,
representation of the towns was omitted.
The gathering which served to fix the type for all time to come was
Edward I.'s so-called Model Parliament of 1295. To this parliament the
king summoned severally the two archbishops, all of the bishops, the
greater abbots, and the more important earls and barons; while (p. 013)
every sheriff was enjoined to see that two knights were chosen from
each shire, two citizens from each city, and two burgesses from each
borough. Each bishop was authorized, furthermore, to bring with him
his prior or the dean of the cathedral chapter, the archdeacons of his
diocese, one proctor or agent for his cathedral chapter, and two of
his diocesan clergy. In the parliament as actually convened there were
2 archbishops, 18 bishops with their lesser clergy, 66 abbots, 3 heads
of religious orders, 9 earls, 41 barons, 63 knights of the shire, and
172 representatives of the cities and boroughs--an aggregate of
approximately 400 persons. There were thus present in the assemblage,
in person or by deputy, all of the constituent orders of English
society, and the irregular device of Simon de Montfort was vested at
last with the character of legality. After Edward I. Parliament may be
said to have been an established institution of the realm. Its
meetings long continued intermittent and infrequent, and its powers
from time to time varied enormously, but the place which it filled in
the economy of the nation grew ever more important.
*13. Establishment of the Bicameral System.*--Like its counterpart in
France, the Estates-General, the English Parliament comprised the
three great estates or orders--nobility, clergy, and commons--of
which, aside from the peasantry, mediaeval society in all western
European countries was composed. In the working out of its internal
structure, however, two chambers resulted, rather than, as in France,
three. Originally the three estates sat separately. Their primary
business was the voting of supplies and, the principle being that a
tax ought to be conceded by those who would be called upon to pay it,
the natural course was for the lords to grant their scutages and aids,
the commoners their tenths and fifteenths, and the clergy their
subsidies, apart. Indeed there is reason to believe that at times even
the knights and the burgesses deliberated separately. Gradually,
however, there appeared certain affiliations of interest which
operated to modify the original practice. In the first place, the
lesser clergy, inconvenienced by attendance and preferring to vote
their contributions in the special ecclesiastical assemblages known as
the convocations of Canterbury and York, contrived to throw off
entirely their obligation of membership. The greater clergy and the
greater barons, in the next place, developed sufficiently large
interests in common to be amalgamated with ease in one body.
Similarly, the lesser barons found their interests essentially
identical with those of the country freeholders, represented by the
knights of the shire, and with those of the burgesses. The upshot was a
gradual alignment of the aggregate membership in two great groups, (p. 014)
the one of which became historically the House of Lords, the other the
House of Commons. At the beginning of the reign of Edward III.
(1327-1377) the three estates still sat separately, but before the
close of this period the bicameral arrangement seems definitely to
have been established. There is no evidence that at any stage of their
history the three groups ever sat as a single body. It need hardly be
emphasized that the entire course of English history since the
fourteenth century has been affected profoundly by the fact that the
national assembly took the form of two houses rather than of one, as
did the Scotch, of three as did the French, or of four as did the
Swedish. But for the withdrawal of the lesser clergy, the number might
very possibly have been three.
*14. Powers of Finance and Legislation.*--Structurally, the English
Parliament is a creation of the Middle Ages; politically, it is a
product of modern times, and, in no small measure, of the past hundred
years. Before the close of the Middle Ages, however, it had acquired a
sum total of authority which at least gave promise of its development
into a great co-ordinate, if not a preponderating, power in the state.
In the first place, it had forced the establishment of the twin
principles of public finance (1) that the right to levy taxes of every
sort lay within its hands and (2) that the crown might impose no
direct tax without its assent, nor any indirect tax save such as might
be justified under the customs recognized in Magna Carta. When Edward
I. confirmed the Charter, in 1297, he agreed that no tallages or aids
should thereafter be taken without the assent of the archbishops,
bishops, earls, barons, knights, burgesses, and other freemen of the
land. A statute of 1340 reiterated the principle still more
specifically. In 1395 appeared the formula employed to this day in the
making of parliamentary grants, "by the Commons with the advice and
assent of the Lords Spiritual and Temporal." And in 1407 Henry IV.
extended the royal approval to the principle that money grants should
be initiated in the Commons, assented to by the Lords, and only
thereafter reported to the king. For the ancient theory of taxation by
estates was substituted, slowly but inevitably, the modern doctrine of
the fiscal pre-eminence of the Commons.
The second point at which Parliament made decisive advance before the
close of the mediaeval period was in respect to powers of ordinary
legislation. Originally, Parliament was not conceived of as, in the
strict sense, a law-making body at all. The magnates who composed the
General Council had exercised the right to advise the crown in
legislative matters, and their successors in Parliament continued to
do the same, but the commoners who in the thirteenth century were (p. 015)
brought in were present, in theory, for fiscal rather than legislative
purposes. The distinction, however, was difficult to maintain, and
with the continued growth of the parliamentary body the legislative
character was recognized eventually to be inherent in the whole of it.
At the opening of the fourteenth century laws were made, technically,
_by_ the king with the _assent_ of the magnates at the _request_ of
the commoners. The knights and burgesses were recognized as
petitioners for laws, rather than as legislators. They could ask for
the enactment of a statute, or for a clearer definition of law, but it
was for the king and his councillors to determine finally whether
legislation was required and what form it should assume. Even when a
law which was requested was promised it not infrequently happened that
the intent of the Commons was thwarted, for the text of the measure
was not drawn up, normally, until after the parliament was dissolved,
both form and content were determined arbitrarily by the crown and
council, and between petition and statute there might be, and often
was, gross discrepancy.
*15. Development of the Legislative Process.*--By a memorable statute of
1322, in the reign of Edward II., it was stipulated that "the matters
which are to be established for the estate of our lord the king and of
his heirs, and for the estate of the realm and of the people, shall be
treated, accorded, and established in parliaments, by our lord the king,
and by the assent of the prelates, earls, and barons, and the
commonalty of the realm; according as it hath been before accustomed."[13]
This declaration is understood to have established, not only the
essentially legislative character of Parliament, but the legislative
parity of the commoners with the magnates. It remained, however, to
substitute for the right of petition the right of legislating by bill.
Throughout the fourteenth century Parliament, and especially the
Commons, pressed for an explicit recognition of the principle that the
statute in its final form should be identical with the petition upon
which it was based. In 1414 Henry V. granted that "from henceforth
nothing be enacted to the petitions of his commons that be contrary to
their asking, whereby they should be bound without their assent."[14]
The promise tended in practice to be evaded, and late in the reign of
Henry VI. there was brought about an alteration of procedure in
accordance with which measures were henceforth to be introduced in
either house, in the form of drafted bills. The legislative process
was now essentially reversed. The right of initiative was secured to
the Commons, concurrently with the Lords; the crown was restricted to
a right of veto or assent. The change in procedure was reflected (p. 016)
in a change of formula. Statutes began to be made "by the King's most
excellent majesty by and with the advice and consent of the Lords
spiritual and temporal, and Commons in this present Parliament assembled,
and by the authority of the same." And these words comprise the
formula with which every act of Parliament to-day begins. Technically,
the laws were, and are still, made by the crown; practically
Parliament, once merely a petitioning and advising body, had become a
full-fledged legislative assemblage.
[Footnote 13: Adams and Stephens, Select Documents,
97.]
[Footnote 14: Ibid., 182.]
Throughout the later fourteenth and earlier fifteenth centuries the
growth of Parliament in self-assertiveness was remarkable. Twice
during the fourteenth century, in 1327 and in 1399, it exercised the
fundamental prerogative of deposing the sovereign and of bestowing the
crown upon a successor.[15] And before the close of the Lancastrian
era it had assumed advanced ground in demanding the right of
appropriating (as well as of voting) subsidies, the accounting by the
public authorities for moneys expended, the removal of objectionable
ministers, and the annual assembling of the two houses. During the
civil wars of the second half of the fifteenth century parliamentary
aggressiveness and influence materially declined, and at the opening
of the Tudor period, in 1485, the body was in by no means the
favorable position it had occupied fifty years earlier. As will
appear, its eclipse continued largely through the epoch of the Tudors.
Yet its broader aspects had been permanently fixed and its
perpetuation in the constitutional system positively assured.[16]
[Footnote 15: Strictly, upon the first of these
occasions the sovereign, Edward II., was driven by
threat of deposition to abdicate.]
[Footnote 16: On the rise of Parliament see Stubbs,
Constitutional History of England, II., Chaps. 15,
17; Taylor, Origins and Growth of the English
Constitution, I., 428-616; G. B. Smith, History of
the English Parliament, 2 vols. (London, 1892), I.,
Bks. 2-4; White, Making of the English
Constitution, 298-401; D. J. Medley, Students'
Manual of English Constitutional History (2d ed.,
Oxford, 1898), 127-150; Tout, History of England
from the Accession of Henry III. to the Death of
Edward III., Chaps. 5, 6, 10. Valuable biographical
treatises are G. W. Prothero, Life of Simon de
Montfort (London, 1877); E. Jenks, Edward
Plantagenet [Edward I.] the English Justinian (New
York, 1902); and T. F. Tout, Edward the First
(London, 1906).]
V. ADMINISTRATIVE AND JUDICIAL DEVELOPMENT
*16. The Permanent Council.*--One line, thus, along which were laid the
foundations of the English governmental system of to-day comprised the
transformation of the Norman Great Council into the semi-aristocratic,
semi-democratic assemblage known as Parliament. A parallel line (p. 017)
was the development from the Great Council of a body designated after
the thirteenth century as the Permanent, after the fifteenth as the
Privy, Council, and likewise of the four principal courts of law. By a
very gradual process those members of the original Council who were
attached in some immediate manner to the court or to the administrative
system acquired a status which was different from that of their
colleagues. The Great Council met irregularly and infrequently. So
likewise did Parliament. But the services of the court and the
business of government must go on continuously, and for the care of
these things there grew up a body which at first comprised essentially
a standing commission, an inner circle, of the Council, but which in
time acquired a virtually independent position and was designated, for
purposes of distinction, as the Permanent Council. The composition of
this body varied from time to time. Certain functionaries were
included regularly, while the remaining members owed their places to
special summons of the crown. Its powers were enormous, being at the
same time administrative, judicial, and financial, and the mass of
business to which it was required to give attention was increasingly
great.
*17. The Courts of Law.*--Three things resulted. In the first place, the
Permanent Council acquired, in practice, complete detachment from the
older and larger body. In the second place, to facilitate the
accomplishment of its work there were introduced into it trained
lawyers, expert financiers, and men of other sorts of special
aptitudes--men, often, who in rank were but commoners. Finally, there
split off from the body a succession of committees, to each of which
was assigned a particular branch of administrative or judicial
business. In this manner arose the four great courts of law: (1) the
Court of Exchequer, to which was consigned jurisdiction over all
fiscal causes in which the crown was directly concerned; (2) the Court
of Common Pleas, with jurisdiction over civil cases between subject
and subject; (3) the Court of King's Bench, presided over nominally by
the king himself and taking cognizance of a variety of cases for which
other provision was not made; and (4) the Court of Chancery, which,
under the presidency of the Chancellor, heard and decided cases
involving the principles of equity. The differentiation of these
tribunals, beginning in the early twelfth century, was completed by
the middle of the fourteenth. Technically, all were co-ordinate
courts, from which appeal lay to the King in Council; and of the
judicial prerogative which the Council as a whole thus retained there
are still, as will be pointed out, certain survivals. By the time
of Henry VI. (1422-1461) the enlargement of membership and the
specialization of functions of the Permanent Council had (p. 018)
progressed so far that the Council had ceased entirely to be a working
unit. In the end what happened was that, precisely as the Permanent
Council had been derived by selection from the original Great Council,
so from the overgrown Permanent Council was constituted, in the
fifteenth century, a smaller and more compact administrative body to
which was assigned the designation of "Privy Council."[17]
[Footnote 17: Stubbs, Constitutional History, II.,
Chap. 13; White, Making of the English
Constitution, 123-251; Adams, Origin of the English
Constitution, 136-143; W. S. Holdsworth, History of
English Law, 3 vols. (London, 1903-1909), I.,
1-169.]
VI. THE TUDOR MONARCHY
*18. Popular Absolutism.*--The salient fact of the Tudor period of
English history (1485-1603) is the vigor and dominance of the
monarchy. From the Wars of the Roses the nation emerged in need, above
all other things, of discipline and repose. It was the part of the
Tudors to enforce relentlessly the one and to foster systematically
the other. The period was one in which aristocratic turbulence was
repressed, extraordinary tribunals were erected to bring to justice
powerful offenders, vagrancy was punished, labor was found for the
unemployed, trade was stimulated, the navy was organized on a
permanent basis, the diffusion of wealth and of education was
encouraged, the growth of a strong middle class was promoted--in
short, one in which out of chaos was brought order and out of weakness
strength. These things were the work of a government which was
strongly paternal, even sheerly despotic, and, for a time at least,
the evolution of parliamentary machinery was utterly arrested. But it
should be observed that the question in sixteenth-century England was
not between strong monarchy on the one hand and parliamentary
government on the other. The alternatives were, rather, strong
monarchy and baronial anarchy. This the nation clearly perceived, and,
of the two, it much preferred the former.
"The Tudor monarchy," says an English scholar, "unlike most other
despotisms, did not depend on gold or force, on the possession of vast
estates, unlimited taxation, or a standing army. It rested on the
willing support of the nation at large, a support due to the
deeply-rooted conviction that a strong executive was necessary to the
national unity, and that, in the face of the dangers which threatened
the country both at home and abroad, the sovereign must be allowed a
free hand. It was this conviction, instinctively felt rather than
definitely realized, which enabled Henry VIII. not only to crush open
rebellion but to punish the slightest signs of opposition to his (p. 019)
will, to regulate the consciences of his subjects, and to extend the
legal conception of treason to limits hitherto unknown. It was this
which rendered it possible for the ministers of Edward VI. to impose a
Protestant regime upon a Romanist majority, and allowed Mary to enter
upon a hateful marriage and to drag the country into a disastrous war.
It was this, finally, which enabled Elizabeth to choose her own line
in domestic and foreign policy, to defer for thirty years the war with
Spain, and to resist, almost single-handed, the pressure for further
ecclesiastical change. The Tudor monarchy was essentially a national
monarchy. It was popular with the multitude, and it was actively
supported by the influential classes, the nobility, the gentry, the
lawyers, the merchants, who sat as members of Parliament at
Westminster, mustered the forces of the shire as Lords-Lieutenant, or
bore the burden of local government as borough magistrates and
justices of the peace."[18]
[Footnote 18: G. W. Prothero, Select Statutes and
other Constitutional Documents Illustrative of the
Reigns of Elizabeth and James I, (Oxford, 1898),
xvii--xviii.]
*19. The Privy Council.*--The times of the Tudors and of the early
Stuarts have been designated with aptness the period of "government by
council." Parliament continued to exercise a certain control over
legislation and taxation, but it was in and through the Privy Council,
together with certain subordinate councils, that the absolute
monarchy, in the main, performed its work. The Privy Council--or
simply "the Council"--comprised ordinarily about seventeen or eighteen
persons, although under Henry VIII. its membership at one time
approached forty. The councillors were almost invariably members of
one or the other of the two houses of Parliament, an arrangement by
which was facilitated the control of the proceedings of that body by
the Government, but which did not yet involve any recognized
responsibility of the executive to the legislative branch. After Queen
Mary the councillors were, with few exceptions, laymen. Technically,
the function of the Council was only advisory, but in practice even
those sovereigns, as Henry VIII. and Elizabeth, who were most vigilant
and industrious, were obliged to allow to the councillors large
discretion in the conduct of public business, and under the early
Stuarts the Council very nearly ruled the realm. Representing at all
times the sovereign, who was supposed invariably to be present at its
deliberations, the Council supervised the work of administration,
regulated trade, granted licenses, controlled the press, kept an eye
on the law courts, ferreted out plots, took measures to suppress
rebellion, controlled the movements of the fleet, assisted in the
management of ecclesiastical affairs, and, in short, considered (p. 020)
and took action upon substantially all concerns of state. By virtue of
its right to issue orders or ordinances it possessed a power that was
semi-legislative; through its regulation of trade, its management of
loans and benevolences, and its determination of military obligations,
it participated actively in the control of taxation; and, under the
presidency of the crown, it possessed the functions of a supreme
tribunal, whose jurisdiction, in part original and in part appellate,
was widespread and peculiarly despotic.[19]
[Footnote 19: Prothero, Statutes and Constitutional
Documents, cii. See A. V. Dicey, The Privy Council
(London, 1887); E. Percy, The Privy Council under
the Tudors (Oxford, 1907).]
*20. Other Councils: The Star Chamber.*--In 1487 there was created a
special tribunal, consisting at the outset of seven great officials
and members of the Council, including two judges, to take special
cognizance of cases involving breaches of the law by offenders who
were too powerful to be reached under the operation of the ordinary
courts. This was the tribunal subsequently known, from its
meeting-place, as the Court of Star Chamber. In effect it was from the
beginning a committee of the Privy Council, empowered to exercise a
jurisdiction which in truth had long been exercised extra-legally by
the Council as a whole. The relation of the two institutions inclined
in practice to become ever closer, and by the middle of the sixteenth
century the Star Chamber had been enlarged to include all of the
members of the Council, together with the two chief justices; and
since the Star Chamber possessed a statutory sanction which the
Council lacked, the judicial business of the older body was despatched
regularly by its members sitting under the guise of the newer one. The
tendency of the Tudor regime toward the conciliar type of government
is manifested further by the creation of numerous subsidiary councils
and courts whose history cannot be recounted here. Most of these were
brought into existence during the reign of Henry VIII. Those of
principal importance were (1) the Council of the North, set up in
1539; (2) the Council of Wales, confirmed by statute of 1542; (3) the
Court of Castle Chamber, reproducing in Ireland the principal features
of the English Star Chamber; (4) the Courts of Augmentation, First
Fruits and Annates, and Wards; and (5) the Elizabethan Court of High
Commission.[20]
[Footnote 20: A. T. Carter, Outlines of English
Legal History (London, 1899), Chap. 12; A. Todd,
Parliamentary Government in England, ed. by S.
Walpole, 2 vols. (London, 1892), I., Chap. 2;
Dicey, The Privy Council, 94-115.]
VII. PARLIAMENT UNDER THE TUDORS (p. 021)
*21. Control by the Crown.*--By the Tudors generally, and especially
Henry VIII. and Elizabeth, Parliament was regarded as a tool to be
used by the crown, rather than as in any sense an independent,
co-ordinate power in the state. When innovations were to be
introduced, such as those carried through by Henry VIII., it was Tudor
policy to clothe them with the vestments of parliamentarism, to the
end that they might be given the appearance and the sanction of
popular measures; and when subsidies were to be obtained, it was
recognized to be expedient to impart to them, in similar manner, the
semblance of voluntary gifts on the part of the nation. It was no part
of Tudor intent, however, that Parliament should be permitted to
initiate measures, or even to exercise any actual discretion in the
adoption, amendment, or rejection of proposals submitted by the
Government. There were several means by which the crown contrived to
impede the rise of Parliament above the subordinate position which
that body occupied at the accession of Henry VII. One was the practice
of convening Parliament irregularly and infrequently and of bringing
its sessions to an early close. Another, employed especially during
Thomas Cromwell's ministry under Henry VIII. and during the reign of
Elizabeth, was that of tampering with the freedom of borough and
county elections. A third was the habit, also notorious under Henry
VIII. and Elizabeth, of dictating and directing in all that was
essential in the proceedings of the chambers. Henry VIII. bullied his
parliaments systematically; Elizabeth, by cajolery, flattery, deceit,
and other arts of which she was mistress, attained through less
boisterous methods the same general end. Measures were thrust upon the
chambers accompanied by peremptory demand for their enactment;
objectionable projects originated by private members were stifled; and
the fundamental parliamentary privileges of free speech, freedom from
arrest, and access to the sovereign were arbitrarily suspended or
otherwise flagrantly violated.
*22. The Independence of the Crown.*--Finally must be mentioned certain
devices by which the crown was enabled to evade limitations
theoretically imposed by Parliament's recognized authority. One of
these was the issuing of proclamations. In the sixteenth century it
was generally maintained that the sovereign, acting alone or with the
advice of the Council, could issue proclamations controlling the
liberty of the subject, so long as such edicts did not violate statute
or common law. As a corollary, it was maintained also that the crown
could dispense with the action of law in individual cases and at (p. 022)
times of crisis. The range covered by these prerogatives was broad and
undefined, and in the hands of an aggressive monarch they constituted
a serious invasion of the powers of legislation nominally vested in
Parliament. It is true that the act of 1539 imparting to royal
proclamations the force of law was repealed in 1547; but proclamations
continued, especially under Elizabeth and James I., not only to be
numerous, but to be enforced relentlessly by penalties inflicted
through the Star Chamber. The most important power of Parliament in
the sixteenth century was still that of voting supplies. But in
respect to finance, as in respect to legislation, the crown possessed
effective means of evading parliamentary control. In the first place,
the sovereign possessed large revenues, arising from crown lands,
feudal rights, profits of jurisdiction, and ecclesiastical payments,
with which Parliament had nothing whatever to do. In the second place,
the great indirect taxes--customs duties and tonnage and
poundage--were, in the sixteenth century, voted at the accession of a
sovereign for the whole of the reign. It was only in respect to
extraordinary taxes--"subsidies" and "tenths and fifteenths"--that
Parliament was in a position effectually to make or mar the fiscal
fortunes of the Government; except that, of course, it was always open
to Parliament to criticise the financial expedients of the crown, such
as the sale of monopolies, the levy of "impositions," and the
collection of benevolences, and to influence, if it could, the policy
pursued in relation to these matters.
*23. The House of Lords in 1485.*--Despite the numerous strictures that
have been mentioned, Parliament in the Tudor period by no means stood
still. The enormous power and independence exhibited by the chambers,
especially the Commons, in the seventeenth century was the product of
substantial, if more or less hidden, growth during the previous one
hundred and fifty years. The composition of the two houses at the
accession of Henry VII. was not clearly defined. The House of Lords
was but a small body. It comprised simply those lords, temporal and
spiritual, who were entitled to receive from the king, when a
parliament was to be held, a special writ, i.e., an individual
summons. The number of these was indeterminate. The right of the
archbishops, the bishops, and the abbots to be summoned was immemorial
and indisputable, although the abbots in practice evaded their
obligation of attendance, save in cases in which it could be shown
that as military tenants of the crown they were obligated to perform
parliamentary duty. Among the lay nobility the selection of
individuals for summons seems originally to have been dependent upon
the royal pleasure. Eventually, however, the principle became (p. 023)
fixed that a man once summoned must be summoned whenever occasion
should arise, and that, furthermore, his eldest son after him must be
summoned in similar manner. What was at the outset an obligation
became in time a privilege and a distinction, and by the day when it
did so the rule had become legally established that the king could not
withhold a writ of summons from the heir of a person who had been once
summoned and had obeyed the summons by taking his seat. During the
fourteenth century the aggregate membership of the chamber fluctuated
in the neighborhood of 150. By reason of the withdrawal of some of the
abbots and the decline of the baronage, in the fifteenth century the
body was yet smaller. The number of temporal lords summoned to the
first parliament of Henry VII. was but 29.
*24. The House of Commons in 1485.*--The House of Commons at the
beginning of the Tudor period was a body of some 300 members. It
contained 74 knights of the shire, representing all but three of the
forty English counties, together with a fluctuating number of
representatives of cities and boroughs. In the Model Parliament of
1295 the number of urban districts represented was 166, but as time
went on the number declined, in part because of the discrimination
exercised from time to time in the selection of boroughs to be
represented, and in part by reason of the fact that in times when
representation did not appear to yield tangible results the borough
taxpayers begrudged the two shillings per day paid their
representatives, in some instances sufficiently to be induced to
abandon altogether the sending of members. By the time of Edward IV.
(1399-1413) the number of represented towns had fallen to 111. At the
beginning of the fifteenth century county members were elected by the
body of freeholders present at the county court, but by statute of
1429 the electoral privilege was restricted to freeholders resident in
the county and holding land of the yearly rental value of forty
shillings, equivalent, perhaps, to some L30 to L40 in present values.
This rule, adopted originally with the express purpose of
disfranchising "the very great and outrageous number of people either
of small substance or of no value" who had been claiming an electoral
equality with the "worthy knights and squires," continued in operation
without amendment until 1832. The electoral systems prevailing in the
boroughs exhibited at all times the widest variation, and never prior
to 1832 was there serious attempt to establish uniformity of practice.
In some places (the so-called "scot and lot" boroughs) the suffrage
was exercised by all rate-payers; in others, by the holders of particular
tenements ("burgage" franchise); in others (the "potwalloper" (p. 024)
boroughs) by all citizens who had hearths of their own; in many, by
the municipal corporation, or by the members of a guild, or even by
neighboring landholders. Borough electoral arrangements ran the full
gamut from thoroughgoing democracy to the narrowest kind of oligarchy.
*25. Development under the Tudors: Composition.*--During the Tudor
period the composition of the two chambers underwent important change.
In the Lords the principal modification was the substitution of
temporal for spiritual preponderance. This was brought about in two
ways. The first was the increase numerically of the hereditary peers
from thirty-six at the beginning of the reign of Henry VIII. to about
eighty at the accession of James I. The second was the dropping out of
twenty-eight abbots, incident to the closing of the monasteries by
Henry VIII. and only partially compensated by the creation at the time
of six new bishoprics. In 1509 the number of lords spiritual was
forty-eight; in 1603, it was but twenty-six. The House of Commons
under the Tudors was virtually doubled in size. The final
incorporation of Wales in 1535 meant the adding of twenty-five
members. In 1536 and 1543 the counties of Monmouth and Chester were
admitted to representation. There followed the enfranchisement of a
number of boroughs, and by the end of the reign of Henry VIII. the
representation of counties had been increased from 74 to 90, and that
of the boroughs had been brought up to 252, giving the House an
aggregate membership of 342. During the reign of Edward VI. twenty new
constituencies were created, and during that of Mary twenty-one. But
the most notable increase was that which took place in the reign of
Elizabeth, the net result of which was the bringing in of 62 new
borough representatives, in some cases from boroughs which now
acquired for the first time the right of representation, in others
from boroughs which once had possessed the right but through disuse
had been construed to have forfeited it. The total increase of the
Commons in numerical strength during the Tudor period was 166. There
can be little question that in a few instances parliamentary
representation was extended with the specific purpose of influencing
the political complexion of the popular chamber. But, on the whole,
the reason for the notable increase, especially of borough members, is
to be found in the growing prosperity of the country and in the
reliance which the Tudors were accustomed to place upon the commercial
and industrial classes of the population.
*26. Other Developments.*--A second point at which Parliament in the
Tudor era underwent modification was in respect to permanence and
sittings. Prior to Henry VIII. the life of a parliament was confined,
as a rule, to a single session, and sessions were brief. But (p. 025)
parliaments now ceased to be meetings to be broken up as soon as some
specific piece of business should have been completed, and many were
brought together in several succeeding sessions. Henry VIII.'s
Reformation Parliament lasted seven years. During the forty-five years
of Elizabeth there were ten parliaments and thirteen sessions. One of
these parliaments lasted eleven years, although it met but three
times. It is true that the parliaments of Elizabeth were in session,
in the aggregate, somewhat less than three years, an average for the
reign of but little more than three weeks a year. But the point is
that, slowly but effectually, Parliament as an institution was
acquiring a recognized position in the political system of the nation.
In 1589 Thomas Smith, a court secretary, published a book entitled
"The Commonwealth of England and the Manner of Government Thereof," in
which was laid down the fundamental proposition that "the most high
and absolute power of the realm of England consisteth in the
parliament"; and there is no record that the proclamation of this
doctrine, even by a court official, elicited serious protest or
difference of opinion. It was in the Tudor period, further, that both
houses instituted the keeping of journals and that the appointment of
committees and numerous other aspects of modern parliamentary
procedure had their beginnings.
Finally, the Elizabethan portion of the period was an epoch during
which there took place a very real growth in independence of sentiment
and an equally notable advance in consciousness of power on the part
of the popular chamber. Even before the death of Elizabeth there were
ill-repressed manifestations of the feeling that the Tudor monarchy
had done its work and that the time for a larger amount of
parliamentary control had arrived. Nothing was clearer in 1603 than
the fact that the sovereign who should expect to get on agreeably with
his Commons must be both liberal and tactful. That the Stuarts
possessed the first of these qualities in only a very limited measure
and the second one not at all is a fact upon which turns an entire
chapter of English constitutional history.[21]
[Footnote 21: Excellent works of a general nature
on the Tudor period are H. A. L. Fisher, History of
England from the Accession of Henry VII. to the
Death of Henry VIII. (London, 1906); A. F. Pollard,
History of England from the Accession of Edward VI.
to the Death of Elizabeth (London, 1910); and A. D.
Innis, England under the Tudors (London, 1905). For
institutional history see Taylor, English
Constitution, II., Bk. 4. More specialized
treatment will be found in Smith, History of the
English Parliament, I., Bk. 5; Dicey, The Privy
Council, 76-130; and Taswell-Langmead, English
Constitutional History, Chaps. 10, 12. An excellent
survey of English public law at the death of Henry
VII. is contained in F. W. Maitland, Constitutional
History of England (Cambridge, 1911), 165-236.
Books of large value on the period include W.
Busch, England under the Tudors, trans. by A. M.
Todd (London, 1895), the only volume of which
published covers the reign of Henry VII.; A. F.
Pollard, Henry VIII. (London, 1902 and 1905), and
England under the Protector Somerset (London,
1900); and M. Creighton, Queen Elizabeth (new ed.,
London, 1899).]
VIII. THE STUARTS: CROWN AND PARLIAMENT (p. 026)
*27. Absolutism Becomes Impracticable.*--Throughout the larger portion
of the seventeenth century the principal interest in English politics
centers in the contest which was waged between the nation represented
in Parliament and the sovereigns of the Stuart dynasty. The question,
as one writer has put it, was "at first whether government should be
by the king or by the king in parliament, afterwards whether the king
should govern or whether parliament should govern."[22] The Stuart
sovereigns brought with them to the English throne no political
principles that were new. When James I., in a speech before Parliament
March 21, 1610, declared that monarchy "is the supremest thing upon
earth," and that, "as to dispute what God may do is blasphemy, ... so
is it sedition in subjects to dispute what a King may do in the height
of his power,"[23] he was but giving expression to a conception of the
royal prerogative which had been lodged in the mind of every Tudor,
but which no Tudor had been so tactless as publicly to avow. The first
two Stuarts confidently expected to maintain the same measure of
absolutism which their Tudor predecessors had maintained--nothing
more, nothing less. There were, however, several reasons why, for
them, this was an impossibility. The first arose from their own
temperament. The bluntness, the lack of perception of the public will,
and the disposition perpetually to insist upon the minutest
definitions of prerogative, which so pre-eminently characterized the
members of the Stuart house must have operated to alienate
seventeenth-century Englishmen under even the most favorable of
circumstances. A second consideration is the fact, of which the nation
was fully cognizant, that under the changed conditions that had arisen
there was no longer the need of strong monarchy that once there had
been. Law and order had long since been secured; all danger of a
feudal reaction had been effectually removed; foreign invasion was no
more to be feared. Strong monarchy had served an invaluable purpose,
but that purpose had been fulfilled.
[Footnote 22: C. Ilbert, Parliament, its History,
Constitution, and Practice (London and New York,
1911), 28-29.]
[Footnote 23: Prothero, Statutes and Constitutional
Documents, 293-294.]
*28. The Rights of the Commons Asserted.*--Finally there was the (p. 027)
fact of the enormous growth of Parliament as an organ of the public
will. The rapidity of that development in the days of Elizabeth is,
and was at the time, much obscured by the disposition of the nation to
permit the Queen to live out her days without being seriously crossed
in her purposes. But the magnitude of it becomes apparent enough after
1603. In a remarkable document known as the Apology of the Commons,
under date of June 20, 1604, the popular chamber stated respectfully
but frankly to the new sovereign what it considered to be its rights
and, through it, the rights of the nation. "What cause we your poor
Commons have," runs the address, "to watch over our privileges, is
manifest in itself to all men. The prerogatives of princes may easily,
and do daily, grow; the privileges of the subject are for the most
part at an everlasting stand. They may be by good providence and care
preserved, but being once lost are not recovered but with much
disquiet. The rights and liberties of the Commons of England
consisteth chiefly in these three things: first, that the shires,
cities, and boroughs of England, by representation to be present, have
free choice of such persons as they shall put in trust to represent
them; secondly, that the persons chosen, during the time of the
parliament, as also of their access and recess, be free from
restraint, arrest, and imprisonment: thirdly, that in parliament they
may speak freely their consciences without check and controlment,
doing the same with due reverence to the sovereign court of
parliament, that is, to your Majesty and both the Houses, who all in
this case make but one politic body, whereof your Highness is the
head."[24] The shrewdness of the political philosophy with which this
passage opens is matched only by the terseness with which the
fundamental rights of the Commons as a body are enumerated. To the
enumeration should be added, historically, an item contained in a
petition of the Commons, May 23, 1610, which reads as follows: "We
hold it an ancient, general, and undoubted right of Parliament to
debate freely all matters which do properly concern the subject and
his right or state; which freedom of debate being once foreclosed, the
essence of the liberty of Parliament is withal dissolved."[25] The
occasion for this last-mentioned assertion of right arose from the
king's habitual assumption that there were various important matters
of state, e.g., the laying of impositions and the conduct of foreign
relations, which Parliament possessed no right so much as to discuss.
[Footnote 24: Petyt, Jus Parliamentarium (London,
1739), 227-243. Portions of this document are
printed in Prothero, Statutes and Constitutional
Documents, 286-293.]
[Footnote 25: Commons' Journals, I., 431; Prothero,
Statutes, 297.]
*29. The Parliaments of James I. and Charles I.*--The tyranny of (p. 028)
James I. and Charles I. assumed the form, principally, of the issue of
proclamations without the warrant of statute and the exaction of taxes
without the assent of Parliament. Parliament, during the period
1603-1640, was convened but seldom, and it was repeatedly prorogued or
dissolved to terminate its inquiries, thwart its protests, or subvert
its projected measures. Under the disadvantage of recurrent
interruption the Commons contrived, however, to carry on a contest
with the crown which was essentially continuous. During the reign of
James I. (1603-1625) there were four parliaments. The first, extending
from 1604 to 1611, was called in session six times. It sorely
displeased the king by remonstrating against his measures, and
especially by the persistency with which it withheld subsidies pending
a redress of grievances. The second, summoned in 1614, vainly
reiterated the complaints of its predecessor and was dissolved without
having enacted a single measure. The third, in 1621, revived the power
of impeachment (dormant since the days of Henry VII.), reasserted the
right of the chambers to debate foreign relations, and avenged by a
fresh protestation of liberties the arrest of one of its members. The
fourth, in 1624, abolished monopolies and renewed the attack upon
proclamations. The first parliament of Charles I., convoked in 1625,
criticised the policy of the new sovereign and was dissolved. The
second, in 1626, was dissolved to prevent the impeachment of the
king's favorite minister, the Duke of Buckingham. The third, in
1628-1629, drew up the memorable Petition of Right, to which the king
gave reluctant assent, and in which arbitrary imprisonment, the
billeting of soldiers, the establishment of martial law in time of
peace, and the imposition of gifts, loans, benevolences, or taxes
without the consent of Parliament were specifically prohibited.[26]
The fourth of Charles's parliaments, the so-called Short Parliament of
1640, followed a period of eleven years of personal government and
showed no disposition to surrender the rights that had been asserted.
The fifth--the Long Parliament, convoked also in 1640--imprisoned and
executed the king's principal advisers, abolished the Star Chamber and
the several other special courts and councils of Tudor origin,
pronounced illegal the levy of ship-money and of tonnage and poundage
without parliamentary assent, made provision for the assembling of a
parliament within three years of the dissolution of the present one,
and forced the king into a position where he was obliged to yield or
to resort to war.
[Footnote 26: The text of the Petition of Right is
printed in Stubbs, Select Charters, 515-517; Adams
and Stephens, Select Documents, 339-342.]
*30. The Commonwealth and the Protectorate.*--Between the (p. 029)
political theory maintained by the Stuart kings and that maintained by
the parliamentary majority it was found impossible to arrive at a
compromise. The Civil War was waged, in the last analysis, to
determine which of the two theories should prevail. It should be
emphasized that the parliamentarians entered upon the contest with no
intent to establish a government by Parliament alone, in form or in
fact. It is sufficiently clear from the Grand Remonstrance of 1641[27]
that what they contemplated was merely the imposing of constitutional
restrictions upon the crown, together with the introduction of certain
specific changes in the political and ecclesiastical order, e.g., the
abolition of episcopacy. The culmination of the struggle, however, in
the defeat and execution of the king threw open the doors for every
sort of constitutional innovation, and between 1649 and 1660 the
nation was called upon to pass through an era of political
experimentation happily unparalleled in its history. May 19, 1649,
kingship and the House of Lords having been abolished as equally
"useless and dangerous,"[28] Parliament, to complete the work of
transformation, proclaimed a commonwealth, or republic; and on the
great seal was inscribed the legend, "In the first year of freedom by
God's blessing restored." During the continuance of the Commonwealth
(1649-1654) various plans were brought forward for the creation of a
parliament elected by manhood suffrage, but with the essential
principle involved neither the Rump nor the people at large possessed
substantial sympathy. In 1654 there was put in operation a
constitution--the earliest among written constitutions in modern
Europe--known as the Instrument of Government.[29] The system therein
provided, which was intended to be extended to the three countries of
England, Scotland, and Ireland, comprised as the executive power a
life Protector, to be assisted by a council of thirteen to twenty-one
members, and as the legislative organ a unicameral parliament of 460
members elected triennially by all citizens possessing property to the
value of L300.[30] Cromwell accepted the office of Protector, and the
ensuing six years comprise the period known commonly as the (p. 030)
Protectorate.
[Footnote 27: S. R. Gardiner, Constitutional
Documents of the Puritan Revolution (Oxford, 1899),
202-232.]
[Footnote 28: Gardiner, Documents of the Puritan
Revolution, 384-388; Adams and Stephens, Select
Documents, 397-400.]
[Footnote 29: Gardiner, Documents of the Puritan
Revolution, 405-417; Adams and Stephens, Select
Documents, 407-416.]
[Footnote 30: On the history of this unicameral
parliament see J. A. R. Marriott, Second Chambers,
an Inductive Study in Political Science (Oxford,
1910), Chap. 3; A. Esmein, Les constitutions du
protectorat de Cromwell, in _Revue du Droit
Public_, Sept.-Oct. and Nov.-Dec., 1899.]
The government provided for by the Instrument was but indifferently
successful. Between Cromwell and his parliaments relations were much
of the time notoriously strained, and especially was there controversy
as to whether the powers of Parliament should be construed to extend
to the revision of the constitution. In 1657 the Protector was asked
to assume the title of king. This he refused to do, but he did accept
a new constitution, the Humble Petition and Advice, in which a step
was taken toward a return to the governmental system swept away in
1649.[31] This step comprised, principally, the re-establishment of a
parliament of two chambers--a House of Commons and, for lack of
agreement upon a better designation, "the Other House." Republicanism,
however, failed to strike root. Shrewder men, including Cromwell, had
recognized all the while that the English people were really royalist
at heart, and it is not too much to say that from the outset the
restoration of monarchy was inevitable. Even before the death of
Cromwell, in 1658, the trend was distinctly in that direction, and
after the hand of the great Protector had been removed from the helm
such a consummation was a question but of time and means. May 25,
1660, Charles II., having engaged to grant a general amnesty and to
accept such measures of settlement respecting religion as Parliament
should determine upon, landed at Dover and was received with all but
universal acclamation.[32]
[Footnote 31: Gardiner, Documents of the Puritan
Revolution, 447-459.]
[Footnote 32: The best of the general treatises
covering the period 1603-1660 are F. C. Montague,
The History of England from the Accession of James
I. to the Restoration (London, 1907), and G. M.
Trevelyan, England Under the Stuarts (London,
1904). The monumental works within the field are
those of S. R. Gardiner, i.e., History of England,
1603-1642, 10 vols. (new ed., London, 1893-1895);
History of the Great Civil War, 4 vols. (London,
1894); and History of the Commonwealth and
Protectorate, 4 vols. (London, 1894-1901). Mr.
Gardiner's work is being continued by C. H. Firth,
who has published The Last Years of the
Protectorate, 1656-1658, 2 vols. (London, 1909).
The development of institutions is described in
Taswell-Langmead, English Constitutional History,
Chaps. 13-14; Smith, History of the English
Parliament, I., Bks. 6-7; Pike, History of the
House of Lords, _passim_; J. N. Figgis, The Theory
of the Divine Right of Kings (Cambridge, 1896); and
G. P. Gooch, History of English Democratic Ideas in
the Seventeenth Century (Cambridge, 1898). An
excellent analysis of the system of government
which the Stuarts inherited from the Tudors is
contained in the introduction of Prothero, Statutes
and Constitutional Documents. Of the numerous
biographies of Cromwell the best is C. H. Firth,
Oliver Cromwell (New York, 1904). A valuable survey
of governmental affairs at the death of James I. is
Maitland, Constitutional History Of England,
237-280.]
IX. THE LATER STUARTS: THE REVOLUTION OF 1688-1689 (p. 031)
*31. Charles II. and James II.*--Throughout the period 1660-1689 there
was enacted a final grand experiment to determine whether a Stuart
could, or would, govern constitutionally. The constitution in
accordance with which Charles II. and James II. were expected to
govern was that which had been built up during preceding centuries,
amended by the important reforms effected by the Long Parliament in
1641. The settlement of 1660 was a restoration no less of Parliament
than of the monarchy, in respect both to structure and to functions.
The two chambers were re-established upon their earlier foundations,
and in them was vested the power to enact all legislation and to
sanction all taxation. The spirit, if not the letter, of the agreement
in accordance with which the Stuart house was restored forbade the
further imposition of taxes by the arbitrary decree of the crown and
all exercise of the legislative power by the crown singly, whether
positively through proclamation or negatively through dispensation. It
required that henceforth the nature and amount of public expenditures
should, upon inquiry, be made known to the two houses, and that
ministers might regularly be held to account for their acts and those
of the sovereign. The easy-going Charles II. (1660-1685) contrived
most of the time to keep fairly within the bounds that were prescribed
for him. He disliked the religious measures of his first parliament,
but he recognized that a fresh election might be expected to result in
the choice of a House of Commons still less to his taste, and,
accordingly, the Cavalier Parliament was kept in existence throughout
the entire period 1661-1679. The parliamentary history of the closing
years of the reign centered about the question of the exclusion of the
king's Catholic brother, James, from the throne, and was given special
interest by the conflict of groups foreshadowing political parties;
but Charles maintained unfailingly an attitude which, at the least,
did not endanger his own tenure of the throne.
James II. (1685-1688) was a man of essentially different temper. He
was a Stuart of the Stuarts, irrevocably attached to the doctrine of
divine right and sufficiently tactless to take no pains to disguise
the fact. He was able, industrious, and honest, but obstinate and
intolerant. He began by promising to preserve "the government as by
law established." But the ease with which the Monmouth uprising of
1685 was suppressed deluded him into thinking that through the
exemption of the Catholics from the operation of existing laws he
might in time realize his ambition to re-establish Roman Catholicism
in England. He proceeded, therefore, to issue decrees dispensing (p. 032)
with statutes which Parliament had enacted, to establish an
ecclesiastical commission in violation of parliamentary law of 1641,
and, in 1687, to promulgate a declaration of indulgence extending to
all Catholics and Non-Conformists a freedom in religious matters which
was clearly denied by the laws of the country.[33] By this arbitrary
resumption of ancient prerogative the theory underlying the
Restoration was subverted utterly.
[Footnote 33: Gee and Hardy, Documents Illustrative
of English Church History, 641-644; Adams and
Stephens, Select Documents, 451-454.]
*32. The Revolution: the Bill of Rights.*--Foreseeing no relief from
absolutist practices, and impelled especially by the birth, in 1688,
of a male heir to the king, a group of leading men representing the
various political groups extended to the stadtholder of Holland,
William, Prince of Orange, an invitation to repair to England to
uphold and protect the constitutional liberties of the realm. The
result was the bloodless revolution of 1688. November 5, William
landed at Torquay and advanced toward London. James, finding himself
without a party, offered vain concessions and afterwards fled to the
court of his ally, Louis XIV. of France. By a provisional body of
lords, former commoners, and officials William was requested to act as
temporary "governor" until the people should have chosen a national
"convention."[34] This convention assembled January 22, 1689, resolved
that James, by reason of his flight, should be construed to have
abdicated, and established on the throne as joint sovereigns William
and Mary, with the understanding that the actual government of the
realm should devolve upon the king.
[Footnote 34: Not properly a parliament, because
not summoned by a king.]
The Revolution of 1688-1689 was signalized by the putting into written
form of no inconsiderable portion of the English constitution as it
then existed. February 19, 1698, the new sovereigns formally accepted
a Declaration of Right, drawn up by the convention, and by act of
Parliament, December 16 following, this instrument, under the name of
the Bill of Rights, was made a part of the law of the land. In it were
denied specifically a long list of prerogatives to which the last
Stuart had laid claim--those, in particular, of dispensing with the
laws, establishing ecclesiastical commissions, levying imposts without
parliamentary assent, and maintaining a standing army under the
exclusive control of the crown. In it also were guaranteed certain
fundamental rights which during the controversies of the seventeenth
century had been brought repeatedly in question, including those of
petition, freedom of elections, and freedom of speech on the part (p. 033)
of members of Parliament.[35] The necessity of frequent meetings
of Parliament was affirmed, and a succession clause was inserted by
which Roman Catholics and persons who should marry Roman Catholics,
were excluded from the throne. In the Bill of Rights were thus summed
up the essential results of the Revolution, and, more remotely, of the
entire seventeenth-century parliamentary movement. With its enactment
the doctrine of divine right disappeared forever from the domain of
practical English politics. The entire circumstance of William III.'s
accession determined the royal tenure to be, as it thereafter
remained, not by inherent or vested right, but conditioned upon the
national will.[36]
[Footnote 35: In this connection should be recalled
the Habeas Corpus Act of May 26, 1679, by whose
terms the right of an individual, upon arrest, to
have his case investigated without delay was
effectually guaranteed. Stubbs, Select Charters,
517-521; Adams and Stephens, Select Documents,
440-448.]
[Footnote 36: In respect to ecclesiastical affairs
the Bill of Rights was supplemented by the
Toleration Act of May 24, 1689, in which was
provided "some ease to scrupulous consciences in
the exercise of religion," i.e., a larger measure
of liberty for Protestant non-conformists. The text
of the Bill of Rights is in Stubbs, Select
Charters, 523-528; Gee and Hardy, Documents
Illustrative of English Church History, 645-654;
and Adams and Stephens, Select Documents, 462-469;
that of the Toleration Act, in Gee and Hardy,
654-664; and, in abridged form, in Adams and
Stephens, 459-462. General accounts of the period
1660-1689 are contained in R. Lodge, History of
England from the Restoration to the Death of
William III. (London, 1910), Chaps. 1-15, and in
Trevelyan, England Under the Stuarts, Chaps. 11-13.
O. Airy. Charles II., is an excellent book. The
development of Parliament in the period is
described in Smith, History of the English
Parliament, I., Bk. 8, II., Bk. 9.]
CHAPTER II (p. 034)
THE CONSTITUTION SINCE THE SEVENTEENTH CENTURY
I. CROWN AND PARLIAMENT AFTER 1789
*33. Elements of Stability and Change.*--Structurally, the English
governmental system was by the close of the seventeenth century
substantially complete. The limited monarchy, the ministry, the two
houses of parliament, the courts of law, and the local administrative
agencies were by that time constituted very much as they are to-day.
The fundamental principles, furthermore, upon which English government
is operated were securely established. Laws could be enacted only by
"the king in parliament"; taxes could be levied only in the same
manner; the liberty of the individual was safeguarded by a score of
specific and oft-renewed guarantees. In point of fact, however, the
English constitution of 1689 was very far from being the English
constitution of 1912. The overturn by which the last Stuart was driven
from the throne not only marked the culmination of the revolution
commenced in 1640; it comprised the beginning of a more extended
revolution, peaceful but thoroughgoing, by which the governmental
system of the realm was amplified, carried in new directions, and
successively readapted to fresh and changing conditions. At no time
from William III. to George V. was there a deliberate overhauling of
the governmental system as a whole. Save in occasional parliamentary
enactments and judicial decisions, the constitutional changes which
were wrought were rarely given documentary expression. Yet it is
hardly too much to say that of the principles and practices which
to-day make up the working constitution of the United Kingdom almost
all were originated or reshaped during the eighteenth and nineteenth
centuries. In describing, in succeeding chapters, the principal
aspects of this governmental system it will be necessary frequently to
allude to these more recent constitutional developments, and it would
but involve repetition to undertake an account of them at this point.
An enumeration and a brief characterization of a few of the more
important will serve for the moment to impress the importance
constitutionally of the period under consideration.
*34. The Decreased Authority of the Crown.*--First may be (p. 035)
mentioned the gradual eclipse of the crown and the establishment of
complete and unquestioned ascendancy on the part of Parliament. In
consequence of the Revolution of 1688-1689 the sovereign was shorn
definitely of a number of important prerogatives. William III.,
however, was no figure-head, and the crown was far from having been
reduced to impotence. Understanding perfectly the conditions upon
which he had been received in England, William none the less did not
attempt to conceal his innate love of power. He claimed prerogatives
which his Whig supporters were loath to acknowledge and he exercised
habitually in person, and with telling effect, the functions of
sovereign, premier, foreign minister, and military autocrat.[37] His
successor, Anne, though apathetic, was hardly less attached to the
interests of strong monarchy. It was only with the accession of the
Hanoverian dynasty, in 1714, that the bulk of those powers of
government which hitherto the crown had retained slipped inevitably
into the grasp of the ministers and of Parliament. George I.
(1714-1727) and George II. (1727-1760) were not the nonentities they
have been painted, but, being alien alike to English speech, customs,
and political institutions, they were in a position to defend but
indifferently the prerogatives which they had inherited. Under George
III. (1760-1820) there was a distinct recrudescence of the monarchical
idea. The king, if obstinate and below the average intellectually, was
honest, courageous, and ambitious. He gloried in the name of
Englishman, and, above all, he was determined to recover for the crown
some measure of the prestige and authority which his predecessors had
lost. The increasingly oligarchical character of Parliament in the
period and the disintegration of the ruling Whig party created a
condition not unfavorable for the realization of the royal programme,
and through at least a score of years the influence which the
sovereign exerted personally upon government and politics exceeded
anything that had been known since the days of William III. In 1780
the House of Commons gave expression to its apprehension by adopting a
series of resolutions, the first of which asserted unequivocally that
"the influence of the crown has increased, is increasing, and ought to
be diminished."
[Footnote 37: On the constitution as it was at the
death of William III., see Maitland, Constitutional
History of England, 281-329.]
After the retirement of Lord North, in 1782, however, the influence of
the sovereign declined perceptibly, and during the later portion of
the reign, clouded by the king's insanity, all that had been gained
for royalty was again lost. Under the Regency (1810-1820) and during
the reign of the reactionary and scandal-smirched George IV. (p. 036)
(1820-1830) the popularity, if not the power, of the crown reached its
nadir. In the days of the genial William IV. (1830-1837) popularity
was regained, but not power. The long reign of the virtuous Victoria
(1837-1901) served completely to rehabilitate the monarchy in the
respect and affections of the British people, a consummation whose
stability more recent sovereigns have done nothing to impair. As will
be pointed out in another place, the influence which the sovereign may
wield, and during the past three-quarters of a century has wielded, in
the actual conduct of public affairs is far from inconsiderable. But,
as will also be emphasized, that influence is but the shadow of the
authority which the crown once--even as late as the opening of the
eighteenth century--possessed. It is largely personal rather than
legal; it is asserted within the domain of foreign relations rather
more than within that of domestic affairs; and as against the adverse
will of the nation expressed through Parliament it is, in effect,
powerless.[38]
[Footnote 38: On the monarchical revival under
George III., see D. A. Winstanley, Personal and
Party Government; a Chapter in the Political
History of the Early Years of the Reign of George
III., 1760-1766 (Cambridge, 1910). For an excellent
appraisal of the status of the crown throughout the
period 1760-1860 see T. E. May, The Constitutional
History of England since the Accession of George
III., edited and continued by F. Holland, 3 vols.
(London, 1912), I., Chaps. 1-2.]
*35. Ascendancy of the House of Commons.*--A second transformation
wrought in the working constitution since 1689 is the shifting of the
center of gravity in Parliament from the House of Lords to the House
of Commons, together with a notable democratizing of the
representative chamber. In the days of William and Anne the House of
Lords was distinctly more dignified and influential than the House of
Commons. During the period covered by the ministry of Walpole
(1721-1742), however, the Commons rose rapidly to the position of the
preponderating legislative branch. One contributing cause was the
Septennial Act of 1716, whereby the life of a parliament was extended
from three years to seven, thus increasing the continuity and
desirability of membership in the Commons. Another was the growing
importance of the power of the purse as wielded by the Commons. A
third was the fact that Walpole, throughout his prolonged ministry,
sat steadily as a member of the lower chamber and made it the scene of
his remarkable activities. The establishment of the supremacy of the
Commons as then constructed did not, however, mean the triumph of
popular government. It was but a step toward that end. The House of
Commons in the eighteenth century was composed of members elected (p. 037)
in the counties and boroughs upon a severely restricted franchise or
appointed outright by closed corporations or by individual magnates,
and it remained for Parliament during the nineteenth century, by a
series of memorable statutes, to extend the franchise successively to
groups of people hitherto politically powerless, to reapportion
parliamentary seats so that political influence might be distributed
with some fairness among the voters, and to regulate the conditions
under which campaigns should be carried on, elections conducted, and
other operations of popular government undertaken. Of principal
importance among the enactments by which these things were
accomplished are the Reform Act of 1832, the Representation of the
People Act of 1867, the Ballot Act of 1872, the Corrupt and Illegal
Practices Act of 1883, the Representation of the People Act of 1884,
and the Redistribution of Seats Act of 1885. The nature of these
measures will be explained subsequently.[39]
[Footnote 39: See pp. 80-86.]
II. RISE OF THE CABINET AND OF POLITICAL PARTIES
*36. Cabinet Origins.*--In the third place, the period under review is
important by reason of the development within it of the most
remarkable feature of the English constitutional system to-day,
namely, the cabinet. The creation of the cabinet was a gradual
process, and both the process and the product are utterly unknown to
the letter of English law. It is customary to regard as the immediate
antecedent of the cabinet the so-called "cabal" of Charles II., i.e.,
the irregular group of persons whom that sovereign selected from the
Privy Council and took advice from informally in lieu of the Council
itself. In point of fact, by reason principally of the growing
unwieldiness of the Privy Council, the practice of deferring for
advice to a specially constituted committee, or inner circle, of the
body far antedated Charles II. By some it has been traced to a period
as remote as the reign of Henry III., and it is known that not only
the thing itself, but also the name "cabinet council," existed under
Charles I. The essential justification of the creation of the cabinet
was stated by Charles II. in 1679 in the declaration that "the great
number of the Council has made it unfit for the secrecy and despatch
that are necessary in many great affairs." The growing authority of
the select circle of advisors was the object of repeated attacks, and
the name "cabinet" (arising from the king's habit of receiving the
members in a small private room, or cabinet, in the royal palace) was
applied at first as a term of reproach. The device met, however, a
genuine need, and by 1689 its perpetuation was assured. The larger (p. 038)
Privy Council was continued in existence, and it exists to-day; but
its powers became long ago merely nominal.[40]
[Footnote 40: H. W. V. Temperley, The Inner and
Outer Cabinet and the Privy Council, 1679-1683, in
_English Historical Review_, Oct., 1912.]
*37. Principles of Cabinet Government Established.*--Under William III.
the cabinet took on rapidly the character which it bears to-day.
Failing in the attempt to govern with a cabinet including both Whigs
and Tories, William, in 1693-1696, gathered about himself a body of
advisers composed exclusively of Whigs, and the principle speedily
became established for all time that a cabinet group must be made up
of men who in respect to all important matters of state are in
substantial agreement. Before the close of the eighteenth century
there had been fixed definitely the conception of the cabinet as a
body necessarily consisting (a) of members of Parliament (b) of the
same political views (c) chosen from the party possessing a majority
in the House of Commons (d) prosecuting a concerted policy (e) under a
common responsibility to be signified by collective resignation in the
event of parliamentary censure, and (f) acknowledging a common
subordination to one chief minister.[41] During the eighteenth-century
era of royal weakness the cabinet acquired a measure of independence
by which it was enabled to become, for all practical purposes, the
ruling authority of the realm; and, under the limitation of strict
accountability to the House of Commons, it fulfills substantially that
function to-day. Its members, as will appear, are at the same time the
heads of the principal executive departments, the leaders in the
legislative chambers, and the authors of very nearly the whole of
governmental policy and conduct.[42]
[Footnote 41: H. D. Traill, Central Government
(London, 1881), 24-25.]
[Footnote 42: On the rise of the cabinet see, in
addition to the general histories, M. T. Blauvelt,
The Development of Cabinet Government in England
(New York, 1902), Chaps. 1-8; E. Jenks,
Parliamentary England; the Evolution of the Cabinet
System (New York, 1903); and H. B. Learned,
Historical Significance of the Term "Cabinet" in
England and the United States, in _American
Political Science Review_, August, 1909.]
*38. Beginnings of Political Parties.*--A fourth phase of governmental
development within the period under survey is the rise of political
parties and the fixing of the broader aspects of the present party
system. In no nation to-day does party play a role of larger
importance than in Great Britain. Unknown to the written portions of
the constitution, and all but unknown to the ordinary law, party
management and party operations are, none the less, of constant and
fundamental importance in the actual conduct of government. The
origins of political parties in England fall clearly within the
seventeenth century. It was the judgment of Macaulay that the (p. 039)
earliest of groups to which the designation of political parties can
be applied were the Cavalier and Roundhead elements as aligned after
the adoption of the Grand Remonstrance by the Long Parliament in 1641.
The first groups, however, which may be thought of as essentially
analogous to the political parties of the present day, possessing
continuity, fixity of principles, and some degree of compactness of
organization, were the Whigs and Tories of the era of Charles II.
Dividing in the first instance upon the issue of the exclusion of
James, these two elements, with the passage of time, assumed
well-defined and fundamentally irreconcilable positions upon the
essential public questions of the day. Broadly, the Whigs stood for
toleration in religion and for parliamentary supremacy in government;
the Tories for Anglicanism and the prerogative. And long after the
Stuart monarchy was a thing of the past these two great parties kept
up their struggles upon these and other issues. After an unsuccessful
attempt to govern with the co-operation of both parties William III.,
as has been pointed out, fell back definitely upon the support of the
Whigs. At the accession of Queen Anne, in 1702, however, the Whigs
were turned out of office and the Tories (who already had had a taste
of power in 1698-1701) were put in control. They retained office
during the larger portion of Queen Anne's reign, but at the accession
of George I. they were compelled to give place to their rivals, and
the period 1714-1761 was one of unbroken Whig ascendancy. This was, of
course, the period of the development of the cabinet system, and
between the rise of that system and the growth of government by party
there was an intimate and inevitable connection. By the close of the
eighteenth century the rule had become inflexible that the cabinet
should be composed of men who were in sympathy with the party at the
time dominant in the House of Commons, and that the returning by the
nation to the representative chamber of a majority adverse to the
ruling ministry should be followed by the retirement of the
ministry.[43]
[Footnote 43: For references on the history of
English political parties see pp. 144, 160, 166.]
III. THE SCOTTISH AND IRISH UNIONS
*39. The Union with Scotland, 1707.*--Finally may be mentioned the
important changes in the governmental structure which arose from the
Act of Union with Scotland, in 1707, and the Act of Union with
Ireland, in 1801. Except during a brief portion of the period of the
Protectorate, the legal relation of England and Wales, on the one
side, and the kingdom of Scotland, on the other, was from 1603 to (p. 040)
1707 that simply of a personal union through the crown. Scotland had
her own parliament, her own established church, her own laws, her own
courts, her own army, and her own system of finance. By the Act of
1707 a union was established of a far more substantial sort. The two
countries were erected into a single kingdom, known henceforth as
Great Britain. The Scottish parliament was abolished and representation
was accorded the Scottish nobility and people in the British
parliament at Westminster. The quota of commoners was fixed at
forty-five (thirty to be chosen by the counties and fifteen by the
boroughs) and that of peers (to be elected by the entire body of
Scottish peers at the beginning of each parliament) at sixteen. All
laws respecting trade, excises, and customs were required to be
uniform throughout the two countries, but the local laws of Scotland
upon other subjects were continued in operation, subject to revision
by the common parliament. The Scottish judicial system remained
unchanged;[44] likewise the status of the established Presbyterian
Church.[45]
[Footnote 44: Save that appeals might be carried
from the Scottish Court of Session to the House of
Lords.]
[Footnote 45: J. Mackinnon, The Union of England
and Scotland (London, 1896). This scholarly volume
covers principally the period 1695-1745.]
*40. The Union with Ireland, 1801.*--The history of Ireland, in most of
its phases, is that of a conquered territory, and until late in the
eighteenth century the constitutional status of the country
approximated, most of the time, that of a crown colony. During the
Middle Ages the Common Law and the institutions of England were
introduced in the settled portions of the island (the Pale), and a
parliament of the English type began to be developed; but Poynings's
Law of 1494, by requiring the assent of the English king and council
for the convening of an Irish parliament, by enjoining that all bills
considered by the Irish parliament must first have been considered by
the English parliament, and by declaring all existing statutes of the
English parliament to be binding upon Ireland, effectually stifled,
until its repeal in 1782, Irish parliamentary development. From the
middle of the seventeenth century Catholics were debarred from
membership, and, from the early eighteenth, from voting at
parliamentary elections. The repeal of Poynings's Law in 1782 and the
removal of the Catholic disqualification ten years later bettered the
situation, yet at the close of the eighteenth century Irish
governmental arrangements were still very unsatisfactory. Parliament
was independent in the making of laws, but not in the control of
administration; and it was in no true sense a national and representative
body. The policy urged by Pitt, namely, the establishment of a (p. 041)
legislative union on the plan of that which already existed between
England and Scotland, gradually impressed itself upon the members of
Parliament as more feasible than any other.
An Act of Union creating the "United Kingdom of Great Britain and
Ireland" was adopted by the Irish parliament in February, 1800, and by
the British parliament five months later, and, January 1, 1801, it was
put in operation. Under the terms of this measure the Irish parliament
was abolished, and it was arranged that Ireland should be represented
in the common parliament[46] by four spiritual lords and twenty-eight
temporal peers, chosen by the Irish peerage for life, and by one
hundred members (sixty-four sitting for counties, thirty-five for
boroughs, and one for the University of Dublin) of the House of
Commons. The Anglican Church of Ireland was amalgamated with the
established Church of England, though, subsequently in 1869, it was
disestablished and disendowed. The union with Ireland was in the
nature of a contract, and while in a number of respects the conditions
which were involved in it have been altered within the past hundred
years, its fundamentals stand to-day unchanged. It is these
fundamentals, especially the assimilation of Ireland with Great
Britain for legislative purposes, which are the object of relentless
attack on the part of the Home Rule and other nationalistic and
reforming elements.[47]
[Footnote 46: Styled "the Parliament of the United
Kingdom of Great Britain and Ireland."]
[Footnote 47: An abridgment of the text of the Act
of Union with Scotland is printed in Adams and
Stephens, Select Documents, 479-483; of that of the
Act of Union with Ireland, ibid., 497-506. The full
text of the former will be found in Robertson,
Select Statutes, Cases, and Documents, 92-105; that
of the latter, ibid., 157-164. On Ireland before
the Union see May and Holland, Constitutional
History of England, II., Chap. 16.]
IV. THE NATURE AND SOURCES OF THE CONSTITUTION
*41. The Elusiveness of the Constitution.*--The description of the
British governmental system which is hereafter to be undertaken will
be clarified by a word of comment at this point upon the character
which the English constitution of to-day has assumed, upon the form in
which it exists, and upon the sources from which it has been drawn.
The term "constitution," as is familiarly understood, may be employed
to denote a written instrument of fundamental law which has been
framed by a constituent assembly, drafted by an ordinary legislative
body, or promulgated upon the sole authority of a dictator or monarch;
or, with equal propriety, it may be used to designate a body of (p. 042)
customs, laws, and precedents, but partially, or even not at all,
committed to writing, in accordance with which the machinery of a
given governmental system is operated. The constitution of the United
Kingdom of Great Britain and Ireland is of this second type. The
student who desires to bring together the principles and to tabulate
the working details of the British constitutional order will find no
single document, nor any collection of documents, in which these
things are wholly, or even largely, set down. For the accomplishment
of such a task it would be necessary to review intensively a thousand
years and more of history, to lay hold of a statute here and of a
judicial decision there, to take constant cognizance of the rise and
crystallization of political usages, and to probe to their inmost
recesses the mechanisms of administration, law-making, taxation,
elections, and judicial procedure as they have been, and as they are
actually operated before the spectator's eyes. Foremost among its
compeers in antiquity, in comprehensiveness, and in originality, the
British constitution is at once the least tangible and the most widely
influential among European bodies of fundamental law.
*42. Constituent Elements: the Law.*--The elements of which this
constitution is to-day composed have been classified in various ways.
For present purposes they may be gathered in five principal
categories. In the first place, there are treaties and other
international agreements, which in Great Britain as in the United
States are invested with the character of supreme law of the land. In
the second place, there is a group of solemn engagements which have
been entered into at times of national crisis between parties
representing opposed, or contracting, political forces. Of such
character are the Great Charter, the Petition of Right, and the Bill
of Rights. A third and larger category comprises parliamentary
statutes which add to or modify governmental powers or procedure.
Statutes of this type include clearly the Habeas Corpus Act of 1679,
the Act of Settlement of 1701, the Septennial Act of 1716, Fox's Libel
Act of 1792, the Reform Acts of 1832, 1867, and 1884, the Municipal
Corporations Act of 1835, the Parliamentary and Municipal Elections
Act of 1872, the Local Government Acts of 1888 and 1894, and the
Parliament Act of 1911. In the fourth place there is the Common Law, a
vast body of legal precept and usage which through the centuries has
acquired fundamental and immutable character. The first three elements
mentioned, i.e., treaties, solemn political engagements, and
statutes, exist solely, or almost so, in written form. The rules of
the Common Law, however, have not been reduced to writing, save in so
far as they are contained in reports, legal opinions, and, more
particularly, authoritative decisions of the courts, such as those (p. 043)
on the rights of jurymen, on the prerogative of the crown, on the
privileges of the houses of Parliament and of their members, and on
the rights and duties of the police.
*43. Constituent Elements: the Conventions.*--Finally, there are those
portions of the constitution which have been denominated with aptness
by Mr. Dicey "the conventions."[48] The "law" of the constitution,
comprising the four categories of elements which have been enumerated,
is at all points, whether written or unwritten, enforceable by the
courts; the conventions, although they may and not seldom do relate to
matters of vital importance, are not so enforceable. The conventions
consist of understandings, practices, and habits by which are
regulated a large proportion of the actual operations of the
governmental authorities. They may have acquired expression in written
form, but they do not appear in the statute-books or in any instrument
which can be made the basis of action in a court of law. For example,
it is a convention of the constitution which forbids the king to veto
a measure passed by the houses of Parliament. If the sovereign were in
these days actually to veto a bill, the political consequences might
be serious, but there could be no question of the sheer legality of
the deed. It is by virtue of a convention, not a law, of the
constitution, that ministers resign office when they have ceased to
command the confidence of the House of Commons; that a bill must be
read three times before being finally voted upon in the House of
Commons; that Parliament is convened annually and that it consists of
two houses. The cabinet, and all that the cabinet, as such, stands
for, rests entirely upon convention. To these things, and many others,
the student who is concerned exclusively with the constitutional law
of the British nation may give little or no attention. But by one who
is seeking to understand the constitutional system as it is and as it
operates attention must be fixed upon the conventions quite as
steadily as upon the positive rules of law. If the conventions are not
to be regarded as technically parts of the constitution, they are at
least not infrequently as binding in practice as are these rules; and
they may be even more determinative of the operations of the public
powers.[49] The English constitution is indeed, as Mr. Bryce has
described it, "a mass of precedents carried in men's minds or recorded
in writing, dicta of lawyers or statesmen, customs, usages, (p. 044)
understandings and beliefs, a number of statutes mixed up with customs
and all covered over with a parasitic growth of legal decisions and
political habits."[50] At no time has an attempt been made to collect
and to reduce to writing this stupendous mass of scattered material,
and no such attempt is likely ever to be made. "The English," as
remarks the French critic Boutmy, "have left the different parts of
their constitution where the waves of history have deposited them;
they have not attempted to bring them together, to classify or
complete them, or to make of it a consistent or coherent whole."[51]
[Footnote 48: Introduction to the Study of the Law
of the Constitution (7th ed., London, 1908),
22-29.]
[Footnote 49: Convention occupies a large place in
most political systems, even in countries which are
governed under elaborate written constitutions.
Their importance in the government of the United
States is familiar (see Bryce, American
Commonwealth, 3d ed., I., Chaps. 34-35). On the
influence of conventions in France see H. Chardon,
L'Administration de la France; les fonctionnaires
(Paris, 1908), 79-105.]
[Footnote 50: J. Bryce, Flexible and Rigid
Constitutions, in Studies in History and
Jurisprudence (London and New York, 1901), No. 3.]
[Footnote 51: E. Boutmy, Studies in Constitutional
Law: France--England--United States, trans. by E.
M. Dicey (London, 1891), 6.]
V. THE FLEXIBILITY OF THE CONSTITUTION
*44. Aspects of Continuity and of Change.*--In pursuance of what has
been said two observations, representing opposite aspects of the same
truth, are pertinent. The first is that in respect to the principles
and many of the practices of the English constitution it is
pre-eminently true that, to employ a familiar phrase of Bishop Stubbs,
the roots of the present lie deep in the past.[52] The second is that
the English constitution is a living organism, so constantly
undergoing modification that any description of it which may be
attempted is likely to be subject to correction almost before it can
be completed. At no time, as Mr. Freeman wrote, "has the tie between
the present and the past been rent asunder; at no moment have
Englishmen sat down to put together a wholly new constitution in
obedience to some dazzling theory."[53] On the contrary, each step in
the growth of the constitutional system has been the natural
consequence of some earlier step. Great changes, it is true, have been
wrought. To mention but the most obvious illustration, autocratic
kingship has been replaced by a parliamentary government based upon a
thoroughgoing political democracy. None the less, transitions have
been regularly so gradual, deference to tradition so habitual, and the
disposition to cling to ancient names and forms, even when the spirit
had changed, so deep-seated, that the constitutional history of
England presents elements of continuity which cannot be paralleled in
any other country of Europe.
[Footnote 52: Constitutional History of England,
I., prefatory note.]
[Footnote 53: Growth of the English Constitution,
19.]
The letter of a written constitution may survive through many decades
unchanged, as has that of the Italian _Statuto_ of 1848, and as did
that of the American constitution between 1804 and 1865. No (p. 045)
constitutional system, however, long stands still, and least of all
one of the English variety, in which there exists but little of even
the formal rigidity arising from written texts. Having no fixed and
orderly shape assigned it originally by some supreme authority, the
constitution of the United Kingdom has retained throughout its history
a notably large measure of flexibility. It is by no means to-day what
it was fifty years ago; fifty years hence it will be by no means what
it is to-day. In times past changes have been accompanied by violence,
or, at least, by extraordinary manifestations of the national will.
Nowadays they are introduced through the ordinary and peaceful
processes of legislation, of judicial interpretation, and of
administrative practice. Sometimes, as in the instance of the recent
overhauling of the status of the House of Lords, they are accompanied
by heated controversy and widespread public agitation. Not
infrequently, however, they represent inevitable and unopposed
amplifications of existing law or practice and are taken note of
scarcely at all by the nation at large.
*45. The Constituent Powers of Parliament.*--The principal means by
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
Completes; 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 L700,000. 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 L510,000 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 L385,000. 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 L470,000, of which L110,000 was appropriated to the privy
purse of the king and queen, L125,000 to salaries and retiring
allowances of the royal household, and L193,000 to household expenses.
At the accession of George V., in 1910, the Civil List was continued
in the sum of L470,000.[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 role 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, Etude sur le premier ministre
en Angleterre depuis ses origines jusqu'a l'epoque
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 L30
or L40.]
[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 L5,000 to L7,000 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, Sec. 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 L10
a year, and to tenants-at-will holding an estate worth L50 a year. In
the boroughs the right to vote was conferred upon all "occupiers" of
houses worth L10 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 L10 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 L600, and borough members worth L300, 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 L5, and
to householders whose rent amounted to not less than L12 a year. (p. 084)
The twelve pound occupation franchise was new,[119] and the
qualification for copyholders and leaseholders was reduced from L10 to
L5; 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 L10 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 L10 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 L50 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 L10 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 L10;
(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 L10 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
electeurs 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.
*93. The Problem of the Plural Vote.*--Aside from the enfranchisement of
women, the principal suffrage questions in Great Britain to-day are
those pertaining to the conferring of the voting privilege upon adult
males who are still debarred, the abolition of the plural vote, and a
general simplification and unification of franchise arrangements. The
problem of the plural vote is an old one. Under existing law an
elector may not vote more than once in a single constituency, nor in
more than one division of the same borough; but aside from this, and
except in so far as is not prohibited by residence requirements, he is
entitled to vote in every constituency in which he possesses a
qualification. In the United States and in the majority of European
countries a man is possessed of but one vote, and any arrangement
other than this would seem to contravene the principle of civic
equality which lies at the root of popular government. In England
there have been repeated attempts to bring about the establishment of
an unvarying rule of "one man, one vote," but never as yet with
success. The number of plural voters--some 525,000--is relatively
small, but when it is remembered that a single voter may cast during a
parliamentary election as many as fifteen or twenty votes it will be
observed that the number quite suffices to turn the scale in many
closely contested constituencies. An overwhelming proportion of the
plural voters are identified with the Conservative party, whence it
arises that the Liberals are, and long have been, hostile to the
privilege. Following the Liberal triumph at the elections of 1906 (p. 090)
a Plural Voting Bill was introduced requiring that every elector
possessed of more than one vote should be registered in the
constituency of his choice and in no other one. The measure passed the
Commons, by a vote of 333 to 104, but the Conservative majority in the
Lords compassed its defeat, alleging that while it was willing to
consider a complete scheme of electoral reform the proposed bill was
not of such character.[126]
[Footnote 126: May and Holland, Constitutional
History of England, III., 48-49. It may be noted
that an able royal commission, appointed in
December, 1908, to study foreign electoral systems
and to recommend modifications of the English
system, reported in 1910 adversely to the early
adoption of any form of proportional
representation.]
*94. The Franchise Bill of 1912.*--Soon after the final enactment, in
August, 1911, of the Parliament Bill whereby the complete ascendancy
of the Commons was secured in both finance and legislation[127] the
Liberal government of Mr. Asquith made known its intention to bring
forward at an early date a comprehensive measure of franchise reform.
During the winter of 1911-1912 the project was formulated, and in the
early summer of 1912 the bill was introduced. The adoption of the
measure in its essentials is not improbable, although at the date of
writing[128] it is by no means assured. In the main, the bill makes
provision for three reforms. In the first place, it substitutes for
the present complicated and illogical network of suffrages a simple
residential or occupational qualification, thereby extending the
voting privilege to practically all adult males. In the second place,
it simplifies the process of registration and, in effect, enfranchises
large numbers of men who in the past have been unable to vote because
of change of residence or of the difficulties of the registration
process. Finally, it abolishes absolutely both the plural vote and the
separate representation of the universities. The effect of the first
two of these provisions, it is estimated, would be to enlarge the
electorate by 2,500,000 votes, that of the third, to reduce it by
upwards of 600,000;[129] so that the net result of the three would be
to raise an existing electorate of eight millions to one of ten
millions. A total of twenty-eight franchise statutes are totally, and
forty-four others are partially, repealed by the bill. The ground upon
which the measure, in its earlier stages, was attacked principally was
its lack of provision for a redistribution of seats. The defense of
the Government has been that, while the imperative need of
redistribution is recognized, such redistribution can be effected only
after it shall be known precisely what the franchise arrangements (p. 091)
of the kingdom are to be.[130]
[Footnote 127: See pp. 110-113.]
[Footnote 128: October, 1912.]
[Footnote 129: The number of plural voters is
placed at 525,000; that of graduates who elect the
university representatives, at 49,614.]
[Footnote 130: A timely volume is J. King and F. W.
Raffety, Our Electoral System; the Demand for
Reform (London, 1912).]
*95. The Question of Woman's Suffrage.*--It will be observed that the
Franchise Bill restricts the franchise to adult males. The measure was
shaped deliberately, however, to permit the incorporation of an
amendment providing for the enfranchisement of women. It is a fact not
familiarly known that English women of requisite qualifications were
at one time in possession of the suffrage at national elections. They
were not themselves allowed to vote, but a woman was privileged to
pass on her qualifications temporarily to any man, and, prior to the
seventeenth century, the privilege was occasionally exercised. It was
not indeed, until the Reform Act of 1832 that the law of elections, by
introducing the phrase "male persons," in effect vested the
parliamentary franchise exclusively in men.[131] The first notable
attempt made in Parliament to restore and extend the female franchise
was that of John Stuart Mill in 1867. His proposed amendment to the
reform bill of that year was defeated by a vote of 196 to 73. In 1870
a woman's suffrage measure drafted by Dr. Pankhurst and introduced in
the Commons by John Bright passed its second reading by a majority of
thirty-three, but was subsequently rejected. During the seventies and
early eighties a vigorous propaganda was maintained and almost every
session produced its crop of woman's suffrage bills. A determined
attempt was made to secure the inclusion of a woman's suffrage clause
in the Reform Bill of 1884. The proposed amendment was supported very
generally by the press, but in consequence of a threat by Gladstone to
the effect that if the amendment were carried the entire measure would
be withdrawn the project was abandoned. The next chapter of importance
in the history of the movement was inaugurated by the organization, in
1903, of the Women's Social and Political Union. In 1904 a suffrage
bill was introduced but failed to become law. Within the past decade,
however, the cause has made substantial headway, and by the
spectacular character which it has assumed it has attracted wide
attention. In March, 1912, a Woman's Enfranchisement measure was
rejected in the House of Commons by the narrow margin of 222 to 208
votes. Premier Asquith is opposed to female enfranchisement, but his
colleagues in the ministry are almost evenly divided upon the issue,
and it is not inconceivable that a woman's suffrage measure may be
carried through in the guise of an amendment to the pending Franchise
Bill. If it were to be, and the qualifications should be made (p. 092)
identical with those of men, the number of women voters would be
approximately 10,500,000.[132]
[Footnote 131: May and Holland, Constitutional
History of England, III., 61.]
[Footnote 132: K. Schirmacher, The Modern Woman's
Rights Movement, trans. by C. C. Eckhardt (New
York, 1912), 58-96; B. Mason, The Story of the
Woman's Suffrage Movement (London, 1911); E. S.
Pankhurst, The Suffragette; the History of the
Woman's Militant Suffrage Movement, 1905-1910
(London, 1911). The subject is surveyed briefly in
May and Holland, Constitutional History, III.,
59-66.]
*96. Qualifications for Election.*--The regulations governing the
qualifications essential for election to Parliament are to-day, on the
whole, simple and liberal. The qualification of residence was replaced
in the eighteenth century by a property qualification; but, as has
been pointed out, in 1858 this likewise was swept away. Oaths of
allegiance and oaths imposing religious tests once operated to debar
many, but all that is now required of a member is a very simple oath
or affirmation of allegiance, in a form compatible with any shade of
religious belief or unbelief. Any male British subject who is of age
is qualified for election, unless he belongs to one of a few small
groups--notably peers (except Irish); clergy of the Roman Catholic
Church, the Church of England, and the Church of Scotland; certain
office-holders; bankrupts; and persons convicted of treason, felony,
or corrupt practices. A member is not required to be a resident of the
electoral district which he represents. Once elected, a man properly
qualified cannot escape membership by resignation. He may be expelled,
but the only means by which he can retire from the House voluntarily
is the acceptance of some public post whose occupant is _ipso facto_
disqualified. To serve this end two or three sinecures are maintained,
the best known being the stewardship of the Chiltern Hundreds. The
member who desires to give up his seat accomplishes his purpose by
applying for one of these offices, receiving it, and after having
disqualified himself, resigning it.
IV. ELECTORAL PROCEDURE AND REGULATIONS
*97. Writs and Election Days.*--When a parliament is dissolved the royal
proclamation wherein the dissolution is declared expresses the desire
of the crown to have the advice of the people and announces the
sovereign's will and pleasure to call a new parliament. With this
proclamation as a warrant, the chancellors of Great Britain and
Ireland forthwith issue writs of election, addressed to the returning
officers of the counties and boroughs, i.e., in all Scotch and Irish
constituencies and in the English counties the sheriffs, or their
deputies, and in the English boroughs the mayors. The form of these
writs, as well as the nature of the electoral procedure generally, is
prescribed in the Parliamentary and Municipal Elections Act, commonly
known as the Ballot Act, of 1872.[133] Upon receipt of the proper (p. 093)
writ the returning officer gives notice of the day and place of the
election, and of the poll if it is known that the election will be
contested. In the counties the election must take place within nine
days, in the boroughs within four days, after receipt of the writ, but
within these limits the date is fixed in each constituency by the
returning officer. What actually happens on election day is: (1) all
candidates for seats are placed formally in nomination; (2) if within
an hour of the time fixed for the election the number of nominated
candidates does not exceed the number of places to be filled, the
election of these candidates is forthwith declared; and (3) if there
is a contest the election is postponed to a polling day, to be fixed
by the returning officer, in the counties from two to six, and in the
boroughs not more than three, days distant.
[Footnote 133: For the form of the writ see Anson,
Law and Custom of the Constitution, I., 57.]
*98. The Polling.*--Prior to 1872 candidates were nominated _viva voce_
at the "hustings," an outdoor platform erected for the purpose; but
nowadays nominations are made in writing. It is required that a
candidate shall be proposed by a registered elector of the
constituency and that his nomination shall be assented to formally by
nine other electors. The number of uncontested elections is invariably
large (especially in Ireland, where, in many instances, it is useless
to oppose a candidate to the Nationalists), the proportion reaching
sometimes one-fourth, and even one-third. Polling is completed within
an individual constituency during the course of a single day, the
hours being from eight o'clock in the morning until eight o'clock in
the evening, but under the arrangements that have been described it
falls out that a national election is extended invariably through a
period of more than two weeks. The system operates, of course, to the
advantage of the plural voter, who is enabled to present himself at
the polls from day to day in widely separated constituencies. For the
convenience of voters constituencies are divided regularly into
districts, or precincts. When the properly qualified and registered
elector appears at the polls a ballot paper is presented to him
containing the names of the candidates. He takes this to a screened
compartment and places a cross-mark opposite the name or names of
those for whom he desires to vote, after which the paper is deposited
in a box. At the conclusion of the polling, the boxes are transmitted
to the returning officer of the constituency, the votes are counted,
and the result is declared. The writ which served as the returning
officer's authority is indorsed with a certificate of the election and
returned to the clerk of the Crown in Chancery. It is to be observed,
however, that in the universities the Ballot Act does not apply. In
these constituencies an elector may deliver his vote orally, or (p. 094)
he may transmit it by proxy from his place of residence.[134]
[Footnote 134: On electoral procedure see Lowell,
Government of England, I., Chap. 10; M. MacDonaugh,
The Book of Parliament (London, 1897), 24-50; H. J.
Bushby, Manual of the Practice of Elections for the
United Kingdom (4th ed., London, 1874); W.
Woodings, The Conduct and Management of
Parliamentary Elections (4th ed., London, 1900); E.
T. Powell, The Essentials of Self-Government,
England and Wales (London, 1909); P. J. Blair, A
Handbook of Parliamentary Elections (Edinburgh,
1909); and H. Fraser, The Law of Parliamentary
Elections and Election Petitions (2d ed., London,
1910). A volume filled with interesting information
is J. Grego, History of Parliamentary Elections and
Electioneering from the Stuarts to Queen Victoria
(new ed., London, 1892). The monumental work upon
the entire subject is M. Powell (ed.), Rogers on
Elections, 3 vols. (16th ed., London, 1897).]
*99. Frequency of Elections: the Campaign.*--General elections do not
take place in Great Britain with periodic regularity. The only
positive requirement in the matter is that an election must be ordered
when a parliament has attained the maximum lifetime allowed it by law.
Prior to 1694 there was no stipulation upon this subject and the king
could keep a parliament in existence as long as he liked. Charles II.
retained for seventeen years the parliament called at his accession.
From 1694 to 1716, however, the maximum term of a parliament was three
years; from 1716 to 1911 it was seven years; to-day it is five
years.[135] In point of fact, parliaments never last through the
maximum period, and an average interval of three or four years between
elections has been the rule. In most instances an election is
precipitated more or less unexpectedly on an appeal to the country by
a defeated ministry, and it not infrequently happens that an election
turns all but completely upon a single issue and thus assumes the
character of a national referendum upon the subject in hand. This was
pre-eminently true of the last general election, that of December,
1910, at which the country was asked to sustain the Asquith government
in its purpose to curb the independent authority of the House of
Lords. In any event, the campaign by which the election is preceded is
brief, although it continues throughout the electoral period, and, if
the outcome is doubtful, tends to increase rather than to diminish in
intensity. Appeals to the voters are made principally through public
speaking, the controversial and illustrated press, the circulation of
pamphlets and handbills, parades and mass-meetings, and the generous
use of placards, cartoons, and other devices designed to attract and
focus attention. Plans are laid, arguments are formulated, and (p. 095)
leadership in public appeal is assumed by the members of the
Government, led by the premier, and, on the other side, by the men who
are the recognized leaders of the parliamentary Opposition.[136]
[Footnote 135: The Representation of the People Act
of 1867 made the duration of a parliament
independent of a demise of the crown. The text of
the Septennial Act and that of the Lords' Protest
against the measure are printed in Robertson,
Statutes, Cases, and Documents, 117-119.]
[Footnote 136: M. Ostrogorski, Democracy and the
Organization of Political Parties, trans. by F.
Clarke, 2 vols. (London, 1902), I., 442-501;
MacDonaugh, The Book of Parliament, 1-23. Among
numerous articles descriptive of English
parliamentary elections mention may be made of H.
W. Lucy, The Methods of a British General Election,
in _Forum_, Oct., 1900; S. Brooks, English and
American Elections, in _Fortnightly Review_, Feb.,
1910; W. T. Stead, The General Election in Great
Britain, in _American Review of Reviews_, Feb.,
1910; and d'Haussonville, Dix jours en Angleterre
pendant les elections, in _Revue des Deux Mondes_,
Feb. 1, 1910.]
*100. The Regulation of Electoral Expenditure.*--Time was, and within
the memory of men still living, when an English parliamentary election
was attended by corrupt practices so universal and so shameless as to
appear almost more ludicrous than culpable. Voters as a matter of
course accepted the bribes that were tendered them and ate and drank
and smoked and rollicked at the candidate's expense throughout the
electoral period and were considered men of conscience indeed if they
did not end by going over to the opposition. The notorious Northampton
election of 1768, in the course of which a body of voters numbering
under a thousand were the recipients of hospitalities from the backers
of three candidates which aggregated upwards of a million pounds, was,
of course, exceptional; but the history of countless other cases
differed from it only in the amounts laid out. To-day an altogether
different state of things obtains. From having been one of the most
corrupt, Great Britain has become one of the most exemplary of nations
in all that pertains to the proprieties of electoral procedure. The
Ballot Act of 1872 contained provisions calculated to strengthen
pre-existing corrupt practices acts, but the real turning point was
the adoption of the comprehensive Corrupt and Illegal Practices Act of
1883. By this measure bribery (in seven enumerated forms) and treating
were made punishable by imprisonment or fine and, under varying
conditions, political disqualification. The number and functions of
the persons who may be employed by the candidate to assist in a
campaign were prescribed, every candidate being required to have a
single authorized agent charged with the disbursement of all moneys
(save certain specified "personal" expenditures) in the candidate's
behalf and with the duty of submitting to the returning officer within
thirty-five days after the election a sworn statement covering all
receipts and expenditures. And, finally, the act fixed, upon a sliding
scale in proportion to the size of the constituencies, the maximum
amounts which candidates may legitimately expend. In boroughs
containing not more than 2,000 registered voters the amount is (p. 096)
L350, with an additional L30 for every thousand voters above the
number mentioned. In rural constituencies, where proper outlays will
normally be larger, the sum of L650 is allowed when the number of
registered electors falls under 2,000, with L60 for each additional
thousand. Beyond these sums the candidate is allowed an outlay of L100
for expenses of a purely personal character.
The range of expenditure which is thus permitted by law is, of course,
considerable, and the records of election cases brought into the
courts demonstrate that not infrequently in practice its limits are
exceeded. None the less, the effect of the law has been undeniably to
restrain the outpouring of money by candidates, to purify politics,
and at the same time to enable men of moderate means to stand for
election who otherwise would be at grave disadvantage as against their
wealthier and more lavish competitors. It is of interest to observe
that by reason of the non-participation of the state in electoral
costs there fall upon candidates certain charges which are unknown in
the United States and other countries. The bills submitted by the
returning officer must be paid by the candidates within the
constituency, and these bills cover the publishing of notices of the
election, the preparing and supplying of nomination papers, the cost
of dies, ballot-paper, polling-stations, and printing, the fees of
clerks, and, finally, the travelling expenses and fee of the returning
officer himself. The candidate's share of this outlay may be as small
as L25, but it is likely to be from L200 to L300 and may rise to as
much as L600.[137]
[Footnote 137: On the adoption of the Corrupt and
Illegal Practices Act of 1883 see May and Holland,
Constitutional History of England, III., 31-33. The
actual operation of the system established may be
illustrated by citing a specific case. At the
election of 1906 the maximum expenditure legally
possible for Mr. Lloyd-George in his sparsely
populated Carnarvon constituency was L470. His
authorized agent, after the election, reported an
outlay of L50 on agents, L27 on clerks and
messengers, L189 on printing, postage, etc., L30 on
public meetings, L25 on committee rooms, and L40 on
miscellaneous matters--a total of L361. The
candidate's personal expenditure amounted to L92,
so that the total outlay of L462 fell short by a
scant L8 of the sum that might legally have been
laid out. Divided among the 3,221 votes that Mr.
Lloyd-George received, his outlay per vote was 2s.,
10d. At the same election Mr. Asquith's expenditure
was L727; Mr. Winston Churchill's, L844; Mr. John
Morley's, L479; Mr. Keir Hardie's, L623; Mr. James
Bryce's, L480. In non-contested constituencies
expenditures are small. In 1906 Mr. Redmond's was
reported to be L25 and Mr. William O'Brien's, L20.
In 1900 a total of 1,103 candidates for 670 seats
expended L777,429 in getting 3,579,345 votes; in
1906, 1,273 candidates for the same 670 seats
expended L1,166,858 in getting 5,645,104 votes; in
January, 1910, 1,311 candidates laid out L1,296,382
in getting 6,667,394 votes. A well-informed article
is E. Porritt, Political Corruption in England, in
_North American Review_, Nov. 16, 1906.]
CHAPTER V (p. 097)
PARLIAMENT: THE HOUSE OF LORDS
I. COMPOSITION
*101. Origins.*--With the possible exception of the Hungarian Table of
Magnates, the British House of Lords is the most ancient second
chamber among parliamentary bodies. It is, furthermore, among second
chambers the largest and the most purely hereditary. Its descent can
be traced directly from the Great Council of the Plantagenet period
and, in the opinion of some scholars, from the witenagemot of
Anglo-Saxon times.[138] To the Council belonged originally the
nobility, and the clergy, greater and lesser. Practically, the body
was composed of the more influential churchmen and the more powerful
tenants-in-chief of the crown. In the course of time the lesser clergy
found it convenient to confine their attention to the proceedings of
the ecclesiastical assemblage known as Convocation; while the lesser
nobles, i.e., the poorer and more uninfluential ones, found it to
their interest to cast in their lot, not as formerly with the great
barons and earls, but with the well-to-do though non-noble knights of
the shire. From the elements that remained--the higher clergy and the
greater nobles--developed directly the House of Lords. The lesser
barons, the knights of the shire, and the burgesses, on the other
hand, combined to form the House of Commons.
[Footnote 138: "The House of Lords not only springs
out of, it actually is, the ancient Witenagemot. I
can see no break between the two." Freeman, Growth
of the English Constitution, 62. Professor Freeman,
it must be remembered, was prone to glorify
Anglo-Saxon institutions and to under-estimate the
changes that were introduced in England through the
agency of the Norman Conquest. For the most recent
statement of the opposing view see Adams, Origin of
the English Constitution, Chaps. 1-4.]
*102. Princes of the Blood and Hereditary Peers.*--In respect to its
fundamental constitution the House of Lords has undergone but slight
modification during the many centuries of its existence. In respect,
however, to the composition and size of the body changes have been
numerous and important. There are in the chamber to-day at least six
distinct groups of members, sitting by various rights and possessing
a status which is by no means identical. The first comprises (p. 098)
princes of the royal blood who are of age. The number of these is
variable, but of course never large. They take precedence of the other
nobility, but in point of fact seldom participate in the proceedings
of the Chamber. The second group is the most important of all. It
comprises the peers with hereditary seats and is itself divided
properly into three groups: the peers of England created before the
union with Scotland in 1707, the peers of Great Britain created
between the date mentioned and the union with Ireland in 1801, and the
peers of the United Kingdom created since that date. Technically,
peers are created by the crown; but in practice their creation is
controlled largely by the premier; and the act may be performed for
the purpose of honoring men of distinction in law, letters, science,
or business, or for the more practical purpose of altering the
political complexion of the upper chamber.[139] The power to create
peerages is unlimited[140] and, this being the only means by which the
membership of the body can be increased at discretion, the power is
one which is not infrequently exercised. Originally the right to sit
as a peer was conferred simply by an individual writ of summons, or by
the fact that such a writ had been issued to one's ancestor, but this
method has long since been replaced by a formal grant of letters
patent, accompanied by bestowal of the requisite writ. With exceptions
to be noted, peerages are hereditary, and the heir assumes his
parliamentary seat at the age of twenty-one. Peers are of five
ranks--dukes, marquises, earls, viscounts, and barons. The complicated
rules governing the precedence of these classes are of large social,
but of minor political, interest.
[Footnote 139: The first peerage bestowed purely in
recognition of literary distinction was that of
Lord Tennyson in 1884, the peerages bestowed upon
Macaulay and Bulwer Lytton having been determined
upon in part under the influence of political
considerations. The first professional artist to be
honored with a peerage was Lord Leighton, in 1896.
Lord Kelvin and Lord Lister are among well-known
men of science who have been so honored. Lord
Goschen's viscountcy was conferred, with universal
approval, as the fitting reward of a great business
career. The earldom of General Roberts and the
viscountcies of Generals Wolseley and Kitchener
were bestowed in recognition of military
distinction. With some aptness the House of Lords
has been denominated "the Westminster Abbey of
living celebrities."]
[Footnote 140: Except that, under existing law, the
crown cannot (1) create a peer of Scotland, (2)
create a peer of Ireland otherwise than as allowed
by the Act of Union with Ireland, and (3) direct
the devolution of a dignity otherwise than in
accordance with limitations applying in the case of
grants of real estate.]
*103. Representative Peers of Scotland and of Ireland.*--A third group
of members comprises the representative peers of Scotland. Under
provision of the Act of Union of 1707, when a new parliament is
summoned the whole body of Scottish peers elects sixteen of their
number to sit as their representatives at Westminster. By custom (p. 099)
the election takes place at Holyrood Palace in the city of
Edinburgh.[141] The act of 1707 made no provision for the creation of
Scottish peers, with the consequence that, through the extinction of
noble families and the occasional conferring of a peerage of the
United Kingdom upon a Scottish peer, the total number of Scottish
peerages has been reduced from 165 to 33.[142] The tenure of a
Scottish representative peer at Westminster expires with the
termination of a parliament. A fourth group of members is the Irish.
By the Act of Union of 1800 it was provided that not all of the peers
of Ireland should be accorded seats in the House of Lords, but only
twenty-eight of them, to be elected for life by the whole number of
Irish peers. The number of Irish peerages was put in the course of
gradual reduction and it is now under the prescribed maximum of one
hundred.[143] Unlike the English and Scottish peers, Irish peers, if
not elected to the House of Lords, may stand for election to the House
of Commons, though they may not represent Irish constituencies.[144]
While members of the Commons, however, they may not be elected to the
Lords, nor may they participate in the choice of representative peers.
[Footnote 141: For a statement of the process of
election see Anson, Law and Custom of the
Constitution (4th ed.), I., 219-229.]
[Footnote 142: In 1909. Lowell, Government of
England, I., 395.]
[Footnote 143: The crown was authorized to create
one Irish peerage only for every three such
peerages that should become extinct. During the
thirty years preceding the conferring of an Irish
peerage upon Mr. Curzon, in 1898, the creation of
Irish peerages was entirely suspended.]
[Footnote 144: Lord Palmerston, for example, was an
Irish peer, but sat in the House of Commons.]
*104. The Lords of Appeal.*--A fifth group of members comprises the
Lords of Appeal in Ordinary, who differ from other peers created by
the crown in that their seats are not hereditary. One of the functions
of the House of Lords is to serve as the highest national court of
appeal. It is but logical that there should be included within the
membership of the body a certain number of the most eminent jurists of
the realm, and, further, that the judicial business of the chamber
should be transacted largely by this corps of experts. In 1876 an
Appellate Jurisdiction Act was passed authorizing the appointment of
two (subsequently increased to four) "law lords" with the title of
baron, and by legislation of 1887 the tenure of these members,
hitherto conditioned upon the continued exercise of judicial
functions, was made perpetual for life. At the present day these four
justices, presided over by the Lord Chancellor, comprise in reality
the supreme tribunal of the kingdom. Three of them are sufficient to
constitute a quorum for the transaction of judicial business, and (p. 100)
although other legal-minded members of the chamber may participate,
and technically every member has a right to do so, in most instances
this inner circle discharges the judicial function quite alone.[145]
[Footnote 145: The recognized advisability of
strengthening the judicial element in the Lords
precipitated at one time a serious issue respecting
the power of the crown to create life peerages. In
1856, upon the advice of her ministers, Queen
Victoria conferred upon a distinguished judge, Sir
James Parke, a patent as Baron Wensleydale for
life. The purpose was to introduce into the chamber
desirable legal talent without further augmenting
the peerage. For the creation of life peerages
there was some precedent, but none later than the
reign of Henry VI., and the House of Lords,
maintaining that the right had lapsed and that the
peerage had become entirely hereditary, refused to
admit Baron Wensleydale until his patent was so
modified that his peerage was made hereditary.]
*105. The Lords Spiritual.*--Finally, there are the ecclesiastical
members--not peers, but "lords spiritual." In the fifteenth century
the lords spiritual outnumbered the lords temporal; but upon the
dissolution of the monasteries in the reign of Henry VIII., resulting
in the dropping out of the abbots, the spiritual contingent fell
permanently into the minority. At the present day the quota of
ecclesiastical members is restricted, under statutory regulation, to
26. Scotland, whose established church is the Presbyterian, has none.
Between 1801 and 1869 Ireland had four, but since the disestablishment
of the Irish church in 1869 there have been none. In England five
ecclesiastics, by statute, are entitled invariably to seats, i.e.,
the archbishops of Canterbury and York and the bishops of London,
Durham, and Winchester. Among the remaining bishops the law allows
seats to twenty-one, in the order of seniority. There are always,
therefore, some English bishops--in 1909, ten--who are not members of
the chamber.[146] All ecclesiastical members retain their seats during
tenure of their several sees, but do not, of course, transmit their
rights to their heirs, nor, necessarily, save in the case of the five
mentioned, to their successors in office. Bishops and archbishops are
elected, nominally, by the dean and chapter of the diocese; but when a
vacancy arises the sovereign transmits a _conge d'elire_ containing
the name of the person to be elected, so that, practically,
appointment is made by the crown, acting under the advice of the prime
minister. Bishoprics are created by act of Parliament.[147]
[Footnote 146: The Bishop of Sodor and Man is
entitled to a seat, but not to take part in the
chamber's proceedings. His status has been compared
to that of a territorial delegate in the United
States. Moran, The English Government, 170.]
[Footnote 147: On the composition of the House of
Lords see Lowell, Government of England, I., Chap.
21; Anson, Law and Custom of the Constitution, I.,
Chap. 5; May and Holland, Constitutional History of
England, I., Chap. 5; Moran, English Government,
Chap. 10; Low, Governance of England, Chap. 12;
Courtney, Working Constitution of the United
Kingdom, Chap. 11; Macy, English Constitution,
Chap. 4; Marriott, English Political Institutions,
Chaps. 6-7; and Walpole, The Electorate and the
Legislature, Chap. 2. The subject is treated in
greater detail in Pike, Constitutional History of
the House of Lords, especially Chap. 15.]
*106. Qualifications and Number of Members.*--A peer may be (p. 101)
prevented from occupying a seat in the chamber by any one of several
disqualifications. He must have attained the age of twenty-one; he
must not be an alien; he must not be a bankrupt; he must not be under
sentence for felony. On the other hand, a man who inherits a peerage
cannot renounce the inheritance. Upon more than one occasion this rule
has been a matter of political consequence, for its operation has
sometimes meant that an able and ambitious commoner has been compelled
to surrender his seat in the more important chamber and to assume a
wholly undesired place in the upper house. In 1895 Mr. William W.
Palmer, later Lord Selbourne, inheriting a peerage but desiring to
continue for a time in the Commons, put this rule to a definite test
by neglecting to apply for a writ of summons as a peer. The decision
of the Commons, however, was that he was obligated to accept
membership in the upper chamber, and hence to yield the place which he
occupied in the lower.
The House of Lords numbers to-day 620 members. In earlier periods of
its history it was a very much smaller body, and, indeed, its most
notable growth has taken place within the past one hundred and fifty
years. During the reign of Henry VII. there were never more than
eighty members, the majority of whom were ecclesiastics. To the first
parliament of Charles II. there were summoned 139 persons. At the
death of William III. the roll of the upper chamber comprised 192
names. At the death of Queen Anne the number was 209: at that of
George I. it was 216; at that of George II., 229; at that of George
III., 339; at that of George IV., 396; at that of William IV., 456.
Between 1830 and 1898 there were conferred 364 peerages--222 under
Liberal ministries (covering, in the aggregate, forty years) and 142
under the Conservatives (covering twenty-seven years). More than
one-half of the peerages of to-day have been created within the past
fifty years, and of the remainder only an insignificant proportion can
be termed ancient.
II. THE REFORM OF THE LORDS: THE QUESTION PRIOR TO 1909
*107. The Status of the Chamber.*--As a law-making body the House of
Lords antedates the House of Commons. At the beginning of the
fourteenth century the theory was that the magnates assented to
legislation while the Commons merely petitioned for it. In a statute
of 1322, however, the legislative character of Parliament as a (p. 102)
whole was effectively recognized, and at the same time the legislative
parity of the commons with the magnates. Thenceforth, until very
nearly the present day, the two chambers were legally co-ordinate and
every act of legislation required the assent of both. It is true that
during the course of the nineteenth century there was a remarkable
growth of legislative preponderance on the part of the House of
Commons, until, indeed, the point was reached where all important
measures were first presented in that chamber and the Lords were very
certain not to thwart the ultimate adoption of any project of which
the nation as represented in the popular branch unmistakably approved.
Yet upon numerous occasions bills, and sometimes--as in the case of
Gladstone's Home Rule Bill in 1893--highly important ones, were
defeated outright; and at all times the chamber imposed a check upon
the lower house and exercised a powerful influence upon the actual
course of legislative business. Under the provisions of the act of
1911, however, the status and the legislative functions of the House
of Lords have been profoundly altered, and an adequate understanding
of the workings of the British parliament to-day requires some review
of the changes wrought by that remarkable piece of legislation.
Throughout upwards of a century the "mending or ending" of the Lords
has been among the most widely discussed of public issues in the
United Kingdom. The question has been principally one of "mending,"
for the number of persons who have advocated seriously the total
abolition of the chamber has been small and their influence has been
slight. The utility of a second chamber, in a democratic no less than
in an illiberal constitutional system, is very generally
admitted,[148] and no one supposes that the House of Lords will ever
be swept completely out of existence to make room for the
establishment of a new and entirely different parliamentary body. If
it were to devolve upon the people of Great Britain to-day to adopt
for themselves _de novo_ a complete governmental system, they might
well not incorporate in that system an institution of the nature of
the present House of Lords; but since the chamber exists and is rooted
in centuries of national usage and tradition, the perpetuation of it,
in some form, may be taken to be assured.
[Footnote 148: There are, of course, Englishmen who
concur in the dictum of Sieyes that "if a second
chamber dissents from the first, it is mischievous;
if it agrees, it is superfluous." An able exponent
of this doctrine, within recent years, is Sir
Charles Dilke.]
*108. The Breach Between the Lords and the Nation.*--The indictments
which have been brought against the House of Lords have been sweeping
and varied. They have been based upon the all but exclusively
hereditary character of the membership, upon the meagerness of (p. 103)
attendance at the sittings and the small interest displayed by a
majority of the members, and upon the hurried and frequently
perfunctory nature of the consideration which is accorded public
measures. Fundamentally, however, the tremendous attack which has been
levelled against the Lords has had as its impetus the conviction of
large masses of people that the chamber as constituted stands
persistently and deliberately for interests which are not those of the
nation at large. Prior to the parliamentary reforms of the nineteenth
century the House of Commons was hardly more representative of the
people than was the upper chamber. Both were controlled by the landed
aristocracy, and between the two there was as a rule substantial
accord. After 1832, however, the territorial interests, while yet
powerful, were not dominant in the Commons, and a cleavage between the
Lords, on the one hand, and the Commons, increasingly representative
of the mass of the nation, on the other, became a serious factor in
the politics and government of the realm. The reform measures of 1867
and 1884, establishing in substance a system of manhood suffrage in
parliamentary elections, converted the House of Commons into an organ
of thoroughgoing democracy. The development of the cabinet system
brought the working executive, likewise, within the power of the
people to control. But the House of Lords underwent no corresponding
transformation. It remained, and still is, an inherently and
necessarily conservative body, representative, in the main, of the
interests of landed property, adverse to changes which seem to menace
property and established order, and identified with all the forces
that tend to perpetuate the nobility and the Anglican Church as
pillars of the state. By simply standing still while the remaining
departments of the governmental system were undergoing democratization
the second chamber became, in effect, a political anomaly.[149]
[Footnote 149: Dickinson, Development of Parliament
during the Nineteenth Century, Chap. 3.]
*109. Earlier Projects of Reform.*--Projects for the reform of the Lords
were not unknown before 1832, but it has been since that date, and,
more particularly during the past half-century, that the reform
question has been agitated most vigorously. Some of the notable
proposals that have been made relate to the composition of the
chamber, others to the powers and functions of it, and still others to
both of these things. In respect to the composition of the body, the
suggestions that have been brought forward have contemplated most
commonly the reduction of the chamber's size, the dropping out of the
ecclesiastical members, and the substitution, wholly or in part, of
specially designated members in the stead of the members who at present
sit by hereditary right. As early as 1834 it was advocated that (p. 104)
the archbishops and bishops of the Established Church should "be
relieved from their legislative and judicial duties," and this demand,
arising principally from the Non-conformists, has been voiced
repeatedly in later years. In 1835 the opposition of the peers to
measures passed by the Commons incited a storm of popular disapproval
of such proportions that more than one of the members of the chamber
gloomily predicted the early demolition of the body, and throughout
succeeding decades the idea took increasing hold, within the
membership as well as without, that change was inevitable. In 1869 a
bill of Lord Russell providing for the gradual infiltration of life
peers was defeated on the third reading, and in the same year a
project of Earl Grey, and in 1874 proposals of Lord Rosebery and Lord
Inchiquin, came to naught. The rejection by the Lords of measures
supported by Gladstone's government in 1881-1883 brought the chamber
afresh into popular disfavor, and in 1884 Lord Rosebery introduced a
motion "that a select committee be appointed to consider the best
means of promoting the efficiency of this House," with the thought
that there might be brought into the chamber representatives of the
nation at large, and even of the laboring classes. The motion was
rejected overwhelmingly, but in 1888 it was renewed, and in that year
the Salisbury government introduced two reform bills, one providing
for the gradual creation of fifty life peerages, to be conferred upon
men of attainment in law, diplomacy, and administrative service, and
the other (popularly known as the "Black Sheep Bill") providing for
the discontinuance of writs of summons to undesirable members of the
peerage. The bills, however, were withdrawn after their second reading
and an attempt on the part of Lord Carnarvon, in 1889, to revive the
second of them failed.
*110. The Lords and the Liberal Government, 1906-1907.*--Thence-forward
until 1907 the issue was largely quiescent. During a considerable
portion of this period the Unionist party was in power, and between
the upper chamber, four-fifths of whose members were Unionists, and
the Unionist majority in the Commons substantial harmony was easily
maintained. During the Liberal administration of 1893-1894 the Lords
rejected Gladstone's second Home Rule Bill and mutilated and defeated
other measures; but, although the Liberal leaders urged that the will
of the people had been frustrated, the appeal for second chamber
reform failed utterly to strike fire. With the establishment of the
Campbell-Bannerman ministry, in December, 1905, the Liberals entered
upon what has proved a prolonged tenure of power and the issue of the
Lords was brought again inevitably into the forefront of public
controversy. In consequence of the Lords' insistence upon an amendment
of the fundamentals of the Government's Education Bill, late in (p. 105)
1906, and the openly manifested disposition of the Unionist upper chamber
to obstruct the Liberal programme in a variety of directions,[150] the
warfare between the houses once more assumed threatening proportions.
A resolution introduced by the premier June 24, 1907, was adopted in
the Commons after a three days' debate by a vote of 385 to 100, as
follows: "That, in order to give effect to the will of the people as
expressed by elected representatives it is necessary that the power of
the other House to alter or reject bills passed by this House shall be
so restricted by law as to secure that within the limits of a single
parliament the final decision of the Commons shall prevail." It was
announced that a bill carrying into effect the substance of this
declaration would be introduced, and it was understood that the
Government's plan contemplated a reduction of the maximum life of a
parliament from seven years to five and the institution of a system of
conference committees whereby agreement might be effected upon
occasion between the two houses, reserving the eventual right of the
Commons, after a third rejection by the Lords, to enact a measure into
law alone. Preoccupied, however, with projects of general legislation,
the Government postponed and eventually abandoned the introduction of
its bill.
[Footnote 150: Notably in respect to legislation
abolishing the plural vote and regulating the
liquor traffic. The Lords rejected a Plural Voting
Bill and an Aliens Bill in 1906, a Land Values Bill
in 1907, and a Licensing Bill in 1908. In the
interest of accuracy it should be observed that
during the first session of 1906 a total of 121
bills became law, that only four (including the
Education Bill) passed by the Commons were rejected
by the Lords, and that fifteen passed by the Lords
were rejected in the Commons. The proportions at
most sessions during the period under review were
substantially similar. But, of course, measures
rejected by the Lords were likely to be those in
which the interest of the Liberal government was
chiefly centered.]
In the upper chamber a measure introduced by Lord Newton, providing
for (1) a reduction of the hereditary element by requiring that a peer
by descent alone should have a right to sit only if he were elected
(for a single parliament) as a representative peer or possessed other
stipulated qualifications and (2) the appointment by the crown of a
maximum of one hundred life peers, was discussed at some length. The
bill was withdrawn, but it was decided to create a Select Committee on
the House of Lords, under the chairmanship of Lord Rosebery, and in
December, 1908, this committee reported a scheme of reform in
accordance with which (1) a peerage alone should not entitle the
holder to a seat in the chamber; (2) the hereditary peers, including
those of Scotland and Ireland, should elect two hundred representatives
to sit in the upper house for each parliament; (3) hereditary peers
who had occupied certain posts of eminence in the government and the
army and navy should be entitled to sit without election; (4) the (p. 106)
bishops should elect eight representatives, while the archbishops
should sit as of right; and (5) the crown should be empowered to
summon four life peers annually, so long as the total did not exceed
forty. This series of proposals failed utterly to meet the Liberal
demand and no action was taken upon it. But it is to be noted that the
Lords' Reconstruction Bill of 1911, to be described presently, was
based in no small measure upon information and recommendations
forthcoming from the Rosebery committee.[151]
[Footnote 151: May and Holland, Constitutional
History of England, III., 343-349. For references
on the general subject of the reform of the Lords
see pp. 115-116.]
III. THE QUESTION OF THE LORDS, 1909-1911
*111. The Lords and Money Bills.*--In November, 1909, the issue was
reopened in an unexpected manner by the Lords' rejection of the
Government's Finance Bill, in which were included far-reaching
proposals of the Chancellor of the Exchequer, Mr. Lloyd-George,
respecting the readjustment of national taxation. This act of the
upper chamber, while not contrary to positive law, contravened in so
serious a manner long established custom that it was declared by those
who opposed it to be in effect revolutionary. Certainly the result was
to precipitate an alteration of first-rate importance in the
constitution of the kingdom. The priority of the Commons within the
domain of finance was established at an early period of parliamentary
history; and priority, in time, was converted into thoroughgoing
dominance. As early as 1407 Henry IV. recognized the principle that
money grants should be initiated in the Commons, assented to by the
Lords, and subsequently reported to the crown. This procedure was not
always observed, but after the resumption by the two houses of their
normal functions following the Restoration in 1660 the right of the
commoners to take precedence in fiscal business was forcefully and
continuously asserted. In 1671 the Commons resolved "that in all aids
given to the king by the Commons, the rate or tax ought not to be
altered by the Lords," and a resolution of 1678 reaffirmed that all
bills granting supplies "ought to begin with the Commons." At no time
did the Lords admit formally the validity of these principles; but, by
refusing to consider fiscal measures originated in the upper chamber
and to accept financial amendments there proposed, the Commons
successfully enforced observance of them.
The rules in this connection upon which the Commons insisted have been
summarized as follows: (1) The Lords ought not to initiate any (p. 107)
legislative proposal embodied in a public bill and imposing a charge
on the people, whether by taxes, rates, or otherwise, or regulating
the administration or application of money raised by such a charge,
and (2) the Lords ought not to amend any such legislative proposal by
altering the amount of a charge, or its incidence, duration, mode of
assessment, levy or collection, or the administration or application
of money raised by such a charge.[152] These rules, although not
embodied in any law or standing order, were through centuries so
generally observed in the usage of the two houses that they became for
all practical purposes, a part of the constitutional system--conventional,
it is true, but none the less binding. From their observance it
resulted (1) that the upper chamber was never consulted about the
annual estimates, about the amounts of money to be raised, or about
the purposes to which those amounts should be appropriated; (2) that
proposals of taxation came before it only in matured form and under
circumstances which discouraged criticism; and (3) that, since the
policy of the executive is controlled largely through the medium of
the power of the purse, the upper house lost entirely the means of
exercising such control. In 1860 the Lords, as has been mentioned,
made bold to reject a bill for the repeal of the duties on paper; but
the occasion was seized by the Commons to pass a resolution
reaffirming vigorously the subordination of the second chamber in
finance, and the next year the repeal of the paper duties was
incorporated in the annual budget and forced through. Thereafter it
became the invariable practice to give place to all proposals of
taxation in the one grand Finance Bill of the year, with the effect,
of course, of depriving the Lords of the opportunity to defeat a
proposal of the kind save by rejecting the whole of the measure of
which it formed a part.[153]
[Footnote 152: Ilbert, Parliament, 205.]
[Footnote 153: It was in pursuance of this policy
that Sir William Vernon-Harcourt incorporated in
the Finance Bill of 1894, extensive changes in the
death duties and Sir Michael Hicks-Beach, in 1899,
included proposals for altering the permanent
provisions made for the reduction of the national
debt.]
*112. The Finance Bill of 1909 and the Asquith Resolutions.*--The
rejection of the Finance Bill in 1909,[154] following as it did the
rejection of other important measures which the Liberal majority in
the Commons had approved, raised in an acute form the question of the
power of the Lords over money bills and precipitated a crisis in (p. 108)
the relations between the two houses. On the one hand the House of
Commons adopted, by a vote of 349 to 134, a memorable resolution to
the effect that "the action of the House of Lords in refusing to pass
into law the provision made by the House of Commons for the finances
of the year is a breach of the constitution, and a usurpation of the
privileges of the House of Commons"; and, on the other, the Asquith
ministry came instantly to the decision that the situation demanded an
appeal to the country. In January, 1910, a general election took
place, with the result that the Government was continued in power,
though with a reduced majority; and at the convening of the new
parliament, in February, the Speech from the Throne promised that
proposals should speedily be submitted "to define the relations
between the houses of Parliament, so as to secure the undivided
authority of the House of Commons over finance, and its predominance
in legislation." The Finance Bill of the year was reintroduced and
this time successfully carried through; but in advance of its
reappearance the premier laid before the House of Commons a series of
resolutions to the following effect:[155] (1) that the House of Lords
should be disabled by law from rejecting or amending a money bill; (2)
that the power of the chamber to veto other bills should be restricted
by law; and (3) that the duration of a parliament should be limited to
a maximum period of five years. During the course of the debate upon
these resolutions it was made clear that the Government did not desire
the abolition of the Lords, but wished merely to have the legislative
competence of the house confined to consultation, revision, and,
subject to proper safeguards, delay. April 14, 1910, the resolutions
were adopted in the Commons by substantial majorities,[156] and with
them as a basis the Government proceeded with the framing of its bill
upon the subject.
[Footnote 154: Strictly, the Lords declined to
assent to the Budget until it should have been
submitted to the judgment of the people. On the
nature of the Government's finance proposals see
May and Holland, Constitutional History of England,
III., 350-355; G. L. Fox, The British Budget of
1909, in _Yale Review_, Feb., 1910; and D.
Lloyd-George, The People's Budget (London, 1909),
containing extracts from the Chancellor's speeches
on the subject.]
[Footnote 155: The Finance Bill passed its third
reading in the House of Commons April 27, was
passed in the Lords April 28, without division, and
received the royal assent April 29.]
[Footnote 156: The votes on the three resolutions
were, respectively, 339 to 237, 351 to 246, and 334
to 236.]
Meanwhile, March 14, there had been introduced in the House of Lords
by Lord Rosebery an independent series of resolutions, as follows: (1)
that a strong and efficient second chamber is not merely a part of the
British constitution but is necessary to the well-being of the state
and the balance of Parliament; (2) that such a chamber may best be
obtained by the reform and reconstitution of the House of Lords; and
(3) that a necessary preliminary to such a reform and reconstitution
is the acceptance of the principle that the possession of a peerage
should no longer of itself involve the right to sit and vote in (p. 109)
the House. The first two of these resolutions were agreed to without
division; the third, although vigorously opposed, was carried
eventually by a vote of 175 to 17.
*113. The Unionists and the Referendum.*--The death of the king, May 6,
halted consideration of the subject, and through the succeeding summer
hope was centered in a "constitutional conference" participated in by
eight representatives of the two houses and of the two principal
parties. A total of twenty-one meetings were held, but all effort to
reach an agreement proved futile and at the reassembling of
Parliament, November 15, the problem was thrown back for solution upon
the houses and the country. November 17 there was carried in the
Lords, without division, a new resolution introduced by Lord Rosebery
to the effect that in future the House of Lords should consist of
Lords of Parliament in part chosen by the whole body of hereditary
peers from among themselves and by nomination of the crown, in part
sitting by virtue of offices held and qualifications possessed, and in
part designated from outside the ranks of the peerage. A few days
subsequently, the Government's Parliament Bill having been presented
in the second chamber (November 21), Lord Lansdowne, leader of the
Opposition in that chamber, came forward with a fresh series of
resolutions designed to clarify the Unionist position in anticipation
of the elections which were announced for the ensuing month. With
respect to money bills it was declared that the Lords were "prepared
to forego their constitutional right to reject or amend money bills
which are purely financial in character," provided that adequate
provision should be made against tacking, that questions as to whether
a bill or any provision thereof were purely financial should be
referred to a joint committee of the two houses (the Speaker of the
Commons presiding and possessing a casting vote), and that a bill
decided by such a committee to be not purely financial should be dealt
with in a joint sitting of the two houses. With respect to all
measures other than those thus provided for the resolutions declared
that "if a difference arises between the two houses with regard to any
bill other than a money bill in two successive sessions, and with an
interval of not less than one year, and such difference cannot be
adjusted by any other means, it shall be settled in a joint sitting
composed of members of the two houses; provided that if the difference
relates to a matter which is of great gravity, and has not been
adequately submitted for the judgment of the people, it shall not be
referred to the joint sitting, but shall be submitted for decision to
the electors by referendum." It will be observed that these resolutions
were hardly less drastic than were those carried through the (p. 110)
Commons by the ministry. Their adoption involved the abolition of the
absolute veto of the second chamber and might well involve the
intrusting of interests which the peers held dear to the hazards of a
nation-wide referendum.[157] None the less, the resolutions were
agreed to without division, and, both parties having in effect
pronounced the existing legislative system unsatisfactory, the
electorate was asked to choose between the two elaborate substitutes
thus proposed.
[Footnote 157: For the growth of the idea of the
referendum see H. W. Horwill, The Referendum in
Great Britain, in _Political Science Quarterly_,
Sept., 1911.]
*114. The Enactment of the Parliament Bill, 1911.*--The appeal to the
country, in December, yielded results all but exactly identical with
those of the elections of the previous January. The Government secured
a majority of 127, and in the new parliament, which met February 6,
the Parliament Bill was reintroduced without alteration. On the ground
that the measure had been submitted specifically to the people and had
been approved by them, the ministry demanded its early enactment by
the two houses. May 15 the bill passed its third reading in the
Commons by a vote of 362 to 241. During the committee stage upwards of
one thousand amendments were suggested. But the Government stood firm
for the instrument as originally drawn and, while it accepted a few
incidental changes, in the end it got essentially its own way.
Meanwhile, early in May, Lord Lansdowne introduced in the upper
chamber a comprehensive bill which put in form for legislation the
programme of reconstruction to which the more moderate elements in
that chamber were ready, under the circumstances, to subscribe. The
Lansdowne Reconstruction Bill proposed, at the outset, a reduction of
the membership of the chamber to 350. Princes of the blood and the two
archbishops should retain membership, but the number of bishops entitled
to sit should be reduced to five, these to be chosen triennially by
the whole body of higher prelates upon the principle of proportional
representation. The remainder of the membership should comprise lords
of parliament, as follows: (1) 100 elected from the peers possessing
carefully stipulated qualifications, for a term of twelve years, on
the principle of proportional representation, by the whole body of
hereditary peers (including the Scotch and Irish), one-fourth of the
number retiring triennially; (2) 120 members chosen by electoral colleges
composed of members of the House of Commons divided for the purpose
into local groups, each returning from three to twelve, under conditions
of tenure similar to those prevailing in the first class; and (3) 100
appointed, from the peerage or outside, by the crown on nomination by
the premier, with regard to the strength of parties in the House (p. 111)
of Commons, and under the before-mentioned conditions of tenure. It
was stipulated, further, that peers not sitting in the House of Lords
should be eligible for election to the House of Commons, and that,
except in event of the "indispensable" elevation of a cabinet minister
or ex-minister to the peerage, it should be unlawful for the crown to
confer the dignity of an hereditary peerage upon more than five
persons during the course of any single year.
This body of proposals, it will be observed, related exclusively to
the _composition_ of the upper chamber. The Liberal leaders preferred
to approach the problem from the other side and to assure the
preponderance of the Commons by the imposition of positive
restrictions upon the _powers_ which the Lords, under given
conditions, might exercise. Lord Lansdowne's bill--sadly characterized
by its author as the "deathblow to the House of Lords, as many of us
have known it for so long"--came too late, and the chamber, after
allowing it to be read a second time without division, was constrained
to drop it for the Government's measure. July 20 the Parliament Bill,
amended in such a manner as to exclude from its operation legislation
affecting the constitution and other matters of "great gravity," was
adopted without division. The proposed amendments were highly
objectionable to the Liberals and, relying upon an understanding
entered into with the king during the previous November relative to
the creation of peers favorable to the Government's programme, the
ministry let it be understood that no compromise upon essentials could
be considered.[158] Confronted with the prospect of a wholesale
"swamping,"[159] the Opposition fell back upon the policy of
abstention and, although a considerable number of "last-ditchers" held
out to the end, a group of Unionists adequate to carry the measure
joined the supporters of the Government, August 10, in a vote not to
insist upon the Lords' amendments, which meant, in effect, to approve
the bill as adopted in the lower house.[160] The royal assent was
extended August 18.
[Footnote 158: When, July 24, Premier Asquith rose
in the Commons to reply to the Lords' amendments
there resulted such confusion that for the first
time in generations, save upon one occasion in
1905, the Speaker was obliged to adjourn a sitting
on account of the disorderly conduct of members.]
[Footnote 159: Had the Unionists maintained to the
end their attitude of opposition the number of
peers which would have had to be created to ensure
the enactment of the bill would have been some
400.]
[Footnote 160: The final vote in the Lords was 131
to 114. The Unionist peers who voted with the
Government numbered 37.]
IV. THE PARLIAMENT ACT OF 1911 AND AFTER (p. 112)
*115. Provisions Relating to Money Bills.*--In its preamble the
Parliament Act promises further legislation which will define both the
composition and the powers of a second chamber "constituted on a
popular instead of an hereditary basis"; but the act itself relates
exclusively to the powers of the chamber as it is at present
constituted. The general purport of the measure is to define the
conditions under which, while the normal methods of legislation remain
unchanged, financial bills and proposals of general legislation may
nevertheless be enacted into law without the concurrence of the upper
house. The first signal provision is that a public bill passed by the
House of Commons and certified by the Speaker to be, within the terms
of the act, a "money bill" shall, unless the Commons direct to the
contrary, become an act of Parliament on the royal assent being
signified, notwithstanding that the House of Lords may not have
consented to the bill, within one month after it shall have been sent
up to that house. A money bill is defined as "a public bill which, in
the judgment of the Speaker, contains only provisions dealing with all
or any of the following subjects: the imposition, repeal, remission,
alteration, or regulation of taxation; the imposition for the payment
of debt or other financial purposes of charges on the Consolidated
Fund, or on money provided by Parliament, or the variation or repeal
of any such charges; supply; the appropriation, receipt, custody,
issue or audit of accounts of public money; the raising or guarantee
of any loan or the payment thereof; or subordinate matters incidental
to those subjects or any of them." A certificate of the Speaker given
under this act is made conclusive for all purposes. It may not be
questioned in any court of law.[161]
[Footnote 161: An incidental effect of the act is
to exalt the power and importance of the Speaker,
although it should be observed that the Speaker has
long been accustomed to state at the introduction
of a public bill whether in his judgment the rights
or privileges claimed by the House of Commons in
respect to finance had been infringed. If he were
of the opinion that there had been infringement, it
remained for the House to determine whether it
would insist upon or waive its privilege Ilbert,
Parliament, 207.]
*116. Provisions Relating to Other Public Bills.*--The second
fundamental stipulation is that any other public bill (except one to
confirm a provisional order or one to extend the maximum duration of
Parliament beyond five years) which is passed by the House of Commons
in three successive sessions, whether or not of the same parliament,
and which, having been sent up to the House of Lords at least one (p. 113)
month, in each case, before the end of the session, is rejected by
that chamber in each of those sessions, shall, unless the House of
Commons direct to the contrary, become an act of Parliament on the
royal assent being signified thereto, notwithstanding the fact that
the House of Lords has not consented to the bill. It is required that
at least two years shall have elapsed between the date of the second
reading of such a bill (i.e., the first real opportunity for its
discussion) in the first of these sessions of the House of Commons and
the final passage of the bill in the third of the sessions. To come
within the provisions of this act the measure must be, at its initial
and its final appearances, the "same bill;" that is, it must exhibit
no alterations save such as are rendered necessary by the lapse of
time. And a bill is to be construed to be "rejected" by the Lords if
it is not passed, or if amendments are introduced to which the House
of Commons does not agree, or which the House of Commons does not
suggest to the House of Lords at the second or third passage of the
bill.
*117. Effects of the Act.*--By the provisions which have been enumerated
the co-ordinate and independent position which, in law if not in fact,
the British upper chamber, as a legislative body, has occupied through
the centuries has been effectually subverted. Within the domain of
legislation, it is true, the Lords may yet exercise influence of no
inconsiderable moment. To the chamber must be submitted every project
of finance and of legislation which it is proposed to enact into law,
and there is still nothing save a certain measure of custom to prevent
the introduction of even the most important of non-financial measures
first of all in that house. But a single presentation of any money
bill fulfills the legal requirement and ensures that the measure will
become law. For such a bill will not be presented until it has been
passed by the Commons, and, emanating from the cabinet, it will not be
introduced in that chamber until the assent of the executive is
assured. The upper house is allowed one month in which to approve or
to reject, but, so far as the enactment of the bill is concerned, the
result is the same in any case. Upon ordinary legislation the House of
Lords possesses still a veto--a veto, however, which is no longer
absolute but only suspensive. The conditions which are required for
the enactment of non-fiscal legislation without the concurrence of the
Lords are not easy to bring about, but their realization is not at all
an impossibility. By the repeated rejection of proposed measures the
Lords may influence public sentiment or bring about otherwise a change
of circumstances and thus compass the defeat of the original intent of
the Commons, and this is the more possible since a minimum period of
two years is required to elapse before a non-fiscal measure can be (p. 114)
carried over the Lords' veto. But the continuity of political
alignments and of legislative policy is normally such in Great Britain
that the remarkable legislative precedence which has been accorded the
Commons must mean in effect little less than absolute law-making
authority.
*118. Possible Further Changes and the Difficulties Involved.*--What the
future holds in store for the House of Lords cannot be discerned. The
Parliament Act, as has been pointed out, promises further legislation
which will define both the composition and the powers of a second
chamber constituted on a popular instead of an hereditary basis; but
no steps have as yet (1912) been taken publicly in this direction, nor
has any authoritative announcement of purpose been made.[162] Many
Englishmen to-day are of the opinion that, as John Bright declared, "a
hereditary House of Lords is not and cannot be perpetual in a free
country." None the less, it is recognized that the chamber as it is at
present constituted contains a large number of conscientious, eminent,
and able men, that upon numerous occasions the body has imposed a
wholesome check upon the popular branch, and that sometimes it has
interpreted the will of the nation more correctly than has the popular
branch itself. The most reasonable programme of reform would seem to
be, not a total reconstitution of the chamber upon a non-hereditary
basis, but (1) the adoption of the Rosebery principle that the
possession of a peerage shall not of itself entitle the possessor to
sit, (2) the admission to membership of a considerable number of
persons representative of the whole body of peers, and (3) the
introduction of a goodly quota of life peers, appointed by reason of
legal attainments, governmental experience, and other qualities of
fitness and eminence.[163]
[Footnote 162: The Parliament Act is the handiwork,
of course, of the Liberal party, and only that
party is likely to acknowledge the obligation to
follow up the reform of the Lords which the measure
imposes. But the Unionists may be regarded as
committed by Lord Lansdowne's bill to some measure
of popularization of the chamber.]
[Footnote 163: During the discussions of 1910 an
interesting suggestion was offered (April 25) by
Lord Wemyss to the effect that the representative
character of the chamber should be given emphasis
by the admission of three members designated by
each of some twenty-one commercial, professional,
and educational societies of the kingdom, such as
the Royal Academy of Arts, the Society of
Engineers, the Shipping Federation, and the Royal
Institute of British Architects.]
It is to be observed, however, that neither this programme nor any
other that can be offered, unless it be that of popular election,
affords much ground upon which to hope for harmonious relations
between the upper chamber and a Liberal Government. The House of
Lords--_any_ House of Lords in which members sit for life or in
heredity--is inevitably conservative in its political tendencies (p. 115)
and sympathies, which means, as conditions are to-day, that the
chamber is certain to be dominated by adherents of the Unionist party.
History shows that even men who are appointed to the upper house as
Liberals become adherents almost invariably, in time, of Unionism. The
consequence is that, while a Unionist administration is certain to
have the support of a working majority in both of the houses, a
Liberal government cannot expect ever to find itself in the ascendancy
in the Lords. Its measures will be easy to carry in the lower house
but difficult or impossible to carry in the upper one. This was the
central fact in the situation from which sprang the Parliament Act of
1911. By this piece of legislation the Liberals sought to provide for
themselves a mode of escape from the _impasse_ in which the opposition
of the Lords so frequently has involved them. The extent, however, to
which the arrangements effected will fulfill the purpose for which
they were intended remains to be ascertained.[164] "An upper house in
a true parliamentary system," says Lowell, "cannot be brought into
constant accord with the dominant party of the day without destroying
its independence altogether; and to make the House of Lords a mere
tool in the hands of every cabinet would be well-nigh impossible and
politically absurd."[165] Therein must be adjudged still to lie (p. 116)
the essential dilemma of English politics.
[Footnote 164: The literature of the question of
second chamber reform in England is voluminous and
but a few of the more important titles can be
mentioned here. The subject is discussed briefly in
Lowell, Government of England, I., Chap. 22; Moran,
English Government, Chap. 11; Low, Governance of
England, Chap. 13; and H. W. V. Temperley, Senates
and Upper Chambers (London, 1910), Chap. 5.
Important books include W. C. Macpherson, The
Baronage and the Senate; or the House of Lords in
the Past, the Present, and the Future (London,
1893); T. A. Spalding, The House of Lords: a
Retrospect and a Forecast (London, 1894); J. W.
Wylie, The House of Lords (London, 1908); W. S.
McKechnie, The Reform of the House of Lords
(Glasgow, 1909); W. L. Wilson, The Case for the
House of Lords (London, 1910); and J. H. Morgan,
The House of Lords and the Constitution (London,
1910). Of these, the first constitutes one of the
most forceful defenses and the second one of the
most incisive criticisms of the upper chamber that
have been written. A brief review by an able French
writer is A. Esmein, La Chambre des Lords et la
democratie (Paris, 1910). Among articles in
periodicals may be mentioned H. W. Horwill, The
Problem of The House of Lords, in _Political
Science Quarterly_, March, 1908; E. Porritt, The
Collapse of the Movement against the Lords, in
_North American Review_, June, 1908; ibid., Recent
and Pending Constitutional Changes in England, in
_American Political Science Review_, May, 1910; J.
L. Garvin, The British Elections and their Meaning,
in _Fortnightly Review_, Feb., 1910; J. A. R.
Marriott, The Constitutional Crisis, in _Nineteenth
Century_, Jan., 1910. A readable sketch is A. L. P.
Dennis, Impressions of British Party Politics,
1909-1911, in _American Political Science Review_,
Nov., 1911; and the best accounts of the Parliament
Act and of its history are: Dennis, The Parliament
Act of 1911, ibid., May and Aug., 1912; May and
Holland, Constitutional History of England, III.,
343-384; Lowell, Government of England (rev. ed.,
New York, 1912), Chap. 23a; _Annual Register_ for
the years 1910 and 1911; M. Sibert, Le vote du
Parliament Act, in _Revue du Droit Public_,
Jan.-March, 1912; and La reforme de la Chambre des
Lords, ibid., July-Sept., 1912. A book of some
value is C. T. King, The Asquith Parliament,
1906-1909; a Popular Sketch of its Men and its
Measures (London, 1910).]
[Footnote 165: Government of England, I., 418-419.]
CHAPTER VI (p. 117)
PARLIAMENT: ORGANIZATION, FUNCTIONS, PROCEDURE
I. THE ASSEMBLING OF THE CHAMBERS
*119. Sessions.*--Parliament is required by statute to meet at least
once in three years;[166] but, by reason of the enormous pressure of
business and, in particular, the custom which forbids the voting of
supplies for a period longer than one year, meetings are, in point of
fact, annual. A session begins ordinarily near the first of February
and continues, with brief adjournments at holiday seasons, until
August or September. It is required that the two houses shall
invariably be summoned together. Either may adjourn without the other,
and the crown can compel an adjournment of neither. A prorogation,
which brings a session to a close, and a dissolution, which brings the
existence of a parliament to an end, must be ordered for the two
houses conjointly. Both take place technically at the command of the
crown, actually upon the decision of the ministry. A prorogation is to
a specified date, and it terminates all pending business; but the
reassembling of the houses may be either postponed or hastened by
royal proclamation.
[Footnote 166: Triennial Act of December 22, 1694.]
*120. The Opening of a Parliament.*--At the beginning of a session the
members of the two houses gather first of all in their respective
chambers. The commoners are summoned thereupon to the chamber of the
Lords, where the letters patent authorizing the session are read and
the Lord Chancellor makes known the desire of the crown that the
Commons proceed with the choosing of a Speaker. The Commons withdraw
to attend to this matter, and on the next day the newly elected
official, accompanied by the members, presents himself at the bar of
the House of Lords, announces his election, and, through the Lord
Chancellor, receives the royal approbation. Having demanded and
received guarantee of the "ancient and undoubted rights and privileges
of the Commons," the Speaker and the members then retire to their own
quarters, where the necessary oaths are administered. If, as is not
unusual, the king meets Parliament in person, he goes in state, (p. 118)
probably the next day, to the House of Lords and takes his seat upon
the throne, and the Lord Chamberlain is instructed to desire the
Gentleman Usher of the Black Rod to _command_ the attendance once more
of the Commons. If the sovereign does not attend, the Lords
Commissioners bid the Usher to _desire_ the Commons' presence. In any
case, the commoners present themselves and the king (or, in his
absence, the Lord Chancellor) reads the Speech from the Throne, in
which is communicated succinctly the nature of the business to which
attention is to be directed. Following the retirement of the
sovereign, the Commons again withdraw, the Throne Speech is reread and
an address in reply voted in each house, and the Government begins the
introduction of fiscal and legislative proposals. In the event that a
session is not the first one of a parliament, the election of a
Speaker and the administration of oaths are omitted.[167]
[Footnote 167: On the ceremonies involved in the
opening, adjournment, prorogation, and dissolution
of a parliament see Anson, Law and Custom of the
Constitution, I., 61-77; J. Redlich, The Procedure
of the House of Commons; a Study of its History and
Present Form, trans. by A. E. Steinthal, 3 vols.
(London, 1908), II., 51-67; T. E. May, Treatise on
the Law, Privileges, Proceedings, and Usage of
Parliament (11th ed., London, 1906), Chap. 7; A.
Wright and P. Smith, Parliament, Past and Present,
2 vols. (London, 1902), II., Chap. 25; MacDonaugh,
The Book of Parliament, 96-114, 132-147, 184-203;
and H. Graham, The Mother of Parliaments (Boston,
1911), 135-157.]
*121. The Palace of Westminster.*--From the beginning of parliamentary
history the meeting-place of the houses has been regularly
Westminster, on the left bank of the Thames. The last parliament which
sat at any other spot was the third Oxford Parliament of Charles II.,
in 1681. The Palace of Westminster, in mediaeval times outside, though
near, the principal city of the kingdom, was long the most important
of the royal residences, and it was natural that its great halls and
chambers, together with the adjoining abbey, should be utilized
habitually for parliamentary sittings. Of the enormous structure known
as Westminster to-day (still, technically, a royal palace, though not
a royal residence), practically all portions save old Westminster Hall
were constructed after the fire of 1834. The Lords first occupied
their present quarters in 1847 and the Commons theirs in 1850.[168]
[Footnote 168: MacDonaugh, The Book of Parliament,
79-95; Graham, The Mother of Parliaments, 60-80;
Wright and Smith, Parliament, Past and Present, I.,
Chaps. 11-13. The classic history of the old Palace
of Westminster is E. W. Brayley and J. Britton,
History of the Ancient Palace and Late Houses of
Parliament at Westminster (London, 1836).]
*122. The Chambers of the Commons and the Lords.*--From opposite sides
of a central lobby corridors lead to the halls in which the sittings
of the two bodies are held, these halls facing each other in such (p. 119)
a manner that the King's throne at the south end of the House of Lords
is visible from the Speaker's chair at the north end of the House of
Commons. The room occupied by the Commons is not large, being but
seventy-five feet in length by forty-five in breadth. It is bisected
by a broad aisle, at the upper end of which is a large table for the
use of the clerk and his assistants and beyond this the raised and
canopied chair of the Speaker. "Facing the aisle on each side long
rows of high-backed benches, covered with dark green leather, slope
upward tier above tier to the walls of the room; and through them, at
right angles to the aisle, a narrow passage known as the gangway, cuts
across the House. There is also a gallery running all around the room,
the part of it facing the Speaker being given up to visitors, while
the front rows at the opposite end belong to the reporters, and behind
them there stands, before a still higher gallery, a heavy screen, like
those erected in Turkish mosques to conceal the presence of women, and
used here for the same purpose."[169] The rows of benches on the gallery
sides are reserved for members, but they do not afford a very desirable
location and are rarely occupied, save upon occasions of special
interest. In the body of the house there are fewer than 350 seats for
670 members. As a rule, not even all of these are occupied, for there
are no desks and the member who wishes to read, write, or otherwise
occupy himself seeks the library or other rooms adjoining. The front
bench at the upper end of the aisle, at the right of the Speaker, is
known as the Treasury Bench and is reserved for members of the
Government. The corresponding bench at the Speaker's left is reserved
similarly for the leaders of the Opposition. In so far as is possible
in the lack of a definite assignment of seats, members of avowed party
allegiance range themselves behind their leaders, while members of
more independent attitude seek places below the gangway. "The accident
that the House of Commons sits in a narrow room with benches facing
each other, and not, like most continental legislatures, in a (p. 120)
semi-circular space, with seats arranged like those of a theatre,
makes for the two-party system and against groups shading into each
other."[170]
[Footnote 169: Lowell, Government of England, I.,
249. Visitors, technically "strangers," are present
only on sufferance and may be excluded at any time;
but the ladies' gallery is not supposed to be
within the chamber, so that an order of exclusion
does not reach the occupants of it. In the autumn
of 1908, however, the disorderly conduct of persons
in the ladies' and strangers' galleries caused the
Speaker to close these galleries during the
remainder of the session. In 1738 the House
declared the publication of its proceedings "a high
indignity and a notorious breach of privilege,"
and, technically, such publication is still
illegal. In 1771, however, the reporters' gallery
was fitted up, and through a century and a quarter
the proceedings have been reported and printed as a
matter of course. On the status of the public and
the press in the chamber see Ilbert, Parliament,
Chap. 8; Redlich, Procedure of the House of
Commons; II., 28-38; MacDonaugh, The Book of
Parliament, 310-329, 350-365; and H. Graham, The
Mother of Parliaments, 259-287.]
[Footnote 170: Ilbert, Parliament, 124. The chamber
is described fully in Wright and Smith, Parliament,
Past and Present, Chap. 19.]
The hall occupied by the Lords is smaller and more elaborately
decorated than that occupied by the Commons. It contains cross
benches, but in the main the arrangements that have been described are
duplicated in it. For social and ceremonial purposes there exists
among the members a fixed order of precedence.[171] In the chamber,
however, the seating is arranged without regard to this order, save
that the bishops sit in a group. The Government peers occupy the
benches on the right of the woolsack and the Opposition those on the
left, while members who prefer to remain neutral take their places on
the cross benches between the table and the bar.[172]
[Footnote 171: This order runs: Prince of Wales,
other princes of the royal blood, Archbishop of
Canterbury, Lord Chancellor, Archbishop of York,
Lord President of the Council, Lord Privy Seal, the
dukes, the marquises, the earls, the viscounts, the
bishops, and the barons.]
[Footnote 172: For full description, with
illustrations, see Wright and Smith, Parliament,
Past and Present, Chap. 18.]
II. ORGANIZATION OF THE HOUSE OF COMMONS
*123. Hours of Sittings.*--In the seventeenth century the sittings of
the Commons began regularly at 8.30 or 9 o'clock in the morning and
terminated with nightfall. In the eighteenth century, and far into the
nineteenth, they were apt to begin as late as 3 or 4 o'clock in the
afternoon and to be prolonged, at least not infrequently, until toward
daybreak. In 1888, however, a standing order fixed midnight as the
hour for the "interrupting" of ordinary business, and in 1906 the hour
was made 11 o'clock. Nowadays the House meets regularly on Mondays,
Tuesdays, Wednesdays, and Thursdays at 2.45 and continues in session
throughout the evening, the interval formerly allowed for dinner
having been abolished in 1906. On Fridays, set apart, until late in
the session, for the consideration of private members' bills, the hour
of convening is 12 o'clock. At sittings on days other than Friday the
first hour or more is consumed usually with small items of formal
business and with the asking and answering of questions addressed to
the ministers, so that the public business set for the day is reached
at approximately 4 o'clock.[173]
[Footnote 173: Redlich, Procedure of the House of
Commons, II., 68-77.]
*124. Officers.*--The principal officers of the House are the (p. 121)
Speaker, the Clerk and his two assistants, the Sergeant-at-Arms and
his deputies, the Chaplain, and the Chairman and Deputy Chairman of
Ways and Means. The Clerk and the Sergeant-at-Arms, together with
their assistants, are appointed for life by the crown, on nomination
of the premier, but the Speaker and the Chairman and Deputy Chairman
of Ways and Means are elected for a single parliament by the House.[174]
All save the Chairman and his deputy are, strictly, non-political
officers. The Clerk signs all orders of the House, indorses bills sent
or returned to the Lords, reads whatever is required to be read during
the sittings, records the proceedings of the chamber, and, with the
concurrence of the Speaker, supervises the preparation of the official
Journal. The Sergeant-at-Arms attends the Speaker, enforces the
House's orders, and presents at the bar of the House persons ordered
or qualified to be so presented. The Chairman of Ways and Means (in
his absence the Deputy Chairman) presides over the deliberations of
the House when the body sits as a committee of the whole[175] and
exercises supervision over private bill legislation. Although a
political official, he preserves, in both capacities, a strictly
non-partisan attitude.
[Footnote 174: In point of fact, the Chairman and
Deputy Chairman retire when the ministry by which
they have been nominated goes out of office.]
[Footnote 175: On this account he is referred to
ordinarily as the Chairman of Committees.]
*125. The Speakership.*--The speakership arose from the need of the
House when it was merely a petitioning body for a recognized
spokesman, and although the known succession of Speakers begins with
Sir Thomas Hungerford, who held the office in the last parliament of
Edward III. (1377), there is every reason to suppose that at even an
earlier date there were men whose functions were substantially
equivalent. The Speaker is elected at the beginning of a parliament by
and from the members of the House, and his tenure of office, unless
terminated by resignation or death, continues through the term of that
parliament. The choice of the House is subject to the approval of the
crown; but, whereas in earlier days the king's will was at this point
very influential, the last occasion upon which a Speaker-elect was
rejected by the crown was in 1679. Though nominally elected, the
Speaker is in fact chosen by the ministry, and he is pretty certain to
be taken, in the first instance, from the party in power. During the
nineteenth century, however, it became customary to re-elect a Speaker
as long as he should be willing to serve, regardless of party
affiliation.
*126. The Speaker's Functions and Powers.*--The functions of the Speaker
are regulated in part by custom, in part by rules of the House, and
in part by general legislation. They are numerous and, in the (p. 122)
aggregate, highly important. The Speaker is, first of all, the
presiding officer of the House. In this capacity he is a strictly
non-partisan moderator whose business it is to maintain decorum in
deliberations, decide points of order, put questions, and announce the
result of divisions. The non-partisan aspect of the English speakership
sets the office off in sharp contrast with its American counterpart.
"It makes little difference to any English party in Parliament," says
Mr. Bryce, "whether the occupant of the chair has come from their own
or from hostile ranks.... A custom as strong as law forbids him to
render help to his own side even by private advice. Whatever
information as to parliamentary law he may feel free to give must be
equally at the disposal of every member."[176] Except in the event of
a tie, the Speaker does not vote, even when, the House being in
committee, he is not occupying the chair. In the second place, the
Speaker is the spokesman and representative of the House, whether in
demanding privileges, communicating resolutions, or issuing warrants.
There was a time when he was hardly less the spokesman of the king
than the spokesman of the Commons, but the growth of independence of
the popular chamber enabled him long ago to cast off this dual and
extremely difficult role. The Speaker, furthermore, declares and
interprets, though he in no case makes, the law of the House. "Where,"
says Ilbert, "precedents, rulings, and the orders of the House are
insufficient or uncertain guides, he has to consider what course would
be most consistent with the usages, traditions, and dignity of the
House, and the rights and interests of its members, and on these
points his advice is usually followed, and his decisions are very
rarely questioned.... For many generations the deference habitually
paid to the occupant of the chair has been the theme of admiring
comment by foreign observers."[177] Finally, the fact should be noted
that by the Parliament Act of 1911 the Speaker is given sole power,
when question arises, to determine whether a given measure is or is
not to be considered a money bill.[178] Upon his decision may hinge
the entire policy of the Government respecting a measure, and even the
fate of the measure itself. The Speaker's symbol of authority is the
mace, which is carried before him when he formally enters or leaves
the House and lies on the table before him when he is in the chair. He
has an official residence in Westminster, and he receives a salary of
L5,000 a year which is paid from the Consolidated Fund, being on that
account not subject to change when the annual appropriation bills (p. 123)
are under consideration. At retirement from office a Speaker is likely
to be pensioned and to be elevated to the peerage.[179]
[Footnote 176: American Commonwealth, I., 135.]
[Footnote 177: Parliament, 140-141.]
[Footnote 178: See p. 112.]
[Footnote 179: On the officers of the House of
Commons see Lowell, Government of England, I.,
Chap. 12; on the speakership, Redlich, Procedure of
the House of Commons, II., 131-171; Graham, The
Mother of Parliaments, 119-134; MacDonaugh, The
Book of Parliament, 115-132; Porritt, Unreformed
House of Commons, I., Chaps. 21-22; A. I. Dasent,
The Speakers of the House of Commons from the
Earliest Times to the Present Day (New York, 1911);
and G. Mer, Les speakers: etude de la fonction
presidentielle en Angleterre et aux Etats-Unis
(Paris, 1910).]
*127. Quorum.*--As fixed by a resolution of 1640, a quorum for the
transaction of business in the Commons is forty. If at any time during
a sitting the attention of the Speaker is directed to the fact that
there are not forty members present, the two-minute sand-glass which
stands upon the Clerk's table is inverted and the members are summoned
from all portions of the building as for a division. At the close of
the allotted two minutes the Speaker counts the members present, and
if there be not forty the House adjourns until the time fixed for the
next regular sitting. Except upon occasions of special interest, the
number of members actually occupying the benches is likely to be less
than two hundred, although most of the remaining members are within
the building or, in any case, not far distant.
*128. Kinds of Committees.*--Like all important and numerous legislative
bodies, the House of Commons expedites the transaction of the business
which devolves upon it through the employment of committees. As early
as the period of Elizabeth the reference of a bill, after its second
reading, to a select committee was an established practice, and in the
reign of Charles I. it became not uncommon to refer measures to
committees of the whole house. The committees of the House to-day may
be grouped in five categories: (1) the Committee of the Whole; (2)
select committees on public bills; (3) sessional committees; (4)
standing committees on public bills; and (5) committees on private
bills. Until 1907 a public bill, after its second reading, went
normally to the Committee of the Whole; since the date mentioned, it
goes there only if the House so determines. The Committee of the Whole
is simply the House of Commons, presided over by the Chairman of
Committees in the place of the Speaker, and acting under rules of
procedure which permit virtually unrestricted discussion and in other
ways lend themselves to the free consideration of the details of a
measure. When the subject in hand relates to the providing of revenue
the body is known, technically, as the Committee of Ways and Means;
when to appropriations, it is styled the Committee of the Whole on
Supply, or simply the Committee of Supply.
*129. Select and Sessional Committees.*--Select committees (p. 124)
consist, as a rule, of fifteen members and are constituted to
investigate and report upon specific subjects or measures. It is
through them that the House collects evidence, examines witnesses, and
otherwise obtains the information required for intelligent
legislation. After a select committee has fulfilled the immediate
purpose for which it was constituted it passes out of existence. Each
such committee chooses its chairman, and each keeps detailed records
of its proceedings, which are included, along with its formal report,
in the published parliamentary papers of the session. The members may
be elected by the House, but in practice the appointment of some or
all is left to the Committee of Selection, which itself consists of
eleven members chosen by the House at the beginning of each session.
This Committee of Selection, which appoints members not only of select
committees but also of standing committees and of committees on
private and local bills, is made up after conference between the
leaders of the Government and of the Opposition; and the committees
whose members it designates are always so constituted that they
contain a majority favorable to the Government. The number of select
committees is, of course, variable, but it is never small. A few are
constituted for an entire year and are known as sessional committees.
Of these, the Committee of Selection is itself an example; others are
the Committee on Public Accounts and the Committee on Public
Petitions.
*130. Standing Committees.*--Beginning in 1882, certain great standing
committees have been created, to the general end that the time of the
House may be further economized. Through a change of the standing
orders of the chamber effected in 1907 the number of such committees
was raised from two to four, and all bills except money bills, private
bills, and bills for confirming provisional orders--that is to say,
all public non-fiscal proposals--are required to be referred to one of
these committees (the Speaker to determine which one) unless the House
otherwise directs. It is expected that measures so referred will be so
fully considered in committee that they will consume but little of the
time of the House. Each of the four committees consists of from sixty
to eighty members, who are named by the Committee of Selection in such
a manner that in personnel they will represent faithfully the
composition of the House as a whole. One of them, consisting of all
the representatives of Scotch constituencies and fifteen other
members, is constituted with a special view to the transaction of
business relating to Scotland. The chairmen of the four are selected
(from its own ranks) by a "chairman's panel" of not more than eight
members designated by the Committee of Selection. The procedure (p. 125)
of the standing committees is closely assimilated to that of the
Committee of the Whole, and, in truth, they serve essentially as
substitutes for the larger body.[180]
[Footnote 180: On committees on private bills see
p. 137. The committees of the House of Commons are
described in Lowell, Government of England, I.,
Chap. 13; Marriott, English Political Institutions,
Chap. 11; Ilbert, Parliament, Chap. 6; Redlich,
Procedure of the House of Commons, II., 180-214;
and May, Treatise on the Law, Privileges,
Proceedings, and Usage of Parliament, Chaps.
13-14.]
III. ORGANIZATION OF THE HOUSE OF LORDS
*131. Sittings and Attendance.*--It is required that the two houses of
Parliament shall be convened invariably together, and one may not be
prorogued without the other. The actual sittings of the Lords are,
however, very much briefer and more leisurely than are those of the
Commons. Normally the upper chamber meets but four times a week--on
Mondays, Thursdays, and Fridays at 4.30 o'clock and on Tuesdays at
5.30. By reason of lack of business or indisposition to consume time
in the consideration of measures whose eventual enactment is assured,
sittings not infrequently are concluded within an hour, although, of
course, there are occasions upon which the chamber deliberates
seriously and at much length. A quorum for the transaction of business
is fixed at the number three; although it is but fair to observe
that if a division occurs upon a bill and it is found that there are
not thirty members present the question is declared not to be
decided. Save upon formal occasions and at times when there is under
consideration a measure in whose fate the members are immediately
interested, attendance is always meager. There are members who after
complying with the formalities incident to the assumption of a seat,
rarely, and in some instances never, reappear among their colleagues.
It thus comes about that despite the fact that nominally the House of
Lords is one of the largest of the world's law-making assemblies, the
chamber exhibits in reality little of the unwieldiness ordinarily
characteristic of deliberative bodies of such magnitude. The
efficiency of the chamber is more likely to be impaired by paucity of
attendance than otherwise.
*132. Officers.*--The officers of the House of Lords are largely
appointive, though in part elective. Except during the trial of a
peer,[181] the presiding official is the Lord Chancellor, appointed by
the crown on the advice of the premier. The duty of presiding in the
Lords, as has been explained, is but one of many that fall to this
remarkable dignitary.[182] If at the time of his appointment an (p. 126)
incumbent is not a peer he is reasonably certain to be created one,
although there is no legal requirement to this effect. The theory is
that the woolsack which comprises the presiding official's seat is not
within the chamber proper[183] and that the official himself, as such,
is not a member of the body. The powers allowed him are not even those
commonly possessed by a moderator. In the event that two or more peers
request the privilege of addressing the chamber, the peers themselves
decide which shall have the floor. Order in debate is enforced, not by
the Chancellor, but by the members, and when they speak they address,
not the chair, but "My Lords." Although, if a peer, the Chancellor may
speak and vote as any other member, he possesses as presiding officer
no power of the casting vote. In short, the position which the Chancellor
occupies in the chamber is all but purely formal. In addition to
"deputy speakers," designated to preside in the Chancellor's absence,
the remaining officials of the Lords who owe their positions to
governmental appointment are the Clerk of Parliament, who keeps the
records; the Sergeant-at-Arms, who attends personally the presiding
officer and acts as custodian of the mace; and the Gentleman Usher of
the Black Rod, a pompous dignitary whose function it is to summon the
Commons when their attendance is required and to play a more or less
useful part upon other ceremonial occasions. The one important
official whom the House itself elects is the Lord Chairman of
Committees, whose duty it is to preside in Committee of the Whole.
[Footnote 181: See p. 127.]
[Footnote 182: See p. 63.]
[Footnote 183: In the days of Elizabeth the
presiding official sat upon a sack actually filled
with wool. He sits now, as a matter of fact, upon
an ottoman, upholstered in red. But the ancient
designation of the seat survives.]
IV. PRIVILEGES OF THE HOUSES AND OF MEMBERS
*133. Nature and Extent of Privileges.*--On the basis in part of custom
and in part of statute there exists a body of definitely established
privileges, some of which appertain to the Commons as a chamber, some
similarly to the Lords, and some to the individual members of both
houses. The privileges which at the opening of a parliament the
newly-elected Speaker requests and, as a matter of course, obtains for
the chamber over which he presides include principally those of
freedom from arrest, freedom of speech, access to the sovereign, and a
"favorable construction" upon the proceedings of the House. Freedom
from arrest is enjoyed by members during a session and a period of
forty days before and after it, but it does not protect a member (p. 127)
from the consequences of any indictable offense nor, in civil actions,
from any process save arrest. Freedom of speech, finally guaranteed
effectually in the Bill of Rights, means simply that a member may not
be held to account by legal process outside Parliament for anything he
may have said in the course of the debates or proceedings of the
chamber to which he belongs. The right of access to the sovereign
belongs to the Commons collectively through the Speaker, but to the
Lords individually. With the growth of parliamentary government both
it and the privilege of "favorable construction" have ceased to
possess practical importance. Another privilege which survives is that
of exemption from jury duty, though no longer of refusing to attend
court in the capacity of a witness. Each house enjoys the
privilege--for all practical purposes now the right--of regulating its
own proceedings, of committing persons for contempt, and of deciding
contested elections. The last-mentioned function the House of Commons,
however, has delegated to the courts. A privilege jealously retained
by the Lords is that of trial in all cases of treason or felony by the
upper chamber itself, under the presidency of a Lord High Steward
appointed by the crown. The Lords are exempt from arrest in civil
causes, not merely during and immediately preceding and succeeding
sessions, but at all times, and they enjoy all the rights, privileges,
and distinctions which, through law or custom, have become inherent in
their several dignities.
*134. Payment of Members of the Commons.*--Until recently the fact that
there was no salary attached to service in Parliament operated to
debar from election to the Commons men who were not of independent
means. Through some years the Labor Party was accustomed to provide
funds wherewith its representatives were enabled to maintain
themselves at the capital,[184] but this arrangement affected only a
small group of members and was of an entirely private and casual
nature. Public and systematic payment of members, to the end that poor
but capable men might not be kept out of the Commons, was demanded by
the Chartists three-quarters of a century ago, and from time to time
after 1870 there was agitation in behalf of such a policy. In 1893,
and again in 1895, a resolution in favor of the payment of members was
adopted in the Commons, and March 7, 1906, a resolution was carried to
the effect that every member should be paid a salary of L300 annually.
But it was not until 1911 that a measure of the kind could be got
through the upper chamber. Fresh impetus was afforded by the Osborne
Judgment, in which, on an appeal from the lower courts, the House of
Lords ruled in December, 1909, that the payment of parliamentary (p. 128)
members as such from the dues collected by labor organizations was
contrary to law. The announcement of the Judgment was followed by
persistent agitation for legislation to reverse the ruling. In
connection with the budget presented to the Commons by the Chancellor
of the Exchequer May 16, 1911, the proposition was made, not to take
action one way or the other upon the Lords' decision, but to provide
for the payment to all non-official members of the House of Commons of
a yearly salary of L400; and with little delay and no great amount of
opposition the proposal was enacted into law. The amount of the salary
provided is not large, but it is ample to render candidacy for seats
possible for numbers of men who formerly could not under any
circumstances have contemplated a public career.[185]
[Footnote 184: The sum provided from the party
funds was ordinarily L200 a year.]
[Footnote 185: On the privileges of the Commons see
Anson, Law and Custom of the Constitution, I.,
153-189; Lowell, Government of England, I., Chap.
11; Walpole, Electorate and Legislature, Chap. 5;
Redlich, Procedure of the House of Commons, III.,
42-50. A standard work in which the subject is
dealt with at length is May, Treatise on the Law,
Privileges, Proceedings, and Usage of Parliament,
Chaps. 3-6.]
V. THE FUNCTIONS OF PARLIAMENT
When the king summons the two chambers he does so, "being desirous and
resolved as soon as may be to meet his people, and to have their
advice in Parliament." No mention is made of legislative or financial
business, and, technically, Parliament is still essentially what
originally it was exclusively, i.e., a purely deliberative
assemblage. Practically, however, the mere discussion of public
questions and the giving of advice to the crown has become but one of
several distinctive parliamentary functions. The newer functions
which, with the passing of time, have acquired ever increasing
importance are, in effect, three. The first is that of criticism,
involving the habitual scrutiny and control of the measures of the
executive and administrative organs. The second is the exercise, under
limitations to be described, of the power of judicature. The third,
and much the most important, is the function of public and private
legislation and of fiscal control.
*135. Criticism: Ministerial Responsibility.*--Parliament does not
govern and is not intended to govern. Never save when the Long
Parliament undertook the administration of public affairs through
committees of its members has Parliament asserted a disposition to
gather immediately into its own hands those powers of state which are
executive in character. At the same time, the growth of parliamentary
government has meant the establishment of a connection between the
executive and the parliamentary chambers (principally the Commons) (p. 129)
as close as may be so long as separateness of organization is still
maintained. The officials who comprise the working executive are
invariably members of Parliament. They initiate public measures,
introduce them, advocate and defend them, and, in general, guide and
control the conduct of public business both inside and outside the
chambers. But for every act they are responsible directly to the House
of Commons. They may continue in power only so long as they are
supported by a majority in that chamber. And their conduct is subject
continually to review and criticism, through the instrumentality of
questions, formal inquiries, and, if need be, judicial procedure.
It is within the competence of any member to address a question to any
minister of the crown who is also a member, to obtain information.
Except in special cases, notice of questions must be given at least
one day in advance, and a period of approximately three-quarters of an
hour is set apart at four sittings every week for the asking and
answering of such questions. A minister may answer or decline to
answer, but unless a declination can be shown to arise from legitimate
considerations of public interest its effect politically may be
embarrassing. In any event, there is no debate, and in this respect
the English practice differs from the French "interpellation."[186]
The asking of questions is liable to abuse but, as is pointed out by
Ilbert, "there is no more valuable safeguard against maladministration,
no more effective method of bringing the searchlight of criticism to
bear on the action or inaction of the executive government and its
subordinates. A minister has to be constantly asking himself, not
merely whether his proceedings and the proceedings of those for whom
he is responsible are legally or technically defensible, but what kind
of answer he can give if questioned about them in the House, and how
that answer will be received."[187] Any member is privileged to bring
forward a motion censuring the Government or any member or department
thereof, and a motion of this sort, when emanating from the leader of
the Opposition, constitutes a vote of confidence upon whose result may
depend the continued tenure of the ministry. By a call upon the
Government or a given department for information, by the constitution
of parliamentary committees, departmental committees, or royal
commissions, and, in particular by taking advantage of the numberless
opportunities afforded by the enactment of appropriation bills, the
House of Commons may further impose upon the executive the most
thoroughgoing responsibility and control. "A strong executive (p. 130)
government, tempered and controlled by constant, vigilant, and
representative criticism," is the ideal at which the parliamentary
institutions of Great Britain are aimed.[188]
[Footnote 186: See p. 314.]
[Footnote 187: Parliament, 113-114.]
[Footnote 188: Ilbert, Parliament, 119. On the
Commons' control of the Government see Lowell,
Government of England, I., Chap. 17; Moran, English
Government, Chap. 8; Low, The Governance of
England, Chap. 5; Todd, Parliamentary Government,
II., 164-185.]
*136. Judicial Powers: Impeachment and Attainder.*--The functions of a
judicial character which, in the capacity of the High Court of
Parliament, the two chambers fulfill are of secondary importance and
do not call for extended discussion. So far as the law of the subject
goes, they comprise (1) the powers possessed by each of the houses to
deal with the constitution and conduct of its own membership; (2) the
power of the Lords to try their own members when charged with treason
or felony; (3) the jurisdiction of the Lords in the capacity of a
final court of appeal for the United Kingdom; (4) the power of the two
houses, acting jointly, to carry through impeachments of public
officers and to enact bills of attainder; and (5) the effecting of the
removal of certain kinds of public officers through the agency of an
address from both houses to the crown. In days when the king and the
ministers were disposed to defy the law and to evade responsibility
the power of impeachment by the Commons at the bar of the Lords,
originated as early as the reign of Edward III., was of the utmost
importance. When, however, the House of Commons progressed in
competence to the point where it was able to review and control the
conduct of ministers with such thoroughness and continuity as to make
it impossible for them to conduct business without a parliamentary
majority, impeachment lost its value and fell into disuse. The last
occasion upon which impeachment proceedings were instituted was in
1805.[189] Procedure by bill of attainder, arising from the
legislative omnipotence of Parliament and following the ordinary
course of legislation, is also obsolete.
[Footnote 189: Anson, Law and Custom of the
Constitution, I., 362-366; Moran, English
Government, 327-332.]
*137. The House of Lords as a Court.*--Most important among surviving
parliamentary functions of a judicial character is the exercise of
appellate jurisdiction by the House of Lords. The judicial authority
of the Lords is an anomaly, although as it is actually exercised it
does not seriously contravene the principle which forbids the bringing
together of judicial and legislative powers in the same hands.
Historically, it arose from a confusion of the functions of two groups
of men which were long largely identical in personnel, i.e., the
Great Council, on the one hand, and the Lords of Parliament, on (p. 131)
the other. In the reign of Henry IV. the Commons asked specifically to
be relieved from judicial business, and the parliamentary jurisdiction
which survived was recognized thereafter to be vested in the House of
Lords alone. From an early date this jurisdiction was, as it is
to-day, both original and appellate. As a court of first instance the
chamber acquired the right to try peers charged with treason and
felony and, on the accusation of the House of Commons, to bring to
justice, through the process of impeachment, offenders who were not of
the peerage. Nowadays these powers are of no practical consequence.
The position of the Lords as an appellate tribunal, however, is still
a fundamental fact in the judicial system. Starting with control, by
way of appeal, over the courts of common law in England, the chamber
acquired in time a similar control over the English courts of
chancery, and eventually over the courts of both Scotland and Ireland.
Its jurisdiction has stopped short only of the ecclesiastical courts,
and of the courts of the outlying portions of the Empire, appeals from
which are heard in the Judicial Committee of the Privy Council. By the
Supreme Court of Judicature Act of 1873, whereby the higher tribunals
of the realm were remodelled, the appellate jurisdiction of the Lords
was abolished outright; but in 1876, before the measure had been put
in operation the plan was modified and there was passed the Appellate
Jurisdiction Act whereby the appellate functions of the Lords were
restored and provision was made for the creation at first of two,
later of three, and eventually of four, salaried life peers, to be
selected from men of eminence in the law, and to be known as Lords of
Appeal in Ordinary. In so far as it is controlled by statute at all,
the appellate jurisdiction of the chamber is regulated to-day by this
measure. Nominally, judicial business is transacted by the House as a
whole, and every member has a right not only to be present but to
participate in the rendering of decisions. Actually, such business is
transacted by a little group of law lords (the attendance of but three
being necessary) under the presidency of the Lord Chancellor, and the
unwritten rule which prohibits the presence at judicial sessions of
any persons save the law lords is quite as strictly observed as is any
one of a score of other important conventions of the constitution.[190]
Under the act of 1876 it is within the competence of the law lords to
sit and to pronounce judgments in the name of the House at any time,
regardless of whether Parliament is in session.[191] A sitting of the
Court is, technically, a sitting of the Lords, and all actions (p. 132)
taken are entered in the Journal of the House as a part of its
proceedings.[192]
[Footnote 190: Lowell, Government of England, II.,
465.]
[Footnote 191: When Parliament is in session the
sittings of the law lords are held, as a rule,
prior to the beginning of the regular sitting at
4.30 p.m.]
[Footnote 192: The judicial functions of Parliament
are described at some length in Anson, Law and
Custom of the Constitution, I., Chap. 9. The
principal work on the subject is C. H. McIlwain,
The High Court of Parliament and its Supremacy (New
Haven, 1910). On the House of Lords as a court see
MacDonaugh, The Book of Parliament, 300-309; A. T.
Carter, History of English Legal Institutions
(London, 1902), 96-109; and W. S. Holdsworth,
History of English Law, I., 170-193.]
*138. Control of Legislation and Finance.*--The principal and altogether
most indispensable ends which Parliament to-day subserves are those of
legislation and of financial control. Many of the measures, important
and unimportant, under which the affairs of the realm are regulated
are but temporary and require annual re-enactment, and the volume of
fresh legislation which is unceasingly demanded is all but limitless.
Similarly, to employ the words of Anson, the revenues which accrue to
the crown and can be dealt with independently of Parliament would
hardly carry on the business of government for a day,[193] and not
only does Parliament (in effect, the House of Commons) by its
appropriation acts make possible the legal expenditure of virtually
all public moneys; it provides, by its measures of taxation, the funds
from which appropriations are made.
[Footnote 193: Law and Custom of the Constitution,
I., 52.]
VI. GENERAL ASPECTS OF PARLIAMENTARY PROCEDURE
By reason of the supreme importance which attaches to the legislative
and fiscal activities of the two chambers it is necessary that
attention be directed at this point to the character of the procedure
which these activities involve. For the purpose in hand it will be
sufficient to speak of only the more important principles of procedure
in relation to the three fundamental phases of legislative work: (1)
the enactment of non-financial public bills, (2) the adoption of money
bills, and (3) the passage of private bills. And within at least the
first two of these domains the preponderance of the Commons is such
that the procedure of that chamber alone need be described. The
procedure of the two chambers upon bills is substantially the same,
although, as is illustrated by the fact that amendments to bills may
be introduced in the Lords at any stage but in the Commons at only
stipulated stages, the methods of conducting business in the upper
house are more elastic than those prevailing in the lower.
*139. Fundamental Principles.*--The legislative omnipotence of
Parliament has been emphasized sufficiently.[194] Any sort of measure
upon any conceivable subject may be introduced and, if a sufficient
number of the members are so minded, enacted into law. No measure (p. 133)
may become law until it has been submitted for the consideration of
both houses, but under the terms of the Parliament Act of 1911 it has
been rendered easy for money bills, and not impossible for bills of
other sorts, to be made law without the assent of the House of Lords.
In the ordinary course of things, a measure is introduced in one
house, put through three readings, sent to the other house, put there
through the same routine, deposited with the House of Lords to await
the royal assent,[195] and, after having been assented to as a matter
of course, proclaimed as law. Bills, as a rule, may be introduced in
either house, by the Government or by a private member. It is
important to observe, however, in the first place, that certain
classes of measures must originate in one or the other of the houses,
e.g., money bills in the Commons and bills of attainder and other
judicial bills in the Lords, and, in the second place, that with the
growth of the leadership of the Government in legislation the
importance, if not the number, of privately introduced bills has
tended steadily to be decreased, and likewise the chances of their
enactment.
[Footnote 194: See p. 45.]
[Footnote 195: Except that money bills remain in
the custody of the Commons.]
*140. Public Bills: First and Second Readings.*--The steps through which
a public bill, whether introduced by the Government or by a private
member, must pass in the Commons are still numerous, but by the
reduction of some of them to sheer formalities which involve neither
debate nor vote the actual legislative process has been made much more
expeditious than once it was. The necessary stages in the enactment of
a bill in either house are, as a rule, five: first reading, second
reading, consideration by committee, report from committee, and third
reading. Formerly the introduction of a measure involved almost
invariably a speech explaining at length the nature of the proposal,
followed by a debate and a vote, sometimes consuming, in all, several
sittings. Nowadays only very important Government bills are introduced
in this manner. In the case of all other bills the first reading has
become a mere formality, involving nothing more than a motion on the
part of a member, official or private, for permission to bring in a
measure and the giving of leave by the House, almost invariably
without discussion. Upon all measures save the most important
Government projects, opportunity for debate is first afforded at the
second reading, although the discussion at this stage must relate to
general principles rather than to details. By the adoption of a motion
that the bill be read a second time "this day six months" (or at some
other date falling beyond the anticipated limits of the session) a
measure may at this point be killed.
*141. Public Bills: Later Stages.*--A bill which survives the (p. 134)
second reading is "committed." Prior to 1907 it would go normally to
the Committee of the Whole. Nowadays it goes there if it is a money
bill or a bill for confirming a provisional order,[196] or if, on
other grounds, the House so directs; otherwise it goes to one of the
four standing committees, assignment being made by the Speaker. This
is the stage at which the provisions of the measure are considered in
detail and amendments are introduced. After the second reading, however,
a bill may be referred to a select committee, and in the event that
this is done a step is added to the process, for after being returned
by the select committee the measure goes to the Committee of the Whole
or to one of the standing committees. Eventually the bill is reported
back to the House. If reported by a standing committee or, in amended
form by the Committee of the Whole, it is considered by the House
afresh and in some detail; otherwise, the "report stage" is omitted.
Finally comes the third reading, the question now being whether the
House approves the measure as a whole. At this stage any amendment
beyond verbal changes necessitates recommitment. The carrying of a
measure through these successive stages is spread over, as a rule,
several days, and sometimes several weeks, but it is not impossible
that the entire process be completed during the period of a sitting.
Having been adopted by the originating house, a bill is taken by a
clerk to the other house, there to be subjected to substantially the
same procedure. If amendments are introduced, it is sent back in order
that the suggested changes may be considered by the first house. If
they are agreed to, the measure is sent up for the royal approval. If
they are rejected and an agreement between the two houses cannot be
reached, the measure falls.[197]
[Footnote 196: See p. 138.]
[Footnote 197: The legislative process is summed up
aptly by Lowell as follows: "Leaving out of account
the first reading, which rarely involves a real
debate, the ordinary course of a public bill
through the House of Commons gives, therefore, an
opportunity for two debates upon its general
merits, and between them two discussions of its
details, or one debate upon the details if that one
results in no changes, or if the bill has been
referred to a standing committee. When the House
desires to collect evidence it does so after
approving of the general principle, and before
taking up the details. Stated in this way the whole
matter is plain and rational enough. It is, in
fact, one of the many striking examples of
adaptation in the English political system. A
collection of rules that appear cumbrous and
antiquated, and that even now are well-nigh
incomprehensible when described in all their
involved technicality, have been pruned away until
they furnish a procedure almost as simple, direct,
and appropriate as any one could devise."
Government of England, I., 277-278. The procedure
of the House of Commons on public bills is
described in Lowell, Government of England, I.,
Chaps. 13, 17, 19; Anson, Law and Custom of the
Constitution, I., 240-267; Low, Governance of
England, Chap. 4; Moran, English Government, Chap.
14; Marriott, English Political Institutions, Chap.
113; Todd, Parliamentary Government, II., 138-163;
Ilbert, Parliament, Chap. 3; Redlich, Procedure of
the House of Commons, III., 85-112; and May,
Treatise on the Law, Privileges, Proceedings, and
Usage of Parliament, Chap. 18. See also G. Walpole,
House of Commons Procedure, with Notes on American
Practice (London, 1902), and C. P. Ilbert,
Legislative Methods and Forms (Oxford, 1901),
77-121.]
*142. Money Bills: Appropriation and Finance Acts.*--The (p. 135)
procedure followed in the handling of money bills differs materially
from that which has been described. Underlying it are two fundamental
principles, incorporated in the standing orders of the House of
Commons during the first quarter of the eighteenth century. One of
them prescribes that no petition or motion for the granting of money
shall be proceeded upon save in Committee of the Whole. The other
forbids the receiving of any petition, or the proceeding upon any
motion, for a charge upon the public revenue unless recommended from
the crown. Although these principles apply technically only to
appropriations, they have long been observed with equal fidelity in
respect to the raising of revenue. All specific measures for the
expending of money and all proposals for the imposing of fresh
taxation or the increase of existing taxation must emanate from the
crown, i.e., in practice from the cabinet. A private member may go no
further in this direction than to introduce resolutions of a wholly
general character favoring some particular kind of expenditure, except
that it is within his right to move to repeal or to reduce taxes which
the Government has not proposed to modify.
Two great fiscal measures are introduced and carried through annually:
the Appropriation Act, in which are brought together all the grants
for the public services for the year, and the Finance Act in which are
comprised all regulations relating to the revenue and the national
debt. Before the close of the fiscal year (March 31) the ministry
submits to the Commons a body of estimates for the "supply services,"
drawn up originally by the government departments, scrutinized by the
Treasury, and approved by the cabinet. Early in the session the House
resolves itself into a Committee of the Whole on Supply, by which
resolutions of supply are discussed, adopted, and reported. These
resolutions are embodied in bills which, for purposes of convenience,
are passed at intervals during the session. But at the close all of
them are consolidated in one grand Appropriation Act.[198] Upwards of
half of the public expenditures, it is to be observed, e.g., the
Civil List, the salaries of judges, pensions, and interest on the
national debt, are provided for by permanent acts imposing charges (p. 136)
upon the Consolidated Fund and do not come annually under parliamentary
review.
[Footnote 198: Before the lapse of a twelvemonth
unforeseen contingencies require invariably the
voting of "supplementary grants."]
*143. The Budget.*--As soon as practicable after the close of the fiscal
year the House, resolved for the purpose into Committee of Ways and
Means, receives from the Chancellor of the Exchequer his Budget, or
annual statement of accounts. The statement comprises regularly three
parts: a review of revenue and expenditure during the year just
closed, a provisional balance-sheet for the year to come, and a series
of proposals for the remission, modification, or fresh imposition of
taxes. Revenues, as expenditures, are in large part "permanent," yet a
very considerable proportion are provided for through the medium of
yearly votes. In Committee of Ways and Means the House considers the
Chancellor's proposals, and after they have been reported back and
embodied in a bill they are carried with the assent of the crown,
though no longer necessarily of the Lords, into law. Prior to 1861 it
was customary to include in the fiscal resolutions and in the bill in
which they were embodied only the annual and temporary taxes, but in
consequence of the Lords' rejection, in 1860, of a separate finance
bill repealing the duties on paper it was made the practice to
incorporate in a single bill--the so-called Finance Bill--provision
for all taxes, whether temporary or permanent. In practice the House
of Commons rarely refuses to approve the financial measures
recommended by the Government. The chamber has no power to propose
either expenditure or taxation, and the right which it possesses to
refuse or to reduce the levies and the appropriations asked for is
seldom used. "Financially," says Lowell, "its work is rather
supervision than direction; and its real usefulness consists in
securing publicity and criticism rather than in controlling
expenditure."[199] The theory underlying fiscal procedure has been
summed up lucidly as follows: "The Crown demands money, the Commons
grant it, and the Lords assent to the grant;[200] but the Commons do
not vote money unless it be required by the Crown; nor impose or
augment taxes unless they be necessary for meeting the supplies which
they have voted or are about to vote, and for supplying general
deficiencies in the revenue. The Crown has no concern in the nature or
distribution of the taxes; but the foundation of all Parliamentary
taxation is its necessity for the public service as declared by the
Crown through its constitutional advisers."[201]
[Footnote 199: Government of England, I., 288.]
[Footnote 200: Since the enactment of the
Parliament Bill of 1911, as has been observed, the
assent of the Lords is not necessary. See p. 112.]
[Footnote 201: The procedure involved in the
handling of money bills is described in Lowell,
Government of England, I., Chap. 14; Anson, Law and
Custom of the Constitution, I., 268-281; Walpole,
Electorate and Legislature, Chap. 7; Todd,
Parliamentary Government, II., 186-271; Ilbert,
Parliament, Chap. 4; Redlich, Procedure of the
House of Commons, III., 113-174; May, Treatise on
the Law, Privileges, Proceedings, and Usage of
Parliament, Chap. 21. See also E. Porritt,
Amendments in the House of Commons Procedure since
1881, in _American Political Science Review_, Nov.,
1908. Among numerous works on taxation in England
the standard authority is S. Dowell, History of
Taxation and Taxes in England from the Earliest
Times to the Year 1885, 4 vols. (2d ed., London,
1888).]
*144. Private Bills: Nature and Procedure.*--In the matter of (p. 137)
procedure there is no distinction between a Government bill and a
private member's bill. Both are public bills. But a private bill is
handled in a manner largely peculiar to itself. A public bill is one
which affects the general interests of the state, and which has for
its object presumably the promotion of the common good. A private bill
is one which has in view the interest of some particular locality,
person, or collection of persons. The commonest object of private
bills is to enable private individuals to enter into combination to
undertake works of public utility--the building of railways or
tramways, the construction of harbors or piers, the draining of
swamps, the supplying of water, gas, or electricity, and the embarking
upon a wide variety of other enterprises which in the United States
would be regulated chiefly by state legislatures and city councils--at
their own risk and, in part at least, for their own profit. All
private bills originate in petitions, which must be submitted in
advance of the opening of the session during which they are to be
considered. Their presentation and the various stages of their
progress are governed by very detailed and stringent regulations, and
fees are required from both promoters and opponents, so that the
enactment of a private bill of importance becomes for the parties
directly concerned an expensive process, and for the Exchequer a
source of no inconsiderable amount of revenue.
After having been scrutinized and approved by parliamentary officials
known as Examiners of Petitions for Private Bills, a private bill is
introduced in one of the two houses.[202] Its introduction is
equivalent to its first reading. At its second reading debate may take
place upon the principle of the measure, after which the bill, if
opposed, is referred to a Private Bill Committee consisting of four
members and a disinterested referee. If the bill be not opposed, i.e.,
if no adverse petition has been filed by property owners,
corporations, or other interests, the committee of reference, under a
standing order of 1903, consists of the Chairman and Deputy Chairman
of Ways and Means, two other members of the House, appointed by (p. 138)
the Committee of Selection, and the Counsel to Mr. Speaker. The
committee stage of a contested bill assumes an essentially judicial
aspect. Promoters and opponents are represented by counsel, witnesses
are examined, and expert testimony is taken. After being reported by
committee, the measure goes its way under the same regulations as
those controlling the progress of public bills.
[Footnote 202: To facilitate their consideration,
such measures are distributed approximately equally
between the two houses. This is done through
conference of the Chairmen of Committees of the two
houses, or their counsel, prior to the assembling
of Parliament.]
*145. Provisional Orders.*--Two things are, however, to be noted. The
first one is that while in theory the distinction between a public and
a private bill is clear, in point of fact there is no little
difficulty in drawing a line of demarcation, and the result has been
the recognition of an indefinite class of "hybrid" bills, partly
public and partly private in content and handled under some
circumstances as the one and under others as the other, or even under
a procedure combining features of both. The second fact to be observed
is that, in part to reduce expense and in part to procure the
good-will of the executive department concerned, it has become common
for the promoters of enterprises requiring parliamentary sanction to
make use of the device known as provisional orders. A provisional
order is an order issued, after minute investigation, by a government
department authorizing provisionally the undertaking of a project in
behalf of which application has been made. It requires eventually the
sanction of Parliament, but such orders are laid before the houses in
groups by the several departments and their ratification is virtually
assured in advance. It is pointed out by Lowell that during the years
1898-1901 not one-tenth of the provisional orders laid before
Parliament were opposed, and but one failed of adoption.[203]
[Footnote 203: Government of England, I., 385. On
private bill legislation see Lowell, I., Chap. 20;
Anson, Law and Custom of the Constitution, I,
291-300; May, Treatise on the Law, Privileges,
Proceedings, and Usage of Parliament, Chaps. 24-29;
Courtney, Working Constitution of the United
Kingdom, Chap. 18; MacDonaugh, The Book of
Parliament, 398-420. The standard treatise upon the
subject is F. Clifford, History of Private Bill
Legislation, 2 vols. (London, 1885-1887). A recent
book of value is F. H. Spencer, Municipal Origins;
an Account of English Private Bill Legislation
relating to Local Government, 1740-1835, with a
Chapter on Private Bill Procedure (London, 1911).]
VII. THE CONDUCT OF BUSINESS IN THE TWO HOUSES
"How can I learn the rules of the Commons?" was a question once put by
an Irish member to Mr. Parnell. "By breaking them," was the
philosophic reply. Representing, as it does, an accumulation through
centuries of deliberately adopted regulations, interwoven and overlaid
with unwritten custom, the code of procedure by which the conduct of
business in the House of Commons is governed is indeed intricate (p. 139)
and forbidding. Lord Palmerston admitted that he never fully mastered
it, and Gladstone was not infrequently an inadvertent offender against
the "rules of the House." Prior to the nineteenth century the rules
were devised, as is pointed out by Anson, with two objects in view: to
protect the House from hasty and ill-considered action pressed forward
by the king's ministers, and to secure fair play between the parties
in the chamber and a hearing for all. It was not until 1811 that
business of the Government was permitted to obtain recognized
precedence on certain days; but the history of the procedure of the
Commons since that date is a record of (1) the general reduction of
the time during which private members may indulge in the discussion of
subjects or measures lying outside the Government's legislative
programme, (2) increasing limitation of the opportunity for raising
general questions at the various stages of Government business, and
(3) the cutting down of the time allowed for discussing at all the
projects to which the Government asks the chambers' assent.[204]
[Footnote 204: Anson, Law and Custom of the
Constitution, I., 253.]
*146. Rules.*--The rules governing debate and decorum are not only
elaborate but, in some instances, of great antiquity. In so far as
they have been reduced to writing they may be said to comprise (1)
"standing orders" of a permanent character, (2) "sessional orders,"
operative during a session only, and (3) "general orders,"
indeterminate in respect to period of application. In the course of
debate all remarks are addressed to the Speaker and in the event that
the floor is desired by more than one member it rests with the Speaker
to designate, with scrupulous impartiality, who shall have it. When a
"division" is in progress and the doors are closed members speak
seated and covered, but at all other times they speak standing and
uncovered. A speech may not be read from manuscript, and it is within
the competence of the Speaker not only to warn a member against
irrelevance or repetition but to compel him to terminate his
remarks.[205] A member whose conduct is reprehensible may be ordered
to withdraw and, upon vote of the House, may be suspended from
service. Except in committee, a member may not speak twice upon the
same question, although he may be allowed the floor a second time to
explain a portion of his speech which has been misunderstood. Undue
obstruction is not tolerated, and the Speaker may decline to put a
motion which he considers dilatory.
[Footnote 205: On parliamentary oratory see Graham,
The Mother of Parliaments, 203-224.]
*147. Closure and the Guillotine.*--For the further limitation of debate
two important and drastic devices are at all times available. One is
ordinary closure and the other is "the guillotine." Closure dates
originally from 1881. It was introduced in the standing orders of (p. 140)
the House in 1882, and it assumed its present form in 1888.[206] It
sprang from the efforts of the House to curb the intolerably
obstructionist tactics employed a generation ago by the Irish
Nationalists, but by reason of the increasing mass of business to be
disposed of and the tendency of large deliberative bodies to waste
time, it has been found too useful to be given up. "After a question
has been proposed," reads Standing Order 26, "a member rising in his
place may claim to move 'that the Question be now put,' and unless it
shall appear to the Chair that such motion is an abuse of the Rules of
the House, or an infringement of the rights of the minority, the
Question 'that the Question be now put' shall be put forthwith and
decided without amendment or debate." Discussion may thus be cut off
instantly and a vote precipitated. Closure is inoperative, however,
unless the number of members voting in the majority for its adoption
is at least one hundred, or, in a standing committee, twenty.
A more generally effective device by which discussion is limited and
the transaction of business is facilitated is that known as "closure
by compartments," or "the guillotine." When this is employed the House
in advance of the consideration of a bill agrees upon an allotment of
time to the various parts or stages of the measure, and at the
expiration of each period debate, whether concluded or not, is closed,
a vote is taken, and a majority adopts that portion of the bill upon
which the guillotine has fallen. In recent years this device has been
employed almost invariably when an important Government bill is
reserved for consideration in Committee of the Whole. Its advantage is
the saving of time and the ensuring that by a given date final action
upon a measure shall have been taken. Prior to the middle of the
nineteenth century liberty of discussion in the Commons was all but
unrestrained, save by what an able authority on English parliamentary
practice has termed "the self-imposed parliamentary discipline of the
parties."[206] The enormous change which has come about is
attributable to two principal causes, congestion of business and the
rise of obstructionism. The effect has been, among other things, to
accentuate party differences and to involve occasional disregard of
the rights of minorities.[207]
[Footnote 206: The name was first employed in
1887.]
[Footnote 207: Redlich, Procedure of the House of
Commons, I., 133-212; Graham, The Mother of
Parliaments, 158-172. An excellent illustration of
the use of the guillotine is afforded by the
history of the passage of the National Insurance
Bill of 1911. See _Annual Register_ (1911),
232-236.]
*148. Votes and Divisions.*--When debate upon the whole or a portion of
a measure is terminated there takes place a vote, which may or may
not involve, technically, a "division." The Speaker or Chairman (p. 141)
states the question to be voted upon and calls for the ayes and noes.
He announces the apparent result and, if his decision is not
challenged, the vote is so recorded. If, however, any member objects,
strangers are asked to withdraw (save from the places reserved for
them), electric bells are rung throughout the building, the two-minute
sand-glass is turned, and at the expiration of the time the doors are
locked. The question is then repeated and another oral vote is taken.
If there is still lack of acquiescence in the announced result, the
Speaker orders a division. The ayes pass into the lobby at the
Speaker's right and the noes into that at his left, and all are
counted by four tellers designated by the Speaker, two from each side,
as the members return to their places in the chamber. This method of
taking a division has undergone but little change since 1836. Under a
standing order of 1888 the Speaker is empowered, in the event that he
considers a demand for a division dilatory or irresponsible, to call
upon the ayes and noes to rise in their places and be counted; but
there is seldom occasion for resort to this variation from the
established practice. The device of "pairing" is not unknown, and when
the question is one of political moment the fact is made obvious by
the activity of the party "whips" in behalf of the interests which
they represent.[208]
[Footnote 208: On the conduct of business in the
Commons see Lowell, Government of England, I,
Chaps. 15-16; Moran, English Government, Chap. 15;
Walpole, Electorate and Legislature, Chap. 8;
Ilbert, Parliament, Chap. 5; Redlich, Procedure of
the House of Commons, II., 215-264, III., 1-41;
May, Treatise on the Law, Privileges, Proceedings,
and Usage of Parliament, Chaps, 8-12; Medley,
Manual of English Constitutional History, 231-284;
Graham, The Mother of Parliaments, 225-258; and
MacDonaugh, The Book of Parliament, 217-247.]
*149. Procedure in the Lords.*--The rules of procedure of the House of
Lords are in theory simple, and in practice yet more so. Nominally,
all measures of importance, after being read twice, are considered in
Committee of the Whole, referred to a standing committee for textual
revision, reported, and accorded final adoption or rejection. In
practice the process is likely to be abbreviated. Few bills, for
example, are actually referred to the revision committee. For the
examination of such measures as seem to require it committees are
constituted for the session, and others are created from time to time
as need of them appears, but the comparative leisure of the chamber
permits debate within the Committee of the Whole upon any measure
which the members really care to discuss. Willful obstruction is all
but unknown, so that there has never been occasion for the adoption of
any form of closure. Important questions are decided, as a rule, by a
division. When the question is put those members who desire to
register an affirmative vote repair to the lobby at the right of (p. 142)
the woolsack, those who are opposed to the proposal take their places
in the corresponding lobby at the left, and both groups are counted by
tellers appointed by the presiding officer. A member may abstain from
voting by taking his station on "the steps of the throne," technically
accounted outside the chamber. Prior to 1868 absent members were
allowed to vote by proxy, but this indefensible privilege, abolished
by standing order in the year mentioned, is likely never to be
revived.[209]
[Footnote 209: On the conduct of business in the
Lords see Anson, Law and Custom of the
Constitution, I., 281-291.]
CHAPTER VII (p. 143)
POLITICAL PARTIES
I. PARLIAMENTARISM AND THE PARTY SYSTEM
*150. Government by Party.*--Intimately connected with the parliamentary
scheme of government which has been described is the characteristic
British system of government by party. Indeed, not merely is there
between the two an intimate connection; they are but different aspects
of the same working arrangement. The public affairs of the kingdom at
any given time, as has appeared, are managed by the body of ministers,
acting with and through a supporting majority in the House of Commons.
These ministers belong to one or the other of the two great political
parties, with only occasional and incidental representation of minor
affiliated political groups. Their supporters in the Commons are, in
the main, their fellow-partisans, and their tenure of power is
dependent upon the fortunes of their party in Parliament and
throughout the country. They are at once the working executive, the
guiding agency in legislation, and the leaders and spokesmen of this
party. Confronting them constantly is the Opposition, consisting of
influential exponents of the contrary political faith who, in turn,
lead the rank and file of their party organization; and if at any time
the ministers in power lose their supporting majority in the Commons,
whether through adverse results of a national election or otherwise,
they retire and the Opposition assumes office. The parliamentary
system and the party system are thus inextricably related, the one
being, indeed, historically the product of the other. It was
principally through the agency of party spirit, party contest, and
party unity that there was established by degrees that single and
collective responsibility of ministers which lies at the root of
parliamentary government; and, but for the coherence and stability
with which political activity is invested by party organization, the
operation of the parliamentary system would be an impossibility. The
law of the British constitution does not demand the existence of
parties; on the contrary, it affords them no recognition or place. The
conventions, however, both assume and require them.
*151. Two-Party Organization.*--The relationship which subsists (p. 144)
between parliamentarism and party government is to be accounted for in
no small measure by the fact that the number of great parties in the
United Kingdom is but two. Certain continental nations, notably France
and Italy, possess the forms of parliamentary government, adopted
within times comparatively recent and taken over largely from Great
Britain. In these countries, however, the multiplicity of parties
effectually prevents the operation of the parliamentary system in the
fashion in which that system operates across the Channel. Ministries
must be made up invariably of representatives of a number of
essentially independent groups. They are apt to be in-harmonious, to
be able to execute but indifferently the composite will of the
Government coalition in the popular chamber, and, accordingly, to be
short-lived. Despite the rise in recent decades of the Irish
Nationalist and Labor groups, it is still true in Great Britain, as it
has been since political parties first made their appearance there,
that two leading party affiliations divide between themselves the
allegiance of the mass of the nation. The defeat of one means the
triumph of the other, and either alone is competent normally to govern
independently if elevated to power. This means, on the one hand, a
much more thoroughgoing predominance of the governing party than can
be acquired by a single party in France or Italy and, on the other
hand, a unique concentration of responsibility and, in turn, an
increased responsiveness to the public will. The leaders of the one
party for the time in the ascendancy govern the nation, by reason of
the fact that, _being_ the leaders of this party, they are selected
without doubt or equivocation to fill the principal offices of
state.[210]
[Footnote 210: For a fuller exposition of the
relations of party and the parliamentary system see
Lowell, Government of England, I., Chap. 24. The
best description of English parties and party
machinery is that contained in Chaps. 24-37 of
President Lowell's volumes. The growth of parties
and of party organization is discussed with
fullness and with admirable temper in M.
Ostrogorski, Democracy and the Organization of
Political Parties, trans. by F. Clarke, 2 vols.
(London, 1902). A valuable monograph is A. L.
Lowell, The Influence of Party upon Legislation in
England and America, in _Annual Report of American
Historical Association for 1901_ (Washington,
1902), I., 319-542. An informing study is E.
Porritt, The Break-up of the English Party System,
in _Annals of American Academy of Political and
Social Science_, V., No. 4 (Jan., 1895), and an
incisive criticism is H. Belloc and H. Chesterton,
The Party System (London, 1911). There is no
adequate history of English political parties from
their origins to the present day. G. W. Cooke, The
History of Party from the Rise of the Whig and Tory
factions in the Reign of Charles II. to the Passing
of the Reform Bill, 3 vols. (London, 1836-1837)
covers the subject satisfactorily to the end of the
last unreformed parliament. Other party
histories--as T. E. Kebbel, History of Toryism
(London, 1886); C. B. R. Kent, The English Radicals
(London, 1899); W. Harris, History of the Radical
Party in Parliament (London, 1885); and J. B. Daly,
The Dawn of Radicalism (London, 1892)--cover
important but restricted fields. An admirable work
which deals with party organization as well as with
party principles is R. S. Watson, The National
Liberal Federation from its Commencement to the
General Election of 1906 (London, 1907). For
further party histories see p. 160, 166.]
II. PARTIES IN THE LATER EIGHTEENTH AND EARLIER NINETEENTH (p. 145)
CENTURIES
*152. Whigs and Tories.*--The seventeenth-century origins of political
parties in England, the development of Whigs and Tories following the
Revolution of 1688-1689, and the prolonged Whig supremacy during the
reigns of George I. and George II., have been alluded to in another
place.[211] During the eighteenth century the parliamentary system was
but slowly coming into its own, and again and again party lines all
but disappeared. The recurring rivalry of Whig and Tory elements,
however, brought about gradually a habitual recognition of the
responsibility of ministers, and this responsibility, in turn, reacted
to accentuate party demarcation. The efforts of George III. to revive
the royal prerogative had the effect of calling into existence a body
of new Tories, not Jacobite, but Hanoverian, who supported the king in
his purpose, and at the same time, of driving the forces of opposition
to a closer union and more constant vigilance. Throughout the century
the tone of party politics was continuously low. Bribery and other
forms of corruption were rife, and the powers of government, both
national and local, were in the hands regularly of an aristocratic
minority which ruled in its own interest. The high-water mark of
intrigue was reached in 1783 when the old Tories, led by Lord North,
allied themselves with the old Whigs, led by Charles James Fox, to
retain power and to curtail the influence of the king. The coalition
was unsuccessful, and the defeat of Fox's India Bill, in December,
1783, became the occasion of the younger Pitt's elevation to the
premiership, followed within three months by a national election which
precipitated an end of the seventy years of Whig ascendancy.
[Footnote 211: See p. 39.]
*153. The Tory Ascendancy, 1783-1830.*--Throughout the ensuing forty-six
years, or until 1830, the new Tory party continued almost
uninterruptedly in power, although it is to be observed that after
1790 the composition and character of this party underwent important
modification. The first decade of the period covered by the Pitt
ministry (1784-1801) was a time of incipient but active propaganda in
behalf of constitutional, financial, and social reform, and the
government was not disinclined to favor a number of the changes which
were projected. The outbreak and progress of the Revolution in (p. 146)
France, however, completely altered the situation. The great
landowners, who constituted the dominating element in the Whig party,
detested the principles of the Revolution and were insistent in season
and out upon war with France. They secured the support of the
parliamentary classes generally, and Pitt and his colleagues were
forced to surrender to the apprehensions and demands of these
elements. The war was declared by France, but it was provoked mainly
by the hostile attitude of the English people and government. At home
all reform propaganda was stamped out, and Tories and Whigs alike
throughout the quarter-century of international conflict pointed
habitually to the abuses by which the upheaval in France was
accompanied as indicative of what might be expected in England, or
anywhere, when once the way was thrown open for unrestrained
innovation.
The Tories were in power during most of the war period and in 1815
their position was seemingly impregnable. During the years covered by
the ministry of Lord Liverpool (1812-1827), however, their hold was
gradually relaxed. They sought to secure for themselves the support of
the masses and talked much of the aristocratic exclusiveness of the
Whigs, yet they made it their first concern to maintain absolutely
intact the constitution of the kingdom and the political and social
order by which it was buttressed. As long as England was engaged in a
life and death contest with Napoleon the staying of innovation was
easy, but after 1815 the task became one of rapidly increasing
difficulty. In the reign of George IV. (1820-1830) the more
progressive of the Tory leaders, notably Canning, Huskisson, and Peel,
recognized that the demands of the nation would have to be met at some
points, and a number of liberalizing measures were suffered to be
carried through Parliament, though none which touched directly the
most serious problems of the day. In 1830 the resignation of the
ministry of the Duke of Wellington marked the end of the prolonged
Tory ascendancy, and with a ministry presided over by Earl Grey the
Whigs returned to power. With the exception of a few brief intervals
they and their successors, the Liberals, held office thereafter until
1874.[212]
[Footnote 212: The party history of the period
1700-1792 is related admirably and in much detail
in W. E. H. Lecky, History of England in the
Eighteenth Century, 7 vols. (new ed., New York,
1903). Beginning with 1815, the best work on
English political history in the earlier nineteenth
century is S. Walpole, History of England from the
Conclusion of the Great War in 1815, 6 vols. (new
ed., London, 1902). A good general account is
contained in I. S. Leadam, The History of England
from the Accession of Anne to the Death of George
II. (London, 1909), and W. Hunt, The History of
England from the Accession of George III. to the
Close of Pitt's First Administration (London,
1905). Briefer accounts of the period 1783-1830
will be found in May and Holland, Constitutional
History of England, I., 409-440, and in Cambridge
Modern History, IX., Chap. 22 and X., Chaps. 18-20
(see bibliography, pp. 856-870). Important
biographies of political leaders include A. von
Ruville, William Pitt, Graf von Chatham, 3 vols.
(Stuttgart and Berlin, 1905); W. D. Green, William
Pitt, Earl of Chatham (London, 1901); E.
Fitzmaurice, Life of William, Earl of Shelburne, 3
vols. (London, 1875-1876); Lord P. H. Stanhope,
Life of Pitt, 4 vols. (London, 1861-1862); Lord
Rosebery, Pitt (London, 1891); and Lord J. Russell,
Life of Charles James Fox, 3 vols. (1859-1867).]
III. THE SECOND ERA OF WHIG [LIBERAL] ASCENDANCY, 1830-1874 (p. 147)
*154. The Liberals and Reform.*--The political history of this second
great era of Whig ascendancy falls into some four or five stages. The
first, extending from the accession of the Grey ministry in 1830 to
the parliamentary elections of 1841, was an epoch of notable reforms,
undertaken and carried through mainly by the Whigs, with the
co-operation of various radical elements and of discontented Tories.
This was the period of the first Reform Act (1832), the emancipation
of slaves in the British colonies (1833), the beginning of
parliamentary appropriations for public education (1833), the Factory
Act of 1833, the New Poor Law (1834), the Municipal Corporations Act
(1835), and a number of other measures designed to meet urgent demands
of humanity and of public interest. This was the time, furthermore, at
which the party nomenclature of later days was brought into use. The
name Whig was superseded altogether by that of Liberal, while the name
Tory, though not wholly discontinued in everyday usage, was replaced
largely by the term Conservative.[213] The Liberals were in these
years peculiarly the party of reform, but it must not be inferred that
the Conservatives resisted all change or withheld support from all
measures of amelioration.
[Footnote 213: The name Conservative was employed
by Canning as early as 1824. Its use was already
becoming common when, in January, 1835, Peel, in
his manifesto to the electors of Tamworth,
undertook an exposition of the principles of what
he declared should be known henceforth as the
Conservative--not the Tory--party.]
*155. From Peel to Palmerston.*--The second stage of the period under
survey was that comprised by the Conservative ministry of Sir Robert
Peel, 1841-1846, established in consequence of the decisive defeat of
the Whigs at the elections of 1841. The memorable achievement of the
Peel government was the repeal of the Corn Laws and the casting off of
substantially the whole of the protective system; but the tariff
policy of the premier divided the Conservative party into the
protectionists or old Conservatives, led by Disraeli and Lord Derby,
and the free trade or liberal Conservatives, led by Aberdeen and (p. 148)
Gladstone, and the breach enabled the Liberals, under Lord John
Russell, to recover office in 1847. A third stage of the period, i.e.,
1847 to 1859, was one of ministerial instability. Disputes between
Russell and Palmerston, the foreign minister, undermined the Liberal
position, and in 1852 the Conservatives, under the leadership of
Derby, returned to power. In 1853, however, the free trade
Conservatives joined the Liberals, overthrew Derby, and placed in
office a coalition ministry under Aberdeen. This government maintained
itself until 1855, when, by reason of discontent aroused by his
management of England's part in the Crimean War, Aberdeen resigned and
was succeeded by Palmerston, at the head of another Liberal ministry.
Foreign difficulties drove Palmerston from office early in 1858, and
the establishment of a second Derby ministry marked a brief return of
the Conservatives to control. Defeated, however, on a resolution
censuring the Government for the inadequacy of the reform bill
introduced by it in 1859, and also for the failure of Lord Derby to
prevent the war between France and Austria, the ministry resigned, in
April, 1859, and Lord Palmerston returned to power, with Gladstone and
Lord John Russell as colleagues. Gladstone's acceptance of office
under Palmerston marked the final severance of the Peelites from the
Conservative party and the abandonment of all hope of the
reconstruction for which both Gladstone and Derby had labored.
*156. Party Regeneration.*--A fourth, and final, stage of the Liberal
period covered the years 1859 to 1874. Its importance arises not
merely from the fact that the culmination of the power of the Liberals
during the nineteenth century was attained at this point, but from the
further fact that it was during these years that the Liberal party was
transformed and popularized so as to be made for the first time really
worthy of the name which it bears. As long as Palmerston lived the
Liberals of the old school, men who disliked radicalism and were
content with the reform of 1832, were in the ascendancy, but after the
premier's death, October 18, 1865, new ideas and influences asserted
themselves and a new Liberal party came rapidly to the fore. This
regenerated party, whose leader was Gladstone, rejected definitely the
ideal of _laissez-faire_, took over numerous principles of the
Radicals, and, with the watchwords of "peace, retrenchment, and
reform," began to insist upon a broader parliamentary franchise and
upon fresh legislation for the protection and general betterment of
the masses. The new liberalism was paralleled, however, by a new
conservatism, whose principal exponent was Disraeli. The new
Conservatives likewise advocated franchise reform and legislation for
the people, although they put more emphasis upon the latter than upon
the former; and they especially favored a firm foreign policy, (p. 149)
an extension of British interests in all parts of the world, and the
adoption of a scheme of colonial federation. They appeared, at least,
to have less regard for peace and for economy than had the Liberals.
The temper and tendencies of the parties as they gradually assumed
shape during the third quarter of the nineteenth century have been
characterized effectively by a recent writer as follows: "The parties
of which Gladstone and Disraeli were the chiefs were linked by
continuous historical succession with the two great sections or
factions of the aristocracy, or hereditary oligarchy, which ruled
Great Britain in the eighteenth century. But each had been transformed
by national changes since the Reform Bill. The Whigs had become
Liberals, the Tories had become Conservatives. The Liberal party had
absorbed part of the principles of the French Revolution. They stood
now for individual liberty, laying especial stress on freedom of
trade, freedom of contract, and freedom of competition. They had set
themselves to break down the rule of the landowner and the Church, to
shake off the fetters of Protection, and to establish equality before
the law. Their acceptance of egalitarian principles led them to adopt
democratic ideals, to advocate extension of the suffrage, and the
emancipation of the working classes. Such principles, though not
revolutionary, are to some extent disruptive in their tendency; and
their adoption by the Liberals had forced the Tory party to range
themselves in defense of the existing order of things. They professed
to stand for the Crown, the Church, and the Constitution. They were
compelled by the irresistible trend of events to accept democratic
principles and to carry out democratic reforms. They preferred, in
fact, to carry out such reforms themselves, in order that the
safeguards which they considered necessary might be respected.
Democratic principles having been adopted, both parties made it their
object to redress grievances; but the Conservatives showed a natural
predisposition to redress those grievances which arose from excessive
freedom of competition, the Liberals were the more anxious to redress
those which were the result of hereditary or customary privilege. The
harmony of the State consists in the equilibrium between the two
opposing forces of liberty and order. The Liberals laid more stress
upon liberty, the Conservatives attached more importance to order and
established authority."[214]
[Footnote 214: S. Leathes, in Cambridge Modern
History, XII., 30-31.]
*157. The First Gladstone Ministry.*--Upon the death of Palmerston in
1865 Lord John Russell became premier a second time, but in the course
of the following year a franchise reform bill brought forward by the
Government was defeated in the Commons, through the instrumentality
chiefly of a group of old Liberals (the "Adullamites") who (p. 150)
opposed modification of the electoral system, and by curious
circumstance it fell to the purely Conservative Derby-Disraeli
ministry of 1866-1868 not only to carry the first electoral reform
since 1832 but to impart to that reform a degree of thoroughness upon
which none save the most advanced radicals had cared to insist. The
results of the doubling of the electorate were manifest in the
substantial majority which the new Liberals acquired at the elections
of 1868, and the Disraeli ministry (Derby had retired early in the
year) gave place to a government presided over by the indubitable
leader of the new Liberal forces, Gladstone. The years 1868-1874,
covered by the first Gladstone ministry, were given distinction by a
remarkable series of reforms, including the disestablishment of the
Church in Ireland (1869), the enactment of an Irish land bill (1870),
the institution of national control of elementary education (1870),
and the adoption of the Australian ballot in parliamentary elections
(1872). Defeated at last, however, on an Irish university bill, the
ministry resigned, and when, at the elections of 1874, the country was
appealed to, the Conservatives obtained a clear parliamentary majority
of fifty seats. This was |
