 |
[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. |
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