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ENGLISH POLITICAL 
 INSTITUTIONS' 
 
 AN INTRODUCTORY STUDY 
 
 BY 
 
 J. A. R. MARRIOTT, M.A. 
 
 LECTURER AND TUTOR IN MODERN HISTORY AND POLITICAL SCIENCE 
 AT WORCESTER COLLEGE, OXFORD 
 
 OXFORD 
 
 AT THE CLARENDON PRESS 
 
 1910 
 
:sN^ 
 
 
 HENRY FROWDE, M.A. 
 
 PUBLISHER TO THE UNIVERSITY OF OXFORD 
 
 LONDON, EDINBURGH, NEW YORK 
 
 TORONTO AND MELBOURNE 
 
PREFACE 
 
 This book is intended as an introduction to the 
 study of English Politics, but its scope is virtually 
 limited to one section of the subject. It deals only 
 with the structure of the State and the functions of the 
 several organs of government. With abstract political 
 philosophy it is not concerned, nor will there be found 
 here any discussion of the conception or the functions 
 of the State in general. My primary object has been 
 to set forth the actual working of the English Constitu- 
 tion of to-day, and to do so with constant reference to 
 the history of the past. I hope, therefore, that the book 
 may be found to fulfil a twofold purpose : to provide an 
 introduction to the history of English Institutions, and 
 also to explain the contemporary working of the compli- 
 cated constitutional machine. 
 
 The book is in fact based upon lectures which have 
 already, I hope, fulfilled in some measure these pur- 
 poses. Those lectures have been addressed, in forms 
 varied to suit varying circumstances, to audiences of 
 widely different types : to Oxford undergraduates enter- 
 ing upon their course of study for the Honour School 
 of Modern History ; to foreign teachers of many na- 
 tionalities desirous to obtain a synoptic view of the 
 working of English Institutions, and to working-men in 
 several centres of Industry, in the hope of inducing 
 them to undertake a more scientific study of * Politics *, 
 
 250746 
 
vi PREFACE 
 
 in the strict sense of the term. Many of those who 
 heard the lectures appeared to find in them something 
 which; in an equally compact and concentrated form, 
 they could not find elsewhere. 
 
 It is this fact which has encouraged me to submit 
 them to a wider and perhaps less indulgent audience. 
 I claim for them.no originality save that of form and 
 presentation. There is scarcely a page which does not 
 reveal my debt to the great historians, jurists, and publi- 
 cists who have traversed parts of the same field : to 
 Stubbs and Maitland, Freeman and Palgrave, Hallam 
 and Erskine May, Maine and Tocqueville, Gneist and 
 Boutmy, Hearn and Bagehot, Mr. Sidney Low 
 and Mr. Bryce, President Lowell and President 
 Woodrow Wilson, and above all to Sir William Anson 
 and Professor Dicey. But heavy as is my debt to my 
 teachers and predecessors, I know of no single book 
 which exactly performs, or even attempts, the task 
 which I have set before myself. 
 
 Long experience of teaching for the Oxford History 
 School, supplemented by some knowledge of widely 
 different audiences, has confirmed the suspicion which 
 I entertained as an undergraduate that we begin the 
 teaching of Constitutional History — the history of 
 Institutions — at the wrong end. Most people, I fancy, 
 are likely to interest themselves more in the Civitas 
 and the Vtcus, in Shire and Hundred, in Borough 
 and Township, if they can first be interested in the 
 revolution effected in Local Government by the legisla- 
 tion of 1835, 1888; and 1894 ; to discuss with avidity 
 questions concerning the composition of the Witenagemot 
 if they know something of the modern history of the 
 
PREFACE vii 
 
 House of Lords and the House of Commons; to appre- 
 ciate the issues involved in the 'cases' of Darnel or 
 Hampden, if they understand the working of tribunaux 
 administratifs — in a word, if they start not with the 
 Germania and Stubbs and Dr. Liebermann, but with 
 Mr. Sidney Low and President Lowell, with ' Hansard' 
 and The Times. 
 
 It is part of the purpose of this little book to test the 
 validity of this theory. I put it forth with unfeigned 
 diffidence, but not without anxious consideration and 
 prolonged experiment. Even should I fail to convince 
 my professional brethren, I trust that I may succeed in 
 opening a more seductive avenue to the study of English 
 Institutions and in providing a more scientific basis for 
 the study of English ' Politics *. 
 
 In the accomplishment of my task I have incurred 
 many obligations which it is a pleasure to acknowledge. 
 A list of published Authorities on which I have drawn 
 freely will be found in an Appendix, and there are many 
 specific references throughout the text. I am con- 
 genitally averse to repeating the same thing in a 
 variety of ways. I have therefore borrowed a few 
 paragraphs from a previous book and articles of my 
 own. The latter were published in the Nineteenth 
 Century and after, and for permission to reproduce 
 them I am indebted to the kind permission of Mr. W. 
 Wray Skilbeck. I have discussed the scope and 
 arrangement of the book with the Rev. H. B. George, 
 of New College, whose experience of the require- 
 ments of Secondary Schools is exceptionally wide. 
 Sir Charles Roe, late Chief Judge of the Chief Court 
 of the Punjab, has kindly allowed me to submit for his 
 
viii PREFACE 
 
 correction the sections dealing with Indian Administra- 
 tion both at Whitehall and in India. 
 
 To Sir William Anson, Warden of All Souls College 
 and Senior Burgess for the University, I owe a debt 
 which it is not easy to acknowledge in terms which 
 shall be at once adequate to my own sense of obliga- 
 tion and not repugnant to him. In common with other 
 students of English Institutions I owe much to his pub- 
 lished works, particularly to that on the Law and Custom 
 of the Constitution^ but in addition I have been per- 
 mitted to draw freely upon the accumulated stores of 
 his erudition as a jurist and his experience as an 
 administrator. He has not only read the whole of the 
 book in proof, and favoured me with a large number of 
 corrections and suggestions of the highest value, but 
 has allowed me personally to discuss with him many 
 subtle points of constitutional practice. If this book 
 attains to any measure of exactitude, historical or 
 political, it must be attributed, in large part, to the 
 generous kindness of one who combines, in a unique 
 degree, constitutional learning and experience of 
 affairs. 
 
 The index I owe to hands to which I owe more 
 than many indices. 
 
 To prevent misconception, it may be well to add that 
 this book is not even an instalment of the * larger work * 
 foreshadowed in the preface to my recently published 
 Second Chambers. It may, however, be regarded, and 
 will, I hope, be accepted as a further preliminary study 
 
 towards it. 
 
 J. A. R. MARRIOTT. 
 Oxford, 
 
 August^ 19 1 o. 
 
CONTENTS 
 
 CHAPTER I— INTRODUCTORY 
 
 PAGE 
 
 The Classification of Constitutions ... 9 
 
 Scope of the Book. What is a Constitution ? To what 
 category does the English Constitution belong ? Classifi- 
 cation of Constitutions. Aristotle's Categories. The Cate-N 
 gories of Thomas Aquinas, Fortescue, Hooker, and Hobbes. ) 
 Inadequacy of these classifications for modern States. ( 
 Proposed Classification. Constitutions are : (a) Composite ^ 
 or unitary ; (d) Rigid or flexible ; (c) Presidential or \ 
 Parliamentary. The English Constitution is (i) unitary, J^ 
 (2) flexible, (3) parliamentary. 
 
 CHAPTER n 
 
 Salient features of the English Constitution . 26 
 
 A non-existent Constitution. Constitutions, written and 
 unwritten. How far is that of England ' unwritten ' ? The ^. 
 flexibility of the English Constitution. Rigid Constitu- 
 tions. Rigidity essential to federalism. Continuity of 
 the English Constitution ; its ' legality ' ; the supremacy 
 of the ' rule of law '. Personal liberty in England ; its 
 basis. The ' unreality ' of the Constitution. 
 
 CHAPTER HI 
 
 The Executive : (i) Formal: the Crown ... 43 
 
 The ' separation of Powers ' : Executive, Legislative, 
 Judiciary. In early days no such * separation '. 
 
 The problem of the Executive. This problem solved in 
 England by the revolution of the seventeenth century. 
 Effect of the Revolution of 1688 upon the position of the 
 Crown. What the * King can do '. The subordination 
 of the Executive to the Legislature. The ' experiment ' of 
 the fifteenth century. Its failure. The Tudor dictatorship ; 
 the Stuart despotism. The Puritan Revolution. The fall 
 of the Monarchy. The Commonwealth and the Protec- 
 torate. The Restoration. The Revolution, Changes 
 
. f:,:,- CONTENTS 
 
 ' ' '•••''. . ' PAGE 
 
 effected by; (i) Deflection in the hereditary line; (2) 
 Annual meeting of Parliament ; (3) Change in mode of 
 granting supplies. The Ch'il List ; position of the Crown 
 under the Hanoverians. George III and George IV. 
 Queen Victoria. Bagehot's analysis of the non-political 
 functions of the Crown. 
 
 CHAPTER IV 
 
 The Executive : (2) Political : the Cabinet, the 
 
 Prime Minister, and the Crown .... 68 
 
 The problem of the Executive in England solved by the 
 evolution of the Cabinet. What is the Cabinett Its 
 descent from the King's Council. 
 
 The responsibility of Ministers. Impeachments of Buck- 
 ingham, Strafford, Danby. Significance of the last. 
 Development of the Cabinet after 1660. Attempts to 
 arrest it. Temple's scheme ; its failure. Sunderland's 
 Junto (1697). The Act of Settlement. Queen Anne and 
 her ministers. The Cabinet under George I. Sir Robert 
 Walpole : his contribution to the development of the 
 Cabinet. 
 
 Principles of Cabinet Government: (i) the exclusion of 
 the Sovereign ; (2) correspondence between Executive and 
 Legislature ; (3) political homogeneity ; (4) collective re- 
 sponsibility ; (5) subordination of the Cabinet to the Prime 
 Minister. 
 
 Position of the Prime Minister. Evolution of the office. 
 Clarendon, Walpole, Pitt, Peel. Position of a modern 
 Premier. 
 
 Political power of the Crown. How far has it suffered 
 eclipse ? Relations of Crown and Cabinet. Queen 
 Victoria and her Ministers. Relations with Palmerston, 
 Peel, Russell, Derby. Queen Victoria's intervention in 
 1869 ; in 1884. Mr. Gladstone's testimony to its value. 
 The Crown and the Empire. 
 
 CHAPTER V 
 
 The Executive : (3) Permanent : the Civil Service, 
 
 and the Government Departments . . .101 
 
 The co-operation of amateur and expert ; the Cabinet 
 and the Civil Service. Composition of a modern ministry. 
 * Placemen ' in Parliament and outside it. Appointment of 
 Civil Servants. 
 
 The Government Departments. The Treasury: history 
 of; functions of. The Lords of the Treasury. The Chan- 
 cellor of the Exchequer. The Secretariat of State : history 
 
CONTENTS 3 
 
 PAGE 
 
 of. The Home Office. The Foreign Office. The Colonial 
 Office. The War Office. The India Office. The Board 
 of Admiralty. The Post Office. The Board of Trade ; of 
 Education ; the Local Government Board ; the Board of 
 Works ; of Agriculture. The Irish Executive. The Secre- 
 tary for Scotland. The Duchy of Lancaster. The Lord 
 Chancellor. The Lord Privy Seal. The Lord President 
 of the Council. The Privy Council. 
 
 CHAPTER VI 
 
 The Legislature: (i) The House of Lords: Origins 
 
 AND Early History 126 
 
 The outstanding features of the English Legislature. 
 The King-in-Parliament. Sovereignty of Parliament. 
 The Constitutional Experiments of the Commonwealth 
 and the Protectorate. The Agreement of the People ; the 
 Instrument of Govermnent ; attempts to make a rigid Con- 
 stitution ; their failure. 
 
 The Bicameral form of the English Parliament ; its 
 evolution. 
 
 Origin of the House of Lords. The Witenagemot. The 
 Commune Concilium. The Barones Majores and Minores. 
 The House of Lords in the fourteenth and fifteenth cen- 
 turies. What is a Barony ? Barony by tenure ; Barony by 
 writ. Methods of creating Peers. The Judges in Parlia- 
 ment. Functions of the House of Lords ; taxative ; legisla- 
 tive ; deliberative and judicial. 
 
 CHAPTER Vn 
 
 The Legislature: (2) Modern History of the 
 
 House of Lords 146 
 
 The House of Lords under the Tudors. Changes in its 
 composition since the sixteenth century. Peers, Spiritual 
 and Temporal. Rapid i^prease of numbers of lay Peerage. 
 Conflicts between Lords and Commons after the Restora- 
 tion. Political ascendancy of the Peers in the eighteenth 
 century. S\mdtr\^ndi's Peerage Bill {lyK)). Its rejection 
 fortunate. The Lords and the Reform Bill (1830-2). The 
 House of Lords since the Reform Act. Influence of the 
 Duke of Wellington. 
 
 Legal life-Peers. The Wensleydale Peerage Case (1856). 
 Its significance. T\ie. Judicattire Act (1876). Lords-of- 
 Appeal-in-Ordinary. Life-Lords. Official Lords of Parlia- 
 ment. Position of the Bishops in the Upper House. 
 
 The place of the Upper House in the Constitution. 
 A 2 
 
4 CONTENTS 
 
 PAGE 
 
 Its 'referendal' functions. Its 'ventilating' function. 
 *A reservoir of Cabinet Ministers.' Ministers and the 
 Legislature. 
 
 The House of Lords compared with other * Second 
 Chambers '. The German Bundesrath ; the French and 
 American Senates. The argument for bi-cameralism. 
 
 CHAPTER VIII 
 
 The Legislature : (3) The House of Commons . 168 
 
 Democracy, ancient and modern, direct and representa- 
 tive. The House of Commons. Distribution of Seats. 
 Who may be elected? Disqualifications. Qualification 
 of electors. Functions of House of Commons. 
 
 Origin of the House of Commons. The idea of repre- 
 sentation in England. The Township and Parish. 
 Representation in Shire Court. Growth of central repre- 
 sentation in thirteenth century. Simon de Montfort. The 
 Parliament of 1265. Parliamentary experiments, 1265-95. 
 Edward I's 'model Parliament* (1295). An assembly 
 of Estates. Knights and Burgesses. Evolution of a bi- 
 cameral Parliament. Development of its powers in the 
 fourteenth century. The Commons acquire control over 
 taxation ; their part in legislation. Relations with the 
 Executive. Parliament and Council. The experiment of 
 the fifteenth century. 
 
 CHAPTER IX 
 The Legislature: (4) The House of Commons 
 
 UNDER the TUDORS AND STUARTS . . . 185 
 
 Tendency to underrate importance of sixteenth century 
 in relation to Parliament. Borough representation under 
 the Tudors. Varieties in borough franchise. County 
 franchise. Distribution of seats. Large increase in 
 borough representation under the Tudors and Stuarts. 
 Motives. University representation. Position of the 
 House of Commons under the Tudors. Frequency of 
 meeting. Legislative fertility. Taxation, control of. Par- 
 liamentary rights evaded but not violated. Parliamentary 
 privilege. Position of the Speaker. Ministers in Parlia- 
 ment. 
 
 The contest of the seventeenth century. Nature of it, 
 and reasons for it. Problems bequeathed by the Tudors to 
 the Stuarts. Taxative : question of Impositions ; of Ship- 
 money. Legislative : Proclamations ; Suspending and 
 Dispensing power. Privilege. 
 
CONTENTS 5 
 
 CHAPTER X 
 
 PAGE 
 
 The Legislature: (5) The House of Commons 
 SINCE THE Revolution ..... 203 
 
 The House of Commons emerges victorious from the 
 contest of the seventeenth century. Reasons which con- 
 tributed to the consolidation of the victory in the eighteenth. 
 Annual Meeting. Change in mode of granting supplies. 
 Organization of parties. Development of the Ministerial 
 system. 
 
 Arrogant temper of the Commons. Conflicts with the 
 Lords. Finance Bills. Tacking. Conflicts with the 
 people. Reporting of Parliamentary Debates. Publica- 
 tion of Division Lists. Decision of disputed elections. 
 Wilkes and the Middlesex election. Contempt. The 
 Commons out of touch with the constituencies. 
 
 Composition of the House. The Act of Union with 
 Scotland ; with Ireland. Parliamentary Reform. Distri- 
 bution of seats. The Franchise in counties and boroughs. 
 Restrictions upon. Expense of contested elections. The 
 agitation for Reform. Attempts in the eighteenth century. 
 Lord Grey's Ministry (1830). The Reform Act of 1832. 
 The Act of 1867. Acts of 1884 and 1885. Results of these 
 measures. 
 
 The advent of Democracy. Existing anomalies. Pro- 
 portional representation. Democracy, ' representative ' and 
 'direct'. Pessimistic forecast. Is it justified? The 
 Referendum. 
 
 CHAPTER XI 
 
 The Process of Legislation : Parliamentary Pro- 
 cedure 230 
 
 The Speaker : election ; functions. Business in Parlia- 
 ment: (i) Deliberative; (2) Control of Executive; (3) 
 Legislative. Legislation : Private Members' Bills ; Private 
 Bills. Provisional Orders. Public Bills : procedure upon. 
 Money Bills. Estimates. Committee of Supply. Minis- 
 terial initiation. Appropriation. Supply : permanent and 
 annual. Expenditure : permanent and annual. Committee 
 of Ways and Means. Machinery of revenue and expendi- 
 ture. The Controller and Auditor General. 
 
 CHAPTER Xn 
 
 Local Government: (i) Rural 245 
 
 The revolution effected in Local Government during the 
 nineteenth century. Rural government. The Shire or 
 County. History of English Shires. The Shire-moot. 
 
6 CONTENTS 
 
 PAGE 
 The Sheriff; his position and function at different periods. 
 The Hundred. The Hundred-court. The poHce system. 
 The township or vill. The parish. The manor. The 
 communal courts. Dechne in the office of Sheriff. Develop- 
 ment of the Justice of the Peace. ' Lack of Governance ' 
 in the fifteenth century. ' Bastard feudalism.' 
 
 Reorganization of Local Government under the Tudors. 
 The Tudor ' man-of-all-work '. The work of the County 
 Magistracy. The parish. The problem of pauperism. 
 History of English Poor Law (1601-1834). 
 
 The local oligarchy of the eighteenth century. 
 
 Reform in the nineteenth century. Local Government 
 prior to 1 888. The 'jungle of jurisdictions ' and the * chaos 
 of areas'. The Local Government Act of 1888. County 
 Councils. The District and Parish Councils Act of 1894. 
 
 CHAPTER XIII 
 
 Local Government: (2) Urban 265 
 
 A nation of townsfolk. Urban and rural population. 
 The Burgh. Origin of English towns. Municipal de- 
 velopment. Guilds and municipalities. The ' Corporation ' : 
 Mayor ; Aldermen ; Common Councillors. The urban 
 oligarchies. The Municipal Reform Act of 1835. Modern 
 municipal government. Cities and Boroughs. Varieties of 
 * Boroughs '. County Boroughs. London. The unre- 
 formed City Corporation. The London County Council. 
 The Metropolitan Boroughs. Reforms of 1888 and 1899. 
 Boroughs with separate Court of Quarter Sessions. Re- 
 corders. 
 
 Functions of a modern municipality. Tendency to mul- 
 tipHcations of. Municipal ' trading '. Arguments for and 
 against. Housing. Municipal employes and the municipal 
 franchise. Expedient adopted in Victoria. Growth of 
 local debt ; of local expenditure. 
 
 Relations of the Central and Local Government. The 
 Board of Trade and the Local Government Board. Con- 
 trol of Central over Local Government : judicial, legislative, 
 and administrative. Absence of ' administrative law '. 
 Parliament and Local Government. Representation and 
 taxation. 
 
 CHAPTER XIV 
 
 The Judiciary : The Courts of Law and the 
 
 Liberty of the Subject 287 
 
 The ' rule of law '. The ' separation of Powers '. The 
 
CONTENTS 7 
 
 PAGE 
 
 Judicial Bench under the Stuarts. Relations with the 
 Crown. James I and Bacon. The Judiciary and the 
 Executive. The prerogative Courts. Abolition of, by the 
 Long Parliament. The Habeas Corpus Act. Changes 
 effected in Judges' tenure at the Revolution. The Legis- 
 lature and the Judiciary. 
 
 The Judiciary in the United States. Position of the 
 Supreme Court as ' Guardian of the Constitution '. 
 
 Administration of justice in England. The reforms of 
 1873-94. Criminal Courts: local and central. Justices 
 of the Peace. Petty and Quarter Sessions. Stipendiaries 
 and Recorders. Assizes. The Circuit system. Trial by 
 Jury. Court of Criminal Appeal. 
 
 Civil justice, (a) Local : County Courts, (b) Central : 
 The Supreme Court of Judicature : {a) the High Court 
 of Justice ; {b) the Court of Appeal. Divisions of the 
 High Court. The Court of Appeal. The House of 
 Lords. The Privy Council : Judicial Committee of. 
 
 The antiquities of legal procedure. History of the ad- 
 ministration of justice. The communal courts. The 
 Curia Regis. Development of the royal courts : King's 
 Bench ; Common Pleas ; Exchequer. The Court of 
 Chancery. The Court of Star Chamber. 
 
 Development of Trial by Jury. Inquest by sworn recog- 
 nitors. The Grand Jury ; the Petty Jury. Experts and 
 laymen. 
 
 CHAPTER XV 
 
 ^ 
 
 The State and the Empire : Dominions, Colonies, 
 AND Dependencies 306 
 
 The British Empire ; area ; population. Geographical 
 distribution: (i) European Group ; (2) North American ; 
 (3) Australasian ; (4) African ; (5) Asiatic ; (6) West 
 Indies. Government of the Empire. 
 
 History of the growth of Greater Britain. The first 
 Empire (1607-1783). The plantations. Conquests. 
 Duel with France. Conquest of Canada. Quarrel with 
 the thirteen Colonies. The Great Schism. 
 
 The Second Empire (1783-1910). The two Canadas. 
 Constitutional evolution of. The Constitutional Act 
 (1791). Representative Legislature. Canada in rebel- 
 lion. Lord Durham's mission and Report. The Union 
 Act (1840). Responsible Government. Tendency to- 
 wards federalism. British North American Act {iZSy). 
 The Federal Dominion. Newfoundland. The West 
 Indies. Crown Colonies. 
 
8 CONTENTS 
 
 PAGE 
 
 India. Growth of British dominion in. The Rule of 
 the Company (1600-1773). North's Regulating Act, 
 1773. Pitt's India Act (1784). The Mutiny (1857). 
 British India transferred from the Company to the 
 Crown (1858). Kaisar-i-Hind (1876). Government of 
 India. The Viceroy and his Councils. The Provincial 
 Governments. The native State. 
 
 Australia and New Zealand. Constitutional evolution 
 of. Atistralian Coin77ton'wealth Act, 1900. 
 
 South Africa. Cape Colony. Natal. The Transvaal. 
 Orangia. Responsible Government. Union Act of 
 1909. 
 
 Constitutional relations of the Mother Country and the 
 over-sea Dominions. Sovereignty of the King-in- Parlia- 
 ment. Judicial Committee of Privy Council. 
 
 The future. 
 
 Appendix I : Authorities 336 
 
 Index 340 
 
CHAPTER I 
 
 INTRODUCTORY.— THE CLASSIFICATION 
 OF CONSTITUTIONS 
 
 * Consider what nation it is whereof ye are — a nation not beneath the 
 reach of any point the highest that human capacity can soar to.' — 
 Milton. 
 
 * The difference of Commonwealths consisteth in the difference of the 
 Sovereign, or the person representative of all and every one of the 
 multitude. . . . When the representative is one man, then is the Common- 
 wealth a Monarchy ; when an assembly of all that will come together, 
 then it is a Democracy or popular Commonwealth ; when an assembly 
 of a part only, then it is called an Aristocracy. Other kinds of Common- 
 wealth there can be none ; for either one or more or all must have the 
 Sovereign power entire.* — Hobbes, Leviathan, 
 
 To the Study of English Institutions there are many 
 methods of approach. Of these the most obviously con- 
 trasted are the antiquarian and the political ; we may begin 
 either with the Germania of Tacitus and the Dooms of 
 Ethelbert, or with Bagehot's English Constitution and the 
 Reform Acts of 1832, 1867, and 1884. 
 
 It is desirable, therefore, to explain at the outset the 
 scope, method, and purpose of the chapters that follow. 
 
 I propose to attempt a brief description of the actual 
 working of the Constitution of the United Kingdom and 
 of the British Empire ; to sketch the historical development 
 of the various organs of Government — the Executive, the 
 Legislature, the Judiciary; to analyse the machinery and 
 discuss the functions of Local Government ; and to define 
 the constitutional relations of the Mother Country and her 
 Colonial dominions and dependencies. 
 
lo INTRODUCTORY 
 
 Two preliminary questions present themselves. First : 
 What is a Constitution ? and, secondly : To what general 
 category does the English Constitution belong ? A * Con- 
 stitution' is defined by Austin as 'that which fixes the 
 structure of the supreme Government ' ; by Sir George 
 Cornewall Lewis as 'the arrangement and distribution of 
 the Sovereign power in the Community, or the form of the 
 Government '. 
 
 Provisionally accepting these definitions we next inquire : 
 To what general category does the English Constitution 
 belong? How are we to describe it, or classify it? Ac- 
 cording to the time-honoured basis of classification a Con- 
 stitution must belong to one of three categories : it must be 
 either a Monarchy, or an Aristocracy, or a Democracy; 
 Sovereignty must be vested either in one person, or in the 
 * few ' or in the ' many \ To this merely quantitative classi- 
 fication Aristotle, to whom the terminology of Political Science 
 owes so much, added a qualitative or ethical differentia. 
 He begins, it is true, by accepting the merely numerical 
 differentia by which Governments are discriminated ac- 
 cording to the number of the rulers ; the one, the few, or 
 the many. But this does not satisfy him. Almost imme- 
 diately he corrects the numerical by an ethical standard. 
 The * one ' may rule either for the common good, or for his 
 own selfish advantage : in the former case the Government 
 is a Kingship or Monarchy^ in the latter a Tyranny. Simi- 
 larly, the Government of the 'few' may be either an 
 AristocrQ£x, or a n_ Qlimrchy ; and that of the ' many ' may 
 be either a Polity or a Democracy. Thus we obtain a 
 twofold classification : (i) normal Constitutions (opOal) ; and 
 (2) deviation-forms, perversions, or corruptions (Tra/ocK^ao-cis). 
 Tyranny is the perversion of Kingship, Oligarchy of Aristo- 
 cracy, and Democracy of Polity. But even this does not 
 satisfy Aristotle's analytical mind. 
 
 Democracy is commonly defined as a Constitution in 
 
I 
 
 CLASSIFICATION OF CONSTITUTIONS ii 
 
 hich the masses are supreme ; Oligarchy as one in which 
 the Few are supreme. But how are we to describe a Con- 
 stitution in which the rich ruling in the interest of the rich 
 are in a majority ; is that a Democracy or an Oligarchy ? 
 How are we to classify one in which the poor ruling in the 
 interest of the poor form a minority? In a word, is ^e 
 distinction to be quantitative or qualitative? Is it to be 
 based on the question of numbers or of wealth? After 
 prolonged discussion Aristotle decides that the question 
 of numbers is accidental, that of wealth is essential. Hence 
 Oligarchy is the rule of the rich, ruling in the interests of 
 the rich, be they few or many. Democracy is the rule of 
 the poor, be they many or few, ruling in the interests of the 
 poor. Nor can it be doubted that in this insistence on the 
 qualitative element Aristotle was pointing to a truth of 
 real importance. 
 
 'The principle of classification adopted by Plato and 
 Aristotle has the merit ', as Mr. Newman, at once the most 
 subtle and the most profound of Aristotelian commentators 
 has pointed out, ' of directing attention to the rjOo^ and aim 
 of constitutions as distinguished from their letter : we learn 
 from it to read the character of a State, not in the number 
 of its rulers, but in its dominant principle, in the attribute — 
 be it wealth, birth, virtue, or numbers, or a combination of 
 two or more of these — to which it awards supreme authority, 
 and ultimately in the structure of its social system and the 
 mutual relation of its various social elements. If they erred 
 in their principle of classification, it was from a wish to get 
 to the heart of the matter.' ^ 
 
 A modern critic may perhaps regard Aristotle as 
 tiresomely insistent on this question of classification of 
 Constitutions. But two things must be borne in mind. 
 First : that to the Greeks the Constitution was in very 
 truth the soul of the State ; everything depended on it ; 
 * Newman, Politics, i. 225. 
 
12 INTRODUCTORY 
 
 not merely public well-being but individual morality; not 
 merely the Government of the State, but the daily life of 
 the citizen. Only in the Ideal State, that is in the State 
 with a perfect Constitution, could public and private morality 
 coincide : there only was the ' good man ' identical with the 
 
 * good citizen '. ' In the vaster States of to-day,' once more 
 to quote Mr. Newman, 'opinion and manners are slower 
 to reflect the tendency of the Constitution : in the small city 
 States of ancient Greece they readily took its colour. It 
 was thus that in the view of the Greeks every Constitution 
 had an accompanying rjOos, which made itself felt in all the 
 relations of life. Each constitutional form exercised a 
 moulding influence on virtue : the good citizen was a difl'er- 
 ent being in an Oligarchy, a Democracy, and an Aristocracy. 
 Each Constitution embodied a scheme of life, and tended, 
 consciously or not, to bring the lives of those living under 
 it into harmony with its particular scheme.' 
 
 To the citizen of a modern State these are ' hard sayings ', 
 and I dwell upon them only for an instant, partly to point 
 a moral, but mainly to suggest a contrast. 
 
 I pass on to notice the permanent influence of Aristotle 
 upon the terminology of Political Science. We cannot get 
 away from him if we would. ' Monarchy ', ' Aristocracy ', 
 
 * Democracy ' — the classification dogs us through the whole 
 history of political speculation. The philosophers of the 
 Middle Ages, despite Christian influences, were completely 
 under the spell. Thomas Aquinas, for example, is no less 
 typical and representative of the Middle Age than is Aristotle 
 of the ancient Greek world. In the JDe Regimine Principum^ 
 
 * the most popular and next to the Politics of Aristotle the 
 most authoritative political handbook of the Middle Ages,' ^ 
 we have the same already time-honoured basis of classifica- 
 tion. It is true that in the two last Books of the De Regi- 
 
 ^ Plummer, Fortescue^s Governance of England, p. 171. 
 
CLASSIFICATION OF CONSTITUTIONS 13 
 
 mine — generally regarded as spurious^ — Constitutions are 
 classified as follows: — (i) Dominium Sacerdotale et Regale^ 
 e. g. the Papacy ; (2) Dominium Regale Tantum or absolute 
 Monarchy; and (3) Dominium Regale et Politicum or 
 * limited ' Monarchy. For English students this latter classi- 
 fication, whether it is to be attributed to Aquinas or to a 
 later hand, has a special interest and significance. It is 
 closely followed by the great English publicist of the fifteenth 
 century. Sir John Fortescue. Thus in the De Laudibus 
 Legum Angliae Fortescue writes : * A King of England can- 
 not at his pleasure make any alterations in the laws of the 
 land, for the nature of his Government is not only regal but 
 political.^ Fortescue almost verbally anticipates the language 
 of Hooker — writing in the last years of Queen Elizabeth, 
 and from Hooker it is in every sense an easy transition to 
 the great name of Thomas Hobbes of Malmesbury. Hobbes 
 — the most severely logical of all English philosophers — 
 declares boldly and unequivocally for the simple numerical 
 differentia. 
 
 'The difference of Commonwealths consisteth in the 
 difference of the Soveraign or the Person representative of 
 all and everyone of the multitude. And because the 
 Sovereignty is either in one Man, or in an assembly of 
 more than one ; and into that assembly either Every man 
 hath right to enter, or not everyone, but Certain men 
 distinguished from the rest ; it is manifest there can be but 
 Three kinds of Commonwealth. For the Representative 
 must needs be One man or more ; and if more then it is 
 the Assembly of all, or but of a part. When the Repre- 
 sentative is one man then is the Commonwealth a Monarchy; 
 when an assembly of all that will come together, then it is 
 a Democracy or Popular Commonwealth : when an Assembly 
 of a part only, then it is called an Aristocracy. Other kind 
 of Commonwealth there can be none : for either One or 
 more or all must have the Sovereign power (which I have 
 shown to be indivisible) entire.' Of the deviation forms or 
 perversions, or other varieties Hobbes will have none. 
 * Franc, Publicistes de V Europe. 
 
14 INTRODUCTORY 
 
 *They are not the names of other forms of Government, 
 but of the same formes misliked. For they that are dis- 
 contented under Monarchy call it Tyranny ; and they that 
 are displeased with Aristocracy call it Oligarchy ; so also they 
 which find themselves grieved under a Democracy call it 
 Anarchy (which signifies want of Government) : and yet I 
 think ' (he adds) * no man believes that want of Government 
 is any new kind of Government ; nor by the same reason 
 ought they to believe that the Government is of one kind 
 when they like it and another when they dislike it, or are 
 oppressed by the Governors.' Other supposed varieties of 
 the three normal forms are really due to loose thinking and 
 confusion, e. g. Elective Monarchy or Limited Monarchies. 
 But an elected King, if he has the right to appoint a suc- 
 cessor, is really hereditary ; if he has not the right he is not 
 Sovereign. Sovereignty really resides with those who have 
 the right to elect the Successor. Similarly in regard to 
 so-called 'limited Monarchy', the Sovereignty resides not 
 in the Monarchy, but in the Assembly, be it democratic or 
 aristocratic, which imposes the limitation. Hobbes, there- 
 fore, agrees with Rousseau that though power may be dele- 
 gated Sovereignty is indivisible ; and irresponsible — except 
 in one particular. One quasi-limitation he does admit. 
 The Sovereign must defer to the law of nature, that is, he 
 must fulfil the purpose for which the State exists, and 
 provide for the peace and security of the people. 
 
 'The difference between these three kinds of Common- 
 wealth consisteth not in the difference of Power, but in the 
 difference of Convenience or aptitude to produce the peace 
 and security of the people ; for which end they were 
 instituted.' ^ 
 
 No subsequent English writer has materially modified the 
 severe analysis of Hobbes except Sir John Seeley. The 
 value of Seeley's constructive contribution is perhaps open to 
 question, but at least he had the merit of perceiving that the 
 accepted classification, * suggested originally by the very par- 
 tial and peculiar experience of the Greek philosophers,' was 
 hopelessly inadequate and inapplicable to the conditions of 
 the modern world. 
 
 ^ Leviathan^ c xix. 
 
CLASSIFICATION OF CONSTITUTIONS 15 
 
 I To divide the great States of to-day into Monarchies, 
 ristocracies, and Democracies would obviously not carry 
 us very far, even if the classification commanded universal 
 assent. But does it? To which of the three categories 
 must we assign the Government of England ? The books 
 evade the difficulty by describing the English Constitution 
 as * mixed ', and there, for the moment, we will leave it. 
 Germany, it may be assumed, would be described as a 
 Monarchy; France and the United States as Democra- 
 cies. But it is obvious, on anything more than the most 
 superficial scrutiny, that there is far more in common 
 between Germany and the United States than between the 
 United States and France ; more in common, again, between 
 Monarchical England and Republican France than between 
 England and Russia ; more in common, once more, between 
 the German Imperial Monarchy and the Swiss Republic 
 than between the neighbouring Republics of France and 
 Switzerland. These few instances, which might of course 
 be indefinitely multiplied, suggest the conclusion that we 
 must discover a new basis of classification. They do more ; 
 they indicate the direction in which we should seek it. 
 Confining our attention, for the present, to a few of the 
 more conspicuous States of the modern world, France, 
 Russia, Spain, Italy, Germany, Austria-Hungary, Switzer- 
 land, and the United States of America, it will be at once 
 apparent that, on one intelligible principle of division, they 
 fall into two groups ; the first four, differing inter se, have 
 this in common : they are all Simple or Unitary States ; the 
 last four, similarly differing inter se, are all Complex, Com- 
 posite, or Federal States. 
 
 This will supply the first basis of classification ; we may 
 divide States into Unitary and Federal. To the former 
 category we should assign, indisputably, France, Spain, Italy, 
 Russia, Holland, Belgium, Portugal, Greece, Sweden, 
 Norway, and Denmark ; to the latter, Germany, Austria- 
 
i6 INTRODUCTORY 
 
 Hungary, Switzerland, the United States, the Canadian 
 Dominion, and the Austrahan Commonwealth. To which 
 category does Great Britain itself belong? At first sight 
 Great Britain, with its ' Imperial ' Parliament, with the 
 statutory and subordinate Legislatures in Canada, Australia, 
 New Zealand, South Africa, and elsewhere, with its vast net- 
 work of Crown Colonies and Dependencies, would seem to 
 belong to the federal, not the unitary group, and the time 
 may come when it will. But the time is not yet, or, rather, 
 it is no longer. In the past England and even Great Britain 
 would have accurately classified as a Composite State. 
 Between 1603 and 1707 England and Scotland, between 
 1 7 14 and 1837 Great Britain and Hanover, were united in 
 a ' personal union ' — comparable with but less intimate 
 than the union between Austria and Hungary to-day. 
 Between 1782 and 1800 there were in Great Britain and 
 Ireland two Parliaments — nominally co-ordinate — and united 
 only by the connecting link of a common Monarchy. But 
 since 1801 there has been no independent Legislature in the 
 British Empire; and this must be regarded as the ultimate and 
 discriminating test. Legislative Sovereignty, as I propose to 
 show later, is vested for the whole British Empire in the 
 * Imperial ' Parliament, i. e. in King, Lords, and Commons 
 sitting at Westminster. It must be understood, of course, 
 that I now speak, not of practical working, but of legal form.^ 
 The British Empire is, therefore, technically a 'unitary 
 State'. Parenthetically it should be observed that of 
 the ' Composite ' State there are many forms, varying 
 from loose ' personal union ' such as that which sub- 
 sisted between England and Scotland, 1 603-1 707, or that 
 between Sweden and Norway, 18 14-1905, to the Con- 
 federation (Staatenband), of which Germany from 1815-66 
 
 * For the actual relations of the Mother Country and the Colonies, 
 see infra, chapter xv. 
 
CLASSIFICATION OF CONSTITUTIONS 17 
 
 may be taken as a type, and finally to the closely compacted 
 Federal State (Bundestaat), of which we have examples in 
 the modern German Empire and the United States. 
 
 We conclude, then, that taking the Composite and Unitary 
 principles as our first and perhaps most fundamental differ- 
 entia, England, and indeed the British Empire, must be 
 assigned formally to the latter category. 
 
 A second basis of classification may be found in the 
 character of the Constitution itself. Constitutions may be 
 distinguished as Rigid and Flexible. A Rigid Constitution 
 is one which can be altered and amended only by the 
 employment of some special, and extraordinary, and pre- 
 scribed machinery, distinct from the machinery of ordinary 
 legislation. A Flexible Constitution is one in which amend- 
 ment takes place by the ordinary process of law-making — 
 and indeed of administration ; in which there is no formal 
 distinction between 'constitutional' and ordinary laws: 
 between (as Cromwell put it) ' fundamentals ' and ' circum- 
 stantials ^} In other words. Constitutions are differentiated 
 by the position, authority, and functions of the Legislature. 
 Under rigid Constitutions its function is merely legislative 
 — to make laws under the limitations of the Constitution ; 
 under flexible Constitutions its function is not only legisla- 
 tive but constituent; not only to enact, tp amend, and re- 
 peal laws, but to make and modify the Constitution. 
 
 At the opposite poles, in this respect, stand the Constitu- 
 
 ^ It is true, as there are some things in the Establishment which are 
 Fundamental, so there are others which are not, but are Circumstantial. 
 Of these no question but I shall easily agree to vary, to leave out, 
 * according ' as I shall be convinced by reason. But some things are 
 Fundamentals ! About which I shall deal plainly with you : these may 
 noi be parted with ; but will, I trust, be delivered over to Posterity, as 
 the fruits of our blood and travail. The Government by a single person 
 and a Parliament is a Fundamental ! It is the esse, it is constitutive . . . 
 In every Government there must be somewhat Fundamental, some- 
 what like a Magna Carta, which should be standing, be unalterable. 
 (Cromwell : Second speech to first Protectorate Parliament, Sept. 1 2, 1654.) 
 1 1 20 B 
 
1 8 INTRODUCTORY 
 
 tions of England and America.^ In England we know no 
 distinction between ' constitutional ' or ' fundamental ' and 
 * ordinary ' laws. Cromwell and the Constitution-makers of 
 the Commonwealth attempted indeed to draw such a dis- 
 tinction, but the attempt was stoutly resisted even by the 
 Protectorate Parliaments. These Parliaments, despite threats 
 and cajolery, clung obstinately to their privileges as consti- 
 tuent and not merely legislative assemblies, and the result 
 is that since the Restoration no attempt has ever been 
 made to question the constituent authority of the English 
 Parliament. The classical passage on this subject is in 
 Blackstone's Commentaries ^ : — 
 
 'The power and jurisdiction of Parliament, says Sir 
 Edward Coke, is so transcendent and absolute, that it 
 cannot be confined, either for causes or persons, within 
 any bounds. And of this high court, he adds, it may be 
 fairly said, " *S/ antiquitatem species^ est vetustissima ; si 
 dignitatem, est honoratissima ; si jurisdictionem, est capacis- 
 sima" It hath sovereign and uncontrollable authority in 
 the making, confirming, enlarging, restraining, abrogating, 
 repealing, reviving, and expounding of laws, concerning 
 matters of all possible denominations, ecclesiastical or tem- 
 poral, civil, military, maritime, or criminal ; this being the 
 place where that absolute despotic power, which must in all 
 governments reside somewhere, is entrusted by the constitu- 
 tion of these kingdoms.' 
 
 Professor Dicey's illuminating study on the Laiu of the 
 Constitution is in large part an extended commentary on the 
 same text.^ Thus, in England, the Legislature is Sovereign, 
 There is no superior authority by which it can be called to 
 account. 
 
 In America it is otherwise. The Federal Legislature has 
 
 * Purists will I trust forgive the use, in a general way, of * England * 
 for the cumbrous ' Great Britain and Ireland '. American readers will, 
 I am sure, pardon me for the use of * America ' where strictness would 
 demand the * United States of America '. ^ \, \()0. 
 
 ^ Law of the Constitution, by A. V. Dicey. London, 1885, and 
 many subsequent editions. 
 
CLASSIFICATION OF CONSTITUTIONS 19 
 
 no power to amend or alter the Constitution, and even in 
 its ordinary legislation it works with the fear of the judicial 
 decisions of the Supreme Court for ever before its eyes. 
 For the Court is not only, as in England, the interpreter of 
 the law, but the interpreter of the Constitution.^ It has to 
 decide not merely whether a given law is or is not applicable 
 to a given case but whether the law itself is legal ; whether, 
 in fact, the Legislature did or did not exceed its constitu- 
 tional powers in its enactment. I am not, for the moment, 
 concerned to insist upon the enormous power thus con- 
 ferred upon the Judiciary ; that is a point which will engage 
 our attention later on.^ My immediate object is to contrast 
 the unlimited competence of the Sovereign Legislature of 
 England with the strictly limited authority of the non- 
 Sovereign Legislature of the great Federal Republic of the 
 West. In order to procure an amendment of the American 
 Constitution it is necessary to put in operation the most 
 elaborate machinery. Article V of the Federal Constitution 
 declares : 
 
 * The Congress, whenever two thirds of both houses shall 
 deem it necessary, shall propose amendments to this Consti- 
 tution, or, on the application of the legislatures of two thirds 
 of the several States, shall call a convention for proposing 
 amendments, which in either case shall be valid to all 
 intents and purposes, as part of this Constitution, when 
 ratified by the legislatures of three fourths of the several 
 States, or by conventions in three fourths thereof, as the one 
 or the other mode of ratification may be proposed by the 
 Congress, provided that no amendments which may be made 
 prior to the year one thousand eight hundred and eight, 
 shall in any manner affect the first and fourth clauses in the 
 ninth section of the first article ; and that no State, without 
 its consent, shall be deprived of its equal suffrage in the 
 Senate.' 
 
 It will be observed, therefore, that no amendment can be 
 even proposed without the assent of a two-thirds majority of 
 
 * For precise sense of this phrase cf. infra^ pp. 292-3. 2 chapter xii. 
 
 £ 2 
 
20 INTRODUCTORY 
 
 both Houses of the Federal Legislature, or, alternatively, 
 of two-thirds of the several States ; and that such amend- 
 ment must, in its approved form, be ratified by three-fourths 
 of the constituent States. Under these circumstances it is 
 not surprising to learn that for sixty years (1804-64) there 
 was no amendment at all in the Federal Constitution, and 
 that only fifteen amendments in all were carried during the 
 first hundred years of its existence. No one, therefore, will 
 dispute the assertion of a distinguished American publicist ^ 
 that there is no Constitution in Europe so difficult of amend- 
 ment as that of America. 
 
 Conversely there is no other European Constitution so 
 easy of amendment as that of England. Under the English 
 Constitution there would be no greater difficulty, in a formal 
 and legal sense, in decreeing the abolition of the House of 
 Lords or the House of Commons, than in procuring an Act 
 for the construction of a tramway between Oxford and 
 Reading. 
 
 In respect to the machinery for constitutional amendment, 
 most Constitutions occupy a position midway between that 
 of England and that of America. In France, for example, 
 revision must be demanded by both Houses. When their 
 assent has been procured, the particular amendment must be 
 submitted to the two Houses — the Senate and the Chamber 
 of Deputies — in joint Session, acting as the ' National As- 
 sembly', and sitting for this special purpose not in Paris 
 but at Versailles. For the carrying of such an amendment 
 a simple majority suffices. In France, therefore, the process 
 is not difficult or elaborate. In Sweden a constitutional 
 amendment can be carried only after the interposition of 
 a General Election. It must be proposed in one Riksdag 
 and then submitted to the next. This amounts almost to a 
 Referendum — a submission of constitutional amendment to 
 the judgement of the constituencies. A similar rule obtains 
 ^ Mr. Woodrow Wilson. 
 
CLASSIFICATION OF CONSTITUTIONS 21 
 
 in Norway. In Switzerland the Referendum is actually in 
 force. No change can be adopted without the directly 
 ascertained assent of the electors. In the German Empire 
 the machinery for constitutional legislation is the same as 
 for ordinary legislation. But there are two significant safe- 
 guards, (i) No State can be deprived of any right guaran- 
 teed to it by the Constitution, except with its own consent ; 
 and (2) Fourteen negative votes in the Federal Council 
 (Bundesrath) suffice to defeat any constitutional amend- 
 ment. The significance of this precaution is apparent when 
 it is remembered that Prussia alone commands seventeen 
 votes ^ in the Bundesrath ; and Bavaria, Saxony, and Wiir- 
 temberg fourteen between them. Thus any constitutional 
 amendment can be defeated either by Prussia alone, or by 
 a combination between the middle States, or by a combina- 
 tion between the small States. 
 
 One of the most recent, and to Anglo-Saxons one of the 
 most interesting Constitutions of the modern world contains 
 very elaborate provision for constitutional amendment. 
 Under the Australian Commonwealth Act^ any proposed 
 amendment must (r) pass both Houses of the Federal 
 Legislature by an absolute majority, or must pass one House 
 twice after an interval of three months ; (2) obtain the 
 assent of the people, expressed by means of a Referendum, 
 in a majority of the constituent States ; (3) be approved by 
 a majority of the voters who cast their votes, in the Common- 
 wealth as a whole. And even under these precautions, the 
 federal representation of the several States, may not be 
 altered except by the States concerned. 
 
 While, therefore, there is no Constitution quite so * rigid ' 
 as that of the United States,' there is none so entirely 
 
 1 Having purchased Waldeck (i), and got a Prussian Prince appointed 
 perpetual regent of Brunswick (2). 
 
 2 63 & 64 Vict. c. xii. 
 
 ^ With the possible exception of that of the Australian Common- 
 wealth. 
 
22 INTRODUCTORY 
 
 ' flexible ' as that of the United Kingdom. One word of 
 caution must however here be interposed. I refer, of course, 
 to legal ' rigidity ' and ' elasticity '. President Lowell has 
 lately warned us that the distinction between ' elasticity * 
 and ' rigidity ' has lost something of its practical importance 
 owing partly to the increasing variety in written Constitu- 
 tions and partly to the decreasing rigidity of rigid Constitu- 
 tions.^ Even in America the Law of the Constitution has 
 been supplemented and modified by numberless constitu- 
 tional conventions. The distinction may in practice have 
 become less important than it was. None the less I venture 
 to maintain that it is still sufficiently important and suffici- 
 ently clear to afford a useful basis for the scientific classifi- 
 cation of modern States. 
 
 It is, however, pertinent to observe that a ' rigid ' Consti- 
 tution is no longer — if it ever was — identical with a written 
 Constitution. As a matter of fact a written Constitution is 
 usually ' rigid ' in the sense that it provides special machinery 
 for its own amendment. But the rule is not invariable, 
 least of all in Constitutions modelled on that of England. 
 Thus the Italian Stafuto * contains no provision for amend- 
 ment, can be, and in fact has been altered by the ordinary 
 process of legislation ; and the same thing was true of the 
 French Charter of 1830. The last Spanish Constitution 
 omits all provision for amendment, but one may assume 
 that if it lasts long enough to require amendment the 
 changes will be made by ordinary legislative process.' ^ 
 
 Nevertheless the distinction between * written ' and * »n- 
 written ' constitutions would in practice correspond so 
 closely to that between ' rigid ' and * flexible ' that it is not 
 worth while to suggest it as a separate basis of classification. 
 
 A third differentia may be found in the position of the 
 Executive and in particular the relation of the Executive to 
 
 1 The Government of England, by A. Laurence Lowell, London, 1908, 
 c. i. ' Lowell, i. 3. 
 
CLASSIFICATION OF CONSTITUTIONS 23 
 
 the Legislature. The Executive may be either superior to. 
 co-ordinate with, or subordinate to the Legislature. In all 
 despotic monarchies the Executive is of course supreme ; 
 but having regard only to the typical and progressive States 
 of the modern world we may ignore the first relation and 
 consider those States only in which one of the two latter 
 relations prevail. We may classify them respectively as the 
 Presidential and the Parliamentary. In the United States, 
 for example, and in the German Empire, Executive and 
 Legislature are co-ordinate in authority ; in France and in 
 Great Britain, in the British Self-Governing Dominions, and 
 in all the other States, too numerous to mention, in which 
 the constitution has been consciously framed upon the 
 English model, the Executive is, in theory at least, subordin- 
 ated to the Legislature.' Whether in England, and possibly 
 elsewhere, the Executive is not, in practice, rapidly en- 
 croaching upon the Legislature, and even, in effect, reducing 
 the latter to a position of subordination, is a question which 
 may properly engage our attention later on. For the 
 moment I am concerned only with constitutional theory. 
 From this point of view the German Empire may perhaps 
 be regarded as being in a transitional state ; in the position 
 in which England found herself in the seventeenth century, 
 when King and Parliament were contending hotly for the 
 control of the Executive. 
 
 For this principle of ministerial responsibility Sir John 
 Eliot had died in prison ; for this principle John Pym was 
 prepared to put all to the hazard of the sword. Charles I 
 would have none of it. It is, he contended, * the undoubted 
 right of the Crown of England to call such persons to our 
 Secret Counsels to public employment and our particular 
 
 1 * Subordination ' is perhaps too strong a term in view of the fact, 
 pointed out by Sir William Anson , that the Executive can dissolve the 
 Legislature. The ' responsibility ' of Executive to Legislature is in 
 England, of course, unquestioned ; but responsibility is not precisely the 
 same thing as subordination. 
 
24 INTRODUCTORY 
 
 Service as we shall think fit.' To deny this right * were to 
 debar us that natural liberty all freemen have '. This was in 
 fact the essential point at issue in the great constitutional 
 contest of the seventeenth century. It is the essential point 
 at issue in the contest which seems to be impending in 
 Germany. 
 
 The fathers of the Constitution of the United States 
 deliberately decided against the principle embodied in the 
 Grand Remonstrance-, they decided, in fact, in favour of 
 the Monarchical as against the Parliamentary principle.' Or 
 rather, they preferred the practice of Cromwell to that of 
 Walpole, and the theory of Montesquieu to either. Irre- 
 sistibly attracted by the political philosophy of France they 
 adopted in its entirety Montesquieu's famous doctrine of the 
 ' Division of Powers '. Legislative, Executive, and Judiciary, 
 were to be strictly co-ordinate and absolutely distinct.^ 
 
 The Constitutions which have been deliberately modelled 
 upon our own have, on the other hand, naturally followed 
 the English practice in this essential point. So strongly is 
 this emphasized in the Self- Governing Colonies of the 
 British Empire, in Canada, Australia, New Zealand, and 
 the several South African Colonies, that they are actually 
 known as 'responsible', from the central fact of the re- 
 sponsibility of the Executive to the Legislature. In France, 
 Italy, Sweden, Norway, Austria, and Hungary, and in many 
 other States, the same principle holds. 
 
 It is time to summarize the conclusions at which we 
 seem to have arrived. 
 
 ^ The appointment of Cabinet Ministers is in theory subject to the 
 approval of the Senate, but the approval is in practice never withheld, 
 and the President's power of removal is absolute. 
 
 ^ I am not, of course, unmindful of the traditional view that the 
 American Constitution was modelled upon the theory as opposed to the 
 practice of the English Constitution, but I suggest what seems to me to 
 be a juster view. It is not possible to argue, in this place, the point in 
 detail. 
 
CLASSIFICATION OF CONSTITUTIONS 25 
 
 We have seen that the classical and time-honoured basis 
 of classification — the division of States into Monarchies, 
 Aristocracies, and Democracies — will not carry us very far 
 in the modern world. In its place, or perhaps in addition 
 to it, we have found by an inductive process, three new 
 differentiae, and we propose to assign the typical States of 
 the modem world to three categories : — 
 
 1. Simple (Unitary) or Composite (Federal) ; 
 
 2. Rigid or Flexible ; 
 
 3. Monarchical (Presidential) or Parliamentary.^ 
 Accepting these as the essential differentia, we get a series 
 
 of cross classifications as follows. The English Constitu- 
 tion is at once Unitary, Flexible, and Parliamentary ; that 
 of the United States : Federal, Rigid, and Presidential 
 (Monarchical) ; that of France : Unitary, Rigid, and Parlia- 
 mentary; that of Germany: Federal, Rigid, and Monarchical 
 (or Presidential); that of Austria - Hungary : Complex 
 (Personal Union), Flexible, and Parliamentary ; those of 
 Canada and Australia : Federal, Rigid, and Parliamentary. 
 
 With so much of preface, rendered necessary by the 
 attempt to find a satisfactory basis of classification for the 
 Constitutions of the modern world, I shall proceed, in 
 the next chapter, to discuss the outstanding characteristics 
 of our own Constitution. 
 
 ^ This, as is apparent from the next paragraph, is a ' cross ' classifica- 
 tion ; but it may be well specifically to point out that Federal Constitu- 
 tions are necessarily rigid. 
 
 fc 
 
CHAPTER II 
 
 THE SALIENT FEATURES OF THE ENGLISH 
 CONSTITUTION 
 
 * En Angleterre la Constitution pent changer sans cesse ; ou plutot 
 elle n'existe pas.'— Tocqueville. 
 
 * Many persons in whom familiarity has bred contempt, may think it 
 a trivial observation that the British Constitution, if not (as some call it) 
 a holy thing, is a thing unique and remarkable. A series of undesigned 
 changes brought it to such a condition, that satisfaction and impatience, 
 the two great sources of political conduct, were both reasonably gratified 
 under it. For this condition it became, not metaphorically, but literally, 
 the envy of the world, and the world took on all sides to copying it '. — 
 Sir Henry Maine. 
 
 * Le gouvernement d'Angleterre est plus sage parce qu'il y a un corps 
 qui Texamine continuellement, et qui s'examine continuellement lui- 
 meme : et telles sont ses erreurs, qu'elles ne sont jamais longues, et que 
 par I'esprit d'attention qu'elles donnent a la nation, elles sont souvent 
 utiles.' — Montesquieu, Grandeur et Decadence des Remains. 
 
 Of all the characteristic features of the English Constitu- 
 tion there is none which strikes so oddly the imagination 
 of foreign critics as the fact of perpetual and almost im- 
 perceptible modification. It was this which drew from 
 Tocqueville the famous aphorism that in England ' there is 
 no Constitution '. On the lips of a Frenchman, familiar with 
 a long succession of written Constitutions, each self-contained, 
 each complete and coherent, the remark is not merely intel- 
 ligible but obvious. ' For eighty years,' says M. Boutmy, 
 * French History shows us under this name [Constitution] 
 one single document conceived all at once, promulgated 
 on a given day, and embodying all the rights of Government 
 and all the guarantees of liberty in a series of connected 
 
THE ENGLISH CONSTITUTION 27 
 
 chapters.'^ American publicists also, baffled in their 
 investigations by the absence of a compact, accessible, and 
 written * Constitution ', are apt to utter the same complaint. 
 Being accustomed to an authoritative text on which to base 
 their critical commentaries, they find themselves at sea 
 when called upon to deal with a Constitution which rests 
 partly indeed upon Statute Law, but more largely upon 
 Common Law, and upon precedents, conventions, and 
 understandings. This being the case, a foreigner may well 
 be forgiven if he declares in his haste that in England the 
 Constitution does not exist. 
 
 But the observation is only partially accurate. It is true that 
 the process of modification is so rapid and so incessant that 
 a commentator may find himself out of date between the 
 composition of his work and its publication. For the Con- 
 stitution undergoes perpetual change not only by process of 
 positive legislation, but by the action of the Executive and 
 by the decisions of the Judiciary. Precedents are daily 
 created which may solidify into ' Conventions ', hardly less 
 potent than a legislative enactment. Understood in this 
 sense, Tocqueville was right in his assertion that in England 
 the Constitution does not exist. It is indisputably difficult, 
 •at any given moment, to describe with scientific accuracy a 
 Constitution which is in a state of perpetual flux. Such 
 a Constitution M. Boutmy picturesquely compares to un 
 chemin qui marche^ or * to a river whose moving surface glides 
 away at one's feet, meandering in and out in endless curves, 
 now seeming to disappear in a whirlpool, now almost lost to 
 sight in the verdure.' ^ 
 
 But it is easy to overestimate the importance of the dis- 
 tinction which here and elsewhere is implicitly drawn 
 between * written ' and ' unwritten ' Constitutions. A large 
 part of English Constitutional Law is based upon statutory 
 
 * Boutmy, Studies in Constitutional Law, p. 5. 
 "^ Ibid., p. 4. 
 
28 SALIENT FEATURES 
 
 enactments not less positive, though much less unalterable 
 than the clauses of the American Constitution or even those 
 of the French Constitution of 1875. To mention only a 
 few. The relations of England and Scotland are defined by 
 the Statute of 1707 ; those of Great Britain and Ireland by 
 that of 1800. Personal liberty rests mainly upon the great 
 Statute (the Habeas Corpus Act) of 1679. The preroga- 
 tives of the Crown are curtailed by the Great Charter of 
 1215, by the Petition of Right (1628), by th eBill of R ights. 
 (1689), and by the Act of Settlement (i 700). The qualifica- 
 tions of Parliamentary Electors and the number and limits of 
 the Parliamentary Constituencies are defined by Acts of 
 1832, 1867, 1884, and 1885. The existing system of Local 
 Government rests upon the Statutes of 1835, 1888, and 
 1894. It is true that these Acts possess, in a technical 
 sense, no superior validity to * ordinary ' laws. Enacted by 
 the same process, they are equally liable to modification or 
 repeal. It is, moreover, true that they cover only a small 
 fragment of the whole ground. Even a complete collection 
 or enumeration of the Statutes which may be termed * Con- 
 stitutional' would leave an inquirer in dense ignorance 
 of the most important and characteristic feature of the Eng- 
 lish Constitution. Thus no research, however laborious, 
 which was confined to legal texts would reveal the constitu- 
 tional relations between the two Houses of the Legislature ; 
 or the relations between the Legislature and the Executive ; 
 or the position and functions of the Cabinet ; or the relations 
 between the Parliamentary chiefs of Departments and the 
 permanent Civil Service ; or the precise political functions of 
 the Crown. This vagueness or reticence is at once the 
 despair and the admiration of foreign publicists. At every 
 turn they are baffled by the lack of authoritative texts. But 
 they are candid enough to perceive and to emphasize the 
 political advantages of the English method. 
 
 ' The English ', writes M. Boutmy, * have left the different 
 
OF THE ENGLISH CONSTITUTION 29 
 
 parts of their Constitution just where the wave of History 
 had deposited them ; they have not attempted to bring them 
 together, to classify or complete them, or to make a con- 
 sistent and coherent whole. This scattered Constitution 
 gives no hold to sifters of texts and seekers after difficulties. 
 It need not fear critics anxious to point out an omission, or 
 theorists ready to denounce an antinomy. ... By this means 
 only can you preserve the happy incoherences, the useful 
 incongruities, the protecting contradictions which have such 
 good reason for existing in institutions, viz. that they exist 
 in the nature of things, and which, while they allow free 
 play to all social forces, never allow any one of these forces 
 room to work out of its allotted line, or to shake the founda- 
 tions and walls of the whole fabric. This is the result which 
 the English flatter themselves they have arrived at by the 
 extraordinary dispersion of their constitutional texts, and 
 they have always taken good care not to compromise the 
 result in any way by attempting to form a code.' ^ 
 
 The English Constitution is, therefore, to a large extent 
 an. t/mvn'f^en Constitution ; it is entirely a Flexible Constitu- 
 tion. The two characteristics, though obviously connected, 
 are as we have already seen, by no means identical, and are 
 not necessarily coexistent. In the majority of cases a written 
 Constitution provides, and perhaps ought to provide, some 
 special machinery for constitutional amendment. In others, 
 as in those of Italy and Spain, this important matter is left 
 to ordinary legislative process. But the English^ Constitu- 
 tion is undeniably and characteristically flexible. / Not only 
 is there a complete and conspicuous absence of any special 
 machinery, but the process of change admittedly goes on 
 almost imperceptibly. Submitted to scientific observation 
 at considerable intervals of time, it is possible to perceive 
 and to register certain changes in the balance of the various 
 parts of the constitutional machine; but it is quite impossible 
 to indicate with precision the moment at which the changes 
 occurred. To take a single instance in illustration. Bagehot 
 
 * Boutmy, Sttidies, p. 7. 
 
30 SALIENT FEATURES 
 
 wrote his classical treatise on the English Constitution ^ in 
 the closing years of the Palmerstonian era, on the eve of 
 the Reform Act of 1867. Since that date many changes 
 have been effected in the Constitution which are embodied 
 in positive legislative enactments and which any diligent 
 student can discover in the Statutes, In Parliamentary pro- 
 cedure also changes have occurred which are registered in 
 Standing Orders, and may be learnt from manuals. But 
 other changes have taken place which, though not less 
 important, are far more subtle and elusive. One such 
 change is to be found in the relations of the formal Execu- 
 tive to the formal Legislature, of the Cabinet to Parliament. 
 Bagehot, writing in 1863, lays stress upon the subordina- 
 tion of the Executive to the Legislature. President Lowell,'^ 
 in an analysis not less accurate and not less masterly than 
 that of Bagehot but written forty years later, emphasizes the 
 subordination of the Legislature? to the Execu^ve, especially 
 in the domain of legislation. 'The programme of the 
 ministers ', he writes, * must be accepted or rejected as a 
 whole, and hence the power of initiative, both Legislative 
 and Executive, must rest entirely with them. This is clearly 
 the tendency in Parliament at the present day. The House 
 of Commons is finding more and more difficulty in passing 
 any effective vote, except a vote of censure. It tends to 
 lose all powers except the power to criticize and the power 
 to sentence to death.' ^ The change that has thus been 
 effected in the balance of our constitutional machinery is 
 obvious and undeniable, but it has been the result, not of 
 formal resolution, still less of positive legislation, but of a 
 gradual and imperceptible modification of usage?.* 
 
 The English Constitution, then, belongs emphatically to 
 
 ^ Walter Bagehot, The English Constitution. London, 1863. 
 ^ A. L. Lowell, The Government of England, 2 vols. London, 1908. 
 3 Lowell, i. 355. 
 
 * The point, used here simply for purposes of illustration, will be 
 elaborated in Chapters iv and x. 
 
OF THE ENGLISH CONSTITUTION 31 
 
 the category o^^kxible as opposed to .Rigid Constitutions, 
 and this characteristic feature is proved by several infallible 
 tests. It possesses no special machinery for constitutional 
 amendment; it draws no distinction between * ordinary' 
 and ' constitutional ' laws, and it acknowledges, in the fullest 
 sense, the doctrine of Parliamentary Sovereignty. But 
 above all, as we have seen, observation proves conclusively 
 that in the functions of the various organs of the body 
 politic perpetual modification is, as a matter of fact, taking 
 place. 
 
 This is not the place to discuss at length the advantages 
 appertaining respectively to Rigid and Flexible Constitu- 
 tions. Sir Henry Maine, writing with the fear of coming 
 * Democracy' before his eyes, praises and perhaps over- 
 praises the precautions which certain typical Democracies 
 have adopted against innovation : 
 
 ' The powers and disabilities attached to the United States 
 and to the several States by the Federal Constitution . . . 
 have determined the whole course of American history. 
 That history began, as all its records abundantly show, 
 in a condition of society produced by war and revolution, 
 which might have condemned the great Northern Republic 
 to a fate not unlike that of her disorderly sisters in South 
 America. But the provisions of the Constitution have acted 
 on her like those dams and dykes which strike the eye of 
 the traveller along the Rhine, controlling the course of 
 a mighty river which begins amid mountain torrents, and 
 turning it into one of the most equable water-ways in the 
 world. The English Constitution, on the other hand, like 
 the great river of England, may perhaps seem to the ob- 
 server to be now-a-days always more or less in flood, owing 
 to the crumbling of the banks and the water poured into it 
 from millions of drain pipes.' ^ 
 
 Maine also insists, and rightly, on the ' legislative in- 
 fertility ' of Democracies, ancient and modern alike. * There 
 
 ^ Maine, Popular Government, p. 245. 
 
32 SALIENT FEATURES 
 
 is no belief less warranted by actual experience than that a 
 democratic republic is after the first and in the long run 
 given to reforming legislation.' Maine's commendation may 
 perhaps be discounted. Mr. Bryce, on the other hand, will 
 not be suspected of any irrational resistance to reform, or of 
 any anxiety to stand immovable in the ancient ways. But 
 no man has borne more eloquent testimony to the ad- 
 vantages derived by the United States from the ' rigidity ' 
 of its Constitution : 
 
 '. The rigid Constitution of the United States 
 
 has rendered, and renders now, inestimable services. It 
 opposes obstacles to rash and hasty change. It secures 
 time for deliberation. It forces the people to think seriously 
 before they alter it or pardon a transgression of it. It 
 makes legislatures and statesmen slow to over-pass their 
 legal powers, slow even to propose measures which the 
 Constitution seems to disapprove. It tends to render the 
 inevitable process of modification gradual and tentative, the 
 result of admitted and growing necessities rather than of 
 restless impatience. It altogether prevents some changes 
 which a temporary majority may clamour for, but which will 
 have ceased to be demanded before the barriers interposed 
 by the Constitution have been overcome. It does still more 
 than this. It forms the mind and temper of the people. 
 It trains them to habits of legality. It strengthens their 
 conservative instincts, their sense of the value of stability 
 and permanence in political arrangements. It makes them 
 feel that to comprehend their supreme instrument of Govern- 
 ment is a personal duty, incumbent on each one of them. 
 It familiarizes them with, it attaches them by ties of pride 
 and reverence to those fundamental truths on which the 
 Constitution is based. These are enormous services to 
 render to any free countr)^. . . ' ^ 
 
 To such considerations great weight must be attached. 
 But the fact should not be overlooked that the conservative 
 tendencies exhibited by the United States and Switzerland 
 may be otherwise explained. They are alike not merely in 
 
 * Bryce, American Commonwealth, i. 396. 
 
OF THE ENGLISH CONSTITUTION 33 
 
 their democratic but in their federal character. This is true 
 also of the Australian Commonwealth, the rigidity of whose 
 Constitution is second only to that of the United States. 
 That the delicate equipoise of State and Federal rights 
 should be liable to be upset by the ordinary, day by day, 
 procedure of the Legislature would be deemed intolerable, 
 alike by the people and by the constituent States.^ Thus in 
 a Federal State ' rigidity ' is, in fact, a primary condition of 
 existence. 
 
 In a Unitary State, on the other hand, it is far from 
 being indispensable, and Flexible Constitutions possess in 
 their turn at least one supreme advantage. They bend, 
 but they do not break. Admitting easily, perhaps too 
 easily, of reform, they are on that account the less suscep- 
 tible to revolution. ' In France,' said Napoleon III, * we 
 make revolutions but not reforms.' In England we make 
 reforms but not revolutions. 
 
 We are thus led by a natural transition to notice another 
 feature of the English Constitution closely connected with 
 that of flexibility; that of unbroken continuity. With 
 characteristic insular disdain Arthur Young derided the 
 efforts of the French legislators who sought to 'make' a 
 Constitution ' as though a Constitution were a pudding to 
 be made from a receipt'. In contradistinction to these 
 
 * made ' Constitutions that of England has frequently been 
 compared to an organism possessed of a capacity for con- 
 stant and continuous growth. Biological analogies must not 
 be pushed too far in Politics. But if the fact of continuity 
 be a merit or advantage it cannot be denied to the English 
 Constitution. Freeman insisted upon this feature with 
 characteristic emphasis, but with unquestionable accuracy : 
 
 * The continued national life of the people, notwithstanding 
 foreign conquests and internal revolutions, has remained 
 unbroken for fourteen hundred years. At no moment has 
 
 * Cf. Sidgwick, Elements of Politics^ c. xxvi. § 4. 
 Xiao c 
 
34 SALIENT FEATURES 
 
 the tie between the present and the past been wholly rent 
 asunder ; at no moment have Englishmen sat down to put 
 together a wholly new Constitution, in obedience to some 
 dazzling theory. Each step in our growth has been the 
 natural consequence of some earlier step; each change in 
 our Law and Constitution has been, not the bringing in of 
 anything wholly new, but the development and improvement 
 of something that was already old. Our progress has in 
 some ages been faster, in others slower ; at some moments 
 we have seemed to stand still, or even to go back ; but the 
 great march of political development has never wholly 
 stopped ; it has never been permanently checked since the 
 days when the coming of the Teutonic conquerors first 
 began to change Britain into England.' ^ 
 
 Even our Revolutions have been proverbially conservative, 
 and the primary anxiety of reformers has been to show that 
 proposed innovations were in reality nothing but reversions , 
 to an earlier type. Nor, as a rule, has it been difficult to 
 do so. ' By far the greatest portion of the written or statute 
 laws of England consist', as Palgrave points out, *of the 
 declaration, the re-assertion, repetition, or the re-enactment, 
 of some older law or laws, either customary or written, with 
 additions or modifications. The new building has been 
 raised upon the old ground-work : the institutions of one 
 age have always been modelled and formed from those of 
 the preceding, and their lineal descent has never been 
 interrupted or disturbed.' 
 
 The point is one which demands no elaborate illus- 
 tration. Nor is the explanation far to seek. National 
 character has something to say to it ; geographical situation 
 has even more, and the peculiar genius of the Constitution 
 has most of all. A good deal of scorn — only partially 
 deserved — is sometimes poured upon 'national character' 
 as the last resort of bankrupt criticism. But the thing exists, 
 
 ' Freeman, English Constitution ^ p. 19. 
 
OF THE ENGLISH CONSTITUTION 35 
 
 and must unquestionably be counted among the factors that 
 have gone to the moulding of the English Constitution, 
 and particularly to the preservation of its continuity. 
 
 * The best instances of Flexible Constitutions ', as Mr. 
 Bryce has pointed out, 'have been those which grew up 
 and lived on in nations of a conservative temper, nations 
 which respected antiquity, which valued precedents, which 
 liked to go on doing a thing in the way their fathers had 
 done it before them. This type of national character is what 
 enables the Flexible Constitution to develop ; this supports 
 and cherishes it. The very fact that the legal right to make 
 extensive changes has long existed, and has not been abused, 
 disposes an assembly to be cautious and moderate in the 
 use of that right.' ^ 
 
 Again, the degree of our * insularity ' has been the subject 
 of debate : but ' insular' we have been and are as compared 
 with the nations of the Continent ; not indeed cut off from 
 foreign influences or even foreign conquest, but far less 
 exposed to violent cataclysms, and far more immune from 
 revolutions imposed from without. As to the effect of the 
 flexibility of the Constitution upon its continuity enough has 
 been already said. 
 
 I pass on to notice another well-marked feature of the 
 English Constitution — its Legality and Impariiality.^ To the 
 illustration of these characteristics, Mr. Dicey has devoted 
 a large part of his great work on The Law of the Constitution^ 
 and in what immediately follows I can do no more than 
 summarize his argument. By the * legality and impartiality ' 
 of English Institutions I mean to express briefly the rule, 
 predominance or supremacy of law. But what is meant 
 by the 'rule of law'? This 'rule' may be resolved into 
 three distinct propositions : — 
 
 (i) 'That no man is punishable or can be lawfully made 
 to suffer in body or goods except for a distinct breach of 
 
 * Studies in History and Jurisprudence, i. 166. 
 C 2 
 
36 SALIENT FEATURES 
 
 law established in the ordinary legal manner before the 
 ordinary courts of the land ' ; 
 
 (2) ' That not only is no man above the law but (what is 
 a different thing) that here every man whatever be his rank 
 or condition is subject to the ordinary law of the realm 
 and amenable to the jurisdiction of the ordinary tribunals ' ; 
 and 
 
 (3) ' That with us the law of the Constitution, the rules 
 which in foreign countries naturally form part of a constitu- 
 tional code, are not the source but the consequence of 
 the rights of individuals as defined and enforced by the 
 courts '. 
 
 For a full explanation and illustration of these important 
 propositions reference must be made to Mr. Dicey's work.* 
 But no review, however summary, of the leading features of 
 our Constitution could pretend to completeness which did 
 not emphasize these fundamental conceptions. 
 
 The first asserts, in the most emphatic manner, the 
 right of the individual citizen to personal liberty. No man 
 is punishable except for a proved offence against the law. 
 Observe two points,: (i) there must be a distinct breach of 
 the law ; and (2) this breach must be proved in the ordinary 
 legal manner before the ordinary courts of the land. To 
 us such a proposition must seem to be an obvious common- 
 place. But if we would understand its full significance, we 
 need only turn to the experience of France under the Ancien 
 Regime, or to our own in the first half of the seventeenth 
 century. Charles James Fox, on hearing of the fall of the 
 Bastille (July 14, 1789) is said to have exclaimed : * How 
 much the greatest and best event that ever happened in 
 the history of the world ! ' To us such an exclamation 
 would seem to be the outcome of political hysteria. It 
 becomes intelligible, however, when we realize that the 
 Bastille was the outward and visible sign of a judicial system 
 ^ Law of the Constitution ^ esp. Lectures V, VI, VII. 
 
OF THE ENGLISH CONSTITUTION 37 
 
 which was the negation of the first proposition of our * rule 
 of law '. Hundreds of men had under that system suffered 
 loss of liberty not for distinct and proven breaches of the 
 law but because they had rendered themselves obnoxious 
 to those who were powerful enough to procure a lettre de 
 cachet consigning their enemies to imprisonment which 
 might be lifelong. The Bastille stood not for the rule of 
 law, but for the rule of privilege. Hence its destruction 
 was hailed, alike by Frenchmen and by sympathizers abroad, 
 with an enthusiasm which to the average Englishman seems 
 hysterical. In proportion, however, as we appreciate the 
 blessings of the * rule of law ', we can sympathize with the 
 destruction of the rule of might. 
 
 But it is unnecessary to go to France to illustrate the 
 significance of this feature of our Constitution. The great 
 contest of the seventeenth century in England is some- 
 times regarded too exclusively from a parliamentary 
 standpoint. It was, however, a struggle not merely for 
 parliamentary liberty, but for personal liberty. Both were 
 threatened by the methods adopted by the Stuarts. Many 
 men suffered both in purse and person who had never been 
 proved guilty of any breach of the law established in the 
 ordinary legal manner before the ordinary courts. Various 
 extraordinary tribunals deprived the subjects of those 
 liberties which were thought to be guaranteed by Magna 
 Carta and many subsequent enactments. The Court of 
 Star Chamber, the High Commission Court, the Council 
 of the Welsh Marches, the Council of the North, the 
 Castle Chamber in Dublin, and other Prerogative Courts, 
 grievously oppressed the subjects of the King. The ' High 
 Commission grew to such excess of sharpness and severity 
 as was not much less th^n the Romish Inquisition ' ; the 
 'Court of Star Chamber both abounded in extravagant 
 censures . . . whereby His Majesty's subjects have been 
 oppressed by grievous fines, imprisonments, stigma tizings. 
 
38 SALIENT FEATURES 
 
 mutilations, whippings, pillories, gags, confinements, banish- 
 ments. . . .' * So ran the Grand Remonstrance^ and few Acts 
 of the Long Parliament were passed with such universal 
 acclaim as that which provided for the abolition of the 
 Star Chamber and other extraordinary tribunals. 
 
 But the mischief was even more deep seated. The exten- 
 sion of the jurisdiction of the extraordinary courts was 
 bad enough, but royal interference with the course of justice 
 in the ordinary courts was, if anything, worse. Nowadays 
 we have two safeguards ; there must be, in the first place, 
 a distinct breach of the law, and, in the second, this breach 
 must be proved in an * ordinary ' court. In the first four 
 decades of the seventeenth century the citizen had neither. 
 He was liable to punishment by an extraordinary tribunal, 
 and he was similarly liable at the hands of an ordinary 
 tribunal without a proved breach of the law. The leading 
 case, in illustration of the latter point, is that of Sir Thomas 
 Darnel or the Five Knights (1627). Darnel and others 
 having been committed to prison by the Privy Council for 
 refusal to contribute to the forced loan of 1626 appealed to 
 the Court of King's Bench for a writ of Habeas Corpus. 
 Relying on the clause of Magna Carta which declared that 
 ' no man shall be imprisoned except by the legal judgement 
 of his peers or by the law of the land ' they urged that they 
 were at least entitled to know for what cause they were 
 detained in custody. The Crown lawyers contended that it 
 was sufficient return to a writ of Habeas Corpus to certify 
 that the prisoners were detained per speciale mandatum regis 
 — by the special orders of the King. The judges accepted 
 this view so far as to refuse to liberate the five knights on 
 bail, but, on the other hand, they declined to admit the 
 principle that the Crown might persistently refuse to show 
 cause. 
 
 The plea of prerogative was, therefore, for the moment 
 ^ Grand Remonstrance y §§ 52, 37. 
 
OF THE ENGLISH CONSTITUTION 39 
 
 successful. The discretionary power of the Crown — even 
 to the extent of depriving a subject of liberty — was not to be 
 denied by Stuart judges. But the triumph of the Crown — 
 none too emphatic — was of short duration. Nothing did 
 more to move the Parliament of 1628 to enthusiastic 
 acceptance of the Petition of Right than the doctrine 
 affirmed in the case of the Five Knights. The Petition 
 itself, after recital of the clause already quoted from The 
 Great Charter and subsequent Statutes, declared that 
 * against the tenor of the said Statutes . . . divers of your sub- 
 jects have of late been imprisoned without any cause showed, 
 and when for their deliverance they were brought before 
 your Justices, by your Majesty's writs of Habeas Corpus 
 . . . and their keepers to certify the causes of their detainer ; 
 no cause was certified, but that they were detained by your 
 Majesty's special command, signified by the Lords of your 
 Privy Council, and yet were returned back to several 
 prisons, without being charged with anything to which they 
 might make answer according to the law. . . .' The Petition 
 further demanded that * no freeman, in any such manner as 
 is before mentioned be imprisoned or detained '. ^ 
 
 Taken in conjunction with the abolition of the Preroga- 
 tive Courts by the Long Parliament (i 641) these clauses did 
 much to secure the liberty of the subject and to affirm the ' rule 
 of law '; but more was needed. The second half of the seven- 
 teenth century witnessed the completion of the process. 
 The Habeas Corpus Act of 1679 at last provided the neces- 
 sary guarantees for the safeguarding of a principle which had 
 long been theoretically accepted ; while the Act of Settlement 
 (i 700) removed the Judges from the control of the Executive 
 by enacting that they should in future hold office quam diu se 
 bene gesserint instead of during the good pleasure of the 
 King, and at the same time made them irremovable except 
 
 * Gardiner, History of England^ vi. 313, and Select Documents^ 
 pp. 2, 4. 1 
 
40 SALIENT FEATURES 
 
 on a joint address from both Houses of Parliament. Thus 
 was the first ' rule of law ' definitely established, and the 
 personal liberty of the subject guaranteed. 
 
 But if the first rule illustrates the ' legality ' of our Con- 
 stitution the second supplies a guarantee for its impartiality. 
 
 It is commonly said that in England 'there is one law 
 for all ', that ' all men are equal before the law '. It may be 
 doubted whether half the people who quote these aphorisms 
 are aware of their precise significance. They not only 
 affirm an important principle, but point an instructive con- 
 trast. In England not only is no man ' above the law ', but 
 every man is subject to the ordinary law of the realm and 
 amenable to the jurisdiction of the ordinary tribunals. Upon 
 this principle depends (i) the responsibility of all officials 
 from the highest to the lowest, and (2) the right of the sub- 
 ject, however humble or obscure, to seek redress for any 
 injury or wrong inflicted by them, and (3) to seek it in the 
 ordinary tribunals. This vastly important right accrues from 
 the fact that in England we know nothing of administrative 
 lata or administrative tribunals. In France, on the con- 
 trary, the whole administrative system rests upon the exist- 
 ence of administrative law dispensed in special administra- 
 tive tribunals. The resulting difference can be brought 
 home by a very simple illustration. Driving across London 
 from Victoria to Paddington, you find Park Lane closed by 
 order of the Police authorities or the First Commissioner of 
 Works. As a result you miss your train at Paddington and 
 consequently fail to fulfil an engagement. If you have 
 reason to suspect that the Police or the Board of Works 
 have exceeded their authority it is open to you to bring an 
 action for damages and the action will lie in an ordinary 
 court and be decided by ordinary rules of law. A similar 
 accident befalls you in Paris. But in that case redress 
 must be sought in an Administrative Court and the issue 
 being one between a private citizen and a Government 
 
OF THE ENGLISH CONSTITUTION 41 
 
 official will be decided not according to the ordinary rules 
 of law, but by special rules known as droit administratif. 
 It is not difficult to understand what strength such a system 
 imparts to the Executive Officers of Government, and, on 
 the other hand, how seriously it curtails the liberty of the 
 individual citizen. Of all the guarantees for their liberty 
 the most effective is to be found in the responsibility of all 
 officials, from the highest to the lowest, to the ordinary law 
 administered in the ordinary courts. 
 
 The matter is one which demands exhaustive treatment 
 and illustration. I allude to it here merely with the re- 
 stricted object of emphasizing a special feature of the 
 English Constitution, its inherent legality, and its peculiar 
 impartiality as between the Government and its officials 
 and the private citizen. 
 
 Not less significant is the third of Mr. Dicey's propositions 
 on the Rule of Law ; — the fact that in England the rights of 
 individuals are the source and not the consequence of the 
 Law of the Constitution. But significant as it is, it raises 
 questions which may be more conveniently discussed 
 later on. 
 
 It remains to notice another_putstanding feature of the 
 English Constitution — lis^Unreality^. It has been said with 
 much speciousness that in the English Constitution ' nothing 
 is what it seems or seems what it is '. Bagehot doubtless 
 had this characteristic in view when he declared, despite a 
 Monarchy unequalled in dignity and splendour, despite 
 a House of Lords, largely hereditary in composition, that 
 we lived 'under a veiled republic'. Bagehot wrote at a 
 moment when the Crown was temporarily withdrawn from 
 the public gaze. How courageously and conscientiously 
 Queen Victoria continued, despite her private sorrows, to 
 transact business of State is now known to all. But five- 
 and-forty years ago it was known to few, and a publicist 
 might be justified in a description which would no longer 
 
42 THE ENGLISH CONSTITUTION 
 
 be accepted as accurate. But it remains true that language 
 and forms are still in use which were appropriate to a time 
 when the Crown was the real ruler of the realm, but which 
 have now become archaic if not actually misleading. Again : 
 we habitually speak of Parliament as the Legislature, of the 
 Cabinet as the Executive, whereas the fact is that the Cabinet 
 has, to a large extent, usurped the legislative function. It 
 is almost solely responsible for the selection of the topics of 
 legislation ; it determines the order of legislation, and it 
 gives to legislative projects both their colour and form. In 
 a word the Cabinet has secured the vastly important right 
 of initiation. But with a fine disregard for actualities we 
 continue to describe the Cabinet as an executive and not 
 a legislative body. Once again : in theory, the legislative 
 power of the House of Lords is co-ordinate with that of the 
 House of Commons ; in practice, as every one knows, this 
 is very far from being the case. In theory, the King still 
 selects the Ministers of State who are still known as ' His 
 Majesty's Servants'. Even in the choice of the Prime 
 Minister the Crown is restricted within narrow limits, and 
 in regard to other political appointments the Prime Minister 
 is all-powerful. 
 
 These ' unrealities ', this wide divergence between theory 
 and fact, render it peculiarly difficult to analyse or to describe 
 the actual working of English institutions. Foreigners in 
 particular find them, to an exceptional degree, elusive, owing 
 to the combination of 'unreaHty' and 'flexibility': of per- 
 petual change, and wide variations between theory and fact. 
 
CHAPTER III 
 
 THE EXECUTIVE: (i) FORMAL: THE CROWN 
 
 * Nee regibus infinita aut libera potestas.' — Tacitus, Germania. 
 
 * Rex autem habet superiorem, Deum scilicet ; item legem per quam 
 factus est rex ; item curiam suam, videlicet comites, barones, quia comi- 
 tes dicuntur quasi socii regis, et qui habet socium habet magistrum : et 
 ideo si rex fuerit sine fraeno, id est sine lege, debent si fraenum ponere, 
 nisi ipsimet fuerint cum rege sine fraeno.' — Bracton (13th century). 
 
 * A King of England cannot at his pleasure make any alterations in 
 the laws of the land, for the nature of his government is not only regal 
 but political.'— Sir John Fortescue, De Laudibus Legum Angliae 
 (15th century). 
 
 * Lex facit regem ; the King's grant of any favour made contrary to 
 the law is void; what power the King hath he hath it by law, the 
 bounds and limits of it are known.'*— Hooker (16th century). 
 
 * The executive part of Government ... is wisely placed in a single hand 
 by the British Constitution for the sake of unanimity, strength and 
 despatch. The King of England is therefore, not only the chief but, 
 properly the sole magistrate of the nation ; all others acting by com- 
 mission from and in due subordination to him.' — Blackstone (i8th 
 century). 
 
 * The direct power of the King of England is very considerable. His 
 indirect and far more certain power is great indeed.' — Burke. 
 
 ' Little are they who gaze from without upon long trains of splendid 
 equipages rolling towards a palace conscious of the meaning and force 
 that live in the forms of a Monarchy, probably the most ancient, and 
 certainly the most solid and most revered in all Europe. The acts, the 
 wishes, the example of the Sovereign in this country are a real power. 
 An immense reverence and tender affection wait upon the person of the 
 one permanent and ever faithful guardian of the fundamental conditions 
 of the Constitution.'— W. E. Gladstone (19th century). 
 
 An attempt was made in the preceding chapter to indi- 
 cate a few of the salient characteristics of English Institu- 
 tions as a whole : their extraordinary flexibility ; their 
 unbroken historical continuity ; their ' legality ' or sub- 
 
44 ^5- THE; EXECUTIVE 
 
 ordination to the rule of law, and their unreality — the wide 
 divergence between the formal and the practical, between 
 theory and fact. 
 
 In the present and following chapters I propose to in- 
 vestigate the structure of the State : to indicate the functions 
 and sketch briefly the history of the chief organs of govern- 
 ment. Those organs in England, as in all civilized States 
 of the modern world are three : (i) that which is concerned 
 with the laying down of general rules — the Legislature or 
 law-making organ ; (2) that which is concerned with the 
 application of general rules to particular cases — the Judiciary ^ 
 or law-interpreting organ ; and (3) that which is concerned 
 with enforcing the orders of the Courts, and the rules laid . 
 down by statute, and generally administering the business 
 of the State — the Executive. 
 
 According to the modern theory, which has prevailed 
 from Montesquieu onwards, it is desirable, in the interests 
 of good government, that these functions should be per- 
 formed by different people, organized into distinct Institu- 
 tions. This doctrine of the * separation of Powers ' was all- 
 powerful at the time when the American Constitution was 
 framed and was largely responsible for several of its most 
 characteristic features. It was in pedantic adherence to the 
 same principle that the Constitution makers of the French 
 Revolution decreed the divorce of the Executive from the 
 Legislature. Theoretically, the same principle has long 
 been accepted by publicists in England, and has practically 
 influenced the development of English Institutions. 
 
 It would indeed be hardly an exaggeration to say that the 
 history of Political Institutions in England is the history of 
 the differentiation of the functions of the Legislature, the 
 Executive, and the Judiciary. In Anglo-Saxon times all 
 three functions were performed by the King. The King was 
 the supreme Legislator, though always 'with the counsel 
 and consent of the " wise " '. Thus we have the Dooms of 
 
(i) FORMAL: THE CROWN 45 
 
 Ethelbert, of Ine, of Alfred, of Edward the Elder, of Edgar, 
 and the rest. But this legislation is concerned largely 
 with what we should now regard as Executive business — 
 primarily with the preservation of the peace. The King, 
 again, is the supreme Executive : the leader of the host 
 in arms, the guardian of the * King's Peace '. The King, 
 finally, is the supreme Judge. In theory, indeed, there has 
 been little change in this respect between the days of 
 Edward the Elder and those of Edward VII. Now, as then, 
 the King, with the counsel and consent of the wise, makes 
 the laws ; the King, through the mouth of his Judges, 
 interprets the law, and the King, with the aid of a vastly 
 complicated administrative machine, puts the law into 
 execution. But the point to observe is that nowadays the 
 King has transferred his several functions to separate bodies. 
 In early times it was otherwise. This transference and 
 specialization of functions was, however, a slow process. 
 The King's Court {Curia Regis) was, in Norman and early 
 Angevin times. Legislature, Executive, and Judiciary in one. 
 We should now deem it a hardship if in a dispute with 
 a tax-collector (Executive) we could not appeal to a judicial 
 tribunal which through the * King's Court ' could be relied 
 upon to decide impartially between the claims of the Crown 
 and those of a private citizen. But in the twelfth century the 
 functions of the Judges were at least as much fiscal as 
 judicial. The same thing is true of the King's local repre- 
 sentative, the shire-reeve.^ It is no less true of the Tudor 
 * man-of-all-work ' — the Justice of the Peace.* The * Stacks 
 of Statutes', under which Lombarde groaned, assigned to 
 the county-magistrate functions which were partly judicial, 
 partly legislative, partly administrative. He had, for example, 
 to try offenders against the law, to relieve the poor, to fix 
 wages, and to ' set on work ' the lusty unemployed. Such 
 a confusion of functions seems to the citizen of the modern 
 ^ See infra^ c. xiii. 
 
46 THE EXECUTIVE 
 
 State, and more particularly to the modern Englishman, to 
 be a serious menace to personal liberty. When judges are 
 makers as well as interpreters of the law no one knows (to 
 use a colloquialism) ' where he stands '. ' Si la puissance 
 de juger,' writes Montesquieu, ' etait jointe a la puissance 
 legislative, le pouvoir sur la vie et la liberte des citoyens 
 serait arbitraire,' ^ and to make members of the Executive 
 judges in all cases which concern administrative acts seems 
 to the Englishman hardly less destructive of liberty than to 
 combine the functions of law-maker and judge. 
 
 The principle of the ' separation of powers ' being thus 
 generally admitted, we may proceed to consider first the 
 history, position, and functions of the Executive in England. 
 If we were approaching our subject deductively from the 
 point of view of political theory^ it would be more logical, 
 since laws must be made before they can be administered, 
 to begin with the law-making organ and consider the prob- 
 lem of the Legislature. But our method is historical or 
 inductive, and that being so we may properly begin, for 
 reasons which will appear later, with the Executive. 
 
 The problem to be solved has never been better stated 
 than by an old-fashioned writer. 'The great problem of 
 Government is to make the Executive power sufficiently 
 strong to procure the peace and order of society and yet 
 not to have it sufficiently strong to disregard the wishes 
 and happiness of the community.'* That end has been 
 practically secured in England, as will be shown presently, 
 by a device which has given to the English Constitution its 
 most fundamental, most characteristic, and perhaps most 
 interesting feature. But supreme Executive authority re- 
 mains, as it always has been, vested in the Crown. With 
 the position of the Crown, therefore, we begin our investi- 
 gation. 
 
 ^ Esprit des Loisy xi. c. vi. 
 
 =* William Smyth, Regius Professor of Modem History at Cambridge 
 (1807-49). 
 
(i) FORMAL: THE CROWN 47 
 
 The history of the English Monarchy is divided into two 
 unequal portions by the Revolution of 1688. The central 
 point at issue in the great contest of the seventeenth century 
 was — on the political side— the control of the Executive. 
 As to the existence of a parliamentary Legislature there was 
 no real question. Bacon and Strafford were at one with 
 Eliot and Pym as to the advantages derived by the 
 Monarchy from the periodical meetings of an elected 
 Legislature. 
 
 *Look on a Parliament as a certain necessity, but not 
 only as a necessity ; as also a unique and most precious 
 means for uniting the Crown with the Nation, and proving 
 to the world outside how Englishmen love and honour their 
 King, and their King trusts his subjects. Deal with it 
 frankly and nobly as becomes a king, not suspiciously like 
 a huckster in a bargain. Do not be afraid of Parliament. 
 Be skilful in calling it ; but do not attempt to " pack " it. 
 Use all due adroitness and knowledge of human nature, 
 and necessary firmness and majesty, in managing it ; keep 
 unruly and mischievous people in their place; but do not be 
 too anxious to meddle, " let nature work " ; and above all, 
 though of course you want money from it, do not let that 
 appear as the chief or real cause of calling it. Take the 
 lead in legislation. Be ready with some interesting or 
 imposing points of reform or policy, about which you ask 
 your Parliament to take counsel with you. Take care to 
 " frame and have ready some commonwealth bills, that may 
 add respect to the King's government, and acknowledge- 
 ment of his care ; not wooing bills to make the King and 
 his graces cheap ; but good matters to set the Parliament on 
 work, that an empty stomach do not feed on humour ".' 
 
 Such was, in substance, the sagacious advice tendered by 
 Bacon to James 1. Between Crown and Parliament there 
 could in his view be no essential antagonism. And Bacon's 
 language is echoed in that of Sir John Eliot : — 
 
 ' For the King's Prerogative no man may dispute against 
 it; it being an inseparable adjunct to regality. . . . For 
 
48 THE EXECUTIVE 
 
 the privileges of Parliament they have been such and so 
 esteemed as neither to detract from the honour of the King, 
 nor to lessen his authority. . . . This methinks should 
 endear the credit of our Parliaments that they intrench not 
 upon but extend the honour and power of the King . . . 
 Parliament is the body : the King is the spirit ; the author 
 of the being of Parliament. What prejudice or injury the 
 King shall suffer, we must feel.' 
 
 But while there was no difference of opinion as to the 
 existence of a Parliament there was much as to its functions. 
 Bacon would have had it vote taxes, help to make laws, and 
 keep the King well informed as to the state of public feeling. 
 The functions of Parliament were, in a word, to be legis- 
 lative, taxative, and informative. To these Pym and his 
 party desired to add a fourth and to give to Parliament an 
 effective control over the Executive. To this extension of 
 functions the older fashioned constitutionalists. Bacon, 
 Strafford, Hyde, and the like, strongly demurred. That 
 Parliament should be permitted to meddle in the * mysteries 
 of State ', that it should interfere in the intricacies of foreign 
 policy, that it should presume to exercise a continuous 
 control over the Executive, that it should hold the servants 
 of the Crown responsible to itself was unthinkable. This 
 was, however, the point on which from the outset of the 
 contest Eliot, and after him Pym, laid most stress. * That 
 His Majesty be humbly petitioned by both Houses to 
 employ such counsellors, ambassadors, and other ministers, 
 in managing his business at home and abroad as the Parlia- 
 ment may have cause to confide in, without which we cannot 
 give His Majesty such supplies for support of his own estate, 
 nor such assistance to the Protestant party beyond the sea, 
 as is desired.'^ So ran the most significant clause in the 
 Grand Remonstrance of 164 1. 
 
 Despite the emphasis thus laid upon the principle that 
 the King's ministers must be responsible to Parliament, 
 
 1 Grand Remonstrance, § 197. 
 
(i) FORMAL: THE CROWN 49 
 
 the two great constitutional declarations of the century are 
 on this point uniformly silent. Neither in the Petition of 
 Right (1628) nor in the Bill of Rights (1689) is there any 
 direct reference to the matter. 
 
 The silence of these great documents on a question 
 of the first constitutional significance is exceedingly 
 characteristic of the Revolution settlement, and indeed, 
 more generally, of English constitutional development. 
 Not even in 1689 was there any attempt to codify or 
 even to reduce to writing the leading principles of the 
 Constitution. There is barely a hint as to the relations 
 which ought to subsist between the Executive and the 
 Legislature. It was enough for the Englishmen of that 
 day, as of other days, to provide adequate remedies for the 
 definite and concrete abuses which recent experience had 
 revealed. The 'suspending' power and the 'dispensing 
 power as it hath been assumed and exercised of late ' are 
 declared to be illegal; the High Commission Court and 
 courts of like nature are declared to be 'illegal and per- 
 nicious'; the levying of extra-Parliamentary taxation, the 
 maintenance of a standing army in time of peace, excessive 
 fines and similar iniquities are denounced ; Parliaments are 
 to be held frequently ; members are to be freely elected 
 and their privileges are to be secured. Precautions are 
 thus taken against a repetition of the familiar incidents of 
 Stuart tyranny, but no attempt is made to decide effectually 
 and formally the great Constitutional issue which was the 
 core of the contest of the seventeenth century. 
 
 Thus despite the fact of the Puritan Revolution, despite 
 the Petition of Eighty and the Act declaring the Rights and 
 Liberties of the Subject^ the formal powers of the Crown 
 under Edward VH are virtually the same as those which 
 belonged to it under Edward VL Now, as then, the King 
 is the supreme Executive authority ; the King in Parliament 
 is still the supreme Legislative authority ; the King is still 
 iiao D 
 
50 THE EXECUTIVE 
 
 the * fountain of honour ' and the ' fountain of justice ' ; 
 the King is still supreme Head of the Church : ' over all 
 causes ecclesiastical as well as temporal within his 
 dominions supreme ' ; the King is still commander of the 
 military forces of the realm by land and sea ; the King is 
 still the * Great Leviathan', embodying in his own person 
 the dignity and the unity of the State. Forty years ago 
 Bagehot startled his contemporaries by an examination of 
 some of the legal powers of the Crown, by telling them 
 what the Queen could do without consulting Parliament. 
 ' The Queen ', he wrote, ' could disband the army (by law 
 she cannot engage more than a certain number of men) ; 
 she could dismiss all the officers, from the General Com- 
 manding-in-Chief downwards ; she could dismiss all the 
 sailors too ; she could sell off all our ships of war and all 
 our naval stores ; she could make a peace by the sacrifice of 
 Cornwall, and begin a war for the conquest of Brittany. 
 She could make every citizen in the United Kingdom, male 
 or female, a peer ; she could make every parish in the United 
 Kingdom a "university"; she could dismiss most of the 
 civil servants ; she could pardon all offenders. In a word, 
 the Queen could by prerogative upset all the action of civil 
 government within the Government, could disgrace the 
 nation by a bad war or peace, and could, by disbanding 
 our forces, whether land or sea, leave us defenceless against 
 foreign nations.' ^ 
 
 Such are the legal powers of the Crown to-day. 
 \ But although the Revolution of 1688 affected little, if at 
 all, the legal and technical prerogatives of the Crown, it is 
 none the less true that it marked an epoch of immense 
 significance in our constitutional development, and regis- 
 tered an important and permanent change in the balance 
 of political forces within the State. Down to 1688 the 
 Crown was the efficient factor in the Constitution; the 
 ^ Bagehot, English Constitution, p. xxxvi. 
 
(i) FORMAL: THE CROWN 51 
 
 King ruled as well as reigned ; on the character of the 
 monarch depended the government of the State. Thence- 
 forward it was otherwise ; the centre of political gravity 
 shifted from Crown to Parliament; the King still reigned, 
 but he gradually ceased to rule. From the great con- 
 test for Sovereignty Parliament emerged victorious, and 
 slowly but surely the Executive as represented by the 
 Crown has been brought into subjection to the Legis- 
 lature, representing in its turn the political sovereign or 
 electorate. 
 
 Many convergent causes contributed to this result. 
 Before detailing them it is proper to point out that the 
 subordination of the Executive to the Legislature was not 
 attempted for the first time in the eighteenth century. The 
 experiment had already been tried in the fifteenth under 
 the rule of the Lancastrians. From 1404 to 1437 the 
 King's Council was not merely dependent upon Parliament, 
 but was actually nominated in it : the subordination of 
 Executive to Legislature was never so complete. But the 
 result was a dismal failure. And it is pertinent and in- 
 structive to inquire why a political device which justified 
 itself so completely at a later period so signally failed in 
 the earlier ? 
 
 ' Responsible Government ' is no simple or easy thing. It 
 demands for its success conditions — social and political — 
 which are never found except in highly developed societies. 
 In the England of the fifteenth century some of the con- 
 ditions were notably absent. * Constitutional progress ', to 
 quote a pregnant aphorism of Bishop Stubbs, * had outrun 
 administrative order.' Politically advanced, the nation was 
 socially backward. The development of the parliamentary 
 machinery had been too rapid for the intelligence of the 
 nation at large. The result was that while Parliament was 
 busy in establishing its rights against the Crown, the nation 
 was sinking deeper and deeper into social anarchy. A small 
 
 D 2 
 
52 THE EXECUTIVE 
 
 knot of powerful barons were reproducing some of the worst 
 features of feudalism without its redeeming advantages. 
 Private wars became more common than they had ever 
 been since the miserable days of Stephen. Baron was at 
 war with baron ; county with county ; town with town. 
 Disbanded soldiers coming home from the French wars 
 took service with rival chieftains, accepted their liveries, and 
 fought their battles. The great lord, in turn, protected 
 or, to use the technical term, 'maintained' his liveried 
 followers and shielded them from the punishment due to 
 their crimes of violence. Thus law was paralysed ; justice 
 became a mockery ; and the whole nation, outside . the 
 charmed circle of the great lords and their retainers, groaned 
 under the ' lack of governance ' which quickly became the 
 byword of Lancastrian administration. Plainly the nation 
 * was not yet ready for the efficient use of the liberties it 
 had won'. The time for a parliamentary Executive had 
 not come ; and the people, reduced to social confusion by 
 the weak and nerveless rule of the Lancastrians, involved 
 in aristocratic faction fights to which the quarrels of 
 York and Lancaster gave a deceptively dynastic colour, at 
 length emerged from these 'Wars of the Roses' anxious 
 for the repose and discipline secured to them by the New 
 Monarchy. 
 
 For a century the Tudors continued to administer the 
 tonic which they had prescribed to a patient suffering 
 from social disorder and economic anaemia. The evo- 
 lution of the parliamentary machinery was temporarily 
 arrested, but, meanwhile, the people throve socially and 
 commercially. Aristocratic turbulence was sternly re- 
 pressed ; extraordinary tribunals were erected to deal with 
 powerful offenders ; vagrancy was severely punished ; work 
 was found for the unemployed; trade was encouraged; 
 the navy was organized on a permanent footing ; scientific 
 training in seamanship was provided ; excellent secondary 
 
(i) FORMAL: THE CROWN 53 
 
 schools were established — in these and in many other ways 
 the New Monarchy, despotic and paternal though it was, 
 brought order out of chaos and created a new England. 
 The maintenance of law ; the growth of a strong middle 
 class ; the diffusion of wealth and education ; above all, the 
 critical temper of Protestantism reacted in their turn upon 
 political development. The result was that by the close 
 of the sixteenth century the nation was ready, as it had 
 not been ready at the beginning of the fifteenth, for the 
 'efficient use of the liberties it had won'. The Tudor 
 'dictatorship' had done its work. In no direction were 
 its results more clearly marked than in the broadening and 
 strengthening of parliamentary institutions. The experiment 
 of making Parliament the direct instrument of Government 
 had broken down in the fifteenth century because it was 
 premature ; because the political intelligence and the social 
 development of the people at large lagged hopelessly behind 
 the structural evolution of the parliamentary machine. 
 Thanks in part to the strong and bracing rule of the Tudors 
 and in part to a many-sided economic revolution, social 
 had now caught up political development. Consequently, 
 the Stuarts from the moment of their accession found them- 
 selves confronted by a people not merely ready but anxious 
 to take upon their own shoulders the high responsibilities of 
 self-government. 
 
 The * Apology' drawn up by Parliament in 1604 suffi- 
 ciently attests the new temper of the nation. In that 
 famous document the Commons made it abundantly clear 
 that the era of the Tudor dictatorship was definitely 
 closed, and that they were no longer disposed to acquiesce 
 in the virtual suspension of their privileges and authority. 
 The King, they avowed, had been grossly misinformed 
 alike as to the ' estate of his subjects of England ', as to 
 'matter of religion', and as to * the privileges of the House of 
 Commons ', and it was their bounden duty to set him right. 
 
54 THE EXECUTIVE 
 
 *We stand not in place to speak or do things pleasing. 
 Our care is, and must be, to confirm the love and tie the 
 hearts of your subjects, the Commons, most firmly to your 
 Majesty. Herein lieth the means of our well deserving of 
 both ; there was never prince entered with greater love, 
 with greater joy and applause of all his people. This joy, 
 this love, let it flourish in their hearts for ever. Let no 
 suspicion have access to their fearful thoughts, that their 
 privileges, which they think by your Majesty should be pro- 
 tected, should now by sinister informations or counsel be 
 violated or impaired ; or that those, which with dutiful 
 respects to your Majesty, speak freely for the right and good 
 of their country, shall be oppressed or disgraced. Let your 
 Majesty be pleased to receive public information from your 
 Commons in Parliament as to the civil estate and govern- 
 ment ; for private informations pass often by practice : the 
 voice of the people, in the things of their knowledge, is said 
 to be as the voice of God. And if your Majesty shall vouch- 
 safe, at your best pleasure and leisure, to enter into your 
 gracious consideration of our petition for the ease of these 
 burthens, under which your whole people have of long time 
 mourned, hoping for relief by your Majesty ; then may you 
 be assured to be possessed of their hearts, and, if of their 
 hearts, of all they can do or have.' ^ 
 
 The language was respectful, but its significance was 
 unmistakable. Consideration for the old Queen combined 
 with anxiety as to the succession had conduced to a conscious 
 postponement of the constitutional issue. *In regard of 
 her (Queen Elizabeth's) sex and age, which we had great 
 cause to tender and, much more, upon care to avoid all 
 trouble, which by wicked practice might have been drawn 
 to impeach the quiet of your majesty's right in the Succes- 
 sion, those actions were then passed over, which we hoped 
 in succeeding time of freer access to your highness of 
 renowned grace and justice, to redress, restore, and rectify.' 
 
 Thus, in the very first year of the new reign was the 
 keynote of the impending struggle struck. To follow the 
 
 * State Papers (Dom.), James I, viii. 70. 
 
h 
 
 (i) FORMAL: THE CROWN 55 
 
 incidents of that struggle is no part of my purpose. It must 
 suffice to recall one or two of the more important landmarks. 
 For five-and-twenty years James I, and his son after him, 
 attempted the impossible task of reconciling the Stuart 
 theory of kingship with the advancing claims of Parliament 
 and particularly of the House of Commons. The first act 
 of the drama closes with the concession of the Petition 01 
 Right (1628), with the dissolution of Charles's third Parlia- 
 ment (1629), and the death in the Tower of the 'proto- 
 martyr of Parliamentary independence ', Sir John Eliot 
 (1633). The Petition of Right determined no general 
 principles, but, after our English manner, provided certain 
 remedies for the more flagrant of the practical grievances 
 which had been disclosed by the experience of the last 
 three years. Then followed a period of personal govern- 
 ment, during which the Crown was unfettered either by the 
 opposition of Parliament or by the decisions of an inde- 
 pendent Judiciary. For eleven years (1629 — 1640) no 
 Parliament met ; the ordinary administration of justice was 
 set aside by the Star Chamber and other extraordinary 
 tribunals ; money was raised for the necessities of the 
 Crown by all manner of peculiar expedients; Wentworth 
 was let loose upon Ireland (in the main to its advantage) ; 
 Laud was let loose upon England and even upon Scotland, 
 with results which proved fatal to the Stuart Monarchy. 
 The first signal of overt resistance was given by Scotland. 
 To require Scotland to accept Arminianism at the hands 
 of Laud was like asking England to accept Roman Catho- 
 licism at the hands of Philip II. Intensely national and 
 intensely Calvinistic, Scotland * bristled into resistance ', and 
 Charles I was consequently compelled to meet his Parlia- 
 ment again. 
 
 The Long Parliament spent the first few months of its 
 existence in breaking into fragments the machinery of 
 'Thorough' and in wreaking vengeance upon the leading 
 
56 THE EXECUTIVE 
 
 agents of that system. Strafford and Laud paid the penalty 
 for the failure of the experiment of personal rule. A few 
 years later the King himself paid the penalty for the failure 
 of his appeal to arms (1649). The death of Charles I was 
 quickly followed by the abolition of the Monarchy. On 
 March 17, 1649, the Rump of the Long Parliament employed 
 such remnant of legal authority as it still retained to pass an 
 * Act ' abolishing the office of king. 
 
 * Whereas,' so the * Act ' ran, * Charles Stuart, late King of 
 England, Ireland, and the territories and dominions there- 
 unto belonging, hath by authority derived from Parlia- 
 ment been and is hereby declared to be justly condemned, 
 adjudged to die, and put to death for many treasons, murders, 
 and. other heinous offences committed by him. . . . And 
 whereas it is and hath been found by experience that the 
 office of a king ... is unnecessary, burdensome and dan- 
 gerous to the liberty, safety and public interest of the people, 
 and that for the most part use hath been made of the regal 
 power and prerogative to oppress and impoverish and enslave 
 the subject ... be it, therefore, enacted and ordained . . . 
 that the office of king shall not henceforth reside in or be 
 exercised by any one single person ; and that no one person 
 whatsoever shall or may have or hold the office, style, dignity 
 or authority of King of the said kingdoms or dominions.' 
 
 It was comparatively easy to get rid of the Monarch ; it 
 was much more difficult to get rid of the Monarchy. The 
 *Rump' made a bold bid for Sovereignty, perpetual, 
 unrestrained and undivided; but Cromwell and the army 
 intervened to prevent this usurpation ; and Cromwell, little 
 to his liking, found himself invested with a Sovereignty 
 limited only by the necessity for retaining the loyalty of his 
 Ironsides. To devolve upon a representative Assembly 
 some portion of his heavy responsibility was the immediate 
 and constant anxiety of Cromwell. Hence the summoning 
 of the convention of Puritan notables commonly known as 
 Barebone's Parliament. A few months sufficed to demon- 
 strate the failure of this experiment, but Cromwell never- 
 
(i) FORMAL: THE CROWN 57 
 
 theless persevered. The Instrument of Government provided 
 for the election of a single-chambered Legislature. Its brief 
 but stormy existence proved that, though the Stuart monarchy 
 was overthrown, the problem which had divided the Stuart 
 monarchs and their parliaments was still unsolved. Crom- 
 well was no more disposed than Strafford or Charles I to 
 subordinate the Executive to the Legislature. Nay ; he 
 was not even willing to concede to parliament constituent 
 powers. Legislate they might, and freely,, but it must be 
 within the four corners of the ' Instrument ' ; circumstantials 
 only were within their competence; * Fundamentals ' they 
 must not touch.* This subordinate position parliament was 
 unwilling to accept, and at the first legal opportunity it 
 was dissolved by the Protector. Cromwell and many of 
 his wisest counsellors believed that the breakdown of 
 the experiment was due to the uni-cameral structure of the 
 parliament. Consequently a second attempt was made 
 with a renovated * Upper House '. But with no better 
 results. The old difficulties reappeared. Cromwell had 
 summoned Parliament to make laws; they claimed the 
 right to revise the Constitution and to criticize the Execu- 
 tive. They forgot that, disguise it how he might, the 
 monarchy of Cromwell rested upon the sword. Had 
 Strafford been master of Cromwell's legions the proud 
 Lieutenant would have made short work of the Long 
 Parliament. That Cromwell was honestly anxious to assign 
 to an elected parliament a place in the Constitution can 
 be denied by no unprejudiced person ; but it was a strictly 
 subordinate place. On their refusal to accept it, they 
 had to go. 
 
 But Cromwell left no successor. His son Richard, though 
 installed as Protector, was a poor creature and quite un- 
 equal to the task of reconciling the military and civil 
 powers. Army and Parliament were once more at logger- 
 1 Cf. supra, p. 17. 
 
S8 THE EXECUTIVE 
 
 heads; all classes cried loudly for a 'settlement' — par- 
 ticularly the merchants, and it was soon perceived that 
 there could be no permanent settlement without a restora- 
 tion of the legitimate monarchy. 
 
 The Restoration of 1660 had, therefore, a threefold 
 significance; it marked the triumph of the monarchical 
 idea, but, not less definitely, the triumph of the parlia- 
 mentary and, above all, the negation of the military principle. 
 * No Bishop, no King ' was the formula which embodied the 
 alliance between the Stuarts and the Anglican Church. 
 *No King, no Parliament' might have been adopted as 
 the motto of the Restoration of 1660. 
 
 But the Stuarts had learned their lesson very imperfectly. 
 The native shrewdnes* and extraordinary political adroit- 
 ness of Charles II enabled him to outmanoeuvre the Whigs, 
 and despite accumulating unpopularity to retain the Crown 
 until his death. His brother had more conscience and less 
 dexterity. With an ingenuity almost unique he contrived 
 simultaneously to alienate Anglicans and Nonconformists, 
 Tories and Whigs, the country gentlemen and the traders 
 of the towns. Thus, after the inconclusive interlude of the 
 second Stuart Monarchy, we work back to the point from 
 which we started, the Revolution of 1688. 
 
 That Revolution, as we have already seen, did not 
 materially affect the legal and technical powers of the 
 Crown. Nevertheless this epoch is generally and properly 
 selected as the real beginning of the responsibility of the 
 Executive to the Legislature, of the Crown and its ministers 
 to Parliament. This paradox can be fully resolved only 
 when we come to deal with the evolution of the Cabinet. 
 Meanwhile we may summarily point out that this subordina- 
 tion was effected indirectly and by a combination of circum- 
 stances. 
 
 Considerable importance must no doubt be attached to 
 the change in the person of the Monarch. * It was ', writes 
 
(i) FORMAL: THE CROWN 59 
 
 Macaulay, 'even more necessary to England at that time 
 that her King should be a usurper than that he should be 
 a hero. There could be no security for good government 
 without a change of dynasty. ... It had become indis- 
 pensable to have a sovereign whose title to the throne was 
 bound up with the title of the nation to its liberties.' The 
 point is put with characteristic exaggeration : William III 
 did not represent a new ' dynasty ', still less did his wife ; 
 the deviation from the strict line of hereditary succession 
 was, as Burke pointed out, the slightest possible compatible 
 with the maintenance of a Protestant Monarchy ; nor was 
 any effort wanting to cover the ' revolution ' with the cloak 
 of legality. Nevertheless, the deviation was sufficient, as in 
 the parallel case of Henry IV, to mark a real change in 
 the relation of the Crown to the nation, and to register 
 an important stage in the evolution of the supremacy of 
 Parliament. 
 
 To the same result the increased regularity in the 
 meeting of Parliament itself materially contributed. It was 
 impossible that the Executive should be really responsible 
 to the Legislature so long as the meeting of the latter was 
 irregular, capricious, and uncertain. The impossibility of 
 dispensing with a standing army ; the jealousy with which 
 its recent establishment was regarded, and the necessity for 
 the annual renewal of the Act upon which its discipline 
 depended, secured, by a device characteristically devious, 
 the annual meeting of the Legislature. 
 
 The change in the mode of granting supplies to the 
 Crown, and the institution of a Civil List, supplied a 
 further contribution to the same result. Hitherto the 
 King had borne the whole charge of Government : 
 between the royal revenue and the national revenue there 
 had been no distinction. Under Charles II, indeed, the 
 Commons had successfully maintained their exclusive 
 right to determine *as to the matter, measure, and time 
 
J 
 
 60 THE EXECUTIVE 
 
 of every tax', and the principle of the appropriation of 
 subsidies to particular purposes was definitely established. 
 But it is with the Revolution that the effective control of 
 the House of Commons over national expenditure really 
 begins. To William III, Parliament voted a revenue of 
 £1,200,000 a year, of which £700,000 was appropriated to 
 the support of the Royal Household, the personal expenses 
 of the King, the payment of civil officers, &c. ; the rest 
 being appropriated to the more general expenses of ad- 
 ministration. George III, in return for a fixed Civil List, 
 surrendered his interest in the hereditary revenues of the 
 Crown. William IV went further, and surrendered not 
 only the hereditary revenues but also certain miscellaneous 
 and casual sources of revenue in return for a Civil List 
 of £510,000 a year divided into five departments. To 
 each of these a specific annual sum was assigned, and at 
 the same time the Civil List was further relieved of certain 
 extraneous charges which were properly national or parlia- 
 mentary. The process was completed at the accession of 
 Queen Victoria when the Civil List was fixed at £385,000 
 distributed as follows : (i) Privy Purse, £60,000 ; (2) House- 
 hold Salaries, &c., £131,260; (3) Royal Journeys, &c., 
 £172,500; (4) Royal Bounty, £13,200; (5) Unappro- 
 priated, £8,040. At the same time opportunity was taken 
 finally to transfer to Parliament all charges properly incident 
 to the maintenance of the State ^ as distinct from the per- 
 sonal expenses of the Sovereign. Thus, as Erskine May 
 well remarks, ' while the Civil List has been diminished in 
 amount its relief from charges with which it had formerly 
 been incumbered has placed it beyond the reach of mis- 
 construction. The Crown repudiates the indirect influence 
 
 ^ The Crown still enjoys the revenues of the Duchies of Lancaster 
 and Cornwall, the latter being part of the appanage of the Prince of 
 Wales. The former now produces about ^60,000 a year; the latter 
 about iC8o,ooo a year. 
 
(i) FORMAL: THE CROWN 6i 
 
 exercised in former reigns and is free from imputations of 
 corruptions. And the continual increase of the civil charges 
 of the Government, which was formerly a reproach to the 
 Crown, is now a matter for which the House of Commons 
 is alone responsible. In this, as in other examples of 
 constitutional progress, apparent encroachments upon the 
 Crown have but added to its true dignity, and concili- 
 ated more than ever the confidence and affections of the 
 people.' ^ 
 
 The sum voted to Queen Victoria proved, in the latter 
 years of the reign, despite the economical management 
 of the Household, inadequate to the maintenance of the 
 royal state. The Civil List of King Edward VII was, 
 therefore, fixed at a somewhat higher figure — £470,000." 
 But this did not involve an additional charge upon the 
 national Exchequer. The value of the hereditary revenues 
 surrendered to the nation by Queen Victoria, on her 
 accession, amounted only to £245,000 a year; their value 
 when surrendered by King Edward VII was £452,000.'' 
 The nation, therefore, may be said to have made a very 
 advantageous bargain with the Crown. But to return to 
 the Revolution of 1688. 
 
 The subordination of the Executive to the Legislature 
 was not effected at a single stroke ; it was indeed far from 
 complete either under William III or Queen Anne. The 
 real moment of transition must be assigned to the next 
 reign — that of George I. The accession of a King, who 
 
 ^ Constitutional History^ i. 247. 
 
 ^ That of King George V has been fixed at the same sum. 
 
 ' The * hereditary ' revenues are chiefly from Crown lands now 
 managed by the Commissioners of Woods and Forests ; but technically 
 they include also the * hereditary ' excise duties granted to Charles II, 
 but long in abeyance ; the compensation for wine licence revenue, and 
 the hereditary Post Office revenue. The sums mentioned above repre- 
 sent the net income from the hereditary lands of the Crown, apart from 
 the Duchies of Lancaster and Cornwall. 
 
62 THE EXECUTIVE 
 
 despite English blood, was in all essentials a foreigner; 
 the prolonged ascendancy of a great minister under whom 
 the Cabinet for the first time assumed its modern form; 
 and the development of party organization in Parliament 
 itself — all these contributed to the process. 
 
 The effective power of the Crown probably reached its 
 nadir under the first two sovereigns of the Hanoverian line. 
 Whether it was, even then, so entirely eclipsed as it was 
 once the fashion to assume, is a question which is beginning 
 to excite historical criticism; but it is certain that such 
 influence as the Crown exercised was felt more decisively 
 in European than in domestic politics. 
 
 With the accession of George IH there was a real revival 
 of the monarchical idea. The young King came to the 
 throne saturated with the principles of Bolingbroke's Patriot 
 King, and determined, in his own person, to put them to 
 the test of practical experiment. His own personality and 
 the political circumstances of the hour were alike favourable 
 to its success. In almost every way the young King stood 
 in marked contrast to his immediate predecessors. The 
 first of his dynasty who could be regarded as English, he 
 rather overplayed the part ; but he was simple, manly, and 
 unaffected; his private life was' above reproach, and his 
 courage, both moral and physical, was magnificent. In- 
 tellectually he was below the average, with all the obstinacy 
 of a rather stupid man; but his prejudices, which were 
 numerous, fortunately coincided with those of the great mass 
 of his subjects. And he had this further advantage. The 
 political forces which during the last half century had rivalled 
 and even eclipsed the Crown were palpably weakening. 
 Parliament was becoming every year more oligarchical 
 both in temper and in composition. * You have taught 
 me', said George II to Pitt, 'to look elsewhere than to 
 the House of Commons for the opinion of my people/ 
 The lesson was not lost upon his grandson. Increasingly 
 
(i) FORMAL; THE CROWN 63 
 
 oligarchical, Parliament was also increasingly disorganized. 
 Since the fall of Walpole the great Whig party had rapidly 
 disintegrated ; it was broken up into factions and groups, 
 and could offer little effective resistance to concentrated 
 and sustained attacks. The King pressed home his advan- 
 tage with unremitting industry and unflagging ardour. He 
 worked like an election-agent, and dined on boiled mutton 
 and turnips in order that he might spend his enormous 
 income in the purchase of the House of Commons. Burke 
 probably exaggerated the cohesion of the ' King's friends V 
 but as to the reality and extent of the King's personal 
 influence upon politics there can be no question. * Every- 
 one', wrote Horace Walpole, 'ran to Court and voted for 
 whatever the Court desired.' The personal influence of the 
 King reached its zenith during the ministry of Lord North 
 ( 1 770-82). But even before the fall of his favourite minister 
 it was on the wane. The disasters of the American War, 
 disasters laid, not wholly without justification, at the King's 
 door ; the acceptance of Mr. Dunning's historic resolutions 
 (i 780)^; above all, the ferment created by the King's personal 
 interposition to defeat Fox's India Bill^ seriously damaged 
 the prestige of the Crown. Pitt came to the King's rescue 
 in 1783, and five years later the hatred of opponents was 
 changed to pity by the oncoming of insanity, which, fitful 
 at first, became permanent in 1810. 
 
 Under the Regency (1810-20) and the reign of George IV 
 the popularity if not the power of the Crown reached the 
 nadir. George IV had more brains than his father, but 
 much less conscience, and there can be no question that 
 the scandals of his private life, combined with his obstinate 
 resistance to all reform, seriously imperilled the existence of 
 the Monarchy. On the Continent, the restored Monarchies 
 
 ^ Cf. Thoughts on the causes of the present discontents, passim. 
 * The first of them ran : * That the influence of the Crown has in- 
 creased, is increasing, and ought to be diminished.* 
 
64 THE EXECUTIVE 
 
 were on trial ; even in England there were plenty of critics 
 hostile to the institution. ' Oh that the free would stamp 
 the impious name of King into the dust' was an aspira- 
 tion which if infrequently uttered was widely entertained. 
 Nothing but the unpopularity of the King could have con- 
 ferred so much popularity upon his unhappy but unde- 
 serving Queen. Nevertheless it would be a mistake to 
 underrate the practical influence of George IV upon politics. 
 His alienation from the Whig friends of his youth kept the 
 Tories in power in 1812, and throughout the whole of his 
 regency and reign. Brougham asked the House of Com- 
 mons to declare that the influence of the Crown was 
 ' unnecessary for maintaining its constitutional preroga- 
 tives, destructive of the independence of Parliament and 
 inconsistent with the well-governing of the realm '. It is 
 significant that unlike Dunning's resolutions of 1780 
 Brougham's was negatived by a large majority. But that the 
 country would have tolerated a succession of George IV's 
 is unlikely. 
 
 To him there succeeded in 1830 his brother, William IV, 
 a sailor, bluff, genial, and kind-hearted, but entirely lacking 
 in dignity, not to say in decorum. Under him the popularity 
 of the Crown was restored, but its dignity was still further 
 endangered. 
 
 Such was the situation which confronted the young 
 Princess, called to the throne, as Queen Victoria, by her 
 uncle's death in 1837. * Since the century began,' as one 
 of her biographers pungently puts it, ' there had been three 
 Kings of England ... of whom the first was long an imbe- 
 cile, the second won the reputation of a profligate, and the 
 third was regarded as little better than a buffoon.' ^ It 
 was, therefore, the young Queen's first task to re-establish 
 the Monarchy in the respect and affection of the people. 
 More particularly was it her function to win the confidence 
 ^ Lee, Queen Victoria, p. 53. 
 
(i) FORMAL: THE CROWN 65 
 
 of the middle classes, who had lately, by the revolution of 
 1832, become supreme in English politics. For this task 
 she was exceptionally qualified. ' It was ', says Mr. Benson, 
 * supremely fortunate that the Queen by a providential gift 
 of temperament thoroughly understood the middle-class 
 point of view.' * How well she succeeded in conciliating 
 to the Crown the affectionate regard of her people the 
 history of her long reign eloquently tells. But it would 
 be misleading to suppose that her success was immediate, 
 or, until the last two decades of her reign, complete. The 
 cartoons of Punch reflect with unerring accuracy the public 
 sentiment. In the earlier half of the reign they are far from 
 complimentary to the Queen, and to the Prince Consort 
 they are something less than respectful. In later years the 
 tone changes. The change is clearly due to something 
 more than length of days. The first impulse to it came 
 perhaps from acknowledged misjudgement as to the Prince 
 Consort : — 
 
 We know him now: all narrow jealousies 
 Are silent; and we see him as he moved. 
 How modest, kindly, all accomplished, wise, 
 With what sublime repression of himself, 
 And in what limits, and how tenderly ; 
 Not swaying to this faction, or to that; 
 Not making his high place the lawless perch 
 Of wing'd ambitions, nor a vantage ground 
 For pleasure ; but through all this tract of years 
 Wearing the white flower of a blameless life. 
 
 Shortly after the death of the Prince Consort, Mr. Walter 
 Bagehot published his remarkable study on The English 
 Constitution. His chapter on the Monarchy opens with the 
 following words : — 
 
 * The use of the Queen in a dignified capacity is incal- 
 culable. Without her in England the present English 
 
 * Queen Victoria's Letters, i. 28. 
 I120 £ 
 
66 THE EXECUTIVE 
 
 Government would fail and pass away. Most people, when 
 they read that the Queen walked on the slopes of Windsor 
 — that the Prince of Wales went to the Derby, have imagined 
 that too much thought and prominence were given to httle 
 things. But they have been in error ; and it is nice to trace 
 how the actions of a retired widow and an unemployed 
 youth become of such importance.' 
 
 The passage is noticeable for several reasons. Bagehot 
 was a genuine believer in the Monarchy as an institution 
 and a sincere admirer of the monarch; but his tone is 
 obviously half-contemptuous and would now be generally 
 resented as barely decorous. For reasons which will 
 be disclosed presently the political position of the Crown 
 is far better understood and more highly appreciated than 
 was the case half a century ago. On the other hand Bagehot's 
 analysis of the non-political functions of the Monarchy 
 could even now hardly be improved upon. He describes 
 the Crown as the pivot of the ' dignified part of the Con- 
 stitution '. It is an ' intelligible ' headpiece and conse- 
 quently calls forth feelings towards the Government which 
 no form of republican institutions can evoke. ' Royalty is 
 a Government in which the attention of the nation is con- 
 centrated on one person doing interesting actions. A 
 Republic is a Government in which that attention is divided 
 between many who are all doing uninteresting actions.' 
 Again : ' the Monarchy strengthens our Government with 
 the strength of religion ' ; it appeals to sentiments which 
 are not the less real and not the less strong because they 
 are impalpable. It is valuable, also, as excluding com- 
 petition for the headship of society ; and above all as the 
 guardian of the ' mystery ' of the Constitution. It ' acts as 
 a disguise ' ; ' it enables our real rulers to change without 
 heedless people knowing it.' As to the more strictly poll 
 tical functions of the Crown, Bagehot confesses, like most 
 other commentators, his inability to pierce the veil of the 
 mystery in which the political action of the sovereign is 
 
 
(i) FORMAL: THE CROWN 67 
 
 enwrapped. 'We shall never know, but when History is 
 written our children may know what we owe to the Queen 
 and Prince Albert.' In part we do know. Some portion 
 of the veil has been withdrawn. The materials for an 
 historical judgement are rapidly accumulating. The Memoirs 
 of leading statesmen of the Victorian era have disclosed 
 much ; the Letters of Queen Victoria have revealed more. 
 Fresh light has thus been thrown upon the mysterious 
 working of the Constitution. To what extent it has rendered 
 necessary a modification of constitutional theory is a 
 question which may be postponed to the next chapter. 
 
 E 2 
 
CHAPTER IV 
 
 THE EXECUTIVE : (2) POLITICAL : 
 
 THE CABINET, THE PRIME MINISTER, 
 
 AND THE CROWN 
 
 ' Those persons made up the Committee of State, which was re- 
 proachfully afterward called the Junto, and enviously then in Court 
 the Cabinet Council.'— Clarendon. 
 
 * The efficient secret of the English Constitution may be described as 
 the close union, the nearly complete fusion, of the executive and legisla- 
 tive powers. No doubt by the traditional theory, as it exists in all the 
 books, the goodness of our constitution consists in the entire separation 
 of the legislative and executive authorities ; but in truth its merit con- 
 sists in their singular approximation. The connecting link is the 
 Cabinet. By that new word we mean a committee of the legislative 
 body selected to be the executive body.* — Bagehot. 
 
 * The Cabinet is the threefold hinge that connects together for action 
 the British Constitution of King or Queen, Lords and Commons . . . 
 Like a stout buffer- spring, it receives all shocks, and within it their 
 opposing elements neutralize one another. It is perhaps the most 
 curious formation in the political world of modern times, not for its 
 dignity, but for its subtlety, its elasticity, and its many-sided diversity 
 of power. ... It lives and acts simply by understanding, without a 
 single line of written law or constitution to determine its relations to 
 the Monarch, or to the Parliament, or to the nation ; or the relations 
 of its members to one another, or to their head.* — W. E. Gladstone. 
 
 ' While every act of state is done in the name of the Crown, the real 
 executive Government of England is the Cabinet. ... No one really 
 supposes that there is not a sphere, though a vaguely defined sphere, 
 in which the personal will of the Queen has under the Constitution 
 very considerable influence.' — A. V. Dicey (1885). 
 
 The last chapter was concerned primarily with one point 
 of great importance — the process by which the King, for 
 many centuries the pivot of the Constitution and the real 
 
(2) POLITICAL: THE CABINET 69 
 
 ruler of the realm, has been brought Into political depen- 
 dence upon Parliament, and more particularly upon the 
 House of Commons ; or, to use more technical language, 
 the process by which the Executive has been subordinated 
 to the Legislature. But of all the devices employed to 
 effect this virtual transference of supreme political authority 
 the most important still remains to be noted. It is to be 
 found in the evolution of a Cabinet Council under the 
 presidency of a Prime Minister. 
 
 The Cabinet and the Prime Minister are of all English 
 political institutions the most characteristic. Taken together 
 they are the pivot round which the whole political machine 
 practically revolves ; yet neither is in terms known to the 
 law. It is the primary purpose of the present chapter to 
 investigate their genesis, to trace their gradual evolution, 
 and to describe the part they play in the actual working 
 of the Constitution of to-day. 
 
 It was shown in the last chapter that the legal powers 
 of the Crown were not seriously curtailed by the Revolution 
 Settlement of 16 88-1 701. We might have gone further 
 and shown that those powers have on the contrary been 
 enormously extended by the rapid increase in the functions 
 of government and by the delegation of subordinate law- 
 making powers to various administrative bodies (such as 
 the Local Government Board and the Board of Trade) 
 which act in the name of the Crown. But while the 
 powers of the Crown have been increased, the power of 
 the Crown has been rigorously curtailed. And the apparent 
 paradox is to be explained by the development of an 
 administrative system, the chief officials of which, while 
 nominally the servants of the King, are in reality politically 
 responsible to Parliament. Of these officials the most 
 important have come to form what is popularly known as 
 the Cabinet Council or the Cabinet. 
 
 What is the Cabinet? It is sometimes described as a 
 
70 THE EXECUTIVE 
 
 Committee of the Legislature (e. g. by Bagehot), sometimes 
 as a Committee of the Privy Council (e.g. by Hearn). 
 Neither description is strictly accurate; but it is suffi- 
 / ciently true to say that all Cabinet Ministers must be 
 ' members of one or other House of the Legislature, and 
 must be members of His Majesty's Privy Council.* It is 
 further true that to the ancient Privy Council we must 
 look for the origin of the modern Cabinet. 
 
 The King's Council has, under various names, '^ a con- 
 tinuous history from Norman days to our own. In the 
 early fifteenth century it was, as we have seen, subjected, 
 with disastrous results, to Parliament. In the sixteenth 
 century it became the all-powerful instrument of Tudor 
 government. Under the Stuarts the Privy Council became 
 utterly unwieldy in size, and consequently useless for ad- 
 ministrative purposes. The King, therefore, began to select 
 a few members of the Council with whom to consult on 
 affairs of State. The term Cabinet is first found in Bacon's 
 J Essays ; but the first definite allusion to the new constitu- 
 tional development is, so far as I can ascertain, in Claren- 
 don's account of the year 1640. 'Those persons', he 
 writes (meaning Archbishop Laud, Lord Strafford, Lord 
 Cottington, Lord Northumberland, Bishop Juxon, Sir 
 H. Vane, Sir F. Windebank, and the two Secretaries of 
 State), 'made up the Committee of State, which was re- 
 proachfully afterwards called the Junto, and enviously then 
 in Court the Cabinet Council.' ' 
 
 It will be noted that the development was from the first 
 regarded with jealousy and mistrust. This was more con- 
 spicuously the case after the Restoration of 1660. Policy 
 dictated the advisability of numerous promotions to the 
 
 ^ For more detailed and exact discussion of these points cf. J>os^. 
 ' Curia Regis, Concilium Ordinarium, Concilium Secretum or Pri- 
 vatum. 
 
 3 Clarendon, Rebellion, Bk. II (vol. i, p. 244). 
 
(2) POLITICAL: THE CABINET 71 
 
 Privy Council, and Charles II, pleasure-loving and quick- 
 witted, was frankly bored, as Clarendon tells us, by the 
 debates which took place in the Privy Council. He wanted 
 business done more expeditiously and with less talk. Nor 
 could any one deny that foi* executive purposes the Council 
 had become impossibly large. Clarendon accordingly pro- 
 posed that the administrative work of the Council should 
 be delegated to four small Committees : one for Foreign 
 aflfairs ; a second for the supervision of the army and navy ; 
 a third for trade; and a fourth for the consideration of 
 petitions of complaint. In these Committees of the Council 
 the modern administrative system may be said to have its 
 origin. But in addition to these formally recognized Com- 
 mittees there was an informal Committee in which we have 
 the germ of the modern Cabinet. Of this, more presently. 
 Meanwhile, as we have seen, a strenuous attempt had 
 been made by the leaders of the progressive party under 
 the early Stuarts to enforce the legal and political responsi- 
 bility of the King's Ministers to Parliament. Notably in 
 the case of George Villiers, Duke of Buckingham, when 
 Sir John Eliot was the most conspicuous of his accusers ; 
 still more notably in the case of Thomas Wentworth, Earl 
 of Strafford, pursued to his death by John Pym. Eliot 
 had been the friend of Buckingham, Pym the friend of 
 Wentworth, but both had fastened upon the doctrine of 
 ministerial responsibility as the keystone of the arch of 
 constitutional government, and both were resolved to 
 assert that doctrine at all costs. The revival of the practice 
 of political impeachments went far to establish it, and it 
 was clinched by the famous impeachment of Danby (1679). 
 Danby was notoriously the mere agent of the King in the 
 execution of a policy of which he personally disapproved. 
 Yet he was accused of having ' traitorously encroached to 
 himself Regal Power by treating of matters of Peace and War 
 with Foreign Princes and Ambassadors ' ; of having * traitor- 
 
72 THE EXECUTIVE 
 
 ously endeavoured ... to introduce a tyrannical and arbi- 
 trary way of Government ' ; of being ' popishly affected ' ; 
 of having 'wasted the King's treasure'- and of having 
 misappropriated money voted by Parliamerit for the dis- 
 bandment of the army. Preferred against the King these 
 charges were notoriously true ; preferred against Danby they 
 were notoriously false. Danby pleaded in excuse the order 
 of the King expressed in writing, and pleaded also, in bar 
 of an impeachment the King's pardon granted under the 
 Great Seal. Both pleas were set aside, and thus Danby's 
 impeachment is generally and rightly regarded as having gone 
 far towards establishing the principle that * no minister can 
 shelter himself behind the throne by pleading obedience 
 to the orders of his sovereign. He is . . . answerable for 
 the justice, the honesty, the utility of all measures emanating 
 from the Crown as well as for their legality '} 
 
 But impeachment is at best a clumsy weapon. Both in 
 the case of Strafford and in that of Danby, it broke in the 
 hands of those who attempted to work it for more than it 
 was worth. It could properly apply only to offences against 
 the law, and in neither of the crucial cases cited could the 
 Commons secure a conviction. Strafford was enmeshed, 
 but not in the toils of an impeachment. His relentless 
 enemies, in order to catch him, were compelled to have 
 recourse to an Act of Attainder. In Danby's case pro- 
 ceedings were dropped. Pym clearly realized the difficulty, 
 which is stated with admirable explicitness in the Grand 
 Remonstrance : ' It may often fall out that the Commons 
 may have just cause to take exception at some men for 
 being Councillors, and yet not charge those men with 
 crimes for there be grounds of diffidence which lie not in 
 proof. There are others, which though they may be proved, 
 yet are not legally criminal.' ^ The only effectual means of 
 
 ^ Hallam, ii. 411. 
 '' 2 Grand Remonstrance, §§ 198, 199. 
 
(2) POLITICAL: THE CABINET 73 
 
 meeting the difficulty was, as the same document points 
 out, for the King * to employ such counsellors ... as the 
 Parliament may have cause to confide in '. In a word, the 
 King's Ministers must become the servants of Parliament. 
 But the time for working out the scheme adumbrated with 
 remarkable prescience by Pym in 1641, had not yet come. 
 Nor was it advanced by the personal ascendancy obtained 
 by Cromwell after the Civil War. The revival of parlia- 
 mentary authority after the Restoration brought it a stage 
 nearer, and after the Revolution of 1688 the doctrine on 
 which it rested was not seriously disputed. 
 
 But at this point it is essential to insist upon a fact which 
 is frequently ignored and still more commonly obscured. 
 Ministerial responsibility is not the same thing as Cabinet 
 responsibility. In one sense the two principles are actually 
 opposed. Parliament might well have succeeded in sub- 
 stantiating the principle of the legal, and perhaps even the 
 political responsibility of individual ministers without ever 
 evolving the Cabinet system. In America, for example, the 
 President's ministers are responsible and liable to impeach- 
 ment for offences committed in the discharge of their 
 duties. Whether they are also impeachable * for bad advice 
 given to the head of the State' is a question which, as 
 Mr. Bryce points out, has never arisen. But, according 
 to the same authority, 'upon the general theory of the 
 Constitution it would rather seem that ' they are not.' In 
 England the Ministers of State are, as will be shown, both 
 legally responsible for their individual acts, and politically 
 responsible for their collective advice. But the two respon- 
 sibilities are separable and distinct. 
 
 Towards the theory of ministerial responsibility the seven- 
 teenth century made a large and important contribution; 
 towards the doctrine of collective Cabinet responsibility it 
 made, in outward form and seeming, none. But the evolu- 
 * American Commonwealth, i. 86. 
 
 v^ 
 
74 THE EXECUTIVE 
 
 tion of the Cabinet system was none the less steadily though 
 slowly advancing, and to the history of that process we 
 must now return. 
 
 The virtual supersession of the Privy Council under 
 Charles II, was regarded by constitutionalists with extreme 
 disfavour, and two attempts were made to arrest the 
 development of the informal Cabinet or Cabal. The firs 
 is associated with the name of Sir William Temple, though 
 it is doubtful whether that distinguished diplomatist can be 
 held responsible for the scheme. ' Temple's ' Privy Council 
 was to consist of thirty members : fifteen ofiice-holders and 
 fifteen unofficial members of great wealth and political 
 influence. The experiment, though not ill-designed for the 
 purpose of restoring harmony between the King and Parlia 
 ment, deserved the failure which speedily overtook it. A 
 council of thirty is too small for deliberation, and too large 
 for executive purpbses, and things quickly relapsed into 
 the position from which Temple's scheme was intended to 
 extricate them. Within a few months the King was again 
 holding consultation only with a small knot of statesmen. 
 From this practice neither Charles II nor his successors 
 ever afterwards departed. Temple's short-lived experiment 
 had proved itself impotent alike to restore to the Privy 
 Council its constitutional place and importance, or to arrest 
 the development of the convenient but unconstitutional 
 substitute, soon to take form as the Cabinet. 
 
 In 1679 the King had bidden farewell to his Privy 
 Council in these significant words : * His Majesty thanks 
 you for all the good advice which you have given him, 
 which might have been more frequent if the great numbers 
 of the Council had not made it unfit for the secrecy and 
 dispatch of business. This forced him to use a smaller 
 number of you in a foreign committee, and sometimes the 
 advice of some few among them upon such occasions for 
 many years past.' These words are in effect the funeral 
 
(2) POLITICAL: THE CABINET 75 
 
 oration over the dead body of the Privy Council. This 
 was virtually the end of the old Privy Council as an Execu- 
 tive body. 
 
 Meanwhile, the Cabinet developed rapidly. Its evolution 
 was materially assisted by the growth of the party system 
 in Parliament. The origin of that system is commonly 
 ascribed with over-precision to the year 1679. It was 
 then no doubt that the party labels, Whigs and Tories, 
 were first affixed to the two parties which desired respec- 
 tively the passing and the rejection of the Bill for the 
 exclusion of the Duke of York from the succession. The 
 historic parties, themselves, may more properly be said 
 to originate in the debates of the Long Parliament, and 
 particularly in the discussions on the Grand Remonstrance. 
 But be this as it may, Whigs and Tories, as organized 
 parliamentary parties, were becoming clearly defined by 
 the Revolution of 1688. 
 
 For the first years after the Revolution William III 
 selected his Ministers indifferently from the two great 
 party camps. But the expedient, though well meaning, 
 did not work, and in 1695 Sunderland persuaded the King 
 to confide the great offices of State exclusively to the leaders ^ 
 of the Whig party, at that time predominant in Parliament. 
 To this year, and to the formation of the Whig Junto, 
 Macaulay seems to attach an exaggerated importance. 
 Sunderland's Junto of 1697 may indeed be regarded as the 
 first homogeneous Ministry, and, as such, it registers an 
 important stage in the evolution of the modem Cabinet. 
 Further, it is the first Cabinet which intentionally reflected 
 the parliamentary majority for the time being. But that 
 evolution was very far from being complete in 1697. The 
 two essential features were still lacking : the Ministry owned tX 
 no conscious subordination to a common political chief; 
 and the King still presided in person at the meetings of his 
 Cabinet. William III was in fact, as well as in theory, the 
 
76 THE EXECUTIVE 
 
 head of the Executive Government. Meanwhile, towards 
 the end of his reign a determined and deliberate attempt 
 was made to arrest the progress already made in the 
 direction of Cabinet government and to reconstitute the 
 authority of the Privy Council. Section 3 of the Act of 
 Settlement (1701) enacted 'that ... all matters and things 
 relating to the well governing of this kingdom which are 
 properly cognizable in the Privy Council by the Laws and 
 Customs of this realm shall be transacted there, and all 
 resolutions taken thereupon shall be signed by such of the 
 Privy Council as shall advise and consent to the same'. 
 The same section further provided 'that no person who 
 has an office or place of profit under the King or receives 
 a pension from the Crown shall be capable of serving as 
 a member of the House of Commons'. Fortunately for 
 the constitutional evolution of England neither of these 
 provisions ever became operative. The first was repealed by 
 Statute (4 & 5 Anne, c. 20, § 27) in 1705 ; the second was 
 modified so as to permit Ministers of the Crown to seek 
 re-election to the House of Commons after the acceptance 
 of office. 
 
 But despite the removal of these obstructions little progress 
 was made with the development of the Cabinet principle 
 under Queen Anne. The Queen had no intention of 
 surrendering to Ministers her personal initiative in matters 
 of State. Like her predecessor she frequently presided at 
 Cabinet Councils, and the policy adopted there was to 
 a large extent her own. But one significant step must be 
 marked. The Queen's sympathies were entirely with the 
 Tory party, and the Whig Ministers who dominated the 
 Council during the middle of the reign were forced upon 
 the Queen, despite her personal inclinations. Particularly 
 was this the case with the appointment of Lord Somers to 
 the Presidency of the Council in 1708. The Queen was 
 not without compensation : the irresponsibility of the 
 
(2) POLITICAL: THE CABINET 77 
 
 Crown was fully and finally established. * For some time 
 past', said Rochester in 171 1, 'we have been told that the 
 Queen is to answer for everything, but I hope that time is 
 over. According to the fundamental constitution of the 
 kingdom the Ministers are accountable for all. I hope 
 nobody will, nay nobody durst, name the Queen in this 
 connexion.' * Nevertheless the Queen continued not merely 
 to reign, but actually to rule. The Ministers were still, 
 although to a diminishing extent, the Ministers of her will ; 
 the policy which they pursued was inspired by her personal 
 wishes. 
 
 The real point of transition is marked by the accession of 
 the first Sovereign of the House of Hanover. George I 
 was the first 'Constitutional' King of England in the 
 narrower acceptation of that time : he reigned but he did 
 not rule. Henceforward the dividing lines of English 
 history are to be found not in the accession of successive 
 Sovereigns but in the changes of Ministries. For the 
 consummation at this particular juncture of a development 
 which had been long in process two things were in the 
 main responsible : first, George I was a German, with no 
 command of the English tongue and a languid interest in 
 English politics; and next, supreme power fell into the 
 hands of a man of exceptional strength and tenacity of 
 character. To Sir Robert Walpole belongs the distinction 
 of having been the first really to define our Cabinet system, 
 of having been himself the first Prime Minister in the true 
 and complete sense of the term. 'At whatever date ', writes 
 Lord Morley of Blackburn, * we choose first to see all the 
 decisive marks of that remarkable system which combines 
 unity, steadfastness, and initiative in the Executive, with 
 the possession of supreme authority alike over men and 
 measures by the House of Commons, it is certain that it 
 was under Walpole that its ruling principles were first fixed 
 * Parliamentary History, vol. vi, p. 972. 
 
78 THE EXECUTIVE 
 
 in Parliamentary government and that the Cabinet system 
 received the impression that it bears in our own time.' * 
 
 w'lt was Walpole', writes another distinguished publicist, 
 * who first administered the Government in accordance with 
 
 ^ his own views of our political requirements. It was Walpole 
 who first conducted the business of the Country in the House 
 of Commons. It was Walpole who in the conduct of that 
 business first insisted upon the support for his measures of 
 all servants of the Crown who had seats in Parliament. It 
 was under Walpole that the House of Commons became 
 the dominant power in the State, and rose in ability and 
 influence as well as in actual power above the House of 
 
 ; Lords. And it was Walpole who set the example of quitting 
 his office while he still retained the undiminished affection 
 of his King for the avowed reason that he had ceased to 
 possess the confidence of the House of Commons.' ^ We 
 have in this passage an admirably succinct summary of 
 the essential principles on which Cabinet government 
 depends ; it remains only to set them forth explicitly and 
 with somewhat greater amplification of detail. 
 
 V . A first essential is the exclusion of the Sovereign. Down to 
 the death of Queen Anne this condition, as we have seen, was 
 not invariably fulfilled. How long it would have remained 
 unfulfilled, whether the Sovereign would ever have been 
 excluded from the meetings of the Cabinet, but for the 
 accidental circumstance that George I had no English, it 
 is impossible to say. It is none the less the fact that the 
 accession of a foreigner to the English throne at a critical 
 moment in our Constitutional development, imparted a 
 decisive bias not to the institutions of this country only 
 but to those of a large part of the civilized world. So long 
 as the Sovereign sat at the Council-board, some degree of 
 political responsibility necessarily attached to him ; but the 
 
 ^ Walpole, p. 142. 
 
 2 Heam, Government of England, p. 220. 
 
(2) POLITICAL: THE CABINET 79 
 
 irresponsibility of the Sovereign is a condition precedent to 
 the complete responsibility of his servants. During the 
 long administration of Sir Robert Walpole this vital prin- 
 ciple was fully and finally accepted.^ 
 
 A second principle, not less important, is the close 
 correspondence between the Cabinet and the Parliamen- 
 tary majority for the time being. Such correspondence has 
 been a matter of gradual growth and was obviously not 
 possible at all until the definition of the Party system in 
 Parliament. Sunderland's Whig Junto of 1697 was based 
 upon this principle. In deference to the same principle 
 Queen Anne was compelled, much against her inclinations, 
 to admit to her Councils Whig Ministers. Not until the 
 Country returned a Tory majority to the House of Commons 
 in 1 7 10 did the Queen venture to dismiss the Whigs and 
 replace them in office by the Tories. Walpole remained in 
 office so long as he retained the confidence of the House of 
 Commons ; but no longer. When he was defeated in 1 742 
 on the question of the Chippenham election he resigned 
 office, and this cardinal principle may be said to have 
 been definitely established. Even George III so far 
 recognized its validity as to lend all his energies to 
 securing a subservient House of Commons, in order that 
 he might retain a Ministry after his own heart. 
 
 The principle is now maintained in two ways : first, as 
 we have seen, by requiring that the Cabinet shall reflect 
 
 1 Miss Blauvelt {Cabinet Government in England, c. vi, Appendix a) 
 mentions the presence of George I at two Cabinet meetings : once, on 
 the authority of Coxe {Walpole^ vol. i, p. 71), when evidence was laid 
 before the Cabinet implicating Wyndham in a Jacobite plot; and 
 secondly, after the landing of the Pretender in Scotland in 17 15, in 
 reference to which Townshend writes to Stanhope : * The Lords of the 
 Cabinet Council, his Majesty being present, did ' &c. Sir William Anson 
 {Law of the Constitution, ii. 38) says that Todd also mentions three 
 occasions on which the King has been present at a Cabinet Meeting 
 since the accession of George I ; but he adds, ' as exceptions from the 
 established rule they are wholly unimportant.' 
 
8o THE EXECUTIVE 
 
 the political colour of the majority in Parliament; and, 
 secondly, by the rule that all members of the Cabinet 
 shall be members of one or other House of the Legislature. 
 This rule is not absolute. In i88o Sir William Harcourt, 
 when Secretary of State for the Home Department, found 
 himself temporarily without a seat in Parliament. The 
 same fate befell Mr. Goschen when appointed Chancellor of 
 the Exchequer in 1887. And there have been other and 
 more recent instances of the temporary exclusion of Cabinet 
 Ministers from Parliament. More striking because more 
 deliberate was the refusal of Mr. Gladstone to seek re-elec- 
 tion at Newark when appointed by Sir Robert Peel to the 
 Colonial Secretaryship in December 1845. As a result he 
 was, though a leading member of the Cabinet, out of Parlia- 
 ment during the difficult and momentous Session of 1846. 
 But these are exceptions which prove a rule, now firmly 
 established. It is noticeable that under the written Consti- 
 tution of the Australian Commonwealth there is no room 
 for exceptions. Section 64 of the Commonwealth Act of 
 1900 provides that: * After the first general election no 
 Minister of State shall hold office for a longer period than 
 three months unless he is or becomes a Senator or a member 
 of the House of Representatives.' With this may be con- 
 trasted Section 6 of the Constitution of the United States : 
 ' No person holding any office under the United States shall 
 be a member of either House during his continuance in 
 office.' Australia has chosen to follow the practice of 
 England ; the United States preferred the theory of 
 Montesquieu. 
 
 Closely connected with the principle of correspondence 
 between the Executive and the parliamentary majority is 
 a third principle : that of the political homogeneity of the 
 Cabinet. It is obvious, indeed, that if the members of the 
 Cabinet are to reflect the political colour of the parlia- 
 mentary majority, they must themselves be drawn from the 
 
(2) POLITICAL: THE CABINET 8i 
 
 same political party. But this, like other principles now 
 deemed essential to Cabinet Government, was only estab- 
 lished by slow degrees. The earlier ministries of Queen 
 Anne, and many of the Cabinets of George III, were 
 eminently composite. 
 
 So long as this was the case, a fourth principle must 
 necessarily have remained embryonic : that of collective re- 
 sponsibility. For many years the responsibility of members 
 of the Cabinet was individual and departmental. So late 
 as 1806 Lord Temple maintained this view : 'The Cabinet 
 was not responsible as a Cabinet, but the Ministers were 
 responsible as the officers of the Crown.' * Walpole strongly 
 favoured the opposite view, and did his best to enforce it 
 upon his colleagues. He dismissed various colleagues who 
 opposed his Excise Bill, but even he found it necessary to 
 repudiate the suspicion that they were dismissed on that 
 account : ' Certain persons,' he declared, * had been removed 
 because his Majesty did not think best to continue them 
 longer in Service. His Majesty has a right so to do, and 
 I know of no one who has a right to ask him, What doest 
 thou ? ' On another occasion the King sent for the Duke of 
 Newcastle and reproached him for opposition to the policy 
 of the Cabinet to which he belonged. * As to business in 
 Parliament ', he said, * I do not value the opposition, if all my 
 servants act together and are united ; but if they thwart one 
 another, and create difficulties to the transaction of public 
 business then indeed it will be a different case.'" But 
 thwart each other they not infrequently did. The doctrine 
 of departmental responsibility died hard; that of Cabinet 
 responsibility developed slowly. At what precise point in 
 our history it can be said to have been definitely established, 
 
 ^ Quoted by Anson (op. cit., p. 119), who shows that the responsi- 
 bility here referred to was legal responsibility sanctioned by the process 
 of impeachment : not moral responsibility sanctioned by public opinion. 
 
 ' Blauvelt, pp. 237, 338. 
 
 1120 F 
 
82 THE EXECUTIVE 
 
 it is difficult to say. Professor Hearn — an authority entitled 
 to high respect — is inclined to regard the second Rocking- 
 ham ministry — that of 1782 — as 'the first of modern minis- 
 tries ', from the point of view of collective responsibility and 
 corporate unity. For the first time the new ministry came in 
 as a body ' on the distinct understanding that measures were 
 to be changed as well as men, and that the measures for 
 which the new Ministry required the Royal consent were the 
 measures which they, while in opposition, had advocated'. So 
 lately as 1763 the elder Pitt had been baulked in a similar 
 attempt. When negotiations were opened with him for the 
 formation of a ministry he demanded the removal of all the 
 ministers who had supported the Peace of 1763, and insisted 
 that he and his friends must * come in as a party '. No demand 
 could have been more distasteful to George III, and Pitt's 
 terms, which at the time were regarded as wholly extravagant, 
 were unequivocally declined. Rockingham effected unpre- 
 cedented changes in the personnel of the administration 
 when he formed his first ministry in 1765. *I do not 
 remember in my times ', writes Lord Chesterfield, * to have 
 seen so much at once as an entire new Board of Treasury and 
 two New Secretaries of State cum multis aliisJ ^ It is clear, 
 therefore, that the principle of Cabinet solidarity was gaining 
 ground rapidly in the eighteenth century ; whether Professor 
 Hearn is strictly accurate in assigning to a specific date the 
 final and complete establishment of the principle is more open 
 to doubt. This at least must be said, that if we accept 1782 
 as a definite date we must continue to admit exceptions as 
 proving a rule. But be this as it may, no one will deny that 
 the existing doctrine of the Constitution is accurately inter- 
 preted in a classical passage by Lord Morley of Blackburn. 
 
 'As a general rule,' he writes, 'every important piece of 
 departmental policy is taken to commit the entire Cabinet, 
 and its members stand or fall together. The Chancellor of 
 ^ Hearn, Government of England, pp. 213, 213. 
 
(2) POLITICAL: THE CABINET 83 
 
 the Exchequer may be driven from office by a bad dispatch 
 from the Foreign office, and an excellent Home Secretary 
 may suffer for the blunders of a stupid minister of war. The 
 Cabinet is a unit — a unit as regards the Sovereign, and a 
 unit as regards the Legislature. Its views are laid before the 
 Sovereign and before Parliament, as if they were the views 
 of one man. It gives its advice as a single whole, both in 
 the royal closet, and in the hereditary or representative cham- 
 ber. . . . The first mark of the Cabinet, as that institution is 
 now understood, is united and indivisible responsibility.'^ 
 
 With this famous and authoritative passage from the pen 
 of Lord Morley we may compare the even more authoritative 
 utterance of his late chief. ' As the Queen ', said Mr. Glad- 
 stone, ' deals with the Cabinet, just so the Cabinet deals with 
 the Queen. The Sovereign is to know no more of any 
 differing views of different ministers than they are to know 
 of any collateral representation of the monarchical office ; 
 they are an unity before the Sovereign, and the Sovereign is 
 an unity before them.' And again : * While each Minister 
 is an adviser of the Crown, the Cabinet is an unity, and 
 none of its members can advise as an individual, without, or 
 in opposition actual or presumed to, his colleagues.' ^ 
 
 The solidarity of the Cabinet depends largely upon the / 
 fifth and last of the essential principles on which the institu- 
 tion rests — the ascendancy of the Prime Minister. In the 
 whole English Constitution there is nothing more character- 
 istically English than the position of this great functionary. 
 The Prime Minister is the political ruler of England, but not y 
 until 1905 was his position recognized in the table of social 
 precedence, and it is still doubtful whether there is an 
 
 * Life of Walpole, pp. 155, 156. 
 
 ' Gleanings, i. ^ 74, 242. With Gladstone's view we must com- 
 pare the very remarkable correspondence between Queen Victoria'and 
 Lord Granville with reference to Foreign Policy in 1859 and 1864. 
 Granville was Lord President of the Council, Palmerston Premier, and 
 Lord John Russell Foreign Secretary. The Queen's mistrust of the two 
 latter is obvious. Cf. Fitzmaurice, Granville^ ii. 349 and 456-9. 
 
 F 2 
 
84 THE EXECUTIVE 
 
 * office' of Prime Minister. The point is amusingly 
 illustrated by an incident in the life of Lord Palmerston. 
 The latter when visiting the Clyde in 1863 was received with 
 great enthusiasm. * The captain of the guardship, anxious 
 to do honour to the occasion, was hindered by the fact that 
 a Prime Minister was not recognized in the code of naval 
 salutes ; but he found an escape from his dilemma in the 
 discovery that Lord Palmerston was not only First Lord of 
 the Treasury, but also Lord Warden of the Cinque Ports, 
 for which great officer a salute of nineteen guns was pre- 
 scribed — an apt instance ', as Mr. Ashley adds, * of the minor 
 anomalies of the Constitution under which we live.'^ 
 
 An incident which took place in the House of Commons 
 so lately as May 3, 1906, is in this connexion not without 
 significance. Mr. Paul, member for Northampton, had 
 given notice of a question to be addressed to the First Lord 
 of the Treasury. On his rising to put the question the 
 following instructive dialogue took place : 
 
 Mr. Paul. ' Before putting this question, Mr. Speaker, 
 may I ask for your ruling ? Whenever I put down a ques- 
 tion addressed to the Prime Minister that name is struck out 
 at the table and the words " First Lord of the Treasury " 
 substituted. I understood that the King had been pleased 
 to confer the style and title of Prime Minister, with appro- 
 priate precedence, on the head of his Government, and that 
 that was now the proper official designation of the right hon. 
 gentleman. I have observed that you yourself, sir, have 
 made use of it. Perhaps you will be good enough to say for 
 the information of the House and the table whether I 
 rightly apprehend the significance of his Majesty's most 
 gracious act ? ' 
 
 The Speaker. * If I am asked to decide on the spur of 
 the moment I should say that Prime Minister was the proper 
 designation.' 
 
 Mr. Paul. ' I beg most respectfully to thank you for 
 your reply and to ask the Prime Minister the question of 
 which I have given notice.' 
 
 Sir H. Campbell-Bannerman. ' I hope my hon. friend 
 
 ^ Ashlev. Life of Lord Palmerston, \\. 2XX' 
 
(2) POLITICAL: THE CABINET 85 
 
 will find that the rose by either name will give the same 
 answer.' 
 
 Two years before (1904), Mr. Balfour was asked in the 
 House of Commons 'whether he was aware of any such 
 official recognized by law as the Prime Minister ' ? He had 
 already answered the question by anticipation in a speech at 
 Haddington : ^ ' The Prime Minister has no salary as Prime 
 Minister. He has no statutory duties as Prime Minister, his 
 name occurs in no Acts of Parliament, and though holding 
 the most important place in the Constitutional hierarchy , he 
 has no place which is recognized by the laws of his country. 
 That is a strange paradox.' Some part of the paradox has 
 been removed by the assignment to the Prime Minister of a 
 precedence between the Archbishop of York and the premier 
 Duke, and the title now frequently appears in official docu- 
 ments.'' The Prime Minister has at last got a social position, 
 is it certain that he has even now got a political position ? 
 This at any rate may be said without fear of contradiction. 
 It is still so far true that there is no 'office' of Prime 
 Minister, that no one could, by usage, be Prime Minister, or 
 sit as such in his own Cabinet, unless he held simultaneously 
 some recognized office. This office is commonly that of 
 First Lord of the Treasury. To this Mr. Gladstone, follow- 
 ing the precedent of Pitt and Canning, added on two 
 occasions that of Chancellor of the Exchequer. Lord 
 Salisbury, when Prime Minister, was for several years also 
 Secretary of State for Foreign affairs, and later was Lord 
 Privy Seal. Lord Rosebery took the office of Lord Presi- 
 dent of the Council. The precise office assumed by the 
 Prime Minister, in addition to his own, matters not; but 
 without such an office he would receive no salary, and, until 
 
 * Quoted by Sidney Low, Governance of England^ p. 153. 
 
 "^ Thus in the London Gazette : at the Council Chamber, "Whitehall, 
 the 10th day of May, 1910. By the Lords of his Majesty's Most 
 Honourable Privy Council. Present : Archbishop of Canterbury, 
 Archbishop of York, Prime Minister, Lord Privy Seal, Mr. Secretary 
 Churchill. It is this day ordered, &c. 
 
86 THE EXECUTIVE 
 
 lately, would have enjoyed no precedence. ' Nowhere in 
 the wide world ', says Mr. Gladstone, ' does so great a sub- 
 stance cast so small a shadow ; nowhere is there a man who 
 has so much power, with so little to show for it in the way 
 of formal title or prerogative.' ^ 
 
 It is the holder of this paradoxical position who forms and 
 ''maintains in being the Cabinet. The Prime Minister is, in 
 Lord Morley's words, 'the keystone of the Cabinet arch.' 
 The phrase is as precise as it is picturesque. The keystone 
 keeps the arch together ; it depends for its position on the 
 arch. To the evolution of the ofifice of Prime Minister some 
 words, therefore, may properly be devoted. 
 
 Where are we to look for the protoplasm of this vigorous 
 germ ? At most periods of English history there has been a 
 person who had many of the attributes of a Prime Minister 
 of the Crown. Ralph Flambard under William II ; William 
 Longchamp under Richard I ; Hubert Walter under King 
 John ; William of Wykeham who resigned in consequence of 
 an adverse vote in Parliament in 137 1 ; Wolsey and Thomas 
 Cromwell under Henry VIII ; William Cecil, Lord Bur- 
 leigh, under his imperious daughter; Edward Hyde, Lord 
 Clarendon, in the years immediately succeeding the Restora- 
 tion — all these had some of the attributes of a modern 
 Prime Minister, but they lacked, still more noticeably, the 
 essential characteristics. They had no necessary or con- 
 tinuous connexion with Parliament, and they had none with 
 a Cabinet or Council of Ministers. They were servants of 
 the King ; holding office solely at his pleasure and responsi- 
 ble to him. Clarendon, it is true, was impeached by the 
 Commons ; but his fall was due primarily to the fact that he 
 had lost the favour of the Crown; and we must recall 
 the warning already given against the confusion between 
 the legal responsibility of an individual minister, and the 
 moral responsibility of a collective Cabinet. Nevertheless, 
 Clarendon's career marks the beginning of the period of 
 1 Gleanings J i. 244. 
 
(2) POLITICAL: THE CABINET 87 
 
 transition. Danby was even more like a modern Prime 
 Minister ; but he was not the head of the Cabinet. In Somers 
 we find a still closer resemblance, but William III was still 
 in every sense of the word master in his own Cabinet. So 
 long as that lasted there could be no Premier in the modern 
 sense. Queen Anne strove gallantly to maintain the position 
 of the Crown ; but Godolphin's ascendancy brings us a step 
 nearer the modern system : still, no man as yet has been 
 Prime Minister of England. Sir Robert Walpole clearly was, 
 and with him the earlier stages in the evolution of the office 
 may be said to be complete. Walpole is the master of the 
 Cabinet ; his colleagues are his subordinates and nominees. 
 He is also leader of the House of Commons, and when the 
 House withdraws its confidence he ceases to be Prime 
 Minister. At last we are obviously in a modern atmosphere. 
 But there is much characteristic jealousy of the new depar- 
 ture. Clarendon undoubtedly interpreted aright the preva- 
 lent sentiment when in 166 1 he refused the suggestion of the 
 Duke of Ormond that he should resign the Chancellorship 
 and be content to advise the King on questions of general 
 policy. • He could not consent ', he replied, * to enjoy a 
 pension out of the Exchequer under no other title or pre- 
 tence but being First Minister, a title so newly translated out 
 of French into English that it was not enough understood 
 to be liked, and everyone would detest it for the burden it 
 was attended with. Roger North says that Jefferies was at 
 one time * commonly reputed a favourite and next door to 
 premier minister.'^ Swift frequently describes Harley as 
 Prime Minister, and in the preface to the Last Four Years 
 of Queen Anne refers to 'those who are now commonly 
 called Prime Ministers among us '. But the new title, perhaps 
 by reason of its Gallic origin, made slow way towards general 
 acceptance in England. It was one of the most serious 
 accusations against Walpole that he made himself 'sole 
 minister ' and ' Prime Vizier '. A Protest of dissentient Peers, 
 * Lives of the Norths, p. 354, ap. Blauvelt. 
 
88 THE EXECUTIVE 
 
 outvoted on the motion to remove Walpole, declared in 1741 
 that * a sole or even a first minister is an officer unknown to 
 the law of Britain, inconsistent with the constitution of this 
 country, and destructive of liberty in any Government 
 whatever '. Sandys declared in the House of Commons : 
 'We can have no sole and Prime Minister. We ought 
 always to have several Prime Ministers and officers of State.' 
 But more remarkable than the accusation is the defence. 
 So far from justifying the usage Walpole repudiated the title 
 and the office. * I unequivocally deny that I am sole and 
 Prime Minister and that to my influence and direction all 
 the affairs of Government must be attributed. ... I do not 
 pretend to be a great master of foreign affairs. In that post 
 it is not my business to meddle, and as one of His Majesty's 
 Council I have but one voice.' From a real Prime Minister 
 such a declaration would be simply amazing ; it affirms not 
 the modern English doctrine, not the idea of Cabinet 
 responsibility, but that of American departmentaUsm. Far 
 different is the view taken of his office by the younger Pitt. 
 In conversation with Melville in 1 803 he dwelt ' pointedly 
 and decidedly upon the absolute necessity there is in 
 this country that there should be an avowed and real 
 minister, possessing the chief weight in the Council and the 
 principal place in the confidence of the King. In that 
 respect (he contended) there can be no rivalry or division of 
 power. That power must rest in the person generally called 
 the First Minister '. The office, perhaps, reached its zenith 
 in the person of Sir Robert Peel. He was, says Lord 
 Rosebery, ' the model of all Prime Ministers. It is more 
 than doubtful, indeed, if it be possible in this generation, 
 when the burdens of Empire and of office have so incalcul- 
 ably grown, for any Prime Minister to discharge the duties 
 of his high post with the same thoroughness or in the same 
 spirit as Peel . . . Peel kept a strict supervision over every 
 department : he seems to have been master of the business 
 of each and all of them ... it is probable that no Prime 
 
(2) POLITICAL: THE CABINET 89 
 
 Minister ever fulfilled so completely and thoroughly the 
 functions of his office, parliamentary, administrative, and 
 general as Sir Robert Peel.' ^ Mr. Gladstone's testimony is 
 to the same effect : ' Nothing of great importance is matured 
 or would even be projected in any department without his 
 personal cognizance.' But Peel himself was clearly 
 becoming conscious that his own conception of his great 
 office was 'becoming impossible of realization, except by send- 
 ing all Prime Ministers to the House of Lords ' "^ — a solution 
 to which he personally refused to assent. Mr. Gladstone 
 declared that ' the Head of the British Government is not a 
 Grand Vizier '. Lord Rosebery hints that Mr. Gladstone, 
 in his first Ministry of 1868, may have occupied a similar 
 position, but he declares with emphasis — and not without 
 knowledge — that the position of a modern Prime Minister is 
 very different. He is merely * the influential foreman of an 
 executive jury ' ; he has ' only the influence with the Cabinet 
 which is given him by his personal arguments, his personal 
 qualities and his personal weight '.* Lord Rosebery writes, 
 of course, with great authority, but it would not be wise to 
 lay too much stress upon a constitutional dictum obviously 
 coloured by recent personal experience obtained under 
 circumstances which were perhaps exceptional. 
 
 But whatever be the position of a Prime Minister in rela- 
 tion to his Cabinet colleagues, there is no ambiguity in his 
 relation to the general machinery of the State. Backed by 
 a stable and substantial majority in Parliament, his power, as 
 Mr. Low truly says, is greater than that of the German 
 Emperor or the American President, * for he can alter the 
 laws, he can impose taxation and repeal it, and he can direct 
 all the forces of the State. The one condition is that he must 
 
 ^ Rosebery, Sir Robert Peel, pp. 27-9. 
 
 * * I defy the Minister of this country to perform properly the duties 
 of his office . . . and also sit in the House of Commons eight hours 
 a day for 118 days.' Peel, Papers (ed. Parker), iii. 219. 
 
 5 Rosebery, Peel, pp. 32, 33. The whole passage is one of extra- 
 ordinary interest, but the warning in the text should not be neglected. 
 
90 THE EXECUTIVE 
 
 keep his majority, the outward and concrete expression of 
 the fact that the nation is not wiUing to revoke the plenary 
 commission with which it has clothed him.' ^ The Prime 
 / Minister occupies in fact a fourfold position : he is (to put 
 it at the lowest) the chairman of the Executive Council ; he 
 is the leader of the Legislature ; he is indirectly the nominee 
 of the political sovereign or electorate, and finally he is, in a 
 special degree, the confidential adviser of the Crown and the 
 ordinary channel of communication between the Crown and 
 the Cabinet. *He reports to the Sovereign', says Mr. 
 Gladstone, * its proceedings, and he also has many audiences 
 of the august occupant of the Throne. He is bound, in 
 these reports and audiences, not to counterwork the Cabinet ; 
 not to divide it ; not to undermine the position of any of his 
 colleagues in the Royal favour. If he departs in any degree 
 from strict adherence to these rules, and uses his great 
 opportunities to increase his own influence, or pursue aims 
 not shared by his colleagues, then unless he is prepared to 
 advise their dismissal he not only departs from rule, but 
 commits an act of treachery and baseness. As the Cabinet 
 stands between the Sovereign and the Parhament, and is 
 bound to be loyal to both, so he stands between his colleagues 
 and the Sovereign and is bound to be loyal to both.'* 
 
 Such is the position of the Prime Minister of to-day ; the 
 resultant of a lengthy process of political evolution. And 
 the advent of the modern Prime Minister has meant, by 
 general consent, the exit of the pre-revolution Monarchy. 
 
 There remains to be asked, however, one question of some 
 nicety, if not of delicacy. To what extent has the actual 
 political power of the Crown suffered total eclipse ? What 
 rights does the personal Sovereign still retain? To this 
 question it is obvious that there can be no answer either 
 final or complete. In a constitution so entirely flexible as 
 our own much must depend upon the personal equation. 
 We are warned by Lord Rosebery that it is so even in the 
 1 Op. cit., p. 47. ' Gleanings^ i. 243. 
 
(2) POLITICAL: THE CABINET 91 
 
 case of the Prime Minister. Much more so must it be true 
 of the occupant of the Throne. There, too, personal character 
 must tell with overwhelming effect; and there, as we are 
 beginning to learn from various authoritative sources, it has 
 told during the last half century. 
 
 There is, however, one weapon left in the armoury of the 
 Crown, the importance and reality of which are alike incon- 
 testable. The King has the right of appeal from Parliament 
 to the masters of Parliament, from his own advisers to the 
 political Sovereign before the expression of whose deliberate 
 will the legal Sovereign must bow. This right the King 
 would be compelled to exercise if he were unable to find a 
 Ministry willing at once to accept responsibility for his acts 
 and at the same time able to secure and retain the confidence 
 of the House of Commons. But it is a weapon which he 
 would hesitate except in the last resort to employ. And 
 for an obvious reason. An adverse verdict would create 
 a situation almost intolerable. The position of the King 
 would be that of a master who has given notice to servants 
 and has been compelled by circumstances to retain them on 
 their own terms. The books used to teach that William IV 
 ventured to employ this weapon against the Whigs in 1834, 
 when having dismissed the Melbourne Ministry he dissolved 
 Parliament in the hope of securing a majority for Sir Robert 
 Peel. But the incident is capable of other explanations and 
 the Melbourne Papers make it clear that the Prime Minister 
 was, to say the least, a consenting party. On the other hand, 
 the King would be equally within his constitutional right in 
 appealing to Parliament against his Ministry. This would 
 in effect be done by refusing a dissolution of Parliament to 
 a retiring Ministry.* 
 
 A third right which still belongs incontestably to the Crown 
 is the selection of a Prime Minister.'^ The choice is, of course, 
 
 * Several such instances have occurred in the Dominions : for which 
 see Keith, Self Government^ PP. 42 seq. 
 "^ This right was hotly contested by the Rockingham Whigs, circ, 1 78a. 
 
92 THE EXECUTIVE 
 
 very narrowly limited in practice, but it is not denied that, 
 within such limits, the discretion permitted to the Crown is 
 a real one. 
 
 But infinitely more important than such formal rights 
 still vested in the Crown are the informal rights, or rather 
 the opportunities enjoyed by the Sovereign in virtue of his 
 position. Kings are mortal, but they are not ordinary mortals ; 
 a glamour attaches to their position and person which even 
 the stoutest and most self-assured democrats find irresistible. 
 The sentiment thus inspired may be unworthy or the reverse ; 
 but it is idle to deny that it exists, or that it gives the 
 Sovereign an initial advantage in dealing with any Minister, 
 however powerful. Bagehot enumerates three rights possessed 
 J by the King : ' the right to be consulted, the right to encourage, 
 the right to warn.' ' A King of great sense and sagacity 
 would want', he adds, 'no other.' TheZ^/Z^r^of Queen Victoria 
 afford innumerable illustrations of her insistence upon these 
 rights. It was the violation of her right to be consulted 
 which brought Lord Palmerston into trouble during his third 
 tenure of the Foreign office, and which really led to his abrupt 
 dismissal in 185 1. His indiscretion in regard to the couJ> 
 d^itat of Prince Louis Napoleon would hardly have been 
 visited with punishment so condign, had he not already 
 forfeited the confidence of the Queen and perpetually ignored 
 the warnings of the Prime Minister. 
 
 *The Queen', so ran the famous memorandum of 1850, 
 'requires, first, that Lord Palmerston will distinctly state 
 what he proposes in a given case, in order that the Queen 
 may know as distinctly to what she is giving her royal 
 sanction. Secondly, having once given her sanction to such 
 a measure that it be not arbitrarily altered or modified by 
 the minister. Such an act she must consider as failing in 
 
 The latter contended that the King must accept the nominee of the party 
 leaders. On this cf. Autobiography of the third Duke of Grafton 
 (pp. 324, 355, 359), edited by Sir W. Anson. The editor (note p. 324) 
 says : * The theory was not reasonable nor warranted by the needs of 
 Constitutional Government.' 
 
(2) POLITICAL: THE CABINET 93 
 
 sincerity towards the Crown, and justly to be visited by her 
 Constitutional right of dismissing that minister. She expects 
 to be kept informed of what passes between him and foreign 
 ministers before important decisions are taken based upon 
 that intercourse ; to receive the foreign despatches in good 
 time ; and to have the drafts for her approval sent to her in 
 sufficient time to make herself acquainted with their contents 
 before they must be sent off.' 
 
 The demand, though explicit, was entirely reasonable, and 
 Lord Palmerston justly suffered a temporary humiliation, for 
 the lack of consideration he displayed towards the Sovereign. 
 That he had a strong personal regard for the Queen, and a 
 high respect for her intellect, we have his own testimony to 
 prove : but he was inclined to treat her as an elderly family 
 solicitor occasionally treats a young lady client : * Of course, 
 my dear young lady, you can read these documents if you 
 like, but you won't understand them if you do, and you will 
 save yourself trouble and me time if you sign at once.' The 
 Queen, as is clear from her correspondence, strongly resented 
 this attitude on the part of her minister ; and properly. She 
 enforced her claim to be consulted} 
 
 Her right to encourage was perpetually exercised. Her 
 letters to Peel in the midst of the struggle for the repeal of 
 the Com Laws afford one of many illustrations. She had 
 started with considerable prejudice against the 'odd shy 
 man ', with a manner ' how different, how dreadfully different 
 to that frank, open, natural, and most kind warm manner of 
 Lord Melbourne', as she herself wrote. But Peel soon 
 won her complete confidence and that of the Prince Consort, 
 and in his fight for Free Trade, he was not a little cheered 
 by the encouragement of the Sovereign. Thus, in January 
 1846, the Queen wrote to express her 'great satisfaction' at 
 Peel's success in persuading his colleagues to accept the 
 principle of his policy, * feeling certain that what was so just 
 and wise must succeed.' On February 4 she wrote again 
 saying * she is sure that Sir Robert will be rewarded in the 
 1 Cf. note to p. 83. 
 
94 THE EXECUTIVE 
 
 end by the gratitude of the country. This will make up for 
 the abuse he has to endure from so many of his party.' On 
 the ryth Prince Albert writes to Peel : 'Allow me to tell you 
 with how much delight I have read your long speech of 
 yesterday. It cannot fail to produce a great effect, even 
 upon a party which is determined not to listen to the voice 
 of reason.' This is followed on the next day by a note from 
 the Queen herself, enclosing an equally flattering one from 
 the Duchess of Kent to her daughter : * The Queen must 
 write a line to Sir Robert Peel to say how much she admired 
 his speech.' Such letters and many like, them, attest the 
 meticulous attention bestowed by the Queen upon passing 
 events in the sphere of domestic policy. Not less close and 
 continuous is her interest in foreign policy; and not less marked 
 is the encouragement given to her Ministers during periods 
 of national stress, such as the Crimean War. No detail is 
 too small or unimportant to engage the personal attention 
 of the Sovereign : the supply of ammunition or transport 
 accessories; the exact disposition of the armaments ; hospital 
 comforts for the sick or wounded, and so forth. On these 
 points and such as these she inquires of the Secretary for 
 War. To the Prime Minister, Lord John Russell, she writes 
 to express 'her sense of the imperative importance of the 
 Cabinet being united^ of one mind, at this moment, and 
 not to let it appear that there are differences of opinion 
 within it '. 
 
 But if she was generally ready to encourage, she did not 
 hesitate to reproach. Thus in 1858 she wrote to Lord Derby 
 a letter which by itself would suffice to prove how justly 
 tenacious she was of the royal prerogative : * The Queen ', 
 she writes, ' was shocked to find that in several important 
 points her Government have surrendered the prerogative of 
 the Crown. . . . The Queen must remind Lord Derby that 
 it is to him, as the head of the Government, that she looks 
 for the protection of those prerogatives which form an integral 
 part of the Constitution.' With Lord Palmerston, in the 
 
(2) POLITICAL: THE CABINET 95 
 
 midst of the Mutiny crisis, she is much more seriously angry. 
 In her opinion — and she was undeniably right — Palmerston 
 underrated the gravity of the situation, and to the Queen, 
 far more than to the Minister, the nation owed the timely 
 dispatch of adequate reinforcements. Illustrations of the 
 judicious and opportune intervention of the Sovereign might 
 be multiplied almost indefinitely. That on some occasions 
 the Queen's action was inspired by the Prince Consort is an 
 indubitable fact, but, in this connexion, is nothing to the 
 point. One notable instance of the Prince's diplomatic tact 
 may, however, be mentioned. When the Prince was on 
 his death-bed in 1861, England and America came within 
 measurable distance of war over the Trent affair. Opinion 
 in England was seriously aroused about the detention of 
 Slidell and Mason, and Lord John Russell accurately inter- 
 preted that opinion. Punch depicts him as squaring up to 
 President Lincoln with the words ' give them up or fight '. 
 His dispatch sent down for the approval of the Queen is said 
 to have been conceived somewhat in the tone of Punches 
 cartoon. The Prince's emendations, without in the least 
 diminishing its firmness, afforded Lincoln a golden bridge 
 for retreat from an indefensible position.^ Lincoln had the 
 sense and courage to cross it ; the situation was saved, and 
 war was averted — averted, no one can doubt, by the fact 
 that the Minister's draft dispatch had to undergo the scrutiny 
 of a royal diplomatist whose tact and judgement were ripened 
 by a continuous experience of affairs, such as no Minister 
 can possibly, under our party system, hope to enjoy. The 
 Sovereign is in fact, as regards Foreign affairs, a permanent 
 Civil Servant with opportunities for acquiring a knowledge 
 of things and more particularly of men such as no Civil 
 Servant, immersed in the routine of a great office, and no 
 diplomatist touching affairs only at a single point, ever has 
 or can acquire. 
 
 But it is not only in Foreign affairs that there is room for 
 ^ Cf. Martin, Life of the Prince Consort^ v. 418-26. 
 
96 THE EXECUTIVE 
 
 the exercise of diplomatic tact on the part of the Sovereign. 
 On two notable occasions in the latter part of her reign 
 Queen Victoria is known to have intervened with success 
 to avert a conflict on questions of eminent importance be- 
 tween the two Houses of the Legislature. The first was 
 in regard to the disestablishment and disendowment of the 
 Irish Church in 1869. The Queen's personal sentiments 
 in this matter were opposed to those of her Ministers ; but 
 never for an instant did she deflect her course from that 
 prescribed to the most rigid of ' constitutional ' Sovereigns. 
 Loyalty to her Ministers ; perfect appreciation of the bear- 
 ings of the political situation; realization of the fact that 
 the House of Commons in passing the Bill by large 
 majorities reflected the sentiments of the Constituencies ; 
 above all, perhaps, anxiety to avert a conflict a outrance 
 between the two Houses ; — all these things combined to 
 induce the Queen to mediate between the Government and 
 their opponents in the House of Lords. With this object 
 General Grey, the Queen's secretary, addressed the following 
 letter to Archbishop Tait and sent a copy to the Prime 
 Minister : — 
 
 * Mr. Gladstone is not ignorant, (indeed the Queen has 
 never concealed her feeling on the subject) how deeply her 
 Majesty deplores the necessity, under which he conceived 
 himself to lie, of raising the question as he has done ; or of 
 the apprehensions of which she cannot divest herself, as to 
 the possible consequences of the measure which he has 
 introduced. These apprehensions, her Majesty is bound 
 to say, still exist in full force ; but considering the circum- 
 stances under which the measure has come to the House 
 of Lords, the Queen cannot regard without the greatest 
 alarm the probable efl'ect of its absolute rejection in that 
 house. Carried, as it has been, by an overwhelming and 
 steady majority through a House of Commons, chosen 
 expressly to speak the feeling of the country on the ques- 
 tion, there seems no reason to believe that any fresh appeal 
 to the people would lead to a different result. The rejection 
 of the bill, therefore, on the second reading, would only 
 
(2) POLITICAL: THE CABINET 97 
 
 serve to bring the two Houses into collision, and to prolong 
 a dangerous agitation on the subject.' 
 
 The Peers passed the second reading by a majority of 
 33, and Mr. Gladstone gratefully acknowledged, as well he 
 might, the efficacy of her Majesty's 'wise counsels'. His 
 own feelings are vividly depicted in a letter to the Queen. 
 
 'Mr. Gladstone would in vain strive to express to your 
 Majesty the relief, thankfulness, and satisfaction with which 
 he contemplates not only the probable passing of what 
 many believe to be a beneficent and necessary measure, 
 but the undoubted signal blessing of an escape from a 
 formidable constitutional conflict.'* 
 
 Not less memorable and not less effective was the Queen's 
 intervention in regard to another threatened conflict be- 
 tween Lords and Commons, in 1884. The circumstances are 
 relatively recent and need no elaborate rehearsal. Of all the 
 Reform Bills of the nineteenth century that of 1884 was the 
 largest in its scope. The Lords were determined, and most 
 properly, to refuse their assent to so wide an extension of 
 the electoral franchise, unless they were previously reassured 
 as to the lines of the coming Bill for the redistribution of Seats. 
 The case ^yas eminently one for compromise ; but an impartial 
 arbitrator was needed to bring the parties together. The in- 
 valuable intermediary was found through the good offices of 
 the Crown ; both sides were exhorted to moderation ; and in 
 the event Mr. Gladstone had every reason ' to tender his 
 grateful thanks to your Majesty for the wise, gracious, and 
 steady influence on your Majesty's part, which has so power- 
 fully contributed to bring about this accommodation, and to 
 avert a serious crisis of affairs '. The delicate tact demanded 
 from a conciliator in matters of such high moment it 
 requires little imagination to conceive. But it can be fully 
 appreciated only on perusal of the story in detail.' 
 
 ^ Morley, Life, ii. 278. 
 
 2 For which cf. Morley's Gladstone, vol. iii, pp. 129-39 ; and Lang, 
 Life of Lord Iddesleigh (Popular edition), p. 352, 
 1 1 20 G 
 
98 THE EXECUTIVE 
 
 It is not likely that we shall ever be able to define with 
 precision the sphere within which the personal will of the 
 Sovereign operates ; but the * materials ' now rapidly ac- 
 cumulating do enable us to perceive that a ' Constitutional 
 King ' is not synonymous with un roi faineant ; that despite 
 the evolution of the Cabinet system ; despite the responsi- 
 bility of Ministers and the irresponsibility of the Sovereign ; 
 despite the dominance of Party and the rigid non-partisan- 
 ship of the Crown, there does remain to the latter a sphere 
 of political action which, if wisely left undefined, neverthe- 
 less has been and may be of incomparable value to the nation 
 as a whole. On this point the testimony of Mr. Gladstone 
 is at once eloquent, emphatic, and conclusive, and justifies 
 quotation in full : — 
 
 * Although the admirable arrangements of the Constitution 
 have now completely shielded the Sovereign from personal 
 responsibility they have left ample scope for the exercise of 
 a direct and personal influence in the whole work of govern- 
 ment. The amount of that influence must greatly vary 
 according to character, to capacity, to experience in aflairs, 
 to tact in the application of a pressure which never is to 
 be carried to extremes, to patience in keeping up the con- 
 tinuity of a multitudinous supervision, and, lastly, to close 
 presence at the seat of government ; for in many of its 
 necessary operations, time is the most essential of all ele- 
 ments and the most scarce. Subject to the range of these 
 variations, the Sovereign, as compared with her Ministers, 
 has, because she is the Sovereign, the advantages of long 
 experience, wide survey, elevated position, and entire dis- 
 connexion from the bias of party. Further, personal and 
 domestic relations with the ruling families abroad give open- 
 ings, in delicate cases, for saying more, and saying it at once 
 more gently and more efificaciously, than could be ventured 
 in the more formal correspondence, and ruder contacts, of 
 Governments. . . . There is not a doubt that the aggregate 
 of direct influence normally exercised by the Sovereign upon 
 the counsels and proceedings of her Ministers is consider- 
 able in amount, tends to permanence and solidity of action, 
 and confers much benefit on the country without in the 
 
(2) POLITICAL: THE CABINET 99 
 
 smallest degree relieving the advisers of the Crown from 
 their individual responsibility. . . . The acts, the wishes, the 
 example of the Sovereign in this country are a real power. 
 An immense reverence and a tender affection await upon 
 the person of the one permanent and ever faithful Guardian 
 of the fundamental conditions of the Constitution. She is 
 the symbol of law, she is by law, and setting apart the 
 metaphysics, and the abnormal incidents of revolution, the 
 source of power. Parliaments and Ministers pass, but she 
 abides in lifelong duty ; and she is to them as the oak in 
 the forest is to the annual harvest in the field.' ^ 
 
 Has the sphere of the Sovereign's direct and personal 
 political activity tended to widen or contract in recent 
 years? To this question no authoritative answer can at 
 present be given ; nor, if it could, would it be discreet to 
 give it. One point, however, is clear and may be stated 
 without indiscretion or reserve. Of the formal executive 
 powers of the Crown there has been in these last years 
 an amazing increase. This has been due to several 
 causes : partly, to the abnormal legislative activity of 
 Parliament, partly to multiplication of the functions and 
 responsibilities of the State, and, partly, to the increasing 
 tendency to legislation by delegation. Acts of Parliament 
 are now frequently mere cadres, which are vivified, by the 
 consent and intention of Parliament, by the several admin- 
 istrative departments. This, as an acute American critic of 
 our Institutions ^ has pointed out, has very largely increased 
 the formal executive powers of the Crown. Another fact 
 still more important is equally indisputable. The Crown 
 has in these last years acquired a new function and signifi- 
 cance as the centre and symbol of Imperial unity. If to the 
 term ' political ' we give the circumscribed connotation 
 common to the publicists of the last generation, we might 
 be disposed to agree with President Lowell that *as a 
 political organ it (the Crown) has receded into the back- 
 
 ^ Gieanittgs, i. 41-3. 
 '^ Lowell, Government of England. 
 G 2 
 
loo THE EXECUTIVE 
 
 ground '} Bagehot, and other mid- Victorian writers lived 
 in the hey-day of the Manchester School ; when the weary 
 Titan groaned beneath the weight of Imperial responsibili- 
 ties which were light compared to those of to-day ; when 
 men asked querulously how long * those wretched Colonies ' 
 were * to hang like a millstone round our necks ' ; while as 
 yet the imagination of the English people was wholly un- 
 touched by the idea of Imperial solidarity. To them, 
 therefore, * political ' activity could signify nothing but 
 pre-occupation with the permutations of party government 
 at home. 
 
 But in the last thirty years ideas have changed in this 
 matter with amazing rapidity. Our conception of the 
 * political ' sphere has broadened. The political activities 
 and influence of a British ruler are now bounded only by 
 the globe. The Empire inherited by King George V is a 
 totally different thing from that which William IV handed 
 on to Queen Victoria. The actual centre of political 
 gravity is shifting ; the domestic politics of Great Britain, 
 even her European relations, are shrinking into true per- 
 spective ; and, as a result, a new sphere of influence and 
 activity is opening out before the occupant of the Throne : — 
 
 The loyal to their Crown 
 Are loyal to their own fair sons who love 
 Our ocean Empire with her boundless home, 
 For ever broadening England, and her throne 
 In one vast orient, and one isle, one isle 
 That knows not her own Greatness. 
 
 The obverse is equally true. The loyalty of the over-sea 
 Dominions is evoked not by an institution but by a person ; 
 not by a Parliament, imperial only in name, but by an 
 Emperor-King. In a word, the Crown has become, in an 
 especial sense, the guardian and embodiment of a new 
 idea — the sentiment of Imperial Unity. 
 
 1 Government of England^ i. 49. 
 
CHAPTER V 
 
 THE EXECUTIVE : (3) PERMANENT : THE CIVIL 
 SERVICE, AND THE GOVERNMENT DEPART- 
 MENTS 
 
 * It is not the business of a Cabinet Minister to work his department. 
 His business is to see that it is properly worked.* — Sir George Corne- 
 WALL Lewis (quoted by Bagehot). 
 
 * Of all the existing political traditions in England, the least known 
 to the public, and yet one of those most deserving attention, is that 
 which governs the relation between the expert and the layman.' — 
 President Lowell. 
 
 There is nothing in the practical working of our Consti- 
 tution which to the ' intelligent foreigner ' is so amazing as 
 the part played in it by amateurs. That the War Office 
 should be controlled by an eminent newsvendor, the 
 Admiralty by a city merchant or a lawyer from the Temple, 
 the Board of Trade by a University ' don ' or a landowning 
 Peer, and the Treasury by a country gentleman seems, to 
 detached observers, to be an anomaly such as only an 
 anomaly-loving people could endure. The explanation is 
 to be found in the aphorism of Sir George Cornewall Lewis, 
 that ' it is not the business of a Cabinet Minister to work 
 his department. His business is to see that it is properly 
 worked'. Englishmen believe in the association of the 
 amateur and the expert, of the parliamentary 'chief and 
 the permanent official; in a word, in the combination of 
 the Cabinet and the Civil Service. 
 
 The two preceding chapters have dealt with the formal 
 Executive — the Crown, and the political Executive or 
 Ministry. This will be devoted to the permanent Execu- 
 
I02 T.HE p:xecutive 
 
 tive, and to t^e_j)ractical working of the several Depart- 
 ments of the Central Government. It is indeed the existence 
 and efficiency of the Civil Service, and the good under- 
 standing which prevails between the political and permanent 
 heads of departments which have rendered possible the 
 development of a system so repugnant to a priori ideas of 
 orderly and precise administration. 
 
 An English Cabinet Minister acts in a fourfold capacity : 
 he is an adviser of the Crown ; he is a Parliamentary and 
 Party leader; he is a member of the political Committee 
 which rules the United Kingdom and the British Empire, 
 and finally he is, with few exceptions, the head of an 
 administrative department. 
 
 A modern Ministry generally includes the following 
 officials : the Prime Minister, the Lord High Chancellor, 
 the Lord President of the Council, the Lord Privy Seal, 
 the First Lord of the Treasury, the First Lord of the 
 Admiralty, the Chancellor of the Exchequer, the Chancellor 
 of the Duchy of Lancaster, the Postmaster-General, the 
 Secretary for Scotland, the First Commissioner of Works, 
 the Chief Secretary to the Lord Lieutenant of Ireland, five 
 Secretaries of State — for Home affairs. Foreign affairs. 
 Colonies, War, and India; and four Presidents of Com- 
 mittees of the Council — the Boards of Trade, Agriculture, 
 Education, and Local Government. The above at present 
 (1910) constitute the Cabinet; but the Cabinet, though 
 including twenty-one officials, has only nineteen members. 
 The Prime Ministership is, as we have seen, invariably 
 combined with another office ; generally, as now, with the 
 First Lordship of the Treasury. Other offices may be com- 
 bined in one person. Thus, at present, the Secretaryship 
 for the Colonies is held by the Lord Privy Seal. Nor do 
 all the above offices invariably carry with them the right of 
 admission to the Cabinet. The Chief Secretary for Ireland, 
 the First Commissioner of Works, the Postmaster-General, 
 
(3) PERMANENT: THE CIVIL SERVICE 103 
 
 the various Presidents of Boards have at times, during the 
 last five and twenty years, been excluded from the Cabinet. 
 On the other hand, the Lord Chancellor of Ireland and the 
 Lord Lieutenant were both included in one or more of the 
 late Lord Salisbury's Cabinets. In addition to the two last 
 named, the following are also included in the Ministry, 
 although they have never been admitted to the Cabinet : 
 the Financial Secretary to the Treasury, the Patronage 
 Secretary, and three Junior Lords of the Treasury ; the 
 Parliamentary Under-Secretaries to the Home, Foreign, 
 War, Colonial, and India Offices^ to the Boards of Trade, 
 Local Government, Education, and Admiralty; the Civil 
 Lord of the Admiralty ; the Paymaster-General, Assistant- 
 Postmaster-General, the Attorney and Solicitor Generals for 
 England and Ireland, the Scottish Lord Advocate and the 
 Solicitor General for Scotland, and the Financial Secretary 
 of the Army Council. The above Ministers constitute the 
 political Executive, and all of them may, most of them must 
 have seats in Parliament. They are party-leaders who go 
 into and out of office, according to the mutations of party 
 majorities in the House of Commons. It is rare for any 
 one Minister to hold any one office continuously for more 
 than five or six years. Even if his own party is returned 
 for a second tenure of office the individual Minister is not 
 unfrequently shifted from one office to another. The Earl 
 of Halsbury and Lord Ashbourne held the Lord Chancellor- 
 ships of England and Ireland respectively for a continuous 
 period (broken only by one three-years' interval) of twenty 
 years ; but such instances are rare, and likely to become 
 rarer. A 'Minister' is, always, a bird of passage through 
 the department over which he temporarily presides, and 
 generally of rapid passage. Parliamentary Government, 
 Disraeli was wont to say, would be impossible but for the \ 
 recess. A parliamentary Executive would be impracticable \^ 
 were it not for the existence of a permanent Civil Service. / 
 
I04 THE EXECUTIVE 
 
 i This Service may, in the widest sense of the word, be 
 said to include all permanent employes of the Government, 
 from the Permanent Under-Secretary for Foreign or Home 
 Affairs, with his ;£"2,ooo a year, down to a Post-Office sorter. 
 Throughout this Service there are two dominant principles — 
 amounting in some cases to rules : permanence of tenure 
 (during good behaviour), and abstention from party politics. 
 Under an Act of 1 705 and many subsequent Acts all ' place- 
 men ', with the exception of holders of certain high political 
 posts, were excluded from Parliament ; while partly by 
 Service regulations, partly by convention, civil servants are 
 required to abstain from all participation in party politics. 
 An Act of 1 710 rendered liable to fine and dismissal any 
 Post-Office official who shall ' by Word, Message or Writing 
 or in any other manner whatsoever endeavour to persuade 
 any elector to give or dissuade any elector from giving his 
 vote for the choice of any person ... to sit in Parliament '. 
 An Act of 1782 disfranchised Revenue officers. Out of 
 160,000 electors no fewer than 11,500 were at that time 
 officers of Customs and Excise, and no fewer than seventy 
 elections were said to be dependent upon their votes. ^ 
 With a franchise largely extended the difficulty has been 
 minimized, and an Act of 1868 removed the disqualifica- 
 tions imposed in 1782, while Police officers were for the 
 first time enfranchised in 1887. But the danger, though 
 mitigated, has not been entirely removed. It has indeed 
 in late years been emphasized, partly by the enormous 
 extension of Government activities and the consequent 
 multiplication of Government employes, and partly by the 
 growth of the principle and habit of trade-association. The 
 danger is, so far, most clearly apparent in the dockyard 
 constituencies where high political considerations are com- 
 monly said to be subordinated to trade questions of hours, 
 wages, and conditions of employment. The members for 
 1 Erskine May, i. 348. 
 
(3) PERMANENT : THE CIVIL SERVICE 105 
 
 * dockyard ' boroughs are, says Lord Courtney, ' habitually 
 recognized in the House of Commons for their zeal on 
 behalf of the dockyardsmen.' This may be inevitable, but 
 it raises large questions not easily dismissed. The agita- 
 tion among the employes of the Post Office affords another 
 symptom of the same disease. The Postal and Telegraph 
 Service now employs about 200,000 persons, and as an 
 impartial observer remarks, 'it is not difficult to perceive 
 that such a power might be used in directions highly detri- 
 mental to the State. There is no reason to expect the 
 pressure to grow less, and mutterings are sometimes heard 
 about the necessity of taking away the franchise from 
 Government employes. That', adds President Lowell, 
 ' would be the only effective remedy, and the time may not 
 be far distant when it will have to be considered seriously.' ^ 
 When it is, the difficulties encountered in the daughter-lands, 
 and the ingenuity with which, in one instance, they have 
 been met, will deserve and doubtless will receive attention. '^ 
 How are the members of this great Civil Service re- 
 cruited? Only during the last half century have Civil 
 Service appointments been placed on a satisfactory basis. 
 Down to that time the principle of private political patron- 
 age prevailed, and it was not entirely eliminated until 1896.' 
 Qualifying examinations for candidates were instituted in 
 the thirties; in 1854 the Civil Service of India was thrown 
 open to competition, and the same principle was^ with very 
 few exceptions^ applied to the Home Civil Service in 1870. 
 Since that time the higher ranks of both Civil Services have 
 been recruited from some of the best brains in the United 
 Kingdom. Men of the highest ambition and enterprise may 
 still prefer to seek their fortunes in fields where the prizes, 
 if more precarious, are more dazzling ; but every year Govern- 
 
 ^ Government of England, i. 153. ^ Cf. infra, pp. 2 78 sq. 
 
 ^ The present writer has himself nominated to local Post-masterships 
 on the invitation of the Patronage Secretary to the Treasury, and the 
 practice was, down to 1896, familiar to every Member of Parliament. 
 
io6 THE EXECUTIVE 
 
 ment employment appears to offer increasing attractions to 
 the very best of the young men who go forth from the 
 Universities. Within the Service there are grades, which 
 I constitute virtually water-tight compartments. Recruiting 
 \ . for the different grades is from a different intellectual, if not 
 a different social class. A very few of the highest posts 
 may still be filled by nomination ; in more there is a com- 
 bination of nomination and competitive examination ; but 
 the enormous mass of appointments are given exclusively 
 on the results of an examination which is both open and 
 competitive. The posts thus opened include : (i) Upper 
 Division Clerkships, with pay varying as a rule from £150 
 a year to £1,000, and leading up to an Under-Secretary- 
 ship with £2,000 a year ; (2) Second Division Clerkships, 
 whose work is strictly clerical and whose pay ranges from 
 £70 to £300 a year. Below these again are the Assistant 
 Clerks, and 'Boy' Clerks.^ As a rule the clerks, of whatever 
 grade, continue in the particular office or Department to 
 which they are at first appointed. Of these Departments it ^1 
 is now necessary to say something. ( 
 
 Their origins are singularly diverse. The most important 
 I of all — the Treasury — is directly descended from the Curia 
 Regis, and is therefore of hoary antiquity. Five of the Chief 
 Departments : the Foreign, Home, Colonial, War, and India 
 Offices represent the differentiation of the duties of the 
 Secretary of State. Three others : the Boards of Trade, 
 Agriculture, and Education represent Committees of the 
 Privy Council. 
 
 The Treasury is, as regards its chief officers, ' in commis- 
 sion.' The office of Lord High Treasurer dates from the 
 reign of William I, by whom a * Treasurer ' was appointed to 
 preside over the ' Scaccarium ' or Exchequer, and in particu- 
 lar to receive the accounts of the Sheriffs. The last holder 
 of this great office of State was the Duke of Shrewsbury, 
 appointed by Queen Anne a few days before her death. 
 * Civil Service Year Book, 19 10. 
 
(3) PERMANENT: THE CIVIL SERVICE 107 
 
 George I nominated Lord Halifax and four other persons 
 to be Lords Commissioners for executing the office of Lord 
 High Treasurer, and in Commission the office has remained 
 ever since that time (17 14). The duties are nominally 
 apportioned among five persons : the First Lord, who since 
 1806 has generally, though not invariably, combined this 
 office with the Premiership ; three Junior Lords, who now 
 act as the Party Whips, but have no duties,^ save purely 
 formal ones, at the Treasury ; and the Chancellor of the 
 Exchequer. This last functionary, who was brought into 
 being under Henry III as an assistant to or check upon 
 the Lord High Treasurer, is now the working head of the 
 Department. The ' Board ' was still a reality down to the 
 close of the eighteenth century, but like other Boards (e. g. 
 the Board of Trade), though regularly constituted, has long 
 since ceased to meet. The Treasury, however, is still in 
 many respects the most important Department of the Central 
 Government, since it exercises or ought to exercise a strict 
 control over the rest. Not a penny of the sums apportioned 
 by Parliament to the various services can legally be spent 
 without a warrant signed by two Lords of the Treasury. 
 It is the Treasury, moreover, which has to find the money 
 by taxation and otherwise, and, consequently, all estimates 
 must be passed by the Treasury before being subordinated to 
 the House of Commons by the Ministers more immediately 
 responsible. Under the Cabinet system, however, the re- 
 sponsibility for expenditure, as for everything else, is collec- 
 tive, and, should the Cabinet decide that a certain expense 
 must be incurred, the Treasury has no option but to find the 
 money. The Chancellor of the Exchequer, if he deems the 
 expenditure unjustifiable, has one means of protest, but one 
 only — that of resignation. In 1887 Lord Randolph Churchill 
 resolved on this method of protesting against the expenditure 
 
 * They occasionally * represent ' a Department, otherwise unrepresented 
 in th^ House of Commons. 
 
io8 THE EXECUTIVE 
 
 on armaments ; the Prime Minister decided in favour of 
 the Admiralty and the War Office, and Lord Randolph 
 Churchill's resignation was consequently accepted. But the 
 protests of the guardian of the national purse do not often 
 go so far as this. The threat is frequently uttered but 
 rarely carried out. Lord Palmerston declared that his desk 
 was full of Mr. Gladstone's resignations, but, in his case, 
 matters were always in the long run adjusted. On one 
 occasion, however, when the tone of the Chancellor of 
 the Exchequer was more than ordinarily menacing, Lord 
 Palmerston wrote to Queen Victoria : ' Viscount Palmerston 
 hopes to be able to overcome his [Mr. Gladstone's] objec- 
 tions; but if that should prove impossible, however great 
 the loss to the Government by the retirement of Mr. Glad- 
 stone, it would be better to lose Mr. Gladstone than to run 
 the risk of losing Portsmouth or Plymouth.' Both the 
 threatened disasters were for the time being averted ; but 
 the story illustrates vividly enough the relations which may 
 subsist between a Chancellor of the Exchequer and his 
 colleagues of the Cabinet. Mr. Gladstone was perhaps 
 mindful of his own earlier experience, when at a later stage 
 of his career he elected to combine the offices of First Lord 
 of the Treasury, Prime Minister, and Chancellor of the 
 Exchequer. In view of the control which the Treasury 
 ought to exercise over the ' spending Departments ', and the 
 intimate knowledge which its Chief ought to possess of their 
 requirements, there is much to be said for this arrangement. 
 But with the rapid expansion and growing complexity of the 
 nation's business the experiment is one which is hardly likely 
 to be repeated. 
 
 We may next pass to the Departments presided over by 
 His Majesty's Principal Secretaries of State. Of these there 
 are now five, any one of whom may legally perform (most of) 
 the duties of the rest. All these high officials derive from 
 an officer who was originally of humble rank, the King's 
 
(3) PERMANENT : THE CIVIL SERVICE 109 
 
 ' Clerk ' or ' Secretary '. From the time of Henry VIII this 
 official was invariably a member of the Privy Council, and 
 the same King in 1539 appointed a second Secretary of 
 co-ordinate rank and powers with the first. The Secretaries 
 were 'to keep two seals, called the King's Signets, to seal 
 all warrants, writings, &c., both for inward and outward 
 parts, as had been accustomed '. These seals are still the 
 symbols of the Secretarial office, and legally necessary for 
 the performance of many of their functions. The office of 
 Secretary steadily gained in consideration and importance, 
 and towards the end of Elizabeth's reign Sir Robert Cecil 
 appears as 'Our Principal Secretary of Estate'. A third 
 Secretary of State (for Scotland) was added after the Union 
 in 1708, but in 1746 the number was again reduced to two. 
 A third Secretaryship (this time for the Colonies) was estab- 
 lished in 1768, only to be abolished after the recognition of 
 American independence in 1782. The exigencies of the 
 struggle with France brought a third Secretary (for War) 
 into existence in 1794, and the Colonies were added to his 
 Department in 1801. The Crimean War led to the assign- 
 ment of responsibility for Military and Colonial affairs to 
 two separate Secretaries in 1854, and the transference of 
 the dominions of the East India Company to the Crown 
 raised the Secretariat to five in 1858. The history of the 
 Secretariat, thus briefly summarized, affords the clue to the 
 history of the Departments over which the five Secretaries 
 severally preside. Generally speaking the five Secretaries are, 
 in law, indistinguishable ; power is conferred by State upon 
 * the Secretary of State ' (i. e. any one of them) or upon * one 
 of His Majesty's Principal Secretaries of State ' (again, i. e., any 
 one of them). Some Statutes, however, assign powers to the 
 Secretary of State for a particular Department. During the 
 eighteenth century, until 1782, the work of the Joint Secre- 
 taries was geographically differentiated. The Secretary for 
 the Northern Department was responsible for dealings with 
 
no THE EXECUTIVE 
 
 Northern Europe : communications with Germany, Holland, 
 Denmark, Sweden, Russia, Poland, and Flanders ; the Secre- 
 tary for the Southern Department for dealings with France, 
 Spain, Italy, and Turkey, as well as Home affairs and those 
 of Ireland and the Colonies. In 1782 the work was re- 
 organized. The Northern Department was transformed 
 into a Foreign Office ; the Southern into a Home Office, 
 responsible also for Ireland and the few Colonies which 
 survived the great disruption of 1782. 
 
 The existing functions of the Home Office, complex 
 and multifarious, are, in largest part, due to the feverish 
 legislative activity of the nineteenth century. The Home 
 Secretary is now responsible for the magistracy (except 
 their appointment and removal — functions of the Lord 
 Chancellor), for the Police, for prisons, factories, and 
 mines, and is the adviser of the King in regard to the 
 prerogative of mercy. Ireland still remains technically 
 within the purview of his Department. On the one side, 
 therefore, he performs the functions of a Minister of Justice 
 and Police ; on the other of a Minister of Industry. 
 The classification of duties is anything but scientific, 
 and if ever the reorganization of the Departments of the 
 Central Government should be taken seriously in hand 
 the Home Office would be transformed out of recognition. 
 Of all Cabinet Ministers, except the Premier, the Home 
 Secretary comes most into personal contact with the 
 Sovereign. He is still, par excellence^ the Secretary of State j 
 but though the Home Secretary takes precedence of the 
 other Secretaries, the office is not infrequently confided to 
 one of the least experienced members of the Cabinet.^ 
 
 Less miscellaneous but even more responsible are the 
 duties assigned to the Foreign Secretary. Easily under- 
 
 1 Instances in point are : Mr. R. A. (now Viscount) Cross, the very 
 successful 'dark horse' of Mr. Disraeli's great Administration (1874- 
 80), and Mr. Henry Matthews (now Viscount Llandaff), Lord Salis- 
 bury's Home Secretary (1886-92). 
 
(3) PERMANENT: THE CIVIL SERVICE iir 
 
 stood, they call, however, for no detailed description. The 
 Foreign Secretary stands in a special relation to the King. 
 By tradition the King has always played a more direct part 
 in the direction of P^oreign than in that of Home affairs. 
 As long as the great States maintain the monarchical form 
 this must inevitably be the case. Ambassadors are accredited 
 personally to Sovereigns, though in England they are intro- 
 duced to the King by the Secretary of State. All important 
 dispatches to Foreign Governments are submitted to the 
 Sovereign, whose assent is not merely formal. 
 
 Upon the observance of this rule Queen Victoria inflexibly 
 insisted, and the neglect of it practically cost Lord Palmerston 
 his place when he was almost at the zenith of his popularity 
 in the country (1851). Nor can it be doubted that the 
 custom has contributed both to the continuity and the suc- 
 cess of our foreign policy. The less our diplomacy is 
 deflected from its traditional lines by party mutations at 
 home, the better for this country and for its neighbours. 
 Happily there are not wanting signs that Foreign affairs are 
 coming to be regarded, in increasing degree, as outside the 
 domain of party politics. This is partly the cause and partly 
 the effect of the continuously exercised intervention of the 
 Sovereign. But one point must be emphasized. No whit 
 of responsibility attaches to him, any more than to the 
 permanent Under-Secretary. Influence they both exercise 
 in full measure ; the Secretary of State alone bears responsi- 
 bility. 
 
 Next in seniority to the Home and Foreign Secretariats 
 is that for the Colonies. The history of the ofifice is instruc- 
 tive. On the reorganization of the Privy Council after the 
 Restoration Charles II created a Council of Trade and a 
 Council of Foreign Plantations. These Councils were com- 
 bined in 1672, but the combined Council existed only for 
 three years. In 1695 William III revived it as the 'Board 
 of Trade and Plantations '. By this Board the Colonies or 
 
112 THE EXECUTIVE 
 
 Plantations were administered, so far as the casual control 
 exercised down to 1768 could be described as 'administra- 
 tion'. By that time we were already involved in acute 
 controversy with the American Colonies, and it was thought 
 desirable to create a third Secretaryship of State to deal 
 with Colonial affairs. In 1 782 the most important part of the 
 Colonial Empire had ceased to be ; the separate Secretary- 
 ship was abolished, and the residue of work was in 1783 
 transferred to the Home Office. In 1801 Colonial business 
 was transferred once again to the new Secretary of State for 
 War, created, as we have seen, in 1794. The new Depart- 
 ment henceforward became known as that for War and the 
 Colonies, until in 1854 a separate Secretaryship for the 
 Colonies was created. From that time onwards the office 
 steadily grew in prestige and importance until, in 1895, it 
 received a fresh access of dignity by being selected as the 
 special sphere of his activities by the most prominent of the 
 leaders of the Party then in power. The work of the office 
 will come under review in a later chapter,' but it may be 
 said at once that it is not responsible for all the over-sea 
 territories of the Crown. India has its separate Secretariat ; 
 various Protectorates — notably Egypt — are controlled by the 
 Foreign Office, while the Channel Islands and the Isle of 
 Man are under the jurisdiction of the Home Office. 
 
 The history and organization of the War Office must not 
 detain us; partly because few civilians can be trusted to 
 apprehend it with accuracy and describe it with lucidity ; 
 still more because, of all the great offices of State, it has 
 known least of continuity, and never appears to reach any 
 semblance of stability. The system, therefore, which is 
 described with tolerable accuracy to-day, may be completely 
 out of date to-morrow. A few words, therefore, must 
 suffice. 
 
 The Army has always been in a peculiar sense under the 
 1 Chapter xv. 
 
(3) PERMANENT: THE CIVIL SERVICE 113 
 
 control of the Crown. The command of it was, as a com- 
 petent writer has observed, * the last of the royal prerogatives 
 to be brought under the principle of ministerial responsi- 
 bility.' ^ This was due partly to the anxiety of the Crown 
 to retain it ; still more perhaps to the reluctance of Parlia- 
 ment to admit that a standing army was anything more than 
 a disagreeable and temporary expedient, to be dispensed 
 with as soon as circumstances permitted. Circumstances 
 have obstinately forbidden such a desirable consummation, 
 but the War Office, which was first organized under Charles II, 
 has generally been conspicuous for the confusion and mal- 
 administration which are naturally to be expected in an 
 organization designed for temporary purposes. The con- 
 fusion which characterized this Department down to 1855, 
 and did not entirely cease in that year, is thus happily 
 summarized by Sir William Anson : * The soldier was fed 
 by the Treasury and armed by the Ordnance Board : the 
 Home Secretary was responsible for his movements in his 
 native country : the Colonial Secretary superintended his 
 movements abroad : the Secretary at War took care that he 
 was paid, and was responsible for the lawful administration 
 of the flogging which was provided for him by the Com- 
 mander-in-Chief.' "^ 
 
 The office of Secretary at War dates from the reign of 
 Charles II, but until the definition of his functions by an 
 Act of 1783 his position was ambiguous. Like a Secretary 
 of State he countersigned State documents and thus authenti- 
 cated the sign-manual of the King ; but he was not techni- 
 cally a Secretary of State, and in 1717 Pulteney — when 
 fulfilling the office — formally repudiated his responsibility 
 to Parliament. He was, he contended, 'a ministerial, not 
 a constitutional officer, bound to issue orders according to 
 the King's direction.' In 1783 the ambiguity was so far 
 
 * Traill, Central Government^ p. 95. 
 " Constitution, ii. 375. 
 II20 H 
 
114 THE EXECUTIVE 
 
 terminated that the Secretary at War was entrusted under 
 Statute with definite functions — largely financial — to be 
 performed under parliamentary sanction and responsibility. 
 In 1793 the King surrendered the personal command of the 
 armed forces to a General Commanding in Chief, and a year 
 later (as already described) a Secretaryship of State for War 
 was established. 
 
 From 1794 to 1887 the Commander-in-Chief and the 
 Secretary for War occupied joint thrones, located at the 
 Horse Guards and the War Office respectively. The dual 
 control thus established over the Army, and prolonged by 
 the fact that the Commander-in-Chief was almost invariably 
 a Royal Prince, was not terminated until 1887, when by 
 Orders-in-Council the whole administration of the Army 
 was confided to the Commander-in-Chief. Simultaneously 
 that officer was himself made responsible to the Secretary of 
 State. In 1 895 the Duke of Cambridge was induced to resign 
 the office which throughout a great part of his cousin's reign 
 he had filled, and in 1904, after the Boer War, the office, having 
 subsisted for a little more than a century, was abolished. 
 
 Meanwhile the Secretaryship of State for War had 
 emerged as a differentiated and substantive office. Con- 
 stituted in 1794, its functions were confused in 1801 by the 
 absorption of colonial business, and still more by the con- 
 tinued existence of the Secretary at War. But the War and 
 Colonial Secretaryships were bifurcated in 1854; in 1855 
 the Secretary of State for War took over the duties of the 
 Secretary at War, and the latter office was finally abolished 
 in 1863. Meanwhile the control of the Commissariat was 
 transferred from the Treasury to the War Office, the Board 
 of Ordnance was abolished and its duties similarly trans- 
 ferred, and at the same time (1855) the War Office absorbed 
 the Army Medical Department. Gradually order was being 
 evolved out of chaos and the War Office was coming into 
 its own. Since 1855 internal reorganizations have been not 
 
(3) PERMANENT: THE CIVIL SERVICE 115 
 
 infrequent, but they have mostly tended in one direction. 
 Control and responsibility have alike been concentrated in 
 the Secretary of State, until at last in 1904 his great rival 
 finally disappeared. The Secretary for War, like the First 
 Lord of the Admiralty, now obtains technical advice from a 
 Board of professional experts. This Army Council now 
 includes, in addition to the Secretary of State, the Parlia- 
 mentary Under-Secretary and the Financial Secretary ; the 
 Chief of the General Staff; the Adjutant - General ; the 
 Quartermaster - General ; and the Master - General of the 
 Ordnance. 
 
 The fifth and last of the Secretariat-Departments is the 
 India Office. In certain respects, to be noticed presently, 
 the organization of this office is unique. Down to 1784 
 British India was ruled by the directors of a commercial 
 company acting under Charter from the Crown and (since 
 1773) controlled to some extent by Parliament. The India 
 Act passed by Pitt in 1784 established a dual control : it 
 left the powers of the Company untouched as regards com- 
 mercial affairs, but it transferred political responsibility to 
 a Board of Control, consisting of six Commissioners, all of 
 whom were to be Privy Councillors, and among whom were 
 always to be the Chancellor of the Exchequer and one of 
 the Principal Secretaries of State. The Court of Directors 
 was at the same time given power to appoint a Secret Com- 
 mittee of three members, through whom the orders of the 
 Board of Control were transmitted to India. From 1784 
 onwards the President of the Board of Control (almost in- 
 variably a Cabinet Minister) was virtually a Secretary of State 
 for India, and controlled Indian administration with the 
 assistance of the Secret Committee. 
 
 The formal change to the modern system was effected 
 after the Mutiny. By an Act of 1858 British India was 
 formally transferred to the Crown, and it was provided that 
 * all the powers and duties then exercised or performed by 
 
 H 2 . 
 
Ii6 THE EXECUTIVE 
 
 the East India Company . . . should in future be exercised 
 and performed by one of Her Majesty's Principal Secretaries 
 of State '. For this purpose a fifth Secretaryship was, as we 
 have seen, created. But the Secretary is, in theory at any 
 rate, not a complete autocrat at the India Office. And this 
 constitutes the peculiarity of his position. He appoints, 
 and is assisted by, a Council — the Council of India, which 
 must be carefully distinguished from the Viceroy's Council, 
 the latter appertaining to the local government of India. 
 The former consists of fifteen members, of whom nine 
 must have recently served or resided for ten years in 
 India. Members of the Board are ineligible for seats in 
 the House of Commons. They are all paid and meet 
 weekly. This is no phantom Board like that of the Trea- 
 sury, or the Trade or Education Boards. It is an integral 
 part of the Government of India, without whose advice 
 the Secretary of State cannot, except in matters of secrecy 
 or inquiry, act, and who in certain important cases have 
 actually a power of veto. Apart from this Council the 
 internal organization of the India Office, with its perma- 
 nent secretaries, clerks of the first and second division, and 
 so forth, differs only in detail from the rest of the executive 
 Departments of the central Government. 
 
 The Admiralty, to which we next turn, is not a Secretariat 
 but a Board representing, like the Treasury, a great and 
 ancient office. The office of Lord High Admiral dates 
 from the fourteenth century, but the duties were from time 
 to time performed by commissioners, and the office has been 
 continuously in commission ever since 1 708.^ The Board 
 of Admiralty now consists of six Lords Commissioners of the 
 Admiralty, a Financial Parliamentary Secretary, and a Per- 
 manent Secretary. The responsible minister is the First 
 Lord, invariably a civilian and a member of the Cabinet. 
 
 ^ Except in 1827, when the Duke of Clarence held the office of Lord 
 High Admiral. 
 
(3) PERMANENT: THE CIVIL SERVICE 117 
 
 He is assisted in Parliament by a Civil Lord and a Financial 
 Secretary, while his expert advisers at the Board are four 
 naval officers of high rank. The First Sea Lord is respon- 
 sible for the strategy and discipline of the Fleet; the 
 Second, for recruiting and education; the Third is Con- 
 troller of the Navy and responsible for Naval construction, 
 repairs, dockyards, ordnance, and stores ; the Fourth, for 
 transport, victualling, and coaling. Finance is in the hands 
 of the Parliamentary Secretary. The Board meets at least 
 once a week, and is in a very real sense responsible for the 
 first line of National Defence, though in a technical and 
 parliamentary sense the First Lord has undivided responsi- 
 bility. 
 
 Another office generally included among the Executive 
 offices is that which is presided over by the Postmaster- 
 General. The Royal Post dates from the sixteenth century, 
 the office of Postmaster-General from 17 10. Created after 
 the enactment of the Place Bill of 1707, the Postmaster was 
 excluded from a seat in the House of Commons, until he 
 was rendered eligible, subject of course to the usual rule as 
 to re-election on acceptance of office, by a Statute of 1866. 
 He is always a member of the Ministry, and not infrequently 
 of the Cabinet. Party exigencies ; the desirability of con- 
 ciliating various groups and interests; the necessity for reward- 
 ing good party men ; the difficulty of combining in the ranks 
 of the Government oratorical and administrative skill ; of 
 securing at once departmental efficiency, and platform plausi- 
 bility — all this points to an inevitable increase in the size of 
 Cabinets. But it is doubtful whether the tendency makes 
 either for coherence in general policy or for efficiency of 
 administration. 
 
 Apart from the considerations just suggested, there seems 
 to be no sufficient reason for the inclusion in the Cabinet of 
 such an officer as the Postmaster-General, and there would 
 be much to be said for his exclusion from Parliament. His 
 
ii8 THE EXECUTIVE 
 
 work lies, or ought to lie, quite outside the ordinary domain 
 of party politics. He is a great revenue collector ; but so 
 are the Chairmen of Inland Revenue and of the Customs 
 Board. He is more. He not merely collects but earns 
 revenue. He is the head of a great commercial undertaking ; 
 he is a large banker and the organizer of a vast system of 
 communication and transport. The work, however, is largely 
 of a routine character, and though men like Henry Fawcett 
 have conferred distinction upon the office, it is not one 
 which demands either high political imagination, or first- 
 rate commercial aptitude. A good average business man 
 can do efficiently all that is demanded of him. 
 
 The success of the Post Office is nevertheless frequently 
 utilized as an argument in favour of the extension of the 
 trading activities of the State. Without entering upon 
 highly controversial ground, three things may be said : first, 
 that the success of the Post Office, though respectable, is 
 neither phenomenal nor unquestioned ; secondly, that so 
 far as it is substantial, it is attained under the protection 
 of a rigid monopoly ; and, thirdly, that those who desire to 
 found upon it arguments for further experiments must prove 
 that private management would not yield better results, as 
 regards public convenience, commercial profit, initiative, and 
 adaptability. This would be no easy task. 
 
 We pass next to two Boards which represent Com 
 i mittees of the Privy Council. Of these the oldest is the 
 Board of Trade, which, as we have seen, was originally 
 established in the reign of Charles II. After a somewhat 
 chequered history it was reconstituted with a regular official 
 staff in 1786 as a Committee of Council for Trade. The 
 Board now consists of a President and the following ex officio 
 members : the First Lord of the Treasury, the Secretaries of 
 State, the Chancellor of the Exchequer, the Archbishop of 
 Canterbury, and the Speaker of the House of Commons. 
 Its powers, however, can be and are exercised by a Presi- 
 
(3) PERMANENT: THE CIVIL SERVICE 119 
 
 dent who is almost invariably a Cabinet Minister. Its 
 functions, which are regulative and not directly executive, 
 represent multifarious activities. The Board supervises 
 Railways, Harbours, Fisheries, Lighthouses, and Merchant 
 Shipping ; it collects and publishes statistics as to the em- 
 ployment of labour ; it controls the new Labour Exchanges, 
 and superintends the working of the Bankruptcy Law. 
 
 Precisely parallel to the position of the Board of Trade is 
 that of the Board of Education. Down to the year 1899 
 the supervision of Education was still in the hands of a 
 Committee of the Privy Council, with the Lord President 
 of the Council at its head. The working head of the 
 Department was, as a rule, the Vice-President of the Com- 
 mittee of Council on Education, who was sometimes, but not 
 invariably, a Cabinet Minister. In 1899 the Committee 
 was reconstituted as a Board under a President of its own, 
 and now controls the ever-expanding work of Elementary 
 and Secondary Education, so far as these are provided or 
 assisted from Parliamentary funds. It has also taken over 
 the educational work of the Charity Commission and has 
 charge of some of the Metropolitan museums — notably that 
 at South Kensington. 
 
 The functions of the Local Government Board will be 
 noticed later.^ But here it may be said that the Board, under 
 its present name, was constituted in 187 1, primarily to carry 
 on the work of the Poor Law Board, but also to take over 
 from the Home Office and the Privy Council respectively 
 the supervision of the work entrusted to local bodies by 
 innumerable Statutes in regard to public health and cognate 
 matters. Its immediate progenitor, the Poor Law Board, 
 was constituted in 1847 to carry on the work entrusted by 
 the Poor Law of 1834 to a board of non-Parliamentary 
 Commissioners. The President of the Local Government 
 Board is now invariably a member of the Ministry, and 
 ' Cf. Chapters xii and xiii. 
 
I20 THE EXECUTIVE 
 
 generally of the Cabinet. As a recognition of the import- 
 ance of the work entrusted to him, his salary has recently 
 (1910), like that of his colleague at the Board of Trade, been 
 brought up to that of a Secretary of State — £5,000 a year. 
 
 The Board of Works became a separate entity in the year 
 1 85 1. Until that time the royal palaces, parks, and some 
 public buildings were maintained by the Commissioners of 
 Woods and Forests, the body which is responsible for the 
 management of the Crown Lands. The ' Board ' is consti- 
 tuted on the model of the Board of Trade, and, like it, is 
 a phantom body, the duties being performed by a First 
 Commissioner, who is eligible for a seat in Parliament, is 
 invariably included in the Ministry, and sometimes in the 
 Cabinet. Why he should be, apart from the reasons already 
 considered in the case of the Postmaster-General, it is not 
 easy to say. 
 
 The Board of Agriculture was constituted in 1889, under 
 the presidency of a Parliamentary Chief, to take over certain 
 duties from the Privy Council and the Land Commissioners. 
 Its general function is to promote the interests of agricul- 
 ture, and more specifically to deal with such matters as tithe 
 commutation, the enfranchisement of copyhold, allotments, 
 enclosure of commons, and the improvement of landed 
 estates held by limited owners. 
 
 There are a few other offices the political heads of which 
 are invariably members of the Ministry, if not always of the 
 Cabinet. Of these it is necessary to speak shortly. 
 
 The Irish Executive is formally vested in the Lord- 
 Lieutenant in Council, i. e. in the Privy Council of Ireland. 
 The formal medium of communication between the Sovereign 
 and the Lord-Lieutenant is still the Home Secretary. But, 
 as a rule, the Lord-Lieutenant's position is that of a ' consti- 
 tutional ' representative of a Constitutional Sovereign. The 
 real ruler of Ireland, the officer responsible to the Imperial 
 Parliament for the conduct of Irish affairs, is the Chief 
 
(3) PERMANENT: THE CIVIL SERVICE 121 
 
 Secretary to the Lord-Lieutenant. This official is, under 
 statute, Keeper of the Irish Privy Seal, President of the 
 Irish Local Government Board, and Home Secretary for 
 Ireland in one. If, as is sometimes the case, the Lord- 
 Lieutenant has a seat in the Cabinet, the Chief Secretary 
 has not, and under these circumstances he takes, in fact as 
 well as name, a secondary position. More commonly the 
 positions are reversed : the Chief Secretary is the real, the 
 Lord-Lieutenant the nominal head of the Irish Executive. 
 But Ireland still retains its own governmental apparatus: 
 its own Privy Council, Administrative officers. Law officers 
 (Chancellor, Attorney, and Solicitor-General), and courts of 
 law, the last being subject to the appellate jurisdiction of 
 the House of Lords. 
 
 Scotland retains less of the apparatus of independence. 
 Not until 1885 was there even a separate Secretary for 
 Scotland. In that year, however, it was deemed advisable 
 to hand over to a new official created by Act of Parliament 
 certain administrative duties hitherto performed by the 
 Treasury, the Home Office, the Local Government Board, 
 and notably the Committee of Council on Education. 
 The Secretary for Scotland is Keeper of the Great Seal 
 of Scotland, but is not technically a Secretary of State. 
 Scotland retains (subject, like Ireland, to the Supreme Court 
 of Appeal at Westminster) its own judicial system and its 
 own law officers, a Lord- Advocate and a Solicitor-General. 
 The Lord-Advocate is not only the chief law officer, corre- 
 sponding to the English Attorney, but also acts as Parlia- 
 mentary Under-Secretary to the Home Office for Scotch 
 business.^ If the Secretary, as often happens, is a peer, 
 the Lord- Advocate represents the Scotch office in the Lower 
 House. 
 
 The Chancellor of the Duchy of Lancaster is another 
 official usually included in the Cabinet, but for personal, not 
 ^ Anson, Constitution, ii. 200. 
 
122 • THE EXECUTIVE 
 
 for administrative reasons. He is practically a * Minister 
 without portfolio ', a statesman unwilling to submit to the 
 strain of departmental work, but whose advice in the Cabinet 
 his colleagues are anxious to secure. He is formally respon- 
 sible for the management of the extensive landed property 
 of the Duchy of Lancaster. This is the private property of 
 the Sovereign as Duke of Lancaster, and is not surrendered 
 with the other hereditary revenues in return for the Civil 
 List. The Chancellor keeps the Seal of the Duchy and is 
 paid out of its revenues, which yield to the Crown £60,000- 
 ;^ 70,000 a year net. Judicially, the Chancellor is represented 
 by a Vice-Chancellor, who presides over the Chancery Court 
 of the Duchy, which also possesses its own Attorney- 
 General. The Chancellor himself appoints the County 
 Court judges and magistrates in the Duchy. 
 
 I have reserved to the last three of the most historic and 
 the most dignified officials of the central Government : the 
 Lord Chancellor, the Lord Privy Seal, and the Lord Presi- 
 dent of the Council. 
 
 The Lord Chancellor, who is invariably a member of 
 the Cabinet, occupies a fourfold position. He presides in 
 the House of Lords ; he is the head of the Judiciary ; the 
 head of an important Department; and the chief legal 
 adviser of the Government. In the last capacity he is 
 assisted by the ' law officers ', the Attorney and Solicitor- 
 General. The manifold duties of the Chancellor, judicial, 
 legislative, and administrative strikingly exemplify the lack 
 of differentiation incidental to the period in which the 
 Chancellor's office had its origin. Of all the great officers 
 of State, that of the Chancellor is the oldest, dating from 
 the reign of Edward the Confessor. The Chancellor (so 
 named from the cancelli or the screen behind which the 
 secretaries sat to transact business ^) was the chief of the 
 King's secretaries and chaplains, the ' keeper of the King's 
 
 1 Stnbbs, i. 352. 
 
(3) PERMANENT: THE CIVIL SERVICE 123 
 
 conscience', and custodian of the King's Great Seal. He 
 was a prominent member of the King's Council, a baron of 
 the Exchequer, but primarily the head of a secretarial 
 department, the Chancery. His chief rival, the Norman 
 Justiciar, disappeared at the end of Henry Ill's reign, and 
 thenceforward the Chancellor was indisputably the leading 
 Minister of the Crown, the ' Secretary of State for all de- 
 partments ', at any rate until the sixteenth century. Of his 
 place in the judicial system I propose to speak later.* 
 Down to the reign of Edward III the office was invariably 
 and naturally held by an ecclesiastic; the first lay Chan- 
 cellor being Robert Bourchier, appointed in 1340. From 
 the sixteenth century the political importance of the office 
 somewhat declined owing to the development of the secre- 
 tariat ; but the Chancellor still takes precedence next after 
 the Archbishop of Canterbury, and his office remains not 
 merely one of the highest dignity, but of the greatest impor- 
 tance. Apart from his own judicial duties, the Chancellor 
 is responsible for the appointment of judges,^ magistrates, 
 and counsel learned in the law ; he is patron of many of the 
 King's livings, visitor of the King's Hospitals and Colleges, 
 and head of the Crown Office in Chancery, whence many 
 important writs still issue, e.g. those for the election of 
 Members of Parliament. It should be added that the 
 Chancellorship is one of the few offices still subject to 
 a religious disability. It cannot be held by a Roman 
 Catholic. 
 
 The office of Lord Privy Seal has been since 1884 merely 
 a sinecure ; but it is an historic office still held, with appro- 
 priate precedence, by a member of the Cabinet, frequently in 
 cofnmendam with another office, and without emolument. His- 
 
 1 Cf. Chapter xiv. 
 
 ^ The Chancellor appoints Judges of the High Court, Justices of the 
 Peace and County Court judges ; but not the Lords Justices of Appeal, 
 nor the Law Lords nor stipendiary magistrates. 
 
124 THE EXECUTIVE 
 
 torically the office is interesting, since it played a really impor- 
 tant part in the development of the principle of ministerial 
 responsibility. It dates back at least as far as the fourteenth 
 century, and may have been intended as a check upon the 
 growing power of the Chancellor. Any way, by the sixteenth 
 century it has become part of the regular administrative 
 routine that * documents signed by the King's own hand, 
 and countersigned by the Secretary, are sent to the Keeper 
 of the Privy Seal, as instructions for documents to be issued 
 under the Privy Seal ; and these again serve as instructions 
 for the Chancellor to issue documents bearing the Great 
 Seal of the realm. This practice begets a certain Ministerial 
 responsibility for the King's acts '.^ But all legal necessity 
 for the use of the Privy Seal was definitely abolished by 
 Statute in 1884. 
 
 The Lord President of the Council is another official of 
 the highest dignity, who has been deprived of the most 
 important of his administrative functions by comparatively 
 recent changes noticed in the preceding pages. The con- 
 version of the Committee of Council into a Board of Educa- 
 tion in 1899 was the last and most serious blow. The 
 establishment of the Board of Agriculture was another, less 
 recent and less serious. The Lord President is still nomi- 
 nally a member of many phantom Boards, but apart from his 
 position as a member of the Cabinet, in which he invariably 
 sits, his functions have shrunk with the fortunes of the 
 historic Privy Council, of which he is the official head. At 
 meetings of the Council he sits invariably on the right hand 
 of the Sovereign. 
 
 These meetings are frequent, but only in a formal sense 
 are they important. It is the King-in-Council who issues 
 Proclamations and Executive Orders. It is in the Council 
 that newly appointed Bishops do homage to the King for 
 the temporalities of their Sees ; that Ministers take the 
 ' Maitland, p. 303. 
 
(3) PERMANENT: THE CIVIL SERVICE 125 
 
 official oath, kiss the King's hand, and from him receive the 
 insignia of office ; that Sheriffs are still 'pricked '. Number- 
 less executive acts still require to be done in Council, and 
 to be attested by the signature of the Clerk. Maitland * 
 enumerates six different kinds of powers delegated by Par- 
 liament to the Privy Council : the power to lay down 
 general rules, e. g. as to the administration of workhouses ; 
 to issue particular commands, e.g. to a recalcitrant local 
 authority ; to grant licences ; to order inspection ; to order 
 inquisitions, e. g. as to a railway accident. But in the per- 
 formance of these functions, though the parent Council 
 remains the formal authority, the real and originating 
 authority is vested in one of the numerous daughter depart- 
 ments to which the Council has given birth. 
 
 The Council now consists of some three hundred persons. 
 Among them are all Cabinet Ministers, present and past ; and 
 other officers of State; the two Archbishops and the Bishop 
 of London ; a large number of Peers, including practically 
 all those who have held high administrative posts at home 
 and abroad; a certain number of the highest judges and 
 ex-judges ; a few colonial statesmen, and a large number of 
 persons whom for political, literary, scientific, military, or 
 other services the Sovereign (or his Minister) desires to 
 honour. Except on the demise of the Crown and some 
 ceremonial occasions, only a few members of the Council 
 are summoned, the customary quorum being three.^ But 
 the Council has a great history behind it, and should certain 
 imperialist dreams be fulfilled, may have a great future 
 before it. 
 
 ^ Op. cit., p. 407. 
 
 ^ The Council which met on May 7, 1910, to proclaim thet-accession 
 of King George V, was attended by over 140 persons, amcmg them, 
 according to precedent, being the Lord Mayor and representatives of 
 the City of London. 
 
CHAPTER VI 
 
 THE LEGISLATURE : (i) THE HOUSE OF LORDS : 
 ITS ORIGINS AND EARLY HISTORY 
 
 ' * The power and jurisdiction of Parliament, says Sir Edward Coke, is 
 so transcendent and absolute, that it cannot be confined, either for causes 
 or persons, within any bounds. And of this high court, he adds, it may 
 be fairly said, *' Si antiquitatem spectes, est vetustissima ; si dignitatem, 
 est honoratissima ; si jurisdictionem, est capacissima." It hath sove- 
 reign and uncontrollable authority in the making, confirming, enlarging, 
 restraining, abrogating, repealing, reviving, and expounding of laws, 
 concerning matters of all possible denominations, ecclesiastical or 
 temporal, civil, military, maritime, or criminal ; this being the place 
 where that absolute despotic power, which must in all governments 
 reside somewhere, is entrusted by the constitution of these kingdoms/ — 
 BlAckstone's Commentaries. 
 
 * A majority in a single assembly, when it has assumed a permanent 
 character — when composed of the same persons habitually acting to- 
 gether, and always assured of victory in their own House — easily 
 becomes despotic and overweening, if released from the necessity of 
 considering whether its acts will be concurred in by another constituted 
 authority. The same reason which induced the Romans to have two 
 consuls, makes it desirable there should be two chambers : that neither 
 of them may be exposed to the corrupting influence of undivided power, 
 even for the space of a single year.' — ^JoHN Stuart Mill. 
 
 From whatever point of view it be regarded, the English 
 Legislature is the most interesting and the most important 
 in the world. In point of antiquity incomparable; in 
 jurisdiction the most extensive, and in power unhmited. 
 Competent and at all times called upon to legislate for one- 
 fourth of the human race. Parliament — or more technically 
 * the King in Parliament ' — recognizes no domestic authority 
 superior to itself. It is, in a word, Sovereign, in all matters 
 
(i) THE HOUSE OF LORDS 127 
 
 ecclesiastical as well as temporal, within the dominions of 
 the King. 
 
 In this and the following chapters I propose to discuss 
 the place of the Legislature in the English Constitution ; to 
 analyse its structure, to sketch its history, and to describe 
 its functions. In order more clearly to appreciate the 
 outstanding features of our own Legislature, I shall also 
 compare it with the Legislatures of other great States of 
 the modern world. 
 
 It will be found convenient, as well as scientific, to 
 consider the structure and functions of the two Houses 
 separately ; but before proceeding to this task there are two 
 outstanding features of the English Parliament as a whole to 
 which particular attention must be drawn. 
 
 The first is that of the legal omnipotence of the * King 
 in Parliament'. 'The Sovereignty of Parliament', says 
 Mr. Dicey, 'is from a legal point of view the dominant 
 characteristic of our political institutions.' To the general 
 principle reference has already been made; but it is im- 
 portant further to observe that it is resolved by Mr. Dicey 
 into three propositions : 
 
 (i) There is no law which Parliament (i.e. the King in 
 Parliament) cannot make ; 
 
 (2) There is no law which Parliament cannot repeal or 
 modify ; and 
 
 (3) There is under the English Constitution no marked 
 or clear distinction between laws which are not fundamental 
 or constitutional and laws which are. 
 
 In a word the English Parliament is not merely a Legisla- 
 tive, but a Constituent assembly. 
 
 First : there is no law which Parliament cannot make. In 
 1701, for example, it made the Act of Settlement, an Act 
 which, inter alia, actually determined the succession to the 
 throne. In 1707 it effected, by ordinary legislative enact- 
 ment, a legislative union with Scotland, and in 1800, by 
 
128 THE LEGISLATURE 
 
 similar action, a legislative union with Ireland. Those 
 Acts fundamentally altered the Constitution of the two 
 Houses of the Legislature, and indeed the whole Constitu- 
 tion of the United Kingdom. By the same authority and 
 by similar process they could of course be repealed. But the 
 crowning illustration of the omnipotence of Parliament is to 
 be found in the Septennial Act of 1716. That Act not 
 merely extended the duration oi future Parliaments from 
 three years to seven, but actually prolonged the existence of 
 the sitting Parliament for that term. Constitutional purists, 
 like Priestley, were aghast at this violation of the * rights ' of 
 the people. And with much show of reason. For, by the 
 same token, future Parliaments might prolong their own 
 existence from seven years to seventy, or^ like the Parliament 
 of 1641, make it perpetual. Hallam derides Priestley's 
 * ignorant assumption '. But Priestley was right. If a Parlia- 
 ment elected under the Triennial Act could legally prolong 
 its existence from three years to seven, there was nothing to 
 prevent another Parliament, elected under a Septennial Act, 
 from extending its term to seven hundred years. 
 
 But the really interesting and significant point is, that 
 there is in fact nothing in the English Constitution to 
 prevent such a usurpation on the part of Parliament. 
 Nothing, that is to say, of a legal nature. Cromwell put 
 a stop to a similar usurpation in April 1653, when he shut 
 the doors upon the Long Parliament and ordered the 
 removal of the 'bauble' of authority — the mace. But 
 Cromwell did this, be it observed, not by an appeal to 
 law, nor by an appeal to the constituencies — the ultimate 
 depositaries of political sovereignty — but by an appeal to 
 force. Inter arma silent leges ; in the rattle of musketry 
 you cannot hear the voice of the law. Cromwell's Ironsides 
 were more than a match for the legal sophistries of the 
 attenuated rump of the Long Parliament. 
 
 None the less, Mr. Dicey is fully justified in his appeal to 
 
(i) THE HOUSE OF LORDS 129 
 
 the Septennial Act as the sufficient and conclusive proof of 
 the doctrine of Parliamentary Sovereignty. * That Act ', as 
 he says, ' proves to demonstration that in a legal point of 
 view Parliament is neither the agent of the electors nor in 
 any sense a trustee for its constituents. It is legally the 
 Sovereign power of thai State, and the Septennial Act is at 
 once the result and the standing proof of such Parliamentary 
 Sovereignty.' ^ 
 
 Secondly : there is no law which Parliament cannot repeal 
 or modify or temporarily set aside. At the time of the 
 Disestablishment of the Irish Church in 1869 there was 
 much discussion as to the competence of Parliament 
 virtually to repeal one of the clauses of the Act of Union. 
 Such an argument might have been perfectly valid as a 
 political or even a moral ground of objection to Mr. Glad- 
 stone's proposal ; but it had no legal validity whatsoever. 
 Nor had the similar objection that the Ministry were, by 
 the passing of this Act, virtually compelling the Queen to 
 a violation of her coronation oath. From the point of 
 view of the constitutional lawyer the Act of Union had no 
 superior validity to the Act authorizing the construction of 
 the Manchester and Liverpool railway. But Mr. Dicey lays 
 especial stress in this connexion upon the enactments which, 
 like Acts of Indemnity, are 'as it were the legalization of 
 illegality'. For more than a hundred years (1727-1828) 
 Parliament regularly passed an annual Act of Indemnity to 
 relieve Dissenters from the penalties to which they exposed 
 themselves for having, in violation of the Test Act, * accepted 
 municipal offices without duly qualifying themselves by taking 
 the Sacrament according to the rites of the Church of 
 England'. Such Acts are, as Mr. Dicey justly adds, 'the 
 highest exertion and crowning proof of Sovereign power.' 
 
 But enough has been said to illustrate the legal omni- 
 
 1 Law of the Constitution, p. 44. 
 iiao I 
 
I30 THE LEGISLATURE 
 
 potence of the English Parliament. Before quitting the 
 subject, however, two further points deserve notice. 
 
 The first is, that in this respect — the enjoyment of this 
 omnipotence — the English Parliament, and those assemblies 
 which have been consciously modelled upon it, are prac- 
 tically unique among the legislatures of the world. ^ 
 
 The other is, that the English Parliament itself narrowly 
 escaped restrictions. The moment when this danger 
 threatened our Parliamentary omnipotence was one of the 
 most interesting in the Constitutional history of England. 
 In October 1647 the extreme Republican party drafted a 
 Constitution known as The Agreement of the People. The 
 eighth clause of this famous document was intended to 
 define the position of the Legislature. It runs as follows : — 
 
 * That the Representatives have, and shall be understood 
 to have, the supreme trust in order to the preservation and 
 government of the whole; and that their power extend, 
 without the consent or concurrence of any other person or 
 persons, to the erecting and abolishing of Courts of Justice 
 and public offices, and to the enacting, altering, repealing 
 and declaring of laws, and the highest and final judgement, 
 concerning all natural or civil things but not concerning 
 things spiritual or evangelical. Provided that, even in things 
 natural and civil, these six particulars next following are, and 
 shall be, understood to be excepted and reserved from our 
 Representatives, viz ' 
 
 There then follow five points of detail which do not, 
 for the moment, concern us. The sixth is, in the present 
 connexion, of first-rate importance ; it declares ' that no 
 Representative may in anywise render up or give or take 
 away any of the foundations of common right, liberty, or 
 safety contained in this agreement '. 
 
 What is the significance of this clause ? It proposed that 
 the powers of the Legislature should be limited ; that certain 
 questions of supreme importance or difficulty should be 
 
 ^ See supra, pp. 18 et sq. 
 
(i) THE HOUSE OF LORDS 131 
 
 reserved from its jurisdiction ; that, in a word, its function 
 should be legislative but not constituent. Not even the 
 extreme democrats of the Commonwealth were willing to 
 commit unlimited power to a single legislative Chamber. 
 It may be objected that The Agreement of the People was 
 never accepted and never came into force. That is true. 
 But many of its principles reappear in the two written 
 Constitutions of the Commonwealth and Protectorate. 
 
 Under the Instrument of Government^ which was drawn 
 up December 16, 1653, the legislative power was vested 
 in *the Protector, and the people assembled in Parlia- 
 ment ' (§ i). The twenty-fourth clause specifically provides : 
 * That all Bills agreed unto by the Parliament shall be pre- 
 sented to the Lord Protector for his consent ; and in case 
 he shall not give his consent thereto within twenty days 
 after they shall be presented to him, or give satisfaction to 
 the Parliament within the time limited, that then, upon 
 declaration of the Parliament that the Lord Protector hath 
 not consented nor given satisfaction, such Bills shall pass 
 into and become law although he shall not give his consent 
 thereunto; provided such Bills contain nothing in them 
 contrary to the matters contained in these presents.' 
 
 What is the precise meaning of this clause and, in par- 
 ticular, of its concluding words? On this point there is 
 some conflict of opinion between the Constitutional historian 
 and the Constitutional lawyer. Dr. Gardiner contends that 
 the intention was to devise a rigid Constitution, and to limit 
 the authority of Protector and Parliament by the terms of 
 the Constitution as defined by the Instrument. The Pro- 
 tector was, according to this view, invested with a short 
 suspensive veto on ordinary legislation, but neither he nor 
 Parliament, nor both combined, could alter or amend the 
 Constitution itself. It is noticeable that this is not the 
 interpretation placed upon the clause by a contemporary — 
 Colonel Ludlow. His summary of the clause runs as 
 
 I 2 
 
132 THE LEGISLATURE 
 
 follows : * That whatsoever they (Parliament) would have 
 enacted should be presented to the Protector for his con- 
 sent ; and that if he did not confirm it within twenty days 
 after it was first tendered to him it should have the force 
 and obligation of a Law ; provided that it extended not to 
 lessen the number or pay of the army, to punish any man 
 on account of his conscience, or to make any alteration in 
 the Instrument of Government; in all which a negative 
 was reserved to the single Person ' (i. e. the Protector).* 
 Ludlow obviously regarded the Protector and Parliament as 
 being conjointly competent to alter even the terms of the 
 Constitution itself, and that is the opinion of Mr. Dicey, 
 than whom there is no higher authority on the legal aspect 
 of the question.'^ It would seem, moreover, to be confirmed 
 by the draft of The Constitutional Bill of the first Parliament 
 of the Protectorate^ clause 2 of which runs as follows : 'That 
 if any Bill be tendered at any time henceforth to alter the 
 foundation and government of this Commonwealth from a 
 single Person and a Parliament as aforesaid that to such Bills 
 the single Person is hereby declared shall have a negative.' 
 Clearly, if the single Person did not veto the Constitutional 
 amendment, it was to become law. This 'Constitutional 
 Bill ' never passed into law, and can be cited, therefore, only 
 in illustration. But so far as it goes it would seem to sup- 
 port the contention of the lawyers that in a legal sense the 
 Instrument of Government was not a ' rigid ' but a ' flexible ' 
 Constitution. On the other hand, the Instrument does not 
 provide any machinery for Constitutional amendment, and 
 we know from external sources that Cromwell's own intention 
 was that the Parliament should exercise merely legislative, 
 and not constituent functions;' and further, that in con- 
 
 1 Ludlow, Memoirs^ p. 478. 
 
 2 I must here tender my thanks to Mr. Dicey for permission to record 
 this opinion and for his kindness in discussing the matter with me. 
 
 ' See speech cited supra, p. 17. 
 
(i) THE HOUSE OF LORDS 133 
 
 sequence of its determination to debate 'constitutional' 
 questions it was summarily dissolved by the Protector. 
 The point is one of immense Constitutional significance, 
 but here I am concerned with it only so far as to point out 
 that certain ' fundamentals ' were clearly and by general 
 admission reserved from the jurisdiction of Parliament. 
 Whether these ' fundamentals ' could be amended by Parlia- 
 ment and Protector acting in conjunction is a moot point 
 on which historians and legists are at issue. 
 
 It is interesting to observe that in regard to the limitation 
 of the competence of the Legislature the two great branches 
 of the Anglo-Saxon race have followed divergent paths. 
 The obstinacy of the Protectorate Parliaments had its 
 reward. Since the Restoration no attempt has been made 
 in England to question the legislative omnipotence of 
 Parliament. The English Parliament is indisputably con- 
 stituent as well as legislative. The American Constitution, 
 on the other hand, follows the example of the Protectorate 
 and makes the Legislature subordinate to the Constitution. 
 
 There is another feature of the English Legislature which, 
 though common to most modern States, is of first-rate im- 
 portance alike from the historical and from the political 
 point of view, viz. its bicameral structure. The ultimate 
 adoption of this form was due partly to a series of for- 
 tunate accidents. The English Parliament, consisting 
 originally, like the States- General of France, of three Estates ^ 
 might naturally have organized itself in three chambers. 
 Why did it, after about half a century, settle down into two 
 chambers and two chambers only ? 
 
 The model Parliament summoned by Edward I in 1295 
 consisted of five distinct elements: (i) the lay Barons; 
 (2) the Bishops and Abbots, or Spiritual Peers; (3) the 
 Knights of the Shire; (4) representatives of the Eccle- 
 siastical Chapters and the parochial clergy ; and (5) repre- 
 sentative burgesses from the towns. We might have had 
 
 ^ 
 
134 THE LEGISLATURE 
 
 one single chamber containing all five classes; or five 
 chambers^ each containing one. Perhaps the most obvious 
 and natural arrangement would have been three chambers ; 
 the first containing the lay barons and the knights ; a second 
 the clergy of all degrees ; and a third the burgesses or tiers 
 /tat. This obvious disposition was prevented by the sepa- 
 ratist prejudices of the clergy, who preferred, instead of 
 J taking their place in the national assembly, to vote their 
 contributions to the King in their own exclusively clerical 
 assemblies of Convocation. Early in the fourteenth century 
 the representatives of the inferior clergy had definitely 
 dropped out of the national system, and they continued 
 until 1663 to vote their supplies in Convocation. Four ele- 
 ments still remained. Of these the Knights, though elected 
 like the Burgesses in the Shire-courts, were drawn naturally 
 into political association with the Barons, to whom socially 
 they were akin. For some years after 1295 the Knights sat 
 with the Barons. But before the middle of the fourteenth 
 century, precisely when, or precisely why, we do not know, 
 the Knights had detached themselves from the Barons and 
 had united with the Burgesses in a House of Commons. 
 Thus within fifty years of its inception Parliament had 
 assumed the shape which, except for a brief interval, it has 
 ever since retained. Lay Barons and Spiritual Peers com- 
 bined to form a House of Lords ; the union of Knights and 
 Burgesses constituted a House of Commons. 
 
 The evolution of the bicameral form was in itself of 
 striking significance ; but not less significant was the dis- 
 position of the several elements of which the two Houses 
 were composed. Had the Knights of the Shire continued 
 to adhere, as they well might have done, to the Barons, the 
 history of the English Parliament might not improbably 
 have resembled that of the French States-General or the 
 Spanish Cortes. These representative Parliaments were 
 practically coeval with that of England; but by the 
 
 / 
 
(i) THE HOUSE OF LORDS 135 
 
 beginning of the seventeenth century the one had finally 
 disappeared, and the other had ceased to exercise any 
 effective restraint upon the Crown. The failure of repre- 
 sentative institutions in France and Spain cannot be ascribed 
 to any single cause; but among the causes which con- 
 tributed to their decadence not the least potent is the fact 
 that their political organization corresponded to social dis- 
 tinctions. A King of France or a King of Castile could 
 ally himself with the tiers itat or burgesses for the de- 
 struction of the nobility, and then having destroyed the 
 political power of the nobility could turn upon and rend 
 the burgesses. In this way a wedge was driven into Parlia- 
 ment. In England this operation was rendered impossible 
 by the solidarity of the two Houses; and that solidarity 
 was due to the connecting link of the Knights of the Shire. 
 The Knights were not infrequently actual members of noble 
 families^ and almost invariably they belonged socially to 
 the same class as that which furnished members of the 
 House of Lords. But socially united with the Peers they 
 were politically allied to the Burgesses. This political 
 amalgamation of Knights and Burgesses was rendered 
 possible by the unique character of the English Peerage. 
 In England the Peerage never degenerated into a caste; 
 only the eldest son of a Peer became a Peer, and even 
 he during his father's lifetime was a Commoner. Else- 
 where, the dignities and privileges of Peerage attached 
 not to the individual but to the family. In England, the 
 House of Commons has always contained a considerable 
 proportion, at any rate down to 1832, of persons who in 
 other countries would be not commoners but nobles ; and 
 nothing has done more than this single fact to link the two 
 Houses together and to maintain the solidarity and stability 
 of Parliamentary institutions against any possible encroach- 
 ment on the part of the Crown. 
 
 Having noted these two outstanding features of our 
 
136 THE LEGISLATURE 
 
 Parliamentary institutions — the legal omnipotence of the 
 King in Parliament, and the bicameral arrangement of 
 Parliament itself — we may now proceed to sketch the history 
 of the Central Legislature. 
 
 The English Parliament, and more specifically the Upper 
 House, is lineally descended from the Great Council of the 
 Norman Kings, which in its turn may claim descent from 
 the Anglo-Saxon Witenagemot. The precise composition 
 of the Witenagemot has long been a matter of controversy 
 among historical experts. Whether it was in theory an 
 aristocratic or democratic body is a question which need not 
 detain us; in practice it was unquestionably a small and 
 aristocratic — or, more accurately, official — body. It con- 
 /sisted, on ordinary occasions, of the members of the Royal 
 Family, officers of the King's Household, the Bishops, 
 Abbots, Ealdormen or Earls, and Ministri or King's thegns. 
 The work of the Witenagemot was at once administra- 
 tive, legislative, and judicial : laws were promulgated with 
 its counsel and consent ; taxation, when required, was 
 raised by its authority; it shared in the decisions of 
 high questions of State, such as the declaration of war 
 and the conclusion of peace ; it witnessed grants of land, 
 and acted as the Supreme Court of Justice. After the 
 Norman Conquest the Witenagemot virtually reappeared 
 , under the title of the Commune Concilium. 'Thrice a 
 >/ year', says the Saxon Chronicle, '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.' Technicalities apart, this was ob- 
 viously a meeting of the magnates of the realm. Did these 
 several classes attend the Council in view of any more 
 specific qualification common to all? It is not easy to 
 answer this question with assurance; but whatever may 
 
(i) THE HOUSE OF LORDS 137 
 
 have been the original theory it is clear that the idea soon 
 emerged that there rested an obligation upon all the military 
 tenants of the Crown to attend the King's Council or Court. 
 *The Earldoms', as Bishop Stubbs put it, 'have become 
 fiefs instead of magistracies, and even the Bishops had to 
 accept the status of Barons,' i. e. military tenants-in-chief. 
 
 As the eleventh century advances the functions of the 
 Council become more clearly defined ; the administrative 
 and judicial work is for the most part assigned to Committees 
 which later on become known as the Curia Regis and the 
 Concilium Ordinarium. The composition of the Commune 
 Concilium becomes at the same time more determinate ; in 
 particular, a distinction is recognized between the greater 
 and lesser Tenants of the Crown. Bishop Stubbs goes so 
 far as to hazard a conjecture, *that the landowners in 
 Domesday who paid their relief to the Sheriff, those who 
 held six manors or less, and those who paid their relief to 
 the King, stood to each other in the relation of lesser and 
 greater Tenants-in-Chief ' Be this as it may (and Bishop 
 Stubbs's conjectures are always cautious) it is certain that 
 a distinction between the greater and lesser Tenants-in-Chief 
 had made itself manifest, at any rate by the time of Henry U, 
 and that the distinction is marked in three ways : first, in 
 the manner of summons to the Council ; secondly, in the 
 fiscal relations between the Crown and its Tenants, and, 
 ♦thirdly, in regard to military service. The greater Tenants — 
 Barones majores — receive a personal summons to attend 
 the King's Council, pay their feudal dues directly into the 
 King's exchequer, and bring up their retainers to the King's 
 assembly under their own banners. The lesser Tenants — 
 Barones minores — are summoned to attend through the 
 Sheriff of the Shire, pay their dues to the Crown through 
 the same great functionary, and under him serve in the 
 Host. The distinction, already well established by cus- 
 tom, receives legal sanction from the famous clause of 
 
I3« THE LEGISLATURE 
 
 Magna Carta (§ 14): 'For the purpose of having the 
 common Council of the Kingdom we will cause to be 
 summoned the Archbishops, Bishops, Abbots, Earls, and 
 Greater Barons {Majores Barones) singly {sigillatim) by our 
 letters ; and besides we will cause to be summoned gener- 
 ally by our Sheriffs or Bailiffs all those who hold of us in 
 chief.' Another clause of the Charter provides that 'the 
 heir of a Baron shall pay 100 marks for succession duty 
 (relief), the heir of a Knight shall pay only 100 shillings.' 
 It has been surmised, and with much show of probability, 
 that the distinction in ' relief corresponds with the distinction 
 in the manner of summons. Be this as it may, it is clear 
 that as the thirteenth century proceeds there is a widen- 
 ing differentiation between Barones majores and Barones 
 minores) or, as we shall come to call the latter, Knights. 
 Further, there is a progressive circumscription in the numbers 
 of the Baronial class. Thus to the Welsh War of 1276 
 no fewer than 165 Barons received a special suijimons ; to 
 the Model Parliament of 1295 only 41. 
 
 Meanwhile, the Barones minores, or Knights, began to 
 appear in the Commune Concilium in a new and very im- 
 portant capacity. There were summoned in 12 13 to Oxford 
 four discreet Knights from each county to consult with , the 
 King about State affairs. They are present in a representative 
 capacity, and further consideration of the significance of this 
 new departure must be deferred, therefore, until we come to 
 deal with the evolution of the representative House. In 
 this place it is enough to note that to the Parliament of 
 1295 there were summoned representatives of various classes 
 besides the magnates, personally summoned, who constitute 
 the basis of the future House of Lords. 
 
 The history of that House falls naturally into four periods : 
 
 j the first extending from the definite formation of the two 
 
 Houses down to the Reformation ; the second from the 
 
 Reformation to the Restoration of 1660 j the third from 
 
 / 
 
(i) THE HOUSE OF LORDS 139 
 
 the Restoration to the Reform Act of 1832 ; and the fourth 
 from the first Reform Act to the present day. 
 
 Each of these periods presents some features which it is 
 desirable briefly to notice. 
 
 During the first two centuries of its organized exist- 
 ence the House of Lords was very different in aspect and 
 composition from the House with which we are familiar. 
 It was a small body ; it was always largely, and some- 
 times predominantly, a clerical body ; and it was to this 
 extent a non-hereditary body. Firstly : as to its size. In 
 1295 those whom we should now call the Peers num- 
 bered 138: viz.: — 7 Earls, 41 Barons, 20 Bishops, 3 
 Heads of Monastic Orders, and the 67 Abbots. By the 
 first year of Edward II the numbers had increased to 
 156, but the total was differently made up. The lay 
 Peers were now 80 in number, the Spirituals had already 
 dropped to 76. In the first year of Edward III the total 
 numbers of the House had dropped to 131 ; but while the 
 lay Peers had increased to 86, the Spiritual Peers had further 
 dropped to 45. At or about this figure the Spiritual Peers 
 remained constant until the dissolution of the great Abbeys 
 by Henry VIII. The Abbots, like the lower clergy, were 
 impatient of the obligation to attend Parliament, and pleaded 
 that they were not called upon to do so unless they held by 
 military tenure ; unless, that is to say, they were technically 
 Barons. But while the Spiritual Peers thus decreased in 
 numbers, the temporal Baronage tended also to decrease, 
 and in greater proportion. In the first year of Edward III 
 the temporal Baronage, as we have seen, numbered 86. In 
 the first year of Richard II the numbers had fallen to 60 ; 
 by the accession of Henry IV they had further fallen to 
 50 ; in 141 3, to 38 ; and by 1422 to 23. The number in- 
 creased somewhat in the middle of the century, but to his 
 first Parliament Henry VII summoned only 29. I do not 
 stay to inquire what were the causes of this remarkable 
 
I40 THE LEGISLATURE 
 
 diminution ; partly, perhaps, the French War, partly the Wars 
 of the Roses, and partly the failure of male heirs. 
 
 From this rapid summary two points emerge : (i) the 
 numbers of the House of Lords were, compared with our 
 modern standard, very small ; and (2) they varied, not in- 
 considerably, from reign to reign. 
 
 This last point raises an interesting question : Who were 
 entitled to attend the House of Lords ? But the form of 
 the question itself betrays the modern inquirer. The 
 fourteenth-century magnate would rather have asked : Who 
 is obliged to attend the King in Parliament ? For attend- 
 ance was originally an obligation rather than a privilege ; a 
 duty or service owed to the King. But the question re- 
 mains : Upon whom did the irksome obligation rest ? The 
 question is most effectively answered by observing the 
 change in the connotation of the term Baron. A Baron is 
 J originally merely a feudal tenant holding land direct from 
 the Crown under the obligation of military service. Gradu- 
 ally the term becomes restricted to the greater landowners 
 who receive an individual summons to attend the King in 
 Council. Thus, to use technical language, barony by tenure 
 is superseded by barony by writ. The House of Lords, when 
 definitively organized in the fourteenth century, is seen to 
 consist of about 150 persons — sometimes more, sometimes 
 less — who are entitled to receive special writs — an individual 
 summons from the King. 
 
 But who were entitled to receive these writs ? The right 
 of the Bishops was never disputed, though it is not certain 
 whether the right was derived from their position as ecclesi- 
 astical magnates, or as holders of tenurial baronies. The 
 right of the great Abbots was equally indisputable : but 
 they successfully evaded their Parliamentary obligation 
 except when it could be shown to rest upon their character 
 as military tenants of the Crown. As to lay * barons ', the 
 obligation or privilege seems originally to have depended 
 entirely upon the caprice of the Crown. ' Barons ' were 
 
(i) THE HOUSE OF LORDS 141 
 
 bound to attend, but only he was a * baron ' who received a 
 special writ. But was the obligation perpetual ? Once 
 summoned, was a man always summoned ? And was it 
 hereditary ? Did the right to a writ descend from father to 
 son? These questions are not easily answered; but per- 
 haps we may say with sufficient accuracy that, whatever the 
 original theory, the custom quickly crystallized into an heredi- 
 tary right. By the time that the obligation had developed 
 into a right it had become clearly and legally established that 
 the King could not withhold a writ of summons to the House 
 of Lords from the heir of a person who had been once 
 summoned and had obeyed the summons by taking his seat.* 
 
 But long before this point was definitely established a new 
 method had been devised for creating Peers. The latter 
 term, as denoting membership of the House of Lords, 
 gradually came into use in the fourteenth century, the first 
 use of it in this connexion being found in the Act against 
 the Despensers, the favourites of Edward H (1322), The 
 next reign witnessed the introduction of grades into the 
 Peerage — a strange contradiction in terms. The title (origi- 
 nally the office) of Earl had come down from Saxon days \ 
 but of Earls there were {temp. Edward HI) barely a dozen. 
 In 1377 Edward HI issued Letters Patent creating his son, 
 the Black Prince, Duke of Cornwall ; the first Marquis was 
 created, in similar fashion, by Richard H in 1386, and the 
 first Viscount by Henry VI. Richard II was the first King to 
 create Barons by Letters Patent^ but by Henry VI it had be- 
 come the established method for the creation of all peerages. 
 
 Besides Bishops and Abbots, and the various grades of 
 the lay Peerage, there was another class of counsellors of the 
 Crown who from time immemorial have received a summons 
 to attend the King in Parliament, but have never permanently 
 established their right to seats. I refer to the Judges and 
 the great law officers of the Crown, the Attorney and Solicitor, 
 1 Cf. Case of the Clifton Barony, 1673 ; Freshville Case, 1677. 
 
142 THE LEGISLATURE 
 
 and the King's Ancient Serjeant. Such a summons still 
 issues to the Law Officers and the Judges of the High Court 
 of Justice ; they are still enjoined to ' be at the said day 
 and place personally present with us and with the rest of 
 our Council to treat and give [your] advice upon the affairs 
 aforesaid '. In obedience to this command the Judges are 
 present in the House of Lords at the opening of each Parlia- 
 ment, and may at any time be called upon ' to give their 
 opinions on difficult points of law which come before the 
 House of Lords as a Court of Appeal'. But they are 
 summoned in a special and inferior capacity. 'They are 
 not summoned "on their faith and allegiance" nor to be 
 present " with the said Prelates, Peers and great men " but 
 " with us and the rest of our Council to treat and give your 
 advice ".' ^ This last phrase supplies the key to the enigma 
 presented by the position of the Judges in, but not of, Parlia- 
 ment. They come, and come naturally and inevitably, as 
 members of the Great Council, and their presence is due 
 to the antiquarian confusion between the House of Lords, 
 and the Magnum Concilium which practically lost itself in 
 the House and which handed on to that House its judicial 
 and conciliar functions. 
 
 To the functions of the House of Lords we may now pass. 
 They are four : taxative, legislative, deliberative, and judicial. 
 As an Estate of the realm the Lords originally possessed, like 
 the Commons and Clergy, the right of voting their separate 
 aids to the Crown ; but before Parliament was a century old 
 the Commons had already begun to acquire a pre-eminence 
 in matters of taxation, and a consideration of this function 
 may, therefore, be appropriately deferred. In legislation, 
 on the contrary, the part of the Commons was originally 
 inferior to that of the Lords, while both Houses were, until 
 the fifteenth century, entirely subordinate to the Crown. 
 
 The ' Counsel and Consent ' of the great men of the realm 
 * Anson, i, 52. 
 
(i) THE HOUSE OF LORDS 143 
 
 had from time immemorial been a customary if not a neces- 
 sary ingredient in the process of legislation. But the primary 
 function of the representative assemblies which came into 
 l)eing, not in England only, in the thirteenth century was 
 not legislation but supply. Not indeed until 1322 was the 
 assent of the Commons deemed essential to legislation. Even 
 after that time the Crown continued to enact statutes on 
 the Petition of Parliament. Many were the complaints that 
 the Statutes, as finally enacted, differed materially from the 
 Petitions on which they were avowedly based, and not until, 
 under Henry VI, the modern process of legislation by Bill 
 was substituted for that of legislation by Petition was any 
 effectual remedy discovered. 
 
 The deliberative function of the Lords is one which they 
 have at all times shared with the Lower House, and it need 
 not, in this connexion, detain us. It is otherwise with the 
 judicial function. Both historically and practically this is 
 the most distinctive, as it is one of the most important 
 functions of the House of Lords, and it demands somewhat 
 more precise examination. 
 
 In the absence of an adequate historical explanation, it 
 would seem to be in the last degree anomalous that the 
 highest judicial functions should attach to one of the two 
 branches of the Legislature. The anomaly is only to be 
 explained, as was hinted above, by the antiquarian con- 
 fusion between the magnates of the Magnum Concilium 
 and the Lords of Parliament. Virtually identical in per- 
 sonnel^ the functions of the two bodies became inextricably 
 confused. This confusion ceased under Richard II, but it 
 had lasted long enough to impose indelibly upon the House 
 of Lords a function which appears, on the face of it, curiously 
 ahen to a Legislative Chamber. In this particular function 
 of the Lords the Commons claimed no part ; on the contrary, 
 they repudiated it with some emphasis. Thus, in reference 
 to the proceedings against Richard II, the Commons, on 
 
144 THE LEGISLATURE 
 
 November 3, 1399, protested that 'they were not Judges of 
 Parliament, but petitioners', and begged that *no record 
 may be made in Parliament against the Commons, that they 
 are or will be parties to any judgements given or to be given 
 hereafter in Parliament.' 
 
 The judicial functions of the Lords were, and are, in part 
 appellate and in part original. As the Supreme Court of 
 Appeal, and representing in that capacity the King in Council . 
 no less than the King in Parliament, the House of Lords 
 has from the first corrected the errors of the Common Law 
 Courts, and since the seventeenth century has extended its 
 jurisdiction to appeals from the Court of Chancery.^ As 
 a Court of first instance it exercises jurisdiction over Peers 
 charged with treason and felony, and on the accusation of 
 the House of Commons it tried great offenders against the 
 State by process of impeachment. Devised originally as a 
 means of bringing to account powerful and highly placed 
 offenders, the process developed into an assertion of the 
 responsibility of the King's servants to Parliament. Its 
 clumsiness and inadequacy were, as we have seen, perceived 
 by the acute Constitutionalists of the seventeenth century. 
 The development of the Cabinet system in the eighteenth 
 century substituted a collective for individual responsibility, 
 and the practice of impeachment fell into desuetude; but 
 the process remained and remains a weapon in reserve. 
 
 The right of determining disputed claims to Peerages is 
 sometimes included among the judicial functions of the 
 Lords. But it would seem rather to be a privilege analogous 
 to the right of the Commons to determine questions affecting 
 the composition of their own House, and may be considered 
 more conveniently under the head of Privilege. 
 
 The Lords share with the Commons the privilege of free- 
 dom of speech, freedom from arrest, freedom from jury service, 
 and the right to commit persons to custody for contempt. 
 * See infra, c. xiv. 
 
(i) THE HOUSE OF LORDS 145 
 
 I Every peer has also the right of individual access to the 
 I Crown, and of recording on the Journals of the House his 
 formal protest against the decision of the majority, together 
 with the grounds on which it is based.' Collectively the 
 House has the right of excluding unqualified persons, and 
 in the exercise of this right declined to admit Lord Wensley- 
 dale to a seat in the House on his creation as a life-peer in 
 1856. Conversely, it has the right of insisting that no duly 
 qualified person shall be excluded — a right exercised when, 
 in 1626, the House successfully petitioned King Charles I 
 for the issue of a writ of summons improperly withheld 
 from the Earl of Bristol. Until 1868 the Peers also enjoyed 
 the right of delivering their votes by proxy, but in that year 
 the custom was abandoned, and the right has, we may 
 presume, consequently lapsed. 
 
 These powers and privileges were, of course, established 
 only by slow degrees, but it has seemed better to enumerate 
 them at this point before proceeding to sketch the salient 
 features in the history of the House of Lords during the last 
 three centuries, and attempting an estimate of its place in 
 the Constitution of to-day. 
 
 1 Cf. Thorold Rogers, Protests of the Lords. 
 
CHAPTER VII 
 
 THE LEGISLATURE : (2) MODERN HISTORY OF 
 THE HOUSE OF LORDS 
 
 * With a perfect Lower House it is certain that an Upper House would 
 be scarcely of any value. If we had an ideal House of Commons 
 perfectly representing the nation, always moderate, never passionate, 
 abounding in men of leisure, never omitting the slow and steady forms 
 necessary for good consideration, it is certain that we should not need a 
 higher chamber. The work would be done so well that we should not 
 want any one to look over or revise it. And whatever is unnecessary in 
 government, is pernicious. . . . But though beside an ideal House of 
 Commons the Lords would be unnecessary, and therefore pernicious, 
 beside the actual House a revising and leisured legislature is extremely 
 useful, if not quite necessary.' — Bagehot. 
 
 * It must be admitted that cases may occur, in which, the House of 
 Lords continuing to place itself in opposition to the general wishes of 
 the nation, and to the declared sense of the House of Commons, the 
 greatest danger might arise, if no means existed of putting an end to the 
 collision which such circumstances would produce, and which, while it 
 continued, must unavoidably occasion the greatest evils, and in its final 
 issue might involve consequences fatal on the one hand to public liberty, 
 and to the power and security of the Government on the other. It is 
 with a view to a danger of this nature, that the Constitution has given to 
 the Crown the power of dissolving, or of making an addition to the 
 House of Lords, by the exercise of the high prerogative of creating peers, 
 which has been vested in the King for this as well as for other important 
 purposes.' — Mimite of Cabinet^ Jan. 13, 1832. 
 
 The modern history of the House of Lords dates from 
 the sixteenth century, and more specifically from the 
 Reformation. Only since then has it assumed those features 
 which are now regarded as especially characteristic : its 
 large and rapidly increasing numbers ; its almost exclu- 
 sively hereditary membership ; the predominance of laymen. 
 When Henry VIII ascended the throne the House con- 
 
THE HOUSE OF LORDS 147 
 
 tained 48 ecclesiastics, who held their seats, at best, for 
 life, and 36 laymen whose tenure had by that time 
 become virtually hereditary. In the first Parliament of 
 James I the hereditary members had increased to about 
 80/ while the Spiritual Peers were represented by 26 
 Bishops. At this figure the Bishops remained constant, 
 except for the period 1642-61, when they disappeared 
 altogether, and that between 1801 and 1869, when they 
 were reinforced by the presence of four Irish Prelates. 
 Already, therefore, the Bishops had become a small 
 minority, and they have since become relatively smaller; 
 but they have never been a negligible element in the 
 House of Lords, and so uncompromising a Radical as the 
 late Mr. Freeman was disposed *to deal a little gently 
 with so living and speaking a memorial of the days of our 
 oldest freedom' and declared with emphasis that 'none 
 should be listened to with more heed than the voices of 
 those Lords whose seats are immemorial '. ^ Meanwhile the 
 'newer hereditary class which has sprung up around 
 them' has increased in numbers out of all proportion 
 or recognition. Barely 100 in the first Parliament of 
 Charles I, they numbered 140 after the Restoration, and 
 nearly 200 a century later, in the first year of George III. 
 Of these, 16 represented, in the Parliament of the United 
 Kingdom, the peerage of Scotland under the Act of 
 Union (1707). The reign of George III added no fewer 
 than 116 to the hereditary peerage of the United Kingdom, 
 besides 28 Irish lay peers to the Lords of Parliament — 
 bringing up the total of the lay peers in the House of Lords 
 to 342. The short reigns of George IV and William IV 
 added 60 more, while during the long reign of Queen 
 Victoria some 300 peerages were created. A certain 
 
 ^ Exact estimates of the numbers of the lay peerage at a given date 
 are curiously difficult to obtain; those I have seen vary from 70 to 81. 
 ' Essays, 4th series, pp. 501, 2. 
 
148 THE LEGISLATURE : (2) MODERN HISTORY 
 
 number of peerages have become extinct, but even so the 
 number of hereditary peers in the House of Lords has now 
 reached the unwieldy total of 552. It is common ground 
 among all sections of reformers that one of the first steps 
 must be a rigorous curtailment of these excessive numbers. 
 
 Of the House of Lords, as distinct from the House of 
 Commons, there is little to record under the first two 
 Stuarts. The two Houses united in opposition to the Crown 
 throughout the whole period prior to the outbreak of war. 
 It is true that when King Charles I left London in the 
 spring of 1642 and set up a Court at York, he was followed 
 to the North by a large number of peers ; and as the war 
 went on the House of Lords at Westminster presented 
 a more and more deserted appearance. None the less 
 the famous Resolution of March 19, 1649, by which the 
 'Commons of England' abolished the House of Lords as 
 ' useless and dangerous to the people of England ', indicates 
 a fatal inclination towards political theory and a desertion 
 of the safer and straiter road of constitutional experience. 
 The experiment of a single-chambered Legislative Assembly, 
 tried under the Commonwealth and the Protectorate, was not 
 successful, and no one recognized the failure more frankly 
 than Cromwell himself. An attempt was made to repair 
 the error in the Humble Petition and Advice {1657), but 
 not even the creation of ' another ' House could reconcile 
 parliamentary government with the rule of the sword, and 
 not until the restoration of the hereditary monarchy was 
 vigour restored either to the hereditary or the elected 
 Chamber. 
 
 With the Restoration we enter upon a new period in 
 the history of the House of Lords. The House of Com- 
 mons, unduly elated by their recent though transient 
 victory over the hereditary principle as embodied in the 
 Crown and the Upper House, manifested unusual sensitive- 
 ness as to their own privileges and unprecedented jealousy 
 
OF THE HOUSE OF LORDS 149 
 
 as to those of the Lords. On two points in particular the 
 Houses c^ime into serious conflict during the half century 
 following the Restoration : upon finance, and upon the 
 exercise of the judicial functions of the House of Lords. 
 As to the former, discussion may be deferred until we 
 come to deal with the powers of the House of Commons ; 
 as to the latter, it is appropriate to say a word here. 
 
 The House of Lords, as we have seen, had definitely 
 established its jurisdiction as a court for the correction of 
 errors in law committed by the lower courts, in the fourteenth 
 century. For some reason which even the lawyers cannot 
 explain, this jurisdiction was little used throughout the 
 Lancastrian, Yorkist, and Tudor periods. With much else, 
 it revived in the later years of Elizabeth and was exercised 
 without dispute. In the early part of the seventeenth 
 century the Lords put forward two further claims. They 
 claimed and exercised the right to entertain appeals not 
 only from the Common Law Courts but also from the 
 Court of Chancery; and, further, to act as a court of 
 first instance both in civil and criminal cases. After the 
 Restoration, however, both these claims were hotly con- 
 tested by the Commons, and were brought to the test in the 
 famous cases of Skinner v. The East India Compatiy and 
 Shirley v. Fagg. The former raised the question as to the 
 competence of the House of Lords to act as a court of 
 first instance ; the second as to its right to entertain appeals 
 from the Court of Chancery. In neither case are the details 
 pertinent to our present purpose; in both the result was 
 of first-rate importance. Thomas Skinner petitioned the 
 Crown for redress for his 'sufferings under the barbarous 
 oppressions of the East India Company'. The Crown 
 referred the matter to the House of Lords, who, by acting 
 on the reference, proceeded to exercise an original juris- 
 diction in a civil case. The company thereupon petitioned 
 the Commons, who raised the preposterous plea of privilege 
 
I50 THE LEGISLATURE : (2) MODERN HISTORY 
 
 on the ground that certain members of the company were 
 also members of the Commons' House, and simultaneously 
 denied the right of the Lords to act as a court of first 
 instance in civil cases. A violent quarrel between the two 
 Houses ensued, and lasted for nearly four years. It was 
 ended only by the intervention of the King ; records were 
 erased, but victory rested with the Commons. The Lords 
 have never again claimed to exercise original jurisdiction in 
 a civil suit. It was otherwise in the case of Shirley v. Fagg 
 (1675). Shirley appealed to the House of Lords against 
 the decision of the Court of Chancery in favour of Sir John 
 Fagg. The Lords entertained the appeal ; the Commons 
 interposed and denied the Lords' jurisdiction, but even- 
 tually gave way, and the right of the Lords was thus tacitly 
 acknowledged. The Commons were evidently in a quarrel- 
 some temper, and the disputes as to Tacking prove that this 
 temper had not entirely subsided by the beginning of the 
 eighteenth century. But apart from this there was, during 
 the ensuing period, little friction between the two Houses. 
 
 Nor is the reason far to seek. The period between the 
 Revolution of 1688 and the Reform Act of 1832 marks 
 the zenith of the power, if not of the House of Lords, at 
 least of the Lords. For a brief period the aristocratic 
 principle gained complete ascendancy in English politics, 
 central and local alike. For this there were several reasons. 
 The Revolution of 1688, complemented by the Hanoverian 
 accession in 17 14, marked the close of the acute struggle 
 between parliamentary and monarchical principles. Parlia- 
 ment won; but though triumphant as against the Crown, 
 it was as yet very imperfectly responsible to the nation at 
 large. In the Revolution of 1688 the people had little 
 share. It was primarily the work of a small knot of aristo- 
 cratic leaders who were politically far in advance of the 
 general political sense of the mass of the people.* It was 
 ^ See Lecky, History of England, vol. i. c. i. 
 
OF THE HOUSE OF LORDS 151 
 
 they who supplanted James H and set up Dutch William ; 
 it was they, again, who in 17 14 prevented a Stuart restora- 
 tion and secured the throne for the Elector of Hanover. 
 During the eighteenth century they reaped in abundant 
 harvest the fruits of their double victory. Disraeli wrote of 
 the 'Venetian oligarchy' with characteristic exaggeration, 
 but with substantial accuracy. Between 1688 and 1832 
 the Government of England was essentially oligarchical. 
 A group of noble families dominated both the central and 
 the local government. 
 
 In local government the eighteenth century witnessed the 
 apotheosis of the territorial magnate. Down to this time 
 the power of the great landed proprietors had been held 
 in check partly by the strength of the monarchy and partly 
 by the existence of a large and vigorous class of yeomen. 
 But the sixteenth and seventeenth centuries were disastrous 
 in their effects upon the small landowner.* In the eighteenth 
 century political causes gave an added momentum to the 
 economic forces which had long been in operation, and 
 which were now threatening the small landowner with 
 extinction. The stout yeoman, once the peculiar glory 
 of England, was fighting a losing battle all through the 
 eighteenth century, and finally surrendered to the allied 
 forces of the Industrial Revolution and the Napoleonic 
 War. Legal, economic, social, and political forces were all 
 leagued against him. By an Act of 1662 the militia 
 colonelcies were confined to men possessed of £1,000 
 a year from landed property, the lieutenant-colonelcies to 
 men with £600; under George III the qualification for 
 county magistracies was raised from £60 to £100 a year, 
 and for deputy-lieutenancies to £200 a year. Already, in 
 171 1, it had been enacted that a knight of the shire must 
 possess landed estate worth £600 a year, and a borough 
 member estate worth £300. The introduction of scientific 
 
 * Cf. A. H. Johnson, The Disappearance of the Small Landowner. 
 
152 THE LEGISLATURE : (2) MODERN HISTORY 
 
 methods into agriculture necessitated the employment of 
 capital on a large scale, and this combined with the decay 
 of the domestic industries to ruin the small farmer. If he 
 was farming his own land he was compelled to sell it, and 
 either went into the new town to try his luck in commerce 
 or remained in the country as a tenant-at-will. The enclo- 
 sure of seven millions of acres between 1760 and 1845 was 
 at once cause and eifect of the new economic and social 
 movement. From the social point of view we cannot but 
 deplore it; economically it contributed one of the most 
 important elements to the industrial supremacy of the new 
 England which emerged in the nineteenth century. 
 
 The economic and social changes found their counter- 
 part in the political sphere. To an increasing degree owner 
 of the land and supreme in local administration, the great 
 lord became the controller of the parliamentary machine 
 and thus of the central government. Sydney Smith, 
 writing in 182 1, declared that 'the country belongs to the 
 Duke of Rutland, Lord Lonsdale, the Duke of Newcastle, 
 and about twenty other holders of boroughs, — they are our 
 masters'. The statement proceeded from a somewhat 
 tainted source, but even if exaggerated it contained more 
 than a semblance of truth. The Duke of Norfolk did in fact 
 return eleven members, Lord Lonsdale returned nine. Lord 
 Darlington seven, and the Duke of Rutland, the Marquis of 
 Buckingham, and Lord Carrington six each. A petition 
 presented in 1793 on behalf of the Friends of the People 
 declared that 357 members were returned by 154 patrons, 
 of whom 40 were peers. Oldfield declares that in 18 16 
 no fewer than 487 out of the 658 members of the Lower 
 House were nominees; that of the English members 218 
 were returned by the nomination or influence of 87 peers, 
 137 by 90 powerful commoners, and 16 by the Government. 
 Of the 45 Scotch members 31 were returned by 21 peers, 
 and of the hundred Irish members 51 were returned by 
 
OF THE HOUSE OF LORDS 153 
 
 36 peers. Masters in their own House, the Peers were 
 able, therefore, to control in large measure the proceedings 
 of the Lower House as well. 
 
 The only real rival of the Peerage in the eighteenth 
 century was the Crown. How seriously the Crown might 
 encroach upon their omnipotence the Peers were rudely 
 reminded when, in 17 n, Queen Anne created a batch of 
 twelve new peers to facilitate the policy of her Tory 
 Ministry. Warned by this incident of the one serious 
 danger to which their citadel was exposed, the Whig 
 oligarchs produced the Peerage Bill of 17 19. Lord Sunder- 
 land, who was primarily responsible for this famous Bill, was 
 a typical 'revolution Whig', equally mistrustful of the 
 Crown and of the people. He proposed to restrict within 
 the narrowest limits, and indeed practically to abolish, the 
 royal prerogative of creating new peers. The Peerage was 
 never to exceed its existing number by more than six. The 
 Crown might hereafter create six new peerages, and for 
 every peerage which became extinct might create one new 
 one, while the Scotch Peerage was to be represented in 
 perpetuity by twenty-five hereditary in place of the sixteen 
 elected peers. The general effect of the Bill would have 
 been to fix the limits of the lay Peerage at about two 
 hundred. This in itself might not have been undesirable. 
 It was clearly detrimental to the independence of the 
 Upper House that successive factions should, on slight 
 pretexts, have the power of swamping it. But whatever the 
 arguments in favour of Sunderland's Bill, there was one 
 overwhelming reason against it. Once it had been placed 
 upon the Statute Book, the safety-valve of the Constitution 
 was shut. Had the two Chambers been really, as they 
 were theoretically, co-ordinate in legislative authority, re- 
 current deadlocks could hardly have been avoided. A 
 reserve power by which they can be brought into agreement 
 must subsist somewhere ; an appeal must lie either to the 
 
154 THE LEGISLATURE : (2) MODERN HISTORY 
 
 electorate or to the Crown or to both. But though the Peers 
 may in their discretion bow before the clearly expressed 
 will of the nation, they cannot be legally or formally com- 
 pelled to do so. A coercive power is, therefore, vested in 
 the Crown — the power of creating new peerages and thus 
 compelling a recalcitrant House of Lords to accept the 
 verdict of the political Sovereign. George I, only languidly 
 interested in English domestic politics, was willing to see 
 himself stripped of this, one of the highest and most 
 valuable prerogatives of the Crown, but the strong and 
 sure political instinct of Sir Robert Walpole detected the 
 danger which lurked in Sunderland's proposal, and thanks to 
 his strenuous and effective opposition the Bill was defeated. 
 The acceptance of Sunderland's Bill would have worked 
 serious mischief to the balance of the Constitution. It is 
 true that the royal prerogative has never again been exer- 
 cised as it was, in 171 1, by Queen Anne. But the reason 
 is obvious. The fact of the existence of such' a reserve 
 power has been sufficient. The sword has never been 
 drawn from the scabbard, but had the scabbard not been 
 known to contain the sword, trouble would quite certainly 
 have ensued. The readiness for war has preserved the 
 peace. Rather than provoke a war which could end only 
 in defeat the Peers have invariably given way as soon as it 
 has become unmistakably clear that the elected Chamber 
 had the support of the electorate, and that the Crown was 
 prepared effectually to translate into action the will of both 
 electors and elected. But there is another reason why it 
 has never been necessary to unsheath the sword. The 
 dramatic coup of 1 7 1 1 has never been repeated ; but the 
 numbers of the lay Peerage have nearly trebled since 17 19. 
 The House of Lords has never been swamped by a single 
 tidal wave ; but its waters, naturally perhaps sluggish if not 
 stagnant, have been ceaselessly refreshed by streams from 
 the most unpolluted sources which the nation can provide. 
 
OF THE HOUSE OF LORDS 155 
 
 Successful activity in every domain has conducted its 
 possessor to the House of Lords. Soldiers and statesmen, 
 distinguished exponents of art, men of letters and science, 
 great lawyears and successful traders ; — all that is most vital 
 and energetic in the national economy finds representation 
 within the walls of the gilded chamber. Sunderland's Bill 
 would have clo<?ed the door to all this, and would have 
 perpetuated the narrow oligarchy of the Revolution, until 
 it was swept away in a storm of national passion and 
 disgust. The oligarchy has indeed disappeared, but its 
 disappearance has not involved the ruin of the House in 
 which Sunderland would have temporarily enthroned it. 
 
 By the middle of the eighteenth century it was already 
 clear that its days were numbered. As Disraeli put it in 
 a characteristic sentence : ' It could no longer be concealed 
 that by virtue of a plausible phrase power had been trans- 
 ferred from the Crown to the Parliament, the members of 
 which were appointed by an extremely limited and exclusive 
 class who owned no responsibility to the country, who 
 debated and voted in secret, and who were regularly paid 
 by a small knot of great families, that by this machinery 
 had secured the permanent possession of the King's 
 Treasury. Whiggism was putrescent in the nostrils of the 
 nation.' No one realized this fact more acutely than the 
 Monarch. The elder Pitt taught George H to look beyond 
 the House of Commons to the masses of his subjects, as 
 yet politically unrepresented. George HI took this lesson 
 to heart, and not a little of the success which he achieved 
 in his contest with the Whig oligarchy was due to his clear 
 perception of its significance. 
 
 After the conclusion of the great peace in 18 15, it soon 
 became manifest to all men that new forces were beginning 
 to operate in English politics. A new industrial England 
 had come into existence during the last few decades ; 
 agricultural methods, no less than industrial, had been 
 
156 THE LEGISLATURE : (2) MODERN HISTORY 
 
 revolutionized ; population was growing at an unprecedented 
 rate ; wealth had been increasing even faster than popula- 
 tion ; foreign commerce had been expanding under the 
 twofold stimulus of improved methods of production and 
 unparalleled demand for English goods in foreign markets ; 
 and yet the mass of the people were restless and ill-con- 
 ditioned and discontented. In the nidus of economic 
 upheaval, of social agitation and political discontent, Chart- 
 ism was born. And Chartism was sternly and exclusively 
 political in its demands. In the forefront of its programme 
 was the demand for parliamentary and electoral reform, 
 and it was one which after 181 5 it was increasingly difficult 
 to ignore or resist.^ The detailed history of the movement 
 belongs to another chapter ; we deal with it here only in 
 its bearing upon the position of the House of Lords. 
 
 The first Reform Bill of 183 1 was carried in the House 
 of Commons on March 22 only by a majority of one in a 
 House of 603. Defeated on General Gascoigne's motion 
 for adjournment, Lord Grey and his colleagues tendered 
 their resignation to the King, but the King refused to 
 accept it and dissolved Parliament. Supported by a 
 majority of 100 the Government passed their second 
 Bill through the Commons, but on October 8 they suffered 
 defeat in the Lords by 199 to 158. The prorogation of 
 Parliament was followed by serious riots in the country. 
 On December 1 2, Lord John Russell introduced his third 
 Bill, which after a rapid and triumphant passage through 
 the Commons was read a second time by the Lords on 
 April 13. Defeated on an amendment moved by Lord 
 Lyndhurst, the Grey Ministry again tendered their resigna- 
 tion ; but neither Lyndhurst nor Manners Sutton ^ could 
 form a Government, and the King was compelled to 
 recall the Whigs, who refused to retain office except on 
 
 * See infra, c. x. 
 
 2 At that time Speaker ; the attempt cost him the Speakership in 1833. 
 
OF THE HOUSE OF LORDS 157 
 
 the understanding that the King would create sufficient 
 new peers to carry the Reform Bill without substantial 
 amendment. Reluctantly the King gave his promise in 
 the following historic document : — 
 
 'The King grants permission to Earl Grey and to his 
 Chancellor, Lord Brougham, to create such a number of 
 peers as will be sufficient to ensure the passing of the 
 Reform Bill, first calling up peers' eldest sons. 
 William R. Windsor 
 
 May 17, 1832.' 
 
 Further resistance was useless ; even the Duke of Wel- 
 lington recognized that the game was up, and at the request 
 of the King, and to save him from the disagreeable alter- 
 native of creating ' sixty or perhaps eighty ' new peers, the 
 Duke advised his followers to forgo further opposition; 
 one hundred Tory peers withdrew from the House; the 
 Reform Bill passed through the Lords and on July 7, 1832, 
 received the Royal assent. 
 
 The House of Lords, and in particular the Duke of 
 Wellington and Lord Lyndhurst, suffered much criticism 
 and indeed incurred not a little odium for their prolonged 
 resistance to parliamentary reform. Was it justified ? The 
 Duke was sincerely convinced that the Pre-Reform Con- 
 stitution was as nearly perfect as a Constitution could be. 
 He had given expression to this opinion, perhaps in- 
 cautiously, at a recent date. Under that Constitution the 
 members of the Upper House were undeniably the pre- 
 dominant partner. For a century and a half the arrange- 
 ment had worked well. Under the rule of an aristocracy 
 the kingdom of England and Wales had developed into 
 Great Britain ; had united Ireland to itself in the bonds 
 of a legislative union ; had humbled its great rival France 
 on three continents, and, finally, had expanded into an 
 Empire rapidly tending to become world-wide. No one 
 can reproach the aristocracy of the eighteenth century with 
 
158 THE LEGISLATURE : (2) MODERN HISTORY 
 
 political inanition or ineffectiveness. In 1831 it was 
 invited to commit political suicide. It ought no doubt 
 to have discerned the ' signs of the times ' ; to have per- 
 ceived that great constitutional changes had been rendered 
 inevitable by the economic revolution ; to have appreciated 
 the virtue of timely self-abnegation ; and yet, human nature 
 being what it is, can we deem it wonderful that the Peers 
 should have clung with tenacity to the political pre-emin- 
 ence which they had enjoyed with evident advantage, not 
 only to themselves but to the nation at large, for more than 
 a century ? Varying temperament will doubtless dictate 
 various answers to this question ; but as to the actual effect 
 of the Reform Act of 1832 upon the House of Lords there 
 can be no ambiguity. The Lords were no longer masters of 
 the political situation ; supremacy passed from the great terri- 
 torial magnates to the middle classes : to the manufacturer, 
 the trader, and the farmer. The Lords had to adjust them- 
 selves to a new political environment. In this difficult 
 task they were immensely assisted by the transcendent 
 authority, the unquestioned patriotism, and the sound 
 common sense of the Duke of Wellington. Bagehot declared 
 that it was ' the sole claim of the Duke of Wellington to 
 the name of a statesmen ', that he presided over the difficult 
 period of transition. Be this as it may, the fact is 
 indisputable ; the Duke gradually led the Lords into a 
 frank acceptance of their new place in the Constitution — a 
 place undeniably secondary to that of the elected Chamber. 
 'For many years, indeed from the year 1830 when I 
 retired from office, I have endeavoured to manage the 
 House of Lords upon the principle on which I conceive that 
 the institution exists in the Constitution of the country — 
 that of Conservatism. I have invariably objected to all 
 violent and extreme measures ... I have invariably sup- 
 ported Government in Parliament upon important occasions, 
 and have always exercised my personal influence to prevent 
 
OF THE HOUSE OF LORDS 159 
 
 the mischief of anything like a difference or division be- 
 tween the two Houses.' Thus wrote the Duke to Lord 
 Derby in 1846. The claim he puts forward is undeniable. 
 He indicated to the Lords their appropriate functions under 
 the new conditions of English politics, and taught them to 
 respect the limitations which those conditions imposed 
 upon them. 
 
 In the main the Lords have shown themselves apt pupils. 
 They have followed the Duke's precepts and conformed to 
 the conditions he laid down. 
 
 What has been the place of the House of Lords in the 
 Constitution since the Reform Act of 1832 ? One important 
 section of theiV duties was entirely unaffected by the Act 
 and may be summarily dealt with. As the final court of 
 appeal the importance of the House of Lords has steadily 
 increased with the growing complexity and variety of legal 
 business. To enable the House to cope with it successfully 
 some afforcement of the legal members proved to be neces- 
 sary. During a great part of the eighteenth century the 
 Lords were notoriously unequal to their legal duties. In 
 the nineteenth matters improved owing to the more frequent 
 changes of Government and the consequent increase in the 
 number of ex-Chancellors. But there was still room for 
 further improvement, and in 1856 Queen Victoria was 
 advised to confer a life-peerage upon a distinguished judge, 
 Sir James Parke— a Baron of the Court of Exchequer. 
 This eminently sensible step caused a strange flutter in the 
 breasts of the hereditary peers. The whole fabric of the 
 Constitution seemed to be in danger of demolition. In 
 the event, the Peers, while admitting the right of the Crown 
 to create life-peerages, refused to admit such peers to a seat 
 in the House of Lords. The immediate difficulty was over- 
 come by conferring upon Sir James Parke an ordinary 
 hereditary or * descendible ' peerage under the style of Baron 
 Wensleydale. This famous case raised two questions : one 
 
i6o THE LEGISLATURE : (2) MODERN HISTORY 
 
 of law, the other of political expediency. As to the former, 
 the balance of legal authority is in favour of the contention 
 of the Lords. On the one side it was not denied that life- 
 peerages had been created in the past ; on the other, it was 
 admitted that for four hundred years there had been no 
 instance of 'a commoner being sent under a peerage for 
 life to sit and vote in the House of Lords', while earlier 
 precedents were at least of doubtful authenticity. Mr. Free- 
 man derides the 'silly superstition about "ennobling of 
 blood " ', and blusters about the ' insolent opposition of the 
 comparatively modern class who had step by step prac- 
 tically made themselves the House of Lords.'^ Bishop Stubbs, 
 on the other hand, definitely asserts that 'no baron was 
 ever created for life only without a provision as to the 
 remainder or right of succession after his death '.'^ But 
 even if the Lords were correct in their interpretation of 
 constitutional law, the political expediency of their decision 
 was in the highest degree questionable. They shut the 
 doors of their House upon a class who might well have 
 added wisdom to their counsels and weight to their 
 decisions. Moreover, the Peers went near to losing, owing 
 to their decision in the Wensleydale case, their historic 
 rights of appellate jurisdiction. A clause in the Supreme 
 Court of Judicature Act of 1873 extinguished those rights, 
 but by the Act of 1875 that clause was rescinded, and by 
 the Act of 1876 the appellate jurisdiction of the House 
 of Lords was for the first time placed upon a statutory 
 basis. Provision was then made for the creation, imme- 
 diately of two, ultimately of four life-peers, to be known as 
 Lords of Appeal in Ordinary. Thenceforward no appeal was 
 to be heard unless at least three Lords of Appeal were 
 present, such Lords including not only the Lords of Appeal 
 in Ordinary, but the Chancellor, ex-Chancellors, and any 
 other peers who 'hold or have held high judicial office'. 
 1 Essays, 4th series, 475, 474. " Stubbs, C H, iii. 439. 
 
I 
 
 OF THE HOUSP: OF LORDS i6r 
 
 e right of ordinary lay peers to take part in the judicial 
 work of their House remains, of course, unaffected by the 
 Act of 1876 ; the vote of a lay peer if tendered could not 
 be refused ; but, in fact, it never is tendered, and the 
 judicial business of the House is left to a small body of 
 lawyers, by whom it is by general consent admirably per- 
 formed. It is possible that among persons imperfectly 
 informed there may lurk some prejudice against the legal 
 decisions of an ' hereditary chamber ' ; but we may con- 
 fidently expect that fuller information will dissipate it, and 
 that a singularly interesting historic survival may be pre- 
 served without the sacrifice of practical utilities. It should 
 be added that since the enactment of an amending statute 
 in 1887, the salaried Law Lords retain their seat, though not 
 their salaries, after the resignation of office. An ex-Lord- 
 of- Appeal-in-ordinary is, therefore, strictly a life Lord, if not 
 a life Peer. The twenty-six bishops in the House of Lords 
 are, on the other hand, official Lords of Parliament, retaining 
 their seats in the House only so long as they retain their 
 sees. While, therefore, the number of Law Lords might, 
 by rapid resignations, be largely increased, the number of 
 spiritual Lords could not. For in the Acts under which, 
 since 1847, new bishoprics have been created, it has 
 invariably been provided that apart from the two Arch- 
 bishops and the Bishops of London, Durham, and Win- 
 chester, who have official seats in the House of Lords, only 
 twenty-one other bishops — in order of seniority — should sit. 
 Consequently there are now (19 10) ten English and Welsh 
 diocesan bishops without seats. 
 
 Apart from the somewhat anomalous function of a law 
 court, what is the place of the Second Chamber in our 
 modern Constitution? According to constitutional theory 
 the Upper House has co-ordinate powers with the Lower 
 in regard to legislation, equal powers of deliberation, and 
 somewhat inferior powers in regard to taxation. In relation 
 
 II30 L 
 
1 62 THE LEGISLATURE : (2) MODERN HISTORY 
 
 to the Executive it shares with the Commons the right of 
 criticism, but not, according to some of the highest authori- 
 ties, that of dismissal.^ 
 
 As regards Legislation. Though the rights of the House 
 of Lords are in constitutional theory co-ordinate with those 
 of the Commons, they are in fact inferior. During the last 
 twenty years the Lords have almost entirely ceased to 
 exercise their undoubted right of initiation. But this 
 right has been usurped, not so much by the Commons 
 as by the Cabinet. With every session the chance of 
 passing into law a Bill promoted by a private member, 
 whether it be introduced into the Lower or the Upper 
 House, sensibly diminishes. The initiative in legislation 
 has, in truth, passed to the Executive; criticism, amend- 
 ment, and revision are the sole functions left to the nominal 
 Legislature, and these are performed not less freely and ' 
 effectively by the Upper than by the Lower House. Every 
 year, indeed, the Ministry tends to become more and more 
 autocratic in regard to legislation and less and less dis- 
 posed to accept amendments to Government Bills ^ either 
 from friends or foes in the House of Commons. The House 
 of Lords is less amenable to the crack of the Ministerial 
 whip, and its responsibility in regard to the details of legis- 
 lation tends, therefore, to increase. But its duties in this 
 respect are performed under conditions which every year 
 become less tolerable. Bills forced through the Lower 
 House by the aid of the 'guillotine' are sent up to the 
 House of Lords at a period of the session which renders 
 serious criticism difficult, if not impossible. It is not easy 
 to apportion justly the blame for a state of things which 
 
 1 The power of * dismissal ' is, of course, only indirect. No Ministry 
 can for any length of time retain office unless it enjoys the confidence of 
 the House of Commons. 
 
 ^ This has been set forth in tabular form by Mr. Lowell, Government 
 of England, vol. i, p. 317. 
 
OF THE HOUSE OF LORDS 163 
 
 in itself is indefensible. But this much may be said : the 
 need for an effective revising Chamber becomes not less 
 but increasingly manifest. Whether the existing House of 
 Lords is the fittest instrument for such work is, of course, 
 a disputable point ; but that the work needs to be done, and 
 to be done with more and more care and deliberation, is 
 a proposition which can be denied by no critic who is at 
 once informed and impartial. 
 
 This, then, is the primary and indisputable function of 
 the House — to revise and, if need be, to amend legislative 
 projects. In regard to finance Bills, the Lords have not for 
 more than two centuries claimed the formal right of amend- 
 ment, but until 1861 ^ they virtually exercised it. They 
 still, however, reserve to themselves the right of rejection, 
 though obviously it is a right which can be exercised only in 
 a case which the Lords consider to be extreme. 
 
 Such a case can in practice arise only when a finance 
 Bill embodies principles to which the electorate has not 
 previously assented, and may be regarded, therefore, as 
 a particular instance of the general right of the Lords to 
 interpose a suspensive veto. An absolute veto is not 
 claimed for them by the most fanatical adherent; but it 
 is urged that there is need for some body, independent 
 alike of the House of Commons and of the Ministry of the 
 day, to ascertain that the will of the political sovereign is 
 being justly interpreted by the legal sovereign. When 
 there is room for legitimate doubt on this point, it is the 
 right or rather the duty of the Lords to give to the 
 electorate the opportunity of expressing an opinion on 
 legislation which has received the assent of the Commons. 
 Such a case arose when in 1893 the Lords rejected the 
 second Home Rule Bill. 
 
 At this point two reflections obtrude themselves. It may 
 be urged that a general election forced by the action of the 
 
 1 See infra y p. 208. 
 L 2 
 
i64 THE LEGISLATURE : (2) MODERN HISTORY 
 
 Lords is at best a clumsy and uncertain method for ascer- 
 taining the will of the electorate on a particular issue. It 
 is ; but the Constitution at present knows no other. Rarely 
 is it possible to isolate an issue at a general election. 
 Perhaps that of 1886 came nearest to the nature of 
 a plebiscite. On that occasion the electorate condemned 
 quite unambiguously Mr. Gladstone's scheme of Home 
 Rule. But such clear-cut issues are not common in 
 English politics, and consequently it is, as a rule, none 
 too easy to say whether a particular measure has or has 
 not received a mandate from the electorate. But there is 
 another objection to the referendal authority of the Lords. 
 It is urged that it comes into play only when the Liberal 
 party commands a majority in the Commons. Nor can 
 any impartial person deny that there is force in the objec- 
 tion. But it is easier to acknowledge the difficulty than to 
 suggest a remedy. A Second Chamber must from the 
 nature of the case tend to be more conservative than the 
 First. Were it not, much of its raison d'etre would dis- 
 appear. This being so, the referendal function must be 
 more conspicuous when a Liberal Ministry is in office. 
 
 Nevertheless, any fair-minded student of politics will 
 admit that the House of Lords has performed a difficult 
 function with tact and good sense. At any rate, it has 
 seldom erred seriously in gauging the general will of the elec- 
 torate ; and were the House of Lords abolished to-morrow 
 it would be necessary to devise some constitutional means 
 for restraining the vagaries of a single chamber which would 
 then be virtually omnipotent. Even in countries possessing 
 written Instruments or constitutional codes some such check 
 is regarded as indispensable; it is certainly not less so in 
 a Constitution which rests almost wholly upon conventions 
 and ' understandings '. 
 
 Two other useful functions appertain to the House of 
 Lords : it is a ' ventilating ' chamber and it forms a ' reservoir 
 
OF THE HOUSE OF LORDS 165 
 
 of Cabinet Ministers '. It supplies an admirable arena for 
 the discussion of problems, social, administrative, or what 
 not, which are not yet ripe for legislative solution. Many 
 questions which lie or ought to lie outside the domain of 
 party politics can be discussed more congenially in the 
 relatively independent atmosphere of the Lords. There 
 sit for the most part the veterans of the State : the long- 
 beards of politics, great generals, pro-consuls, thinkers, 
 artists, physicians, lawyers, traders. If in such an assembly 
 we cannot find the wisdom that comes from ripe experience, 
 in what quarter shall we seek it? But it is not only the 
 refuge of the Emeriti, but the ' reservoir of Cabinet Minis- 
 ters '. The administration of a great department of State is 
 enough to tax the energies of all but the strongest, apart 
 from regular attendance upon the prolonged sittings of the 
 House of Commons. But for the House of Lords, Cabinet 
 office would have to be confined, as a rule, to political 
 babes. P'or the man whose strength is unequal to the 
 double strain of party leadership in the Commons and 
 departmental administration, the House of Lords offers an 
 appropriate retreat. 
 
 Unless, therefore, we are to remodel our Constitu- 
 tion ab ovo a Second Chamber would seem to be a 
 political necessity. But it by no means follows that such 
 a Chamber should take the form of the existing House 
 of Lords. 
 
 That House is indeed unique among the Second 
 Chambers of the world. No nation of the first rank, or 
 even the second, and not more than one or two of the 
 third, have deemed it prudent to discard the bicameral 
 structure of Parliament. The experiment of a unicameral 
 Legislature has indeed been frequently tried; notably by 
 France, England, and, for a very brief period by the United 
 States ; but no great nation has ever adhered to it. And 
 yet a priori there is much to be said for the famous dilemma 
 
i66 THE LEGISLATURE : (2) MODERN HISTORY 
 
 / propounded by the Abbe Sieyes : ' If a Second Chamber 
 dissents from the first it is mischievous ; if it agrees with it, 
 it is superfluous.' But the nations of the modern world 
 have with rare unanimity refused to be impaled upon 
 the horns of this dilemma. Nevertheless, while adhering to 
 the bicameral form, not one of them has provided itself 
 with Second Chamber like our own. 
 
 The English House of Lords is at once the largest, the 
 most predominantly hereditary, and perhaps, among coun- 
 tries of the first rank, the least effective Second Chamber 
 in the world. The German Imperial Council or Bundesrath 
 contains only 58 members; the American Senate 90; the 
 Austrian Herrenhaus 266 ; the French Senate and the 
 Prussian Herrenhaus 300 ; the Italian Senate and the 
 Hungarian Table of Magnates about 400. The House 
 of Lords, therefore, is at least one-third larger than the 
 largest of foreign Second Chambers. The German Bundes- 
 rath is nominated by the Sovereign Princes and Free Cities 
 of the Empire. The Second Chambers of France, the 
 United States, the Australian Commonwealth, the Swiss 
 Republic and others are elective — though not always by 
 direct election. Those of Canada, Italy, and Russia consist 
 of nominees. Some, like those of the South African Union, 
 Denmark and Russia, combine the nominee and elective 
 principles ; some, like those of Austria, Hungary, and Prussia, 
 the hereditary and the nominee ; some, like that of Spain, 
 the hereditary and elective principle. None is so predom- 
 inantly hereditary as our own. In political effectiveness the 
 American and French Senates, to say nothing of the German 
 Bundesrath, are clearly superior to the House of Lords. 
 
 Whether the House of Lords is likely to retain its present 
 form and structure and powers is a question beyond the 
 scope of this work.^ This much, however, may be said. 
 
 1 It has been discussed in detail by the present writer in Second 
 Chambers (Clarendon Press, 19 10). 
 
OF THE HOUSE OF LORDS 167 
 
 The teachings alike of philosophy and of experience are 
 opposed to the idea of a single Legislative Chamber. Even 
 in written Constitutions where powers and functions are 
 rigidly defined, it has been deemed universally desirable to 
 divide power between two Houses. The argument in 
 favour of the bicameral structure applies with even greater 
 force to a Constitution which is alike unwritten and ex- 
 ceptionally elastic. 
 
CHAPTER VIII 
 
 THE LEGISLATURE : (3) THE HOUSE OF 
 COMMONS 
 
 * The right of attending Courts and assemblies was not a coveted right; 
 we must think of it rather as a burdensome duty, a duty which men will 
 evade if they possibly can.' — Maitland. 
 
 * The union of all classes of freemen, except the clergy and the actual 
 members of the peerage, of all classes, from the peer's eldest son to the 
 smallest freeholder or burgess, made the House of Commons a real 
 representation of the whole nation, and not of any single order in the 
 nation,' — Freeman. 
 
 'Igitur communitas regni consulatur 
 Et quid universitas sentiat sciatur.' 
 
 — Political Poem, Thirteenth Century. 
 
 * Quod omnes tangit, ab omnibus comprobetur.' — Edward I. 
 
 * There is no difificulty in showing that the ideally best form of 
 government is that in which the sovereignty, or supreme controlling 
 power, in the last resort is vested in the entire aggregate of the com- 
 munity ; every citizen not only having a voice in the exercise of that 
 ultimate sovereignty, but being at least occasionally called on to take an 
 actual part in the government by the personal discharge of some public 
 function, local or general.' — John Stuart Mill. 
 
 ' The English Parliament strikes its roots so deep into the past that 
 scarcely a single feature of its proceedings can be made intelligible with- 
 out reference to history.'— Sir Courtenay Ilbert. 
 
 We have dealt in the two preceding chapters with one 
 only of the two main branches of the bicameral Legislature. 
 It is time to turn to the other, the * Lower ', Representative ', 
 or, more strictly speaking, elected Chamber. One point 
 confronts us on the threshold of the inquiry : the represent- 
 ative principle is comparatively a modern expedient, devised 
 to meet comparatively modern conditions. The demo- 
 cracies of the ancient world knew nothing of it. Its adop- 
 
(3) THE HOUSE OF COMMONS 169 
 
 tion was due primarily to the fact that the rulers of the 
 expanding kingdoms of the later Middle Ages found 
 themselves unable to ' live of their own ', to meet growing 
 national expenditure out of their accustomed and hereditary 
 revenues, and were consequently compelled to have recourse 
 to ' extraordinary ' methods of taxation. To the imposition 
 of these taxes they were anxious, for obvious reasons, to 
 obtain the assent of as many of the tax-payers as possible. 
 There were three possible ways of doing this : to assemble 
 the whole body of citizens in some central place ; or to send 
 accredited agents into the several localities and there obtain 
 the required assent of individuals ; or, thirdly, to invite the 
 citizens to elect representatives to speak with plenary 
 authority on their behalf. The first was the common 
 device of the ancient world : the democracies of Greece 
 were not representative but direct. The citizens performed 
 their several political functions not by deputy but in person. 
 The work of the legislator, the judge, the soldier, the priest, 
 was the common duty incumbent upon all who enjoyed the 
 rights of citizenship. To make laws and administer them, 
 to decide disputes, to fight and to intercede with the gods 
 were not the specialized functions of certain professions, 
 but the tasks undertaken in turn by all citizens. But this 
 * direct ' Democracy was rendered possible by two features 
 of the ancient world, neither of which is reproduced in the 
 modern : the States were strictly limited in size, and every 
 citizen had unlimited leisure. A ' State ' was coincident 
 with a * city ' with only so much of circumjacent territory as 
 to render it economically self-sufficing. Athens was about 
 the size of Kent, and every Athenian citizen was a man of 
 leisure : free to devote himself to * political ' life. But this 
 meant that material necessaries and comforts must be 
 supplied by the labour of slaves. Slave labour was 
 the economic basis on which the Athenian Democracy 
 rested, and at the zenith of Athenian greatness the 
 
I70 THE LEGISLATURE 
 
 unfree population of Athens outnumbered the free by 
 four to one. 
 
 Far different is the ideal of modern Democracy. The 
 mass of the citizens are necessarily engaged in daily toil in 
 order to procure their daily bread. Leisure is scant, but 
 even were it ample, the huge size of modern States would 
 forbid the adoption of the expedients dear to the philoso- 
 phers of the ancient world. If the people at large are 
 to participate in the making of laws, still more in their 
 administration, it can be only by the adoption of the 
 principle of representation. It is impossible to imagine 
 the forty million citizens of England or France, or even seven 
 or eight millions of electors directly participating in the actual 
 work of legislation. Whether they might not by means of 
 referendal machinery be entrusted with the right of assent, 
 or veto, is a question which may engage our attention later ; 
 but direct and universal participation in governmentaL 
 functions is a physical impossibility. Hence the idea of 
 political representation. 
 
 The House of Commons consists at the present time 
 of 670 members, elected by some yf millions of duly 
 qualified electors. Were the principle of equal electoral 
 areas adopted we should have, therefore, one representative 
 for every 11,000-12,000 voters. As a fact, out of 670 
 members, 377 represent county constituencies, 284 boroughs, 
 and 9 Universities ; England (in the narrower sense) claims 
 465, Wales 30, Scotland 72, and Ireland 103. For member- 
 ship of the House of Commons there is no longer any 
 property qualification; any male citizen may be elected 
 to serve, unless he is subject to one of several disqualifica- 
 tions. No infant or lunatic can sit in the House of 
 Commons, nor peer (of Scotland or the United Kingdom), 
 nor clergyman of the Church of England, or of the 
 Established Church of Scotland, or of the Roman Catholic 
 Church, nor judge, nor sheriff, nor holders of certain 
 
(3) THE HOUSE OF COMMONS 171 
 
 oflfices under the Crown, nor Government contractor, nor 
 bankrupt, nor person undergoing sentence for treason or 
 felony, nor person convicted of corrupt practices at a 
 parliamentary election. The point of some of these dis- 
 qualifications is too obvious to require comment ; the origin 
 and significance of others will come before us in subsequent 
 pages. 
 
 From the members of the House we may turn to their con- 
 stituents. Before the Reform Act of 1832 the qualification 
 of electors, at least of borough electors, was extraordinarily 
 various and complex. The Acts of 1832, 1867, and 1884, 
 have defined and simplified it. Under the existing law the 
 parliamentary franchise, or right to participate in the election 
 of members of the House of Commons, is enjoyed virtually by 
 every adult male occupying a house or lodgings of the annual 
 value of itiP, and, in the counties, in addition to resident 
 householders, by all owners of real property worth 40!: a year. 
 
 The distribution of constituencies has also been greatly 
 modified since 1832. Down to that time, as will be shown 
 presently, out of 658 members by far the largest proportion 
 represented boroughs, some of which had sunk into mere 
 hamlets with hardly any electors. Since 1885 the counties 
 and boroughs alike (with the exception of twenty-two 
 boroughs) have been divided up into 617 districts, each 
 returning one member — an approximation to the principle 
 of equal electoral districts. 
 
 Such is the present constitution of the Lower House. 
 Its functions are four: (i) it initiates all Bills for the 
 imposition of taxation, and is primarily responsible for" 
 the spending of the money thus raised ; (2) it shares with 
 the Upper House and the Crown the work of legislation ; 
 (3) it has, like the Lords, the right to discuss all matters 
 of public interest ; and (4) it enjoys a special measure of 
 control over the Executive : it has a negative voice in regard 
 to the appointment of ministers, and copious if not com- 
 
172 THE LEGISLATURE 
 
 plete powers of dismissal. Apart, in fact, from legislative, 
 fiscal, and deliberative functions, the House of Commons 
 is what Sir John Seeley has well called a ' Government- 
 making organ '. The acquisition and development of these 
 powers must now be traced historically. 
 
 We have seen that the House of Lords traces its origin to 
 the Central Council of the Norman Kings, and through it 
 to the Saxon Witenagemot. For the origin of the House of 
 Commons we must look elsewhere. It is true that the 
 county representatives, or Knights of the Shire, were 
 originally in personnel hardly distinguishable from those 
 Minores Barones who, as we saw, were summoned to the 
 National Council by a general writ addressed to the sheriff 
 of each county. But when these Knights appear as an 
 important element in the national assemblies of the later 
 thirteenth century it is in a capacity which distinguishes 
 them at once from the Barons who were to form the nucleus 
 of the House of Lords. They come, not in virtue of indi- 
 vidual pre-eminence, but as representatives of the com- 
 munity of the shire. And they come, frequently after 
 1265, invariably after 1295, in close conjunction with other 
 representatives, those who come to give financial aid to the 
 Crown on behalf of the citizens of the towns. They come 
 moreover, as we shall see, for a distinct and specific pur- 
 pose, expressed in the writ of summons. 
 
 But first we must understand what led to the adoption, in 
 the England of the thirteenth century, of a political device 
 for which no precedent was to be found in the institutions 
 of the ancient world. The idea of representation had from 
 the earliest times been familiar to our Teutonic ancestors. 
 The primary political unit of the Anglo-Saxons was the 
 Townships utilized for ecclesiastical purposes by the great 
 organizers of the Church polity in England as the Parish. 
 The affairs of the township or village community were 
 administered by the men of the township in their Moot or 
 
(s) THE HOUSE OF COMMONS 173 
 
 parish meeting. In the courts of the hundred and shire 
 ;he township was represented as a unit by its reeve {prae- 
 bositus\ and four men of the better sort {quattior meliores 
 homines). These same men also represented the township 
 when the King's justices in eyre (or circuit judges) visited 
 the localities. The object of these judicial visitations 
 was threefold : they were intended (i) to keep the central 
 id ministration (the King's Court) in touch with local 
 id ministration, (2) to administer justice and preserve 
 order, and (3) to collect the King's dues and, later, to 
 assess taxation. The fiscal and judicial duties of these 
 itinerant justices, or travelling commissioners, were indeed 
 inextricably intertwined. Justitia est magnum e??iolumentum. 
 This aphorism expressed the literal truth. It is not too much 
 to say that from this archaic confusion the idea of political 
 representation gradually emerged. What were the four 
 good men and the reeve of the township doing in the 
 court of the hundred or shire ? They were there primarily 
 to answer for the public order of the township, and, 
 secondarily, to answer for its contribution to the public 
 exchequer. In the Shire Court the representatives of this 
 political unit came face to face with the King's Justice — 
 the representative of the central administration. Before 
 the end of the twelfth century a new principle crept in : 
 to the idea of representation was added the idea of 
 election. According to the Form of Proceeding on the 
 /udicial Visitation of w 94, three knights and one clerk are 
 to be elected in each shire to act as custodes placitorum 
 coronae or coroners : and the election, be it observed, is to 
 take place in the county court. The introductory clause of 
 tlie same Forma Frocedendi is likewise significant as pro- 
 viding for the election of the grand jury. With the idea 
 of representation long familiar to every villager, with that of 
 election becoming more common every day, it called for no 
 .great effort of political imagination to suggest the idea of 
 
174 THE LEGISLATURE 
 
 bringing into the national council representative and elected 
 persons to assent on behalf of their localities to the taxation 
 demanded by the Crown. 
 
 This step, almost an obvious one but destined to be of 
 first-rate political importance to England, and indeed to the 
 whole modern world, was first taken in 12 13. In that year 
 King John, under the stress of financial and political neces- 
 sity, summoned, by writ addressed to the sheriff of every 
 county, four discreet knights to attend a national council 
 * ad loquendum nobiscum de negotiis regni nostri '. A few 
 months earlier he had similarly directed the sheriffs to send 
 to St. Albans four men and the reeve from every township 
 in the royal demesne to assess the amount of compensation 
 to be paid to the bishops who had suffered during the 
 interdict. Here, then, we have the origin of county and 
 borough representation in the central assembly of the 
 nation. One or two points are noteworthy. The machinery 
 employed is that which for long time had been familiar : 
 that of the Shire Court and the Sheriff. Again, the four 
 knights of the county and the four men and the reeve of 
 the township have an equally familiar sound. From time 
 immemorial these four men and the reeve have represented 
 their townships in the Court of the Shire. Nothing more 
 is now called for but to send them on, at the King's 
 bidding, to St. Albans. Thus by the easiest of stages was 
 the fateful transition from local to national representation 
 accomphshed. 
 
 Between 12 13 and 1295 we have a period of somewhat 
 confused experiment. It is as yet obviously uncertain 
 what direction things will take. The Great Charter of 
 1 21 5, eminently baronial, not to say oligarchical in tone, 
 does nothing to advance national representation. During 
 the minority of Henry III a struggle ensues between the 
 English Baronage on the one hand, and the Pope and his 
 agents on the other, for supremacy in England. No advan- 
 
(3) THE HOUSE OF COMMONS 175 
 
 ...c,o is likely to accrue from such a contest to the cause 
 of constitutional development. But, nevertheless, the long 
 minority is not void of significance. The Council acquires 
 I new importance. With the young King's personal assump- 
 tion of the reins of government things begin to hasten towards 
 a crisis. An extravagant weakling, a mere tool in the hands 
 of the Papacy, Henry IH soon found himself confronted 
 l)y an opposition which had some real claim to be regarded 
 as national. A leader of consummate ability presently 
 emerges in the person of Simon de Montfort. As early as 
 1246 Matthew Paris speaks of a great national assembly in 
 London as a Parliamenturn generalissimum. The bishops 
 arc there, abbots and priors, earls and barons. This is 
 clearly a national council of the old type, though under 
 a new title. To the Council of 1254, however, the King 
 summons, again by writ addressed to the sheriffs, two 
 knights to be elected in each county court, to inform the 
 King what aid he may expect from the counties for the relief 
 of his pressing financial embarrassments {quale auxilium 
 nobis in tanta necessitate impendere voluerint). The year 
 1 26 1 affords still more significant proof of the increasing 
 importance of these county representatives. The Barons, 
 now in open opposition, summoned three knights from 
 each shire to meet them at St. Albans *to treat of the 
 common business of the realm '. The King, on the con- 
 trary, bade the sheriffs dispatch the knights to him at 
 Windsor. To the Parliament of 1264 four knights from 
 each county were summoned. To the famous Parliament 
 of 1265 Simon de Montfort, in the King's name, summoned 
 five earls and eighteen barons, a large body of clergy, two 
 knights from each shire, and two citizens from each of 
 twenty-one specified towns. On the strength of this 
 assembly Simon has been styled the 'founder of the 
 House of Commons'. That title cannot be justly attri- 
 buted to any single man ; not even to Edward I, certainly 
 
176 THE LEGISLATURE 
 
 not to Simon de Montfort. It is true that for the first time 
 representatives of the towns were brought into political con- 
 junction with barons, knights, and clergy. The conjunction 
 is significant. But, more closely examined, the assembly 
 of 1265 is seen to ^wear very much the appearance of 
 a party convention ' (Stubbs). Of barons there were only 
 a handful — the partisans of Simon ; of the clergy — his 
 strongest supporters — a large and wholly disproportionate 
 number ; of the towns, only twenty-one, as compared with 
 one hundred and ten summoned in 1295 by Edward I. The 
 towns, moreover, were selected with obvious care, and the 
 writ was directed not to the sheriff of the county, but to 
 the mayors of the chosen towns. There is good ground, 
 therefore, for the cautious insinuation of Bishop Stubbs. 
 None the less, Simon's Parliament, whatever the motives of 
 its convener, does mark an important stage in the evolution 
 of the House of Commons. 
 
 From 1265 to 1295 we are once more in the region of 
 uncertainty and experiment. There were several 'Parlia- 
 ments' after the battle of Evesham, but whether knights 
 and burgesses were included in them we cannot tell. In 
 1273 four knights from each shire and four citizens from 
 each town joined the magnates in taking the oath of fealty 
 to the absent King. The Statute of Westminster the First 
 (1275) is, on the face of it, made with the assent of the 
 
 * community of the realm ' as well as the magnates lay and 
 ecclesiastical. In 1282 a curious experiment is tried. The 
 King and the magnates being in Wales, the sheriffs are 
 bidden to summon to York and Northampton respectively 
 representatives of the towns and counties, together with 
 
 * all freeholders capable of bearing arms and holding more 
 than a knight's fee'. The Archbishops of the two Pro- 
 vinces are similarly enjoined to summon through the 
 bishops the heads of the religious houses and the proctors 
 of the cathedral clergy. For an instant it seemed as though 
 
(3) THE HOUSE OF COMMONS 177 
 
 the ecclesiastical provincialism of the Church might overbear 
 the tendency to nationalism. The experiment was not 
 indeed repeated, but the jarring tendencies of provincialism 
 and nationalism were not yet reconciled, nor the victory of 
 one or other assured. In September 1283 two knights were 
 summoned to a national council together with two ' wise and 
 fit ' citizens from London and twenty other specified towns. 
 Here it will be observed that Edward I followed exactly the 
 precedent of 1265, both as to the number of towns and the 
 mode of summons, the writs being addressed to the mayors 
 and bailiffs. In the Parliaments of 1290 and 1294 the 
 towns were left out; with that of 1295, however, we reach 
 the close of the experimental period and the real beginnings 
 of regular parliamentary history. 
 
 The model Parliament of 1295 was a full and perfect 
 representation of the three Estates — Baronage, Clergy, and 
 Commons. With Baronage and Clergy we are no longer 
 concerned, but we have still to see how the knights and 
 burgesses, and they only, came to form a ' House of Com- 
 mons ', while the magnates, lay and ecclesiastical, were 
 definitely organized in a ' House of Lords '. Two things 
 facilitated the evolution of a bicameral Legislature. The 
 lower clergy declined to take the place designed for them 
 by Edward I as a constituent element in the national 
 Council, and preferred to vote their grants to the Crown 
 in their two provincial Convocations. The * knights ', after 
 some not unnatural hesitation, definitely threw in their lot 
 with the burgesses. Socially drawn to their kinsmen in what 
 came to be known as the ' Upper ' House, they were from 
 the first politically associated with the representative towns- 
 men who, like themselves, were elected in the Court of the 
 Shire. By the middle of the fourteenth century things had 
 settled down, and the bicameral formation with which we 
 have long been familiar had been definitely evolved. 
 
 But the writs show clearly that the two Houses were not, 
 
 1130 M 
 
178 THE LEGISLATURE 
 
 and were not intended to be, on an equality. The Magnates ' 
 were summoned tractaturi vestrumque consilium impensuri: 
 to treat with the King in the affairs of the realm and give him 
 their advice. Knights and Burgesses were directed to come 
 ad faciendum et consentiendum : to do and consent to that 
 which is decided upon by the King and the Magnates. In 
 the course of the fourteenth century, however, three funda- 
 mental rights were gradually but unmistakably established, 
 rights in which the Commons had, to say the least, full and 
 equal part : — (i) the control of taxation, both direct and 
 indirect ; (ii) a concurrent right of legislation ; and (iii) the 
 right to criticize and in some sort to control the doings of 
 the Executive. 
 
 To assist the King in his financial necessities was the 
 primary object with which representative knights and bur- 
 gesses had been summoned to the National Council in the 
 thirteenth century. Down to that time the ordinary revenues 
 of the Crown— the rents of Crown lands, the profits of 
 justice, escheats and forfeitures, feudal rights and the like — 
 had all but sufficed for the ordinary expenses of government. 
 They were supplemented from time to time by a land-tax, 
 dane-geld, carucage, scutage, and from the reign of Henry II 
 by a tax on personal property {mobilia) ; but, generally 
 speaking, the King was able * to live of his own '. But the 
 expenses of government, even in the Middle Ages, showed 
 a constant tendency to increase, and from the thirteenth 
 century onwards taxation became a regular part of the 
 machinery of government. 
 
 Originally each Estate was fiscally independent. The 
 clergy maintained the right of separate taxation with ever- 
 watchful jealousy until the seventeenth century. As regards 
 the rate, it became usual for the clergy to follow the example 
 
 ^ The Magnates occupied a double position : (i) Counsellors of the 
 King for deliberative purposes ; (ii) an Estate of the realm for legis- 
 lation and taxation. 
 
(3) THE HOUSE OF COMMONS 179 
 
 of the other Estates, but there was to be no confusion as to 
 its origin. Thus in 1449 the Commons, in making a grant 
 to the Crown, so far presumed as to take into account the 
 complaisant gift of the clergy. They were at once sharply 
 reminded by the King that the right of taxing the clergy 
 belonged not to them but to the two provincial Convo- 
 cations; and so matters remained until this important 
 privilege was surrendered by a verbal agreement between 
 Lord Chancellor Clarendon and Archbishop Sheldon in 
 1663. 
 
 It was otherwise with the two other Estates. Before Par- 
 liament was a century old it had become usual for Lords 
 and Commons to combine in their grants of ' tenths and fif- 
 teenths ', ' tonnage and poundage,' and in other imposts, and 
 by the close of the fourteenth century the Commons had 
 begun to establish a pre-eminence never since questioned. 
 A new formula comes into use in 1395, which has since 
 been used without variation ; grants are made ' dy the Com- 
 mons with the advice and assent of the Lords Spiritual and 
 TemporaV. The Lords henceforward take an increasingly 
 subordinate position in regard to taxation. In 1407 an 
 incident occurred which has been generally regarded as 
 having established a still more important right of the House 
 of Commons, — that of initiating all Money Bills. In the 
 Parliament of Gloucester the Commons expressed them- 
 selves as greatly disturbed by the action of the House 
 of Lords in fixing the amount of a grant to the King, 
 * saying and affirming that this was in great prejudice and 
 derogation to their liberties.' King Henry IV yielded the 
 point, apparently with the assent of the Lords, and agreed 
 ' that neither House should make any report to the King on 
 a grant made by the Commons and assented by the Lords ; 
 or on any negotiations touching such grants until the two 
 Houses had agreed ; and that then the report should be 
 made by the mouth of the Speaker of the Commons '. This 
 
 M 2 
 
i8o THE LEGISLATURE 
 
 has been generally taken to establish the claim of the Com- 
 mons to initiate all money grants to the Crown. Whether 
 this vast superstructure of privilege can be maintained upon 
 foundations so comparatively slender may perhaps be ques- 
 tioned ; but there is no doubt at all that from this moment 
 the theory of taxation by Estates rapidly faded, and that the 
 financial pre-eminence of the Commons became more and 
 more marked. 
 
 Meanwhile Parliament as a whole was making good its 
 privileges as against the Crown. By the Confirmatio Car- 
 tarum (1297) the principle was asserted that no 'aids, tasks, 
 and prises ' should be taken by the Crown ' but by the 
 assent of the realm and for the common profit thereof, 
 saving the ancient tasks and prises due or accustomed '. 
 But though the general principle was thus asserted, a good I 
 many loopholes were left to the Crown, and these it was the 
 business of the fourteenth century to stop up. The King 
 having continued to collect the accustomed feudal dues and 
 tallage from the towns on the ancient demesne of the Crown, 
 a specific statute was passed in 1340 that 'henceforth no 
 charge or aid should be imposed on the nation except by 
 common assent of the prelates, earls, barons, and other 
 magnates and the Commons of the realm assembled in 
 Parliament'. This closed the door effectually to direct! 
 taxation without parliamentary consent. Indirect taxation 
 presented a more difficult problem. The Confirmatio Car- 
 tarum forbade any male tote or increase in the accustomed 
 duties on wools, woolfels, and leather, granted to the King in 
 1275. But 'customs' were long regarded as fees paid by 
 merchants for licence to trade, and were collected by the 
 King by direct negotiation with the merchants. It needed 
 decided action on the part of the Commons to arrest this 
 dangerous practice. By an Act of 1362 it was provided that 
 henceforward ' no subsidy or charge should be set upon 
 wool by the merchants or any other body without consent 
 
(3) THE HOUSE OF COMMONS i8i 
 
 of Parliament ' ; and there was further legislation on the 
 same point in 1371 and 1387. But that it was not definitely 
 cleared up, the disputes about ' impositions ' and ' tonnage 
 and poundage ' were to prove under the first two Stuarts. 
 Generally speaking, however, it is safe to say that by the 
 end of the fourteenth century it was definitely established 
 that there should be no 'taxation' without consent of 
 Parliament. 
 
 Legislation was a matter of less immediate importance, 
 but during the same period the right of both Houses to 
 concur in the making of laws was no less clearly established. 
 In this matter the Commons were, at first, in a position 
 of marked inferiority, a fact clearly revealed by the legisla- 
 tive formula for the enactment of Statutes. Such Statutes 
 were said to be made by the King, with the assent of the 
 Magnates at the request of the Commons. The Commons, 
 in fact, are petitioners^ and on their petition Statutes are 
 founded by the enacting parties. But the assent of the 
 Commons is, nevertheless, essential. By the Act revoking 
 in 1322 the new ordinances of 13 10, it was acknowledged 
 that all matters ' 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 '. This historic declaration is generally taken to have 
 established the legislative equality of the Commons. But 
 if such was indeed the theory, the practice was widely 
 different. Not until the reign of Henry VI did the 
 Commons obtain any really effective control over legislation, 
 and it was obtained by an alteration of procedure which had 
 its counterpart in an alteration of formula. Legislation is 
 still the act of the King, but since the fifteenth century such 
 Acts have invariably been made * by the King's most 
 excellent majesty by and with the advice of the Lords, 
 spiritual and temporal, and Commons in this present 
 Parliament assembled and by the authority of the same '• 
 
i82 THE LEGISLATURE 
 
 The essential change was effected when Parliament secured 
 the right of legislating by Bill instead of by petition. All 
 through the fourteenth century there is evidence that the 
 Commons were endeavouring to secure that the Statute 
 in its final form should correspond to the petition on which 
 it was based. Various devices were adopted to secure the 
 honest enrolment of petitions, but none were really effective. 
 Henry V granted ' that from henceforth nothing be enacted 
 to the petitions of his Comune that be contrary to their 
 asking, whereby they should be bound without their own 
 assent. Saving always to our liege lord his royal preroga- 
 tive to grant and deny what him lust of their petitions and 
 askings aforesaid'. But there were still slips between the 
 cup of petition and the lip of statutory enactment. At 
 last, however, towards the end of the reign of Henry VI, 
 procedure was altered and the point for which the Commons 
 had long striven was attained. Henceforward, Bills were 
 introduced in the form of draft Statutes, in either House. 
 The tables were now turned; the right of initiation was 
 secured to the Commons, concurrently with the Lords ; 
 the Crown was restricted to a right of veto or assent. 
 
 But there was yet another obstacle to the complete 
 recognition of the Commons' rights in legislation. Even 
 after Parliament in its modern shape had come into being 
 the King-in-Council continued to issue Ordinances^ which 
 differed from Statutes by the fact that they were intended to 
 be of a temporary instead of a permanent character, and 
 that they were issued in letters patent and were not en- 
 grossed on the Statute roll. Early in the fourteenth 
 century the Commons began to manifest their jealousy of 
 the legislative functions of the Council. Only the rights of 
 the Commons were substantially infringed, for to the Lords 
 it mattered little whether they legislated in Parliament or 
 in Council. Thus in 1389 the Commons prayed that the 
 Chancellor and Council might not make ordinances con- 
 
(3) THE HOUSE OF COMMONS 183 
 
 trary to the Common Law and Statute. From Richard H 
 they got little comfort : but under the Lancastrians there 
 was no conflict between Parliament and Council, and 
 nothing more is heard of the matter. The Tudors, notably 
 Henry VHI, exercised the right of issuing Proclamations 
 (Ordinances under another name), though within limits im- 
 posed by Parliament; under the Stuarts the question was 
 one of those most hotly debated between Crown and Parlia- 
 ment. The fall of the Monarchy decided it, and after the 
 Restoration no attempt was made to deny the omnipotence 
 and exclusiveness of the legislative authority of Parliament. 
 
 But taxation and legislation did not exhaust the activities 
 of Parliament even in the fourteenth century. Thus early 
 did it put forward a claim to criticize the acts of the 
 Administration, and to bring to account the Councillors 
 and Ministers of the Crown. The Ordinances of 131 1 pro- 
 vided for the appointment of Ministers in Parliament ; 
 but they were revoked in 1322. Again, in 1341, 
 Edward HI, to secure a grant from Parliament, promised 
 that Ministers and judges should be appointed in Parlia- 
 ment ; but the Statute was hardly passed before it was 
 annulled. In 1371 the resignation of William of Wykeham 
 looks like a premature recognition of the principle that 
 Ministers must possess the confidence of Parliament ; but 
 the time was not yet. In 1376, however, a new form of 
 judicial procedure, apt to bring to justice powerful offenders, 
 was introduced. In that year the Commons impeached at 
 the bar of the Lords' certain of the King's Ministers, and, 
 in 1386, the same machinery was employed against Michael 
 de la Pole, Earl of Suffolk. 
 
 But never were the relations of Legislature and Executive 
 so close as under the early Lancastrians. In 1404, 1406, 
 and 141 o, Henry IV actually nominated the members of his 
 Council in Parliament, and in 1422 it was Parliament 
 which nominated the Privy Council to be a Council of 
 
i84 THE LEGISLATURE 
 
 Regency during the minority of Henry VI. But the 
 experiment, though daring, proved to be premature. Par- 
 liament was not yet ready to take upon itself the high 
 responsibility of the control of the Executive. Nor was the 
 nation at large ready for such a weakening of the power of 
 the Executive as is involved in the modern notion of 
 Parliamentary Government. The premature experiment 
 issued in the social anarchy which eventually took shape in 
 the Wars of the Roses. But by this time Parliament had 
 assumed its modern shape, and acquired, in outline at any 
 rate, all the powers it now enjoys. At this point, therefore, 
 we may temporarily pause. Organized solidly in two 
 Houses, it had definitely acquired the right to assent to all 
 taxation ; to concur in the making of laws, and to control in 
 some measure, if not to appoint, the agents and ministers by 
 whom the actual work of administration was carried on. 
 With the close of the fifteenth century and the accession of 
 the Tudor Sovereigns we leave behind us the atmosphere 
 of antiquarian origins, and find ourselves confronted by 
 problems which are those of the modern world. 
 
CHAPTER IX 
 
 THE LEGISLATURE : (4) THE HOUSE OF 
 COMMONS UNDER THE TUDORS AND STUARTS 
 
 'Long before Hobbes had formulated his defence of absolutism, the 
 philosophical notion of indivisible sovereignty emerged, if at first but 
 dimly, into the field of practical politics, and was interpreted by lawyers 
 and politicians in opposing senses. A question was in this way raised 
 which went to the roots of government and was not settled till the 
 Revolution.' — G. W. Prothero. 
 
 * And contrarywise, with all humble and due respect to your majesty 
 our sovereign lord and head, against those misinformations we most 
 truly avouch, — first, that our privileges and liberties are our right and 
 due inheritance, no less than our lands and goods; secondly, that they 
 cannot be withheld from us, denied or impaired, but with apparent 
 wrong to the whole' state of the realm : thirdly, and that our making of 
 request, in the entrance of Parliament, to enjoy our privilege, is an act 
 only of manners, . . . — The Commons' Apology of 1604. 
 
 In the last chapter we investigated the origins of the 
 House of Commons, and sketched its development in struc- 
 ture and powers to the close of the Middle Ages. The 
 dawn of the modern era — marked in England by the 
 accession of the Tudors — reveals the nation socially dis- 
 traught, economically anaemic, and with its Parliamentary 
 constitution seriously overstrained. Nation and Parliament 
 had, in fact, alike outgrown their strength ; they were both 
 constitutionally sound, but they needed time for rest and 
 recuperation. They obtained it under the firm disciplinary 
 administration of the Tudor Monarchy, and emerged from 
 it braced and invigorated for the struggle which lay before 
 them in the succeeding century. 
 
 As regards Parliament and more particularly the House 
 of Commons, the significance of the Tudor period has been 
 
i86 THE LEGISLATURE : HOUSE OF COMMONS 
 
 gravely underrated. It is not a period of rapid develop- 
 ment, like the thirteenth century or the fourteenth ; still less 
 of premature experiment, like the fifteenth ; but it is not too 
 much to say that, but for the peculiar characteristics of the 
 Tudor dictatorship ; but for the strong hand of a despotism 
 carefully veiled under the forms of law, the English Parlia- 
 ment might have gone the way of the Spanish Cortes 
 and the States-General of France. Had the Tudors been 
 weak and nerveless Constitutionalists like the Lancastrians, 
 English parliamentary institutions might possibly have 
 perished in. the welter of social anarchy and dynastic strife. 
 Had they been despots regardless of legal forms and con- 
 temptuous of constitutional formulae. Parliament would never 
 have been in a position to wage a successful contest with 
 the Crown in the seventeenth century. It was the com- 
 bination of strong administration and scrupulous adherence 
 to the outward ceremonial of constitutional observance 
 which preserved from death, either by inanition or violence, 
 institutions which have proved themselves of incomparable 
 value to the Anglo-Saxon race. 
 
 Alike in the failure of the premature political experiment 
 tried by the Lancastriatis ; in the success of the New Mon- 
 archy of the Tudors; and, not least, in the conspicuous 
 triumph of Parliament in its contest with the Stuarts, there 
 are lessons of the highest significance for the philosophical 
 student of institutions. It is the primary purpose of this 
 chapter to enforce them. 
 
 When Henry VII ascended the throne in 1485, he found 
 himself confronted by a Parliament organized on a bi- 
 cameral basis, and possessed of indisputable rights over 
 taxation and legislation, and certain less-defined rights in 
 regard to the criticism and control of the Executive. Of the 
 constitution and form of the Upper of the two Houses we 
 have already spoken; what was the constitution of the Lower? 
 
 It consisted of two sections (i) 74 Knights of the Shire, 
 
UNDER THE TUDORS AND STUARTS 187 
 
 who represented 37 English counties, Monmouthshire and 
 the Counties Palatine of Chester and Durham being unre- 
 presented, and (2) an indeterminate number of discreet men 
 who represented cities and boroughs. In the writs addressed 
 to the sheriff of each county in 1295, and afterwards, 
 he was bidden to procure the election of * two knights from 
 his county, and two citizens from each city and two 
 burgesses from each borough within the aforesaid county '. 
 To some extent this would seem to have left a certain 
 discretion to the sheriff ; and the varying number of 
 boroughs actually represented in different parliaments con- 
 firms the idea that discretion was freely exercised. In the 
 Parliament of 1295, 166 towns appear to have been re- 
 presented; but this number was not maintained in later 
 parliaments, and under Edward IV it had fallen to iii. 
 It must be remembered that parliamentary representation 
 was at first regarded rather as a burden than as a privilege ; 
 and a burden which entailed considerable financial re- 
 sponsibilities was, presumably with the connivance of 
 the sheriff, not infrequently evaded. The wages paid to 
 burgesses were 2s. and to the knights 45. a day, during their 
 sojourn in Parliament, including the journeys to and fro. 
 
 By whom were the borough Members elected ? To this 
 question no positive or uniform answer can be given. The 
 qualification of electors varied from borough to borough, 
 and was never reduced to uniform practice until 1832. In 
 some towns the franchise was exercised by all ratepayers 
 ('scot and lot' boroughs), in others by the holders of 
 particular tenements f burgage franchise '), in others by the 
 Municipal Corporation, or some specially privileged ohg- 
 archy ; in others by every one who had a hearth of his 
 own {' potwalloper ' boroughs). Thus the qualification varied 
 from the widest democracy to the narrowest oligarchy. In 
 some places the election was direct ; in others, an electoral 
 body was itself elected. But whatever the local qualifica- 
 
1 88 THE LEGISLATURE: HOUSE OF COMMONS 
 
 tion of electors, the formal election, or notification of 
 the election, took place in the Shire Court, and by the 
 Sheriff all returns were made. There also, in pleno comi- 
 tatu^ the Knights of the Shire were elected, apparently 
 (though the point is not free from ambiguity) by the 
 general body of the freeholders of the county. 
 
 An Act of 1408 (7 Hen. IV, c. 15) removed all possible 
 doubt by providing that knights should be elected by * all 
 persons present at the County Court as well suitors sum- 
 moned for any cause as others'. But this broad practice 
 apparently did not work satisfactorily, and in 1430 an 
 amending Act was passed, under which the county franchise 
 was restricted to residents in the county owning freehold 
 lands or tenements of the nett annual value of \os. — equiva- 
 lent, perhaps, to some £30 to £40 in present values. The 
 reason for the change, according to the preamble of the 
 Act, is declared to be that 'the elections of Knights of 
 Shires have now of late been made by the very great and 
 outrageous number of people either of small substance or of 
 no value, whereof every one of them pretended to have 
 a voice equivalent as to making such elections with the same 
 worthy knights and squires dwelling within the same county '. 
 Be the reason good or bad, the fact remains that the Act of 
 1430 continued to define the county franchise for just four 
 hundred years, while in the boroughs, during the same 
 period, variety and ambiguity reigned supreme. 
 
 Not until 1832 was there any general enactment regu- 
 lating the qualification of electors in counties and towns 
 respectively. Meanwhile, there were important changes 
 in the number and character of the constituencies by 
 which Members were returned to the House of Commons, 
 The tale of the English counties was completed by the 
 inclusion of Monmouth (1536), the Palatine county of 
 Chester (1543), and that of Durham (in 1673). Monmouth- 
 shire came in as part of a general scheme for the ParHa- 
 
UNDER THE TUDORS AND STUARTS 189 
 
 ' mentary representation of Wales. The Act of 1536, which 
 gave two members to Monmouth, gave one to each of the 
 twelve ^ Welsh counties and one to each of the thirteen chief 
 towns. Henry VHI also gave representation (two members 
 apiece) to the following towns : — Calais, Berwick-upon- 
 Tweed, Buckingham, Chester, Lancaster, Newport (Corn- 
 wall), Orford, Preston, and Thetford. By the end of his 
 reign the county representation had been increased from 74 
 to 90, and that of the boroughs to 253, bringing the total 
 membership of the House to 343. Against this increase of 
 numbers no sinister motive could be alleged. The con- 
 cession of Parliamentary representation to Wales did but 
 carry to a logical conclusion the Unionist policy of Edward I ; 
 the inclusion of Cheshire and Monmouthshire removed an 
 antiquarian anomaly, while the new Parliamentary boroughs 
 were places of considerable and growing importance. 
 
 Of the creation of new boroughs by Edward VI or his 
 Protectors it is impossible to speak with the same confidence. 
 In his short reign no fewer than twenty new constituencies 
 were created. To some of the towns thus enfranchised, such 
 as Westminster, Liverpool, Wigan, Maidstone, Lichfield, and 
 Peterborough, no exception could be taken. But many of 
 the new boroughs were in Cornwall, and although the 
 fishing towns in that county were in the sixteenth cen- 
 tury rapidly increasing in importance, it is difficult to resist 
 the conclusion that Cornwall was specially favoured as 
 a royal Duchy and as being on that account particularly 
 amenable to royal influence. This suspicion is deepened 
 when we find the Protector I^orthumberland, in issuing 
 letters of instruction to the sheriffs, actually going so far as 
 to indicate the names of the persons whom the Crown 
 wished to be returned. Queen Mary created twenty-one 
 constituencies, three of them single-membered, but Calais, 
 
 ^ Five out of the twelve being at the same time created out of the 
 Marcher Lordships. 
 
iQo THE LEGISLATURE: HOUSE OF COMMONS 
 
 of course, ceased to return representatives, so that the per- 
 manent nett increase in the membership of the House was 
 nineteen. She also instructed the Sheriffs to admonish the 
 electors to choose ' such as being eligible by order of the 
 laws were of a grave, wise, and catholic sort ', but no names 
 were mentioned. Queen Elizabeth exhibited a similar solici- 
 tude as to the personnel of the House of Commons. Thus 
 in 1570 she complained that * though the greater number of 
 knights, citizens, and burgesses for the most part are duly 
 and orderly chosen, yet in many places such consideration is 
 not usually had herein, as reason would, that is to choose 
 persons able to give good information and advice for the 
 places for which they are nominated, and to treat and 
 consult discreetly upon such matters as are propounded to 
 them. The Queen, therefore, appointed Archbishop Parker 
 and Lord Cobham to confer with the Sheriff in Kent and 
 to take care that the persons returned 'be well qualified 
 with knowledge, discretion, and modesty '. Queen Eliza- 
 beth also was bounteous in the bestowal of Parliamentary 
 privileges, no fewer than sixty new members being added 
 during her reign to the House of Commons. 
 
 Thus during four Tudor reigns 166 members were added 
 to the House of Commons. 
 
 James I gave representation to the Universities of Oxford 
 and Cambridge, and added twenty-three borough members 
 to the House ; Charles I eighteen,^ while Charles H, besides 
 bringing in the county Palatine of Durham, gave members 
 to the city of Durham and the borough of Newark. The 
 total Stuart addition was, therefore, fifty-one, making for the 
 sixteenth and seventeenth centuries a grand total of 217. 
 Apart from the Scotch and Irish Unions there was no further 
 addition to the membership of the House of Commons until 
 1832, a period of more than a century and a half. 
 
 ^ Many of the boroughs enfranchised under the early Stuarts were, it 
 should be noted, revivals, not new creations. 
 
UNDER THE TUDORS AND STUARTS 191 
 
 With what object did the Stuart, and still more the 
 Tudor, Sovereigns add so largely to the House of Commons ? 
 To this question two answers may be, and have been, given. 
 The older generation of historians, who could see in the 
 Tudors nothing but wilful and overbearing despots, natu- 
 rally find in this proceeding evidence of an attempt to pack 
 the House of Commons and render it a pliable instrument 
 in the hands of the Crown. That it was an integral part of 
 Tudor policy to rule in and through Parliament is unde- 
 niable; that sinister motives were altogether absent it 
 would be difficult to prove. The special favour shown to 
 Cornwall, even if account be taken of the economic circum- 
 stances of the day, is, to say the least, suspicious. On 
 the other hand the Tudors were notoriously anxious both 
 to clip the wings of an over-powerful aristocracy and to 
 counterbalance their political power by encouraging the 
 growth of a strong middle class. The wealth of the com- 
 mercial classes increased rapidly in the sixteenth century, 
 and nothing was more natural than that the trading and fish- 
 ing towns from which this wealth was derived should find 
 representation at Westminster. Nor should it escape notice 
 how many of the newly-enfranchised towns — Liverpool, 
 Looe, Fowey, Yarmouth (I.W.), Newport and Newtown 
 (I.W.), Minehead, Harwich, Seaford, Corfe Castle, for ex- 
 ample — were on the seaboard. Others, like Preston, Wigan, 
 Thetford, Bury St. Edmunds, Peterborough, Cirencester, 
 were towns of growing commercial importance. On the 
 whole, therefore, it is not less consistent with probability 
 and more consistent with charity to assume, with Dr. 
 Prothero, that the main reason for the increase is to be 
 found ' in the growing prosperity of the country and in the 
 reliance which the Tudors placed on the commercial and 
 industrial classes '.^ 
 
 The discussion of this question leads naturally to a con- 
 1 Statutes and Documents ^ p. Ixvi. 
 
192 THE LEGISLATURE : HOUSE OF COMMONS 
 
 sideration of the general position of the House of Commons 
 under the Tudors. To discuss it in detail would be beyond 
 the scope of this work, but one or two points may be 
 summarily noticed. 
 
 First, whatever may be thought of the constitutional atti- 
 tude of the Tudor sovereigns and the general motives which 
 inspired their policy, it is incorrect to regard the sixteenth 
 century as creating a constitutional hiatus in the otherwise 
 continuous development of English institutions. On the 
 contrary, that period yields to no other as regards the im- 
 portance and continuity of constitutional development. But 
 the growth was of a peculiar kind. It was in breadth, not 
 height. It was marked not by the assertion of new privi- 
 leges, but by the essential confirmation of existing ones. 
 Thus, in the first place, though the Tudors desired to be 
 supreme in Parliament, as elsewhere, there was no attempt 
 to supersede its authority, nor to neglect it. Throughout 
 the whole period Parliament assembled, not of course 
 with the regularity of to-day, but without long intervals. 
 During Henry VII's reign there were seven sessions; 
 under Henry VIII there were nine distinct Parliaments, of 
 which one sat continuously for seven years, and two others 
 for three. During the short reigns of Edward VI and Queen 
 Mary, Parliament met practically every year. Elizabeth was 
 more economical than her immediate predecessors and had, 
 therefore, less need of Parliaments, but there were ten 
 Parliaments during the reign, with thirteen sessions in all. 
 
 Secondly, the Tudors, unlike the Stuarts, always gave 
 their Parliaments plenty to do, thus anticipating the saga- 
 cious advice tendered by Bacon to James I.^ Tudor Par- 
 liaments could not complain of an empty stomach. No 
 period down to the Victorian era was so fertile in legis- 
 lation of an important character. The statute-book of the 
 sixteenth century groans under the weight of enactments 
 ^ See p. 47. 
 
UNDER THE TUDORS AND STUARTS 193 
 
 on matters Social, Economic, and Ecclesiastical. 'The 
 part ', writes Dr. Maitland, * which the assembled Estates of 
 the realm have to play in the great Acts of Henry VHI 
 may in truth be an ignoble and subservient part, but the 
 Acts are great and they are all done by the authority of 
 Parliament.' The point is one which cannot be illustrated 
 in detail, but its significance must not be ignored. Whatever 
 accusation may be urged against the Tudors, at least they 
 cannot be charged with legislative infertility or with un- 
 readiness to propose to Parliament ' interesting and imposing 
 points of reform '. 
 
 Nor did they display any lack of consideration for the 
 susceptibilities of Parliament in regard to taxation. Money 
 was obtained from many sources which were extra-parlia- 
 mentary, but not even by the most wilful of the Tudors was 
 there any violation of the right of Parliament to control 
 taxation. Henry VHI, it is true, repudiated his debts, but 
 the repudiation had the sanction of Parliament ; even 
 Wolsey recoiled before the resistance of the House of 
 Commons to excessive demands for subsidies, while Eliza- 
 beth, in the one serious dispute on a financial question 
 between herself and the Legislature, made her concession 
 with a grace which served to cement the bonds between 
 Crown and Parliament. 
 
 Similarly in regard to legislation. No attempt was made 
 to question the formal supremacy of Parliament. But the 
 Crown, nevertheless, got all it wanted. It possessed the in- 
 valuable prerogative of initiation ; the veto was freely exer- 
 cised, and short of this the Crown could bring pressure to bear 
 on a recalcitrant member to withdraw an obnoxious Bill. 
 Queen Elizabeth, indeed, went so far as to commit Peter 
 Wentworth and Strickland to prison for untimely persistence 
 in the pursuit of legislative reform. In Proclamations^ 
 too, the Tudors found a useful means of evading, without 
 violating, the legislative control of Parliament ; but the 
 1120 N 
 
194 THE LEGISLATURE : HOUSE OF COMMONS 
 
 device, it should be noted, had been legalized by Par- 
 liament itself. 
 
 Similarly circumspect and tactful was the way in which 
 the Tudors dealt with the delicate question of parliamentary 
 privilege. Henry VHI was technically accurate when he 
 wrote to the Pope in 1529 : ' The discussions in the English 
 Parliament are free and unrestricted ; the Crown has no 
 power to limit their debates, or to control the votes of their 
 members.' But his letter should be read in close con- 
 junction with Queen Elizabeth's famous warning to her 
 faithful Commons in 1593. 'To your three demands the 
 Queen answereth : . . . Privilege of speech is granted, but 
 you must know what privilege you have ; not to speak every 
 one what he listeth, or what cometh in his brain to utter 
 that ; but your privilege is, aye or no. . . . To your persons 
 all privilege is granted, with this caveat, that under colour 
 of this privilege no man's ill-doings or not performing of 
 duties be covered and protected. The last ; free access is 
 granted to Her Majesty's person, so that it be upon urgent 
 and weighty causes, and at times convenient, and when 
 Her Majesty may be at leisure from other important causes 
 of the realm.' ^ This is admirably illustrative of Tudor 
 methods : there is no infraction of constitutional privileges, 
 no violation of the law, but strict limitation of the sphere of 
 privilege, and dexterous evasion of legal restraints. The 
 Tudors, it must be remembered, enjoyed in their dealings 
 with Parliament some conspicuous advantages. The first 
 was the virtual nomination of the Speaker of the House 
 of Commons. The Speaker's position in the sixteenth 
 century was, of course, entirely different from what it 
 is to-day. His control of the proceedings was all but 
 absolute, and until the development of the ministerial 
 system he was the sole channel of communication between 
 the House and the Crown. How great was the importance 
 * D^Ewes Journal, i. 460. 
 
UNDER THE TUDORS AND STUARTS 195 
 
 attached to the election of a Speaker well affected towards 
 the Crown may be clearly seen from Clarendon's account 
 of the opening of the Long Parliament. The King 
 had designated Sir Thomas Gardiner — the Recorder of 
 London — for the office; but Gardiner, probably for this 
 reason, failed to secure election in the city, and Lenthall — 
 a man of very different temper — was elected Speaker in his 
 place. Clarendon refers to the matter as *an untoward, 
 and in truth an unheard of accident, which broke many of 
 the King's measures, and infinitely disordered his service 
 beyond a capacity of reparation '. Clarendon may have 
 exaggerated the damage done to the King's cause, but the 
 notes of parliamentary debates under the Tudors afford 
 ample evidence of the great services rendered to the Crown 
 by successive Speakers. 
 
 Hardly less important was the increasingly frequent pre- 
 sence of the members of the Privy Council — the trusted 
 servants of the Crown — in one or other House of Parlia- 
 ment. We must be at some pains to apprehend the signi- 
 ficance of this. The books teach us that the presence of 
 Ministers in the English Parliament is at once the symbol 
 and the seal of the control of the Legislature over the Exe- 
 cutive. It was not so regarded by our forefathers, and in 
 the sixteenth century its significance was all the other way. 
 It was a powerful instrument in the hands of the Executive 
 for influencing the Legislature. Is it quite certain that 
 even now the ' books ' are right ? Were the fathers of the 
 American Commonwealth altogether unwise in their genera 
 tion ? Is not the increasing power of the Executive in the 
 sphere of legislation no less than in that of administration the 
 most significant of the constitutional symptoms of to-day ? ' 
 And to suppose that in the sixteenth century Parliament 
 pretended to any effective control over the Executive, or 
 that the presence of the Ministers indicated any tendency 
 1 Cf. S. Low, Governance of England {\^o^). 
 N 2 
 
196 THE LEGISLATURE : HOUSE OF COMMONS 
 
 in that direction, would imply an absurdly anachronistic 
 reading of history. Dr. Prothero has extracted from the 
 State Papers an interesting memorandum on the duties 
 of a Secretary of State under Queen Elizabeth. Cabinet 
 Ministers of to-day would read it with envy. Doubtless 
 Mr. Peter Wentworth, Mr. Cope, and Mr. Strickland were 
 tiresome persons in their way, but they were mere tyros in 
 the art of parliamentary * heckling ', and they were at one 
 terrible disadvantage as compared with their modern counter- 
 parts. No ' papers ' were ever laid on the table of the House. 
 No * reports' were presented to Parliament. Under these 
 circumstances it would tax the ingenuity even of the most 
 accomplished 'hecklers' of to-day to carry on their per- 
 sistent fusillade. Nor has the most autocratic of modern 
 Ministers ever ventured to re-echo the language of the Lord 
 Keeper of 1593 : * Wherefore, Mr. Speaker, her Majesty's 
 pleasure is, that if you perceive any idle heads, which will 
 not stick to hazard their own estates, which will meddle 
 with reforming the Church and transforming the Common- 
 wealth, and do exhibit any bills to such purpose, that you 
 receive them not, until they be viewed and considered by 
 those who it is fitter should consider of such things and can 
 better judge of them.' ^ 
 
 A pertinent question still remains to be answered : What 
 was the effect of the Tudor period, as a whole, upon the 
 position of the House of Commons ? Did it emerge from 
 the sixteenth century nerveless and limp ; atrophied in its 
 members by disuse, or crushed beneath the weight of 
 a blasting despotism ? We have only to glance at the terms 
 of the famous Apology drafted in the first Parliament of 
 James I to convince ourselves that these questions must be 
 answered by an emphatic negative. The Tudor regime was I 
 not merely disciplinary, but educative, and the House of 
 Commons emerged from the period neither crushed nor 
 ^ D' Ewes Journal, f. 460 (Prothero's Documents). ; | 
 
UNDER THE TUDORS AND STUARTS 197 
 
 ei 
 
 iiasculated, but braced, stimulated, and invigorated ; con- 
 lulent in its powers ; and eager to do battle for its privileges 
 with the luckless rulers who, through successors in title to 
 the Tudor monarchs, were not permitted to inherit the 
 Tudor monarchy. 
 
 The seventeenth century is of all periods the most critical 
 in the history of Parliament. From first to last — from the 
 Apology of 1604 down to the Bill of Rights and the Act 
 of Settlement — it is a period of conflict, and the prize for 
 which the contest was fought was the Sovereignty of England. 
 Was that Sovereignty to remain vested in the Crown; or 
 to be transferred to the people ; or to be exercised by a 
 Parliament consisting of King, Lords, and Commons? 
 The Crown was striving to retain, Parliament (in the 
 more restricted sense) was striving to acquire, supreme 
 authority. That the Crown of England had always been in 
 a sense ' limited ' has been already shown ^ : but on that 
 ground to represent the action of Parliament in the great 
 contest of the seventeenth century as strictly * Conserva- 
 tive' seems strangely pedantic. Most people are now 
 willing to admit that at the beginning of the seventeenth 
 century the time had come for a real shifting in the balance 
 of the Constitution — a change in the political centre of gravity 
 from the Crown to Parliament ; but to minimize the extent of 
 the change would seem to be both unhistorical and uncandid. 
 
 The general aspect of the struggle has been already 
 described, and its details must not now detain us. It must 
 suffice to point out that there was no recognized sphere of 
 parliamentary activity into which the Stuart Kings did not 
 wish to intrude, and no parliamentary function the exercise 
 of which they did not in practice contest. Taxation, legis- 
 lation, free deliberation on public affairs, criticism and 
 control of ministerial action — on each of these questions 
 Parliament came into conflict with the first two Stuart Kings. 
 ■ ' See supra, c. iii. 
 
198 THE LEGISLATURE : HOUSE OF COMMONS 
 
 It is only fair to both parties to point out that the conflict 
 arose from several concurrent causes which were, in a 
 sense, beyond the immediate control of either party to the 
 quarrel. 
 
 It arose, in the first place, as we have already attempted 
 to show, from the circumstances of the time. The Tudor 
 discipline had been applied at the precisely opportune 
 moment ; it had arrested premature parliamentary develop- 
 ment; it had repressed aristocratic disorder and had en- 
 couraged the growth of the middle class; it had given 
 opportunity for commercial and maritime enterprise ; and 
 had, by its reorganized local government, afforded the 
 country gentlemen an invaluable training in practical 
 administration. All these things told on the life of the 
 nation at large, and the value of the discipline was clearly 
 revealed in the political conflict of the succeeding century. 
 
 But the political problem did not stand alone. Had it 
 done so revolution might none the less have come, but the 
 revolution would have been bloodless. The sixteenth 
 century bequeathed to the seventeenth an ecclesiastical as 
 well as a constitutional problem. Men's religious passions 
 were deeply roused. Charles I and his party wished to 
 preserve a National Church, organized under an episcopate 
 ruling by virtue of a succession unbroken since apostolic 
 times, and adhering as closely as circumstances allowed 
 to the * Catholic ' tradition of discipline, ritual, and 
 doctrine. His opponents wished to carry the Reformation 
 a stage further on the lines suggested by the continental 
 Protestants ; to abolish episcopalian government and 
 Catholic doctrine, and to substitute the rule of Geneva. 
 But for the attack upon the episcopalian government of 
 the English Church Charles I would have been compelled 
 to yield on the constitutional question ; the Long Parliament 
 would have achieved a bloodless triumph, and the civil war 
 would never have been fought. 
 
UNDER THE TUDORS AND STUARTS 199 
 
 A third cause of conflict was the ambiguity of much of 
 our constitutional law, an ambiguity which was intensified 
 by the peculiar circumstances of the preceding century. 
 Much had been allowed and even forgiven to the Tudors, 
 because they gave the nation the efficient administration 
 demanded during a period of national stress. In the 
 process constitutional law, never too clearly defined, 
 had become still further blurred. In regard to many 
 points of primary importance it required to be restated. 
 To this ambiguity no small part of the conflict must in 
 fairness be ascribed. 
 
 The control of the House of Commons over national 
 finance is an instance in point. That taxes could not be 
 levied without the consent of Parliament was a constitu- 
 tional aphorism dating at least from the fourteenth century. 
 Various loopholes discovered by the practice of that period 
 had, as we have seen, been carefully stopped up. Later on, 
 the Commons had secured, as further safeguards, the right 
 of initiation and the right of audit. But how far did the 
 theory of taxation extend? Were custom duties included 
 in it ? Licences to carry on foreign trade were admittedly 
 within the competence of the Crown to issue or withhold ; 
 but if so, might not some charge be imposed for the exercise 
 of the privilege ? The Commons of the fourteenth century 
 had, as we have seen, made short work of the Contention. 
 But Tudor practice had blurred the sharpness of outline, 
 and the Stuarts, greatly straitened in their resources by the 
 rise in the value of money, clutched eagerly at Impositions as 
 a legitimate source of extra-parliamentary revenue. The 
 legality of these impositions, or additional custom duties, 
 was brought to the test in the famous case of Bate, a Levant 
 merchant, who refused to pay the duty of ^s. per cent, on 
 currants imposed by the Crown. The judgement of the 
 Court of Exchequer (1606) was in favour of the King, and 
 a commission was accordingly issued (1608) by the King 
 
200 THE LEGISLATURE : HOUSE OF COMMONS 
 
 for the collection of customs according to a fixed scale. 
 Strictly analogous is the still more famous case of ship- 
 money. Was this ancient 'geld' to be regarded as a 
 * tax ' ? That the circumstances under which it was levied 
 by Charles I in 1634 gave to ship-geld all the characteristics 
 of a tax cannot be denied ; but as in the case of Bate, so 
 in that of Hampden, the judges decided in favour of the 
 Crown. It is easy to assert that these famous judgements 
 tend only to prove the 'servility' of the judicial bench. 
 But though the fact may be true, the explanation is in- 
 adequate. No fair-minded critic can read the actual 
 judgements delivered without perceiving that there was 
 a real ambiguity as to the limits of the royal prerogative ; 
 that the law itself was defective and required amendment. 
 It could not be denied that the Crown was the residual 
 legatee of certain undefined powers known as the Pre- 
 rogative. How far did prerogative extend ? Did it include 
 the control of foreign trade, and the provision of national 
 defence ? If so, could the court refuse to accept the logical 
 consequences as expressed in the impositions levied on 
 Bate, or the ship-geld collected from Hampden? The 
 ambiguity was one for the Legislature to clear up. This 
 was done partially by the Petition of Right (1628), less 
 definitely in the abrogation of the ship-money judgement 
 in 1 64 1, and most effectually by the following clause (ii, 5) 
 in the Bill of Rights (1689) : 'That levying money for and 
 to the use of the Crown by pretence of prerogative, without 
 grant of Parliament, for longer time or in other manner than 
 the same is or shall be granted, is illegal.' Thus was the 
 last loophole finally closed. 
 
 Legislation presented a similar though less irritating 
 problem. The concurrent rights of the House of Com- 
 mons had been acknowledged theoretically in the fourteenth 
 century, practically in the fifteenth. But there still remained 
 to the Crown the loophole of ' Ordinances ' which virtually 
 
UNDER THE TUDORS AND STUARTS 201 
 
 reappear under the Tudors as * Proclamations '. The latter 
 formed a useful and indeed indispensable part of the 
 dictatorial machinery of the sixteenth century ; the Stuarts 
 sought to apply it to less popular purposes in the seven- 
 teenth. In the reign of Queen Mary the judges laid it 
 down that *the King may make a proclamation quoad ierrorem 
 populi to put them in fear of his displeasure, but not to 
 impose any fine, forfeiture, or imprisonment; for no pro- 
 clamation can make a new law, but only confirm and ratify 
 an ancient one'. No such limitations were observed by 
 James I, who employed this machinery to forbid the elec- 
 tion of outlaws ; to withdraw Parliamentary representation 
 from decayed towns ; to levy new custom duties ; to restrain 
 building operations in London, and for various other pur- 
 poses. Parliament remonstrated against this infringement 
 of their legislative rights in 16 10. James referred the ques- 
 tion to the judges, w^ho declared, in answer, that the King 
 had no right by proclamation to override the existing law 
 nor to create any new offence. But the abuse was never 
 really ended until the abolition of the extraordinary 
 tribunals, such as the Star Chamber, in 1641. 
 
 The later Stuarts, though barred by the action of the 
 Long Parliament from recourse to Proclamations^ negatively 
 infringed the legislative rights of Parliament by the exercise 
 of the dispensing and suspending power. By ' suspending ' 
 the operation of statutes, as by the Declarations of In- 
 dulgence in 1686 and 1687, or even by 'dispensing' with it 
 in the case of individuals, such as Captain Hales in 1672, 
 the legislative will of Parliament was rendered of no 
 effect. The Bill of Rights put a final stop to the practice 
 by declaring — 
 
 (i) That the pretended power of suspending of laws or 
 the execution of laws by regal authority, without consent of 
 Parliament, is illegal. 
 
 (2) That the pretended power of dispensing with laws or 
 
202 THE LEGISLATURE 
 
 the execution of laws by regal authority, as it hath been 
 assumed and exercised of late, is illegal. 
 
 Not less sharp was the conflict between the Stuarts and 
 the House of Commons in regard to parliamentary privi- 
 leges. The right to determine all questions affecting elec- 
 tions to their own House; to secure their members from 
 arrest (Shirley's case, 1604); to punish their own members 
 by expulsion (Floyde's case, 162 1), and, above all, freely 
 to debate all matters of public interest, all provided 
 questions of dispute between James I and the House 
 of Commons. Even more serious was the attempt of 
 Charles I to deny the right of Parliament to call ministers 
 to account, in order to shield his favourite, Buckingham. 
 
 But all these questions are only specific illustrations of 
 a more general difficulty. Not yet had it been definitely 
 decided where sovereignty resided : whether in the Crown 
 or in the Crown-in-Parliament. 
 
 That problem — the ultimate and supreme problem in 
 Political Science — was practically solved by the Revolution 
 of 1688. 
 
CHAPTER X 
 
 THE LEGISLATURE : (5) THE HOUSE OF 
 COMMONS SINCE THE REVOLUTION 
 
 'In outer seeming the Revolution of 1688 had only transferred the 
 sovereignty over England from James II to William and Mary. In 
 actual fact it had given a powerful and decisive impulse to the great 
 constitutional process which was transferring the sovereignty from the 
 King to the House of Commons. From the moment when its sole 
 right to tax the nation was established by the Bill of Rights, and when 
 its own resolve settled the practice of granting none but annual supplies 
 to the Crown, the House of Commons became the supreme power in the 
 State .... but while freeing itself from the control of the Crown it was 
 as yet only imperfectly responsible to the people.' — J. R. Green. 
 
 * It was a measure, at once bold, comprehensive, moderate, and con- 
 stitutional. Popular, but not democratic : it extended liberty, without 
 hazarding revolution .... Worthy of the struggles it occasioned, — it 
 conferred immortal honour on the statesmen who had the wisdom to 
 conceive it, and the courage to command its success.' — T. E. May on 
 the Reform Act of i8j2. 
 
 * Representative institutions will probably perish by ceasing to be 
 representative ... a tendency to democracy does not mean a tendency 
 to parliamentary government, or even a tendency towards greater 
 liberty.'— W. E. H. Lecky. 
 
 The Revolution of 1688 marks the decisive epoch in the 
 long-drawn contest between the Executive and the Legisla- 
 ture. The House of Commons, in particular, emerged from 
 the welter of the seventeenth century if not actually supreme 
 over all rival bodies in the Constitution at any rate well on 
 the way towards final victory. 
 
 Its supremacy was definitely established in the course of 
 the period upon which we now enter, and was due, as we 
 have already seen in another connexion, to several con- 
 
204 THE LEGISLATURE 
 
 current causes. A standing army, despite the deep-seated 
 suspicion of a people who had groaned under the military 
 despotism of Cromwell, became, after the Revolution, a 
 permanent feature of the polity. The more continuous 
 intervention in Continental politics into which England was 
 drawn by the accession of the Dutch Stadtholder and the 
 extension of her colonial responsibilities, contributed, with 
 other reasons, to this important change. But the people 
 never ceased to mistrust it ; the House of Commons refused 
 to provide for the discipline of the Army for more than 
 twelve months ahead — a precaution which necessitated the 
 annual meeting of Parliament. In this curiously but 
 characteristically indirect manner, a Constitutional change 
 of the first importance was accomplished. Nothing has 
 done more to secure the supremacy of the Legislature than 
 its regular annual assembling. 
 
 The change in the mode of granting supplies to the 
 Crown ; the discrimination between national and royal 
 expenditure, and the institution of the Civil List gave to the 
 House of Commons, for the first time, complete control not 
 only over the raising of the revenue, but also over its expen- 
 diture. The gradual organization of political parties, and 
 the evolution of the Cabinet system also contributed power- 
 fully to the practical ascendancy of the House of Commons 
 in English politics. 
 
 But this ascendancy brought with it temptations which 
 the Commons, during a great part of the eighteenth century, 
 showed no disposition to resist. Between 1688 and 1832 
 they were in a peculiar position. Victorious in their con- 
 test with the Crown, they had. not yet felt the sense of 
 responsibility to the people. It is not, therefore, remark- 
 able that they should have developed and displayed an 
 overbearing temper which brought them into conflict first 
 with the House of Lords, and, later, with the people. 
 
 Their conflict with the Lords touched three important 
 
THE COMMONS SINCE THE REVOLUTION 205 
 
 points : the judicial functions of the Upper House ; * the 
 rights of the Commons in regard to Money Bills, and the 
 co-ordinate rights of the Second Chamber in regard to 
 general legislation, rights which were threatened by the 
 invention of a Parliamentary device known as ' tacking '. 
 
 The question as to the jurisdiction of the House of Lords, 
 whether as a court of first instance or a court of appeal, has 
 been already dealt with. That of the right of the Commons 
 as to Money Bills was expressly reserved, and must now 
 engage our attention. 
 
 So far back as 1407 the Commons preferred the definite 
 claim that all grants of Supply to the Crown must originate 
 in the Lower House. In view of the fact that they repre- 
 sented those who were least able to pay the claim was not, 
 per se, unreasonable, and, apparently, was not contested. 
 For two centuries and a half no further question appears to 
 have arisen as to finance between the two Houses. Both 
 were too busily occupied in asserting their position against 
 the Crown to have leisure for domestic quarrels. 
 
 But after the Restoration the position was altered. The 
 contest with the Crown was nearly closed, and at the same 
 time the national finances were placed upon a new basis by 
 the virtual extinction of the theory of Estates. The Estate 
 of the clergy, as we have seen, surrendered their privilege of 
 separate class taxation in Convocation in 1663, and almost 
 at the same moment the feudal land-owners merged, in a 
 fiscal sense, into the mass of the nation. Feudal tenure by 
 military service was abolished by the Protectorate Parlia- 
 ment in 1656, and though momentarily revived at the 
 Restoration it was finally swept away by Statute in 1661. 
 Thus barons and clergy alike fall completely into the 
 national system ; henceforward there is no fiscal distinction 
 between classes whether of privilege or obligation ; all are 
 equal before the law. 
 
 1 Supra^ c. vii. 
 
2o6 THE LEGISLATURE 
 
 This is the moment chosen by the Commons, and not 
 unnaturally chosen, for the reassertion of their claims to 
 exclusive, or at least pre-eminent, control over taxation. 
 The whole burden of maintaining the national Services both 
 in peace and war now fell — apart from the ' hereditary ' 
 revenues of the Crown — as a common charge upon the 
 nation at large. It was natural that the Commons should 
 regard with jealousy and suspicion any attempt to tax the 
 people whom they represented. A pretext for a quarrel 
 soon arose. In 1661 the Lords passed and sent down to 
 the Commons a Bill for 'paving, repairing, and cleansing 
 the streets and highways of Westminster '. The Commons^ 
 in high dudgeon, rejected the Bill, on the ground that ' it 
 went to lay a charge upon the people ', and ' that no Bill 
 ought to begin in the Lords' House which lays any charge 
 or tax upon any of the Commons '. To this assertion the 
 Lords demurred as being ' against the inherent Privileges of 
 the House of Peers, as by several Precedents wherein Bills 
 have begun in the Lords' House, videlicet 5to Elisabethae a 
 Bill for the Poor, and 31 Eliz. for Repair of Dover Haven, 
 and divers other Acts, does appear '. The Commons there- 
 upon passed a Bill of their own and sent it up to the 
 Lords. This time it was for the Lords to protest ; but in 
 the event 
 
 'the Lords, out of their tender and dutiful Respects to 
 His Majesty, who is much incommodated by the Neglect of 
 those Highways and Sewers mentioned in the Bill, have for 
 this time in that respect alone, given way to the Bill now in 
 Agitation, which came from the House of Commons, with 
 a Proviso of their Lordships : videlicet^ " Provided always 
 that nothing in the passing of this Bill, nor any thing therein 
 contained, shall extend to the Prejudice of the Privileges of 
 both or either of the Houses of Parliament, or any of them ; 
 but that all the Privileges of the said Houses, or either of 
 them, shall be and remain, and be construed to be and 
 remain, as they were before the passing of this Act, any 
 thing therein contained to the contrary notwithstanding; 
 
^HE COMMONS SINCE THE REVOLUTION 207 
 
 with this Protestation that this Act shall not be drawn into 
 Example to their Prejudice for the future." ' ^ 
 
 The Commons refused to accept the Bill with the inser- 
 ■ tion of this proviso ; matters came to a deadlock, and the 
 proposed legislation had to be abandoned. 
 
 A similar Bill of a more general nature was, however, 
 passed in the following year ; a similar impasse was 
 threatened, but on this occasion the Lords, after formal 
 protest from several of their number, gave way.* 
 
 But this was only the beginning. In 1671, and again in 
 1675, the Lords attempted to amend Bills of Supply sent up 
 to them by the House of Commons, proceedings which 
 evoked two famous resolutions. By that of 1671 the 
 Commons affirmed that * in all aids given to the King by 
 the Commons the rate or tax ought not to be altered by the 
 Lords ' ; ^ by that of 1678, 
 
 ' That all aids and supplies, and aids to His Majesty in 
 Parliament are the sole gift of the Commons ; and that all 
 Bills for the granting of any such aids or supplies ought 
 to begin with the Commons ; and that it is the undoubted 
 and sole right of the Commons to direct, limit, and appoint, 
 in such Bills, the ends, purposes, considerations, conditions, 
 limitations, and qualifications of such Grants, which ought 
 not to be changed or altered by the House of Lords.' * 
 
 The importance of these resolutions can scarcely be 
 exaggerated. On both occasions the Lords in the end gave 
 way, but not without the following emphatic protest : 
 
 * Resolved, Neitiine contradicente^ that the Power exercised 
 by the House of Peers, in making the Amendments and 
 Abatements in the Bill, intituled, "An Act for an additional 
 Imposition on several Foreign Commodities, and for the 
 Encouragement of several Commodities and Manufactures 
 of this Kingdom", both as to the Matter, Measure, and 
 
 1 Z. /., xi. 328 a. 2 L^ y; ^i. 467-9. 
 
 3 C.J. ix. 235. * C.J. ix. 509. 
 
2o8 THE LEGISLATURE 
 
 Time, concerning the Rates and Impositions on Mer- 
 chandize, is a fundamental, inherent, and undoubted right 
 of the House of Peers, from which they cannot depart.' * 
 
 What then is the general principle affirmed in these 
 historic resolutions? It will be observed that the Lords' 
 right of concurrence in taxation was not questioned. 
 
 They cannot legally impose a charge upon the people; 
 hence they cannot ' alter or amend ' a tax proposed by the 
 Commons, but they may refuse to concur in its imposition 
 and, therefore, may reject it. In course of time, however, 
 and partly, perhaps, in consequence of the ambiguity of 
 the wording of the resolution of July 3, 1678, confusion has 
 arisen between a tax or grant, and the aggregation of taxes 
 contained in a modern Finance Bill, and it is now common 
 to contend that the Lords have lost (if they ever possessed) 
 the right to amend not only a particular tax, but the general 
 scheme of taxation as embodied in a Money Bill. 
 
 This confusion, and the difficulties arising therefrom, 
 have unquestionably been greatly enhanced by the device 
 adopted by Mr. Gladstone in 1861. In i860 a Bill for 
 repealing the duty on paper formed part of the financial 
 proposals of the year. The anticipated loss of revenue from 
 this and other duties was to be met by an increase in the In- 
 come Tax from ninepence to tenpence in the pound. The 
 Income Tax Bill passed both Houses ; the Paper Duty Repeal 
 Bill, after narrowly escaping defeat in the Commons, was 
 rejected by the Lords. To no one did the action of the 
 Lords give greater satisfaction than to Lord Palmerston, 
 then Prime Minister. He had already expressed his private 
 opinion to the Sovereign that if the Lords rejected the Bill 
 they would ' perform a good public service ' and that ' the 
 Government might well submit to so welcome a defeat'. 
 But the Premier reckoned without the Chancellor of the 
 
 1 L.J. xii. 498 b. 
 
THE COMMONS SINCE THE REVOLUTION 209 
 
 Exchequer. Mr. Gladstone took a high line in regard to 
 the action of the Lords, and Lord Palnierston was com- 
 pelled with very ill grace to submit to the House of 
 Commons a series of resolutions reasserting in the strongest 
 terms the privileges of the Commons in regard to taxation. 
 The first affirmed that 'the right of granting aids and 
 supplies to the Crown is in the Commons alone, as an 
 essential part of their constitution, and the limitation of 
 all such grants as to matter, manner, measure, and time is 
 only in them'. The second, while admitting that the Lords 
 had sometimes 'exercised the power of rejecting Bills 
 relating to taxation by negativing the whole ', ' nevertheless 
 affirmed that the exercise of that power hath not been frequent 
 and is justly regarded by this House with peculiar jealousy as 
 affecting the right of the Commons alone to grant supplies 
 and to provide the ways and means for the service of the 
 year.' The third, grimly foreshadowing future action, stated 
 * that to guard for the future against an undue exercise of 
 that power by the Lords, and to secure to the Commons 
 their rightful control over taxation and supply, this House 
 has in its own hands the power so to impose and remit 
 taxes and to frame Bills of Supply that the right of the 
 Commons as to the matter, manner, measure, and time 
 may be maintained inviolate'. In regard to the rejected 
 Bill itself one point demands notice : the Lords had already 
 concurred with the Commons in providing the necessary 
 supplies for the year. By rejecting the Paper Duty Repeal 
 Bill they did, in effect, impose a charge upon the people 
 which the Commons had declared to be uncalled for. 
 
 But in the following session Mr. Gladstone's time came. 
 The veiled threat was translated into action. The Chan- 
 cellor of the Exchequer not only showed his teeth, but pro- 
 ceeded to bite. He embodied all the financial proposals of 
 the year, including the rejected Paper Duty Repeal Bill, in a 
 single omnibus Bill, and challenged the House of Lords to 
 
 1 1 20 o 
 
2IO THE LEGISLATURE 
 
 accept or reject it as a whole. It was a bold challenge. 
 But it was justified by success, and it has set a precedent 
 from which there has been no departure from that day to this. 
 Mr. Gladstone's distinguished biographer does not exaggerate 
 its significance when he writes : — 
 
 *The abiding feature of constitutional interest in the 
 Budget of 1 86 1 was this inclusion of the various financial 
 proposals in a single bill, so that the Lords must either 
 accept the whole of them or try the impossible performance 
 of rejecting the whole of them. This was the affirmation in 
 practical shape of the resolution in the House of Commons 
 in the previous year. . . . Until now the practice had been 
 to make the different taxes the subject of as many bills, 
 thus placing it in the power of the Lords to reject a giver 
 tax bill without throwing the financial machinery wholly ou 
 of gear. By including all the taxes in a single Finance Bill 
 the power of the Lords to override the other House was 
 effectually arrested.'^ 
 
 Whether this is to be regarded as the last word in the 
 matter of the rights of Lords and Commons respectively in 
 Finance is a question rather for the politician than the his- 
 torian. The latter may be content with recording the fact 
 that between 1861 and 1909 the Lords were at once careful 
 to reserve their rights and not to exercise them. In 1909, 
 however, they rejected the Finance Bill of the year and com- 
 pelled the Government of the day to submit their financial 
 policy to the judgement of the electorate. Unfortunately, 
 however, the verdict returned was too ambiguous to permit 
 any positive deduction to be drawn from it. 
 
 We must retrace our steps to the Revolution of 1688. 
 Not only in regard to Finance Bills were the Commons 
 anxious to restrict the independence of the Upper House. 
 Flushed by the victories won in 167 1 and 1675 the Com- 
 mons attempted in 1692, and again in 1700, to abrogate the 
 co-ordinate authority of the Lords in the matter of ordinary 
 
 1 Morley, Life of Gladstone ^ ii. 40. 
 
THE COMMONS SINCE THE REVOLUTION 211 
 
 legislation. This end was to be achieved by the device 
 which came to be known as tacking : an ordinary Bill was 
 tacked on to a Bill of Supply, and the Lords were dared to 
 reject the composite measure. 
 
 Such tactics were bitterly and naturally resented by the 
 Peers, whose case is admirably put in a notable passage by 
 Macaulay : — 
 
 * Not only are we to be deprived of that co-ordinate legis- 
 lative power to which we are, by the constitution of the 
 realm, entitled. We are not to be allowed even a suspensive 
 veto. We are not to dare to remonstrate, to suggest an 
 amendment, to offer a reason, to ask for an explanation. 
 Whenever the other House has passed a bill to which it is 
 known that we have strong objections, that bill is to be 
 tacked to a bill of supply. If we alter it, we are told that 
 we are attacking the most sacred privilege of the repre- 
 sentatives of the people, and that we must either take 
 the whole or reject the whole. If we reject the whole, 
 public credit is shaken; the Royal Exchange is in con- 
 fusion ; the Bank stops payment ; the army is disbanded ; 
 the fleet is in mutiny; the island is left, without one 
 regiment, without one frigate, at the mercy of every enemy. 
 The danger of throwing out a bill of supply is doubt- 
 less great. Yet it may on the whole be better that we 
 should face that danger, once for all, than that we should 
 consent to be, what we are fast becoming, a body of no 
 more importance than the Convocation.' ^ 
 
 Some hotheads in the Commons even went so far as to 
 threaten to use the newly invented instrument for penal 
 proceedings against political opponents : ' They object to 
 tacking, do they ? Let them take care that they do not 
 provoke us to tack in earnest. How would they like to have 
 bills of supply with bills of attainder tacked to them ? ' 
 Macaulay justly describes this as an * atrocious threat, worthy 
 of the tribune of the French Convention in the worst days 
 of the Jacobin tyranny.' ^ The overbearing insolence of the 
 Lower House was becoming insupportable. Even the judicial 
 * History of England^ iv. 328-9. ^ op. cit. iv. 330. 
 
 O 2 
 
312 THE LEGISLATURE 
 
 Hallam describes ' tacking ' as a * most reprehensible device ', 
 as tending * to subvert the Constitution and annihilate the 
 rights of a coequal House of Parliament '. ^ Macaulay is 
 characteristically more emphatic : — 
 
 ' In truth, the House [of Commons] was fast contracting 
 the vices of a despot. It was proud of its antipathy to 
 courtiers ; and it was calling into existence a new set of 
 courtiers who would flatter all its weaknesses, who would 
 prophesy to it smooth things, and who would assuredly be 
 in no respect less greedy, less faithless, or less abject than 
 the sycophants who bow in the ante-chamber of kings.' ^ 
 
 It was indeed time that a determined stand should be 
 made, in the interests of the nation at large, by the Chamber 
 which was not technically ' representative '. 
 
 But here the Lords were confronted by a difficulty which 
 is perpetually recurring. The particular occasion was not a 
 favourable one. The ' tacked ' Bill was one which intrinsi- 
 cally commended itself to the judgement of many of the 
 Peers, and represented a cause likely to be popular — on the 
 grounds of expediency — in the country. Entirely objec- 
 tionable as was the method adopted by the Commons, the 
 Peers judged, and rightly, that the ground selected for a 
 battle-royal with the Commons must be in every respect 
 favourable. * The Lords ', as Macaulay wisely observes, 
 *must wait for some occasion on which their privileges 
 would be bound up with the privileges of all Englishmen, 
 for some occasion on which the constituent bodies would, if 
 an appeal were made to them, disavow the acts of the repre- 
 sentative body ; and this was not such an occasion.' ^ Un- 
 steady and captious as is his judgement on men, in his 
 judgements on political issues Macaulay is rarely at fault. 
 The wisest of the Peers were in favour of surrender. The 
 tacked Bill was accepted, but two years later (December 9, 
 1702) the Lords placed it formally on record : * That the 
 
 ^ Constitutional History, iii. 142. 
 =* op. cit. iv. 326. ^ ibid. iv. 331. 
 
THE COMMONS SINCE THE REVOLUTION 213 
 
 annexing any clause or clauses to a Bill of aid or supply the 
 matter of which is foreign to and different from the said Bill 
 of aid or supply is unparliamentary, and tends to destruction 
 of the constitution of the Government.' 
 
 This resolution may be accepted as the last word on the 
 subject. By all parties 'tacking' is justly repudiated as 
 tactically unfair and constitutionally untenable; and it is 
 noticeable that in the Constitutions recently drafted for the 
 Commonwealth of Australia and for United South Africa 
 special precaution is taken against the introduction of such 
 a practice into the legislatures of those countries. Thus, 
 Section 55 of the Australian Commonwealth Act provides that 
 * Laws imposing taxation shall deal only with the imposition 
 of taxation, and any provision therein dealing with any other 
 matter shall be of no effect '. The South African Constitu- 
 tion of 1909 contains an almost identical provision. We 
 may dismiss, therefore, as politically impossible the re- 
 crudescence of a device so unequivocally condemned by 
 Constitutions which are held to embody the accumulated 
 wisdom of the ages. 
 
 But the House of Commons, inflated by the events of the 
 Restoration and the Revolution, was not content with mani- 
 festing a domineering temper towards the Lords. It was 
 equally overbearing in its dealings with the people at large 
 and even with the constituencies which it was supposed to 
 represent. This is most clearly demonstrated by a reference 
 to the history of parliamentary privilege in the eighteenth 
 century. 
 
 Those privileges had been originally asserted to protect 
 the liberties of the House of Commons as against the 
 Crown. They were rightly regarded as essential to its 
 independence, essential to the efficient performance of the 
 task undertaken on behalf of the nation as a whole. They 
 were now perverted to an entirely different purpose. No 
 longer needed as a defence against the Crown, they were 
 
214 THE LEGISLATURE 
 
 utilized as ramparts against the intrusion of the people, and 
 at times they were even employed as engines of oligarchical 
 tyranny. 
 
 A few illustrations will suffice to make this point good. 
 There was no privilege of the Commons more highly 
 cherished or more jealously maintained than that of freedom 
 of speech. This privilege had been successfully vindicated 
 so far back as the fourteenth century in the famous case of 
 Sir Thomas Haxey (1397), and later in that of Strode (15 13). 
 Between Elizabeth and her Parliaments there was an excep- 
 tional amount of friction on this point. Friction developed 
 into actual collision in the next reign, and the quarrel reached 
 its culminating point when, in 162 1, James I angrily tore out 
 of the records of Parliament the protest entered against his 
 denial of this cherished privilege. Not, however, until 1689 
 was the final victory achieved, when the Bill of Rights 
 declared (§ 9) that * the freedom of speech and debates or 
 proceedings in Parliament ought not to be impeached or 
 questioned in any court or place out of Parliament '. 
 
 How was this privilege perverted to the detriment of the 
 people ? To the complete enjoyment of freedom of speech 
 in Parliament there was one essential — secrecy. There 
 could be no real freedom of debate if words spoken in the 
 House were reported to the Crown. The Long Parliament 
 permitted the authorized publication of debates, and in 1680 
 the votes and proceedings of the House of Commons were 
 ordered to be printed under the direction of the Speaker. 
 But after the Revolution the House made frequent attempts 
 to prevent the publication of debates, though with ever-de- 
 creasing success. The middle classes were beginning to mani- 
 fest a new interest in the doings of the House of Commons ; 
 imperfect information only stimulated curiosity; garbled 
 and inaccurate reports obtained a wide circulation, until at 
 last, in 1 771, matters reached a crisis. Colonel Onslow 
 raised as a question of privilege the inaccurate reports of 
 
THE COMMONS SINCE THE REVOLUTION 215 
 
 Parliamentary debates. Six printers were summoned to the 
 bar of the House ; two of them, Wheble and Thompson, 
 were collusively arrested in the City and discharged by the 
 aldermen before whom they were brought. One of the 
 aldermen was the notorious Wilkes, who was the prime 
 instigator of the contest. A third printer, Miller, gave the 
 messenger of the House who attempted to arrest him into 
 custody, and the latter was committed by the City magistrates 
 for attempting to execute in the City a warrant which was 
 not backed by a City magistrate. The issues now became 
 increasingly complicated, but the final result was essentially 
 a victory for Wilkes ; the publication of debates was hence- 
 forward tacitly allowed, and was ultimately surrounded with 
 special privileges.' Still further publicity has been given to 
 proceedings in Parliament by the publication of Division 
 Lists. Those of the Commons have been regularly pub- 
 lished since 1836; of the Lords since 1857. The presence 
 of strangers in the galleries of the House — regarded at one 
 time with extreme jealousy^ and still technically a breach of 
 privilege — has been generally accepted and recognized. 
 
 Another privilege perverted by the Commons to oli- 
 garchical ends in the eighteenth century was that of deter- 
 mining all questions affecting the constitution of their own 
 House, including the question of disputed elections. This 
 brought the two Houses into conflict in 1702 in the famous 
 case of Ashby v. White. But much more important was 
 the quarrel between the House and the Electors of Middlesex 
 over the worthless but by no means prostrate body of John 
 Wilkes. Wilkes, expelled from the House for seditious libel, 
 was re-elected in 1768; was again expelled and declared 
 incapable of re-election ; was a third time elected, when his 
 seat was given by decision of the House to his defeated 
 opponent, Colonel Luttrell. This was an act of high-handed 
 
 ^ Cp. cases of Stockdale v. Hansard (1836) and Wason v. Walter 
 (1868). 
 
2i6 THE LEGISLATURE 
 
 tyranny which evoked the strong condemnation of Burke. 
 Worthless as Wilkes might be, there was, as Burke clearly 
 perceived, a principle at stake which went far deeper than 
 the merits or demerits of an individual. If the House of 
 Commons were to be permitted to dictate to a constituency 
 the choice of its representatives, the principle of co-option 
 would be substituted for that of election. Here, as in the 
 affair of the printers, Wilkes ultimately triumphed, and in 
 1782 all the records of the proceedings were expunged from 
 the journals of the House. 
 
 Not remotely connected with the last case is the right 
 claimed by the Commons to punish both its own members 
 and outsiders for contempt of its orders and breach of its 
 privileges. Essential to its dignity, if not its independence, 
 it is easy to see how such a privilege might be abused by 
 an assembly which was infused with oligarchical principles ; 
 and there are plenty of instances to prove that in the 
 eighteenth century the danger was neither remote nor 
 illusory. They need not, however, detain us. Enough has 
 been said to prove that the House of Commons was in the 
 eighteenth century far from being in that close touch with 
 the constituencies, far from exhibiting that quick responsive- 
 ness to the sentiments of the electorate which have been so 
 marked since the removal of all restrictions in the publicity 
 of Parliamentary proceedings, and since the wholesale re- 
 adjustment of electoral areas and qualifications involved 
 in the Reform Acts of the nineteenth century. 
 
 The last point brings us naturally to a consideration of 
 the composition of the House of Commons during this 
 period. That composition has been profoundly modified, 
 first, by the expansion of England into the United King- 
 dom ; and, secondly, by the Reform legislation of the 
 nineteenth century. These two causes now demand atten- 
 tion. 
 
 The Act for the legislative union of England and Scotland 
 
THE COMMONS SINCE THE REVOLUTION 217 
 
 (1707) brought into the House of Commons forty-five addi- 
 tional members, thirty of whom represented counties, and 
 fifteen borough constituencies. Nothing, however, was done 
 to amend the anomalies either of the electoral franchise or 
 the electoral areas. The Irish Union (1801) added one 
 hundred members, of whom sixty-four represented counties, 
 thirty-five boroughs, and one the University of Dublin 
 (Trinity College). These additions raised the total numbers 
 of the House from 513 to 658, a figure which remained 
 constant until after the Reform Acts of 1884-5. 
 
 To the question of Parliamentary Reform we now turn. 
 The Acts affecting the House of Commons were, in the 
 earlier part of the eighteenth century, predominantly oli- 
 garchical in tendency. Thus, in 17 10 it was provided that 
 county members must possess landed property worth ;£^6oo, 
 and borough members worth ;£3oo a year. Both qualifica- 
 tions were systematically evaded, but were not abolished 
 until 1858. The Septennial Act of 17 16, with which we 
 have already dealt in another connexion, tended to render 
 the House more independent of the constituencies, while 
 the Acts for the exclusion of placemen and pensioners (1705) 
 and Government Contractors (1782) were similarly intended 
 to render it more independent of the Crown. Wholly 
 different was the spirit which animated the movement for 
 Parliamentary Reform. 
 
 That movement derived its impulse from three widely 
 differing quarters : first, from the politico-psychological idea 
 that the electoral franchise was a ' right ', deprived of which 
 the citizen was something less than free ; secondly, from the 
 economic revolution which changed the face both of rural 
 and urban England in the last decades of the eighteenth 
 century; and, thirdly, from the anomalies, becoming each 
 year more grotesque, of the existing electoral system. 
 
 The last consideration operated most powerfully in 
 England. Not since the middle of the fifteenth century 
 
2i8 THE LEGISLATURE 
 
 had there been any general enactment in regard to the 
 franchise, and the change then effected had been of a 
 reactionary character. Since the Revolution of 1688 there 
 had been no change in the distribution of seats. But in 
 the course of the eighteenth century a new England came 
 into being. Population, which had been thin and scattered, 
 not only increased with unprecedented rapidity, but shifted 
 in distribution. The 5,000,000^ people of 1700 more than 
 doubled in the succeeding century and a quarter. 
 
 Towns which in Tudor and Stuart times had been im- 
 portant centres of trade were decaying into hamlets ; villages 
 were growing into cities. The counties north of the Trent, 
 which down to the eighteenth century were largely in a state 
 of barbarism, were becoming the centres of industrial activity. 
 Bradford-on-Avon was yielding pride of place in the woollen 
 trade to Bradford-on-x\ire. Manchester and Liverpool, Leeds 
 and Birmingham were attaining to the pre-eminence which 
 they have never since lost. 
 
 But electoral changes had not kept pace with economic 
 development. Of the 203 Parliamentary boroughs in 1 83 1 no 
 fewer than 115 were contained in the ten maritime counties 
 between the Wash and the Severn and the county of Wilts ; 
 and of the 115 no less than 56 were on the tide-way.^ But 
 this distribution, as Mr. Porritt points out, presents no 
 paradox when the ' social and industrial conditions of Eng- 
 land up to the reign of Elizabeth are borne in mind '.^ Any 
 anomalies which had arisen were of comparatively recent 
 origin. But they were sufficiently glaring. Such places as 
 Old Sarum, Newtown (Isle of Wight), Gatton, Bramber, 
 Bossiney, Beeralston, Hedon, Brackley, and Tregony, some 
 of them hardly distinguishable hamlets, returned two members 
 apiece ; Manchester, Birmingham, Leeds, Sheffield, Wolver- 
 hampton, Halifax, Bolton, and Bradford returned none. 
 
 1 Estimates of population before 1801 are only rough. 
 
 ^ Porritt, Unrefortned House of Commons^ p. 90. ^ op. cit., p. 85. 
 
THE COMMONS SINCE THE REVOLUTION 219 
 
 The vagaries of the electoral franchise were not less 
 bewildering than those of the distribution of seats. The 
 county members were elected on a uniform franchise by the 
 40^. freeholders; but in the boroughs the utmost variety 
 prevailed. In some, known as * Scot and Lot Boroughs \ 
 all ratepayers were entitled to vote; in others only the 
 hereditary 'freemen'; in others only members of the 
 municipal corporation; in others * potwallopers ; while in 
 others the franchise was attached to the ownership or 
 occupation of particular houses known as 'ancient tene- 
 ments '. But it is noticeable that even in boroughs where 
 the franchise was theoretically wide, it was in practice 
 narrow and confined. Thus in Gatton, where it was enjoyed 
 by all freeholders and 'Scot and Lot' inhabitants, there 
 were only seven qualified to exercise it, and in Tavistock 
 only ten. 
 
 It was the restriction of the franchise which threw such 
 enormous power into the hands of the Government, of the 
 great territorial magnates, and of the great ' Nabobs ', and 
 which contributed in large measure to the almost universal 
 corruption prevailing in the borough constituencies. A vote 
 was a possession far too valuable to be parted with except 
 for a high consideration, and it has been estimated that prior 
 to 1832 not more than one-third of the members of the 
 House of Commons represented 'the free choice even of 
 the limited bodies of electors then entrusted with the 
 franchise'. In 1780 it was declared by the Duke of Rich- 
 mond that six thousand electors returned a clear majority of 
 the House of Commons. According to the detailed analysis 
 of Oldfield no fewer than 487 out of the 658 members were 
 virtually nominees. 
 
 .Gross corruption, alike in the constituencies and among 
 the elected or nominated representatives, was the inevitable 
 corollary of such a system. To the sale and purchase of 
 seats the term cannot in fairness be applied. A seat was 
 
2 20 THE LEGISLATURE 
 
 as much a marketable commodity in the eighteenth centuiy 
 as an advowson in the nineteenth, and the legitimacy of the 
 transaction was recognized alike in Pitt's Reform Bill of 
 1785 and in the Act of Union of 1800. In each case the 
 value of a seat was estimated at over ;^7,ooo. Nor was 
 this excessive ; for sums far in excess of this amount were 
 frequently spent on a Parliamentary contest. Thus in 1768 
 the Bentincks and Lowthers spent £40,000 apiece in con- 
 testing the counties of Cumberland and Westmoreland ; 
 while at York in 1807 the joint expenses of Lord Milton and 
 Mr. Lascelles are said to have amounted to the astounding 
 sum of ;^2oo,ooo. 
 
 Various attempts were made to call attention to these 
 anomalies and to find a remedy, but it took close on a 
 century to arouse public opinion to the pitch of action. 
 As far back as 1690 John Locke denounced the gross 
 absurdities of a system under which 'the bare name of 
 a town, of which there remains not so much as the ruins, 
 where scarce so much housing as a sheepcote, or more 
 inhabitants than a shepherd is to be found, send as many 
 representatives to the grand assembly of lawmakers as 
 a whole county numerous in people and powerful in 
 riches '.^ 
 
 In 1745 Sir Francis Dash wood moved an amendment to 
 the Address claiming for the people the right to be freely 
 and fairly represented in Parliament ; but his protest made 
 no impression. After the middle of the century, however, 
 opinion began to ripen rapidly. The persistent attempt 
 of the young king, George III, to rule in and through the 
 House of Commons by systematic corruption opened men's 
 eyes to the significance of the question ; the long struggle 
 with the American Colonies raised awkward questions as to 
 the relation between representation and taxation ; still more 
 awkward questions were raised by the contest between the 
 ^ Locke, Treatises of Government, II, c. xiii, § 157. 
 
THE COMMONS SINCE THE REVOLUTION 221 
 
 House of Commons and the electors of Middlesex over the 
 person of John Wilkes. Chatham proposed in 1766 to 
 amend the anomalies of distribution by giving an additional 
 member to each of the counties, and so counteract the 
 influence of the 'rotten' boroughs. But the scheme was 
 stillborn. Wilkes'5 attempt in 1776 was equally in- 
 effective. 
 
 A distinct stage in the agitation was registered when in 
 1780 a Society for Constitutional Information was founded 
 under the patronage of Cartwright, Home Tooke, and 
 others. The formation of this society may be said to mark 
 the birth of English Radicalism, and its programme antici- 
 pated by half a century the demands of the Chartists. It 
 demanded annual Parliaments, universal suffrage, equal 
 electoral districts, the abolition of the property qualification 
 of Members of Parliament, payment of Members, vote by 
 ballot. These points were embodied in a Bill introduced 
 by the Duke of Richmond in 1780, but naturally found no 
 acceptance. Five years later the younger Pitt introduced 
 (1785) the first Ministerial Reform Bill. He proposed to 
 buy out, at market price, thirty-six of the most rotten 
 boroughs. The owners were to receive ;;^7,ooo per seat 
 or ;^ 1 4,000 per borough, and the Members were to be 
 transferred to the counties and to some of the largest towns. 
 The principle on which it was based was perhaps a mis- 
 chievous one, though it was sanctioned in the Irish Union ; 
 but the defeat of the Bill meant the postponement of 
 Reform for nearly half a century. A second society — The 
 Friends of the People — was formed in 1792 to promote the 
 cause, and repeated Motions were made by Grey, Burdett, 
 and others in Parliament. But the French Revolution and 
 the Napoleonic Wars occupied the attention of the nation 
 to the exclusion of all else for twenty-five years, and not 
 until after the Peace of 181 5 did interest in domestic 
 questions revive. 
 
222 THE LEGISLATURE 
 
 It became clear that the years of repression had added 
 vehemence to the agitation. There were now new forces 
 behind it; among others, the poHtical discontent of the 
 new England— the England of the factory and the forge, 
 the power loom and the steam engine — which had come 
 into being during the last thirty years. From 1 815 to 1830 
 the question was kept steadily to the front in the House 
 of Commons; in 1830 the long Tory domination was 
 broken, and a Whig Ministry under the veteran Lord Grey 
 came into power pledged to a measure of Parliamentary 
 Reform. 
 
 The Bill, which, after many vicissitudes and some amend- 
 ments, passed into law in 1832, was unexpectedly compre- 
 hensive. It contained three parts : a large measure of 
 disfranchisement, a corresponding measure of enfranchise- 
 ment, and a simplification and extension of electoral 
 qualifications. Fifty-five of the smallest boroughs returning 
 two members each and one returning one were totally 
 disfranchised ; thirty boroughs lost a member apiece, and 
 one lost two (out of four). Thus 143 seats were placed at 
 the disposal of the Ministry. Twenty-two of the largest 
 unrepresented boroughs received two members apiece, 
 twenty-one others received one, sixty-five additional members 
 were given to the English counties, eight to Scotland 
 and five to Ireland. The total number of the House 
 was, therefore, unaltered. In the boroughs the franchise 
 was given to ;^io householders, and in counties ;£'io 
 copyholders and long leaseholders, and tenants-at-will rented 
 ^t ;&5^ ^ y^^^ were added to the 40s. freeholders. In all 
 about 455,000 persons were enfranchised. 
 
 Lord John Russell, the real author of the Act, declared 
 that it must be regarded as a final measure. That it was 
 large in scope and wisely conceived is undeniable, but it en- 
 tirely failed to satisfy the working-classes, whose agitation had 
 supplied the fulcrum by which its passage had been secured. 
 
THE COMMONS SINCE THE REVOLUTION 223 
 
 Its effect was, in truth, to make the middle classes politi- 
 cally supreme ; the artisans and labourers were left out in 
 the. cold. They bitterly resented the exclusion, and their 
 disappointment found vent in the Chartist movement of 
 1837-48. The fiscal reforms of Sir Robert Peel (1842-6) 
 knocked the bottom out of the Chartist agitation for the 
 time, but the turn of the artisans came before long. Be- 
 tween 1850 and 1866 a number of attempts were made, 
 most of them by Lord John Russell himself, to carry 
 another Reform Bill; but all, for various reasons, mis- 
 carried, and the next great measure placed upon the Statute- 
 book was the result of Disraeli's dramatic 'leap in the 
 dark' in 1867. That was the famous occasion on which 
 the Tories ' caught the Whigs bathing and ran away with 
 their clothes '. 
 
 The Act of 1867 was, as regards the franchise, a bold 
 and far-reaching measure. The redistribution effected was 
 relatively insignificant. Eleven boroughs were totally and 
 thirty-five were partially disfranchised. The fifty-two seats 
 thus vacated were utilized to enfranchise twelve new boroughs, 
 to give additional members to Manchester and seven other 
 large towns, to subdivide Yorkshire and other populous 
 counties, and to enfranchise London University and two 
 new University constituencies in Scotland. The most 
 interesting feature of this portion of the Bill was the 
 short-lived experiment in 'minority' representation. In 
 towns which received a third member, electors were allowed 
 to give only two votes ; the presupposition being that 
 a minority would be able to secure the third seat. 
 In Manchester it did ; but in Birmingham, where the 
 Liberal majority was both large and highly organized, 
 it did not. As to the franchise, household suffrage with 
 a ;^io lodger franchise was established in the boroughs ; 
 in the counties a ;^i2 occupation qualification was added 
 to the existing ones. The general result was to enfranchise 
 
224 THE LEGISLATURE 
 
 about 1,080,000 citizens, of whom the vast majority were 
 town artisans and labourers. The country labourer was still 
 excluded. His turn came, however, in 1884, when Gladstone 
 carried a Franchise Act, followed by a Redistribution of 
 Seats Act in 1885. 
 
 The former, by assimilating the county to the borough 
 franchise, added some 2,000,000 voters to the electoral 
 register ; the latter went near to establishing the principle 
 of equal electoral districts. Except for twenty-two towns, 
 which retain two members apiece, and certain Universities, 
 the whole of the rest of the country, counties and boroughs 
 alike, was divided up into single-member constituencies. 
 In order to effect this, twelve additional members were 
 added to the House, bringing up the total to 670. 
 
 By the Acts of 1832, 1867, 1884, and 1885 the House 
 of Commons has been completely transformed, and the 
 centre of political gravity has indubitably been shifted from 
 the few to the many ; the principle of democracy has been 
 substituted for that of aristocracy. 
 
 Some are inclined to ask : Is it well ? More evade the 
 question by answering : It is inevitable. Few retain the 
 illusion, once common, that the mere extension of the 
 electoral franchise — the advent of political democracy — is in 
 itself a panacea for all the ills to which modern society 
 is heir. It is now generally perceived that democracy is 
 not an end, but one of several possible means for the 
 attainment of sound administration and social content- 
 ment. It can, however, hardly be doubted that succes- 
 sive doses of political reform averted in England the 
 revolutions to which many of our neighbours were, during 
 the same period, subjected. * France ', said Napoleon III, 
 'knows how to make revolutions, but not how to make 
 reforms.' England flatters herself that she knows how to 
 avert revolution by timely reform. ' Those ', said Canning, 
 ' who oppose improvement because it is innovation may one 
 
THE COMMONS SINCE THE REVOLUTION 225 
 
 iay have to submit to innovation which is not improve- 
 •nent.' Englishmen have never questioned the soundness 
 )f this aphorism. But at the conclusion of a prolonged 
 ;urvey of political evolution one or two reflections obtrude 
 hemselves. Designed to secure the representation of the 
 )eople as a whole, the existing machinery is in parts clumsy 
 md in others inadequate. The Act of 1885 went a long 
 way towards admitting the principle of equal electoral 
 districts, but the principle is most inadequately realized in 
 practice. If the numerical basis be accepted as sound, it 
 must be admitted that there is grotesque over-representation 
 in some parts (notably in Ireland), equally grotesque under- 
 representation in others. Ireland has one member for 
 jevery 44,147 of the population ; England has only one for 
 every 66,971. In the city of Durham there is one mem- 
 ber to 14,935 inhabitants ; in Walthamstow one to 217,030.* 
 The value of a vote, therefore, varies enormously in dif- 
 ferent districts. Again, the system of single-member con- 
 stituencies has notoriously failed in one of its main objects 
 -7-to secure the adequate representation of minorities. A 
 very large majority of members may be (and often is) 
 returned by a minute majority of electors. Such a result 
 is inconsistent with any sane theory of democracy. As 
 Mill said : ' In a really equal democracy every or any 
 section would be represented, not disproportionately, but 
 proportionately. A majority of the electors would always 
 have a majority of the representatives, but a minority of the 
 electors would have a minority of the representatives. Man 
 for man, they would be as fully represented as the majority. 
 Unless they are, there is not equal government, but 
 government of inequality and privilege.' 
 
 No one who desires to base politics on reason, to think 
 out for himself the philosophical foundations upon which 
 political institutions rest, can neglect such a warning from 
 ^ Lowell, i. 201. 
 iiao P 
 
226 THE LEGISLATURE 
 
 such a source. It points clearly to a defect in the actual 
 working of institutions based upon the acceptance of demo- 
 cratic theory. 
 
 Again, it is undeniable that the system of single-member 
 constituencies has tended to intensify rather than to mitigate 
 the excessive rigidity of Party organization, and has rendered 
 it increasingly difficult for men who are in the least degree 
 independent to secure election to the House of Commons. 
 As a means of correcting these imperfections not a few 
 thoughtful persons advocate a system of ' proportional repre- 
 sentation ' based upon the principle of the single transferable 
 vote. But the detailed discussion of such schemes is beyond 
 the scope of this work. 
 
 There is, however, one point to which, since it goes to the 
 root of the whole matter under discussion, brief reference 
 must be made. Is there any ground for the suggestion that 
 the principle of representative government shows signs of 
 weakening, and is indeed doomed to speedy annihilation ? 
 ' Representative institutions ', said Mr. Lecky, * will probably 
 perish by ceasing to be representative.' The prediction 
 may be deemed unduly pessimistic, but the warning of the 
 most philosophical historian of our day should not pass 
 unheeded. Can any reason be alleged for the suggestion ? 
 Democracy, as we have already seen, is not necessarily 
 ' representative '. On the contrary ' representative ' institu- 
 tions are a relatively modern device adopted to meet certain 
 peculiar, perhaps transitory, conditions. Are those condi- 
 tions already ceasing to operate ? It cannot be denied that 
 there is some tendency to substitute the idea of delegation 
 for that of representation. The quickening interest in 
 political questions ; the wider diffusion of education ; the 
 growth of the principle of association ; the increasing ten- 
 dency to government by discussion ; — all these things are : 
 calculated to make the intellectual gulf between the 
 average Member of Parliament and the average constituent 
 
THE COMMONS SINCE THE REVOLUTION 227 
 
 and less wide. The adoption of the principle of class- 
 •epresentation and of payment of members tends obviously 
 n the same direction. The extraordinary development of 
 I cheap Press; the rapid diffusion of political news; the 
 multiplication of means of communication and locomotion, 
 are other factors in the problem of which it is necessary to 
 take account. The sense of distance is almost annihilated. 
 A Bengal Baboo may read a telegraphic summary of a speech 
 in the House of Commons within a few hours of its delivery. 
 The terms of a Viceroy's Minute may be canvassed in every 
 working-men's club in Lancashire as soon as its contents are 
 known to the natives of India. These are obvious and 
 commonplace reflections, but they have a real bearing on 
 the question of 'representative' democracy. It is no 
 exaggeration to say that there is not a working-man in 
 England to-day who is not in as good a position to discuss 
 high questions of State-policy as was the average member 
 of a Stuart Parliament. Whether he is as well equipped for 
 the discussion may be disputable ; the only point on which 
 I insist is, that he has moire command of the materials on 
 which a judgement may be formed. James I rated the 
 House of Commons for presuming to discuss questions of 
 high policy on which they were incompetent to form a 
 judgement. James's admonition had this much of justifica- 
 tion : the Commons had no precise information. The 
 presentation of * Papers ', the interrogation of Ministers, are 
 modern developments of Parliamentary Government. But 
 to-day the average member of the House is at no real 
 advantage as compared with the humblest of his con- 
 stituents. Given equal intelligence, the latter has equal 
 materials for the formation of a political judgement. He 
 may indeed lack experience of administration ; but so may 
 his representative. The men who have the widest know- 
 ledge of affairs are generally to be found in the non-elected 
 Chamber. Moreover, in proportion as discussion of general 
 
 p 2 
 
228 THE LEGISLATURE 
 
 policy has been curtailed in Parliament, it has been trans- 
 ferred to the platform and the Press. The most concen- 
 trated and effective argument even of Members of Parlia- 
 ment is frequently reserved for a letter to the Times^ or an 
 article in a monthly Review. To say that this threatens 
 the existence of representative institutions may savour of 
 exaggeration; but it does suggest considerations of which 
 the student of political development must take account. 
 
 And there is another. No close observer of English 
 politics can doubt that the doctrine of the 'mandate' is 
 gaining ground. Both political Parties — especially when in 
 opposition — increasingly insist upon it. But what does this 
 imply but a weakening of the * representative ' character of 
 Parliament ? No measure is to be passed into law unless it 
 has behind it the direct mandate of the constituencies. 
 Such is, in effect, the argument. But there is infinite dispute 
 as to whether such a mandate has or has not in any given 
 case been issued by the electorate. A * Khaki ' House of 
 Commons was said to have no mandate to pass an Education 
 Bill. A House elected on the issue of Free Trade v. Pro- 
 tection must not grant Home Rule to Ireland — and so 
 forth. The argument is becoming increasingly famihar \ if 
 pushed to a logical conclusion it can have but one issue — 
 the adoption of some species of * Referendum \ 
 
 A Referendum is the negation of the principle of repre- 
 sentative, the assertion of that of direct Democracy. It has 
 many forms, but in essence it is a method for directly ascer- 
 taining the will of the electorate on a particular issue. The 
 extension of the principle in Switzerland has given to the 
 electors not merely the right of veto, but the immensely 
 more important function of legislative initiative. The people 
 have not merely the right of saying ' yes 'or ' no ' to projects 
 of law submitted to them by the Legislature, but actually 
 to submit projects of law to the Legislature. 
 
 The Referendtim is favoured by many persons in this 
 
THE COMMONS SINCE THE .^EVOLUTION 229 
 
 country, primarily as a method of terminating constitutional 
 deadlocks, of deciding questions in dispute between the 
 two Chambers of the Legislature. From that pomt of view 
 it has much to recommend it ; but it is not an expedient to 
 be lightly adopted, nor without adequate recognition of its 
 ultimate possibilities. It is quite unmistakably a step 
 towards direct Democracy in contradistinction -to representa- 
 tive government. As such it may be welcomed or mis- 
 trusted ; but advocates and opponents should alike attempt 
 to realize the tremendous consequences which its adoption 
 might involve. 
 
 
CHAPTER XI 
 
 THE PROCESS OF LEGISLATION: 
 PARLIAMENTARY PROCEDURE 
 
 * The main problems of Parliamentary procedure under existing con- 
 ditions are two: on the one hand, how to find time within limited 
 Parliamentary hours for disposing of the growing mass of business which 
 devolves on the Government, and on the other hand, how to reconcile 
 the legitimate demands of the Government with the legitimate rights of 
 the minority — the dispatch of business with the duties of Parliament as 
 the great inquest of the nation at which all public questions of real 
 importance find opportunity for adequate discussion,' — Sir C. P. Ilbert, 
 Clerk of the House of Commons. 
 
 The preceding chapters have dealt with the structure of 
 Parliament, with the changes in its composition, and the 
 evolution of its functions. Of these the most character- 
 istic, perhaps the most important, is the making of laws ; 
 and it may, therefore, be desirable to add some account of 
 the process by which this is accomplished, and to describe 
 the course of business in Parliament. 
 
 On the meeting of a new Parliament, the first busi- 
 ness of the House of Commons, is the election of a 
 Speaker. The Speaker, whose office dates from the four- 
 teenth century, has always been nominated by the Com- 
 mons and approved by the Crown. Originally the medium 
 of communication between the King and the Commons, he 
 is still the principal officer of the House, the regulator of 
 its procedure, the jealous guardian of its dignity, the presi- 
 dent over its debates. When the House goes into Com- 
 mittee his functions as President devolve upon a Deputy — 
 known as the Chairman of Committees — whose authority is 
 hardly less absolute, though his dignity is markedly inferior. 
 
 The work of the House resolves itself into three main 
 parts : (i) Deliberation : the discussion of matters of public 
 
PARLIAMENTARY PROCEDURE 231 
 
 importance ; (2) Critical : the imposition of a check upon 
 the Executive Government, by interpellation and criticism ; 
 and (3) Legislation : the making of new and the amending 
 of existing statutes. 
 
 The last may be regarded as the main business of Parlia- 
 ment, and with it this chapter will be primarily concerned. 
 As a matter of fact, the performance of the deliberative and 
 critical functions (apart from the regular interpellation of 
 Ministers) is largely incidental to financial legislation. 
 
 The Legislative work of Parliament is threefold : (i) Or- 
 dinary Legislation or Public Bills ; (2) Financial Bills ; (3) 
 Private Bills; Bills affecting particular localities or interests. 
 
 Any member may, if he gets the chance, initiate legisla- 
 tion. Every Session a large number of Bills are intro- 
 duced by ' private ' members, i. e. by members who hold no 
 ministerial office. It is increasingly rare for Bills thus 
 initiated to come to legislative fruition, but the discussion 
 of such projects is far from being invariably wastedy/Occa- 
 sionally the Government adopts as its own the project 
 formulated by a private member ; sometimes it grants him 
 exceptional facilities for passing it into law ; still more often 
 a private member's Bill stifled in infancy in one Session, 
 perhaps in many Sessions, ultimately finds an honoured 
 place in the Ministerial programme^ It would probably be 
 within the mark to say, that oPihe important legislative 
 enactments of the nineteenth century half made their debut 
 in the House of Commons under the aegis of a private 
 member. But the tendency is for the Government more 
 and more to absorb the time of the House and to demand 
 priority for their own legislative proposals. With the in- 
 creasing complexity of public business, the ever-widening 
 responsibilities of the House of Commons, and the growing 
 demand for legislation on every conceivable topic, this ten- 
 dency is irresistible ; but no one can doubt that the extinc- 
 tion of the legislative activity of the private member would 
 
232 THE PROCESS OF LEGISLATION 
 
 result in a deterioration in the quality, if not the quantity, 
 of Parliamentary enactments. People who hold that the 
 efficiency of the Parliamentary machine is to be judged by 
 the number of ' first-class ' measures placed upon the statute- 
 book are naturally impatient of the * waste of time ' involved 
 in the discussion of projects which can rarely hope to ripen 
 into immediate fruition. But I suggest that this view is in 
 reality short-sighted and erroneous. Of a given Session or 
 even a given Parliament it may be true ; the chance of the 
 ballot may operate in favour of the impracticable crank; 
 but a longer view reveals the fact that much of the best 
 legislative work of successive Parliaments had its origin in 
 the 'fads' of private members. From the earlier Factory 
 Acts down to Imperial Penny Postage the annals of Parlia- 
 ment teem with illustrations of this truth. 
 
 As regards procedure there is no distinction between a 
 Government Bill and a Private Member's Bill. But sharply 
 to be distinguished from both are Private Bills^ and to avoid 
 confusion it may be well to deal with the latter before 
 analysing procedure on the former. 
 
 A Private Bill is one which is promoted in the interest 
 of some particular locality, persons, or collection of persons. 
 Bills to permit the construction of railways, harbours, tram- 
 ways, for drainage schemes or the supply of water, gas, 
 or electricity, afford the commonest illustrations. Such 
 Bills originate in Petitions, which must be sent in before 
 a given date (about two months before the commencement 
 of a normal Session), and are then submitted to a quasi- 
 judicial examination at the hands of officials of the House 
 known as Examiners of Petitions for Private Bills. These 
 examiners report that the very stringent regulations applic- 
 able to such Bills have or have not been complied with. 
 If everything is in order ^ the Bill is introduced into one 
 
 * The House has power to condone the omission to comply with 
 Standing Orders if it sees fit. 
 
PARLIAMENTARY PROCEDURE 233 
 
 or other House— Private Bills being distributed, to facilitate 
 business, fairly evenly between the Houses. The ^ presenta- 
 tion ' of a Private Bill is equivalent to the first reading of 
 a Public Bill. On second reading a debate on the general 
 principle may take place. If the Bill survives second 
 reading it is referred to a Private Bill Committee, consisting 
 of four members and a referee not interested in the Bill. 
 The Committee stage of a Private Bill is in reality a judicial 
 proceeding conducted with the aid of Counsel and sworn 
 witnesses. If the preamble of the Bill is 'proved', the 
 Committee proceeds to examine its clauses in detail, and 
 these having been approved, the Bill is reported to the House, 
 and goes on its further way like an ordinary Public Bill. It 
 should be added that the expense of obtaining a Private 
 Bill is heavy, and that the Exchequer makes a considerable 
 profit out of the fees charged in connexion therewith. 
 
 Partly to avoid this expense, and partly to secure the 
 goodwill of the Department concerned — generally the Local 
 Government Board or the Board of Trade — it has become 
 increasingly common for the promoters of the various 
 undertakings which require Parliamentary sanction to pro- 
 ceed by means of Provisional Order. A Provisional Order 
 is, in effect, an Order issued in pursuance of a statute 
 after searching investigation by a Government Department. 
 These Orders have to be sanctioned by Parliament, before 
 which they are formally laid by the Department which 
 issues them ; but they are rarely opposed and still more 
 rarely rejected. Mr. Lowell states that of the 2,520 Pro- 
 visional Orders issued by the Local Government Board 
 from 1872 to 1902 only twenty-three were rejected by Parlia- 
 ment. This is at once a proof of the confidence reposed 
 by Parliament in the great administrative departments and 
 also an illustration of the increasingly marked tendency to 
 legislate by delegation.^ The whole machinery of Private 
 * Lowell, Government of England^ i. 386. 
 
234 THE PROCESS OF LEGISLATION 
 
 Bill legislation has been subject to much criticism. That 
 it is both clumsy and expensive is undeniable, but on the 
 other hand it has earned the warm encomium of a publicist 
 who is at once exceptionally impartial and exceptionally 
 well informed. 'The curse of most representative bodies 
 at the present day ', writes Mr. Lowell, ' is the tendency of 
 the members to urge the interests of their localities or their 
 constituents. It is this more than anything else which 
 has brought legislatures into discredit and has made them 
 appear to be concerned with a tangled skein of private 
 interests rather than with the public welfare . . . Now the 
 very essence of the English system lies in the fact that it 
 tends to remove private and local Bills from the general 
 field of political discussion and thus helps to rivet the 
 attention of Parliament upon public matters. A Ministry 
 stands or falls upon its general legislative and administrative 
 record, and not because it has offended one member by 
 opposing the demands of a powerful company and another 
 by ignoring the desires of a borough council. Such a con- 
 dition would not be possible unless Parliament was willing 
 to leave private legislation, in the main, to small impartial 
 Committees and abide by their judgement.' ^ 
 
 We may now pass on to explain the procedure of Parlia- 
 ment in the case of Public Bills. These may again be sub- 
 divided into (i) ordinary legislation ; and (2) Bills of Supply. 
 
 Generally speaking, every Public Bill, whether originating 
 in the Upper or Lower House, must in each House pass 
 through five stages : first reading, second reading, Com- 
 mittee, Report, and third reading. 
 
 Except in Bills of first-rate importance, the first stage 
 is as a rule purely formal and in certain cases it is omitted 
 altogether. A member, official or private, moves for leave 
 to bring in a Bill ; leave is given, and the Bill is then 
 brought in and printed. The real debate on the principle 
 * op. cit. i. 391-2. 
 
PARLIAMENTARY PROCEDURE 235 
 
 of the measure takes place on the motion for the second 
 reading. On a measure of the first magnitude, such as the 
 Home Rule Bills of 1886 and 1893, this stage may be pro- 
 longed for days or even for weeks. If the Bill survive this 
 stage it is * committed '. Under the Standing Orders of 1907 
 all Bills, with the exceptions noted below, are referred to 
 one of four Standing Committees. These committees, one 
 of which has special charge of Scotch and another of Welsh 
 business, consist of sixty to eighty members who in party 
 complexion reflect faithfully the composition of the House 
 as a whole. But notwithstanding this fact divisions in 
 these Standing or Grand Committees are apt to follow party 
 lines much less closely than divisions in the House. All 
 Money Bills, and Bills for confirming Provisional Orders, 
 and any other Bill in regard to which the House makes a 
 special order, are sent not to a Standing Committee but to 
 a Committee of the whole House. This is the opportunity 
 for discussion of the clauses in detail, and for amendments 
 thereon. If the Bill is amended at this stage, further 
 detailed discussion and amendment may ensue when it is 
 * Reported ' by the Committee to the House. After * Re- 
 port ' comes the third reading, which is a final discussion 
 on principle, and on principle illustrated by details which 
 may or may not have formed part of the Bill when sub- 
 mitted for second reading. When no amendments have been 
 made in Committee of the whole House, the Report stage is 
 omitted, but never when the Bill has been * sent upstairs ', 
 i.e. to a Standing Committee. In certain cases there is a 
 further intermediate stage when a Bill, having passed a second 
 reading, is, before submission to Grand Committee or Com- 
 mittee of the whole House, sent to a Select Committee.^ 
 
 The Bill having safely passed through all its stages in 
 the originating House has to go through precisely the same 
 
 ' A Select Committee is really a Committee of inquiry, and takes 
 evidence. 
 
236 THE PROCESS OF LEGISLATION 
 
 stages in the other House. Should the other House amend 
 it,^ the amendments have to be reconsidered in the origi- 
 nating House. If they are agreed to^ the Bill is sent up 
 for the Royal assent ; if not, negotiations ensue and one or 
 other House has to give way. If both stand firm the Bill 
 must be dropped. 
 
 In regard to general legislation two tendencies are ob- 
 servable. In the first place, there appears to be an in- 
 creasing reluctance to utilize the House of Lords for 
 purposes of initiation ; nor, curiously enough, is the reluct- 
 ance confined to the party which is hostile to the Second 
 Chamber. Thirty years ago many important measures of 
 reform originated in the House of Lords, and in view of 
 the congestion of business in the Commons — and in view 
 of the business-like way in which, by general consent, the 
 Lords do their work — it is difficult to understand why there 
 is not a more equitable distribution of legislative work 
 between the two Houses. In Private Bill legislation there 
 is ; and to an impartial observer there appears to be no 
 reason why the Lords should not be equally trusted with 
 the initial stages of Public Bills. 
 
 Another marked tendency is the increasing autocracy of 
 the Cabinet in regard to legislation. Virtually, a Bill has 
 small chance of passing into law unless it is either promoted 
 or adopted by the Government of the day. To this ten- 
 dency I have already referred ; but there is another symptom 
 of the same malady. To an increasing extent the House i 
 of Commons is being deprived of its historic rights off 
 criticism and amendment. Mr. Lowell brings this point 
 out clearly by tabular demonstration. He shows that 
 whereas in 1851, nine amendments in Government Bills were 
 carried against the Government, seyen in 1854 and seven in 
 1856; not a single such amendment was carried from 
 1874 to 1878, nor in 1880-1, 1889-90, 1897-1900. In fact, 
 
 * Procedure in the Lords is much more elastic than in the Commons : 
 e. g. amendments may be introduced at any stage. 
 
PARLIAMENTARY PROCEDURE 237 
 
 from 1874 to 1906 the aggregate number of such amendments 
 was only twenty-three — eloquent testimony to the increased 
 subserviency of the House of Commons to the Cabinet.* 
 The same careful observer shows also how rapidly the 
 House is depriving itself, by alteration of Standing Orders, 
 and in other ways, of the opportunities for criticizing both 
 the proposed legislation of the Government and its ad- 
 ministrative action : * the House of Commons is finding 
 more and more difificulty in passing any effective vote 
 except a vote of censure. It tends to lose all power except 
 the power to criticize and the power to sentence to death.' ^ 
 Nor must it be forgotten that a sentence of death on 
 the Ministry virtually involves the suicide of the judges, 
 and it is expecting too much of human nature to suppose 
 that members who have spent infinite pains and no little 
 money to get to Westminster will lightly give a vote which 
 must mean for themselves further pains and expenditure 
 and may mean permanent banishment. 
 
 It remains to notice procedure in regard to Money Bills. 
 The granting of supplies to the Crown and the control of 
 expenditure are, after all, the primary functions of the 
 House of Commons, and it is important to understand 
 exactly how they are performed. 
 
 During the autumn the several Departments of Govern- 
 ment — the War Office, the Admiralty, the Board of Educa- 
 tion, and the rest — calculate how much money they will 
 want for the ensuing year, or, in technical language, * frame 
 their estimates.' These estimates are submitted to and 
 criticized in detail by the Treasury, and having been passed 
 by the Treasury are then approved by the Cabinet. Before 
 March 31, when the financial year ends, they must be 
 submitted by the responsible Ministers to the House of 
 Commons. For the purpose of considering these estimates 
 
 • Perhaps this phenomenon may be otherwise explained. Govern- 
 ments are increasingly sensitive to defeat, and therefore are more apt to 
 accepi amendments both of principle and of detail. 
 
 2 op. cit. i. 355. 
 
238 THE PROCESS OF LEGISLATION 
 
 the House resolves itself into Committee of Supply — a 
 Committee of the whole House which is differentiated from 
 ordinary sessions only by greater elasticity in the rules of 
 debate and by the fact that the Chairman of Committees 
 presides in place of the Speaker. Committee of Supply — 
 or rather the motion for going into Committee used to afford 
 the supreme opportunity for criticism of the Executive ; but 
 by alterations in Standing Orders these opportunities are now 
 seriously curtailed. Not only are the opportunities reduced 
 in number but criticism may no longer range from China to 
 Peru ; it must be relevant to the vote about to be discussed/ 
 Another rule much more ancient and of far wider signi- 
 ficance must here be mentioned. Only the Crown through 
 its Ministers can propose expenditure. Unofficial members 
 may move to reduce a vote, but not to increase one ; least 
 of all to initiate one. This rule, originally and still techni- 
 cally nothing more than a Standing Order of the House of 
 Commons, has now been accepted as a Constitutional maxim 
 of almost sacred validity. It is generally regarded as the 
 last effective barrier that remains against the indulgence of 
 philanthropic benevolence at other people's expense. It 
 also relieves pressure upon individual members at the hands 
 of individual constituents. It is always easier for a repre- 
 sentative body to spend than to resist expenditure. This 
 salutary rule minimizes, though of course it does not remove, 
 the danger in the case of the greatest of representative 
 assemblies. A Minister must as a rule be convinced of the 
 need for expenditure, not in the heated atmosphere of the 
 House, but in the cool and critical seclusion of his Depart- 
 ment. A Minister of the Crown may indeed be induced 
 by the indirect pressure of debate to substitute a larger for 
 a smaller sum in the Estimates : but it must be proposed 
 on his sole responsibility. A particular group may desire, 
 for example, to double the grant to the unemployed ; the 
 
 * Until 1882 any question might be raised on the motion that * the 
 Speaker leave the chair ', i. e. that the House should go into Committee. 
 
PARLIAMENTARY PROCEDURE 239 
 
 Parliamentar}' method for doing this would probably be to 
 move a reduction in the salary of the responsible Minister. 
 The protest might eventually prove effective; but the 
 Standing Order at least provides a guarantee against im- 
 pulsive generosity due to gusts of collective philanthropy. 
 
 The Constitutional theory which really underlies the 
 whole of this procedure has never been more lucidly stated 
 than by Erskine May : 
 
 ' The Crown demands money, the Commons grant it, and 
 the Lords assent to the grant ; 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.' 
 
 To resume the chronological order. Resolutions of Supply 
 having been carried in Committee have subsequently to be 
 reported to the House and embodied in a Bill or Bills 
 authorizing the expenditure on the specified objects ap- 
 proved by Parliament. These Bills or Acts of Appropria- 
 tion are for reasons of financial convenience passed at 
 intervals during the Session, but at the close of the Session 
 they are all collected and consolidated into one grand 
 Appropriation Act. This procedure, it must be observed, 
 applies only to what are technically known as the * supply * 
 services — the Army, Navy, and Civil Service. Something 
 less than half the expenditure of the Crown is regulated not 
 by annual but by permanent Acts of Parliament. The Civil 
 List of the Crown itself; the salaries of the Judges ; 
 pensions ; the payment of interest on the National Debt, &c., 
 are charged by permanent Acts upon the Consolidated Fund 
 (of which more hereafter) and do not, therefore, come under 
 the annual review of Parliament. 
 
 The same is true of the sources of revenue. Much the 
 greater part of the revenue is raised under the sanction of 
 
240 THE PROCESS OF LEGISLATION 
 
 permanent Acts. Such Acts may, of course, like other Acts, 
 be repealed or amended at the discretion of Parliament; 
 and frequently are. But they do not call for annual re- 
 enactment. Every year, however, the whole financial system 
 does in effect pass under the review of the House of Com- 
 mons, when it proceeds to discuss how the supply voted to 
 the Crown is to be * made good ' — in other words, how the 
 money is to be found to meet the authorized expenditure. 
 
 For the performance of this important function the House 
 resolves itself into a Committee of Ways and Means. It is to 
 this Committee that the Chancellor of the Exchequer pre- 
 sents his Budget or statement on the national accounts. This 
 statement, which is due as soon as may be after the close of 
 the financial year (March 31), falls into three parts ; a review 
 of revenue and expenditure during the year that is ended ; 
 a provisional balance-sheet for the year to come, and pro- 
 posals for remission of existing taxes or imposition of new 
 ones. Although part of the revenue and part of the expendi- 
 ture is ' permanent ', a very large balance of both depends on 
 annual votes, and each financial year is absolutely self-con- 
 tained. It is the business of the guardian of the national 
 purse to look twelve months ahead, but (in a technical 
 sense) no further. This rule is enforced by the provision 
 that money voted to a Department but unspent during the 
 current year cannot legally be * carried forward '. All such 
 casual balances go automatically to the reduction of debt. 
 This rule may, despite the sleepless vigilance of the Treasury, 
 occasionally operate in the direction of petty extravagance 
 in the closing weeks of a financial year. No Department 
 likes to confess that it has asked for more than it needs. 
 But appropriation is exceedingly minute ; money voted to 
 the Admiralty for men cannot be spent on guns ; nor may 
 the War Office spend on horses what it has received for 
 stationery.* Petty extravagance, therefore, is more than 
 
 1 Temporarily a vote taken for one branch of the Service may be 
 spent on any other ; but ultimately the appropriation must be strictly 
 observed. 
 
PARLIAMENTARY PROCEDURE 241 
 
 counterbalanced by large economy, and still more by the 
 supreme advantage of knowing each year precisely how we 
 stand financially. There are critics who maintain that the 
 safeguards are illusory ; and it is not given to every layman 
 to be able to unravel the tangled skein of a balance sheet ; 
 but at least it may be said that, thanks to the co-operation 
 of amateur and expert, the national balance sheet is more 
 intelligible than most. Moreover, though it is true that in 
 all criticism of administrative acts the permanent official is 
 at an immense advantage, it must be remembered that the 
 official Head of the Treasury is no more permanent than 
 his critics, and that though he can command sources of 
 information denied to them, he enjoys in this respect only a 
 temporary advantage. To-morrow the tables may be turned ; 
 the critic may preside at the Treasury Board, the Chancellor 
 of the Exchequer may be playing the role of critic. 
 
 The national Balance Sheet or Budget may be best 
 understood by a concrete example. 
 
 The proposed Budget for 1910-n is as follows : — 
 Estimated Expenditure. 
 
 Consolidated Fund Services .... 36,945,000 
 
 Army 37,760,000 
 
 Navy 40,604,000 
 
 Civil Service 42,686,000 
 
 Customs and Excise 4,034,000 
 
 Post Office 19,828,000 
 
 ^^171,857,000 
 
 Estimated Revenue. 
 
 Customs 32,095,000 
 
 Excise 34,370,000 
 
 Estate and Death Duties 35,650,000 
 
 Stamps . 9,600,000 
 
 Land Tax and House Duty .... 2,690,000 
 
 Income and Property tax 37,550,ooo 
 
 Land Value Duties 600,000 
 
 Non-tax Revenue (including Post-Office receipts) 37,290,000 
 
 -(^169,745,000 
 
 1120 Q 
 
242 THE PROCESS OF LEGISLATION 
 
 Under normal circumstances this would show a deficiency 
 in revenue of over ;^2, 000,000; but owing to abnormal 
 causes there were arrears of revenue due from 1909-10 
 more than sufficient to cover the adverse balance. It is 
 perhaps desirable to add that of the ^^36,000,000 due for 
 Consolidated Fund Services some ;£25, 000,000 is required 
 for provision of interest and sinking fund for the National 
 Debt f of the ;!{,"42,ooo,ooo due for the Civil Service, Educa- 
 tion absorbs about .^14,000,000 and Old Age Pensions over 
 ;^9,ooo,ooo. On the Revenue side, liquor and licences pro- 
 vide about ;^4o,ooo,ooo (customs and excise), and tobacco 
 about ;^ 1 4,000,000. Were the people to suddenly give up 
 smoking and drinking, the Exchequer, as things are at 1 
 present, would be bankrupt. 
 
 To return to the explanation of Procedure. 
 ' In Committee of Supply the House determines the amount ; 
 to be spent on each particular object ; in Cotnmittee of Ways 
 and Means it decides how the money is to be raised. In 
 both cases the ' resolutions ' arrived at in Committee have 
 to be ' reported ' to the Houses and to be embodied in Bills 
 which, with the assent of the Lords and the Crown, become 
 Acts. 
 
 But how can the House of Commons be sure that its 
 orders have been strictly carried out ? This question carries 
 us from the region of the Legislature to that of the Execu- 
 tive ; but it may be briefly answered here in order to com- 
 plete our review of the subject. 
 
 The principle of * appropriation ' was successfully asserted 
 by the Commons under Charles II, but the machinery was 
 inadequate. It was improved at the Revolution, when the 
 produce of specific taxes was assigned to meet specific charges. 
 But this method has obvious disadvantages. The modern 
 system dates from the time of one of the greatest of our 
 financiers — the younger Pitt. In 1787 Pitt established the 
 Consolidated Fund. Into this vast financial reservoir flows 
 
PARLIAMENTARY PROCEDURE 243 
 
 * every stream of the public revenue', and from it issues 
 
 * the supply for every public service '.^ The pivot upon 
 which the whole working of the financial machinery now 
 depends is a functionary known as the Controller and 
 Auditor General. He is a non-political official created by 
 the Exchequer and Audit Act of 1866 ; his independence is 
 secured by the fact that his salary is charged upon the con- 
 solidated fund, and that he is not permitted to sit in Parlia- 
 ment. All money collected by the fiscal officials — Inland 
 Revenue, Post Office, and Woods and Forest Commissioners 
 — is paid into the Exchequer account at the Bank of England 
 and the Bank of Ireland. Not a penny can be withdrawn from 
 that account without the sanction of this potent individual, 
 the Controller and Auditor General, who presents annually 
 to Parliament an audited account together with a Report in 
 which it is shown that the sums voted by the House of 
 Commons to the several enumerated purposes have been 
 expended strictly upon them and not otherwise. Before he 
 can do so he must of course satisfy himself that the pay- 
 ments which he has authorized were in accord with the 
 
 ' intentions of Parliament, and that they have actually been 
 spent upon the objects to which they were appropriated. 
 
 With his Report, which is examined in detail by the 
 
 Public Accounts Committee who report on it to the House, 
 
 the circuit of financial security may be said to be complete. 
 
 Apart from financial control and legislation there is one 
 
 other function of Parliament to which I have referred and 
 
 as to the performance of which some words must be added. 
 
 I The House of Commons is, in the clumsy but expressive 
 
 phrase of Sir John Seeley, a ' Government-making organ '. 
 
 To be accurate, the House of Commons has no power to 
 
 * make Governments ', but it has virtual powers of dismissal. 
 
 These may be exercised in one of three ways : (i) the House 
 
 may refuse supplies to the Crown, or (2) may defeat a measure 
 
 ^ 13th Report of Commissioners of Public Accounts, p. 60. 
 
 Q a 
 
244 THE PROCESS OF LEGISLATION 
 
 on which the Government has expHcitly or implicitly staked 
 its existence, or (3) it may pass a direct vote of want of 
 confidence. No Ministry could, under the Constitutional 
 conventions which now prevail, retain office after such a 
 vote, unless it had reason to believe that the House of 
 Commons did not represent the opinion of the electorate. 
 In this case it might appeal from the House to the con- 
 stituencies, and act in accordance with the verdict of the 
 latter. But it is to be observed that such an appeal could 
 take place only with the concurrence of the Sovereign, who 
 might prefer to insist upon the resignation of his Ministers, 
 and the transference of office to other Ministers. But the 
 Sovereign's prerogative is in turn ultimately limited by the will 
 of the House of Commons. He could insist upon the resigna- 
 tion of one Ministry, only if the House was prepared to extend 
 its confidence to another ; or if, failing this, he was pre- 
 pared to dissolve Parliament and appeal to the constituen- 
 cies on behalf of his new Ministry. 
 
 Such is the nice equipoise, the delicate balance of the 
 forces which control the working of that complex organism 
 — the English Constitution. 
 
CHAPTER XII 
 LOCAL GOVERNMENT : (i) RURAL 
 
 * England alone among the nations of the earth has maintained for 
 centuries a constitutional policy ; and her liberties may be ascribed above 
 all things to her free local institutions. Since the days of their Saxon 
 ancestors, her sons have learned at their own gates the duties and re- 
 sponsibilities of citizens.'— Sir T. Erskine May. 
 
 'Local assemblies of citizens constitute the strength of free nations. 
 Town meetings are to liberty what primary schools are to science ; they 
 bring it within the people's reach ; they teach men how to use and how 
 to enjoy it. A nation may establish a system of free government, but 
 without the spirit of municipal institutions it cannot have the spirit of 
 liberty.'— TocQUEViLLE. 
 
 * Year by year the subordinate government of England is becoming 
 more and more important. The new movement set in with the Reform 
 Bill of 1832; it has gone far already and assuredly it will go farther. 
 We are becoming a much governed nation, governed by all manner of 
 councils, boards and officers, central and local, high and low, exercising 
 the powers which have been committed to them by modern statutes.' — 
 F. W. Maitland. 
 
 * Whatever " Educative " value is rightly attributed to representative 
 government largely depends on the development of local institutions.' — 
 Henry Sidgwick. 
 
 The nineteenth century witnessed, as we have seen, a 
 far-reaching revolution in the constitution of the central 
 legislature. It witnessed a revolution hardly less striking 
 in the structure and machinery of local administration. 
 When the century opened, and indeed, throughout more 
 than three-quarters of its course, the squirearchy, officially 
 represented by the County Magistrates, were securely 
 established in the citadel of Local Government. From their 
 dominating position in Parliament they were driven, theoreti- 
 cally, by the Act of 1832, practically by that of 1867. But 
 
246 LOCAL GOVERNMENT 
 
 in County Government they continued to bear sway 
 until 1888. 
 
 The Corporate Municipalities at the opening of the last 
 century, were governed by Corporations which for the last 
 four hundred years had been steadily growing more oligar- 
 chical in character. These local urban oligarchies sur- 
 vived the overthrow of the great central oligarchy by only 
 three years, one of the first-fruits of the reformed Parlia- 
 ment being the Municipal Reform Act of 1835. 
 
 I propose, in the present chapter, to describe in outline 
 the existing machinery of Local Government. But if it be 
 true of the Central Government that the roots of the 
 present lie deep in the past, and that consequently analysis 
 of existing conditions is unintelligible without some historical 
 retrospect, not less but even more is this true of Local 
 Government. 
 
 The towns, whatever their origin (a highly debatable 
 question) have almost from the first been regarded as 
 something anomalous and exceptional. But, apart from 
 them, there have, from time immemorial, been three main 
 areas of local administration : the Shire or County, the 
 primary unit of the township (or Parish), and the inter- 
 mediate area of the Hundred — represented later by the 
 Union, and now in some sort by the District. 
 
 The history of Local Government divides into four great 
 periods : (i) the first extends from the earliest times down to 
 the Norman Conquest ; this may be distinguished as the 
 period of popular Local Government ; (ii) the second, from 
 the Norman Conquest to the fourteenth century, a period 
 of strong and centralizing monarchy ; (iii) the third, from 
 the fourteenth century to 1888 — an aristocratic period, and 
 (iv) the fourth, from 1888 onwards, a period increasingly 
 democratic in tendency. 
 
 The Shire, or County, as the most important area of 
 Local Government, must engage our attention first. From 
 
(i) RURAL 247 
 
 the earliest times to the present one officer has maintained 
 in the Shire his position, though the position has implied 
 at different times very varying degrees of authority. That 
 officer is the Shire-reeve or Sheriff. From Saxon days to 
 those of the later Plantagenets the Sheriff was the pivot of 
 county administration ; in the fourteenth century he was 
 superseded, for most purposes, by the Justices of the Peace, 
 as they in turn were, for many purposes, superseded in 
 1888 by elected County Councils. But the office still 
 survives all vicissitudes. 
 
 The earliest Shires, such as Kent, Sussex, Middlesex, 
 Essex, Norfolk, Suffolk, Dorset, Somerset, represent the 
 original settlement of Teutonic tribes, and in some cases 
 original heptarchic kingdoms. Thus Kent represents the 
 original kingdom of the Jutes, Sussex of the South Saxons, 
 and so forth. 
 
 The next batch of Shires represent artificial delimi- 
 tation rendered possible by the West-Saxon re-conquest 
 of the Danelaw. In these cases the Shire takes its name 
 from the principal or * County ' town, as in Oxfordshire, 
 Hertfordshire, Warwickshire, Worcestershire, Lincolnshire, 
 Nottinghamshire, Northamptonshire, and so on. A few 
 Shires such as Cumberland and Lancashire represent even 
 later absorptions or delimitations. Latest of all were the 
 counties of Wales. 
 
 In every Shire there was a Court consisting partly of elected 
 representatives from the subdivisions of the Hundred and 
 Township, partly of nominated members. This Court or 
 Moot represented the folkmoot or Witan of the original 
 Teutonic kingdoms — the Civitas described in the Ger- 
 mania of Tacitus. Its roots therefore lay in the most 
 distant past. It met twice a year for the dispatch of 
 business, legislative, administrative, and judicial. Its 
 officers were the Ealdorman (afterwards Earl), the Bishop, 
 and the Sheriff. The first was a national officer appointed 
 
248 LOCAL GOVERNMENT 
 
 by the King and the National Council (Witenagemot), but he 
 originally represented the old royal houses in the Shires 
 which had been independent kingdoms. With the Ealdor- 
 man sat the Bishop, representing an authority not yet 
 differentiated from that of the State, while the Sheriff was 
 the special representative of the King or Central Govern- 
 ment, responsible to the King for the local administration 
 of justice and for the collection of all financial dues. 
 
 After the Norman Conquest the importance of this 
 functionary was rapidly enhanced. The Norman and 
 Angevin kings, quick to adapt existing institutions to their 
 own purposes, saw in the Sheriff and the popular Court of the 
 Shire valuable instruments for holding in check the disrup- 
 tive tendencies of the feudal system. To this end the Sheriff 
 and his Court were sedulously encouraged and maintained. 
 
 The survival of popular local institutions is, indeed, one 
 of the many benefits which England derived from the 
 exceptionally early development of the royal power and 
 from the creation of a central administration exceptionally 
 strong and efficient. Had the Norman Conquest imported 
 into England the feudalism of France, the free local 
 institutions which were so characteristic a feature of the 
 Anglo-Saxon polity must inevitably have perished. A 
 monarchy, powerful and in some respects highly centralized, 
 found its most trustworthy support against the barons in the 
 local institutions and officials inherited from pre-Conquest 
 days. The advantages were mutual. The Crown relied 
 upon the people in the contest against feudal independence ; 
 the people found in the Crown their most efficient protector 
 against local tyranny. 
 
 When, under Henry I and still more under Henry II, 
 the administrative and judicial system was reorganized, 
 when regular circuits of officers of the central Curia were 
 instituted, it was the Sheriff who had to prepare for their 
 coming, and it was in the Court of the Shire that their 
 
(i) RURAL 249 
 
 duties, fiscal and judicial, were performed. It is to-day the 
 chief surviving function of the Sheriff to prepare for the 
 coming of the King's Judges of Assize, to attend them 
 in Court, and to execute the sentences they pronounce. 
 
 Towards the end of the thirteenth century, still more 
 rapidly in the fourteenth, the power of the Sheriff declines. 
 In the Justice of the Central Court {Curia Regis\ with 
 his regular circuits, the Sheriff had long had a serious rival. 
 The development of feudal jurisdiction in the manorial 
 courts had already impaired his authority locally. But the 
 most serious blows came from the development of central 
 representation in Parliament, and the evolution of a new 
 set of local functionaries, originally designated Guardians 
 of the Peace {Custodes Fads), and from 1360, Justices. 
 The rise of the House of Commons diminished the lustre 
 of the local moots of the Shire, but at the same time, as we 
 have seen, gave them a new and important function. The 
 Sheriff became the returning officer for knights and 
 burgesses and in his Court they were elected. This duty, 
 as regards county elections, the Sheriff still retains. 
 
 From the mediaeval Shire we may pass to the Hundred. 
 What was the origin of the Hundred ? That is a question 
 which would involve us in a prolonged antiquarian inquiry 
 from which we should emerge without any certainty. The 
 Hundred may have originated in the settlement of a 
 hundred warriors of the Teutonic host ; or perhaps we must 
 regard it as a unit for the assessment of taxation ; or possibly 
 as an artificial subdivision of the Shire selected primarily for 
 police administration by one of the later Saxon kings. We 
 cannot positively say. But certain points are clear. The 
 Hundred, if a territorial subdivision, was not of uniform 
 size ; there were sixty-three Hundreds in Kent, sixty-four in 
 Sussex, but only five in Leicestershire. If the Hundred was 
 the area originally occupied by one hundred warriors this 
 discrepancy would be accounted for. Further, we know that 
 
250 LOCAL GOVERNMENT 
 
 in later Saxon days the Hundred moot or Court was the 
 ordinary resort of the men of the Hundred for the adminis- 
 tration of justice, civil and criminal ; further, that ' all the 
 suitors were the judges', though they acted through a jury 
 of twelve. The Court met monthly, and twice in the year 
 the Sheriff attended and held his 'tour' to see that the poHce 
 regulations of the district were being faithfully observed. 
 After the Norman Conquest, however, the importance of 
 the Hundred Court somewhat rapidly diminished. Its 
 decay was due partly to the development of private 
 jurisdictions in the manorial courts of the feudal lords, 
 and later to the increasing ubiquity of the King's judges 
 and the growth of the Royal Courts. 
 
 But in the judicial and administrative system of the 
 Angevin kings the Hundred had still an important place. 
 It was still the unit of the police system ; of the military 
 system for the arming of the people in the national miUtia ; 
 it was still responsible for the pursuit of malefactors, and for 
 presenting, through its grand jury of twelve lawful men, the 
 criminals of the district for trial before the King's Judges of 
 Assize. Of this last function there are still lingering traces. 
 Thus Manchester for assize purpose is still in the ' Hundred ' 
 of Salford ; Liverpool in that of West Derby ; Birmingham 
 in that of Hemlingford. Down to 1 886 the Hundred was 
 still responsible for damages due to riots. But long 
 before that the Hundred and its Court had for all practical 
 purposes ceased to exist, and to-day the interest which 
 attaches to it is purely antiquarian. 
 
 It is far otherwise with the Township— the Vill or Tun \ 
 the unit of local self-government from time immemorial. 
 Into Townships the whole of England was exhaustively 
 divided, and the Township was, as Maitland points out, 
 selected by the State as the ' unit responsible for good 
 
 * This is not the place for the discussion of the highly technical ques- 
 tion as to the precise character of the Vill. 
 
(i) RURAL 251 
 
 order '. As a unit for fiscal purposes the Township, as we 
 have seen, was represented in the Court of the Shire by the 
 
 * Reeve and four best men ', and it is from the Townships on 
 the royal demesne that John first summoned representatives 
 to the Central Assembly of the realm. Yet the name 
 ' township ', still more ' vill ', has an antiquarian flavour. 
 And for a simple reason. From the seventh century the 
 'Township' was captured by the Church as the unit of 
 ecclesiastical organization, and for all practical purposes 
 became henceforward known as the * Parish ' (Tra/aotKia), or 
 dwelling-place of the priest. 
 
 But before final victory was assured to the * Parish * a 
 long contest was waged between the ecclesiastical and 
 the feudal authorities ; between the Court of the Parish 
 Meeting in the Vestry, and the feudal Courts of the Manor. 
 That the cause of the Church was the cause of freedom 
 cannot be denied, and to that side victory ultimately in- 
 clined, but the strife was long and bitter. 
 
 At an early stage the Township virtually disappeared. 
 Even before the Norman Conquest a very large number of 
 
 * Townships ' had become dependent upon a * lord ', or, in 
 technical language, had become manors — a manerium 
 being merely, in the first instance, the abiding-place of a 
 lord, just as a ' Parish ' was the dwelling-place of the priest. 
 Into the history of the manor, with its elaborate organization, 
 social, agricultural, and judicial, it is impossible to enter 
 here. It must suffice to point out that for all practical 
 purposes the legal Township merged, from the eleventh 
 century onwards, into a manor, and as a manor was regarded 
 and organized until the decay of feudalism in the fourteenth 
 century and the reorganization of Local Government under 
 the Tudor sovereigns. When the Township re-emerged 
 from under the ruins of the feudal superstructure elaborately 
 imposed thereon, it was as the ' Parish ' selected by the 
 Tudors to be the unit of their new administrative system. 
 
252 LOCAL GOVERNMENT 
 
 We are now approaching the close of the second great 
 period in the history of Local Government. The popular 
 or (to adopt Maitland's emendation) the ' communal ' 
 Courts of Shire and Hundred have fallen into all but 
 complete decay. The Shire Court had lost its criminal 
 jurisdiction before the end of the thirteenth century, and by 
 the end of the fifteenth the Courts both of Shire and 
 Hundred survived only as ' petty debt courts held by the 
 under-sheriff' — a function to which, curiously enough, the 
 new County Courts of the nineteenth century have been 
 primarily devoted. 
 
 The Shire Court has already entered upon a new phase of 
 political importance ; but in a judicial sense the old Com- 
 munal Courts have gone down before the competition first 
 of the feudal, then of the royal Courts, while the presiding 
 officer, the Sheriff, has similarly given place to the Justice 
 of the Peace or County Magistrate. 
 
 The power of the ' provincial viceroy ' had been waning 
 ever since the great commission of inquiry known as the 
 Inquest of Sheriffs (1170). The growth of the power of 
 the ' Legal Knights ', culminating in their admission to Par- 
 liament; the development of towns (to be noticed pre- 
 sently), with their independent fiscal and judicial powers ; 
 the institution of the office of Coroner (1194), and the sig- 
 nificant transference of criminal jurisdiction from the Sheriff 
 in the Great Charter (12 15)— all these represent stages in the 
 decay of the authority of this once all-powerful functionary. 
 The end really came with the institution of a new class of 
 local officials ultimately known as Justices of the Peace. 
 
 The origin of the new office may be found in the Proclmna- 
 tion for the preservation of the Peace (i 195), by which knights 
 were appointed to receive the oaths for the maintenance 
 of the peace. Knights were similarly assigned to ' maintain 
 the peace ' in 1253 and 1264, and in 1285 Custodes Pads were 
 elected in the County Courts to secure the enforcement of 
 
(i) RURAL 253 
 
 the great police measure, the Statute of Winchester, By an 
 Act of 1327 Conservators of the Peace were to be appointed 
 in every county, and thirteen years later the ofifice of Sheriff 
 became an annual one. * No Sheriff shall tarry in his baili- 
 wick over one year' (14 Edward III, c. 7). In 1360 the 
 Conservators of the Peace were transformed into * Justices 
 of the Peace', and were endowed with authority to try 
 felonies. Two years later the new Justices were required by 
 Statute to hold meetings four times a year, and thus Quarter 
 Sessions knocked the last nail into the coffin of the old 
 communal Court of the Shire. 
 
 The fifteenth century was a period of rapid constitutional 
 development and ever-increasing social anarchy. Reiterated 
 complaints laid before the House of Commons, taken 
 together with the revelations of contemporary literature,* 
 afford conclusive testimony to the prevailing sense of * lack 
 of governance ', and point at the same time to some of the 
 causes and symptoms of the disease. Perhaps the most 
 sinister phenomenon was the revival of a * bastard ' form 
 of feudalism and the emergence of the * over-mighty subject'. 
 'Certainly,' wrote Fortescue, *ther mey no grettir perell 
 growe to a prince, than to have a subgett equepotent to hym 
 selff.' The most disquieting symptom of the new feudalism 
 was the growth of a custom of * livery and maintenance '. 
 The great lords surrounded themselves with crowds of 
 retainers — many of them disbanded soldiers who had fought 
 in the French wars — who wore their livery and fought their 
 battles, while in return the lords * maintained their quarrels 
 and shielded their crimes from punishment '. The * livery of 
 a great lord was ', says Bishop Stubbs, ' as effective security 
 to a malefactor as was the benefit-of-clergy to a criminous 
 clerk'. One of Suffolk's men boasted *that his lord was 
 able to keep daily in his house more men than his adversary 
 
 1 Notably Fortescue : Governance of England (ed. Plummer), and the 
 Paston Letters (ed. Gairdner). • 
 
254 LOCAL GOVERNMENT 
 
 had hairs on his head '.' Repeated complaints were lodged 
 by the House of Commons, Thus in 1406 they complained 
 that * baronets knights and esquires gave liveries of cloth to 
 as many as three hundred men or more to uphold their 
 unjust quarrels and in order to be able to oppress others at 
 their pleasure. And no remedy could be had against them 
 because of their confederacy and maintenance.' Legis- 
 lation was repeatedly attempted ; but legislation was wholly 
 ineffective to remedy the disease. What was needed was 
 strong and equal administration. The country was * out of 
 hand ' ; law was paralysed ; judges and jurors were equally 
 corrupt or equally intimidated by the * over-mighty subject '. 
 The Paston Letters teem with illustrations of the prevailing 
 evils. 'Nothing is more curious', writes Mr. Plummer, 
 ' than the way in which it is assumed that it is idle to indict 
 a criminal who is maintained by a powerful person ; that it 
 is useless to institute legal proceedings unless the sheriff and 
 jury can be secured beforehand.' ^ The natural consequence 
 ensued. All who had might took the law into their own 
 hands. Private wars were common as they had never been 
 since the evil days of Stephen. Noble was at war with 
 noble, county with county. 
 
 It was this social anarchy which called for the strong 
 hand of the Tudor * dictators ', to whom for a time men 
 were willing to surrender much to obtain the supreme 
 blessing of administrative order. 
 
 The Tudors took vigorously in hand the reorganization of 
 Local Government. With their sure instinct for the vitalities 
 they took the Parish as their administrative unit, and made 
 the Justice of the Peace their man-of-all-work. William 
 Lambarde, writing under Queen Elizabeth, complains that 
 he and his brother magistrates were utterly overloaded, and 
 fears that their backs would be broken by these * not loads, 
 
 1 Plummer's Fortescue, p. 27. 
 
 2 Ibid., p. 29. 
 
(i) RURAL 255 
 
 but stacks of statutes '. His groans were not without justi- 
 fication. Henry VH passed twelve, Henry VHI no less 
 than fifty, Edward VI nineteen, Queen Mary nineteen, and 
 Queen Elizabeth fifty-four statutes (down to 1579 only) 
 affecting in one way or another the functions of this over- 
 burdened official. Well might Sir Thomas Smith, also 
 writing under Queen Elizabeth, declare that * the Justices of 
 the Peace be those ... in whom the Prince putteth his 
 special trust '. We must try, therefore, to get some notion 
 of the work which the Justice of the Peace at this period 
 had to do. 
 
 He was at once judge, policeman, and administrative 
 man-of-all-work ; he was responsible for the trial of criminals, 
 for the maintenance of order, and for carrying into effect 
 that huge mass of social and economic legislation which 
 was particularly characteristic of Tudor rule. He was pri- 
 marily a judge. In his own parish he sat alone and tried 
 petty cases without a jury; four times a year he met his 
 brother magistrates of the whole county in Quarter Sessions ; 
 later on (in 1605), an intermediate division was created in 
 which he sat with two or more brethren in Petty Sessions. 
 But his special significance in relation to the Tudor Dic- 
 tatorship consists in the multitude of administrative duties 
 which he was expected to perform. He had to fix the rate 
 of wages for servants and labourers; to bind apprentices 
 and cancel indentures ; to fix the prices of commodities ; to 
 appoint and dismiss constables ; to see to the maintenance 
 of gaols and bridges and highways ; to supervise the pay- 
 ment of pensions to maimed soldiers and sailors ; to deter- 
 mine all questions of settlement and affiliation ; to search 
 out recusants and enforce the law against them, and to see 
 that Sunday was properly observed. He was the sole sani- 
 tary authority, the sole licensing authority (for all trades 
 except monopolies), and the chief poor law and vagrancy 
 authority. Such were some of the many duties under which 
 
256 LOCAL GOVERNMENT 
 
 Lambarde groaned. And no shirking was possible ; for at 
 every assize the Clerk of the Peace had to hand in a certifi- 
 cate giving the names of all Justices absent from Quarter 
 Sessions since the last assize, and the Judge had to examine 
 into the cause of absence, and report thereon to the Lord 
 Chancellor.* 
 
 But there can be no question that on the whole the work 
 was admirably done, and that social order was gradually 
 evolved out of the weltering chaos of the fifteenth century. 
 It was good for the country, and it was good for the Justices. 
 Nothing is more striking than the contrast between the tur- 
 bulent neo-feudalism of the fifteenth century — Percies and 
 Nevilles and the rest — and the legally-minded, Parliament- 
 loving squires of the seventeenth century, the Pyms, Eliots, 
 and Hampdens. The explanation of the contrast may, 
 I suggest, be found in the training and discipline of the 
 Justice of the Peace under the ' dictatorship ' of the inter- 
 vening century. 
 
 In their administrative reorganization the Tudors, as we 
 have seen, selected as their unit the Parish, and upon the 
 Parish they thrust a new responsibility which from that day 
 to this has been popularly regarded as its most distinctive 
 work. To accept poor-relief is in the vernacular *to go 
 upon the parish '. The popular phrase is characteristic of 
 Tudor administration. 
 
 The sixteenth century witnessed an economic revolution 
 into the details of which it is impossible to enter, but this 
 one symptom of it, as closely concerning local administra- 
 tion, must be briefly noticed here. Throughout the whole 
 period we have evidence of the anxiety of the Tudors to 
 grapple with the problem of pauperism, vagrancy, and 
 unemployment. Vagrancy and the crimes incident thereto 
 are the first objects of their legislative solicitude ; but hand 
 
 1 On the whole question cf. Hamilton, Quarter Sessions under 
 Elizabeth and James I, 
 
(i) RURAL 257 
 
 in hand with penal measures directed against * lusty vaga- 
 bonds ' and * valiant beggars ' we have provision for ' poor, 
 sick, impotent, and diseased people being not able to work ' 
 who 'may be holpen and relieved'. But the relief is to 
 come from charity, the help from individuals. The State 
 will exhort to good works, but hesitates to undertake them. 
 There is considerably more than half a century of exhorta- 
 tion and experimental legislation before in 1601 the State, 
 at last convinced of the inadequacy of voluntary effort, 
 steps boldly in, and assumes a new and, as it was to 
 prove, an almost overwhelming responsibility. It is the 
 English way ; in the main, a wise way. The great Poor 
 Law of 1 60 1, when at last it comes, is characteristic of Tudor 
 thoroughness and method. Poor Relief is definitely recog- 
 nized in principle as a matter of public concern ; the Parish 
 becomes the area of administration ; the instruments are to 
 be Overseers appointed and controlled by the Justices of the 
 Peace. Funds are to be raised by a weekly rate levied 
 parochially, and are to be applied for the benefit of three 
 distinct categories : — 
 
 {a) the ' lusty and able of body ' who are to be ' set on 
 
 work ' ; 
 {b) the 'impotent' poor who are to be relieved and 
 
 maintained; and 
 {c) the children who are to be apprenticed to trades, 
 
 the boys till the age of 24, the girls to that of 21, 
 
 or until marriage. 
 This Act, as will be seen, is the foundation of the English 
 Poor Law system, and for a period of more than two hun- 
 dred years governed the administration of Poor relief. 
 Under Charles II it was found necessary to define 'Pa- 
 rishioners ', and the Act of Settlement, which inflicted great 
 hardship on the poor, was the result. Early in the 
 eighteenth century the system was overhauled ; the cost of 
 Poor relief was mounting rapidly without adec[uate reason, 
 
 II30 i^ 
 
258 LOCAL GOVERNMENT 
 
 and the result was an Act (1723) which provided for an 
 enlargement of the area of relief; the formation of unions 
 of parishes ; the building of workhouses and the imposition 
 of a workhouse test. During the next half century adminis- 
 tration was greatly improved, but the la^t two decades of 
 the eighteenth and the first three of the nineteenth century 
 witnessed a terrible relapse. There was some excuse. The 
 coincidence of the greatest Economic Revolution in world 
 history, and a war, unusually prolonged, undoubtedly created 
 problems, social and industrial, such as no administrators 
 had ever had to confront before. Some of the legislation 
 and most of the administration was undeniably due to 
 a combination of panic and philanthropy; a fear lest the 
 scenes of the Terror might be re-enacted in London, and 
 a desire to relieve the suffering almost inevitably entailed by 
 a period of rapid economic transition upon the weakest 
 economic class. Gilbert's Act (1782) was a permissive 
 measure passed to enable the overseers to dispense with the 
 * workhouse test ' and to make allowances in aid of wages to 
 able-bodied labourers. The principles thus enunciated were 
 carried further and translated into action by a resolution of 
 the Berkshire magistrates, adopted at a meeting at Speen- 
 hamland in 1795. This resolution, known as the * Speen- 
 hamland Act ', recommended the farmers to raise wages in 
 proportion to the increase in the price of provisions. If the 
 farmers refused, the deficiency was to be made good out of 
 the rates. The example of Berkshire was followed through- 
 out the greater part of England, south of the Trent, and 
 with disastrous results. Pauperism became endemic among 
 the agricultural labourers ; rates rose with appalling ra- 
 pidity ^ ; rent was swallowed up in rates ; land not seldom 
 
 1 The total expenditure on Poor Relief was : — 
 
 In 1760 = ;Ci>25o,ooo or 3/7 per head of population. 
 1803 = 3^4,077,000 „ 8/11 „ „ „ „ 
 
 1818 = 3C7>87o,ooOj, 13/3 » M o 
 1887 = ;^9,oo8,i8o „ 5/io|;„ ,, „ „ 
 
(i) RURAL 259 
 
 went out of cultivation ; worst of all, whole districts became 
 lopelessly demoralized; it did not pay for a man to be 
 ndustrious or a woman to be chaste. From a situation 
 which in the south at any rate was threatening, England was 
 saved by the Poor Law Amendment Act of 1834. This Act 
 abolished, by a stroke of the pen, outdoor relief to the 
 able-bodied; it imposed a rigorous workhouse test; it 
 enlarged the area of administration from the Parish to the 
 Union ; it established a central Board of Poor Law Com- 
 missioners and systematic inspection in the hope of securing 
 some uniformity of administration ; it relaxed the Law of 
 Settlement, and it committed the local administration of Poor 
 relief to Boards of Guardians, consisting partly of magis- 
 trates, who sat ex-officio, and partly of guardians elected 
 ad hoc by those who paid the rates. Thanks, in large 
 measure, to the remarkable set of men into whose hands the 
 central administration of the Act fell, it proved a conspicuous 
 success. It restored to the working classes a sense of inde- 
 pendence almost lost ; it relieved property of an intolerable 
 strain ; it reduced rates and diminished pauperism. 
 
 But I am concerned here less with the social and economic 
 results of the Act than with its bearing upon local adminis- 
 tration. It marks the first inroad upon the system established 
 by the Tudors, the beginning of the end of the old order, 
 which was based territorially upon the Parish, and in an ad- 
 ministrative sense upon the County Magistracy. An adminis- 
 trative area, intermediate between Shire and Parish, reap- 
 pears — that of the Union, and the principle of election as 
 applied to local administrators takes its place by the side of 
 the autocratic principle embodied in the Justice of the Peace. 
 
 That principle had been rapidly gaining ground during 
 the period which intervened between the Poor Law of 
 Elizabeth and the Amending Act of 1834. Down to the end 
 of the seventeenth century the County Magistracy had" been 
 held in check partly by the Crown and by the general 
 
 R 2 
 
26o LOCAL GOVERNMENT 
 
 application of the writ of Certiorari^ which compelled the 
 attendance of the magistrates to answer for their doings 
 before the King's Court ; partly by the existence of a large 
 and powerful class of yeomen, small landowners and big 
 farmers, whose influence in local business was not yet 
 swamped by that of the great territorial magnate. But with 
 the Revolution of 1688 there dawned the brief day of the 
 political and social ascendancy of the landed aristocracy. 
 I have already noted in another connexion the fact and 
 the reasons for it.^ The imposition of a high qualification 
 in landed property for the tenure of certain offices — for 
 Members of Parliament, County Magistrates, Deputy 
 Lieutenants, and Militia officers — made the discharge of 
 administrative functions dependent for the first time upon 
 the ownership of land. From 1688 to 1888 the County 
 Magistrates had it all their own way in local administra- 
 tion ; and their work was by general admission admirably 
 done. It was efficient and economical. But long before 
 the great revolution was effected in 1888 and 1894 there had 
 been a demand, increasingly articulate, for a radical reform 
 of local government in the rural districts. 
 
 For this there were many reasons. Half a century had 
 elapsed since the breakdown of the oligarchical system in 
 the towns, and it was thought that the time for the applica- 
 tion of a similar principle to county government was over- 
 due. Moreover, the democratic idea has been waxing 
 strong, as was proved, inter alia, by the Reform Acts of 
 1867 and 1884. Perhaps in consequence of the growth of 
 political democracy, the State was every day assuming 
 larger and larger responsibilities. Some of these the central 
 government wished — and very properly — to delegate to 
 local administrators. But most of the new functions in- 
 volved financial responsibility, and it was contrary to the 
 fashionable principles to entrust this to non-elected bodies. 
 1 Cf. supra, p. 151. 
 
(i) RURAL 261 
 
 The principle of 'no taxation without representation' de- 
 manded that if the local authorities were to be charged with 
 duties involving large expenditure, they must be directly 
 responsible to the local tax-payer. 
 
 But there was a more potent and pressing reason for 
 reform. During the last half century local government had 
 been sinking deeper and deeper into chaos. It was as 
 Mr. (afterwards Lord) Goschen said, a ' chaos of authorities, 
 a chaos of jurisdictions, a chaos of rates, a chaos of fran- 
 chises, a chaos worst of all of areas.' In 1883 there were no 
 fewer than 27,069 independent local authorities, taxing the 
 English ratepayer, and taxing him by eighteen different 
 kinds of rates. Among the ' authorities ' were Counties (52), 
 Municipal Boroughs (239), Improvement Act Districts (70), 
 Urban Sanitary Districts (1,006), Port Sanitary Authorities 
 (41), Rural Sanitary Districts (577), School Board Districts 
 (2,051), Highway Districts (424), Burial Board Districts (853), 
 Unions (649), Lighting and Watching Districts (194), Poor 
 Law Parishes (14,946), Highway Parishes not included in 
 urban or highway districts (5,064), Ecclesiastical Parishes 
 (about 1,300). 
 
 How had this 'jungle of jurisdictions ^ ' arisen? For the 
 last half century Parliament had been busily at work 
 attempting to adapt the existing framework of the adminis- 
 trative system to the rapidly changing conditions of a 
 rapidly increasing population. And this had been done, 
 perhaps inevitably, by a long course of tinkering, piecemeal 
 legislation. No attempt whatever was made to fit in the 
 new with the old. Act was piled upon Act ; each involving 
 new administrative functions and each creating a new 
 authority to perform them. The result was an appalling 
 mass of overlapping, intersecting, and conflicting jurisdic- 
 tions, authorities, and areas, bewildering to the student and 
 fatal to orderly administration. 
 
 ^ Chalmers : Local Government. 
 
262 LOCAL GOVERNMENT 
 
 Reform was imperatively demanded in two directions : (i) 
 the concentration of authorities ; and (ii) the readjustment 
 and simpHfication of areas. 
 
 These may be regarded as the guiding principles of the 
 Local Government Acts of 1888 and 1894. The former, 
 popularly known as the County Councils Act, (i) provided for | 
 the creation of 62 'Administrative Counties', some of them 
 coterminous with the 52 historic shires, but some represent- 
 ing subdivisions of the same, and sixty or more ^ * county 
 boroughs ' — towns with more than 50,000 inhabitants ; (ii) 
 set up in each county or county-borough a council consist- 
 ing of {a) councillors elected for a term of three years by 
 the ratepayers, {b) co-opted aldermen, who were not to 
 exceed in number one-third of the elected councillors; 
 (iii) transferred to these councils the administrative func- 
 tions of Quarter Sessions^ such as the control of pauper 
 lunatic asylums, of reformatory and industrial schools, 
 local finance, the care of roads and bridges, the appointment 
 of certain county officials, &c. ; (iv) left to the Justices of 
 the Peace all their judicial and Hcensing functions ; and 
 (v) committed to di Joint Committee of Justices and County 
 Councillors the control of the county police force. To 
 the above important functions of the County Council, 
 subsequent Acts (1889 and 1902) have added that of the 
 control of education, higher, secondary, and elementary. 
 
 The Act of 1888, at once radical in scope and conserva- 
 tive in temper, has, in the main, more than fulfilled the 
 anticipations of its authors. The county magistrates, in- 
 stead of sulking at their partial dethronement, came forward 
 with public spirit to assume a new role and new duties. To 
 their experienced guidance is owing the fact that a pro- 
 found transition has been effected without friction and with- 
 out breach of continuity. The elected councils have in the 
 main proved themselves, if not economical, undeniably 
 
 efficient. 
 
 * There are now (1910) 74 County Boroughs. 
 
(i) RURAL 263 
 
 Complementary to the County Councils Act of 1888 was 
 the District and Parish Councils Act of 1894. Every 
 county is, under the latter, divided into districts^ urban 
 and rural, and every district into parishes. In every dis- 
 trict and in every rural parish (with more than three 
 hundred inhabitants) there is an elected council; in the 
 smallest parishes there is a primary meeting of all persons 
 on the local government and parliamentary register.^ To 
 the parish council or meeting the Act has transferred all the 
 civil functions of the vestries, with the control of parish 
 properties, charities, footpaths, &c. Ambitious parish 
 councils have also the power to * adopt ' certain permissive 
 Acts for providing the parish with libraries, baths, light, 
 recreation grounds, &c. The vestry still retains control 
 over purely ecclesiastical matters — including ecclesiastical 
 charities. 
 
 To the intermediate or district council, whether urban 
 or rural, have been transferred the control of sanitary affairs 
 and highways. Councillors for rural districts also act as 
 Poor Law Guardians, each for the parish for which he is 
 elected a district councillor. Thus in rural districts there 
 are no longer any separate elections for guardians. An 
 urban district is virtually a municipality with something less 
 of dignity and less coherence, but with equal powers. 
 There are more than 800 such districts in England to-day, 
 ranging in population from 300 to nearly 100,000. But 
 the largest districts tend naturally to apply for and obtain 
 ' incorporation ' as * boroughs.' 
 
 The Acts of 1888 and 1894 have unquestionably done 
 much to bring order out of the chaos which had existed 
 in local government for the previous half century, and more 
 recent legislation has shown an increasing tendency to 
 
 1 This includes women and lodgers. Parishes of less than 300 inhabi- 
 tants may have Councils, if they desire it. The smallest Parishes (under 
 100 inhabitants) must obtain the consent of the County Council. 
 
264 LOCAL GOVERNMENT 
 
 simplify areas and consolidate authorities. Notably the 
 Education Act of 1902, which abolished the ad hoc 
 education authorities known as School Boards, and trans- 
 ferred their duties to the several councils of counties, 
 boroughs, and districts. Should the proposals of the Poor 
 Law Commissioners of 1909 become law, this tendency will 
 be still more strikingly illustrated. Nor can it be doubted 
 that it is in the main healthy and sound. The more varied 
 and important the functions committed to the local govern- 
 ing bodies, the more likely are they to enlist the services of 
 men of position, character, and independence. And on 
 their doing so the future of local government obviously de- 
 pends. Should they fail to attract such men (and women) 
 the multiplication of responsibilities and the concentra- 
 tion of powers can have only one result : the development 
 of a local bureaucracy and the increased authority of a 
 vast army of local officials. Signs of such a tendency are 
 not lacking even now, and with the aggregation of popula- 
 tion in urban areas it is probably inevitable ; but it is one 
 which must be carefully watched, for it is foreign to the 
 genius and tradition which have made England pre-eminently 
 the land of vigorous and independent local government. 
 
CHAPTER XIII 
 
 LOCAL GOVERNMENT : (2) URBAN 
 
 'There hardly can be a history of the English borough, for each 
 borough has its own history.'— F. W. Maitland. 
 
 * England is becoming more and more a collection of cities, and this 
 has already wrought a marked change in the character and political 
 temperament of her people.' — A. L. Lowell. 
 
 * All tendency on the part of public authorities to stretch their inter- 
 ference and assume a power of any sort which can easily be dispensed 
 with should be watched with unremitting jealousy. Perhaps this is even 
 more important in a democracy than in any other form of political 
 society.'— J. S. Mill. 
 
 More than three-fourths of the people of England and 
 Wales now dwell in towns. Two centuries ago more than 
 three-fourths were country-folk. According to an estimate of 
 1696 London and the other cities and market towns contained 
 1,400,000 people, or 24 per cent, of the whole ; the villages 
 and hamlets contained 4,100,000, or 76 per cent. Accord- 
 ing to the last census (1901) the position is almost exactly 
 reversed. London alone, with its 4,536,063 inhabitants, 
 had a population greater than the whole rural population of 
 England and Wales two centuries before, while the town 
 dwellers numbered in all 25,054,268, or 77 per cent, of the 
 whole; the country folk only 7,471,242. 
 
 This is, beyond all comparison, the most portentous 
 symptom of the social and political life of modern England, 
 and it justifies a separate, though necessarily brief, treat- 
 ment of municipal history and organization. There is 
 historical justification as well. For the towns — cities and 
 boroughs — have almost from the first presented certain 
 
266 LOCAL GOVERNMENT 
 
 anomalies and exceptions, though in a less degree than the 
 Communes of Italy and France, to general rules of local 
 government. Among English towns, again, the position of 
 London has always been exceptional. 
 
 Originally the burgh was, as Freeman put it, 'only that 
 part of the district where men lived closer together than 
 before.' But the mere aggregation of population soon gave to 
 the townships thus distinguished a differentiated organiza- 
 tion. The aggregation was itself due to one of many 
 causes, or to several in combination. Many towns, like 
 London, sprang up on the tideway of great rivers at a point 
 as remote from the sea as possible ; others, like St. Edmunds 
 or St. Albans, found a nucleus in the shrine of a saint 
 whose fame attracted pilgrims; others, like Canterbury or 
 Norwich, grew up under the shadow of a great monastic 
 house ; others at the junction of roads or at the fordable 
 point of a river, like Hertford; others were artificially 
 created for strategic reasons. The Danish invasions, in 
 this way, gave an immense impulse to the foundation of 
 towns. Oxford owes its origin to a combination of circum- 
 stances : the shrine of a saint (St. Frideswide) ; a ford across 
 the Thames; a nodal point on the old road system; a 
 border fortress against Danish incursions. 
 
 But whatever the motive, religious, economic, or strategic, 
 which brought men together, the mere aggregation neces- 
 sitated or at least suggested a completer organization than 
 that which sufficed for the rural townships. That organiza- 
 tion reflected the amalgamation or conflict of three diflerent 
 elements or ideas : the agricultural, representing the Anglo- 
 Saxon tun or burgh, with its Folkmoot ; the feudal, typified 
 by the Court Leet ; and the commercial, by the Merchant 
 Guild. These ideas were, to a great extent, successively 
 dominant in the town-life of early England. At first the 
 urban township was diflerentiated from the rural townships 
 around it only by size and numbers. Like^ the latter it 
 
(2) URBAN 267 
 
 might be either independent or (much more often) ' de- 
 pendent ' i. e. in the soke of some lord. Before the 
 Norman Conquest all towns, whether originally ' dependent ' 
 or not, had passed either into the ' soke ' of a lord or into 
 the demesne of the King. As a rule the organization of 
 the towns assimilated rather to that of the Hundred than of 
 the Township, but (except in the case of London) they were 
 invariably subject to the jurisdiction of the sheriff and the 
 Shire Court. 
 
 The great ambition of these incipient municipalities was 
 to obtain independence, fiscal and judicial, from the local 
 authority of the sheriff and the shire. 
 
 This they accomplished by slow degrees and in a variety 
 of ways. The most obvious was to obtain from the lord 
 in whose demesne the town lay a recognition of local 
 customs embodied in a written Charter. Such a privilege 
 was not of course granted without valuable consideration. 
 The first step was, as a rule, to get immunity from the 
 jurisdiction of local courts and a recognition of the right 
 to hold courts of their own; the second was fiscal inde- 
 pendence. This latter was secured in two stages. In the 
 first place, a body of the wealthier inhabitants would com- 
 pound with the sheriff for the payment of dues ; would 
 undertake to * farm ' the borough. In the second, the 
 town would acquire the right of paying this firma burgi 
 direct into the exchequer without the interposition of the 
 sheriff. Another stage towards independence was marked 
 by the acquisition of the right of electing their own magis- 
 trates, their bailiffs or reeves, or even in a few cases a 
 mayor. London, far ahead of other towns in this as in 
 other ways, got a sheriff of its own under Henry I, a mayor 
 under Richard I, and the right of electing the mayor by the 
 Great Charter of 12 15. Thus London gave the lead, but 
 only after long intervals were other towns able to follow it. 
 Another highly prized privilege was the recognition of the 
 
268 LOCAL GOVERNMENT 
 
 Merchant Guild or Hansa, with its extensive powers for the 
 regulation of trade. 
 
 The precise relation of the Merchant Guild to the 
 municipality is a technical and indeed highly controversial 
 question with which we are not concerned.* But this much 
 must be said : the Merchant Guild was, in most towns, 
 an exceedingly influential association of traders, who in a 
 corporate capacity did much to stimulate and assist the 
 evolution of municipal independence. But the Guild must 
 not be identified, either in theory or fact, with the Communa 
 or municipality. The former was a powerful adjunct to 
 the latter but was not the less distinct from it. As early as 
 the time of Henry I the Merchant Guild was frequently 
 specified as one of the privileges secured to a town by 
 Charter; such was the case with Leicester (1107), with 
 Beverley (11 19) and with York (1130). It is definitely 
 proved to have been established under the Angevins in no 
 less than 102 towns — practically in every town of impor- 
 tance outside London. Bishop Stubbs is doubtless right in 
 his assertion that in the twelfth century the possession of a 
 Merchant Guild was ' a sign and token of municipal inde- 
 pendence ', but neither then nor at any time did it cover the 
 whole field of municipal activity. It was, as Mr. Gross 
 says, a ' very important but only a subsidiary part of 
 municipal administrative machinery ', concerning itself 
 primarily with the regulation of trade, owning property 
 which was distinct from municipal property and governed 
 by officials who were not identical with those of the 
 municipality. That there was a tendency, in some cases 
 irresistible, for the two organizations in time to merge is 
 undeniable \ but they must not therefore be regarded as 
 substantially and universally identical. As the Merchant 
 Guild tended more and more to absorb the government, 
 
 * Cf. Gross, Gild Merchant ; Brentano, English Guilds \ Ashley, 
 Economic History, 
 
(2) URBAN 269 
 
 the specialized trading interests began to be relegated to 
 the Trade or Craft Guilds. Their functions, however, were 
 unequivocally economic and must not occupy our attention 
 here. 
 
 Meanwhile, there developed by slow degrees the modem 
 idea of a municipal * corporation '. * Incorporation ' was 
 sometimes accomplished by statute, but more often by 
 Royal Charter, as it still is. In this way the town became a 
 legal 'person', with the rights appertaining thereto: the 
 right of perpetual succession, of holding land, of using a 
 common seal, of suing and being sued, and of making 
 by-laws. But this legal conception was not fully worked 
 out until the close of the fifteenth century. By that time 
 there were some 200 * boroughs ' or towns incorporated by 
 Charter with a defined though not uniform constitution. 
 For herein lies the main difficulty of English municipal 
 history. * There hardly can be a history of the English 
 borough,' as Maitland pithily phrases it, ' for each borough 
 has its own history.' Bearing this caution in mind we may 
 say broadly that by the end of the fifteenth century the 
 typical municipal constitution had been evolved : * an 
 elective chief magistrate, with a permanent staff of assistant 
 magistrates and a wider body of representative councillors' — 
 in other words, * the system of mayor, aldermen, and common 
 council which with many variations in detail was the 
 common type to which the Charter of incorporation gave 
 the full legal status.' ^ 
 
 Already, however, a strangely oligarchical tendency had 
 revealed itself. The governing bodies were as a rule self- 
 elected, and in the management of town business the 
 ordinary burgess had little or no part. This tendency 
 became still more strongly marked in the sixteenth and 
 seventeenth centuries. In the creation or restoration of 
 parliamentary boroughs there was an increasing tendency 
 » Stubbs, iii. 585. 
 
270 LOCAL GOVERNMENT 
 
 to vest the election of members in the ' close corporations '. 
 The later Stuarts attempted to make the practice uniform. 
 Writs of Quo Warranto were issued ; ancient Town Charters 
 were forfeited or surrendered wholesale, and in the re- 
 modelled municipal constitutions the right of electing 
 members to the House of Commons was vested in corpora- 
 tions nominated by the Crown. Some of the old Charters 
 were restored after the Revolution, but not all, and town 
 government became, therefore, as we have already seen, 
 increasingly narrow and oligarchic down to the Municipal 
 Reform Act of 1835. 
 
 With the passing of that Act we get for the first time 
 on to really firm ground. By its provisions the municipal 
 constitutions of all boroughs except London and Winchelsea 
 were remodelled on a uniform plan. The governing 
 authority is now a town council consisting of a varying 
 number of members elected for three years by the whole 
 body of ratepayers, men and women. The town council 
 annually elects a mayor, and also elects a body of aldermen 
 who hold office for six years. The number of aldermen 
 thus elected must not exceed one-third of the number of 
 councillors. The main work of the council is discharged in 
 a number of standing committees which, like the council 
 itself, are assisted by a staff of permanent officials of which 
 the chief is a town clerk. Upon this functionary, his 
 public spirit and ability, the administration of municipal 
 afTairs very largely depends. The other officials vary in 
 different towns, but among them are generally found a chief 
 engineer, a sanitary officer, a medical officer, an education 
 secretary, a treasurer, and (where the town has a separate 
 police force) a chief constable.^ 
 
 There are now about 350 municipal boroughs in England 
 
 * President Lowell, a singularly competent observer, * after studying a 
 number of English cities was led to imagine that the excellence of 
 municipal government was very roughly proportional to the influence of 
 the permanent officials.' 
 
(2) URBAN 271 
 
 and Wales, but they vary enormously in status, size, and 
 population. Liverpool, for example, had (1901) 723,000 
 inhabitants ; Hedon had 1,020 ; thirty-one had, at the same 
 date, a population of over 100,000 ; sixty-six had less than 
 5,000.1 
 
 They differ also in status. We may notice, first, the 
 distinction between * cities ' and ' boroughs '. This is merely 
 complimentary — a distinction of name. How has it arisen ? 
 It is generally supposed that a city is a borough which con- 
 tains a cathedral and the seat of a bishop. But there seems 
 to be no legal sanction for this view. Ely and St. David's 
 are 'cities', but neither is a municipal borough. Truro 
 and Wakefield, after the creation of bishoprics with a seat 
 therein, were raised to the rank of cities ; but to effect this a 
 Royal Proclamation was required. A similar distinction has 
 been in the same way conferred upon boroughs like 
 Sheffield and Nottingham, which are not episcopal sees. 
 Again, Oxford and Gloucester were distinguished as 
 civitates in Domesday, but neither was the seat of a 
 bishopric until the reign of Henry VIII. If we are com- 
 pelled to generalize, we can hardly go beyond two proposi- 
 tions : (i) that a town (whether * borough ' or not) which is 
 the seat of a bishopric, is entitled to be or to be created a 
 * city ' ; (2) that the same power, that of Royal Proclamation, 
 which confers the dignified title upon an episcopalized 
 town, may also confer it upon any other town. 
 
 We pass to the surer ground of legal status. Legally 
 municipal boroughs may be distinguished as : (i) Counties 
 of cities or towns ; (2) * County ' boroughs ; (3) Boroughs 
 with a separate Court of Quarter Sessions ; (4) Boroughs 
 which have, and (5) Boroughs which have not, a separate 
 Commission of the Peace ; (6) Boroughs which have, and 
 (7) Boroughs which have not, a separate police force. 
 
 The first category is purely historic. There are nine- 
 * Ashley, Local Govemmenty p. 36. 
 
272 LOCAL GOVERNMENT 
 
 teen ancient boroughs which have long possessed all the 
 organization of a county and which for certain purposes, 
 notably the administration of justice, are deemed to be 
 separate counties. These are distinguished by possessing a 
 sheriff of their own. Bristol, Chester, Exeter, Norwich, and 
 Oxford are typical of this class. 
 
 Sharply to be distinguished from them are the county 
 boroughs, now seventy-four in number, which are the creation 
 of the Act of 1888. 'The same place may be both a 
 county of a city or town, and a county borough ; though 
 most county boroughs are not counties of towns ; while a 
 few counties of cities or towns, such as Lichfield and Poole, 
 are not county boroughs.' 
 
 The Act of 1888 provided that every borough which had 
 or should obtain a population of 50,000^ should for 
 administrative purposes be treated as a separate county. 
 The council of such a borough is for all practical purposes 
 a county council, while the borough itself is wholly inde- 
 pendent financially, administratively, and judicially, of the 
 county or counties in which it lies. 
 
 This is perhaps the least inappropriate place to speak 
 of one town, which is, as it always has been, unique 
 among English cities. London, as regards the square 
 mile of the * City ', shares with Winchelsea the distinction of 
 having escaped the hand of the reformer in 1835. London 
 outside the City was, down to 1888, merely an aggregate of 
 parishes governed like the tiniest country parishes by their 
 vestries, but subject, in certain matters, to the control of a 
 central authority known as the Metropolitan Board of 
 Works. The Local Government Act of 1888 aboHshed the 
 Board of Works and transformed extra-city London into 
 an administrative county under a county council. Upon 
 this council were conferred powers similar to those of 
 other county councils but enlarged and adapted to the 
 * And for historical or other special reasons a few others. 
 
(2) URBAN 273 
 
 more complex conditions of urban life. A later Act 
 of 1899 transformed the vestries into metropolitan boroughs, 
 of which there are twenty-eight, each with its mayor, 
 aldermen, and councillors like any provincial borough, but 
 with less financial independence, being controlled on the 
 one hand by the Local Government Board, on the other by 
 the London County Council. 
 
 The brand-new bodies brought into being by the Acts 
 of 1888 and 1899 have wrought a marvellous change in 
 the Metropolis, alike in outward visible form and in 
 administrative symmetry. The County Council has been 
 the object of much criticism ; the local boroughs of some 
 ridicule; but both are what Londoners make them and 
 neither ridicule nor criticism has done harm. 
 
 By the reforms of 1888 and 1899, as by that of 1835, the 
 historic ' City ' of London was untouched ; it has been often 
 threatened but it is not now likely to encounter perils so 
 great as those it has survived. For many centuries London 
 afforded the model to which other cities were always 
 striving to attain. Already by the time of the Norman 
 Conquest it had acquired the organization of a shire. It 
 got its Communa with a mayor and a small body of alder- 
 men in 1 191, and the right of electing the mayor in 
 1 2 15. At this time the Corporation consisted of a mayor, 
 twenty-five aldermen of the wards, and two sheriffs. 
 Before the close of the century, twelve elected common 
 councillors had come into being to assist the aldermen in 
 their several wards. Superimposed upon or rather inter- 
 mingled with the municipal organization or Communa was 
 that of the Merchant and Craft Guilds. From them come 
 the liverymen of the Companies. By Edward IV the con- 
 stitution was further defined, and the formal * incorpora- 
 tion ' of the City completed. The mayor, sheriffs, and 
 parliamentary burgesses were to be elected by the livery- 
 men and the common council ; the aldermen were to be 
 
 II30 s 
 
274 LOCAL GOVERNMENT 
 
 elected for life, one for each of the several wards. This 
 constitution has subsisted, unchanged in essentials, from 
 that day to this. 
 
 Boroughs with a separate Court of Quarter Sessions 
 belong for certain administrative purposes to the county ;, 
 but for most judicial purposes are independent of it. They 
 are distinguished by the possession of a Recorder, who is 
 the Judge of the Court of Quarter Sessions, and a Clerk of 
 the Peace, and, as a rule, by the right to elect their own 
 coroners. The Recorder is a professional barrister appointed 
 by the Crown. The post is eagerly sought after. It is not 
 highly remunerated, but it does not disqualify, like other 
 judgeships, for practice at the Bar, nor (except for the 
 particular borough) for a seat in Parliament. Moreover, it is 
 often a stepping-stone, unlike County Court judgeships and 
 police magistracies, to further legal promotion. A separate 
 Commission of the Peace, or magistracy, and a separate 
 police force are merely matters of administrative conveni- 
 ence which do not greatly affect the status of the boroughs 
 nor demand further explanation. 
 
 The powers and functions of municipal authorities are 
 immensely wide, and constantly increasing. Generally 
 speaking they may be said to be responsible for public 
 order, for health, for education. But few boroughs, 
 especially large boroughs, are content with the performance 
 of these elementary duties. They may acquire further 
 powers in three ways : {a) by * adopting ' one or more of the 
 innumerable ' permissive ' Acts already on the Statute-book ; 
 (d) by obtaining special ' Private Acts ' ; or (c) by obtaining 
 from the Local Government Board 'Provisional Orders.'^ 
 In one or other of these ways they may be authorized 
 to provide water, gas, electricity, markets, cemeteries, 
 gymnasiums, housing accommodation, baths and wash- 
 houses, tramways, public libraries, parks, bands, museums, 
 1 See su/>ra, p. 233. 
 
(2) URBAN 275 
 
 golf links and many other amenities, conveniences, and 
 necessaries of modern social life. 
 
 How far public authorities ought to undertake these and 
 similar enterprises is one of the most highly disputable 
 questions with which the modern citizen is confronted. 
 Nor can it be dogmatically answered. But it is too 
 important to be ignored, and one or two considerations 
 may, therefore, be suggested. 
 
 } In the first place a distinction may be drawn between 
 necessaries and conveniences, and another between services 
 and commodities. Water, for example, is a necessary ; the 
 supply of it is limited, but apart from the -initial enterprise of 
 obtaining an abundant and pure supply, no great skill is 
 demanded in the provision of it. In cases where private 
 enterprise has procured such a supply — good, abundant, and 
 cheap — there is no pressing reason why a municipality 
 should desire to acquire it : but equally there is no special 
 reason against it. If the private supply is impure, in- 
 sufficient, or expensive, a municipality is bound to intervene 
 and obtain a monopoly. For obvious reasons there cannot, 
 in an ordinary town, be two competing water systems. 
 Similarly in regard to drainage. This also is a matter of 
 public health, and any system must be universal. No sane 
 person would wish to revert to an individualistic scheme of 
 drainage. Artificial light is almost as much a necessity as 
 water ; should the supply of it also be, therefore, a mu- 
 nicipal monopoly? Here a distinction creeps in. Every 
 citizen requires water ; but not every citizen requires, for 
 private consumption, gas. He may prefer another illumi- 
 nant : electric light, oil, or candles. If, however, the 
 municipality owns and manages the gas works, he may 
 have to wait for some time before he is permitted to obtain 
 electric light. This apprehension has a basis of proved 
 fact. Parks and open spaces may fairly be deemed 
 necessities to public health; museums and free libraries 
 
 s 2 
 
276 LOCAL GOVERNMENT 
 
 desirable if not indispensable adjuncts to public education ; 
 but between these and municipal golf links there seems to 
 be a distinction. Amusement and exercise may be as 
 indispensable as open spaces ; but is it the business of 
 the public authority to supply them ? 
 
 It seems desirable, at this point, to set forth as briefly 
 and dispassionately as possible the arguments which are 
 urged for and against the extension of municipal activities 
 and responsibilities ; for and against what is popularly 
 known as 'municipal trading'. 
 
 On behalf of municipal trading it is urged (i) that certain 
 fields of commerce are virtually monopolies, and that mono- 
 polies with their vast potential profits ought not to be vested 
 in individuals or private syndicates or associations ; (2) that 
 in matters which though not monopolistic are still of great 
 and general importance to the health or well-being or con- 
 venience of the community, the municipality, as repre- 
 senting the community, should intervene to mitigate the 
 * greed ' of the private trader and should, by underselling him, 
 cheapen the commodity to the consumer : the provision of 
 means of transport, of working-class dwellings, &c., may be 
 held to come under this category ; (3) that it is the duty of 
 public authorities to improve in every possible way the 
 conditions of manual labour, to act as a * model employer ', 
 to employ labour always under model conditions, to pay 
 the union rate of wages, and so forth; and (4) that since 
 public authorities can raise capital on more advantageous 
 terms than private traders, it is an actual economic dis- 
 advantage to leave large enterprises in private hands. 
 
 These arguments clearly demand serious consideration : 
 but this is not the place for exhaustive discussion ; a few 
 words must suffice, (i) As to monopolies. The number 
 of these, when closely scrutinized, is far less than is com- 
 monly supposed. Real monopolies may be safely left to 
 municipalities ; but how many are there ? No town could 
 
(2) URBAN 277 
 
 tolerate more than one gas supply ; it is sufficiently monopo- 
 listic to justify and require that the conditions under which 
 it is supplied to the public — its quality, price, and so forth — 
 should be under the closest public scrutiny; but it is at 
 least a matter for argument whether the public authority is 
 not better occupied in controlling the purveyors than in 
 directly manufacturing and distributing the commodity. 
 Similarly in regard to means of public locomotion, involving, 
 like tramcars (but not motor omnibuses) the concession of 
 a virtual monopoly. (2) In regard to the supply of neces- 
 saries which are not monopolies. Is it the duty of the 
 public authority to intervene between the greed of the 
 private capitalist or trader and the well-being of the com- 
 munity ? It is difficult to give any general answer to this 
 question, other than to say that it must depend on circum- 
 stances. Take the case of working-class dwellings. An 
 enterprising municipality is invariably confronted by this 
 dilemma. The provision of such dwellings is either 
 a remunerative investment or it is not. If it is, it is 
 quite certain that it will be undertaken by private 'specu- 
 lators', and it is highly probable that if the profits are 
 excessive, they will be reduced to a fair level by competi- 
 tion. There may be exceptional cases in which these 
 conditions are temporarily or even permanently not ful- 
 filled. In such cases no one would demur to the enter- 
 prise of the municipality. But it may be that the investment 
 is commercially unremunerative ; that the provision of such 
 dwellings does not * pay '. What under these circumstances 
 is the duty of a public authority ? If it houses the workmen 
 at unremunerative rates it is clearly providing exceptional 
 advantages for one class at the expense of another. Does 
 it not do the same in the case of education ? And if it may 
 provide education for the young, why not housing both for 
 the children and their parents ? It may be answered that it 
 educates the children not in their interests, but in those of 
 
2 78 LOCAL GOVERNMENT 
 
 the community. And, moreover, the provision of education 
 is universal. It is open to all. Cook's son and duke's son 
 may (as in America, and formerly not seldom in Scotland) 
 equally participate. Housing schemes are in practice 
 partial. But if the supply of municipal houses is strictly 
 limited, how are the privileged tenants to be selected? 
 Who are to be housed at the expense of the ratepayers 
 at large? If, on the contrary, the scheme is on a large 
 scale, the elected municipality will become the landlords of 
 a large body of its constituents. The situation thus created 
 would not be free from difficulty. If the relation is on 
 a purely commercial basis, if the houses are let at rack 
 rents, little harm will be done; but also little good. If 
 they are let at anything less than the commercial rent, 
 a body of privileged tenants is necessarily created. And 
 that way danger lurks. (3) But if there is danger to purity 
 of municipal government in the existence of a body of 
 municipal tenants, is there none in the existence of municipal 
 employes ? The provision of services, still more the produc- 
 tion and distribution of commodities, necessarily involves 
 the employment of labour. There are said to be at the 
 present time more than 2,000,000 people in the employ- 
 ment of local authorities, and in some places they amount 
 to from 5 to 8 per cent, of the municipal voters. It 
 is unnecessary to enlarge upon the menace , to purity, or 
 efficiency, or both, which this state of things may involve. In 
 the colony of Victoria, one of the most democratic communi- 
 ties in the world, it has been decided to create special con- 
 stituencies for the employes of state railways. This is an 
 ingenious compromise. There are those in England who 
 would like to extend the scope of municipal activities, but 
 who hestitate to do so because they see the danger involved 
 in the creation of large bodies of municipal employes who 
 are practically the masters of their employers. To dis- 
 franchise them is felt to be an extreme, though it may 
 
(2) URBAN 279 
 
 prove to be a desirable step. Victoria is trying the in- 
 teresting experiment of withdrawing such voters — or some 
 of them — from the ordinary constituencies, but giving them 
 constituencies of their own. It will be closely watched by 
 all social and political observers. 
 
 There remains to be considered the purely economic 
 argument ; that (4) it is an actual economic disadvantage 
 to leave large enterprises in private hands when public 
 authorities can raise capital on more advantageous terms 
 than private traders. That for certain purposes they can do 
 so is undeniable. But two questions demand an answer. Is 
 it certain that this advantage will be maintained ? As long as 
 local authorities confine themselves to enterprises which 
 old-fashioned people regard as 'legitimate', it is probable 
 that it will. The security is clearly superior to that which 
 any individual can offer. But if the municipalities embark 
 on speculative enterprises, if they take the risks which are 
 incidental to private trade, however conservative its conduct, 
 will they retain their advantage in the money market ? At 
 present they have an advantage of about i per cent, or 
 less. A first-class industrial concern can borrow on deben- 
 tures at about 4 to 4^ per cent. Birmingham, Liverpool, 
 and Manchester have to pay about 3^ per cent. But 
 there is another question. Assuming that capital can be 
 borrowed to this extent cheaper, will it be employed to 
 equal advantage? Capital charges are no doubt a serious 
 item in any large undertaking, but they are trifling as com- 
 pared with the wages bill. Increased cost of labour or 
 management on the one hand, deficiency of output on 
 the other, will very quickly counterbalance any advantage 
 secured from cheapness of capital. And no one contends 
 that municipal management, however efficient, has yet 
 proved itself to be economical. 
 
 The facts, however satisfactory the explanation may be, 
 are in themselves indisputable. The liabilities of local 
 
28o LOCAL GOVERNMENT 
 
 authorities in England and Wales in 1875 stood, in round 
 figures, at £92,820,000; in 1905 they were £482,984,000. 
 The increase in thirty years was 369 per cent. Nor has 
 there been any corresponding increase either in popula- 
 tion or in rateable value. The population (in 1871) was 
 22,905,000 ; thirty years later it was 32,526,075. The debt 
 per head was in the earlier year £4 per head of population ; 
 in the later^ £15. In the earlier it was about i6s. per £1 
 of rateable value; in 1905 it was about 445. But these 
 figures, though impressive, are not conclusive. 
 
 It is contended that these vast liabilities are represented 
 by corresponding assets, that the capital expenditure has 
 been to a great extent upon remunerative undertakings. It 
 is not easy to test the accuracy of this contention, nor to 
 measure its force. Hostile critics cast a good deal of 
 suspicion upon the methods of municipal book-keeping, 
 and suggest that the application of a commercial audit 
 would reveal the fact that these ' remunerative ' enterprises 
 are actually conducted at a loss. The point is too technical 
 for more than a passing reference in these pages ; but one 
 test may perhaps be suggested. If these municipal enter- 
 prises are really remunerative, the benefits ought to be 
 perceptible in a diminution of annual expenditure. But of 
 this there is no indication. On the contrary : the rates 
 raised in 1875 amounted to £19,000,000 or 3^. 3|^. in 
 the £ of valuation, or i6s. 2d. per head of population. 
 In 1905 they amounted to £58,000,000 or 6j. \\d. in 
 the £, or 345. \d. per head of population. These facts, 
 so far as they go, speak for themselves. But though indis- 
 putable they do not close the argument. We may be 
 getting good value for the money spent ; capital expenditure 
 may be remunerative in the larger, if not in the narrower 
 sense ; expenditure may be justified by the increased intelli- 
 gence and longevity, the enhanced economic efficiency, and 
 the improved moral and physical condition of the great 
 masses of our urban populations. 
 
(2) URBAN 281 
 
 Two things, however, may be demanded of those who advo- 
 cate the extension of municipal activities : they must show, first, 
 that this increase, enhancement, and improvement has actually 
 taken place ; and, secondly, that it has not been purchased 
 at too high a price, not in the economic, but in the moral 
 and political sense. These things are not easily measured ; 
 proved or disproved. That there has been improvement 
 along certain lines no one with a discerning eye and an 
 understanding heart can question. Does the balance incline 
 that way? Or do the more subtle disadvantages outweigh 
 the more palpable benefits ? It is men, not officials, who 
 make the greatness of states ; not machinery, however 
 perfect, but the personal initiative of individuals. That 
 was a lesson which John Stuart Mill, socialist though he 
 confessed himself to be, was never weary of enforcing : 
 
 * The worth of a State,' he wrote, ' in the long run, is the 
 worth of the individuals composing it ; and a State which 
 postpones the interests of their mental expansion and 
 elevation to a little more of administrative skill, or of that 
 semblance of it which practice gives in the details of busi- 
 ness ; a State which dwarfs its men, in order that they may 
 be more docile instruments in its hands, even for beneficial 
 purposes — will find that with small men no great thing can 
 really be accomplished, and that the perfection of machinery 
 to which it has sacrificed everything will in the end avail it 
 nothing, for want of the vital power which, in order that the 
 machine might work more smoothly, it has preferred to 
 banish.' ^ 
 
 One point remains to be noticed. We have now de- 
 scribed the organization of the Central and of the Local 
 Government. What, if any, is the nature of the connexion 
 between them ? Incidentally we have touched it at many 
 points, but it needs to be described more explicitly. 
 
 For there are two features of recent political development 
 in England which are at first sight contradictory. On the 
 ^ On Liberty, p. 172. 
 
282 LOCAL GOVERNMENT 
 
 one hand we have seen the enormous progress made in local 
 administration — its systematization, its extension, and the 
 multiplication of its activities. But coincidentally with this 
 we have to note the increasing interference of the central 
 government in local affairs; the expansion of the work of 
 the Local Government Board, of the Home Office and the 
 Board of Trade, and the creation of a small standing army 
 of inspectors, entrusted primarily with the duty of seeing 
 that the rules of the central authority are carried out by 
 the several local authorities : Poor Law inspectors ; school 
 inspectors; factory inspectors; inspectors of mines, of 
 fisheries, of workhouses, and of what not. The reformed 
 Poor Law of 1834 provided the new model. The widely 
 divergent principles, on which, prior to 1834, the Poor 
 Law was administered in different localities, suggested the 
 advisability of a central Poor Law Board to secure some 
 semblance of uniformity, and to maintain a standard of 
 efficiency. The Poor Law Board developed into the Local 
 Government Board. But the example it set was extensively 
 followed; at the Home Office, for example, in regard to 
 factories, mines, and prisons ; at the Board of Trade, in 
 regard to lighthouses, fisheries, and much else ; at the Board 
 of Education, in regard to schools. 
 
 But although in all these matters the hand of the central 
 government is increasingly felt, and the work of inspection 
 is close and efficient, the greater local governing bodies are 
 subjected to curiously little restraint. This is, no doubt, in 
 harmony with the genius and tradition of our people. ' We 
 have in England,' says Mr. Percy Ashley, * traditional ideas 
 as to the autonomy of local communities which are the 
 outcome of our political and constitutional history.' In 
 England, as we have seen, the central government is the 
 child of local government ; in France and Prussia, on the 
 contrary, it is the parent. This is a great and essential 
 difference which has left a profound and permanent impress 
 
(2) URBAN 283 
 
 upon our institutions, and still more upon the spirit of our 
 administration. *The influence of the historical tradition 
 is so strong that the English citizen probably still has some 
 conception of local government as a right with which no 
 central power may properly interfere.' * 
 
 Nevertheless, the local authorities are by no means free 
 to go as they please ; to do or leave undone as they will. 
 The central government is alert both to restrain and to 
 stimulate. The control of the central over the local govern- 
 ment is threefold — judicial, legislative, and administrative. 
 Local authorities are in no real sense autonomous ; if they 
 exceed their powers or neglect their duties, they may find 
 themselves in conflict with the law, with Parliament, or with 
 one or more central administrative departments. 
 
 The responsibility of officials to the law is, as we have 
 seen, a characteristic feature of English public life. It is 
 a result of the absence of that system of 'administrative 
 law ' which gives to the executive of so many other coun- 
 tries peculiar privilege and authority. In England all local 
 officials are amenable to the ordinary law of the land, and 
 for any violation of the law must answer before the ordinary 
 tribunals. But this is a responsibility which they share 
 with the officials of the central government, from the Prime 
 Minister and the Lord Chancellor downwards. 
 
 The control of Parliament over local bodies is exercised 
 by legislation of four different kinds ^ : (i) Constituent Acts^ 
 which ' create the various classes of local government 
 authorities and arm them with the powers necessary for 
 the fulfilment of the duties intended to be discharged by 
 them'. Such were the Local Government Acts of 1888 
 and 1894, already described. (2) General Acts, giving 
 power to local authorities generally to deal with a specific 
 
 ^ Ashley, Loca/ Government, p. 4. 
 
 ^ I follow here the categories of and quote freely from Mr. Percy Ashley's 
 admirable chapter on the subject in Local Government, c. ix. § 2. 
 
284 LOCAL GOVERNMENT 
 
 subject, such as public health or education. (3) Adoptive 
 Acts. To this device, a very favourite one with the English 
 Parliament, I have already incidentally referred. An 'adop- 
 tive' Act is a permissive measure which local authorities 
 may adopt or not, as they choose. A familiar instance of 
 such legislation is the Public Libraries Act of 1892. As 
 a rule such Acts can be adopted only after a referendum^ or 
 direct poll of the ratepayers. The method has its advan- 
 tages and its dangers. It gives opportunities for the trial of 
 experiments; it stimulates, by the referendum^ interest in 
 local affairs, but it tends to penalize financially the more 
 progressive localities. Adoption on a large scale generally 
 means high rates ; high rates mean high rents, and high 
 rents accentuate the housing problem. (4) Private ActSy 
 the method and operation of which I have already described. 
 
 Provisional Orders represent, as we have seen, a halfway 
 house between legislative and administrative control over 
 local authorities. They must be obtained through a Depart- 
 ment, but sanctioned by Parliament. If unopposed they 
 afford a decidedly cheaper method than private bill legis- 
 lation, and a less precarious .one. But the conditions — 
 especially the financial conditions — imposed by a Depart- 
 ment are not infrequently more exacting than those imposed 
 by a Select Committee, and some local authorities prefer 
 on that account the more elaborate and more immediately 
 expensive method. 
 
 Is the control exercised by the central over the local 
 government adequate ? The question is not an easy one, 
 and will be variously answered. There are on the one hand 
 those who, for reasons already adumbrated, resent any inter- 
 ference on the part of the central government with the 
 governing bodies of important localities. The inhabitants, 
 for example, of Manchester, Liverpool, and Birmingham 
 think, and with some reason, that they are at least as com- 
 petent to manage local affairs as any Government Depart- 
 
(2) URBAN 285 
 
 ment in London. On the other hand, there are those who 
 would like to see some more effective check than at 
 present exists upon the spending and borrowing proclivities 
 of ambitious local authorities. Even now, no loan can be 
 raised without the sanction either of Parliament or of the 
 Local Government Board. The latter control is the more 
 effective, since the Board satisfies itself that proper provi- 
 sion is made for repayment. But many contend that even 
 this is inadequate and that nothing short of a regular audit, 
 at the hands of an officer of the central Department, will 
 secure effective control over the vagaries of local accountancy. 
 But the difficulty really goes deeper. There is a divorce 
 already serious between local representation and local taxa- 
 tion. Rates are in too many cases half concealed by rents, 
 owing to the fact that the rates are paid by the landlord 
 and not the tenant. In Birmingham, for example, it was 
 estimated by the town clerk that from 70 to 75 per cent, 
 of the inhabitants were * compound householders ', i. e. lived 
 in houses on which the landlord paid the rates. In London 
 nearly half the municipal voters are not direct ratepayers. 
 In West Ham, out of 48,000 assessments, only 14,000 are 
 directly rated. This is a serious danger, and one which, 
 even at the expense of some administrative inconvenience, 
 ought not to be allowed to continue.^ But if there are 
 many municipal electors who feel no direct responsibility 
 for the financial policy of their representatives, so there is 
 much ratepaying property which is unrepresented. This 
 is due to the development of joint-stock companies. There 
 are, for example, some parishes in which almost the whole 
 of the rates are paid by a single railway company. The 
 London and North-Westem Company is said to pay 
 £600,000 a year in rates, and has no representative what- 
 ever on any of the bodies to which they are paid. In 
 
 ^ It is one of the many excellent rules of the Co-operative Tenants 
 Society that every tenant shall pay his rates directly. 
 
286 LOCAL GOVERNMENT 
 
 Manchester and Liverpool practically one-third of the 
 rateable hereditaments are in the hands of corporations 
 or companies without a vote between them.^ There are, 
 therefore, at least three dangers to which municipal govern- 
 ment in England is, at present, exposed : the multiplication 
 of municipal activities may bring about an undesirable cor- 
 respondence between candidate and elector on the one hand 
 and employer and employed on the other ; the extension 
 of joint-stock enterprise may widen the divorce between 
 local taxation and representation ; and, finally, an excessive 
 demand upon unpaid services may disgust the elected local 
 administrator and throw increased responsibility and power 
 into the hands of the local bureaucracy. To the serious- 
 ness and reality of these dangers no truly progressive citizen 
 can be blind. 
 
 But all these things notwithstanding, it is consolatory 
 to find that so competent and impartial an observer as 
 President Lowell is able to give a very fair testimonial to 
 the purity and efficiency of English local government. It 
 is disquieting to learn that in his view the personnel of the 
 representative local bodies shows signs of deterioration, 
 even though he appears to find more than counterbalancing 
 advantage in the improvement of the permanent officials. 
 That the officials are increasingly efficient may be admitted ; 
 but no one who is imbued with the genius of English 
 local government would regard this as a satisfactory 
 set-off against a deterioration in the quality of the elected 
 representatives on local governing bodies. On this point 
 it is difficult to reach a conclusion ; but if it be true, no 
 countervailing improvement in mere administrative efficiency 
 will long retard the decay of those local institutions which 
 for centuries have formed the nursery of political liberty 
 in England. 
 
 1 Avebury, Municipal and National Trading, c, x. 
 
CHAPTER XIV 
 
 THE JUDICIARY : THE COURTS OF LAW AND 
 THE LIBERTY OF THE SUBJECT 
 
 * There is no liberty if the Judicial power be not separated from the 
 Legislative and the Executive.' — Montesquieu. 
 
 * It is for this end that the King has been created and elected, that he 
 may do justice to all.* — Bracton. 
 
 * No free man shall be taken or imprisoned or disseised or outlawed 
 or exiled or anyways destroyed ; nor will we go upon him, nor will we 
 send upon him, unless by the lawful judgment of his peers, or by the 
 law of the land. To none will we sell, to none will we deny or delay, 
 right or justice.' — Magna Carta, §§ 39, 40. 
 
 * That after the limitations shall take effect as aforesaid, judges' 
 commissions be made quamdiu se bene gesserint, and their salaries 
 ascertained and established ; but upon the address of both Houses of 
 Parliament it may be lawful to remove them.' — Act of Settlement, § 7, 
 A. D. 1 700. 
 
 * The standard of good behaviour for the continuance in office of the 
 judicial magistracy is certainly one of the most valuable of the modern 
 improvements in the practice of government. In a Monarchy it is an 
 excellent barrier to the despotism of the prince ; in a Republic it is a no 
 less excellent barrier to the encroachments and oppressions of the 
 legislative body.' — Hamilton, in the Federalist. 
 
 We have now completed our survey of the position of the 
 Legislature and the Executive ; we have analysed the struc- 
 ture of their several parts, and have described the process 
 by which laws are made and the means employed to put 
 them into execution. 
 
 It remains to treat of the third great department of 
 governmental activity, the judiciary; to examine the 
 
288 THE JUDICIARY: 
 
 machinery for the interpretation of law, and the administra- 
 tion of justice. 
 
 Of all the functions of government this is of most imme- 
 diate interest to the individual citizen. It matters not how 
 elaborate the machinery of legislation may be ; how scientific 
 the product ; how perfect the methods of execution ; the 
 life of the individual citizen may nevertheless be rendered 
 miserable ; his person and his property will be alike insecure 
 if there be any defect or delay in the administration of justice, 
 or any ambiguity in the interpretation of law. 
 
 We have already seen that of the salient features of the 
 English Constitution one of the most characteristic is the 
 rule of law ; the assurance that in England no man can be 
 deprived of liberty or of goods, can be mulcted in person or 
 property except for a distinct breach of the law proved before 
 one of the ordinary tribunals. Not less far reaching is the 
 rule that in England no man is above the ordinary law, and 
 that for any breach of it, however exalted the position of 
 the offender, reparation may be obtained. This, to a con- 
 stitutional lawyer, is the real meaning of the assertion, 
 constantly reiterated, that in England Ministers are * respon- 
 sible'. Strictly speaking, as Maitland clearly points out, 
 ' Ministers are not responsible to Parliament ; neither House, 
 nor the two Houses together, has any legal power to dismiss 
 one of the King's Ministers. But in all strictness the Ministers 
 are responsible before the Courts of Law, and before the 
 ordinary Courts of Law, and they are there responsible even 
 for the highest acts of state; for those acts of state they 
 can be sued or prosecuted, and the High Court of Justice 
 will have to decide whether they are legal or no.^ 
 
 This is the obverse of the first ^rule of law*. These 
 
 two complementary rules provide the foundations upon 
 
 which the whole magnificent fabric of personal liberty has 
 
 in this country been erected. This point has perhaps 
 
 ^ Const, Hist. p. 484. 
 
LIBERTY OF THE SUBJECT 289 
 
 been sufficiently illustrated already. One question, however, 
 remains to be answered : how has this result been secured, 
 and how is it maintained ? 
 
 It has generally been held by political philosophers that 
 there is no more conclusive proof of the backward or 
 advanced condition of any political society than the rela 
 tions of the Legislature, the Executive, and the Judiciary. 
 In primitive societies there is no 'separation of powers', no 
 differentiation of functions. The despotic ruler or chief is 
 law-maker, interpreter, and administrator in one. It is a 
 distinct symptom of an advance from a lower to a higher 
 stage in the evolution of the political organism when the 
 judicial function is differentiated from those of the Legisla- 
 ture and the Executive. 
 
 In England the differentiation is virtually complete. In 
 the sixteenth century, thanks to the multiplication of * pre- 
 rogative courts', such as those of the Star Chamber, the 
 Court of the Marches, the Council of the North, and the 
 Stannary Courts in Cornwall, the Executive was able to 
 exercise a considerable degree of practical control over the 
 administration of justice. There is no evidence that these 
 prerogative courts were during that period unpopular. On 
 the contrary, men resorted to them freely, for there they got 
 justice, which, if rough, was prompt and comparatively cheap. 
 It was an entirely different matter under the Stuarts. What 
 had seemed under their predecessors to be an appropriate 
 element of dictatorial machinery stood out as an oppressive 
 engine of despotism. Encouraged by the great authority of 
 Bacon, the first two Stuart kings endeavoured to subordinate 
 the Judiciary to the Executive. * Encroach not,' said James I 
 to the judges, * upon the prerogative of the Crown ; if there 
 falls out a question that concerns my prerogative or mystery 
 of State, deal not with it till you consult with the King or 
 his Council, or both ; for they are transcendant matters. 
 That which concerns the mystery of the King's power is not 
 1120 T 
 
290 THE JUDICIARY: 
 
 lawful to be disputed.' ^ Bacon's language points not less 
 clearly in the same direction : ' It is a happy thing in a State 
 when Kings and States do often consult with judges ; and 
 again when judges do often consult with the King and State : 
 the one when there is matter of law intervenient in business 
 of state ; the other when there is some consideration of state 
 intervenient in matter of law. . . . Let judges also remember 
 that Solomon's throne was supported by lions on both sides ; 
 let them be lions, but yet lions under the throne, being 
 circumspect, that they do not check or oppose any points 
 of sovereignty.' ^ The meaning is unmistakable : the judges 
 were to become the handmaids of the Executive ; the prin- 
 ciple familiar to-day in many countries that administrative 
 acts are to be judged by administrative law was to be 
 imported into English jurisprudence. The judges were 
 naturally not slow to take hints coming from quarters so 
 influential. The decision in Bate's^ case may have been 
 due to a real ambiguity in the law; but it is difficult to 
 resist a suspicion that both in Darnel's case and in Hamp- 
 den's the decision of the Court was tinged by a regard for 
 the underlying principle of administrative law. The con- 
 venience of the Executive, or perhaps we should say the 
 necessities of the State, were considerations not remote from 
 the decision which violated the principle of Habeas Corpus 
 and from that which legalized ship-money. 
 
 The issue thus joined was one of the highest moment. 
 If the Judiciary was to be subordinated to the Executive, 
 the most effective of all safeguards for individual liberty was 
 gone. The abolition of the Prerogative Courts by the Long 
 Parliament (1641); the passing of an Act declaring ship- 
 money illegal (August 7, 1641); the confirmation of the 
 principle of Habeas corpus by the Act of 1679 : these did 
 much. But no final and adequate remedy was reached 
 
 1 Speech in the Star Chamber, 20 June, 161 6. 
 
 2 Essays: * of Judicature.' ' supra f^. 199. 
 
LIBERTY OF THE SUBJECT 291 
 
 until the Act of Settlement gave to the judges a tenure 
 conditional only on good behaviour and made them im- 
 movable save by an address to both Houses of Parliament. 
 
 Thus the Judiciary in England was rendered entirely 
 independent of the Executive. It is also entirely distinct 
 from the Legislature. It is true, as we have seen, that the 
 House of Lords possesses the supreme appellate jurisdiction. 
 But the exercise of that function is totally distinct from its 
 ordinary function of legislation. In fact, if not in theory, 
 the personnel of the Lords as a Court of Justice is clearly 
 distinguished from its personnel as a branch of the Legisla- 
 ture ; but that is a point on which it would not be safe to 
 insist. It is enough to say that for all practical purposes the 
 Judiciary is distinct from and independent of the Legislature. 
 
 Nevertheless, in two ways the Legislature continues to 
 assert its sovereignty over all persons and in all causes. It 
 can effect the removal of any individual judge for miscon- 
 duct; and it can, by an amendment of the law, virtually 
 override the decision of the Courts. And this is not infre- 
 quently done. The enactment of the Trades Disputes Bill 
 in 1906 was a direct result of the famous judicial decision in 
 the Taff Vale case. It did not, of course, technically reverse 
 that decision ; but by an amendment of the law it rendered 
 a repetition of that judgement impossible in the future. Thus 
 the Judiciary in England, though distinct from the Legisla- 
 ture, is in the last resort inferior to it. 
 
 In the United States of America it is otherwise, and in 
 order to emphasize the contrast it is worth while to examine 
 the position of the Judiciary in that country. The difference 
 between its position in America and its position in Great 
 Britain is, of course, due to the fundamental difference 
 between a federal and a unitary Constitution. In a federal 
 Constitution it is essential not only that the Constitution 
 should be above the law, or at least above the ordinary law, 
 but also that authority should be given to the Courts to act 
 
 T 2 
 
292 THE JUDICIARY: 
 
 as interpreters of the Constitution. In England the judges 
 are never called upon to interpret the Constitution, they 
 have only to interpret the law. In America, on the contrary, 
 they are required to determine the legality of the law itself. 
 An English Court may hold the opinion that in enacting 
 a particular law the Legislature acted with conspicuous 
 folly. But any such opinion they must keep to themselves ; 
 it is no part of their business to express it, still less to act 
 upon it. Least of all are they called upon to decide whether 
 the Legislature was legally competent to enact it. No such 
 question can, with us, possibly arise, for the simple reason 
 that in England there are no limits to the legal competence 
 of Parliament. 
 
 In America, on the other hand, the judges are constantly 
 called upon not merely to interpret a given law, but to decide 
 whether the law is law -, that is, whether the Legislature in 
 enacting it acted within the limits of the power assigned to 
 it by the Constitution. In other words, the judges are 
 actually guardians of the Constitution itself. 
 
 In order that they might perform a function so peculiar 
 and responsible, a special position was assigned to them by 
 the Constitution. Under Article III their position is made 
 clearly co-ordinate with that of the Executive (the President) 
 and Congress. The Judges of the Supreme Court occupy 
 an exceptionally strong position ; they are appointed for life 
 by the President, with the approval of the Senate, and are 
 removable only by the elaborate process of impeachment. 
 The action of the founders of the Constitution was deliberate. 
 They * affirmed the life tenure by an unanimous vote in the 
 convention of 1787, because they deemed the risk of the 
 continuance in office of an incompetent judge a less evil than 
 the subserviency of all judges to the Legislature. . . . The 
 result,' adds Mr. Bryce, ' has justified their expectations.' * 
 
 In order to emphasize a contrast I have described the 
 1 American Commonwealth^ i. 227. 
 
LIBERTY OF THE SUBJECT 293 
 
 Judges of the Supreme Court in America as 'guardians of 
 the Constitution '. To this description a purist might take 
 exception, and it is essential, therefore, to explain with 
 precision the sense in which this function can be attributed 
 to them. 
 
 The Court never presumes to act in this capacity on its 
 own initiative; it can do so only when in the ordinary 
 course a case is brought before it. 'The Court,' says 
 Mr. Eaton Drone, * has authority to expound the Constitution 
 only in cases presented to it for adjudication. Its judges 
 may see the President usurping powers that do not belong 
 to him, Congress exercising functions it is forbidden to 
 exercise, a State asserting rights denied to it. The Court 
 has no authority to interfere until its office is invoked in 
 a case submitted to it in the manner prescribed by law.' ^ 
 In other words the function of the Court is purely judicial. 
 Mr. Bryce, therefore, is clearly right in affirming that the 
 duty of American judges *is as strictly confined to the 
 interpretation of laws cited to them as it is in England or 
 France '. Such a statement, however, if it stood alone would 
 give an erroneous impression of the position of the American 
 Judiciary. Mr. Bryce himself supplies the necessary cor- 
 rective by pointing out that whereas in England there is 
 only one law for the judges to interpret, or rather that all 
 laws are of equal validity, in America there are four different 
 kinds of law possessing varying degrees of authority. Stated 
 in order of authority they are : (i) the Federal Constitution ; 
 (2) Federal Statutes; (3) State Constitutions ; and (4) State 
 Statutes. Of these the first prevails against all the rest. 
 Technically, therefore, the function of the judges is to 
 interpret the law of the Constitution. But on that inter- 
 pretation depends the question as to the validity of other 
 laws. 'The only question they have to consider,' says 
 Mr. Eaton Drone, ' is whether the power in dispute is granted 
 * Forum, February, 1890. 
 
294 THE JUDICIARY: 
 
 or withheld by the Constitution. It is not for them to say 
 whether the grant or the denial is a defect in the Constitu- 
 tion. . . . The judges may regard the law under consideration 
 as highly beneficial. If they think it contrary to the Con- 
 stitution they must declare it void. They may look upon 
 it as mischievous, tyrannical, or dangerous. If they find it 
 warranted by the Constitution they are bound to pronounce 
 it valid. They are not to consider whether the effect of 
 their decision will be to annul a good law, or to uphold 
 a bad one. That is the theory of the judicial function.' ^ 
 
 Nevertheless, desirable though it has seemed to define 
 that function strictly, it remains true that in effect the 
 judges act as guardians of the Constitution against the 
 possible assaults of the Executive or the Legislature. It is 
 just conceivably possible that a law which was enacted in 
 contravention of the Constitution might remain law, pro- 
 vided that no question as to its legality was ever raised 
 before the Courts. But such a contingency would mean 
 the assent or acquiescence of every individual citizen of the 
 United States, and is too remote for serious consideration. 
 
 The broad contrast which I was anxious to elucidate 
 remains therefore true : in England the judges can under 
 no circumstances entertain the question as to the com- 
 petence of the Legislature to enact a given law. If it is on 
 the Statute-book it is binding on them until it is amended 
 or repealed. In America the judges are constantly com- 
 pelled to entertain this question ; they must ask not merely 
 whether the law is on the Statute-book, but whether it has 
 a right to be there. The distinction is fundamental. It 
 is true that in both cases the Court is performing a judicial 
 function ; that in both cases it is interpreting law ; but in 
 England it has only one law to interpret, in America it 
 must have two and may have four. 
 
 Having thus, it is hoped, made clear the general position 
 ^ Forum, p. 657. 
 
LIBERTY OF THE SUBJECT 295 
 
 of the Judiciary in England, its relation on the one side 
 to the Executive and on the other to the Legislature, we 
 may proceed to describe the actual machinery by which the 
 law is administered. The task is rendered the more easy 
 since the machinery was completely overhauled in 1873-94. 
 
 The Courts may be divided into two categories : (i) the 
 Central or * Superior ' Courts located (with exceptions to be 
 noted presently) in London ; and (2) the ' Local ' or * In- 
 ferior' Courts scattered throughout the country. They 
 may further be subdivided into civil and criminal : Courts 
 which are concerned with rights of citizens inter se, in other 
 words With private law^ and Courts which are concerned with 
 offences against the Crown, as representing the State, in 
 other words with crime^ — a breach oi public law. 
 
 We deal first with procedure in criminal cases, and trace 
 it from the lowest to the highest rung of the judicial ladder. 
 
 Offences against the Criminal Law are of two kinds: 
 indictable, the more serious, and non-indictable. An 'in- 
 dictment ' is technically an accusation preferred by a Grand 
 Jury of presentment, a jury, that is, of magistrates not less 
 than twelve nor more than twenty-three in number. The 
 vast proportion of 'criminal' offences are now of a petty 
 character and are dealt with ' summarily ' by a Court con- 
 sisting of a magistrate or magistrates — i. e. Justices of the 
 Peace. These magistrates are appointed by the Lord 
 Chancellor ^ ; in counties, the chairmen of county and 
 district councils are ex-officio magistrates ; in boroughs the 
 mayor, and, for one year after vacating office, the ex-mayor. 
 The history of these important functionaries was sketched 
 in a previous chapter. They still administer justice in two 
 Courts — 'Petty Sessions', which meet frequently — in the 
 large towns daily — and * Quarter Sessions ', which are held 
 four times a year. 
 
 1 Usually on the recommendation of the Lord Lieutenant. A Royal 
 Commission appointed to consider the mode of appointment reported in 
 1 910, but no substantial change is recommended. 
 
296 THE JUDICIARY: 
 
 In the larger boroughs the lay magistrates are 'assisted' 
 — in practice superseded --- by a professional barrister 
 appointed by the Home Secretary, and known as a 
 
 • Stipendiary Magistrate ' ; in boroughs which have a separate 
 Court of Quarter Sessions they are presided over by a 
 
 * Recorder '. A ' Stipendiary ' is invested with the powers 
 of two ordinary justices and may consequently sit alone. But 
 otherwise the procedure is the same. All persons accused 
 of crime are now brought, in the first instance, before a 
 magistrate. If the offence is trivial it is disposed of ' sum- 
 marily' without a jury, and the accused, if convicted, is 
 sentenced at once. Such sentences must not exceed six 
 months' imprisonment. Some * indictable ' offences may, 
 at the option of the accused be dealt with summarily, but 
 the gravest must be * sent for trial ' to the Quarter Sessions 
 or the Assizes. Quarter Sessions are competent to try all 
 but the gravest offences— murder, treason, forgery, &c. — 
 either with or without a jury. An appeal in certain cases 
 may lie from Petty to Quarter Sessions, and from both to 
 the High Court of Justice. 
 
 Offences of the most serious character must go for trial to 
 the High Court of Justice, either in London, or at Assizes. 
 
 For the purpose of holding Sessions of the High Court 
 in different localities, England and Wales are divided up 
 into seven circuits. On each circuit there are three Assizes 
 a year; in Manchester, Leeds, and Liverpool there are 
 four. To each circuit one or sometimes two judges are 
 assigned to try criminal, and, where necessary, civil cases 
 as well. In all criminal cases a ' true Bill ' must first be 
 found by a Grand Jury before an accused person can be 
 put on his trial, while the question of guilt or innocence 
 is subsequently decided by a petty jury of twelve persons 
 whose verdict must be unanimous. 
 
 Whether the trial takes place before a judge on circuit 
 or in London the procedure is the same. Until 1907 there 
 
LIBERTY OF THE SUBJECT 297 
 
 was strictly speaking no appeal in criminal cases ; but in 
 that year a Court of Criminal Appeal consisting of two or 
 more judges of the High Court was established.' A con- 
 victed prisoner may now appeal on a question of law ; or, 
 by leave of the Court of Criminal Appeal or of the judge 
 who originally tried the case he may appeal on a question 
 of fact or mixed law and fact. The Crown's prerogative 
 of pardon, as exercised by the Home Secretary, remains 
 in theory unaffected ; in practice many cases which were 
 formerly reviewed at the Home Office now come before 
 the Court of Criminal Appeal. 
 
 We turn to the administration of Civil justice. 
 
 The Civil Court to which there is easiest access is the 
 'County Court'. These 'County Courts' are brand-new 
 tribunals created under an Act of 1846, and must be carefully 
 distinguished, therefore, from the historic Courts of the 
 Shire or County, with which they have no sort of con- 
 nexion. For County Court purposes England is divided 
 into some five hundred districts, in each of which a Court 
 is generally held every month. The districts are grouped 
 into circuits, to each of which a judge is appointed by the 
 Lord Chancellor. There are about fifty such judges, and 
 each judge, therefore, is responsible on an average for ten 
 districts. They sit with (or, almost invariably, without) 
 a jury, and are competent to try cases which involve claims 
 of less than ;^ioo. These Courts are exceedingly popular, 
 for in them justice is promptly, efficiently, and cheaply 
 administered. A recent statute (1905) has considerably- 
 enlarged their jurisdiction, and there is in some quarters 
 a desire to see it still further extended, e. g. to the decision 
 of divorce cases. A plaintiff may, as a rule, elect whether 
 he will proceed in the County or the High Court, but if 
 
 ^ The Home Secretary's power of revision amounted to something 
 like an appeal on questions of fact ; while the Court for Crown Cases 
 reserved could quash a conviction if a point of law reserved at the trial 
 was decided in favour of the prisoner. 
 
298 THE JUDICIARY: 
 
 the action is one which could legally be tried in the inferior 
 Court, resort to the High Court is, by the rules as to costs, 
 discouraged. In nearly all cases an appeal from the County 
 to the High Court is allowed on questions of law, an appeal 
 which may be carried stage by stage to the House of Lords. 
 But having regard to the number of cases tried in County 
 Courts appeals are comparatively rare — a striking testimony 
 to the satisfaction which is given to suitors by these Courts. 
 
 Apart from the County Courts there still survive a few 
 of the many local Courts with limited or local civil jurisdic- 
 tion, such as the Chancery Court of the Duchy of Lancaster ; 
 but these are exceptions which must not detain us. The 
 Courts of Common Pleas at Durham and Lancaster have 
 recently been absorbed by the King's Bench Division. 
 
 It is in regard to the superior Civil Courts that the 
 simplification effected during the last quarter of the nine- 
 teenth century is most conspicuously seen. Down to 1873 
 there were eight superior Courts of First Instance : the 
 King's Bench, the Common Pleas, the Court of Exchequer, 
 the Chancery Court, the High Court of Admiralty, the 
 Court of Bankruptcy, the Court of Probate, and the Court 
 for Divorce and Matrimonial Causes. Most of these Courts 
 had separate staffs of judges. 
 
 Mainly by the Judicature Acts of 1873, 1875, 1876, and 
 1894, taken in conjunction with an important Order in 
 Council of December 16, 1880, order has been evolved 
 out of the chaos which, however suggestive to the student 
 of history, was distracting to litigants and lamentably waste- 
 ful both of time and money. 
 
 There is now one Supreme Court of Judicature divided 
 into (i), the High Court of Justice ; and (2), the Court of 
 Appeal. The former has three divisions : 
 
 (i) The King's Bench Division, which now exercises the 
 jurisdiction formerly exercised by the Courts of King's 
 Bench, Common Pleas, and Exchequer, and the Court of 
 
LIBERTY OF THE SUBJECT 299 
 
 Bankruptcy. The Lord Chief Justice acts as President, 
 assisted by a staff of fifteen judges.^ 
 
 (2) The Chancery Division, under the Lord Chancellor 
 and six other judges.* 
 
 (3) The Probate, Divorce, and Admiralty Division, under 
 a President and one other judge. 
 
 Questions of fact may, in Divisions (i) and (3), be referred 
 to a jury at the instance of either party ; and in division (2) 
 with the leave of the judge. But except in the King's Bench 
 Division jury actions are rare, and even there tend to become 
 less infrequent. The importance of the change effected 
 by the Judicature Acts is clearly explained by Maitland : 
 'To each of these divisions certain business is specially 
 assigned . . . But this distribution of business is an utterly 
 different thing from the old distinction between courts of 
 law and of equity. Any division can now deal thoroughly 
 with every action ; it can recognize all rights whether they 
 be of the kind known as " legal ", or of the kind known as 
 "equitable"; it can give whatever relief English law (in- 
 cluding " equity ") has for the litigants '.' 
 
 To this High Court there is, in certain cases, an appeal 
 from inferior Courts. 
 
 From the High Court (including Courts of Assize) an 
 appeal lies in almost every case to the Court of Appeal. 
 This Court now consists of three ex-officio judges : the Lord 
 Chancellor, the Lord Chief Justice of England, and the 
 President of the Probate, Divorce, and Admiralty Division ; 
 and six permanent judges : the Master of the Rolls and five 
 ' lords justices of appeal '. Ex-Lord Chancellors are also ex- 
 officio judges of appeal, but can only be called upon to sit 
 with their own consent at the request of the Chancellor. 
 
 From the Court of Appeal and from the Scotch and 
 Irish Courts an appeal lies to the House of Lords — a 
 
 ^ Raised to sixteen (1910). 2 Raised to seven (1910). 
 
 ' op. cit. p. 472. 
 
300 THE JUDICIARY: 
 
 tribunal the composition and procedure of which have been 
 already described.* 
 
 There remains yet another Court of Appeal in regard to 
 which something must be said. The Act of the Long 
 Parliament (1641) which abolished the Court of Star 
 Chamber deprived the Privy Council of all jurisdiction in 
 England, but the Council still remained the supreme Court 
 of Appeal for admiralty cases and for all the King's oversea 
 dominions. This remnant of jurisdiction was not at the 
 time important, extending only to the Channel Islands, the 
 Isle of Man, and the American 'plantations'. With the 
 growth of oversea dominions it has of course become far- 
 reaching and highly important. In 1832 a further jurisdic- 
 tion was conferred upon the Queen in Council. Henry VIII 
 had created a Court of Delegates for hearing appeals from 
 the Ecclesiastical Courts; Elizabeth a similar Court for 
 admiralty appeals. These Courts were abolished in 1832, 
 and their jurisdiction was transferred to the Privy Council. 
 
 In the following year an important change was effected 
 in the constitution of the Court which exercised the judicial 
 functions of the Privy Council. Down to 1833 the work 
 was in fact done by such members of the Council as had 
 held high judicial office. 
 
 By an Act of 1833 the judicial work of the Council was 
 transferred to a special Judicial Committee. This was to 
 consist of the Lord President, the Lord Chancellor, and 
 such other members of the Council as held or had held 
 high judicial office. These were to include, in ecclesiastical 
 cases, all the archbishops and bishops who were members 
 of the Council. In 1871 four paid members were ap- 
 pointed, but their places have now been taken by the 
 Lords of Appeal in Ordinary — the four * law lords 'y^ desig- 
 nated by the Act of 1876 for the judicial work of the 
 House of Lords. Under the same Act (1876) the arch- 
 * supra, cc. vi and vii. ^ supra, c. vii. 
 
LIBERTY OF THE SUBJECT 301 
 
 bishops and such bishops as are members of the Privy 
 Council may be summoned, for the hearing of appeals in 
 ecclesiastical cases, as assessors, but they are no longer 
 members of the Committee. The King may also appoint 
 persons who have served as Indian or Colonial Judges. But, 
 in effect, the composition of the Judicial Committee of the 
 Privy Council is almost identical with that of the House of 
 Lords sitting in a judicial capacity. 
 
 But there is an important difference in procedure. A 
 judgement of the House of Lords is a quasi-legislative Act. 
 A vote is taken and (if there be a division) the division list 
 is published. The Judicial Committee, as befits a Committee 
 of the Council, 'advises' the Crown. It is the King in 
 Council by whom the Order, embodying the judgement, is 
 formally made. The judgement of the Judicial Committee 
 must, therefore, unlike that of the House of Lords be 
 unanimous.^ Moreover, while the latter is bound by its 
 own decisions ; the former is not. 
 
 Such is the machinery which now exists for the adminis- 
 tration of justice in England. It is necessarily elaborate, but 
 it has been straightened out and simplified to an almost incre- 
 dible extent since 1873. A few words may be added on what 
 it is now possible to describe as the antiquities of the subject. 
 
 English legal administration has almost from the first 
 rested on two principles : (i) that the King is the source or 
 fount of justice ; and (2) that * the suitors are the judges '. 
 These two principles, at first sight contradictory, have in 
 course of time been blended into the system with which we 
 are familiar. The administration of justice must in primitive 
 societies necessarily be mainly local. Hence the importance 
 of the local Courts of the Shire and the Hundred de- 
 scribed in a previous chapter. In those popular or * com- 
 munal ' courts the ' justice ' is practically ' folk right ', and is 
 administered by the freemen themselves, or in technical 
 * Or, at any rate, dissent must not be published. 
 
302 THE JUDICIARY: 
 
 phrase the ' suitors are the judges '. But against the main- 
 tenance of this idea two forces soon came to operate : the 
 centrahzing authority of the Crown, and the more immediate 
 authority of the local territorial magnate; the force of 
 feudalism. To some extent, however, in justice, as in 
 government, these two forces 'cancelled out'. Between 
 royal justice and feudal justice there was more of antagonism 
 than between royal justice and communal. Hence the stern 
 insistence of the Norman and Angevin Kings upon the 
 attendance of the tenants-in-chief at the Shire Courts ; upon 
 the rights of the Sheriff even as against the ' franchises ' of 
 the Barons. 
 
 Under Henry I, still more systematically under Henry II, 
 We see new machinery in operation. The Barons of the 
 Exchequer, the King's Justices, go forth as Royal Com- 
 missioners to collect revenue and incidentally (at first) to 
 administer justice. Their first business is to hold 'Pleas 
 of the Crown', to decide, that is, any suits in which the 
 King is interested. Simultaneously the central Curia takes 
 on a specialized organization. At first it is difficult to draw 
 any line between legislative, administrative, and judicial 
 work. Gradually the functions are differentiated and the 
 Curia Regis (as distinct from the Concilium Regis) emerges 
 specifically as a Court of Justice. Later still we perceive 
 three divisions of this Court : (i) the King's Bench — the 
 King's own Court, held coram ipso dofnino Rege — the Court 
 which had jurisdiction in all criminal cases, and in all Pleas 
 of the Crown; (2) the Court of Common Pleas, for the 
 trial of all cases between subject and subject ; and (3) the 
 Court of Exchequer, dealing with all cases involving revenue. 
 By the reign of Edward I, each of these Courts has its own 
 staff of judges. But the parent Conciliui?i has not parted 
 with all judicial function. It still belongs to the King-in- 
 Council to redress inequities in the working of his Courts, 
 and to correct the errors of his judges. These two germinal 
 
LIBERTY OF THE SUBJECT 303 
 
 ideas eventually give us the specialized Court of the Chan- 
 cellor and the supreme appellate jurisdiction of the House 
 of Lords. 
 
 To some extent these two Courts are in conflict. Between 
 Parliament and the Council there was, as we have seen, 
 a long and bitter struggle. Eventually the House of Lords 
 finds its own work in correcting the errors in law of the 
 ordinary Courts. Meanwhile, the Chancellor has been 
 developing, side by side with the ordinary Courts but out- 
 side them, a jurisdiction of his own. It arises naturally 
 from his function as Keeper of the King's Conscience.^ 
 There are cases in which the application of strict rules of 
 law will result in a denial of equity. Thus there is gra- 
 dually evolved a system of equity, designed to supplement 
 the deficiencies and to correct the inequities of the common 
 law, and the Court of Chancery has come into being. 
 In time, particularly in the fifteenth century, and for 
 reasons already explained, the Common Law Courts reveal 
 weaknesses and deficiencies in the administration of criminal 
 justice. There is room for a Court of 'criminal equity' 
 (if one may so phrase it), particularly for a Court strong 
 enough to deal with powerful offenders. The King's Council 
 is the obvious resource, and the regular exercise of criminal 
 jurisdiction in the Court of the Star Chamber is the result. 
 The many controversial questions in connexion with the 
 precise status of this Court are beyond the scope of this 
 book. Clearly and indisputably, however, the Court of Star 
 Chamber represents the jurisdiction of the Council, and by 
 the Statute of 164 1 the Council as clearly is deprived of it. 
 
 All this represents the development of the idea that the 
 King in person is the source of justice, delegating the ad- 
 ministration of it to whomsoever he will. But there is 
 another root-idea of which it were unsafe not to take 
 account. The 'suitors are the judges'. Justice is com- 
 * supra ^ p. 122. 
 
304 THE JUDICIARY: 
 
 munal as well as regal. I do not seek to connect this idea 
 with the institution of which I am about to speak ; there 
 are too many pitfalls in the path ; communal justice is clearly 
 a Teutonic principle ; trial by jury is mainly the develop- 
 ment of a Norman idea. But the latter seems in a sense 
 to fulfil an instinct which was deep rooted in our English 
 system long before the Conqueror landed at Pevensey. 
 
 * Trial by Jury ' represents two distinct ideas : on the one 
 hand, the obligation resting upon the lawful men of a par- 
 ticular district to bring before the King's Justices those who 
 are suspected of crime ; and on the other, the ascertainment 
 of facts by a process of inquest, by the sworn information of 
 those who are personally cognizant of the facts. We can 
 trace here the lineaments of our ' grand ' and ' petty ' juries. 
 It is still the business of the legal men of the shire — of the 
 county magistrates sitting as a * grand jury ' — to indict before 
 the King's Judges the persons reasonably suspected of crime ; 
 to find against them 'a true bill'. The 'petty' jury were 
 originally not judges of fact, but sworn witnesses. They 
 represented a form of * inquest ' applied in the first instance 
 to an ascertainment of the fiscal rights of the Crown. The 
 facts recorded in the Domesday Survey were obtained by 
 commissioners, from sworn information laid before them by 
 the men of the particular locality concerned. The procedure 
 was subsequently adapted to many other purposes ; to the 
 determination of questions of ownership ; of obligations in 
 regard to national defence ; and ultimately to criminal in- 
 vestigations. The * sworn men ' were witnesses to facts. 
 Later on, the original jury, imperfectly acquainted with the 
 facts, were 'afforced' by others who could speak to them from 
 personal knowledge. Thus the * jury ' was gradually distin- 
 guished from ' witnesses '. Ultimately the divorce becomes 
 complete. The jury must arrive at a decision as to the 
 facts from the sworn testimony laid before them by witnesses 
 and from that only. 
 
LIBERTY OF THE SUBJECT 305 
 
 In the persistence of the jury system we have a further 
 illustration of a characteristic English trait to which attention 
 has already been directed : a certain mistrust of ' expert ' or 
 * professional ' opinion ; a desire to associate laymen with 
 experts, amateurs with professionals. We have seen it in 
 the harmonious co-operation of Cabinet Ministers and Civil 
 Servants ; of Town Councillors and Town Clerks ; of stipen- 
 diary and unpaid Magistrates. Most remarkable of all, 
 perhaps, is the association of the ' learned ' judge and the 
 unlearned jury. 
 
 iiao 
 
CHAPTER XV 
 
 THE STATE AND THE EMPIRE : DOMINIONS, 
 COLONIES, AND DEPENDENCIES 
 
 'The relation of a modem state to her highly developed colonies 
 opens out a class of unprecedented facts demanding a class of political 
 expedients equally unprecedented.'— Sheldon Amos. 
 
 ' We are not now to consider the policy of establishing representative 
 government in the North American Colonies. That has been irrevocably 
 done, and the experiment of depriving the people of their present con- 
 stitutional power is not to be thought of. To conduct the government 
 harmoniously in accordance with its established principles is now the 
 business of its rulers. . . . The Crown must . . . submit to the necessary 
 consequence of representative institutions ; and if it has to carry on the 
 government in unison with a representative body it must consent to 
 carry it on by means of those in whom that representative body has 
 confidence.'— Lord Durham. 
 
 * There never has been anything so extraordinary under the sun as the 
 conquest and still more the government of India by the English ; nothing 
 which from all points of the globe so much attracts the eyes of mankind 
 to that little island whose very name was to the Greeks unknown. Do . 
 you conceive that a nation which has once filled this amazing space in 
 the imagination of our race can withdraw from it with impunity ? For 
 my part I do not think so. I think the English are obeying an instinct 
 which is not only heroical, but true, and a real motive of conservation 
 in their resolution to keep India at any cost.' — Tocqueville. 
 
 * Such is the British Empire of to-day: an elaborate mosaic wherein, 
 side by side with the Empire of India, Dominion, Commonwealth, Self- 
 governing Colony, Crown Colony, Chartered Company, Protectorate, 
 Sphere of Influence, adds each its lustre to the pavement which is ever 
 being trod by fresh generations of our race as they pass to and fro.' — 
 H. E. Egerton. 
 
 We have so far considered the United Kingdom merely 
 as a unitary State of the ordinary type, with the political 
 
DOMINIONS, COLONIES, DEPENDENCIES 307 
 
 institutions appropriate thereto. But no survey of English 
 institutions could pretend even to provisional completeness 
 if it were arrested at this point. England may be the pre- 
 dominant partner of the United Kingdom ; but the United 
 Kingdom is itself the centre and sovereign of the greatest 
 Empire known to human history. 
 
 Figures can convey but a feeble impression of its magni- 
 tude, still less of its potential greatness. They are, indeed, 
 in a sense misleading. But for what they are worth they 
 may be recorded. 
 
 The British Empire extends over one-fourth of the whole 
 surface of the globe, and contains about one-fifth of its 
 inhabitants. The total area of the Empire is over 11^ 
 millions of square miles. Of this total the United Kingdom 
 claims 121,027 square miles, India 1,766,797, British North 
 America nearly four millions, Australasia over three, and 
 United South Africa nearly half a million. Thus, taken 
 together, the self-governing Dominions — the sister-nations — 
 claim nearly three-quarters of the whole. Put in another 
 way, which may perhaps bring facts home to us more vividly, 
 we may say that the whole Empire is about ninety-one times 
 as big as the United Kingdom ; that King George V is the 
 Sovereign lord of one United Kingdom in Europe and ninety 
 others scattered over the face of the globe. These figures 
 exclude Egypt and the Soudan. The distribution of popula- 
 tion presents a very different picture. 
 
 The total population of the Empire is about 400 millions, 
 or 420 including Egypt, the Soudan, and a few outlying 
 Protectorates or spheres of influence. Of the 400 only about 
 55 are people of European descent. Of these the United 
 Kingdom claims 44, Canada nearly seven, and Australasia 
 about 4j millions. United South Africa has a population 
 of some 5^ millions, of whom nearly a million and a quarter 
 are white. India alone has a population of nearly 300 millionSj 
 and the balance is contributed by the West Indies and the 
 
 u 2 
 
3o8 THE STATE AND THE EMPIRE : 
 
 outlying possessions. Interest naturally concentrates, save 
 for the great Dependency of India, which stands entirely 
 apart, upon the self-governing Colonies, though the cutting 
 of the Panama Canal will unquestionably restore to the 
 West Indies something of the importance which, during 
 the last century, they lost. 
 
 Geographically, the Empire falls naturally into six great 
 groups : ( I ) the European, with the United Kingdom itself," 
 the Isle of Man, the Channel Islands, and the strategical 
 points in the Mediterranean — Gibraltar, Malta, and Cyprus ; 
 (2) the North American, including, besides the great Dominion 
 of Canada, Newfoundland and Labrador, British Guiana, 
 Honduras, the Falkland Islands, and Bermuda; (3) the 
 Australasian, including the Commonwealth, New Zealand, 
 Fiji, and New Guinea ; (4) the African, including, in addition 
 to the four united Colonies, Rhodesia, Nigeria, various Pro- 
 tectorates, and some strategical points, such as St. Helena 
 and the Mauritius ; (5) the Asiatic, incUding, besides India 
 itself, Ceylon, Hong Kong, the Straits Settlements, the Malay 
 States, Labuan, North Borneo, and Sarawak; and finally 
 (6) the West Indian Islands, of which the most important 
 are Jamaica, Bahamas, Barbados, Trinidad, and Tobago, 
 the Windward and Leeward Islands. 
 
 Constitutionally this vast Empire is so heterogeneous as 
 almost to defy classification, but it falls broadly into three 
 great groups. The first includes the Colonies with * respon- 
 sible' government, the great self-governing Dominions or 
 'Sister-States'. At the opposite pole are the Crown Colonies. 
 The latter may be further subdivided, but they are all ad- 
 ministered more or less autocratically by a Governor who 
 is directly responsible to the Colonial Office in Whitehall. 
 Intermediate between the Crown Colonies and the * respon- 
 sible ' Dominions are the Colonies endowed with representa* 
 tive Legislatures, but without a responsible Executive. 
 
 Outside these broad categories we must take note of the 
 
DOMINIONS, COLONIES, DEPENDENCIES 309 
 
 territories which, like Rhodesia, are still administered by 
 Chartered Companies ; Protectorates, such as Bechuanaland 
 and Uganda; and various 'Spheres of Influence'. This 
 Constitutional classification will demand more detailed con- 
 sideration later on. For it is hardly possible to render it 
 intelligible without some account, however short and sum- 
 mary, of the way in which the Empire was built up. For 
 the moment, we exclude India and confine ourselves to the 
 Colonial Empire proper. 
 
 According to legal definition the term Colony includes 
 *any part of His Majesty's dominions exclusive of the 
 British Islands (i. e. the United Kingdom, the Channel 
 Islands, and the Isle of Man), and of British India '.* The 
 term is thus equally applicable, in a legal sense, on the one 
 hand to Hong Kong, a trading station, Gibraltar, a fortress, 
 and Ascension, which is administered not by the Colonial 
 Office, but by the Board of Admiralty, in whose books it is 
 said to be ' rated ' as a man-of-war ; and, on the other, to 
 Canada, South Africa, and Australia. These latter have of 
 late repudiated the term Colony, with its supposed implica- 
 tion of inferiority and subordination, and desire to be known 
 as Dominions. In view of the mixed company to which 
 they were consigned by the Interpretation Act of 1889, their 
 susceptibility is not wonderful, and in any case must be 
 respected. Otherwise, there would be much to be said for 
 confining the term ' Colony ' to those lands which alike by 
 their expanse, their voidness, and their climate offer almost 
 illimitable fields for the expansion of the British race ; and 
 consigning all else to the category of dependencies. 
 
 The history of the over-sea Empire falls into two broad 
 periods : the first extends from the foundation of Virginia 
 (1607) to the loss of the thirteen Atlantic Colonies of 
 America in 1783; the second, from 1783 to the present 
 day. In each of the two periods the growth of the Empire 
 1 Interpretation Act, 1889 (52 & 53 Vict. c. 63, § 18 (i, 3)). 
 
3IO THE STATE AND THE EMPIRE : 
 
 was due to the operation of two forces : that of conquest, 
 and that of peaceful plantation, — colonization by simple 
 settlement. 
 
 During the first period we founded, mainly, though not 
 exclusively, by peaceful plantation, an Empire, great even 
 then and with untold potentialities ; we founded it and 
 lost it. In the second period we have founded, partly by 
 conquest, partly by discovery and settlement, an Empire 
 still vaster in extent, and in potentialities superior even to 
 the first. It is the question of questions, not merely for 
 Great Britain, or for Greater Britain, but for the world at 
 large, whether British statesmanship — the statesmanship of 
 the mother and daughter lands — will be equal to the supreme 
 task of devising means for averting from the second Empire 
 the fate which befell the first. 
 
 The history of the first and lost Empire must not detain 
 us at any length. It opens, in a Constitutional sense, with 
 the grant (1600) by Queen Elizabeth of a Royal Charter to 
 a company of merchants, to trade with the East Indies* 
 In 1606 a similar grant was made by James I to the 
 Virginia Company. Between 1607 and 1732 EngHshmen 
 established themselves, under every variety of condition, on 
 the narrow strip of land between the AUeghanies and the 
 Atlantic sea-board of America. Here were planted the 
 original thirteen Colonies. The foundation of twelve of 
 them was due to simple settlement on lands uninhabited by 
 white men and sparsely peopled by natives ; the thirteenth, 
 the New Netherlands, came into our hands by conquest from 
 the Dutch (1667), and was rechristened after its first English 
 proprietor, the King's brother and heir presumptive to the 
 throne. New York. The acquisition of New York made the 
 English masters of the Eastern sea-board of North America 
 from Carolina to Maine.* 
 
 Meanwhile, Newfoundland had long since been formally 
 
 * Georgia was colonized later — in 1732. 
 
DOMINIONS, COLONIES, DEPENDENCIES 311 
 
 though not effectively occupied, and during the first half of 
 the seventeenth century Barbados, the Bahamas, the Leeward 
 and Windward Islands were occupied in the name of the 
 English Crown. The conquest of Jamaica from the Spaniards 
 in 1655 was, however, the real beginning of our West Indian 
 Empire. Already we were at conflict in the New World 
 with European neighbours. 
 
 Not Spain, however, nor the Netherlands, was destined to 
 prove our real rival in the Far West. That rival was France. 
 
 France was comparatively late in entering upon the field 
 of colonial enterprise. But even so she was considerably 
 ahead of England. It was in 1534 that Jacques Cartier first 
 sailed up the St. Lawrence, and two years later that he 
 took out a band of two hundred settlers who laid the 
 foundations of French Canada. Early in the seventeenth 
 century the French founded Quebec and Montreal, and 
 effected settlements on the island of Cape Breton and upon 
 the peninsula of Acadie, better known to us as Nova Scotia. 
 Thus was France firmly established to the north of the 
 English Colonies in North America; and not there only. 
 In 1673 Marquette, a Jesuit missionary, led an expedition 
 from the Canadian lakes which made its way some distance 
 down the Mississippi. Some years later I^salle, a French fur 
 trader, reached the mouths of that great waterway. About 
 1 700 the Colony of Louisiana was established. It is soon after 
 this that we begin to hear of the French claim to the whole 
 vast hinterland of the American continent, from the valley of 
 the Ohio to the Pacific. France was willing, for the time at 
 any rate, to leave to the English colonists the narrow strip 
 of land already occupied between the Alleghanies and the 
 Atlantic, but everything to the west of the Alleghanies was 
 to be under the dominion of France. 
 
 Nor were the French wholly without the means of en- 
 forcing claims so far reaching. Firmly planted on the St. 
 Lawrence and on the Mississippi their position was one of 
 
312 THE STATE AND THE EMPIRE: 
 
 immense strategical advantage — given one condition. Their 
 claim to the hinterland was empty words, their attempt to 
 hem in the English Colonies behind the AUeghanies was 
 mere foolishness, unless they could establish a strong line of 
 communications between Canada and Louisiana, and this, 
 during the first half of the eighteenth century, was the 
 supreme object of French military policy in the new 
 world. Nor did it fall far short of success. France 
 actually built a line of fortresses from the Lake Champlain 
 to the sources of the Ohio — Crown Point, Ticonderoga, and 
 Fort Duquesne. Could they complete the chain ? Could 
 the French in Canada join hands with the French in 
 Louisiana, and thus effectually hem in the English Colonies 
 between the AUeghanies and the sea ? If they could the 
 days of English supremacy on the American continent were 
 numbered, or rather would never be counted at all. 
 
 The crisis was reached in the years between 1740 and 
 1760, the period covered by the wars known in English 
 history as the War of the Austrian Succession (1740-8) and 
 the Seven Years' War (1756-63). As regards the North 
 American continent the two wars are merely two acts of 
 one drama, the drama which was to decide whether England 
 or France was to dominate the Great West. Details are 
 quite beyond the scope of this chapter. Enough to say 
 that thanks to the tardy but complete awakening of England 
 under Pitt, thanks to the military genius of Amherst and 
 Wolfe, and to the naval victories of Boscawen and Hawke, 
 the danger was averted ; the chain of fortresses was broken ; 
 and the English of the Eastern Colonies were left free to 
 expand into the illimitable lands of the Far West. 
 
 More than that. The capture of Fort Duquesne — the 
 real key to the position — in 1758, followed by that of 
 Ticonderoga and Crown Point in 1759, averted all real 
 danger from France. The capture of Quebec in 1759 
 carried the war into the enemy's country, and put Canada 
 
DOxMINIONS, COLONIES, DEPENDENCIES 313 
 
 itself at the mercy of England. By the great Treaty of 
 Versailles in 1763 England retained that great prize, and at 
 the same time took Florida from Spain. Henceforward 
 there could be no question as to which race was to be 
 dominant on the North American continent. The long 
 struggle had ended in the discomfiture of the Latin and the 
 triumph of the Teutonic folk. 
 
 But not without qualms was Canada retained. There 
 were those in England who would have preferred to see it 
 restored to France, in exchange perhaps for one or two 
 additional islands in the West Indies. In favour of such an 
 exchange there was much, at the time, to be said. None 
 dreamt of the potential wealth of the barren North; the 
 rich islands were at that time far more accounted of than 
 the ice-bound continent. But this was not the only argu- 
 ment. ' The possession of Canada ', wrote one, * far from 
 being necessary to our safety may in its consequences be 
 even dangerous. A neighbour that keeps us in some awe 
 is not always the worst of neighbours.' It was not only 
 Englishmen who perceived the dangers ahead. ' England ', 
 wrote Vergennes, ' will soon repent of having removed the 
 only check that could keep her Colonies in awe. They 
 stand no longer in need of her protection. She will call on 
 them to contribute towards supporting the burdens they 
 have helped to bring on her, and they will answer by 
 striking off all dependence.' Vergennes' prediction was 
 fulfilled to the letter : so literally, indeed, that it is difficult 
 to believe that it was not apocryphal. 
 
 But despite these sinister predictions Canada was retained 
 at the Peace of 1763. Within twenty years the thirteen 
 original Colonies were lost. 
 
 Into the story of the disastrous fratricidal struggle which 
 issued in the great disruption of 1783, it is no part of my 
 purpose to enter. The quarrel itself was due to several 
 contributory causes. The acquisition of Canada was not 
 
314 THE STATE AND THE EMPIRE: 
 
 among them ; but it cannot be doubted that the expulsion 
 of the French from Canada and the Ohio valley and that of 
 the Spaniards from Florida gave the English colonists the 
 opportunity for indulging with safety any quarrelsome temper 
 to which, on other grounds, they might be inclined. Nor 
 was taxation the prime cause of the dispute. Too much 
 has been made of the Stamp Act. It was heartily disliked, 
 and afforded to the disaffected a convenient fulcrum for 
 agitation. But, after all, it remained upon the Statute-book 
 hardly a twelvemonth. The root-cause of the disruption 
 was the attempt on the part of the mother-country to restrain 
 the trade of the Colonies within the narrow limits permitted 
 by the Navigation Laws. Those laws had been on the 
 Statute-book for a century ; but they had been almost en- 
 tirely disregarded. George Grenville, honestly but stupidly, 
 thought it his duty to enforce them. The American Customs, 
 so far from yielding a revenue, were an actual drain upon the 
 resources of the mother-country. Massachusetts had, by 
 connivance, become a nest of smugglers. Grenville wanted 
 money for the defence of the Colonies, and in an unlucky 
 moment bethought him of the disregarded trade laws. His 
 ingenuity lost us the American Colonies. But there were 
 other reasons. The French were, naturally, burning for 
 revenge, and did all in their power to exacerbate the quarrel 
 and to render the breach irreparable. War once begun, 
 other nations were quick to reveal the jealousy with which 
 they regarded the marvellous success which had attended 
 England on land and at sea for the last half-century. By 
 1780 we were virtually at war with the world. France, 
 Spain, Holland, and the confederate Colonies were open 
 enemies. Russia, Prussia, Denmark, Sweden, and others 
 were leagued against us in 'armed neutrality'. Ireland, 
 organized in a volunteer force, seized, not unnaturally, the 
 unique opportunity for asserting the independence of her 
 Parliament ; of taking the Home Rule we were in no con- 
 
DOMINIONS, COLONIES, DEPENDENCIES 315 
 
 dition to refuse. Gibraltar was saved only by a heroic 
 defence ; India, but for Warren Hastings and the veteran 
 Coote, had been wrested from our grasp. In England itself 
 George III had succeeded to the sceptre of Pitt, with results 
 revealed in the contrast which Saratoga and Yorktown 
 afforded to Quebec and Fort Duquesne. 
 
 The year 1783 is the point of demarcation between the 
 old colonial system and the new. The great schism left 
 England without any colonies proper — vacant fields open 
 to settlement by the English race — except Newfoundland. 
 Canada and Nova Scotia were colonies of Frenchmen which 
 had lately come into the hands of England by conquest ; the 
 West Indies — saved from the general wrack by the victories 
 of Rodney — were immensely valuable plantations; British 
 India was a great dependency governed by a Chartered 
 Company. The colonial system had to be built up afresh. 
 
 The first start was made in Canada. The triumph of 
 1783 was marred for the American States — soon to become 
 united — by the scandalous treatment accorded to the 
 ' loyalists ' — those who had remained faithful to the mother- 
 country in the recent war. Ruined in estate and socially 
 outcast the independent States no longer afforded a home 
 to them. Even France intervened to restrain the vengeance 
 taken by her victorious allies. We did our utmost to miti- 
 gate the hardness of their lot. Free grants of land were 
 offered to them in Canada, and in the years immediately 
 following the Peace, thousands of them flocked over the 
 border into Canada. The immigrants from the States were 
 joined by emigrants from home, and in this manner a new 
 Canada was added to the old. Friction presently arose. 
 The old Canada was French in blood and Roman Catholic 
 in creed ; the new was English and Protestant. Pitt realized 
 the difficulty, and by his Canada Constitutional Act of 179 1 
 made a bold attempt to grapple with it. Canada was divided 
 into two provinces. Upper (Ontario) and Lower (Quebec) ; 
 
3i6 THE STATE AND THE EMPIRE : 
 
 and in each there was to be a bicameral Legislature : (i) an 
 elected Legislative Assembly ; and (2) a small Legislative 
 Council, consisting of persons nominated by the Crown for 
 life. In neither colony was the Executive to be responsible 
 to the Legislature. The Constitution Act followed pretty 
 closely the type of government which had been evolved in 
 the American Colonies. The thirteen Colonies had presented 
 many varieties of detail ; but the typical Constitutional form 
 was that of a Governor, a nominated Council, and an elected 
 Assembly. The system never was ideal ; functions were ill 
 defined; the Governor's position as between the English 
 Crown and his colonial subjects (on whom, as a rule, his 
 salary was dependent) had been often painfully ambiguous : 
 one part Viceroy, another part Prime Minister, a third 
 part managing-director of a commercial company. The 
 Council, except in Pennsylvania and Massachusetts, had been 
 nominated by the Crown, but it was not strictly an Upper 
 House, still less strictly was it an Executive Council. It 
 played to some extent both parts, but only in Massachusetts, 
 where it was elective, with any degree of effectiveness. As 
 a rule, the elected Assembly had quickly drawn to itself all but 
 supreme power, and it was power without the responsibility 
 which comes from participation in the Executive Govern- 
 ment. 
 
 This was the rock on which Pitt's scheme for Canadian 
 government really foundered. It worked tolerably well for 
 a time ; but not seldom there was acute friction between the 
 Governor and the Assembly ; between the Executive and 
 the Legislature, which had the power of the purse. There 
 were other elements of discord — ecclesiastical, fiscal, and 
 racial ; but at the root of them was the Constitutional 
 problem : the difficulty of working representative institu- 
 tions without an Executive responsible to the Legislature. 
 In 1837 all Canada was in ferment ; Lower Canada was in 
 open rebellion. Sir Robert Peel wrote to Wellington ' in 
 * Peel Papers, ii. 355. 
 
DOMINIONS, COLONIES, DEPENDENCIES 317 
 
 terms which would suggest that the 'immediate loss of 
 Canada' was not a remote contingency. The crisis was 
 undeniably very serious. Lord Durham was sent out by 
 the Government, and though his rashness compelled them 
 to recall him in something like disgrace he drafted a Report * 
 which remains to this day one of the most important State 
 documents in the entire history of British colonial administra- 
 tion. Lord Durham went out to Canada with the avowed 
 hope that he might be ' the humble instrument of conferring 
 upon the British North American Provinces such a free and 
 liberal Constitution as shall place them on the same scale of 
 independence as the rest of the possessions of Great Britain '. 
 His ambition was more than fulfilled. Like Eliot and Pym 
 he fixed upon the principle of a * responsible ' Executive as 
 the corner-stone of Constitutional liberty, and insisted that 
 if confidence and loyalty were to be restored in Canada it 
 could only be in one way : * the Crown must consent to 
 carry the Government on by means of those in whom the 
 representative members have confidence.' And again : ' The 
 Governor . . . should be instructed that he must carry on 
 his Government by heads of departments in whom the 
 united Legislature shall repose confidence; and that he 
 must look for no support from home in any contest with 
 the Legislature except on points involving strictly Imperial 
 interests.' In a word, the Cabinet system must be intro- 
 duced into the Colonial Constitution; Ministers must be 
 responsible to the local Legislature, and the Governor, 
 acting in all matters of merely local interest on their advice, 
 must accept the position of a ' Constitutional ' ruler. This 
 is the key-note of the Durham Report^ a document 
 which is now easily accessible, and should be carefully 
 studied by all who seek to understand the Constitutional 
 evolution of the over-sea Dominions of the British Crown. 
 In accordance with Lord Durham's recommendations the 
 * Reprinted by Methuen & Co., 1902. 
 
3i8 THE STATE AND THE EMPIRE : 
 
 Canadian Union Act of 1840 was passed by the Imperial 
 Parliament. Under this Act the two Canadas were once 
 more united, and for the whole Colony there was to be one 
 Legislature, with a * responsible Executive'. The Legisla- 
 ture was to be bicameral : an elected Assembly and a 
 Legislative Cou?icil consisting of not less than twenty persons 
 nominated by the Crown for life. Curiously enough, the 
 principle on which Durham laid so much stress was not 
 specifically enunciated in the text of the Act. The Act 
 merely refers (§ 45) to ' such Executive Council ... as may 
 be appointed by Her Majesty '. As to the mode of appoint- 
 ment there is not a word. And though this was recognized 
 as the key-note both of Durham's recommendations and the 
 policy of Lord Melbourne's Government, it was not until 
 the Governorship of Lord Elgin — Durham's son-in-law — 
 that the Cabinet system was definitely established in Canada. 
 In 1847 Lord Elgin was formally instructed ' to act generally 
 on the advice of the Executive Council and to receive as 
 members of that body those persons who might be pointed out 
 to him by their possessing the confidence of the Assembly '. In 
 this fashion — characteristically indirect — did the principle of 
 ' responsible Government ' make its way for the first time 
 into a colonial Constitution. 
 
 Nor did it fail to justify the expectations founded upon 
 it. The friction between Legislature and Executive, almost 
 continuous between 1791 and 1840, rapidly abated. But 
 the Union Act of 1840 was not destined to finality. It 
 solved one great problem, but it accentuated another. In 
 one respect, indeed, it was clearly retrograde. In 1791 
 Pitt had recognized the existence of two Canadas ; the Act 
 of 1840 sought to unite them into one. It entirely failed 
 to do so, and the longer it had remained upon the Statute- 
 book the more conspicuously would it have demonstrated 
 its ineptitude. For British North America never has been 
 a unity. Provincial feeling has always been strorig, and 
 
DOMINIONS, COLONIES, DEPENDENCIES 319 
 
 though the presence of a powerful neighbour has prevented 
 the triumph of separatism, geography and sentiment have 
 combined to prohibit unity. Only one Constitutional device 
 could avail to reconcile the opposing forces, centripetal and 
 centrifugal. Some form of federation was inevitable unless 
 British North America was to disintegrate into fragments 
 whose weakness would tempt irresistibly the cupidity of 
 neighbours. The movement towards Canadian federation 
 came to a head under the Governorship of Lord Monckj 
 and in 1867 the British North America Act was passed 
 by the Imperial Parliament. Ontario, Quebec, Nova Scotia, 
 and New Brunswick were the original units of the federation, 
 which now includes, in addition, Manitoba, Vancouver and 
 British Columbia, Prince Edward Island, Alberta, and 
 Saskatchewan. Linked together by that great Imperial high- 
 way, the Canadian Pacific Railroad, these nine Provinces 
 now form the federal Dominion of British North America. 
 
 Legislative power is vested in the King and a Parliament 
 of two Houses : a Senate consisting (i 910) of eighty-seven 
 members nominated for life by the Crown on the advice of 
 the Ministry. Twenty-four Senators are assigned to Quebec 
 and Ontario respectively, ten each to Nova Scotia and New 
 Brunswick ; four each to Manitoba, Alberta, Saskatchewan, 
 and Prince Edward Island, and three to British Columbia 
 and Vancouver. In the House of Commons Quebec has 
 and must always have sixty-five members, the rest being 
 assigned to the several Provinces according to population. 
 The Executive is vested in the Governor-General, assisted 
 by a Cabinet responsible to the Legislature and known as 
 the ' King's Privy Council of Canada '. In each Province 
 there is a Lieutenant-Governor with a Legislature consisting 
 (except in Quebec and Nova Scotia) of a single Chamber 
 and an Executive responsible thereto. 
 
 The Constitutional evolution of Canada is important, not 
 only in itself, but because it has, in broad outline, supplied 
 
320 THE STATE AND THE EMPIRE 
 
 a model for the other great colonial dominions of the 
 Crown. The regne militaire subsisted from the conquest 
 in 1760 to the passing of the Quebec Act of 1774. From 
 1774 to 1 791 it was governed as a Crown Colony; from 
 1 791 to 1840 it had a representative Legislature without 
 a responsible Executive; from 1840 to 1867 it enjoyed 
 * responsible ' government under a unitary Government, 
 and from 1867 onwards responsible government combined 
 with federalism. 
 
 From the Federal Dominion Newfoundland has so far 
 held aloof in dignified but unfortunate isolation ; an isola- 
 tion partly at any rate inspired by an imaginary ^ seniority ' 
 among British colonies. Newfoundland has since 1855 
 enjoyed 'responsible' government, with a Governor and 
 a bicameral Legislature. 
 
 Belonging to the same North American group are the 
 Bermudas, a strategic point of some importance, governed 
 by a Governor who is also Commander-in-Chief, a Privy 
 Council, and a bicameral Legislature. The Executive, 
 however, is not responsible. 
 
 From the Bermudas it is an easy stage to the West Indies, 
 which after the first schism of 1783, if not before it, were 
 regarded as the most valuable asset of the Colonial Empire. 
 From that proud position they have been displaced, on the 
 one hand by the acquisition and development of other 
 colonial possessions, on the other by their own decHne 
 in economic importance. The first serious blow to their 
 industrial prosperity was dealt by the emancipation of the 
 slaves (1833), and quick on the heels of that came the 
 adoption of the new commercial policy which dissipated 
 the last remnants of economic stability. The abolition of 
 slavery combined with the abolition of preferential duties 
 for colonial products was particularly hard upon the West 
 Indies. They are now, however, beginning to recover from 
 the blow and to adapt themselves to new conditions. 
 
DOMINIONS, COLONIES, DEPENDENCIES 321 
 
 Constitutionally they now illustrate the great varieties of 
 Crown Colony government. Originally they conformed to 
 the ordinary Colonial type : a Governor w ith a nominated 
 Council and an elected assembly. But the abolition of 
 slavery introduced complications, and the tendency has 
 been, though not uniformly nor universally, to replace the 
 elected Assembly by one wholly or mainly nominated. 
 The Bermudas, Barbados, and the Bahamas alone retain 
 purely elective Legislatures. In no case is the Execu- 
 tive responsible, and it is a question how long elected 
 Legislatures are likely to subsist without it. The Parlia- 
 mentary or 'responsible' system has conspicuous merits; 
 so has 'dictatorial' rule; the intermediate device is, as 
 Mr. Lowell points out, full of pitfalls. *A Legislature 
 elected by the people, coupled with a Governor appointed 
 by a distant power, is a contrivance for fomenting dissensions 
 and making them perpetual.'^ The intermediate type, 
 therefore, tends to disappear ; either giving place by natural 
 evolutionary process to the higher form of 'responsible' 
 Government, as in the case of Canada and the Australian 
 Colonies; or being abandoned, as in that of Malta or Jamaica, 
 in favour of more autocratic rule. So long as the whites 
 in Jamaica were a dominant oligarchy in the midst of 
 a large unfree population, the intermediate type was the 
 natural one ; had the conditions been perpetuated it might 
 in due course have led to 'responsible' administration. 
 But the emancipation of the slaves fundamentally altered 
 the conditions arid rendered inevitable the adoption of the 
 Crown Colony system. 
 
 Of all the examples of that system India is the greatest. 
 India, it is true, is not a Colony at all either in the technical 
 or in the practical sense of the term. In every sense it 
 stands apart. Controlled by a separate Department in the 
 Home Government, administered by a separate, a specially 
 * op. cit. ii. 416. 
 1120 X 
 
322 THE STATE AND THE EMPIRE 
 
 selected and specially trained body of Civil Servants on the 
 spot, presenting to those who are responsible for its Govern- 
 ment problems which are strictly unique, India is a theme so 
 vast and intricate that it demands, if touched at all, treatment 
 on an appropriate scale. That being here impossible, the 
 barest outline of the administrative machinery must suffice. 
 Authorized by Royal Charter originally granted in 1600 
 and renewed in 1698, the East India Company established its 
 factories in Madras, Bombay, and Bengal, during the course 
 of the seventeenth century. Down to 1773 the British Par- 
 liament had no direct responsibility for Indian affairs. But 
 by that time the Company, exceedingly prosperous in its 
 early years, had fallen financially upon evil days. Its history 
 affords an admirable illustration of the instability due to 
 double-mindedness. So long as the Company pursued its 
 commercial objects with a single eye it prospered exceed- 
 ingly ; so soon as it was directed by inevitable circumstances 
 to more ambitious political ends its financial success was 
 at an end. A company of merchants had by a process 
 which we cannot follow become rulers of a great Empire. 
 The two characters are, as Adam Smith long ago pointed 
 out, mutually inconsistent. 'If the trading spirit of the 
 English East India Company renders them very bad sove- 
 reigns, the spirit of sovereignty seems to have rendered 
 them very bad traders.' Adam Smith, like Burke, was un- 
 duly severe upon their rule ; but undoubtedly their financial 
 difficulties were extreme. Lord North came to their help 
 in the Regulating Act of 1773, but the Government, as is 
 its wont, exacted its pound of flesh. That Act marks the 
 first interference of the British Parliament in Indian affairs ; 
 and the intervention was still indirect. Pitt's Act of 1784 
 went much further. It virtually transferred responsibility 
 for the political administration of British India to a Cabinet 
 Minister and a Government Department.^ During the 
 1 Supra, p. 115. 
 
DOMINIONS, COLONIES, DEPENDENCIES 323 
 
 next seventy years British India more than doubled in 
 extent. In 1857 — partly as a result of this rapid territorial 
 expansion — the Mutiny broke out, and in 1858 the rule of 
 the East India Company was finally terminated, and British 
 India passed formally and directly into the hands of the 
 Crown. In 1876 the Queen, with the approval — somewhat 
 reluctant — of Parliament, adopted the appropriate title of 
 Kaisar-i-Hind, and on January i, 1877, she was, with great 
 solemnity, proclaimed Empress of India in the ancient 
 capital of the Moguls. 
 
 The organization of the Secretarial Department respon- 
 sible for the Government of India — the Secretary of State 
 in Council — has been already described. 
 
 In India the British Crown is represented by a Viceroy, 
 appointed by the Home Government, for five years. The 
 Viceroy is assisted by an Executive Council consisting of 
 six ordinary members appointed as a rule for five years by 
 the Crown. The Commander-in-Chief is ex officio an extra- 
 ordinary member of the Council, and the Crown may also 
 appoint one additional extraordinary member. Each 
 member of the Executive Council is responsible for one of 
 the great Administrative Departments ; these Departments 
 are seven: Home, Military, Legislative, Public Works, 
 Revenue and Agriculture, Finance and Commerce. The 
 seventh, the Foreign Deawrtment, is under the immediate 
 and personal supervisip^l^f the Viceroy. 
 
 Besides the Executive Council there is a Legislative 
 Council, which includes, besides the members of the Exe- 
 cutive, sixty ' additional ' members. Of these thirty-five are 
 nominated and twenty-five elected. Of the former not 
 more than twenty-eight may be official, and three must be 
 non-official, representing respectively the Indian commercial 
 classes, the landholders in the Punjab, and the Moham- 
 medan community of the Punjab.* The twenty-five elected 
 * Annual Register^ 1909, p. 385. 
 X 2 
 
324 THE STATE AND THE EMPIRE 
 
 members are elected by a number of enumerated bodies or 
 classes of persons such as the Provincial Councils, or the 
 Chambers of Commerce. 
 
 The Provincial Governments of India reproduce in their 
 main features that of the Governor-General. The Presi- 
 dencies of Bombay and Madras have each their own 
 Governor, with Executive and Legislative Councils ; the 
 two Bengals, the United Provinces, the Punjab, and 
 Burmah, are under Lieutenant-Governors, assisted in each 
 case by a Legislative Council composed partly of nominated 
 and partly of elected members.^ 
 
 The Governors of Bombay and Madras are appointed 
 by the Crown ; the Lieutenant-Governors by the Governor- 
 General, subject to the approbation of the Crown. 
 
 The Governor-General is legally subordinate to the 
 Secretary of State in Council, but he has the exclusive right 
 of initiation in his Legislative Council, and can veto or 
 reserve for the King's pleasure any law passed by the 
 Council. The Home Government has the right to disallow 
 any measure passed in India. 
 
 The vast work of Indian administration is carried on by 
 members of a Civil Service, entrance to which has, since 
 1853, been obtained by open competitive examination. 
 
 Besides the direct government of British India, England 
 has made itself responsible for the maintenance of peace 
 and order throughout the whole peninsula. British India 
 covers 1,078,000 square miles, and has a population of 
 232,000,000. The 694 Native States cover 700,000 square 
 miles and contain 62,500,000 people. The latter vary from 
 great kingdoms like those of Hyderabad and Mysore down to 
 petty tribal chieftainships, but all alike are now feudatory to 
 the British Raj. The position of the British political agent 
 
 1 For a full description of the changes effected in Indian Adnainistra- 
 tion by the Acts of 1909, see Annual Register for 1909, pp. 382-6. 
 
DOMINIONS, COLONIES, DEPENDENCIES 325 
 
 varies, however, enormously in different native States. In 
 some he is merely a friendly and not too intrusive adviser 
 to the native Prince ; in others he is in all but name the 
 ruler of the State. Even in the greatest of the States, how- 
 ever, the Prince has control only over domestic policy ; 
 foreign policy is in the hands of the Emperor-King, and 
 without his leave not a shot may be fired in India. And 
 this position is now cheerfully accepted by the native 
 Princes. ' Their loyalty,' says an acute French critic of our 
 rule in India, * is indisputable ... it is beyond a doubt that 
 they have henceforth bound up their fortunes indissolubly 
 with British rule.' ^ 
 
 British India was in process of making at the time of the 
 great schism of 1783 ; it remains to notice two great groups 
 of colonies which have come into our possession since that 
 time. Canada belongs partly to the old colonial system, 
 partly — and indeed mainly — to the new. Australia, New 
 Zealand, and South Africa belong wholly to the new. The 
 two former came into our keeping in virtue of discovery and 
 simple settlement ; the last by conquest and purchase. 
 
 In a sense we owe the settlement, if not the acquisition 
 of Australia to the loss of America. After the acknow- 
 ledgement of independence, Carolina, hitherto utilized as 
 a penal settlement, declined — and very naturally — to receive 
 English convicts any longer. It was suggested that some 
 part of Australia, rediscovered by Captain Cook in 1769 and 
 by him ' occupied ' in the name of his Sovereign, should be 
 used for this purpose. In 1787 the first gang of convicts 
 was dispatched from England to Botany Bay, and to them 
 New South Wales owes its beginning as a land of settlement 
 for men of British blood. For thirty years it remained — to 
 all intents and purposes — exclusively a convict settlement ; 
 but in 1 82 1 the Colony was thrown open to free immigrants, 
 and in 1840 the transportation of convicts was prohibited. 
 * Chailley, Problems of British India, p. 256. 
 
326 THE STATE AND THE EMPIRE 
 
 Down to this time the government of the Colony was 
 naturally of the severest military type; but in 1842 a 
 Legislative Council, partly nominated, partly elected, was 
 established, and in 1850 an Act was passed by the Imperial 
 Parliament virtually giving to the Australian Colonies general 
 powers to settle for themselves the details of their Constitu- 
 tion. They quickly acted upon this permission, and in 
 1854-9 'responsible' government was established in New 
 Zealand and in New South Wales, as well as in the 
 daughter-colonies of New South Wales — Victoria, Tasmania, 
 South Australia and Queensland. Western Australia at- 
 tained to the same dignity in 1890. In each of these 
 Colonies there is now a Governor, representing the Crown, 
 a Legislature of two Houses, and a Cabinet responsible to 
 the Legislature. In New South Wales and Queensland, as 
 well as in New Zealand, members of the Second Chamber 
 or Legislative Council are nominated for life nominally by 
 the Governor, virtually by the Ministry, without limit of 
 numbers. In the other Colonies they are elected. 
 
 But no more in the case of Australia than in that of 
 Canada did * responsible ' Government form the final stage 
 of Constitutional evolution. Ever since 1 849 the expediency 
 of some form of union among the English Colonies on the 
 Australian continent had been intermittently discussed, but 
 not until 1884 was there any serious attempt to bring it 
 about. A period of financial disorder delayed the matter for 
 a time, but from 1890 to 1900 it engaged the serious and 
 almost continuous attention of the leading statesmen of the 
 several Colonies. Particular care was expended upon the 
 detailed provisions of the federal Constitution, and at last 
 the scheme was brought to fruition in the Commonwealth 
 Act of 1 900. 
 
 The six Australian Colonies, New South Wales, Victoria, 
 Tasmania, Queensland, South and Western Australia now 
 form for many purposes a single whole. A Governor- 
 
DOMINIONS, COLONIES, DEPENDENCIES 327 
 
 General represents the British Crown and the legislative 
 power is vested in him and a bicameral legislature : a 
 Senate and a House of Representatives. The Senate, like 
 that in America, enshrines the federal idea. It is the 
 sheet-anchor of the rights of the smaller States, for in 
 Australia, as in America, each State has equal representa- 
 tion in the Senate. At present it consists of thirty-six 
 members, six from each State, and this principle of equahty 
 is unalterable.' The Executive is vested in the Governor- 
 General assisted by a Cabinet. The seven members of the 
 Cabinet are heads of the Administrative Departments, and 
 by a provision, which as far as I know is unique, must be 
 members of the Legislature. In this provision we have an 
 interesting illustration of the crystallization of a Constitu- 
 tional convention into law. Whether the Cabinet system 
 will prove to be compatible with Federalism is one of the 
 moot points for the solution of which all students of institu- 
 tions will eagerly scan the future of Australian politics. If 
 it does prove to be so, the Australian Commonwealth will 
 have accomplished a successful bit of research work in the 
 laboratory of Political Science. Be this as it may, Britons 
 throughout the world will re-echo the fervent hope of Queen 
 Victoria, ' that the inauguration of the Commonwealth may 
 ensure the increased prosperity and well-being of my loyal 
 and beloved subjects in Australia.' 
 
 The third of the great groups of self-governing Dominions 
 is that of South Africa. Of the South African Colonies the 
 original nucleus was the Cape Colony. Occupied by two 
 adventurous Englishmen under James I, but declined by 
 that monarch, the Cape Colony was planted by the Dutch 
 East India Company in 1652, and by them was used for two 
 purposes : as a port of call for Dutch East Indiamen, and 
 as a vegetable garden. The fresh vegetables with which 
 the merchantmen were thus supplied saved thousands of 
 ^ For details cf. Marriott, Second Chambers^ pp. 167-78. 
 
328 THE STATE AND THE EMPIRE 
 
 lives threatened by scurvy. From the middle of the 
 seventeenth century to the end of the eighteenth the Cape 
 was regarded as a dependency of the Dutch East Indies, 
 and was administered from Batavia. In 1795 the United 
 Provinces were conquered by the French Republic, and 
 were converted into the Batavian Republic. The Stadtholder 
 found himself a fugitive in England, and begged the English 
 Government to save the Cape Colony from the fate which 
 had befallen the United Provinces. They did. The Cape 
 was occupied by a British force, but, on the conclusion of 
 the Peace of Amiens (1802) the Colony was, with scrupulous 
 honesty, handed back to the Batavian Republic. On the 
 renewal of the war it was certain that Napoleon would 
 utilize the Cape as an important strategical point in his 
 duel with England. It was accordingly reoccupied in 1806 
 and retained until the final settlement of 18 14, when it 
 was purchased by Great Britain from the Netherlands for 
 £6,000^000 sterling. 
 
 Not until after 1820 was there any considerable English 
 immigration. Soon after that troubles began between the 
 English rulers and the Dutch farmers. Into the many 
 causes of friction it is impossible to enter. Enough to say 
 that they eventuated in the Great Trek of 1836-40, and 
 in the consequent founding of the Orange Free State and 
 the Transvaal Republic. 
 
 Meanwhile, in 1824, a handful of English colonists estab- 
 lished themselves at Port Natal, and after many vicissitudes 
 Natal was finally proclaimed to be a British Colony in 
 1843. Until 1856 it formed part of Cape Colony, but in 
 that year it was established as an independent Colony, and 
 in 1893 attained to the dignity of 'responsible' Government. 
 Cape Colony had reached the same stage in 1872. The 
 Transvaal and the Orange Free State having been finally 
 annexed by Great Britain in 1902, were endowed with 
 responsible Government in 1906 and 1907 respectively. 
 
DOMINIONS, COLONIES, DEPENDENCIES 329 
 
 But again, as in the case of Canada and that of Australia, 
 the attainment of responsibility was but the prelude to closer 
 union. This stage was reached by the four South African 
 Colonies in the Union Act of 1909. But between South 
 Africa and the other Dominions there is a difference. The 
 Constitutions of the latter are genuinely federal : that of 
 South Africa is unitary. The four colonies practically merge 
 their identity in United South Africa, and accept the status 
 of Provinces. To the existing Colonial Legislatures it will 
 fall to elect the first Senate of the South African Union, but 
 having performed that final act they will cease to be. 
 
 It will not, of course, be imagined that the four Provinces 
 of the South African Union exhaust the tale of British posses- 
 sions in Africa. The others exhibit almost every variety of 
 governmental type ; Rhodesia, under its Chartered Com- 
 pany ; Crown Colonies, like Lagos and Sierra Leone ; Pro- 
 tectorates, like Bechuanaland, Uganda, and Nigeria; an 
 undefined sphere of influence like that of Egypt, whose 
 peculiar position is further emphasized by the fact that it is 
 under the Foreign and not the Colonial Office in Whitehall. 
 But enough has been said for purposes of illustration. 
 
 I have now sketched rapidly the Constitutional evolution 
 of the Colonial system, and the several categories — ' Respon- 
 sible Government,' 'Representative Government,' and 'Crown 
 Colony Government ' — will, I trust, possess for the student 
 something more of substantiality and concreteness. It re- 
 mains to be seen how the various over-sea possessions of the 
 Crown fit into the Imperial Economy. The fit is in many 
 respects exceedingly .bad, and in some cases almost non- 
 existent. 
 
 Between the over-sea Dominions and the mother-country 
 there are five Constitutional links, (i) The King in Parlia- 
 ment is Sovereign not only in the United Kingdom but 
 throughout the Empire. In theory he can legislate for the 
 Australian Commonwealth and the Canadian Dominion, 
 
330 THE STATE AND THE EMPIRE 
 
 precisely as he can for India or Gibraltar or Scotland or 
 Wales. In practice he does legislate, to a considerable 
 extent, to secure objects which are common to the Empire 
 as a whole^ but which are beyond the competence of any 
 given Colonial Legislature. A long series of Acts relating 
 to Merchant Shipping afford a good instance of this. The 
 Imperial Parliament, again, is a constituent legislature for 
 the Empire ; the existing Constitutions of Canada, Australia, 
 and South Africa are all based upon the Statute Law of the 
 United Kingdom. Or again, the Imperial Parliament inter- 
 venes to validate doubtful Acts passed by Colonial Legisla- 
 tures.^ The Legislative authority of the Imperial Parliament 
 is, therefore, a reality. 
 
 (2) The King of Great Britain and Ireland is throughout 
 his dominions supreme. That supremacy is exercised in 
 several ways. Of these, two are particularly important : the 
 King may veto or disallow any Act passed by a Colonial 
 Legislature, even though it has received the assent of his 
 representative — the Governor; or he may instruct the 
 Governor to interpose his veto upon legislation. This 
 intervention naturally tends to become rarer, but between 
 1836 and 1864 no fewer than 341 Bills were under Royal 
 instructions reserved for the consideration of the Crown in 
 the North American Colonies alone, and of these 47 never 
 received the Royal Assent.'^ The Crown is also, for all parts 
 of the Empire, the sole fountain of Honour ; all decorations 
 and distinctions emanate from the King in the Dominions 
 as in the mother-land. (3) The Crown still appoints all 
 Colonial Governors. (4) Questions of Foreign Policy, and 
 particularly questions of peace and war, are entirely under 
 the control of the Home Government. (5) From all the 
 over-sea Dominions, whatever their grade in the Imperial 
 hierarchy, there lies an appeal to the Judicial Committee of 
 
 * See on this subject, Keith, Responsible Government^ 176-221. 
 2 Keith, op. cit. p. 3. 
 
DOMINIONS, COLONIES, DEPENDENCIES 331 
 
 the Privy Council. This function has not passed unques- 
 tioned, but the advantages of an impartial though distant 
 tribunal outweigh the obvious disadvantages, and though the 
 right of appeal has been by recent legislation curtailed, and 
 is likely to be further restricted in the future, this judicial link 
 is not likely to be snapped so long as the Empire endures. 
 
 Such are the legal links between the United Kingdom 
 and the sister-states. Are they adequate ? On paper they 
 seem strangely slight as foundations for so vast a structure ; 
 and if the imperial cohesion depended upon legal links 
 alone the Empire would long since have dissolved into its 
 constituent atoms. Happily it does not. Apart from legal 
 unity and constitutional bonds, there is a unity of sentiment 
 and there are bonds of self-interest. Of the sentiment 
 which finds expression in devoted loyalty to a personal 
 monarch I have already spoken. There are other ties of 
 sentiment, some, but not all, of which must necessarily 
 weaken as the years go on. The sentiment of loyalty to 
 a common Sovereign is likely, on the contrary, to endure, 
 and even to increase in intensity. Of the bonds of self- 
 interest it is impossible to speak in detail, but it is obvious 
 that, vast as are the future potentialities of the daughter- 
 lands they would, as things are at present, lose immensely 
 in significance were they to be separated from the parent- 
 stock and from each other. 
 
 To take one point only. Their defence-organization is 
 as yet wholly inadequate j in this important respect they are 
 dependent, all but entirely, on the mother-land. It is true 
 that the Imperial connexion may in some cases actually 
 expose them to attack. In the event of war the Empire is 
 a legal unit, as it has proved itself to be a unit in senti- 
 ment. The Power with which Great Britain is at war may 
 deliver the attack in Australia, India, Canada, or a Mediter- 
 ranean Station. Conversely, an attack upon New Zealand or 
 Natal would mean war with Great Britain. The mother- 
 
332 THE STATE AND THE EMPIRE 
 
 country has so far assumed all but entire responsibility for 
 Imperial Defence. The present writer would be the last to 
 ignore or belittle the splendid services rendered by the 
 sister-states in the recent wars in South Africa and the 
 Soudan, or the beginning of their contribution towards an 
 Imperial Navy. But the fact remains that the obligation 
 still rests mainly upon the mother-land, and that the finan- 
 cial burden is borne almost exclusively by the taxpayer of 
 the United Kingdom. 
 
 Nor could it be otherwise, things being as they are. Foreign 
 Policy is dictated from Downing Street ; the Home Govern- 
 ment is exclusively responsible for the declaration of war and 
 the conclusion of treaties. So long as the Dominions are 
 excluded from all participation in the direction of policy, 
 they cannot reasonably be called upon to provide for the 
 contingencies to which that policy may give rise. 
 
 How long the Dominions will consent to this exclusion 
 is a moot question. A generation ago a distinguished 
 Australian statesman^ gave expression to the resentment 
 felt in Australia at the absence of any * defined position (for 
 the Colonies) in the Imperial Economy '. The intervening 
 years have multiplied and strengthened the grounds of 
 complaint, even if they have not intensified the feelings of 
 resentment. How the demand for further Constitutional 
 recognition can be satisfied ; how political sentiment can be 
 crystallized into political institutions are problems beyond 
 the scope of this work.^ 
 
 One observation may be made as to the past, one prediction 
 be hazarded as to the future. Public sentiment in England 
 has changed with amazing rapidity during the last forty, and 
 more particularly during the last twenty years. Disraeli's 
 petulant outburst against ' those wretched Colonies which 
 hang like a millstone round our neck', ought not to be 
 
 1 Sir James Service. 
 
 2 One proposed solution is discussed in Second Chambers, Chapter xii. 
 
DOMINIONS, COLONIES, DEPENDENCIES 333 
 
 remembered against a statesman whose later Imperialism 
 was above suspicion. But the sentiment which inspired it was 
 not uncommon in the 'forties. The ' weary Titan ' groaned 
 rather heavily under the ' burden ' of Empire. The pre- 
 dominance of the Manchester School was entirely unfavour- 
 able to Imperial sentiment. To the ' Manchester School ' 
 our ' vast and scattered dominions ', as Mr. Balfour once 
 pointed out, ' appeared to be an ill-constructed fabric built 
 at the cost of much innocent blood and much ill-spent 
 treasure, and which having been originally contrived in obe- 
 dience to a mistaken theory of trade was not worth the 
 trouble of keeping in repair now that that theory had been 
 finally exploded.' * The ideal of Colonial policy which then 
 prevailed is reflected with perfect accuracy by Sir George 
 Comewall Lewis, who in 1841 wrote in his Essay on the 
 Government of Dependencies : ' If a dominant country under- 
 stood the true nature of the advantages arising from the 
 supremacy 'and dependence of the related communities, 
 it would voluntarily recognize the legal independence of 
 such of its own dependencies as were fit for independence ; 
 it would, by its political arrangements, study to prepare for 
 independence those which were still unable to stand alone ; 
 and it would seek to promote colonization for the purpose 
 of extending its trade rather than its empire, and without 
 intending to maintain the dependence of its colonies beyond 
 the time when they need its protection.' 
 
 Mr. Arthur Mills's Colonial Constitutions^ published in 
 1856, was hardly less representative of the prevailing senti- 
 ment than Lewis's Essay. This is his deliberate conclusion : 
 ' To ripen these communities [the Colonies] to the earliest 
 possible maturity social, political, commercial, to qualify 
 them by all the appliances within the reach of the parent 
 state, for present self-government and eventual indepen- 
 dence is now the universally admitted aim of our Colonial 
 ^ Nineteenth Century , January, 1882. 
 
334 THE STATE AND THE EMPIRE 
 
 policy.' So late indeed as 1872 Tennyson was impelled to 
 repudiate the suggestion, emanating from a responsible 
 quarter, that the Canadians should ' take up their freedom 
 as the days of their apprenticeship were over '. 
 
 And that true North, whereof we lately heard 
 A strain to shame us " Keep you to yourselves, 
 So loyal is too costly ! Friends, your love 
 1» but a burthen : loose the bond and go." 
 Is this the tone of Empire?' 
 
 The tone of Empire it was not ; but that tone had as yet 
 hardly been heard either in our national literature or in 
 our political life. 
 
 During the last forty years a stupendous change has 
 taken place ; the ' Imperial note has swelled louder and 
 louder. To attempt to account for this would carry us 
 too far; the fact will not be questioned. There are still 
 degrees of imperial fervour, but it has been declared on 
 high authority that * we are all imperialists now '. 
 
 But though the strength and universality of the sentiment 
 leave little to be desired, there is an entire lack of agreement 
 as to the means by which sentiment should be translated 
 into fact . 
 
 One prediction, however, may be hazarded. Things will 
 not remain as they are. It is not according to the genius 
 of English institutions that they should. Any prediction 
 more precise is likely to be falsified by the event. Some 
 look forward to the creation of an Imperial Council in 
 which the responsible Dominions shall have a voice in those 
 matters — notably Defence — which concern the Empire as 
 a whole. Others entertain a larger hope, and look for the 
 gradual evolution of some scheme of political and com- 
 mercial federation. They point to the Constitutional develop- 
 ment — in this respect uniform — of the great Dominions. 
 They have witnessed the adoption of the federal system in 
 Canada and Australia, and the unification of South Africa. 
 They ask, with some reason, why the process should be 
 
DOMINIONS, COLONIES, DEPENDENCIES 335 
 
 arrested at this point; whether the impulse which has 
 brought Vancouver and Quebec, Victoria and New South 
 Wales, the Transvaal and Natal together has spent its force ; 
 whether the statesmanship which has already solved problems 
 so difficult may not avail for an even greater task. But the 
 kingdom cometh not by observation. That lesson at least 
 is taught by an historical survey of EngUsh institutions. An 
 important change in the centre of Constitutional gravity was 
 due in the seventeenth century; and change would have 
 come even if Charles I had been as wise a king as Edward I, 
 even if Laud had not attempted to thrust Arminianism 
 down the throats of the Scotch Calvinists. Things were work- 
 ing towards the Cabinet system before the accession of a 
 German Sovereign whose lack of English rendered personal 
 government impossible, and whose indifference to English 
 interests hatched the egg which contained a Prime Minister. 
 The great disruption of 1783 robbed us of the flower of our 
 first Colonial Empire. The sun of England seemed to have 
 set amid clouds of humiliation. But the things which had 
 been were but a prelude to the greater things to be. They 
 came, but not by observation. It was in a fit of absence of 
 mind, according to Seeley, that we conquered half the world. 
 The aphorism is only partially true. Nevertheless, it is true 
 that the English genius does not tend towards the conscious 
 perfection of Constitutional machinery. The mistrust of 
 elaborate organization is deep-seated. But conditions are 
 changing rapidly. Science will not tolerate empiricism. 
 Forethought and skill tend to circumscribe the domain of 
 chance. Can the unorganized survive in an Armageddon 
 conducted on scientific principles ? No one who has listened 
 to the voice of history — no one who has ears for the echoes 
 of contemporary politics, can be deaf to such questions as 
 these ; but it does not necessarily follow that his eyes can 
 discern the things that are to be, nor that his mind will be 
 quick to apprehend the things that belong unto our peace. 
 
APPENDIX I 
 
 AUTHORITIES 
 
 (i) General: 
 
 A. Texts: 
 
 Dodd (ed.) : Modern Constitutions, 
 
 Dareste : Les Constitutions inodernes. 
 
 Demombynes : Les Constitutions Europeennes. 
 
 Stubbs (ed.) : Charters and Documents. 
 
 Prothero (ed.) : Statutes and Constitutional Documents. 
 
 Gardiner (ed.) : Constitutional Documents of the Puritan 
 
 Revolution. 
 Robertson (ed.) : Select Cases and Documents. 
 
 B. Critical Works and Commentaries: 
 Stubbs : Constitutional History. 
 
 Hallam : Constitutional History. 
 Erskine May : Constitutional History. 
 Maitland : Constitutional History. 
 Freeman : Growth of the English Constitution. 
 
 „ Historical Essays. 
 
 Medley : Constitutional History. 
 Ridges : Constitutional Law of England. 
 Boutmy : English Constitution. 
 
 ,, Studies in Constitutional Law. 
 
 Hearn : The Government of England. 
 Pollock and Maitland : History of English Law, 
 Holds worth : History of English Law. 
 Lord Halsbury (ed.) : The Laws of England, 
 Anson : Law and Custom of the Constitution. 
 A. V. Dicey : Law of the Constitution. 
 Goodnow : Comparative Administrative Law. 
 Burgess : Political Science and Comparative Constitutional 
 
 Law. 
 Woodrow Wilson : The State. 
 Lord Courtney of Penwith : The Working Constitution of 
 
 the United Kingdom, 
 A. Lawrence Lowell : The Government of England. 
 
 „ „ Governments and Politics in Conti- 
 
 nental Europe. 
 Low : The Governance of England. 
 Bagehot: English Constitution, 
 
AUTHORITIES 337 
 
 Ostrogorski : Democracy and the Organization of Political 
 
 Parties. 
 Lecky : Democracy and Liberty. 
 Maine : Popular Governjnent. 
 Godkin : Problems of Modern Democracy » 
 Mill : Liberty. 
 
 „ Representative Government. 
 Bryce : American Comtnonwealth. 
 
 „ Studies in History and Jurisprudence. 
 Tocqueville : Democracy in America. 
 Henry Sidgwick : The Development of European Polity. 
 (ii) Special Topics: 
 
 {a) Classification of Constitutions : 
 Aristotle : Politics (ed. Newman or Jowett). 
 Hobbes : Leviathan. 
 
 Seeley : Introduction to Political Science. 
 Henry Sidgwick : Elements of Politics. 
 Bluntschli : Theory of the State. 
 Cornewall Lewis : Use and Abuse of Political Terms. 
 Montesquieu : U Esprit des Lois. 
 Bolingbroke : Letters on History. 
 
 (b) The Executive: 
 
 Anson: Law and Custom of the Constitution. {The Crown.') 
 
 Dicey : Privy Council. 
 
 Gladstone : Gleanings of Past Years. I. 
 
 Traill : Central Government. 
 
 Blauvelt : Development of Cabinet Government in England. 
 
 Nicholas : Proceedings of the Privy Council. 
 
 Much of the information as to the relations of the Crown 
 and the Cabinet can be found only scattered in memoirs, 
 letters and biographies, among the crowd of which may be 
 mentioned : Morley, Walpole \ Correspondence of George III 
 and Lord North ; Chatham Correspondence ; Walpole, 
 Memoirs of George III\ Grenville Papers ; Buckingham, 
 Court and Cabinets of George II I \ Anson, Memoirs of the 
 third Duke of Grafton. Fitzmaurice, Shelburne\ Stanhope, 
 Pitt ; The Letters of Queen Victoria (ed. Benson and Esher) ; 
 Lee, Life of Queen Victoria ; The Croker Papers (ed. 
 Jennings) ; The Creevey Memoirs (ed . Maxwell) ; The Greville 
 Memoirs ; Sir T. Martin, Life of the Prince Consort^ and 
 Life of Lord Lyndhurst ; The Peel Papers (ed. Parker) ; 
 Morley, Life of Gladstone ; Lord Rosebery, Peel ; Torren, 
 Life of Melbourne^ and Melbourne Papers (ed. Sanders) ; 
 Sir Spencer Walpole, Life of Lord John Russell] Lord 
 Malmesbury, Memoirs of an ex- Minister ; Ashley, Life of 
 Lord Palmerston ; Parker, Life and Letters of Sir fames 
 Graham ; Fitzmaurice, Life of Earl Granville ; the Duke of 
 
 II30 Y 
 
338 APPENDIX I 
 
 \ 
 Argyll, .^Mtobio^raphy and Memoirs ; W. S. Churchill, Lord 
 Randolph Churchill ; Lang, Sir Stafford Northcote. 
 (c) The Legislature: 
 Todd : Parliamentary Government in England, 
 
 „ Report on the Dignity of a Peer. 
 Pike : Constitutional History of the House of Lords. 
 J. A. R. Marriott : Second Chambers. 
 M^Kechnie : Reform of the House of Lords. 
 Erskine May : Parliamentary Practice. 
 Redlich : Pa7'liamentary Procedure in England. 
 Ilbert : Legislative Methods and Forms. 
 
 „ Manual of Parlia7nentary Procedure. 
 Clifford : History of Private Bill Legislation. 
 S. Walpole : Electorate and Legislature. 
 Lowes Dickinson : The Development of Parliament in the 
 
 Nineteenth Century. 
 Porritt : Unrefor??ied House of Commons. 
 (See also General Works, i. B.) 
 
 {d) Local Government : 
 Percy Ashley : Local and Central Government. 
 Redlich and Hirst : Local Government in England. 
 
 Report of Royal Cojnmission on Local 
 Taxation, i8gg. 
 Gomme : Principles of Local Government. 
 
 Report of Local Government Board (annual). 
 Municipal Year Book (annual). 
 Wright and Hobhouse : Local Government and Local 
 
 Taxation. 
 Odgers : Local Government. 
 Jenks : Local Govermnent. 
 Darwin : Municipal Ownership. 
 
 „ Municipal Trading. 
 
 H. R. Meyer : Municipal Ownership in Great Britain. 
 B. and S. Webb : English Local Government. 
 Shaw : Mimicipal Government in Great Britain. 
 Goodnow : Municipal Problems. 
 Eaton : The Government of Municipalities. 
 Munro : The Government of European Cities (c. iii). 
 
 ie) The Judiciary : 
 Dicey : Law of the Cofistitution. 
 Maitland : fustice and Police. 
 Carter : History of English Legal Instittitions. 
 Holdsworth : History of English Law. 
 Pollock and Maitland : History of English Law. 
 Stephen : History of Criminal Law. 
 
 The Federalist. 
 Goodnow : Comparative Administrative Law. 
 
AUTHORITIES 339 
 
 Aucoc : Conferences sur V administration et le droit adminis- 
 
 tratif. 
 Blackstone : Commentaries. 
 
 (/) The Empire: 
 Lucas : Historical Geography of the British Colonies. 
 Egerton : Origin and Growth of English Colonies. 
 
 „ British Colonial Policy. 
 
 W. Macdonald : Select Documeftts illustrative of the 
 
 History of the United States. 
 Seeley : Expansion of England. 
 E. B. Greene : The Provincial Governor in the English 
 
 Colonies of North America. 
 Payne : Colonies and Colonial Federations. 
 G. Causton and A. H. Keene : Early Chartered Companies. 
 George : Historical Geography of the British Empire, 
 Hertz : Old Colonial System. 
 Adam Smith : Wealth of Nations (Book iv). 
 Todd : Parliamentary Government in the British Colonies. 
 G. C. Lewis : Essays on the Government of Dependencies. 
 Mills : Colonial Constitutions. 
 Egerton and Grant (ed.) : Evolution of Canadian Self- 
 
 Government. 
 Goldwin Smith : Canada and the Canadian Question. 
 Harrison Moore : Commonwealth of Australia. 
 R. H. Brand : Union of South Africa. 
 Chesney : Indian Polity. 
 Ilbert : The Government of India. 
 Hunter: Brief History of the Indian Peoples, 
 
 „ (ed.) : Rulers of India (Series). 
 Lyall : Growth of British Dominion in India. 
 Jenkyns : British Rule and furisdiction beyond the Seas. 
 Keith : Responsible Government in the Dominions. 
 J ebb : Colonial Nationalism. 
 Goldwin Smith : The Empire. 
 Froude : Oceana. 
 Parkin : Bnperial Federation. 
 Holland : Imperiuin et Libertas. 
 Statesman's Year Book. 
 Colonial Office List. 
 
 Y 2 
 
INDEX 
 
 Act ^Abolition of Monarchy {xd^f)) 
 
 56. 
 British North America (1867) 
 
 319. 
 Canada Constitutional, of 1791 
 
 315. 
 Canada Union, oii^^o: 318. 
 Education, of 1902 : 262, 264. 
 Exchequer and Audit, of 1866 : 
 
 Habeas Corpus^ 1679: 28, 38, 39. 
 /w^m (Pitt's), 1784: 115, 322. 
 /«^/d5, of 1858 : 115. 
 Interpretation, of 1889 : 309. 
 Judicature, of 1873 : 160, 298. 
 Judicature, of 1875 : 298. 
 fudicatnre, of 1876 : 298. 
 Judicature, oi \%^\'. 298. 
 Local Government, of 1835 : 28. 
 Local Government, of 1888 : 28, 
 
 262, 263, 272, 283. 
 Local Government, of 1894 : 28, 
 
 262, 263, 283. 
 Local Governments "^^99'- 2 73- 
 Municipal Reform, of 1835 : 
 
 246, 270. 
 Mutiny, 59. 
 Navigation, 314. 
 Poor Laiv, of 1601 : 257, 259. 
 Poor Law, of 1723: 258. 
 Poor Law, of 1752 : 258. 
 Poor Law Amendment,oi 1834 : 
 
 259, 282. 
 Reform, of 1832: 9, 28, 150, 
 
 171, 245. 
 Reform, of 1867: 9, 28, 171, 
 
 245, 260. 
 Reform, of 1884: 9, 28, 171, 
 
 224, 260. 
 Redistribution of Seats, of iSSe, ; 
 
 28, 224. 
 
 Act, Regulating, of 1 7 7 3 (North's) : 
 322. 
 Septennial, of 1716 : 128, 129, 
 
 217. ^ 
 Settlement, of, 28, 39, 76, 127, 
 
 197, 257, 291. 
 ' Speenhamland, the, 250. 
 ^/aw/, the, of 1765: 314. 
 Union of England and Scot- 
 land, 147, 217,220. 
 Acts, Adoptive, 284. 
 Constituent, 283. 
 General, 283. 
 
 Private, 232, 234, 236, 284. 
 Admiralty, Board of, 116. 
 Africa, South, 307, 309, 328, 329. 
 Agreement of the People, the, 130. 
 America, United States of, 291, 
 292. 
 Constitution of, 292. 
 American Colonies, Government 
 
 of, 316. 
 Amherst, General Lord, 312. 
 Anne, Queen, 87, 107, 153, 154- 
 
 Cabinets of, 76. 
 Apology, of 1604, the: 53, 197- 
 Aquinas, Thomas, classification of 
 
 Constitutions, 13. 
 Aristotle, classification of Constitu- 
 tions, ID, II, 12. 
 Armed neutrality, 314. 
 Army, standing, 59. 
 Assizes, 296. 
 Australia, 307, 309. 
 Commonwealth of, 327. 
 Constitutional evolution of, 325, 
 
 327- 
 Occupation of, 325. 
 
 B 
 
 Bacon, Francis, 47, 48, 192, 289, 
 290. 
 
INDEX 
 
 341 
 
 Bagehot, Walter, 30, 41, 65, 66, 
 
 92, 100, 
 Bastille, fall of, 36. 
 Bill, Constitutional, of Protector- 
 ate, 132. 
 
 Fox's India, 63. 
 
 Home Rule, Second, of 1893 : 
 163. 
 
 Peerage, of 1 7 19: I53> I54> I55- 
 
 Private, 232, 234, 236, 284. 
 
 Private Member's, 232. 
 
 Public, 233-7. 
 
 Reform, of 1785 : 221. 
 
 First Reform, of 1831 : 156. 
 
 Second Reform, of 1832 : 157, 
 158, 159, 222. 
 
 Of Rights, 28, 49, 197, 200, 
 201, 214. 
 
 Trades Disputes, of 1906 : 291. 
 Board of Agriculture, 106, 1 20. 
 Board of Education, 106, 119. 
 Board of Guardians, 259. 
 Board, Poor Law, 119. 
 Board of Trade, 106, 118, 119, 233. 
 Board of Works, 1 20. 
 Board of Works, Metropolitan, 272. 
 Bolingbroke, his Patriot-King, 62. 
 Boroughs, county, 272. 
 
 Court of Quarter Session of, 2 74. 
 
 Incorporation of, 269. 
 
 Metropolitan, 273. 
 
 Municipal, in England, 270-4. 
 
 Recorders of, 274. 
 
 Varieties of franchise in, 187. 
 Boscawen, Admiral, 312. 
 Bouchier, Robert, 123. 
 Boutmy, Emile, 26, 27, 28. 
 Bristol, Earl of, 145. 
 Brougham, Lord Chancellor, 64, 
 
 157. 
 Br}xe, Mr. James, 32, 35, 292, 
 
 293. 
 Budget, the modem, 241. 
 Bundesrath, 166. 
 Burke, Edmund, 216. 
 
 And the King's Friends, 63. 
 Burleigh, Wm. Cecil, Lord, 86. 
 
 Cabinet, the, 69, 90, loi. 
 ' Minister, functions of, 102. 
 
 Modern, composition of, 102. 
 
 Cabinet, Responsibility, 81, 83. 
 
 System, 144. 
 
 System, evolution of, 204. 
 Calais, 189, 190. 
 Cambridge, Duke of, 114. 
 Canada, 307, 308, 309, 315. 
 
 Conquest of, 313. 
 
 Rebellion in (1837), 316. 
 Canadian Pacific Railway, 319. 
 Canning, George, 224. 
 Cape Colony, 327, 328. 
 Caroline, Queen, 64. 
 Cartier, Jacques, 311. 
 Cases, Ashby v. While, 215. 
 
 Bates', 199, 290. 
 
 Darnell's (or the Five Knights), 
 38, 39, 290. 
 
 Floyde's, 201. 
 
 Hales', 201. 
 
 Hampden's, 290. 
 
 Haxey's, 214. 
 
 Shirley v. Fagg, 149, 150, 
 201. 
 
 Strode's, 214. 
 
 Wensleydale's (see Parke), 145, 
 159, 160. 
 
 Wilkes', 215, 216, 221. 
 Chancellor of the Exchequer, 107. 
 Chancellor, the Lord, 122, 123. 
 Channel Islands, the, 308. 
 Charles I, King, 55, 56, 57, 145, 
 
 147, 190, 198, 200, 202. 
 Charles II, King, 58, 59, iii, 
 
 113, 118, 190, 242, 257. 
 Chartered Companies, 309. 
 Chartists, the, 156, 221, 223. 
 Chester, 187, 189. 
 Chesterfield, Lord, 82. 
 Chief Secretary for Ireland, 121. 
 Churchill, Lord Randolph, 107. 
 Cities, counties of, 271, 272. 
 Civil List, the, 59, 204. 
 
 Of William III, 60. 
 
 Of George III, 60. 
 
 Of William IV, 60. 
 
 Of Queen Victoria, 40. 
 
 Of Edward VII, 61. 
 
 Of George V, 61. 
 Civil Servants {see Servants), 104. 
 Civil Service, the, loi, 104. 
 
 Entrance to, 105, 106. 
 Clarendon, Edward Hyde, Earl of, 
 
 86,87,179,195. 
 
342 
 
 INDEX 
 
 Cobham, Lord, 190. 
 Colonial defence, 331. 
 Colonial Office, the, 106. 
 Colonies, England's policy to- 
 wards, 333-4. 
 
 Government of, 328, 331. 
 Colony, legal definition of, 309. 
 Commander-in-Chief, 114. 
 Commissioners of Woods and 
 
 Forests, 120. 
 Committee of Supply, 242. 
 Committee of Ways and Means, 
 
 240, 242. 
 Common Law Courts, the, 149. 
 Commons, House of, 199, 203. 
 
 Control over finance, 205, 210. 
 
 Functions of, 171. 
 
 Increase in numbers of under 
 Tudors and Stuarts, 189, 190, 
 191. 
 
 Origin of, 172. 
 
 Privileges of, 213-14, 216. 
 
 Relations of with the House of 
 Lords, 148, 150. 
 
 Speaker of, 194, 230. 
 
 Structure of, 170. 
 Commonwealth, Australian, 33. 
 Concilium, Commune, 136, 137. 
 
 Magnum, 142, 143. 
 
 Ordinarum, 137. 
 
 Regis, 302. 
 Confirmatio Cartarum, 180. 
 Consolidated Fund, the, 242. 
 Constituencies, purchase of, 219, 
 220. 
 
 Single member, 225, 226. 
 Constitution, American, 28, 44, 
 133; rigidity of, 19, 20. 
 
 Australian, 21, 213. 
 
 English, continuity of, 33-5. 
 
 French, 20, 28. 
 
 Modern German, 21. 
 
 South African, 213. 
 Constitutions, rigid and flexible, 
 
 17, 29-33. 
 
 Written and unwritten, 27-9. 
 Convocation, 205. 
 
 Financial functions of, 177. 
 Cook, Captain, 325. 
 Coote, General Sir Eyre, 315. 
 Cornwall, duchy of, 60, 61. 
 Coroner, office of, 252. 
 Council, Privy, 51. 
 
 Council, Committees of, 71. 
 
 Parent of Cabinet, 70. 
 
 Under Charles II, 71. 
 County Councils, 247. 
 County Court Judges, 297, 298. 
 Court of Admiralty, 298, 299. 
 Court of Bankruptcy, 298. 
 Court of Chancery, 149, 298, 
 
 303- 
 Court of Chancery of Duchy of 
 
 Lancaster, 298. 
 Court of Common Pleas at Dur- 
 ham, 298. 
 Court of Common Pleas at Lan- 
 caster, 298. 
 Court of Criminal Appeal, 297. 
 Court of Divorce, 291. 
 Court of Exchequer, 298. 
 Court of Justice, Central, 295. 
 Court of Justice, High, 298. 
 Court of Justice, Admiralty Divi- 
 sion, 299. 
 Court of Justice, Chancery Divi- 
 sion, 299. 
 Court of Justice, King's Bench 
 
 Division, 298. 
 Court of Justice, Probate Division, 
 
 299. 
 Courts of Justice, Local, 295. 
 Court of King's Bench, 298. 
 Court of Probate, 298. 
 Court of Prerogative, 290. 
 Court of Star Chamber, 37, 55, 
 
 201, 303. 
 Court of Shire, 174, 247, 267. 
 Criminal Law, 295. 
 Cromwell, Oliver, 56,57,128, 204. 
 Cromwell, Richard, 57. 
 Cromwell, Thomas, 89. 
 Crown, English, 197. 
 
 Executive powers of, 99. 
 
 Fountain of honour, 49. 
 
 Fountain of justice, 49. 
 
 Informal rights of, 92. 
 
 Irresponsibility of, 78. 
 
 Legislative powers of, 45, 49. 
 
 Pleas of, 302. 
 
 Political power of, 90, 91. 
 
 Prerogative of creating peers, 
 
 153. 
 Crown, Supreme Executive, 45, 49. 
 Supreme Head of Church and 
 Army, 50. 
 
INDEX 
 
 343 
 
 Crown, Supreme Judge, 45. 
 
 Sphere of action of, 98. 
 
 Under two first Stuarts, 53-6. 
 Curia Regis, 45, i37» 229, 302. 
 Cyprus, 308. 
 
 D 
 
 Danby, Thomas Osborne, Earl of, 
 
 86. 
 Dashwood, Sir Francis, 220. 
 Debt, local, 280. 
 Declaration of Indulgence, 201. 
 Democracy, 226. 
 
 Direct, 169, 170. 
 Derby, Fourteenth Earl of. Prime 
 
 Minister, 94, 159. 
 Dicey, A. V., 35, 36, 4I) 127-9, 
 
 132. 
 Dispensing Power, 49. 
 Disputes between Lords and Com- 
 mons, 207, 210-13. 
 Disraeli, Benjamin, 155, 223. 
 Domesday Survey, 304. 
 Dominions ' responsible ', 308. 
 Droit Administratif, 40, 41. 
 Duchy of Lancaster, Chancellor 
 of, 121. 
 Crown property, 122. 
 Dunning's Resolutions, 63. 
 Durham, County Palatine of, 187, 
 
 189, 190. 
 Durham, Lord, report of, 317- 
 
 East India Company, 322. 
 
 Charter, 310. 
 Edward the Confessor, King, 122. 
 Edward I, King, 175, I77> 189. 
 Edward II, King, 139, 141- 
 Edward III, King, 123, 139, 141, 
 
 174. 183. 
 Edward VI, King, 49, 187, 189, 
 
 192, 255. 
 Edward VII, King, 49. 
 Elgin, Earl of, government m 
 
 Canada, 318. 
 Elizabeth, Queen, 149, 190, i92-4> 
 196, 214, 218, 354, 255, 310. 
 
 Elliot, Sir John, 47, 55. 
 Employes, Government, 104, 105 
 
 Municipal, 278. 
 Estates, financial independence of, 
 178. 
 
 Theory of, 205. 
 Executive, control of, 184. 
 
 Problem of, 46. 
 Exchequer, Barons of, 302. 
 
 Fawcett, Henry, as Postmaster- 
 General, 118. 
 Feudalism, bastard, 253. 
 Finance bills, 163. 
 First Lord of Admiralty, 116. 
 First Lord of the Treasury, 118. 
 Flambard, Ralph, 86. 
 Foreign Office, the, 106, ii3. 
 Forffia Procedendi of 11 94 : 173- 
 Fort Duquesne, capture of, 312. 
 Fortescue, Sir John, 253. 
 Fox, Charles James, 36. 
 France, colonies of, 311. 
 
 George, I, King, 61, 107, 154. 
 
 Cabinets of, 77. 
 George II, King, 62, 155. 
 George III, King, I47> 15I) i55» 
 220, 315. 
 Bolingbroke's pupil, 62. 
 Cabinets of, 81, 82. 
 George IV, King, 63, 64, 147. 
 George V, King, 100, 307. 
 Gibraltar, 308, 315. 
 Gladstone, William Ewart, 83, 89, 
 90, 96-8, 107, 129, 164, 208- 
 10, 224. 
 Godolphin, Sidney, First Earl of, 
 
 87. 
 Goschen, First Viscount, 261. 
 Government, Central, 283. 
 Grand Remonstrance, 24, 38, 48. 
 And ministerial responsibility, 
 73. 
 Great Charter of 1215 : 28, 37, 38. 
 Grenville, George, 314. 
 Grey, Earl, 156, 157, 222. 
 
344 
 
 INDEX 
 
 H 
 
 Hampden, John, 200. 
 
 Harley, Robert, Earl of Oxford, 
 
 87. 
 Hastings, Warren, 315. 
 Hawke, Admiral Sir Edward, 312. 
 Henry I, King, 248, 267, 268. 
 Henry II, King, 248. 
 Henry III, King, 107, 122, 175. 
 Henry IV, King, I39» i79> 183, 188. 
 Henry V, King, 182. 
 Henry VI, King, 141, 143, 181, 
 
 182. 
 Henry VII, King, 139, 186, 192, 
 
 255- 
 Henry VIH, King, 109, 139, 147, 
 
 183, 189, 192-4, 255, 271. 
 Herrenhaus, Prussian, 166. 
 
 Austrian, 166, 
 High Court of Justice, 296. 
 Hobbes, Thomas, classification of 
 
 Constitutions, 13, 14. 
 Home Office, 106, no, 112. 
 Home Secretary, no. 
 Housing, municipal, 277. 
 Humble Petition and Advice, 
 
 147. 
 Hundred, the, theories as to origin 
 
 of, 249. 
 Court of, 250. 
 
 I 
 
 India, 307. 
 
 Administration of, 321, 325. 
 British, transferred to Crown, 
 
 323. 
 
 Civil Service of, 324. 
 
 Council of, 116. 
 
 Executive and legislative Coun- 
 cil, 323- 
 
 Mutiny in, 115. 
 
 Native States of, 324, 325. 
 
 Office, 106, 115. 
 
 Provincial government of, 324. 
 
 Queen, Empress of, 323. 
 
 Viceroy of, 323. 
 Inquest of Sheriffs, the, 252. 
 Instrument of Government, the, 
 
 57, 131, 132. 
 Irish Union, 128. 
 
 Church, 96. 
 
 Disestablishment of, 1869: 129. 
 Isle of Man, 308. 
 
 J 
 Jamaica, 311. 
 James I, 47, 53, 147, 190, 192, 
 
 201, 202, 214, 227, 289, 310. 
 James II, 151. 
 John, King, 251. 
 
 Judges, position of, under Act of 
 Settlement, 39. 
 Relation to Executive, 289. 
 Of the Supreme Court of U.S.A., 
 292. 
 Judiciary independence of, 291. 
 
 American, 291-4. 
 Jury, trial by, 304. 
 Justice, administration of, in Eng- 
 land, 295-305. 
 Justice of the Peace, 45, 249^ 253- 
 6, 262, 296. 
 Under Tudors, 254-6. 
 
 K 
 
 Knights of the Shire, 134, 135, 
 138, 172, 177, 187, 188. 
 Election of, 187, 188. 
 
 Lambarde, William, 254. 
 Lancaster, House of, 52, 
 
 Duchy of (note), 60, 61. 
 Laud, Archbishop William, 55, 
 
 56. 
 Law, Rule of, 35-41, 288. 
 Legislation, Commons share in, 
 181. 
 
 Form of, 182. 
 
 House of Lords share in, 162. 
 Legislature, the English, 126, 127. 
 Lewis, Sir George Cornewall, 10, 
 
 lOI. 
 
 Livery and Maintenance, 253. 
 Local Government, 244, 254. 
 
 Before 1888: 261. 
 
 Controlof Parliament over, 283. 
 
 Relations with central, 282. 
 
 Tudor reorganization of, 254. 
 
 Board, 119, 233. 
 Local Taxation Authorities in 
 
 1883: 261. 
 London, City of, 273. 
 
 County Council of, 272. 
 
 Municipal development of, 266, 
 267. 
 
INDEX 
 
 345 
 
 Lord Lieutenant of Ireland, 120. 
 Lord President of the Council, 
 
 122, 124. 
 Lord Privy Seal, the, 122-4. 
 Lords of Appeal in ordinary, 160. 
 Lords, House of, compared with 
 
 foreign senates, 166. 
 Composition of, 138- J 41, 147, 
 
 155- 
 Functions of, 142-4. 
 Jurisdiction of, 149, 205, 300, 
 
 .^03. 
 Modern history of, 146. 
 Referendal functions of, 164. 
 Since Reform Act, 159. 
 Louis Napoleon, Prince, 92. 
 Lowell, President, 30, 99, 105, 
 
 233, 234, 236, 286, 321. 
 Loyalists, American, 315. 
 
 M 
 Macaulay, Lord, 211, 212. 
 Magna Carta, 138, 174, 252, 267. 
 Malta, 308. 
 
 Manchester School, the, 333. 
 Mandate^ doctrine of the, 228. 
 Mary, Queen, 189, 192, 201, 255. 
 Massachusetts, 314, 316. 
 Merchant Guild, the, 268, 273. 
 
 Craft, 273. 
 Mill, John Stuart, quoted, 281. 
 Ministers, responsibility of, 71, 73, 
 288. 
 Impeachment of, 71. 
 Ministry, modem, composition of, 
 102. 
 Members of, 102, 103. 
 Monarchy, modem functions of, 
 
 66. 
 Money bills, initiation of, 179, 
 
 205, 237. 
 Montesquieu, 24, 44, 46. 
 Montford, Simon de, 175, 176. 
 Morley, Lord, of Blackburn, 82. 
 
 N 
 Napoleon III, 224. 
 Natal, 338. 
 Newfoundland, 308, 310, 315, 
 
 320. 
 New South Wales, 325. 
 New York, 310. 
 New Zealand, 308. 
 
 Norman Conquest, survival of 
 
 local institutions after, 248. 
 North, Lord, 63. 
 
 O 
 
 Oligarchy, Venetian, in England, 
 
 151, 152, 260. 
 Ordinances, 182, 183. 
 
 Palmerston, Lord, 83, 93-5, 107, 
 
 III, 208. 
 Relations with Queen Victoria, 
 
 92. 
 Parish, the, unit of government 
 
 under Tudors, 251, 256, 257, 
 
 259.. 
 Parke, Sir James {see Wensleydale 
 
 Case), 159. 
 Parker, Archbishop, 190. 
 Parliament, 136, 197. 
 
 Barebones, 56. 
 
 Control of, over legislation, 181, 
 182. 
 
 Legislative work of, 231. 
 
 Long, 39, 55, 128, 201, 304. 
 
 Long, Rump of, 56. 
 
 Model, of 1265 : 175. 
 
 Model, of 1295 : 133, 138, 177. 
 
 Omnipotence of, 130. 
 
 Policy of Tudors towards, 192, 
 197-202. 
 
 Privileges of, 180. 
 
 Protectorate, of 1656 : 205. 
 
 Sovereignty of, 127-33. 
 Paston Letters, the, 254. 
 Pauperism in sixteenth century, 
 
 257. 
 In eighteenth century, 258. 
 Peel, Sir Robert, 88, 91, 93, 94, 
 
 223, 316. 
 Peerage of Scotland, 147. 
 Petition of Right, 28, 39, 49, 55. 
 Petty Sessions, 295. 
 Pitt, William, Earl of Chatham, 
 
 82. 
 Pitt, William, the Younger, 63, 
 
 242, 312. 
 Poor Law Guardians, 263. 
 Postmaster General, 117. 
 Post Office, the, 118. 
 Powers, doctrine of Separation of, 
 
 289. 
 
346 
 
 INDEX 
 
 Prerogative Courts, 290. 
 President of Local Government 
 
 Board, 119. 
 Prime Minister, evolution of, 86- 
 90. 
 
 Mr. Gladstone on, 86. 
 
 Position of, 83, 86. 
 
 Selection of, 92. 
 Prince Consort, the, 65, 93. 
 
 And Trent affair, 95. 
 Privilege, 144. 
 
 Parliamentary, 201. 
 Privy Council, the, 124, 125, 195. 
 
 For Ireland, 120. 
 
 Judicial Committee of, 300. 
 
 Sir William Temple's, 74. 
 Proclamations under Tudors, 201. 
 Protectorates, 309. 
 Provisional Orders, 233, 284. 
 Punchy Cartoons of, 65. 
 Pym, John, 47, 48. 
 
 Quarter Sessions, 262, 296. 
 Quebec, Capture of, 312. 
 
 R 
 
 Rates, municipal, 280. 
 Referendum^ the, 21, 228. 
 Reform, Parliamentary, 217, 220, 
 
 Representation of Minorities, 225. 
 
 Principle of, in danger, 226. 
 
 Proportional, 225. 
 Restoration the, of 1660: 58, 147, 
 
 205, 213. 
 Revolution of 1688 : 47, 50, 58, 
 150, 203, 210, 213, 214, 218, 
 260. 
 
 The French, 221. 
 
 The Industrial, 151. 
 Richard I, King, 267. 
 Richard II, King, 139, 141, HSj 
 
 182. 
 Rockingham Ministry, the, 82. 
 Rodney, Admiral, Lord, 315. 
 Rosebery, Earl of, 88, 89. 
 'Rule of Law', 35. 
 Russell, Lord John, 94, 95, 156, 
 
 222, 223. 
 
 School Boards, 264. 
 Scotland, union with, 127. 
 Second Chamber, place of, in 
 modern English Coiistitution, 
 i6r, 165. 
 Secretaries of State, 108-21. 
 Secretary for Scotland, 121. 
 Seeley, Sir John, 172, 243. 
 Senate, American, 166. 
 French, 166. 
 Italian, 166. 
 Sheldon, Archbishop, 179. 
 Sheriff, the, 247-50. 
 Shipmoney, 200. 
 Shires, earliest, 247. 
 
 Artificial, 247. 
 Speaker of House of Commons, 
 
 194, 230. 
 Stadtholder of the Netherlands, 
 
 204. 
 Statute of Westminster I, 176. 
 Stipendiary Magistrates, 296. 
 Strafford, Thomas Wentworth, 
 
 Earl of, 47, 48, 55-7. 
 Stubbs, Bishop, 51, 137^ 176, 253. 
 Sunderland, Earl of, Junto of, 75. 
 Supreme Court of Judicature, 298. 
 
 Of Appeal, 144. 
 ' Suspending Power ', 49. 
 
 Table of Magnates, Hungarian, 
 
 166. 
 'Tacking', 150, 205, 211, 213. 
 Taxation, 181, 199. 
 Tocqueville, Alexis de, 26, 27. 
 Towns, growth and origin of, 265, 
 
 266. 
 Growth of independence of, 
 
 267. 
 Rural depopulation of, 265. 
 Township, the, 250, 251. 
 Trading, municipal, 275, 281. 
 Treasury, the, 106, 107. 
 Tribunaux, administratifs, 40. 
 Tudor Dictatorship, the, 52, 53, 
 186, 196, 198. 
 
 U 
 Union, Poor Law, 259. 
 Universities, representation of, 
 190, 217. 
 
INDEX 
 
 347 
 
 Versailles, treaty of, 1763 : 313. 
 Victoria, Queen, 41, 64, 65, 94, 
 100, III, 147, 159. 
 And Disestablishment of Irish 
 Church, 96. 
 Letters of, 67. 
 
 Mediator between Houses, 97. 
 Relation with Lord Derby, 94. 
 Mr. Gladstone, 96, 97. 
 Sir Robert Peel, 93. 
 LordPalmerston, 41, 94, 100. 
 Virginia, 309, 310. 
 
 W 
 
 Walpole, Sir Robert, 77, 78, 87, 
 
 ' 8^, 154. 
 
 War Office, the, 106, 112, 113. 
 
 War, American, 63. 
 
 Austrian Succession, 312. 
 
 Crimean, 94, 109. 
 
 Napoleonic, 151. 
 
 Of the Roses, 52, 140, 184. 
 
 Seven Years, 312. 
 Wellington, Duke of, 316. 
 
 And House of Lords, 157, 158. 
 West Indies, the, 307, 308, 315, 
 
 320. 
 William I, King, 106. 
 William III, King, 59, 89, 11 1. 
 William IV, King, 64, 91, 100, 
 
 147, 157- 
 Witenagemot, the, 136, 172, 248. 
 Wolfe, General, 3 1 2. 
 Wolsey, Cardinal, 86, 193. 
 Wykeham, William of, 86, 183. 
 
 Oxford : Printed at the Clarendon Press by Horace Hart, M.A. 
 
BF THE SAME AUTHOR 
 
 SECOND CHAMBERS 
 
 AN INDUCTIVE STUDY 
 IN POLITICAL SCIENCE 
 
 (CLARENDON PRESS, 1910) 
 
 SOME PRESS NOTICES 
 
 ' It is a calm and judicious survey of the question of a Second Chamber 
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