Transcriber's Notes:

Variations in spelling and hyphenation remain as in the original. Ellipses match the original. A complete list of typographical corrections and other notes [follows] the text.

Click on the page number to see an image of the original page.

THE
GOVERNMENT OF ENGLAND

VOLUME I

THE MACMILLAN COMPANY
NEW YORK · BOSTON · CHICAGO
ATLANTA · SAN FRANCISCO

MACMILLAN & CO., Limited
LONDON · BOMBAY · CALCUTTA
MELBOURNE

THE MACMILLAN CO. OF CANADA, Ltd.
TORONTO

THE
GOVERNMENT OF ENGLAND

BY

A. LAWRENCE LOWELL

PROFESSOR OF THE SCIENCE OF GOVERNMENT
IN HARVARD UNIVERSITY

VOLUME I

New York
THE MACMILLAN COMPANY
1908

All rights reserved

Copyright, 1908,

By A. LAWRENCE LOWELL.

Set up and electrotyped. Published May, 1908. Reprinted June, 1908.

Norwood Press
J. S. Cushing Co.—Berwick & Smith Co.
Norwood, Mass., U.S.A.

PREFACE

Measured by the standards of duration, absence of violent commotions, maintenance of law and order, general prosperity and contentment of the people, and by the extent of its influence on the institutions and political thought of other lands, the English government has been one of the most remarkable the world has ever known. An attempt, therefore, to study it at any salient epoch cannot be valueless; and the present is a salient epoch, for the nation has now enjoyed something very near to manhood suffrage in the boroughs for forty years, and throughout the country more than twenty years, a period long enough for democracy to produce its primary if not its ultimate effects. Moreover, England has one of the most interesting of popular governments, because it has had a free development, little hampered by rigid constitutional devices. It is an organism constantly adapting itself to its environment, and hence in full harmony with national conditions. An endeavour has been made in these volumes to portray the present form of that organism and the forces which maintain its equilibrium.

In preparing a study of this kind one feels the need of limiting its scope, by reducing the denominator as Arthur Helps remarked. Hence the work covers only the English government as it stands to-day; and further, only those institutions, national and local, that have a general bearing. The British Constitution is full of exceptions, of local customs and special acts with which town clerks must be familiar. They fill the path of these men with pitfalls, but they do not affect seriously the general principles of the government, and no attempt is made to describe them here. Even the institutions of Scotland and Ireland, interesting as they are in themselves, have been referred to only so far as they relate to the national government or throw light upon its working.

Even so limited, the subject is not without difficulties. The forces to be studied do not lie upon the surface, and some of them are not described in any document or found in any treatise. They can be learned only from men connected with the machinery of public life. A student must, therefore, rely largely upon conversations which he can use but cannot cite as authorities, and the soundness of his conclusions must be measured less by his references in footnotes than by the judgment of the small portion of the public that knows at first-hand the things whereof he speaks. The precise effect of the various forces at work must be a matter of opinion on which well-informed people may differ, and the writer has drawn the picture as it appeared to him.

To undertake a study of this kind would be impossible without manifold assistance from others; and the writer is glad of this chance to express his sense of obligation to the many persons who have given him help and information, men in public life belonging to different parties, permanent officials, national and local, officers of political associations, jurists, publicists and many others. It is pleasant for him to recall the constant courtesy with which he was treated, not infrequently, in the case of local officers, without any introduction or claim of any kind. Among many men to whom he owes much he desires to acknowledge his debt to Rt. Hon. Joseph Chamberlain, Lord Fitzmaurice, Rt. Hon. John Morley, the late Sir William Harcourt, Lord Reay, Mr. Frederic Harrison, Sir William James Farrer, Sir Alexander Hargreaves Brown, Sir Frederick Pollock, Sir C. P. Lucas, Sir Horace Plunkett, Mr. Sidney Webb, Mr. Graham Wallas, Dr. William Cunningham, Mr. Francis W. Hirst, the late Capt. R. W. E. Middleton, Mr. A. E. Southall of the National Union of Conservative Associations and Mr. Charles Geake of the Liberal Publication Department.

His thanks are especially due to Professor A. V. Dicey, Sir Courtenay Ilbert, Professor H. Morse Stephens, now of the University of California, and Professor W. B. Munro of Harvard University, who, besides giving him information, have kindly read a part of the manuscript or proof sheets and made many valuable suggestions. Above all he feels the deepest gratitude to Rt. Hon. James Bryce, now happily British ambassador to the United States, the master and guide of all students of modern political systems, whose unwearied assistance, counsel and encouragement have been a constant help throughout the preparation of this work, and who has read the whole of the proof sheets except the chapters that deal with the Empire. These friends have made the writing of the book possible, and saved the author from many blunders. It is needless to say that none of them are in any way responsible for any opinions in these pages; and in fact the writer has tried not to express, and so far as possible not to form, opinions on matters of current party politics.

The writer is indebted also to a number of his students at Harvard, who have made researches in several different subjects. While some of the more important of these contributions have been referred to in the notes, it has been impossible to do this in all cases. Finally he desires to acknowledge the help he has received in his investigations from three assistants: Mr. Emerson David Fite, now of Yale University, Mr. Robert Lee Hale, now of the Harvard Law School, and Mr. Thomas N. Hoover of the Harvard Graduate School, the last of these having also verified the citations and prepared the index.

April, 1908.

TABLE OF CONTENTS

INTRODUCTORY NOTE ON THE CONSTITUTION

Different Meanings of the word Constitution.

De Tocqueville declared that the English Constitution did not really exist,[1:1] and he said so because in his mind the word "constitution" meant a perfectly definite thing to which nothing in England conformed. An examination of modern governments shows, however, that the thing is by no means so definite as he had supposed.

A Document Embodying the Chief Institutions.

The term "constitution" is usually applied to an attempt to embody in a single authoritative document, or a small group of documents, the fundamental political institutions of a state. But such an attempt is rarely, if ever, completely successful; and even if the constitution when framed covers all the main principles on which the government is based, it often happens that they become modified in practice, or that other principles arise, so that the constitution no longer corresponds fully with the actual government of the country. In France, for example, the principle that the cabinet can stay in office only so long as it retains the confidence of the popular chamber, the principle, in short, of a ministry responsible in the parliamentary sense, was not mentioned in the charters of 1814 or 1830, and yet it was certainly firmly established in the reign of Louis Philippe; and it is noteworthy that this same principle, on which the whole political system of the English self-governing colonies is based, appears neither in the British North American Act nor in the Australian Federation Act. The first of those statutes, following the English tradition, speaks of the Privy Council for Canada,[1:2] but never of the cabinet or the ministers; while the Australian Act, going a step farther, refers to the Queen's Ministers of State,[1:3] but ignores their responsibility to the parliament.[2:1] Again, in the United States, the provision that the electoral college shall choose the President has become so modified in practice that the electors must vote for the candidate nominated by the party to which they owe their own election. In choosing the President they have become, by the force of custom, as much a mere piece of mechanism as the Crown in England when giving its assent to acts passed by the two Houses of Parliament. Their freedom of choice is as obsolete as the royal veto. So far, therefore, as this meaning of the term is concerned, the constitution of England differs from those of other countries rather in degree than in kind. It differs in the fact that the documents, being many statutes, are very numerous, and the part played by custom is unusually large.

Not Changeable by Ordinary Legislation.

Rigid and Flexible Constitutions.

De Tocqueville had more particularly in mind another meaning which is commonly attached to the term "constitution." It is that of an instrument of special sanctity, distinct in character from all other laws; and alterable only by a peculiar process, differing to a greater or less extent from the ordinary forms of legislation. The special sanctity is, of course, a matter of sentiment incapable of exact definition, and it may be said to belong to the British Constitution quite as much as to some others. The peculiar process of amendment, on the other hand,—the separation of the so-called constituent and law-making powers,—upon which Mr. Bryce bases his division of constitutions into rigid and flexible,[2:2] has had a long history and been much discussed; but although the contrast between the two types is highly important, the creation of intermediate forms has made it less exact as a basis of classification. The later constitutions, and the more recent practice, have tended to obscure the distinction. A separation between the constituent and law-making powers does not, in fact, always exist in written constitutions. The Italian Statuto, for instance, which contains no provision for amendment, can be, and in fact has been, altered by the ordinary process of legislation;[3:1] and the same thing was true of the French Charter of 1830.[3:2] The last Spanish constitution omits all provision for amendment, but one may assume that if it lasts long enough to require amendment the changes will be made by ordinary legislative process.

From countries which can change their fundamental constitution by the ordinary process of legislation we pass by almost imperceptible degrees to those where the constitutional and law-making powers are in substantially different hands. Thus the procedure for changing the constitution in Prussia differs from that for the enactment of laws only by the requirement of two readings at an interval of twenty-one days. Here there is a difference legally perceptible between the methods of changing the constitution and other laws; but it may be remarked that a provision in the constitution to the effect that all laws should require two readings at an interval of twenty-one days, would not essentially change the nature of the constitution, and yet in theory it would make that constitution flexible instead of rigid. As it is, the fundamental laws are quite as much under the control of the legislature in Prussia as they are in England.[3:3] This is almost equally true of France; for although the changes in her constitution are made by the National Assembly, composed of the two chambers sitting together, yet the Assembly can meet only after the two chambers have passed a concurrent resolution to that effect; and in fact the chambers are in the habit of determining beforehand by separate votes the amendments which shall be submitted to the Assembly. So that in France, also, the constitution is virtually under the unrestricted control of the legislature.

The Distinction has Lost Practical Importance.

The separation of constituent and law-making powers has been rendered of much less practical importance in some countries not only by making the process of amending the constitution more simple, but also by making the enactment of laws more complex. In Switzerland, for example, changes in the Constitution of 1848 required a popular vote, while changes in the laws did not; but after the referendum on ordinary laws was introduced in 1874, this distinction largely disappeared, and at the present day the differences between the methods of passing constitutional amendments and ordinary laws are comparatively slight. In the case of ordinary laws a popular vote is taken only on the petition of thirty thousand citizens or eight cantons, and the popular majority is decisive; whereas constitutional amendments must be submitted to the people whether a petition is presented or not, and for their ratification a majority vote in more than half the cantons as well as a majority in the Confederation as a whole is required.[4:1]

In those European countries where the difference in the procedure for changing constitutional and other laws is the most marked, the special formalities for the former consist in requiring more than a majority vote in the legislature, or that a general election shall take place before the amendment is finally adopted, or both. Now the last of those conditions is practically not unknown in England. There is a growing feeling that no fundamental or far-reaching change ought to be made unless, as a result of a general election fought on that issue, Parliament has received from the nation a mandate to make the change. Such a doctrine does not affect the law, but it does affect that body of customs which is a not less vital part of the British Constitution.

The classical distinction between constituent and law-making powers, and hence between rigid and flexible constitutions, has also been somewhat effaced by extending the requirement of a special procedure to the enactment of certain classes of ordinary law. Thus in the German Empire the only peculiar formality for amendments to the constitution is found in the provision that they are defeated by fourteen adverse votes in the Bundesrath.[5:1] This gives Prussia with her seventeen votes a veto upon them, but she has also a veto in the Bundesrath upon any measures affecting the army, the navy, customs-duties or excises.[5:2]

Growing Variety in Written Constitutions.

In the middle of the last century written constitutions in Europe were framed for the most part upon the same model and were much alike, so that a written constitution usually implied a definite type of limited monarchy, where the same class of matters were removed from the direct control of the legislature and placed, in theory at least, under special protection. But now written constitutions all over the world have come to differ a great deal, some of them being simpler, and others more comprehensive than of old. The constitutional laws of France, for example, provide only for the bare organisation of the public authorities, and can be amended virtually at will by the legislature; while the constitutions of Switzerland, Germany and the United States go into great detail, and that of the United States can be amended only with the greatest difficulty. The result is that the French constitution, although written and technically rigid, bears from the point of view of rigidity a far closer resemblance to the constitution of England than to that of the United States.

It would seem, therefore, that the distinction between constitutions which are flexible and those which are rigid, while valuable, has ceased to mark a contrast between widely separated groups; and that it might be well to regard the distinction as one of degree rather than of kind. From this aspect it may be said that of late years constitutions have tended on the whole to become more flexible; and at the same time there has been a tendency toward greater variations in flexibility, the constitutions of England and of Hungary standing at one end of the scale, and that of the United States at the other.

A Constitution as a Supreme Law.

Meaning of Law where the Common Law Prevails.

If the term "constitution" does not necessarily imply that the so-called constituent and law-making powers are in different hands, still less does it imply the existence of a law of superior obligation which controls legally the acts of the legislature. Before discussing that question, one must understand clearly what is meant by a law. In England, and in the countries that have inherited the Anglo-Norman system of jurisprudence, a law may be defined as a rule that will be enforced by the courts. This results from the fact that officers of the government, like private persons, are subject to judicial process, and liable to have the legality of their actions examined and determined by the ordinary tribunals. Hence a rule recognised as law by the courts will be enforced against both officials and private citizens; and a rule which they do not recognise cannot be enforced at all, for they will entertain suits and prosecutions against officials who try to apply it, and will afford protection to individuals who resist them.[6:1] Assuming this definition of law, the famous decision of Chief Justice Marshall[6:2] that an Act of Congress inconsistent with the Constitution of the United States must be treated as invalid was a logical necessity. The Constitution was certainly intended to be a law, and as such it could be enforced by the courts. But if that law came into conflict with another law, an Act of Congress for example, the court must consider, as in any other case of conflict of laws, which law was of superior authority; and there could be no doubt that the Constitution was the superior of the two. The same principle is applied in the British colonies, when colonial acts come into collision with the Acts of Parliament establishing the colonial government;[7:1] and it has been incorporated into the constitutions of the Spanish American republics.

Where the Civil Law Prevails.

But, except for those Latin countries which have copied it from the United States, the doctrine is almost entirely confined to the places where the Common Law prevails,[7:2] for elsewhere the same definition of law does not obtain. In accordance with the French interpretation of the theory of the separation of powers, it is the general rule on the continent of Europe that the ordinary courts administer only private law between private citizens, and that questions affecting the rights and duties of public officials are withdrawn from their jurisdiction. Such questions are now usually, though not universally, submitted to special tribunals known as administrative courts. The rules administered by these tribunals are laws, but they form a distinct and separate branch of the law from that applied by the ordinary courts. On the continent, therefore, a constitution may or may not be properly regarded as a law, but even if it be so regarded it is not of necessity enforced by any court. On the contrary, if an ordinary court is not suffered to pass upon the legality of the actions of a policeman, it would be hardly rational that it should pass upon the validity of an act of the national legislature; and it would be even more irrational to intrust any such power to the administrative courts which are under the influence of the executive branch of the government.[8:1]

Legal Restraints on Power of Legislature are Rare.

The conception of a constitution as a law of superior obligation, which imposes legal restraints upon the action of the legislature, is really confined to a very few countries, chiefly to America and the English self-governing colonies.[8:2] In Europe it has no proper place, for whether a constitution in continental states be or be not regarded as a supreme law, no body of men has, as a rule, been intrusted with legal authority to enforce its provisions as against the legislature; and in England there is no law superior in obligation to an Act of Parliament. There can, indeed, be no doubt that the Acts of Union with Scotland and Ireland were intended to be, in part at least, forever binding, but as they created no authority with power either to enforce or to amend the Acts, the united Parliament assumed that, like its predecessors, it possessed unlimited sovereignty; and it has, in fact, altered material provisions in each of those statutes.[8:3]

Sources of the English Constitution.

The English Constitution—speaking, of course, of its form, not its content—differs, therefore, from those of most other European nations more widely in method of expression than in essential nature and legal effect. They have been created usually as a result of a movement to change fundamentally the political institutions of the country, and the new plan has naturally been embodied in a document; but since the Restoration England has never revised her frame of government as a whole, and hence has felt no need of codifying it. The national political institutions are to be found in statutes,[9:1] in customs which are enforced and developed by the courts and form a part of the Common Law, and in customs strictly so called which have no legal validity whatever and cannot be enforced at law. These last are very appropriately called by Professor Dicey the conventions of the constitution. The two chief peculiarities of the English Constitution are: first, that no laws are ear-marked as constitutional,—all laws can be changed by Parliament, and hence it is futile to attempt to draw a sharp line between those laws which do and those which do not form a part of the constitution;—second, the large part played by customary rules, which are carefully followed, but which are entirely devoid of legal sanction. Customs or conventions of this kind exist, and in the nature of things must to some extent exist, under all governments. In the United States where they might, perhaps, be least expected, they have, as already observed, transformed the presidential electors into a mere machine for registering the popular vote in the several states, and this is only the most striking of the instances that might be cited.[9:2] England is peculiar, not because it has such conventions, but because they are more abundant and all-pervasive than elsewhere. The most familiar of them is, of course, the rule that the King must act on the advice of his ministers, while they must resign or dissolve Parliament when they lose the confidence of the majority in the House of Commons.

It is impossible, however, to make a precise list of the conventions of the constitution, for they are constantly changing by a natural process of growth and decay; and while some of them are universally accepted, others are in a state of uncertainty. Hence one hears from time to time a member of the Opposition assert that some action of the government is unconstitutional, meaning that it is an unusual breach of a principle which in his opinion ought to be recognised as inviolable. It was said, for example, that the Parliament of 1900, having been elected on the issue of the South African war, was not justified in enacting measures of great importance on other subjects, but that a fresh mandate from the nation ought to be obtained by another general election. As claims of this kind are in dispute, those customs alone can safely be said to be a part of the constitution which are generally assumed to be outside the range of current political controversy.

The Relation of Law and Custom.

The relation between law and custom in the English government is characteristic. From the very fact that the law consists of those rules which are enforced by the courts, it follows that the law,—including, of course, both the statutes and the Common Law,—is perfectly distinct from the conventions of the constitution; is quite independent of them, and is rigidly enforced. The conventions do not abrogate or obliterate legal rights and privileges, but merely determine how they shall be exercised. The legal forms are scrupulously observed, and are as requisite for the validity of an act as if custom had not affected their use.[10:1] The power of the Crown, for example, to refuse its consent to bills passed by the two Houses of Parliament is obsolete, yet the right remains legally unimpaired. The royal assent is given to such bills with as much solemnity as if it were still discretionary, and without that formality a statute would have no validity whatever. Public law in countries where it is administered not by the ordinary courts, but solely by the executive, or with the aid of special tribunals composed of administrative officials, must of necessity contain a discretionary element, and that element is always affected by political conventions. Hence there is a likelihood that the line between law and convention will become blurred, but this is not so in England. There the law and the conventions of the constitution are each developing by processes peculiar to themselves, but the line between them remains permanently clear. The conventions are superimposed upon the law, and modify political relations without in the least affecting legal ones. In fact Freeman declared that the growth of the unwritten conventions of the constitution began after the supremacy of the law had been firmly established by the revolution of 1688, and that they could not have been evolved if that condition had not existed.[11:1]

The Sanction of Custom.

The question why the conventions of the constitution are so scrupulously followed, when they have no legal force, is not a simple one. Impeachment as a means of compelling the observance of traditions has, of course, long been obsolete. Professor Dicey maintains that the ultimate sanction of these conventions lies in the fact that any ministry or official violating them would be speedily brought into conflict with the law of the land as enforced by the courts.[11:2] He takes as illustrations the omission to summon Parliament every year, and the retention of office by a ministry against the will of the Commons without dissolving; and he shows in each case how the ministry would be brought into conflict with the law by the failure to enact the annual army bill or to pass the appropriations. He proves that in such cases the wheels of government would be stopped by the regular operation of the law; and that the House of Commons can readily bring about this result if it pleases.[12:1] There is, however, another question, and that is why the House is determined to exert its power so as to maintain the conventions of the constitution as they stand to-day. It has long possessed the necessary authority, but the conventions were evolved slowly. The House of Representatives in Washington has the same power to stop appropriations, but it does not try to use it to force a responsible ministry upon the President; a result which has, on the other hand, been brought about in France almost as conclusively as in England, and that without the sanction arising from the risk of conflict between the government and the courts. Any parliament could use its authority if it chose to keep the ministry in office indefinitely, as well as to make it responsible. It could pass a permanent army act, grant the tea and income taxes for a term of years, charge all ordinary expenses upon the Consolidated Fund, and so make the existing ministry well-nigh independent of future parliaments.

The question seems to resolve itself into two parts: first, why a custom once established is so tenaciously followed in England; and, second, why the conventions have assumed their present form. In regard to the first it may be suggested that while the consequences mentioned by Professor Dicey form, no doubt, the ultimate sanction of the most important conventions of the constitution, they are not the usual, or in fact the real, motive for obedience; just as the dread of criminal punishment is not the general motive for ordinary morality. The risk of imprisonment never occurs, indeed, to people of high character, and in the same way the ultimate sanctions of the law are not usually present in the minds of men in English public life. In the main the conventions are observed because they are a code of honour. They are, as it were, the rules of the game, and the single class in the community which has hitherto had the conduct of English public life almost entirely in its own hands is the very class that is peculiarly sensitive to obligation of this kind. Moreover, the very fact that one class rules, by the sufferance of the whole nation, as trustees for the public, makes that class exceedingly careful not to violate the understandings on which the trust is held.

The key to the question why the conventions have assumed their present form is to be found mainly in Professor Dicey's remark[13:1] that all of them exist for the sake of securing obedience to the deliberately expressed will of the House of Commons, and ultimately to the will of the nation. Their effect has been to bring the prerogatives of the Crown more and more completely under the control of the cabinet, and the cabinet itself under the control of the House of Commons; to restrain the opposition of the Lords to any policy on which the Commons backed by the nation are determined; and, finally, through the power of dissolution to make the House of Commons itself reflect as nearly as may be the views of the electorate. In England there is, in fact, only one conclusive means of expressing the popular will—that of an election to the House of Commons; and in ordinary cases there is only one body that has power to interpret that expression, the cabinet placed in office by the House so elected.

The Effects of Custom.

Professor Dicey has also pointed out a singular result of the conventions. If the growing power of the House of Commons, instead of being used to impose customary restraints on the exercise of authority by the Crown and the House of Lords, had been exerted to limit that authority by law, the Crown and the House of Lords would have been far more free to exercise at their discretion the powers still left in their hands; and hence the House of Commons could not have obtained its present omnipotence. By leaving the prerogative substantially untouched by law, and requiring that it should be wielded by ministers responsible to them, the Commons have drawn into their own control all the powers of the sovereign that time has not rendered entirely obsolete.

The great part played by custom has had another effect upon English public life. It has tended to develop a conservative temperament. If laws are changed the new ones may have the same authority as the old; but if customs are changed rapidly they lose their force altogether. Stability is necessary for the very life of custom. The conventions of the constitution could not exist without respect for precedent, and where the institutions and liberties of a country depend not upon a written code, but upon custom, there is a natural tendency to magnify the importance of tradition and precedent in themselves. In England, therefore, there is a peculiar veneration for custom, and a disposition to make as little change in it as is compatible with changing times. The result is a constant tinkering, rather than remodelling, of outworn institutions,—a spirit which is strongly marked throughout the whole of English public life.

English System not Logical but Scientific.

Critics and apologists both assert that the English political system is not logical; and the statement is true in the sense that the system was not excogitated by an a priori method. But on the other hand the very fact that it has grown up by a continual series of adaptations to existing needs has made it on the whole more consistent with itself, has brought each part more into harmony with the rest, than is the case in any other government. In this it is like a living organism. There are, no doubt, many small anomalies and survivals that mar the unity for the purpose of description; but these, like survivals of structure in animals, like the splint bones in the leg of a horse for example, do not interfere seriously with the action of the whole. It may be said that in politics the Frenchman has tended in the past to draw logical conclusions from correct premises, and that his results have often been wrong, while the Englishman draws illogical conclusions from incorrect premises, and his results are commonly right. The fact being that all abstract propositions in politics are at best approximations, and an attempt to reason from them usually magnifies the inaccuracy. But in England the institutions being empirical have resulted from experience, although men have often tried to explain them afterwards by a somewhat artificial and incongruous process of reasoning. In this sense French political principles may be said to be the more logical, the English government—not the theories about it—the more scientific. It is more important, therefore, to describe the organs of the English government and their relations to one another than to consider the traditional principles that have been supposed to underlie the system. But the very nature of the English government renders it peculiarly difficult to portray. As the laws that regulate its structure are overlaid by customs which moderate very greatly their operation without affecting their meaning or their validity, it is necessary to describe separately the legal and customary aspects of the constitution. It is almost unavoidable to pass in review first the legal organisation of each institution, and then its actual functions. Such a process is sometimes tedious, especially for a person already familiar with the subject, but an attempt has been made in the following pages to separate as far as possible the dry legal details from a discussion of the working forces, so that the former may be skipped by the judicious reader.

FOOTNOTES:

[1:1] La Démocratie en Amérique, I., Ch. vi.

[1:2] 30-31 Vic., c. 3, § 11.

[1:3] 63-64 Vic., c. 12, Const., §§ 64-65.

[2:1] The provisions about the responsibility of the ministers are almost identical in the constitutions of Belgium (Arts. 63, 64, 65, 88, 89, 90) and Prussia (Arts. 44, 45, 60, 61); but in Belgium the cabinet is politically responsible to the chamber, while in Prussia it is not.

[2:2] "Studies in History and Jurisprudence," Essay III.

[3:1] Cf. Brusa, Italien, in Marquardsen's Handbuch des Oeffentlichen Rechts, 12-16, 181-82.

[3:2] Professor Dicey points out ("Law of the Constitution," 5 Ed., 116 and Note 2) that De Tocqueville considered the Charter unalterable by reason of this omission, but that it was, in fact, changed like an ordinary law.

[3:3] For the purpose of the argument it is unimportant that Prussia is not a sovereign state, and for sixteen years it did exist as an independent sovereign state under its present constitution.

[4:1] Constitutional amendments can also be proposed by popular initiative, and ordinary laws cannot.

[5:1] Const., Art. 78.

[5:2] Ibid., Art. 5.

[6:1] By far the best exposition of this matter is to be found in Professor Dicey's "Law of the Constitution." It is discussed more fully in Chapter xl., infra.

[6:2] Marbury vs. Madison, 1 Cranch, 137.

[7:1] The Australian Federation Act (§ 74) refers particularly to the decision of such questions, limiting the right to bring them on appeal before the Judicial Committee of the Privy Council.

[7:2] There are a few exceptions. Provisions giving such a power to the courts are to be found in the constitutions of the little Swiss cantons of Uri (Art. 51) and Unterwalden nid dem Wald (Art. 43). The Swiss national constitution, on the other hand (Art. 113), directs the Federal Tribunal to apply every law enacted by the national legislature. Some discussion has taken place on the question in Germany. (See Brinton Coxe, "Judicial Power and Unconstitutional Legislation," Ch. ix., and the writer's "Governments and Parties in Continental Europe," I., 282-84.) Curiously enough, a struggle over this question occurred in the Transvaal not long before the South African War (Bryce's "Studies in History and Jurisprudence," 378; Kruger's "Memoirs," 254-57). In his next inaugural address President Kruger quoted Scripture to prove that the principle of holding statutes unconstitutional had been invented by the devil. (Kruger, 354-55.)

[8:1] Esmein (Elements de droit constitutionel, 425-28) describes the various proposals made at different times in France for annulling unconstitutional laws. One of these, Sieyes's jurie constitutionaire, bears a curious resemblance to an institution for a somewhat analogous purpose in Athens: Goodwin, "Demosthenes on the Crown," Essay II., 316-27.

[8:2] It must be observed, also, that the English colonies are not legally independent or sovereign states, and hence their parliaments are legally subordinate legislatures. We may note in this connection that the Swiss Federal Tribunal can hold unconstitutional laws of the cantons which violate the constitution either of the confederation or of the canton.

[8:3] Professor Dicey argued that the first Home Rule Bill if enacted might have restricted the legal sovereignty of Parliament. "England's Case against Home Rule," 238, et seq. This result was denied by the other side. Bryce, "Studies in Hist. and Jur.," 176, note.

[9:1] Boutmy in his Etudes de droit constitutionel (1 Ed., 9) adds treaties or quasi-treaties (the Acts of Union), and solemn agreements such as the Bill of Rights. But all these are in legal effect simply statutes.

[9:2] Bryce, American Commonwealth, Ch. xxxiv.

[10:1] The habit of collecting new or increased duties or excises as soon as the resolution to impose them passes the House of Commons is an apparent exception to this principle, for the taxes are not legally payable until laid by Act of Parliament. The object of the custom is to prevent a large loss of revenue by importations made after it is known that the duty will be levied and before it goes into effect. The act when passed contains, of course, a clause authorising and thereby making legal the collection from the date of the resolution, and if it fails to pass the tax is refunded.

[11:1] "Growth of the English Constitution," 107, 112-13, 119.

[11:2] "Law of the Constitution," Ch. xv.

[12:1] All this is true only of conventions that give effect to the will of the majority of the House of Commons, not of those that secure fair play to the minority, which are in fact not less important.

[13:1] "Law of the Constitution," 360, 384.

PART I.—CENTRAL GOVERNMENT

CHAPTER I

THE CROWN

Political liberty and romance in English history are both bound up with the shifting fortunes of the throne. The strong hand of the Norman and Angevin kings welded the whole country into a nation, and on that foundation were built the solid structures of a national Common Law, a national Parliament, and a long series of national statutes. When in the fulness of time the Crown had accomplished its work of unification, it came into conflict with Parliament, and after a series of convulsions, in which one king lost his head and another his throne, political evolution resumed its normal course. The House of Commons gradually drew the royal authority under its control. But it did so without seriously curtailing the legal powers of the Crown, and thus the King legally enjoys most of the attributes that belonged to his predecessors, although the exercise of his functions has passed into other hands. If the personal authority of the monarch has become a shadow of its former massiveness, the government is still conducted in his name, and largely by means of the legal rights attached to his office. With a study of the Crown, therefore, a description of English government most fittingly begins.

The Title to the Crown.

Ever since 1688, when James II., fleeing in fear of his life, "withdrew himself out of the kingdom, and thereby abdicated," the title to the Crown has been based entirely upon parliamentary enactment. At the present day it rests upon the Act of Settlement of 1700,[16:1] which provided that, in default of heirs of William and of Anne, the Crown should pass to the Electress Sophia, and the heirs of her body, being Protestants. Sophia was the granddaughter of James I., through her mother, wife of the Elector Palatine; and while not his nearest heir, was the nearest who was a Protestant.

The Rules of Succession.

The rules of descent are in the main the same as those for the inheritance of land at Common Law.[17:1] That is, the title passes to the eldest son; or, if he is not living, through him to his issue, male or female, as if he had himself died upon the throne. If the first son has died without issue, then to, or through, the eldest son who is living, or has issue living; and in default of any sons living, or leaving issue, then to, or through, the eldest daughter. The rule is, however, subject to the qualification that any one who is, or becomes, a Catholic is excluded from, and forfeits, the right to the Crown, which then passes to the next heir. In order to insure a test that will make this last provision effective, the sovereign is obliged to take an oath, abjuring the Catholic religion, in words which have proved offensive to members of that faith. After the accession of Edward VII., therefore, but before his coronation, an effort was made to modify the form of the oath, and a bill was introduced into the House of Lords for that purpose; but it was not then found possible to arrange a phrase satisfactory to all parties, and the bill was dropped.

Incapacity of the Sovereign.

In other monarchies permanent provision has been made by law for the possible incapacity of the monarch, whether by reason of infancy or insanity. But this has never been done in England. Each case has been dealt with as it arose, and usually after it has arisen, so that, in default of any person competent to give the royal assent to bills, Parliament has been driven into the legal absurdity of first passing a regency bill to confer such a power upon a regent, and then directing the Chancellor to affix the Great Seal to a commission for giving assent to that bill. Until recent times it was also thought necessary to appoint officers, Lords Justices or others, to exercise the royal powers when the sovereign went out of the kingdom; but with the rapidity of modern travel and communication this has become unnecessary, and it has not been done since the accession of Queen Victoria.

The Powers of the Crown.

The authority of the English monarch may be considered from different points of view, which must be taken up in succession; the first question being what power is legally vested in the Crown; the second how much of that power can practically be exercised at all; the third how far the power of the Crown actually is, or may be, used in accordance with the personal wishes of the King, and how far its exercise is really directed by his ministers; the fourth, how far their action is in turn controlled by Parliament. The first two questions, which form the subject of this chapter, cannot always be treated separately, for it is sometimes impossible to be sure whether a power that cannot practically be exercised is or is not legally vested in the Crown. An attempt to make use of any doubtful power would probably be resisted, and the legality of the act could be discussed in Parliament or determined by the law courts; but it is very rare at the present day that any such attempt is made. There are powers that have been disputed, or fallen into disuse, and that no government would ever think of reviving; and thus the question of law never having been settled, the legal right of the Crown to make use of them must remain uncertain.

The Prerogative.

The authority of the Crown may be traced to two different sources. One of them is statutory, and comprises the various powers conferred upon the Crown by Acts of Parliament. The other source gives rise to what is more properly called the prerogative. This has been described by Professor Dicey[18:1] as the original discretionary authority left at any moment in the hands of the King; in other words, what remains of the ancient customary or Common Law powers inherent in the Crown. The distinction is one not always perfectly easy to draw, for many parts of the prerogative have been regulated and modified by statute, and in such cases it is not always clear whether the authority now exercised is derived from statute or from the prerogative. Nevertheless the distinction is often important, because where the powers have been conferred by Parliament the Crown acts by virtue of a delegated authority which lies wholly within the four corners of the statute, and exists only so far as it is expressly contained therein; while the prerogative not being circumscribed by any document is more indefinite, and capable of expanding or contracting with the progress of the suns.

Legislative Power.

All legislative power is vested in the King in Parliament; that is, in the King acting in concert with the two Houses. Legally, every act requires the royal assent, and, indeed, the Houses can transact business only during the pleasure of the Crown, which summons and prorogues them, and can at any moment dissolve the House of Commons. But it is important to note that by itself, and apart from Parliament, the Crown has to-day, within the United Kingdom,[19:1] no inherent legislative power whatever. This was not always true, for legislation has at times been enacted by the Crown alone in the form of ordinances or proclamations; but the practice may be said to have received its death-blow from the famous opinion of Lord Coke, "that the King by his proclamation cannot create any offence which was not an offence before, for then he may alter the law of the land."[19:2] The English Crown has, therefore, no inherent power to make ordinances for completing the laws, such as is possessed by the chief magistrate in France and other continental states. This does not mean that it cannot make regulations for the conduct of affairs by its own servants, by Orders in Council, for example, establishing regulations for the management of the Army, or prescribing examinations for entrance to the civil service. These are merely rules such as any private employer might make in his own business, and differ entirely in their nature from ordinances which have the force of law, and are binding quite apart from any contract of employment.

Power to make ordinances which have the force of law and are binding on the whole community is, however, frequently given to the Crown[20:1] by statute, notably in matters affecting public health, education, etc., and the practice is constantly becoming more and more extensive, until at present the rules made in pursuance of such powers—known as "statutory orders"—are published every year in a volume similar in form to that containing the statutes. Some of these orders must be submitted to Parliament, but go into effect unless within a certain time an address to the contrary is passed by one of the Houses, while others take effect at once, or after a fixed period, and are laid upon the tables of the Houses in order to give formal notice of their adoption. A fuller description of these orders must, however, be postponed to the chapters that deal with Parliament. It is only necessary here to point out that in making such orders the Crown acts by virtue of a purely delegated authority, and stands in the same position as a town council. The orders are a species of subordinate legislation, and can be enacted only in strict conformity with the statutes by which the power is granted; and being delegated, not inherent in the Crown, a power of this kind does not fall within the prerogative in its narrower and more appropriate sense.

Executive Power.

The Crown is at the head of the executive branch of the central government, and carries out the laws, so far as their execution requires the intervention of any national public authority. In fact all national executive power, whether regulated by statute, or forming strictly a part of the prerogative, is exercised in the name of the Crown, and by its authority, except when directly conferred by statute upon some officer of the Crown, and in this case, as we shall see, it is exercised by that officer as a servant of the Crown, and under its direction and control. Legally some of the executive powers are indeed vested in the Crown in Council—that is, in the King acting with his Privy Council—but as the Council has no independent authority, and consists, for practical purposes, of the principal ministers appointed by the Crown, even these powers may be said to reside in the Crown alone.

Appointments to Office.

All national public officers, except some of the officials of the Houses of Parliament, and a few hereditary dignitaries whose duties are purely ceremonial,[21:1] are appointed directly by the Crown or by the high state officials whom it has itself appointed; and the Crown has also the right to remove them, barring a small number whose tenure is during good behaviour. Of these last by far the most important are the judges, the members of the Council of India, and the Controller and Auditor General, no one of whom has any direct part in the executive government of the kingdom.[21:2] Now the right to appoint and remove involves the power to control; and, therefore, it may be said in general that the whole executive machinery of the central government of England is under the direction of the Crown.

Other Powers under the Prerogative.

The Crown furthermore authorises under the sign manual the expenditure of public money in accordance with the appropriations made by Parliament, and then expends the money. It can grant charters of incorporation, with powers not inconsistent with the law of the land, so far as the right to do so has not been limited by statute; but in consequence of the various reform acts, municipal corporation acts, and local government acts, no charter conferring political power can now be created except in pursuance of statute, while even commercial companies usually require privileges which can be given only by the same authority.[22:1] The Crown grants all pardons, creates all peers, and confers all titles and honours. As head of the Established Church of England it summons Convocation with a license to transact business specified in advance. It virtually appoints the archbishops, bishops and most of the deans and canons, and has in its gift many rectorships and other livings.[22:2] As head of the Army and Navy it raises and controls the armed forces of the nation, and makes regulations for their government, subject, of course, to the statutes and to the passage of the Annual Army Act. It represents the empire in all external relations, and in all dealings with foreign powers. It has power to declare war, make peace, and conclude treaties, save that, without the sanction of Parliament, a treaty cannot impose a charge upon the people, or change the law of the land, and it is doubtful how far without that sanction private rights can be sacrificed or territory ceded.[22:3]

Executive Powers under Statutes.

Just as Parliament has often conferred legislative authority upon the Crown, so it has conferred executive power in addition to that possessed by virtue of the prerogative. I do not refer here to the cases where a statute creates new public duties to be performed directly by the Crown and confers upon it the authority needed for the purpose. Such powers, although statutory, are exercised in the same way as those derived from the prerogative. I refer to statutes that regulate the duties or privileges of local and other bodies, and give to the Crown, not a direct authority to carry out the law, but a power of supervision and control. Statutes of this kind have become very common during the last half century in relation to such matters as local government, public health, pauperism, housing of the working-classes, education, tramways, electric lighting and a host of other things. Even without an express grant of authority, supervisory powers have often been conferred upon the Crown by means of appropriations for local purposes which can be applied by the government at its discretion, and hence in accordance with such regulations as it chooses to prescribe. This has been true, for example, of the subsidies in aid of the local police, and of education. By such methods the local authorities, and especially the smaller ones, have been brought under the tutelage of the Crown to an extent quite unknown in the past.

Wide Extent of the Powers of the Crown.

All told, the executive authority of the Crown is, in the eye of the law, very wide, far wider than that of the chief magistrate in many countries, and well-nigh as extensive as that now possessed by the monarch in any government not an absolute despotism; and although the Crown has no inherent legislative power except in conjunction with Parliament, it has been given by statute very large powers of subordinate legislation. "It would very much surprise people," as Bagehot remarked in his incisive way, "if they were only told how many things the Queen could do without consulting Parliament . . . Not to mention other things, she could disband the army (by law she cannot engage more than a certain number of men, but she is not obliged to engage any men); she could dismiss all the officers, from the General Commanding-in-Chief downwards; she could dismiss all the sailors too; she could sell off all our ships of war and all our naval stores; she could make a peace by the sacrifice of Cornwall, and begin a war for the conquest of Brittany. She could make every citizen in the United Kingdom, male or female, a peer; she could make every parish in the United Kingdom a 'university'; she could dismiss most of the civil servants; she could pardon all offenders. In a word, the Queen could by prerogative upset all the action of civil government within the government."[24:1] We might add that the Crown could appoint bishops, and in many places clergymen, whose doctrines were repulsive to their flocks; could cause every dog to be muzzled, every pauper to eat leeks, every child in the public elementary schools to study Welsh; and could make all local improvements, such as tramways and electric light, well-nigh impossible.

Powers that have been Lost.

Great as the prerogative is to-day, it was, in some directions, even more extensive in the past, and men are in the habit of repeating the phrases derived from that past after they have lost their meaning. This is done by writers who are not under the slightest misapprehension in regard to the actual legal authority of the Crown. It is the habit, for example, to speak of the Crown as the fountain of justice, and even an author so learned and accurate as Todd repeats Blackstone's statement that "By the fountain of justice, the law does not mean the author or original, but only the distributor. Justice is not derived from the king, as from his free gift, but he is the steward of the public, to dispense it to whom it is due. He is not the spring, but the reservoir, from whence right and equity are conducted by a thousand channels to every individual."[24:2] Now apart from public prosecution by the state, which is less common in England than elsewhere, and the use of the King's name in judicial process, the only legal connection of the Crown with the distribution of justice to-day lies in the appointment of the judges; and to call it on that account the reservoir of justice is merely fanciful. There was a time when the Crown was really the fountain or reservoir of justice, when it might fairly have been said to administer justice by deputy. It created the Common Law courts, and after the growth of civilisation had produced more refined and complex ideas of justice it received petitions for the redress of wrongs not recognised before, and established new courts to deal with them. Stubbs has compared the process to that of the sun throwing off a series of nebulous envelopes, which rolled up into compact bodies, but left the old nucleus of light to assert its vitality, unimpaired by successive emanations.[25:1] In this way the courts of equity arose to give relief in cases where there was no remedy by the strict rules of the Common Law, while the Star Chamber performed an analogous function in criminal matters. This last tribunal came to be used as a political engine under the Stuarts, and was abolished by statute[25:2] early in the struggle with Charles I. With the fall of the Stuarts the power of the Crown to create new courts came to an end altogether. In 1689 the Bill of Rights declared the "Court of Commissioners for Ecclesiastical Causes, and all other Commissions and Courts of a like Nature," illegal, and since that time an Act of Parliament has been necessary to create any new court of justice in England.

The Crown has been deprived in the same way of other powers once possessed or claimed under the prerogative. The Bill of Rights, for example, declared illegal the suspending or dispensing with laws, and the maintenance of a standing army in time of peace without the consent of Parliament. Some powers have, from long disuse, become obsolete and have been lost; such as the right to confer on boroughs the privilege of electing members to the House of Commons;[25:3] and the power to create life peers with votes in the House of Lords.[25:4] Other powers again, although legally unimpaired, have become obsolete in practice, and can no longer be exerted. The illustration commonly given of this is the right of the Crown to withhold its assent to a bill passed by Parliament,—popularly called, or miscalled, the veto. The right has not been exercised since the days of Queen Anne; but it may not be gone so completely beyond revival as is generally supposed. It could, of course, be used only on the advice of the ministry of the day, and under ordinary circumstances a ministry willing to withhold the royal assent to a bill would be bound to treat the passage of that bill by the House of Commons as a ground for resignation or dissolution. One can imagine, however, a case where after a bill has passed the Commons the ministry should resign, and the House of Lords should insist on passing the bill in spite of the opposition of the new cabinet. It would be rash to assert that in such a case the royal assent would not be withheld. Something of the kind very nearly occurred in 1858, when the ministry threatened to advise the Queen to withhold her assent to a private bill unless the Lords gave permission to the Board of Works to appear before the private bill committee and oppose the plans.[26:1]

Powers of the Crown exercised by Ministers.

Since the accession of the House of Hanover the new powers conferred upon the Crown by statute have probably more than made up for the loss to the prerogative of powers which have either been restricted by the same process or become obsolete by disuse. By far the greater part of the prerogative, as it existed at that time, has remained legally vested in the Crown, and can be exercised to-day; but it is no longer used in accordance with the personal wishes of the sovereign. By a gradual process his authority has come more and more under the control of his ministers, until it is now almost entirely in the hands of the cabinet, which is responsible to Parliament, and through Parliament to the nation. The cabinet is to-day the mainspring of the whole political system, and the clearest method of explaining the relations of the different branches of the government to each other is to describe in succession their relations with the cabinet.

FOOTNOTES:

[16:1] 12-13 Will. III., c. 2.

[17:1] Except, of course, that the eldest of several sisters succeeds instead of all having equal rights as co-parceners.

[18:1] "Law of the Constitution," 355.

[19:1] The statement is made with this limitation because the Crown has always had inherent authority to legislate directly for Crown colonies acquired by conquest; but if the Crown once grants a representative legislature to such a colony without reserving its own legislative authority, it surrenders that authority over the colony forever. See Jenkyns, "British Rule and Jurisdiction Beyond the Seas," 4-6, 95; Campbell vs. Hall, Cowp., 204.

[19:2] Coke's Reports, XII., 76.

[20:1] Or more strictly to the Crown in Council.

[21:1] Such as the hereditary Earl Marshal and Grand Falconer.

[21:2] On the power of removal from an office held during good behaviour, and on the effect of the provision that the three classes of officers mentioned above may be removed upon the address of both Houses of Parliament, see Anson, "Law and Custom of the Constitution," II., 213-15. The references to Anson are to the 3 Ed. of Vol. I. (1897); the 2 Ed. of Vol. II. (1896).

[22:1] Todd, "Parl. Govt. in England," 2 Ed. (1887), Ch. xiv.

[22:2] See the later chapter on The Church.

[22:3] Cf. Anson, "Law and Custom," II., 297-99; Dicey, "Law of the Constitution," 393. Heligoland was ceded to Germany by treaty in 1890, subject to the assent of Parliament, which was given by 53-54 Vic., c. 32.

[24:1] "English Constitution," 2 Ed. (Amer.), Introd., 31.

[24:2] Todd, "Parl. Govt. in England," I., 570.

[25:1] "Const. Hist. of England," 4 Ed., I., 647.

[25:2] 16 Car. I., c. 10.

[25:3] It may be maintained that the right, if not already lost by disuse, was by implication, though not expressly, taken away by the Reform Acts of 1832, 1867 and 1885, which created new boroughs and disfranchised old ones.

[25:4] See the debate in the Lords on the Wensleydale case. Hans., 3 Ser., CXL., passim.

[26:1] The Victoria Station and Pimlico Railway Bill, Hans., 3 Ser., CLI., 586-89, 691-93, 797-98. See Todd, II., 392.

CHAPTER II

THE CROWN AND THE CABINET

It is not within the province of this book to trace the process whereby the King became irresponsible both at law and before the nation, while the responsibility for his acts became transferred to his ministers. The story has been told by others far better than the writer could tell it, and the object here is only to note the results of that process in the existing constitution.

The King can do no Wrong at Law;

The doctrine that "the King can do no wrong" had its beginnings as far back as the infancy of Henry III., and by degrees it grew until it became a cardinal principle of the constitution. Legally it means that he cannot be adjudged guilty of wrong-doing, and hence that no proceedings can be brought against him. He cannot be prosecuted criminally, or, without his own consent, sued civilly in tort or in contract in any court in the land.[27:1] But clearly if the government is to be one of law, if public officers like private citizens are to be subject to the courts, if the people are to be protected from arbitrary power, the servant who acts on behalf of the Crown must be held responsible for illegal conduct from the consequences of which the King himself is free. Hence the principle arose that the King's command is no excuse for a wrongful act, and this is a firmly established maxim of the Common Law in both civil and criminal proceedings.[27:2] To prevent royal violations of the law, however, it is not enough to hold liable a servant who executes unlawful orders, if the master still has power to commit offences directly. A further step must be taken by restraining the Crown from acting without the mediation of a servant who can be made accountable, and for this reason Edward I. was informed that he could not make an arrest in person.[28:1] But, as the kings and queens are not likely to be tempted into personal assaults and trespasses, the principle that they can act only through agents has had little importance from the point of view of their liability at law, although it is a matter of vital consequence in relation to their political responsibility.

or in Politics.

The doctrine that the King can do no wrong applies not only to legal offences, but also to political errors. The principle developed slowly, as a part of the long movement that has brought the royal authority under the control of public opinion; not that the process was altogether conscious, or the steps deliberately planned, but taking constitutional history as a whole, we can see that it tended to a result, and in speaking of this it is natural to use terms implying an intent which the actors did not really possess. To keep the Crown from actual violations of law was not always easy, but it was far more difficult to prevent it from using its undoubted prerogatives to carry out an unpopular policy. Parliament could do something in a fitful and intermittent way by refusing supplies or insisting upon the redress of particular grievances, but that alone was not enough to secure harmony between the Crown and the other political forces of the day. There could, in the nature of things, be no appropriate penalty for royal misgovernment. In the Middle Ages, indeed, a bad king or a weak king might lose his throne or even his life; but in more settled times such things could not take place without a violent convulsion of the whole realm,—a truth only too well illustrated by the events of the seventeenth century. An orderly government cannot be founded on the basis of personal rule tempered by revolution. Either the royal power must be exercised at the personal will of the monarch, or else other persons who can be made accountable must take part in his acts of state.

A Minister Responsible for Each of his Acts.

As early as the fourteenth and fifteenth centuries the King's Council had begun to encumber the affixing of the various seals with a series of formalities which involved the intervention of one or more royal officers. The process continued until custom or statute required that almost every public act which the Crown was in the habit of performing directly—except the appointment and removal of the great officers of state themselves—must either be done in the Privy Council, or by means of an instrument authenticated by seals or countersignatures affixed by one or more officers of state.[29:1] The object of these formalities was to protect the Crown from improvident grants, and to secure the influence of the Council over the administration,[29:2] rather than to create any responsibility to Parliament or the public; and yet it was easy to maintain, when the time was ripe, that the officer who sealed or signed assumed thereby responsibility for the act. Then if a wrong was committed some one could be held to account; for misconduct some one could be punished; for acts that were unpopular, or a policy that was odious, some one beneath the throne could be assailed; and if a strong expression of resentment did not deter the offender, Parliament had as a last resort the weapons of impeachment and bill of attainder. These weapons were a stage in the process of evolution, a stepping-stone in the progress of parliamentary control, but they were far too rough to produce a true accord between the Crown and Parliament; and when the political experiments of William and of Anne, fostered by the timely accident of two unkingly foreigners upon the throne, evolved at last the system of a responsible ministry in its present form, even impeachment became obsolete, or rather it lingered only as a means of retribution for personal malfeasance in office.

Nature of Modern Responsibility.

The rules requiring seals or signatures to be affixed to royal acts, though somewhat simplified, remain in force to-day, but they have ceased to be the real source of responsibility. The effort to fasten upon a particular person the actual responsibility for each public act of the Crown by compelling some officer to put his approval of it on record, has been superseded by the general principle that the responsibility must always be imputed to a minister. Though ignorant of the matter at the time it occurred, he becomes answerable if he retains his post after it comes to his knowledge; and even though not in office when the act was done, yet if he is appointed in consequence of it, he assumes with the office the responsibility for the act. This happened to Sir Robert Peel in 1834. Believing, as every one at that time did believe, that the King had arbitrarily dismissed Lord Melbourne's cabinet, he said, "I should by my acceptance of the office of First Minister become technically, if not morally, responsible for the dissolution of the preceding government, although I had not the remotest concern in it."[30:1] The rule is so universal in its operation "that there is not a moment in the King's life, from his accession to his demise, during which there is not some one responsible to Parliament for his public conduct."[30:2] A minister is now politically responsible for everything that occurs in his department, whether countersignature or seal is affixed by him or not; and all the ministers are jointly responsible for every highly important political act. A minister whose policy is condemned by Parliament is no longer punished, he resigns; and if the affair involves more than his personal conduct or competence, if it is of such moment that it ought to have engaged the attention of the cabinet, his colleagues resign with him. Thus punitive responsibility has been replaced by political responsibility, and separate has been enlarged to joint responsibility.

The King must Follow the Advice of Ministers;

The ministers, being responsible to Parliament for all the acts of the Crown, are obliged to refrain from things that they cannot justify, and to insist upon actions which they regard as necessary. In short, the cabinet must carry out its own policy; and to that policy the Crown must submit. The King may, of course, be able to persuade his ministers to abandon a policy of which he does not approve, and of his opportunities for doing so we shall have more to say later; but if he cannot persuade them, and, backed by a majority in Parliament, they insist upon their views, he must yield. It is commonly said that he must give his ministers his confidence, but it would be more accurate to say that he must follow their advice. With the progress of the parliamentary system this custom has grown more and more settled, the ministers assuming greater control, and the Crown yielding more readily, not necessarily from any dread of the consequences, but from the force of habit.

or Find Others who will Accept Responsibility.

According to the older theory of parliamentary government, it was merely necessary that the King should have ministers who would accept responsibility for his acts; and, therefore, he might disregard their advice if he could find others who were willing to adopt his policy, and assume responsibility for it. Such an alternative is a very remote possibility in England to-day. It could only be brought about in one of two ways.

In the first place it might be brought about by the dismissal of the cabinet. William IV. was long supposed to have dismissed arbitrarily Lord Melbourne's cabinet in 1834, and for many years his action in so doing was freely criticised; but on the publication of the Melbourne Papers[32:1] it appeared that the Prime Minister himself, meeting with great difficulty in carrying on the government, virtually suggested the dismissal to the King; and thus the incident was rather in the nature of a resignation than a dismissal. The right to dismiss a ministry, although unquestionably within the legal prerogative of the Crown, seems to be regarded as one of those powers which the close responsibility of the cabinet to the House of Commons has practically made obsolete. As in the case of some other powers, however, it is hardly safe to predict that it will never be used again, for circumstances might arise in which it was evident that the ministry and the House of Commons no longer represented the opinion of the country. Before Mr. Gladstone's last administration few people would have hesitated to say that the House of Lords would never again venture to reject a bill on which a House of Commons, fresh from a general election, was thoroughly in earnest, when the subject of the bill had been one of the chief issues in that election. Yet the Lords rejected the last Home Rule Bill of 1893, without losing popularity by so doing; and in 1906 it destroyed the Education Bill. It is conceivable that under similar conditions the Crown might, by dismissing a ministry, force a dissolution, and appeal to the electorate. Such an event, though highly improbable, cannot be said to be impossible.

The dismissal of a ministry must, of course, be carefully distinguished from the dismissal of an individual minister. This would be done, as in the case of Lord Palmerston,—the last of the kind that has occurred,—at the request of the Premier, and therefore not contrary to, but in accordance with, the advice of the person chiefly responsible for the acts of the Crown.

The other way in which a change of ministry could be brought about by the Crown would be by a refusal to consent to some act which the ministry deemed essential to their remaining in office. Some cases of the exercise of such a right by the representative of the Crown have taken place in the self-governing colonies, but they are not such as are likely to occur in England. A request, for example, by the ministry to be allowed to dissolve a colonial legislature has on several occasions been refused by the governor, usually on the ground that a general election had recently been held, or that there was no important issue pending between the parties which the people could properly be called upon to decide.[33:1] In England, on the other hand, such a request by a ministry has never been refused since William Pitt in 1784 invented the principle that a government faced by a hostile majority in the House of Commons may appeal to the electorate instead of resigning; nor is it probable that it will be refused, because the rules of political fair play are so thoroughly understood among English statesmen that the power is not likely to be misused for party purposes.

An interesting discussion on the right of a colonial governor to reject the advice of his ministers was raised in the case of Governor Darling of Victoria in 1865. The story has been often told. It grew out of a quarrel between the Assembly and the Legislative Council, which were both elective, but happened to be on opposite sides in politics. The Assembly, wishing to enact a protective tariff, to which a majority of the Council was known to be opposed, tacked it to the annual appropriation bill; and the Council, unable to amend such a bill, rejected it altogether. Thereupon the Governor, yielding to the pressure of his ministers, sanctioned the levy of the new duties, the issue of a loan, and the payment of official salaries, without the authority of any act regularly passed by both branches of the legislature. For permitting, on the advice of his ministers, such a violation of law, Governor Darling was rebuked, and finally dismissed by the Secretary of State for the Colonies.[34:1] It is needless to say that no such situation has ever arisen, or is likely to arise, in England.

Selection of a New Premier.

There is one matter in which the Crown cannot really be bound by the advice of ministers, and that is in the selection of a Premier. It would be obviously improper, not to say absurd, that the King in the selection of a new Prime Minister should be obliged to follow the opinion of the old one who has just resigned in consequence of a change of party in the House of Commons. That Mr. Balfour, for example, should have had the right to dictate whether Sir Henry Campbell-Bannerman or Lord Rosebery should be his successor would have been grotesque. There is usually one recognised leader of the Opposition, and when that is the case the Crown must intrust the formation of the new ministry to him. This was illustrated in 1880. Mr. Gladstone had, some years before, retired from the leadership of the Liberals in Parliament, and the Queen, after their success at the general election, sent for Lord Hartington, then leading them in the House of Commons; but she found that Mr. Gladstone, who had really led the party in the country to victory, was the only possible head of a Liberal government.[34:2]

If the party that has obtained a majority in Parliament has no recognised leader, the Crown may intrust the formation of a ministry to any one of its chief men who is willing to undertake the task; or if, as is sometimes the case, the parties have become more or less disintegrated, so that only a coalition ministry can be formed, the Crown can send for the head of any one of the various groups. Not to speak of earlier days, when the King had more freedom than at present in the formation of his cabinets, it happened several times in the reign of Queen Victoria that the question who should be Prime Minister was determined by her personal choice. In 1852, for example, Lord Aberdeen's coalition cabinet was formed by her desire.[35:1] In 1859 she selected Lord Palmerston rather than Lord John Russell;[35:2] and in 1868 and 1894, when in each case the existing cabinet lost its head, she selected the minister who was to succeed, designating in the first case Mr. Disraeli, and in the last Lord Rosebery.[35:3] Such opportunities, however, are likely to be less common in future, for it is altogether probable that a party will prefer to choose its own leader rather than to leave the selection to the Crown.

Selection of Other Ministers.

The choice of the other members of the cabinet is a very different matter; for although former sovereigns insisted on having a decisive voice in the composition of the ministry, it may be said that with Peel's appointment to office in 1834 the principle was definitely established that the Prime Minister chooses his colleagues, and is responsible for their selection.[35:4] The royal authority in this matter gave a last dying flicker in the bed-chamber question of 1839, where Peel's clumsiness and the Queen's impetuosity gave rise to a misunderstanding. Peel wished to replace some of the ladies attendant on the Queen, who were exclusively Whigs, by Conservatives; and the Queen, getting the impression that he intended to replace them all, refused.[35:5] When Peel came into office two years later part of the Whig ladies retired and were replaced; and it has since been settled that the Mistress of the Robes, like the Gentlemen of the Household, shall change with the administration, but that the other ladies shall remain. The Mistress of the Robes, however, must always be a duchess, and during the last years of the Queen's life it happened that there was no duchess who was a Liberal.

At the present day all persons whose offices are considered political are appointed in accordance with the advice of the Prime Minister. This does not mean that the sovereign may not urge his own views, perhaps with success, and on one occasion, at least, the Queen secured, it is said, a place in the cabinet for a former minister whom the incoming Premier had either forgotten or meant to leave out. It does mean, however, that if the minister insists upon his advice it must be accepted. More than once, for example, the Queen tried in vain to exclude from the Foreign Office Lord Palmerston, who was a constant grief of mind to her. As Mr. Morley puts it in the chapter, in his "Life of Walpole," which is understood to express Mr. Gladstone's views upon the cabinet, "Constitutional respect for the Crown would inspire a natural regard for the personal wishes of the sovereign in recommendations to office, but royal predilections or prejudices will undoubtedly be less and less able to stand against the Prime Minister's strong view of the requirements of the public service."[36:1]

For what Acts Ministers are Responsible.

The responsibilities of the ministers may be classified as technical and complete. Thus for acts which happen before they come into office, and which they could not possibly have advised, they assume what may be called a technical, or perhaps a nominal, responsibility. A premier is technically responsible for his own selection; but as responsibility of that kind means merely the obligation to resign on an adverse vote of the House of Commons, and as he would be obliged to do this in any event, he assumes no additional responsibility by reason of his own selection; and the same thing may be said of all acts which happen before the ministers come into power, and which they do not by accepting office effectually sanction or condone. They become responsible, for example, for the condition of the public departments of which they take charge; and yet it may be for the very purpose of changing that condition that they were put in office. In other words, there is a difference between those things for which they are technically responsible but not to blame, and those things which have been done by their advice, and for the consequence of which they may be said to be morally or completely responsible. The distinction is unimportant from the point of view of the conventions of the constitution, but its practical consequences are considerable as regards the position of the cabinet before Parliament and the public. Now the ministers are completely responsible for all political acts done by the Crown during their tenure of office, even those which appear to be most directly the work of the sovereign himself. All communications with the representatives of foreign powers, for example, pass through their hands. The creation of peers, the granting of honours, are now unquestionably subject to their advice; and although when King Edward's list of coronation honours was announced in 1901, The Times declared that the names were the personal choice of the monarch, it took pains to add that the constitutional responsibility must, of course, rest with the ministers.[37:1]

In short, the ministers direct the action of the Crown in all matters relating to the government. The King's speech on the opening of Parliament is, of course, written by them; and they prepare any answers to addresses that may have a political character. All official letters and reports to the King, and all communications from him, must pass through the hands of one of their number. A letter addressed to the sovereign as such by a subject, or other private person, passes through the office of the Home Secretary; and even peers, who have a constitutional right to approach him, must make an appointment for the interview through the same office. This does not mean that the Crown may not consult any one it pleases. That question came up in relation to Prince Albert, whom the ministers at first held at arm's length, and whose presence at their interviews with the Queen they refused for a couple of years to permit, while he, on the other hand, called himself the Queen's "confidential adviser" and "permanent minister."[38:1] Confidential adviser he certainly was, but minister he certainly was not, because in the nature of things he could not be responsible for her acts. Mr. Gladstone in his "Gleanings of Past Years"[38:2] seems to have defined the true position of the Queen and Prince Consort when he said that she has a right to take secret counsel with any one, subject only to the condition that it does not disturb her relation with her ministers. She cannot, as a rule, consult the Opposition, because they are directly opposed to the ministry; but she can consult any one else, provided it does not affect the responsibility of her ministers; that is, provided that in the end she follows their advice.

Public and Private Acts of the Crown.

The ministers are responsible for the public, not the private, acts of the Crown; but it is sometimes hard to distinguish between the two. Queen Victoria, for example, had relatives on many of the thrones of Europe to whom it was absurd that she should not write private letters; while other crowned heads were constantly writing letters to her on public business which they did not intend the ministers to see. The rule was, therefore, adopted that all her correspondence with foreign sovereigns, not her relatives, should pass through the ministers' hands,—an arrangement which, though a necessary result of English responsible government, was galling to the Queen, who was often made to express in her own handwriting opinions quite different from those which she really held.[38:3] In domestic matters, also, it is hard to draw the line between what is public and what is private. The Queen's marriage, which was felt at the time to have a greater political importance than it would have to-day, was arranged by herself, without consultation with her ministers, and merely announced to them. On the other hand, when the Princess Louise was betrothed to the Marquis of Lorne, Mr. Gladstone stated in the House of Commons that the marriage with a subject had not been decided upon without the advice of the ministers of the Crown.[39:1] The risk of a strong infusion of British blood in the veins of some future occupant of the throne is, it seems, a political matter, for which the cabinet must hold itself responsible. But this is not true of purely social affairs. One of the chief functions of the Crown is that connected with its duties as the head of the social life of the capital. These duties the Queen virtually abandoned for many years after her husband's death; but although there were loud complaints on the part of the public, the question was not regarded as a political one for which the ministers could be called to account.

The King's Name not Brought into Public Controversy.

Since the King can do no wrong, he can do neither right nor wrong. He must not be praised or blamed for political acts; nor must his ministers make public the fact that any decision on a matter of state was actually made by him.[39:2] His name must not be brought into political controversy in any way, or his personal wishes referred to in argument, either within or without Parliament.[39:3] This principle was not fully recognized until after the accession of Queen Victoria. At the first election of her reign the Tories complained, apparently with reason, that the Whigs used her and her name as party weapons,[40:1] and three years later we find Wellington referring to the Queen as the head of the party opposed to the Conservatives.[40:2] Almost the only public acts that can be done by the Crown before the public eye are ceremonies, public functions, speeches which have no political character and deeds of kindness that are above criticism. When the Queen, for example, made her last visit to Ireland, the public were allowed to understand that it was her own suggestion, and the same thing was true of her order allowing Irish soldiers to wear the shamrock, it being assumed that such acts could not have a political bearing, and would excite no hostile comment.

Actual Influence of the Sovereign.

According to the earlier theory of the constitution the ministers were the counsellors of the King. It was for them to advise and for him to decide. Now the parts are almost reversed. The King is consulted, but the ministers decide. It is commonly said that, with the sovereign, influence has been substituted for power; or as Bagehot puts it in his own emphatic way, the Crown has "three rights—the right to be consulted, the right to encourage, the right to warn. And a king of great sense and sagacity would want no others."[40:3] But after the advice and warning have been given the final decision must remain with the ministers. It is for them to determine whether their opinion is of such importance that they feel obliged to insist upon it in spite of the objections of the King, and if they do he must yield. Bagehot goes on to describe how effective the right to advise may become in the hands of a sage and experienced monarch, but he admits how small the chance must be that the occupant of the throne will possess the qualities needed for making a good use of the right, and adds that the attempt of the ordinary monarch to exercise it would probably do more harm than good.

He is Consulted after a Decision is Reached.

Historians have often observed that the absence of the sovereign from cabinet meetings, since the accession of the House of Hanover, has been a great factor in the growth of cabinet government. His absence had, indeed, three distinct effects. It helped to free the individual members of the cabinet from royal pressure; it made it easier for them to act as a unit in their relations with the monarch; and it tended to remove him from the discussion of public policy until it had been formulated. This last point is highly important, and has a bearing upon the influence of the King to-day, because it is before the ministers have formed an opinion that his advice and warning are most effective. It is while some of them are reluctant and others are hesitating that the weight of his views has the best chance of turning the scale. After the matter has been threshed out and an agreement reached the decision is far less likely to be reversed, or even seriously modified, by his personal preferences.

Now the sovereign is not usually consulted about matters of domestic legislation and policy until the opinion of the cabinet has taken shape. For although he is informed in general terms of what is done at cabinet meetings, and sometimes discusses with a minister the proposed measures relating to his department, yet a matter is commonly talked over and agreed upon by the ministers before it is submitted to him for approval. In this way "the sovereign is brought into contact only with the net results of previous inquiry and deliberation,"[41:1] and the views of the cabinet are "laid before" him "and before Parliament, as if they were the views of one man."[41:2] Queen Victoria tried, indeed, to insist upon the right of "commenting on all proposals before they are matured;"[41:3] but apparently without much success. This was not equally true, however, of all departments of the government. On the contrary, after a long struggle with Lord Palmerston, in which she suffered many exasperating rebuffs, the autocratic foreign minister by his impulsiveness and lack of perfect candour gave her at last an advantage. She succeeded in establishing, by the memorandum of August, 1850, the rule that she must be kept informed of foreign correspondence and despatches before they were sent, so that foreign matters should be intact and not already compromised when they were brought to her attention. Mr. Gladstone has criticised the principles laid down at that time because they meant that the comments of the Premier on despatches were to be made, not privately to the foreign minister, but after the draft had been submitted to the Queen.[42:1] In other words, he complained that the Queen was consulted before the tenor of the despatch had been finally settled between the Premier and the foreign minister. His criticism seems, therefore, to be levelled at the practice of consulting the Crown before the policy has been agreed upon by those who are responsible for it,[42:2] in this case the Prime Minister and the Foreign Secretary, for despatches are not ordinarily brought before the full cabinet for consideration.

The opportunity for an exertion of royal influence is much less in those matters which are settled in cabinet meeting than in others. In the former case the sovereign is not usually consulted until the question has been thoroughly discussed, and the cabinet has reached a decision which is the more difficult to change because it is often the result of a compromise, and has, therefore, something of the binding force of an agreement; whereas, in questions which are not brought directly before the cabinet, the Crown when consulted has to overcome only the opinion, and perhaps the hasty opinion, of one or two ministers. This is true in such matters as the less important foreign relations, ecclesiastical and other patronage, and the ordinary executive work of the various departments. But herein another difference must be observed. The executive action of the government in domestic affairs is usually brought under very close scrutiny by Parliament, and is subjected to a galling fire there. Hence the minister, with the volley of questions levelled at the Treasury Bench ever before his mind, finds it more difficult in these affairs to yield his opinion to that of the monarch than he does in the case of foreign negotiations, and of ecclesiastical, judicial and military patronage, which are not habitually discussed in Parliament.[43:1] It would seem, therefore, that under ordinary circumstances the personal influence of the King in political matters is not likely to be very effectively asserted outside of foreign affairs, church patronage, and some other appointments to office.

Personal Influence of Queen Victoria.

Although one can perceive the general limitations upon the personal influence of the monarch imposed by the conditions under which it is exercised, one can never know how vigorously it is being used at the moment; and, indeed, it is difficult to estimate its actual effect during any comparatively recent period. There is no use in going back beyond the reign of Queen Victoria, to times when the parliamentary system was so imperfectly developed that ministers sometimes gave individual and contrary advice to the King;[43:2] and since the Queen came to the throne very little has been published which throws light upon the subject. From the various memoirs and letters of her ministers almost everything has been eliminated that bears upon the actual influence she exerted. Nevertheless certain facts appear. There can be no doubt that the personal opinions of the monarch were deemed of greater importance at the time of the Queen's accession than they are to-day. Of late years, indeed, many popular writers have tended to neglect the royal influence altogether. With the love of broad generalisation, which is at once valuable and perilous in political philosophy, publicists have been in the habit of speaking of the Queen as a figurehead; but statesmen who have seen the inner life of the cabinet know that the metaphor is inexact. Mr. Gladstone is reported to have said that every treatise on the English government which he had read failed to estimate her actual influence at its true value; and in his "Gleanings of Past Years"[44:1] he remarks, "there is not a doubt that the aggregate of direct influence normally exercised by the sovereign upon the counsels and proceedings of her ministers is considerable in amount, tends to permanence and solidity of action, and confers much benefit on the country." Perhaps at a later period he might have stated this less strongly; and although no final judgment can yet be formed, one may venture an estimate of the Queen's influence in the different branches of the government.

In Domestic Policy.

The effect of the Queen's personal preferences in the selection of the Prime Minister and his colleagues has already been discussed, and it may be added that on two or three occasions a cabinet, instead of resigning on a defeat in the Commons, dissolved Parliament in deference to her wishes;[44:2] but except for this it is hard to find definite traces of her influence upon the general domestic policy of the country. Yet in some departments, at least, of the public service she took a very lively interest. At times she was prodigal of suggestions and advice, which bore, as far as one can see, no positive fruit. She held her opinions strongly, expressed them boldly, and was frank in her criticism of measures, but did not succeed apparently in persuading her ministers to abandon or even to modify them. On more than one occasion she used her personal influence over the peers to prevent a disagreement between the Houses, but this was never done to give effect to her own personal views, and in the case of the Irish Church Disestablishment Bill it was done to secure the passage of a government measure with which she was not herself in sympathy.[45:1] In short her personal influence in domestic affairs, either in the form of initiating policy, or of effecting changes in that of her ministers, seems to have been very slight. To this statement, however, a couple of exceptions must be made, which relate to the Army and the Church. The Queen, who regarded the Army as peculiarly dependent upon the sovereign, procured the appointment of a royal duke as Commander-in-Chief, and for a time she resisted successfully all attempts to change the vague relation of that office to the Crown,[45:2] although in the end it was made completely subordinate to the minister responsible to Parliament.[45:3] In the matter of ecclesiastical appointments her opinions were expressed with still greater effect, bishops and deans having in several cases been selected by her, sometimes in preference to candidates proposed by the Prime Minister.

In Foreign Affairs.

But it was in foreign affairs that the Queen's efforts were most untiring, and on the whole most successful, in spite of many disappointments. For years she was opposed to Lord Palmerston's aggressive attitude, and while she never effected a radical change of policy, she appears at times to have softened it to some extent.[45:4] Throughout her reign she insisted upon the right to criticise despatches, and not infrequently she caused changes to be made in them; sometimes, as in the European crisis of 1859-1861, by appealing from the Foreign Secretary and the Prime Minister to the cabinet as a whole.[46:1] The most famous case is that of the Trent Affair in 1861, where the changes made in a despatch, in accordance with the suggestions of the Prince Consort a few days before his death, avoided a danger of serious trouble with the United States. In foreign affairs, therefore, it is safe to conclude that while the Queen never initiated a policy, her influence had on several important occasions a perceptible effect in modifying the policy of her ministers.

Changes during the Queen's Reign.

In the closing chapter of his biography of the Queen, Mr. Lee says that her "personal influence was far greater at the end of her life than at her accession to the throne. Nevertheless it was a vague intangible element in the political sphere, and was far removed from the solid remnants of personal power which had adhered to the sceptre of her predecessors."[46:2] No doubt her long experience, and the veneration due to her age and unblemished character, caused her opinions to be treated with growing respect; but there can be no doubt, also, that the political influence of the sovereign faded slowly to a narrower and fainter ray during her reign. One sees this in Peel's remark at her accession, that the personal character of a constitutional monarch counteracts the levity of ministers and the blasts of democratic passions.[46:3] One sees it in the great importance attached at that time to the persons surrounding the Queen, to the Ladies of the Bedchamber, to the question of her private secretary, and to the position of the Prince Consort. The Queen herself seems to have held views about her own position that were drawn from the past rather than the present.[46:4] At least this is the impression one forms, and it is fortified both by her defence of her seclusion in 1864, on the ground that she had higher duties to discharge which she could not neglect without injury to the public service; and by her complaint that some of her ministers did not allow her time enough to consider and decide public questions, when in reality the decision was not made by her at all. The Crown has been compared to a wheel turning inside the engine of state with great rapidity, but producing little effect because unconnected with the rest of the machinery. This is, no doubt, an exaggeration; but the actual influence of Queen Victoria upon the course of political events was small as compared with the great industry and activity she displayed. What the influence of the sovereign will be in the future cannot be foretold with precision. It must depend largely upon the insight, the tact, the skill, the industry and the popularity of the monarch himself; and as regards any one department, upon his interest in that department. The monarch is not likely to be inured to a life of strenuous work, and yet in addition to the political routine, which is by no means small, his duties, social and ceremonial, are great. Moreover, with the highest qualifications for the throne, his opportunities must be very limited, for there is certainly no reason to expect any growth in irresponsible political authority.

Utility of the Monarchy; as a Political Force.

Bagehot's views upon the utility of the monarchy have become classic. Recognising the small chance that an hereditary sovereign would possess the qualities necessary to exert any great influence for good upon political questions, he did not deem the Crown of great value as a part of the machinery of the state; and he explained at some length how a parliamentary system of government could be made to work perfectly well in a republic, although up to that time such an experiment had never been tried. But he thought the Crown of the highest importance in England as the dignified part of the government. Writing shortly before the Reform Bill of 1867, he dreaded the extension of democracy in Great Britain, for he had a low opinion of the political capacity of the English masses. He felt that the good government of the country depended upon their remaining in a deferential attitude towards the classes fitted by nature to rule the state, and he regarded the Crown as one of the strongest elements in keeping up that deferential attitude. According to his conception of English polity the lower classes believed that the government was conducted by the Queen, whom they revered, while the cabinet, unseen and unknown by the ignorant multitude, was thereby enabled to carry on a system which would be in danger of collapsing if the public thoroughly understood its real nature. Whatever may have been the case when Bagehot wrote, this state of things is certainly not true to-day. The English masses have more political intelligence than he supposed, or more political education than when he wrote. A traveller in England does not meet to-day people who think that the country is governed by the King, nor does he find any ignorance about the cabinet, or any illusions about the part played by the chief leaders in Parliament. The English workingman is now bombarded from the platform, in the newspapers and in political leaflets, with electioneering appeals which do not refer to the King, but discuss unceasingly the party leaders and their doings. The political action of the Crown is, in fact, less present to men's minds than it was half a century ago. Mr. Lee tells us that he was impressed by the outspoken criticism of the Queen's actions in the early and middle years of her reign.[48:1] To-day the social and ceremonial functions of the Crown attract quite as much interest as ever; but as a political organ it has receded into the background, and occupies less public attention than it did formerly. The stranger can hardly fail to note how rarely he hears the name of the sovereign mentioned in connection with political matters; and when he does hear it the reference is only too apt to be made by way of complaint. If the foreign policy is unpopular, if there is delay in the formation of a cabinet, one may hear utterly unfounded rumours attributing the blame to the King. Even if a committee of inquiry is thought not to have probed some matter to the bottom, it is perhaps whispered that persons in favour at court are involved. Fortunately such reports are uncommon. In general the growth of the doctrine of royal irresponsibility has removed the Crown farther and farther out of the public sight, while the spread of democracy has made the masses more and more familiar with the actual forces in public life. One may dismiss, therefore, the idea that the Crown has any perceptible effect to-day in securing the loyalty of the English people, or their obedience to the government.

On the other hand, the government of England is inconceivable without the parliamentary system, and no one has yet devised a method of working that system without a central figure, powerless, no doubt, but beyond the reach of party strife. European countries that had no kings have felt constrained to adopt monarchs who might hold a sceptre which they could not wield; and one nation, disliking kings, has been forced to set up a president with most of the attributes of royalty except the title. If the English Crown is no longer the motive power of the ship of state, it is the spar on which the sail is bent, and as such it is not only a useful but an essential part of the vessel.

As a Social and Moral Force.

The social and ceremonial duties of the Crown are now its most conspicuous, if not its most important, functions. There can be no question that the influence of the Queen and her court was a powerful element in the movement that raised the moral tone of society during the first half of the last century. But such an influence must vary with the personal character of the monarch. It may be exerted for good or for evil; and it may not be so strong in the future as it has been in the past.

As a Pageant.

In its relation to the masses royalty may be considered in another aspect. Within a generation there has been a great growth of interest in ceremony and dress. Antiquated customs and costumes have been revived, and matters of this kind are regarded by many people as of prime importance. A kindred result of the same social force has been a marked increase in what Bagehot called the spirit of deference, and what those who dislike it call snobbishness—a tendency by no means confined to the British Isles. All this has exalted the regard for titles and offices, and enhanced the attractiveness of those who bear them. In prestige the titled classes have profited thereby, and although their position is less and less dependent upon court favour, the royal family has also profited directly. The presence of some one of its members is sought at ceremonies of all kinds, whether it be the opening of a new building, the inauguration of a charity, or an anniversary celebration at a university. The attendance of the King on such occasions insures an extended report in all the newspapers of the country, and is, therefore, a most effective form of advertisement.

As a Symbol.

A century or more ago people who had learned nothing from the history of Greece or Rome, and above all of Venice, were wont to assert that the sentiment of loyalty requires a person for its object. No one would make such a statement now. No one pretends that the English would be less patriotic under a republic; and yet with the strengthening conception of the British Empire, the importance of the Crown as the symbol of imperial unity has been more keenly felt. To most countries the visible symbol of the state is the flag; but curiously enough there is no British national flag. Different banners are used for different purposes; the King himself uses the Royal Standard; ships of war carry at the peak the White Ensign; naval reserve vessels fly the Blue Ensign, and merchantmen the Red Ensign; while the troops march, and Parliament meets, under the Union Jack; and all of these are freely displayed on occasions of public rejoicing. There is a tendency at the moment to speak of the Union Jack as the national flag, but a recent occurrence will illustrate how far this is from being justified. A British subject residing at Panama had been in the habit of flying the Red Ensign, until one day he hoisted in its place the Union Jack. Now, according to the regulations the Jack is displayed from the consulates, and the British consul requested his patriotic fellow-citizen not to use it on his private house. The question was finally referred to the British Foreign Office, which in deference to a law of Panama forbidding all private display of alien flags, supported the position of the consul, but refrained from expressing any opinion on the right of an English citizen to hoist the Union Jack in foreign parts.[51:1] Each of the self-governing colonies has, moreover, its own flag, which consists of the Union Jack with some distinctive emblem upon it. One of the first acts of the new Commonwealth of Australia was to adopt a separate flag of this kind. The government held a competition in designs, and some thirty thousand were presented. From these one was selected which showed at the same time the connection with the empire and the self-dependence of the commonwealth. It is the Union Jack with a southern cross and a six-pointed star at one end,—a design that seems to have been more shocking to heraldic than to imperialist sensibilities.

The Crown is thus the only visible symbol of the union of the empire, and this has undoubtedly had no inconsiderable effect upon the reverence felt for the throne.

Popularity of the Monarchy.

Whatever the utility of the Crown may be at the present time, there is no doubt of its universal popularity. A generation ago, when the Queen, by her seclusion after the death of Prince Albert, neglected the social functions of the court, a number of people began to have serious doubts on the subject. This was while republican ideals of the earlier type still prevailed, and before men had learned that a republic is essentially a form of government, and not necessarily either better or worse than other forms. The small republican group in England thought the monarchy useless and expensive; but people have now learned that republics are not economical, and that the real cost of maintaining the throne is relatively small.[52:1] So that while the benefits derived from the Crown may not be estimated more highly, or admitted more universally than they were at that time, the objections to the monarchy have almost entirely disappeared, and there is no republican sentiment left to-day either in Parliament or the country.

FOOTNOTES:

[27:1] If a person has a claim against the Crown for breach of contract, or because his property is in its possession, he may bring a Petition of Right, and the Crown on the advice of the Home Secretary will order the petition indorsed "Let right be done," when the case proceeds like an ordinary suit.

[27:2] Anson, II., 4, 5, 42, 43, 278, 279, 476-80. But a servant of the Crown is not liable on its contracts, for he has made no contract personally, and he cannot be compelled to carry out the contracts of the Crown. Gidley vs. Lord Palmerston, 3 B. & B., 284. The rule that the sovereign cannot be sued has been held to prevent a possessory action against a person wrongfully in the possession of land as agent of the Crown: Doe. d. Legh. vs. Roe., 8 M. & W., 579. It would seem that in such a case the courts might have held that as the King could do no wrong, the wrongful act, and consequently the possession, was not his; in other words, that the agency could not be set up as a defence to the wrongful act. Compare United States vs. Lee, 106 U.S., 196, where land had been illegally seized by the government of the United States.

[28:1] Coke, Inst. (4 Ed.), II, 186-87. "Hussey Chief Justice reported, that Sir John Markham said to King E. I. that the King could not arrest any man for suspicion of Treason, or Felony, as any of his Subjects might, because if the King did wrong, the party could not have his Action."

[29:1] Anson, II., 27, 42-54. Dicey, "The Privy Council," 34 et seq.

[29:2] Dicey, Ibid., 40-42.

[30:1] Mahon and Cardwell, "Memoirs by Sir Robert Peel," II., 31.

[30:2] Todd, "Parl. Govt. in England," 2 Ed., I., 266.

[32:1] Pp. 220-26.

[33:1] A description of these cases may be found in Todd, "Parl. Govt. in the British Colonies," 525-73.

[34:1] Todd, "Parl. Govt. in the British Colonies," 105 et seq.

[34:2] Cf. Morley, "Life of Gladstone," Book II., Ch. vii.

[35:1] Sidney Lee, "Life of Queen Victoria," 1 Ed., 232-33.

[35:2] Ashley's "Life of Lord Palmerston," II., 154-57. Lee, "Life of Queen Victoria," 296.

[35:3] Lee, Ibid., 511.

[35:4] Todd, "Parl. Govt. in England," 2 Ed., I., 323 et seq.

[35:5] Parker, "Sir Robert Peel," II., 391 et seq., and Lee, "Life of Queen Victoria," 97-103.

[36:1] Morley, "Walpole," 158.

[37:1] The Times, June 26, 1902.

[38:1] Martin, "Life of the Prince Consort," 4 Ed., I., 74.

[38:2] I., 73.

[38:3] Lee, "Life of Queen Victoria," 1 Ed., 211-13.

[39:1] Todd, "Parl. Govt. in England," 2 Ed., I., 266, note y. Hans., 3 Ser. CCIV., 173, 370.

[39:2] Disraeli's opponents were right for criticising him for letting it be known that it was the Queen who had decided whether to accept his resignation or to dissolve in 1868: Hans., 3 Ser. CXCI., 1705, 1724, 1742, 1788, 1794, 1800, 1806, 1811. There was no objection to allowing her to decide if he pleased,—that is, he might accept her opinion as his own,—but he ought to have assumed in public the sole responsibility for the decision.

[39:3] In 1876 Mr. Lowe in a public speech expressed his belief that the Queen had urged previous ministers in vain to procure for her the title of Empress of India. The matter was brought to the attention of the House of Commons, and he was forced to make an apology, which was somewhat abject, the Queen through the Prime Minister having denied the truth of his statement: Hans., 3 Ser. CCXXVIII., 2023 et seq.; and CCXXIX., 52-53.

An apparent, though not a real, exception may be found in the rule which requires that before a bill affecting the prerogative can be introduced into Parliament, notice of the King's assent thereto must be given. If the bill affects only the private property of the Crown it is not a political matter. If it affects the public powers of the Crown, then the assent is given on the responsibility of the ministers.

[40:1] Lee, "Life of Queen Victoria," 74-75.

[40:2] Parker, "Sir Robert Peel," II., 415 et seq.

[40:3] English Const., 1 Ed., 103.

[41:1] Gladstone, "Gleanings of Past Years," I., 85.

[41:2] Morley, "Life of Walpole," 155.

[41:3] This was in 1880. Lee, "Life of Queen Victoria," 451.

[42:1] "Gleanings of Past Years," I., 86, 87.

[42:2] For the same reason the President of the Board of Control objected in 1842, when Lord Ellenborough, the Governor General of India, took upon himself to write directly to the Queen, a proceeding which would undoubtedly not be permitted to-day. Parker, "Life of Sir Robert Peel," II., 591.

In 1885 Lord Randolph Churchill tendered his resignation as Secretary of State for India, because the Prime Minister, without consulting him, had transmitted to the Viceroy a suggestion by the Queen that one of her sons should be appointed to the command of the forces in Bombay. The appointment was not made, and Lord Randolph withdrew his resignation. Winston Churchill, "Life of Lord Randolph Churchill," I., 503-13.

[43:1] Cf. Dicey, "Law of the Constitution," 5 Ed., 392.

[43:2] Cf. Parker, "Life of Sir Robert Peel," I., 334.

[44:1] I., 42.

[44:2] Lee, "Life of Queen Victoria," 133, 295, 387, and see page [39, note 2], supra.

[45:1] Morley, "Life of Gladstone," II., 267 et seq. Davidson and Benham, "Life of Archbishop Tait," 2 Ed., II., 20-27, 35-36, 40-42.

[45:2] Lee, "Life of Queen Victoria," 266, 302.

[45:3] 33-34 Vic., c. 17. Order in Council, June 4, 1870.

[45:4] Cf. Lee, "Life of Queen Victoria," 299, 336, 349.

[46:1] Morley, "Life of Walpole," 159. But see Morley, "Life of Gladstone," I., 415.

[46:2] Pp. 544-45.

[46:3] "Croker Papers," II., 317. A couple of years earlier Peel had dreaded the advent of a ministry that might appear to be dictated to the King by the House of Commons, and continue in office independently of his will and control. Parker, "Sir Robert Peel," II., 302. No statesman would repeat either of these remarks to-day.

[46:4] In Prince Albert's letter to his daughter, the Crown Princess of Prussia, on the advantages of a responsible ministry, he speaks of the power of the monarch to settle the principles on which political action is to be based, in terms not applicable in England. Martin, "Life of the Prince Consort," IV., 218.

[48:1] "Life of Victoria," Pref., vii-viii.

[51:1] The Times, Sept. 17, 1903.

[52:1] Hans., 4 Ser. XCIV., 1500. The Civil List of Edward VII. was fixed at his accession at £543,000, to which must be added about £60,000 of revenues from the Duchy of Lancaster, and also the revenues from the Duchy of Cornwall which go to the heir apparent as Duke of Cornwall. Rep. Com. on Civil List, Com. Papers, 1901, V., 607.

CHAPTER III

THE CABINET AND THE MINISTERS

Absence of Fixed Traditions.

A German professor in a lecture on anatomy is reported to have said to his class, "Gentlemen, we now come to the spleen. About the functions of the spleen, gentlemen, we know nothing. So much for the spleen." It is with such feelings that one enters upon the task of writing a chapter upon the cabinet; although that body has become more and more, decade by decade, the motive power of all political action. The fact is that the cabinet from its very nature can hardly have fixed traditions. In the first place, it has no legal status as an organ of government, but is an informal body, unknown to the law, whose business is to bring about a coöperation among the different forces of the state without interfering with their legal independence. Its action must, therefore, be of an informal character. Then it meets in secret, and no records of its proceedings are kept, which would in itself make very difficult the establishment and preservation of a tradition. This could, indeed, happen only in case of a certain permanence among the members who could learn and transmit its practice. But a new cabinet contains under ordinary circumstances none of the members of its predecessor. A Conservative minister knows nothing of the procedure under Liberal administrations; and we find even a man of the experience of Sir Robert Peel asking Sir James Graham about the practice of a Liberal cabinet, of which that statesman—who at this time changed his party every decade—had formerly been a member.[53:1] No doubt the mode of transacting business varies a good deal from one cabinet to another, depending to a great extent upon the personal qualities of the members. Still, the real nature of the work to be done, and hence the method of doing it, have changed during the last half century less in the case of the cabinet than of any of the other political organs of the state, and one can observe certain general characteristics that may be noted.

Nature of the Cabinet.

The conventions of the constitution have limited and regulated the exercise of all legal powers by the regular organs of the state in such a way as to vest the main authority of the central government—the driving and the steering force—in the hands of a body entirely unknown to the law. The members of the cabinet are now always the holders of public offices created by law; but their possession of those offices by no means determines their activity as members of the cabinet. They have, indeed, two functions. Individually, as officials, they do the executive work of the state and administer its departments; collectively they direct the general policy of the government, and this they do irrespective of their individual authority as officials. Their several administrative duties, and their collective functions are quite distinct; and may, in the case of a particular person, have little or no connection. The Lord Privy Seal, for example, has no administrative duties whatever; and it is conceivable that the work of other members might not come before the cabinet during the whole life of the ministry.

Functions of the Cabinet.

The essential function of the cabinet is to coördinate and guide the political action of the different branches of the government, and thus create a consistent policy. Bagehot called it a hyphen that joins, a buckle that fastens, the executive and legislative together; and in another place he speaks of it as a committee of Parliament chosen to rule the nation. More strictly, it is a committee of the party that has a majority in the House of Commons. The minority are not represented upon it; and in this it differs from every other parliamentary committee. The distinction is so obvious to us to-day, we are so accustomed to government by party wherever popular institutions prevail, that we are apt to forget the importance of the fact. Party government as a system has developed comparatively recently; but it has now become almost universal. The only exception among democratic countries (that is, the only case where the executive body habitually contains members of opposing parties) is in Switzerland. Still the system is carried to a greater extent in some countries than in others; and the amount of power concentrated in the hands of a single party leader, or a body of party leaders, varies very much. The President of the United States, for example, is the representative of a party; but he rules the nation only in part. The legislature is neither in theory or in practice under his control; and this is so far true that even when Congress is of the same party as himself, neither he nor any committee of the party so controls both executive and legislative that any one body can be said to rule the nation. But where the parliamentary system prevails, the cabinet, virtually combining in its own hands, as it does, the legislative and executive authorities, may fairly be said to rule the nation; although the degree in which this is true must depend upon the extent of its real control over the legislature. Now, although the legal power of the executive government is in some respects less in England than in most continental countries, the actual control of the cabinet over the legislature is greater than anywhere else.

The cabinet is selected by the party, not directly, but indirectly, yet for that very reason represents it the better. Direct election is apt to mean strife within the party, resulting in a choice that represents the views of one section as opposed to those of another, or else in a compromise on colourless persons; while the existing indirect selection results practically in taking the men, and all the men, who have forced themselves into the front rank of the party and acquired influence in Parliament. The minority of the House of Commons is not represented in the cabinet; but the whole of the majority is now habitually represented, all the more prominent leaders from every section of the party being admitted. In its essence, therefore, the cabinet is an informal but permanent caucus of the parliamentary chiefs of the party in power—and it must be remembered that the chiefs of the party are all in Parliament. Its object is to secure the cohesion without which the party cannot retain a majority in the House of Commons and remain in power. The machinery is one of wheels within wheels; the outside ring consisting of the party that has a majority in the House of Commons; the next ring being the ministry, which contains the men who are most active within that party; and the smallest of all being the cabinet, containing the real leaders or chiefs. By this means is secured that unity of party action which depends upon placing the directing power in the hands of a body small enough to agree, and influential enough to control. There have, of course, been times when the majority was not sufficiently homogeneous to unite in a cabinet; when a ministry of one party has depended for its majority upon the support of a detached group holding the balance of power. The Peelites in 1850, the Liberal Unionists in 1886, and the Irish Nationalists in 1892 formed groups of this kind; but such a condition of things is in its nature temporary and transitional, and usually gives place to a coalition ministry, followed by party amalgamation.

Formation of the Cabinet.

The statesman sent for by the Crown and intrusted with the formation of a ministry becomes himself the Prime Minister, and selects his colleagues. It may be added, also, that he has virtually power to dismiss a minister; that is, subject to his responsibility to the cabinet as a whole and to Parliament, he can request the Crown to dismiss a colleague—a request which the Crown cannot practically refuse.[56:1] In the selection of the cabinet his choice is, however, decidedly limited both as to persons and offices. In the first place, all the men still in active public life who served in the last cabinet of the party have a claim, a very strong claim, to sit in the new cabinet, and hence it is unusual to discard a man who is willing to return to office.[57:1] This in itself fills a goodly number of the cabinet positions. Then all the prominent leaders in Parliament, and especially in the House of Commons, must be included. In fact, as Mr. Bagehot puts it, the Prime Minister's independent choice extends rather to the division of the cabinet offices than to the choice of cabinet ministers. Still, he has some latitude in regard to the men whom he will admit; especially the younger men, who are appointed to offices in the ministry but not in the cabinet, and this may be a matter of great moment. One cannot tell, for example, how different the history of Parliament in the middle of the century might have been had Peel decided to invite Disraeli to join his ministry in 1841.[57:2] Although the Prime Minister has by no means a free hand in the selection of his colleagues, the task is often extremely difficult and vexatious. It is like that of constructing a figure out of blocks which are too numerous for the purpose, and which are not of shapes to fit perfectly together; for with the selection of the members of the cabinet the difficulties are by no means over. The distribution of the offices among them may raise additional problems. One man will take only a particular office, while others may object to serving if he occupies that post. Where parties are a good deal broken up, or are evenly divided, obstacles like these have sometimes prevented the formation of a cabinet altogether; and there is always some disappointment and consequent discontent on the part of men who thought themselves sufficiently prominent to be admitted to the ministry, and whose chagrin may drive them into an independent attitude.

There are, indeed, two ways in which an ambitious young member of the House of Commons can render his services indispensable to the Prime Minister. He must, of course, first get the ear of the House, and make himself a power there. Then he may vote regularly with the party whips, support the leaders of his party on all occasions, and speak in their favour whenever he can be of use to them. In that case he is likely to be regarded as a promising young man of sound principles who can be relied upon by his chiefs. Or, he may follow the opposite course of the candid friend, criticising and even attacking the leader of his party, showing the weak points in his arguments, and the errors in his policy. In that case, if the young man has achieved so important a position that he cannot be disregarded, he stands a good chance of being given an office as a dangerous critic who must be conciliated and attached firmly to the government. The first of these methods is slower but safer. The second has sometimes been tried with startling success, notably in the case of Lord Randolph Churchill; but it has also been tried too obviously, and without the necessary social or parliamentary influence; and when it does not succeed it is likely to leave its victim hopelessly stranded below the gangway.

Increase in Size.

The number of members in the cabinet has varied very much at different times,[58:1] and of late years it has shown a marked tendency to increase. William Pitt had only six colleagues. A generation ago the cabinets contained from a dozen to sixteen members; but they have now run up to eighteen or twenty. There are several reasons for the change. In the first place, as the sphere of the state activity extends and the government grows more paternal, the range of affairs that come within the action of the cabinet is greater; and hence from time to time there is need of admitting a representative of some fresh department to its consultations. Then, on the political side, the development of the parliamentary system has made it necessary for the cabinet to have an ever stronger and stronger hold upon the House of Commons; and, therefore, the different shades of feeling in the party that has a majority in that House must be more and more fully represented in the cabinet. This alone would tend to increase the number of its members; but far more important still is the fact that a seat in the cabinet has become the ambition of all the prominent men in Parliament. Consequently the desire to be included is very great, and the disappointment correspondingly acute. For these various reasons there is a constant pressure to increase the size of the cabinet. The result is not without its evils. A score of men cannot discuss and agree on a policy with the same readiness as a dozen. There is more danger of delay when action must be taken. There is a greater probability of long discussions that are inconclusive or result in a weak compromise. There is, in short, all the lack of administrative efficiency which a larger body always presents; unless, indeed, that body is virtually guided and controlled by a small number of its own members. That some recent cabinets have been actually so controlled there can be little doubt; and this must become more and more the case as the cabinet grows larger, if it is to retain its great suppleness and strength. One sometimes hears of an interior junto, or cabinet within the cabinet, that really determines the policy. This is undoubtedly an exaggeration; a giving of formal shape to informal conferences among leaders on special questions, which have always taken place; but it appears not improbable that if the growth in the size of the cabinet continues, some such interior nucleus may develop which will bear to the cabinet something of the relation that the cabinet now bears to the ministry.

Offices in the Cabinet.

Certain offices always bring their holders into the cabinet. These are the positions of First Lord of the Treasury (a post almost invariably held either by the Prime Minister himself, or by the leader of the House of Commons if the Prime Minister is a peer and takes some other office); Lord Chancellor (a great political as well as judicial office); the great English executive offices, those of the Chancellor of the Exchequer, the five Secretaries of State, and the First Lord of the Admiralty; and a couple of dignified positions without active administrative duties, those of President of the Council and the Lord Privy Seal. Certain other officers have been of late years always in the cabinet; such are the Presidents of the Board of Trade, the Local Government Board, and the Board of Education, and the Chief Secretary for Ireland,—except when his nominal superior, the Lord Lieutenant for Ireland, is himself a member. On the other hand, the Secretary for Scotland and the Chancellor of the Duchy of Lancaster are usually in the cabinet; while the President of the Board of Agriculture and the Postmaster-General are often there; the First Commissioner of Works and the Lord Chancellor for Ireland occasionally so. The tendency at the present day is certainly in the direction of including the head of every considerable branch of the administration.

The counsel of a statesman who was incapacitated for the performance of steady administrative work, or unwilling to undertake it, was occasionally secured in former times by giving him a seat in the cabinet without any office under the Crown. He then became what is known on the continent as a minister without portfolio. The last case of this kind in England was that of Lord John Russell in 1854-1856; but the same object is practically attained to-day by means of the office of Lord Privy Seal,[60:1] which involves no real administrative duties, and those of President of the Council,[60:2] and Chancellor of the Duchy of Lancaster, where the duties are very light.

The Ministers must have Seats in Parliament.

As the continental practice whereby ministers are allowed to address the legislature, whether they have seats in it or not, is unknown in England, every member of the cabinet, and indeed of the ministry, must have a seat in one or other House of Parliament;[61:1] the last exception being that of Mr. Gladstone, who held the office of Secretary of State for the Colonies during the last few months of Sir Robert Peel's administration in 1846, although he had failed of reëlection to the House of Commons.[61:2] The reason commonly given for such a limitation in the selection of ministers is that otherwise they could not be made responsible to Parliament, where they must be present in order to answer questions, and give information relating to their departments. From the standpoint of Parliament this is perfectly true, but the converse is also true. The head of a department sits in the House of Commons quite as much in order to control the House, as in order that the House may control him. In his chapter on "Changes of Ministry," Bagehot has shown how defenceless against attack any department is sure to be without a spokesman in Parliament, and he cites as a forcible illustration the fate of the first Poor Law Commission.[61:3] All this applies, of course, only to the House of Commons, for although the presence of ministers in the House of Lords is a convenience in debate, and an appropriate recognition of the legal equality of the two chambers, there is no responsibility to be secured thereby, and it is not the essential means of controlling the action of the peers.

The Cabinet System and Administrative Efficiency.

The men who win places in the ministry have usually, although by no means invariably, made their mark in debate. It is a strange assumption that a good talker must be a good administrator, and that a strong government can be formed by parcelling out the offices among the leading debaters in the legislative body. At first sight it appears as irrational as the other corollary of the parliamentary system, that the public service is promoted by dismissing an excellent foreign minister, because the House of Commons does not like an unpopular clause in an education bill. Any one with a sense of humour can point out the incongruities in any human organisation, whether it works in practice well or ill. But there is, in fact, reason to expect that a leading debater will make a good head of a department. Influence is rarely acquired over a body so permanent as the House of Commons by mere showy eloquence. Real weight there must be based upon a knowledge of men, and a power to master facts and grasp the essential points in a situation. It must be based, in other words, upon the qualities most essential to a good head of a department in a government where, as in England, the technical knowledge, the traditions, and the orderly conduct of affairs, are secured by a corps of highly efficient permanent officials. No doubt all leading debaters do not make good administrators. Sometimes a minister is negligent or ineffective, and occasionally he is rash. There are men, also, who have outlived their usefulness, or who were once thought very promising, and have not fulfilled their promise, but who cannot be discarded and must be given a post of more or less importance. The system works, however, on the whole very well, and supplies to the government offices a few extraordinary, and many fairly efficient, chiefs, although it puts some departments under the control of poor administrators.

The power of creating peers would make it possible to select for the head of a department a tried administrator altogether outside of the parliamentary field. Something like this was attempted in the recent case of Lord Milner, who was offered, on Mr. Chamberlain's resignation, the post of Secretary of State for the Colonies. Lord Milner was, indeed, a peer at the time the place was tendered to him, but he had attended in the House of Lords only to take his seat. He had never spoken or voted there, and in fact had had no parliamentary career, his nearest approach to St. Stephens having consisted in standing on one occasion as a candidate for the House of Commons without success.

Formerly a statesman regularly began his official life as a parliamentary under-secretary; and he did not become the head of a department, or win a seat in the cabinet, until he had in this way served his apprenticeship in public administration—a practice which furnished both a guarantee of experience and a test of executive capacity. Of late years there have been a number of exceptions to this rule. Mr. Chamberlain, Lord Randolph Churchill, Mr. Morley and Mr. Birrell, for example, were admitted to the cabinet, and put at the head of great departments without any previous training in the service of the government. As a rule, however, the old system is likely to prevail, because it is difficult for a man to make his mark in Parliament unless he begins his work there very young; and the exceptions occur only in cases of men of great ability.

The Need of Unity in the Cabinet.