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Las diagrammas suivanta IHustrant ia mithode. 1 2 3 1 2 3 4 5 6 ««C*OCOrV MMMITION TKT CNAIT (ANSI and ISO TEST CHART No. 2) i /APPLIED IMHGE Inc ^^ 1653 Cott Moln StrMt '^ Rochmtw, Nm York 14609 USA B (716) 462 -0300- Phoo« ■~ (716) 288 - 5989 - rdiiced bv the war, would seem to make that hope reasonable For the many defects of the book, the writ^ will not apologize ; for he knows that critics best able to appreciate the difficulty of writing it, wiU be the readiest to forgive them. He wiU merely deprecate the suggestion that the book is a 'precis' of la«« treatises. So far as it goes, it is original both in plan and execution, and from first-hand material i-or neither plan nor execution is any one but th^ writer responsible. ' ^ »« lae Nevertheless, it is the writer's keen pleasure, as wefl as his bounden duty, to tender his grateful thanks tc ▼1 PREFACB thow acquaintances and friends who have been unginidging with their help on the matters upon which he has appealed to them. Particularly great is his debt io Sir Ahneric FitzRoy, K.C.B., Clerk of the Privy Council, Mr. F. A. Hyett, BA., J.P., Chairman of Quarter Sessions for Gloucestershire, Sir Courtenay nbert, G.C.B., Clerk of the House of Commons, Ifr. 0. £. Niemeyer, of The Treasury, and Sir Ernest Trevelyan, Reader in Indian Law at Oxford, formerly Judge of the High Court at Calcutta, who have placed their great einperience of special subjects freely at his disposal, if the writer has failed to profit as he should nave done by their help, the fault is his, not theirs; and he is alone to blame for errors, while such merit as may be found in the book is due mainly to them. EowABD Jekks. 9 Old SgvAmB, Lincoln's Inn, W.Ca CONTENTS CHAPTER I THB KIMG-BMPEROR "^ CHAPTER II THE CONSTITUTIONAL MONARCHY . . . ^ CHAPTER III THE TERRITORIES OP THE EMPIRE : THE UNITED KINGDOM AND THE SEIP-GOVERNING DO- MINIONS we CHAPTER IV THE TERRITORIES OP THE EMPIRE {COtliin*isi) I THE CROWN COLONIES AND BRITISH INDIA . . 74 CHAPTER V THE IMPERIAL CABINET . . . » , Joa CHAPTER VI THE IMPERIAL PARLIAMENT (STRUCTURE) . , tZS !r~ viii CONTENTS CHAPTER VII THE WORK OF TBE IMPERIAL FASLIAMBNT r- CHAPTER VIII THE FIGHTING SERVICES .... 155 181 CHAPTER DC. THE TREASURY AND THE SECRETARIES OF STATB . 214 CHAPTER X THE INDIVIDUAL OFHCES AND THE NEWER DE- PARTMENTS . 239, CHAPTER XI THE king's COURTS OF JUSTICE . • ,268 CHAPTER XII THE ESTABLISHED CHURCHES • . . CHAPTER XIII LOCAL GOVERNMENT (THE SMALLER UNITS) 309 330 CHAPTER XIV LOCAL GOVERNMENT {cOfUinuei) : THE COUNTIES AND BOROUGHS 354 IMDSX t m t{ THE GOVERNMENT OF THE BRITISH EMPIRE #1 pl it t; CHAPTER I TRB KING-BMPBROR At the head of the British Empire stands the King- Emperor. The King There have been Kings in England (save for the briefest intervals) ever since its settlement by the English nearly fifteen hmidred years ago; perhaps, indeed, even earlier, for it is doubtful whether the older ' Welsh ' inhabitants ever com^tely bst their independence under Roman rule, and some of their chiefe. at least, were probably called * Kings.' These ancient rulers were half pj triarchal chief, deriving his power from birth and rel%ion, and half military leader or ' heretoch.' as the English called him. ' But for many centuries these so-called Kings ruled over only small parts of the country, or; rather, over smaU groups of people. Then, by a slow process of combination, the numerous petty kingdoms (of which the names of some are known to us) became the seven Kingdoms of the Heptarchy, and, finally, the one King- dom of England, under the Wessex House of Ceidic, in • THE KING-EMPEROR fte ninth century a.d. From that time, there h^ Ijen (save for brief periods of struggle) but one King- Aip m ^land; and the present Royal House cai trace its descent from the Wessez House of the ninth century a.d. Hereditary Descent The old English Kingshq) was (as was natural fiom tts ongm) pardy mhented, partly elective ; for. until the Nonnan Conquest, at least, the WJtan, or CouncU of Elders, ckimed and exercised the right to choose the fittest member of the Royal House to fill the thrx>M The Nonnan Conquest, however, in 1066, though it inamtamed the pretences both of inheritance^and dection, was really a forcible revolution ; and the new Me^ n^cure in its title tiU, in course of time, a^d ty prudent mter-mamage with the old Wessex Hon* It came to fill Jje place of that House in^l^i J^^' v ^? ol>tained powers which its predecessors had but sightly exercised-such, for exaiipk^l?^ administration of justice and the regular m^Si^ of the resources of the Kingdorii. ****" "^'^^eement Ireland and Wales To this increased activity, the Norman House and rts successors, the Angevins ^ Plantagenets adA«iS in the twelfth century a.d., and the conauesta^ mcorporation of Wales in the thirte^ Sd dSe^ ^^^' ^. ^ ^°^ °^ i*s ContinSiS? ]^S (Normandy, An.uu, Maine etc^ in +21 \^^?? reitn of Tohn i* k-Z^T '' "* "*® disastrous EXPASSION OF THE KTOGDOM , Scotland and ibe Colonies ««ig left tntter memories behinri i+ • ^a ?^" /""^ onion rf Great Britato^d feto^it ttf ^ ST* «ame century, though it m^^ tave b^ ft^^ "^essity, addedlit^tothe^,S^^foi«."tt Indu a. ^ other hand, the rapid up-bufldiBg, on wiser J^ lfX*^°^ Empire'in^^i^etS s:*^tSfth*tM3^ z^' "' ^? o^»t M the BriartoSe\°Se^esTSL*^ "rthty monarchs, and made the Britwf^.S?V i •. - *^ - THE KING-EMFBROR Changes in Chaxactbr of Kingsbip Meanwhile, however, the relation of the Britiah monarch to his subjects had tmdezxone a change no less remarkable than the increase of his territorial rule. It is well known, of course, that, ever since the cbse of the thirteenth century, Parliament had been a perma- nent national institution with gradually increasing powers. On more than one occasion, for example, it had changed the succession to the throne. It had established itself as the sole authority in matters of taxation, and gained the right to be consulted in all important changes of the Jaw. But it was not until the seventeenth century that it definitely chaUenged (first in the Gvil War, ':.*»n in the Revolution) the ill-defined ' prerogatives, or special privileges, of the Crown, and established itseM as the supreme repiesenta- tive of the national will Then it was that, by accept- ing the throne on the definite tenns of a great Parlia- mentary statute, known as the ' Bill of Rights,' in 1688, William of Orange and his consort not merely recognized the fact that Parliament shared equally in the establishment of the Kingship, but, in effect, admitted that the final disposal of the throne lay with Parliament. This truth was admitted again, in an equally unmistakable way, when, on the faihire of the Revolution line in 1714, the Elector of Hanover the great-grandson of James I and the direct ancestor of his present Majesty, accepted the throne on the terms of the Act of Settlement of 1700, which implied an acceptance of the whole of the existing rules of Bntish law and custom. This event was rapidly followed by the introduction of that Cabinet System of government which, as will be presently explained (Chapter V), whilst carefully chertehing the Crown as the symbol of Imperial unity and authority, protects It from attack by providing that, for every act of CE*NGES IN KINGSHIP , TSE Kikg as H0ST4EADER Ufs duty was A-S^' to'pS^' and °£,;?T' annwir 4« ^ik- * • ' i- * Constitutional monaich to 3f£f^ ^1?^ ^™« ^«' yet the military side^KW dup IS still deeply wote/in the BriScSLtiS; Allegiance the King All VkT-^* ^'l^cn of it is treason against probably, even m such cases, only in time of pS^. ' 11 ;.j 1:1 • < j r- i^il ",'■-♦ * THE KING-EIIPBROR British Nationality Subject to these provisions, any peison (with a few EmZ! w?n ^P' ^^ *°y ^"^ ^™ outside the bSJ K i^. ^^"^ ^«^ at the time of that birth a Bntidi subject, is a natmal-bom British subject -^ SdrT''',,'*^,!^^'' *° ^^«° * cerate of ^^^^'^ ^° P°*^ *^ ^~°»es a British ^ject. and » under the bond of allegiance to tte frfii ^.P*^«^^ W^ said, that th?£act of being ^io^ ?r °°* °i ^*^" ^"*J^ a person to? enjoymg the protection and benefits of British law so far as pnvate affairs are concerned ; except that sudi a person cannot own any share in a Britidi shS Unl? ^^^^^^ ^ ^°»P^ i^^^ not in t£ United Kingdom) he cannot own landed proper^ But even a friendly alien camiot exercise ^/SS Si ^SSL'^^^tr^K*' ^°*^ ^* electioror^siS^ in I'arhament, though, as a matter of grace he » usuaUy accorded the fufl protection of Sc Uw bom, is deem^i to be a British subject, and wc. „^ ^f,y ^? ^ ^T ^^ cases, exi^ess pro^fon i^ ^de to enable such a person, on the death or^^e fo«k^°or bLI^'' "t^"^"^' *^ "^ker^SlLSTIf Joreign or Bntish nationahty, as the case may be. LiABttiTY TO Military Service of ^^^1^ T^* prominent consequences of the bond d tiC^^^raf ^^^'^"^ subji^S as defeMeV,f^h!^ f • ^^« ^ summons. So far ti^bihty has never been allowed to b;Se"^y "ABILITY TO MUTARY SERVICE The 'MitrriA' centuries carefully regulated S! iTt?!.*"^ thirteenth the sixteenth cemT^I'^c^t^^j^,^.*^^^^ ^ under the care of ^ iSnJ^c 1,^2^^' Previously subject of ^ Act of pI^EpS""?'' ^^^ °»ade the a new county official A??^!^ ?-^ organized under appointed b^ Zc^^ ^f Lieutenant (p. 272) Charles H in ^66^ tl^ W's ^l ^h,?^^?*^^ oi command the nd^twhirh^A 5?^* *° *^ »"* and I^ng ParliameS^f^ Ova w ^ ^*\^^ by Act of ParWnt • iSt 1^^^ "^ ^^ con&med an elaborate Se wiS ^rtfS^ '*?*"*^ introduced in the handsTf^T^«^"^y.P^^^ its control With tkTm ^X^ZVL"^ '"^ «^"°ty- train the whole of the^Sf^^w/o ^^\^^^ to and there was, in n^^w *^*^ °* *h« co^tty ; raising suffid;n^ SbL^bv' ^^^^ difficulty in' In the middle of S d^hSl«I?^'^**'y enlistm^t. PK>vision was 1^ by^^ "^f p"^*^' ^^«ver. regular diawing^of Uste of ^if'^S'* ^°' ^ in the militia and t£ Si ^^°® ^*>le to serve ^ ^ose'^^o SoultacS/^,^ X\^ ^^^^ d^nce force, it ahnost disapp^ ^! 5**' *« * taken m the middle of thrSSf^lv ** P^*<* ^as body known as ':aTvoWee^f^^°*^ *^t"^. ^ a asamatteroffact LwSS ^ (PPaoo. 201) ; tHo^ih servicebSy. fa'^%^^?^y^^thenaWS3^ ^ in view a ^SSy^^/^^-^^ti^X J t I,; u i f t- 8 THE KING-EMFEROR precautkm, the militia baUot, though kmg disoaed^v was not expressly abolished. Like the old militia, the 'Territorials' are organized mider the comity Lord Lieutenants, ^ided, however, by County Associa- tions; and ^hey are only subject to military hw when actually embodied or ' caUed out ' for service. This arrangement will be farther explained at a later stage (pp. 200-203). Scottish and Irish Mhjtia It appears beyond dispute, that the principle of liability for defensive service was recognised in Scot- land long before liie union of that country with Eng- land in 1707; for in the year 1483 we find the Scottish Parliament aggnming the liability of all ' fencible ' {i.e, defensible) men to serve the King in their ' wapin- shaws.' Unhappily, the peculiar circumstances of Anglo-Irish history rendered the liability for defensive service unenforceable in Ireland until a comparatively late date ; and when, in the year 1715, the Insh militia was organized by Act of Parliament, it was composed exclusively of Protest nts. But it is beyond question that the principle of lialnlity for defensive service was admitted in the earliest North American colonies (where defende against the Indians was a constant necessity), and, probably, also in the other early ooloni&l acquisitions of the British Crown, as it certamly was in the Channel Islands. But the growth of colonial inde^dence on the one hand, and the necessity for keepong on foot a 'standing ' or 'regular ' army in the United Kingdom, as well as a permanent royal navy, on the other, tended, in the seventeenth and eighteentii centuri 3, to make the militia system of secondary importance. Of these two great institutions, the royal navy and the 'regular' army, an account wU be more appropriate at a later stage. Here it is suAdent to lemphasize that, quite apart from ParlianuBtary LIABILITY TO MILITARY SERVICE 9 •ctkm, the iundamental prindpks of the British Constitatkm involve (a) liability to defensive service of all male subjects of the Crown, {b) the supreme control of that service by the Crown. To the Crown belongs also, as a natural consequence, the power of dedafing war and peace, and, as another consequence, the control and conduct of all intematbnal intercouise. For, if it is too cynical a view that all international intercourse has grown, historicaUy, out of war, it is, unhappily, beyond question, that all international intercourse has been controlled, though in a degree less now than formerly, by military considerations. The King as Head op the ' Executive * Closely connected with his military character is the position of the King as chief executive officer of the State. The origin of this side of the Kin^p is, clearly, the necessity for maintaining internal order ; for it is obvious that a conununity in which internal order is not maintained cannot be trusted to defoid itself against external attack. ' r ,.' TBe Pouce This duty of the Crown is, in normal times, performed throu^ the agency of the ' police,' i.e. a special class of civilian soldiers trained and used for the purpose. But it is unquestioned law throughout the British Empire, that the King, and any one to whom he has entrusted the powers of a magistrate, may call upon all his nuOe adult subjects (soldiers or civilians) to aid him in the task of maintaining order, and that ^y such ^rson who refuses to help is liable to fine and tmprisonment. The widefy-spruid belief that, in England at least, what is called the ' reading of the u xo THE KING-EMPEROR thewi,ago..dSalof^SSe^it^**jH?«>n .though at any rate, is not a^^5(? c^*-^ • '**^^"**^' which the police foree &^k^ S*® T*'- * State in contix>l,an1 of the l^ magistrates, who enrof e^iSn «?^^ ^"^P^ ^^ though they are sub^ S^r^^T"^ *^«°' government, which makes oSS^S^^-^^x*^** «»t«l «»d up-keep. The S^rf^S? "* **^ °^ *heir pay tte olfviuie «X)^tabte'aSfSr^?^ .*^*' ^^ PeUed to serve, and were n^ ««SS iw**. ^e« «>»- work, the modem pS^af?^?^^ 'o^ their forte quite voIuntSlyTSdd^T-®"**^ j«^ the scientificaUy tnuned Vt b^ t^T*^ ''^' '^^ « - inan. or ' constable ' (as he isi^ "J"* '"' ^^^^^ l»«ce- acts in the King's naii^^^b^^^PJPerly called) by a copy of the King'i ciSw^ ***^ surmounted vJr'nCofZf'^T^, ^^^^ the whole ^ ' the E^^y^f^^l^J^^pment which JJ the enforcement or ex^u^^nhif^ ^^^^^ » with executive official fe Sv *nl?^*^^v Whether the ^J»e higher x^SlTSZy^^f \^' ^^^' « 8ena«. or by a local auSoriST ° ;f .t "»^terial sheriff's officer or a sunerin^/' ? i° *he case of a his lange of action fe SSS^??! 5 P«<^' whether General, or limited ^''^'t ^\^ ^' Ppstmaster- Peace or the Sheriff ^ch^\? ^^ J^tice of the deliveiy of a postcard £^JL^hle *° act as the •tamp which'^l^^^^^^tius truth, in it? THE KING AS FOUNTAIN OF JUSTICE n COORIS OF Jcsitd modern^ S^^LSS^t'lTi^^" .'"»"«• Th. with somewhat n/^ JSJSrr'. * " ^^^ "Pon him tUng,'^^4 fnoJS^.Sl bTo.*^' this ^te of univeraaDv tn^ tk« ^' ^ " "°*' ^^^n now, quite ^CSJ^T"^^ "' *^ duties of tt^to^ exceptionaTcourts, am^uSTteJ^f' ^^hises.' or There can be little douhf ihSrS, v • ^ ^^^ ^ "^™«- ? - . '! i ! ^f> i.l: M ft! i lit) i _ i M THE KING-EMPBBOR n i Trial by Juiy Bat it is abo true, that the victoiy of the King's Courts was doe to their superior eiBdency and pro- cedure, noUbly in the funous introduction of the jury- system. It is another widely spread belief that the jury fa of ' popukr ' origin, coming down from ancient days. It is nothhig of the kind, tmt a royal privilege which could only be used ia the King's courts ; be- cause no other courts could compel jurymen to serve. For long after its introduction, it was most unpopular. One of the taunts of a French poet of the late Middle Ages against the rival English was, that they were •judged by inquest,' ».•. jury, instead of by their 'peers ' or fellow vassals-; and it was not until the sixteenth century that, as a contrast to the harsh and secret proceedings of the Star Chamber and the Court of High Commission, the jury became really popular, even in England. In Scotland it made little way until much later; in Ireland, it has had a stormy history. But in the cotoaies, which date since its triumph hi England, and even, to a certain extent, in British India, it has long been regarded as one of the charac- teristic safeguards of liberty. Safeguards against AnBifRARY Decisions It may reasonably be asked, however, whether this almost complete triumph of the royal jurisdiction was not attended by grave dangers, owing to the great mcrease of powe* which it brought to the Crown. Un- doubtwily it was ; but these dangeis were ultimately averted by the establishment of two important prin- <^ies. The first, established so eariy ^ the judges Jcmselves that its precise origin is uncert: ui, is, that the Kmg takes no personal part in the proceedings of his own law courts. This principle was clearly established ADMINISTIATIOM OT JUSTICE xj vSf «^* ■•"'***• to the came c5 Britiik Ubert? !iS? ^« *^ to tte judges, as distinct ^ PaS^ ment. How thev did H. we do not quite know •^. te fcyjjcminfeg use of foims. p^p. b/niaSi S5/ij^i?****5*I**^** to hear them. At any rate they dU it. and so efiectually. that when JaS^L some three centuries later, tried to break the rSThe SJ.^'TftS^y °PP^ by the great Sir BdSaSi Coke. But there were two weak spots in the mvstenT Not only did the King appoint his?^^ J^'JJSS; was natural . but he appoGted them cmfy^urtagWs Moreover, *he chief pwt of their income wis received ftom few paid by suitors.' U the people ^ caJS ^,?^*u^°^"^**y' *^ J«d^oould^ti^ of hi^ fees. This was exactiy what hapJ«neST£ feZ^S^^n't*"^- *°^ ^1™' P^S^Ttte worn feature of the Stuart monarchy. But on^of the neat £rP^*S* that Revolution which dS^ J^SiSIl ftom tiic throne wasacomplete reform in this resoect- Aough It was not made quite secure tiU the i^Sn of the House of Hanover. Then, in pursuanw^^ provisions of the Act of Settlement of ^y^^Z^' c^i^sions.' or appomtments. wer^'made ' dS ^behaviour {quam diu bene se gessmni), and S ^Jan^ ascertamed and established, f.^. icuwd ^ ^national revenue. Consequently, the judges cannot be diamssed by the King except for actual c^ ^^ to the law-nor. mdeed. in practice at all. except on ttejomt request of both Ho4s of Parlkmenl-whS^ Aeir mcom«a are independent of royal favour. ThS sea)nd pnnciije has been extended, not only to Scotland and Ireland, but throughout the British Empire, wi^ the pnceless result, that British judges are fc^ not merely for their learning, but for their fad^SSS ,r t.) . ? .1 ;i Z4 THE KING-EMPEROR their uprightness, and their impartiality, throughout the world. Legislation The fourth great duty of the Crown is that of legisla- tion, or the enacting of laws. It may seem strange to enumerate this among the powers of the Crown ; for the fame of the British Parliament and its numefous offspring as legislative bodies is spread fkr and wide. But if tile reader will look at any Act of the British Parliament (even a ' Money ' or tax-granting Act) he will find that it is expressly stated to be ' enacted by the King's Most Excellent Majesty,' though, doubtless, ' with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parlia- ment assembled.' Moreover, there is a great deal of important legislation, known as 'Orders in Council,' annually issued, which never comes before Parliament at all, at any rate until after it is enacted, but is made by the King with the advice of his Privy Council. What is the explanation of this apparent mystery ? The explanation is interesting and resdly important. In early times, la\. is not regarded as being made at all, at any rate by earthly rulers. Unconsciously, each conununity works out for itself a course of conduct, or cu^om, which it comes to regard with the utmost reverence, as being of divine origin. For long this custom remains unrecorded, save in the memories or consciousness of the people. Gradually, a class pro- fessing a special knowledge of this custom grows up ; and this class is, of course, the beginning of the later profession of lawyers. Then again, some disturbing event, such as a conquest or great internal dispute, renders it desirable to put the customs on record, i.e. to draw them up in a more or less definite form. This is sometimes done by a single man, of repute for sldll and learning. More often, however, it is done by an assembly of the whole people, which is, naturally. EARLY CODES OF LAW 15 prwided over by the King, if there is one. The recoixi or code ' (which, originally, means nothing more than a scroll or tablet) is, naturally, connected in people's mmds with the King under whose auspices it is drawn up ; and so we get such expressions as ' Ethelbirht's Laws 'and ' Alfred's Laws/ But it does not profess to be • made,' i.e. created or invented, by him, but only ascertained, settled, or drawn up by him. The * Common Law ' A large part of English law, even at the present day, VIZ. that part known as the ' common law ' in the strict sense, has never even been recorded in any fonnal manner ; for the codes of Ethelbirht and Alfred were mere local customs, and the story of a code drawn up by Edward the Confessor has long been shown to be false. Even the masterful Norman Kings, despite tte ' Conquest ' of 1066, made no attempt to it)ot out this ancient English customary law; in fact, they expressly guaranteed it, and this is, perhaps, the most conclusive proof that England, since it became England has never been really conquered . All that the Norman Kmgs and their judges did was, to bring into agreement the vanous local customs, combine them into one 'common law,' and expand and enforce that common law in their own Courts. Royal Commands But, of course, tong before that time, the English Kmgs, as host-leaders and maintainers of order, had Ksued commands, often of a wide character, such as the famous curfew ' ordinance of William the Conqueror wh required aU fires to be extinguished by a certain hour, or the order of the same King forbidding the acknowledgement of a new Pope without the King's consent. These commands, though often spoken of as laws, are, obviously, of a different character from the if;: m in H x6 THE KING-EKPEROR :; I l! Ill voluntary customs of the people ; they afe supposed to be only m the nature of tempoiaJy and SSd reguktions not altering the penn^ent relatfo^Ss ^citirens to one another. Such regulatioS^^ ^^°£ ?^ ^ °*°*^™ ' 0«JeiB in Councfl,' lite aUuded to (p 14) ; «id it is claimed that tfe Cm^ ]^iogative ordmances. But. for the most part Ordeis m Council are now issued under thfexOTS authonty of Parliament. ^^'^^ Pasliament rate as far as the elected or representftivT^ ofh w^concemed. the English PaVliament Sj^becSne vep much more. The King in fact, early found ISt It is oft^ easier to caH an institutiok into Sr^kf ?o destroy it afterwards, and that an institutfon SSS for one purpose may speedily learn how to ^^ quite other purposes. Both tlise discoveries are^LSf Items of statecraft ; here thev are onlv t^*^^ to explain the fact iat fte EnguS Pa^^^J"^"? especially the House of Comi^KnlSe' n^ rnerety a tax-gmnting body, but a ^w^rfid a^cy foJ the removal of grievances, and. SiimXlv a ft/™ cntic of the policy of the Crown. "''™*^®^' * s*«ro PEXmONS TO THE KiNG Kit ^^^^ capacity, it presented petitions to the Kmg. based. usuaHy. on the complaints of its elector wMwiaea Dy the Crown, until these petitions were PARUAMENTARY BUXS jf granted. At first,* these petitbns were landy con- caa^ with abuses of power by royal ofibaals; and the Kmg would often promise to prohibit such abuses m tile futwe. But, as the result was not always satis- factory^ ^hament gradually acquired the habit (aboirt tile beginning of tiie fifteentik century) of sending up Bills/ » agreed to by botii Houses, i tiie enct totm m which tiie remedy was desired ; and tiiese Bab gradually, in their turn, became more compre- hcnsive or general in character, mo«;, in fact, like Sue laws. Often tiie process was reveiaed, and tiie King's counsellors submitted to Pftriiament 'Bills* whidbi^ King desired to enact, and requested the consent of the Houses to them. This was the origin of what is now known as ' Government legislation,' as opposed to pnvate members' legislation,* which must not be confused with the distinctwn between * public * and pn^* Bills (p. 156). Of course, until a com- paratively late date, the King could, and often did refuse his assent to Parliamoitary Klls. in the poUte "^r't ^^ «'«»««'« ; but if he assented (le roy le vmU), the Bill became a statute, or Act of Parliament And thus it came to be held, that the agreement botii of Crown and Parliament was necessary to legislatkm, and that, as we have seen, the Khig still ' enacts.* but only with the * advke and consent ' of Parliament Okoess m Council Meanwhile, it was obvbus. that a littie straining of the admitted power of the Crown to make ' ordinances.* or Orders in Cooncil. could be used with dangerous effect to undermine this right of Parliament to share in all legislation ; for if Parliament declined to concur m a Bill proposed by the Crown, what more easy JrJ^^ worf 'code* (p. 15). file word 'bUl* origiMUj bad a vjnr simple meamng . i.t. that ci aay writtea not* or demand. ^S^ .^rhXr^'^"^ M 'WU of tk. play.' ■, 1 >■: : f r- i S i .'U' : •1 :i ^ i ■t ■ ^ ■-■■ li *« THE KING-EMPEROR ttan to torn the Bill into an Older whirl. »«,rf~j Parhamentaiy appreval? ^ praSS^SflT applying «istl^ uC^^^Siot'to'Z?""'" Act of PaS^t Tk ^ w^ P'^'^S.^^ P^^g aJ ferred by aT of pi^^^^'^l' u^^ frequently con- Crown, ^ut on %Ts^^2K^^' e°i*,°°^y °° *h« offices, or a c^nSSof^d^,*^: ^^^^''^ °^ ««** council. But r suS SSn tSI~ ^ '""°^'^?^ miix>rtance which attech^T^^Acfoyth"^ ^1^1 Parhament. The validitv nt ^ i *! ® topenal questioned in any few co^ whiwf ^ 'J^-^^' ^ any of the former cLSW^^t?" ?^^°°^ °* time of war, as uUrTviZTi^ S! ^* aside, even in its authors ti ma^ ' ^^' ^^^^"^ *^^ P^^^r of The Scottish Parliament legSL^iSrap^yar^ltv:^^^^^^ 1 ^^^-t in Scotland al^r l^g be W i^? -^""^y established in X707; though Se^sSt^Si pisr r*^ ^"^^^ ^ the importance of ite^gth S^f "2:n' "**"^^^ When the two Parliament we^Sd in^^; "S w^t ■:. : rt UNION OF THE PARLIAMENT r^ without saymg that agreement of the united Parlia^ ment wm and remams necessary for legislation affectW previously approved of by the CiSwn^But^S severe restnchoiis were firet modified, and then i^ 1782 finaUy abolished ; so that, when the Wsh P^lil^ m^t was united to that of Great BritJTSi ?^ Ireland naturaUy inh :ted the rights and reswS?- Mbdities of Parliamentary legislatton. Sng SC tiiat tune, however, the doctrine had spr^d from GrS Bntam to the o der British colonie^wher^^S^! ?ml^'°i^'' ^* .^"^"^ ^^' ^« estebSsh^fby Crown charter, or. m some cases (to use the words of a chronicler) 'broke out ' of their oWn accoid. J^dVv^ tiiough. m the case of colonies acquired by ^quLT It has not been possible in aU cases to giant reS°S tive mstitutions. yet. even in some IS caLs such mstitutioM were early gianted; and. byTwus decision of the Court of King's Bench in 1774. HS hid down that, when once such a grant has Sei LT ^JhSf Hi '^ ^ ^"^r *° legiskS^ foTtSt cXny ?aKe^!^^°!^^^^*'^'*'^^^^-«^«^^<^ Administration The fifth and hst great official attribute of the Crown IS the pow;er of administration. This power fa not S whttT^^ ^ ^^^'y' ^^"^ the executive ^we^ wiA which It IS often confused. But. in substan^ we mea^ by • executive ' authority that which is c^cemld Se^v^iSL*^.'^?*^^ ^^' *^^' ^t least. ^S^^ the S>wpr t^'^^'^^'^'l authority, we mean rathw the power to fnune a policy or decide what law sM 1 '^ 1 i % I ■ t I? ■'I ! . "{ 'i ;, ; 5 I t. i t i ! ; i I I I , ■ i ' . 1 ( » f,: m 1^ i i ■ I * lilE KING-EMPEROR Foreign Policy ftxIi:^'2Jy''Lto,'"^„^t ^ be brought S shaU see Isto fTaiJ- w ^ " »»" exercised, we seeing how the fi^lir^ «th^t^?^r *«^ was extended to intenal StS ^ "^ '^"™ The Royal Dokaims landowner. Es^^Sy afta- tte l!" ^ «^* ^^''^^ owing to forfeitrSSaid co^li?°f^ ..Conquest, comgicated system of le^^^Si^Sf *? *^" the King. especiaUy if he wereat M^ ^ ^* ^' was so greatly the most wpJT^ *" *. Prudent man, domains, while his baiife sW^L "^^^^i^ for other wefe the most ^iSlto'b^ SS' ^x? °*^^' ^^cials to his Court earned ^S^wJ"^^/, NaturaDy, also, sophers, and ^rt ci^^* ^*^' ^«. P^^ ^du^yn.adeTclear^^kiArh&lr'^^ and splendour were increase! ^.TTi. ^* °^ I»wer attempt tf de«^«i^ ?f ^.^^^^ GROWTH OF STATE ACTIVITY* ax Silt^VT'f ^" ^^^ P°^"- ^Vit^ their many mOTarchs ; and it was, doubtless, one S tlw nSt Tku 1 *^*^ popularity, though in somT S^ notebly that of/enclosuri.' .>. convertSg ' o^T' or common land mto separate farms (p. 334) thev^t with strong opposition. The efforte of the St^ Kings ma similar direction were not hapmr! SJ because they were felt not to be honest ; aSd wKe ^f^nr^r^^^ ^^*,^ '°*°^ as laissez-faire, when efforts towards social improvement were kft mafelv U^^% enterprise. This state of thSgs e^^ sumved the mtroduction of machinery Wm^u facfcures (the 'industrial levolution ')%ut tL?X order and soc^ injustice created by tha^eno^S d^^ge graduany produced an equaUy pXundS,^ S,f i;?/P"^"'. "f^ ^' the healdi! mo^, S ifi. T? "wtenal welfare of the community SI deemed to be among the primaiy objects of t^Stet^ ^. The extreme difficulty, however, of defatSi ^11^^ ^t.""^ :^***« mterference ' shows how comi^ratively httle thought has yet been devoid to ^ most miportant aspect of the activities of the Orown. In theory, there are no limits to State acS vrties ; but this fact is not so serious as k^^L^l tiiere are very distinct limits to iSerferenT^'tte Crown and its officials in the affairs oi^ ciL^ For, m the first place, it is diffi^o hitroducfS^ scheme of administrative refonn withounS some rir'^ ^^^^ ^^ ^^> ^d that, as we have SS can only be done with the consent of ParliaS fo ^L^Mt^v'i '^'7 -dpi°i«trativeS'r^\ow rtf!!r!f- ^^ ^^^^ *^°°® ^ earlier times) involves the spendmg of national funds ; and that caii on?v b^ done with the consent of the HouseT(S^ons a body representative of popular opinbn. ^ fo? example, the great schemVof State dem^taryTduca- i--t :f I i 1:- ; u. 4 " THE KING-EHFEROK eflective^X ^?b !;.'S?"r"**' •"»« '»«' "Hade "mposed «cept by Act of ffl,^?** <»"" "o* be The BnnsH Em™ not an Awocracv Nevertheless, this «ketch nf *\,^ -^ reader the totaUv faL i Jn.^P?° *^ °^d of the Empire is an am^ mS^^l^^J^ British ruler, on whose powers th^aLf? hereditary nulitaiy andwhosepersoS^^TdSkt^^^^ subj^te. Of course the latteTw^^^J^.^^'^^^ ^ would be directly contiaiy to ^wh^^T?'^^" necessary to emphasize t^ ZZl ^^ ' i ^^ ^* ^as meant by the ' ^vereL^^ is essential feature of thf SitS^oMSTnt^ ^.^ Having, however, laid si^dSt .«,«i^*^ ^P^- aspect of the CroW, we ^SS n^^i"^ "^^ ^^ tl. British nionan^-^r^--^y^^^^^ >'? i CHAPTER n THE CONSTITUTIONAL MONARCHY t^^!? "^'^^ *? distinguish a ruler who acts according • S,!^*" Y'"^^* °i^^ P^P^®' fr°°> an autocrat, orS who acts according to his own view of what is right we speak of him as a ' constitutional monarch/ Ivi- d^ly the terms are not precise ; for more than one ruler whom we call ' autocratic ' is subject ♦o a cood m^y resections which he cannot violate witSoS breakang the law. while some ' constitutional ' t^ exercise a eood deal of personal discretion inlSe disd^ge of their offices. Nevertiieless, in s^Se of doubtful cases tiie distinction is weU undSwd- n^i ' 'I 7^ °^^ °*'* ^° ^^ l«ast understood how SJ-^ir^* r^ *. P^c^Jar ruler has become ' con- «^J^? ^"5 ,^°T: 'V*^*' ^* P^°^ ^ " guided and conti-oUed by the wishes of his subjects W SS? Z^^ ^^^^^ monarchy is, actually and'histoS: ^y, the most conspicuous example of a constitutional study. And, as so oft -n happens, tiiere is no clearer way of reahzmg the present state of tilings tiian bv seeing how it came about. ^^ ^ » Hereditary Kingship ihl^J^^ f^*^ * ^}^^ startiing, to say that one of RriiSf '* ''^''^^ °^ ^^ ^' stitutional iature of tiie Bntish monarchy was its hereditary character. Yet I il* i'l 1 ».'. 'm •4 THE CONSnrUTIONAL MONARCHY such ii undoubtedly the case. So long as anv ffenuina ^ent ofchoice .undved, the electS Kteg^CT? he had beai choswi for his personal qualities • and Mturally, he exercised persons rule. W« hi tSS' ^ere was what is called an ' interregnL/ or pS^' between Kings; and then, as an oaXoniclerfcS tto^h it i. doubtful Xther tS Sy ^S of the Kingaliip wonU have penaitted a «^S, S yueen in England or Scotland tiU the siirfSAnS ^stSd'HS^^^T^ be U,„g Wore tte'Sr*^ 9..,t *™. "„ "* ""*' WM the course choste • ^Jfy^- »" »<=*» »» State, though no^S^dSe in the King s name, were reaUy dedded taTa ZS Kingdom. The result was not aitirelv eood • h„f ;» was qmte as fortunate as the Ser^ n? H^^ * J«pi.whenhehimseKg„verned.^d'^s°4S?te - Wthi a'Sl^ 5*V''«' "- HEREDITARY KINGSHIP ^ ■Up in the thirteenth century was the fact that on tte acceaiioo of Henry Ill's son. the gieat Edwa»l I, tne commoicement of the rdgn was dated, not from the new King's coronation, as theretofore, 5ut from his fatter s death. As a matter of fact, Edward was abroad at tte tmie of his father's death, and did not return" n 5!*?*?° tiU nearly four years afterwards. But. aU that tmie, the King's writ was running ' (as con- temporajy lawyers would have said), that is, the royal officials were pursuing malefactors, deciding cases, maintaining the King's Peace, and generalhr acting m the King's name, as though under the King's personal orders. Thus the d^gers of an ' inter- r^um ' were avoided ; and thus the doctrine became true: The King is dead ; tong live the King.' The King as an nstitution TJus the first three-quairers of the thirteenth centuy had aheady worked two great changes which SL .v*°®. ,"°^**^°° ^^ constitutional Kingship. First, they had made the King, not merely M^indi- vidual ruler, but an institution, that is, an arrangement or system which goes on independently of the actual occupant of the throne, and is capable of lasting for ever. One great result of this change was thateach new King, as he ascended the throne, found himself face to fece with a body of law and tradition which set bounds to his personal wiU, though he had never personaUy agreed to accept it. It is well known, that this feature of Kingship, which seems so natural to us, was not acknowledged in Western Europe tiU towards the end of that vague period which we caU the Middle Ages. Charles the Great and his descend- jmts. for example, never admitted that they were bound by their predecessors' ' charters.' or r omises. miless they had themselves confirmed them. And we can see traces of this idea lingering on, even after ;'; i i ' ; I ■I. ■m •• THE CONSTITUTIONAL MONARCHY •ucceMors. But, by S iJ3^«^l^*^> '"^ J<*n'« the nJe that the aS of e^ KiJ^ i^T*^ «**«^' was firmly c8tabliSed^„H^I°5 bound his successor called • d«poSS? • ^ thfTuXn?^''*^ ^^ «»e so- statesmen cSme to think ^d^"^**;-, ^ «»»* as an institution thw an^n J^ ^' *S® ^"^ «ther mass of the Dwok th^ i^**?**' *^*««b, to the inuurinarv of%S? ' °® P«»ona! qualitiS" real or classes was expr«S! by th?S^ „f*^t T* influential instead of ' I^nT^A^ «r«^ ?^ *^* **™* Crown ' animate object. which^wT?*!'''^^' ^"'«' an in- but, by the S, Jrorar^^V" -^^ ^*^^ ^' ^^^don ; writing it. i^^rS^T °i "i^^ * ^P^*al better in institution. ^ '* ***°^ ^*^' «»« Kingship as aS E"«CT OF CouRi^ OF Justice KiSSup'Sad^t t?*^^^t^ ^^- o' *»»« thirteenth centu^ ^ ^e ^Lw^r**" ^' ^^ doctrine that in thrVH«!S.® J!^^^*^«nt of the King ought to '^XtS^^w°'i"^^«' «»e rguJarly carried on in Ms^S^ wf h' ^"^^ '*' " Kingship constitutional F^^ ?,*' .*° ?^« the to decide cases, not accof^'^ to u"?^*^ his judges views, but according to the^w^ ^^ ""^ ^^^ «ahn,' the King wis riul jt^ -^"^^ *^^°°^s of the his name accordi^ tol?? ^T^^^ }^^ to act in the "Pres.o.-„,tf^^^^^st«^^„ APPEARANCE OF PARLIAMENT a. And though there arose in th# f«ii^ • new and powerful toibmia? iTht '?"<>^°8 century, a which proSed to admiS;r^e kJ^- ^' ^^^• the • conunon law.' v^t i» r!^!^t \ii 8^*^®'' not paradvely ri^ort tiile iit ^SiS^"l5l^' ? * ^'»- popular cuitom and praSice ?,f ^♦c ^?° '° '°"ow the end of the sixtawith^I^^t * V' §"'***'• ""t^^' by dirtinguwhabte in dS.«^ ^' ** ^** *>««>n»e hardly Growth op Pariiament Jast years, the creatiwT r^h Jrlr ^^*^«»t o* »ts ment: as a ^d. administrative caoStv !ic^ ! ^- ^ executive and s^JtrSVar^^^^o^t^Tn and the seh-ovr-^rlnl^*'""' ?* ^""«i Kingdom Si"^SaSutr*- «»--^'^t?:,^aS ■I I M.I H r I i 1 f fi'i •M I 30 THE CONSTITUTIONAL MONARCHY The Crown and us Officials . It is usual to look for the beginnings of this prindirfe m the vanous attempts of ParUament to uifluence the Crown in the choice of its officials or ' Ministers ' and to procure the rejection or dismissal of Ministeii whj m the judgment of Parliament, were corrupt ?^^^^^' ?^ mischievous. In fact, the story gSU further back ; for it would not have been mudi^ for Parliament to influence the conduct of Ministers, unless Mimsters could influence the conduct of the ?^i.?'*. **"^. ^"^ influence was very early estabhshed; for. with the great increase in the artiviti^ of the Crown which resulted from the Norman Conquest we learn that the Kings soon found it necess^ to wl «*"T?^ ^^T' *^ * Pennanent institutioh. a The Privy Council , This body as distinguished from the larger Cwmdl of Peers or Magnates, whidi only met at intervals for the discussion of important business, probably had ?K ^' *°.^^ ^i°S'' P*^«' ^ «^t frequSSy for the transaction of ordinary every-day buliW The Exchequer One ol its wUest forms was that of the Exchequer or Finance Office, which managed the receipt^aS expenAture of the royal revenul. We have Tvi^d account of this body's procedure in the twelfth 4w first-hand knowledge; and one of the thinirs tS stnkes us most about it is the mass of mmut^r^a- DUWGUE OF TOE EXCHEQUER ,, iZ %™^*^ '*?» •* '«^« » its proper or • rolls.' keDt bv rtiS^L. i. ?"" difierent records. various ;ti^S*f^ ^^^Sfo-"^,^ T *^"<* as lawfully made a\w1 - • .5® »t can be regarded King wafen" tkd t^t^^""' ^'^^' ^o^btlSs. the of hfs ow^?^s^*LS^ ^^ '^k^d o"t which had to b?^'\4^.*°'*V^y*P^P«r'^V- proper official, ^d sS^^with J^^^^f^igned by the official, and thindehW^H ^ \^^ S^P* ^y ^"other which the Noman lat^J^"^ these precise forms (in restrict the exSd^ ST i^^^'"^^^ ^°"^^' i° ^^ct, for each sten in Sf ^® ^"^^ personal authority • objXfaSi°<^^cSSrXl^r ^ opportunit?7o; of the item woXS eq^u^^^^ ?r Wer the proper forms were ^S^*?*'*^*^ m seeing that the sm^est eiror, T^^^^t ^v "' '* **^"^^ ^^ acquittance. °*^* 8^ ^^ money or his veWeaT^^^^^^^ kind would, naturally, d^ anlLS^^U'Sini^w ' ^^?*.*?^ ^^^^ self ; as was the SS^th^"^ of judging for him- of his reign (p S? Z^S^ "^ ** *^* begimiing mteryaU ISriL^ ^ho^^ -^ Hemy VI at frequeSf The Seals Act after, an ActTparhSi «ll U^ ? ^°"^^^^ «>o° every exercise of thl^« i ^^P^^sed providing that the uVjf ^fc^Iat IJ?S;i M*^"*y ^^^ '^"ired ^!'>» * 32 THE CONSTITUTIONAL MONARCHY ^^ be entitied to charge a fee for his share in the process. A cyracal observer might say that the last ?hr«?o?.*^°'*^ M u^ '*i°'* P^^^^"* guarantee that the statute would be obeyed ; and the suggestion though cymcal. is not without weight. But the rS ZS^.'J»°^ '^: l^'^ ^'' «* ^535 is the e^dence^t ^f/^ J the extent to which, before Parhament had S^f^^^,^i''*'t'*^'^*^^ ^'^^ °^*^^^1^' these officials had virtuaUy obtained a good deal of control over the Crown. It is true that the Seals Act expressly reserved power to the King personally to dis?ens?,JS Ihe r^hr forms; and there was another except on to which reference will hereafter be made. But^ for aU that the statute, whicL was not repealed till a com- dri'y I^^^J""^' "-^"' ^'"^^^ more attend than It has hitherto received Pvpr^'i^"^ of the Crown by its own officials, how- bureaucracy, t.e. sl government of officials never would have produced constitutional or popul^ govem- m«it, unless the officials themselves had beeTcSTd a^d controUed by a popularly elected bod^ To '^t 'r^Tn^^'^^^'^T^ ^^*°^y ^^ must^next tiT ripart from some early and premature attempts the firs two efforts of Parliament to control or Sk Se pohcy of the Executive date from the l^ter St of ^A *°^T^^*^ *^""*"^y' ^^^^ the briUknt rdOT of Edward III was drawing to a gloomy clos^ ^ Impeachments ^o!?3t 9^?^^ Parhament undertook the pui^sh- S ?K ^^J-.^"""^' ^^^"^^ ^^ NeviUe. two of the MiSs of the King, as well as of Richard Lyons and other these Mimsters were members of the Upper Ke?h1 CommonsundertooktheprosecutionorMmpSS;^?' IMPEACHME>rrS and the Lords the trial and i,i^,«« * , ^^ sion of labour becS^e ^V^lf" 'I* V^^ *^^ *^^- followed until the aSnHn«l 1 ' .^^^^ ^^ strictly peachmenTa c^'t^"at^^^ of il was followed in7^86on^fL • ^l^P *^^^n »« ^376 of Suffolk • and ttonS,^*^ impeachment of the Earl arbitrary Acts of Att^nH^f 1,?*""^' ^° favour of orderin7exec^tion ^^ouf S^i^f "^'"'^y ''^'^'^' great effect in the P^SmiJ^ ^'x** "^^ ^^^^^d with |enthcentu^:?„%^?^-So^ ^ Strafford, and Laud anrt m. . ™. "^^^ot Bucfangham, aon, in the <^T^,^"^«l»ft«theRestora' down to the caoof WaS^H 1- '"''y- ""^ "^ws, (though not ^lutI^?Sf^?^- *' Ij't famous ■nent. The special pSnt aS "'*?"" »* in>P«<:h- onr purpose is that k^^rn^* ^ impeachment for deflate m„/(indeed a co.^m!,"'^"'''..'^*'^ °» »"y peached for » ofiW wZvT h,,f " '' "°* "^ '■"" conduct in affairs of Sf=7. '^'' i™* always on mis. afforded a S^hoLt V ^ '^"'^ Thus it arbitrary tnd^^^^^XV?^'^*"? o" K.VS ^ona. o^^iks^ d^°ce1f riL^ea^S! ■ArPROrauTON. *»„ -OmNABV REVENUE rSor-fir^2r°5^^»^or{ particular obiects fav« „ 1 ^^ appropriating- to 01 the W^^s^s^aSI^J'^tS'e'i V. *?. ''^"'^* and it could hardlv ha™ f feature m the situation : continued toTv^M Ms'SS^tAlT^^ ^l*""^ pen- Of government out .Sis hie5?t^*5'c?s1oS: 1 ■il s* p-/ J n .' r& * » H'4i' 1 34 THE CONSTITUTIONAL MONARCHY ary revenues, such as the rents of Crown Lands, the profits of administering justice, the ancient port dues, and the like. ParUament, of course, had no chance of touching this revenue, which came to the King's treasury without its aid. ^ ' Extraordinary ' Revenue »#?j,*' ^^PP^^y* ***® EngUsh monarchs of the later Middle Ages never succeeded (except in rare periods) in hving on this ' ordinarj^ ' revenue, but were constantly obhged to ask Parliament to supplement it by grants of 'extraordinary' revenue, i.e. taxation, mainly direct. Then came Pa? Lament's chance; and though the move of 1377 was not immediately repeated, it was not forgotten, and, after the Restoration of 1660 Parhament resorted to it fuUy and freely, particularly when Charles II scandalously wasted the large sums voted for the carrying on of the Dutch war. Since that time, the practice has developed so greatly, that It has enabled ParUament, and more particularly the House of Commons, which, shortly after 1377 suc- ceeded in estabhshing its pre-eminence in all matters of finance, to bring under review and criticism ahnost every conceivable act of the Crown's Ministers by refusmg to vote a particular item in Ihe financial scheme of the year (or ' Budget ') until that act is explained and justified. The ' Cabinet System ' Parli^ent was, therefore, proceeding on well- prepared ground, when it made its final ajS successful bid for complete control of the Executive in the early eighteentii century^ The circumstances were fav^^ ^' 1 . ^^"^ Hanoverian line owed its throne 0? sSllemel^tV^''' "' ParUament, which, in thf ^rt 9f Settlement of 1700. ignored the claims of the elder THE CABINET SYSTEM 35 (Stuart) branch of the Royal House, and confeired the Crown upon the descendiits of the EkctoSfsonwr necessarly, bound to rely almost entirely ^ S Ministers for information and advice • .nrf^Ji_ «rto privileges and income w^i.S^'Jo'ZS' »PP°rt*".?™edaltogetherre'i^^,f„,Tfr P«,^«.^»al liberty in the British EmoSe is mjqu^onably. the expansion of the UrSt^l^dcS we aSUr^^'^i*'''?^ ^'^"P '^^ communitiS^SS l^^liXlTl'' As was, perhaps, natural, m ine earner stages of this expansion, the Crown and Parhainent of Great Britain tried to keep th^^n"^ of distant colonies in their own hands. But. iS^Says ^Uv^«"l?^'f communication were slow and m ineffectual ; and. as a matter of fact the^Ke^ S^ u„^^ * «J^ ^^^ °^ practical 'seSfg^^ SSC^ r'^ "^ ^^'. ^T^ constitutions.* a1^ to ti^^^i.^'^^Zf'i' ^*°.°"^ ^^ disastrous attempt Se ^«« T^°l? ^^^ ~°*^ government led to ^ action of the thirteen colonies of the American c»ast towards the end of the eighteenth centi^-^ though we may rejoice that that step gaW^risTto but regret that it had to be taken in di^cuinswS SS^en^fThf ' ^^^J' by tliis event, the BritiS «iS? * «^ nineteenth century encouraged the fouaded by Enghsh settlers; and Canada. Australia i 40 THE CONSTirUTIONAL MONARCHY New Zealand, and South Africa rapidly ran through the various stages of freedom, till they arrived at complete local independence, tempered only by the Imperial tie of allegiance to the Crown. Even in the colonies of alien blood, much local independence was freely granted ; while the great dependency of British India was largely governed by private and unofficial authority, though in ever-lessening degree, till its definite incorporation into the British Empire in 1858. All these tendencies and results, which will be the subject of special description in the next chapters mevitably encouraged the spirit of Uberty, and Umited the possibilities of autocratic government from the poUtical centre of the Empire. Thus, in complete and happy contrast to other Empires- for example the Roman Empire— the growth of distant depend- encies, instead of converting the British Empire into an absolute despotism, led to an enlargement of the bounds of self-government and freedom. The PERi,. JAL Powers of the Kino Finally, before leaving the Crown as the supreme authonty m the British Empire, and the symbol of its umty, we must say a few words o/i a subject which is much apt to be misunderstood. It might be hastily supposed, from an enumeration of the many con- stitutional checks and safeguards which secure the a)nstitutional character of the monarchy, that the King^mself is a mere figure-head, whose duties could be performed ahnost equally weU by a statue capable of making certain mechanical signs. That would be a ludicrous mistake. It is, happily, quite true, that the spirit and in- stitutions of the British Empire would render it difficult, if, unfortunately, a weak or bad King should succeed to the throne, for such a monarch to do much harm, at any rate in his official capacity. That is PERSONAL POWERS OF THE KING 4, error to assume Si S^uL T^^ ^ * wperfidS little hann.TweforL' H^ * ^^ monarch can do Happily, the hSo^'VtS?Us?"tLr^^^^^ a complete refutation of ti^K ^"*** '«»^» i* be wdlh wWlc to «nt,r^?? ^°'' but it may Empire King-Emperor may be of value to the The King as .1 Person of'Anani.esfo^tifr^sss"^^^^ It fs far easier for the av^^^^' ""^ government, than an institution^ Ev^fn^ n 'tS^t^ P^"^» only the educated few Wan^rJJ"*^ Kingdom, such abstract t^^sXl^J^^f^^tPP^^**^**" °* even • the Crown %«t K1^!^^' *^^ ^^''^^' or are deeply int^^tedSi tte Kin.'^^. °' *^' P^P^« proved by the crowds which rnii^/\* P*'^"' *« » a chance of LdnJ Wm . i*"^^"".* ^^^^never there is maSv of t?!f^^' "^^.'^ " possible that the |^-ent| the E^S^r^^^^^ tionfar2iorereaS^[yTr^*2.^J^^P?P"^i«^ which camiot S hK 2S and\ #^^T"*^' who knows how to Dkv ttif^A c1??a „^'?«^ *''" <^^ of tact. graciousne^f^JnS C? "^"^y* ^^ * ^^^^p^ *y priceless SScrS 't^^ca^^;f !^~; ", '«»d«^ good government It is t^^Tho* *?'°*?°*°'*** *°d humofous as wS as V .iSjti^i* *^' ^^^°* ^»as a example, the ^to'^ie^ ^ '^SS "'f' ^"' a good many simpl.mind^X^,^l^t?thS"S 11.; 42 TH£ CONSTITUTIONAL MONARCHY King personally receives all the mcmey which is raised in Us name, which is, of course, quite untrue. But, on the whole, the ICing or Queen attract the admira- tion and interest of the great mass of their subjects in a way which no other political authority does ; and they ihos render government intelligible to the many. It is more than doubtful whether the Empire would hold together wititout them. His Unofficial Influence Very closely allied to this perscmal character of the King, is the great unofi&dal and social influence whidh he wields, and not he alone, but the Queen, and, in a lesser d^ee, the other members of the Royal Family. Their influence in matters of religion, moraUty, benevolence, fashion, and even in art and literature, is immense. Every, or almost every, scheme set on foot with these objects is eager to secure their patronage ; to be able to prefix the title ' Royal ' to the name of the assodation is regarded as an almost certain guarantee of success. And this patronage is, very rightly, only accorded with great discretion, and after careful enquiry, in whidi the personal judgment of the monarch, if wisely exercised, is of the greatest ^value. How much good was done in this way by the late Queen Victoria, is a matter of common knowkt^ ; it was one of the striking triumphs of her long reign. And, be it remembered, in sudi matters the monarch is in no way bound to follow, or even to seek, the advice of his Ministers; for such matters lie outside the dtmiain of politics. It could, perhaps, be wished that this fact were true also of what are technically called ' honours,' the award of which on the advice of Ministers has led to a cynical traffic in titles and decorations. But, unfortunately, that is a subject which has long been immersed in politics. PERSONAL POWERS OF THE KING His Political Rights 43 thi? ^ven^fn'lf ^*'*'' "^'T^^. it ^^^t not be supposed UTA ko„/ ^ . , ^ mouthpiece. Doubtless a«s as to each of these rights shaU conclude tbis^^^er The Right to be informed aslu\?«ll«f ' *^^ ?^^* *° ^ informed. Inasmuch autiionty. he is entitled to know exactly to wh^E L«?l^5 . *^® "^t^on learnt, by express first hand evidence in Parliament itself ttiat tt? PrSL" ^\"2S»r" tr'''' Kinginclud^^a^a'c^^t K«* ?!l^ °^ *^® P^^^c proceedings of ParHam«,* but of the secret discussions of theUbinet A ^^- ' mfoi^tion must be given to the ^ft g<^3't?ma if ■ ) if. . J'-J m 4' ' .f it ! 44 THE CONSTITUTIONAL MONARCHY to enable him to make himself master ol it before he is called upon to act upon it. This was the point emphasized by Queen Victoria in the famous letter to Lord Pahnerston, in which she temporarily ex- tinguished that buoyant Minister, in 1851. The Right to Warn But it follpws, ahnost inevitably, that a King who is fully informed of affairs becomes, in course of time, if he is an able man, an unrivalled storehouse of political experience. Ministers come and go ; they are swayed, it is to be beared, by the interests of their party as well as by those of the State ; they may have had to make, in order to obtain support, bargains which tie their hands; they have ambitions for the future, which they are loath to jeopardize. Not so the King. He is permanent ; he is above all parties ; he does not bargain for places and honours ; he has nothing in the way of ambition to satisfy, except the noble ambition of securing his country's welfare. So he can say to his Ministers, with all the weight of his experience and position : ' Yes, I will, if you insist, do as you wish ; but, I warn you, you are doing a rash thing. Do you remember so and so ? ' Only, the King must not give his warning in pubUc ; he must not seem to overrule his Ministers. But a Minister will, unless he is an exceptionally rash person, think many times before disregarding a warning from the King. The Right to Refuse Finally, the King, in certain rare cases, may take the extreme step of refusing to act on his Ministers' advice, even in poUtical matters. Naturally, he will not do so without weighing the cost, remembering that the shielding maxim, ' The King can do no wrong,' has its comiterpart in the maxim that the King, except in the rarest cases, must act on his Ministers' advice. PERSONAL POWERS OF THE KING 45 to which they are responsible. This is a oricelesa pnnaple of the British Constitution ; beSil^JJhU^ Minister can be displaced quietly ind^ttLT W any personal action againstTffiL b aoTS^lv S l^d to violence and^shed^i^.Ti:PSfl y ?h.v !r °^'„°° ^^ occasions, to take this liX but ^th^Ki^^^^T- Apart from the undisput^'right to i?^ ?¥ *° '^^^ *^ ^PP^^t to office a £an kS?m MiSlr° Sf ^^°^7' «ven though recomm^i?b^ Minister, there would appear to be now only two well matt^ n?^l ?" *? *^^ *«l^<^e of his MiniS^s i? matters of State, unless, of course, that advice shn,,M entail an actual breach of the law ^e fiS fs wh^ a request is made to him to create neerV JSk ^? avowedobject of securing a pas^TtLSt^*^ol' cii^"^^ °* -Jv?^" ardently d^ed b^tte HousS S Commons ^s matter was much diku^on the SS S hf ^^ '^^^' °^^ ^' PBxUaSSt Act of gSLuvttilS^w'^'P^^ closely will be necessary.' ^^"^ "^^'^^ *^ to their position The United Kingdom (I) The United Kingdom itself «i„vk see, occupies a soedal nrS«^i • \^^**' *» ^e shaU tion. though n^for'^Sv"' ^ ®"*^^ ^onstitu- «;umty,isAsi?sL4liSsSo? * ^^? «>°»- of formerly independent ^o^We^F^' combii^tion centunes, the west#»rn r„i« ^* *u ^' ,^ *t least five had been'^dS^St'd io™^^^^ ?*°««' ^^^^^ to the river Tweii Sd^^^^f ?* ^"^^^ Chamiel from the Dee to tte Se^ ** * ^^ ^^^^y ^^^ M<«r.. Macmui« ,nder the t^'of r£|;^-^4iV ,fj„^f,^ by m-H^ » i I ' TERRITORIES OF THE EMPIRE Wales West of this Kne, or ' border,' the hiUs and valleys of Wales were still governed by patriarchal chieftains who occasionally united in allegiance to a single ruler or Prince, but, more often, acknowledged no superior and carried on tribal wars with their neighbours or' towards the end of this period, with the Norman •Lords Marchers' of the borders, who held great feudal possessions from the English Crown on condition of guarding England against Welsh invasion. During this long period, England was gradually being built up mto a single country, with a definite and strong government, which has since become the model and centre of the Empire. Before her bounds were further enlarged, England had acquired her great permanent mstitutions. such as her Treasury, her Law Courts her Privy Council, and even, though in incomplete form her Parliament. Edward I and Wales One of the many achievements of the great English King Edward I was the incorporation into English territory of a large part of Wales. This result was achieved by hard, though not unprovoked fighting • and it was. probably, as good for the Welsh as for the English. Out of the northern part of Wales, six counties were created on the English model ; and the Enghsh legal system was largely introduced into them, though withaconsiderablerecognition of Welsh customs' Strong border castles were built to maintain order ' and around these grew up the Welsh towns of a later day. The Welsh bishoprics were brought under the influence of the Enghsh ecclesiastical province of Canterbury ; and their bishops were summoned to the Enghsh House of Lords. But it is noteworthy, that INCORPORATION OF WALES „ an more tllZ?^^ ^"«^' *" -o* taken Henry VIII and Wales WelshbetterttoSd?^^ P!!5f*^ly understood the after some further ^wi/L Se^^!;, Accordingly, Henry VIII determin^i ♦ f*^ ^^ ^s father. Edwardl.bymSpnaJ^^ *^« work of He created s^mofefc^^^aleso^^ Wales/ and, unfortiLS .«"''Sjt^"* °^ ' ^^ county (Moilmouttn^t S' t1S/^?T^ ^"g"* had always been more than h^ W^fl"'?^? "^^'^ and sentiment. To the Welsh .^^ '" language capital towns he gave the rith^ .f ""^^ *"^ ^^^^ member (not two^?in f^? i*v^ ^"^"6 each one Conm>on;;™t^a^nsS tt^^^ «°"^^ «^ Merioneth, the iwrt of Wa^lS^? *^® ^^® town of ber. Thoi^ a^Sedal^^nf^?'^"'^^'* '^°* * °»em- Wales until the eSTyfLt^^P '^''T P^^^^^^^ in Wales thus beca^'Set i^tT*/'"*^ *^^"*"^' purposes, to England- itf ^f^' '°'' ^ovemment abolished, or, at Sst' ii^nr^"^^^ "^^^^^^^s were §uage, 'EngLd- n?w in^«H.?W^"^' ^" ^^^ J^- exception is made Tn fact t ^''' ?^^^ ^P^^ and self-govmdn^' sitem ^f Tl^^'' *^^ admirable education in ^^s FnS? a ^I^^ "^^ secondary present pi^Vet^a^^v ^ ^ ^^^ ^^' ^r^ only othCT^int to vSS ft t'''^^* '°^*^- The attention is that by the L^^^ ''''!?^ *° <^M Church Act ofXi4 whi!r i,P °'^''°''' °^ the Welsh force, the We s^te J^^f ^SI^T^^V ^^ P"* i'^to England is to A^tZ^:^^:^^^-^^ 'f: Ri ^;| ; I: i f, ^! If 1 ,. » ilMi ! i 50 TERRITORIES OF THE EMPIRE aJU connection with the State. This branch will thorcfore. cease, on the coming into opemtion of the Act, to be a part of the British Constitution. Scotland Personal Union As before pointed out. this union did not take place until 1603 when James VI of Scotland, tiie «^? great-grandson of Henry VII of England, throurfi the mamage of Hemy's daughter Margaret to JaSs IV of Scotknd. succeeded to the EngSsh throne on the deatii of Queen Ehzabeth. Even tiien. the S^on was only • personal'; ,-., the same man wasKing bXof England and Scotland, but the laws^the^o c«mitnes. pubhc and private, tiieir .ustitutions. and their forms of rehgion. were different, tiiough thae Thf; ^ir^' «^°°^ ^"^ °^ similarity'betwSi ^eS TIus state of affairs was the source of much disp^i and jealousy, especially on the question of law : how fJ the union of the Crowns entitiej the inhabit^ts of ^?^?lo^^^i:U^^^ "f"^ ^^"-^«e the enact Ireland conS mj^y'^f 'JfJ^^' tt^ehistSyof -terminate the IHsh ^^t o^s^^, Wjo •: 4i S!,i:£J^.Xi 54 TERRITORIES OF THE EMPIRE witWn. but beyond, the Pale, and to reduce the country to the position of a conquered dependency. Plantation of Ulstss Especially in the reign of Elizabeth, a determined nf !?? K-^'^l^'^J^v^yj^^^^^"' hostility, at conquest of the hitherto Irish districts was made, with con- siderable succew : the north-eastern province of Ulster, where the Enghsh troops met with the stoutest re^ sistance from the native Irish, being ultimately reduced by the expulsion of the native inhabitants, and the settlement on their lands of immigrant Scots in the famous 'Plantation of Ulster' by James i No? unnaturally, dunng the Civil War in Ehgland. Ireland took every opportunity of embarrassing the successful party by favouring the side of King Charles, who, though not a CathoUc. was far less hostile to C^«iohcism (which, in spite of the Reformation, remaned the rehgion of the native Irish) than wai the Enghsh Parliament. ' Cromwell in Ireland After the overthrow and death of Charles, the nsings m Ireland were repressed with terrible severity by Ohver CromweU, the great General of the Engli^ Repubhc. who added to a stem dislike of disorder a fanatical hatred of Catholics. Revolution Policy But the worst period of all for Ireland came after the Revolution of 1688, when the Irish, having espoused the cause of the Catholic James II. were dSeated by the new King WiUiam at the Battle of the Boyne (1690). and Ireland wa? subjected to a veritable lign of terror, with the double object of stamping out Cathohasm. and of excluding Ireland fran the b^efits «NiON wmr mum 0' the new 'W-r'""" '^^ aimed at mlt- ^«»**«» ' Policv «# u . "^ 55 m«ted out tn T ,'*'*^ and unjust^! 5f ^ •upreme even th^'Llf, ^?^d in the SL^I *he treatment ^« reach^ ?; *P* *^^"»x of this o«S!i°^^» °' the "fi^ht of thaf k!^ **ntain fonnallv 'T- V **' the Ireland iSS,'^/.*' "dilate fe'iJ^?''!^ ' «» tive of ♦Kw- ' and that the Vir-^I^^ ® advice of !(' ^- f (i 'I fi *^i n 56 TERRITORIES OF THE EMPIRE Act of Union Unhappily, during the fierce struggle between Great Britain and France which was waged without inter- mission during the last few years of this period, the military necessities of the situation made it imperative, in the eyes of British Ministers, to put an end to Irish independence. More than one attack on the Irish coasts were made by the French ; and, though these were repulsed without much difl&culty, the growing reputation of Bonaparte, the great French General and subsequent Emperor, made the British authorities genuinely uneasy about their western flank. Accord- ingly, the Cabinet of Pitt determined to force upon Irekind a union of the type agreed to by Scotland nearly a hundred years before. In the year 1800, therefore, the Irish ParUament was absorbed into the British; Ireland being accorded twenty-eight repre- sentative peers and four bishops in the House of Lords, and a hundred members in the House of Commons! The Irish Privy Council was not abolished, but uni- formity of trade and political privileges was established between the two countries ; while the continuance of the Irish legal and judicial systems, and the perman- ence of the Established Church of Ireland (which was practically a branch of the EngUsh) were guaranteed. Only, it must be remembered, the EstabUshed Church of Ireland was not the church of the vast mass of the Irish people, who remained Catholics ; and when it was disestablished in 1869, its disestablishment, though it was resented by the Protestants of the north, aroused no hostility among the Catholic Irish. Above all, it must be remembered that the Irish Union, however just and impartial in form, has always laboured under the great defect that, unlike the Union between England and Scotland, it was not the voluntary act of two free peoples, each seeking only a reasonable UNION WITH IRELAND -.1 ; •nd mutual advantaire h„* *i. ^ •gainst a weaker^^' j^^* «l« ^<^} of a stronger advantage of the fJ^'nS/ *^''** ^^0% forX ^d unreal consenHf'^h^lSSlvT" *^^ '^^"^^^^^ ttse of corruption and social prSs^^.^ "nsa-upulous ^ Working of the Union !L^^^! w .^^y a great nobleman 7.u jealousies. 7r ^y the cSe?f '°' ^^ alpoTfrom ^u"? ttough not a Secre^^^/14?^^^ Ireland, ^^o^ the control of the S Offi^^i^f «°nunally u„dS ambitaous and rising poUtiW^!?'. °^^y always an -t'Sp^'arS.fu^P^^^^^^^^^^^ ^"- Secretary were tempon^^ffl ^'?"*^"^"t and the Cw3 wtheresultofEnTh^^^®?^' ^^ting frequ^tlv -elves very larg4 at^^X^--hofoun3treS^ ^ 01 the pennanent :& ifi 'it 58 TERRITORIES OF THE EMPIRE I'l officials at ' the Castle/ i.e. the official residence of the Lord-Lieutenant in Dublin. These permanent officials, though they were Irishmen, were, at any rate during the early part of the century which followed the Union, almost invariably chosen from a strictly limited class of great Protestant families which had secured the monopoly of office in the days in which Catholicism, to say nothing of sympathy with Irish self-government, was a fatal bar to onployment by the State. This little group of families, in the days when Civil Service examinations were unknown, established a close system of mutual bargaining, whereby the executive offices in Ireland, high as weli as low, were carefully restricted to those who had the greatest interest in maintaining a thoroughly unwhole- some monopoly ; and thus the daily government of Ireland exhibited the worst features of bureaucracy, while the larger questions became the sport of politicai parties in England, formed on lines which took no account of Irish problems. Thus, also, though Ireland appeared to have institutions of her own (she even had a separate Treasury till 1816), they were not really expressions of local feeUng, but close Boards, com- posed entirely of officials, either sent by the Treasury from England to take charge of the sub-departments of the Imperial offices, or appointed in Ireland, by the influences above described, from a narrow circle of persons with fixed ideas and strong sectarian pre- judices. Outside was an Ireland of which they knew very little, and with which they sympathized less. The administration of Ireland was, and vras probably intended to be, in the nature of a garrison holding down a conquered country, and was all the more detested that it was largely composed of persons who, though strongly opposed in sentiment to the majority of the popuktion, were nominaUy Irish. It was not imtil the latter part of the nineteenth century, with the establishment of the Education Boards, the De- UNION WITH IRELAND j^ . ^"""^ ^^^ ^^^ THE ACT OF I914 ^-^>'^^^lve^S:^^sl^^^^ ?'.r?"- *° find has encountered severe n^'l^ ^"^^ ^<^ o^ Union repeal. These aSnsh?v?*l°u ^°^ ^^^^^^Pts a? into which WB cSSL enter ^?. •'^^°"' ^«"°«' say that, after a severe s2„ta! ^} " sufficient to exceptional provisKnf oflS^ffe.?^^^^ to the (P- 165). the Government nfT,^°* ^^ o* 1911 received the royS SSt "•!, J^ ^'t^^ Act of 1^14 great Evax peaT^^LT- °° *^^ ^"*^^eak of the statute boo^^By Ss^ct Ihf ^ t'*^""^ °° ^^ to be re-established w^th r^i 1 ! ^"'^ Parhament is Irish affairs, subiec^^^^^ ^"^^^^ over purely thesupremeautSv of t^rl'^'^T^^^^S' ^^^ t6 Which Ireland is Su ?o t ^^"^^ ParHament. in diminished numbers The I'lS- ?'°*^' ^^^"gh iS ^stry. res^SSe on E^KS^t"""* °^ ^ ^sh Parliament. iV^cont^pUt J^°«^Lt, ^""t *° *^« Wsh interests, the entire^S^S^ of^^ t"\''*. *•? ^^*«J is to be vested in the TritfS- • ® ^"^^ <^vil service Irish laws and jSdiSa ^t^'"^'^?' ^<^ existing altered by the Irish pSS^ "^ *° ^°°tinue until appeal frim ^eMU^^i.^f;^' J^"* *^^ fi^ Senate (or House of lS w .« ♦K^'i* ^^ *^^ ^^* nuttee of the ImDerial S?L r ° ?® Judicial Corn- however, not nSSSv^Z^''"''?^ ^P- «93). It is. this long'and cSmpS sdtu?e'' {± '^" ^^*^^ «^ on the outbreak o?tKS^^V^"^' "^^^'^y' While. dissatisfa>r^4T^,^.^^ the^e^. II ■f i is C f," Oo TERRITORIES OF THE EMPIRE grounds become so strong, that it is now generaUv regarded as doomed to repeal. Meanwhile, the con- statutional position, as set up by the Act of Union of 1800, remains legaUy binding; and statutes of the im: caal Parhament. unless otherwise expressed, bind Ireland as well as Great Britain. Isle of Man It should be mentioned here that, unhke the various islands near the British coast, such as the Isle of Wight. Lundy Island, the Orkneys, and the Shetlands which are, for government purposes, parts of the counties to which they are adjacent, the larger Isle of Mail and the ' Channel Islands ' (Jersey. Guernsey Alderney. etc.) are not parts of the United Kingdom! though they are parts of the British Islands. The Isle of Man. formerly a possession of the Kings of Norway after being long in the hands of feudal lords, such as the Earls of Daby and the Dukes of Atholl, came directly under the British Crown in the year 1765 But It retains its ancient government under a Governor (appointed by the Crown) and Parhament or ' Tynwald ' Court of two Houses, with its own laws and law courts. Channel Islands m^^ ' *l!*"J?®^ Islands' are the last fragments of Wilham tiie Conqueror's Duchy of Normandy, which survived to the EngUsh Crown when Normaidy was re-conquered by the French Kings in the tv^elfth century Theu: andent and primitive forms of govern- ment, hke those of the Isle of Man. remain to the present day ; and. consequently. Acts of the Imperial Parliament are not m force in either of these depend- ena^. unless, of course, they are expressed to apply to them. The Isle of Man and the Channel Isknds resemble, therefore, very much the class of self-govem- ingDommions^to which we must now turn our attention self-government g, / . TV ^"^ ^^'•"■^^^^'NG Dominions ^1^^: S'Sl^,^«,^^tS..the .est Import. the Doinimon of N^*^ik^5^"'?°^ South AfriS^ oldest colony of thTp^^^'.^"^ ^^ Colony (the area, in vr^th in *L^^^^ °^ Newfoundland Ii! jn their unbounded ^1?bthWC '^' ^'"P^^^' these vast posses^ois ^e^ZS!- ^^"'^ greatness, world's history, and desS^e fo?!!^"^ "^^^^ « the been devoted tott^^^T "'°'^«. study than has to point out two o?Ti;re?o?'tSS- ' ^*i«°°^y Possible c^cterize their -en^l^^^J-tlte;^:^ Racial Ties thii'^K^TveSS SS;,!1.^°"^<^ ^ Observed, that nected mi thTvlS"^^ are intiniately c^! Empire, not only by ttetie%°°?' ^^ ^*^e Jf the of blood, speech. Sds^n^timLf^T^'i*^"* by the ties are, for thVmostXf ' col^!' .^° °*ber words, they of the word. v^. Stiemen?r? '°. ^^ ^^^ sense mother-country. nof^Z'est, ai T^*' ^om the IS not, of cou?^. uiU^Sv^,f ""aP^P^"^- This eastern Canada was^n bv h^H%; l.«^°^ ^^1 of nval French colonists MontLY™ ^^^^'"f ^om the IS one of Canada's nationarh^ ^%^^^ "^ Wolfe much fighting between th?n!u^^- ^^^ bas been South Africa ; SuL fhn "*A^^ *be EngUsh in first touched ;t1hlTapf7?„S^^*^- governing Dominions are, for the nnost part. British m a double sense. The 'Common Law' From this fact follows one very important conse- quence ItisoneofthefirstrulesofBritishconstitu, tional law, that the privileges of British dtizensbip follow the Bntish settler who goes out to build up a home m the wilderness. He takes with him that common law ' which he enjoyed at home, or, at least so much of It as is consistent with the circumstances of his position. Even before his colony has received any pant of privileges from the Crown, he is entitled to the protectij)n of the constitiitional guarantees whij guarded him at home, particularly against the arbitrary action of the Crown and its oflficials. The Crowii may, if it pleases, grant him special tocal pn^^^es, by Charter or Letters Patent ; but it cannot by Orders m Council or otherwise, impose new burdens upon him. That can only be done by an Act of the Impenal Parhament ; and. as a matter of fact the centiral control of the cotonies of British settlers, what tiiere is of it. has, at least ever since the American Revolution, been exercised by Parliament. Federal Ties A second peint to notice is, that the krgest and most populous of these ' self-governing ' Dominions are COLONIAL FEDERATION ^ ^t single communities, but m h.. h^ w . . P-oups. fonned out of nJ^^tJl- '**■*«> a*»ve. .<^anie». which lat?i wta,W^25 ^S^v^ni independence, not m^elvS^rffS?%^^"« *at« 3 ment, but towards^^J^rS?**^*^^'"?^^*! Govern. *^e that the Im^^r^o^J^'^^^^ Iti. cate directly wit^Se • ft-n? *".* *^ "«* communi- Canada^ or'^nS^^nion o7 sSa,° A^? """^ does with the ' States 'nf^k 7* ^^^' ^^^gh it r^alth. But the^govljl" ^^!^^ ComW vmoesof Canada as weU Zf^^ ?^®" «* the pro- are guaranteed by 1^ a„S' *^ ??*«» ^* AustiSia, the Dominion gove^e^ts ^^ '^'^ °' *^ by appeal to the IudidLc^!^l*^..^ redressed by Council. Onfy it^o„?i^"^ °^ ^^ Imperial Priv? these self-govi^* ^jS^ts^^'^S"^^^ '^'' ^^ *re not all equally e^!Sr^P^*>^% secure, they North Amela let o& and "ttt"'? ^^ «"«* Afaca Act of looQ con^'J^ a\^ •^'"^^ ^^ South powers on the ^!;n^s^f ^L^f'^^^^^ «P^«s* «^tively, thus. b^LpliSS^l^>"*^/^<=«^ powers of ' self-govelnS^ i^^^ *" ^^ gomimon Parhai^eltT^d Mii^^ t^^ ^,*he C«nmonwealth Act of la^ ^S^'J^ Australia, confers only definite Md^nSrSSf^' ^^T^' ^<* government, thus. bHrnpEonf ' ^ *^^/^eral o^^sSt1s^-tei'^^^^^ is. that the tieuLrSr^rV'^^ ^^"- of the Provinces of c^JIa V ^ Admimstrators appointed bTthI DoiSS^Vo"^ ^""*^ ^^«^' ^^e Govemore of the A^So cf?™^"**' ^^ile the ^y by the ao^'^^rt'rse'lf theTd ^^^^^^^ Secretary of State for the Cnh^i * *^^^® o^ the the statutes of the ^o^^dST^L^^^^ ^^' ^^^^ assent.»notonlvof thenm^w ,P^tures require the or AdmimstriLrs but of S?f n ''"*^^"*-^«^^«« while the leaslftdiin ^f *K ^® I>omimon authorities- "S«»*ation of the various AiMtralian states' .'' ' H-,ti I It '' I ■if it' ' I- h ■■ |: .f . B 1 : «4 TERRITORIES OF THE EBIPIRB it not subject to ^s double ' veto.' The provinces of Canada Me now Ontario, Quebec. Nova Scotia. New Brunswick. Manitoba British Columbia. Prince Edward Island Alberta and Saskatchewan; the states of Austraha are New South Wales. Victoria. Tasmania Queensland, South Australia, and Western Australia ' N.'i.^T. t"* °^ South Africa are the Cape Colony.' Natal, the Transvaal, and the Orange River State. The Domimon of New Zealand was at one time a federal colony, somewhat of the Canadian type; but the provinaal system was abandoned in 1876. Newfound- land has always been a single community. ' Responsible Government * By far tiie most important feature of the self- pvermn« Dominions is. however, the ahnost complete mdependence of Imperial control which they eniov under the name of ' responsible government.' Not ^LaZ^4^% '° ""^^l *" ^^^' Parhaments con- sisting of two Houses, called by various names, which exerase (subject to federal rights) ahnost mifettered I^i^ver the affairs of their communities; but their respectave Governors, or Governors-General (as the f.n'^w^' ^"t^ of the Dominion govermneAts axe caJled). though appointed by the Cro^vn. are bound to rlw/°. ^^'l. ^ /aspects, the advice of their Swiin n^*'*'"'!^'^' ^^^^' ^^^ the Imperial rhnil ^ ?K°'^°i ^^^^^' "^ con^Posed of MinSers ^^for their influence in the local legislature, and dep«iding on the support of that legisSure for the^ continuance m office. This combination of legisiative and executive independence enables the Gov^nment o^'n^ofV^' f ^" '^''' ^'^°"y ^y ^^^ local pubSc opimon of the day. even to the extent of adopting (as has been done m most cases) a financial system not only different from, but whoUy opposed to thesvstem in force in the United Kingdom, and for tUspT^^ SELF-GOVERNMENT g, tions negotiatid bv the S?^ *^ ^"^^^ °' conven- are afWdsfoSy^^^^^^^ which representatives, ^t S^ thlj^^ diplomatic of self-government is to »? J !, saptfoae example though the conC "f aS ^ee^S *^' ^'' «»^*' theEmpire.navalandiSitSt ^s^^S^/^'^^^ of of war, automatically to thei'Ju!? i «? *^® outbreak Achniralty. yet, in^e of ^c^Sf 5^" ^^ ^^ and control if the BomiSo^ori^!^,??' l?^PPin«. of their respective (^^^t!'^!;j:',^'^^^^ compulsory levy of forcesTr n««*^i?\®^®** ^^ war, no of the wa^^isiii^'sed^i^^^^ to the cost by the Imperial Go vaWS?t?'^?"^^°'°i'^^^ tions of C^ada, Au^St Sout?/ ^'"^iS^^ ^°*ribu. and Newfoundlaiid to thefirfiH^ NewZealand, are voluntary in U^s \ m^^^i^'^" 'N^5,?'°P^ better lUustrated the fundamenta?^^' • V^^^S has colonial policy that allS^S. ^ P"°^P^« o^ British have be^ r^kS^ by toe&Tr^"' *"^ ^^ys as dependendes rbe^exptokS^*?*'^*^?;^*' ^^^t ^ntod authority, but ^?S'Jn1L^ J^^^* ^^ the Impenal commonwealth Tomo« « f^^* 1° * S^eat a system appears toli^e«^f Li ',^«° ^*^^« such results chaS^ a co^SS^?^ J"^ ^^^^y' »>«t the a good deal of^^VrS^^Sl'i, ^^^^^^ ^"^« ^ It is not possiblZin TZi S^K^Sf contempt, details of Se instiStior by ww4^^ •*".«" ^*^ government is carried on anH «,r5-? ^°»»nion self- the corresponds^ SstitliS^n^^ y the b«t by the Governor or Z^t?!^. ^^ State, always on the spot, and can^!^?^'^*?***'' ^^o is Zt "- W«-ts"^S%'S5-*L^^^ and gredse ^^^^^vo^on"^! ^"^V^^l^l '^"^^^^ tiiey excTdse.%dthin ttie h^te l?"?^'^' '" P«^<^<* powers similar to thosTL^^l their conunimitv United Kingdom! S^ot t?^'!? ^^ **^«ters in Si pardoning^ reprie^S?^^*^^^^ decision Th m some cases r^ts^t^f^ «>°demned to death representative of Sir^o^ ?°J!?"' " the direct alsoexerdsesmoW^^^^l*^t the GoveiW in the United ffin^^ ^f?®*"®" than the CTOvm or ^^oldi^ ^^^'^^ regard to fp^^ ParhamentT^ ^ **** to legislation by the DoiHNioN Judicatures tte Dommioa CaliS h Jin^ Provincial l^tio^J^"": posed proviaSf SgJS;^" '"'**'«=* ^ «>« SS^)'*5S: ^i" ' ' 'f-l 1; 68 TERRITORIES OF THE EMPIRE judidal independence and integrity pavaiHng ♦hrwigh out the Empire, by securing fijdty of tenure and inoraoe to tiie occupant* of the higher judicial ports, bothfederal and • rtate or provincial ; and most of them expressly reserve the right of appeal, at least in important casea from the colonial courts to the Judicial Committee of the Imperial Privy CoundL But the selection, even of the superior judges, and the numbers, jurisdiction, and terms of office of the subordinate judges and magistrates, are left entirely to the governments concerned, which, it is only jurt to say, have mort adnurably in this respect maintained the high standard of the Bntish judiciary. A sketch of the form assumed by the judicial institutions of the self-governing Dominions is reserved for a later chapter (p. 303) AU the self-governing Dominions have also more or less developed systems of local government in the narrower sense of the word, comprising shire and borough councils, sanitary boards, and the like, engaged in provichng and mainttOning the pubUc amenities of avihzed life, such as roads, bridges, water-supply, and drainage. A brief account of these is, however, reserved for a subsequent stage (Chapter XIV) ; and this chapter must conclude with an attempt to answer a question which will naturally have suggested itself to the student who has followed this account of Dominion self-government and independence. In what way then can these ' self-governing ' Dominions be said legally to form part of the British Empire at all, except perhaps, as owning a general allegiance to the British Crown? Imperial Ties There are, in fact, four legal ties which, in addition to the most valuable tie of aU, viz. the sympathy and good-will of the colonists themselves for the Empire of which they form part, and their unifying loyalty to the Crown, bindthe self-governing Dominionsto the Empire IMPERIAL TIES Dominion Govbxnors «9 General. GoXorfieL?e,2i r ^'°^' * ^^^^o'" is not directly fp^S^;, .ST? ^h«" tWs official of theSecreti^Et!7«y„^^^ Crown on the advice of Canada ^Sou^Am^^^]!'^^?^^^^^^ tive of the Crown acSni^n ♦».. »*»"*J««presenta. and bound to ^d theSft^es?. nJT r°' ^* ^'°^. more important^SMh? iff ^'?^^'®^- In the Crown. byLrtfttf^^Jl* " *PPO»t«° ^^ Colonial the Imperial ParliSiMt^!~r ^?°o^ the Crown ia to ProiSScX^Si^tlo^in^rf T^^^^ t"hfa^T:;SfcZn^/k„I^^<^^s^^^ that assent This h J^rl? ^ »ntunated, may refuse ment in question If h^v ?®,P<^wers of the Parlia- it is so SnS^' to im^."?'. *?^*' ^Wlst not illegal. prindpk^of^tiS Uw'iha' frT' °' *^* ^^^^^^^ tion, he • reserves 'if L*J i ^^^^ reconsidera. and in i^TSsel ^?l*^^P^^f"^e of the Cro^; requires SllTB^Si ^ J^'Tl Constitution Act r^ed. In eithTorth^"^^ W?,^ ^ ^ assent is not riven thm r!!^ ' " "** Crown's «oi given, the measure never becomes law' ■' ''i\ . ki ? ll iL [ 'I ifp 72 TERRITORIES OF THE EMPIRE Or, finally, even if the Governor has expressed the Crown's assent, the Crown may, on learning of the step, revoke the assent by an Order in Council ; and thereupon the Act ceases to be law from the date named in the Order. Conflict wriH Imperial Statutes In the third place, any provision of a colonial Act of Parliament, even of a self-governing Dominion, which is inconsistent with the provisions of an Imperial Act of Parhament intended to apply to the locality, is void. This rule is laid down by an imperial statute of the year 1865, the Colonial La^is Validity Act, which, curiously enough, was not intended to limit the powers of the self-governing Dominions, but td extend them. AH sorts of objections, based mainly on the wording of the Constitution Act of South Australia, had been raised against the validity of the statutes of that state ; and it was desired to get rid of them once for all. Accordingly, the Act of Parliament referred to provides that any ' colonial law ' (including an Order in Council) which conflicts with the pro- visions of an Imperial statute intended to apply to the colony in question, shall be deemed void, but that no other such law shall be deemed inconsistent with • English law,' which in this case, undoubtedly, means Imperial law, including the ' common law ' (p. 62). Imperial Legislation This statute brings us natiarally to the fourth and last of the legal ties by which the unity of the Empire is expressed witii regard to the self-governing Dominions. The so-called Imperial Parliament of the United Kingdom claims the power to legislate for all parts of the Empire, including the self-governing Dominions. As a matter of fact, this power is very rarely exercised ; IMPERIAL LEGISLATION 73 SanS 1LI\ 37 '''^''l *^«^* '•avenue or tax- granung that point may be regarded a« 9M*i.Jl. the American Revolution^ The few wWch h^^ ^^ pouuc the heart counts for more than the h#«H • *!: wh« «>e heart beat, strongly. O^^I^^'Z • t ft I ? 111! I '• i ■ . : li i^B 1 h1 i LJj ^^ 'V- CHAPTER IV THE TBRRITORIBS OF THE EMPISE {C(miinut4) CRO?m COIONIBS AND BRITISH INDIA THE Before proceeding to consider the relationship of the ' Crown cokmies ' to the £ikii»re, it will be convenient to say a lew words about the Imperial authority by which they are chiefly governed, viz. the Coloiual Office. That department is, of course, also concerned with the self-governing Dominions discussed in the last chapter ; but in a mudi less d^ee, because, as has be^ explained, the self-governing Pominions manage their own afiairs almost completely. f The Colonial Office For some time after the first acquisition of colonies by the EngU^, the management of them, so far as the mother-country was concerned, was kft entirely in the hands of the King. The King, in his turn, either appointed some person to reside in the colony and act in his name, subject to rendering an account of his actions to the King, or the King made a gran^ of the colony, subject to certain provisions and reser- vations, to a company or individual as proprietor, who dealt with the colony as an estate to be ' settled ' and developed. Examples of the former class were Bar- bados and Jamaica, of the latter, Virginia and Penn- sylvania. 74 : *t EARLY COLONIAL GOVERNMENT 75 The Privy Council and the Colonies became more and morrfrSS l^T °^^°^^ent referred by the K^S w2?^s ?„^tiL' firs?i"S% the seventeenth ceitury Te sSt n/^ "* ^^^. '^ government of Encla^' ^l ^* °^.?*^ eawcutive relations of Enirl«^d wJ ^k5 °>atters affecting the for Foreign Plantations /JLoiu V' * .Commission CouncU) W cSjS^^ fef ^ % Committee of the The idea WM rP^^TK i^^' ^*^ ^*»"S until 1641. ia tte ye^*^65r^l^L^^^^^ Cn^mwell, w^o of State (as it wMX^r.iiS!T*i^ °' **»^ ^omici tions, to SiTvTt thf rS— ^ for Trade and Planta- gatiok AcS^ A? tJ^ r^**'^ embodied in the Navi- 6 ' i , :|i 11 \l ! 1 f : ! i iJll m^ 76 TERRITORIES OF THE EMPIRE (contd.) Loss OF THE American Colonies Unfortunately, this promising developement received a severe check by the separation of the American colwues m the year 1782; and before, by the Peace of VersaiUes m 1783, their independence was formaUy recopuzed, the n«w Secretary of State and the Board of Trade and Plantations were both abolished as though Great Britain had gone out of business as a colomzing Power. Happily, the courageous govem- mrat of Pitt soon reversed this faint-hearted policy • ^d, m the year 1784, a new Committee for Trade and Plantations was created, which, in the year 1801, was put under the control of the newly created Secretary of State for War. This somewhat strange union of ports lasted until the Crimean War. in 1854, when the increasing duties of the War Ofl&ce led to the creation of a ^parate Secretary of State for War, thus leaving the affairs of the colonies exclusively to the ' Colonial Office.' The Secretary of State for the Colonies is in normal times, a Cabinet Minister of the highest rank though he takes precedence after the older Secretary- ships for Home and Foreign Affairs (p. 229). He is always a member of Parliament, and is directly responsible to ParUament for the conduct of his office. What is a Crown Colony ? (3) By a • Crown colony ' is meant an overseas possession of the Crown (other than British India) which does not enjoy the powers of ' self-government ' descnbed m the last chapter, or, putting the matter J?,P*^^™^°"°' ^^ *"^i^* *o t^e control of the Colonial Office » in the management of its daily affairs. 1-ike the self-governing Dominions, each Crown colony, ««Hi*iK °?*,'*^*=?^?^^* *° ^y *^* «« the Crown colonies are aSSiSJ (Ascension Island) is und" tbe CROWN COLONIES Crown; but ^ke th??n '^'^^^'.^PPO'"*^ by the Dominion, the^vemor of ITo ^^ * ^"-SOveJning ruler, not bound t^St aci^Hi^ 7°*?"^°°^ " » '^1 local officials, but sub?^ iJ^ **° *l^ *^^^^ «' ^s Colonial Offi which aimed at keeping hands of G^tS^ hit fn^^ *S' ^'"P^* »" thf to subject the ^ec^onTn^icIn t^^^^^^^^ fj^ ^"^-P* to those of the United Vi^JZ *be colonies of the Empire O^the ^l^f ri*'.?"^ ^^^er part has always^ been to mlkeZu^^i ^"""^^ *be ^m ing. .-... \o defray the ex.Snts'^^J' self-support- out of its own revenues tK •! ^^^^ government times past, S^nt CTsu^, oV'"*"^ ^°?^°'° has, in for an^hire'inlhTofiSe'vST *^^^ of vanous colonies for the ben Jfit ???i,^* '^"^^^^ themselves, and in sunni!™ «*• ^1 ?°^ colonies revenues. supplementmg deficits in their Institutions of Crown Colonies -■ . r ' I ■' H mI I i ' (p iii' ii I H 78 TERRITORIES OF THE EMPIRE (eotUi.) full powers of self-government, they are all placed under siniple autocratic government. For one thing, the inhabitants of a conquered or ceded colony have usuaUy been allowed to retain their own system of law for the regulation of their private affairs ; although until the grant to them of representative institutions, the Crown claims the right of altering this, if it sees jit, by Order in Council. But, apart from this, a large number, even of the Crown colonies, have been given Constitutions which enaUe them to exercise a considerable control over their own affairs. There are, in fact, three well-marked types of government in the Crown colonies; and only one of these can fairly be called a purely autocratic or absolute form of government Repkessntativs Councils In the highest type of Crown colony, there is a repre- sentative legislature consisting of one or two chambers ,* though this legislature is not entitled to the name of Parliament. Thus, in the Bahama Islands, the Ber- mudas, and Barbados, there is a L^ialative Council nominated by the Crown, but wholly or mua^ selected from the non-offidal inhalHtants, and a whrify electivs Legislative Assembly. la ei^ other cal^ses, them is a legislature which combines the -^ ■ ti ^ nominated and an elected body ; some of ks ■■iimlffi n being nominated by the Crown, and otfaea elected by the inhabitants. These are the colonies erf British Guiana. Jaaiaica, the Leeward Islands, Malta. Mauri- tius. Ceylon. Cyprus, and Fiji. These legislatures have not, as has been hinted, the full powers of a Parliament, particularly as respects criticism of the colonial government ; but they can put up a strong opposition to 'Government measures,' and they have almost oompkte control of local expeoditure. subject to the ' ) I' CONSTlTunONS OF CROWN COLONIES « UtCLtoit. o*^ •••»•* by the C«wn b^ (si lii »r! ExEconn CooNcns E»^,..^ r "^ "lonies. there is usuaUy also an «c viws Of Its members where they differ from his ^ But the facts that the members of the C^d? ^e^^^L^' V^"^ appointments to to^ and a?e acSiT Tf ef ^ I restraimng influence upon his Cm^"^i •'*'°u^ ^ mentioned also that in Se TOops (p. 192), the Governor is usuaUy and Aot Se^L"" "^" K^ **« self-govemiSr&«^S^^* ^ action of the executive is kept within legal boimS S^fi^r^^^lf "^ °* ~^ °^ i»«tice presi^overbv judges directly appointed by the Imperial (^v-S^'nt wd mcapabie of being dismissed ^ aiiecTedlTt^S - .! 80 TERRITORIES OF THE EMPIRE (eontd.) salaries by the Governor who, as has been explained (p. 09), is answeraUe for breaches of the law to them as well as to the English courts. ' Nominated Legislatures The second type of Crown colony also has a local legislature ; but it consists entirely of Crown nominees It is therefore spoken of only as a ' Council ' ; and its only claim to represent local feeling is that some of Its members (usually a minority) are chosen by the Crown from among the non-official inhabitants of the colony, the remainder being Crown officials. Often however, it cannot introduce proposals for legisla- tion; and even its financial powers are strictly hraited. Moreover, where the legislature consists ox nommees, the Crown can continue to legislate for the colray by Orders in Council sent out from England. .Obviously, in such colonies, the personal authori y wielded by the Governor is very great being checked only by the advice of his Executive Counal, and by the independent action of the judges of the courts, all of whom, it wiU be rememberedlre appointed by the Crown on the recommendation of the Secretary of State, and are not removable by the Governor. But it should also be borne in mind that a .GovCTuOT of this type is in constant correspondence with the Colomal Office, that his proceedinc*! &re all carefuUy recorded, and tiiat he naturaUy endeavours by discreet and kindly behaviour, to earn a good re- putation which will help him to promotion to a more important and dignified sphere of work. The colonies P*?^.*^* *ype of government are many in number, mcludrng Tnmdad and Tobago, Grenada, The Gold Coast, Sierra Leone, and British Honduras The former colony of British New Guinea, now known as Papua, was once in this list; but it row occupies a pecuhar and interesting position, being placed undk the CONSTITOTIONS OF CROWN COLONIES 8, control of the FedenaGovenunent of AujtMH. Tt.:. «U ta^watched «th g«.t i„t««t by .U WdeT* AUTOCKATICAU.Y COVERNID COIOKIES It i» Wily in the third and lowest grouD of Crown colomes that the purely autocratic rjTrfS Go^ p-s.-So-^nd-Sl-aS C^»i«M.er appointed by thi Govot« oYthe ^M Coast^ Ascension Island (administered bv S. ah the control of the ColoiSS S^« Si?orthe M^ Govemmait of a self-governing Dcinmion iS oSST Where colonies of this n^ are unde^ tti^^i provinces of British India. ^ ' British India As is well known, the interest of the English in India was for ong of a purely commercial charS Sirecttd wMcrIf ^'e ^'^^'^'' ?^ ^ old-fashioneJ t^^. which, at the beginning of the eighteenth century 11 MKXOCOPr RMOUmON TBT CNAIT (ANSI and ISO TEST CHAITT No. 2) 1.1 1:25 ■ 1.4 LiM2B §21 ■■i ■ Z2 Sf L& 1 12.0 i.8 1.6 A y^PPUEO IfVMGE Inc lesi Ea*t Main Stract RochMtor, ftow York I4«08 USA (718) «2-0300-Phon« (716) 288 - 9089 - Foic I' ill i(, I 'I 1 I; j 8a TERRITORIES OF THE EMPIRE {contd,) became definitely united into the United Company of Merchants Trading to the East Indies^ commonlv known as ' The East India Company.' The East India Company This company, though not, for a long time, under the direct control of the Crown, became, in the eighteenth century, mixed up with Government loans, for which it undertook responsibility, in return for a grant or recognition of its monopoly of the trade to India; though the validity of the Crown's claim to grant such monopoly was more than doubtful. Partly to protect its traders and their rich ' forts ' or settle- ments on the coast (Calcutta, Madras, and Bombay) from attacks by the hative princes, partly to enable its members to hold their own against the efforts of other European traders (French, Dutch, and Portu- guese), The East India Company was allowed to raise and maintain a considerable army, the control of which was entirely in its own hands. Very naturally, the Company was drawn into the constant rivahies and quarrels of the native rulers, some of whom were shrewd enough to see the advantage of enlisting its valuable aid on their side. In the year 1765, the Company became, m effect, a great territorial power by the grant, from the Great Mogul, of the Diwani. or right of collecting taxes nominally due to that feeble ruler, and of administering justice, in Beng^, including Bihar and Orissa. Beginning of Crown Government in India Hitherto the direct action of the Crown in India had been confined to the establishment of courts of justice for the British settlers, a personal rather than a territorial exercise of authority ; but the acquisition of the Diwani was quickly followed by a period in which the Crown, though still declining to undertake BRITISH INDIA 83 ^t«S f^°^°i *"• ^^^' ^*«d as a controlling Sfti^^^*^ *"*^T*y °^*'" *^^ Company'. admS ^Ch S^ J^' ^"^ ^*' under V provisos !i w- 1 l^^'J? ^ Regulating Act ' of 1773 wS S^lS^'^ ? Govemor-GenerS at Calcutta; S'c^lS of the three former ' Presidencies ' of Calcutta Ifodra^ «id Bombay with a Council to advise h^ n^o^,; m executive but m legislative matters, and a Supreme ^bTcte '^d'^^t' '"^^^^^^ ^"^*^*^° over bS suDjects, and, m some cases, natives; while the ^t: °' Pj^^tors of the Company was mide to rep^ tL^^oi^t^t^' """^" "^ '^ Treasury an3S: The Boaso of Control The scheme of 1773 was soon superseded by a scheme ^^arf' o??/f ?i 1784, whichTstablishe^a Te^ Board of Control m London, consisting of X ChanceUor of the Exchequer, a Secretary of State ^d ?S1 °^! ^P"^ Comicillors. of wS one b^^e President of the Board of Control.' and. viSS Mm^r for Lidia. Under this sch;me, ihTS^^ ?lm^?^ °^ ^P"^*°" ^^ sharehokte T^ £S??/n''"f greatiy reduced, while those of ^ Court of D^ector? and the Company's officials in IndS were placed mider the close su^ion of thTs?^ «f Control and the Govemor^General res«ctS ^l^T^^. '^'^' ^ ^*^*' 'aP^y losing iteS mercial character, as the actual caiiduct of tide pSd mto private hands, and as rapidly acq^^Se ^^%r^' * government de^ent^with^ vS responsibihties and machinery, fa the year iSirit was deprived of its trade monopoly (except as to tli ^ trade with China), though menLStestUl req^^ tai^^llV^^^^^- Its charter was reS bv tt?f'«^* ^^ ?*** *""^*°^ possessions whidi; by that time, the Company had acquired, were de- H'i': . « i- vji : I '■< : \ '!! «4 TERRITORIES OF THE EMPIRE (eantd.) finitely declared by it to be held in trust for the Crown ; and Its commercjal monopoly and control over private ^"If'^rT^S *^^^e^- On the renewal of the Com- P«ny s Charter m 1853. the Crown encroached further on Ae mdcpendence and influence of the Company, by bnngmg the enormous official patronage it had hitherto exercised, under Regulations of the Board of * S?7? ' *°? ^^ ^^ ^*^P ^^s taken when, after the suppression of the native risings known ks the Mutmy, a great Act of Parliament of the year i8s8 detotely brought the Company's territorik wJihS the dommions of the Crown, and set up a schen^ of government for British India, which, with s^me rr^ *»?'^'^*'°°*' ^ ^ ^°«^ at ^ present jay. Of this scheme we must now proceed to give a brief account.^ e »« • The Modern System By the Government of India Act of 1858, the whole Of the temtones formerly under the control of the East India Company were vested in the .Crown ; and Sff^VS^ri'^*?^^ ^^^^^' ^y treaty or contract, of "Die East India Company, as well as of the old ' Board sL?^i^ f S^^ ^' * ^^^y ^'^t^^ Secretary of State for India, who is the constitutional adviser of the Crown m all matters of Indian government, is always a member of the Ministry of the day and acts as the head of the India Office. *"*« «ay, ana acts Council of India To assist him in his arduous and responsible duties was created the Council of India, consisting of from ten to fourteen salaried members, who are appointed by the Secretary of State, but cannot be dismissed ^ J^J°y^"^'^'^ machinery fw India has recently been re enacted by the Government of India Act of 1915. ^ ^~ " GOVERNMENT IN I>DIA g. n^Al^fnfS.^'^^^^^^ They may by both HouS^ Of .h ^ 'enjovable on an AdS wU holSXquen7s^4,"/S^Z:n°^^^^^ have served the Crown or at 1^,/^ -S^Ji °"*^ °*"s* India, for a periodT^t L^L * ^^^^' ^ British within the to ^e 4fo,iThi^" ^'^"' ^nninating matteroffact.sui;^Lj?i^yS^SeEX^^^ ^^ I are ex-Ihdian officialQ «/ tl "^^r^°^^ of the G)uncil hold Office ^rZlT^rL^l«P^«- They extended to twelve bv MW- '^?^!. *^ ™»y •» Stat. laid betel^lS^ Ae"dt^^T.K°' CouncU are usuaUv oresidAH ««/ k **"^8^ o^ the Jj^tate. wl«, .«, L-:^-' ^Sl t a^^SS Powers of tbe Secretary op State CoS^ca^'^^^^Slt" S^f^.^ -salt "^ a majority of vites h VJ^^Z' *^*~P* j° cases where orders of the Council Li^ ^^'""^ ^® «^^s. AU of theSeciSLytf s4e^ I^^^^^ ?° ?."* ^ t^^ name the ViceroylSSid^S^Z^?^"'*;^^^'" he Pfeases,i;dthho?Snt^rsli^*^ ' K'" •^- " the Council ; and auSte a? l??'* despatches from absence reqdre hisTppro^v^'in*^.^^^^^ '^"« ^ ^ * Government in India i f ,1; ill II «6 TERRITORIES OF THE EMPIRE (eontd.) highly undesirable, to attempt to rule a vast country like India from London, thousands of miles awav • and. m fact, most of the rcsponsibi'ity for that difficult ajidlabonous duty falls upon the representatives of the Crown m India itself, viz. the Viceroy. Governors, Lieutoiant-Govemors, and other administrative head? and their Councils, and on the various ranks of that invaluable body of officials, the Indian Civil Servi^ The Governor-General The Viceroy, or Governor-General, the supreme representative of the Crown in India, was formerly connected ma soecial way with the province of Bengal, havmg his headquarters at Calcutta, its capital, the premier of the old three ' Presidencies.' But at the commencement of the present reign, by a significant ?f iT.°\v *®' .^^ Viceroy's seat was transferred to Delhi, the capital of the ancient empire of the Mopols which occupies a central position in Northern ii^dia! There, and at Sunla, the Viceroy holds ^s courfc, which IS the centre of British power, civil and military, in India ; and he is the supreme head both of tbe military and the ciyU forces, throughout the territories of BntKh India. The Viceroy is appointed directly by the Crowii. on the advice of the Cabinet as a whole, and usujiJly holds office for five years. Governor-General in Council To assist him in his countless duties, the Viceroy is provided wi^ an Executive Council, consisting of five or SIX high officials, of whom three, at least, must have been in the service of the Crown in India for at least ten years, and one (the ' Legal Member ') must be a hamster or advocate of at least five years' standing U a mihtary officer is appointed a member of th^ CouncU, he cannot hold any military command in India durmg his membership ; but there would appear GOVERNMENT IN INDIA |. to ^'Z^lt^'S^^^^^.f^jy command ol the CFown wten h^T * " ** military seryice Council; and the^«™„, Um Viceroy's Executive tbe Exea..ive^ST"ts'is*:/^" " ""'" ordinary member ri^ f- ' * ^^*^' *" extra- Secretary of Stete««H K ^.^^"^ Y'^'^y- l*"* by the on h^'iS^^S/adom^^^^ "^^y' whereby, in his iud«ne;f ?? ^ ^^**^* ^^ measure or inte^kts of Bn^S^SL ^an^^^ tranquillity. The Legislative Council ".d forXtM^ • cjntunr the„ has also been, i„ passing of laws • h^»I?^ with the discussion and Si «t.^^»*tive Viceroy's ExecnH^J^!^^ -, ?l® members of the '-xssg:s'nSrs^^d'"b*t^^"j'' t* "mosS^s^Et^* J^P"?"" o' "ominations of enlareed n^ f ' *''™P?«n "d native, was graduaUv :;ii':SMH ?^l i- I K 88 TERRITORIES OF THE EMPIRE (conli.) to the Legidative CouncU. which may now include as many as sixUr members, of whom not more than a half may be Crown officials. Moreover, in accordance with the rule of the British House of Con^^^ ^^i **L*^ Legislative CouncU accepting dowi W^'"^*:?^*^^^**- ^cse proNdsiSns ha^ been fuUy acted upon ; and the Viceroy's Legislative the naemljw of the Executive. Of these, twenty^ven are elected by various districts and bodies representing ujpjjtant mterests; whilst there are twenty^ight j^Ti\u^^ *'^. °o°-«fficial. nominee m4b?rs. Under these provisions, the Legislative CouncU of Lidia b^fair to become, like the British Parliament, a real exponent of pubhc opinion. But it must be carefully remembered that it fa not, lUce the British Parliament, an admmistrative, but a purely legislative bodv « e ifcs powers are limited sti?ctly^o aT proj^^'^d discus^ of legislative measures; and, even of these Sntf ^?^ i^*'***" "^^ °^j~** (^"^ as revenue! rehgion, disciphne or maintenance of the army, or foreign relations) can be introduced without the ^vious sanction of tiie Viceroy, who may. however, with the approval of the Secretary of State id Parlia- Snf!!? *?"^ *°' ^ discussion in the Legislative Council of the Government financial statement, and other matters of pubUc interest. t Acts of the Governor-General's Legislative Council kJ^ ^^^ I^ssed by the Legislative CouncU are toiding throughout the whole of British India, and m^ be bmdmg on Bntish subjects and officials even in the feudatory states (p. 96). as weU as on Indianl^Sectl of the Crown anywhere ; but they require, of coii^ ti^e assent of the Crown, which fa gi?en or wSd by the. Viceroy or Secretary of Stote in mamier ex- GOVERNMENT IN INDIA «« plained in describing the le/rislationn/ TV. • . ^ they conflict with any Act S SI't '"^'^o.^er, that if extending to British tte^LP^?"."^ P^Iiament their scope is limited by the exS^Sn?! ^" ""^'^ ' ^^« on the Viceroy, on c^Snf «/ °*^I~^e'«>°fent!d Oidinances. vihd fo^sbf mo„J? «™e/?ency, of issuing ance by the C^oJ^ In Z^^i^^^'^'lK^^^- Council alone. **^^*^ °' hw Executive The Indian Civil Service shoulders of the CovenStSl riv?i q '^*' "Po° the men recruited by strS^t:^]^^ ^*^«^' » body of the most highl/SicatLnf *'*'''* ^'^^^tton from Kingdom and wTsIh ITIf'T ?! ^"^ United of their lives to the s^^ S T^h- """^ V^^ ^^* years to the responsible d^ of io^;!°? ^^« °»»y rise or of acting as the heads o/SI^*^ huge provinces, headquartCTs or^en^f! °^<^«Partments of Stated Vif^erV or t^sS^S^^J^te^" ^.^""^^ °^ *h« rules of promotion ^^X,i • There are no ririd espedaUy by the Pr^Si'?^^'^^ by superiors trators, in 4ose iSST^d S^ISf ''".*°^ ^^»- lies the responsibihtv of ^* " *^**^ o* *be Viceroy Needless to'^y tte^^^S^^^^ the servi^! government of India ^e n?f ^1 * .^^° *=*^ on the tasks of defending Sirc^°*^"f"^ *? ?^ eleient^ and maintaining ^orderT^en^ri^ ^"'"^ ***^ in the ordinary iense of S^Z^ of dispensing justia^ ,latter task is of^up^e^e ^.^rf.^^ hke India, which suffered Z^^^"^ ^n a country and oppre^ion and thil ^ t?^^ ^o™ coiruptioi admirSle jn^^tt^^'V" u^^^y°'^^^^d the higher^ poSs .^^^^^ ^.^^^,i?^^ (P- 3o6). appomted ' directly by the Secretaiy of State from ,l! l^i , ri'h l:i !'■ I;' h I, III t! 90 TERRITORIES OF THE EBfPIRE (cMid.) JnHj'*"*^'if* *^y?»H' *" *^«^ United Kinedom or India itseM, or from Indian officials of judicial ex- perience, from whose decisions there Ues an appeal to the supreme tribunal of the Empire, the JudUdal (p. «93). But, beyond these tasks, the Civil Servants of India are concerned with dev. loping the resources of the country Its mines, forests, and rivers, with averting drought and famine by the extension of the water-supply, vnih faciUtating intercourse by means of railwaj^. with reUeving distress caused by famines and catastrophes which cannot be averted, and with prcvidmg education for the teeming miUions of India tL^!!! T7u ^f^'^^y naturally caU in, if occasion requu-es it, the temporary assistance of the outside f^E! j' ?"^ *^®y "* assisted in the clerical and subordinate parts of their work by a Provincial or Uncovejianted Civil Service, recruit^ ahnost entirely r^ t?e,.jatives of India. But the burden and responsibihty rest chiefly, it must again be said, on the members of the Covenanted Civil Service, whose services have done so much to render British rule in India not merely possible, but respected and trusted. It would be wrong, however, to allow the reader to c^rry away the impression that the government of India, even m India itself, is centraUzed in the court of the ViCCToy at Delhi or Simla. India is not a country of one nation, but of many nations; and the old racial and pohtical divisions, which existed before the country ^me under British rule, have not been obhterated. These divisions are known generally as provinces ; but. in fact, they are of different degrees of importance and civiUzation. and have different forms 01 government under the supervision of the Viceroy. The Provinces of India . tZ**^ J^^*^®?* ^"*^ ^°^^ important are the three original Fresidenaes/ now the provinces of Madras, Bombay, GOVERNHENT IN INTTA and the Comnundw-^-cL?'^* experience inlnSZ ^nce. a8 well as a iSskLvl r/'^^^f"* i° the^t' fifty members ' annoiS!? ® Council not exce#J««- ^ those whici ^^C^e ^e^^^ ^ «° Hn^ SSSSf ViceroyabovedSri^^^fe^ve Coundl o^K w the provincial au Wtifa J^ 2: ^"* '* » the dut^ Wy, ai^d to keeXi !' 3 °„«^ .«>; orders of Se " going on. And the l^«?^"y informed of what ^islative Coundb whir?^^H°° °' the provindal within the liniUs of th^^J!: °' ^«^. only bS^*' assent of the Vicm,y ^ w!S ^^^l"^' '«quirS ttf • the province; anH^i. LL"/! ?^ *^« Governor of «»»^y with Im^^ AclJ rj'^p^V* is inconsist^t?„ot fijicts with tteArtHnd f^?^^^*' »>"* a^so if ?t cLv^n^"**^- They ie tSTV?^^ "^'^ ^P^ wemors, assisted in «.« i-'^^^hc Viceroy and thi by Legislative ^d (S o^« "^"^^"^^ °' their offi^ ^cils; and tte JSiWs S^/J ^^*) ^^ecuti^ elected under Rem.u*;^^. i'.J^Y '^ nominatflH «, "^ «*«. least one-third m.ie* C ^''""a* m ^* fi«««» appear toW^ T? ^ °On-official.« (" elected in «^?^ *<» *»« natives o'l-^-'v' ^f^and Oudh t. -^s&r^Sr ' °°'-°^ ^^: ^^i i I I ill *'. 8| m v 9» TERRITORIES OP THE EMPIRE j(eoHii.) laJS? ff®!*"?* °' A«aro, the Central Provinces, the North-West Frontier Province, BUuchistan. Delhi, Almor-Merwara, Cooig, the Andaman and Nicobar Wands, and others, are under the administration ol ca»icl Commissioners, also appointed by the Viceroy • M»d new province of their type may be created frtfm time to tmae by the Governor-General in Council, with Legislative Councils of not more than thirty members nommated Of representative. As a matter of fact at present only the Legislative Councib of Assam and the Central Provinces have elected members.* In these provmces, a^, it is the duty of the Commissioner to keep ihe Vicftrov thoroughly informed of the pro- gress of affairs, to obey his instructions, and, generally to carnr out his poUcy. For, it must be carefully remembered, the Government of India is not, like the Govenunent of Canada or Australia, a federal Govern- ment, but a single government which, as a matter of convenience, entrusts large powers to local authorities, but which reserves the right to overrule those authori- ties when It sees fit to do so. Principlbs of British Indian Government Before leaving the subject of British India, it may be weU to call attention to three rules affecting the government of that dependency, which are of the first importMice for the welfare of the Indian peoples, and which have been laid down by Parliament for the gmdance of those to whom the government of India is entrusted. Finance The first relates to the subject of Indian finance. For centunes before the estabUshment of British rule m India, the native populations had been ground under Indi?*S5i*l£f,!!L'"T ^L^' -^~»' «4 (13 native, of intojK^traIPtoviiicei.aa 1(9 elected. ioofficiaUand3ii(m.official GOVERNMENT m INDIA ^^'^i^^SS.^fte^J!' -^<^ wrung t^ |s. that the revenueso/^Britiah T??^*^ «teiiniatriSon for the government of LMn^'^S.?! *° ^ »PP»W g^Jtraiy dismi^ 'sM MS ™ ^'^^ ' S5^"^^* ^^«n^ year. iViTtn ^^T *^*^ ^Perial ' Indian Budget/ aathJi. ^ '*««d that the not excite as much^t?,^* accounts are callS^ do2 House of ComSons ;"i^'S^ ^* £?."W ia'STBrfS «n the upright and wise admS?? beUef which previOb ment of India. rendlj^fiSS?"'*^*^"" o^ «»e Go v^J jmwilling to s^"1S Si^^^if » °' P«&t the study of a^ctJt ««?! *"« >bour necessary for tf the sUghtesrTuspkS? T^"^^ ^^^eT^B^, there are many memhS^ o? fi^e* P««^*ices ani who would spie no^s to^^fr/^ ^"^' and exact reparation -^i® ^ *^« ^cts to light that the Secretary of'sSTf^Ti.^^^** have shSwn yf^real senSTor thelffic St^o ^ ^ responsi^ of India. "*® efficient conduct of the afiaire Responsibility of Officials ^B^dt T^^^J-^^Cro^ Officials throughout the rest of ffe pif' -^ Crown offic^ ajid civiUy, for their acts don K^ ^^ criminaUy theu- official duties^d in ?i?"^ ^.^ ^ the conduct of true that the vSSo^ t£ r """ P""^*^ capacity ft ^ ?i Executive cSiS ^i^:f '"??' and thememb^S jurisdiction of any fa^j^^^^^t subject to the oS ^ their public capS^'^oSf ^"^ '^'..^^^ *^t1S,e •^ «"y. nor are they, nor any VI li ^h Ml K,[ m 1 1 i I 94 TERRITORIES OF THE EMPIRE (owtf .) members of sach High Courts, liable to be arrested or imprisoned in any proceeding in such High Courts, nor are they liable to any original criminal jurisdiction of such High Courts, except for treason or felony. Moreover, any High Court must accept as justified any act done under written orders of the Governor- General in Council (pp. 86-7), except as regards Euro- pean British subjects. But, subject to these necessary exceptions, any offidal committing any offence against any person under his authority is liable to prosecution in the Indian High Courts, as well as in the EngUsh High Court after his retivja to Great Britain ; while there is a special list of misdemeanours which cover all derelictions of duty by officials.* No Government which was not firmly determined to rest its authority on justice and uprightness could possibly recognize such a rule in a country Uke India, where personal authority is the chief guarantee of the safety of the State. It may well be doubted whether the Indian peasant realizes the nature of the powerful protection which this important rule throws over him ; but he cannot fail to reaUze, in a dim way, that the Power which controls his Ufe is as just as it is strong, and that corruption and oppression are not features of the British Raj. Employment of Indian Army Thirdly, it is carefully provided by the Government of India Act that, while it is necessary for the tran- quiUity and defence of India that a standing army should be maintained out of her revenues, this army shall be used neither to gratify the ambitfon of an enterprising Viceroy, nor to enable the Imperial Government to gamble in European politics. It is *■ One of the most stringent and wholesome of these ^'^f it it a penal offence for any hi^er official or revenue collector to be concerned in trade in India, otherwise than as a member of a loint- itock company. ' GOVERNMENT IN INDIA H% of the warKke^ o?n'o^ on military idlLI^ like nothing better^' to^^ ^^' ^^o would quest under milita^ead^ T" *.°° * "^^^ of con- resourcesof sdenw iff mo*?''"P??^ ^«» ^ the Jfmy in India SSsts^^^f^ ^<^' «»e British Miny (p. 102), parflvofnfl8,V^.®®"*»*b regular recniitSd. iid iS^J Eu^^ '1^***^' voluntority European voluntee?^ SdS^in'^l!?' ^i? ^^^ «f only be used outside fodfa^^ S^^' ^"* ^* ^ Imperial Parliament • l^diT). ^^ aPProval of the in cases of real «n;r«n J Ir"^** "^ "^ «oept cost of its equipmtot fy .^°'«over, though the natuiaUy, l^mihTL^ev^'Tf^'f. « ^^ia is? maintaining IndiaJ ^^ps S^'i"?^' ^^ «>st of ances in Eurooe is hn^fl i?°f ^^ ^are appear- towhich iZ^^o^z''i^^^r''t^-<^^. fegalconsequenceof thesefartsS^SofVk ^ "^Portant Army does not come uSa thVi^* ^ °**^^« I«wn. and vS;"^;* yff ^*^ ^. ^ British ment under th^SS o^tt^ r*.? P?*^*" Govern- There is a «>nsiderS?e^tiv^!5L^^^ f °'«^ Office; and largely the creata\,S^Sf SSf *° S^P*' '^^ »>y, h^dofwhomstandftoeSirL?"^'^ °®^«' ** the ^ troops of the regulaffi^Allli?? * '^"^ n«tt»ber By virtue of ce^' SSsL^^"? quartered there. Turkey, consu^°urt?S t^°°^ °' ^^^ies with « Egypt for the proteSon^?»^X« be«n set up European residents fbuT^Jhe ^rJ"]^"^. ^^ °«»e' present being carried out i« ¥^ * ?* ^^^ 'e^onns at of friuSrS^TF^^'^^l^^^ ti;e guidance render possible the esSb^ltS' P^°*»»Wy. soon ^em for natives ^ fcS^ °lf J^^°^ indicia! been a certain num^ n?^ ' ^^^' ^«re have cautiously introSSSd i„?^ ^7"^ institutions fluence, asweUas^^t^^*^* "^^^ British in- ?^t ; but i t wo^ b^ b^n^lh"^ °* ^?^ »^^«^- book to go into details ^thS°iw* province of this to them^wiU be^Je S^eS^P^^i;**' though reference however, be men Wd^5.iPc 3?>). It should, conquered from thr^a^*;?"!,^?^?*' ^^ch was Egyptian troops, is h,^^-« r^?, ^ ^"^^^ and that of Egypt OTo^^ii^*"?]* ^f^^X ^* of «t ^STflaSf tahty. It has been fomid more easy to adart it i^2 P^at, 1j the perfamance <7topH^^^ ;»s5^--»^,a\sttijs Origin of the Cabinet ^te o, the ayil vC. S^pS^bl^l T^Us n «ulh.smuned«tesuccessors*iadbeenahb^^J t*2 ungm nave survived in . Zv^J' "*" °*« «y«em Certainly the W^1ea«» jJ^^T °?*^«J fc^ P<>w«r of thePrii7JSS^^/« ^^^^ the decline in harder tasks than thVTiJSlS^SSf^^F^'^^^'^ body. But Charles II Wmi1?"^°'» °^ *o official frivolous and indiffer«t W^r^ v^\ *^^«' ^» succewor was stupid aTd toted ^w,n' ^'°)^*' »»<* though an able and ev^ hriu-l Wilham of Orange, fixed on for^ r!SL ?i?^*,"^*^' had his SSd Anne was w^in^i^^lJf ^<^°«estic probl«S! W little ofEnSmd^^c^^'^' ^ *°^ his ion trast with this S^^4 ^ft^'v.^^' ^° «>»- deepinthenrindsof^^i^„¥*^,.^^J^ty. there lay J , with affection, a m«^S^^g^'t*^"«V"V"^*°^^«^^ >«owed byl peSd^^wL ; S! .^^^' and grandeur of CrwiweU's^?? ?^ J^"^. *^^ P^^e^ respected, as never S- i„^J ^ i?^^ ^^S^and Parliament then, and ^Jt T'S* 5 ^^»to C?.^'2^*"^^^ey2a *^ *^« House of ^ectly; and^hld^ed 1lh*r,,^°^S" 2"^' P^Iiament which CromiiS' .yh^ther the • Rump • himself. was&,^r^;2*o^:f^^^^ ^~°^^^" m the country it is Sm^'? *® ^^^ unpopular. could truly dLi t^t^t^ *? ^.^ ' ^^ Crorn^ protest a^7?^trpi^^J*^ ?\^ ^^° 5^^«d ^ befallen the less ambitious^SLn^ 'i'^H ^**« had •ecureindirect control of thtf«P* °^ Parliament to the Council of S^ein^^t^r^"^^^ by nominating tector. in his schem2^ ol 1 ^^^T^ **"* ^"^ ^^ have it. and his stro^ Lji^f^*^*'"' would not Nevertheless, the claiSfof^^^-^-g^^^^ II r nil 104 THE ntPBRUL CABINET was sound in essence, if mistaken in lonn ; and. as often happens, was to be achieved by indirect means when direct means had f^dled. MiNISTlHS IN PaSLIAMENT For Charles II, who, as he expressed it himseU, was determined not to 'set oat on Us travels again,' soon found that it was easier and safer to cajole and flatter Parliament than to override it ; and, as he had none of those moral scruples which were the redeeming features in the otherwise unheroic character of his father, he proceeded to employ confidential agents to * influence ' the votes of its members. At first, he allowed his old-fashioned advisers, such as Clarendon and Middlesex, the Lord Chancellor and Lord Treasurer, to expound their policy laboriously at the meetings of the Pdvy Council, whilst his secret agents, whose names are only known from unofficial sources, such as diaries and Court gossip, realfy' pulled the strings, and worked up a majority for the Qx>wn in the House of Commons. Sometimes these agents were not even members of the House, but did their work in the lobbies and on the staircases at Westminster. Obviously, however, they b'^d more chance of succesa if they had access to the House itself, and could thus raise their voices in debate, albeit with caution, in &vour of the Crown's wishes. So successful were they, in some cases, that the King actually rewarded them with admission to the Privy Council itself ; to the disgust of Ministers of the older typd, who saw themselves superseded by imofficial interlopers, who really enjoyed that confidence which tltt King denied to his official advisers. Unpopularity of System * This was a very bad land of government ; and it is satisfactory to know, that both William of Orange EARLY HISTORY ,05 of Orange ;rouMnev«i^^w^*^>i- WilUaii toinchoosi^thSi '^''^*"' ** ** <*i<^**tod ' The Act OF Sbttleiont In &ct/ Parliament aft#>r nn« «- *. Thi» prortsion? SS^ftlln*'* 5°"2 "' Commons. rendeiSd UbtoetmiMnn^* «>forced. woujd bayt « «y rate, hTvl S^iw''*the"ffi^.„", '«»^' "ember, torn the Ho^ ftU^^^^" "• TBb Place Acts Happily, as it became dear thaf roWi.^i. of Commons accenting a «i-^ mem^r of the House dected, or .elected, to ^'ifo*^' 5f ^»^' This compromise wifh n^r.*^Z . "^ °* Commons. which the'^^^'i^rtaTtlTtrSL^uS^^^^^ °^ merely of pensioners^t P WeXt^^^i ,-* li ,1 f i ) ! ! ■ I • H n6 TRB mPBKIAL CABINET (with a few excqrtiont), remtint in force at the pretest day at a foundation principle of the Cabinet Syttem ; and the ruk of exchidon hat been extended to penoni holding Government contracto, to the judget. and to a few other dattet of offidalt. It doet not, however, apply to the holdert of naval or military committioat ; though officert on active lervice may be forbidden to take any prominent part in politict. Nor doet it, corioutly enout^, extend to the to-called ' Parlia- mentary ' Under-seicretariet of State, becauie thete pertont, though they receive tahuiet from the Ex- chequer, do not hold office directly under or from the Crown; being appointed by their official chieft. The Pasty Systbii For at hat been hinted, the opposition to the appearance of Ministers of the Crown in the House of Commons was doomed to defeat. The Revolution of 1688 practically placed the internal government of the country in the hands of a few leading states- men, from whote ranks the King or Queen, whether he or the liked it or not, was in practice obliged to choose the Crown's Ministers, because no one outside had the necessary knowledge and authority. But these states- men (such as Danby, Somers, Nottingham, Bancroft, Halifax, and Clarendon), though they rehictantly combined to offer the crown to William, were really divided in sentiment between the old royalist and the Parliamentarian ideas; and, when it became clear that, on the death of Queen Anne without chiljiju. the duty of choosing a successor would again fall upon Parliamtot. the two parties. Jacobites (or supporters of the • Old Pretender ') ana Hanoverians (or favourers of tiie new Hanoverian line), began rapidly to organize their forces in the country for the coming struggle, and thus laid the fotmdation of the modem Party EARLY HISTORY -^ Syttam, on which the Cabin** ,-* -^ ^ to(p- 4). which^S^ 1 c"'^'"ti\r?* '^"^ Mne. But the Tacobitl. !S % • ^ ^ **« Hanoverian «»^ by the narrowett m^ if*^ ®' ^^^i •»<* George II were wmiielliS^^J'*"*^'' ^«*»?« I «id tf»e line of Jamwfi^ I? Jf?^i°'*^?*°'««tore Gyp n e^edSly. that Jhe rJ^l ?* '««» <>' definitelv wor^^»l j ^* Cabinet System was body; but 'ware To^?' iT^, „^„>* ^^^ any- the accession of Georw III ^ i? V ^J^^' "°«J that the Tories beoS! IvL^ i?'^^^^-**^"* King, of tte Hanov^San iS?. S^ ^i^^r^.'^PP^^S who hated the oSrfnet S^^^ ?*?' ^*°'«e I". S personal rule cSefly&^^i^,?^^ *o '«*«« Wa^le'i work. ^ "^ °' *^«» to destroy Appearance of New Parties *»appeared, and the Torv^t?,', P*^H government guidance of Ktt hZJm?J^^;'^^ *« masculine Party SyrteiTas tSfwS^ ^^ *» "» ^'*«« "d o I < • t' ■ I j ■ J r Jli! .1 * ■! 1 i t i 1' I J 168 THE IMPERIAL CABINET Radicals la the first half of the nineteenth century, the fierce names of ' Tory ' and ' Whig ' (originally terms of abuse) were replaced by the milder titles of 'Con- servative' and 'Liberal'; and the change marked the growth of a calmer feeling in politics, whilst the appearance of a third, or ' Radical ' party, though it ultimately coalesced ^th the Liberals, showed that the new class of intelligent artizans created by the industrial revolution in the North, was determined to take its share in the government of the Empire. Home Rulers The growth of Irish feeling which demanded the repeal of the Act of Union of 1800 (p. 59), gave rise to a fourth or ' Home Rule ' party in the last half of the nineteenth century; though this can hardly be reckoned as part of the Cabinet Systehi, because its meihbers steadily refused to accept office &om the Crown, even after their policy had been made part of their own programme by the official leaders of the Liberal party. The chief result, in fact, of this last step, so far as the Party System was concerned, was to cause a split in the Liberal ranks, and throw over many of the more sedate members of that party into the ranks of the Conservative party, which thereupon assumed the more sectarian title of ' Unionist.' * Labour On the other hand, the older type of Radical, daH ,' from the beginning of the nineteenth century, tne disciple of Bentham and Mill, began to merge indis- tinguishably in the Liberal ranks, while the newer type of artizan politician began to assume the designa- ^ There was a temporary intermediate stage known as ' Liberal UaiMnism,' oa which some of the emigrants rested for a while. THE PARTY SYSTEM ,09 important g, m return for the immunity b^^^*^ in I ' '11 .! 1X6 THE IMPERIAL CABINET OT criticisin guaranteed him by the maxim that ' the King can do no wrong/ places the whole of the executive madbinery of the Crown, and, with the rare exceptions bef orealluded to (pp. 43-45), the whole of the vast powers and prerogatives of tiie Crown, described in Chapter I, at the disposal of the Cabinet as a whole. This result was not attained without a sharp struggle. Domestic affairs, at any rate secular affairs, and the political patronage connected with them, were early secured by the Cabinet. ' As for your scou-..virels of t' : 'ouse of Commons,' said George II to Walpole, ' you may do as you please.' But His Majesty demurred to allowing his Ministers any voice in the management of navy or army ; aifd it was only by slow degrees that Cabinet control in these quarters was secured. The management of foreign affairs,* and the disposal of the higher ecclesiastioil patronage of the Crown (pp. 322-323), were for long subjects of contest ; till the middle of ti^e nineteenth century, the monarch was reluctant to relinquish personal authority in these directions. Resulting Popularity of the Crown We need not repeat the discussion attempted in a former part of this book (pp. 40-45), as to the effect of this rule of the Cabinet System on the personal position of the King and the character of the monarchy. It is sufficient to point out here that, so far from weaken- ing the hold of the Crown on the affections and loyalty of its subjects, it has immensely increased it. In fact, it is hardly going too far to say that, but for its adoption, the monarchy would have long ago ceased to exist. George I and George II were aliens who aroused no enthusiasm in the hearts of their British *■ It ^nill, oi course, be observed, that the mudi-debated qaestion of ' secret diplomacy ' is sot a qti«tion between the King and Ministers, bnt between Ministers and Parliament. This qnestion is dealt with later (pp. 235-336). S • ii THE CABINET SYSTEM „x J«M«cts, and whose distant ties nf ki««^ -^i. x^ English Royal House w^m!!^ of blood with the h^tary tevahv^ IJfJ^!! /^°i.*° *^*^en the But despite hir^rso;,^^^ ^.'^^^oni ruler rapidly lost his popularity WtemnH^f /^~'?®. per«,nal will u^nEP^lZTS^fi^^P'^,^^ aU^ittt^/^anl £€»y^^^-"^^ vSa IV were t^ J^^ f ^f °^ ^^'Se IV and The 'Ministry* ««^^ 'Ministry' includes the whole of the Cmv^ offiaals ' responsible to Parhament • .'t X £ °^ «agn or only the MmistfT^ally XSe? T. ? I ' 'if ^ ;■' ;/ ; I ' I ■; < I i'M L ii:f 112 THE IMPERIAL CABINET in change of that department alone resigns ; unless his colleagues choose to identify themselves with him. But if the action (or inaction) condemned by the House was the result of the deliberate policy of the Calnnet, then the whole Ministry tenders its resignation. It is this liability to loss of office on political grounds which distinguishes all the members of the ' Ministry * from the great mass of the civil servants of the Crown ; though in legal position all, or nearly all, Ministers and non-political officials alike, stand on the same footing. With the rare exceptions of the judges (p. 13) and a very few other officials of exceptional importance, such as the Comptroller and Auditor General, who hold their offices during j^opd behaviour {quam diu bene se gesserini),^ all the servants of the Crown hold their offices during the Crown's pleasure {dum bene plqcito), and can, in theory, be dismissed at a moment's notice, without reason assigned. In substance, the great majority of civil servants are, as has bewi said, recruited by a system of examination, and (unless the contrary is distinctly specified at the time of their appointment), . hold their position in the Government service for life, or until they reach the age limit or resign. They are thus known, though not with legal accuracy, as the ' permanent ' civil service, and, as has been said, stand in sharp contrast with the members of the Ministry, who are liable to loss of office on political grounds. Again, it should be pointed out, that this liability to resign is not a legal obligation; though, doubtless, an official who refused to resign could be r'"jmissed by the Crown if he remained obstinate. In fact, there is one well-known case in which a former King sent for a Minister's ' seals of office,' without giving him an opportimity to resign; but this action was universally condemned, as would be any attempt by the King, except in the clearest circumstances, to » A few (e.g. the members of the Cduncil of Indi"^ hold for a fixed period of yean, subjact, of ooorse, to good be' ,ur. NATURE OF THE CABINET 1x3 eos^lSi^^ rth^-'S'S^^^-t to The 'Cabinet' n^u- ^ ^ leaxure in tne nature and worlc nt ♦!,« bthe firet place, the Cabinet is!^ S been «dd a body whoUy unrecognized by law if fe „T^ described as an ' mior^^oZi^' oi%£ ^ Cotmcil'; and tliere is someS to ite ^^^ nature to ^sti^ this descriptionf For tlTSb^ SceTe-^^cT^^tth^kSS FoRicAi. Meetings of the Privy Codkcb. . A meeting of the Privy CouncU held bv th, Vi„, SeSd nt'Cr ff'^Vr'^ asae-^Wy^ne £"rf ment is concerned with the businei tolKb^; ; I 1 ; :h jjH ;:•( ':f I: ■ \ : r. I i J" THE IMPERIAL CABINET on^e of the great Officers of State (p. 247), and any other member of the Council (geneiSly a member of Parhament or of the Royal HoSehold).^ The pre^n^ of these peis^ is required for the King's formal sancaon to Proclamations and Orders previously approved by ihe Cabinet, or. in minor matteS^ by a Mmister m charge of a department. The reily essential person on such occasions is the Clerk of the Counol. who enrols in accurate form on the Minutes of the Privy Council, and identifies with his signature the various documents approved. Thus it wiU be seen that. If the Cabinet isacommittee of thePrivy Council It IS a committee which acts with complete inde- pendence of Its parent body. Moreover, it is not. as a real committee of Council would be. appointed, even formally, by the Priw ttTwUV^J^'^^^u It is a body form^S^ tte Pnme A^ster. t.e. the person entrusted by His S?^- ^*^ ^^ ^'^ ?^ ^^"^S. not a CabinS! but a Mimstry. who. out of the persons whom he select^ for recommendataon to the King for appointment to ™ous Crown offices, further sekcts a ffiSn^bS M,t TM^^^^'".?• Z° *^°"^t' i° submitting his if^ rt'f"^!^^'^' ^^ ^"^^ ^^^^^ indicates^also h^s choice of a Cabinet ; but, in strictness, the King though he can. at least nominally, refuse to appoSS fi.S^S?' ^''^\'^^ ^ ^^'^^' o' even to^^ke mm a Pnvy Councillor, cannot object to the inclu- sion of any person in the Cabinet, which is as was '^\^^S\^ ^y ^^°^ to ^^ law He is Z PriwVo^ striking his name off the R^sJTof tte Privy Counal. m effect exclude even an^xistinc £'7h^.°^''?"' *?f the Cabinet ; because it^oSf ^ a breach of wnfidence for the other members of the Cabinet to talk State secrets to an outsider. But that ^li fi! ^' ^^^^ ?^^^' ^^^ wo^^'d probably cause the resignation of the Prime Minister • becau^ It would show that the King had ceased to liustlSr THE PREMIER AND THE CABINET 1x5 The Prime Minister The Prime Minister is then reallir ♦!,- _x person, both in the maldn?a«r^^' ?® ""POrtant Cabinet ; for he not ^ L^ts i^°Si"^ 1 * summons, not through Se Qerk of thf ^^m' ?"* through his 0.^ priU^;?iy xJS^tSf of . 5?* Ma]est5r's servants"' to huZ^x. meetmgs of 'His not bef thouX^^t 'gei^v T. ^°"^ ^^^"^ °^ at any time that hf S^Lh^? ^®^ residence, it exiidient. Mor^v^ h.^^ ^ °^^ ** ^^« d^s CaWn'^asiasbSo^'onm^? even include in his without portfoh?wf^.^^°y*°?^,^°°«' ' Ministers or holdiiS^^y'^iolin^naTr^^^e'^^^ °^j^^' the Crown ITi!. <• . -LTV- '™*^ J^"°°^«^^ influents CS^Sr At the outbreak of the European War, it Sd l^S' werfsa^d t^SL"" ""™*^'l ^^ '^ deliberation, ^f S £.* XV *^^wung much more the character of set debates than of short, infonnal talks. H^lHrM ^uaUy reproducing the old Privy Counc^wS by reason (amongst other things) of its buS? ceSS' was dSwn^n .i^^ T^/"" °* "°*^^ * ^'^e Cabinet Tn^ « ^ ,f^® ®^^y ^^S^s o^ the European War • S?w iS? "" 2"". ^°^' ^ December, igieVthetei' new Prune Mmister wade a drastic change. W redudS Its nmnbers to five (the so^alled 'W^ cS^tT afterwards increased to six by the DooSS^^ttpJ; r^^ntty alluded to. The obviou7de^ offih^ w^, of course, to create a small, hi^y concoj^S ume ot Its members to questions of general oolicv ^g out of the war, especially those nfSin^S SSI' r^/«*?^g ^ the oLr Ministers to d.vS^ particular departments. The dangers of S^ ^ ^ weU as Its merits, are obvious.- the chS S that It leaves individual Ministers f;ee, suS to Sf nommal control of a Cabinet which is. SesumauSf ftilly occupied with other work, to pt^ uftSS^ plans, regardless of the plans of their collea^^ Cabinet Records Yet another very striking feature of the work of the Cabinet is. or rather was, mitil recently, the fact that CABINET MINUTES jjy iiouse of Commons, on the famous occasion of Decern! ^bin'?; V7" the mflexible. unwritt^^rSe^^; Cabinet, that no member shaU take any noteTr ^coS tt T'^^r ^*^^P* ^« Prime iffiter aS'S2 Pnme Minister does so for the purpose— and i7i« Ik! ^nZ^\^^' ^* " ^^y *^ *^ ^°w thi. rule £^ ♦kTT " "°t 9"^^''' °* ^' composition and r .ri aW fh?~*' r* '' "^P^.^^^ to say a few more P^^! iS? • .^ Pecuhar position occupied in it by the Pnme Minister; but this is not easy, becau^ S! ^smon depends largely upon the perSn^cS^acte? of the Pnme Minister for the tii^ being. ™thl circumstances of the time. ^ ® It is, however, at least possible to point out that there is no such office as that of PrimrMinister, Sfd ' i i I ' f .! !: w. . . ■ "« THE IMPERUL CABINET ^*'Z**^ 2*^« y* ^^ *^« P^*i<» o« Prime Ifinittor C S^L- ^''^V^f*'^^^^ The real fouX^ that poation. Sir Robert Walpolc. as is wtitthnL^ S^dS^, ; ***^ unwilling, with his customa^ shrewcfaeM to nve occasion for jealousy. wSte the appearance of it ; and the wise example ^ he SanXt°;? ^°"?^^ ^y ^' successoS pSh^ I? ?u^!l **,^* ^°S; a matter of uncertainty whiS of the actual offices in the Governm^tth7 Pri,^ J^^heLS;^"'"^'^' fo-^^tin^esX'^of Cto^r of the Exchequer, sometimes that of Foreim Mii^^ jomebmes that of First Lord of the TreS3 G^l ally, however, this last office was fomidtobL the^si suitable ; partly because it involved, as wiU £ sutel quently «cplained (p. 216). little or no^tuUoffi^ wwk. partly because the commanding posiSof Se Se If S^ T^' "T^^y ^° ^^ mattVofp^^S! t&v^ n^^A^r^"""'-^^ P°'^*^°° °* Prime tested rec^ offiaal recogmtion by the issue of a RoyS warrant, m the year 1905. directing that he shouM ^^ {?rf^??'i!° ^. ^"^'^ cerSaTinie^^ after the Archbishop of York; and the ciious. ttough teW o^JS^^^f *r°"^^y' ^* * Prime CSS talang official rank after one of his own coUea^wT " °°^ aboUshed. while the only reSii^ ^n Z 'Sr„'^^ .«^%Position with V^^^eX" Sth^%«if"^*y *°' I?f°^^"« the"^ Prime MinistS with a sal^. can easily be obviated by a dirert resolution of the House of Commons ^ ^ acdfS; fli* ^^'^nely difficult to define what ex- Milt^ tr^^^ ?*^ responsibihties of a Pri^ Minister, as distmct from those of his colleague It IS sometimes said, that he is the sole m^?i oommumcation between the Cabinet and the Kng but this camiot be literally true, for the ' Mi^s% POSmON OF THE PRIME MINISTER 119 I^Jl^daLce' on the person of the King cannot be would be truer to say. that the King would nottake ^r^!ii * Minister, who. as we havJleen (p. lu) ^tttjUy appoints the members of the Ss^. 2d CM. in substance, and subject to the risk ofloStf wfto ected to speak the decisive word in ftili^Vt fs /L?/ n^*l' "^"^ ^^ ? * P^' ^^^y^ recognSd rr^Vr^Ji*?K"'*°*^°^°°*' unless.^ a recent occasion, the urgent needs of a crisis comoel him to delegate his duties in this respect to a^U^Sf Finally, when it is desirable to make a pubHc stetS of Govermnent plans, it is the Priiie Minisi^So addresses a pubUc meeting, or accords aninta^7r.T Syst^- ,1 It is impossible to conclude -van thi. imoerfect accoimt of the Cabinet System without aSicCw ever briefly to one of the more serious char^^ wMi have been brought against it in recent times^^ SSS tT^« ^^' P^'^P^ ^^° "°»^^ ^^ to niarkdefecu tw t]:fr t- ? ^' ?^ *^*' ^y '^^^ o« the fact ^t^?P^^"^* ^.?^^!J'' *^^ ^«^*i^^ power of the ^ (Rule I) with the legislative po^ which it ^^ as commanding a majority in the House of Commons (Ruk 3). it is in fact a d^wtism, which is B^^^Tl "S^J^"" "f'^'^ f«ndaS.tal riulTthe Bntidi Constitution (so eloquently insisted on by Montesqmeu Delohne and other foreign admires ^that Constitution), that the executive aS^ legislative « r^-^ f °* ^*'^' '^ " ^^ "^o^bt^ wl»«ther such and. If It did, It had disappeared, probably before Montesquieu's day, certainly'Kebetetoe?^^ T?2^ «unent wntas were misled by the forms of the Con- ^tu^on, and did not understand its practical working, which is h^y surprising, as no redly ludd aco^t ^iAM T?i^? appeared in England itsdf until the middle of the mneteenth century, when Bag^ot wrote truth, the separation of powers,' which does exist ia some countnes, is the very opposite of British ' Parhar n«?*^-^°r"''?®''*' ^^ understood, not merely in the nSJ i . i?2!K?'? ^^**° the self-governing Doi4uons. Nor is It nght to assume, as is too often done, that ttiJ X."?- K-^ °f '*' P*'.''*^^" *^ ^^stry of tihe Crown that the Cabinet exercises its great power, at least in M ;l 124 THE IMPERUL CABINET >i If > ordinary tunes. It exercises that power because its lading memb^s are also leading members of one or other House of Parhament, and especially of the House of Commons and because, in that capacity, they can induce the House of Commons to vote any amount of money, or to pass any legislation, which they may desire, as well as to give any amount of time to • Govern- ment busme^ / and thus, practicaUy, to extinguish the time available for the legislative projects of the ordiMry unofficial member ('private business'). They therefore wield for the time being, the supreme powar in the Umted Kingdom, and, subject to the important reservations previously explained (pp. 64-65), in the BntshEmpire. But theyhold this power on a precarious tenure. A single hostile vote of the House of Commons wluch may be given at any moment, may force thenl and then: coUeagues to resign, subject to the possibiUty in certain circumstances, also previously explained (p. 36). of an 'appeal to the people' by means of a General E ection. If the Ministry is unsuccessful in that appeal, its fate is decided ; if it succeeds, it obtains a fresh mandate' or lease of power, which is, how- ever, thus obviously, in the last resort, derived from the popular wiU, and held at its pleasure. Even if It holds the House of Commons, the Cabinet has to face penodical General Elections not less freuuentlv (in ordinary times) than every five years (p. 145) ; and these, though they do not. if favourable, create new Mimsbies (that is a popular error for which the Press IS to blame), yet serve to remind the continuing Ministry that It denves its great powers, not from any inherent or permanent authority, but from that ultimate source of power m every true democracy, public opinion. Merits of Party System ♦i,^S**J*^*^ ^ ^^ '"^^^ ^"^i«ct of the merits of ^e Party System as a whole, it has akeady been THE PARTY SYSTEM ,„ great mass of selfish preiudicT*.?^ Ff^PPOsed by a primary justificaSon Bn??* !? S^*' '^"^^^ ^^ out, that the^SS if ISiv rw^^ ^u*^ P°*°*«i and indisputable merit iTtLT^y*™™^* ^*« *oo«ier times, not merelv fi^%.t ^*/* f"^"'*^' »« ordinary ment, ^hich isTS in ite e§2,? ?^ .^"^ ^^«^- liberate and thorouST ^sJ^s^orni ^* * ^^ ^'^ and against any prXsSl^S; ""^ "«^ents for not quite certeiS ff tS^"^^' ? is, indeed, Syst^ on iSSon w ! ^^ <»* «»e Party nLy d^iabfet^'^es' for 0^,^^^!^ *° ^^^^ argument and orga^«ti„n c^P^J'*'^'* ^°^«"^ by prejudice, instead'^orfc^Tvi^Tt^^cV*^^^ questionably desirable thatairSLl i • , " ** " ^- should be p4eded by ;Se^^i?^i legis^tive changes not merel? to prevZ^7^i^^^^T^<«^> measures in question to s2jc inf n Vk ^ ®f *^^« *b« And if there appears to b^^»„°l ?** S°P"^ °^°^* °^ notable example of the r£^T plf *^i?;.*^ ^ *h« party spirit ^thin due b^S. "° ^'"' *^ '~P The ' Caucus ' •W" of the SWy S^t^^'i^yj'ro*" to be . real of the party offiS X' «uS' fa' JS"*^"* «»"« oi poUtical business; espe23.rii.'S.e''5S;^*Sj iPi I i-:l • ■• ! i t '' irl i » -tt«sr«:* I i' i El I xi6 THE IMPERIAL CABINET patoonage. In every Idnd of organizatkai, there it a^ys the danger that the man yrih be made a slave of the madune. and that the natural and, in many ways, commendable deare for efficiency will make means of more importance than ends. But again the sturdy independence of the national character makes it unsuitable material for the application of excessive discipline ; and, indeed, in recent years, it IS not at all certain that the habit of organization coth m politics and other matters, has not been aUowed to become too faint. Moreover, the sudden admissioB of a very large number of women voters to the exercise 'A the franchise may be expected to deEvcr a severe shock to the Party System, which wiU effectually prevent it, for some years at least, exercising an oppressive influence. ^ r The Party System and Imperial Politics It is a much graver charge against the Party System that it accords badly with tiie wise handlmg ol the great Imperial problems which are now looming before Ritish statesmen. The otherwise regrettable in- difforence to colonial affairs which characterized the past century has, undoubtedly, had one redeeming feature, in that it has prevented cokarial questions becoming entangled in a system y/inch was devised to deal mainly, if not exchisively, with the internal affairs of the United Kingdom. Ahnost the only proposal on colonial subjects whidi has ever been made a party question was the proposal for separation ; and that was, happily, laughed out of court many years ago. All leading statesmen in Great Britain now ai^>roach Imperial problems in a grave and serious ^rit, and desire to take full advantage of tite wisdom and a>K>peration of the statesmen of the Outer Em- pie. B«t it is a grave question whether ihe old ■wHiinary wUch, as has been said, was chiefly devised WEAKNESS OF THE PARTY SYSTEM 137 to handle internal politics, can be adapted to the tte Bn^jJ^R ' '' ^^^^^ P^ ^4 whether Edition ^f^o'J'* °^ Commons, organized on a long ^ri^^t^,^^^^ F"""^^^^' *^ a^ ofSiD^S ^a body whose members are. during the ^t^ jwxt of the year, scattered over the surfecr of i^.J^*°^' !2^ ^^'^^ i° »o^ resiinsiSKSS to ^ t?f r^f executive authority, yet the rSSSons of the Conference are Hkely to ecerdse incr^^^ influence on the poUcy of the'^Imperial Sbi^e^T^ with th. PriSKt« erf li^ESr'.^ "'^'^!« <*«t»y ' •( ! .. ; -I • , if ■-'■ ; i ! ■ ■ ;i:l ■ t. Llm I! i t I I i CHAPTER VI THE niPERIAt PARLIAMENT (srauCTURE) ^oiM appea? in ^ acljuS^r^e ^* ^^^^^^ter the British Emtare WiS»r. ? t- ® Goveniment of ago, when thTS ,'« ? ?® ""^^ ^^^^ ^^ » century at its hdght dnd tte pSf ^"°'?*^ institutions mS r^ded wUh^aL^st^u^tiS^^^^^ Westnnnster was accustomed to treat pSiS^^* v^eration. were not the sole, sou^fof "wri!rih!V*^' '"P^^«' ^^ »pid growth of DoiS^SHi^t^Sf^"- . ^"* «»« date, as well as thp^™- ^" g®ye"«nent since that itself to S ^ ontlZn f f ?? "*■ P«B«»«t of the Cabinet «r*J^'d^r^'.*'*"»» the hands altered the posWm We^?f™fl*?' '"™ SWatly of fact. only'^3para*vetytL^^''%V'^"" business of govenm^tnr^^^ ^ P^* *'^ ^^ vast ment,and tiS m^S t^H^K^^^^ly ^e^re Parlia- ately concerns tteuL^dEnT'^^^'*^ ^"^^- natural; for in sirit^^? Kingdom only. This is Parliam^ntSw^tSnL? 3 inori^P^'i '^'' *»»« a product of the l^ted K niS« ^? ^"^ "^"^^^^^^on, not shake off tte l^,fo« ^^f ?^ *^°°® ' and it can- the self-^oJ^g^^^V^.^ origin. ^°* ^^ representetives tS tte^t of W ' "^S^ '^^^^ -ake su<* a st4°aSy^?/^'e°Xr^^: tat HISTORICAL SUMMARY direct and mdir^t? ovi^ ^'u.J^nl *"?"•?• «»trol and, by virtue of Aat^m ^^^""J"^ *^* Empire ImperiiU institution ' """"^ ^ ^^^^ as an ->»set^-^^^^^^ detain power by thTg^t oS L?ff«^^.*^*^ '03^ a centre for tiie diSiSf' n^ 1?* "^P^^^ ^<=^e promotion of IegisIatio?\w^,°' gnevances and the the right to SL^i°°i„*5^*lw PoHcy of the Cro^' thkt fin»?£ i^' J? '^^^'^^ ^^^^ the Cabinet Systm 'it suiS^' *"? *^^ ^^^^ of trolling, but, toT <^?^!f; °°* °^f«Jy in con- policy, and appointinTmSnf fn? -V '° ^^^"^ *J»at proceed now to exn^^'jP'iJ'^^tion. We of ParKamentiVsehf? '^^"^"^ ^^ working The 'Houses' weU-known ex^ession thf^?!'^"^^^^- '-"t the Reahn.' shouwSnS'us Lt ^'f. ^'*^*^^ o* the sisted of three paSl Wz ^rdf ^^^'"* °°^« «>°- spiritual or cleri^cii^on^ ' ^^ ^°^°°*' ^^ The House op Clergy This last consisted of the dean «, ^ proctor ' (or agent) cho^t k^*k ^^'^' *°^ one cathedral ' chanter ' ^? **y. *^® ^^^''gy of each archdeaconsSiTt^op^oct??^'^"^ bod/^ and ISS clergy of each diS^ who ' It ^^ the parochial the so-caUed '^<^^^?^Zl^Z"lf' *^°"^^ summons sent by the K^ to JS w i"" *^® ^^^ of / lae lung to the bishops, to attend n' ' I '30 THE IMPERIAL PARLUMENT the mtetiagi of PtoKament Wi*i. ♦!,.* ^ servatitm which marfa XtwT.v ^ **'«« <»»- «»»«•• is ttill insertS in Shi Sj?^ »«titutioD,. this »t the «uinmc«^Jti5,^w J! thebiahops sent ceased to haveiSy i^^^^!"?^ birt it has long was detenained to <^,2* Z '*?°?*^ Edward! desire. ASity^S^o^:' •^'?"y J«^d no such rated into ' HouaS • tkl^i *^°^® ^arhament had sepa- an effective^Tf' P^li^ Srr ' ^^'^ appearance toheS th^ Si^I'^"""!^ P"*^^* ^^ an of the session, ^a^d S^^^' t h'oId'S^"^ •Convocations' or ParliamSvJc^ ^* *v°°'^ ^^^^ °^ Chapter House o7st Pa^'s r^tSy^Jf "^»«°rin? Thence they were summn«S !fv®^ ^ elsewhere, to give a foS as2S??o t^'Al?' ''°'" °^ '^' ^^W Parliament towWch?L,?i, j**^®^ «^t«^ ^y the lay lormahtyt^^^'ScSatl^^^^ f«»«^s 11, whei, by anereem*.!^; K^^*°i;***°° °^ Charles the Chancelbr a^f S^^?l?f^n° Lord Clarendon. Canterbury ^ter^JfJ5!S°°' ^^ Archbishop of settled.'^t?'lSS^oSr1hS'/*"*^^^ ^* ^ through Convocation the ^SfJ^f ^°"°?^ «>°^t as freeholders, at the ekSi^^ ^^v'S^ ^"^ vote of Commons ii their ow?^'°1T?5?! ?* ^^ "^"^ value of their b^efi^sT^' ^^ *^ t«ed on the inreguJar proceecwt^e^i^'^r '"'"i* °^ ^^ Mr, Home Tooke a c W^ ^^ ^^ ^^^' when elected a meSS' of tt?^' *"?^ed in being taking his sSt on tL^o^??L?l C°°«°°n».^ represented, as a cIe^S^?„*^.?"^^* ~ Wer But this contention^Sf ' 'X *^ "^^"^^ House. THE TWO HOUSES „, SEPAHAnoN OF Lay Houses •elve. into Ufi Hou^^^t^**^* *^^<^«i them- «id this diTJn^SS' ter^^^i*^?^!?™^'^; ■eparation was so mS,rS^?„H continued. This fonnal account ofit^^esln^^^^'SrS*^* «<> to the state of the SriJ^i^rSilV' ^'^*' °^"^ decide exactly when itlZi/i"^}^ records, to justified in ilTX tS^^i?^ We are however, was fifty years oWT Ittli «T w?''*' Parliament members forSes£resLSlf**"i?^ *^* ^^ ejected themselves fr^^ i^t^nhV^^^'i'^^"" ^«^f^^^^ by a of the boroughsiuSJ;^^ A**?^?,«^^ of the Knighte o?SeShke^^'^" ?^ *"*b~ity own bothl^^ iki r ' ®°^ ^®^«d to hold its separ^on^^tw^'^IS M'i^'lf- ^^^^^ ?>ecame impossible for the^ro^ ^ J^ observed, it in ParlianSt by Se siLS^^c^^,* °^3«?ty wore peers- lv»ra«c« =""pie process of summoninr •eparat^h'ad to rob^S'^r"*!,^ ^^ H^ •ach House. b^/edeaL^^fH*^* composition of a«a whde. '^'^^^^*^^<^ the workof PaiJiament xja THE IMPERIAL PARLUMENT HBKZDITAItY PbbXS The House of Lords consists mainly of hereditary peers of various degrees— dukes, marquises, earls, viscounts, and barons ; that is, peers whose ancestors were also members of the House, or whose descendsmts will be in due course. There is no legal limit on the power of the Crown to create such peerages ; and they are frequently conferred for political, miUtary, and other services. But it seems to have been decided in the seventeenth century (though the point is not very clear), that the Crown could not rdhise a summons to the House of Lords to any man who was the male heir, according to the feudal rules of descent, of his ancestor who had rea;i vad a summons, and had actually taken his seat ; and this rule is in force at the present day. It should be remembered, however, that the feudal rules of descent limit the inheritance to the eldest among the males of equal degree (' primogeni- ture ') ; while women cannot sit in the House of Lords. It follows, therefore, that there can be only one holder of each peerage in Parliament at the same time ; and indeed, when a peerage descends on co-heiresses, not only the seat in Parliament, but the peerage itself, is 'in abeyance,' imtil the Crown chooses to select which of Ihem shall bear the title. Moreover, when a peerage is created by Letters Patent, as it now invariably is, the grant may restrict the descent not merely to males, but to males in the direct line of heirship from the original holder of the peerage. But it was, unfortim- ately, also decided, so late as the year 1856, that the Crown, though it might create peerages for life, could not of itself confer upon life peers the right to sit in the House of Lords. And Lord Wensleydale, who had been so created, was not allowed to take his seat. At present the number of hereditary peers in the House of Lords is about 600. Only peers of Great Britain NON-HEREDITARY PEERS xss or the United Kingdom (ai dittingniihed from Seottiih and Iiifh peers) have, at tnch, a right to aeatt. LiFB AND RbPRESBNTATIVE PeERS By far the smaller part of the House of Lords consists of peers whose seats are held only for life, or, in some cases, for even shorter periods. They may be divided into four classes. Prelates (z) The oldest is that of the English prelates. From the earliest times, the archbishops and bishops of England sat in the great councils of the reahn, even in the old English Wltans. Naturally they formed part of the earliest Parliaments, the centre of which was the Cotmdl of Magnates of the Norman and Plan- tagenet reigns, of which they had also been members. Along with them sat the ' mitred abbots,' or heads of the greater ecclesiastical monasteries. Down to the Reformation, especially after the slaughter of the lay nobles in the Wars of the Roses, these clerical peers even outnumbered the lay peers; but the mitred abbots disappeared at the Reformation, when the monasteries were suppressed, and the number of lay peers was gradually increased by the creation of new peerages, whilst, after the sixteenth century, no new bishoprics were created for two hundred years. Furth^, wh^, in the nineteenth century, the creation of new bishoprics becsune common, it was provided that an increase in their number should not increase the number of episcopal peers in Parliament. The two archbishops, and the bishops of Winchester, London, and Durham, have seats as of right; the remaining twenty-one episcopal seats being occupied by the other diocesan bishops according to the seniority of their election to their episcopal office. The ' sufifra> gan ' or assistant bishops (p. 323) do not sit in the House of Lords ; and the four Iri^ bishops who sat I > ( I ! ; ifr W Tm nn>EItUL PAHUAlilKT man, of wliatever denominatiSi wWhoM. '^ ^^"^ ^^ A recent heir of the great Adminl Nelson I0I2 Scottish Peeks ^StSi3«.^aa peer by yirtne of his United Kingdom Dee^«^ *; the acquisition of such htta^^J^^tJ^ SS^thS^tt^'dtcS'Jl*^ UmteTKi^S sr.':tir.i"^--H'^-"^i^ UFE PEERS Iu8H Psxxs US M HiSL^ T^ .*^f ?* non-heredittry lettt in the :!S^*^' & ""^^ ^*^' *^«y "e chosen feTufe tod an election only takes p^ce when a ^nw J^^r .^f*^ or 'attdnd^r/ .'... con^cS^°f2 ^«^ i'^J:-^^*^ ** ^» »*^ «>»* «« Irish peer S^d/li? i?* ^" <** ^"^ '^ ^* » resident^ Ireland) and that he cannot resign his seat It is afaosa^d. that an Irish RepreseSative^eer who acqiuxes a pewigc of the United Kingdom does^o? ttcreby cease to be a RepresentatiWPeer: and „ !«LS?^ ?. ^"^y authorized to keep up the Mnber of Inah peerages to one hundred bv new owtions there seems to be no prospect of a kick of tTZ,^ ^"^ repres^tative ^eSgS. so lo^ as 2L nV QcoS?"*.- ^°T*^f ^fltrenct between tte «scs of Scotknd and Ireland is, that an Irish peer (not having a seat in the House of Lords) mavbe S^ij^Sl^^^- ^Jd P^^ston was a conspicnotJ example of this rule A non-representative Irish §,Tn*SlT ^*?^ ""^^ privileges, and is subject to the other disabihties. of a peer of the United Kiidom. Lords of Appeal (4) The last and most modem dass of non-her^ dits^ peers axe the ' Lords of i^peal in Ordinary' It has tong been customary to bestow hcredifciv pewages on the hoMers o* the highest legal offices surJi as the L^d Chancellorship of WTtaL^ the Chief Justiceship of England. But, as we shaU ? f J^ ^Pl ^F^' ^ "°^ o* Lords acts as the hic^est court of aippeal from the ordinary bw courts 'i'i ^36 THE IMPERIAL PARUAIIENT of the United Kingdom; and it is desinUe that on such occasions, it should be strengthened bv the Md tiie Chief Jusbce This was, in fact, the motive for the hf e peerage bestowed on Lord Wensleydale 2* ^?j V *°^ ^^«* *^« intended purpose was frustrated by the action of the House of I^it^ It became necessary for the Crown to obtain power^ mJ^*l ?"> . ^^^^^^Y' on the great re-^ttle- ment of the judiaal system which took place in i87S-6 the Crown was empowered to create not more tiian' four smce increased to six) judges or barristers of Sr^?: Lords of Appeal in^dinary. as ^l ? f**f »» «ie House of Lords; and it was unda^tood that these legal peers shoiJd also tekTa substantial part m the sittings of the supreme Imperial tabjmal of appeal, the Judicial Coiinittee ofSe ^vy Counai (p 293). By an amending Act of ^ham«it. these • Law Lords' do not va^te th(S ffi ♦i^^^l?]' "^ ""^ ^'^* °° resigning their offices ; «md their children are. Hke the chil^of herediSi ^""naS" *° ^*^ *^* "^^^ ' Ho'^ouwWe Mb House of Commons The House of Commons, though more unifonn than the House of Lords, because it is composed entirely ot representatives.' i.e. persons elected by others T? u? *?'^ ' «>»»stituents.' to seats in the House.' and hable to k>se them if they are not periodically re-elected, is not entirely uniform in character A« ! ?!^*/^f ' ^^^^ ^^^o, or. to be strict, three, different fands of constituencies, or groups of electors which send members to the House of Commons. From «1^^/ ^^. 0/ ParKament. as has been before mentioned (p. 27), 'Knights of the Shire ' on the one THE COUNTY MEMBERS 13; hand, and * citizens arid burgesses ' on the other were summoned through the sheriffs. County Constituencies The shire or county, is an ancient institution of great importance, accustomed to act as a whole for mihtary, pohce, and judicial purposes. tWng of Its history and present uses ; here it is suffi- owit to note that, during the long period from the definite appearance of Parliament in 1295 to the Passing of the great Reform Bill of 1832, if we m^e aUowance for the interesting, but brief, appearance of Cromwell's reformed Parliaments, each orS^sWre great or small, in England, sent two members to each Parliament, while as has been mentioned (p. 40) *S w%'^u^°'*® ^°° °^ ^^S^^ and Wales in 1536 the Welsh counties were given one member each. The h.!r I if°r5^li°^. Lancaster, Chester, and Dur- nam, whi^ had theu- own pecuUar governments und«r the Dukes and Earls of Uncaster, the^lsof Chester, and the Prince Bishops of Durham, did not send members until comparatively recent times • and Monmouth, as before pointed out (p. 49), did not become a county till 1536. Thus, the SouS J m<^l^ grew from 72 to 86, and from 86 to 92 ; but th«e they remained fixed, in spite of the g?owth of their wnstituenaes. and the suggestions made from time to S?! ^"^^"^ increase, until the first Reform Act of 1832. They were the back-bone of the House of Colons m the daj^ of its infancy and stormy man- ^•r i^*v ^J'T®^ ^^ fi^^* *°d haughty Queen Ehzabeth and the crafty James; they ndse^S" banner of defiance, under Hampden. Pym, Eliot, and Coke, agamst Chiles I ; they resisted the floid of corruption which, from the easy-going days of CharlesII to the times when Indian • Nabobs • returned from the ' M ' ! ■ , i I ? 1 .1 m\ :f5 !•■? :ii f ^ THE niPEXIAL PARUAMENT E«at to swd their hMtiljr acquirwi wwliJi to toreatened to overwheim the mdcpeadwictTS * Knights of the Sbskb ' At first, as their naoie implies, they were 'beked laapiU, t.e. landowners of the degree of Imi^thood • and, though this strict requirenSat was^sSmdwed very early m the history of Parliament (1413). thev were required to be resident in the coimtiS whiS ^'JT^^^' «d this rule was not formally Jbohdied tiM 1774. For about a century and a halt from 1710 to 1858, county members requiied tibe F^CTty qualification of ;f6oo a year, in possession Of «pcctancy, ansmg from the ownerslup of land : and ttore TO a curious traditioo, arising from an old member Botii these requirements have now dkl app»red; and, from the beginning of modem P&rliar auwtary reform m 1832, each new Reform Act has made an mcrease in the number of county constihi- ^^'^ « counties^d Se 5S^^ L'°«*^* matter of the ' franchise/ or ri^t to vx)te at^h^entary elections. After a short 5ai^ mentfto f^^^^""* to resident owners of • free t«S ments to the value of forty shillings bv the vear at the east above aU charges ' ; wwS Sj^S^ST™ ^?y <^°nstaiied to mean persons ow,S?fr^™ estates wortii forty shillings kyear. -ms^mr^" ^.ted m the first half of the fifteenth cen?^. X to aU^st'trtSSS^i: ' ^^'^r^ Power^valen? to at least ten tunes the amount at the present day • and the county electors of that time mi^t have^ w^ of land worth twelve pounds a year, and the Act of 1884, which conferred the residential and lodger frajichises on the Counties, rendered it still less important. It is one of the quaint stories of political history, that Richard Cobdea, the political and economic rdormer, long believed, and stated in his public speeches, that the ' forty shilling franchise ' was a democratic novdty created by the Reform Act of 1832, instead of an aristocratic privilege set up in 1430. ii! The Ancient Borough Franchises Unlike the ^unty franchise, the old borough frandiise was obscure, irr^^lar, and confused. Tliere was never any uniform borough franchise throughout the kingdom till 1832 ; but, in each borough the persons who enjoyed the privileges of self-government, ac- cording to the charter or traditions of the borough, alone exercised the Parliamentary franchise. Thus, in one borough, the vote would be exerdseable only by the occupants of certain ancient tenements, or • potwallopers' (' potboilers') ; in another only by the members of certain craft gilds or industrial associations ; in another, only by the members of the leet jury or court —for these alone were * burgesses ' in the strict sense. The natural result was the ^sgraceful orgy of corrup- tion and intimidation before described (p. 139). Modern Borough Franchises The Reform Act of 1832- made an almost clean sweep of these anomalies, and set up in their place a uniform borough franchise which could be claimed by all persons * Tbe rwder mnit be careful to distinguish ' occupation ' which merdy means having eacdnsiTe possession, from ' rendence,' which iavolTes actual dwwing. A man ' occupies ' his shop or office : ha resides in his house. MODERN PARLIAMENTARY FRANCHISES 143 occupying land or homes of the annual value of ten pounds within the borough, while the Act of 1867 added the residential and lodger franchises ; so that. from that year, in the boroughs at least, practically , every permanent male resident who was the head of a househoW, an independent business man, or even a todger of fair social position, has been entitled to a F^hamentMy vote The history of the franchise in Scotland and Ireland, though by no means exacUy the »me as that of England, has, on the whole, foUowed amilarhnes; and, since 1884. the franchise in the ^ countriM of the United Kingdom has been substantially the same. But of course, the most sweeping changes ever made m tiie Parliamentary franchise are those proposed by the Kcfonn BiU of the present year (1917), which will not only nuke a vast increase in the number of electors, by conferring on women as well as on men the right to vote, but will remove many of the old abuses and diffi- cumes which rendered the vote of the average elector hable to be withheld, or made it valueless when it was given. By that BiU, which has every prospect of passing into law, there will be, apart from university constituencies, only two possible qualifications for the Parliamentary vote, viz. residence, and occupation of land or preaaises.' Any man who has resided for a bnef period in a constituency (county or borough) or has occupied* business premises therein of the annual value of ten pounds, will be entitled to be p^ced on the register of voters ; while any woman of the age of thirty years, who, or whose husband, is entitled to be put on the local government register m respect of any land or premises in the con- stituency, that is to say has occupied any land or premises there, may daim to exercise the Parliamentary franchise. ' «iLS!ii?7^^ betwe« oorapatioa and r«id«DC« has beea f»i» viooalyeiplaiaMl (p. 14a »). Thereitno legtl dcAaittoB of pnnb«, ■it-; ,1 : •If ' . V ' IM 144 THE IMPBRIAL PARLIAMENT UtnVBltSITY FXAMCHXSE The vmivwiities of the United Kingdom, andeat and modern, are by the new Act grouped into oon- stituendet; and every graduate (other than an b'morary i^uate), male of any age, female of the age of thirty, will be jntitled to vote for the election of members to represent his university in Parliament. The university franchise was created so far back as the seventeenth century; but, until 1918, it was confined to the andent universities of England, Scotland, and Ireland, and to the University of Londcm. * Plural Voting ' One other change of great importance proposed by the new Bill is the restriction within narrow limits of ' plural voting,' i.e. voting for more than one con- stituency by virtue of different qualificaticnis. A man mi^y n*^ *■ now vote at any General Election in more than two constituendes, of which one must be the place where he resides ; while a woman may not give more than two votes in all Summoning of Parliament* The rif^t to summon a Parliament is vested in the King akme ; and, except in cases of cri^s, there never has been any hgil limit on the exerdse of that right, beyond the kct that, by a provision of the first Trien- nial Act of 1641, since frequently repeated, the summon- ing of Pariiament cannot be deJayed beyond three yens after the last previous Parliament has been disnlved, and that, by a vague provision of the Bill of Rights of 1669, ' for redress of all grievances, and for the aoMndrng, stteagthening, and preserving of the laws. Parliament ought to be held frequently/ Buttheri^t ia question is exercised on the advice of the Cabinet ; and, as a mattir of (mkA, it has for centuries been ANNUAL SSSnOMS 245 MOMwy tohkv at leut oim Mnioii of Pferliamciit everyy«Mr(freq«enttymow), becauM tlie Crown ooold not do its work without it. For one thing, an time of P«ce, it is, at we diaU lee (p. 190). illegal lor the uwwn to raise or maintain a single ' legubr ' soldier wttidn the reahn without the consent of PktrUanient. f which is only given for one year ; whilst, in time of wai^ the enormous expense of the navy and army rwders constant application to Parliament for mon^ ataolutely necessary. For another, the Crown has Jong been dependent, even for the ordinary expenses of government, upon Parliamentary grants of taxes: and Parhament takes care, by voting * supplies ' for one year only, to make an application for renewal n«t year a certainty. But, happily, this important rote does not make it necessary to hold a Geneial election every year; because the same Parliament may, and usua% does, continue to hoki sessions, or Maetings, for several years, with only such elections as are rendered necessary by death or resignation of seats m tte House of Commons, which latter vacancies axe filled by what are called * bye ' elections. Quinquennial Parliaments After a good deal of changing, the duration of Parlia- ment is now, by the Parliament Act of 1911, Umited to five years, unless extended by an ordinary Act of Parliament itself But again it must be remiibered. that the hfe of Parhament may be cut short at any tome by a ' dissolution,' or proclamation of the Kin/ dismissuig Parliament, which is, as a matter of fact! touowed ahnost immediately by the issue of writs to summon a new o.ae. Method of Election It is not possiUe here to exj^sin in detail how a General Election is conducted. Briefly speaking, a :0\ m if ; « i •■li I h ; £"1 ff! 146 THE IMPERIAL PARLIAMENT writ for Mcli eonttitueacy it lent, either (in tlw of comity divitioiis) to the iherifi of the county, or'(in the case of boroughs) to the mayor. These officials, or ' returning officers,' give notice that the elections lor their districts will be held at a certain place on dates formerly fixed (within strict limits) by themselves, but now, under the new Reform Bill, to be on the eighth day after the issue of the Proclamation summoning the Parliament. The only thing whidi actuaUy takes place on the day thus ^ed, is the nomination of candi- dates, •'.«. the persons seeking election; unless, of course, the election shouM be ' uncontested,' i.e. no more candidates should be proposed than there are vacant seats to be iilled. In such a case, the returning officer simply declares the candidate or candidates nominated, to be duly elected. But, in ordinary cases, he adjourns the election that a ' poll,' or counting of votes, may be hekl, to decide between the rival candi- dates; and this will now be the ninth day foUowing that of the nomination, i.e. the se%'enteenth after the issue of the Proclamation summonin|; the Parliament M^ POIXING It is, in fact, this process of ' polling ' which is commonly, but incorrectly, spoken of as the ' election.' Before the year 1872, this process might take several days, or even weeks ; and it was con- ducted by the electors openly recording their votes by word of mouth in favour of their chosen candidates. If, as frequently happened, the right of any elector to vote was denied, the question of his right had to be discussed and settled by the sheriff or mayor, then and there. As a natural consequence, when party feeling ran high, an election was often a scene of open bribeiy, violence, and trickery, probnged over a long period; and it was always an occanon of great ea^P«na9. ELECTIONS The • Bazxot ' X47 At last, after a long and bitter struggle, the supporters of secret voting succeeded in passing the fiunous Ballot Act of 1872, which provides that all voting at Pwrliamentary elections (other than for university constituencies) shall be by ' baUot/ ue. 1^ placing in a closed receptacle a slip of paper on which the elector's choice is indicated in such a way that no sign of it appears to the by-standers. The ballot papers are afterwards OT>ened and counted in the presence of the returning officer, under strict precautions to ensure accuracy and secrecy as to the names of the voters. A provision of the new Reform Bill even allows the tending of ballot-papers through the post, and voting by an agent or * proxy,' by persons on the ' absent voters ' hst ; but Application to be placed on this list must be made by the voter, when the register is made up, on the ground that, owing to the nature of his business, he may be unable to attend at the polling place on election day. Thb * Electoral Roll * Moreover, no question as to the right of the person tendering a vote to do so is discussed during the polling. AD the voters have previously been put upon a ' register ' by the local authorities, whose duty it wiU be to make up a complete list, every half-year, of those entitled to vote, and to receive and decide, subject to appeal to a county court, all objections to the register. Should any objection be raised at the polling as to the identity of the person claiming to vote, e.g. whether he is really the ' John Smith ' who is on the register, or as to whether the voter has akeady voted elsewhere, the polling officer merely takes a note of the fact, and allows the claimant, on making a formal declaration of his right, to give his vote, subject to later investiga- !', ' i ' . f Ml THE IMPERIAL PARUAMENT tioB. At each bfUot-paper it marked with the voter't number on the register, there it no difficulty in tradna it altcrwardt ; if the voter it protecuted for ' pcrtona- tion/ i.t, pretending to be a perton other than that he really it. or lor voting oftener than he it entitled to ^« But, without official authority, no attempt to ditoovw the marker of any baUot-paper it alkmed. ' PozxiNG Booths ' By thete meant, and by having several * polling ttationt ' scattered at convenient spots all over the constituency, the whole of the poll, even in the most populous constituencies, is taken (with rare exceptions) on a single day ; and the result is made up and de- dared, ahnost immediately, by the returning officer aseistod by a staff of trained clerks, who count the ballot-papers in the presence of the candidates' agents. An even more desirable reform will be effected by the provision of the new Reform Bill, before alluded to (p. 143). which requires that the poUings for all the constituencies in the United Kingdom (other than university constituencies) shaU take place on the same day. This provision will put still further restriction in practice upon the limited amount of 'plural voting' (p. 144) aUowed by the BiU; for, de- spite the k>ng hours during which the polling stations are now open, it will be difficult for an elector having a residential vote. say. in London, to give an occupa- tion vote in Aberdeen, on the same day. Perhaps not less important, it will prevent the accidental fact of the oonititueocies first consulted voting in a certain way, exercising an undue influence upon the voting at the later polls. DiSQUAUnCATIONS FOR ELECTORS AND MEMBERS Brief moition should, perhaps, here be made of certain positive 'disqualifications' \t4nch prevent a BLSCTORAL 'DISABILITIES' 149 ronethcrwiM qualified to be elected, or to vote j-u?*^**' ^ ***® Houee of Commont, exerdtJiig hit rif^t. In timet patt tb^s tuhject hat been connected with fierce and bitter jealouiiet bated on religioiit jprejudice. Roman CathoUct, Ptotettant Nonconform. MU. Jewt, Quakert. and other religioat bodiet, have from time to time been, on one pretext or another. c»^taided. Happily, however, the last of these ' dit- abihties disappeared thirty yeart ago; and now only such reasonable disqualifications as want of age, con^ction for serious crime (including corrupt practices at etocbont), bankruptcy, insanity, alien nationality tad (for being elected) Church of England or Rom^ Cathohc ministry, remain. Most of these disqualinca^ tions, but not quite aU, apply also to membership of the House of Lords ; and, of course, no peer can vote at any election to the House of Commons, or be elected thereto with the single exception, before noted (P- 135). of an Irish non-representative peer, who may be elected for any constituency in Great Britain, and, having been so elected, may vote in any similar consti- tuency lor which he is otherwise qualified. The re- turning officer at an election may not give an ordinary vote ; but if two or more candidates for a seat poU an equal number of votes, he may give a decisive or casting vote. Apparently, there is no law which prevents a candidate, otherwise qualified, voting for himself. ^ Election Petitions Another great improvement has taken place in comparatively recent times, in the matter of disputed elections. For long the House of Commons jealously asserted its own right to decide such matters / first each case was referred to a ' select committee ' of the House, chosen ud hoc, i.e. to decide the particular case. The consequence was. that the most powerful party in the House, usually, of course, the party ' ii ilfih^H tl ':! li V 1 :•) H-t ii ■1 ^1- i } I 150 THE IMPERIAL PARLIAMENT ■iiil ■ 'i Ml iiil •upportiBg the Ministry, took care to appoint on the comnattce a majority of its own members, who in- yanably decided in favour of the party candidate In the year 1770, an Act of Parliament, known a^ Grenville's Act, was passed to provide for the creation at the opening of each new Parliament, of a * standing ' or permanent committee, to deal with disputed electicms during that Parliament ; and there was thus some guarantee, though not very much, that disputes would be settled according to law, and not according to party prejudice. But a far better plan was adoptl^ in 1868. when the trial of ' election petitions', ra en- trusted to the High Court of Justice, which appoints, at the beginning of each year, three of its judges! chosen by rotation, to hear all cases which may Sse during the year. Such cases are heard and tried on the spot, as much like ordinary actions as possible • the petitioner, or person who objects to the return made by the returning officer, acting as plaintiff, and the successful candidate as defendant. There is however, no jury; and the Court consists of two judges. A very valuable provision of the Act enables the judges to promise a witness that, if he will make a fuU disctosure, he shall be protected from punish- ment for any share which he may have taken in any 'election offence,' such as bribery, intimidation 'treating,' personation, iUegal expenditure, or the like! At the dose of the evidence and arguments, the Court gives its decision, which, however, takes the form of a report to the Speaker, or Chairman of the House, as to the result of the trial ; and the House itself carries the decision into effect, either by declaring the seat vacant, or any candidate to be duly elected. If the trial has disctesed offences against the ' Corrupt Practices Acts,' prosecutions in due course foUow, except against offenders protected as above described ; and, if the evidence diows wholesale demoralization' the constituency may be ' disfranchised.' or deprived 1^^ PARUAMENTARY PARTIES 151 of its representation, by Act of Parliament, for a bnger or shorter period. A further guarantee of the purity of elections is now promised by the stringent provisions of the new Reform Bill, which hmit the expenditure which may be incurred by a candidate in his election contest, and by the provision that the expenses of returning ofi&cers shall be defrayed by The Treasury. Party Organization Before leaving the subject of Parliamentary elections* it is necessary to point out, that the process above described only deals with the legal, as distinguished from the practical side of affairs. In theory, each constituency chooses as its **?presentative the man in whom it has the greatest co^iiidence, and reUes on him to ex^dse his own judgment in deahng with all matters m which he is called up6n to take part in Parhament. In practice, this ideal state of affairs is never attained ; and, in all probabiUty, the results would be very disappointing if it were. For a House of Commons thus chosen would be a debating society, not a business meeting. Its members would have no cohesion, no common plans. Each would have his own Uttle pet scheme to run, which would stand no chance of being «med, except by a rather unwholesome system of bargaining for support by mutual promises of votes. Such a House would neither effectively support a Government, nor, on the other hand, criticize it effec- tively. Its support would be vacillating and un- certain ; its critidm would be feeble, and would be disregarded. These difficulties were felt, ahnost unconsciously, more than two centuries ago, when it became dear that the real power in the State was passing to the House of Commons ; and they were met by the adop- bon of what is known as the • Party System,' before referred to (pp. Z06-109), * «• the voluatary asiodatioii Jl\ . i ! . ! l\U f ! tj..i *? 'I? ■I - 1-. i5a THE IMPERIAL PARLIAMENT |i| ! |li!i! iiiil! of themselves by the electors throughout the kingdom into great groujM, with elaborate arrangements, both at headquarters in London, and in each constituency, for nominating and supporting candidates favoured by the group or 'party.' This process necessarily in- volves the adoption by each party thus formed of ' principles,' ue. fundamental objects to be attained or beliefs to be carried into action, and of a ' programme,' or list of measures believed to be desirable to further these objects and beliefs; and membership of the party is conditional upon the acceptance' of these principles and programme. In order to be ready for a General Election, which may come ' like a thief in the night,' it is necessary for the leaders of the party to be constantly in tctadi with their followers in the House, and for the latter to be in touch with their constituents. This necessity results in a frequent exchange of ideas and a good deal of personal inter- course, which again have a good effect in stimulating interest in poHtics, and creating a healthy public opinion. Supporters of autocracy, practical and theo- retical, are very apt to decry the Party S]^m ; and there can be no doubt that, like many other institutions, it is liable to great abuse. For example, the discipline necessarily exercised over their followers by the leaders of a party through its 'Whips' or officials, may be secured by promises of patronage, and may degenerate into tyranny; whilst the corresponding support needed by the private members from their constituents may be obtained by flattery and serviUty, which may render the member a mere voting machine. For all that, it is tolerably clear that no other means could, in the past, have enable public opinion effec- tivefy to control the poUcy of the Government, and that the alternative would either have been a ' bureau- cracy,' in which the work of Government is carried on 1^ offidals or departments, having Httle union and regardless of public opinion, or it would have been a* PARLIAMENT AND THE EimRE 153 • group-system ' in which little bands of members of the House would have bargained with one another to •ecure a majority. Absence of Imperial RspRssEMTAnoM im Parliament Reserving for the next chapter an account of the work of Parliament, and the methods by which it accomplishes it, we may end here with another refer- ence to what is, undoubtedly, the most anomalous feature of the Imperial Parliament. This is the fact that, though it claims to exercise sovereign authority throughout the British Empire, it is not really repre- sentative, in the strict sense, of any part of the Empire outside the United Kingdom. No members are elected to it, even from such adjacent possessions as the Channel Islands and the Isle of Man ; much less from the distant self-governing Dominions of Canada, South Africa, br Austraha, the Crown colonies, or the great dependency of India. Distinguished colonials have been from time to time elected by constituencies in the United Kingdom ; and their presence has been of great value to the House. But this practice has been entirely haphazard ; and these members have been in no sense i.e. a pro- posal made by a member of Parliament not holding Government office, it is drafted by himself or any one whom he may employ for the purpose. It bears upon its back the name of at least one member of the House who is its introducer or ' sponaor.' m I i I; I ';ti' |fi^: ^ First Reading Strictly speaking, no member could formerly intro- duce a Bill without leave of the House ; and a motion lor ' leave to introduce ' was the first public step in the passing of a Bill. But such leave was never, or rarefy, refused; and now any member may, after notice, introduce a Bill, by ' laying it on the table,' which, in effect, means by circulating it in printed form among the members of the House. But, before this step can actually take place, the Bill is ' read ' for a first time, a process whidi is tiius, also, purely formal Second Reading The real crisis in the fate of a Bill comes on the second reading, which takes place on a day fixed by the House. The object and scope of the measure are then fully explained and advocated by its proposer and seconds ; and the motion for second reading may be opposed in a direct or indirect manner, e.g. by a n^;ative or an amendment, suggesting postponement. Committee If, however, it is carried, the Bill is referred to a committee, nominally one of the Standing Committees,* but in certain cases (p. 169) to a Committee of the whole 1 It will be remembered (p. 17) that a ' private member's Bill * b by no means necessarily a ' Private Bill.' > ' Standing Committees ' are committees of sixty to ei^ty niembers. A Bill may also be referred to ' Select/ or specially appointed. Committee. PASSING OF BILLS ,59 5."?!l2S*^ the Chairman of Committees instead of the Spaka: (or Lord ChanceUor if the measSwS in m^i^*^*"^v '^'^^ ^y ^"** ' and any amend- Sf-iiS,'* °?7 ^ ?*^^' *«*>J~* to the rule that i the absoice of formal ' Instructions/ previouslvismiS by resolution in the House itself. nrSto^ eiUar^ng the scope of the Bill, or intriducii^eS matter, may be proposed. *««»«" Report of Progress Another purely formal step is the * reporting of progress made by the committee with the Bm/to the House, and the obtaining of leave for the o^^tSj tL lSo^°the B?U r'^'^j^^jo^ttee hasSS IS. iS? •• .. ®*" *^ ^^ ^o'a (o' ' reported to ') tte kS £, L«2?°.k '*T; °^y *^« P^<*. nnless Third Reading At tlus stage, verbal amendments may be made by the House itself; but. if these are ortLive toe BiU may be re^mmitted. for further diSoL of Se whole or part in committee. When all th«^ stoc^ have be^ safely passed, the BiU is ^ead^a Ski not mvanably) takes place as a matter of course. Other House The BiU has now, so far as the House in which it began is concerned, been successful; but wfrnust Z^Vri^') "^""""^^ consists'of'^tio^HoTi* ti^h^T^ *'*'*'' V'^^^^y ^^ powers in legisla- tion, though, as we shaU see. this equality has ktelv undergone substantial modificatiS. The BiU iZ therefore, sent to the other House for its concw^ici": .!'•• 1! I 11 x6o WORK OF THE IMPERIAL PARLIAMENT and the Mone process which has taken place in the one House is (with slight modifications) repeated in the other, and, if the other House concurs, the Bill is returned to the House of its origin, with a message to that effect. The measure is then ready for the formality of the royal assent. I 1 ii 1 J f I' A 'lip I ai i! !i !ii i DiFFBRBMCES BETWEEN THE HOUSES It may be, however, that there is a difference of opinion, partial or complete, between the two Houses, as to the merits of a Bill In the former case, steps may be taken to come to an agreement — formerly by a ' free ' or ' formal ' conference, which was a debate between 'managers', appointed by each House, or (according to modem practice) by informal negotiations between members of the two Houses, in the course of which a compromise is usually reached. It may, however, be that the two Houses are defi- nitely at issue on a measure ; and, until a few years ago, it was impossible to speak with certainty as to what would then happen. If a measure sent by the Commons to the Lords were of little public import- ance or interest, it would be ' dropped,' i.e. allowed to disappear on its rejection by the Lords ; if it were a matter of first-class importance, in the view of the Ministry, and the latter had the support of the Crown, the Ministry might allow the House of Lords to know that, if necessary, it would advise the Crown to create a sufficient number of new peers to enable the Bill to be carried. This was actually done in 1712, to secure a majority for the Peace of Utrecht; it has been more l^an once threatened, notably to seciure the passing of the Refoni< Bill of 1832, and the Parlia- ment Bill of 1911. But the Crown may, unless the country has had a recent opportunity of expressing its opinion, before taking this extreme step, require the Calunet to ' appeal to the people ' (p. 36), by a DIFFERENCES BETWEEN THE HOUSES z6x diMolution and General Election. If the Cabinet S^^riL"i S"^,"^.' ^'* ^'^ly *"'' however, been recently put IS an altogether diiSferent footing by the Parliairat Act P.it\^^T''''^/ *""^^^ *° By that m«S?e. ^ a fr o pm!"/P- •^^^' °°* ^^ » * Money' Bill (p. i64)! or a BiU for increasing the duration of Pa^ham^t ?oLmon/^-^^*? ^P- ^^K'^ P^^*^ ^y ^^^ House of Commons, in the same form, in three successive ^^^ K fi?^'^^** ^^°"' ^^ " not passed un- ^Zf **^J^* "°"f • *^^ B»" °»ay' 0° the third rejection, be pcsented to the Crown lor royal assent and. on receiving it. will become law. without^e o^*^'^'^"^^ °' ^'^'' It ^oxM be c^efuiSj o^ed that, though the three sessions must be S secutive they need not all be in the same Parliament dilrin^^S '^^'^'' thf \°»ay be a General Election during the passing of the measure, and. if the new mhament is of Uke mind with its predecessor, the Bill rJ? i°«K?* ^^l^^ ^^ ^^'"^ provisions in the Act enabhng tiie House of Commons to accept • sw- &°«' ?/ alteration made by the Lords. *withoSt forfeijng its privileges under the Act; aid a BiU S^i r^^ ?l^ provisions of the Act receives a speaal form of * enacting ' words, showing that it is RnW^Ai i "^^ ^T' ^°' «^PJ^ i^e 'Home fin ^."l"^'^; 1° *he case of BiUs dealing with finance (' Money Bills '). additional and morTsS^^ provisions appfy; but these will be best dealt 5^ :!/:.: If 1 hi 'I xte WORK OF THE IMPERTAL PARLIAMENT when we come to speak of the peculiar privileges of the Commons in finance matters. Private Bills The course of a 'Private' Bill (p. 136) through Parliament differs from that followed by a 'Pubhc' Bill, mainly in that the introduction is preceded by the lodging of a petition at the Private Bill Office by a fixed date in the year, and that the Bill, before being presented, must, in case of doubt, receive a certifi- cate (the grantijQg of which may be opposed) that the Standing Orders of the House, which regulate such matters, have been complied with. Further, if the Bill passes its second reading (p. 158), it is referred to a small ' select ' committee of the House, which acts as a kind of judicial body, and hears arguments by counsel (barristers) for and against the expediency of the measure. It is then ' reported,' cither amended or unamended by the committee, to the House, and read' a third time, like a ' Public ' BiU. m M I Provisional Orders Finally, Parliament ^erases what may be called an indirect power of l^slation through ' Provisional ' and other Coders. The former are issued by Govern- ment departments under the authority of various Acts of Parliament dealing with public facilities such as the supply of gas, water, and electricity, the building of light railways, harbours, and piers, the confirming of doubtful marriages, or the making of detailed arrange- ments for local government. These Orders, when made, are incorporated into the Schedule to a Bill, which, though introduced as a ' Public Bill,' passes through much the same stages as a ' Private BilL' They are, in fact, in many cases, practically Private Bills ; for the Provisicmal Order itself is often founded on a scheme PARLIAMENT AND MINISTERS z^ promoted by a railway or other company. But in. to't?/ sS^Sf FT^ ^^ ''P^** A*^^i« inSSdS to L? ^"^/ n,^ Provnsioiml Orders Confir^ Control of Ministry The second of the great duties underfal n b- liT^^^ " ^' T^J"^ ^^ ^^ MinistryTr 1^4 So^ ^]y •'°?^"^ ^* government. Thi3 rlui ha- Parhament. and its most successful instriuue^it L acquinng power. For. as we have seen. S^^ririn. f^M-^^'l^'^tV^ n: ^?**°° rapidly deJeX"',' (PP. 33-34) into the nght to forbid the lew of iiv new taxation without its consent. then^L to^e , St to'appropnate' any taxes which it mirfit «^t ♦« particular objects, iid. as a cS^u^^^ S^'e^ and examine the expenditure of suSfgmS. PRiviLECE OF Commons the*Ho!i!^ Z"^ ^°'^' *^**' ^*^ ^^y » it» history rJwSf^ °^ Commons, as distinct ffom the hZ of Lords, acquired the right of initiation in aU mSte of ^ato-that is to say. the right that ^ ^^^ ^^.^""^ i?' ^"^ '^^ ^^ ^^'^ation shouIdKe? sented to, and discussed by. the Commons betorebS,^ somuchasmentionedintheLords. TMsA^^^i^ guaranteed by a special form of ' preambK^S^S every Fmanceor Consolidated Fu^d Bill fe i^to t^ Great Bntain ^d Ireland . . . have freely a^ vdun your Majesty. The nght is, moreover, spedallv alluHi^ to u. the Kuig-. S{«ch at the opei^^cW . 1 . i: n ^1 ill, 'I ' '1 r- » I li I >ll i! X64 WORK OF THE IMPERIAL PARLIAMENT each session, in a paragraph specially addressed to the ' Gentlemen of the House of Commons.' Tacking But the exclusive privileges of the Commons in the matter of finance now extend much further than the mere right of ' initiation.' For, shortly after the Re- storation of Charles II, the House of Commons, flushed with its victory in the Civil War, began to question the right of the Lords even to make any amendment in a Money Bill sent up from the Commons ; while any step taken by the Lords so much as suggesting a new tax or expenditure was fiercely resented by the Com- mons. The first definite step was taken in 1671, and was followed in 1678 by a formal resolution of the House of Commons, which was effectively backed up by the rather imscrupulous practice of ' tacking ' any measure Ukely to be disapproved of by the Lords to a Bill embodying the whole financial scheme of the year, and leaving the Lords to accept or reject the two things together. Inasmuch as a rej ection of the financial scheme would have practically involved the stoppage of government, the Lords were seldom pre- pared to take the responsibiUty of such a step. But they rightly resented, as an unfair weapon, this process of ' tacking ' ; and it was rarely resorted to, l^ough, undoubtedly, when an entirely new scheme of taxation is proposed, it is difficult to avoid introducing into the measure clauses not of a strictly financial character. Moreover, the Lords did not admit openly their in- ability to amend, much less to reject entirely, a Money Bill ; though in practice they ceased almost entirely to do either before the middle of the eighteenth century. Such protests as they made were confined mainly to refusing or amending measures which were substantially poUtical in character, though they in- volved, incidentally, some financial changes, e.g. the famous Paper Duties Bill of i860. tiillL n MONEY BILLS ^ The Struggle of 1909 At last, however, the Lords, on the presentation of the famous ' Budget ' of 1000 HpJprmL??/^ u .? ^ the clflim n* *i^/^ ^9' determined to challenge New Provision «n?\l^"J"°!f ** °°^ responded to the challenge • ' and though, after a GeneralElection had rivenlh; S"&ce°SrlS;^^ ^^'^^^' ^y afd'Ssl^d' we finance BiU, the Mmistry introduced and ^rrierl af ^W L^^tS ^T °i.^9ii. which not on^J! ?h J!l /!? tP- ^^')' P^<^ severe restrictions on rubhc Bill sent up by the Commons, but. in thewS of fin^aal measures, in effect aboUshed that^wS ,7nnf o?^^ * ? "°"^ °^ Commons as such, may ^on^l*° ^y *^" ^°'^« ^«^° a moitt ?f session after being received from the Commons he pr^ ed for the royal assent without f mSTr dela^ Havmj; thus explained the pecuhar priXS of toe ^nr!Lf ^°^^"^^ finandJomatt^s. welSy now Foceed to desoibe the passing of the annual ' B^^ or finanaal scheme, of the^vemment ^ ' The * Budget ' We say advisedly, 'of the Government.' because it ^Zl*?H f"^ "^ r^* ^^ oTthelSSS^o of national funds can come from any one but th« g;own^ctimj t^^^ it, m^e^^L^y S: Chancellor of the Exchequer, in the House, ^^rute? Il if i!i iS i'::i z66 WORK OF THE IMPERIAL PARLIAMENT which is ordained by the House itself in the interests of economy, is based upon the sound principle, that any one who makes a foolish financial proposal shall be Uable to suffer for it by loss of office ; and it is necessary as a check on that most dangerous of virtues, a readiness to be generous at other people's expense. In bodies where a similar ' self-denying ordinance ' does not prevail, nothing is more tempting for a private member than to propose an expenditure of pubUc funds which will be poinilar with his constituents, and of whidi they will only have to pay an imperceptible proportion. The natural result is waste and extra- vagance, if not something worse; and the British rule is so strict, that not even the House of Commons, as a whole, can do mote in this direction than respect- fully address the Crown, inviting it to place a particular item * on the estimates,' and expressing the willingness of the House to vote the required amount, if asked. The ' Budget Speech ' Thus the presentation of the annual estimates of receipts and expenditure, commonly known as the ' Budget speech,' * is one of the critical items of the Government programme, and is the subject of long, secret, and minute preparation at * The Treasury,* i.e. the office, presently to be described (pp. 214-217), in which the financial work of the Government is done. Secrecy is necessary, in order to prevent pressure and evasion by powerful persons whose interests are likely to be afEected by the proposed measures ; and, with the latter object, the Budget speech is never begun in the House until business in the Government revenue offices {e.g. the Customs) has closed for the day. The Chancellor of the Exdiequer then, in a speech of some length, sums up the financial position, giving a sketch 1 The name' Budget ' is said to have been derived from a financial pamiAilet entitled r*« Budgtt Opmtd, puUiahed under the Misistiy of Sir Robert Walpole. ':'.! THE 'BUDGET' ^ diminished, for^^* i^/^.^^ ^^ acceded or in order to meet th^ t2 ^^f "^^ ^ '^"i'^ed because, though niosM;..^^ * " ^^"^^^^ necessary ; yeartoy^Xe?^ni^^',1 T^S" S° ^'^ fro^ Death Duties?or iS^n?n ^^^ °^ Parliament (,.^. the House is Xa^ ve^ S^afS"^ °° ^,^*^' OP; 34), to leave V lIS St wh.Vh"*'' if ^^"^ Mmisters to come n^tlJ^Z% 1^*? 7*" ~°*P<^ taxation, and thus riJe STh^,^ ''^ ^"^^^ ^°' criticizing their conduct 'noffiT "PP°^"^*y °' The • Gibson Bowles ' Act *»«igii trade esMcia^h,t^.K "***"*' engaged in »T wi.S'SrSte^°1^''?rfl'* »* "tides Customs duties^l u^^'.^ ti'* ***• "!»>» wMch reSed ^^byTZ^^^ott^^ ""^^ nonaal times, to ' bafancZ^L d ™, Exchequer, m »P the defidt WoT?derrrf to "^fS' "• *° T^" S^^ng Vto'S^d"\'i'^^r'"r "»*» »* *^ .-.«. waitiig th^ ™Sl «ff ■"'* 5^°" warehouses, pay theTuXS SSSis irSS? ^ s« fit to' eould be cettainnr - . * • ■ "'"e'ore. an importer uw oe certam, or even lairly sure, that an iacrMsed nM I f i I 168 WORK OP THE HIFBRIAL PARLIAMENT di^ was going to be placed on tea, in, say, three months (about the time it usually takes to pass a Budget into law) he could immediately take ' out of bond ' an enormous amount of tea at the old lower rate of duty, pretend to his customers that he had paid the extra duty, charge them with it, and put the money in his own pocket, thus defrauding both the Exchequer and the public. To prevent practices of this kind, the Chancelbr of the Exchequer, at the con- clusion of his speech, would ask the House to resolve that, if the proposed new taxes were passed into law, they should, contrary to the usual rule of legishtion, be made payable, not from the date when the Act imposing them received the royal assent, but from the date of the Budget spctch. This resolution was alwa3rs carried at once ; and, thereupon, the Customs authori- ties would insist on payment of the new taxes at once on all goods taken out of bond — ^undertaking, of course, to return the difference, if Parliament finally refused to impose them. If the new proposals related to income tax, banks and other institutions entrusted with Hie payment of interest or dividends {i.e. earnings of shares) would deduct ' at the source ' the new income tax ako. But these two practices were always a puzzle to students of the British Constitution, whether theo- retical or practical ; for they had always been taught that it was a fixed rule of that Constitution, that taxes could only be levied under the authority of a complete Act of Parliament. Accordingly, in the year 1912, Mr. Gibson Bowles, at one time a well-known member of Parliament, determined to raise the question, by suing the Bank of England to get back income tax deducted, on this ground, from the interest payable to him on some Irish^ Loan Stock. He succeeded in his action ; but the immediate result was the passing of the Provisional Collection of Taxes Act of 1913, which, with certain important reservations, provides that 111' THE 'GIBSON BOWLES 'ACT ,6„ whenever the House ni Cr^^^ . ™ mittee of w!ys^uL^?'XT/^^''''' ^ Com- any proposed vaStion1?^r\i^/i/! ^P"^^* «^t or excise ' duties or inr^l ? ^i°f,®**®*»«& customs force.' an ^on^^n^nTion^^'' ' 'i^'^''^ or tax may begin toi^^rth^^^ ^'^ ^''^^ habihty to rS if iS^^rn^^ ^* °''^' ^^^Ject to law wi^ a urt'eJ^?'°P^^ ^^ °*>* Pass^ into Mention of the Committee of Waw. *„w itr us to another impor^nS of tibtw^"^ ^^ **^^ r^arding financ^^ ^ ""i ISff^ «onding sum out of the ' Consolidated Fund ' of the United Kingdom, i.e. the balance and accruing revenue of the Exchequer from all sources, and empowering The Treasury, if need be, to borrow by short drafts, known as ' Treasury Bills,' on the security of the fund, any sums which may be necessary to make good the grant. These Consolidated Fund Bills pass through all the stages of kgidation pre- viously described (R). 158-159) ; but being short, and, virtually, aheady agreed upon, thev very quickly become law, though they afford aiK»aier oppor^nity lor criticism of tiie Ministry. Of course they are ' Monev Bilb,' specially protected by the Parliament Act ot 1911 (p. 165). Committee of Ways amd Means and Finance Bills Meanwhile, the House, sitting as a Committee of Wajrs and Means, has been considering how the deficit of the year is to be provided for ; and the reso- lutions passed in this Committee have been duly * reported ' to the House (p. 159), and embodied in one or more ' Finance Bills,' which, Uke the Consolidated Fimd Bills, have to go through all the regular stages, subject to the provisions of the Parliament Act (p. 165). But, as these Bills often impose new and searching taxes, they give rise to much more debate than Consolidated Fund Bills, and are often not passed until nearly the end of the sessioo. !i'i 'I II!! i FINANCE MEASURES ^^^ The Approprution Act m its numerous SchSuK irinH *'u'*?"''^ contain?, the national incomf ^d ^Zt^. ^"^^ ^^ o* course, it is impSleto^goCcf2''d«'^^^^ '^ in ordinaiy tim^ whikt in ♦,v. * ° details, even the bare totds^S' nival inS mnf/^ '^' °°*^°ff but given, for obvious rSSLf in «,cK^ expenditure are ' dtmmv ' *• , wLu ^-^ ^° *"** * tune, also, onlv areT^it^d \^L^^Z'' ^^ -^ -Pendi?ut credit,' or resolutions a«thnW,f ^^^ ^°*^ o* round sums, S S for ^T n?f • ^f^^^^^ of intervals. Which Se th. r ^^^^^ ** ^^^^ent borrowingmon^y tTm'^t^S^^^ *^ ^<> - StrPKIMENTAHy ESTllfcHES year, it cannot hold if in^i^".^ ** *be end of the to The -S^?^^^ If^^' but jnust return it ^^n^tes^^d^.^^^^^ I^esented'^d aut?&*^d S^"'^ ^^^ ^ even a supplementSvA^nr • ? ^^^^ °^ 'train, necessary, ''^'^^tary Appropnation Act may be Criticism of Governmbht "npomnt subject o7*?:Sj!2^.^''^SLS;<'^e !i ^„f I fv I; 273 WORK OF THE IMPERIAL PARLIAMENT national accounts, until we come to deal with The Treasury, under whose direction these important duties are mainly (though not entirely) carried out, we proceed now to touch bnefly on another important duty of Parliament, viz. supporting, criticizing, or, if necessary, defeating, the poUcy of the Crown ; always remember- ing, of course, that no criticism is ever directed agsdnst the King personally, because, in all matters political, he acts on the advice of his Ministers (pp. 44'-45)- Inasmuch as it is of the essence of the Parhamentary or ' Cal^et ' s\^em of government, as understood throughout the British £m|»re, that every department of §tate should have at its head a Minister who is a member of Parliament, and who can therefore be questioned and defenil his department in Parliament, it will be perceived that every department of State is ' responsiUe ' to Parliament in a v^ real sense. • Questions ' Ministers occupy seats in either House on the ' Treasury Bench,' or row of seats on the floor of the House, on the right hand of the Lrad Chancellor or Speaker fi^)ectively ; and one of the enliest items in each day's proceedings, is a formidable aaxay of ques> tions on every concetWble subject, of wiich private {i.t. unofficial) nifiwrn of the Hovse !■■« given notice. The ^ect o^^e nottcftis, of csamm, to enable the Minister conceimd to get tls necessasy informa- tion (oftoi iaerolving ff^eat investipttioa) to-enabie him to reply to tm questioner. By a laefoi reform efiected a few years ago, someof these replie&are given in writing, and publishai with the official Repnts of the Debates (' Hansard '), which are, of course, freely accessible, not only to members, but to any person who chooses to exanaine them. But the more important are answered by word of mouth in the House, in the presence, not only of members, but of strangers occupy- Mil OUESnONS IN PARUAMENT ~- •««^«^ are. or S ^ .".ft^* »" «» «»4anroceedinior«J»riV^^ •">d. under cover of •gauut the Miaister-rica™, bT"^ "gaments .tucked my defendhta^SsaZ .*5l. TH"" nobce of that question/ or Krl^^LljfT^ """ »d«y: • Tie hon. member mSrti^rCS^^J MonON TOH AOJOOHNIIBNI of the question) takes rik~.!^'l?'*«"'»«ance which formally ip^^ ffl'l' ^ *« Government, '«<«-. or at UtZ ^^'^ t^^^T Resoloton of Want of Cowdkhc, '^luS?n'^,SS^^S?X%rt»''»"-' ^-£5r^>£«S^HaRo^SSS!: independeiUy^S^SiaXn? .^ ^"^ *° investigate failure or nZZl^^^TG^t^-'^ ^1^^ or by such sources of infoSJiSonTSe n^li^^""*' or even common report. iHSS «^r« i,i^*P*P"®' a general vote of waSt of ««fiZJf °»°^ «treme cases, may be rawed A^fr^T^^^V^ ^^ Government on such a motion >^U on^ be'^l2^^ ^ » the Govern. party in the House 1,2 «f ^**^ '^^ * substantial *~ y uienouse, and the power which tht G«vem. in h!| i ? r ill 1 ill 274 WORK OF THE IMPERIAL PARUAMENT ment exerdaes (not u servants of the Crown, but as leaders of the House itself) of arranging the ' ^o- gramme ' of the House, enables it to prevent the time of Parliament being wasted in debating motions of this kind. which have no chance of success. But no Government would dare to deny opportunities for such a debate if it were really the desire of the House that it should take pkice ; for to do so would merely result in the House refusing to support the Govern- ment, and, in the case of the House of Commons, at least, S'lch refusal would be fatal to the Government's existence. It )ua, however, long been the practice for Liberal Governments to disregard ' votes of cen- sure ' by the House of Lords ; because they are always in a minority there, and have no chance of getting a majority in that House by a General Election. Resignation op Government The debate on a resolution expressing a want of confidence in the Government is, of course, a test of strength between the Government and the Opposition ; and if the resolution is carried, or only defeated by a very small majority, the Government, in the former case invariably, in the latter usually, tenders its re- signation to the King, or, if circumstances are favour- able (p. 45), requests him to dissolve Parliament, that the electors may decide between the parties. Informal CoMMmEES In addition to these occasional steps, and, indeed, with a view of prompting them, many groups of members, or ' committees,' are voluntarily formed to enable their members to keep a vigilant eye on the action of the Government in r^;ard to some matter in which those members are specially interested, such as agriculture, the navy, tariff reform, and so on. It is not vay wu^ to be sure as to the relationdiip between li iil ' ■I'' * MOVEBIENTS • IN PARUAMENT 175 Secret Sessions «wfT ''°'1' °^y; P*'^**?*' Ji^re be usefully said Jjswer, on the ground that to do » 5^'llt^„!; w vaiue 10 enemies, open or secr«»t Qn/<««tw. Nm York 14809 USA (716) 482 - 0300 - Ptwo. (716) 288 - 5989 - Fox m if. 11! X76 WORK OF THE IMPERIAL PARLIAMENT , Civil War, and the growth of newq>apere and other periodical Uteratnre, more and more the fiction of aecrecy broke down ; and the suspicion grew also, that any insisteMe on the privilege of secrecy was likefy to be at least as nradi in the private and comipt interests of membos of the House, as in the desire to prevent interference by the Crown. At last, in the third quarter of Ihe eighteenth century, in a series of quarrels between the House and the authorities of the City of London, who, under the guidance of the notorious John Wilkes, champicmed the cause' of the printers of the debate, the House of Commons was ddinitely defeated ; and the publication, both of detmtes and voting lists, became a regular thing. Still the House refvoed to recognbse publidty as a right of the dtuten ; though it appointed a prints who supplied copies of Parlia- mentary Papers to all and sundry, and even allowed a Strangers' Qdlery to be built on the edge of the debamig Ghamber. Finally, however, in 1875} the xi^t to exclude strangers was restricted in the Com- mons to the Speaker or the Chairman of Committees, and is now ecially during a session of Parliament. J^o?27- .^*i**?«^t«»is activity has its doubtfri ade ; espedalhr when it is concerned idth the procuring oraooidmgoffavoi^s. Nonetheless.itisan*^Sl ciment in the worlang of really popular govemmottt and especially in the ^Ssntilation S^o?S[^?se gnevances which, if kft unnoticed, are apt to rankle, and produce a duigerous feeling of unrest ^^ - jf PBTrnoNS From the wrHest times, the House of Commons has been a centre for the redress of grievances- and fomerty^ 'recdvers and triers of petitions' wer^ appointed at the commencement of eacb lession. As new ways of, dealing with grievances were invented, tte course of procedure changed; but the present tacm of petitions to fftrliament on puWic^uWecU ttacxme so popular in the sixteenth and seventeenth oeotunes, that a Committee of Grievances sat re«X^ dunng those years, and, in 1661, an Act was p^ to preventthe presentation of petitions in a ti^^ms Zi^^^^^^^' *?* "«^* «»* "^ «o^«^ to pebtion the King was, however, rea&med in the m■ ! ; f I i ' i8o WORK OF THE IMPERIAL PARLIAMENT by proclamation after the ' recess/ which, in normal times, lasts from mid-August to February. Strange to say, by a rule the reason of which is not apparent, all pending business likewise drops on this occasion, as on a dissolution, and has all to be begim again in the next session. Adjournment Finally, during the session, each House adjourns itself from day to day, or over the week-end, or a short vacation, or merely for a few hours, by simple resolution. This step has no legal effect on business, which is taken up, accoi^c^ng to the time-table of the House, which is regulated by the Standing Orders, just where it left off. That is one reason why, during a war or great crisis. Parliament is not prorogued, much less dissolved, if it can be ^voided. It is merely adjourned from time to time, ready to take up its work again, as the needs of the momen; require CHAPTER VIII THE FIGHTING SERVICES As has been before pointed out (p. 5), it was one of. the oldest, if not the very oldest duty of the King to kad his people in war ; and the right and duty of the Crown to train, equip, and control a sufl&cieut military force to defend his dominions from attack, has never, except in time of revolution, been denied. But the common sense of the British people, sharpened by experience, has not been bUnd to the dangers which might attend the exercise of these rights, and has devised certain safeguards against them. Moreover, the enormous cost of modem warfare, an4 evoi. of preparation for warfare, has long rendered it impossible for the Crown to perform its miUtary duties without frequent recourse to Parhament for the grant of money ; and Parliament has, not unnaturally, made of this fact a powerful lever for securing national control over military policy and administration. The King and his advisers, on the other hand, have wisely seen, that a hearty national co-operation in the work 'of providing and maintaining the fighting services is far more valuable than a sullen submission to autocratic levy of men and money. The result has been a series of arrangements which form an important part in the government of the Empire. The Royal Navy The oldest of the present fighting forces of the Crown of a professional character is the Royal Navy. 181 . I i<'j] i, 1 Z82 THE FIGHTING SERVICES IH 1 Owing to her insular position, England has been from time to time engaged in maritime war from the earliest days of her history; and the iU-omencMi Ship-Money Writs issued by Charles I were said to have been taken from precedents used before the Norman Con- quest. But it was not until the late fourteenth century that a general system was established for the naval forces of the Crown by the creation of the office of Lord High Admiral, and the recognition by Parlia- ment of the King's right to require the services of sea- faring men for the Royal Navy— the so-called right of ' impressment.' This right has never been aban- doned ; and, for many generations, sailors who were p^ectly prepared to serve in the Navy insisted on going through the form of being ' impressed,' because it was attended by the payment of bounties which they preferred to r^;ular pay. But, for the last century, at least, the Royal Navy has been so popular, and the conditions' of pay and other provisions have been so much improveid, that service in the Navy has been voluntary. The Tudor Revival With the interest in maritime affairs aroused by the great discoveries of the fifteenth and sixteenth cm- tunes, the growth of the Royal Navy proceeded apace, especially under the Tudor monarchs, who were fully alive to the importance of supremacy at sea; and England entered upon a series of Titanic rivalries with Spain, Holland, and France, for the acquisition of that supremacy, which left her, or rather the British Empire into which she had expanded, at the Peace of 1815, the first Naval Power in the world. Superb as have been the bravery and enterprise of British sailers in acquiring that position, it is almost equally creditable to the moderation and good sense of British statesman- ship, that it has been so justly and wisely used, as to arouse little jealousy and suspicion. And when the SEA POWER 183 hour of supreme trial came, it was the proud bt of the British Navy to find arrayed in comradeship with it, the fleets of practically all the dviUzed Powers of the world, with the exception of that which had thrown down a sinister challenge to its existence. The Admiralty So great had the powei- of the Lord High Admiral, the head of tliis mighty force, become, even in the seventeer.th century, that we find Charles I adopting the practice which, as we shall see, was adopted also with regard to the great offices of Lord High Treasurer and Lord Chancellor, of ' putting it into commission.' The practice was quite in accordance with the views of the Parliamentarian party, who, though they took a great share in the developement and improvement of the English Navy, and made its name famous throughout the world, had no love for great officials ; and, though the office was revived, on the Restoration of Charles II, for the King's brother, thefuture James II, that step did not add to its popularity, and, by a statute of the year 1690, the practice of putting the office into commission was regularized. From the year 1708, in fact, save for the brief tenure of the office by the Duke of Clarence, afterwards King William IV, from 1827 to 1828, there has been no Lord High Admiral of England, much less of the Empire ; and ' My Lords of the Admiralty ' have riiled the destinies of the Navy. Growth of Admiralty Offices Meanwhile^ however, the growing needs of the Royal Navy had been met by the growth of an ad- ministrative system which comprised a Navy Board, created so far back as 1546, a Victualling Board, and a Treasurer of the Navy, all acting in subordination to i: 'i? I't If i \ I H 184 THE FIGHTING SERVICES the Admiralty; and, though Parliament had never shown any jeateusy of the Navy at all corresponding with that which, as we shall see (pp. 18^x90), mani- fested itself in connection with the army, it had, by a great statute of the year 1661, empowered the Crown to issue ' Articles,* or regulations, for the control and discipline of the Navy, and to appoint naval courts martial, or special tribunals for the trial and punish- ment of offences by officers and men of the fleet. This latter jurisdiction must be carefully distinguished from the jurisdiction exercised by the ' Court of Admiralty ' over all offences committed by British subjects on British ships on the high seas, and over certain purely civil business, such as salvage claims and actions against ships, which jurisdiction had been the subject of fierce dispute in the sixteenth and seventeenth centuries, and has nothing to do with the discipline of the Royal Navy. Reforms of 1832 In the year 1833, the management of the Navy was placed substantially on its present basis (though there have been, and constantly are, changes of detail), by Sir James Graham, who procured the abolition of the semi-independent Navy and Victusdling Boards, and the transfer of their duties to the Admiralty Board.' Thus the whole business of the Navy, military as well as civil, became concentrated in the hands of the * Lords Commissioners for executing the office of Lord High Admiral,' who are appointed by Letters Patent. The number of such Commissioners varies from time to time, according to the requirements of the situa- tion ; but the Board always comprises a ' First Lord,' a 'First ' and other ' Naval Lords.' and one or more * Civil Lords.' In addition, a Parliamentary, a Finan- cial, and a Permanent Secretary, are appointed members of the Admiralty Board, but not by the Letters Patent appointing the Lords Conunissioners. THE ADMIRALTY x85 Working of the Board of Admiralty Unlike the Treasury Board (p. 216), m ch now never meets, the Admiralty Board has nevu ceased since 1832, except for a brief and bad period, to hold regular and frequent meetings at which genuine business is genuinely discussed. But it must not be supposed that the decisions of the Board, like those of an ordinary committee, are arrived at by the simple process of counting votes. Though the Lords Commissioners are all legally on the same footing, and any two of them can sign for ' The Admiralty.' the ' First Lord,' who is alw&.ys a member of the Ministry, and. in ordinary times, of the Cabinet, is, and is intended to be, much more than a mere chairman ; because he, and he alone, IS directly responsible to King and Parliament for the administration of the navy. This fact was always understood after the reorganization of 1832 ; but it ^s put beyond question by two Orders in Council of 1869 and 1872 respectively, which definitely sub- ordmated the other members of the Commission to tte First Lord, and gave him power to arrange the distribution of business among his colleagues. Thus the decisive voice at the Board is with the First Lord,' who, if his colleagues attempted to overrule him, would decUne to take responsibiUty for their decision, and dther resign his office (whicL would mean the dissolu- tion of the Commission), or procure the dismissal by the Cabinet of any colleague who persisted in opposing him. The position of the ' Junior Lords ' of the A J miralty, is, therefore, anomalous. They are, in theory responsible for the decisions of the Board, but cannot control, though, doubtless, they can and do in- fluence, its pohcy. The bulk of their time is, probably occupied with the immense and important duties of the administrative work entrusted to them by the Minute of the First Lord— the recruiting and manage- ment of the men of the navy ard the education of, the ' f } ! i 'i\ 1 . Si i J: 1 z86 THE FIGHTING SERVICES issue of commissions to, and promotions of, its officers, the building, manning, and moving of the ships, the construction of naval. docks and harbours, the main- tenance and working of the ' yards ' or works in which the vast machinery of construction and repair goes on, the appointment and duties of the civilian staff, and the great business of finance. It is in these matters that the expert does his important work. The Parliamentary and Financial Secretaries to the Ad- miralty may sit in the House of Commons ; but the other members of the Board, even if they cannot all be called ' permanent,' are excluded from the House by the operation of the Place Act of 1707 (p. Z05). Naval Enlistment and Discipline Acts As has been before remarked (p. 184), there has never been any constitutional check on the mainten- ance or recrmtment of the navy, other than that imposed by the necessity of getting money for these objects from Parliament. But the old haphazard methods of recruiting have been r^Iaced by a scientific and highly successful system under the provisions of the Naval Enlistment Acts, which make provision for the period of service, disdiarge, and pension of the men ; a special provision being that no man can be compelled to serve for more than five years. Likewise, also, the maintenance of discipline in the navy.originally a matter of undisputed prerogative, is now governed by the provisions of the Naval Discipline Acts, which incorporate, with many additions, the Articles of War issued by the Crown under the provisions of the Act of 1661 (p. 184), and, further, authorize the creation, when occasion requires, of naval * courts martial,' comprised of officers of the Fleet, which have power to try officers and men of the Ro}^ Navy for offences, not only against naval disdplme, but also against the common law. Further, the Acts make lir NAVAL DISCIPUNE t^ J«|jriMi to ' ccwrU ol «quiry/ aho of a naval char, •cter, for the purpose ol invettigatii« events which demand explanation, though noW^cw ?t fi^ £ jtccu^ofrespcmsibUityfoTthem. UnSSSelSdiS £k^^ii*^?*^i^ *^« ^°/*' Navy is, th«dX J^^*3^ ♦? ordinary courts ol justice ; and this his ship or squadron for purposes of trial, might involve ^ec«»anr inconvenience Sd expense. SLil^tl S^'lii? ♦« ♦?* °M ^^ ^'?- 38) previously describe*^ apphes to the sailor as much as to the soldier. Natal Reserves M^.^^'^M^ *° the regular officers and men of His Maj wtj^s Navy, on fuU pay. amounting, at the outbieak of the E«rop«m war. to 150.000. tto are more^ wor^ in war. There is. for example, the Royal Nral R^erve, constituted under an Act of Parha- ? *v i®59%^^ ^^^^ »°*o ^^ Royal Fleet Reserve S.J^! X^ ^"^^ ^? °' ^900. By the original sdbme. the members of the R.N.R. kUsted for a penod of five years, and were liable to twenty-eieht days of tr^ng m each year ; but these requircm«Sts were a good deal stiffened by the Act of loSo, and aU hmit of nmnbers in this force was remo^ by ^ Naval Forces Act of 1903. which also sanction^ the creaton of a body of Royal Marine Volunteers, avail- able for service beyond the four seas. It is under the provisions of these Naval Reserve Acts that the invaluable auxiUaries of the regular Fleet known fajtmUarty as the 'minesweepers' were orgamzS^^ Then too it may be noted that the men of the Coast Guard (a system of coast defence which 13 f, ! ( ■ . I ■ * 1: .;Wk a^ !i'"K 1 I &: M 1 1 x88 THE FIGHTING SERVICES has been in existence since the reign of Edward I) and oiha sea-faring men in the Government service, as well as navy pensioners, may, in case of emergency, be called upon to serve. Inasmuch as these all are, or have been, professional sailors, the value c^ their services is very great. L\ND Forces As has ahready been remarked (p. 7), the ^liest land forces of the Crown were of the nature of civilian soldiers, or miUtia, only liable to serve for defence, and, according to strict theory, only in their own counties. The Feudal Array When the Norman Conquest had shown the need of a professional army, it was raised on feudal principles, by making the liability to service dependent upon the holding of a landed fief or estate. But the feudal array thus provided for soon ceased to be,^ if it ever was, a ' standing ' or permanently embo^ed army ; its members being only bound to serve the King for forty days in each year. Commissions of Array For this and other reasons it soon became obsolete ; and, after some attempted schemes of Edward I, which have not received the attention they deserve, tile feudal levy was replaced by * commissions of array,' i.e. virtually, armies of professional soldiers recruited by their immediate officers, by virtue of royal commissions, or authorities, issued to them by the King. These commissions were intensely unpopu- lar, on account both of the character of the soldiers (solidarii or ' shilling^men ') raised by them, and of the high-handed methods used by the holders of them to procure recruits. Many Acts of Parliament were COMMISSIONS OP ARRAY 189 passed to prohil»it such methods, as well as the tesult- mg steps of • billeting ' or compulsory lodging of such men (usually strangers to the locality), and the granting of unusual powers of discipline and trial to the officers receiving the conmiissions. Nevertheless, tfie difficulty of finding the money to pay them re- mained the chief legal obstacle to the raising of such troops; until the use made of commissions of array by the Stuart Kings to overawe their subjects, and establish autocratic govenmient, led the champions of freedom definitely to challenge their legality. The practise of issuing conmiissions for trial by 'martial law' was the more odious, in that it was extended by James I and his son, not merely to pro- fessional soldiers, but to other * dissolute persons . . . for any robbery, felony, mutiny or other outrage, or misdemeanour,' i.e. to private citizens for offences known to, and properly triable by, the ordinary law courts. The Petition of Right After various protests, the Parliament of 1628 procured the acceptance by the King of the famous statute known as the ' Petition of Right,' because it declined to admit that it was creating new law, and professed to be merely a re-affirmation of existing law. By that Act, 'vhich is still in foree, after a full and explicit recital of these and other grievances, His Majesty is prayed ' to remove the said soldiers and mariners, and that your people may not be so burdened in time to come; and that the aforesaid commissions for proceeding by martial law may be revoked and annulled ; and that hereafter no commissions of like nature may issue forth to any person or persons what- soever ' ; and His Majesty, despite his obvious un- willingness, was constrained to grant that ' right shall be done as is' desired.' It should be particularly noticed, in view of subsequent and lecent haf^wnings, that the H J !■ ! . ■ i ^■ : ; 1 ■ 1 I ' ■' i •Mr ^^i :, ; * \ '■ : ;, » ! i J ^-i ' i i . 1 W n i : it at. I I ■ ^ V ! 1,1 190 THE FIGHTING SERVICES prohibition of trial by martial law (as to the natuze of which something will hereafter be said) was not ty the Petition of Right restricted to time of peace, in spite of a suggestion to that effect by the House of Loida, made at the time of its passing. The occurrence of the Civil War Portly after the passing of the Petition of Ri^^t somewhat masked the importance of that document for a time ; but it by no . means altered the attitude of the nation towards a professional army. For even Cromwell's New Models which included tiie ibmous ' Ironsides/ notwithstand- ing its furious exploits and its Parliamentary char- acter, was intensely unppipular ;' and the very success of Cromwell had an obvious effect on military arrange- ments down to the great French War at the end of the eighteenth century. l; I The Bill of Rights Accordingly, when James II showed a disposition to imitate the policy of his Either, by establishing a camp of professional soldiers on Hounslow Heath to overawe ]U>ndon, his subjects deposed him, and, in the great Bill of Rights, in 1689, in which they offered the throne to William of Orange and his wife, they made it an express condition of l^eir offer, that ' the raising or keepiag a standing army within the kingdom, in time of peace, unless it be with the consent of Parlia- ment, is against law.' This statute, likewise, remains on the Statute Book ; and thus the legal position of the professional land soldier is, obviously, different from that of his maritime comrade, because, quite apart from questions Of ways and means, the Crown does an unlawful act, and all persons who take part in the proceedings do unlawful acts, if they equip a single regular soldier within the kingdom (which does not indude India), in time of peace, without the esqpress sanction of Parliament. THE REGULAR ARMY 191 It is, however, one of the strangest facts in English history, that the very event which rendered the exist- «ice of a standing, or • regular ' army within the reahn. pnma facte, illegal, also rendered it necessary. But the ap^rent oddity is easily explained. Naturally, the dethroned monarch and his descendants would hot submit to the loss of their inheritance without an effort • and there were many rulers (especiaUy the powerful' Kmg of France) only too willing to make use of the Stuart or Jacobite claims, to embanass William of Orange, whom they hated as the chs. .ion of Protes- tantism and liberty. 'Mutiny Acts* Accordingly, it l>Bcame necessary to provide in some way for the suspension of the provisions of the Petition of Right and the Bill of Rights above quoted ; and this was done by the passing of annual * Mutiny Acts/ which, after expressly repeating or * reciting ' these pro^osions, declared that, for one year, they should be m abeyance. At first these Mutiny Acts did not go further ; but, in 1712, tiiey began to fix definitely tiie number of soldiers which might be raised by the Crown under their permission, and this practice has rontmued ever since. About that time, also, began the practice, easy but not very sta^htforward, of attachmg the words ' in time of peace,' which, as we have seen, were really in the clause of the Bill of Rights (p. 190), which deals with a standing army, to the ' recital ' of the clauses of the Petition of Right (p. 190) dealing with martial law and billeting, in which they do not occur ; and this practice, being embodied in Acts of Parliament, may be said to justify the view, that the limitation to ' time of peace ' must be now read into the Petition of Right, though it certainly does not justify the statement that ' the framera^ of the Petition of Right knew well what they meant < I M ! i lii H ,r ^92 THE FIGHTING SERVICES when they maide a oonditkm of peace the ground ol the illegaUty of. unconstitutional proceduxe/ The Army Act The Mutiny Acts extend in a long and ahnost unbroken series from 1689 to the middle of the nine- teenth century, as standmg witnesses to the growing control of Parliament over the regular army ; for they increase as they go on in compkxity and length, by the insertion of many clauses dealuig with the dis- cipline, training, billeting, and general management of the regular troops. Thus an elaborate code of * military law,' very different from, though it is often called by the same name, the ' martial law ' prohibited by 'he Petition of Right, came ulto existence ; but it k ar plicable only to ' regular ' soldiers, including the militia or Territorials when ' embodied ' or called out for service. At length, in the last quarter of the nineteenth century, a very useful step was taken. What may be called the ' permanent ' parts of military law (though of course they are altered from time to time) were separated from the temporary provisions which suspend the Petition of Right and the Bill of Rjights, and embodied in a permanent statute, com- monly called the 'Army Act, 1881,' but more properly ' The Anny Act,' because, by an admirable arrangement, when any iteration is made in its pro- visions by an amending Act, that alteration is im- mediately incorporated into the Act itself, so that the British officer who has to work under it knows exactiy where he is. The odd thing is, that this ' permanent ' statute is in a very true sense ' annual ' ; because it is re-enacted or revived year by year by the Army (Annual) Act, which has taken the place of the original Mutiny Acts of William and Anne, and is, ususdly, quite short. It is this Act, which we will continue to call, ifx clearness, the 'Mutiny Act/ which authorises THE 'BIUTINY ACT* 193 exactly the maximum number of regular troops which tte King may levy and maintain ; and it is remarkable, that Parliament has continued to pass this Act during the great war, notwithstanding that the prohibition of the^ Bill of Rights as to a standing anny is confined to tmie of peace/ This annual Mutiny Act, as has been said, also suspends the operation of the clauses about martial law and billeting m the Petition of Right, and, if necessary, makes alterations in the ' permanent ' Army Act, which are then incorporated into the latter statute. Discipline of the Reguijoi Army The management and control of the army have, as has been before said (p. 7), always been recognized, except in times of revolution, as being the peculiar prerogative of the King. Articles of War Accordingly, soon after the practical necessity of a permanent standing army had become apparent, at the end of the seventeenth century, the King began to issue from time to time ' Articles of War ' for the government of the troops. These Articles dealt mainly with minor offences ; because the Mutiny Acts themselves, as a rule, dealt with capital offences, whereby men might be ' forejudged of life and limb.' But, at the beginning of George I's reign, it was thought better to put this royal prerogative on a constitutional footing ; and so, by an Act of Parliament of the year 1717, the King was definitely empowered to issue Articles of War— a fact which does not, of itself, deprive him of his independent prerogative. ' King's Regulations * As, however, the provisions of the Mutiny Acts became more and more detailed, the scope of the King's f^f ii ' i i 4 M 194 THE nCHTING SERVICES Ml prerogative in ihis respect, whetiher derived from common law or the Ac^3 themselves, became, in prac- tice, more and more restricted ; because, of course, the Kii^; cannot, by Articles of War, alter the {no- visions of an Act of Parliament. The ' King's Regu- lations,' therefore, are concerned mainly with the minor affairs of military life, such as the soldier's unifcnn and equipment, the etiquette of the baYracks and the mess-room, the formalities required in com- municating with the authorities, and so on ; while the really important rules affecting the soldier — ihe terms of lus enlistment, his billeting and transport, ani his trial and punishment f«r sdleged offences — are governed by the Army Act. This is an important iac%- la view of a great constitutional question wludi mui^it hereafter be discussed ; biit the great prerogative pow^r which still belongs to the Crown in army administri.- tion was vividly illustrated by the step taloen in 1872, when the sale of commissions, which for long had been openly practised under Army Regulations, was abolished by Royal Warrant. « Parliamentary Control of Army It was long before Parliament obtained any further hold over the army than that contained in the Mutiny Acts. Of course the n'^cessity of coming to Parlia- ment for mone^ to pay the troops and provide equip- ment and provisions compelled some sort of account of its management to be given. The Secretary at War But the Secretary at War, an important official on whom this duty fell, was not part of ^e Ministry of the day ; and if, for reasons of obvious convenience, he occupied a seat in the House of Commons, he did not admit that he was responsible to that House. The sums voted by Parlismient for the army were ■\> f* THE WAR OFnCE 195 handed over to the Paymaster of the Forces, who was , not by any means neo^sarily a member of Parliament at all, and who was responsible for his acts to the King alone. Army Estimates The first definite step taken to bring the regular army under the control of Parliament was the enact- ment, in the year 1783, as part of Burke's schemes of reform, of an Act requiring the Secretary at War to prepare and lay annual estimates of military expendi- ture before Parliament, and to obtain and examine the accounts of the Paymaster, whose defalcations in the past had been notorious. Commander-in-Chief and Secretary of Stats But a far greater step was iakea in the year I793» when, as a consequence of the great French War, the military control of t)]e army was placed under a pn>- fessional Commander-in-Chief, while its administra- tive control was placed under a newly created Secretary of State for War. Thus began that system of ' dual control ' of the army, by the ' Horse Guards ' or head- quarters of the Commander-in-Chief, and the 'War Ofl&ce ' or bureau of thd Secretary of State, which was the parent of so much friction and confu^on. More- over, the old office, now become meaningless and dangerous, of Secretary at War, was not abolished. The definite establi^mient of the principle that in army administration, as in other departments of State, Parliament is supreme, did not come until after the Crimean War, when, by the separation of the War and Colonial Offices (p. 76), and the abolition of the Secretaryship at War, the Secretary of State for War, always a member of the Ministry, and, in normal times, a member of the Cabinet, acquired complete control of ■ll^M If j 196 THE FIGHTING SERVICES the Anny, and, of course, therewith complete respon- sibility to Paxiiament, tempered only by the survivh)g powers of the Commander-in-Chief. f: Rbforms op 1870 The latter office was, moreover, definitely subordi- ^ ited to that of the Secretary of State by Mr. Cardwell's reforms of 1870, which created, in effect, three sub- departments of the War Office, the first, purely mili- tary, under the Commander-in-Chief, iht second deal- ing with equipment and commissariat, taking over the duties of the old Ordnance Board, and the third dealing with finance. The two latter sub-departments were presided over respectively by a Surveyor-General and a Financial Secretary, both of whom might be members of the House of Commons, but who were distinctly subordinates of the Secrettuy of State. Reforms op 1888, 1895, and 1904 Further reforms, of a partial nature, were introduced by Mr. Stanhope in 1888. and Lord Hartington in 1895 ; but the most omiplete change was made in Z904, wh:n, as the result of the recommendations of Lord . sher's Commission, the office of Commander-in- Chief was de&iitely abolished, and the govemnient of the army aitrusted to an Army Council, created from time to time by Letters Patent, and consisting of the Secretary of State, the Parliamentary Under-Secre- tajy for War, the Financial Secretary to the War Office, wi^ four professional members, viz. the Chief of the General Staff, the Adjutant-General, the Quarter* master-General, and the Master-General of Ordnance. The Akicy CouNca This body, whose duties were regulated by Order in Council and which c(Asists, as we have just seen, of THE ARMY COUNCIL »97 tluTM Ministew and low professional officials of high rank, has the virtual control of the daily administration of the army, issues fonnal Ordera relating to its govern- ment, and, under the Defence of the Reahn Acts, about many other matters relating to public safety regulates promotions, carries out the decisions of the Imperial Cabinet on the subject of the direction of campaigns, and the movement of troops, and, through the Committee of Imperial Defence (p. 26), co-operates with the Royal Navy. The fact that the Anny Council contains a majority of non-Parliamentary members, may appear to be mconsistent with that Parliamentary control of the army which is essential to the principles of the British Constitution; but apart from the fact that the Secretary of State is Piesi^ dent of the Council, it is clear, from the terms of the Letters Patent constituting the Council, and the Order in Council regulating its duties, that the Council is only to act as a highly responsible and qualified deputy of the Secretary of State, who is responsible to King and Parliament for the business of the War Office. And, though the Secretary of State may not be actually a member of the Imperial Cabinet, he is so closely in touch with it as to make him morally oertam of its support, so tong as he retains office. FmaUy, though the reforms of 1904 contemplated the appointment of an Inspector-General of the Forces, whose office might conceivably have retained a good deal of the old independent authority of the Com- mander-in-Chief, in fact, after a single experiment, this new office has fallen into abeyance. Judged by results, the first ten years of the working of the new scheme may be said to have been highly satisfactory ; for, by the admission of all parties, there has rarely been launched by any army organization a more efficient force than the Expeditionary Army which, called in August, 1914, to withstand the shock of the most elaborately prepared and overwhelmingly 1 : I If i : ; ! i ■ f i t ^ii' ; '-n ^ ''ii Nil' I j f » p ' i . 1^ i-M it vr i 1 . ! M i « *s 198 THE FIGHTING SERVICES nnmeioQs anny of invaskm ever teen in the hktory of modem Eutope, perhaps of the woxld, gaUantiy performed its heroic task. The sabject of army recruiting— 1.«. the terms of and liability to service in the British army, is now, naturally, in a fluid state ; and we can give only the barest outlines. Briefly speaking, however, there are now four chief sections of the army, each of which stands, legally, on a distinct footing. The Regular Akmt (z) The first of these is the ' regular ' or professional section— infajitry, cava}^, and horse and foot utQ- lery, and engineers. These are recruited under the terms of the Army Act, on a voluntary system, which author- izes the Crown to accept their services fbr a period not exceeding tweb^ years. In practice, the period for which the regular private soldier enlists is now seven years with the colours and five in the' reserve ' (p. 200) ; while it would .seem that acceptance of a commission by an officer binds him to serve during the Crown's pleasure, though, in time of peace, the officer can, in practice, res^ his cbmmission at any time. More- over, the length and terms of service may be extended or varied by the Secretary of State, within the limits prescribed by the Army Act ; and there are provisions for suspending the right to a discharge at tiie expiry of a period of service, if the Empire is Hnen at war, and for prolonging it voluntarily, if the soldier so desires. Owing to the great changes wrought by the European War, it is impossible now to give any idea of the probable future numbers of the regular army ; but, at the outbreak of the war, it numbered about 120,000 men. The members of the regular army are liable to be sent anywhere, at any time, on service. ^ A\ THE REGULAR ARMY Tn Royal Maxinbs »99 (a) The Royal Marines are a body of regular troops, in&mtry and artillery, of great value, wldch occupiet a curious legal positkm. Its members are liable to serve both on Ismd and sea. They are raised under the provisions of the Mutiny Acts, which miUce special reference to them; and when they are serving on land, or on any merchant ship or transport, they are, with certain reservations, sutject to the provisions of the Armv Act. But when they are servmg on bcMu?d a ship of war, they are subject to the provisions of the Naval Discipline Acts (p. 186-187) > unless they are ' borne on the books ' for service on shore, when only parts of those provisions apply to them. New Arhiss (3) The 'new' armies raised at the outbreak of tile war, and now forming by tu the largest part of the armed forces of the Crown, differ in more tlum one respect from the ' regular ' or ' standing ' army. Li the first place, they are enlisted, at any rate so for as the non-commissioned ranks are concerned, for three years or the duration of the war only ; and over five millions of men were voluntarily so enlisted. In the second place, since the passing of the Military Service Acts of the year 1916, every male British subject ordinarily resident in Great Britain, between the ages of eighteen and forty-one, is liable, subject to certain exceptions, for general service in them, during the war, and is, indeed, deemed, on attaining, or, if he had attained at a cer- tain date, the age of eighteen and had not attained forty-one, to have been enlisted therein and ttans- ferred to the ' reserve ' (p. 200). From this reserve he can be called up as required ; and, as a matter of fact, such persons are syst)ematically called up for active service, subject to Uie requirements of essential indus- s IS ■H I l\ i ! ! THE nGRTING SERVICES tries ind variout exemptiont on account of iUncM, haxdship, or other ground of postponement. These armies likewise comprise all branches oi ihe land service. Tn Territorials (4) The Territorial and Reserve Forces, which have substantially taken the places both of the old militia and the 'Volunteers'* of the nineteenth century, niese are not, in ordinaiy times, strictly a part of the standing army, but rather materials from which a standing army may be speedily raised* Thb Arky Resbrvb The ' reser/es ' are in substance ex>soldiers who, on the expiry of their period of service with the colours (p. z :), are tranuerred to the reserve under the provisions of the Army Act, and others, likewise usually men of some military experience, who have directly enlisted into the reserve under the provisions of the Reserve Forces Act of 1882. These form Class I of the Aimy Reserve, are the first liable to be called up for service, and may be called upon to serve anywhere. Class II of the Army Reserve comprises Greenwich and Chelsea out-pensioners, and other time- expired men ; and they are not liable to foreign service. At the outbreak of the war, these two classes together nimibered about 146,000 effectives. If Parliament 's not sitting when the Army Reserve is 'called out,' it must be summoned by the Crown to meet within ten days. In time of peace', the members of the Aiiny Reserve are subject to short periods of annual training. 1 The term, though familiar, .j misleading ; for the members of the regular army have long been volanteers in the strict sense. Bnt the cJUoqnial nse of the term signified the amateor aobSfln id the latta hill of the ninetea^ centory. 'THE RESERVES 90X Tn Militia Rboxvb The Militia Reserve has now became practicany obsolete; because most of its members have been transferred to the ' Special Reserve ' created under the provisions of the recent Territorial and Reserve Forces Act of Z907 (p. ao2). While it existed, it comprised such trained militia-men (p. 7) as voluntarily enmted faito it —a step which entailed the liability to foreign service if called to the colours. Whilst in reserve, the members of the Militia Reserve were subject to the same annual training as the members of the Army Reserve. Thb Spbcial Reserve The Special Reserve, as has been said, is a creation of the new scheme for the improvement of the civilian forces contained in the Territorial and Reserve Foices Act, Z907. This scheme had for its ol^ect the con- version of the two civilian forces- of ' Militia ' and ' Volunteers ' into a new and more efficient body of 'Territorials,' for purposes of defence. Dut its framcrs had to face the fact that they were dealing with two legally di^erent bodies ; for the Militia was, in theor, at least, a body recruited by comptdsory liability to serve under the Militia Ballot Act (p. 7), while the Volunteer Corps were on a purely voluntary basis. Moreover, there were differences with regard to train- ^g' psty> equipment, and allowances, between the two bodies. The Act, accordingly, authorizes the tranter, by Order in Council, of miutia battalions to a new Special Reserve ; and, under this power, a laige number of the old mUitia, inlcuding especially the 'Militia Reserve,' have been so transferred, to the number, at the outbreak of the great war, of about 63,000. The Special Reserve is placed very much on the same foothig as the Army Reserve; except, of course, that its members cannot, unless they c(»ne mider f ) ' il h ' I t ! »• f. lii'L 'i'l lit! i I !!! i; 202 THE FIGRnNG SERVICES the Military Service Acts before described (p. 199), be oompeDed to serve abroadk and that they may, on the other huid, be liable to special courses of training. But the duef ot^ect of tibe scheme of 1907 was/ of course, tiie creation and maintenance of a body of trained citizoi soldiors lor defence purposes, on a more solid and miiform basis than uiat of the old ' Volunteers/ The nucleus of this force was formed by the transfer to it of existing ' Yeomanry ' ^ and ' Volunteer ' units, on their existing conditions of ser- vice ; but the scheme contemplated the addition, by voluntary oilistment for a period not exceeding four years, of men wflling to devote a substantial part, thou^ not the whole, of their time to annual periods of concentrated training, and modified continuous training, in the duties of a soldier. TSBRITORIAL ASSOCIATIONS The special novelty of the scheme was, however, the creation of representative county associations, under the presidency of the Lord Lieutenants (pp. 7, 272), which should be responsible to a large extent for the raising, equipment, and maintenance of the Temtorial corps; thous^ whai the Territorials are embodied, or ' called out,' ibey ihea become subject to military law, and to mest mtents part of the regular army, except that, apart from the provisions of tiie Military Service Acts (p. 199), they cannot be sent abroad without their own consent. The embodiment is effected by the Army Council, but may only take place after some part of the Army Reserve (p. 200) has been called out; though it must take place when the whole of Class I of the Army Reserve has been r- k1 out, unless within one month Parliament addresses the Crown against the step. The response to the scheme * ^ The yeonuary wen volonteer cayalry, UaUe to be caUed ont u militia, but in other respects on much the same legal footing as tiie ' Voittnteeis.' THE TERRITORIALS 903 of 1907 was satisfactory. The effective numbezs of the Territorials at the outbreak of the war were jutt over a quarter of a million ; and they have gtven a first-rate account of themselves. Until they are ' called out,' however, the Territorials are not within the provisions of the Bill of Rii^ts concerning the maintenance of a ' standing army/ Thb Air Forcb As the sheets of this book were passing through the press, there was created, by the Air Force (Constitu- tion) Act of 1917, a distinct new administrative and combatant branch of the armed forces of the Crown in the United Kingdom, viz. the Air Force, under the control of a new Air Council. This latter body, which is presided over by a new Secretary of State, and is to consist of him and such other members as shall be appointed by Order in Council, is to administer the recently created Air Force, which has already per- formed such brilliant services in the war, and whose rdle in the future is, probably, destined to be even more important. For this purpose an Order in Council may, and, doubtless, will,* transfer to the Air Council and the Secretary of State, in respect of the Air Force, any statutory powers now exercised by the Army Council and the Secretary of State for War, with regard to the army ; and provision is made for incor- porating into the Naval Discipline Act and the Army Act (pp. 186, 192) the necessary resultant changes. Thus the members of the new Air Force, Uke their comrades on sea and land, will be subject to the pro- visions, and enjoy the protection of, 'military law' (p. 192). The numbers of the Air Force are to be fixed from time to time by Parliament (presiunably in the annual ' Mutiny Acts' p. 193) ; but, subject to t An Order in Conndl dated December 3. 1917, has already appointed the members of the Air Council, and allotted their duties. 14 fi J ! J r f 1 \ i M «i 1 I' I II ao4 THE FIGHTING SERVICES this constitutional provision, any man in ^ Army Reserve which indudes, it wiU be remembered, dl ^9 'iSSTtT serve under the MiKtary Service Axts who have not actuaUy been caUed up. may be teansf erred to it. Moreover, any member of the ^ ^units existing at the date of the P^f Jf/^^^ ^t viz. the Royal Naval Air Service and the Royal FMnTcorps. may. with the consent of the Atojralty or^iUy Comfcil respectively, be transferred to^e new Air Service. But it is noteworthy tiiat any member of such units who joined baore a da ^ D« Seed. may. within three months after receiving uoti^ of his triisfer. refuse to be transferred, and that no su(^ person cin be compelled by such transfer to S^e ??^?he Mr Force'£r longer than he was hable previously to serve. Colonial and Indian Forces It is from no inclination to undervalue the splaidid services to the Empire rendered by the f orc^ of the Stoles and India, but simply owing to the hmts of ^ that the account of their naval and mihtary ^Sis must be brief. For nothing could illustrate Sore clearly the principles of Uberty and self^overn- SSt on wmch that Empire is based fen ^^^ became clear that the Empire was faced with a war STS^lralleled magnitude, in which its very «ast^ce was at stake, there was no attempt to override those ^dples. Happily, though the need for it se^ed to be remote, some provision had aJready been made to meet a crisis such as that which arose m August iQiA Alltheself-govemingDomimonshadvoluntanly t^^ed their wishes to contribute, in one way or another, to the provision of an Imperial Navy ; some by building and equipping local squadrons which, while pSrily concerned with defending their own ihores should, at the outbreak of war. pass at once il COLONIAL AND INDIAN FORCES SOS under the central control of the British Admiralty, others by voting subsidies towards the up-keep and increase of the British Navy, others again by present- ing complete ships to the Admiralty, to be used as it should deem best. The exploits of some of these newest recruits to the navy of Drake and Hawkins will not soon be forgotten ; they proved themselves worthy of traditions the most splendid in the history of naval warfare. The same principle of liberty prevailed in regard to the land forces of the Outer Empire. Most of t^e self-governing Dominions, if not quite all, had adopted the principle of compulsory defence service. On the outbreak of the war, all sent large contingents to the Imperial forces ; and some ulti- mately adopted schemes of compulsory foreign service, whilst others continued to rely on voluntary foreign service. The men they sent to the war proved to be some of the finest soldiers in the world; the Dominion graves in GallipoU and France will remain a' standing testimony to the heroic sacrifices made in one of the most desperate struggles in miUtary history. It was a similar story in the Crown colonies. Some of them adopted conscription ; others did not — ^in one case for the very excellent reason that every white man there volunteered. Every man from the Indian army (p. 95) who could be spared from his primary duty of defend- ing the Indian frontier, came willingly for service in Europe, Asia, or Africa. The Native Chiefs of India poured out their treasure in the cause of the Empire and sent their Imperial Service troops (p. 96) to the front ; while the loyal coloured races of Africa volun- teered for labour behind the lines, which was only less valuable than actual fighting in the trenches. Never has there been a more spontaneous and enthusiastic rally of nations to a common flag. Never has a jealous rival's fond dream of a dissolving Empire been more rudely dispelled. It is hardly too much to say, that the challenge of August, 1914, was answered by a > ; . 1 !h rt i if ^ ' :i I i II «i i I 206 THS FIGRTING SERVICES trumpet call which heralded the re-birth of the British Empire. T&B Committee of Imperial Defence It is satisburtory to be able to say, that the possi- bilities of a really Imperial scheme of naval and mili- tary organization have not, des^nte the proverbial downess of the British mind in such directions, been entirely neglected. From the year 1895, there existed a committee of the Cabinet, known as the ' Defence Committee.' It was, at first, purely informal, kept no minutes, and held no regular sittings. In the year 1902, it was remodelled, and its composition and purposes frankly expkJned to the House of Commons. It con- sisted of the Prime Minister, the Secretariesof S^te for War and India, the First Lord of the Admiralty, the First Sea Lord, and the Directors of Naval and Military Intelligence. In 1904, it was famished with a secre- tarial staff, and began to keep formal minutes. Shortly after the outbreak of the present war, the Committee of Imperial Defence was strengthened, and became a body having sUmost executive power to enforce its own decisions ; but it remained, in theory, a com- mittee of the Cabinet (which was then a krge body) supplemented by expert assistance. Its relations to the Cabinet, however, were obscure and not very satis- factory, until the drastic rearrangements which took place in Deconber, 1916 (p. 116), once more left it the great expert War Council of the Empire. * Martial Law ' We have now left for discussion only the one impor- tant constitutional point before referred to (p 19a), viz. the legal position of the military authorities in connection with what is commonly kno**^. as ' martial law.' Perhaps one of the most imi .ant facts to •MARTIAL LAW aoy remember on this question is, that it is not, neots- sarily, a military question at all ; though the circum- stances in which it arises render it inevitably associated, in the minds of lawyers and the public, mth the mili- tary forces of the Crown. The question would, how- ever, really be in substance the eame, if the Crown, in proclaiming ' martial law,' entrusted the ocecntion of it to the police, or a body of civilian volunteers. It is only because the superior efficiency of the soldier for the pmrpose in fact makes the choice of the Crown fall invariably upon him, and because the striking cont ^ between the military and the civilian character of tii2 soldier is thereby brought out, that the dis- cussion inevitably assumes the shape of a contest between the claims of military and civil law. MitiTART Law Wehavefirst, then, to remember that, by virtue of the provisions of the Naval Discipline Acts and the Army Act, before explained (pp. i86, 192), the regaiax mem- bers of the Ro3^Navy,Army,andAirFoiceat alltiines, and the members of the Territorial and Reserve Forces when embodied or ' called out,' are under a peculiar and elaborate code of law, not applicable to civilians, but as much true kiw, bcdng expressly authorized by Act of Parliament, as any other part of British law. Whether they are also under any further 'preroga- tive' authority of the Crown, is a question which has been touched on before (p. 193), but is not material to our present purpose; for such authority clearly cannot give the soldiers rights against civilians. But really it is a great mistake to assume that these elaborate codes of military law, the Naval Discipline Acts and the Army Act, confer any substantial rights on the sailor or soldier. They subject him to a large numbCT of liabilities, and deprive him of a vCTy con- siderable number of rights which belong to the ovilian I I:? I ■ I <■ Mil-: r ■■[ it if' ll ' r I ■ *1 ■ ao8 THE FIGHTING SERVICES dtiren. Thus, they deprive him, in a large number of cases, of the elementary right of trial by jury which is supposed to belong to practicaUy every subject of the Empire, at any rate when charged with a senous offence. Further than that, he is deprived, in respect of all matters arising out of miUtary discipline, of a good many of the ordiiwtfy remedies open to the avihan tor the vindication of his rights, such as actions for defamation, assault, false imprisonment, and the like. On the other hand— and this is of the essence of the question we are discussing— the soldier is by no means freed from UabiUty to be prosecuted, or even (except in trifling cases) sued by the private atizra, in the ordinary courts,. for any offences against the drdinary law which he may have committed, even in the course of his miUtary duty. This is part of the great Rule of Law before explained (p. 38) ; and it holds, even in time of war. MaiTART Action In the second place, it must again be remembered, that two of the primary duties of the Crown are the conduct of war and the maintenance of internal onier. In so far as warhke operationi are conducted in alien territory, they are hardly likely to affect British subjects directly ; and the interesting question of how far damage done to the property of a British subject in hostile territory occupied by British troops could give the owner a legal claim against the military • authorities, seems not to have been discussed. Need- less to say, the subjects of the hostile Power, and even neutral or allied subjects resident in the hostile terri- tory, would have no legal redress in British courts. In so far as the conduct of war involves interference with private rights in British territory, the Crown has, byloijg-established rules of the common law, certain powers which it may justly use in defence of the reahn; MARTIAL LAW S09 and these powers have lately been widely extended by the various Defence of the Reahn Acts, and the Orders of the ^my Gyondl and other bodies thereunder. But, in so fsur as the action of the military authorities exceeds these powers, the persons responsible for that action can be made legally Uable in the ordinary courts, as has been shown by many recent cases. Only, it must be remembered, the private citizen cannot make a superior officer (military or dvil) liable for the il l^;al act of his subordinate, unless it can be ^own UmA the superior actually authorized the illegal act; because the subordinate is not the servant of the superior, but of the Crown, which, of course, cannot be made directly liable. It must be carefully observed, moreove**, tluit the remedy of the citizen is limited to cases of illegal acts, and does not extend to cases of mere hardship. Thus, if a military officer orders stdres for Ms troops in the King's name, and in the proper course of his duty, he cannot be personally sued for them, unless he undertook to be personally liable; because he avowedly acted as the King's agent. Maintenance of Order But it is wh^ the Crown acts in its second great capacity, as maintainer of internal order, that the most serious questions arise. For it is the undoubted right ard duty of the Crown to take any steps which may be necessary to put down disorder ; and it is» equally clearly, the undoubted duty of every male subject of active years to assist the King and his officers, dvil or military, in repressing disorders, in any manner that may be reasonably necessary, even to the shedding of blood. If any authority is needed for this proposition, it may be found in the clause of the Sheriffs Act of 1887, which enacts that ' every person in a coimty . . . shall be ready and apparelled at the command of the sherif! and at the cry of the 14 i f Int r / ; I lull i li ! I 3X0 THE FIGKIING SERVICES country to arrest a lekm ' : while the sheriff is em- powered by the same statute to ' take the power of the county and arrest and commit to prison any one resisting the execution of a writ' • Calurg out the Mihtary • When, therefore, the King or his official ' calls out the military ' to repress disorder, it is not in the least because he is not entitled to call on other persons, but merely because it is far better to make use of a disciplined and expert force when serious measures are necessary, than to rely upon untrained civilians. •■t 'Reading of the Riot Act* and Proclamation of 'Martial Law* And, similarly, though it is advisable to take the preliminary step of ' reading the Riot Act * (as it is called), i.e. formally reciting the proclamation contained in the Riot Act, or, in graver cases, of ' proclaiming martial law,' neither of these steps is in the least essential, nor, except on the question of penalties, does the taking or omission of them in the least alter the l^;al position. They are, in fact, m^ely in the nature of warnings by the Crown that it is about to perform a vital duty which may involve the use of force, and that all persons who would avoid the risk necessarily en- tailed by the use of force, had better keep away from the scene of disorder. Finally, the so-called * courts martial ' held in the course of the proceedings have little or nothing in common with the formal and strictly legal naval and military courts martial held under the Naval Discipline Acts and the Army Act, which are regular, though somewhat exceptional, courts of justice. And the so- called ' sentaices * of the so-called ' courts martial ' held under a proclamation of ' martial law,' are not ^M 'IfARllAL LAW „j , jndidal sentences at all ; that is to say, they are not founded on any precise law, but are merely acts of a peculiar^ solemn nature done in the course of npresiing disorder. The moment the disorder has ceased, their continuance becomes strictly iUe^ It is obvious, then, that if any question arises as to the le^ty of any sentence by a ' court martial ' of this kmd, or of any act done in the course of th repression of the disorder, the points to Imb decided are simply two, which really are one, viz. (i)Was there in fact a state of disorder which rendered the use of force necessary ? (ii) Was the particular act reason- abty necessary to repress it ? And these are questions which are submitted to a jury, in the ordinary way, on any prosecution of any person, civilian or soldier! for having taken part in such acts, or in any action for assault, wrongful imprisonment, damage to property, or defamation, brought by w private citizen to injury suffered by them, or which are decided by the Court on any application by a person imprisoned under them for his 'Habeas Corpus' (pp. 3fr-38). If these questions are answered in the affirmative, there is no legal redress, however innocent the complainant. He has merely been the unfortunate victim of public disaster, and can only appeal for compensation on the ground of hardship. Legal Liability if Acts Unnecessary Bi •• if it should appear to the jury or the Court that the acts in question were not justified by the facts, the complainant will h^ve his full legal remedy ; and the wrong-doer will be subject to the appropriate penalty for his offence, subject to the Crown's power of pardon, or to an Act of Indemnity passed by Parlia- ment, whirh can, of course, legalize anythinir. even after the event r* I ; ( ( in^ I; f ! ■• •IS THE FIGHTING SERVICES Dual PoimoM of Soldhk But, when the alleged offender is a soldier, then the case may be a peculiarly hard one ; for, as before explained (p. 208), the soldier is subject to two laws. via. Srwdinwy bw of the land, which «ys: • My committing homidde without legal justification is haWe to be hanged.' and military law, which says: 'Any soldier rtmsing to obey the orders of his superior officer is liable to be shot/ It is obvious, therefore, that if a soldier fires on a crowd at the order of^s superior officer, he has to run the risk of being hanged; wWle, if he refuses tb fire, he runs the risk of being shot. Happily. British law. even miUtary law, imposes no absolute obUgation on the soldier to obey ^e orders of his immediately superior officer*; but it is not fair to expect a soldier, perhapsnota vwy welUduated man, to decide in a hurry whether the ase justifiw him in taking the extreme step of refusing to obey orders. In the event, therefore, of his bring put on his trial for murder or manslaughter, he might v«v wril plead his officer's orders, or the so-called r«aing o! Sie Riot Act' (p. 210), or a proclamation of martial law ' as evidence that he was reasonable in what ne dia, and therefore justified. And, while none of these farts, nor all three together, would necessanly be a Justifi- cation, theie can be Uttle doubt that each or aU of them would weigh heavily with the judge m summng up to the jury, and with the jury in amving at their vCTdict; while, in the event of that verdict bang unfavourable, there would remain the final remedy of a royal pardon or an Act of Indemnity (p. 211). Only, it must bTremembered. that, in the event of a private citizen bringing an action for damages for assault, false imprisonment, injury to property, or any similar i Such an obligation would. » has |>S« P«*a*«J "^ ^^S^ nifflttuy disdpHwj: beeaiwe it would jurtify flw wkto in dUMtUig his colond at the command of his Ueutanant. THE SOLDIER AND THE aTIZEN 3x3 met done by a soldier in obedience to military orders the royal pardon would be no excuse ; for the Crown cannot pardon an injury inflicted ^ a private dti- zen—only an Act of Indemnity can do that, thoush of course, the Crown can. if it Ukes, pay the soldSr'i damages for him. Position of • Courts BIartial ' Finally, it must be remembered, that the ease of the officer who sits on a so-called ' court martial' under a proclamation of ' martial law,* is still more criticaL For, as we have seen (pp. 189-190), the King has no power to issue commissions for such trialsin aS dreumstances, being forbidden to do so in express words by the Petition of Right ; unless. possiblyT the misquotation of the words of that statute in the pre- amble to the modem Mutiny Acts (p. 191) may be held . by impUcati ., to modify that provision in time of war. There is, in 1 .ct, a fairly recent decision of the JudicUd Committee of the Privy Council which seems to take that view ; and, though it is not binding on the courts of the United Kingdom, it might be foUowed in those courts, and would, probably, be held binding in Cobnial and Indian courts, from which an appeal Ues to the Judicial Committee (p. 293). But, apart from this doubt, an officer so acting, and imposing a sentence of death upon an alleged rebel, would, legally speak- mg, be guilty of murder if it were carried out, and could only take refuge behind a royal pardon (which would really be an exercise of the dispensing power declared illegal by the Bill of Rights (p. 333)), or an Act of ParUa- ment, such as the Defence of the Realm Act, or an Act of Indemnity. I f; ri 1 M^ i I i HA M m i ri CHAPTER IX THE TEBASXJRY AND THB SECRETARIES OF 8TATB We have now to consider how the general work ol the Government is parcelled out among the ^fijcnt • departments ' of State, most of which have distinct legsipowers, though all «re under the general control of the Cabinet TKtf Treasury The oldest and most important of these is * The Treasury/ the superior or directing part of a still older institution known as ' The Exchequer/ the name of which still survives, and is now appropriated by the more mechanical and formal part of the ancient machine. The Exchequer The ancient Exchequer, or revenue office of the Norman kings, comprised virtually all the great officers of State— the Justitiar, the Lord Chancellor, the Chief Constable, and the Marshal ; and a wonderfully vivid account of its proceedings in the twelfth century, known as the • DisJogue of the Exchequer ' (p. 31). supposed to have been written by Bishop Richard of London, a nephew of Bishop Roger of Salisbury, the reputed founder of the Exchequer, still survives. Even from that account, however, we can see that the Exchequer was already passing practically into the hands of a 814 • 'r-{ THB ANCIENT EXCHEQUER at$ mdal offidal, the Treatorer, afterward! the ' Lord High Treaaurer/ whose ' Pipe Roll,' or record of the work of the Exchequer, was the primary proof of its numeroofl proceedings; though, for a time, they were all, down to the minutest detidl, also recorded in the Chancery Roll of the Lord Chancellor, as well as in a private roll kept by a personal deputy or secretary of the King. Thb Loko High Trbasuih As time went on, the Treasurer became a more and more important perion ; and the office, in Tudor times, was often held by the most powerful Minister of the day; the older office of Justitiar having disappeared, and those of the Constable and Marshal having become mere ceremonial offices about the King's Household.* A very significant clause in the important Seals Act of 1535* previously alluded to (p. 3z), excepts the Loid Treasurer's warrants from the strict rules which, by that Act, were made to apply to other documents leading up to the use of the Great Seal of England. So important, indeed, did the office become, that the Kings showed some hesitation in filling it ; and, in the year z6z3, it was ' put into commissiim.' i.e, parcelled out among a small group or ' Board ' of persons, known as ' Lords Commissioners of His Majestjr's Treasury,' all of nominally equal powers, though the real prima^ lay with the ' First Lord.' At the same time, the purely financial work of the Exchequer was separated from the general policy of the (aov^mment, which remained under the control of the Treasury Board ; though this arrangement did not become permanent till 1043. The last ' Lord High Treasurer ' was ap- pointed in 1714, by the djring act of Queen Anne, who, *■ One ot the chief reasons for their loss of real power was that ^ey became hereditary (p. 23) ; while the office of Lord Chaacellor, biiag always, nntil^tiie Reformation, held by a cleric, did not I llM I I 1 ' f i ■■ I i 1 ai6 TREASURY AND SECRETARIES OF STATE in the scene so graphicaUy described by Thackeray, in the work before alluded to (p. 107 n.), handed the ' white staff ' of the Treasurer to the Earl of Shrewsbury. The Treasury Board During the critical period when the old powers of the Privy Council were passing to the modem Cabinet (pp. 102-103), the Treasury Board seems to have acted for a while as the seat of government; its meet- ings being often attended by the King in person. But, on the accession of George III, who gave up the miscellaneous official revenue of the CrowH for a • Civil List,' or fixed annual income for life guaranteed by Parliament, the King ceased to attend meetings of the Board, which thus passed virtually into the control of the ' First Lord,' who usually, as has been said (p. 118), was the Prime Minister of the day, and v/ho chose his own colleagues, though the latter con- tinued to be appointed by Letters Patent under the Great Seal. In the second quarter of the nineteenth century, the Treasury Board gradually ceased to meet ; while, by an Act of Parliament of the year 1849, the numerous documents required by law to be issued by 'The Treasury,' were declared to be formally correct if authenticated by the signatures of two of the Lords Commissioners, usually the ' Junior Lords,' who, as before mentioned (p. 122), are now employed in the subordinate work of the Government. The Chancellor of the Exchequer Meanwhile, the special care of the finance of the country had devolved upon the Chancellor of the Exchequer, a very ancient but originally humble official, who had gradually risen in importance, and who, when the rich sinecure offices of the Exchequer, sudh as those of the Auditors, the ' Tellers,' and the * Clerk of the Bills.' were abolished after the pasasg n ii THE MODERN TREASURY ax; of the first Reform Act, became the S( mnd persoh in the Treasuiy. and. as has been sait'. virtualiv IJ^nance Mmisterof State ; though the prec« derce of the ' First Lord, even in purely Exchequer bv ,ii ess, is pr .«rved by the fact that he holds, in addition. Hie office of Treasurer of the Exchequer. The Chancellor is a member of the Treasury Board, taking precedence of the Jumor Lords' by virtue of his patent as Under- Treasurer; and. being invariably, and necessarily, a member of the House of Commons, he usuaUy acts as Leader of that House, if the Prime Minister is in the Lords, or unable to act. It is, however, in his capacity of a Mmister of the Crown that he makes the important Budget statement previously described (pp. 166-167) • though his influential position as Leader, or, at least a prominent member, of the House of Commons naturaUy adds weight to his financial proposals. StilL hke aU (tepaitments of State, and. perhaps, even more », his office remains under the supreme control of the Pnme Minister as First Lord of the Treasury; unless mdeed, as has occasionaUy happened, the same person fills both offices. Thus, though all details of financial busmess are left to him. he would never think of proposing to the House a really new principle of taxation without consulting the Prime Ministo- or. indeed, the Cabinet as a whole. Havihg akeady described the complicated process ttojugh which the QianceUor of the Exchequer's Budget 'has to pass in Parliament before it becomes bw (pp. lee-iw), we have here only to deal with the duties of The Treasury in carrying it into effect, after It has been embodied in the Consolidated Fund Acts the Finance Act, and the Appropriation Act of the year. These duties may be summed up under three heads of collection, expenditure, and audit of the national revenue. Under the first head, a brief allu- sion must also be made to the important operation known as ' raising a Government loan.' i I I i : f ! i >- ;l 1 , li az8 TREASURY AND SECRETARIES OF STATE Collection of the National Revenue (I) The collection of the royal revenue in early davs had an indirect as wcU as a direct import^ce tnnng to the various experiments whidi wore tned before a satisfactory scheme was reached. .Th^w. ^^ ancient plan of collecting through the sheriffs of the counties had much to do with the bringmg into enst- ence of the Exchequer itsdf ; and a mark of this ancient connection still survives m the pctiff^ue ceremony by which, on each 12th of November, two or more shwiffs for each county (except the ' Palatmes we nominated in the ancient ' Coi^ of Exchequ^ in the presence of the' ChanceUor himself.. Another indirect result was the creation of the now extinct Court of the Barons of the Exchequer winch for centuries acted as an ordinary ' commcm law _court^ though its functions were supposea to be restricted to ^e decision of disputes on revenue questions, such as the famous 'Ship Money' case. Historians are beginning to suspect, also, that the re^sil»hty of ^tSlords for the ' Danegeld' of their serfs did a ereat deal to cause the drawmg up of Domesday Bffiaals are ' permanent civil servants,' «.«r5ii Board! of Customs and Excise and of Inland Revenue, and the Conmussioners of Woods and Forests • but one gr«t 'collecting department/ the Post Office, S'-.^u . *^* .curious irregularity so frequent in British institutions, always held by a responsible Minister, retamg on a change of Government, and Demg, not infrequently, a member of the Cabinet His true position, however, as a subordinate of TheTreasury is diown by the fact that changes m postal rates or faahties, which may involve loss of revenue, require the sanction of that body. And the Chairmen of the revenue boards, important as their duties are do not speak for their departments in Parliament being represented there by the ChanceUor of the ExchequS or the Financial Secretary to 'The Treasury. The Commissioners of Woods and Forests (other than the President of the Board of Agriculture), who have charge of the ancient Crown estates, are, indeed ex- pressly made ineligible by Act of ParUament to' the House of Commons ; while the other officials referred to fallunderthe general exclusion of the Place Acts (p. 105). Methods of Collection The actual collection of the various taxes payable into the royal revenue is effected in various ways. Some are paid in response to direct demands made personally on the tax-payer by the different sub- departments, e.g. much of the income and property tax. Others are collected on the passage of goods through the ports, e.g. the customs duties, and are known as 'indirect taxes.' Others again, such as the 'Death Duties' and some cf th§ 'Land Duties' payable under the famous Finance Act of 1909-10 (p. 165). are collected by means of stamps, which must be impressed on or affixed to the various documents 15 If. 11 ; ! ^ I h mi 2ao TREASURY AND SECRETARIES OF STATE connected with the occasions on which they are payable. In this last list are included also the various S>vemment duties payable on transfers of land, stocks, and shares, on receipts given for the payment of money, and on commercial documents, such as bills of exchange and promissory notes, bills of lading, and the Uke. Income tax, again, is partly ' collected at the source,' i.e. deducted by the bodies disbursing various forms of interest and profits (p. l68), who afterwards hand the proceeds to The Treasury. Finally, by a somewhat recent arrangement, local authorities, such as county and borough councils, to be hereafter desaibcd (Chapter XIV), collect what were formerly Culled ' assessed taxes,' but are now more properly described as ' local taxation hcence duties,' such as duties on armorial bearings, d«g, gun, and game Uc^ces, and taxes on the use of vehicles and male servants. Consolidated Fund Act One of the most important reforms ever made in the management of the royal revenue was introduced in the year 1787, as part of Burke's scheme of finanaal refonn. Before that date, the proceeds of various taxes were paid into separate accounts at the Ex- chequer; and various payments were charged upon each. This was a thoroughly bad system; because it was, naturally, impossible to forecast accurately either the amount which would be produced by the tax or the amount of the charges upon it. Naturally it often happened that, while one fund would be imable to meet the charges upon it, and so the pubhc creditors would have to wait for their money, another fund had a huge balance, which could not be made available for making up the deficit elsewhere. Worse still, this huge balance might be left for years in the hands of flome Commissioner or other official appointed to collect it, who. in the meantime, invested it in his BURKE'S REFORMS own name and drew the interest or profits of the invest- ment, or as not infrequently happened, appropriated the capital to his personal uses. By the Act of 1787 however, the whole, not only of the • taxes,' in the prdmwy sense of the word, but of the net revenue arising from Crown lands, the fees charged in legal proceed- mgs, and the payments for services rendered by the btate, such as the dehvery of letters by the Post Office are made payable into one ' ConsoUdated Fund ' at tiie Banks of England or Ireland, to the account of the Exchequer; and all payments on the national account are made payable thereout, in manner to be hereafter despnbed (p. 223). Government Loans The account of this important step leads naturally to a bnef menbon of yet another source from which the national revenue, in the widest sense of the term, may be raised. It not infrequently happens, that the amount ansmg from taxation and other normal income of the State is insufficient to meet the expendi- ture authorized by Parliament. It then beSmes necessary to raise a loan, temporary or permanent, on the secunty of the national revenue. Non-funded Debt and Funded Debt Various expedients have from time to time been resorted to for this purpose; but, substantially g)eakmg, only two are now in use. viz. first. Treasury Bilk, or promises at short dates, authorized by Act of i-arhament, to repay loans advanced by banks and other busmess firms, for temporary needs, either under the Consolidated Fund Acts previously described (Ways and Means Bills'), or by spedal Acts of Parhament ('Supply Bills'), and, secoST permanent toans. also charged on the security of the ConsoUdated fund for the time being, and bearing interest in perpetmty, at various rates, payable out of such t • I' i ■ » 4 I"? ; UM 1 i'» i f'! 222 TREASURY AND SECRETARIES OF STATE fund, and commonly known by the gcncrk n"MJ>{ * Consols/ * though new names, such as War Loan, etc have recently been adopted to distmgmsh some M^liT^or loans from othe^. It ? jnie t^* ^J^ of these loans are repayable at fixed dates, but ttey are. none the kss. treated as permanent secuntt^ Midway between them, come Exchequer Bonds and • War Savings Certificates.' repayable at compaiaUvely short ''ates. These are really m the nature of Treasury Bills; thoiigh they are not mtended to be out into circulation for commereial purposes. One ot tne most anxious duties of the Chancdlor of the Exchequer is. to decide on the terms which shaU be offered to tfle pubUc for the issue of a loan authorized by Parhament ; and, if the value of money falls below ^e rate of interest which the State is paymg, it is lus duty to •convert' the loan in question into another, issued at a lower rate, ii the terms of the former permit of this operation. f Conversion This, of course, cannot be done if the lo^ is not repavable before a date which has not arrived ; but, S^C cases, the ChanceUor of the Exchequer can ^y. in such circumstances, by threat^ ^^P^ ^e holders of Consols ' at par.' %.e. at the nominal ^ue of their loan (£ioo for £ioo secured) compd SeS to accept a lowS rate of interest. On the other S. as ^inducement to the pubUc to take up a Wx in an emergency, he can offer to issue it at a S^J^tr*.*. to V every lender of. say. mnety-five pounds £ioo of stock. The Bank of England An these compUcated transactions are earned out i« the Bank of England, which is thus, obviou^, S^ XtToovem^ent institution. But it remans 1 BecisM th«y r«pMMafc a .cowoUdation'of •larg««imib«o< old niMaOaneonB loans. GOVERNMENT FINANCE 99$ abo a company carrying on a large commercial boflineas of its own * ; and the most stringent pre* cautions are taken, in the various Bank Charter Acts, to prevent the Directors of the Bank from dipping their hands into the pubUc funds, or, on the other hand, from financin g Government schemes which are not authorized by the House of Commons. ExpENDrruRE OF National Revenue (2) Stringent precautions are also taken to ensure the r^ukr and accurate payment of all expenditure out of the Consolidated Fund. A root principle, as before explained, is, that, as revenue is granted to the Crown, all national expenditure thereout is by the Crown. But it is an equally important principle, that all expenditure shall be sanctioned by the House oi Commons, which, in normal times, fixes, within wide limits, not only the amounts but the dates of all expenditure. The Comptkozxer and Auditor General The highly important ofiGicial whose duty it h to see that both these principles are rigidly enforced, is the Comptroller and Auditor General, who is ap- pointed by Letters Patent on the rare tenure of ' good behaviour,' whose salary is diarged on the * Con- solidated Fund,' and who can only, in the absence of d^nite misconduct, be dismissed on the request of both Houses of Parliament, while he cannot hold any other oflBce ' at pleasure ' under the Crown. He pre- sides over the Exchequer and Audit Department, and, upon the requisition for money by The Treasxii-y, signed by two of the * Lords ' under the requirements of the Act of 1849, before alluded to (p. 216), he » ThM • Bank of England stock,' or. more diortly. • Bank stock/ It not equivalent to ' Conads/ but means a hcMing in the capital of the Bank itself as a commerdal coocam. The rate of dividend on it is generally voy high. !t 1 1 : 'u:! 834 TREASURY AND SECRETARIES OF STATE examinet the demand with care, to see that itt purpose and amount have been duly authorized by Parliament. * CONSOUDATEO FUND SbRVICBS* If it forms part c ; the ' Consolidated Fund Services,' • e. those payments which, such as the interest on the various national debts, the ' CivilLisf (or royal incoL..;, the judges' salaries, and a few authorized pensions, are payable as of course year by year, he merely issues a credit on the Exchequer balance at the Bank of gngiawrf or Ireland for payment of the amount * Supply Services ' If, however, the demand is on account of ' supply services,' i.e. payments only authorized from year to year by Parliament, which include by far the larger part of the national expenditure, he has further to see, not only that the proposed payment comes within the limit of the Parliamentary sanction, but bears the royai sign-manual directing The Treasury to expend so much out of ihe sum voted by ParUament for that particular purpose. In either case, the Bank of England or Ireland, on receiving the order duly approved by the Comp- troller, aUows The Treasury to draw for the amount, which is either placed to the credit of the department concerned, or to that of the Paymaster-General, another important of&dal, who is, however, a member of the Ministry, and, therefore, nominally at least, responsible to Parliament, for distribution to the particular de- partment through which the payment is actually made. Thus a large part of the national expenditure passes, nominally at least, through the hands of the Paymaster- General ; and, formerly, the holders of the office, being paid by fees varying with the amount passing through their hands, amassed enormous fortunes. It was one of the noblest acts of Burke that, though a really poor THE PAYMASTER-GENERAL 335 man, he rtixued, when Paymaster, to take the enonnous emoluments of his office, and thereby set an example which has since been widely followed, by the practical abolition of all payments by fees in Government offices, and the substitution of fixi^i salaries which are not, however, except in the rare cases before men- tioned, charged on the ' Consolidated Fund,' but voted by Parliament year by year. Parliament has thus an additional and very powerful hold on the great bulk of the ' permanent ' officials of the Crown. AuDrr OF National Accounts (3) Finally, it is necessary to see that the spending departments do actually expend the national revenue in ^ manner authorized by Parliament ; and this object is supposed to be achieved by a rather severe process of ' audit.' In the first place, the various departments engaged in the expenditure on ' supply services ' render monthly accounts to the Comptroller of their actual exi>enditure ; and these accounts are carefully ex- amined by him before being passed on to The Treasury, not merely to see that they balance, but to make sure that the items of expenditure have been duly authorized. These monthly accoimts lead up to the 'appropriation accounts.' In the case of 'Con- solidated Fund Services,' the account is rendered by The Treasury itself to the Comptroller, who has, all along, been carefully watching the receipts and expen- diture of the national revenue by the Banks of England and Ireland, 1^ means of accounts daily furnished by those institutions, and the action of the spending departments by means of local officials. Parliamentary Audit The * appropriation accounts * are then laid before Parliament by The Treasury, and the accounts of tl« ■J i H M m ! L .1- p ■ '1 1 1 11 -I fl^ TREASURY AND SECRETARIES OF STATE CoDSoUdatod Fund Services by the Comptroller. They are all referred by the House of Commons to its Com- mittee on Public Accounts, an important body which has existed since 1786, and which makes an annual report to the House of Commons. It is obvious, however, that, in time of war, the publication of naticmal ex- penditure, even to the House of Commons, can only be allowed within strict limits; and it is one of the pressing problems of administration to devise a plan, by which strict Parliamentary control over national expenditure can be reconciled with the necessary secrecy. Thb Tkbasury as a Spending Department Before leaving The Trcjisusy, reference ought, per- haps, to be made to a recent devebpement whidi has given rise to a good deal of criticism, as being contrary to the proper duties of that institution. As we have seen, the payments sanctioned by The Treasury are not usuaJly expended directly by it, but handed over to the Paymaster-General for distribution to other departments, who subsequently render accounts of them [to the Comptroller. At least this is true of the great ' spending ' departments, sudi as the Admiralty, the War Office, and the Education Department ; though a certain number of minor ^pending departments, such as the National Gallery, the Briti^ Museum, ami the Civil Service Commission (which conducts the examina- tions for the ' permanent ' civil service), have no Minister to represent them in Parliament, a&d so are more directly ' under The Treasury.* Recently, howeva:, the establishment of a vast and costly scheme of National Health Insurance, guaranteed by the State, has been set up ; and, though the working of this scheme involves the annual expencUture of many millions, and an enormous ammmt of minute investigation, its administration was, lor a short time, in the hands of a Minister who was NATICVAL INSURANCE Mgr alto Financial Secretary to The Treasiffy. The details of this scheme can hardly be said to form part of the government of the Biitidb Empire ; but. briefly, it may be said thattdl employees of sixteen years of age and upwards are, with certain exceptions, compulsorily insured against destitution arising from sickness, and guaranteed medical treatment when necessary, and all workmen employed in certain trades are com- pulsorily insured ag^st unempk>yment, by means of contributions levied from themselves and their employers, supplemented by substantial grants from moneys provided by Parliament. The Unemptoy- ment Fund is under the control of the Board of Trade ; but the National Health Insurance Fund is under the control of Insurance Commissioners appointed by The Treasury, though its actual distribution is en- trusted to Local Insurance Committees, aided by Medical Committees, and to ' approved societies,' i.e. to various Provident and Benefit Societies, mainly formed by the employees themselves, which were in existence at the passing of the Act, and whose stability has stood certain investigations. The Insurance Commissioners, an incorporated body, are now, how- ever, an independent department r^resented by a separate Parliamentary chief; and the accounts of the Insurance Fund are audited by the Comptroller and Auditor General (p. 223). though in manner directed i>y The Treasury. It will thus be seen, that the icamer agitation on the subject of Insurance Finance, which was not uncoloured by personal and party feeling, has now lost its chief force. The Treasury as an Imperial Organ Finally, it should be noticed that The Treasury of the United Kingdom is hardly entitled to rank as an Imperial institution in the full sense of the word. I 'J if ta8 TtoASURY AND SECRETARIES OF STATE inamuch at each of the dependendet (' self-governing ' and ' Crown ') hat itt own independent Treatury, the fundt whereof are collected in. and expended for, the benefit of that dependency akme (p. 77) ; while the same it true, as has also been explained (p. 93). of the Treasury of British India. It is only when loans or grant! out of the Imperial Exchequer— t.e. out of moneys paid or guaranteed by the taxpayers of the United Kingdom— are made by the Imperial Parlia- ment for the assistance of any of the dependendet on the proposal of the Chancellor of the Exchequer, that The Treasury at Whitehall can be said to be acting in a strictly Imperial capadty. Tbb Secretaries of State Next in point of antiquity and importance to The Treasury is the of&ce of Secretary of State. It can be traced as far back as the reign of Henry III, when a * King's Secretary ' is found relieving the Lord Chan- cellor of some of the clerical duties of the Chancery whidi did not involve the use of the Great Seal A second offidal of this name, possibly to conduct the fordgn correspondence of the King, was appointed in 1433 ; and, in the troublous reign of Henry VI, the Secretaries came to be looked upon as the regular mouthpieces of the Privy Coundl, which was then the chief seat of Government. Their growing 'im- portance was marked by the appear^ ice of the title * Prindpal Secretary ' in the latter half of the fifteenth century ; and the holders of the ofiice, whose spedal symbol of authority was the 'signet,' were placed by the Statute of Precedence of 1539 above other persons of thdr own degree or r«aik, while a royal warrant of the same year, by a curious antidpation of modem practice, directed them to attend Parliament con- tinuoudy. In the rdgn of Elizabeth, the office of f« I EARLY SECRETARIES OF STATE 999 Sccretarv of State, which had been held by Thomas Cromwell under Henry VIII, grew ttill further in importance, and was filled by such ttatetmen as the C -a*, Sir Thomas Smith, and Sir Francis Walsingham ; while its increased dignity was marked by the adoption of the title of ' Queen's Majesty's Secretaries of State.' After the Restoration, it was part of the policy of Clarendon that the Seaetaries of State should be ' of all Committees of the Council ' ; and, when that body lost its real power (p. zoa), much of it seems to have passed to the Secretaries. At any rate, in the argu- ments in the famous ' General Warrant ' cases (p. 38) some rather extravagant claims were put forward on behalf of the holders of the office, which could hardly have been j^istified on o^er grounds. Division op Business Meanwhile, at the Revolution of 1688, the duties of the office had been definitely divided between a • Northern ' Secretary, who correa^nded with France, Germany, and the Scandinavian Powers, and a ' Southern,' who transacted business with the countries of the south of Europe, and managed Home and Irish afiairs. But this obviously inconvenient arrangement was altered in the year 1783, when the recently created third Secretaryship of State for the Col^es was abolished (p. 76), and the present division between ' Home ' and ' Foreign ' affairs was established. It should be carefully remembered, however, that though, for purposes of despatch of business, the various Secre> taries of State have each his appropriate sphere of work, yet, in strict theory, all, or ahnost all, of the powers of a Secretary of State can be exercised 1^ any of "the Secretaries ; for it is very rare that these duties are expressly conferred more precisely than on ' one of His Majesty's Principal Secretaries of State.' Moreover, until its abolition in 1851, they all used the ! f fl h 1 ' «. • 4 f jk 1 . u 230 TREASURY AND SECRETARIES OF STATE Signet Office, in which the Clerks of the Signet per- formed tl^ duties. Leaving aside the newer Secretaries of State for War, the Colonies, India, and the Air, of whom we have already spoken, we proceed now to consider the duties of the Secretaries of State for Home and Foreign Affairs. The 'HoiiE* Secretary The Home Secretary stands in a relation of peculiar cbseness to the Crown. Though other MimstCTS can, and do, act as ' Minister in attendance,' yet it is the Home Secrctaryonwhom the King chieflyrehes to keep him in touch with details of internal admimstrataon. Thus the Home Secretitiy prepares and counteragns the numerous ' warrants,' or orders, to which the King affixes his ' sign manual' or personal signati^e ; except in the cases in which the preparation and counts- signature of other officials are expressly required. He communicates the King's pleasure to bodies havmg official or quasi-official authority, such as ttc Con- vocations of the Established Church (Chapter XII). ajd the * States ' or Courts ' of the Channel Islands and the Isle of Man (p. 60), which are not within the sphere of the Colonial, but of the Home Office. He ^ recom- mends for appointments to ordinary ecd^astical brae- fices in the gift of the Crown, as distmct from that of the Lord Chan^llor. He places the ' fiat/ or penmssKm to proceed, on those ' petitions of right • which are ^e durert Wal means of obtaining redress for an error by which tte Crown has caused a private citizen to suffer." t inannuch as every ordinary oiminal proMcotion or artments; l^^t the important powors stiU exercised hy the Home Secretai^ in the matter of coal and other mines, and factories, serve to bring out the miscellaneous character of his duties. TbB FOIBIBN SlCSBTAXY AND DIPLOMATIC WOBK The Secretary of State for Foreign Affairs, as his title implies, is concerned with the intercourse betweoi the British Empire and foreign countries. This is of two kinds: diplomatic, and commercial or civil The former is directly connected with foreign Govern- ments, and concerns tudi matters as tiie protection of British political interests, the safety of British subjects abroad, the negotiation and carrying out of treaties, the mamtenance of friendly relations betweai Govern- ments, and, generally, the guarding and shaping of British interests in the world outside the Empure. Ambassadors It ia carried on either directly by means of corre- spondence issued in the name r IJ h 11 p if 336 TREASURY AND Sl^RETARIES OF STATE and to repudiate negotiatioiis entered into in its name would deal a severe blow at British reputation and credit abroad, while, even in such vital,matters as the cession of territory and the declaration of war and conclusion of peace, the Crown claims the legal right of acting without the consent of Parliament. In practice, no doubt, the position is not so dangerous as it seems. For Foreign Ministers have a wholesome dread of Parliamentary condemnation ; while the neces* sity for the formal approval of a treaty by Parliament, as in the case of the Senate of the United States, is attended by some serious drawbacks. The same objection applies to all open negotiations. Crises which, if handled confidentially, can be discreetly averted, are apt to become distinctly more unmanage- able vfhea they are discussed in public with the aid of an excited Press, bent on arousing the passions of its readers. The sanest proposition for dealing 'with what is, admittedly, a difficult problem in statesman- idiip, appears to be the appointment, at the com- mencement of each Parliament, of a Joint Committee on Foreign Relations, composed of representatives of all parties, to which the Foreign Secretary should continually report in confidence tiie progress of inter- national negotiations. A seat on such a committee would naturally be an object of ambition with the ablest members of both Houses. It need not contain members of the Government ; for the Cabinet, at least, would be even more intimately in touch with the working of the Foreign Office. It might have power, which would, naturally, only be exercised in grave matters, of addressing the Crown directly upon any tendencies in international affairs which appeared to it to be dangerous. In the last resort, it might luive power to report to either House, which, in joint or separate session, open or secret, as might be deter- mined, would be able to consider and act upon the report. Such a committed, if wisdy selected, would •SECRET DIPLOMACY- tjj Passports «Jf *^' 0^ coprse, as the Minister in charge of inter- national affairs that the Foreign SeS W iSuS a fcivourable reception in foreign countii^ and ^ a sense, ^laranteeing their respS:tahihtyTh^^^ country in which the traveUer journeys. In some STec^* '^* is "^T^ *^^^' the^ are aiSo^s? unnecessary. In others, they are of distinct value and, for some purposes, essential. In othersl^ ttev ^oidtSSL't."'"'^' '^ *^« traX'^W g avoid bemg shot as a spy, or at least cast into prison as ^StTno^r • "? '"^ «>untries^ thrSpte passport IS not, as a rule, enough ; it must be * vis^ ' ..«. examined and approved. ^ i repre^tetiv^ of the comiby in which^^the hildJr pr^^to t^av^ Si^i;°^^^1 *^**' ** ^y 'ate for C?yLs tte ^ssport regidat^ons of Europe will be mui^i^ than dunng the last half century. Commercial Work of the Foreign Office . Of the commercial duties of the Foreim Office Z^l^^ ^ ^^y "«' little need l^ sSlt a boS Wee the present. They consist in looW^er^e f^S ^nf""' '' British subjects abro^,1Ld he lostenng of commercial intercourse between the SaJel "^ *^' ^"^^'^ ^"^P^« ^d thrs; oTotfer Consuls of ^^oS' ^!^ °"* ^y ^"'^ ' representatives 01 vanous grades^ some of whom are professional .1. : •i t': «98 tRSASURY AMD SECKETAIOES OF STATE officials, devoting thdr whole time to their offidtl duties, and paid sabstantial sahiies; while others are merchants, often not Biitiflh soMects, who render assistance in many ways to Britiih subjects in need of various kinds, such as means of information, identity, introductions, and the like. Protectorates Finalty, we may mention again the powers and duties of the Foreign Secretary in the matter of Protecto- lates (pp. 95-xoz), i.e. those countries in which, though they are not actually parts of the British Empire, the British Grown exercises en»er of 'equity 'in the Court of K^^^ Thb Court of Chancery I. T!i! f^^^on between ' common law ' and ' equity ' is too te^cal to be the subject of discussiS in a book on the government of the British ^S^ Vt if ^li^J' T'f ? "^"^ t"^*^^ systems.^ot <^ of .England and Ireland (Scotland seems to have India. It may be said that, while the ' common law ' •? ^^i^Jn?'?^^^ °" immemorial custom supplem J5 nL5f °' P»5.^a»ent. was a rigid system. dWling ovS prease remedies as a matter of right and rSS: to recognize any grievance which did^ot faU Sn itJ S.^^11"^'' ^r'^'^'' ^^ ^y^^^ administered by thJ Chancellor m the Court of Chancery, occupied itSf jath devising remedies for substantii hardsSps um^ tT^l^'' imperfectly redressed, by the comiion law. ^L^i'^'^^r'^' ^^^ application of certaS rules of the stnct common law. Inasmuch as the jury system never made its way into the Court of Chancery, the power of the Chancelbrs to mould the ^^^ ^1"*^ "^v Y^ S'^* • ^"»«1 t^e practice of reporting, or pubhshmg. their decisions grew up and Common Law Courts, that deep respect for precedSt Enghsh Law. and which gradually made the distinction The Office of the Chancery Meanwhile, the work of the Chancery, not as a court of justice, but as an administrative office, had^ i\ >3 ' MS THE INDIVIDUAL OFFICES tinuad and grown ; thoodi the appearance d new departments of State, audi aa The Treasury or Ex- chequer and the Secretaryihips ol State (Chapter IX), tended to destroy its character as the sole business office of the government ol the Kingdom. For example, every ' writ/ or executive order of the King, whether for beginning a common law action, or for summoning members of Parliament, required the affixing of the great seal ; so also did the issue of Letters Patent, or formal expressions of the royal will announced to all the world ; so also did the conclusion of a treaty with a foreign State. As time went on, the use of the great seal became subject to various safeguards, such as the interpositidh between it and the original signification of the royal pleasure of additional checks. e.g. the signet and the privy seal, each by a keeper or custodian who was responsible for its proper use ; and we have seen (pp. 31-33) how this daborate process was regulated by sUtute in the year 1535. Judicial Patronage But it was, probabW, his position as the chief, if not the sole, judge in the Court of Chancery, which secured for the Lord High Chancellor his commanding position as di^Mnser of judicial patronage and a leading member of the Ministry. The growth of the Court of Chancery in the eighteenth centuxy, after its narrow escape from destruction in the Civil War, was enormous ; it de- veloped an elaborate machinery of Masters, Clerks of various ranks. Registrars, and other officials ; and all these were, virtually, subordinates of the Lord Chan- ceUor. In the nineteenth century, various Vice- Chancellors were appointed to assist him in the judidal duties of his office ; and though these, like the otHer judges, held their offices directly from the Crown, the advice of the Chancellor was, naturally, of great weight in the selection of them. And when, by the great THB LORD HIGH CHANCELLOR 943 ^??i!5f f**?™* *!f>« y«^ »«73-x«76, heretfter to be alhided to (pp. 186-287). the orguiizatioii both of the COTamoi bw and the' t.,dty ' courts wu combined. •abttantiaJly the whole of the patronage attached ?L??.^'"P*^?' **^* I*«^ *°*o ^^ hands of the Lord Chancellor, who had previously been entrusted by stotute, with the appointment of the County Court judges (p. 284), whilst, by virtue of his custody of the great seal, the final recommendation for the appoint- ments of nearly afl Justices of the Peace (£271) throughout England is in his hands. Thus the Lord Chancellor is. in effect, though not in name, a Mimster of Justice, as well as the presiding membrr of the highest courts of Appeal Chaikman of House op Lords Add to these dignities his position as Speaker or Presidrat of the House of Lords ; and it will be seen to what dmiensions has grown the once humble office of the scribe who sat behind the screen in the King's chapel in the eleventh century. Finally it may be remarked, as one of the numerous oddities of the British Constitution, that the Lord High Chancellor of England is also Lord High Chancellor of Great Bntain; though the custody of the Great Seal of Scotland is with the recently created Secretary for Scotland (p. 52). There is a separate Lord Chancellor for Ireland ; but none of the colonies nor British India has. it is believed, any official closely correspond- ing to the Lord High Chancellor,* though many of the former have Ministers of Justice, and in India there IS. as has been said (p. 86), a Legal Member of the Vicero/s Executive Council, Lord Privy Seal The office of Lord Privy Seal need not detain us ; « There to • titular 'Cauuicdlor' in the Province (rfOnterio- but he appear* not to occupy the highest judicial rank. "'"*"• ■"»• tin II Hi THE INDIVroUAL OFFICES for its duties, important as they once were, have disappeared; and the office itself serves only as a convenient means of giving rank to a person whose presence in the Ministry ' without portfolio ' (p. 115) E, for any reason, desired. The King's privy seal seems to have been int/erposed between the sign- manual warrant (p. 31) and the great seal far Uck in history, as a check upon improvident or fraudulent issue of funds out of the Exchequer; and its original importance is attested by the care with which Parliament, in its earliest days, insisted that it should be entrusted only to a worthy person. It figures largely in the Seals Act of I535» bdore alluded to ; but its importance disapipeared with the establishment of the Exchequer and Audit Office (p. 223), and the general reforms in financial machinery in the early part of the nineteenth century. Lord President of the Council Of a similar character is the office of Lord President of the Council, who is always a member of the Ministry, and who presides at the formal meetings of the Privy Council when the King is not present, and takes pre- cedence in that body next after His Majesty. One of the pecuUarities of the office is, that it is filled by a simple personal declaration made in the Council by the King. The Lord President would, naturally, take the chair of any committee of the Council of which he was a member ; and he can answer questions in Parliament as to the action of any such committee. But his real business is to act as a ' Minister without portfolio' (p. 115)- The ' Chancellor of the Duchy ' Very much on the same footing stands the Chancellor of the Duchy of Lancaster, the great Palatine fief (p 137) which, at the accession of Henry IV, became united to the Crown, but, for reasons of prudence THE DUCHY OF LANCASTER 045 which have long ceased to east, has always been mamtamed as a separate dignity, with its own revenues belonging to the King ' in right of his Duchy/ and not included in the ' Qvil List ' (p. 224), its own law courts, Its own officials, and its own administrative offices. The ChanceUor of the Duchy exercises some Uttle patronage, such as the recommendations for the appomtments of Justices of the Peace for the Duchy of Lancaster, and the appointment of the County Court judges (p. 284) acting therein. But, again, the chief business of the office is to supply a 'Minister wthout portfolio,' frequently on his way to higher The Law C^^ncERs On the other hand, the duties of the Law Officers and the Postmaster-General are onerous ; and, though these officials are always included in the Ministry of the day, they are by no means always members of the Cabinet —in fact, the inclusion of the Attomey-GeneraL the semor Law Officer, in the Cabinet a few years aeo was looked upon as an exceptional, and. perhaps, not wholly desirable step. For the Attomey.Gencral,in con- junction with his coUeague, the Sohdtcr-General, both of them being barristers of great experience, represents the Crown in aU legal proceedings (including, nominally, the mstitution of aU criminal prosecutions, and aU revenue and other prerogative claims of the Crown) as well as m the defence of the Crown in such claims as can be brought against it, by petition of right or otherwise (p. 230 n.). In this capacity, he acS in a quasi-judicial manner, not straining the Crown's nghts as a private barrister might weU do those of his client, but merely endeavouring to see that even- handed justice is done. Particularly anxious and jesponsible is his duty in those important criminal ' and pohtical trials in which he appears in person • though his duties in such cases have been lightened by r 246 THE INDIVIDUAL OFFICES the recent creation ol a Director of Public Prosecutioni, a non-psity and ' pennancnt ' official, who prepares the cases for trial The Law Officers act in a still more judicial capacity on appeals from the Comptroller of Patents, when there is a dispute as to the lawfulness of granting a jwrticular ' patent ' or monopoly. Thar more poUtical duties consist in advising the vanous departments of State on legal matters, though these have now often their own official * legal advisers,' and in defending the legaUty of Government measures, and explaining legal technicaUties, in the House of Commons. They also exercise a limited amount of minor official patronage. By a wholesome rule of recent adoption, they atfe not allowed to supplanent . their handsome official incomes by taking briefs for private clients. The Postmaster-General The Postmaster-General, as his title implies, is concerned with the management of the vast business of the Post Office, which includes, now, not merely its original duty of carrying and delivering letters, but those of transmitting telegrams, both by land and sea, receiving and safeguarding the savings of people of moderate means, facilitating the transfer of money in small amounts, carrying and delivery of parcels, payment of ' Old Age Pensions' (p. 252) and other Government allowances, and the instalment and up- keep of telephones. The Government monopoly of carrying letters dates from the seventeenth century ; but the other duties of the Post Office were imposed at various times during the nineteenth and present centuries. It may well be questioned, whether such a purely ' business' affair as the Post Office ought to be made a poUtical department ; but two facts seem to justify the practice. One is, that a substantial part of the national revenue is received from the Post THE KJSTMASTER^ENERAL VU Mce; and it i% ttweforc, desiiable that the House L^T^ ^?^' \*"« ^ ^"^^^ direct con^ SISiL* I^* other IS that persistent questions in Par- IZJ^! •"** T ^L?* *^ ™^« of bringing about refonns m a department which, by the v^nature ot Its busmess. tends towards routine. Household Offices A stiU briefer notice wiU suffice of the Household or purely ceremonial offices of the King's Coi^ Sme ?l*^'?!l,'^^ f *^^ ^1 Ma«&aS the Lord H^h a»amb«l^» date back to remote antiquity! iid'S became hereditary, and, therefore, pirely LettSni^ They are exerased chiefly on such solemn occasions as acorona^oraroyalfmieraL They haveTSIS^^ no connection with politics. They have how^? be(m supplemented by sUghtly more practical offic^' S±^ *?°*? "t *^^ ^^ ChamberiSn amd LOTd ^^t • ^ **"" Household, who are members of Se Justly m permanent attendance on the King, who formal meeting^X PriW'^df(p°^4^;nd who tSEf^K^.** ^^ ceremonies, and^are sip^ilto ^X^]^-^''* ^"^. ^*^ ^^ workingT^^ ^h!J k!^'^- ?*^ ^'^ H^fi* StewaFd, on the other hand, though not a purely ceremonial officer. 4S not a Mihister; being onfy appointed, as ooked after, such as Eton, Harrow, Winchester, and Rugby, had become appropriated to the use of the w«dthier classes, and assumed for themselves, without complete justification, the exclusive title of ' Public Schools,' The two ancient universities of Oxford and Cambridge were independent and self-governing bodies, whose great wealth was locked up in a curious collegiate systep, which, though it was to prove capable of ereat value when properly stimulated, by the end of the ' PUBUC EDUCATION t57 •i^teenth century had faUen into a state of decay and Buiappropriation; thus rendering the andent uWyersitiei, like the great ' Public Schools/ nracti- calty the preserve of the rich, though a certain number df sixarsbps' and close scholarships enable, pour students of resolution or toughness of sensibility to obtain the benefits (such as they then were) of a uni vur^ Mty education. Technical education, whicli in cjLcr tunes, had been cared for by a system of aoT-rm ire- ship, regulated by statute, and by a network'ui -^iWs or mdustnal associations, which, despitr tile p!.ma.T- ing which they underwent at the Rcfoimatioi s lU retamed a g«)d deal of wealth, .had fallen aLo^c entirely into decay. Such provision as there wa^ . r C?®*^^**^ ?^ ^^ "***»• wa» maintained m.i r iy by the efforts of the parochial clergy of the Established Church, by private charity, and by private enterprise of a very unskilled kind. RXFORIC OF THE UNIVERSITIES Much was done during the nineteenth century, to remedy this disgraceful state of affairs. The older umvttsities were reformed by Acts of Parliament based on the Reports of Royal Commissions, and have undergone a revix^. great and even startling, in view of tneir conditions a hundred years ago. New universities ?v Jf ^i'f °?>' P^}^^' Manchester, Liverpool. Leeds! Sheffield, Bristol, and in Wales, have been founded and hberally endowed both by private generosity and State subvention. The newer universities make sub- stantial provision for the higher branches of technical education ; but other institutions, some established by means of the wealth of the ancient gilds, others provided by bcal authorities chiefly by means of grants from the Imperial Exchequer, a few directly created and managed by the State, have been founded tor this speaal purpose. iJ i ». it f j .1 ! .1 • » i r I at i k 1 m 9S$ THE NEWER DEPARTMENTS The Endowed Schools Commission The Endowed Schools Commission has remedied many of the worst abuses of the nine great Public Schools, and has approved and put into force sdiemes for reviving and eixtending the smaller ancient grammar schools, wUch had been allowed to fall into decay. New schools ft>r the sons and daughters of the professional chases, such as Haileybury, Cheltenham, Clifton, and Marlborough, have been founded from various sources. But the most important of all the changes which have taken place, ^om the national point of view and that of the prospects of the Empire^ is the gradual establishment of State responsibihty for, and control over, elementary, and, to a certain extent, secondary education generally. Elementary Education and Voluntaky Societies The movement has proceeded with characteristic English caution. It b^an with the foun(btk>n of two votentary societies ; one concerned with starting and improving Church of England schools, the other, though by no means anti-religious, endeavouring to make education an independent pursuit, not merely an appendage of religious teaching. Unfortunately, the existence of these different, and, in a sense, rival (not to say irreconcilable) attitudes, has proved a terrible stumbling-block in the way of educational progress ; and a reconciliation between them has not yet been completely effected. Nevertheless, the State has proceeded cautiously, in its character of impartial responsibility for the welfare of all its subjects, to assist so far as possible all sound independent enter- prise ; while reserving to itself the right to step in and supplement deficiencies by a system of its own. ELEMENTARY EDUCATION «59 .#ii Grants administered by the Privy Councu. JFrom the early years of the nineteenth century. The Treasury began to make grants in aid of elem^tary actools. The grants were, at first, smaU and irregular • and were distnbuted somewhat at hap-haaard In the year i839.a Committee of the Privy Co^dl was creat^ for the purpose of supervising the distribution of them. This step naturally led to a system of iaspecHon and audit of accounts of the schools aided ^TSe mntT ttlt^!."* ^^ °"^^ °* *° Education Office was Education Depaitment nJ^S! ^^ ^®5^' *^* "^ *°"°«d into an Education S^S??^*' ^^ ^^ ^^**^P <»* » Vice-President Ed„^ti^"°''^^'i° !f^' ""^"^^y' *» Minister of Education ; and, fourteen years later, the country orm^y resolved, by Act of Parliament, to undertoS to enforce elementary education throughout the land. Act of 1870 Still, the Education Act of 1870 did not attempt to set up a umversal s^tem of State schools, much less of schools worked Srom a central office. It merety laid down the general rules : (i) that, the parents i gaardians of every child must be preparedTshc^ that It was receiving elementary education up to at Sfl ♦\'?*^^* stand^d. and (ii) that, where it was ckar that in any locaUty theie existed a lack of such education, it must be provided by the locaUty. either by the levy of attendance fees on the parents of tS ^r^Z^^^^ '??"' ^""^^ ^y *^« rating authorities, .uijlemented by Government grants based on the effiaency of the schools. ^^ •I I 'I. ; it 46o THE. NEWER DEPARTMENTS School Boards Under the system thus established, the country was mapped out into school districts, under Boards directly elected by the rate-payers (whence the name ' Board Schools ') ; and these Boards set to work to provide elementary schools which, working alongside the older or ' voluntary ' schools, and, often, it is to be feared, in not very Mendly rivalry with them, did, undoubtedly, do an enormous amount to make up lee-way in elemen- tary education. As the proportionate amoimt of the Parliamentary grants increased, and the contributions of the parents diminished until they were finally abolished in 1891, the Education Department, by means of its inspectOTS and regulations, obtained more and more control over the Board Sdiools, which became increasingly efficient. Moreover, they produced, in spite of somewhat adverse conditions, an admirable type of teacher, male and female^ to whose devoted services the country has never really done justice. These teachers, working in harmony with small local committees of Managers, appointed by the School Boards to maintain constant touch between them and the schools, made of the latter centres of brightness and friendly social intercourse, often in the midst of very dark and depressing conditions ; and any unpre- judiced observer who had taken the trouble to make a tour of the Board Schools in any big industrial town, or even in East London, after the scheme of 1870 had got into full swing, would have realized that the old tradition of a school as a place of torture or, at best, a place of dull routine, had, so far at least as the children of labour were concerned, passed away. Such opposition to attendance at elementary schools as existed almost invariably came, not from the children themselves, but from indifferent or selfish parents, who were either too lazy to prepare the children for school, or desired to employ tiidr services to supplement the family income. BOARD SCHOOLS j6x Defects of the System Nevertheless, the Board School system had its defects ; two of the most conspicuous of which were the smaUness of the school districts, and the methods of finance. Broadly speaking, the unit of school government was the parish ; though, where the parish was in a municipal borough, it ranked with the other iwnshes of the borough as a single unit. In spite of this provision, there were in England upwards of 3,000 school districts, many of which were far too small to be efficient. Then too, as it was impossible to aUow all these small Boards to levy rates on their own authority, they were required to send ' precepts,' or demands, to the ordinary rating authorities of their district, to supply their needs; and, as there was no statutory Umit to the amount of these demands, and no real compulsion on the school authorities to give any explanation as to their necessity, the rating authorities, who were the ordinary local government authorities for the district, treated it as their duty to cut down the demands of the School Boards by all means in their power, regardless of the efficiency of the schools, in which they took Uttle interest. Even where the local government area and the school districts were identical, as in the case of a borough, there were two distinct authorities, elected in different ways, who re^garded one another with jeatousy, if not with suspicion. These defects were, obviously, of a purely poUtical, or administrative character. The old Board School system was guilty of the vital error of divorcing responsibihty from power. The Board of Education This error was largely due to the fact that the central organization, the old Education Department, had not the prestige or the authority sufficient to enable m ) * ii a m ■ i i 1? I ^w ii ^ P '; 1. i n ' i itfi IHB liEWER DEPASTMENTS it to meet on equal tenns of direct intercotme the great local government bodies, the borough and county councils (Chapter XIV) ; still kse to handle finnly the old and deep-seated rivalry between the ' voluntary ' or clerical, and the ' Board ' or secular, schools. But this weakness was removed in the year 1899, when the Education Department was raised to the status of a political Board, nominally composed, like the Board of Trade and the Local Government Board, of a number of great State officials, but really imder the omtrol of a I^esident, who is a member of the Ministry, and is assisted by Parliamentary and permanent secretaries, and a professional and clerical stai¥. Act of 1902 Thus fortified, the advocates of improved elementary education took a bold plunge, and, in the year 190a, succeeded in carrying through Parliament the great Education Act of that year, which is the basis of the present system of public elementary education. It was felt, on the one hand, to be a public danger that the voluntary schools, ttK>ugh liberally si^ported by private efforts, should continue in a state of inierior efficiency owing to lack of funds ; while, on the other, the mpparten of voluntary education steadfastly refused, either to aUow thdr organization to be extin- guished, or to submit to the control of local secular authorities as the price of maintenance out of the rates. They already received krge grants from Parlia- mentary funds ; but these were, of course, administered by the Board of Education, not by the local authorities, and, moreover, did not involve interference, save on small and clearly defined points, with the independent action of the voluntary associations. Present Scheme The Act of 1902 boldly grappled with the problems before it, by transferring the whole responsibihty for KEFORMS OF zgoi ^ elementary education to- the ordinary local govem- rnent authorities, ^nz. the county, borough, and lawcr urban district coundb, to be described in subsequent chapters (XIII and XIV), and requiring them to raise funds by local rates to supplement any deficiency in the supply of such education, after the exhaustion of other sources. Thus, at a stroke, the vicious principle, before aUuded to, of separation between power and responability, was abolished ; wfaik the muhipUdty of admmistrative bodies, and the roaur ij i jrm Wnrm of many of them, wkii^^A maalmA tiv «lte- svitem^ disappeared. But the iiiiiniiaii m i whA MiOie precious possession of the old vohmtay {mm tiie ' non-provided ') schools, was preserved by uii^onns arrangement which is of the eswnce of the anr ^em. Education Committees Every local authority responsible for elementary education must now appoint an Education Committee or Committees in manner approved by the Board of Education ; and such Committees, though they must usnaUy contain a majority of members chosen from the local authority itself (•*.*. the county, borough, or urban council), must also contain outside persons having educaticaal experience, women as well as men, of whom some may even be nominated by independoit bodies, such as universities and associations of ' non-provided ' schools. To the' : Committees stands referred, as of course, every edu- catiOTial matter which comes before the local authority, except purely financial matters; and the bcai authority cannot come to any decision on educational matters without a report from its Education Committee. Thus the principle of expert handling is guaranteed. Managers But this, in itself, would not have met the demands of the supporters of the voluntary sy^em. f *■" M 364 THE NEWER DEPARTMENTS demand ior self-government is met through the institu- tion of Managers before referred to (p. a6o), which had ahreadv established itself as a feature of the ' Board School ' ^tem, and, under another name, was really in force in the voluntary system, where eadi school, or unall group of schools, was under the direct manage- ment of persons known as ' trustees,' appointed under the provisions of the deed of foundation of, or the regulations of the voluntary society supporting, the school. All these persons are now called ' Managers ' ; and the appointment of a group of Managers for every school conung under the Act of 1902 is compulsory. * Provided ' and ' Non-provtoed' Schools But whereas, in the case of ' {vovided ' (i.e. purely State) sdiools, the whole of the Managers are appointed, either by the local education authority, acting through its Education Committee, or by the 'immediate' local authority (usually, in the rural districts, the council of the parish (p. 338) in whkh the school is situated) ; in the case of voluntary or ' non-provietod' sdhools, the local educational authority (or ' immediate ' local authority) only appoints one-third of the Manago^, whilst the remaining two-thirds (known as ' Founda- tion Managers ') are appointed 1^ the old ' trustees ' of the school, who imiy appoint themselves. Thus it is evident that whereas, in the case of schools entirely supported by public funds, the local authorities can, by the choice of Managers, entirely control, to the smallest detail, the management of the school, yet in ibit case of ' non-provided' schools, wheit onJy the main- tenance of the school, as distinct from it^ buildings, is provided for out of public funds, the actual manage- ment of the school is in the hands of the local trustees, who have a two-thirds majority of the Managers. It must be carefully observed, however, that, in matters relating only to the secular part of education, the REFORMS OF 1909 ^ Managere even of a 'non-provided' school must «rry out the lawful instructions of the local Edudttion ,^SS- r* *^.°^ *^« important matter of the immediate appomtmcnt and dismissal of the teaching staff, IS. m afl cases, in the hands of the Manago? except that the local Education Committee mayoWect to any hnpropcr exercise of it. on any other than merely religious grounds, and that dismissals rcquii« its confirmation.* FinaUy, the burning question of religious mitruction is temporarily settled by the rule that/in tte provided ' schools, nothing but ' undenomina. tfcmal. orsimpleBibleinstructionshallbegiven; while. S X«* ?°^-P^^4^ ' schools, religious instruction ^ a doctrmal type, m accordance with the provisions of tte trust-deeds, may be given. In both cases, how- rSi' ^®J^.? f "^j^ ^ * ' conscience clause.' i.e. a stipulation that parents who object to the fcJrm of rengious mstniction given may withdraw their children dmng the hours fixed for giving it, which must be conveniently arranged for that purpose. Higher Education The Education Act of 1902, moreover, went far beyond the compulsory provision of elementary educa- »?;A*^ .^cting that the local education aithority ^ght, «^er independently or in conjunction with other bodies foster and promote, either by subsidies OT the estobhshment of its own institutions, any told of higher' education, •.«. any land (general or techmcal ) not elementary,' within its area. But its powers m this direction, though they have been con- MdCTably acted iqjon. in the provision of facilities both lor techmcal and ' secondary' education (' county' or mumopal ' schools), are optional only; whereas its powers to provide elementary education are also duties. 9tt THE NEWBR DEPAXTMEHTS whiGh Ota be enloroed by courtt of justioe. MoMover, whik there are no limits lave the neceedtiet ol the caw and the standard required by the Board of Educa^ tion, to the rate-levying powers of the local antbority for elementary education, its owers of levying rates in aid of higher education are limited, in tibe case of borou^ and district councils, to one penny in the pound of the local rating assessment, and to twopence tn the pound in the case of county councils; unless the Local Government Board should allow a higher rate. But the Board of Education may, of course, supplement local provision by any sum which it can induce Parliament to Vote for the purpose. iNSPBcnoM OF Secondaby Schools Finally, the Act of 1902 also makes provision for the imqpection of secondary schools ifdiich are quite ind^Modent of local control or support, •*.«. the so- called ' Public Schools ' coming under the Endowed School Acts, as well as the more modem second^ schools set up by private enterprise (p. 257), and pri- vately-owned schools. The attractions of this in- K>ection (which has made considerable progress) are not based en &e esfectation of Parliamentary grants, but OB the opportwtias which it aSords to improve the education given at sudi ackoc^ and, perhaps, on the securing of am official atif aval wM fh may have indirect N It is wftfostiMtjB. a ' ^ to deal with wfai^ are known as tks ' aon-poiittcal ' dqmrtme^s, i.e. tiiose bodies estaUidied by virtue of Act of Parliament for ^edal purposes, and subject to government control, whidi «e no real pait of Ite government of the Enqrire. They are cither, like the Charity Commissioners, the Ecclesiastical Ccunmis- tioners, the Registry of Friendty Societies and the -. 'i..-. ,:t„.:^rii_ '^.■... NON-POUnCAL DEPARTMENTS 967 Pul^ Record. Office, institutions formed and main- M-, *^* purpose of conserving and rendering accessible valuable assets which, though they do not alvrnp actuaUy belonf to the State, have a definite P»b?5 »t«est; or, Hke the National Debt OiBce. the Pubhc Works Loans Department, and the Patent Office, are merely formed to assist the political depart- ments in doing their work. One or two of the former class are directly represented in ParUament, usually by unpaid minor members of the Ministry but most of them are sub-departments of the political departments, manned entirely by permanent offidala, whose actions are accounted for in Parliament by the rejnescntatiyes of The Treasury, as general supervisor of the pubhc services. Was Departments For a different, but equaUy adequate reason, it is impossible to describe the various new offices, such as ttoserf the Food and Shipping Controllers, and the Mimsteies of Mumtions, Labour, and Pensions, which have been estabUshed during, and for the purposes of the great European War. It may be that one or more of them will be permanent ; but it is impossible yet to say. Some of them are ' political departments ' in the sense that their chiefs are members of, and directly responsiUe to. Parliament ; others are not iB CHAPTER XI THE king's courts OF JUSTICB KoTHiNG has contributed more to the stability of the British Empire, or the respect in which it is held, than the even-handed dispensing of justice which has distinguished its tribunals, from the highest to the towest, for the last two hundred years. And though the variety of the institutions of the different parts of the Empire, which is the great proof of the princmie of Ubfrty which animates British policy, is manifest no less in judicial than in other ^heres of government, yet it will be found that the same great qualities of mdependence, purity, fairness, and patience, which distinguish the judges of the United Kingdom, an equally conspicuous in the judges of the Dominkms, the Crown colonies, and British India. English Judicial Institutions Moreover, though it is quite true, as has been said, that each part of the Empire has its own judicial system, with its own peculiar features, yet it can hardly be doubted that, in n>d+ters of arrangement and pro- cedure, the courts of ibe Dominions and British India have, to a very large extent, followed English models, even' where the common law of England does not prevail^the prevalence of the jury system, an unmis- takeably EngUsh feature, is a striking example. Finally, the fact that there lies, in ahnost all important cases, a last appeal from all courts of justice in the British a68 ENGUSH PRINaPLES OF JUSTICE 269 S°?P^\/?^**P*' ««o«8ly enough, the courti of the United Kingdom itself, to the Judicial Conunittee of ^v"tYX^9*^*^» renders a fairty complete description of English judicial methods deiixable. CsiMiNAL Jusncs For practical purposes, all cases which come before Enghsh oonrte of justice may be classed as either cnmmal or avil ; and the arrangement of the English courts, and their procedure, are largely based on this distmction. We understand by cmninal cases those m which the King, acting in his double capacity of accuser and judge, ' prosecutea ' a person who is alleged to have committed an offence, such as' murder, theft smous assault, forgery, and the like, in order that the offendCT may be punished. The difficulty which would naturally arise from the double capacity of the King m such cases, if he acted in person, is got over by the feet tiiat he has long ceased so to act (pp. i»-i3), and that his duties m each capacity are now performed by totally distmct officials. Thus, the duties of the King as accuser, or prosecutor, are parformed by the Law Officers of the Crown, or the Director of Public Prosecu- tions working under their supervision (pp. 245-246) or even, m a considerable number of cases, by a * private prosecutor,' i.e. a citizen specially interested in brings mg the alleged offender to justice; while the Kin?s duties as judge are. as has been explained (p. la), and have for long been, entrusted to another body of persons of high rank and skill, known as ' His Maj^ty's Judges.' who hold the scales of justice with a finn Hand between the prosecutor and the accused, even when the former is actually a Crown offidaL Never- theless, there are serious differences between every proceeding of this kind, and aU ' dvil' proceedings • one being that whereas, in dvil proceedings, the parties may at any time agree to compromise, and end M ■ *«K»OCOPy RBOUITION TBT CHART (ANSI and ISO TEST CHART No. 2) /ff^PLIED IM/GB Inc 1«S3 Cost Moin SIrMt Rpchyttw, Mm York 14609 US* (716) 482 -0300- Phon, (716) 288 - 5989 - Fo« 270 THE KING'S COURTS OF JUSTICE the proceedings, this cannot be done in criminal cases, even when they are really conducted by a ' private prosecutor,' without leave of the judge or magistrate, acting in the King's name. In the early days, this peculiarity was due to the fact, that the compromise of a criminal case might have deprived the Crown of property which, on the conviction of the accused, would have been forfeited to it. Now that forfeiture for crime has been abolished, it is maintained for the purpose of preventing the escape of criminals from punishment. In the case of the more serious cnmes, indeed, it is in itself a crime to compromise, or ' com- pound ' a felony, or even to attempt to dissuade a witness from giving evidence on the trial. Civil Justice A civil action, on the other hand, is a proceeding brought by a private citizen, or by an official in his private character, to obtain redress against another person, official or private, for a wrong alleged to have been committed against the bringer of the action, or ' plaintiff,' by the person against whom the action is brought, or ' defendant.' In such matters, the office of Se King, parformed through his officials, is solely that of judge, or decider of the truth of the dispute. He has no other interest in the decision of the case than the desire to do justice. The legal advisers of the plaintiff are not his servants, or, if they are, are not acting in that capacity.* Consequently, there is nothing to prevent such a proceeding being compro- mised at any time without the leave of the Court, if the parties can agree upon terms ; though, if it is sought to embody these terms in a judgment of the court, the judge must, naturally, be consulted, and he iwdvM no lalary. and his title merely gives him a certam rank in his profession. CRIMINAL AND CIVIL PROCEEDINGS 271 ' a juror by leave withdrawn.' Ordinary examples of civil cases are actions for breach of contract (A agrees to sell a motor car to B and fails to deliver it), or for minor oflences, Jmown as • torts/ such as trespass to land or goods, slander, infringement of patent rights, and so on. But it should be noted, that a good many offences which are ' torts ' are also ' crimes,' e.g. assault, hbel, and theft ; and it is not quite clear what are the respective priorities of the Crown and the private person injured, in pursuing them. Anomalous Proceedings There are a few kinds of legal proceedings which will not readily fall completely under either of the two divisions above explained, e.g. it is not quite clear whether divorce proceedings and proceedings for breaches of railway by-laws, are strictly criminal or strictly civil. But the division is useful as a basis ; and wc will proceed to deal first with the machinery for punishing crimes, and the coiuts in which they are prosecuted. Enquiry by Magistrates When a man is accused of having committed a crime, the first step is to bring him before the ' magis- trates,' i,e. one or more of the Justices of the Peace. These magistrates date from the thirteenth century, and are appointed by the King, on the reconMnendation of the Lord Chancellor (p. 243), by what is called the ' Commission of the Peace ' for a county or borough. Formerly they received wages, but have long since ceased, in most cases, to do so ; though in London and a few other populous cities a special class of ' stipen- diary magistrates,' with professional qualifications and special powers, are appointed, on the recom- mendation of the Home Secretary, at substantial salaries, to give their whole time to their magisterial 'f : fi: } 272 THE KING'S COURTS OF JUSTICE duties. There is now no special qualification required for county or borough Justices ; though at one time the county Justices were appointed exclusively from the land-owning class. The appointment is not, hke that of the judges, ' during good behaviour ' (p. 13). but at the pleasure of the Crown ; and a Justice of the Peace can be removed by the simple process of stnking his name out of the Commission. In the counties, the Lord Lieutenant (p. 7) is the permanent head of the Commission, and has a good deal to do with recom- mendation to the Lord Chancellor for choice of his colleagues, who have somewhat greater powers than borough justices. A few persons, such as the Chair- men of County and District Councils (pp. 35i. SW). are ex officio Justices during their holding of the quahfying office • but it is a feature of all Justices of the Peace, that they can only act in and for the county or borough for which they are appointed, though they may be appointed for more than one county. The judges of the High Court (p. 287), and one or two other great officials, are appointed as Justices for every county. Summons or Arrest An accused person is brought before the magistrates either by summons, i.e. formal notice ordering him to appear on a certain day, or by arrest, that is physical compulsion. As a rule, no private person can arrest another, and not even a poUce officer can do so, without a ' warrant,' or precise order from a magistrate, which is only issued on sworn testimony as to the probaWUty of guilt • but in a good many cases a poUce officer can arrest without warrant, and in a few, a private person can do so, especially when he has been actually present at the commission of a felony.» Moreover, i A • fdonv • is one of a somewhat arbitrarily chosen Ust of crimes which form^ly entaUed forfeiture of ^^^.^"f/"^,' 3;°^'^^^ n^ have peculiar consequences. The hst includes all the graver offences, except perjury CRIMINAL PROSECUTIONS 273 even a private person can take any steps that may be necessary, even to the shedding of blood, to prevent a febny being committed in his presence ; though the greatest care must be taken not to exercise more force than is absolutely necessary for the purpose. Still more clearly, of course, a private person has the right to use any force which may be necessary to prevent the commission of a crime of violence against himself, his wife, child, ot servant, and even against his property, by another private person. This is the essential right of ' self-defence ' ; but it does not include (except in rare cases) the right of reprisal or punishment, still less resistance to lawful authority, even where the authority is mistakenly exercised. W ■ \h it Committal for Trial When an accused p'^^son is brought before a magistrate, the business of the latter is, in the first place^ merely to see whether there is a pritnd facie case against him. For this purpose, the magistrate hears the evidence, usually sworn oral testimony, of the prosecutor and his witnesses. There is hare no jury ; and the prisoner is not in the least bound to make any statement, or offer any counter-evidence, (though he may do so if he likes), because it is a fundamental principle of British justice, only departed from in rare cases, that an accused person will not even be put upon his trial, unless there is a primd facie case made out against him by others. Needless to F- y, no pressure can be put upon the accused to make him explain his conduct ; and, even if he confesses his guilt, his confession will not be received unless it is entirely spontaneous, that is, not produced by any exercise of authority, legal or moral. If the magistrate, after one or more hearings, thinks that no primd fade case has been made out, i.e. that no jury would convict even if the prosecutor's evidence 1^ . A ii 274 THE KING'S COURTS OF JUSTICE were uncontradicted, he dismisses the charge, and the accused goes iree> though he may be chargol again on fresh evidence appearing. Usually, moreover, there is no limit of time from the alleged commission of the offence, after which no charge may be brought ; though, in the case of the gravest of all offences, viz. high treason, there is a Umit of three years (except for treason conunitted abroad or a personal attack on the life of the King), and in the case of a good many minor offences there is a time limit. As a matter of fact, prosecutions for ordinary crime frequently take place many yeai's after the offence has been committed. If the magistrate decides that there is a pnmd facie case against the accused, he ' commits him for trial ' ; but now comes a question which depends upon the nature of the offence charged, the accused's age and character, or even his own dioice. For he may be dealt with ' summarily,' i.e. without the intervention of a jury, or he may be committed for trial at the Assizes, or to Quarter Sessions; and a word about each of these methods will be necessary. Bail But, in the meantime, the magistrate will have to decide (and also if there have been ' remands ' or ad- journments on the hearing of the charge), whether the accused shall be held in prison to await furtho: pro- ceedings, or ' let out on bail,' i.e. given his liberty on the undertaking of responsible persons, imder pecuniary penalties, for his reappearance, when wanted. The kw of bail is, of course, very important, because it is concerned with personal liberty ; but it is impossible to go fully into it here. Briefly speaking, there are some diarges, e.g. of treason, upon which a magistrate cannot grant bail, except upon an order of the High Court or a Secretary of State; others (including all other fetonies and the grav(x ' misdemeanours.' i.e. BAIL 275 offences less than felony) in which he may. at his disr cretion, grant bail; others. usuaUy the less grave, in which he must grant bail if reasonable sureties are forthconung. And it is a provision of the BiU of Rights of 1689, which probably covers both the last two clSes that excessive bail ought not to be required ' The surety or sureties (who may be or include the accused himself) enter into a formal contract with the Crown caUed a • recognizance,' to the effect that, if the accused is not forthcoming when he ought to be. they wiU forfeit a fixed sum; and a surety may arrest tbt accused if he tries to leave the country whilst under bail If the magistrate refuses to let the accused out on bail, and remands him to prison, the accused may nf ?fc H^Tr°*J?!^' f^'P"" ng ceased to be really necessary, on account ol the im- provement in the character of the preliminary hearing before the magistrates, just described ; and, during the continuance ol the European War, it has been susp pended on account of the other claims on the time of the Grand Jury-men. Likewise it should be mentioned that, in theory, the Grand Jury, which is an institution going back at least to the twelfth century, had a right to ' present ' offences of its own knowledge. But this right has teng ceased, hi practice, to be exercised. Coroner's Inquest It ought, however, to be stated that, in certain cases, to the committal for trial by a magistrate may be added the finding of a coroner's jury (p. 356), empanelled to discover the cause of a death or fire which has occurred. If, at such inquest, the jury returns a verdict ol murder, manslaughter, or arson, against a definite person, that person may be com- mitted for trial on the verdict, upon which an indict- ment will be drawn up and submitted to the Gnmd Jury, or, now, to a jury of trial But there is nothing to prevent a simultaneous or subsequent investigation before a magistrate. Trial on Indictment An indictment or information is tried, either before Quarter Sessions, or before a judge of the High Court at Assizes, in open court, usually in the county in which the offence is allied to have been committed ; though, if the state of public opinion would be likely to prevent a fair trial, it may be removed for trial, by a special process, to the Central Criminal Court in London Hi X k TRIAL BY JURY 279 (the 'Old Bailey'), which is primarily the court for the trial of 'indictable* offences committed within the Metropolitan area and at sea, and which sits twelve times a year. AssizR Courts The Assize Courts are held three times a year in all counties, and four times in certain important and populous cities (Manchester, Liverpool, Leeds). Both these latter tribunals are, in substance, presided over by a judge of the High Court, or a Commissioner of experience specially appointed for the occasion ; though, nominally, the Central Criminal Court consists of a considerable number of persons. Quarter Sess'^ons Quarter Sessions are, as their name implies, held fou- times a year. In the counties, they comprise all the Justices of the Peace for the county who choose to sit; all of whom are entitled to vote on the de- cisions. But the Chairman, who is elected by his fellow Justices, is the president and mouthpiece of the court, and, in effect, acts as judge, sometimes receiviM a salary for his work. In the boroughs which have seprjate Quarter Sessions, the trial of ' indictable ' offences is held before the Recorder, a professional lawyer appointed by the Crown on the recommendation of the Home Secretary (p. 230). Generally speaking, the question whether a particular case is tried at Assizes or at Quarter Sessions, is simply a question of which court will sit first ; but a certain number of the more serious offences, such as treason, murder, felonies (other than burglary) which are punishable on a first conviction with penal servitude for life, perjury, and bigamy, can only be tried at Assizes. In cases of rare importance, the trial is ' at bar ' of a court of the King's Bench Division (p. 286), consisting of at least three judges. !!!| 11 ■ m 380 THE KING'S COURTS OF JUSTICE The Ju-ay of Trial Wherever the accused is tried, whether at Quarter Sessions. Assizes, the Central Criminul Court, or ' at bar,' he is entitled to have his fate decided by a jury ol twelve of his fellow countrymen.' chosen at random by the sheriff (p. 355) from a list of householders compiled by the local authorities ; in fact, it is probably not lawful to try him in any other way. Moreover, the accused has a right to ' chaUenge.' i.e. object to any of the jury-men. He may, in most cases of treason, exerdse thirty-five ' peremptory ' challenges, f .*. without giving any reasons, and, in the other cases of treason and all felonies, twenty ; in all cases he may chaUenge ' for cause,' «'.«. on good grounds, such as relationship to the prosecutor, known hostility to himself (the accused), or the like. And this challenge may be either ' to the array.' ».«.that the sheriff, through partiality or mistake, has presented a wrong 'panel' or list of jurors, or • to the poUs.' i.e. on grounds of objection to in- dividual jury-men. Oral Evidbncb All the evidence necessary for proving the accused's guilt (with certain rare exceptions) is given by word of mouth at the trial, and of course on oath ; and the accused's counsel is entitled to ' aoss-examine,' or test by questioning, all the witnesses for the prosecu- tion. Then the witnesses for the accused are put forward by his counsel ; and the counsel for the prosecution may cross-examine them. Until recently, the accused was not allowed to give evidence himself, foi fear lest he should ' give himself away ' ; though he was allowed to make a statement not on oath. But, in the year 1898, by a hotly-contested change in the law. he was » Temponrv exception ought to be made In the case d offences under the Defence of the Realm Acts ; but, even here, mainly, if not entirely, for aliens only :.«%i TRIAL BY JURY t I' 38Z allowed to do so if he pleased ; and, if he does, ' -> may be cross-exainined by the prosecuting counsel x ut the latter may not, except in a few cases^ask the accused any question tending to wow that theaccused person is of bad character. And in no circumstances can the accused be compelled to give evidence ; nor is the prosecuting counsel allowed to draw the attention of the jury to the fact that he has not done so, though the judge b. Duties of the Judge For it is the business of the presiding judge, all through the trial, to see that the rules of procedure and evidence are obeyed ; though, so strong is the sense of justice in the legal profession, that an advocate who attempted to violate them would hardly have many more chances of doing so. Moreover, after counsel for both sides have addressed the jury, the judge ' sums up' the case, i.e. recalls the important parts of the evidence to the minds of the jury-men, and gives them any directions about the law which may be necessary to enable them to arrive at their verdict of, ' guilty ' or * not guilty/ on the facts. If the jury , i;nd ' the accused ' not guilty,' he is discharged at once; and he can never again be tried on the same accusation. If they 'convict' him, ».«. find him 'guilty,* the judge (either at once or at the end of the session) pronounces the sentence of death, penal servitude, imprisonment, or fine, as the case may be, pro\-ided by law ; though, except in ' capital ' cases, he has considerable discretion within certain fixed limits. But the verdict of the jury must be unanimous ; though, if they fail to agree, the accused may be tried again. Moreover, by certain recent and beneficial changes in the law, what may be called ' preventive ' or ' remedial ' sentences, such as ' police supervision ' or ' probation ' (i.e. release imder supervision), may be added to, or substituted for, ordinary punishments. But this book is not a treatise on criminal law. I f ; i I aSa THE KING'S COURTS OF JUSTICE Appeals in Criminal Cases Until recently, there was no appeal from the verdict of a jury in a criminal trial ; though there was a possible appeal on a point of law appearing on the record of the proceedings {e.g. if the judge gave a sentence which the law did not authorize), to the House of Lords (p. 29a). And the Judge or Chairman at the trial might ' reserve ' a point of law for consideration of the Court for Crown Cases Reserved, a solemn tribunal consisting of at least five judges of the High Court; sentence being 'respited' or put off until its decision. But, in the year 1907, was instituted the Court of Criminal Appeal, consisting of an imeven number (not less than three) of judges of the King s Bench Division (p. 286) ; and a convicted person may now, as a matter of right, appeal to this court on any question of law, and, with the permission of the judge at the trial, or the Ccmrt of Criminal Appeal itself, on any question of fact, e.g. that the verdict of the jury was not justified by the evidence, and also, with the per- mission of the Court of Criminal Appeal, appeal against his sentence, except where that is absolutely fixed by law. On any such appeal, the Court of Criminal Appeal has large powers, if (but only if) it thinks there has been a substantial miscarriage of justice, to quash the conviction altogether, or modify the sentence, if the app«d is against that only ; b \t, unhappily, it has no power to order a new trial. In no case can the prose- cutor appeal ; though, if the accused appeak against the sentence, he runs the risk of having it increased. And there can be no further appeal from the Court of Criminal Appeal ; except to the House of Lords upon a point of law which the Attorney-General certifies to be of public importance. The Court for Qown Cases Reserved has disappeared in consequence of the new Act. From this brief sketch of English criminal procedure PRINCIPLES OF CRIMINAL JUSTICE 263 it may be gathered that the following are the chief charactenstics of that procedure :— (I) That an accused person can never (except in minor ^»w l*T ^ P"*. "P°" ^ trial until the charge S^ ^J^ ^? investigated and found probaSe M T&fT ^"?*^ 'f'^'i^y *^°> °ffi"a^ enquiries. (a) That the whole burden of proving the accused's «nUt (at any rate up to a point raising a presumptii of SiiS'J'T r^J^?^r. The accused caSnof S compeUed to incriminate himself; and even his f.^ TlS"*K**^ coi^on is received with grei caXn (3) That the accused is tried by a jury of citizens, Xose (.^ ri^^ ^*? *'°*^*^*^ *° ^^^«°«« before the'tS (4) That the evidence agamst the accused is (with slicht exceptions) oral testimony on oath ; the witnesses behig SviSr "°«*-«»*™»°at»on by the accused's legal (5) That the trial, even of the minor offences alluded to in (6\ Thil'f?. ^^I*"***"!;!' *° ^**^*=^ ^'^ P""»<= has access. ^ ^ )tV^ ^""^ °fu*^® i^'y " fi°^' »o '«■ as the accuser righ? hi I I? Ill 1:1! IS ■! i'l ii s88 THE KING'S COURTS OF JUSTICE go circuit and hold the ' Assize Courts ' previously mentioned (p. 279). This is important for the arrange- ment of business ; because, for example, though tiie citizen's right to have his case decided by a jury in civil, as well as in criminal cases, is theoreticaUy pre- served, in practice ' equity ' cases (p. 285) are still tried without a jury, and the Chancery Division has no jury accommodation, while the peculiar nature of the business in the Probate, Divorce, and Admiralty Division, which is governed, broadly speaking, by Roman and Canon Law, net by pure English law, renders a separation of its business eminently desirable. Thus, notoiUy are the judges of each Division a distinct body of men ; but ' each Division and, within the Probate, Divorce, and Admiralty Division, almost each class of business, has its separate body of practi- tioners who attend its sittings ; while a great deal of ' probate ' work is not done in court at all, but in the Probate Registry at Somerset House, which has branches in the principal cities of England. The same remark applies to the ' out of court ' business of the King's Beach Division and the Chancery Division, an important class of preliminary and supplementary work conducted by ' Masters,' who act as the judges' deputies. But, in strict theory, any kind of action can be commenced in any Division of the High Comt, subject to liability to be transferred (at the cost of the person choosing the inappropriate division) to the more suitable Division; and the curious practice, of one of the King's Courts virtually stopping pro- ceedings commenced in another of equal authority, deriving that authority, too, from the same source, after lasting for two centuries and a half, is now. happily, at an end. There still remains, however, the power, usually exercised in the King's Bench Division, of restraining proceedings in courts of inferior or limited jurisdiction (such as the Courts of the Justices of the Peace and the County Courts) by writs of Pro- CIVIL JUSTICE 289 hibition, of ordering such tribunals to do their duty by wnts of Mandamus, and of removing proceedings from them for trial in the High Court, by writs of Certiorari Superior Courts of Local Jurisdiction A very few courts of superior but local jurisdiction still survive ; such as the Chancery Court of Lancaster (with branches at Manchester and Liverpool), and the Chancery of Durham, which are courts of equity, the Salford Hundred Court at Manchester, the Liverpool Court of Passage, and the Tolzey Court at Bristol, which are common law courts, and the Mayor's Court of London,' which is both. These are distinguishable from the County Courts, in that the value of the cases which may be tried by them is unlimited, and from the High Court, in that they only exercise jurisdiction withm a hmited area. In procedure, they resemble the High Court, having pleadings and other institutions of a somewhat formal character. Civil Procedure in the High Court It would be out of place to attempt here any detailed descnption of the proceedings in an ordinary civil action. It is sufficient to say that, subject to the important differences mentioned at the beginning of this chapter (p. 270), they closely resemble the pro- ceedmgs m a criminal prosecution ; except that the pleadings, instead of being, as in criminal cases, oral are wntten documents, sometimes of considerable bngth and complexity, exchanged between the parties The rules of evidence, too. tliough fundamentally similar, are marked by important differences, e.g. the plaintiff can be compelled to give evidence, though neither he. nor any other witness, can be compeUed to answer any question tending to show that he has » The Qiy of London Court is virtnally a coonty court. i I t I \ 1 Kti ! fft tt r I 1 vM fi ii i.i \f ,M I'l t 290 THE KING'S COURTS OF JUSTICE been guilty of a crinie for which he could be punished* Where there is a jury, it finds a verdict on the facts proved, under the direction of the judge ; where there is none, the judge decides both on the facts and on the law, and, in either case, gives a judgment for the plaintiff or defendant, which is enforced by seiziue of the property of the party who fails to obey it, and, in cases of real obstinacy, by imprisonment of his person for a brief period. But the object of civil pro- ceedings is compensation, not punishment; and the barbarous practice of keeping insolvent debtors in per- petual imprisonment was abolished, largely owing to the efforts of the celebrated novelist, Charles Diclrcns, in 1869. Appeals from the High Court There is no appeal on a question of fact from the verdict of a jury, or a judge sitting as a juiy ; but the aggrieved party may apply for a new tnal, on the ground that the verdict was against the weight of the evidence, or that the judge ' misdirected ' himself or the jury, or that certain evidence was improperly admitted, or, on the other hand, rejected, or even that the damages awarded were excessive. But the Court of Appeal, to which such applications are made, is very loath to grant them, except, perhaps, on a question ot misdirection or reception of evidence (which are really questions of law) ; because it does not hear the actual witnesses, as the High Court does. The Court of Appeal On the other hand, appeals from a judgment or order of the High Court on a point of law are numerous, and freely admitted. They go, in the first place, to the Court of Appeal, the upper chamber of the Supreme Court of Judicature (p. 286), which has taken over the duties of the old Court of Exchequer Chamber, the APPEALS 29Z old Court of Appeal in Chancery, and the old ' Full Court of Probate and Divorce. Though in theory one tribunal consisting of the Lord ChanceUor and the lord Chief Justice (the Presidents respectively of the Chancery Division and the King's Bench Division). toe Presid^t of the Probate, Divorce, and Admiralty Division, toe Master of toe Rolls (foimerly a high Chancer}^ official and judge), and six specially appointed Lords Justices of Appeal'* wito toe usual judicial tenure (p.13), it usually sits in two sections— one for hearing appeals from toe King's Bench Division toe other for appeals from toe Chancery Division of toe High Court. As before remarked, no witnesses are heard by the Coi^ of Appeal ; and toere is, of couree, no jury there. But legal arguments on toe case ar^ heard and disposed of— in final appeals by at least ttree judges, m appeals on intermediate questions ansing m toe course of toe action, by two judges. The judgment or order of the Court below is affirmed or reversed or altered, as the case may require, and is put mto force in accordance wito toe decision of toe Court of Appeal. The House of Lords But toe dissatisfied Utigant has still one more appeal If he c^ stand toe delay and expense, viz. to toe House of Lords. At toe time of toe great judicial reforms of 1875. before alluded to (pp. 286-287), it was proposed to abohsh tois nght ; and an Act of Parliament to toat effect was actuaUy passed. But it was altered by anotoer Act before toe new scheme came into operation toough wito toe understanding toat toere should be an alteration in toe composition of toe House of Lords when sitting to hear appeals. This understanding was earned out by a toird Act of Parliament, passed h.'J^^ *" sometimes apponted directly from the ranks of i^^S^= xnore (rften judges of the High Cobrt who have ^oderS good service m that capacity are promoted to the ofl&cc "*"'*'» i I I ' m i ii I I ■ . .M tif i i;. II I r I r Tin I 9^ THE KINGS COURTS OF JUSTICE in Z876, which provided that no appeal abould be decided by tiie House of Lords unless at least three ' Law Lords ' have been present at the hearing of the argiunents, and taken part in the decision.^ The ' Law Lords ' include (a) all the hereditary peers who hold, or have held, high judicial office {e.g. Lord Chancellors and ex-Lord Chancellors, the Lord Chief Justice, the Master of the Rolls, and any other judges of the Supreme Court who may happen to be peers)," and (6) the • Lords of Appeal in Ordinary,' who are highly qualified lawyers appointed peers for life for the express purpose of hearing appeals (pp. 135-136) • These Law Lords likewise hear arguments, often at great length, in the case ; but they do not hear witnesses, all the evidence and other proceedings in the courts below being before them in printed form. As in the Court of Appeal, any number of them may deliver separate ju(^nents ; and the decision of the majority binds. If the Lords are equally divided, the appeal foils. The Judges as Advisers of the House of. Lords One of the most interesting, though rare, features of the House of Lords sitting as an appeal tribunal, is the occasional attendance thereat of the judges of the High Court, as advisers of the House. The right of the House of Lords to the benefit of the assistance of the King's judges is very ancient, and is kept alive in the writs which are sent to each of such judges at the summoning of each ParUament. As has been said, it is very rarely exercised ; and it is a little doubtful which of the judges of the High Court are now bound *■ It wUl thus be seen that no member of the House of Lords is pre- vented from being present at the hearing of an appeal, and voting, U he thinks fit. Practically speaking, no members except the Law Loirds ever do so. « . . . . > As a matter of fact, ordinary judges of the Court of Appeal and the High Court, who happen to be pears, do not conMder it derfrable to attend the hearing of appeals as members of the House of Lordu APPEALS 293 to attend. But, occixtioiuUy, if an appeal of excep- tional difficulty or La^portance is to be heard, the judges are summoned, and. after hearing the argu- ments, deliver, either sepi\rately or through the mouths of one or more of them, speeches of advice, which are, substantially, judgments on the points involved; though the House is not bound to follow them. After the judges have delivered their opinions, they receive the thanks of the House, and withdraw ; and then the Law Lords present ' move ' the House in accord- ance with their own individual views, formed, of course, after hearing the advice of the judges. The Judicial COi-mrrEB The last tribunal sitting in London which it is neces- sary to describe in this chapter, is not an English tribunal at all ; for it does not, practically speaking hear appeals from EngUsh courts. It is. however, a tribunal of great and growing importance, and of a distinctly imperial character. This is the Judicial Committee of the Privy Council, formed in the year 1833, to take over the jurisdiction which had tong been exercised in the hearing of appeals from the cotonial and Indian Courts, by the Privy Council, in its character of general adviser of the Crown in matters of policy. Till 1833, this jurisdiction was exercised in a somewhat casual manner ; but, in that year, an attempt was made to give it a judicial character, by providing that all appeals to the Privy Council should be referred to a committee consisting of the Lord President of the Council (p. 244), the Lord Chancellor, such of the other members of tlie Privy Council as held, or had held, high judicial office, and two other specially appointed members. To these were added, in 1871, four speci- ally appointed paid members. But these latter were superseded in 1876 by the four (now six) Lords of Appeal in Ordinary (p. 292) ; and not more than seven judges or ex-judges of the superior cotonial courts. ! I ■ • ', III '«\ ;!■ ' I t- In ii illi 194 THE KING'S COURTS OF JUSTICE and two of the taperior Indian courts, may, if membera of the Privy Council, be added. Thus the Judicial Committee it aseuming, more and moie, an imperial character ; and. at a matter of fact, the cases which come before it are of the most varied kind, and involve an intimate knowledge of the most varied systems of hiw. Any number of ' Boards ' or divisions of it may sit ; but at least three members must be present at the hearing of each appeal. A pecuharity of the decisions is that, being in the form of advice tendered to His Majesty, no differences of opinion among the members of the Board are aUowed to transpire ; the advice taldng the form of a written discourse (in effect a judgment) read by a single member of the Board, after all have consulted together. The weak point of the tribunal is. that its decisions may be lajrgely determined by Ihe selection of members to sit on a particular occasion. Nominally, this selection rests with the Lord President of the Council (p. 344) ; in practice, it is believed to be exercised by the Lord Chancellor of the day. One of the very few anti-imperial symp- toms which have manifested themselves in recent years has been, the unwillingness of some cf the self- governing Dombtons to submit cases to the decision of the Judicial Committee ; but the growing strength and imperial character of that body will probably correct tiiis tendency. It should, perhaps, be mentioned that, owing to the rule previously alluded to (p. 282), appeals on criminal matters rarely come before the Judicial Committee ; but, occasionally, • special leave to appeal ' in a criminal case, to prevent a miscarriage of justice, is given by the Committee itself. Judicial Privilege Before leaving the subject of English administration of justice, we should mention one of its characteristics wliich, though it may not be peculiar to the Briti^ JUDiaAL IMMUNITY 195 ^auptt, is of firtt-nte importance, and hai nread ttro^jhout that Empire. Tlu. i. the prindpSe^ judicial immunity in respect of aU actidone and words said in the exercise of Judicial office. We have K^a .«? v?*w^f3^^*°^ ®' i"<^«» towards the t2? ^ l»i» Ministers was secured by the provision of the Act of Settlement which enacted that the judges' tenure should be 'during good behaviour, and their •atones ascertained and estabUshed' (p. 13). It is equaUy important, that a judge should not stand in ecmstant f «tf of malicious prosecutions or actions, instigated by private persons who fancy tiiemselves to have been injured by sometiiing said or done by him Z-^IJ^f""^^ u i»i« office-^t would be impossible for him fearlessly to do his difficult duty if he did. Accordingly, no such prosecution or action will he against any judge, superior or subordinate (indudinir a magistrate acting as a judge, e.g. at Quarter Sessi^ however real tiie grievance of the complainant A judge is, of coarse, liable, like any private person, to prosecution or action for any acts done or words spoken outside his judi ial duty ; and. if he is convict^ of arune he \/iL be deprived of his office. Moreover. that IS a doctrine, that if a subordinate judge meddles witii matters obviously outside his jurisdiction, he toscs his pecuUar judidal privilege, which, it must agam be observed, extends to judidal acts only— « ^ even a High Court judge is Uable to a fine for refusini? to. grant an opportunity for tiie issue of a writ of Habeas Corpus (p. 37). But tiie remedy for judidal misbehaviour is an Address by Par' ament to tiie Crown for removal of tiie offender, as rovided by tiie Act of Settlement. It is, perhaps, needless to say that no such Address has been presented since tiie passing of tiie Act of Settlement; but it may be pointed out that tiie very few judges who have taken advar age Of their pnvilege to utter irrdevant words, whether pohtical or merely facetious, on tiie Bench, have been '.tI ■i\i . ,A 1,1 i 296 THE KING'S COURTS OF JUSTICE condemned by the universal disapproval of enlightened public opinion. Scottish Courts As has been remarked in a previous chapter (p. 51), the Act of Union with Scotland, which created the Kingdom of Great Britain, expressly guaranteed to Scotland her separate and different system of private law and law courts. The great courts of law in Scot- land are the Court of Session, foimded in 1532, a uni- versal College of Justice, whose Senators, or Judges, have civil jurisdiction to any extent, and the High Court of Justiciary, founded in 1672, which exercises supreme criminal jurisdiction. The Court of Session The Court of Session is arranged in two ' Houses,' an Outer House, of five ' Lords Ordinary,' in which cases are first tried by single judges, with or without juries, and an Inner House, or Court of Appeal, consisting of eight judges, viz. the Lord President (the head of the whole College), the Lord Justice Clerk, and six ' Lords Ordinary,' sitting in two divisions of four judges each. The Court of Session has taken over the duties of the former Jury Court (which, on the introduction of the jury in civil cases in Scotland, was established to try questions of fact remitted by the Court of Session), the former Court of Exchequer^ established at the Union to deal with revenue matters, the former Court of Admiralty, and the Commissioners of Temds (tithes). The High Court of Justiciary The Judges of the Court of Session are also the L'- ^5 Commissioners of Justiciary, and exercise their jurisdiction imder the supervision of the Lord Justice General, whose office is now imited with that of the Lord President. Cases are tried before them by juries of fifteen, who may bring in a verdict by a SCOTTISH COURTS OF JUSTICE 297 majority. In addition to the ordinary verdicts of Guilty or Not Guilty ' (p. 281). they may find the charge agamst the ' panel ' (or accused) ' Not Proven.' m which case he is entitled to be 'assoilzied.' just as though he had been found ' Not Guilty.' Like the Court of Session, the High Court sits in Edinburgh • but circuit courts are held in various other towns as occasion requires. ' Appeals from Scotland There Ues an appeal in all civil cases from the judg- ment of the Inner House, or Court of Appeal in Scot- land, to the House of Lords of the United Kingdom whose proceedings have aheady been described (pp 291-293). Of course Lords of Session who happen to be peers may sit, if they choose, on the hearing of such appeals; and, as a matter of practice, one at least if not more, of the Lords of Appeal in Ordinary (pp. 135-130) IS usually chosen from the ranks of ScottSi judges. There is no appeal from the Lords Commis- sioners of Justiciary in criminal cases. Sheriffs' Courts Conti-ary to the English practice, the same local courts in Scotland exercise both criminal and dvil junsdiction The^ are the Sheriffs' Courts, which, on the abolition of the hereditary jurisdictions of the clan chiefs in 1746, became the regular tribunals for local junsdiction, civil and criminal, tiiroughout Scotland. They are more important tiian tiie EngUsh yuarter Sessions and county courts ; because tiieir junsdiction is, in tiieory, not Umited in amount, though their power to award criminal sentences is. ine bhenff, a county official, is appointed by the Crown on the advice of the Secretary for Scotland (p. 52). on a 'good behaviour' tenure; but much of His judicial work is done by a Sheriff-Substitute, who may be removed from office by the Secretary for Scot- i ;--;Pi 298 THE KING'S COURTS OF JUSTICE land on a report by the Lord President and the Lord Justice Clerk. The Sheriff's Court sits without a jury in civil cases, except in claims by employees for injuries arising out of emptoyment. But where the claim, in any other case, is for more than fifty pounds, either party may require the case to be remitted to the Court of Session, for trial with a jury. The interests of the Crown in criminal cases are enforced by a ' procurator-fiscal ' for the county, •'npointed by the Lord Advocate ^ttie chief Scottish .aw Officer)* and appeals in ci..l cases lie from Sheriff-Substitute to Sheriff, and, where the value of the cause exceeds fifty pounds, either directly or viA the SherifE, to the Court of Session. Justices of the Peace for the county are appointed, as in England; but their position is less important, especially in judicial matters, than that of their EngUsh brethren, owing to the greater importance of the Scottish sheriffs. They have, however, a small debts jurisdiction up to twenty poxmds, and a summary jurisdiction (pp. 275-«77) in petty criminal cases. The Justices of the Peace are tiie hcensing authority in the bmrghs ; but in the counties they share this duty with the County Councils. Irish Courts : The High Court The Irish system of courts of justice, like the Irish law, is much closer to the English system than is the Scottish. There are a Lord Chancellor and a Lord Chief Justice, at the head respectively of the Chancery and King's Bench Divisions of the High Court of Justice in Ireland, which is the lower chamber of the Irish Supreme Court of Judicature. But the Probate and Matrimonial and the Admiralty Courts are still separate Divisions ; and so is the Court of Bankruptcy, which, in England, is now merged in the King's Bench Division. There is no Divorce Court in Ireland; IRISH COURTS OF JUSTICE 399 because Wsh law does not recognize divorce; » though deoees of nullity {t.e. that there never has been any lawful marnage). or of judicial separation, can 1^ obtained from the Probate and Matrimonial Division m approFnate cases. There are, however, special Land Courts, for dealing with questions arising Sder the numerous Acts of Parliament dealing with the relations of landlora and tenant in Ireland The Court of Appeal The upper chamber of the Supreme Court in Ireland ?kV? a^^^' 'f, ^^ ^°"^ °^ Appeal' consisting of the Lord ChaiiceUor and the Lord Chief Justice with {^rJ?^^^•°^ *^; Rolls and two specially appointed Ix)rds Justices of Appeal, who hear cases in sessions of not less than three judges, unless the appeal is on a merely madental matter. From the Court of Appeal he appeals on questions of law to the House of Lords which, asm the instance of Scotland, includes amongst Its Law Lords' at least one Irish lawyer sped Ay appomted for the purpose. j tr- j Inferior Courts Inferior jurisdiction in Ireland is exercised bv County Courts which have a greater authority and area than the County Courts in England, being reaUv connected with the county, and fewer in number. The Imiit of theu- compulsory jurisdiction in civil cases is rrlLr^^-A^^.^^^^'^ '^^^' ^'^^ ^^y exercise cnmmal jurisdiction, bemg in fact combined courts Of guarter Sessions and county courts in the English sense, with the Chairmen of the Justices acting as Civil inlS^r.^"^^^^ °' obtaining a divorce between persons domidled m»t.?^? r^y "fcunog «»e P^sage through the Imperial P^ P®S* °\ a Pnvate Act. usuaUy based on a verdict ^erim^ conunittee (p. 162) the case is uwaUy reheard as an ordinary taW. 20 > r. y. : 1 rir"- I H 'I I Hi I I ,1 i 300 THE KING'S COURTS OF JUSTICE Bill Court judges. Criminal jurisdiction in heavy cases is, of course, also exercised by the judges of the High Court on circuit, in much the same manner as in England ; and in Dublin, Belfast, Cork, Londonderry, and Galway, there are Recorders with considerable criminal jurisdiction, which, in normal times, is exer- cised wilh the aid of a jury. There are also Petty Sessional Courts with jurisdiction over minor offences, as in England ; but a special feature of Irish criminal jurisdiction is the local sessions of the Resident Magistrates, of whom there are about sixty, scattered throughout the country, who correspond to the Stipendiary Magistrates in England (p. 271), but have certain special powers and duties not belonging to their English colleagues. • Courts of Justice in the Colonies and Biotish India, and Power op the Crown to create Though justice is administered in the King's name throughout the Empire, with the possible exception of the Channel Islands (where judicial institutions are primitive), a somewhat startling difficulty meets us on the threshold of a brief description of the judicial systems of the colonies and British India, owing to the existence of an old-established principle of con- stitutional law, acted upon within comparatively recent times, to the effect that the Crown caimot create new jurisdictions or new courts, without the authority of Parliament. Liasmuch as many British colonies have been acquired since this doctrine was laid down, the position of their courts seems to demand a word of explanation. In ' Settled ' Colonies Apparently, in colonies acquired by settlement (p. 62), the rule that the settlers take with them so much of the English common law as is suitable to their COLONIAL COURTS 301 conditions, seemsto have been considered as authorizing the Crown to establish by Letters Patent in such colwiies courts on the English model, to administer such law ; though not to establish courts of ' equity* or ecclesiastical jurisdiction. ' Ceded ' Colonies In the case of conquered or ceded colonies, ap- parently, the admitted right of the Crown to legislate for these by Order in Council until the giant of repre- sentative institutions (p. 78), was held to include the right to set up new courts, or recognize old. At any rate, m both cases, the Crown did create such courts by Orders in Council. Then came the developement of colonial legislatures in the first half of the nineteenth century (pp. 39-40) ; and these new legislatures freely assumed the power of creating or managing the judicial systems of their colonies. Colonial Laws Validity Act This power was questioned in the middle of the nmeteenth century ; but al doubts as to its existence were set aside by an Act of the Imperial Parliament in 1865, before alluded to (p. 72), which declares that every colonial legislature has, and shaU be deemed always to have had. full power to establish courts of judicature for its colony, and to abolish and re-constitute them, and, generaUy, to make provision for the ad- mmistration of justice. The greater tribunals of the Dommions and British India have been directly created by Acts of the Imperial Parliament ; their validity is therefore, beyond question. ' British Settlements Act FinaUy, by the British Settlements Act of 1887 previously alluded to (p. 100), the Crown is empowered h ' > ii •ikim ,i : ''[ 302 THE KING'S COURTS OF JUSTICE to establish, by Order in Council, in any colony not acquired by cession or conquest, and not within the jurisdiction of any legislature (other than a legislature created under the Act itself), such courts of justice and officers thereof as it may deem necessary. The wording of this statute, however, practically restricts its operation in this respect to a very few cases. Vice-Admiralty Courts The Vice-Admiralty Courts of the colonies, which seem to have been originally derived from the ancient jurisdiction of the Lord High Admiral (p. 182), were regulated by Acts of the Imperial Parliament m 1863 and 1867 ; but tiieir jurisdictions were, in the year 1890, transferred by anotiier Acl to the ordinary colonial courts. Variations of System It is natural, therefore, to find that considerable differences of arrangement exist in the judicial systems of the different parts of the Empire. The essoitial features of British justice are found, not only in judicial arrangements, but in the principles upon whidi those arrangements are worked (p. 283). And it will be found that, with rare exceptions, these principles are adopted throughout the Dominions and British Lidia, as in the United Kingdom. Thus, for example, the fixity of tenure and freedom from private liability of the judges, their payment by fixed and substantial salaries, liieir appointment by the Crown on the recom- mendation of its responsible advisers, their exclusive emplojnnent in their judicial duties, and their selection from the ranks of skilled lawyers ; the right of an accused person to trial by jury in all serious cases ; the refusal to compel an accused person to incriminate himself, and the unwillingness to accept even his voluntary confession of guilt ; the insistence upon DOMINION TRIBUNALS 303 oral and first-hand evidence ; the holding of open coi^; thehmitotipnofi^ntenccsbylaw-aUthesem Matures of the admmistiation of British justice thiouS- ""revS^ ^^"^' ^""^ "'^^ ^°^^ ^^ does not Tendency towards Uniformity And, ftirther. it may be observed that, while, as has IS^ ^* *K^??* ""^^^y ^^"^^ ^ **»« j'^dicial institu- tions of the Empire, recent events have substantiaUv tended towards uniformity. This is especially marked in the three great Dominion federations (p. 6i\ the appearance of which has been such a strikbg feature of the last half century. Federal Courts Bi Canada, Australia, and South Africa, there are Federal Courts, composed of judges of the highest emmence. which act m the dual aipacity of courts of first instance for cases of federal importance (such as disputes affectmg more than one member of the federation, and breaches of federal Uws), and courts of appeal from the superior courts of the respective states or provmces.' In Canada and Austialia. the federal judges are federal judges only; in South Africa, the Federal Court is strengthened by the in- clusion withm Its ranks of two • additional judges ' who are also Presidents of Provincial Divisional Courts. . State and Provincial Superior Courts A ^^,^ ^^ Provinc-s of Canada and the States of Austraha, as well as in the Dominion of Ne- - Zealand there k also a double system of courts of superior and unhmited jurisdiction, one of 'first instance,' ue before which cases come for first hearing, and another of appeal; though, for historical reasons, the arrange- 1 1 1 i 9 I I ! n r 304 THE KING'S COURTS OF JUSTICE ments are not the same in all these communities. Thus, in the older provinces of Canada, there are two distinct superior tribunals, one of first instance and one of appeal. Ontario has a Supreme Court, with Appellate and High Court Divisions, and a different staff for each; the President of the High Court Division retainmg the old-world title of 'Chancellor.' In Quebec, the appellate tribunal is the King's Bench, with a Chief Justice and five colleagues ; while the • Supreme Court,' with a Chief and no less than thirty- three ' Puisn4 ' or junior judges, is a court of first in- stance, hi New Brunswick, Manitoba, and British Columbia, there are distinct Courts of Appeal, with courts of first instance under different titles. In the other Canadian prbvinces, in Newfoundland, in the states of Australia, and in the Dominion of New Zealand, tiiere is but one superior court and staff ; but arrangements are made whereby an appeal can be brought from a single judge to a ' Fuii Court ' of his colleagues (usuaUy three in number), sitting as a court of appeal. In Queensland and New Zealand, owing to difficulties of travel, the superior judges are distributed among different areas of the colony; though all take equal rank, and sit on the hearing of appeals from the decisions of their colleagues. Appeals from the Divisional Courts of South Africa, however, which are attached to the various provinces and districts of the Union, go direct to the Supreme Court of the Union. Even in the Northern Territory of Australia, which is under the direct government of the federal authoril es, exercised through an Adminis- trator, there is a Supreme Court; and there are judicial officers, with various titles, for the North- West and Yukon Territories of Canada, and for Papua, which are linder the control of the Dominion Govern- ments of Canada and Australia respectively. Also, in the maritime colonies of Canada, there are distinct Courts of Admiralty an« Vice-Admiralty, which are NEW DEVELOPEMENTS 305 usually presided over by judges of the superior courts. In Victoria, South Australia, and Queensland, there are local courts (ImoM-i as ' county ' or ' district ' courts) of civil jurisdiction ; and in most of the provinces or states of the older self-governing Dominions theie is a systenj of magistrates, with Quarter or General, and lesser Sessions, as in England, for disposing of smaller criminal cases. Industrial Tribunals Finally, we must not omit to notice the very import- ant recent developement, especially marked in Australia and New Zealand, of ' Industrial ' or Arbitration Courts, for the decision of industrial and labour dis- putes. In experimenting in this direction, the self- governing Dominions are rendering the highest service to the Empire ; for the peaceful settlement of industrial difficulties will be one of the greatest, if not the greatest, of the problems of public policy in the near future. The example of the Dominions has already been followed to a limited extent, in Great Britain ; but the strikmg difference between English and Dominion industrial tribunals is that, whilst the former are purely adminis- trative in character, and have (apart from 'war' legislation) no coercive power, the Dominion hidustrial Courts are much more judicial in character, and have considerable power to enforce their awards. It would, indeed, be a great step gained, if the settlement of industrial disputes could be determined by an applica- tion of those principles of justice which have been successfully applied to other qi\arrels, instead of being left to the arbitrament of what is, in many cases, little better than industrial war. r ' ti The Crown Colonies In the Crown colonies, where the judges are directly appointed by the Colonial Office, usually from the lilt !■ 1 ! i|' n i 1 1 906 , THE KING'S COURTS OF JUSTICE ranks of English barristers, there is even more variety of arrangements. Onhr the larger or more wealthy colonies have Supreme Courts, with Chief and Puisn^ (or I'unior) Justices ; and very few have Courts of Appeal. 3ut from all these courts, at any rate in important cases, there lies a final appeal to the Judicial Committee of the Privy Council (pp. 293-294), to which appeals from the highest courts of the self-governing Doi.iinions also lie, except where the right has been expressly abolished b^ Act of the Imperial Parliament. For reasons previously explained (p. 282), substantially all these appeals are in civil cases ; though a considerable proportion of them affect the rights of the Crown. Liability of State Departments Finally, it may be noticed, as a strong mark of independence, that in some of the self-governing Dominions, the maxim that ' the King can do no wrong,' has been impaired b colonial statutes, to an extent which enables actions of ' tort ' (p. 271) to be brought against Government departments. Courts of British India The present judicial arrangements in British India depend largely upon the scheme of an Act of the ^- perial Parliament of the year 1861, the provisions of which have been incorporated into the Government of India Act of 1915 ; but they have also been affected by Indian legislation. High Courts There are High Courts, with, substantially, all the powers of the High Court in England, but expressly defined by the Letters Patent creating them, and the statutes authorizing the issue of such Letters Patent, in the provinces of Bengal, Madras, Bombay, Agra, and in Bihar and Orissa ; and His Majesty is r. .powered INDIAN COURTS 307 to extend the lyttem to other provinces, as occaskm may require. These High Courts are presided over by Chief Justices and * Puisne's.' of high legal skill and experience, appointed directly by the Crown on the advice of the Secretary of State, and chosen from eminent advocates or officials of the United Kingdom or India itself (p. 90]. The law which these Courts administer is partly the general law of British India, as contained in the various Codes which have been issued from time to time by the Vice-regal Govern- ment, and the Acts of that body and the provincial legislatures, as interpreted by the High Courts them- selves or the Judicial Committee of the Privy Council, to which appeals from all the Indian High 6)urts lie', and partly native law and custom, which is applic- able to certain classes of the population in certain cases. Less Advanced Courts Courts of superior jurisdiction, of a less advanced type, presided over by ' Chief ' and other ' Judges,' or 'Judicial Commissioners,' have been established in the other provinces. In the Panjab and Lower Burma, these courts are known as 'Chief Courts'; in Chidh. TJpper Burma, Sindh, the North-West Frontier Province, British Biluchistan, Coorg, and the Central Provinces, as ' Judicial Commissioners' Courts.' The prerogative of pardon is exercised by the Viceroy. Sessional Courts and District Courts In each province, too, there are ' Sessional Courts,' having criminal jurisdiction, each in its own division of the province, which is usually co-terminous with a ' district,' but subject to appeal to the High or other superior courts; and civil jurisdiction is exercised by ' District Courts,* below which, again, are sub- ordinate judges and munsifs. The District Magistrate »: it '.■I! 308 THB KING'S COURTS OF JUSTICE hat alto certain oontrolUng and adminiitrative powers in judicial proceedings; and it must be frankly admitted, that these powers violate the cardinal rule of Britkh constitutional law, which forbids the union hi the same hands of judicial and admhiistrative duties. But the line between the judicial and the administrative branches of the Indian Civil Service is gradually becoming clearer ; and it will probably not be long before this rule is carried out in mdia, at any rate in the more advanced provinces. It must also be admitted, that, strictly speaking, even the judges of the High Courts in India hold their offices ' during pleasure of the Crown.' But there is an express provision of the Govenmient of India Act, to the efiect that no idteration may be made in the salaries of such judges during their tenure of office ; and. in fact, the Lidian High Court judges are as secure in their seats, and, therefore, as independent, as their colleagues in the United Kingdom. CHAPTER XII THE ESTABUSHBD CHURCHES The official connection between Church and State is now so slight, even in the United Kingdom and India, while in other parts of the British Empire it is practically non-existent, that it might well be objected that ecclesiastical institutions form no part of the govern- ment of the Empire. But. whUe it is impossible to maintain this objection to its full extent, it is even less formidable than it appears at first sight. For, if the connection between Church and State is now slight, the very contrary was once the rule ; and the struggle which led to the present state of things has left deep marks ou die Constitution and growth of the Empire. The Brttish Church While it is probably true, that there existed some kind of ecclesiastical arrangements in Britain before the arrival of the English, the latter were at that time pure heathens, and were not converted to Christianity until more than two centuries afterwards. In the meanwhile, their attitude towards the British Church had been one of hostility ; and it is, therefore, unlikely that, even after their conversion, they would co-operate with, or adopt, British ecclesiastical institutbns. The Scheme of AR'^ii bishop Theodore As a matter of fact, though the evangelization of England was commenced by St. Augustine in Kent, through the influence of the Kentish Court, the general 309 1 I I' I n 3W> THE ESTABLISHED CHURCHES r' i> j I ,1 i i 1 s' ' i scheme of English Church arrangements was laid down by a later Archbishop of Canterbury, Theodore of Tarsus in Cilicia, in the second half of the seventli century a.d. He, like a wise statesman, having the support of the various Kings, followed the lines of ■h-; ancient local arrangements, planting (or recognizitg) a bishop at the head of each kingdom, a rural dean in each hundred, and a priest in each township, or, as he called it, being a Greek, a ' parish.' Of course this process took some time ; and it must not be assumed that the lay townships and the ecclesiastical parishes were absolutely identical. For example, the ancient townships of the north, where the population was scanty, were often grouped into parishes ; while, on the other hand, in the south, where population was thicker, a single township might be divided into two or more parishes. Tithes Moreover, the systematic arrangement by which now, for many centuries, the tithes, or ecclesiastical dues from the produce of the soil of each parish, have been allotted primarily to the spiritual needs of that parish, was not at first observed, even after the pay- ment of tithes had been recognized as a moral and even a legal duty. Still, tlie foimdations of the historic settlement were early laid, and have persisted with great tenacity ; the most fundamental changes being the early establishment of archdeaconries, as 3ie larger kingdoms of the Heptarchy became subdivided into shires or counties (p. 333), and the gradual increase in the niunber of the bishoprics, firfst in the eleventh and twelfth centuries, later at the Reformation, finally in the nineteenth century. The Roman ' Obedience ' As mi,' lit have been expected from the fact that the spread of Chi l.^tianity in England was largely due to THE ROMAN ORGANIZATION 3" royal influence, the higher clergy, whose talents and education made them conspicuous, took a great share m the government, not merely of the Church, if that ould be said to exist apart from the State, but of the rountry as a whole. This was especiaUy the case after the famous Council of Whitby in a.d. 664, when it was definitely decided to adhere to the Roman ' obedi- ence,' or scheme of worship and ecclesiastical arrange- ments, in opposition to the ancient tribal scheme of the British Church ; for this decision naturally in- volved a close connection with, and even deference to, the occupants of the Papal See, who took care to send a succession of able prelates to complete ths establish- ment of the infant Church. Identity of Church and State Thus we find that, in each lay institution the Church official formed a part— the bishop or bishops in the Witan (p. 2), the bishop or archdeacon in the shire court, the rural dean in the hundred court, and the parish priest in the township moot ; while lay and religious matters were alike discussed in all, though, imdoubtedly, even before the Norman Conquest, synods or councils were held for purely ecclesiastical purposes. Beginnings of Sepakation It is a fact not so widely known as it might be, that the first steps in the severance of this intimate \mion between Church and State came from the Church itself. A series of vigorous and ambitious Popes in the tenth and eleventh centuries disliked the mingling of clergy and laity, and desired to make of the former a caste apart, devoted exclusively to the interests of the Church, and indifferent to national interests as such. Celibacy of the Clergy One of the most striking marks of this policy was the enforcement of celibacy, or abstention from marri- i r 1:: : > i 1 Pf" s i 1i ' f i 312 THE ESTABLISHED CHURCHES age, on the parochial clei^, who, as distinct from the 'regular' or monastic clergy (who lived in abbeys, priories, convents, and other religious houses), had not previously been subject to it. The enforcement of this rule naturally led to the appearance of a marked distinction between the life of the ordinary parish priest and that of his flock. Previously, the former had been a member of the agricultural community (p. 334), taking his tithe ' as the plough traverseth the tenth acre.' Afterwards, he became a member of a different caste, visiting the bams and byres of his parishioners to collect his tithes. Another result of the new policy was, the withdrawal of ecclesiastical matters from discussion in assemblies at which laymen were present ; and, when William of Normandy, whose tttpedition had been considerably assisted by the reigning Pope, had succeeded in his aim, he fulfilled his pledge by issuing a general ordinance, to ihe effect that no religious matters should hence- forth be discussed in the hundred court (the most important unit of local government at the time), or be subjected to the authority of laymen. Separation of Courts The policy thus adopted was rapidly and effectively completed by the able Norman prelates of the eleventh and early twelfth centuries, who built up, alongside the lay institutions of the State, a set of corresponding ecclesiastical courts, of archdeacon, bishop, and arch- bishop ; though the courts or moots of the hundred and township, which were falling into decay, appear to have had no ecclesiastical pandlels, except that the latter may perhaps be traced in the meetings later held in the ' vestry ' or robing room of the parish church. It is not to be supposed, however, that a ruler of the Conqueror's ability was blind to the dangers which this policy produced. QUARRELS OF CHURCH AND STATE 313 William's Rules Though he kept his bargain with the Pope, William laid down certain fundamental rules, to which his successors tenaciously clung, to avert the evils of divided authority. First of all, he reserved to himself the right formally to recognize in England the title of a newly elected Pope, a right which proved very useful in the case of disputed Papal elections. Secondly,, he refused to pemit a Papal legate, or special messenger wieldmg Papal authority, or any Papal Bull or sovereign enactment, to enter the country without his express leave— thus aiming to prevent interference with the in- ternal affairs of the English Church. Thirdly, he forbade the excommunication, or exclusion from religious rites, of any of his ' tenants in chief,' or immediate vassals| without his consent. Finally, he refused to recognize the validity of any decree of an ecclesiastical council or synod of bishops, until formally confirmed by him. iNVESTTIliRES Another question, however, speedily arose for settle- ment, in the famous contest about 'investitures,' which agitated the whole of Western Europe in the twelfth century. It was part of the new Papal policy to keep the appointment of archbishops and bishops entirely in the hands of the Pope. But, as we have seen (p. 133), in England the bishops took part in the national councils, even before the Conquest ; and the practice was afterwards continued in the Councils of the Magnates held by the Norman Kings (p. 27). More- over, the ancient bishoprics had been endowed with vast grants of jurisdiction, and even of land, by the English and Norman Kings, which made their holders some of the greatest of the ' tenants in chief.' Thus the Papal claim to nominate prelates in England, and to invest them with their ofl&ces without royal approval. II i ■-) i i 1 1 i 3X4 THE ESTABUSHED CHURCHES I I' i ; 1 1 ii ■ I 'I 'ii •I ! i 'I ii was virtually a claim to thrust upon the King coun- sellors of whom he might not approve ; whilst the further claim that the estates of the dioceses were held by ' frankalmoign/ i.e. ownership free of all military duties, cut at the root of the feudal system of military service. The contest was bitter and prolonged ; but at last a compromise was effected, whereby a newly appointed prelate should first do homage to the King for his estates, thus admitting his liability to military service (not, of course, necessarily performed in person), and to ' suit of court,* i.e. attendance at the Council, and subsequently be consecrated by ecclesiastical hands, and receive the symbols of spiritual authority, the ring and pastoral staff, from the Pope. Election of Prelates But this compromise, which was effected in England at the beginning of the twelfth century, between Anselm and Henry I, left unsettled the thorny ques- tion : With whom did the real choice of a new prelate lie ? As a matter of fact, in ancient England, the prelates had been elected or, at least, accepted, probably on the nomination of the King, in the Wltans (p. 2) of which they formed part. The greater strength of the first Norman Kings probably enabled them to make their choice prevail. But the religious houses, or monasteries, which were rapidly growing in power and splendour, and some of whose abbots or heads sat in the Great Council (p. 27), elected their own chiefs ; and the cathedral chapters, or resident clergy, claimed a similar right with regard to their bishops. Finally, the new Papal policy, as has been said, aimed at the appointment of bishops, as well as other ecclesi- astical patronage. Henry II and Becket The question came to a head in the famous quarrel between Henry II and Becket in 1164. Becket was HENRY II AND BECKET 315 a veiy different pexson from Anselm ; but he had to consent to a compromise which declared indeed the nght of the cathedral chapter to elect a new prelate, but only m the King's Chapel, and. theieforef unde^ royal mfluence. Moreover, the rule agreed to by ^sehn. tiiat the new prelate was to do homage to tiie Kmg for his estates before consecration, was con- finned. Tbus the choice of bishops, from that time till the Refonnation, practicaUy depended on the <±aracter of the King. If he were a strong man, the choice was virtually his. If, like John or Henry HI, he was weak, the Pope probably nominated a candidate whom the chapter elected. The Church Courts and the Clergy But another very important question arose between Heniy II and Becket. Despite the fact that he had l>een the Kmg s Chancellor. Becket cordially disliked the new system of strong royal courts of justice which Pv^ "?.? Henry's reign (p. 11) ; and particularly he disliked the daun of these courts to exercise criminal jurisdiction over the clergy. The clergy, he claimed, should be tried m the courts of the Church (p. ^12) according to the rules of the Canon Law. whwh had been made by Church Councils and Popes for the government of the Church. And when Henry said that. whUst not denying the right of the Church to punish Its own clergy, he should insist on punishing tiiem also for offences against the law of the iand, Becket made the specious reply, that no one ought *to be tried twice for the same offence. Henry, however, who knew that some crimes at least could not be adequately punished by the Church courts (for in- stance capital crimes), and. moreover, shared the very common suspicion that clerical offenders were not hkely to be strictly dealt with by the antiquated methods of procedure of the Church Courts, stood 21 1! fg"« I'i 1 1 II I i' 316 THE ESTABUSHED CHURCHES 'f' ill finn ; and the archbishop was compeUed, by a famous document known as the ' Constitutbns of Clarendon,' in 1164, to admit the responsibility of the clergy to the lay courts of the Kmg. ' Benefti of Clergy * But the shock caused by the murder of Becket, which soon foUowed, compelled the King's Courts to adopt a hollow compromise, which, while nominally admitting the liability of the * clerk,' or person in Holy Orders, to be tried in the King's Court, by the new method of the jury (p. 12), enabled him to ' plead his clergy,' and claim to be handed over to the Church tribimal, which, in fact, hardly made a pretence of trying him. Thus, from the twelfth century, to the Reformation, when the ' benefit of clergy ' was severely cut down, a 'clerk' was practically tree to commit as many crimes as he liked ; and not merely a clerk in Holy Orders strictly, but any of the petty officers of the Church, and, indeed, any one with sufficient ability to translate a short passage from the Psalter, which was always the same, and without a knowledge of which, therefore, no gentleman's education was complete. LIAB^,^^y of Clergy to Taxation One other first-class question between Church and State was settled before the end of the thirteenth century. As it became clear that a regular system of State taxation would be one of the unpleasant features of life, the clergy, who held a large proportion of the wealth of the kingdom, made strenuous efforts ,to escape it, which the Kings, very naturally, resisted as strenuously. The clergy had considerable excuse for their resistance ; for they were taxed, not only by the King, but by the Pope, whose needs were, in the thirteenth century, particularly pressing, owing to the Continental wars in which the Papacy was involved. CLERICAL TAXATION 3»7 'Convocations* TTie struggle was acute during all the long and weak reign of Henry III, and it probably had a good deal to do with the growth of the Convocations, or Parliam:^-c.'^f ^ ^^ <^^"^^S p/esentatTcns to of^P^hlwfi ^^^f ~lf*^' >"P* ^ *^^* h^d by writs ?!ill^ — ^' ??• ^^ ^"^^ *° th« <=lerical judges, fi^'if?^ J"^»ction of the 'Courts Christiai!' wks admitted and even the ultimate right of appeal to ♦n SS:.^^'' 9t^^ *'"^*'' °^ *PP^' ^^ arclJdeacon t E^f^H^^^^'^^P *° »«^b^0P. had been observed in England. But, for a long time before the Refor- S 'T™"^?"* ^*? P*^ ^^*^ <^°^ as Statutes of Pramunue ) agamst irregular interference with proceedmgs m the Church courts by the Papal olficiais who encouraged 'evocation,' i.e, carrying off of ca^ S, 7Z to Rome, and 'delegation.- .• .. Wl of S^ Reformation Parhament went much further, and by the Acts of Appeals and Submission (in 1532 and SSL?!f'^^ *?'^^^^ ^ *PP^^ t« Ro^e. and substituted a final appeal from the archbishops' Courts a^riv\ ??^ ? Chancery, who was empowered to appoint delegates to hear such appeals. , Canon Law Pariiament attempted to deal also with the vast body of C^on Law (p. 315) which the Church Courts followed ; but Its action was, in this respect, not very efiective. It empowered the King to appoint a commission of thirty-two persons to examine the exist- ! i mi r' S»o THE ESTABLISHED CHURCHES ing Canons, and recommend for aboliJon such as they should deem unworthy of observance in a reformed Church. Meanwhile, the existing Canons were to be observed, except so far as they were repugnant to the law of the land, or hurtful to the King's author!^. The contemplated commission was never appointed ; and there, to the present day, rests the authority of the Canon Law as it stood in 1533. It is bmding alike on cler^ and laity, in its proper sphere, subject to the alterations made in the law by Act of Parliament or judicial decision. Dispensations (2) The closely connected subject of the prerogative or special authority claimed by the Popes, of 'dis- pensmg ' with the ordinary Law of the Church, was also dealt with. It will be remembered, that this had played a very great part in the famous defiance by Luther of the PafNal authority ; and we have seen that a similar claim in secular matters was afterwards put for- ward by the Stuart Kings (p. 213). The Reformation statutes, of course, entirely abolished it, so far as the exercise by the Pope was concerned ; but they allowed it so far that, by the Act of Dispensations of 1533, the Archbishop of Canterbury may grant, but only with the approval of the King in Council in new cases, such licences and dispensations as shall be ' lawful and necessary.' It is under this power that the Arch- bishop's ' special licence ' to marry is granted. i ii' Papal Taxation (3) The Reformation definitely put a stop to the levy of Papal taxation, in any form, by the abolition of Peter's Pence, the ancient ' God's penny ' or hearth- tax, which had been paid to Rome ^m the earliest days of the Church establishment, as well as of 'annates' or first-fruits (the first year's profits of CHANGES AT THE RTSFORMATION 321 newly-fiUed benefices), and tenths (the annual tax on Uvings for which the irregular Papal taxation had been commuted). The special tribute promised by John to his disgraceful surrender of the Kingdom had long before been repudiated; but the first-fruits and tenths were not extinguished, but transferred to the Crown, by whom, in the later reign of Queen Anne, ttiey were set aside, under the name of ' Qaeen Anne's Bounty, as a provision for the augmentation of poor Powers of Convocation (4) The position of the Convocations was definitely settled by the Act for the Submission of the Clergy in 1533. Mid has remained since unaltered. The poUcy of the Conqueror was taken a good deal further Vand ^e Convocations were forbidden to meet without the Kmgs licence, and, even when licensed to meet, to discuss any proposed new Canons without the King's express approval. Thus, no Convocatbn can be ^lled without the issue of the King's writ to the arch- bidiop ; and ' letters of business ' are further required Ijefore any new Canon can even be discussed. It was tiierefore, a simple matter for the Crown, on the out- break of the ' Bangorian ' ' controversy in 1717, to with- hold the necessary writ, and thus virtually to suspend the existence of the Convocations until 1850 since when they have again regularly met. Moreover,' it was laid down by Lord Haidwicke. in the eighteenth century, that Canons enacted by Convocation since the Act of Submission, even with the King's Ucence. though they bind the clergy by virtue of their oaths of canonical obedience, do not bind the laity, because they are not sanctioned by Parliament. There is. however, nothing to prevent Convocation addressing 1 So called because sentiments attributed to Bishop Hoadlev o£ '' < - ' ill 11. L 'J "L sas THE ESTABLISHED CHURCHES the Crown, praying it to take into consideration any subject aliecting the welfare of the Church, or to prevent ParUament enacting a new Canon by statute, as has been done on more than one occasion. I 1 I: ■1 i ' Crown's Authority in Ritual But the influence of the Convocations, as well as of the Church C'>urts, was also gravely affected by the Acts of Supremacy passed at the Reformation and afterwards, by virtue of which the supreme authority of the Crown over the Church, not only in matters of government but of ritual, was asserted. It was imder these statutes that Henry VIII and Elizabeth, insti- tuted the famous Courts of High Commission, which, though partly composed of bishops, completely put into the shade the ordinary Churdi coiurts, especially in all matters affecting discipline. Appointment of Bishops and Deans (5) Another important step taken at the Reforma- tion also carried further the older policy of the State on the subject of the appointment of prelates and other great Church officers. This step was taken by the (second) Act of Annates in 1533 ; and it estab- U^ed also a permanent settlement, which remains in present force. On the occurrence of a vacancy in a bishopric, the Crown sends to the chapter of the cathedral a congi d'ilire, or licence to elect a new bishop. But this apparent respect for freedom of election is but a thin disguise for a much more important docu- ment, viz. a ' letter missive,' which contains the name of the person selected by the King (now acting on the advice of the Cabinet) for election. It is true that a second name is added, to keep up the pretenc- of a free choice ; but, less than a century ago, it was given fis a solemn opinion by the Law Officers of the Crown APPOINTMENT OF BISHOPS 333 (PP- 245-846). that this was merely a form, and that any attempt to act upon it would bring down upon the chapter the penalties of a ' Praemunire ' (p. 3x0) If the chapter docs not elect, within twelve days, the person named in the • letter missive.' the King appoinU to the bishopric by Letters Patent, as he does abo if there is no cathedral chapter (which sometimes happens in the case of new bishoprics), and as he does in the ^se of new deans. Swfragan and assistant or coadjutor ' bishops are appointed by the Crown. usuaUy on the request of their diocesan bishops • canons or members of the cathedral chapters are elected or appointed in various ways— sometimes by the Crown sometimes by their bishop, sometimes by vote of the chapter. Archdeacons are usually appointed by their bishops. Each diocesan bishop does homage to the King for his ' temporaUties,' i.e. his endowments and temporal powers (if any), and takes the oath of fealty. He may be ' confirmed ' in his elecUon by the arch- bishop, and IS consecrated by him ; but he can take no recognition of any kind from Rome. Uniformity of Worship (6) Finally, the Reformation brought into promin- fnce the subject of ' uniformity of worship.' Though the King and Parliament were strikingly successful in mamtaimng the continuity of the Established Church (It seems to the writer simply unhistorical to speak of the present Establishment as ' created.' or ev«i ' set up ' by the Reformation), yet they could not prevent a ^agorous outburst of Dissent in doctrine, and Non- conformity in worship, which refused to accept the official standards. An early attempt to discourage the former was the Act of the Six Articles, whidh imposed heavy penalties on any ' denial ' of the funda- mental doctrines of the Church ; but the policy of the Acts of Umformity ' which began under Edward VI and were re-issued and amended under Elizabeth and r .'! ki 324 THE ESTABLISHED CHURCHES Charles II, while definitely Protestant in doctrine, aim chiefly at securing, by means of authoritative ' hturgies,' or forms of worship (the Book of Common Prayer), a uniform and comprehensive observance of public worship conducted by the EstabUshed Church. This pohcy, vigorously upheld by the Courts of High Commission (p. 322), and intenafied by the bigotry of the first Stuart kings of England, who made a firm aUiance with the bishops, had much to do with precipitating the Gvil War (which, for a time, com- pletely 'disestablished' the AngUcan Church), and contributed greatly, by its harshness, to drive out of the country the early Puritan settlers, sudi as the pilgrims of the Mayflower, who founded the New England States of America. Thus it may be said to have indirectly contributed to the building up of the Empire. Toleration This exclusive policy was revived, after the Restora- tion, in all its intensity ; but the extreme policy of James II, who attempted to force Oitholicism on an unwilling nation, caused a union between the Estab- lished Church and the Protestant Dissenters and Nonconformists, in pursuance of which, at the Revolu- tion of 1688, a Toleration Act was passed, by virtue whereof obedience to the Acts of Uniformity was excused, and, gradually, the severe list of ' disabilities ' which, in the seventeenth century, had been imposed on Protestant and CathoUc Dissenters, was aboUshed. Decay of the Church Courts Meanwhile, the blow which the Church courts had suffered in the Civil War had deprived them of much of their remaining activity, whidi had passed to the King's Courts; and the latter ultimately adopted a THE CHURCH COURTS 325 policy of refusing to aUow the Church courts to deal mth any cases for which a remedy lay in their own tabunals By this means, such actions as those for breac^ of promise of marriage, slander, adultery, and if- S^u ' 7^7® *^^ *^*y ^^^ *^e Church courts, which had always suffered from considerable difficulty m ^forcing their decrees. Then came the Acts which, at the beginning of the mneteenth century, broke dowi^ the Church s monopoly in the matter of celebration of marriages, the Tithe Commutation Acts, the Church Disaphne Acts, which gave the ultimate appeal to the Judicial Committee, the aboUtion of compulsory Church rates, and, finally, the Acts of the year i8s7 which transferred the jurisdiction of the Church coi^s in probate and matrimonial cases (p. 287) to the new Courts of Probate and Divorce. ' m Recent Revival A slight revival of the bishops' (* consistory ') and the archbidiops ( provincial*) courts has. however, been brought about by the Church Discipline and PubUc Worship Regulation Acts. Under the former, certain ^«mces of the clergy against morals and discipline are toable by the bishop's chancellor, with 'assessors' if demanded, in the consistory court, with option of app^ ather to theprovindal court of the archbishop.ot the Judiaal Committee sitting with episcopal asseswrs. Under the former statutes, questions of ritual may be tried by the bishop with the consent of the parties • If ttis IS withheld, the case goes to the provincial court' with utomate appeal to the Judicial Committee. ' But' although the Church courts have still a theoretical power to excommunicate, and even imprison, laity as well as clergy for certain ecclesiastical offences, this power is. in substance, never exercised ; one of the chief reasons for its decay being the fact that the Church courts never adopted the institution of the jury I.) fh M !! ■ i< i t! I' 326 THE ESTABUSHED CHURCHES The Modern JEstablishment On the other hand, it would be a great mistake to suppose that the Church of England has ceased to receive public official support. Indeed the Tithe Com- mutation Acts, by making the payment of tithe (where it has not been ' redeemed ') legally recoverable in the King's Courts in a convenient form, may be said to have strengthened a precarious form of income ; whilst the majority of the English diocesan bishops, at any rate, still occupy seats in the House of Lords, and are present at all State ceremonies, such as coronations and openings of Parliamoit. Moreover, the legal right of private patronage, or presentation to livings in the EstabUshed Church, still exists; though its exercise has recently been severely restricted. Established Church of Scotland The State Church of Scotland was, imtil the ReOtrma- tion, very similar to, though, of course, absolutely independent of, the Church of England. But whereas the EngUsh Reformation left the episcopal govern- ment of the English Church remaining, though (as has been seen) restricted, the Scots adopted the form of government known as Presbyterianism, by means of which, through a successive grouping of kirk sessions into presbyteries, presbyteries into synods, and synods into a General Assembly, complete self- government on democratic lines was secured, and continued until the Restoration of Charles II. The royal advisers then made a desperate attempt to restore episcopal institutions in Scotland. But this step, after provoking intense and violent reaction, was reversed at the Revolution; since which time, il.i only official connection of State and Church in Scotland has been the annual appointment of a royal High Com- missioner to receive and welcome the General Assembly in Edinburgh, which is presided over by an elected Moderator, whose high importance is evidenced by OTHER ESTABUSHED CHURCHES ^ the fact that he ranks, in official precedence in Scotland next after ^the Lord High Cha£:eltor Th^ ^^^^ thejay courts p. 296) ; but the right of ^vate patomage was aboKshid by statute " ^yT^l mmisters are elected to their benefices, whiS tt^ ^ f ^adh^ts of their congregations. There is^ fa^, a voluntanr EpiscopaKan Church in Scotland, " !^?2rS^lv ''*?'* ^y ^ °o morel>nnecti« with the State than has any other Nonconformist bod^ The Irish Church As has before been pointed out. the Church in Ireland was a branch of the Anglican Church which, until the year 1869. i^^s administered in much the ^^y as the i»rent Church, and had much the same^ghts (mcluding representation in the House of Lorfs) despite the fact that, by its adoption of Protes^SSm ^♦w^^^°/2!^*''*°' ^^ ^ i°fl"* of Presbyterian Sl^nS.^ seventeenth century, it had beco^ {« tST? ^^ a small minority of the Irish nation. In 1869. It was disestablished and partly disendowed • Its bishops disappeared from the H^se of LordnSd f^r^^^'^'^'^'T'^^' On the other hand, L^^i * if^* volmitary body with complete powers of self-government, including the right to appomt Its own bishops and other offidals ♦».: 1? ^"^^.^^y^** ^ ^^ '«^« <>f Man is a part of the Estabhdied Church of England, under itVoi^ t«shop. ^d foms a diocese of the province of York ^e Anghan Church in the Channel Islands is under the junsdiction of the Bishops of Winchester. The Church in British India a,i^i?rl^ ^"^l' ^^ ^^"^ ^s I~^«' by statute to appomt three lashops whose incomes are charged on it I* ill sa THE ESTABUSHED CHURCHES i the revenues of India, viz. the bishops ol Calcutta, Madias, and Boni^ay, and to confer upon them such ecclesiastical jurisdiction over ministers of the Chiureh of England in India as the Letters Intent appointing them may authorize. The Bishop of Qdcutta is Metropolitan, and may admit persons to Holy Orders for service in his own diocese; and the other two bishops take the oath of obedience to him. Each of these dioceses has also an ardideacon appointed by the Crown. There are a number of chaplams in Britidb India also appointed by the Crown, and paid out of Indian revenues ; two at least of these in eadi diocese must be ordained ministers of the Chuxdb of Scotland, under the ecclesiastical jurisdiction of the Presbytery of Edinburgh (p. 326). Creation of Nsw Bishoprics The power of the Crown to create bishoprics and appoint bishops outside these three dioceses and in the cobnies, has been much disputed ; and it is very doubtful whether the Crown can create dioceses witti ecclesiastical jurisdiction, except by virtue of the provisions of an Act of Parliament. But there seems no reason to doubt, that the authorities of the Church may appoint and consecrate bishops to act in such places in a purely voluntary capacity, subject to the rule that no Inshop can be consecrated in England^ with- out licence under the King's sign-manual warrant (p. 31), countersigned by a Secietaify of State. Msny colonial and foreign bishops have, in fact, been thus consecrated; and, in some of the Crown cobnies, their stipends are paid out of the colonial revenue, while in others a grant is made from public funds towards the support of the various religious bodies working in the cobny. But in no case does the ecclesiastical establishment form part of the govern- ment of the colony ; and the tendency is to diminish official recognition of ecclesiastical authorities as such. OTHER ESTABUSHED CHURCHES 319 nrJ^^' ** "^y ^ Observed, there is nothing to prevent any person, not in AngUcan orders OTanv other orders, calling himself 'Reverend ' of' K^SS^ d It pleases him to do so ; provided, of SurS^t ^^not attempt to pass £mself off as St^SaSS deiigyman or bishop of the Church of England w '■'m CHAPTER XIII LOCAL GOVERNMENT (THE SMALLER UNITS) All government is, at the present day, in a sense, local ; because the boundaries of each State, however large, are at least supposed to be fixed, and the State cannot exercise authority beyond them, except by toleration. And it is really very difficult, in writing of a large and composite State, to be quite strict in the use of the term ' local government ' ; for instance, many writers describe tiie government of a single colony, or even group of colonies, though they may be '^^ vast extent, as ' local,' io distinguish it frpm the of Imperial government in London. Meaning of ' Local Government ' But what is specially meant by ' local ' government is the government of small areas, such as counties, boroughs, and parishes, in which the inhabitants may at least be assumed to be in more or less daily contact with one another, and to realize clearly their common interests. This is the strength of local government. Its weakness is, that it is apt to have no concern with wider interests outside its local area. Formerly, local government was also distinguished from central government by the fact that its duties were concerned mainly with economic and sanitary matters; while the central government occupied itself mainly with military and judicial affairs. The great increase in SSO NATURE OF LOCAL GOVERNMENT 331 the activities of the central governments, all over the avihzed world, which has taken place in recent years, has, however, tended to make this distinction meaning- less; and, in consequence, the line between ceatoal and local government is now exceedingly difficult to draw. Local Interests Strong in England The United Kingdom, and especially England was at one time, emphatically a land of local institutions! bettled m the days when the means of intercourse over wide spaces were few and difficult, by a primitive people mth no experience of civiUzed government. It naturally became a country of strong tocal interests whose scattered little communities were absorbed in their own affairs, and knew Uttle, if anything, beyond their own boundaries. Their isolation is attested by many unmistakeable signs ; one of the most striking bwng the fact that, until so late as the eleventhor twelfth century, one village might be in the throes of a famine, whilst another, not forty miles away had a surplus of com. People Uving in the east of England could hardly understand the speech of those hvmg m the west. An old English poem speaks of it as common practice to shoot at sight any stranger who came over the village boundary witiiout blowing his horn. In the thirteenth century, a law provided that any stranger entering a town between sunset and sun- nse should be arrested and detained till morning and ttat any stranger lodging in tiie suburbs must be under the guarantee of his host. Much of the Englishman's aptitude for self-government is, doubtless, due to this wng history of local isolation. Not so the Colonies The present colonies, at any rate the great self- governing Dominions, of the British Empire have, on the 22 m 332 tJXAL GOVERNMENT otiier hand, been settled by peopk ivith a loog traditio« of dviised government, a certain faaBiUarity with ivide ideas, and enormously improved means of com- munication. Roads, railways, telegrams, and the daily newspapers, bring the settler in the rairgdian backwoods or the Australian * bush * into far closer intercourse with Europe than it was possible for the farmer of East Essex to maintain with London a thousand years ago. Consequently, though many of the Dominion settlements are remote from one another and the centre of government, the settlers look rather to Toronto, or Melbourne, or Johannesburg, for guid- ance and assistance, than to their nearer neighbours; and local institutions have made comparatively Uttle progress in the British colonies. Nevertheless, as settlement becomes cbser, these are likely to develope ; and, in any case, a study of the government of the Empire would hardly be complete without some description of the local government system of England. i The Township or Parish The unit, or smallest group, of local government in England is, and has been from the dawn of Enghsh history, the township, village, or parish. Whether the cotenization owers have varied from time to time. But some historians believe that this person, ancient as is his character, was an interbper into the original independent township, whose presence has not been an unmixed benefit. Certain it is, that the township, or village, though originally a community of persons working on a conmion plan of intermixed strips in the great arable fields of the township, became first, about the eleventh century, a group of dependents or serfs ' holding of ' a brd, according to feudal ideas, and finally, as the result of the ' encbsures ' which went on from the sixteenth to the eighteenth, a mere body, first of owners (' yeomen '), then of tenants, each working his own block of land with hired labour in his own way, or, later, under the terms of an express bargain between himself and his landbrd, firom whom he has taken it on a ' tenancy,' long or short. But the still binding effect of the ' custom of the country ' (p. 15) points strongly back to the older state of affairs. The ' Mai:or ' It was natural that the spread of feudal ideas, above described, should exercise a depressing influence on the villages, which, whether they ever had a regular • moot,' or meeting, or not, had imdoubtedly some means of discussing their common affairs. These then passed, very largely, into the hands of the lord's court or courts, held in his hall, by himself or his steward, where the ' homage,' or body of tenants, ' presented ' the various offences against the custom of the town- ship or ' manor ' (as it came generally to be SERFDOM AND POOR REUEF 335 •SmifS?. holdings, their heirs or transferees™ e iMve^^?s"ru,-?c .r th:^Se;!r^ [nTe^^J^.^"*^?^' ^"^^J^^vebeendSS^ ? .^*^*^ or robing* room of the church orohaWv under the influence of the parish priest ' ^ "^ The • VssTRY ' irr^ '^S^Z'^i^^ "^"'^ "^^ ^^^ to have FU^J^^ ^! Reformation ; and when the ^t St^^rl"^/^ P~' '""^^ ^* fomided ifSr T^^^'l^ "^^^ ^'^ *^^ P^* t^t the burdi 01 f^iyuig It out was cast. The overseers of tte pansh (probably nominated at the vS^m^^ levi^ a rate on all householders of the Parish f?r^e double purpose of setting the abl^bS ;^r mJ work (whence the name^orkhoS^ ')frd1f r^^^ ^seS't^'^ti^ r?".""' ""^ f^^^^ ^eJZ^^s nus^ for the mamtenance of the poor of the oari^ wnnection with wages and apprenticeship had ^ enormously increased by the Statutes of uSo^ which followed OB the Great Plague, or ' Wa^Dc^ w^e entrusted with supervia3the syS^Tt^^h- oot their comities. But the main bur^feuT^^ ^u "^^^T^ ^^ I^«^ officials; and aninddiW^ mark of this fact is the legal definition of a d.dl pS^ at this day, as ' a place for which a ii^te^S rate IS or ^ be made, or for which a separlteover^ IS or can be appointed.' »»cparaw overseer Poor Law Reform oi^m^^V.'\ ^^'^''^^' '^y ^« ^^t«"<=^i basis ot modem local government in England; for the 1' ' , 535 LOCAL GOVERNMENT ■ \ EUxabethan system was hardly in order when new tasks, such as the provision and repdr of roads and ditches, were thrown upoa it. Unfortunately, owing to its historical connection with a severe repression of ' vagabondage,' and to the irregular growth of popula- tion in the second half of thft eighteenth cr itury, the Poor Law system got into a bad state of waste and immorality ; and one of the first cares of the Reformed Parliament of 1832 was, to make radical alterations in it. The pa.rish still remained as the unit of liability, i.e. each foiish was supposed to support its own ' settled poor,' and its overseers still ' struck ' a rate. But, subject to a nominal control by the Justices of the Peace, the real management of poor relief was placed in the hands of Boards of Guardians of the Poor, elected for a group of contiguous parishes called a • Union ' (which name thus became equivalent, in popular language, to 'workhouse'), who jointly administered poor relief for all the parishes in the Union. For some time longer, the pretence of separate parish liability was kept up ; but from the year 1865 the poor of the Union have been ' pooled,' i.e. main- tained out of a fund levied by rates on each parish (m a uniform plan, according to the value of its kmd and buildings, regardless of which parish of the Union they were settled in. Thus the parish remains a rating, but not a managing body, for Poor Law purposes. Decay of the Rural Parish In densely populated areas, which demanded much provision of water-supply, lighting, street-paving, and other public conveniences, this change in the Poor Law system made little difference—indeed in large towns the parish authorities remained overloaded with work. But in the rural areas, which do not require such elaborate provision, and in which a single parish conld hardly be trusted to manage such import- ant matters as sanitation and road-making, thes6 REFOW OF THE FATISH 33^ JjiH^ ?^?/ ^y entmtted to larger dittricts «oL th!*"*^" ^"^ '•" »»<* into Se uS: Pakish Counciu In the year 1894, however, a great effort was m»rf« three vears hv fiwrv^ r. ,*'? «ected, once every S^E^^'^'I;?*/'^*' ^^ »»»«• of all male^w^^s ^^ „i^"i occupying rooms worth t«i pounds a tL? fii; ^1*^«^ meetings, which must not be le^ than four m the year, are presided over by aji Sect^ ^SSTroSed'^fST^ r "^^ P^"-^dl ^ot^proceed to busmess unless three members are Their Powers The powers of a parish council are in th«%r« , «*r *^^^" °''^'' generaUy, the tended to alTcaTSStloni ^ *^' ^'""**' *»» afterwards ex- ^'^ k* li 338 LOCAL GOVERNMENT position of the old * vestry ' (p. 335), except with r^;ard to strictly ecclesiastical matters, as well as that of the old churdiwardens, who, by virtue of various statutes of the nineteenth century, had a good many lay duties entrusted to them. It has succeeded to the power, nominally exercised by the Justices of the Peace, but really by the vestry, of appointing overseers of the poor, who are compellable to serve, but whose duties are mainly confined to the levying of rates to satisfy ' precepts ' addressed to them by the Guardians of the Poor (p. 340), and the county authorities. The parish council also appoints school managers of a public elementary school within its parish in different proportions, according to whether it is a ' provided ' or non-provided' school (p. 264); and it appoints and dismisses assistant overseers, i.e. paid assistants of the overseers, where these are necessary. It atches the use of the charity funds of the parish (other than those which are purely ecclesiastical), and is entitled to complain of any proposed diversion of them. It maintains and repairs footways in the parish, and views with a jealous eye any attempt to divert or stop them. It has a good deal to do with the provision and management of allotments — i.e. small patches of land cultivated as market gardens — and with recreation grounds. It may make representations about in- sanitary dwelling-houses, and compel a medical in- spection and report ; and it may complain to the County Council if the sanitary authority (pp. 346-353) neglects its duties in the matters of water-supply or repair of highways. ' Adoptive ' Acts These powers belong to all parish councils ; but some rural parishes have more ambitious ideas, and adopt the permissive powers offered by certain Acts of Parliament on condition that there is an express demand for them. Formerly, such demands were PARISH COUNaLS AND MEETINGS 339 made by the ' inhabitants ' ; now they are made bv the pansh meeting/ which entrusts the execution of them to the pansh council. Such schemes include the provision of pubUc libraries, cemeteries, baths and washhouses, and road lamps. Parish Meetings The 'parish meeting.' just alluded to. is the primary assembly of the rural parish, and consists of the parochial electors ' (p. 337), U persons who elect ISSJSn ^"°*^^i^ ^^'^ is one (p. 337). In parishes which have counals. the powers of the parish meeting (which must be held once a year, in March after SIX p.m.) will be mainly confined to electing the council and criticizing its work, and resolving to adopt the 'adoptive Acts' above referred to. and the sanctiomng of any proposed expenditure by the council mvolving a rate of more than threepence in the pound of the annual value of the land in the parish as assessed for rating purposes. But where there is no pansh council, the parish meeting must be held twice a year ; and it then exercises the powers of a pansh counal above described in the matter of the duties formerly belonging to the vestry, the appoint- ment of overseers, assistant overseers, school managers md dianty tnistees. and the stopping-up of footpaths! But Its power of mcurring expenses (other than those under ' adoptive ' Acts) is Umited to a sixpenny rate • and It cannot raise any loan on the security of parish property without the approval of its county council and the Local Government Board. Moreover, neither the pansh council nor the parish meeting levies its own rat^; it sends a precept to the overseers, who include the amount claimed in the county rates. The Urban Parish It seems, at first sight, not a little curious, that the same statute which erected the elaborate machinery m ' ^'1 i uljj 340 LOCAL GOVERNMENT of parish couadls in rural parishes, should have apparently ignored the existence of urban parishes which are, presumably, still more in need of tocai ff^Tflu T^^* ,*S® "'y^*®'^ ^* explained by the tact, that the Local Government Act of 1894 was also concerned with setting up a great uniform system of sanitary distncts, urban and rural, and that in the majonty of cases, the urban (sanitary) district outside a borough (p. 346) is really an old urban parish, which having passed through an intermediate stage of a Local Improvement District, under a Board of Com- missioners or Trustees, now blossoms out into a full- blown urban district, which, having large powers as such, Goes not also need parochial machinery or power Leaving for the present these sanitary districts, let us look for a moment at the next step on the ladder of local govemm«it, viz, the Board of Guardians of the Poor, before alluded to (p. 536). The Union The »oor Law Union, as its name implies, is a union of panshes, not necessarily all rural or all urban But whereas the rural parishes of a Union do not elect special Guardians on the Board (being represented tiiereon by the persons whom they elect to the rural distnct council of whose district the parish forms part (p. 346) ), the urban parish, which usually has its own district council, has to elect special Guardians (the number fixed by the Local Government Board) to the Board of the Union of which it fonns a part Thus, m a mixed Union, the Rural District CouncilwiU be the Board of Guardians minus the representatives of the urban parishes, who wiU be Guardians only, and not, as such, district councillors. Inasmuch as both distnct counciUors and Guardians are elected by electors having precisely the same qualifications, being the ' parish electors ' (p. 337) in each case, this differeacS MOIMERN K>OR REUEF 341 tkough perhaps inevitable in the existing scheme of local government, may fairly be described as a ' kink ' Neither sex nor marriage disqualifies for being a Guardian ; and, as a matter of fact, much excellent work IS done on Boards of Guardians by married women. But no one can be elected as a Guardian unless he or she is qualified as an elector, or is resident withm the Union. Poor Relief The work of Boards of Guardians is, as has been said JP. 530). the management and distribution of the very large sum annually expended in the relief of poverty by the State. The importance of their position lies m the fact, that every destitute person has a right to rehef m the Union in a parish of which he has his ' settlement,' i.e. to which he is attached by birth residence, or other quaUfication. Such a right natur- aUy entails great responsibilities on the Poor Law authorities ; and a careless compliance with it nearly brought the country to bankruptcy at the end of the aghteenth century. Still, even in 1834, the date of the passing of the great Poor Law Amendment Act there was no widespread desire to deny the existence of ttie right ; it was only determined (and, even that, m the face of strong opposition) to restrict very severely the conditions of its exercise. lit ' Outdoor Reliep ' The great means chosen was, in addition to the substitution of Guardians of the Union for the parish overseers, the substantial suppression of 'out-door relief,' t.e. the payment of money or the supply of goods to paupers who continue to live in their own homes. The sentimental arguments in favour of such a practice are attractive; the administrative argu- ments appeal to the inherent laziness of human nature. kJ(, w ■IS! 342 LOCAL GOVERNMENT li But it is a practice which lends itself to the grossest abuses ; unless it is, as in the case of the Old Age Pensions system (which is not administered through the Guardians of the Poor), a deliberate and uniform scheme, not dependent for its working on the caprice or corruption of local bodies and officials. Outdoor relief may, however, still be granted in exceptional cases, such as those of widows, women deserted by their husbands, and sick persons ; and a certain number of payments made by the Guardians to other bodies on behalf of persons in receipt of poor relief, though not usually classed under this head, properly speaking belong to it. ' Indoor Relief ' But the great bulk of the money expended by the Guardians goes in the maintenance of workhouses and simikir institutions in which 'indoor relief is administered. It is satisfactory to find that the working of the Old Age Pensions system, as well as the increased prosperity of the working classes brought about by the great war, has substantially diminished, during the past few years, the amount expended on poor relief; and it must not be forgotten, that a good deal of the legal liability for the maintenance of poor persons falls upon their relatives. If these persons satisfy their liabilities, the Guardians have, naturally, no say in the matter ; but if they do not, and the expense of maintaining the poor persons falls on the Guardians, the latter take steps to recover this expense from the persons primarily liable. Other Duties of Guardians : Vaccination In addition to their primary duties as dispensers of poor relief, the Guardians of the Poor have one or two other spheres of activity. They are the authority for the enforcement of the Vaccination Acts; every GUARDIANS OF THE POOR 343 £.^1^!' Union being a 'vaccination area.' This somewhat unpopular duty they perform through sped- aUy quahfied officials, subject to the numerous W holes open to conscientious objectors. Ii*.iTHs, Deaths, and Marriages rJ^^t ^^'^ If w Union is also tiie local area for tiie r^stiation of births, deaths, and marriages, which has been compulsory since 1874 ; and the clerk to the wS Z' r "!?-^"y ^^ Superintendent Registrar. S^Shh? p^'?^^^*PP°^"*' ^°' *he various sub^ distncts, Registi^s whose duties as marriage officers are responsible and important. The^ri^teSS of the r^stration system is. however. Sot entrusted R^L'"c^' ^^i Government Boird. buftT^e f ^^"?*f^^ departinent in London, which is a non-pohtical department under the Board. Poor Law Officials «/r' *^!.I^O"°a?ce of its numerous duties, a Board of Guardians requires, in addition to thosi named above, a staff of clencal and professional officials ^?™«t?''^'^ and relieving 5ficers. and masters !S^5^^°"^ °! workhouses. We have previously aUuded (p. 25a) to tiie compromise between self-govern- moit ^d central control which secures tiie effidencv and mdep^dence of such persons. The officials are appointed by the Guardians, su ject to quaUfications Wd^TX^""""^^* r *^^ LocalloveSSSt Board; but they can only be dismissed witii tiie consult of the Local Government Board. TheRe^^ Sffidaif ^' ^°'^^''®''' *"^^ **»« registration Poor-rates Finally, in order to raise tiie money required to discharge its heavy responsibiUties. a Board of Guardians has substantial powers, in tiie matter of t- I. If. 'I fi: ffi 344 LOCAL GOVEfiNlfENT levying rates. Tbe ' poor-rate ' is. as lias been said (P- 335)> really the centre point of nodem local govern- ment in England ; but the methods of raising it have varied from time to time. The process still begins with the overseers of the parish (p. 335) ; they have to draw up annually a list of the rateable properties within the parish, with the value at which each is assessed for the purposes of the Poor Law. This list is sent to a specially appointed Union Assessment Committee of the Guardians, annually elected by them ; and this Cc»nmittee proceeds to hear any objections which may be made to the valuation of a particular property, or the omission of a property from the list.* When the list is finally settled by the Committee, it beconies the Valuation List for ihe year; and the combined Valuation Lists of all the parishes in the Union becomes, subject to a right of appeal to the Justices of the P^ce by any aggrieved objector, the basis of the assessment of the poiur-rate for the Union. The Guardians, having estimated the amount of money which will be required to enable them to discharge their duties during the next year, after obtaining a formal allowance of the rate by the Justices in sessions, then serve a ' precept ' or demand upon the overseers of each parish in the Union for a proportionate part of such amoimt; and the overseers proceed to assess the payment of the sum required upon the various properties in the parish Valuation List, and to collect the amount accordingly, usually in equal half-yearly instalments, from the occupiers, or, in some cases, the owners, of the respective properties. Unpopularity of Poor-law System It would hardly be fair to leave the subject of poor relief without alluding to the widespread prejudice against the administration of the system which has, ^ It is obvious that if A'l property is omitted from tiie list, B** w^l be more highly rated. UNPOPULARITY OF POOR LAW SYSTEM 345 €f Sn^tl i;*^*'^*'^*"'^' The original di^ke wt^^tem, due to Its association >^th a harrh ryession of vagabondage (p. 336) and the X^S «fojx«nent of the law oT settlement ' ^^^^^ ^ >An^»Zr i? ^ amous SpeenbamUnd Act • or scale »*>pted by the local Justices of BerksWre in i^ SSf "'' "''"""^y » «>* wages Sv«^by^g?e raJ^^L^f ^ei."""'* ^'^ ""y a grant oSto^ Se rates, vaiyrng mtb the price of br4d. UnfoniuMtehf ^^t'^?i f State Socialism "tSJ^X^t'^ ^used. however, great resentment^amo^e worW^ ^fS:«' "^f v^! *^°"g «»°s« numer«> tivelv of &e Guardians of the Poor for the district ; while the Mayor, Town Clerk, and Treasurer of a municipal borough are Chairman. Clerk, and Treasurer respectively of the local sanitary authonty. Sanitary Finance Finally, in respect of finance, there is likewise a good deal of difference between urban and sanitary autiion- ties All sanitary councils are corporations, and can acquire and hold, subject to the rule previously mcn- ti^ed (p. 337» n. a), all kinds of proper^, "ise loaM. and inmose rates. But, whereas an urban autiipnty directly assesses, levies, and collects its rates (ather • general district,' for general purposes, or pnvatc improvement ' on persons specially benefited by some of its activities), a rural authority dir«As its ^ecept to the overseers of its constituent parishes, ordering them to levy and collect, either a ' general' rate, out of the poor-rate, payable by all the panshes, pro- portionately in accordance with their assessment, or r* special ' rate from some particular parish or con- tributory place.' to cover expenses incurrwi for the special benefit of that parish or place. These ratM, Uke the poor-rate (p. 344) are pnmanly pajjble by tt« occupiers of the various premises m the distnct, subject to a similar right of appeal (ultimately to Quarter Sessions) to that described in de^ng with the ^r-ratc Iv M4) But the PubUc Health Act provides tiiat sani^ rates shall be levied only upon the occupies of agricultural pastoral, or horticultural ^eas m the prorortion of one quarter of those asse^ on build- hufs • and this provision worked considerable hard- ^p'on the other rate-payers of the district, until, m the year 1896. The Treasury, under the terms of the SANITARY RATES 353 Agncultural Rates Act, which extended it to all bcal rates, began to make grants to the Exchequer Contri- butions Account (p. 362), to supplement the deficiency caused by it. All bans raised by sanitary authorities require the sanction of the Local Government Board, which cannot sanction a total debt in any case of more than two years' assessable value of the district, nor, without a public enquiry, more than one year's. The loan, when sanctioned, may be raised by debentures OT stock in the open market, or borrowed from the Pubhc Works Loan Commissioners under the pro- visions of the Local Loans Acts. A policy has re- cently been developed to a considerable extent of granting, not bans, but subsidies from The Treasury in aid of the various activities of the sanitary authorities; but these subsidies are generally now paid through the County Councils (p. 36a). If m Ih if CHAPTER XIV il LOCAL GOVERNMENT (continued) : THE COUNTIES AND BOROUGHS It has been before explained (p. 333), that the county, as an English institution, dates from before the Norman Conquest. It is equally true, that the foundations thus laid were greatly strengthened, and a firm pcL'tical structure erected upon them, by the genius of the Anglo-Norman Kings, who converted the somewhat vague institution of the ancient shire court into a soUd structure supporting the monarchy. So complete, indeed, was their work, that of the ancient self-govern- ing body but Uttle remained at the close of the twelfth century ; and it was soon afterwards a matter of dii^ute who exactly were the persons entitled, or (as the con- temporary speech put it) boimd, to attend the shire court, whose ancient sessions, though they hngered on for centuries, sank ever bwer in practical import- ance, while the assembly of landowners to receive the King's Justices on circuit (p. 279), or, later, the gather- ings of freeholders to elect the ParUamentary ' Knights of the Shire' (p. 138), or, later still, the quarterly sessions of the J^istices of the Peace (p. 279), grew more and more conspicuous. The importance also of the county as a miUtia centre, ever since the revival of that arm in Tudor times, has been already mentioned (p. 7). It is, indeed, only in quite recent times that the institution of County Counjils has made the county once again a unit of real self-government. 354 THE ANCIENT CX)UNTY OFHCIALS 355 Changes in County Government But the great changes which took place in the twelfth and thirteenth centuries, did more than convert the county into a local branch of the central government. They destroyed the more ancient type of that govern- ment, which vas exercised mainly through a singl6 official. DeCUNE OF THE SHERIFF This official wis the Sheriff (' shire-reeve '), the representative of royal claims long before the Norman Conquest, but greatly strengthened in ix>wer by the increase of those claims which the Conquest brought about. By the middle of the twelfth century, the Sheriff had become a great military, financial, juicial, and police potentate, whose office tended to become,' in accordance with feudal ideas, hereditary. Fortun- ately for the unity of the kingdom,. Henry II saw and boldly challenged the growing danger ; and from his Inquest, or enquiry into the misdeeds of the sheriffs, in 1170, dates a diange which has gradually rendered the office, despite its picturesque trappings, one of little real importance, though of considerable responsibiUty. Most of the Sheriff's financial duties were taken over by the Exchequer officials (p. 31), who directly collected the growing revenue from Parliamentary taxation. The Great Charter of 1215 forbade the Sheriff to act as a judge in his own county. The institution of the Grand Jury (p. 277) had previously deprived him of his most important duties as Crown prosecutor. It is true, that the 'institution of Parha- mentary elections in the thirteenth century (p. 146) gave him a position as ' returning officer,' which he still partly holds ; but this was more than counter- balanced, two centuries later, by the institution of Lord Lieutenants, permanent royal officials at the head of the nriHtia or citizen forces of the county (p. 7), I 35^ LOCAL GOVERNMENT (contd.) which had hitherto been led by the Sheriff. To the Sheriff still remain only the execution of the judgments, criminal and civil, of tiie King's Courts of Justice, the summoning of juries, and the reception of and attendance on the King's Judges on circuit, and a few other miscellaneous duties. Most of these duties, except the purely ceremonial ones, are performed by deputy; but to the Sheriff attaches the unpleasant liability of being personally responsible, unlike an ordinary Government of&cial, for every error of his subordinates. Moreover, the office is compulsory and unpaid ; though it is, on the other hand, annual onfy. The Coroner The Coroner is also an ancient coimty official, Ifaougfa much less ancient than the Sheriff ; being, apparently, one of the checks devised at the end of the tweUtb. century to counteract the power of that personage. As his name implies, he is a ro3^1 official ; but, by a very curious anomaly, his office early became elective, though it vras remunerated by substantial fees ; and it is only quite recent l^slation that has transferred the appointment of coroners to the County Councils (p. 359). Unlike the office of Sheriff, too, that of the Coroner is, in theory and practice, for life ; though he may be removed by the Lord ChanceUor or the Court, on conviction of an offence in the pei:- formance of his duties. These are, mainfy, to hold inquests, or enquiries, by a jury of not less than twelve nor more than twenty-three ' good and lawful men,' in all cases of sudden or unexplained death, and on deaths in prison, a baby farm, or a lunatic asylum unless certain medical certificates are forthcoming, as well as on 'treasure trove,' i.e. valuables beUeved to have been buried for security, of which the owner is unknown. In the latter case, the property, if the owner still cannot be found, goes to the Crown; while, as we have seen (p. 2yS), the verdict 'THE MAGISTRATES 357 of murder or manslaughter found by a coroner's jury against a named person may be made the basis of an indictment. JUSnCES OF THE PeACE But the most important of all the county authorities from the fourteenth century to the late nineteenth were the Justices of the Peace, or magistrates, who, as we have also seen (p. 271), were created, soon after the Barons' War, for the purpose of arresting malefactors and sending them before the King's Justices of Assize, and , lom ewhat later, of themselves hearing and determining felonies and breaches of the peace. Of Aeir work in these capacities we have ahready spoken (p. 2^) ; bat it should be remembered that, very soon ^f^ t heir institution, a large number of administrative air of roads and bridges, the issuing of liquor and other licences, the inspection of gaols and lunatic asylums, the preparation of voters' lists, the administration of oaths, even some duties in respect of education, and, above all, the control and manage- ment of the county police, began to be imposed upon them. Some of these duties have now disappeared altogether ; others have been transferred to the County Councils to be hereafter (p. 359) described. The control of the county pohce is now in the hands of a Standing Joint '"-Tunittee, composed of Justices of the Peace and county coundUors in equal numbers. Still, the Justices of the Peace have, in addition to their judicial and strictly magisterial duties in Quarter and Petty Sessions, and as examining magistrates, the very re^nsible duty of issuing and renewing licences, of which the most important are those for the making and sale of intoxicating liquors. New licences granted II IP I if 35« LOCAL GOVERNMENT (eontd.) for such sales require confirmation by a Licensing Committee annually appointed by Quarter Sessions; and the question of the renewal of any licence wUch appears to the Licensing Justices to be unnece96arv, is referred by them to this Committee, which, if it refuses to renew the licence, has to assess the compen- sation payable to the parties interested. But the powers of the Justices as a rating authority, though not as a tribunal for hearing appals from rating Usts, have now been transferred to the County Councils. Clerk of the Peace The Ckrk of the Peace, another ancient county officer, need not detain us long. He was originally appointed by the Lord Lieutenant, in the latter's capacity of cusios rotulorum, or guardian of the county records, to take charge of all county documents, but rapidly became the mouthpiece and business man of the Justices of the Peace in tiieir vast and miscellaneous business. At one time, the property of the county was deemed to be legally vested in him ; for neither the county itself, nor the Justices of the Peace, were ever a • corporation ' or legal person. But the property of the comty hat now (with certain unimportant exceptions) been transferred to the County Council; while the appointment of the Clerk of the Peace is vested in the Standiag Joint Committee above referred to (p. 357). Justices' Clerks Moreover, each Petty Sessional Division of the Justices (p. 276) has its own clerk, who acts as its mouthfaece and recorder for the Petty Sessional Division, and is appointed by them, but paid by the Coimty Council. The Clerk of the Peace may not act as clerk to any Petty Sessional Division in his county ; nor may any Justices' Clerk act as Clerk to the COUNTY COUNaLS 359 Guardians of any Poor Uw Union in which any part of his Petty Sessional Division is situated. County Councils So long as the bulk of the administrative business of the county was done by magistrates who held office from, and at the pleasure of, the Crown, the county could hardly be said to be a self-governing institution, in the strict sense. No doubt, in selecting Justices of the Peace for appointment, considerable attention was paid to local claims ; and, as a matter of fact, m recent years, no Justice of the Peace has been removed from office, except on grounds of personal delinquency. But there was a good deal of feeling on the subject of party appointments; and, for that and other reasons, it was determined by Parliament, in the year 1888, to set up a new system of representative county councils, for the administration of county, and especially financial, business. Accordingly there is, for each county in England and Wales,* a Council consisting of a number of members fixed by the Local Government Board, and containing representatives, not only from the rural districts comprised within the county, but also from such of the boroughs as are not what are called ' county boroughs ' (pp. 374-375). Owing to the intricacies of electoral law, the right to vote for the election of county coundUors was, until recently, somewhat obscure on some points ; but the new Reform Bill, if passed into law in its present form, will simplify matters, by giving to every occupant of land of full age within the county, irrespective of sex or marriage, a vote. County Districts The constituencies for the councils are either boroughs » Again, as so often, this statement of a genetal rule must be qn^fied in detail. There are. as a matter of fact. 64 county coondls In England and W^es. though there are only 52 historical counties : a few of the latter bong divided for administrative purposes m "'i) , * 1 360 LOCAL GOVERNMENT ((mid.) (other than ' county boroughs '), or ' county divisions ' ; each of which must be subdivided into ' wards ' or ' districts*' so as to give one member to each. Couimr CouNciLLOss Any person who is qualified to be a borough coun- dUor (pp. 367-368) within the county, or who is a peer owning land within the county, or who is registered as a parliamentary elector for the county by an owner- ship (Qualification,* is qualified to be elected a county counallor; neither marriage nor sex being a hai. County coundlbrs are elected for liuree years; and all retire together. County Aldermen Besides ordinary coundUors, however, a county coundl compri^ ' aldermen,' one third in number of the ordinary councillors, an4 elected by them lor a period of six years, but retiring by halves, so that there is an election of aldermen every three years. The ooundl has also a Chairman, elected annually by the whole coundL Both chairmen and aldermen may be chosen from inside or outside the ooundl, froQ any persons qualified to be councillors; but if a coundUor is elected an alderman, his seat as an ordinary councillor becomes vacant. County Officials The Clerk of the Peace for the county acts, as we have said, as Clerk of the Coundl; but the County Coundl has its own Treasurer, as well as its Medical Officers of Health, Public Analysts, and other offidals, who are not only exduded from membership of the coundl (as in the case of other local government offidals), but may not sit in Parliament. 1 If fhe new Reform Bill is passed in its present form, fliis foalificatioB will dimpgmr, along with the owu en hip fraadiise. COUNTY COUNCILS Dums OP County Councils 9fo \i The duties of the county ooundlt, like those of the Justices 01 the Peace whose phice they have largely taken,* are of a miscellaneous character. They com- pnse the control and maintenance of the * main ' roads m the county, except so far as these have been handed over to the district councils (p. 347). the prevention of pollution of nvers, the conservancy of fish the enforcement of the Acts relating to the contagious diseases of animals and the protection of wild birds the provision of pauper lunatic asylums, court houses' and other official buildings of the county, the safe custody of the numerous records of the county, the preparation and maintenance of the parliamentary and ]ocal government electoral registers, and the enforcement of the statutes relating to weights and measures. Under the Education Act of 1902, the County Council is the education authority throughout Its county; except for boroughs containing at least 10,000 inhabitants, and urban districts containing at least 20,000. In this capacity, it appoints an Educa- tion Committee, as well as enforces attendance and provides school buildings, in manner previously de- scribed (p. 263). The County Council has a good deal to do with supervising the work of, and settling disputes (such as boundary questions) between, the smaller local government divisions within its area. Finally, it has heavy and important duties with regard to local finance. I ' County Finance For the County Council has not, like most local government authorities, merely to provide for its own financial needs. It has also to provide, to a krge » Ot course it should not be forgotten that a Justice of th« Ptace may be, and frequently is, elected as a county councillor. ' ft i ate LOCAL GOVERNMENT (cimU.) extent, for the wants ol other official bodies. Thus, the education authorities (other than the boroughs and urban districts), the local judicial authorities, i.t. the Quarter and Petty Sessions (p. 276). and the police authorities (other than the boroughs having their own separate police forces), all look to the County Council for their expenses. Moreover, a very important branch of the County Council's financial duties consists in the receipt and distribution of the Exchequer Contribution Account, that is, the large sums of money granted by the Imperial Treasury for various specified purposes, such as education, road maintenance, small holdings, and sanatoria. Some of these, notably the large grants for education purposes, police purposes, and in relief of agricultural rates (pp. 352-353). we made by direct subvention ; others, such as the proceeds from ' tocal taxation licences ' (p. 220), are collected bv the county authorities, and carried (subject to the daims of The Treasury) to their Exchequer Contribution Accounts, which are earmarked for specific purposes. The magnitude of these transactions may be gathered from the fact that, in the year 1912-13, the total sums thus received by the county authorities (including the ' county boroughs ') was nearly £22,000,000. To meet the requirements thus charged on the county councils, beyond the Exchequer grants and the income from the not very large amount of county property vested in the councils, and a small miscel- laneous income from fines, fees, and similar casualties, the councils have power to raise money by two chief means, viz. loans for permanent expenditure, and rates for annual outgoings. County Loans County loans, which can only be raised with the consent of the Local Government Board, and must not, without the consent of Parliament, except for small holdings, exceed one-tenth of the rateable value COWTTY nNAMCE 5^ of the iMd and buildiiigt within the oountt. ife niMd by the iaiue of • county rtock/ or by debentunt or annuitiei under the Local Loans Acts, or by mortnure • and ^ must be made repayable by intta£nti extending over a period of not more than thirty years, ttioujh the instafawts may be paid into an aV^nu- ttung or ' amldng fund. County Ratzs For the purpose of lewing rates, the County Councfl naa its own Assessment Committee, which may or mav P^li"^* .*^® valuation of the Union Ai^essment ^^OBj^itee (p. 344) ; m fact, it usually does not. to avoid jeaLusies between the different Unions in the county Having ascertained ito probable require. iMnts for the ™1« (P- 344). But considerable cwnphation is caused by the fact that, quite apart from the 'county boroughs' (which are outside^e ^here of the county councils' jurisdiction), there are other pnvileged boroughs, some of which have their ojm guarter Sessions and separate police forces, whilst othm have sq)arate police forces only ; for the parishes in these do not contribute to the Quarter Ses^ons or pohce forces of the county, as the case may be. It is not surpnsing. therefore, to find that every county coimal must, at the beginning and in the middle of each fiMnaal year, make a systematic survey of its financial resources, prepared by its Finance Committee, and that no payment (except under an Act of Parlia- ment or order of a competent Court) can be made with- out an order of the council signed by three members of this committee, nor cah any liaWhty ezceeding 24 ki **ie«ocopr iBouiTioN nsr oort (ANSI and BO TEST CHAUT No. 2) 1.1 1.25 la 12.8 ■ 25 itt|£ ■ 2.2 S 1^ ■H S US 1 12.0 1.8 Iffl^^s Umi 1.6 ^ ^IPPLIED IN/MGE Ir -^ l«S3 Eoit Main Stract ^S Poch«trr, Nm York 14609 USA — (716) 482 -0300- PhonT^ (716) Zae - 5989 - Fox 364 LOCAL GOVERNMENT {contd.) £50 be incurred without an estimate submitted by the committee. Boroughs Last, but, from the point of view of self-govoii- ment, highest in the scheme of English local institu- tions, comes the borough. We have already seen (p. 27) that, by ways the origin of which is obscure, many towns or ' townships,' * or groups of towns or townships, in ancient England had, even before the Norman Conquest, acquired, under the title of ' boroughs,' peculiar franchises or privileges, especially in the matter of |s^-govemment, whi(£ made them a class apart. The name * borough,' which means a strong, or fortified place, appears to give us a hint as to the original ch^acter of these places"; but very early they lost any special mihtary character they niay once have had, and became noted chiefly as industrial coitres. As such, they (or some of them) were, as we have seen, given special representation in the Parliament of the thirteenth century ; and this peculiarity they continued to retain, with disastrous results, as we have also seen (p. 139), both to their parliamentary and their dvic character, down to the Reform Act of 1832. Since that date, parhamentary and dvic (or munidpal) boroughs have become more and more distinct; until they now share Uttle more than the name. The parliamoitary borough is regulated by the Representation of the People Acts, and means Uttle more than an urban ar^ sending its own member to ParUament. The munidpal borough * It i* only a modem fuhion which ccmfiiies the name ' town * to a large centre of popnlaiion, and contrasts it with a ' villace.' Far many centuries, ' town ' and ' village ' were the same ^oSg • and a ' townihip 'was not a Uttle town, but the area of a townor village, or, in legal documents, the inhabitants of a town or vUlage « Even this derivation does not really help us to distingniA a borough from an ordinary town ; because a ' town ' or ' tun ' was. ariginaUy, a itorlr sd e d or enclosed fct. BOROUGHS 365 18 a special area of bcal self-government, regulated by the Municipal Corporations Acts, and having an elabor- ate scheme of special local institutions, which we must now briefly describe. It is mostly to be found in the Municipal Corporations Act of 1882, which re-enacted, with considerable amendments, the great Munidpal Reform Act of 1835. The Borough a ' Corporation ' The first great distinction between a borough and a county or other area of local government is, that it is, and has for centuries been, a ' corporation,' or legal person, capable of owning property, bringing actions, being sued, and otherwise acting more or less as an mdividual ; whilst a county and a parish were and are not.* This difference, dry and pedantic as it sounds to the layman, is of immense interest, both historical and practical, to the lawyer; for he knows how difl&cult it was to reach, and how important it was m the growth of independent self-government. For instance, one great reason why a considerable number of boroughs have, notwithstanding the bad period of corruption, contrived to acquire and retain very valu- able property for civic purposes, is just because, being persons,' they could do so; while the 'men' of the county or parish were a vague, uncertain body, with no rights, though they had liabilities, which could not. Again, county and parish councils can claim no powers except those expressly conferred on them by statute ; because they are the creation of modem statutes which define their powers. But many boroughs are very ancient; and it has been decided, that the modem statutes and charters affecting them, though they confer new powers, do not necessarily take away the oWer ones, acquired by old charters or long usage midSSfflSllS!*'''^'*"*^'^*"*^*""' l^O'^y "every 1 t-i 3« IjOCAL government {eoHid,) j; presoiption ')^ Thus, although a county counciL hke a borough, has by statute power to make by-laws • lor the good ruk and fovemment ' of iU county it does not by any means follow, that any claim it may put forward to exercise this power, will be judged by the same standard as that appUsd to a simila? claim by an uiaent borough. For, though all newly created boroughs have for centuries been created by royal garters, which define their powers, some very ancient borou0is exercise, by custom or ' prescription,' rights for which no express authority can be shown. The corporation of a borough consists of mayor ^eimen, and burgesses ; the last being represented, for atoost aU purposes of local government, by a councU ejected by them. In common qwech, the mayor wdermen, and council are qwken of as * the corpora- tion ' ; in strict law, they are only the governing bodv of the corporation. . * ^ TpE Mayor The mayor is elected annually by the members of the council not necessarily (though usually) from among themselves, but from persons qualified to be councill«MS (P- 307)- He is not only chairman of t^e council at all Its meetings, but is entitled to precedence in the borough on all occasiims of munidpal business ; except ^t, although he is. ex oficio, a Justice of the Peace for the borom^ during his year of office and the next he does not take precedence of the stipendiary magis^ trate (p. 573), if there is one. He may be, but seldom IS, allowed a sum of money out of the borourfi funds, for the expenses of his office, There is a good deal of ceremony about the office of Mayor, including robes mace, and other ancient symbols pi authority. Aldermbn The aldermen, one third in number of the ordinary coundnors, are elected by them and their fellow ^er- BOROUGH COUis-ILS 36j men, for a period of six years ; one-half of them retiring every three years. They are mebibers of the comicil. and require the same qualifications as ordinary coun- dUors^ but they do not sit for any particular ' ward,' or electoral division of the borough, though, in some boroughs, it is customary to allot each alderman to a particular ward. Their only special duty appears to be that of acting as * returning officers ^ (p. 146) at ward elections; but they take precedence over ordin- ary councillors, and are sometimes distinguished hy a q>ecial costume. Like almost all other municipal office-holders, they are re-eligible ; but they cannot, as the Mayor can, be compelled to sexve. ■ i:l i fs*. Thb Councillors The borough council is a body consisting of such multiple of three members as may be fixed by the borough charter or Order in Council, elected for three years by the burgesses^ from tiieir own ranks,* or from persons who have resided for twelve mcmths in the borough, but retiring annually by thirds, so that th At Imat lids ^liU b« to irhM Ik* naw SepNMDtettaa qf fb» Bb^o BQl h€Come» law. At pr a sgat a ceBscfflor and not ha.va qolt* an Hm qadttdtttOM of a MsgHii. irt 3«8 LOCAL GOVERNMENT (contd.) the Ballot Act (p. 147), substantially in the same manner aj. and subject to similar restrictions to parhamentary elections. ' The BifRGEssEs ♦K J^ burgesses are. substantiaUy. the rate-paycrs of ^e borough male or female, of full legal age^thout disquahfication for marriage or for ^y ^'er P^^^'ns who axe quahfied to be. but are not. members of the council nor acting as Town Clerk or Borough TrSsmS' borough, before they are submitted to the Local Government Board (p. 254). Borough Officials Besides the Auditors, every borough has, as such a Town Clerk and a Treasurer; a?d. as aTiS POWERS OF BOROUGH COUNaLS 369 sanitary authority, it has a Medical Officer of Health, an Inspector of Nuisances, a Surveyor, and similar officials (p. 35Z). But these persons are appointed by the council, and are subject to limitations similar to those affecting county council officials (p. 369); except that they are not legally excluded from sitting in Parliament. Powers of Council Fortunately, the numerous powers and duties of a borough council can be largely disposed of by reference to previous descriptions in this book. As an urban sanitary authority, every borough council has the powers and duties of an urban district coimcil, including the making of by-laws (p. 351). As an education authority, the council of every borough of more than 10,000 inhabitants has the same powers and duties as an urban district council whose district contains more than 20,000 (p. 350). It has also special powers, under the Town PoUce Clauses Act of 1847, of radiating traffic, preventing or extinguishing the outbreak of fires, and the Ucensing and control of hackney carriages, which are exerdsed by some, though not aU, ordinary urban district coimcils. It may also, with the approval of the burgesses, proceed to act on the provisions of various ' adoptive ' Acts of ParUament, in the provision of public libraries, baths and washhouses, and siooilar public amenities (p. 350). But, beyond all this, it has the general power of making by-laws ' for the good rule and government of the borough ' ; and, as has been hint^ (p. 366), its powers in this respect have received a wide interpretation. Municipal By-laws It is well, therefore, to notice that a by-kiw of this kind, like that made under a similar power by a county council, must be passed at a meeting at which two thirds of the full council are present ; and it has no l-l I I f i m IXX:AL government {eomtd,) v^/^^ll^f^ of it has been affixed to the Town Haa lor forty days, and another sent to the Home ^'^^^^' r'^^J^^ ^^> 'o^y ^isaliow it On the other hand, no by-law made by any other local government authonty has any force within a borough. Enforcbment of Bv-laws The by-laws of ft borough, Uke aU by-laws of local l^mmcnt authorities, are usuaUy enforced by the OTdinary jwhce force, whose members of various wades «Ken cwiduct in person prosecutions for breach of th^ before the Justices of the Peace in Petty Sessions. m the less unport^t cases ; though there is rather a teehng agamst altowing a poHce constable to double the part of witness and prosecuting counsel But as we shall see m a moment, not every borough has its own pohce force ; many of them are ' policed ' bv the jounty, and contribute to the county police rate. 2"y. It If not gencraUy known, that every borough is bound to keep m reserve a stock of ' special constables ' appointed annually by two Justices, and consisting of as many inhabitants of the borough as may be deemed nece^ary, and are not exempt from service. They do not however, act except under the special warrant of a Justice which must state that, in the maker's opimon. the ordmary poUce force is insufficient to maintain the peace. These special constables have renamed vahiable service during the great war. Borough Finance The last important duty, which is incumbent on aU boroughs ahke, is the provision of funds for the per- fOTmance of the council's duties, in its dual capadtv of municipal and sanitary authority, as well as for the contnbutions which all except 'county boroughs' have to smke to county needs. Some boroughs as BOROUGH nNANCE sn has been stated, have a good deal of property, de< lived from ancient sources, the income of which may be, however, earmarked for special purposes. The larger boroughs receive Treasury grants (p. 362) in re^)o:t of sudi services as education and poUce, usually through the County Council In addition to its loan-raising powers as a sanitary authority (p. 353), a borough council may also, with the consent of the Local Government Gioard, raise loans for strictly defined municipal purposes, such as the purchase fd sites for, and the erection of, mimidpal buildings. Borough Rates But the bulk ot the income of an ordinary borough is derived from the borough rate, which is levied by the overseers, on the demand of the borough council, from each parish within the borough, on the basis of the poor-rate (p. 344) ; unless the council chooses to order an independent valuation. But an appeal Ues by any person aggrieved by the incidence of such rate, as in the case of a county rate, to the Quarter Sessions, either of the borough itself, held by the Recorder (P- 373). i^ it is a • Quarter Sessions ' borough, or to the Quarter Sessions of the county in which the borough is situated. All income received by the borough coun- cil, unless earmarked for special purposes, is paid into the borough fund ; and no payment thereout, except for r^ruiar outgoings, such as salaries or allowances of the Mayor, Recorder, Town Clerk, Stipendiary Magis- trate, and other officials, can be made, except upon an ordo: of the council, signed by three members, or of a Court of Quarter or Petty Sessions. rs 'iitl > Special Types of Borough So much for the general features common to all boroughs, of which there are some three hundred and S7S LOCAL GOVERNMENT {eonti.) twenty in England and Wales. We have now to notice the peculianties of certain groups within this larre number, which are apt greatly to puule observers: the more especially as these groups are not distinct but cut mto one another, ».#. some boroughs have more than one of the peculiarities referred to. Police roRoucHs As has been hinted recently, some boroughs have their wra separate police forces, maintained and controlled mdependently of the county police force partly out of the borough rate, partly by Treasury pants (p. 353). No borough with less than 10,000 mhabitants can have a separate poUce force of ordinary paid constables ; and not every borou^ with more than 10,000 inhabitants has one.» Where a borough has such a force, however, it must appoint a Waiteh Committee of not more than one third of its own members, exclusive of the Mayor ; and this committee appoints the Chief and other constables, issues regula- tions (which must be approved by the Home Office) for their conduct, and, generaUy, manages the force. Every constable, county or borough, must, however, obey the lawful orders of any Justice of the Peace (borough or county) within the Umits of his (the constable's) authority, which are the borough and a radius of seven miles therefrom, and the county of which the borough forms part. A poUce borough may by ancient custom, have power to levy a special * watch rate ' on certain specified buildings; but such rate may not exceed eight pence in the pound of the net annual value of the rated premises to a tenant on a repairing lease. Usually, however, the police of a borough are maintained out of the ordinary borough mcome, supplemented, as has been said, by Treasury grants. ^ * There i» even one caw (Gloacerter) in which a 'coMityboroMh' (p. 374) has no separate police force. w«i»y imnraga SPECIAL TYPES OF BOROUGHS 373 Borough Hacxstsates Further, a borough may have a st^ - rate Commis^on of the Peace, i.e. Justices of the P' ce appointed by the King to act in and ior the borough ; about one hundxed and twenty boroughs have such separate com- missions. But the mere fact of having such a commis- sion does not exclude the jurisdiction of the county Justices, or exempt the borough irom contribution to county rates ; unless it is accompanied by the grant of a separate Coiurt of Quarter Sessions (p. 276), the issue of which may be opposed by the county authorities. For the grant of a sep. rate Court of Quarter Sessions will, practically, exempt the borough from the judicial authorities of the county, and, consequentlv, from con- tribution to their expenses, and will free the Lurgesses from service on county Quarter Sessions juries ; though it will not, if made since 1888, and, even if made before, not if the borough has less than 10,000 inhabitants, confer on the borough council or Justices the former administrative powers of Quarter Sessions(pp. 357-358), which have now passed to the county coimcik . And the council of a borough having a separate Quarter Sessions must pay the salaries of a Recorder, who acts as judge in criminal matters and rating app^ds, and is appointed by the Crown (p. 277), and a Clerk of the Peace (p. 358) and a CoroncT (p. 356) appointed by itself ; unless, in the latter case, its population is less than 10,000. Stipendiary Magistrates A Stipendiary Magistrate (p. 271) if not strictly a borough official ; though he may be appointed by the Crown,onthe petition of any borough, toact for adistrict of which the borough forms part. In such a case, the borough pays his salary ; and he takes precedence of all the other Justices of the borough, having gener- ally, as has been said (p. 271), Jie judicial, but not the m \ I li i 374 LOCAL GOVERNMENT (contd.) administrative powers, of a Court of Petty Session! There are eighteen provincial stipendiary toa^^uI' mortly for boroughs; as weU aVt Wy-fc^ S pohtan, appointed under different rules (p. 331) Borough Civil Courts A borough may in addition to its magisterial courts Jor^K-T"*, ^^"^^^ jurisdiction. orT>rough Zmt' Zrlf^ ^ ul ?^ *"^"« ^^ the^boroS; ?n yj;^ ^^tabhshment of the County Court sS iuth^^^; .^^ ~"^ ^^" °°* ^ fevour^d bj authonty ; and no new ones are created, while tho^ which survive from ancient times are mostly r^Sd by modem Acts of Parliament. ^ "^eguiaiea Counties op Cities and Towns • J^„'!^ *"?!°* boroughs are ' counties of cities' or comiti«^ of towns.' This is a picturesque su^val ahnost the only visible result of whichTs «ie W^l appointment of a sheriff (p. 355) Z the b^,?h council, toact within the boiugb^VmcSytwS of boroughs had most of the^distinctivrfeatSrS m^w'l'^^'y 'y^^' '"^"^°« special P^lia- W?J?7 fr^^^ and separate Aisi^ST^But Se latter have long ago disappeared; while the fonr^ may be abolished by the nS^efom Act (p 14S S Sif °^.^S°°!d.ia passing, that there is no legal difference m England or Wales between a ' dty ' ^ ' County Boroughs ' V«y important, however, is the class of • oountv J^SS'^tl.'''**^ ^y..*^" ^°^ Govermnent Art 3 1888 ; because, m addition to their powers and dutia COUNTY BOROUGHS 373 ci municipal boroughs and sanitary districts, they have, with slight exceptions, the administrative powers and duties of county councils, and are, to aU intents and purposes, outside their counties for administrative and financial purposes, though, if they are not Assize towns, the3^ will have to contribute to the cost of the county Assizes, and, if they have no Quarter Sessions of their own (p. 373), to the cost of the county Quarter Sessions. But the gift of these powers and duties does not cause any change in the government of the borough, nor does it make it a county of itself (P- 374) ; though, for obvious convenience, in selecting their first list of county boroughs, the framers of the Local Government Act did not overlook the claims of counties of cities and towns. The chief test, however, is population; and 50,000 is the minimum Umit. But there is quite a krge number of boroughs with greater population which are not county boroughs. I Finally, before leaving the subject of local govern- ment in England, it must be remembered that, being English, it is subject to anomaUes and exceptions, which do not fit in with the scheme sketched in this and the preceding chapter. Still, if we make one important reservation, the divergences from plan are less smous in this than in most English institutions. The great exception, however, of the City and County of London is so anomalous, as to necessitate a word of mention ; even if, being an unlikely model for imitation, we do not give it the attention it deserves. .4 London There are really many ' Londons * ; but the only two which are concerned with bcal self-government are, as has been suggested, the City of London and the County of London. It is difficult to say whether the 376 LOCAL GOVERNMENT [cmtd.) fonncr is, lega%,^thin the latter; because for most purposes it is wholfy independent of it, and ranks as a county of itself. It does not contribute to the ordinary county rate (p. 363); though it does contri- bute to the education rate, and send members to the London County CoundL • The City ' The aty comprises only a limited area of about one square mile on the north bank of the Thames, in the heart of the metropoUtan area. Its boundaries and T^rf 'S™°'^*aS*' "^^^ ^^^*- I* i» governed by i-ord Mayor, Aldermen, and Common CouncU: the bst being annually elected, not by the rate-payers, but by the hvery«ien of the ancient gilds or'atv Compames who are, in theory, the free craftsmen of J^fS^- .^,^*°^"«'o*^ct.«»eyarepersonsco^pted 7*?^^.?"°^ gild*.men, who thus have the control ,.ffly government in their hands. The alder- men form a separate chamber of the Qty government bcmg dected for life by the wards into wWch the a^ iwS'^^Vw^" Lord Mayor, though nominalty c ected by tiie Livery, is, ahnost invariably, the senior aldeiman who has not ' passed the Chair.' Lord Mayor Md Aldermen are alike Justices of the Peace for tiie r%^» ** r^;ularly at the Mansion House and the ?r.^"^^'i?^ In addition to the ordinary borough ^S^.^?^ ^^^^^ «°d Treasurer (who is h^ 2^3^ , S?°^lain •), the Clerk of the P«^ tbe Medical Officer of Health, the Surveyor, and the Engineer—the Uty has many other important officials, such as the Recorder and the Common Serjeant, both appointed by the Crown, who exercise criminal juris- dicbon m the Central Criminal Court at the ' Old ^'J. (P- 278). the Assistant Judge of the Mayor's Sl'^/P^Lr^l' *^* Co°»Pt«>Iler. tte RemembrJ!^! the City Sohotor. and the ' Secondary'; its chief polia^ officer IS called a 'Commissioner'; it has, as a 'comity THE LONDON COUNTY COUNCIL 377 of a dty ' (p. 374), two sheriffs, elected by the livery- men from among the aldermen who have not already served as such; and it appoints sevend important education officials for the various educational insti- tutions (not«elementary) maintained by the City. The City's annual income from its permanent property Hone, independently of rates, approaches ^50,000. The County of London The London County Council governs an area of approximately 121 square miles, or, roughly, an area having a radius of about six miles from Charing Cross, on both sides of the Thames, cut out of the counties of Middlesex, Surrey, and Kent. It is, of course, an artntrary, not an historic area, chosen as the result of the practical needs of the huge and dense population settled round the Qty centre. Its councU, created by the Local Government Act of 1888, consists of a Qiairman, one hundred and eighteen coimcillors, and nineteen or^ary aldermen, elected every three years, in the same manner as an ordinary county council (p. 359) ; and it has the powers within its area of an ordinary county council, with the striking exception of the maintenance and control of the police, for it is within the orbit of the Metropolitan Police, which is, as previous^ explained (p. 10), the one pohce force of the country which is under the direct control of the central government, though it is largely maintained out of local rates. In addition, the London County Council has special powers in the matter of main sewers, which are not exercised by ordinary county councils ; and it is the sole authority for public elementary and other education within its area. This authority it exercises through its Educa- tion Committee (p. 263), which is^ virtually, the old London School Board without a special election. Two of its best known and most important activities are 378 LOCAL GOVERNMENT {amid,) the re-arrangement ol the medieval streets of London to suit the needs and tastes of modem times, and the provision and maintenance of the London tramWays. The magnitude of its operations may be guessed from the fact that, in normal years, its expenditure amounts to upwards of £12,000,000. The METROFOLriAN Boroughs ^^thiii the area of the London County Council, and In some sense under its jurisdiction, are the twenty- eight Metropolitan Boroughs, which correspond to the urban sanitary districts of ordinary counties. Some of them, such as Westminster, Kensington, and South- wark, are old munici|)al boroughs with long histories ; the majority are'inaent parishes, ;which, owing to an enormous increase in population in the late eighteenth and nineteenth centuries, acquired a i^>edal form of government, known as a ' select vestry,' either by custom or under the provisions of an Act of Parlia- ment of the year 1831, known as ' Hobhouse's Act.' * Select Vestries ' The powers of these ' select vestries ' were not, how- ever, always exercised with vigour or discreticm ; and much of the government of London outside the City was transferr^ to another representative body, tiie Metropolitan Board of Works, created in 1855. This step naturally tended to the further disparagement of vestnr government; and, when the powers and duties of the Metropohtan Board of Works were them- selves transferred to the London County Council in 1888, it was widely assumed that the parochial government of the 'inner suburbs' (for, by that time, 'London beyond the border' had become a very obvious fact) would disappear. But politics ruled otherwise ; and, in the year 1899, the vestries of London were raised to the dignity of borough THE METROPOLITAN BOROUGHS 379 cojmdb, with mayor, aldeancn. and councillors, thowh rather on the model of comity than of ordinary boroueh govenmient. Thus, for example, the councillors retoe aU tM;ether every three years, instead of by thirds (P- 307) ; and the disquaUfication of Holy Orders does not apply to the metropolitan borough councils. Their Duties Jie metropohtan boroughs are sanitary districts with most of the powers of ordinary urban councils (pp. 337-351) ; though their duties in this respect are diared in a rattier special way by .London^unty Council Theyhadalso'distresscom. ittees'underthe l^employed Workmen Act of 1905 (p. 351) ; while the County Council sent members to the ' ccl jal bodv ' for London estabUshed under that Act. The metro- pohtan borough councils also assess and levy rates much as ordinary urban councils (p. 352). But thev are not education authorities under the Education Art of 1902 ; for by the London Education Act of 1001 the duties of the old London School Board were as ' ^bmi said (p. 377), transferred to the London Coity London Poor Relief: The Metropolitan Asylums Board The heavy duties connected with the relief of the poOT in the metropoUtan area are confided to Guardians elected by the rate-payers of the various metropoUtan Umons in the same way. and having the same powers, as other Gu^dians (pp. 340-342) ; with the ex^tion that, instead of maintaining their own or county asylums they send representetives to a central Uetri pohtan Asylums Board, which contains also nominees of the Local Government Board, and which undertakes besides the provision and maintenance of asylums th^ provision of some hospitals for special classes of 25 HI I / 1 380 LOCAL GOVERMHEMT {eoiM.)' Thb Mstrofoutan Water Board The metropolitan borough councils send rq>resenta- tives also, as do the Conunon Council, the London County Council, and the councils of certain areas adjacent to London, to the Metropolitan Water Board, an independent body created in 1902 to take over the water supply of ' Outer London ' from the various private companies then engaged in providing it. This body assesses and collects, within statutory limits, its own rates. ScoitAND : County Councils In spite of the .great differences which at one time existed between England and the other countries of the United Kingdom, the schemes of local government in Scotland and Ireland have recently shown a marked tendency to approximate to the English. In the former country, county oouudls, thirty-three in number, much on the lines which have been described (P- 359)/ were introduced to take over the powers of the older Conunissioners of Supply or county conor mittees of landowners, and the various bodies of Road Trustees. In the matter of police, which has been a r^ular county force since 1857, the Commissioners of Supply are still associated with the county councils in joint committees, which have also important powers in the matter of finance ; while, as has been remarked (p. 298), the granting and renewal of Uquor licences is still in the hands of the Justices of the Peace. But the Scottish county councils have large powers in the matters of contagious diseases of animals, public health, weights and measures, and Itmatic sylums. *■ An interaiting vmriation is, tiiat the representatives of tiie ■mailer burghs iHiich are indnded in ibt county administration are not elected directly to the oonnty conndl, bnt by and from the btagh conndla. LOCAL GOVERNMENT IN SCOTLAND 381 School Boards The only unit of local govcnunent between the county and the parish in Scotland appears to be the xhool district, fonned under the provisions of the Scottish Education Act of 1872 ; and this is hardly an exception, for, under that Act, the school distrirt is either a parish or a borough. But the district is still a distinct part of the scheme of local government in Scotland ; for each school district elects its own school board for educational purposes, as a distinct body from the burgh or parish council, and the electors are not necessarily the same in both cases. Parish Councils By tte provisions of a recent statute, the Parish Councils Act of 1894, pansh councils are also instituted in all Scottish parishes, 'landward' (rural) and bur^ ' (urban), to take over the duties of the old I»rochial boards, which were fonned in the middle of the nmeteenth century to replace, in the matter of poor-relief, the somewhat limited activities of the kirk sessions (p. 326). The subject of poor-reUef is, however.much less onerous in Scotland than in England owing to the fact that it is, so far as the State is con- cerned, confined to the impotent poor, and takes largely the form of * out-door rehef ' (pp. 341-342). The difference in the pohcies adopted by the two countries m this important matter at the Reformation is striking and has persisted ever since. Burghs In theory there are four, in substance two, classes of urban municipalities in Scotland, viz. (i) royal and parhamentary burghs and (ii) pohce burghs. The former are governed by elected provosts and ' bailies,' or councillors, having extensive powers, which incfaide t I * *? 38a LOCAL GOVERNMENT {amid.) niinor criminal jurisdiction; bat the municipal franchise in Scotland, thouch it will probably be greatly extended by the provisioiis of the pending Representation of the People Bill (p. 367 n.), appears at present to be much more restricted than the English, and not to include all the burgesses of the burgh. Many of the royal and parliamentary burghs have separate Com- missions of the Peace (p. 373). The police burghs, as their name implies, have more restricted powers, being governed by elected Commissioners, chiefly concerned with police matters. These powers are elaborately defined by a great Act of Parliament of the year 1892 ; and, in fact, theyinclude a considerable number of matters of public health and convenience, such as lighting, paving, and sanitation. Formerly the royal and parliamentary boroughs alone sent delegates to the annual Convention of Royal Burghs • but now all burghs have that privilege ' Ireland In Ireland there are no parish councils ; and the modem English system of county government was not introduced there until 1898. In that year, how- ever, elective county councils were established, to take over the administrative duties of the old Grand Juries, including tLe important subject of the county ' cess,' or rate. But the counties are subdivided into urban and rural health districts, which share with the county councils the administration of the laws affect- ing public health. An interesting section of the Irish County Councils Act contemplates the ultimate decision of disputes arising out of the exercise of a county council's road-making or road-widening powers, by a Judicial Committee of the Irish Privy Council The subject of poor reUef is handled in Ireland, much as in England, by Boards of Guardians, consisting, in rural districts of the district councillors, and, in urban LOCAL GOVERNMENT IN THE DOBflNIONS 383 districts, of specially elected Guardians. There are a few borough corporations in the older and more im- portant towns, and a larger number of unincorporated towns under Town Improvement Commissioners. Colonial and Indian Local Government The subject of local government in the colonies and British India, sufl&ciently vast and compUcated in it- self, is rendered additionally diflScult of treatment by the facts, that information with regard to it is not easily accessible in this coimtry, and that many of its most familiar terms have, obviously, meanings in the countries of their adoption different from those attributed to them in England. Consequently, only a few general indications of its character can be at- tempted. • The Self-governing Dominions It appears to be generally true, that no systematic effort to constitute, or re-constitute, the parochial system has yet been made, at any rate in the self- govcniing Dominions. This is hardly a matter for suipnse ; for the new territories of the self-governing Dominions were, for the most part, peopled W after the ancient parochial system of the United Kingdom had faUen into decay, and the thinly scattered colomsts, bred in an individuaUst system, felt no desire to revive the rural community of the Middle Ages It is ranarkable, however, that, in the French-speakine portions of the Empire, e.g. the Channel Islands and the Province of Quebec, and, apparently, in Ontario, the pansh. or commune, has survived tenaciously and Jiows no signs of extinction. Whether this fcirt is due to the intense feudalism of Old Fiance, or is an evidence of strong popular resistance to that feudaUsm IS a problem too difficult to be handled here It is part of the larger and still unsettled question : whether i 384 LOCAL GOVERNMENT (cofitf.) fendal influences created, or, on the other hand, tended to destroy, the ancient village community. Sanitary Districts Similarly, it may be said, that the rather artificial midway unit between the parish and the county, known in England as the ' district/ or ' sanitary dis- trict,' shows little tendency at present to rq>roduce itself in the Dominions. The nearest approaches to it are, perhaps, the ' ridings ' into which the shires of New South Wales, and the ' town ' and ' road ' districts into which the counties of New Zealand, are, or may be, divided; but the parallel is not close, for the sanitary districts of England are not, in origin, sub- divisions of counties. They are, rather, units based on the presumed requirements of pubHc h«dth ad- ministration in a densely populated coimtry ; and, apart from the great towns, population in the self- governing Dominions is, as yet, hardly dense enough to need them. Counties On the other hand, the institution known as the 'vjunty, shire, or even * district ' (in the larger sense),* $.e. the self-governing area of large size, running into hundreds of square miles.is a familiar object inDominion local government. In ahnost all cases, it Ix»an life as a 'road district/ and, in the case of Western Australia, it retains that title; though, in this parti- cular case, we can see the older unit on its way to the fuller devcdopement of a ' county ' or ' shire,' in the hd that, in some of the more tluddy populated 'road districts,' there are, in addition to ti^e district councils, local boards for sanitation and other health purposes. The ' divisional councils' of Cape Colony, the 'rural mimidpalities' of the prairie provinces of Canada * Thus. Hm ' districts * of British Colombia aad South AnitreUa tin, obvioBdy, wbiA wonU in Fngland b« callsd conntiss. LOCAL GOVERNMENT IN THE DOMINIONS 385 (Manitoba, Saskatchewan, and Alberta), and the ' munidpd districts ' of Tasmania, are, apparently, in a similar transition stage. We may say, perhaps, without much fear of hasty genoralization, that this large unit is, in the self-governing Dominiont, the pro- duct of a desire to improve the means of locomotion and public health. But we must note, that its powers are confflderably less than those of the county in England ; because the systems of police, public ekonentary educa- tion, water-supply, liquor licences, and other important matters, are more completely in the hands of the central governments in iht sdf-goveming Dominions than is tixe case in England. County Councils Naturally, in countries like the self-governing Dominions, the principle of elected representative councils is almost universal in the shires and coimties. Here, again, we notice a striking exception in the cases of Quebec and Ontario, where the county council consists of the ' mayors ' or ' reeves ' of the parishes, or village communes, who are, however, themselves elected by the inhabitants of the pari^. In other cases, the county councils are directly elected, usually on a rate- paying franchise, for different ' wards ' or ' parishes ' which are merely electoral areas. Each council, as a rule, elects an annual ' chairman,' ' warden,' or (in Quebec) ' prefect ' ; but in Saskatchewan there is a popularly elected ' reeve ' as chairman of the council Nearly all, if not all, of these county councils have power to make by-laws, subject to the approval of a central authority ; but, in Saskatchewan and Alberta, any by-law involving the expenditure of funds must be referred to the electors for confirmation. Urban Municipauties It is again one of the characteristics of the self- governing Dominions, that urban seU-govemment, the 386 LOCAL GOVERNMENT (eontd.) 5^S!L?1^**** *yP« *° England, should have devdop«i there more rapidly tffii ru;al s^^ »«*• ^^fo?dorforiU.the8elf^veniiiigI>o2Ki jreranarlalle for the number of their grSt^S^ towis. Thus, in Canada, there are fourteen at least ^th over 30.000 inhabitante each ; and three sev«^, r ^•,?"*!f* population are classed as ' urban' In t^i: *^* ^A^'fi^S'' °^ Sydney and Melbourne have each upwards of half a milfion mhabitants- the S^iSiA^;^*^' ""^^ population of its State, in bouth Afria, there were, m 1911. twelve cities with ov^ia.000 inhabitants each; and the City of Jo^c^ burg holds newly one-seventh of the entire ipulation (European and mitive) of the Transvaal It i? not JS^fi^' K^f ^°'*' *°x ?°^ *^* 'incorporation' (p. 305), which IS one of tiie most decided marks of ^I^S^^^^'^^f^^' ^ °««^ fi^^at strides in ttcself-fiovemmg Dominions. In the province of Nova tants. there are thirty^ght incorporated towns ; while ttere arc one hundred and eighty^rix in New Soutii Z^L^^ ^ ^f°».*°?a every city. town, village, and rural mumcipahty is incorporated. Uniform Councils The type of government in the urban munidpahties as a rule follows pretty closely the EngUsh rdtoied fSf^^C^r^^^^i^JSl^ <.PP- 36^368) : but. appar- cnUy thCTe is m the Dominion municipal couidls no ff*^ r^^}^}^ election sudi as that whidi produces the Boghsh' aldermen.' » On the other hand, th? process ^«*^ *?® councillors by rotation, so as to £void a completely ' general ' election, is. apparently, gaining gromid ; notably m Soutii Africa. whSe it we^b^ alltiiefourprovmcesof theCapeColony. the Transvaal. — «P* ' .''*'?'*?? ' ?* On**rio "d New Sonth Wale* an. tmmt. •Btly. equvaieot to the ordinaiy coundllort inEnghSd. ^^ LOCAL GOVERNMENT IN THE DOMINIONS 387 the Orange Free SUte, and Natal It is to be noticed amvtr, that, in the two latter cases, the full term of office is wily ♦wo vears; the councillors retiring by halves. To the self^veming Dominions also betongs the merit of giving a legal significance to the distinc- tion between • cities' and ordinary corporate towns, whidi, m England, is merely ceremonial In Victoria, tiie distinction is based on revenue; in Ontario and Saskatchewan, on population. But in all these cases it involves a difference of powers. The Cumulative Vote One feature of peculiar interest in connection with the urban organization of South Africa, is, that it recognizes the cumulative vote (».*. the right of a sinde voter to give more than one vote for a candidate), based on the ownership of land. In the Cape Colony this apparently reactionary rule prevails. On the other hand, the Orange Free State allows the muni- apal franchise to all resident householders. Another point of considerable interest is the fact, that the American system of having paid Commissioners, or experts, for urban administration, has gained a foot- ujg in Saskatchewan and Alberta ; while the ' cities ' of Ontario may have special Boards of Control for finance. India and Egypt In the countries which, before passing under British control, had old-established civilizations of their own, the problem of local self-government has. naturally] worn a different aspect. There the problem has not been to build up a local system out of the wilderness, but to adapt to modem uses the ancient institutions of the country. In a way, this problem may be said to resemble the EngUsh problem ; for, even in England, ttfective local government is very modem, though it is based on ancient institutions which had ahnost become M 1 1 m * jn LOCAL GOVBRNMENT (mmISI .) ortiiici Periiapt that it one nuon why Britiih ■tatamen have, on the whole, been to succetehil ia adapting ancient inttittttiont in other oountiieib Indian Vhxagb iNSTrrunoNS Thut, lor example, recent reiearchefl into the history of administration in Britiih India* reveal ciearly two things. The first is. that there survived, down to the establishment of British rule, though afanost obliterated by the countless waves of conquest yrbich had passed over India, a vast network (^ local and self-goveming institutions, of almost immemorial antiquity. Most of these were connected with the village, or agricultural community, whidi, though its character varies from province to province, and even from district to aistrict, still shows a general similarity which seems to mark it as an almost necessary stage in the evohition of progressive communities.* l^e viUage institutions of native India comprise not only a great number of viUage officials, rendering sanitary. poUoe, educational, and even judicial services* but even, widely spread throughout the country, a rudimentary village council of ciders (panchayat), chosen by the oldest known form of election, viz. the casting of k>t8. to discuss the affairs of the viUa^ Fostered by BRmsH Administrators In the face of this evidence, it is almost impossible to doubt the existence, in some form, of similar institu- tions in early England ; for the later stages of English 1 ThflM namtdu a have been convening ramauulsad in a TCceatiir poblUhed worit entitied, Villmgg Gotrnnm^^ in BriHtk India, \j John MixttiMi (Unwin. 1913). • Nothing is mor* (ntarenting in tUs connection fhan a com- Crative stndv of each primitive police nfoiations at fhoee ooa- nedin the Enfl^ttih St^ ate of Winchester of Z385, vrith the deMilp* tion given by Monntatnart Elfdiinttoiie of tbedvtieB of theviUage WF.tcn in the Macatlia ooontty. LOCAL GOVERNMENT IN INDIA AND EGYPT 989 devebpement art abo manilett in India. Bnt it if more to oar immediate purpoie to note the existence of a leoond fact wbidx appears from the recently collected evidence, via. the anxiety shown by the British rulers of India, for upwards of a century, to foster and revive these ancient self-governing in> stitutions. These attempts, usually made by Pro- vincial Regulations (p. 91). have not always been successful ; and it is clear that official views on the 6}li^ which they illustrate have not been unanimous, at it is also dear that, long before Sir Henry Maine, by his brilliant essays, had called attention to village survivals in India, more than man. So long as he remains a purely native institu- tidb, appointed (or, at least, accepted) by the com- munity as part of itself, and paid by a share of the village produce, he is a powerful agency in maintaining order. The moment he becomes a Government official, his position changes, not always for the better. Door& which before were ojien to lum, are now dosed ; he is hedged around by formalities ; he may degenerate into a spy, or, quite unjustly, acquire the reputation of being one. Lord Rifon's Reforms Obviously, therefore, the systematic reforms intro* duced for British In(Ua generally by Lord Ripon's Government in 1882, were an experiment of the most delicate diaracter. They did not profess to deal with the smaller imits, but confined themsdves mainly to establishing self-governing institutions in the kurger areas, whidh, owing to the variety of races in Inc^a, were less well-provided with native institutions. [ ■-- I 390 LOCAL GOVERNBfENT {eoHti.) Thus the District Councils, more than two hondred in number, formed to assist the District Magistrates and the seven hundred municipalities of British India' Mve, as compared with the. ancient institutions of the village, a somewhat artificial air. Recent Announcements Still, the facts that they exist and do a certain amount of work, is a step gained ; and it is tolerably dear from the recent pronouncements of the Impenal authori- ties, especially the formal resolutions of the Govern- ment of India issued in May, 1915, and the still more recent statements in the Imperial Parliament and by tiie Viceroy in India, that the poUcy of Lord Ripon's Government will, fn the near future, be extended to the humbler sphere of village institutions. The resolutions of 1915 veiy wisely determined to leave the actual introduction of reforms to the Provincial Legislative Councils (p. 91). and deprecated the setting up of uniform and compulsory systems ; for variety is of the essence of successful local institutions. Egyftian Developements The policy thus adopted in British India has also been recently developed imder British auspices in Egypt, where Mohammedan mudiruK, or provinces, subdivided into districts, and again into villages, have been made the basis of a scheme of self-govenunent, beginning with the subject of education, and where there are already thirteen urban municipalities. At any rate, enough has been done in this direction to show, that the often expressed British policy 0* jvem- ing alien races so as to enable them ultimately to'govern themselves, is no mere empty theory. 1: BRITISH EMPIRE SELF-QOVERNINQ DOMINIONS. Auttrclia Canada Newfoundland New Zealand South Africa CROWN COLONIES. Athanti Bahama lalands Barbados Bermuda Ceylon Cyprus Falkland Islands Fiji Islands Gambia Gibraltar Gold Coast Grenada British Guiana St. Helena British Honduras Hong-Kong Jamaica 8t. Lucia Leeward Islands Malta Mauritius Nigeria Seychelles Islands Sierra Leone Straits Settlements Trinidad and Tobago St. Vincent PROTECTORATES. Native States of India Aden and Perim Basutoland Beohuanaland North Borneo East Africa Egypt and the Sudan Northern Gold Coast Malay States Northern Nigeria Nyasaland Western Paoifio Rhodesia Sarawak Somaliland Swaziland Uganda Zanzibar United KInadom British India Self-Qouerning Doniniona \ I - Croiun Colonies r^ Protectorates I m >(> INDEX Act of Pudiament: 'adoptive/ 338-9, 369 apensing with, 313, 233 generally, 17, 18 public and private, 17, 156 suspension of, 233 Addresses to Crown, 178 Adjournment, motions for, 173, 182, 183 Administration : generally, 19-22 Admiral, Lord High, The, see • Admiralty ' Admiralty, Board of : compotinon of, 183-4 creation of, 183 organization of, 183, 185 powers of, 185-6 reforms in, 184 working of, 185-6 Admiralty, Court of, 184 ' Adoptive ' Acts, 338-9, 369 African Pr o tectorates, 99-100 Agents-General, see ' Dominions, Self-governing ' Agricultural Rates Act, 353 .A^culture, Board of, 254-6 Air Board: creation of, 203 organization of, 203 Air Force, 203 Alien: British ship, cannot own, 6 deportation of, 232 not liable for military ser- vice, 6 private but not public rights, 6 wife of, 6 Allegiance : character, 5, 6 Allegi aa ee e o n Hniuit extent, 6 liabilities. 6 renundation, 5 Ambassadors, 234-5 Appeal: Courts of, see ' Courti of Justice' right of, 277, 282, 285, 290, 391 Scottish courts, from, 297 Appropriation Bills, 171 Archdeacons, 310, 323 Armies: Colonial and Indian. 204-4 New, The, 199-200 ' Army Act,' see ' Army, Rego> lar. The' Army Council: composition of, 197 functions of. 197, 203 origin of, 196 Army, Feudal, The, 188 Army. ' Regular,' The : billeting of, 189 Kll of Rights and, 190 Cabinet System and, no Commander-in-Chief of, 195-7 'commissions of array' and, 188-9 control of. by Parliament, 194-8 Crown and, no discipline oi : Army Act, 192 Artides of War, 193 Mutiny Acts and, 191-3 Parliamentary chancter of, 190 Petition of Right and, 189 recruiting of. 198 JW 39S INDEX Armv, 'Ragolar'— cottffowMl: retormt in, igyS Secretary at War and. 194-5 Secretary for War and, 193-7 voluntary character of, 198 Army Reeerve, see Army, Territorial, The : Army Act and, 192 Anodationa, 20a numbers ol, 203 origin of, 7 reserve farces and, 200-3 Arrest without warrant, 272—3 Articles of war, 184, 193-4 Assizes, 231, 279, 288 Attainder, Acts of, 33 Attorney-General, see ' Law Officers' Australia: federation of, 63-4 responsitde government in. 63 Second Chambers in, 66 Stetes of, 64 Bagehot. Walter, X33 BaUot. the. 147 ' Bangorian controversy,' 321 Bank of England, 222-3,224, 223 Bank of Ireland, 224, 223 Becket, quarrel with Henry II, 314-16 ' Bene&t of clergy,' 316 ' BiU of Rights ' : Army (standing) and, 190 character. 4 • dispensing power,' 213, 233 Psrliaments and, 144 petitions and, 177 ' suspending power,' 233 • Billeting,' see ' Army, Regular, The Bills (Parliamentary), see ' Act of Parliament ' ' Binding over,' 273 Bishop: appointment, see ' Church English ' in Parliament, see ' Lords, House of ' Bishoprics, creation of new, ^28 Black Death : effect of on labour, 333 Board of Agricnltnra^ ••• < AbI. culture, Board of ' Board of Control (for Indfc), 83 Board of Education, see ' Educa- tion. Board of ' Board of Trade, see 'Trada. Board of ' Board Schools, see ' Education ' Borough: aldermen, 366-7 auditors, 368 civil coitfts, 374 'corporation'' a, 365 connol% 367-9 • county,' see • Boroughs.' •county' doctors (burgesses). 366, 368 ""»»c«. 370-71 magistrates, 373 m^yor, 366 officials. 368-9 rates, 371 represented in county council _ 339-60 ' Boroughs,' : countiesof dtiesandtowns 374 ;countv.' 363, 374-3 Dominions, in tiie, 383-7 municipal, see ' Borough ' origin of, 333 Plarliamentery, 138-40, 142-4 P«>Uce. 363. 372 Quarter Sessions, 363, 371 reform of, 364 Kitish India, see ' India. Bri- tish' ' British residents,' 96, 97 British Settlements Act. 100, ^01-2 'Budget,' 34, 165-71 Burgesses: municipal, 368 Parliamentary, 137 and see ' Commons. House of' Burg^ (Scottish), see ' Scotland. burghs' Burke, Edmund, 220, 225 By-laws : borough. 366. 369-70 county, 366 district, 331 wsisir INDEX 993 CBbinat Syttai: advice to Crown. 44-5 conventional character of, 109 effect on Kingship, 4 formation of Cabinet, 114 origin of, 34-6, 102-9 principles of, 109-27 relations ivith Parliament, 163 Canada: acqnltltion of, 6x, 62 provincial legislation in, 63, 67n. responsible government in, 63 Second Chambers in, 66 Canon Law, 288, 319-30, 321-3 Canterbury, see of, 317 Cape of Good Hope, 61-2, 387 • Caucus,' The, 125-6 Chamberlain, Lord, and Lord High, see ' Household Offices' Chancellor, Lord High, see ' Lord High Chancellor ' Chracellcr of the Duchy of Lancaster, 244-5 and see ' Budget ' Chancellor of the Exchequer, 216-17, 219 Chancery, Court of, 27, 241, 242, office of, 241 Channel Islands, 60, 75, 327, 383 Charles II, .103, 104 Chartered Companies, xoo ' Chiltem Hundreds,' 121 Churches, Established : Enj^di: celibacy in. 311-12 courts of, 312, 319, 324-6 . liidia, in, 328 investitures, quarrel over, 313 prelates, election of. 314, 322-3 (and deans) creation of new. 328 - ritual of, 322 Rome, connection with, 310-11, 313 separation from State, 311, 312 tithes, 310, 312 nniformity of worship in, 323-4 Cbordies. Established: English — eontinutd : w^liam the Conqueror's rules for, 313 Irish, 327 Scottish, 326-7 Welsh, 49-50. »34 Circuits (judicial), see ' Assises ' ' Cities.' 374, J87 ' Qtisens and burgesses,' see • Commons, House of ' Civil justice : administration of, 283-94 nature of, 270-71 Civil List, 216, 224, 225 Clarendon, Lord, 104 Clergy: Convocations of, see ' Con- vocation' House of, 129-31 liability to trial, 316 taxation of, 130, 316-18 Cltrieis Laicot, Bidl, 317-18 aerk of the Peace, 358 ' Coalition ' Ministries, 133 Coast Guard, 187-8 Coke, Sir E., 18 Colonial farces, 65, ^9 Colonial Laws Valimty Act. 73, 301 Colonial Office, history of, 74-6 Colonies: acquisition of, 3, 19 American, loss of, 76 Crown, see ' Crown Colonies * finance of, 77 generally, 19 independence of, 39 treasuries of, 228 ' Commissions of Array,' 188-9 Committees (informal) in Par- liament, 174 ' Common Law,' 15, 27, 63 Commons, House of : Committees of, 158-9 constituencies of, 131, 136-40, %yAt^ disabilities for election to, 130-3* duration of, 145 dections to, 145-51 m INDEX I Commons, Houe at—eotiHnu«d : financial privileges of, 163-3 franchiM for, 141-4 local character of. 128 orii^n 9l, 27 petitions to, 177-8 summoning of, 144-5 Comptroller and Auditor-Gene- ,."'• 223-4. 225 Consolidated Fund: Bills, 170 •ervices, 224, 225 ' Consols,' 222 Constable, Lord High, 247 n. Constable, see ' Police,' ' House- hold Officers ' Constitutional Monarchy: developement of in Empire 23-40 generaUy, see Chapter II nature of, 23 Consuls, 237-8 Convocations : constitution of, 317 powers of, 321-2 Cornwall, Duchy of, 130 Coroner: appointment of, 356 inquestoby. 278. 356 Corrupt Practices Acts. 150 Council : County, see • County Councils ' Parish, see ' Parish Councils ' Privy, see • Privy Coundl ' of State (Commonwealth). io« Counties : Dominions, the, in, 384 origin irygrant% and, 353. 362 County Courts, cm 'Conrti County ' County finance, 361-4 County officials, 360 County rates, 363 ' Conrts Martial.' ait Courts of Justice: Admiralty. 287 Appeal. 290-x, 299 Australian. 304. 305 Canadian, 304 Central Criminal ('Old Bai> ^^ ley'). 378-9 Chancery. ^7, 287 Civil Bill, 399-300 Colonial. 300-306 Common Pleas, 286 County. 245. 283-6. 299, 305 Criminal Appeal, of. 282 Crown Cases Reserved, for. '282 Divorce. 287 ecclesiastical, see ' Churches, Established. English' enquiry (naval). 187 Exchequer. 286 federal. 303 fenerally. 1 1 ligh. 286-7. 298-9 Imperial, see ' Judicial Com- mittee' Indian, 306-8 industrial. 305 Irish, 298-300 King's Bench, of, 286 local. 289 New Zealand. 304 Rrobate. 287 royal, see ' King ' Scottish. II, 296-8 Session, 296-7 summary jurisdiction, ot 276-7 Vice Admiralty, of, 302. 304 Crimean War, 76 Criminal justice : administration of. 269-83 British principles of. 283, 302-3 nature of. 269-70 Cromwell. Oliver, 54. 103, 190 Crown, see • King • Crown Colonies. 76-81 OrowB Lands, so, •19 CaniBlaHve vote, 387 Casloins, Board of, 319 CoBloffls Duties, 167-8,119 DuMgeld, 3i8 Deans, appointment of, aee * Church, EngUdx ' ' Death Duties,' 167, 319 Defence of the Realm Acts, 197 Dekdme, on the British Con- stitution, 133 Director of PnUic Prosecutions, 346 Disease, jpuMic treatment of, 348-9 ' Dispensing power,' 313, 333, 330 Disqualifications, Parliamentary, 148-9 Dis^ss Committees (under Act of 190S). 345. 35». 379 District (sanitary) ; Dominions, the, in, 384 elections to, 346 generally, 333 powers and duties of, 347-51 port, 347 rates, 353-3 rural, 346 urban, 346 ' District ' and ' District Magis- trate.' see ' India, Brit- ish' * Divine Right,' doctrine of, 35 Domains, royal, see ' Crown Lands' Domesday Book, a 18 Dominions, self-governing: Agents-General of, 70-71 courts of justice in, 67-8 forces of, 304-5 generally, 61 High Commissioners of, 70-71 Imperial ties of, bS-y^ legislation of, 71-72 local government in, 68, 383-4 Ministry of, 64, 66-7 Par aments of, 65-6 I>rair i, see ' Sewers ' a6 INDEX 995 Earl Marshal. se« ' Hoosehobl Offices' East India Company. The. 8>-4 Educatk>n, puUic : Acts, 359, 363, 365 Board of, 361-3 Board Schools, 360-61 committees, 363. 365 compulsory, 359-60 county councils and, 361 Department of, 359, 26., 361 elementary, 357-65 endowed sdiools, 357 grants for. 359 higher, 365 inspection of secondary schools, 366 non-provideid schools, 364, 365 provided schools, 364 public schools, 356, 366 rate, 350 School Boards, 360 school managers, 360, 363 364 universities, 356-7 urban councils and, 350 ' voluntary ' schools, 357 Edward I: Qergy and, 318 Parliament and, 27, 38 Egypt: army of, 99 Consuls-General, 98 High Commissionersh^ al, 98 joint control in, 98 Khedive of, 98 legal reforms in, 99 local government in, 390 self-government in, 99 Election : expenses, 146, ^51 offences, 150 petitions, trial of, 149-51 Electoral Roll, 147-8 Enclosures, 334, 335 ' Equity,' 37, 341 ' Estimates,' The. 166, 171 supplementary, 171 Evidence : in civil cases, 389-90 in crimiiial cases, 380-81 396 INDEX Hcraditwy title. Infl of th* Bxehaqutr ' Coort of. 3i8 I^gtwof, 31. 314 ,«ndaJt of, a 14 'origiaof. 30 noofdtof, 2t$ Bsduqaer aimI AodU Dtpart- mant, aaj. 344 Exchequer Contribution Ac- count, 36a Executive: control of, 39 generaOy, 9-10, 19-at Executive Council : in Crown Colonies, 79-te in Britiah India, 86-7, 91 in aelf-goveniing Dominions, 66-7 « Extradition proceedinga, 331-4 ' Faggot votea,' 141 Federation, Colonial t Australia, in. 63 Canada, in, 63 ■enerally, 63 South Africa, in, 63 Feudal influences, 34 Finance Bills, 170 Foceign Jurisdiction Acts, 97, 101 Foreign jpolicjr, pnerally, ao ' Forty Shilling Franchise,' 141 Franchise: funidpal, aee ' Borough Council,* ' County Coun- dl,' 'District Council,' ' Parish Council,' etc. parliamentary, aee ' Commons, House of ' ' General Wananta.' 38 'Gibson Bowles ' Act, 167-9 Government legislation, 17, 157 Government of Ireland Act, 59 Govemora: Colonial, 69-70, 77, 79 Indian, 91 Great Seal, 315, 240 ' (kenviUe'a Act,' 150 , ot, 33-tf Hi^ Commiaaion. Court of. 13 Hi^ Commiaaioaars, aee ' Do- miaiona. Self-governing ' Highwaya, aae ' District (sani> tary), powers and duties of,' and ' County Coun- cila, powera and dutiea of ' Housing and Town . Planning, „ 350 Housing of the working classes, „ 349-So Hundred (local unit), 333, 333 Impeachmenta, 33-3, 178-9 Imperial Conference, TIm, 137 Imperial Defence, Committee of, 306 Imperial les^tion, 73-3 ' Imperial Service troops,' 96, aos Income Tax. 168, 319, 330 'Indemnity,' Acta of. an, 313 India: acquisition of. 3. 81-2 armed forcea of, 94-$, 30c Civil Service of , 8^ ' Counci l of. 84-5 Crown government in, 82-A 'diatricta'of.390 finance of, 93-3, 338 Governor-General of. 86 Governor-General of, in Council, 86-7, 97 Legislative Councils of, 87- 9, 91-a local government in, 387-90 principles of government of. 93-5 provincial government ol 90-92.389 responsibility of offidala in. „93-4 Ripon, Lord, reforma of. 389-90 Secretary of State for. 85 DIDEX 397 India tx mli i t uti : villHt* iottitutioiis 9i, 3>S- Mativ*. 96-7, ao5 ladictamt. m* ' TriiU. on indk^ lafaacy of monarch. 34, 31 InteRefBiun. mMainf of. 34 Irtlandi •oqoiaition. a * Caatlo ' ijrstam in. 57-59 Cbotckof, s 133-4 oonaty oonncUa in. 383 eonrta of jnttice of, 398-300 CromwoU in, 54 ' Declaratory Act.' 5$ educational ayatem, 58-9 Home Rnle in. 59 law courts of. 53. 59 Lord Chancellor of. 343 Navigation Acts and. 55 Parliamentary representation in. 140 Par'iaments of. $2-3 POr relief in, 383 PO infs' Laws. 53 Fti.f Coondl of. 56, 383 Reformation in. 34 aaaitaiy districts. 3811 trMMory of, 58 Ulster, plantation of, 54 Union. 19. $6-9 Jndges : common law, 15 duties of, 381. 390, 393 immnnity of. 394-<^ influence of, 36 security of, 13, 11 3, 308 Judicial Committee of the Privy Council, 68, 136, 393-4 privilege, see 'Judges, im- munity of ' Juries (financial), 3i8 ury: ahallenge of, 380 Giaad, 377-8 In civil cases. 290 Introduction of, ta PMty, 380 Scottish, 39C inUkit of, 3S1, 390, ^6-7 J^istioes' Oerks, 358-9 ostices of the Peace, see ' Magistrates ' Kinf, The: adinlnistrator, as, 19-33 allegiance to, (, 6 assent to legislation, 17 ohange in character of. 4 covta of Justice of. it-14, 36-7. and Chapter XI dirtiaat administrative. 19-33 executive. 9> 10 judicial. II, 13, 13 legislative, 14. I5 military, 6, 9 infancy of, 34, 31 institution, as an, 36 international position of, 9, 30, 336 origin o<, i personal character of , 4 1, 4a Ersonal powers of, 40-5 gulations of (Army), see 'Articles of War' rii^ of, 43-S title, a ' King's Counsel,' 37011. • Kniibts of the SUre,' see ' Commons, Honse of ' Labour Ezchangea, 350 Lancaster, Duchy of, see ' Pala* tinates' Land Values Duties, 319 ' Law Lords,' 135-6, 393, 393 Law OfBosfS, 34s. 346. 383 Legislation: colonial, assent to, 71 generally, 16-17 and see ' Act of Parliament ' Licences: armwial bearinp, 330 dogs, 330 liquor, 339, 358 sporting, 330 vehicles, 330 Loans, Government, 331-3 Loans, Local (AcU), 353, 363 Local GovanuasBt: coleaiaa. the, in. jji-a 998 INDEX Donrinjoni, th*, in. 383-7 Bnglud^ ia, 331 gneralhr. Oiaptm XIII and IndiA, iiL 387-90 nature of. J30-1 and Ma • Coontv.' • Diatrkt,' • Pfcriih.' • Union,' etc. Looal GoircnuDont Board : ooutitntion d. 351 control ci local aiitliaritia^ ^,^ !M-1. 379 (Md Age Pensions and, aea-e poor-rciief, and. 351-3 pnblic health and. 353. 350 Local Government RegUier. 337. Local Improvement Boards, 3S3 _ , 337. 340 Itocal Taxaticn Account, London— City: tUimavn of, 376 common conndl of. 376 income of, 377 Lord Mayor of. 376 officials of. 376 sheriffs of. 377 , County : oooncil of. 377-8 creation of, 377 educational duties of, 377 expenditure of, 378 sanitary duties, 377 Long Parliament, 37 Lord Oiief Justice, 135, 291, 393 Lord High Chancellor, 135, 315, 340-3, 393 Lord Justice Qerk. 396. 398 Lord Justioe General, 396 Lord Lieutenants: magistrates and, 373 military character, 7. 8 Territorial forces and. 8, 303 Lord President of the (Privy) Counca, 344, 393, 294 Lord President of the Court of Session, 296, 398 Lord Privy Seal, 243-4 Lords, House of 1 Lord*, Houeof— MMMnMMft bishops in. 133-4 diaafrasnents with CommoMb ifio-a heieditaiy members of, 133 Irish r epres< nlaU¥ e peers in, US life members of, 133-3 ' Money BiUi ' and, 164-3 origin of, 37 Plurliament Act and, 165 Scottish representative peers „ in, I.U Speaker of, 343 lAHTds. House of (Judicial) t civil cases in, 391-3 criminal cases in. 383 Ireland. ^>peals from. 399 Judges attending, 393-3 Sc ot land, appeals from. 397 Lords Justicee of Appeal : English, 391 Iriui, 399 Magistrates t administrative duties of, 357 appointment ol, 343, 34s, 371, 373 borough, 373 county. 373 »» offito, 373 liqoor licences and, 358 PMice and. 357 *■*»<» Law and. 335. 336, 357 proceedings before. 371-7 sttoendiary.' 371, 373-4 Man, Isle of. 60, 337 Manor, 334-j ' Marchers, Lords,' 48 Marines, Royal, The, 190 * Blartial law ' : Habeas Corpus and, 3ii Indemnity, Acts of, and. sti nature of. 307, 208-13 Petition of Right and, 189 position of soldier ond«, 313-13 prohibition of, 190 responsibility for ozncise oi Appeal. Lords of. in. 135, Riot Act, 209. 210 393. 293 royal pardon reading Ion and, o<,aio aia->i| INDEX 399 llMtar of tba Rolls. 391, 39a lletrapotttMi Asylums Board. J79 MetropoUtaa boroughs: dntiM ci, 379 government of, 37^ origin of, 378 Metropolitan Water Board, 380 Military Law. 207-8 Military Service Acts, 199-300 MiUtia: ancient institution. 7 ballot. 7 ehangesin 1907.7,8 Colonial. 8 foreign service, 7 Irish. 8 reserve, 30 ( Scottish. 8 Ministerial responsibility : generally. 4. 5 and see ' Cabinet System ' Ministers (diplomatic), see ' Am- bassadors ' Ministry, The : control of. by Parliament, 163, 169 motionsfor adjoomment. and, «73 questions in Parliament, and, i7a-3 resignation of. 174 resolution of want of con- fidence in, 173 * Money Bills,' 161, 16$ Monmouth, county of, 137 Montesqoien, on the British Constitution, 133 * Mortmain,' Rule of, 337n. Much Wenlock. 139 Mudiriat, see ' Egypt, local government in ' Municipal Corporations Acts, see ' Boroughs ' Municipalities, see ' Boroughs ' * Mutiny Acts,' see ' Army, Regular, The ' Nationality. &itisb. acquisition of. 6 Navigation Acts, 55, 77 Navy, Tba Royal i administrttionof, i8s Articles f, 184 constitutional ch-iracter of, 184 courts martial in, 186 discipline of, 186-7 Dominion contribitiuns to. 304-5 impreMment in. 1 1 : Uability of me;nbjrM to civil courts. 187 origin of, 183 reserves of, 187-8 Northern Teiritjry (of Ane* tralia). 304 North-Weet Territories (of Can- ada), 304 Officials (Crowa): influence of, 30 liability to impeachment. 33-3 ' permanent,' 105-6. ii3 ' Old Ag3 Pensions.' 346, 352>3. 343. 345 Ontario : parishes in. 383 'reeves.' in. 385 Orders in Cooncil, 14. 16. 17. tS Overseers of the poor : appointment of , 338 dutiesof, 338, 339 origin of, 335 superseded by ' Guardians, 341 Palatinates : Chester, 137 Durham, 11, 137 Lancaster, 137, 139 Pardon, prerogative of. 333-3 E^urish: Canadian. 383 Councils, see below decay of, 336 poor-law unit, 335, 336 rural. 337-9 urban. 339-40 Parish Councils : allotments and. 338 charities and, 338 election of, 337 400 INDEX Parish Councfls — contiHu$d : institution of, 337 powers of, 337-8 rural narishes, confined to, 340 Parish Meetings: members of, 339 powers of, 339 rural parishes in, 339 Parliament, Act of 191 1, 145, 161-2 Parliament (Imperial) : adjournment of Houses of, 1 80 annual sessions of, 145 audit by, 225 Bill of Rights and 144 Cabinet and, 1 19-2 1 character of, 28 control of finance by, 226 control of Ministers by, 32-3 dissolution of , 179 duration of. 145, 161 elections to, see ' Commons, House of ' legislation of, 16, 28, 155-63 motions for adjournment in, origin of, 4, 16-17, 27 power to dispose of Crown, 4 procogation of, i7S>-8o questions in. 172-3 representation in (generally), 153-4 revenue powers, 33, 34 secret sessions ii^ 175-6 • sovereignty ' of, 28-9 structure of, Chapter VI taxation and, 33-4, 145 work of. Chapter VII Parliament (Irish), 19 Parliament (Scottish), 18 Party System, The, 106-9 Cabinet and, 121-3 defects of, 126-7 Home Rule, 108 Imperial politics and, ia6-7 Jacobites, 107 Labour, 108-9 merits of. 124-5 organization of. 151-3 Radical, 108 Tory. 107, 108 ytlag, 107, 108 Passports. 237 Paymaster-General, 224-5 Peace, Justices of the, see ' Magistrates ' Peers : disabilities of , 149 privileges of , 178 Petition of Right, The, 189-90, 213 ' Petitions of right,' 230 Petitions, Parliamentary, 16, 177-8 Petty Sessions, see ' Ifagis< trates ' Pipe Roll, 215 ' Place Acts,' 105-6, 120, lai Plague, the Great, see ' Black Death' ' Plural Voting,' 144 Police: general character, 9, 10 inspection by Home Office, 23 1 Polling, see ' Commons, House of (elections to) Poor, Guardians of the : Assessment Committee of, 344 district of (' Union '), 340 election of, 340-41 ' indoor relief,' and, 342 instituted. 336 Metropolitan, 379 ' outdoor relief,' and, 341-2 powers and duties of, 341-4 registration of births, deatiia^ and marriages, 343 vaccination and, 342-3 Poor Law : officials, 343 origin of, 335 reform of, 335-6 Scotland, in, 351 unpopularity of, 344-5 Poor-rates : iq>peals from, 344 assessment and collection (^ 344 generaUy, 335, 336 valuation list, 344 Popes, see ' Rome ' Postmaster-General, 246-7 • PoyniagB' Laws,' 19, 53 ' P ter ogativ e ' writs, 288-9 liii INDEX 40X Prime Minitter, The. 1 151L. 1 17- Prisons, 23 1 • Private Acts ' (of Parliament), i«6, 163 * Private Member's Bill.' 158 Privy Conndl (and see ' Orders inConndl'): colonies and. 7 s educational grants and, 359 lutore of, 102. 103, 104 jndiciai committee of. see ' Judicial Committee ' meetings of. 1 13-14 membership of, iiS origin of, 30 .,.-.. Privy Seal, see 'Lord Privy Seal' Proclamations, see ' Orders in Council' • Progress.' reporting (in Parhar ment). 1S9. ^7° Prohibition, writs of. 319 Protectorates. British, 95-101, 338 Provinces: British India, of. 90-9> Canada, of. 63. 64 South Africa, of. 63. 64 Provisional Orders. 163-3 ' Public Acts ' (of Parliament), 156-^3 Poblie health, see ' District (sanitary)' PnUic Schools, see ' Education ' PoUic Wwks Loans Commis- sioners, 3S3 Quarter Sesskms: borou^s and, 373. 375 Dominions, in, 305 UcensiBg and, 35* trial at, 379 Quebec: mayors in, 385 parishes in, 383 Qnestions in ParUament, i7>-3 Rates, see' Boroui^,' ' Coonty,' ' District,' ' Education,' • Poor,' ' Pari^' etc. ■iecorder, 331. ■'79, 373 I'ef.iirm Acta: o( 1832. T37, >40 oi "My. 14Z of 1883-4. •4«. M3 of 1918. 143. 144 Reformation, legal changes at, 318-24 . Registrar-General, 343 Religious toleration, 334 ' Report stage,' 1 59 Reserve Forces, see ' Army, Territorial' ' ResponsiUie Government ' : AustrtJia, in. 67 generally, 64-5 • Returning officers,' 140, 146 Revenue, royal : audit of. 33S-6 collection of, 218-21 expenditure of, 223-5 ' Rights, Bill of.' see ' BUI of Rights ' • Riot Act.' 9. 10. 3IO Roads, see ' District (sanitary), powers and duties of ' Roman Law. 388 Rome : appeals to. 319 ecclesiastical influence of. 310-11 jurisdiction of, 319-20 taxation of clergy by, 318. 330-31 • Rotten boroughs,' 139-40 Royal Flying Corps, see ' Air Force' Royal Naval Air Service, IM ' Aif Force ' • Rule of Law,' 38-9 Sanitary officials. 351-3 School Boards, see ' Education ' Scotland: Board of Agricultare of, $a Fisheries of. 53 burghs in, 381-3 Church of, 51. 134 courts of justice of, 3 96 8 •docstiooal^stsn, 51. 53« 3t> Sries in, 390-7 w aad law courts, s> 402 INDEX Scotland— eofa^MiMi : local govenunent in, 380 national character of, 51-3 parish conncils in, 381 Parliamentary representation of. 140 •chool boards in, 381 Secretary for, 52 separate Insurance CommiS' sion, 52 Sheriff's Courts in, 297-8 onion of Crowns, 3 Kingdoms, 18, 50-51 SealsAct,3i,32,2i5,244 secret diplomacy,' 235-7 Secretaries of State, see ' State Secretaries of ' Secretary at War, 194-5 Secret Sessions (in Parliament). 175-6 ' Select vestry, see ' Vestry. select' Self-defence, right of, 273 Self-governing Dominions, see ' Dominions, Self-govern- ing' I Separation ' of powers, 133 Settled poor,' 336 Settlement, Act of : chapurter. 4 choice of monarch, 34-5 jndges' tenure, 13, 295 pardon. King's. 133 Sewers, 348 Sheriffs: Eoj^sh : appointment of, 318, 377 (London), 377 dechneof, 355 dntiesof. 356 \ liabilities of, 356 wtuming officers, as, 146 - »48. 355 Scottish : courts of, 397-8 sheriflF-subrtitute, 397-« Ship. British : alien may not own, 6 birth on board, 6 • Ship Money ' writs, 183, 318 • Shir»,' see • Coonty ' Sinecnre offices, 115 see 'Law Solicitor - General. Officers' Sooth Africa : provinces of, 64 responsible government in, 65 Second Chamber in, 66 ^ Union of, 63. 64 Special Reserve ' (Army), 201 Speenhamland Act' (1700 _ 345 " Spheres of influence,' loo-i Stamp Duties, 219-20 ' Standing army,' see ' Army. Regular ' " f?f Chamber, Court of, 13 state. Secretaries of : Air, 203 Colonial, 75-6, 229 Foreign, 229, 234-6 ^nerally, 228-30 Home, 239, : Indian. 84-5. 87, 88. 89, 3o6 Northern, 229 Southern, 229 War, 76. 195. 196. ,97. ,98, I 200 I State Departments, see under varioos titles : liability to actions, 306 States, Australia, of, 64 Steward, Lord High, and Lord, c*. ^' Household Offices ' Stipendmry Magistrates, see Magistrates, Stipen- diary' "^ Sudan, The, 99 ; Supirfy,' Committee of. 169-*) , ^'•PPly services,' 224-5 Su^ending power,' 333 'Tacking,' 164 Territorial Forces, see ' Army Territorial, The ' Theodore. Archbishop, «io Torts,' nature of, 371 Town Clerk. 368 Jsssh^r^' "" enclosure of, 314 SS!*!?**"" «^333. 334-5 2J^.i3a,3